SMAGE EVALUATION TEST TARGET (MT-3) ^s y^^ y- ^d. 2<. 1.0 I.I IL25 ■ u 6" 2.5 2.0 1.8 1.6 ^ <^ /] .^fe -^ / PhoiogTdphic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 ^V i\*- <^ ^ O ^'^^ k 4!^ > \^ ^ VV 8^ <. S"^^ C/.x CIHM/ICMH Microfiche CIHJVI/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Instltut Canadian de microreproductions historiques ^ Technical and Bibliographic Notas/IMotes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. n Coloured covers/ Couvarturo de couleur I I Covers damaged/ Couverture andommagie Covers restored and/or laminated/ Couverture restsur^e et/ou peiliculAe Cover title missing/ Le titre de couverture manque Coloured maps/ CartAS g^ographiques en couleur D D n n D Coloured ink (i.e. other than blue or black)/ Encre do couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Reli* avec d'autres documants Tight binding may cause shadows or distortion along interior margin/ La re liure serrea peut causer de I'ombre ou de la distorsion la long de la marge intirieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches »jout«es lors dune rsstauration apparaissent dans le texte mais, lorsque cela «tait possible, ces pages n'ont' pas iti film^es. Additional comments:/ Commentaires suppl^mentaires; L'Institut a microfilm^ le meilleur exemplaire qu'il lui a et« possible de se procurer. Les details de cet exemplaire qui sont peut-«tre uniques du pomt de vue bibliographique, qui peuvent modifier une image reproduite. ou qui peuvent exiger une modification dans la m«thode normale de filriage sont indiquis ci-dessous. □ Coloured pages/ Pages de couleur □ Pages damaged/ Pages endommag^es I I Pages restored and/or lamina- ad/ I — I Pages restauries et/ou pellicuJd*<9s Pages discoloured, stained or foxed/ Pages d«color4es, tachet«es ou piquees □ Pages detached/ Pages ditachies QShowthrough/ Transparence Quality of print varies/ Quality inigale de (impression □ Includes supplementary material/ Comorend du matAriai m„m,^ij. ^- Comprend du materiel supplernentaire Only edition available/ Seule Edition disponible n Pages wholly or partially obscured by errata slips, tissues, etc.. have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par gn feuillet d'erraia, une pelure. etc., cnt it6 fiim^es i nouveau de facon ^ obtenir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est film« au taux de reduction indiqui ci-dessous ^^^ 14X 18X 22X 12X 16X 26X 30X 20X 24X 28X _J 32X The copy filmed hero hes been reproduced thanks to the generosity of: McLennan Library JVIcGill University Mont/eal The images appearing here an the beet quality pcjsible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Original copifi- in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or iilustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol «*> (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. l\Aaps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmod beginning in the upper left hand corner, laft to right and top to bottom, as many frames as required. The following diagrams illustrate the method: L'exemplaire film* fut rsproduit grice i la gin4rosit6 de: IMcLennan Library IMcGill University IMontreal Les images suivantes ont «t« reproduites avec le plus grand soin, compte tenu de la conditior. et de la nettet« de l'exemplaire film*, et en conformiti avec les conditions du contrat de filmage. Les exempiaires originaux dont la couverture en papier est imprim«e sont filmte en commenpant par le premier plat et en terminant soit par la derniire page qui comporte une empreinte d'impression ou d'iliustration, soit par le second plat, salon le cas. Tous les autres exempiaires originaux sont filmte en commenpant par la premidre page qui comporte une empreinte d'impression ou d'iliustration et en terminant par la dernlAre page qui comporte une telle empreinte. Un dee symboles suivants apparaTtra sur la derniire image de cheque microfiche, seion le cas: le symbols -^ signifie "A SUIVRE", le symbols V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent «tre filmte i des taux de reduction diff^rents. Lorsque le document est trop grand pour Atre reproduit en un seui clich«, il est film« A partir de I'angle sup^rieur gauche, de gauche A droite, et de haut en bas, en prenant le nombra d'images n«cessaire. Les diagrammes suivants illustrent la methods. 1 6 x > ^ « V X % ^- x\ >^ N. ^ ^ iPIr OF THE LAWS . OF NOVA-SCOTIA, UY ^W- '!-Jl' BEAMISH MURDOCH, E» nm J I wmmmwimmi' mmitimm'mm m ^Hm^ ^^ «• ' • # »,* % ^^' (K^fr V -i»iil--%^.. THE HON. S. S. BLOWERS. CHIEF JUSTICE. AND PRESIDENT OF H. M. COUNCIL. THIS ESSAY ON THE LAWS OF A COLONY, ^* OVER WHOSE TRIBUNALS HE HAS LONG PRESIDED, ■0- . 19 BY HIS KIND PERMISSION, INSCRIBED. .IN TOKfiW OF RESPECT AND VENERATION # FOR HIS PUBLIC SERVICES, ♦ HIGH JUDICIAL QUALITIES. AND IXFLEXIBLE DfTOGRlTy. WHICH ARE INTERWOVEN WITH THE author's EARLIEST RECOLLECTIONS. jh ■ftE""' * ^^mmmmimmmmmKmifitm ■♦■• L^ # %^f ^^ ^', fl. 41 4. , * S'# "^ % PREFACE. Above 70 years' legislation has accumulated a mass of provmcial enactments (contained in 3 large quarto volumes down to 1826.) Since 1826. verv many acts have pasTed Much inconvenience has been felt in referring to them, as It requires an mlimate acquaintance with their contents. tD enable any one to distinguish those directly or virtually repealed, from such as remain in force. This difficulty has been experienced by professional men as well as others, K !?"& i*^^^'"^" ^"'lex published by Chief Justice Mar- shall afforded some remedy. The variety of instances in which our Provincial acts and usages have altered the laws ol Ji^ngland, and the uncertainty as to what English acts are or are not m force here, suggested to the writer the usefulness of a work m humble imitation of the Commen- T^ai^f A J i^"*"^' ""Staining such English law as we have adopted, and adding under each head or chapter the sub- stance of provincial enactments that belonged to it. (Vn- der an impression of an analogous kind, an editioi of Blackstone, With notes showi.ig the changes of law in the United States, has been there published.) The author has been favored with a reading of the Commentaries of ser;ip; Jn°" ^^'"^"^^PJaw, and has found them of much ho hn« n r^'Pf '?^ this work. The materials from which ic^ntn/.l'^/'r^ *^'' ^P'^^'"« were so scattered and dis- .^ntcd, that few can appreciate the fatigue attending it He has had m constant view, to give the substance of all the provmcial statute laws in th6 plainest terms, freed fro« » # vi. PREFACE. ^^relf^t^^^^^^^ w'^ich the, .ere written an d^ He hopes in 4 or 5 small luT^ ''""'' "^^'^n necessary * body of the provinciSatul n.'' '^ '^'"P^'^^ '^^ whoie t^emin ara/ional orde^S^ arranging chapter, with such Cu^riaw r"'"''?^ '^^"^ '" ^fery •ary to be noticed. Th f C t f '" ^^ •" ^''^ ^^ neces- futes, has been less labo ous in r^'"'"^^.^'"g chiefly sta- n revising and preparing ?orth,"^°''.^^'^"' ^'"^ '"^""^ «<> tion of the work. The ^her hn//"'"' "'"" ""^^ «^''^r por- bear ;n mind, that the du^^s of a llh''^""'' ^'^ '■^^^^^^ to not allowed him to dedicate ni^ '^'^°'-'0"« Profession have to this undertaking as its .w/""'^^*'"'^ ^"^ attention ;t will be found us^eVu iotS ISf ^'^ «^ ^^-^^ the remaining volumes asrpidlv ^^^ ^^ will publish the press, having themanusc^ntorn. "^ ?"/'' ^'^'•o"gh hopes at some future pe iod ?f 1^ ''T'>'- ^"'^^ed. Ko state IS acceptable to thn ,.',k •t'' "^^'''^ '" its present valuable and^nlargld diti^n Jie' h' *° .^"'^''^'^ ^ «^^re histh nk3 to the |entleme„ofttBa?\?;?*^- ^^^"'" —the Agents for the work and to h : = « t^ ^«g'strate«>, neral, for the^r kinH Z^\.' u ?■ "'^ Subscr bers in ^p- which have stLlated'E'to'ne;"' ^— agemeft" vors, and to several of LfrLn^ f ^^'^ '" ^is endea- loan of law works required V:' '^^^f ^'^^'^^'^'y '" the provement of mind, and the intT l«.Tf*'^^"^""* ^"^ im- these three years ik this pursu ? nr! f '^''. ^^'^ ^""ng jf?f TABLE OF CONTENTS. 2. 3. 4. 6. 6. 7. 8. 1 15 20 25 28 30 Intboduction. Sec. 1. On Uie study of the Law. On Laws in general. The Laws o; England. Early state of Nova-Scotia. Territory of Nova-Scotia. Sources of Provincial Law. How far English Laws are iu force here. 33 ^""^'PJes of the Government. 42 General division of tho Subject. 46 Book L-Of Government. Chap. 1. Subjects and Strangers. 2. General Assembly. The Executive. The Revenue. Subordinate Magistrates (of Counties and Townships) 123 ^' ^»ws coxmected with Affri- culture ° Chap. 7. Laws connected tvith Trade 160 0. Laws connected %vith Reli- gion, Morals, Charity and Education jgj J>- Laws connected with Health and Amusement. 208 10. Militia and Billetting Laws. 214 ApPBNmx. 225 Index. 233 3. 4. 6. 49 67 89 108 Paget, to 14. to. 24. 27. 29. 32. 41. 46. 48. 66. 88. 107. 122. 139. 169. 180. #■ 307. 213. 224. 232. 240. *%i:j 1 ip— lllp III^I t i EXPLANATION OF ABBREVIATIONS. 1. P. L. 200. — 1st Vol. of the Province Laws, p, 200. I. Car. 1. c. 1. s. 2.-— l8t year of King Charles the First, Chapter 1st, Section second. G. 3. G. 4. — George the Third, George the Fourth. 1. W. & M.— 1st William and Mary. Hen. 2. — Henry the Second. Ed. 3 — Edward the 3d ch. c. Chapter, sec. s. Section, etat. st. statute, p. page. MS. Manuscript. 1. Chalm. Opin. 1 Ch. Op — 1 Chalmers' Opinions on Colonial Law. T. R. Term Reports. Dougl. Douglas. Cowp. Cowper 1. B. C. 1. Bl. Com. 1. Blackst. Com. 1st Volume. Blackstone's Commentaries. "^fr^frwwwf— "^wp^Pdi*! W ■mPHim INTRODUCTION^. Sbc. I. On the study of the Law. « THE profession of the law has become, in every civilixed country, the occupation of a distinct body of men. Long and undivided attention are required to attain proficiency in a science so extensive. With the progresf; of society, men's transactions in business become more varied, their relative rights and duties more numerous, and their disputes more complicated. The skilful Advocate, th« enlightened Magistrate and the scientific Judge, are at length necessary to the well being of a community ad- vanced in wealtJi and population. The principle of the . division of labor is equally applicable to science and to manufactu.es. The professional student has to encoun- ter a mass of reading that will afford him little leisure to pursue any studies not auxiliary to his main pur- suit. The variety of learning with which he should be con- versant, nay, intimately acquainted, before he can be com- petent to act with usefulness to his clients, on the multi- plicity of occasions where his services are required, de- mands the devotion of all his mental energies. VOL. I. I ■m m ^ INTHODUCTIOK. A knowledge of the general principles of law, and of fome particular branches, is sometimes necessary and very often useful, to those who are not looking to it as their pro- fession. The Magistrate and the Legislator come alike under this remark. It is not necessary that they should be versed in the technicalities or familiar with the astute distinctions of the Barrister. Yet an acquaintance with the outlines of our free constitution, and a familiarity with the laws more immediately connected with their public duties, must add much to the facility and comfort of their proceedings. While the body of law reports, law abridg- ments, digests and even statutes at large, are more or less unintelligible to any but adepts in the profession, many talented writers in the mother country have employed themselves in the composition of treatises, in a style more suited to the ordinary reader. Where the use of technical expressions was unavoidable, they have defined and explained them, so as to render »heir works perspicu- ous and comprehensible to every well informed man Thus the statesman who would investigate the laws by which the principles of the British constitution are recog- JEed and sanctioned, and the rights and duties of e subject in his political capacity p '^ted out and guarded, may trace them with ease, by the aid of the Commentaries of Blackstone the Essay of DeLolme on the Constitution, and oiher books of' that description.— Many modern treatises on particular subjects are also written in a style of a clear and familiar kind. The works of Mr. Roberts on Wills and on Frauds— the essay of Lord Tenterden on shipping— of Mr. Holt, more recently, on the same sabject— may be cited as examples. With a good treatise of this sort, and the aid of a law dictionary such as Tomlyn's, any intelligent person may, with mode- rate exertion, acquire a considerable knowledge, on Piy particular subject which he is required to understand. 'I :_ - 1 ... - . ^ "«v->oi.a.i»vi. ucfy IS aaescnpuoii oi legal knowledge very useful to SEC. I.— ON THE STUDY OF THE LAW. 3. every man-to be aware of the ordinary formalities and rules respecting deeds, wills, bonds, promissory notes, &c. Correctness and caution, with reference to these, will save one often from the risk of being involved in the expense and misery of a lawsuit. . The reading of law books by those who have not made It a regular study, is very apt to mislead. \ person not belongmg to the profession (and the samecudon will ap- ply to a student in his first commencement) should read a law work with a good law dictionary at hand, and con- suit It whenever he has the least doubt as to the meaning of the author. The greatest difficulty arises from the tech- nica meanmg often affixed by law writers to words com- monly used in other senses. Thus « common," « use " "limitation,;' "equity," "tenant," "fee," " entry," " i^. lul'^TT' "r""'^^'" ^---P-"liar meaning attached to them when used as terms of law, very differ- ent from the ordinary sense in which they are applied.- Many words have several distinct meanings each, in law language; and the thorough comprehension of legal phraseology is one of the eariiest and most perplexing ol,- stacles to the student. It is perhaps very much for the . same cause that a hasty reading of medical works is apt to deceive. The descriptions of the symptoms and stages of disease are often couched in language that requires much care and enquiry, to understand with precision. It has been my study to render this work as plain and easy to readers in general, and as free from the peculiari- Zt/'t'*"''' *'^^^" ^^^^'^^ book totheun. mitiated, as the nature of the subject and the brevity of the .pace would allow. I have done so, not only tTllX more useful and acceptable to magistrates, persons ofnti Kcriy, ana ousiness, &c. but with the hope" that it might much facilitate the study of law in thi« province. H^ 4 IKTRODUCTIOH. access only to works written expressly for English stu- dents, much of our time has hitherto been wasted in ob- taining, by long and tedious research, an intimacy with the general character of the Provincial usages and statutes. I trust that this book will in a certain degree supply the deficiency, and if circumstances permit, I shall endea- vor to malie any future editions of it more complete and accurate than the first outline can be. Few need to be apprized that a thousand volumes will liardly embrace the whole catalogue of those works, with which an accomplished jurist is expected to be in a great- er or less degree conversant. Much erro- prevails hcwr ever as to the quantity of reading, that is useful or neces- sary to the lawyer. I have seen it somewhere stated that he is expected to store his memory with the chief paitof the contents of such a book as Viners' abridgement, which contains, I think, above 20 large folio volumes. Even among the profession, the vain attempt is sometimes made, to commit to memory great numbers of decisions out of the Reports, and to print on the recollection the sub- .^tance of heavy tomes like Coke Littleton, Bacon's Abridg- ^ ment or Comyn's Digest. A thorough knowledge of the foundations and first principles of law, a general acquaint- lance with the best treatises, ancient and modem on par- ticular subjects, and a careful investiga'tion of the cases on every point that attracts the particular attention of the stu- dent, or young barrister, gradually form his mind to legal pursuits on a solid and consistent plan. He should have that knowledge of law language which may give light to all his researches in actual business. His mind will be a kind of index to the whole of the best collections that he has access to ; and by tracing the reason and the con- nection of every case and position he meets with, to their sources, in first principles of reason and justice, he must be ^tter qurUified at a short notice, to prepare an opinion-^- ■EC. I.— ON THK STUDY OF THE LAW. 5 an argument, and eventually a decision, than he would be if his memory had been burthened with the heterogeneoui contents of very many folios. A half-hours inspection of a large law library is almost enough to deter any young person from embracing such a profession j and even the nerves of those who have been inured to poring over black letter, and law-French, and, worse than that, law-Latin, will sometimes twitch with in- voluntary shrinking from the barbarous aspect of these Sibylline leaves. The motley and tasteless jargon, the ob- solete dialect, the antiquated questions and rules, the puzz- ling contractions of the early Gothic type, and the moul- dering dust, that unite in presenting impediments to the enquirer, seem to throw an impenetrable veil over the ori- ginal features of our jurisprudence. But although the Law appears thus to wrap herself up in mysterious intricacy like the wisdom of ancient Egypt in its hieroglyphic cha- racter, or the Brahmin Science in its Sanscrit, yet the at- tentive pupil will discover, after a time, that this is not an affected concealment,— but an obscuration which the multiplied relations of society, and the slow and almost imperceptible growth of the science of law, through a pe- riod of above 20 centuries have produced. After some years of preparatory study are passed, (and passed not un. pleasantly to an enquiring mind) the apparent mystery and confusion vanishes, and at length in the piles of ancient and modern law-writings, that he once viewed as, a cha- ptic heap of incongruous and often absurd materials, to all appearance inextricably jumbled, he now perceives the re- pository of the ideas and experience of ages upon ages, collected originally from time to time, by men of learning an^ judgment,--arranged so well as to afford great facir lities for investigation,— and illuminated by the genius and powerful understanding of mnnv a nf^]ahrnt^A ,,„. r inferior grade of intellect. He finds the lawa trace^ • INTROOUCTICN. upwards to their first principles in the nature of man, hit ■ocial propensities, and his religious duties, and he discovers that their practical advantages or inconvenience., as applied to the daily occurrences of life, have been made the constant subject of assiduous enquiry. Nothing has been too profound or too minute for the observation of the diligent sons of the science. Ago has borrowed from age and nation from nation the fruits of their judicial experi- ence, each applying them to ameliorate and enlarge their own institutions. In the practice of Nova-Scotia, as in other parts of North America, the Lawyer's business embraces the whole ma- nagement of his Client's affairs. He is in the first place called on for his opinion as to the propriety of commenc- mg or defending a suit. If an action be resolved on, he IS then, as tho Attorney of the party, to prepare all the written proceedings by which it is conducted, and as an Advocate to debate the legal questions that may spring out of It before the Jidges, and to speak on the merits and facts of the cause to the Jury. In the variety of Courts from the highest to the lowest, he is called on as business arises to advise his clients, draw up their papers, or de- claim in their behalf. We find the Colonial Lawyer at one moment pleading before the Governor and Council, and perhaps the next, defending a trivial assault at the Ses- sions, or seeking to recover for his client a small debt of 6 or £8 in the Summary Court. One day he is pleading at the Chancery Bar, the next probably at that of the Vice Admiralty, or before the Commissioner of Escheats. This is not all, for his practice also embraces Convey- ancing, and he even acts in the capacity of a Notary Pub- lic. All these avocations he must pursue as occasion pre- sents^, or he would not be able to retain business. In Eng- glsnd the principlo of divisioii of labor has been so far ■EC. I.— ON TMr STODT Of THE LAW. f •pplied in tin, re.pecl, that the Councilor and theAltON ney, the Barrister, the Special Pleader, the Equity Law- yer, the Civil Lawyer and the Conveyancer, are distinct occupations , all of which must at times be followed by on. and the same per«.n in the Colonies, and generally, I be- lieve, throughout the United States also. Itisasingulu, proof of the elasticity of the human mind "^^e« about 33 volumes. Some of dent P,r the first year or «o should read with reference to a law dictionary only, for explanation. After that period, he wU turn w.th greater advantage to the leading case quoted by the author I o is reading, which he should con- ider very attentively. I would recommend a 2d and a 3d reading of Blackstone's Commentaries, at intervals of one ortwoyear8,-tuo lirst time referring to a law dictionary hech.ef acts ofthe province, as they )ear upon the sub jects in the Commentarie8,-the third time reading the leading cases referred to. The foregoing list of books may be much enlarged or curtailed according to the cir. cumstances and the method of study. No course can an, swer equally well for every individual j and judicious ad- vice should be sought and followed in so important a mat- ter J and when he can obtain the direction of tiie Barrister with whom he studies, he will find it more beneficial than any cource of reading that can be thus framed. The order in which I have placed the books on the list is, such as I should be inclined to recommend generally to our stu, dents m Nova-^cotia. It will be of great service to make a written analysis of every book read, on a small scale. m SECTION 11, Of Laws in General. Law may be defined a, a rule of action by which a re^ .enable and free agent i, directed to conduct himse'frb^ ferent parts of h« creation, certain impulses, whereby their movements are irresistibly controlled. These ar^ somefme, called laws, and wc speak of the lawof gravid t.on and of the law of attraction, but it is by a met pC ^ the natural and proper meaning of the word aruk tlie governed bemg may obey or disobey, and which let forced by the sanction of punishment or reward. tJ^. ""i°''"'° *'■"'«'"'' '» "•« f»"ntain of natural law that teaches man justice, innocence and benevoUnce' Th.s law ,s originally implanted in the conscience Td reason ,s g.ven as its interpreter. The perverseTjlira^ .ons of men have often partially obscured it , bul to out tteTl of tl °".""'""' ''"^'"™''' ""•' "''"»''■■"'"' morrf . . /""f '»°»""-»"'l given additional and more distinct rules of conduct, than r... a ..,.-■ unassis^edcouldsupply. It has ai„gw;„7c,;r Z m "' ■•mm t 16 w INTRODUCTION. of reward to virtue, and thrown a deeper gloom over the inscrutable abyss of in'iellectual darkness and misery, whither wickedness and folly cond «t so many of the hu- man race. It is not our present purpose to dwell upon these pre- cepts of religion and morals. Concerning them, one day calleth out to another, and to illustrate them, wis- dom crieth almost unregarded in the streets and tho- roughfares of life, and sendeth her still small voice to ac- company us to the most remote solitude. Suffice it to ob- serve, that on these must be built all that is good or valua- ble. The laws of man must be conformable and subser- vient to their rules, otherwise they cease to be laws, and can have no just claim to obedience : for those of his creator are superior, and cannot be abrogated or controlled by any power, however elevated. The laws instituted by men are properly divided into the law of nations, and municipal law. The former consists of the usages of civilized states, their compacts and trea- ties. The latter is also sometimes called civil law, and is well defined by Justinian's Institutes : " Qworf quisque populus ipse sibijus constituit, id ipsius proprium civitatis est^ vocaturque jus civile, quasi jus proprium ipsius civitatis. ^^ Inst. 1. 2. 1. " That law which each people has established for itself, which is peculiar to the state itself, and there- fore called civil law." A great part of therfe laws consist in the declaration and sanction given by every nation to the principal laws of morals. Thus every where murder, adultery, theft, and such crimes, are punished by express laws ; and the violation of contract?, and direct injuries done by one man to another, are also the subjects of legislation. But nations differ from each other in the mode of trial and of punishment. Various races living under one govern- ment may be governed by the same laws, and again the # SEC. Il.-H>r LAWS IN GENERAL. m 17 different Provinces of the ,an,e nation and government Tther ^"""*'^ ^^ °°'*"' "'"''''' "* '*'''""" *"■» «•«'• The first principles of law are reduced by Justinian into Aree precepts : " Hone,te „W., alterun, „» laedere, «,„ " 2 ; '"*-«^''-" To live honorably, to injure n^ oZ plied in the drane command of our Saviour : « To do unto others, as we would they should do unto us." In barbarous nations unacquainted with written laws ^ZT'T'^'fr" "•^■""''-''.ions of ju";: thri,f / '' f'r A^-'g-l" governments aros^ the next step was the formation of a written code. In the .Wer: ■"T"'"'' '»='' '"^« "^y-^ -- individual t US sovereign* m matters of religion, war and civil govern- ment ; and from the more eminent rulers of this descriptr„ were TmTTf ''"?'"'°" '° ""^'^ ""S'-'^"- ^^ were Numa_Solon,_Lycurgus. In progress of tune their in.utut.ons became insufficient, or wefe thought'a: pable of miprovement according to the changes in the con- dition of society. Society assuming new poUtica^fomis by the introduction ofassembUes of the elders, or of Z free cnizensofeach state todeliberate on its int;rests, the^^ hHvepo^oer came into existence, by which laws have tel added. This power has always been held by those who " erant." " tained to this elevation not tK,« i! ■^'^ ^'"S^' '^^'^ «" " from themoderatTon of thlir ^n§ ?"''^"^ pom.larity, but "men. tJH^!I_, °l!. . t^^e^r conduct recogniz. by worthv "^^irpr^c.^^:i^^/^-r>f-r the decision, of VOL. I. 3 18 m INTRODUCTION. exercise the sovereign and supreme authority among a peo« pie — and the distinctive characteristics in modern times of free and despotical governments are, that in free states the legislative authority is wholly or in a great measure exer- cised by some representative body elected by the people at large, while in despotic governments some particular in- dividual, or family, or class of iiidividuals, exercise supreme legislative functions, independent of any efficient control or interference on the part of the nation at large. The legislative power of the mother country is exercised by Parliament, which consists of three branches, the King, the House of Lords, and the House of Commons. The crown is hereditary, but limited by act of parliament. The House of Lords are hereditary possessors of their seats, ex- cept the Spiritual Lords, who hold them by virtue of their offices, or rather of the baronies attached to the lands be^ longing to their sees. And the representative Peers for Ireland and Scotland are also partly hereditary and partly elective, being noblemen by birth, but chosen for life or a term of years by the body of nobles of their own countries, to sit in the Upper House. The Commons are chosen by the freeholders of counties and the freemen of cities and boroughs, to represent the popular or rather the democratic interests in the great national council. Whatever law i» passed by the concurrence of these three branches is con- clusively binding on the nation, and the tribunals of justice are not, by our constitution, empowered to enter into any consideration oi the justice or expediency of acts of parlia- ment, the parliament being considered itself as a tribunal of justice, and as such paramount and superior to all others in the empire, who therefore are not at Hberty judicially to doubt or disobey its decrees. This rule, however does not prevent any individual from canvassing the propriety of acts of parliament, or from petitioning for their repeal, if he preserve, in sc doing, the respect due to so august a. body» SEC. 11 or LA- IH OENEBAl. JJ It is only a limitation of the functions of ordinan- judKes «nd,s not ,„„„ded to conveyany notion of the infaliibS of the Legislature. The same rule is adhered to in these Provmoes, though in the neighboring United StaL Z judge, may consider whether an act of congress, or a state act, be conformable to the constitution. '»'»«^'« A law may be considered as containing either exorcssl, or by .mphcation fourparts. K«a«L.W ofle'I s U mtends todeflne and establish, or of the evils it int^ds t' prevent or punish. Secondl, a direction to the slec' s to he manner m which he is to observe those righto; to abstamfK.m the commission of the wrongs in cl tm^l ! tK.n. rw;j, a remedy or mode of obtaining redress or recovery of right where the law is infringed ZThL a «..« or penalty on those who transgrLthep;"!: «,1^T»7 *" '"'"' '"^"^"'' ">«' » •<^ declaration of what shall be considered right or wrong is founded ckar ly on the principles of justice and pubHc u,ihty-in the direction to the subject as to iiis conduct is ^ci^ J'^ plain, and does not give any trouble or form bfyo^d what n conducive .o the chief ends of its enactme„t,-i„ 1.11 medy for violated rights or injuries inflicted, g ves a clear prompt and cheap mode of attaining justic f aid i„ ita penalties which form the sanction as^t is termed of J. a IS at the same time sufficiently rigorous to enforce obedi ence to Its commands, or to deter offenders ZoTt treme seventy. "^luium ex- In the mterpretation of the meaning of law. the intention of the Legislature is to be chiefly re|arded, and ert^ rules are adopted by which thi<^ Jo ♦« 1, '" ceriain doubtful ca«=s. .,( T !..™1'.'"..'^ '"""='■"»•' » Rfnnrl ,„ *u • "i ""'"" ■^■' "" ^""'^' ^»'^ ^" be under- stood m their usual and most known signifioaUon. 2d. n 30 IWTBODUCTION. The context of the whole law may explain a particular ex- pression ; so other laws on the same, or a like subject, may be referred to, in order to elucidate a doubt. 3d. The subject matter is to be regarded, as it often will show the meaning of a law otherwise ambiguous. 4. The effects and consequence, if very absurd on a literal construction, will induce the adoption of some different meanmg which the words are capable of bearing. 5. The reason and spi- rit of a law, and the causes that led to its adoptioii, coin- pose the master-key to its meaning. Laws are also capable of having their meaning in some cases fixed and established by contemporaneous and by continued exposition. Thus, if a law, the meaning of which is not very manifest, or admitting of several inter- pretations, be acted upon by judicial authority shortly after its being enacted, the meaning thus affixed to it is often pre-, sumed to be the more accurate, because when recent the in- tention of the Legislature would probably be better known. Continued decisions also strengthen the view they adopt of the meaning of a law by their number, their respectability and their duration. SECTION III. The Laws of England. The English Law in the aggregate is called the Com. mon Law, m contradistinction from the Roman Law. The .atter havmg been, with some modifications, adopted by most of the other countries of Europe (anciently provinces of that mighty empire.) Among them the iloman law is called the civil law, having been in use as their civil law or law of the state. The principal division ofEnglish Laws is into common law (in a more restricted sense) and statute law. When England in barbarian times formed many king- doms, each of them had their own set of laws. Some oral and traditionary, handed down from generation to genera- ^on by the memory of bards or aged men, others written. These being very various, when the kingdoms became re- united, Alfred the Great is said to have compiled a book (not now extant) reducing them to «ome degree of uniform-' ity. Subsequently the Danish invasion shook his constitu- tions and the laws were again very confused and various until Edward the Confessor prepared a digest for the sZ' purpose with that of Alfred. The Norman .nn.no.. „!?, we sad havoc in thesystem oflaw used in England? The «- Sd INTRODUCTION. The chief part of these laws, although not written in any distinct code now in existence, have been presented to us in the treatises of the earliest law writers, such as Bracton, Fleta, and Britton, Littleton, &c. and in the reports of law decisions regularly taken and preserved at the expense of government from Edward the 2nd inclusive, to Hen. 8th ; that is, from early in the 14th century till some time in the 16th, and subsequently by a variety of private reporters. These decisions and authorities form a most extensive code of civil and criminal law, which may be regarded as the substratum of British jurispruuence. For the record of statutes or acts of parliament begins no earlier than the 9th year of King Henry 3rd, 122- , being the statute in con-, firmation of Magna Charta. Wherever there is no express statute on any point, the rule of English law must be sought for in the ancient decided cases, forms and precedents of the common law, so called because it is supposed to consist of all the laws and customs which were in common use all over the kingdom at an early period, and not confined to any particular locality. So if any act of parliament ex- pire or be repealed, the common law revives, and is again in force on the subject as if no such act had ever passed. By its maxims all statutes are to be construed ; and when it is said, that such or such was the rule at common law, it means to point out the state of the law on some particu- lar point before the passing of some act'of parliament af- fecting the question. Many of the local customs of ancient use still exist in certain parts of England, ^hese of course do not operate m a colony. The common law authorized the modified use of the Roman law, and of the ecclesiastical or canon laws in particular courts, such as the Chancery, Admiral- ty, ecclesiastical courts, &c. In conformity with this, in the colonies the same course has been adopted in certain coufis whose juiisdiction corresponds with those named. 8EC. Ill .'iHE LAWS OP ENGLAND. 23 The common law principles and maxims, and all char- ters and acts of parliament which tend to confirm the com- mon law rights and privileges of English subjects may be considered as in force ^ropno vigore in every colony whi- ther the children of the British Islands have migrated. In addition to this, the common law is the chief fountain from which we are to draw the illustration and interpretation of our repective rights and duties. Statute Law* Statutesare written lawsmade byparliament." The old- (1324) 9 Henry 3d. Provincial acts passed in tlie same manner ,n the general aasembly are statutes of U,e C v,nce as. he others are of England, Great Britain o^rf the United Kingdom of Great Britain and Ireland. iJ^"^ '7 fhe-- public or private. A public act is one that regards the whole community, and the courts of lawa^e bound judicially to take notice of it,-wi.hout requiring; party to plead it or set it out. Private acts are such 17- ten laws of parliament as only affect some particular Id . viduals therein specified, and judges are not bound to take sertld in . "' ■''''■'''' " '° ''"'"S- ""'«-'' <='»«« be in- serted m them requiring judges so to do. remrdiaUd","!?"'; "^"'^^'-y "^ ">e -ommon law, or remedial and mlended to amend some defect in it Reme r i; r "?'" ^"f'-r '""^ '"- »*ich :„iaie^; restrain some principles of common law. Rules of construing Statutes :— i» It is to hf> nnna'tAr^w. — I 1 ^« fore th^ ..n..7 " ""T" """ ""e common law stood be- fore the statute passed, what inconvenience or mischief 24 INTRODUCTION. was the cause of passing it, and what remedy it provides. It is the business of a Judge so to construe an act as to suppress the mischief and advance the remedy. 2. A statute which treats of persons or things of inferior rank cannot by general words be extended to those of a superior. Thus " Constables and other peace officers" would not include by implication sheriffs or justices of the peace. 3. Penal statutes must be construed strictly, so as not to extend their effects by implication to the punishment of any person beyond the very letter of the law. 4. Remedial statutes are to be construed liberally. — Such are the laws which vacate fraudulent sales, &,c. To their language construction is used so as to enlarge and. not narrow the meaning, by too literal an interpretation. 6. One part of an act is to be so construed by another that the whole act if possible may have effect. 6. An exception repugnant to the whole tenor of an act will not operate, but the act will have operation as if it contained no such exception or saving. 7. When common Uw and a statute differ, the statute has effect and suspends the common law, — and a new statute abrogates (as far as they differ) an older one. But if they can be understood consistently with each other, both are to have effect. 8. If a repealing act be repealed, the act which was at first repealed revives of course. 9. Acts of parliament to tie up and embarrass the legi- timate constitutional functions of subsequent legislatures are not binding. 10. Laws absolutely absurd or impossible to be obeyed, though enacted in parliament, are void. What is called the equity of a statute is a rule arising by inference from ai* act, as a corollary to its principal directions. hich was at I SECTION IV. Early State of JVova-Scotta. ^.Atlantic Havi„,gUr„;t„r,r.^rerC sh colon.es (now the United States) with folL f tlements on the lakes of Canada on tbrnl ^ "*'" .i»ippi. and having underTh^r' °",f„1 " "^ ^^ of savages, they Lrassed t/C T^rr^' "attlers, and rendered their pos^ssionT.r 1 * ^«""" tremely insecure Th» P°''*™"?»' a'°ng the coast ex- sistedfor^g r^twrnthe't ™''^ ""'"'"""' ^l- -d with eltal^rnc" t 7.":^:^^^ "'^'X The EnglishtttirnrL?e :etve;f;jrr •= ^""^ dread of a powerful and hos"leti;i"°:i^r?""t terntoor m North America became suye'cted .^ .flT' tish crown bvthe riaht «r ^""jeciea to the Bn- n Dy me right of conquest and by cession. i.«i Weired"; Gr::tSn*r"''"' '""'='"" "•' VOL. ,. """at^ntainthe provmce of Nova Soo- 4 36 INTRODUCTION. tia, or Acadia. A garrison from England was placed at Annapolis, and another at Canso. A governor and coun- tjil were established at the former place, who continued to reside there until 1749. It does not appear however, that the British government made any change during this pe- riod in the laws and manners of the native French inhabi- tants ; who were permitted to live as they had been before accustomed, without any kind of interference. Meanwhile the French of Canada and Cape Breton, made frequent at- tacks on the British forts and shipping in this province, and received much aid from their countrymen in Nova Scotia in their warfare. The inhabitants of Massachusetts' Bay were very urgent with the mother country, to strengthen the northern frontiers of the British possessions in Ameri- ca, and suggested the establishment of a colony at Halifax. A very powerful fleet had been sent from France in 1741 — having forces on board destined to conquer or destroy all the English settlements, in North America, and having been much damaged by tempest, had taken refuge in Che- bucto bay (on which Halifax is built) then uninhabited. It was thought advisable to form a settlement there, as an aid to the prosecution of the fisheries, — as a military post to keep the French and Indians in check, and finally as a place of rendezvous, from which any armament designed to attack the French possessions might be sent. According- ly, in 1749, the Government sent out troops and colonists, and the town of Halifax was founded. The expectations of the promoters of this design were fully realized by the successive reductions of Louisburg and Quebec in 17' ^, and 1759, by expeditions that were collected at Halii ix. The seat of government was transferred to Halifax in 1749, where it continued to be administered by a gover- nor, lieutenant-governor, and council. The laws, from this period, were chiefly such as were in force in the neigh- boring English colonies, and a general court and other :^^'': •EC. IV EARLY STATE Ol" NOVA-SCOTIA. 37 insiitutions were copied from their's. In 1768, his Majes^ ty transmitted instructions directing the Governor to call together the representatives of the people in general as- sembly, after the manner of the older English . ^ttlements. Counties and townships were then erected, ♦o which others have since been added, and the freeholders in this provmce have ever since exercised, without interruption, the right then conferred, of choosing from their own num- ber the persons to whom they were willing to confide the- protection of their political interests. f! ■ip*V'' SECTION V. Of the Territory of the Promnce. Nova-Scotia originally was of very great extent, includ- ing ♦he present provinces of Nova-Scotia, New-Brunswick and Prince Edward island, and its ancient boundary on the south west was frequently the subject of debate between the French and English crowns, and subsequently between the United States and England, and remains unsettled in Bome parts of the line to this moment. After the termina- tion of the American revolutionary war. Great Britain, in making settlements of the refugee loyalists and other emi- grants, found it more convenient to erect new govern- ments, and thus New-Brunswick* and Cape Breton were severed by the orders of his Majesty's government, and erected mto separate provinces. New Brunswick and Prince Edward island each obtained a constitution simi- lar to that of Nova-Scotia, but Cape Breton remained un- der the management of a governor qnd council, without a representative legislature, until 1820--when his Majes- ty reannexed it to Nova Scotia, and by provincial Act 1 Geo. 4. c. 6. the laws of Nova-Scotia were declared to be extended to it, and at the same time it was suffered to send two county members to the assembly of this province. The peninsula of Nova-Scotia proper, with the island of Cape Breton, constitute the present territory of the provincial government— which is thus divided, the pen- * Friiiee Edward island was before separated. SEC. v.— TIRRlTORy OF THE PROVINCE. Hf insula into nine counties, viz. .—Halifax. Hants. Cum- berland, Sydney, King's, Annapolis, Shelburne, Queen's and Lunenburg. The island of Cape Breton is the tenth county. Some ofthc counties are divided into districts, to faci- .tate the local business of the country, giving each dis- tnct a set of public officers nearly equivalent to those of a Heparate county. In Halifax county there are the three districts of Halifax Proper, Colchester and Pictou, each of which has every arrangement for the administration of justice, the registry of deeds, &c.-as if it were a separate The settled parts of the province and those where set- tlements are attempted, have been further divided into townships, some as large as the smaller counties, and many more of smaller dimensions ; and it is probable that this mode of division will be extended over the whole surface of the country, as it is a favorite manner of allotment in North America, and is very useful n. a guide to the ar- rangement of the representation, the local assessments and a variety of other purposes. As to ecclesiastical division, the province is the chief establishment of an episcopate, which bears its name, and includes the whole of ancient Nova-Scotia, together with Newfoundland and the Bermudas. It is not yet subdivided into panshes, except in a few instances, though the missions of t^he clergy are fixed permanently in the different settle- In a military point of view it is a lieutenant general's com- ftr";:,:'"' "*'"■" '' ""^ '■^'"^ q»arters,*andthe n^l . _ _ „..,,,,, „ ,^3 ^„„„j. j^^g command of a vice or rear " ""^ '""^'^^ '» »»« command with the West Indies, &c. ig^l^^^ SECTION VI. The sources of the Law of the Province. The sovereignty, as well legislative as executive, over this colony, may be properly considered as residing in the crown from 1713, the date when the province became Bri- tish, until a constitutional form of government was erected in 1758. His Majesty's instructions to the governors, his proclamations, commissions, and other acts of government, during this period had therefore a legislative authority, and on them our present constitution is grounded, as well as on the general principles 6f British law and liberty considered the birthright of a free people. When any of thei?e have re- mained unrepealed and unaffected by subsequent laws, they will have a validity and force commensurate with the au- thority from which they emanated, and the purposes intend- ed by them. We must take care, however, not to attribute this legislative character to any acts of the executive power which have emanated since the establishment of a rep*e- sentative. The next source of our provincial law is to be sought in those portions of the common and statute law of England, as have been adopted iaio our own code hy provincial usage, enactment or decision. M«^ -M SEC. VI. SOURCES OF PROV. LAW. 31 The acts of our own general assemblies are a third source of provincial law. The rules of practice and decisions of our provincial courts, constitute a fourth source of our law. British acts of parliament /or iht regulation ofcommprcein the Colonies, form a fifth source of our colonial law. As to provincial acts, when a new law is offered to the governor for his sanction, if there is any reason to doubt that it will be approved of by his majesty, a clause is usually added to it, suspending its operation until the king's plea- sure shall be known. Besides this, the crown sometimes, though rarely, disallows an act which has passed without a suspending clause. All acts passed are immediately sent to England, and if not disallowed within two years are con- sidered permanent laws. Unless there be a suspending clause, a provincial act goes at once into operation on re- ceiving the governor's assent. If afterwards disallowed, the disallowance operates as a repeal would. Bytheactofl77S. (British S^ ute). 18 Geo. 3. c, 12. It IS declared—" That from and after the passing of this " act, the King and parliament of Great Britain will not " impose any duty, tax or assessment whatever, payable in "anyofhis majesty's colonies, provinces and plantations, " m North America, or the West Indies j except only such « duties as it may be expedient to impose for the regula- " tion 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 re- " spectively levied, in such manner as other duties col- ^^ lect^d by the authority of the respective General Courts, '^^or Gcacral Assembiies, of such colonies, provinces or " plantations, are ordinarily paid and applied." 32 #- SEC. VI. — SOURCES Off PKOV. LAW. British acts of parliament which incidentally legislate for the Colonies and which expressly mention them, pass- ed under the general superintending power of parliament, for purposes connected with the general government of the empire, make a sixth source of our provincial law. The act of 1819 (British statute) 59 Geo. 3, c. 69 (Foreign en- hstment act) is an example of the kind. This act makes it a misdemeanor "punishable by fine and imprisonment, or either of them, at the discretion of the court," for any na- tural born subject of his Majesty, his heirs or successors, to enlist m the service of any foreign government, without li- cense of the crown, order in council, or proclamation per- mitting such enlistment, and imposes similar punishment on those who shall procure others to enlist. The trial of the offence to be by any superior court having criminal jurisdiction in the colony, &c. # SECTION VII. «.»> ,h. Lam of England are in Ma in this Colony. together an extensive code, suited to the Great Em„ir» under whose auspices ..e live, are no,, as a Whole suleZ our s..„at,on as a colony For this rkson, ontsuch par^ ormab s to general principles, have been from time to t.me adopted and recognized by the legislative andM c"°""" "'?" ^°'-^ I" •*' fir« pTacithe" Crown, e,erc,s,„g then a sovereign power, directed it, governors and other public officers to execu e ustice upon the principles of British law; and upon he T^' n tnose of the mother country, with such modification ™dem»f"rn'th^ •""""=" °^-'=— es appTa eS cItabiSi, """' ""^ ""^ '^""'■' pointed and ostabhshed .ts governors and other executive masistra,™ »d regulated their functions and authoritv ^'"'^f' constitution having been established nS bv theTon" vocation of a General Assembly,-the aTof^.l'^'l'":: nave since formed a system of law grounded par^ onZ pnncipUs of the common lawand 'the earlierCs Jplr! 5 34 INTRODUCTIOV. liament, and partly on the model of the acts of older pro- vinces of North America, together with many regulations peculiar to this country. In addition, the decisions and practice of our own courts, and the general usage of the people at large, have assisted in bringing into use or reject- ing different parts of the English common and statute law. Some of the branches of law have been so far reduced into regular and systematic order by the foregoing means, that little difficulty can arise in ascertaining the true course of enquiry when any question connected with them arises ; but there are many subjects which seem likely hereafter to give rise to much perplexity, as the provincial enact- ments and decisions are not capable of furnishing an ade- quate source of law to elucidate them, and much doubt ex- ists as to the degree in which the English common or sta- tute law are valid in the colony, except those parts of it which have met with an express legislative or judicial re- cognition or rejection. I have given in the note several of the principal authori- ties on this point. Their views are for the most part vague and extra-judicial. Some of them appear to consider the whole common law as in force in the colonies. This would introduce a great variety of rules which are entirely inap- plicable to our situation and circumstances, which have been abrogated in England by statute law ; and in fact however frequently such a maxim may have been repeated, it has not in practice been adhered to in any of the colo- nies, and would be attended with much practical mischief. Our courts of justice are of necessity obliged to exercise to a certain extent powers of a legislative description, in adopting or rejecting different parts of the English law, on the apparent applicability to our circumstances, or the VOirOI-eo A ♦ tk/^ nnr^n 4-1^.^;^ *U^ ««».»-.» I 1 /•_ !-l ^1 US with many forms of proceeding, those of the Supreme far reduced SEC. VII.— ENGLISH LAW, HOW FAR IN FORCE HERE. 35 and Inferior courls.-whlch follow the practice of the su perior courts at Westminster, where no provincial statute or usage interferes ; and the rules of evidence are drawn from the same quarter. The common law is also referred to as the best interpreter of those laws and constitutions of the province, which borrow from it their principle and phraseology. The civil law of Rome has a greater share in the composition of our laws than it has in those of the mother country, as our whole law of succession to in- testate persons follows the former, besides its importance in the Chancery, Admiralty and Marriage courts. To this therefore we must often look for aid as an interpreter, and also to the laws of the older colonies, as from them ws ftave borrowed many regulations.. Thus, while it seems doubtful whether any English laws (except those in which the Colonies are expressfy named have any validity here, until they have been adopted into our local jurisprudence by distinct legislation or general the most valuable portions of British law, have been trans- P anted into our land,-the Habeas Corpus,-the freedot of hePress-thetnal by Jury-the Representative Branc" fil a";; r"'r''\"" ^^^^ -amination of witnesses ; in fine al those branches of public law which have drawn the eulogmm of the wisest and the best of men upon the British constitution, we possess. While we are freed from -any that,.ve formed the subject of constant o^ectC in the mother country. Thus our law, by dividing the in" hentance among all the children of an Intestatef and by abolishing most of the unnecessary and artificial distinct Cther^n ^"'/"^°"^' p^^p^^^^' ^- -^--d - tmlf 1 Til'" °f P"«^°g^niture and frommuch sub- tilty of legal definition. The Game Laws, the Tithe system, and much of the ex- I Ms^, .i, t^ 36 iNTUontrrTroN. pensive and unnecessary variety of Courts are unknown among us, and the comparative simplicity of our legal forms, in conveyancing and in law suits, would astonish an English practitioner: while the cheapness of law proceed- ings in general (though there are some exceptions) would be equally wonderful in his eyes. The Poor laws in Nova Scotia arc simple and unproductive of litigation, answer- ing every end of benevolence without burthening the coun- try. Stamp duties are not in existence, and the titles of land have from our earliest settlement been rendered infi-. nitely more secure than in England by a general and sim- ple act of registry. Marriage is not shackled by arbitra- ry legislation. The penal law is perspicuous and mild, and indeed I may refer to every chapter of this book to shew, that having an opportunity of establishing a Provincial Code with the benefit of the experience and philosophy of older countries, our forefathers hnve not failed in their du- ty ; but have transmitted to us a system simple and concise, founded on the best principles, and that, except on a few points, they have left little to their successors beyond the duty of preserving, polishing and throwing light upon,, the useful result of their labors. •Authorities — British. The common law of England is the common law of the plantations, and all statutes in affirmance of the common law, passed in England, antecedent to the settlement of a colony, are in force in that colony, unless there is some private act to the contrary; though no statutes, made since those settlements, are there in force, unless the colonies are particularly mentioned. Let an Englishman go where he will he carries as much of law and liberty with him, as the nature of things will bear,^l . Chalmers' opinions, 195. 1^-:^. SfX. VII. ENGLISH LAW, HOW TAR IN FORCE HERE. 37 In pursuance of this principle, persons under suspicion of crime cannot be detained any length of time in prison without trial, by a colonial government. — idem 19G. But such statutes as are introduced and declared to be laws by some act of assembly of the province, or have been received there by long uninterrupted usage or practice, have the force of law— idem. 130, 197, 220. See also English Stat. 25 Geo. 2, Ch. 6, s. 10. In penal statutes made in England, which mention « this realm," Nova Scotia, or any other colony, is not included.* Y^Z^IT'!]^ ""^^^^^ ''^^'''''^y ''''^ Henley, and Yorke" that the subjects emigrating do • (not)' carry with them the statute Jaw, m 1757." ^ ^ . ".% lords, In obedience to your Jordshins' commnn«l« signified to us by Mr. Pownal, by litter dated TpnllTtl?^' nccompanied with an inclosed letter and papers,^wbich he had received from Jonathan Belcher, Esq. cF^ef^isice of his ma^ jesty's CO ony of Nova Scotia, relating to the' case of tvvo Tr sons convicted, in the courts there, of counterfeidnirnd al- tering Spanish dollars and pistereens, and reourrinff our on I n.on, ,n point of law, the:-eon : we have tak^ he fa^ 13; and papers into our consideration, and find tha the qSon treason depends ,s this, whether the act of parliament, S Mar. ch 6, entitled an act, that the counterfeit^ing of strange coins, (being curient within this realm), the nueen^s siJn ^f nua , or privy seal to be adjudged treaso^.^ndV t?Nova' Scot.a, and is ,„ force there, with respec to the counterfeit^ ing Spanish dollars and pistereens, in the said province coxn, current within this realm, of ^LT Nova IcIIT? o" hvw!»°"5'^''^u^'®f °P'"^°" *''«* tJ^e proposition adopted by the judges there, that the inhabitants of the co onies ca rv ra/ nilnn'^V ^' T"i' ^''"".''^ *^'« '^^^^ '« »"* true as a geS thJrT T""' ^"^ *^'P""^^ "P°» circumstances, the effect of J^i^s?s3n^:^^rt^^f?^-- ; -^ ~ extent. J ""'- «s«a>.= ou;,, iv lu^c « ,n so large an 38 IMTRODUCTIOlf. Tho act 29, Hon. 8, c. 15, rospoct ,g pirates, cannot be enforced m the colonics, but murder committed in my part of tho high SPUN, mny be tried umler it in m v county of England, and persons imprisoned in the colonies umler such charges muy be sent to England for trial, l Chalm opin. ID'J. The acts of 1 1 and 12, Wm. 3, c. 7, and Geo. 1. c. 2. Sec 7, respcctmg piracy and burglary, do not extend to caiet of murder, 1 Chalm, Op. 200. The Habeas Corpus act of 31 Car 2, is in use in Nova Scot.a— Acts whidi have reference in the enacting clauses to all - Ins majesty's dominions" have eflbct in the colo- mes, as for instance the 12 Ann. stut. 2. c 18. entitled ' an Act for preserving of all such ships and goods which shall happen to be forced on shore upon the coasts of this king- dom, or any other of his majesty's dcviinions,' and the 4 Geo. I. c. 12, in addition thereto (except the 3d clause of 4 G. I. cap 12, sec the 11 Geo. I. cap 29, sec 7.) 1 Chalmers opin. 201. ^ The statute of 33 Hen. 8, cap. 23, authorising the issu- ing of commissions of oyer and terminer, in cases where murder, of the Courts of Jus- fee, embodtedunder .he principal divisionsof Civil Com- '"«W«»!^ 48 CENERAL DIVISION OF THIS SUBJECT. mon Law Jurisdiction, Equity Jurisdiction, and Criminal Jurisdiction ; and the Courts of Error, Appeal, Admiralty, Escheat, Marriage and Divorce, &c. will be described. The rules of evidence and pleading, the forms of trials, rules of practice, and the Summary Civil Jurisdiction, will^ all be detailed as fully as the limits of the work will per- mit. Book V. will describe mercantile contracts, not strictly belonging to the title of personal property. ^ Book VI. will give an analysis of all the provincial sta- tutes which are confined in their operation to particular towns or counties. An appendix will be given at the end of each book, con- taining, among other things, a variety of useful provincial forms. Each of the four volumes will have anir.dex of the sub- jects it contains. j^^^^UtAi^n Criminal dmiralty, escribed, of trials, tion, will will per- )t strictly icial sta- particular lOok, con- )rovincial [ the sub- BOOK I. OJV GOT^ERJVMEJVT. — 00 — CHAPTER I- Subjects and Strangeri. In Nova-Scotia one's attention is very rarely turned io any question connected with the distinction of British sub- jects from aliens. Indeed a rigorous adherence to legal principles in this respect would be highly injurious to the advance-nentofacolony, as the check it would give to settlers from different countries could not fail to keep back our wealth and population. Much uneasiness and trouble did exist respecting the alien laws in Upper Ca- nada, but they have been happily set at rest there. All the natural born subjects of the British crown are entitled to all the rights of citizens, in whatever part of the empire they may reside or sojourn. Those who are born within the dominions of the crown of Great-Britain are considered in law as natural born subjects of his Ma- jesty, and are said to be born within his allegiance. Allegiance is the tie of duty which binds the subject to the sovereign authority, in return for the protection af-» forded to him by the government. This duty is binding on the subject without an oath, but to add the sanction of religion, the oath of allegiance TOL. I. 7 50 BOOK I. — CHAPTER 1. is directed by many English statutes, to be taken by all public officers, and in Great Britain all persons are bound to take it if offered them. 1 . B. C. 368. See Co. Lit. 129. a&b. Natural born subjects cannot divest themselves of their allegiance, which is of a permanent and indelible charac- ter according to English Jurists, and not to be rescinded but by an act of Parliament, or treaty, or some other con- currence of the crown itself.* It has been determined that natural born subjects of the British crown, who ad- * hered to the United States in the war of the revolution, lost their right to inherit land in England, and vice versa those who adhered to the royal cause lost their right to in- herit lands within the territory of the United States. See Doe d. Thomas v. Acklam 2 B & C. 729, which cites 7 Wheaton's R. 535. See also Foster 59. 184. 5. Strangers, as long as they continue within the dominions and under the protection of a state or sovereign, owe pro tempore an allegiance in return, but this ceases by a change of residence. The English jurisprudence makes a distinction between a sovereign dejure and de facto j that is, between one hold- ing the crown by rightful title, and one not having the right but possessed of the sovereignty'; and British princes have in ancient times punished persons capitally for trea- sons committed against those whom they counted usurpers, where such treasons were not the acts of their own adhe- rents. Thus Edward IV. punished for treason committed against Henry VI. who had been declared an usurper by Parliament. ♦ The American Courts hold that a citizen of that country cannot divest hinaself of his allegiance (in conformity with tha x-ngusL iaw.) eecEent, 2 v. 86. SUBJECTS AND STRANGERS. gj This allegiance i. held by English lawyers to have are- ation to he person and family of the sovereign, as well a« toh.s polmcal capacity and government. Subjects are also bound to take the oath of supremacy and abjuratfon -the one denymg the jurisdiction of the Pope in the eo- vernment of church or state, the other acknowledging The «ght and t.tle of the present royal family, as settled by acts of Parliament, and denying the (quondam) claims to the crown of the Stuart family. Roman catholics take a modified oath prescribed by the late emancipation act. See extracts from the relief bill in the Appendix. By the Roman law if an alien purchased lands the con- tract was annulled as contrary to principles of public po- lie, Cod. 111. tit. 55. but by the English law the transfer IS valid so far as to be binding on the vendor or donor: but the use orownershipofthe land rests in the Kin« Of course with the tacit permission of government an'alien may purchase and occupy land. Yet an alien may pur- chase goods or moveahUs, and may hire a house for hlita- /m,and contracts of this kind are valid to his own use but a lease of Za;^^, would be forfeited to the crown Co JLit 2. An alien may trade in any way, and all contracts of his incident to commerce or a trade will be valid, and he may be a party to suits respecting moveables, and may dis- pose of them by will. Lutw. 34. A wom'an aZct. «ot be endowed unless she marries by the license of the king. 8 Hen. 5. No. 15 Rot. Pari. Harg. Co Lit. 31. a. n Wean a husband alien be tenant by the courtesy 7. d.IJ r ^^'r '" ^'^'' ^y ^^'^^ '^^ king, on the death ofan alien, became entitled to all his property in the French dominions. This was called the droit d'auhL, .. JUS a.^naiu,, a word derived from alibi natus, 'elsewhere S2 BOOE I. — CHAPTER 1. bom.' — Spelman Gloss, 24 ; but this is now abolished by the code civile, which declares it no longer to exist except ajain»t natives of countries where a similar law is enforced against Frenchmen. — No such law is in existence here These immunities in favor of strangers are not extended by our law to the subjects or citizens of states, actually at war with us, as the existence of war destroys all relatiorw of unity. Alien enemies, as they are termed in law, must depend on the will of the crown, for any favor or protection they can receive ; yet justice and humanity are paramount, and whatever they prescribe must be attended to. Thus the military power being entrusted to the Government, any wanton or inhuman attacks of an offensive kind, against even an enemy's territory, or the persons or property of the enemy, made by private and unauthorized persons, must be regarded as an offence against the government ; and on the same principle an action could formerly be brought in our courts by an alien enemy, for ransom promised to him ; but ransoms are now prohibited by British Statute, 22d, Geo. III. c. 25, in ct js of ships and property captured. — See Douglas, 625. Naturalization may give all or part of the rights of a na- tive subject, to a person not a native, by a species of adop- tion. By a variety of British statutes all children born out of the king's dominions, whose fathers or grandfathers by the father's side, were natural-born subjects, are now deem- ed to be natural born subjects themselves, to all intents and purposes ; unless the ancestors in question were at- tainted or exiled for treason, or were at the birth of Buch children in the service of an hostile government. These acts do not extend to children of a British born mo- ther, Count Duroure, v. Jones, 4, T. R. 300. The chiidren of aliens, bom within the king's dominions, SUBJECTS AND STRANGERS. 63 •re generally speaking natural born subjects, and entitled to all the privileges; but there is an exception to this, wnen the pn-^nts were at the time acting in the capacity of enemies. 7. (Jo. 18. a. The same law exists in F ance, where by the code civile, the child of foreign parents born in the country, may, within a year after attaining the age of 21, claim the rights of a Frenchman, declaring, (if not then domiciled in France) his intention to settle there, and ac- tually settling there within a month after such declaration. By the English statute, 11 and 12, W. III. c. 6, natural born subjects may derive a title by descent, through aliens, parents or ancestors. This statute may bo considered in force here, but it is restricted by an act of Parliament, 25, Geo. II. c. 39, to a certain class of cases. The last named act I should not suppose affected this colony, as it is subse- quent to the acquisition of the Province in 1713, and be- sides contrary to the colonizing principle.— See also Harg. Co.Lit. 8. a. The acts of the British Parliament, when- ever passed, that go to define who shall be considered as subjects or as aliens, have an efficacy from their nature in all the British dominions ; but any colonial act of naturali- zation, would, according to the opinions in Chalmers, have an operation confined to the territory of the province in which the act was passed. The crown, by letters patent, may make a stranger a denizen. A denizen may take lands by deviseor purchase, but not by inheritance from an alien. The children ofadenizen, born before his denization, can- not be his heirs to property in the king's dominions, but those bom subsequently may— 2, B. C. 374.* Bills passed in the parliament of the mother country for naturalizing an alien, must by stat. 1 Geo. I. c. 4. contain • But if an English subject marry an alien, she is forthwith ofthe king's allegiance, and their issue shall inherit, and it shall not escheat.— Kitr.hin ^0 Ahr nf tha n^.^L- nf A«o;«i>. so. 39. M BOOK I.-— CHia>TCIl r. the same disabling clauses as those of the act 12 Wm. lit c. 2. and further rules respecting them are prescribed by Bnt. statutes 14 G. III. c. 64. 7 Jac. I. c. 2. yet foreign princes have been naturalized by special acts, contrary to these rules. Every foreign seamen who in time of war serves two, years on board an English ship by virtue of the King's proclamation, is ipso facto nntnraiized by Brit, act 13 G. II. c. 3. but with the before named disabilitie« contained in the act 12 W. III. c. 2. All foreign protestants and jews, upon residing seven years m any British American colony, without being absent above two months at a time.-cnd all foreign protestants servmg two years in a military capacity there, or being three years employed in the ivhale fshery, without after- wards absenting themselves from the king's dominions for more than one year, and not being under any incapacity mentioned in 4 G. 2. c. 21.* shall, on taking the oaths (or affirma tions) of allegiance, (S'c.f be naturalized, except Cl!!lfrrf!;f "' ^T'!"' ''^T^'^^'''^ «^* of naturalization : ClHldrcnofparents who at the time of their births were at- tainted of lugh treason, either in G. Britain or Ireland, or by act made in either kingdom, were liable to penalties of hii treason or felony, in case they returned to Great Britain or Ltl • J''^°"; "• ^'' ^'''''''' °^ ^^'^" ^«re in the a Tal service of any foreign state at enmity with G. B.-4.G.2. c 'il, s. \i (Ln^. ac^.) * ' r.l^TT P''^^^«^t«"^s.«re to take the sacrament in some Kr r 'y T'""" '" ^. ^•' "'•^^•"^ °ft''« Colonies in «nTthPv' " *'r' ^°»*^^ "«^t before taking the oaths, and they are to produce a certificate signed by the person ad! ttmistering the sacrament, and attested by two 'witnesses, whereof an entry shall be made in the Secretary's office of the «oIony where such persons reside, and also intlie court where G II .V^ o Sf. *^^'"' '^''''''"* fee.-English statutes, 13. Zo\t'J:- ' '■ • ®? ."^^^^ ^^^^ ^"'^ subscribe the oaths and declaration appointed by English Statute 1, G. 1, stat. 2. c. 13. before the Chief Justice, or other judce of ihe coJonv. -«cre mey reside, before the judge in open court between the SDBJKCTS ANO STRANOERS. .-, 55 «>.. tfiey are „o, to hold office, or receive crom, .rtnt. of ■"«'»' B'"«m or Ireland. Where a cTunCcl quered by the British am,, become, part of theTnll T »..n.on,. it, inhabitant, become subject, I, :*,t whereto be .oconsidered, and not a,ili„„ i„ "re,DecT Hall Cowpcr 204, from which it may be inferred tC J la. ., U.e «m,e in ceded, a, i„ conquLd tIrrUoll "' The desire of encouraging settlement in the older r„?^ th tn? ' °?"'"' '"'■J^'^"' <"^«P' "h" th-'y had not' ^« f "f '^■«'<="»g an alien free from the operatl of ^e navigation act,, so as to be registered owner, of Bri t.sh.h,ppmg, &c. being the actofMocal legiZrl on^ Its effect was only local. 1 Chalm on 144 Ti ''' ^-^Virginiabyaotof.080,c.t:adrjtZ.™: «or.trrdr.n°prn t^'t'sr rT"'- '"^ ^-" oath of abjuration, by .„ S a"d 3 ^ °' ' cimstian," in ,he "a„^ British. Iri.l, //i'l'^^'^Yourt/'ILl"'''''""^"'?" *•••••-- -yiiunues under ff ]l« »- ^ "•"" ~-"j-"^^=t iriius ine •• 5-6, 34. G. Ill e 4' 5 6. P"***^*»°' "^^ 87.G. III. e. 63, M MOOfc I niAHiCH U ing thr governor lo nnturalixo any alionii ■ottlod in the Pro- vinoo, by patrnt undor (Iki liroati ■oal oltlio colony, and tha porHona nalurnli«o(l w«)ro to bo ontitlod to uU rights in the colony UH if born then;, on thoir taking tho oath (»i*ollogi- tnce. Tho saino luithorily wuh givun to tho governor by iho logiNhituro of Jamaica, by act of lGH;j, act 22. Rrth thcHO colonioH appear to hovo used ovory moans to encourago r..A„.; i- ,. .. K .' rnZh VT ■ ,^ to^ireat Britain within tliree " Tr^i.'' ^°?" ™"J"^'T *• "PP'<*«tion or disallowance. I? It receives Ins majesty's approbation, the .a„,e is signiHod Stokls p. S'""" ' "" ''"'''' "^ ^''^ '""^ '" coun^iL"!- '« semllXXc? hV ■'' ''"'' ^""f' ^Vhetheran act of as- " aSoia^or efil ii ■" ''^^"T'^ »° S^vo his assent, is con- stiiutional or else infringes on his majesty's preroffat vo —in n 8 assent until both houses of assembly aifrce to add a •• mlZX ZiT' "'r "'^'"5 ^'- «-"^-" .hereof untdhi: CKNtRAL ASSEMBLY. 61 his majesty's council sitting in one chamber, and the re- presentatives of the people in another.* The governor opens the sittings of the whole body, taking his seat on the throne m tlie chamberof the council, who are there assem- bled, and by message he then orders the attendance of the representatives. When they have arrived, he in a short speech mforms the council and assembly of the state of the country, ,ts progress, its finances, and the objects that de- mand their consideration. All this is transacted in the most pubhc manner. He continues during their sittings to oommumcate with both chambers by written messages, and when bills are ready to be assented to or negatived he meets them in the same form, with which also he closes ineir secsion. _Thc manner of calling a general assembly is by the order cf the governor fo the secretary of the province. The lat- honff of each county to cause representatives for his coun- Thl •, '" """ '™'' •■"'"■^"»' '» b, elected. Those wnts are s.gned by the governor, and sealed with e great seal of the Province, which he has in his custody a. chancellor, and are countersigned by the secretary. I proe a,na.,on is published in the Gazette at the same time ■n whtch the calling of ,he assen.bly is staled. The gT verno, also dissolves it by his proclamation, and its proroga- Wrom session to session is intimated by the Presidenfof " rndSvcfZ°i"' S"','"''' "°"''''' °f "'« C-P'-i" General •■ of the SmaX fi/'V? ""T "^ '"" ''"">' «' "'"once, " chosen by the neorie »l?^h '" "^ ''opfosenlative. "fewer, accordinl .„!.' . '■oi'-'oseotatives are more or j,^^ iver, according to the citent of the coloDy."-Stt,ke., p ,-ru"',:r ;no°irs";;,t'-xr.2v"hf ■" "-v.-'- T. ■<.•>»« ... /-i "° '-"I'ce may be v.mrn.teoA k» - ___,„, „,,.,^_^^^ ^^ ^ ^^^^^^ Counsellor, in the'absence of 62 BOOK I.-— CHAPTER If. oi tne session, in the council chamber, when the thre6 branches are met together. By the teno of the Royal n TCIT '^"™" ' ^oundtobring theasssembTy C" gethcr once m every year. An act, passed in 1792, 32, G 3, 1 Prov. L. p. 298-liniits the duration of each as embi; to even year., to be computed from the day named f^r its temeetmg m the writ of summons. His Majesty or the Although the Governor, by his official speeches and mes- sages, often suggests and recommends measures to the !.r'r r^T"*"''""'' ^^^ ^^^^^ ^^^^^^^ ^^ch ««. sumes the formal shape of a bill must originate in the council or the lower House, the power of the Executive being simply to assent or negative the bill.* The negative power is seldom if ever exercised by the governor, as the council being also his cabinet and privy council, are in general aware of the views and interests of the executive ofwhich they form a part, and they usually reject such measures from the lower house as would be inconvenient or disagreeable to the crown, or its representative, the Go- vernor. The Council are twelvef in number, holding their office at the pleasure of the crown.J They sometimes are appoint- edby the governor, and sometimes their appointment ori- * Acts of grace in England begin with the Crown We t A^ Jhv°'^ f si ^V^""' originated in this province. t An addition of 3 has been made by the Crown, to their nurabtr since the above was written. *o men '! t ?■*»« 'P«'^°"» -chants or the^:uhr:Lrsr- :: •j::^ "^o«r:S"arr- r r™/"*«^«r:r have « anre^uUrZl : tp"eT:; 1,^ i^srsra.r : xr ^ - ?- » " of counsellors gives them ilfl ^^' ""'" °' *« '""k the Utle of honJable u ; Tk ""* P'^^^lency, and give pay for Stl . " ""'" ''"""'' »««»»«'y «« requiL i^adt 'S^'"; ''«^°''^« ' "Wch would be ori '-au:et:rxiL"j:r:jnr'^''''''"'= »•«- government to name an! j^^'''"*^'^- ^' '« "^t usual with ^-ood to he ar;.ar,^r:orfrb:i" '-»'""■ ot:„rooTnti ^h" -n - «^'^-^' ^: Halifax theca S!fTCp::i„r''.nr?l'''^ '"T "' the townships of Truro On.]!., ^ "^'"'«'". and for Falmouth, Newport Amh^s^' ''°"<'™''«"^ Windsor, polls, Gr^uville' Itr XlK 'r'^°™"''""' ^"'"'- burgh, Barrin^Jn a:'d''L.tt^^;,^::P;^^^^ "T" one member each Th„« *h 1^ seventeen m all— ties and 19.for . wnshTps ' si?" ^^"'^■"''ers for «oun- nal members for Cape CtoiJ "^ ' " '"-"*"""■ ■A.} Was ^change has been made in thi« r«, Jffi;i;V'n^J'""""'''««^<^<=""ingare~ with official meo. "I"-'-- =*«cii5 me text no longer filled up ;# 04 Cook *. — CHv^Ttit ir. i» Reserving such authority as the parliament of the mo* ther country may hold for the general interests of the Em* pirciover this portion of it, and particularly the full opera- tion of those nets of parliament which regulate the king's troops, and the custom house establishment in the colony, th" whole sovereign legislative power is exercised by the general assembly of the province, which makes, alters, or abrogates the law, and levies taxes on the people, upon the Same footing that parliament docs in the united kingdom. — It is said that the rulei5 of law, which govern the pro- ceedings of a provincial assembly, are not of necessity an- logons to the rules of parliament, but depend on the con stitution and usage of the colony itself.— 2 Chalm. opin. 3. The attorney general Pratt stated the constitution of a pro- vincial house of assembly, to diner widely from that oi the British house of commons, the latter being governed by the lex parliamenti, or its own precedents, the former re- gulated by the common law and colonial usages. 1 Chalm. op. 263. By the law and usage of parliament adopted here, no member can sit in either house who is under the age of 21 years. It has also been the usage, probably under a royal mstruction, that the governor and the members of council on entering office should take the oath of allegiance, and the several oaths against the exiled family of Stuart and the Roman Catholic religion. Members of the lower house when elected have also to take the same oaths. The oaths against the Roman Catholic religion, were not required of a gentleman of that persuasion who was elected for the coun- ty of Cape Breton at the re-annexation of the Island, as his majesty remitted them by special instruction-— and it is to be hoped that the liberal construction of the Catholic re- lief Bill will abolish their future use.* Thepre'sent assem- * The assembly of Novn-Scotia, since the above was written, have pa.vsed an act which gives the fallest relief to Catholics. See appendix. GENERAL A9SKMBr-T. 66 l s bly of Nova-Scotia* unanimously joined in addressing tho Crown for their repeal about two years before the passing of ti.e relief bill. Dissenters have always been freely ad- "•itte.I to all puI.iH. ofiices and situations in the colony without a..y test,«,.d whr-nthis remnant shall be removed' there will be no r.,-li^n,>ufl distinction remaining in our Pro- v.nc.al codo. Tho.e oaths are adn.inistered to member, of assembly |,y ..(rtain Commissioner, (members of Coun- c'l) appomted for that purpose at the opening of each new assembly, who also attend from time to time at the re.jae^t ol the Speaker of the House, vvhonuver a new m.mbor is to take us seat and swear him at the clerk's table, in the ai- »embly room. The Privileges of (he Assembly. Freedom of speech, the most prominent of the privi- leges enjoyed by legislators, is secured by the British sta- tute of], W. &M. St. 2,0. 2, which enacts « that tho freedom of speech and debates, and proceedings in Par- liament, ought not to be impeached or questioned in any court or place, out of parliament." At the opening ses- sions of every new assembly, the Speaker demands of the Governor in the name cf the house, the freedom of speech in their debates, freedom from arrest, and personal access Tor himself to his Excellency, whenever public busi- ness sliould recjuire it. The personal freedom from arrest extends to all civil process, and also all criminal, except treason, felony, or actual breach of the peace. Formerly the writ of privilege was the mode by which any breach of the freedom from arrest could be investigat- ed, but by the usages of parliament, all parties concerned in the arrest of a member, will be made liable to punish- ment by the house, for a contempt of its privileges. -is..i,.ij»ij .,„3 „ccii tsiuscn since writincf the above, vox,. I. 9 ^ 6C BOOK I. — CHAPTEft 11. The peculiar rights of the Legislative Council The members of Council exercise the right of entering individually a protest on the journals of their body, setting forth the reasons for which they may respectively dissent from any measure or vote of the majority. It is stated in the continuation of Hutchinson's History of Massachu- setts, p. 54. that such protests were not used in that Pro- vince before 1757. It is their usage to deliberate with closed doors, and in private. This was at an earlier period the usage of both houses in Nova Scotia It was on the motion of the late attorney general, the Hon. Mr. Uniacke. then a member of the assembly, that permission was given to open the door« of that body to the public, about 45 years since. It seems probable that the practice of deliberating with closed doors in the Council when sitting in their legisla- tive capacity arose in the British Colonies fron\ the cir- cumstance of their being also a privy council or executive cabinet. The habit of meeting frequently in private, and the little regard paid to the forms of proceeding in Massa- chusetts, and the other early English settlements, appear to have led to the adoption of a mode different from that of the '.pper house of house of parliament. As an open and high Court, its proceedings under the British system of law would be, constitutionally, public' It is that which has made it the constant practice to open the doors of the Legislature, in England and her Colonies, whenever the acts of the parliament or assemblies are about to be adop- ted by the regal assent. Every branch of tribunals £o dignified and trusted will of course from their nature, retain the discretionary power of excluding strangers from their deliberations, whenever they see just cause ; but a total ex- clusion from the upper or lower chamber seems anomalous and inconsistent with the principle, as well as the usages OENERAL ASSEMBLY. 67 of the British constitution and it often exposes the acts of the upper branch to an unfair and unfavorable construc- tion. No instance has been known in this province, of the Council arresting any person for contempt of their House, though the Lower House has often done so. The Council of Lower Canada have just now arrested two Editors of papers at Montreal. It is asserted in Chalmers' opinions, 1st vol. 223, that a colony of English subjects cannot be taxed but by'their representatives, but that a conquered country may be tax- «d by the crown. The Governor and Council of Nova Scotia have never possessed a legislative power when acting without the re- presentatives of the people* • "The opinion of the Attorney and Solicitor General. Murray and Lloyd, on the question ^vhetlier the Governor and Council iiave the power of making laws." ^, " '?" ^''^ ^'°''' ''"»»'«hle the Lords Commissioners for trade and plantations.— May it please your Lordships— ' 1 ursuant to your Lordships' desire, sijrnified tins by Mr. Hill, in lus letter of tiie31st of March last, setting forth that a douht having arisen, whether the {Tovernor and council of Ins majesty's province of Nova Scotia have a power of enact- ing laws, within the said province, and Jonathan Belcher, Esq Iiaving transmitted to your Lordships his okservations there- upon, enclosing to us a copy of the said observations toffe- ther with copies of several clauses, in the commission and instruction of the said Governor of that Province, referred to (all which are herewith returned,) and desiring our opinion' whether the said Governor mm\ Council have, or have not a power to enact laws, for the public peace, welfare, and trood government of the said province, ami the people and inhabi- tants thereof : we have taken iJie said observations and clauses into our consideration, and are humbly of opinion, that the Governor and Council alone are not authorized by his Ma- jesty to make. lam. Till there can be an assembly, his Ma- jesty has ordered the government of the infant colony, to be pursuant to his^commission and instruction, and sach further dii-ections as he should give, under his sign manual or by order in Council." W. MURRAY. A too i.^« RIC«- LLOYD. April 29, 1755. i. chalm. opin. 261. 3. ,s I Hs BOOK I. — CHAPTKn If. Peculiar rightii of the itrpresentadvcs. It is the indisputable right of tlio lower house that nif money grants begin thoro. In addition, it is the rule that no omendmcnt or alteration of a money bill, or of any l)ill or act which in any way imposes a line or peenniary bur- then on the people, can be proposed by either of the other branches, or received from them in the Coinniona House. Any ottcmptof the kind, though «sed in 1817 has defined the qualifications of the electors and candidates,and pointed out tlio mode of conducting elections. T)?. G. III. C.7.3.P.L.6. Every elector or candidate must have an actual income of forty shillings per anuvm in freehold, or a dwel- ling house, with the ground on which it stands, or one hundred acres of land, whereof five at least shall be under cultivation. This estate must be situated in the county or township for which the election is held, and nmst be an estate of freehold. If acquired by grant from the crown, or by purchase, the grant or deed of conveyance must have baen registered six months before the teste or date of the writ for the holding the election. If his estate bo acquired by heirship or wili, it may be voted on or will qualify him as a candidate at once. It has not been agi- tated whether females may vote or sit. In Lower Canada they vote at the elections of members. By provincial act 4 »hpr .L „„—'•:" -' v-^ ii«h Statutes are in force under the words '"" lawrofFngia^S^' n BOOK I. CHAPTEB II. acting for him on the opening day of the poll, the she- riff is to take the votes there, and then adjourn to rhe other places of holding the election, by giving notice that on the eighth day from its opening at the first place of pol- ling it will continued at the 2d place^ and in the same way shall continue it to the 3d if required. Act of 1817, 57, G. 3. c. 7. & 4. and 5. G. 4. c. 22, 1824. The following,' is the ar- rangement of the places of holding the poll by the several acts of 57, Geo. 3, c. 7.-— 58, Geo. 3, c. 29, 4 Geo. 4, c. 22, and 10, Geo. 4, c. 9.— 1830, 1. W. 4. c. 5. s. 1. Halifax, Co. At Halifax, 6 days. Truro, 4 days, Pictou, 6. Annapolis, At Annapolis, 6. Sissaboo, 4. Kings, - At Kentville, 6. Parrsboro, 4. Shelburne, Shelburne, - 4. Barrington, 4. Tusket, 4, t tZ aesC:; r bit: :r:;:nrr;r T« "^ .ion in the person returned, the ^IZZlM^lfZ ■s by the petition of the candidate not retur. ed ^f „ , . from any of the freeholders to the assem y th eh" he groundwork of enquiry into the regular ,y of the r'' tion by a committee of the Honsp T?- ■ "^""0 eleo- on according to the terms^ ^hr ^TTrt! «• 4. c. 17. By this act whenever a petition sh» 11 K ' semed complaining of a„ undue elec.inr ret™ .Z to be appointed to consider it. of which th "kkeri* rennX:d:;';ri;r?"'''""""''^''""^™™- ,— on wnicn day it 27 members are not present Iha or der .s adjourn^ A & .•„ &„ .o a particuW hour When 74 BOOK I. CHAPTER II. is then read, the names of all the members of the house are put into two ballot boxes, the clerk draws a name publicly from each box alternately handing it to the speaker who reads it aloud, till 15 names are drawn. Members who have voted at the election complained of, and those whose own returns are petitioned against are set aside. Members making on oath a satisfactory excuse may also be set aside, other names are to be drawn to make up 15, then each party names a member to be added who is called their nominee, and he must be one not drawn in the ballot. At this stage of the proceedings the doors are re-opened and the house may proceed to its ordinary business. Each party receives a list of the seventeen names from the clerk. Both parties and their counsel retire with one of the clerks and an hour is allowed them to strike offnames. The petitioner begins by striking one of the 15, then the sitting member strikes another, and so on alternately, till 8 are struck off, leaving 7 and and the 2 nominees, in all 9 members. Tiiey return to the house, and the nine are then sworn at the table to try the subject matter of the Petition. The House then appoints a time for them to meet in one of the committee rooms, prepared for the pur- pose. They are to sit every day except Sundays, Christ- mas day, and Good Friday, and cannot adjourn for more than 24 hours, without special leave obtained from the house. They elect a chairman when they first meet. He must not be one of the two nominees. If they are equally divided in choice of a chairman, the member whose name was earliest drawn at the ballot has the casting voice. The same mode is to be pursued on the death or necc sa- ry absence of the chairman first elected. The committee has power to send for perse r;., papers and records, they are to examine witnessoii f>,., cith (t power not exercised by the House ittolf.) The) are to determine by a majority of voices whether the petitioner I OENERAL ASSEMBLY, 75 or the sitting member be duly retu aed or elected or whether the election is void— "which determination shall be final between the parties to all intents and purposes," the house on the decision bein- reported by the Chairman of the Committee, are to enter it on their journals and cau- It to be carried into effect. Members of the Comiuitteo arc not to be absent from it without leave of the House. If it is reduced below five for three days, by unavoidable causes, It IS dissolved and a new one must be chosen. If witnes- ses misbehave, it is to be reported to the House. They are empowered to clear their room of all persons mt the Committee, when they wish to deliberate privately. All their acts are to be by a majority of votes. If fivo at least do not concur their decision may, if the house see cause be referred to another such committee. The chairman is to swear the witnesses. If the committee report the Pe- tition frivolous or vexatious, the subscribers are made lia- ble to pay costs to their opponents. Besides the qualifications of property required by the Actof 1817, candidates and electors must, according to the usage of Parliament which has been adopted in" the colony, have other qualifications. The earlv and constant practice of Pariiament has created several disabilities, and English statutes passed before the establishment of the colony have disqualified certain descriptions of per- sons. Those statutes, hnving beta enacted as guards to preserve the principbs of our free constitution unimpaired, and tj protect the rights and privileges of Englishmen, by preventing impropc influence fromwar, - ing the representative body f ,. its legitimate purpose, may be considered ppcu>iariy applicable to our colonial circumstances. I am not aware whether any questions have arisen before any Provinc; .' Uourt where their validi- ty has been setiieu, but it would upon general principles be probable that they would be confirmed and acted upon. 76 BOOK I. CHAPTER II. The jealousy of the Commons as to their elections has in- duced Parliament by Acts 9 Ann c. 10, s. 44 — 12 and 13 W. 3,c. 10, s. 91. and 9 Ann, c. 11. s. 49. to forbid the interference of all the officers of the Post Office establish- ment,— of the Excise and of the Customs, and other duties from interfering at ull in any election of members of Par- hamont, and the House of Commons has declared it to be an infringement of their liberties for any Peer or Prelate to concern himself it) elections, or in a Lord Lieutenant or Governor of a County, to use his official influence for such purposes, and that it is highly criminal for any minister or servant of the crown to use the powers of his office for electioneering.— See 57. Journal 5, 376. 34 (345). and 17 Journal, 507. ^ The following persons are disabled from voting by de- cisions and usages of the House of Commons.— Aliens, (1 H. C. 157. Idiots, (H. C. 164, 165.) Lunatics, though not declared such (H. C. 164, 165 ^ Outlaws for crime, (H. C. 219. Sim. 27.) convicted Felons. (Phill. 170, H.C. 386.) Persons attainted (Sim. 55. 5, T. R. 117.) Disabled from voting by Statute. Infants under 21. (7 & S, Wm. 3. c. 25, s. 8.) All others are considered as qualified to vote. Therefore de- nizens, the candidates and the returning officer himself may vote, and instances are not wanting'in England of a candidate voting for himself. Disability to sit in the House, does not always imply disqualification from being elected. The persons disa- bled from sitting may by removing the cause of disability take their seats. Disabled from being Elected. The following are disabled from being elected by usage and law of Parliament. Idiots, lunatics, persons deaf and GENERAL ASSEMBLY. 7t i, and commis' of army accounts dumb, women, aliens, denizens, traitors, felons, persons declared incapable of being elected by the house, mem- bers unless they first vacate their seats (Sim. 40.) the re- turning officer (for his own precinct,) Judges. (Journal. 9 Nov. 1605.) The following by older statutes, cannot be elected, viz. • Infants (7 & 8 W. 3. c. 25. s. 8.) Naturalized foreigners (12 & 13 W. 3. c. 2.) Pensioners (6 Ann. c. 7. s. 25.) Commissioners of the navy at out p- -prize commis- sioners, secretary and receiver of sioners of sick and wounded, comptrt and agents of regiments. (6 Ann. c. 7.j Disabled from sitting. The following by statute cannot sit :— A member ac- ceptmg any office of profit under the Crown, until he va- cates his seat and is re-elected. (G Ann. c. 7. s. 25.)— Officers of the Customs. (12 & 13 W. 3. c. 10.) of Excise (11 & 12 W. 3. c. 2.) Besides these, in the reigns subse- quent to Anne, a great number of disqualifications have been created by statute on diffi3rent classes of officers of government and revenue.— I will not detail them as I should conclude the statutes of Great Britain, do not bind this Colony unless where the province is named in them or when they were passed before the settlement of our Co' lony, and are affirmative and declaratory of the com- mon law and applicable also to our situation. Votes given to a candidate are thrown away, if notice be given before the vote of his ineligibility-if it be notorious, no notice is required. 38 Journal. It. 245. 415. 689.-37 Journal 600. 560. 561. 10. East. 211. With these exceptions and another which will be men- tioned, all persons are eligible-awd therefore prisoners for debt, persons abroad, persons already elected for ano- ther place, not yet having taken their seats. 8 Journ. ■ 78 BOOK 1 CHAPTER II. 392. Hale's Par. 116.— 13 Journ. 335. 358. Sim. 40— the attorney and solicitor general, the master of the rolls, masters in chancery, officers in the army, navy &c. may be members of Parliament. By Prov. act 4. G. 4. c. 8. the first justice of the Inferior court, cannot vote or take part in elections or hold a seat in the assembly. A person elected against his will is yet bound to serve. 1 Dougl. 281.Glanv. 101. 4. Inst. 49. A person chosen for more places than one, must make his election. A decis- sion of the House of Assembly at a former period, confirm- ed the vote of a person deaf and dumb given at an election —and officers of the customs have sat in that house repeat- edly without question made. But the board of customs re- cently required a member who was also a collector at an out port, to remain at his station during the session of the house. The officers of both Houses. It has been asserted and probably with truth, that in the earlier colonies the Governor used to s'i with his Coun- sellors in their legislative deliberations, act as their Chair- man or President, and take a leading part in their discus- sions. They further conclude that the Governor and Council composed but one chamber, acting as one branch only of the legislature, and were not possessed of distinct rights and powers in tliat respect. It appears by an opi- nion in Chalmers, that the Governor cannot vote in the Council, sitting in its legislative capacity. 1. Chalrn. 231. However, that may have been, the public proceedings in 1758, in calling the first representative assembly of Nova- Scotia, defined the three branches as distinct, and they have continued to act separately to this day. In the Council since 1763, the Chief Justice of the Su- preme Court, has always acted as President. In his ub- GENERAL ASSEMBLT. 79 eence or in a vacancy of the office of Chief Justice, the chair ^as been filled by a senior member. His duties arc to preside in all their deliberations, ex- cept when they are in committee, and to take the votes. He also at the prorogation declares the assembly to be prorogued on the part of the governor. The other officers are the Clerk of Council or Deputy Clerk— whose duty is to register their proceedings— and to carry the ordinary messages of intercourse whether ver- bal or written to the lower house, the Chaplain who at- tends every morning to say prayers before the business of the day is mtroduced, the door keeper and the messenger whose titles bespeak sufficiently their functions. The Speaker presides over the house of representatives, he must be a member chosen from among the rest by the majority of votes. The clerk takes those votes, and de- clares the election ; he is then conducted to the chair but before he acts further in that capacity he is presented to the Governor, and having been approved by him, he then enters upon his duties— an instance has occurred in this province, where the Governor refused his approbation, and on that occasion, the house departed from their choice and elected another to the chair who was accepted.* The right of persisting in such a refusal has been much disputed and m the reign of Charles 2d. the proceedings in Sir Edward Seymour's case, terminated in a kind of tacit compromise between the King and the Commons. The proceedings in Lower Canada, respecting Mr. Papineau, under Earl Dal- hous.e's administration, where the assembly persisted in re-electing the refused person and proceeding to business, have caused much enquiry into this disputed point, and as •t^cms the right of the Crown to refuse peremptorily is W*ea/,;^oiTir^''' """'' "' '^'^ ""' °^ Lieutenant Governor 80 BOOK 1.— CHAPTBR n. subject to much doubt, the claim of a Governor toexei- cise so dubious and delicate a prerogative must be much more problematical. (See Burnet's history of his own times.) The Speaker sits in the chair and takes the votes in all the more formal and regular debates and proceedings. When m the chair, he reads the resolution or other mat- ter or directs the Clerk to do so. He puts the question, reckons the numbers on both sides, and declares the re- suit. While in the chair he takes no part in any discussion, but mterposes occasionally on incidental questions regard- mg the order, and decorum of the proceedings. In all questions concerning the forms of the house he acts as the judge, unless their novelty or importance induce the house to refer them to its standing committee of pri- vileges. The Speaker gives no vote while in the chair, except the members present are equally di- vided, and then he gives the casting vote which m money questions is to be given against granting money. In all cases a simple majority decides the question. Those votes are given openly, and viva voce and each member is entitled if he think fit to state the reasons that sway him. at as great length as the house is inclined to hear from him taking care not to speak more than twice to the same ques' tion m the house, that means the speaker presiding.— If the chair be filled otherwise, then members may speak to any question as often as the committee is disposed to hear them. When a seat in the house becomes vacant by the death of a member or otherwise, the house directs the speaker to communicate the fact by letter to the Go- vernor, and to request him to cause a writ to be issued to fill up the vacancy. Whether the Governor could issue a writ for a vacant seat in the assembly, without receiving a message from the house, to call on him to do so, was made a question in 1755. in, Jamaica but no opinion was fiEiNERAI, ASSBMBLT. •1 given by the crown lawyers. See 1 Chalmers opin. 296. -* do. 3. The other officers of the house of representatives are the clerks who register the proceedings and copy the bills, <^c. The chaplain, whose duties are similar to those of he chaplain of council ; the sergeants at arms who attend to execute any orders the house may give them, for summoning or arresting any parties-for preserving order m the galleries, lobbies, &c. and preventing the ingress of strangers* without the permission of the house ;~and the doorkeepers and servants, &c. Each house appoints its own officers. The manner of passing Bills. This is nearly the same in both the chambers. If the bill be of a private nature, a petition must be first present- cd by a member, and then leave obtained of the house to prepare ajjd bring in the Bill, a committee of three or four IS generally named to prepare it. A public bill is either mtroduced by a member who asks for leave to present it, on which It IS usually read a first time as a matter of course or (as frequently practised when it is wished to pass an ac of importance,) a large and respectable committee is ap- pointed to prepare the draught of a bill^the chairman of the committee usually draws it up and submits it to the other committee men, and when it is modelled to the sa- lers 11 to the house, as the result of their labors. Thig saves much trouble. It is then read a first time. The bill when first read has generally a number of blanks in hM- Tk- "^"'^-P'""^' ""^ ''"^^' ^"d ^very thing thaus dubious, or on which difference of opinion is most * ^'rangers, i. e. all but members and officer* nf ♦!,» u^ must withdraw when the speaker so direct and b«- ^""j to do so at the instance of any one n.cmber It ^. . ?"^ on a division, as it is in England "'^'''^'''' " » «ot done VOL, I. j^ eft BOOK I. — CHAPTER II. probable. Its progress through the house is divisible into 5 distinct stages — the 1st and 2d reading — commit- ment, — 3d reading, and — motion that it pass. Sometimes it is committed on the 1st reading, and sometimes it is not committed at all.— (D'Ew. 1709.-0 Feb. 1699) as where on the 2d reading there is no objection to the bill, nor any blank to fill up. The house frequently permits the read- ing of the title to stand for the reading of the whole bill, as in practice the three or four readings at full length prove unnecessary and tedious. At any of those stages a bill may be opposed, but it is usual to debate on the se- cond reading if the general object of the bill is disputed. After the 2d reading, the House takes it up again, when in Committee of the whole house to consider such bills as have passed the 2d reading, and in this committee, the se- veral clauses of the bill are minutely considered and a- dopted, altered or rejected, and the blanks arc filled up. To form the committee of the whole house, the speaker leaves the chair and may take a part as an ordinary mem- ber, the chair being filled by another member appointed for the purpose. After it has gone through committee, the chairman reports it to the house with any amendments that may have been agreed to, and then the house re-considers the whole bill again, and the question is repeatedly put upon every clause and amendment. When the house has agreed or disagreed to the amendments of the committee, an.'] sometimes added new amendments, it i^ ordered to be engrossed — that is, fairly copied out as altered. When that is done it is read a third time, when also amendments may be made to it, and if a new clause be then added it is called a ryder. The speaker then recapitulates the stages through which it has passed, and puis the question that it do pass.* If this is agreed to the title is then settled, and * Whenever the house is divided (except in committP'^ of the whole) the names of members are ull entered on the Jour- nalsi showing the side they vote on. GENERAL ASSEMBLY. 83 the bill goes by the Jiands of the clerk to hia majesty's council for their concurrence. By " standing rule" a bill cannot be read twice in the same day, which is occasional- ly dispensed with by special resolution. When the bill goes up to the Council, it there passes through the same forms it did below, except that it is not again engrossed, and if rejected no more notice is taken, but it passes suh silentio to prevent useless altercation. If agreed to, the clerk of council delivers a message to that effect at the bar of the house ; and if agreed to with amend- ments, the amendments are sent down in writing with the bill. When the two chambers differ in opinion as to any clause or bill, or other matter that is supposed capable of being adjusted by mutual explanation, the course is to hold a conference between a select committee of each house, who receive instructions and report what has been said ; but those committees have no power to concluileary arrangement, that being left to tlie vote of the* chambers. — The same forms, mutatis mvtandis, are observed when a bill originates in the upper house. It is a rule of parliament that any measure, whether in the shape of a bill or otherwise that is rejected, shall not be again introduced in the same session. The lower house claims and exercises the sole right of originating all bills of supply, and extends the principle to every bill, imposing any tax, charge or pecuniary pen- alty ; and it is the rule of the House of Commons that all sums granted to the Crown shall be fixed in the Committee of Supply, which is aCommitlee of the whole. ISth Feb. 1667. 29th March, 1707. 11th March, 1716. 28th Feb. 1734. nth December 1706. 11th June, 1713. See Hammond's Practice in Parliament. The Chairman of the Committee of Supply, wheii the ajw<* uxmi >. miur. IMAGE EVALUATION TEST TARGET {MT-3) / O k ^/ ^ ^ ,5^^, <• ^^^ K ^#/. ^ jp ^ 1.0 I.I 2.8 us """" 2.5 2.2 20 18 m I u 116 V] ->> ^> uv^ //a Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ? A^ v .^ ^"^^ 5 n 84 BOOK J. PHAPTEU II. members are equally divided on a question respecting the grant of a larger or lesser sum, or the longer or shorter time for its liquidation, is to put the question first for the lesser sum, and so for the longer time. 3 Hats. 183. 184. —In bills which are intended to raise revenue, the upper house are not to make any amendments, except it might he to correct a verbal or literal mistake. 3 Hats. 163. 154. —In other bills containing pecuniary penalties or imposi- tions, they are not to alter the sums, the management or the disposal of them. 3 Hats. 154. 155. In the consideration of questions not connected with bills it i? usual to resolve the house into a Committee of the whole ; such are the ordinary committee of ways and means, in which the revenue is annually settled, and the committee on private petitions. The same course exists m considering of addresses to the throne, or adopting such as have been prepared by committees. Select committees are frequent, and prepare and arrange most of the business for the consideration of the house. They are generally authorized to send for persons and papers, and take evi- dence (without oath) acting as courts of enquiry. The bill of supply is presented to the house by the Speaker, who in doing so, usually makes a brief speech to the Go- vernor, suited to the occasion. The regal assent is given usually by the Governor, as the representative of his Majesty, and for this purpose the «iree branches usually meet once before the close of the Session, in order to pass those bills into law, which have been agreed upon, as the revenue laws expire annually in March, and the house generally meets about the 1st February, and sits till the latter part of April or the be- ginning of May. At the close of the Ses«on the Supply bill, and such others as are ready, are assented to by the Oovernor. The clerk of Council reaJs the title of each bill OENEIUL ASSEMULY. 85 and hands it to the Governor, who thereupon says, « I as- sent to this UU." Bills with a clause suspending their operation until his Majesty's pleasure is known, receive their confirmation by notice from the ^ecretary for the Colonies to the Governor who makes it known to the legislature and the public' —Sometimes a Governor reserves a bill himself, for the pleasure of his Majesty. This has rarely if ever happen- ed in Nova-Scotia. • The acts when passed are published in the Royal Ga- zette, and an edition prepared, of which each member ot the legislature, justice of the Common Pleas, justice of the peace, town clerk and excise officer is furnished gratis with a copy at the public expense. See Journal H. of Assembly, 9th Feb. 1827. Copies are also transmitted by the Governor to the Colonial office, in England, where the acts undergo investigation by the law officers of the Crown. A colonial art has the same effect in the colony that an act of parliament has in England, so a sale maybe direct- ed thereby to be made by a married woman, and an act of naturalization will have full effect within the precincts of the colony. 1 Chalm. opin. 344. 2d Chalm. op. 2. Formerly acts took took eflect from the beginning of th- session, unless they contained a particular ame-but bv 10 Geo. 4. c. 26. « The clerk of council is to endorse the date on each bill of its actually passing, which is to be considered its commencement, unless where it contains a particular commencement." Very many acts are passed to have duration only for one, two or more years, and it is a principle of the constitution that revenue laws and militia laws shall be annual, consequently a committee is selected 86 BOOK I. CHAPTEn II. every session to ascertain and report to the house the acts that are about to expire, and this committee also reports continuing bills to keep alive such acts as are thought ne- cessary. The expenses of the legislature are included in the yearly bill of supply, in which every sum is granted speci- fically, item by item, for the service of civil government. There are salaries to the speaker, the clerks, c! .plains, &c. of both houses,and an allowance of about 20s. per diem, to the representatives, for the days of the session and of their journey to Halifax, and back to their homes.* The privilege of franking letters is not admitted by the Post • office, although a large sum, nearly £1000 is annually granted by the provincial assembly, in aid of the posts throughout the Province. This establishment being con- ducted under acts of the imperial parliament is not sub- ject to the order of the provincial government. The privilege of members to be free from arrest having pro- duced some inconvenience in its indirect effects, an act was passed in 1818, 58, G. 3. c. 11. by which a new exe- cution is allowed, where the former is superseded by privi- lege of the party arrested under it, and the sheriff is re- lieved from any claim when he delivers a privileged per- son from such arrest. This privilege was decided not to free members from arrest out of session, except for a suffi- cient time to return to their homes in a recent case of Young V. Roach. Sup. Court. 183f. Privilege of Parliament does not extend to indictable offences, such as. treason, felony, or breach of the peace. Of adjournment, prorogation, dissolution, fyc. Each house can adjourn itself from day to day,, or for one or more days by its own authority, the adjournment of * The pay is usually limited to 42 days. When the house sits longer, it is without pay. fiENKnAL ASSEHBLY. 87 one chamber does not affect the other ; after adjournment, when met, business is taken up in the stage where it was lefi off on the preceding day. Prorogation continues the assembly from session to ses- sion. It is made by the president of council, in the pre- sence and by the order of the governor, and a day is then mentioned for the next meeting of the assembly. This day is usually postponed by proclamations at several pe- riods until the usual time of meeting, the last proclamation expressing the day of assembling "for the actual dispatch of business." It is the duty of the governor to call an as- sembly together, to dispatch business once in every year. Both houses are of necessity prorogued at the same time, and though the same council meets very frequently in its executive capacity, it stands divested of all legislative cha- racter until it again unites with the two other branches in their session. The session cannot be otherwise terminated but by prorogation, although in construction of law unless some bill pass or judgment be pronounced there is no ses- sion—the effect of prorogation is such that all bills begun and not perfected must be resumed de novo (if at all) at any subsequent session. The Governor can prorogue the general assembly, dur- ing its adjournment, or at any time, and prorogation is ef- fected in law, by a writ issued and tested before the day of meeting of parliament, discharging the members from their attendance at that day, and appointing another for them to meet. This is usually notified by proclamation. In England some of the members attend on the day first appointed for meeting, and the writ of prorogation is then read ; but this meeting is not necessary, (nor is it ever practised in Nova Scotia, the prorogation being deemed ef- fectual without it.) See 1. Chalmers' opinions 234.-236. —Dissolution takes place— 1st, by the command of the 68 UOOK I. CHAPTER 11. Governor expressed in person to the other branches, or by proclamation. 2ndly. In the event of a demise of the Crown, when the assembly is dissolved ipso facto, on the death of the reigning sovereign. (In England the par- liament by Stat. 7 and 8. W. 3. c. 15. and G Anne c 7 is to subsist for 6 months after-and shall assemble im- mediately after the event, and if no parliament exists the members of the last are to assemble.)* 3rdly.— By lapse of time. For by Prov. statute 32, G. 3. c. 10. 1 PL 298, it is enacted that each general assembly shall continue for seven years, unless sooner dissolved by the executive, the period to be comput.^d from the day appointed for their first meeting in tiie writ of summons. A * '^^Ll *^^^"^? ""^ Governors does not dissolve the General Assembly 1, Chalrn. op. 044, and although a Governor be su perseded by a new commission to another, yet all laws nas sed and otherofhcml acts, done by him. before noH^e ofhi; being dismissed or superseded, will be valid, ibid. 238 If the members neglect to attend on the day annointed for he meeting of the General Assembly, or on a^daf?" which hey were adjourned, the Governor cannot issue new wnts without a dissolution. 1, Chalm. Op. 270 271 It appears to have been considered doubtful whether the acts passed by a Provincial assembly, after the demise of a King, but before notice of the event had reached the Colon v were to be considered as nullified or held binding The S er wil find a very learned argument on this subject in the 1st vol. of Cha mer's opinions. 238, 303. 328. As to he ne cessity of waiting for oflicial notice of the Kind's death S.: the continuation of Hutchinson's history, pagf 88 BOOK I.-CHAPTER III. OF THE EXECUTIVE. THE GOVERINOII. dilt°f°"''l''""«"°' '•'8*' Sovemmente at a great ^nted ,„ eachby an officer, who under ti,e title of X- tioL ofT ^^^ ^'"'r'^"' »™»' •>«""»"»' "» *e funo- well be,„g of the colony, subject to such instrucL, ftlt the crown as may be furnished him from time to tim" Those mstmcuons which were established as nales for the guidance of the provincial executive, before the represen- tauveconsutuuon was granted to this colony, stand upon a h'atll ""' 'T '""^ °f ™'« --' e^anatior^d havmg been promulgated by what was then the sole legis- TLT r"'««" P""" » ""= province, assume the characeroflaws and constitutions. Since the assembly was called mto existence, it must be allowed that the pow- ers and prerogatives of the crown have been lessenedfand that any mstructions since that peri«l can only be cLi- byThoTu r^rK""- '"^"'"^ government, Ld limited molr'cX""' """"'""^ "" '^""''''' '" ^-^ VOL. ,. jj 90 BOOK I. — OHApTEft VII The governors of Nova-Scotia, previously to the year 1792, were styled Captains General, and Commanders in Chief, in their commissions. The appointment of a lieu- tenant governor used to be contained in them, and he acted in the absence of tlie governor. When both were absent, the senior counsellor was authorized to administer the gc- vernment. In 1792 the style was cimnged, and since that date the commissions call them lieutenant governor and commander-in-chief. Their command is the same as it was before, being in no respect subordinate to any other colonial governor in the performance of iheir functions, — corresponding directly with the secretary of state. How- ever as the governor of Lower Canada is, by his commis- sion, captain general over all the northern provinces, when present in any of them, he may, I believe, assume the powers of government, but he does not in practice in- terfere with any of the othfer governors, each acting sepa- rately in his own province. In the absence of the lieu- tenant governor, the senior counsellor is governor, pro tempore, the present chief justice who is president of council not acting. The Governor or other person exercising the functions of governor, must previously be sworn at the Council Board, taking the oaths of allegiance,&c. as directed in the royal instructions. This swearing into office is the regu- lar form by which he is recognised, and he then sits in the chair, or throne in the council chamber. The landing, and procession of the Governor to be sworn in, is a ceremo- ny conducted with much military parade, but in the case of Counsellors administering the office, they are generally sworn in a less ostentatious manner. " A Governor on his arrival in the Province over which " he is appointed to command, must.- (agreeable to the di- " rections of his commission and instructions,) in the first THE KXECnriTE 11 ** place cause his commission of Captain General and Go- " vernor in Chief, &c. 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 usi^ally ob- *• served on like occasions. In the next place, he must take *' the oaths to government, and administer the same to " each of the Council," &c. &.c. Stokes on the Colonies, 177. Extract from Stokes on the Colonies, as to the ojjke andpotvert of Governor. " Every Governor of a Province, by his commission of " Captain General, and Governor in Chief, and by his " commission of Vice Admiral, and the instructions which " accompany them, is vested with the following powers : 1. "He is Captain-General of the forces by sea, and by " land within his Province," " The Governor has also " the appointment of all militia officers." 2. « As Governor in Chief, he is one of the constitu- " ent parts of the General Assembly of his Province, and " has the sole power of convening, adjourning, prorogu- " ing and dissolving the General Assembly ; he may also " give or refuse his assent to any Biil which has passed the " council and assf -Tibly. The governor has also the dis- " posal of such employments as his Majesty does not dis- " pose of himself, and with respect to such offices as are usu- " ally filled by the immediate appointment of his Majesty; " if vacancies happen by death or removal, the Governor " appoints to such offices until they are filled up from " home ; and the persons appointed by the Governor re- " ceive all the profits and emoluments of such offices, until " they are superseded by the King's appointment of others." 3. " The Governor has the custody of the great seal, « and is Chancellor within his Province, with the same mm mm 93 ■00* I.— CHAPTER III. « poweri of judicature, that the Lord High Chancellor has " in England." ^^ 4. « The Governor is ordinary within his Province ; and " by viitue of the king's commission, he collates to all va- " cant benefices." fi. <' The Governor presides in the court of errors, of " which he and the Council are Judges, to hear and deter- "mine all appeals in the nature of writs of error, from the " Superior Courts of Common Law in the province." 6. « The governor is usually named first in the stand- " ing commission, issued under the U & 12 Wm. 3. c. 7. '• for the more effectual suppression of piracy." 7. " The governor is also Vice Admiral within his pro- " vince, but he does not sit in the Court of Vice Admiralty " there being a judge of that court, who is usually ap- " appomted from England.-In time of war commissions ^^ to privateers are issued by the judge of the court of vice admiralty, m consequence of a warrant from the go- ^* yernor." Pages 184. 185. Lecve of absence. The British statute of .22. G. 3. c. 75. declares that offi- ces m the plantations shall only be granted by patent, during the residence of the grantee, and guamdiu se bene g^sent, (that is, during good behavior and not at the pleasure of the executive,) and on absence without leave or misbehaviour, the officer is removeable by the governor and council, who are authorized to give leave of absence when necessary. In case of death or removal, the go- vernor and council may fill up offices, so vacated,p-o tenv- pore. The governor is directed to report every leave of absence thus given within a week after granting it. If it 18 not confirmed in England by the Government within one month after the report is received, the officer having leave is to return at once to his station or vacate office. THB EXECUTIVE. Respormbility of the Oovemor. 93 >» As the office of a governor is in the nature of that of viceroy, representing the Majesty as well as the authority of the Crown, he is therefore (locally) during his govern- ment not amenable to any civil or criminal tribunal ; the reason is, because, he would otherwise be liable to impri- sonment in a civil suit or under sn indictment, which would be inconsistent with the dignity of his office and the unembarrased discharge of his important duties. If any complaint should arise against him, which in/olves a dis- pute between two adjacent provinces, as to the extent of the territory or seignorial rights of either ; then as the rule of law is, that no question concerning the seignory can be tried in the tribunals which exist within the seig- nory itself, the conclusion is that the trial must be before the courts of the metropolitan government, having juris- diction over the colonies, that is before the king in coun- cil. « So that emphatically the Governor must be tried in " England, to see whether he has exercised the authority " delegated to him by the letters patent, legally and pro-- " perly, or whether he has abused it in violation of the laws " of England and the trust reposed in him." Mostyn v. Fabrigas. 1 Cowper 172. 173. In order therefore that a governor who should so far lose sight of his duty and the honor a faithful discharge of it will confer, as to oppress and injure his fellow subjects over whose interests he has been deputed to watch, the British statute of 42 G. 3. c. 85. authorizes the court of Kmg's Bench, incases where oppression is proved against him to adjudge a governor incapable of serving the crown afterwards in any civil or military capacity,— and it ena- bles the King's Bench to issue a mandamus to the colony, or a neighboring one, directing the colonial court to take the evidence on charges of this nature. m W BOOK I.— CHaPTIR 111. Governor's authority. The governor nnpoints the different public officers of the colony on vacancies arising. The members of the counc,), sheriff, justices of the pea.e, judges, officers of tnemUitio. the commissioners of roads, of sewers &c. the iaw officers of the colony, the treasurer a: '. a variety of others, receive their commissions frop, him ; the customs and post office are not under his control. This authority i« sometimes superseded by orders of the hon.e govern- ment, who occasionally by m«m,'am.,, or commissions make a particular appointment, and ail the appointments made by a governor are liable to be annulled if they are not sa- tisfactory to his majesty's government. The office of lieu- tenant governor has been frequently nited with that of lieutenant general in command of his majesty's troops in this and the adjacent provinces, by which the income and importance of the office has been augmented. The go- vernor IS officially the chief commander of the militia by the provincial acts, the tenor of his commission and the royal instructions. He has the management and chief control over the hereditary revrenues and the lands of the crown, and, with the approbation of the council, makes grants of the wilderness land to settlers, according to the mstructions. All monie^i drawn from the treasury are di- rected by provincial acts to be paid out only on a warrant signed by the governor.—See 41 Geo. 3, c. 18, &c 1 Prov. L. 452. He has a control over the guardianship of minor chil- dren by early acts of the province. He is chancellor, ex officio, and as such sits and judges such causes as are brought to trial in his court, and has also the custody of lunatics and idiots by his instructions.— See 2. Chalm. op. 1G7. '^ He is also vice admiral in his province. He is autho- 111 ^ THB nxicimv*. 9d rined by provincial statute with the advice of the council to erect new parishes of the established church. He la al- so ordinary, and as such has son.o privileges in the appoint- ment of the cl«rgy to their missions. Bn,\ as the powers and duties of his oUice are very numerous they will be better explained in the other portions of this epitome, whe;e they will meet us at almost every step in describing the other parts of the inachinery of law and government, over which, by his co nmission, by provincial usages and local statutes, he is directed to act as the manager and su- perintendant. The governor has ^eneral power of pardon except for high treason and murder, and may suspend exe- tion in those cases also — 1 Chalm. op. 199. <( (( Of the Executive Council. « The council in a colony, are to give advice to the " Governor or Commander in Chief for the time being, « when thereunto required ; and they stand in the same " relation to the governor in a colony, that the privy coun- " cil does to the King in Great Britain ; in some cases the " governor can act without their advice and concurrence ; *' and there are other cases, in which the governor is re- " quired by his instructions not to act, without the advice « and concurrence of the council, or the major part of " them. There are also instances in which a Commander " in Chief for the time being, cannot act without the ad- " vice and concurrence of the majority of the council j « although a governo: in chief could, in such cases, pro- " ceed without their advice. This depends on his Ma- "jesty's instructions, which every Governor and Coni- " mander in Chief should carefully attend to." " The Council are named, in every commission of the " peace, as justices of the peace throughout the wholo " Colony." Stokes on the Colonies. 239. 240. 96 BOOK I.'~CHAPTER 111. "There are in every colony twelve ordinary members « of the council, who ars appointed eitlier by being named " m the governor's instructions or else by mandamus."— Stokes, p. 23^. where also may be seen the form of the mandamus By the statute of 6. Ann. c. 7, s. 8. The commissions of governors are not determined mtU months after the demise of the Crown. Hi8 Majesty's Council are the privy council of the Crown in this province. We have already considered them acting as the upper house in the legislature, and we will have hereafter to elucidate the judicial and executive powers conferred on them by royal instructions, and by Provincial laws. In the exercise of these they are in some cases joined with the governor, and in others, they are directed to act separately.— At present we will endeavor to ascertain the nature of their office, as the advisers of the government. His Majesty exercises in his privy council in England, the highest of his sovereign functions over his colonial possessions— at t^at board questions and complaints be- tween different provinces have their legitimate tribunal. See 1 B. C. Christian's Ed. 231. Appeals from the colony in all cases above £500 in value, are also heard in the last resort before this board, which IS the only appeal court from the colonial tribunals, except m admiralty cases. His majesty has the assistance of his cabinet and privy councils in colonial matters of im- portance that require the interposition of his dignity, his authority or his liberality. It is however to the industry, the fidelity, and the talents of his provincial council in each colony that he must look for the chief instrument of giViiig suv^cess to his good intentions in promoting the im- *HE EXECUTIVt. ^ provement and prosperity ofhis subjects in these remote chmes. Their local knowledge, their respected^ charac Lnl H^'f !! '^^'"'' '"^ t^^'r influence derived from length of pubhc service and from public esteem, are all pecuharly adapted to form a cord of union between their sovereign and the community to which they belong. The executive council attends on the governor, whene^ ver he directs them. They are summoned by notices sen to each member. Their offices are considered to be or ife. Absence from the province without leave for a welve-month is considered as an abandonment of the si- xduld J^^^^^r^---^ other Judges are .„ excluded from administering the government in the ab- sence of the governor, the authority devolving on the oldest member not a judge. When the treasurer has held It, he has appointed an acting treasurer,;,ro tempore ; privy counsellors are bound to inquire into off-ences agaiLt the government, m cases where the ordinary magistrates are not sufficient. For this purpose the counsellors are in- serted in the different commissions of the peace for each couBty,and they are consequently called justices of the peace throughout the province. ^ The Duties and Prerogatives oftU Crown. It is a maxim of English law, " that protection and sub- ection arereciprocal.>'(7Rep.5.) and this protection IS to govern his people according to law. 1. B. C. p. 233. The statute 12 and 13, W. 3. c. 2, expressly declares the rrild t r^-'^" 'r*^"-^^^ ^"^ ^^«*' 'h^ -narch! a e bound to administer the government according to law, -ad they swear so to do in the coronation oath, enacted by ih^^Z"''' '•'• ' '* t' "'^''^ '' '" '"^^^^^^ '^^ ««me with the most ancient oaths used on these occasions. The mo- VOL* !• I q I 98 HOOK I. — CHAPTEA III. naroh also iwoars to oxocuto justice with mercy. Proro- gativo includes all honors, pro-cinincnco and peculiar powers, rights and immunities, attributed to the monarch as the head of the nation and empire. Ab the IJritish na- tion is independent, its sovereign is not subject or responsi- ble to any earthly potentate. The constitution also has rendered his person and chnra( ler inviolable. Tie cannot, therefore, bo impeached or tried by any court for any acts whether his own or done by his command, although such command will not excuse or justify a subject for violating the rights of the nation or of individuals ; and the ministers and servants of the crown, and the advisers of the sove- reign, are all amenable to the law in such cases. His Ma- jesty cannot bo sued or prosecuted in any civil action. The Governor or other person administering the go- vernment of the province, as the representative of the so- vereign, partakes of the dignity and inviolability of tho cha- racter of his master, on the same principle that ambassa- dors are privileged. There is, however, this difforonce, that the king holding his royal office for his own life and the lives of his descendants, can never be called into a court, or tribunal, to answer for his octs, public or private, while ho retains his royal dignity. The Governor of a province on the contrary, is responsible for all his actions while exercising power, but it is to his sovereign nnd the tribunals of t!ie parent country, that ho is amenable ; it being inconsistent with the free discharge of his duties and the dignity of the crown, that he should be made a party in the courts of the province over which ho presides. The best remedy for any oppressive acts of a governor, will be found in the acknowledged right of the subject to petition the crown. If any person has, in point of property, a just demand upon the king, he must petition the crown in the court of chancery, where justice will be adminiaiered. 1, Biackst. com. p. 242. -Sii,- THE EXIOUTiVC. 99 For the greater lecurity of the monarch, and the presoH^f vation of order and the stobility of legal institutions, itha»«* bocoino a maxim of English law, that the king can do no wrong, whicii \h understood to mean that ho is not held rosponsiblo personally for the acts of the administration^ and also that the prerogative rights of tlio crown are in- tended for the public good, and that they shall not bo tor- tured or perverted, so as to bo applied to the oppression or injury of the subject. Those maxims which say the king can do no wrong— the king can think no wrong, &c. and also, thoso which refuse to impute to the acts of legisla- tion any intentions but correct ones, have originated in and are confined chiefly to the tribunals of justice. There the judges in interpreting statutes, &c. are to presume that tho acts of government whether executive or legislative are grounded on public utility. If the judges wore permitted- to depart from this principle, then the courts of judicature, would become tho censors as well as tho expounders of tho laws. It is therefore, to keep the judiciary, in a certain sense, subordinate to tho sovereign power of tho executive and legislative branches, that such rules of construction have been adopted ; and .jlthough a judge may think an act of the crown or the parliament injudicious, or prejudicial to tho public or to individuals, yet as long as tho crown does not exceed its limited and discretionary prerogative, and tho legislature does not in its acts directly contravene the lawr of God and conscience, though hardships or evils may appear to ensue, tho tribunals of the law must enforce obedience to the acts of tho government The judge has no power to enquire into tho propriety of an act of par- liament, his oflico being to investigate and pronounce its meaning. On the same principle, while the two houses of parlia- ment OYnrnian iha r'tnUi e^F Aitmr^r*...^.,:^^ aL- i- .i-^i . executive, and remonstrating against them if necessary, yet *W nOOK I CRAPTEn III. »|pr the preservation of decorum it is the usage in their -'debates to attribute any error or fault not to his Majesty ftuttohis advisers or ministers, and thus the appearance Of dissatisfaction or disrespect is avoided. For the same purpose It is the rule of parliament, that the wishes or in- cimations of liis Majesty on any question under discus- s.on should never be adverted to, lest the proceedings of the legislature should appear to have been biassed, or to desTre "^'''^'P^"^^^"' '^"^ '» opposition to his Majesty's As the guardian of the public interests, the ordinary rules which bar mdividuals from their rights if not claimed witlnn a certain period do not bind the sovereign. Mil. lum tmpus occurrit rcffi, h the maxim in these cases,~and in most cases the crown is not deprived of its claims or rights by any general enactments that bind persons ia general, where it is m oj^pressly included. Another maxim is, that the king never dies. This meana tha the royal authority cannot legally be s^.pended, but on he death of one king, i^sofacto devolves instantly o„ h.s legal successor who is king to all intents and purposes from that moment. The ceremonies of coronation ZZe crafon &c. being for his honor and elevatiot bu7n ; ^ddmg to his inherited or statutory rights. The king as head of the nation has the exclusive autho- nty ofsendmg ambassadors and instructing them, of treat- ing with foreign powers, and receiving and answering their sonar"' ,\t"^-^-^by the law of nations are pe the cml and criminal laws of the country in which thev are appointed to reside-being responsibfe only to tie J vernment to which they belong, f^r their publCand pt vate demeanor, while employed in ♦'^-:- -J-- ^ Ml THE JDXECUTIVE. The king alone can ninke treaties, leagues and alliances^ I ..oUo entrusted to him, „f his sole prerogative, to de- are war or „„k„ p„„ee. Tl,ose great powers ore, in prac- tice, hm,led by the right which parliament has of enqui- ry into the conduct and expences of foreign relations, whe- ther of a hostde or paeilic kind, and of punishing the ad- ders and m,n,ster, of the crown, for any misconduct in these matters. It is further limited by the power the re- to r„.T' " r? "f =»«"nons, possesses, of refusing to gran the sums of the public money or supplies, withoul »h,ch.heope,a.,o„sofwarmustbe suspended, and the negoca tons w.th foreign states interrupted andembarras- »ed. a he consequence is, that these august prerogatives Sii:g:L7Lrsr""^-"""-'^»'"'''»-^^^^^ The crown has the command of the warlike force oflh. ivhole nation both by sea and land, for its deZce atd aga,nst,.s enemies, end without a comtnissiontpXet authority from his Majesty, no persons can lawfulytaer v:::::nT°tr,'°"'- " " *" ""'- "■« ^'-ori. fro:;: vernment, that private armed vessels have been sulTeL odistress the commerce of foreign enemies a syse^ of aggression not permitted on land ; and one we marhow ?u as ■/ .\°^T '"""'='' to by a nation so pVw^ cl:T ." ",'" ^'^''^ "■" P"™"="» can never be Tu sh"ed the'" 1 """' *""""''"' "■»-■" •"■" >-" guished the royal navy.-their offleers notpossessinir on. tenth part of the legal authority exercised TreVaJ' calculated to increase the r aviditvnfrrnJr, *u . ^ infuse the gallant and genero; tlinS:!:,::*"" "" froltt'li'r.^!"""!''. '° ""■•'i« "' -»ove foreigner. «f f • ~ J. """ ^ ^' "" """"""^ons- 1 he subjects or citizen. Pf friendly powers are free to come and 'go, or " 103 BOOK I. CHAFTElt IIX. Awhile their conduct is legal and inoffensive to the govern- ment. Those who belong to foreign states, at war with our government, are not entitled to enter his Majesty's dominions without a passport from his Majesty or one of his ambassadors abroad. * By the prov. act of 1798. stat. S8.G.3. c.l.— l.P.L. 390. Aliens are not to remain in the province without a permit from the governor, which is to be granted on proof of good behavior and security, misbehaving is subject to im- prisonment, fine and banishment out of the provinces. U questioned, it lies on the Alien to prove that he held a permit. A penalty of £100 is imposed on any who shall harbor an Alien without notifying a Magistrate ; masters of vessels arriving in the province to report the names &c. of all passengers to the Custom house, under £20 penalty, reports to be transmitted to the Secretary's office. The Governor may banish any Aliens on suspicion ; if he re- turns from banishment, he is liable to capital punishment on convirtion in the Supreme Court. Justices of peace are authorized to apprehend Aliens suspected, and commit them. The Supreme and Inferior courts, to try offences against the act; penalties, half to the informer and half to the use of the provincial government. This act is an an- nual one, and has been continued yearly down to this time. As the English alien act does not inflict capital punish- ment, it seems to be an unnecessary clause. Indeed the act is not brought into use, and the common law pre- rogative appears sufficiently extensive for all the pur- poses of government. The crown has the exclusive authority tc raise, enlist and regulate the national forces by sea and land ; to make, repair or demolish castles, citadels and fortifications, and to resrulate their ornVPrnnnpnt anA ntkrrienna TUa 4i<^a*c and annies of Great Britain are regulated according to an « THK aXBCUTIVE. 103 annual act of parliament called the mutiny act, by which courts martial are erected, and military offences ascer- tained, and the authority of this act extends throughout the navy and army wherever they may be,— at home, in the colonies or on foreign stations. At common law the king has the power of establishing ports or havens, but not of resuming their charters, of erecting beacons, buoys and light houses.~-(3 Inst. 204, 4 mst. 136, 148.) and the governor and council are autho- rized to appoint the commissioners of light houses, three in number, by Prov. act, 1816. 56, G. 3. c. 13. 2d P. L. p. 206. ^ The crown is alone authorised to appoint judges. His Majesty ,or the governor as his delegate, accordingly grants commissions on ever} vacancy in the different courts of justice in the colony, and these are all during the pleasure of the crown. In England the judges cannot be removed except on proof of wilful misconduct or positive incapa- city, or inability to perform their functions. The inde- pendence of judges is desirable but difficult to accomplish, and it may be doubted whether it does not depend nearly as much on original temper and education as on the indi- vidual interest of the judge. The parliaments of Paris were always remarkable for their Kve of justice and free- dom, although they bought their places, and were liable to be sent to the Bastille or the Chatelet at the nod of the king; and the judges of this Province do not evince on the bench any of that leaning to the executive, that might be presumed in theory to be the result of their situations The proclamations of the king or his governor, while in conformity to the legal powers of the crown, are valid and bmding. Thus the crown may lay an embargo on ship- ping for a definite period in case of open war, by procla- mation.-(4 Mod. 177. 179.) But a proclamation in time ■•% 1(N »(toii t,«..eHAftffti tit. peft«e (0 H«lny rnrnmcn of whent JVom Iminff Rxporfnrt in timo olVnrt'Hy, nf huiitn wnn .'oiiNiHriitKi mi infVintfriumnt or (ho mjhjm^tV i-lHlH.nnil |mHi«Milnily nl'MCnr. «. o. |j|. thw ndvixniR nC (imt piuilinniuioii nlMniiinil im act of In- dimuiity l.y MUnU MHt. 7. U» 3. o. T. Tim lung nloim Kt-iuilN |KUMng(>H, lmi(iiirl.>|p«, ki(i«lii- lioinl, Ac. He vnw nvMn imw luihlic uIIIooib \\\m\ limy ttie ionuiitj.1, but he i^nuol mithuriitn ihum »u nny otli«r {mmm tv, dohmiul tmy iiuw foc'B ur ch«r«e»n,.iii tho buI». jnct, now oHU>t«ii wrn nioio UNually oumiUhI hy iu:li« of llm rh»vlnop whi,.h itrr«oiml rMaU, tl.nro, .u.d nUo «.,y por.o.ml oitnio unlolMH owing linn in Engln,,,!, (ho right ur«riiiilii,g od- •• lumiNtmlinn ht I..i.k« lo thn ArrhbiRhi.i) of Cuntt-rbury j •• ttiul irmln.iiuMrminu Im, giHi,u„| in Hm phuiUUiuim olno, •• (whu-h muy ho) (hiil tuhniniMmtoi will I,,, .ujoouiilablo " <«' <»»" «HhnimHirnlo,. ,n i-lngjnn.l, hul will bonUowodtho I' pMy.noiil oljusf iUAMn, if paid in thn or.lor tho Inw aj. '•h.wsoi;" At,.-^.. Inm nlNo of opinion, ihiti whrn »ho •• \v\\mn r.rndn.iniNtriUion nirivo ftt thu plnnliilioiiN, nndnr •• tho hohI oi ih,. projogRiivo ronh ofCniUorlMiry, thny mv " to bo nllow.-d thor,». nnd tho mithoiily ollho mhniniMm- " «ion,grnntod in tho plunJ.ilion»., Cn.in thitt tinio con«o«." Vnncipli>M iif {Joloniol (iuvmwtmt aUUt^ii in Vampbetl v. lldlt Vowim-f 204. IM. Aoonntry oonqnnrmlby iho Hritish nrniB, bccoinm n dominion oltho king in tight olhiH oiown ; and thorolbro iicccBsarily Rnbjoct lo thu logishunro, tho purliainont i)( Client Uriluin. Tho '2i\ is, (Imt tho rontpioroil inh«d)itnntsonco rncolvod tnulor tho king'N protoclion, b(H'on»o Nnbjoctn, nnd nro to bo nnivorsully congidorotl in that light, ni»t as oncmios t)r nlionn. Tho ad. 'J'hut tho artiolos of copilnlution upon vvhicli the country is sunondoroti, and tho artit;lo« of |)caco by whicli it is ccdod, aro Haoro luiiilnmoiitiil |.riii(:i,,|„,. " hai'a^rillir,',""' T" ■':"'"""""' '"''■""'■ '"" 'l>n< U- Mn, c» mirv w "'"'""" """"""^ """ ' ' ",,.1 BOOK I— CHAPTER IV. THE REVE^Utl The revenue of the Province may be divided into tJiat part which is appropriated by the Provincial Legislature, and that which is disposed of by the Crown without the interposition of any other aulhority. The latter will bo described in a subsequent chapter. The former consist of all duties of excise, customs, or other taxes imposed by acts of the Provincial legislature, to which are added the net proceeds of all duties on commercial transactions imposed by any acts of the imperial parliament, since the passing of the celebrated statute of 1776. IS, Geo. 3. c. 12. By that act, the parliament of the mother country relinquished the claim and exercise of any future right of taxation in the colonies, except the im;-»osition of suc'i t^xes as should be necessary for the xega;ntiOi-. of commerce ; and in that ease the net proceeds to be paid into the treasury of each province and disposed of by its own legislature. Duties levied under English acts of a prior date, nre not under the control of the Provincial treasury. Recent acts of the Tsperial Parliament having authorised liie colonics to ■%i^ TIIK RKVKNUK. 109 trade wiUi foreign countricH, imvo also unposcd n\oriety of dutiut. on nnporiation and cximrtation. Tli.« officers of Uie customs ui the colony form an establishment in con- nection with the board of Customs in England, and are di- roctcd„, their proceedings by English statutes. The board oi Customs having directed their collectors in the Pro- vuices to retain certain large sums to pay their salaries, the colonies rcnionstrated, and Nova-Scotia has passed an act which has been assented to, and ratified by his Ma- jesty, ai.d will prevent further question as to the cxpenccs A collection to be retained. The imperial acts regarding tlic customs and navigation in general, will be described under a subsequent head. For the convenience of trade, any goods on the impor- tation of which duties are chargeable, may be warehoused in appointed places, and no duty is required to be paid until they arc withdrawn fbr home consumption, and they may remain a year in the public stores. If exported and entitled to drawback, the bonds which have been given for duty are cancelled, and the duty not exacted. The Imperial acts also allow warehousing in the same manner. The duties levied under provincial acts arc collected by the collectors of impost and excise at the different ports of the province, on various goods imported and exported, and the net revenue accounted for and paid over to the Trea- surer of the Province.* To facilitate the collection of the Hevenucand the arrangement and liquidation of the pub- lic accounts, the Goveraor is authorized (by Prov. act of 4Jst Geo.3. V. 1, p. 454. 1801. c. 18. sec. 19.-~Continued to the present by several acts, see 1, Wm. 4, c. 3. s. ''S ) to oppoint five commissioners of revenue, who are to serve gratuitously and to take an oaMi to perform the duties of. 110 BOOK I. CHAPTER IV. their Office. They are to judge of the claims made for drawback on articles exported, which have been previous: ly imported and paid duty. By the same clause all public accountants are directed to account quarterly to the trea- surer m such fonns as he shall prescribe. These accounts he ,8 to report from time to time to the commissioners of the revenue, and the treasurer is also directed to moduce inevery session of the general assembly to the committee of public accounts, a report and general statement of the public accounts of the Province. This committee of pub- lic accounts is a joint committee composed of several members of the council and assembly. rU?" f r''"°'-.^PP«>"t« the collectors of impost and ex- cise, and the waiters and guagers at the out ports. The ltT.,"f ""'''''''''' *^^"'^ with two sureties in tof^t H^V !r "' ""*P"''^ ^" ^^«^«- The collec- 1 . n"" '' '"'''''^ *^ ''''''' ^ ''^ P^r cent on the sums he collects, up to £700, which is fixed by law as the maa^mnm of his salary. The collectors at outports receive 10 per cent on the net revenue they respectively pay in to he treasury, and on some duties 2 1-2 per cent only, and th. waiter or guager receives 6 per cent on the same amount. The waiter at Halifax has a salary voted annual- y m the appropriation act, and certain perquisites.-33 G 1817. O.G. 4. c. 3. s. 10. 11. ,829. P. L. v. 1. p. 3!3. V. 2. p. 11. V. 3. p. 17, 247 & 273. 1, W. 4. c. 2. s. 33. 1830. Light Duties. A small duty of 4d. per ton is also collected from every tradmg vessel entering the waters of the prcvince, under the name of Light Duty, which is carried into the pro- vincial Treasury, and applied to the maintenance of light nouses on the eoast, for the protection of shipping. The THE JIEVENUE. Ill governor appoinu the Collectors ; act 1793.330. 3. c. 16. i . r.u. J27. The governor and council appoint 3 conmii.. ..oners, who have the charge and superinfe' dance oTTh Xa" .?;f "^ '-'" '^"S"— yforthl't k^enTrrr^ '^''«'='»»»"'»«'n«» appoint and remove the keepers and make rules for their regulation ; they aro bound at any time on request of theiovernor toZZ hnn a correct report of their keepers and state oTret^; &c. and hsts of stores, &c. The governor is auftoS to draw by warrants from the proWncial TreasuTwrr oiisnments. The Commissioners are allowed 5 per cent on the smns expended, and they must account To the Treasurer a, auditor of public accounts to^ bT him Tzt,::"' "r'"^^ «''>'""'«= -It 'P^" Th. „ ' ^'°' ^- "■ 13-2dvoI. P.L. 306. edoutin anoZpt:;. ^"^ '"=--"«- "iUbe point- Duties of Impost and Excise. in-posed a duty of 2 ... p„ eent'on TgoLrir ported, to be computed on the sterling first osf^: h" G^r 37. 'a I ri^rr t'j r ""' °' '«^« " m«„i. . ^J" *^ *f^' mentioned act & per cent on their importation. ^ The act of 1792, sec, 2. directs the importer to pro- anThe '""'^'^'^^^^^^ ^-"^-1 invoice'^f the goo"., oath to i^: c^ T' " t^'' " "'^ ^'^^^-' -- '-^e oath to Its correctness and as to his residence. of the" goods'."""'" '" '"''' '''»'""'' produces a forfeiture /.V 112 BOOK I. CHAPTEn IV. The 7th section gives directions as to certain enumera- ted articles of clothing and provisions, when imported by a commissary or contractor, employed by his Majesty's government for the use of the army or navy, in which case, on compliance with certain regulations, the duty is remit- ted. The 8th section allows persons coming from abroad to settle in this province, to bring with them household goods, provisions, &c. free of duty, provided they enter them duly at the Excise office, and do not make sale of them in the way of trade. The 9th section allows the duty to be returned as draw- back, on the goods being re-exported. They must be re- shipped between sun-rise and sun-set, and before put on board, the original invoices must be exhibited at the Ex- cise, and certain oaths taken by the re-shipper and by the master of the vessel, into which they are about to be put. If the proof of the goods being landed abroad, be duly returned,and application made within 12 months after they are re-shipped, the drawback will then be allowed by the commissioners of the revenue* on whose order a warrant is granted by the governor on the Treasury for the amount. This drawback is not allowed unless the re-shipped goods amount to £50 in value, and in cases of hardship where the commissioners have not felt authorized to grant draw- backs, the course has been to petition' the Assembly for them. The severest penalties arc established against the fraud of re-landing goods, which have; been ic-shipped for draw- back, and the oaths of the owner and master are pledged against the practice. Ifnotwithstanding this moral guard, the attempt is made, both the goods and the vessel become forfeited, and all accomplices in landing or receiving them, arc liable to pay £100 each for every such offence. ♦ »i Thev are substituted for the ruljnrtnr hy a''t 1892 ^ G 4. c. i4. '3. P. L. 129. ' " ' " ■■ tHE llEVENUE. 113 The act of 1826, 7, G. 4. c. 37. 3. P. L. 271. sec. 3. creates many exemptions from this Excise ; the 6th sec. authorizes the warehousing of dutiable goods, by which the merchants has credit for the duties without further trouble, till he can sell the goods. The 7th directs differ- ences between the Excise collectors and the merchant, to be arbitrated by three merchants of their mutual nomination, the collector retaining the goods until the dispute is ad- justed. The 8th privileges shipmaster from any disclo- sures of the contents of packages further than those re- quired at the Custom house, and the 9th section compels shop keepers having £5 worth of dutiable goods, or more in their possession to produce a certificate that they have paid duty, on demand of the Excise officers, under penalty from £5 to £50. The Provincial act of 1830. 1. W. 4. c. 2. passed to im- pose duties on wine, rum, brandy, gin, and other spirits, and brown sugar, imported, and on spirits manufactured in the province, in its 3d section directs a list of the articles imported with their marks and all other particulars usual, to be produced and reported (in 24 hours after the ship's arrival) at the Excise office, and the importer or consignee as well as the importer or consignee, as well as the master and super- cargo, must verify the same as a true description of the whole cargo brought to the province by their oaths. The vessel must not break bulk till a permit from the collector of ex- cise for that purpose is obtained, nor can any dutiable ar- ticles be lawfully removed from her until permits are ob- tained for them. The West India produce, wines, &c. must all be guaged or weighed by the proper officers, and incase bulk is btoken or goods landed before all, these par- ticulars are complied with, and the necessary permission obtained in writing in due form, the vessel is forfeited and each party concerned in the offence, incurs £100 penalty for every violation of the law. - VOL. 1. 15 114 JIOOK. I. CHArTKrt IV. The 4tli Boction directs tlio mode of « uaging and woiuh- ing the articles, and directs security to bo tin fo duty f n « above iJlO. See. D. authorizes warehou«ing. The Oth section compels distillers to make weekly on oath a return of the spirits &c. manufactured by them. The ah section authorizes the excise collectors, to sell hy auction, goods, for which the duty has not been paid after a certain number of days. ^ The 8th and 9th sections forbid the removal of dutiable goods of above Xr, value from one merchant's store to ano- her, Without a permit from the excise, and imposes forfei- ture of the goods, of the trucks, carts or other vehicles in which they are transported and £60 penalty, on such ille- gal removal. The 10th section ordcr-s such goods to bo guaged and weighed again, when about to bo reshipped for drawback, and establishes the minmum or smallest quantity to entitle them them to this advantage. By sec. 10, the draw- back IS allowed on 100 gals, or more of wines or spirits of any kind exported, and on 1 000 lb. brown sugar. It also prescribes the oaths to be taken by the exporter, and the master of the vessel in which they arc to be reshipped. The act goes on to mako a great number of other regulations concerning the drawback.^ It adds to the list of exemp- tion, certain articles for the use of the army and navy &c and permits goods to be re-exported under certain regula^ t|ons without having been landed or paying duties. It gives the excise olhcers large powers of searching vessels, boats stores, &c. and authori/.cs them on obtaining a justice's warrant where there is ground for suspicion to search dwel- Im^&c. in the day time, sec. 20. 38. It adds a penalty of £100 for obstructing those officers in any lawful search. The act of 1822, 3, G. 4. c. 24, 3, P. L. 129. imposes penalty from £10 to £100, besides tho value of theduties on goods .kI^ITI ™r_^. «^P"r'5d in the original casks &c. to rnrc tikvrvuk. 110 Hm uffgled from ne.ghbori„g colonics. Jt aUo directs the col c or, to take warranto of attorney to cor,fes« judg! ment along with tho bonds of duties ; and orders that par- ties who have been sued for their own duties are not to bo afterwards accepted as sureties on such bonds. Tho 10 G 4. c. 3 1820 imposes duties on foreign goods, and makes «overa regulations about warehousing goods.' These a o ^.0 pnnc.,.al regulations of the provincial revenue laws, which are very complicated and difficult to comprehend. 3. 14 21 & 22. chapters of act 1. Wm. 4. 1830. For alterations by act 1832. See appendix. The Croivn Revenue. Under tl,iMitloaro comprised .uch revenue, ari8in• -"«^<' '° "•""■ given and the 116 BOOK I. — -CHAPTER HI. payment of a quit rent reserved in most of these grants. At present a new system has been adopted, by which lands are to he sold; in practice it will make little difference, as the heavy fees to public officers on the grants constituted a price alrpost equal to the value of wilderness land. This method will be likely to produce very little revenue if it ever pays the necessary expences of carrying it into effect, as much more land has already become private property, than will be required for cultivation for very many years, and it can be often obtained for less than the expences paid on the survey and grant. In the appendix are opies of the instructions published on the subject. 2. Quit Rents. These were originally exacted from grantees of land, but were discontinued early in the lime of the troubles which produced the American revolution. They were demanded from the province in 1812, and on remonstrance of the assembly suffered to lapse into obli- vion, but the claim was revived in 1828, and a re- ceiver appointed. No collection has been made since the year 1772, and the house having again addressed the. king, they appear to be tacitly abandoned. The quit rents are particularly and specifically pointed out in the grants and where they are not so reserved by the grant, the land will not be subject to any quit rent. Tn some instances the lands are held without a formal grant as in Halifax, where all the town lots were entered into a Register Book, by letters and numbers according to the plan of the town. There the quit rents were not le- served. Some lands were given also by licences of occu- pation in the early settlements and have been hel( for many generations without any formal charter. The immense expence that must necessarily attend the collection, would render these rents of no avail as revenue, if attempted to be enforced. Their gross amount would be not above JE4000 annnallv. nnH thp colp.-;«o ,.,uu u... TH£ REVENUE. 117 and other expences incidental to collecting, would nearly if not entirely absorb that sum in every year. 3. Wrecked property or any vessels or goods found on the seas or shores of the province became the property of the Crown, where no owner can be found for them within a year and a day at common law, but see 1. P. L. 448. 4. Mines. The grants from the Crown usually contain a reservation of all mines and minerals, and the government in consequence is proprietor of most of the mines of value which have been discovered in the Province. They are chiefly of iron and coal. The latter are some of the most va- luable mines of coal in the world, particularly those near Sydney, Cape Breton. The coal at Pictou and other places IS very good, but not equal in quality to the Sydney. The Sydney mines are farmed for terms of years by private persons, and the rent which is considerable, is disposed of in salaries to the officers of the Provincial government, pensions, &c. The other mines at Pictou are rented but the benefit has been granted away by government for a long term of years. 5. Duties levied at the Customhouse under imperial acts passed prior to 1778, and remaining unrepealed. These duties in Nova-Scotia amount to about £3000 per annum, and will probably be repealed whenever the civil list is paid entirely by the province. 6. There are several casual sources of revenue which are of no great value but as they form a part of the laws cannot well be omitted here. Such are treasures found hid- den or concealed, without any known owner, and they be- long to the king. Concealing their discovery is a misde- meanor punishable by fine and imprisonment. 3, inst. 133. Waifs, i. e. goods sto.en and thrown away by a thief in his flight from justice. Estrays or valuable cattle straying abroad without any known owner. Which last after pro. clamation and the expiring of a year and a day, become the pi opci ly of the crown. Fines, imposed by law, on crimes lis IJOOK r. — CHAPTER IV. «nd oflcncc., «„d not specifically appropriated. ForM. ..cfeswh,ch prove th, in,n,ediate i„str«„,e„.a ofdZt any hunjan bo,ng. are forfeited to be applied to religTo™ or chantable u,c.. /?„*,„,. „f ,„,,, (Jf_^^ S^"' or neglect of .1,0 „„„«,, ,„ f„|fi| ,h, ,„„, „„ "^ "^"^^'^ granted onginall, by „,„ erown. WWc, and ot er o7a Mgiand. lChabn.opin. 131. Sedi/ume. The mtorfy o/mou. An idiot ia one by nature ,o de- ficen. ,n understanding aa to be totally incapabi of .^a ™g.ng h,s own interests. Tl,e custody of hfs per,» Td property devolves by law on .he king whose du^y IslT,^ P^n. or father of his country is to prevent the fdio C njunng h,a person or estate or doing any thing to thl pT ud ce of Ins l,e,rs or oU,ers interested in the reversion of .« 1«..J. (FN. B. 232.) In such eases the king i Zke the profits ofthe lands without wasting or injrfring ,1 em nnd after the deaU> ofthe idiot, to restore the sta^Mle' l.o.r», ,„ order to prevent alienation. Stat. 17,Edw 2 st 2 0. 9. 4, Rep. 126. 1 Blackst. com. c 8 d 3o7h ^ Lords, 14th Feb. 1720. 3, P. Wm Tos' a! , "^ ♦k«.« I- . , ' ""IS. luo. At common law there hes a writ de idiota ingmrenjo. (Fi.z. Nat Br Ito ■nqmre whether a man be an idiot or nol This is'tried by a uryor,„,„est of twelve men ; and if their verdic esta^ bhsh h,s ,d,oey, tl>e custody belongs to .ho king who ^v gr»t ,t to any one. F. N. B. 233. Co. Lit. 42^ TkeZ'- ^tfof '^'T "'^ '"decrown, but isnoTa Murce of revenue, as the crown is accountable as a trustee for the profits of their estates. ByProvincial statute of r74. 14 & 15G. 3. c. r.. sec. „„H J ''■ '^^' "'•"'' ^""'^ "« furiously mad, bl^wa "f/T't"^ "'""'"^'^ 'o go abroad, two justice by warrant to the constables, ehurchwnrd.no .J „„ THE HEVKNUK. 110 ■ng .h» law, and ,„ „,,„„„. ,„ ^^ ,1 "^^^^J;" ""f"™; person h„» no estate sufficient beyond Xt hi, fltl ""^ crown over Lun . o rd^.Uei ITeT^H "«'"' ''''^'' ■•« not to hinder the ^ZZ^ZiTiZZ^' charge of such unhappy persons. """ "^'"e The power vested in England in the Lord TK. ii as to the custody and care of 1^?^ j ■ .'^''"ncollor, in .he Colonies to rGo;rtrSeo";h"r"" '" «'™" f; -iect passed in the ;rnS::Vc:rro- i^p^^yren^rrd^^^^ dor them unfit to manage their own affairs vet I'm ^ lucid intervals, when reason for a t^HlnT Otl'"^ disease, who have become deaf, dumb and blind noTh.v ■ng bemg so at birth, and such as are deemed to'adefit on „ understanding to manage their affairs, although ■mr]uLA "L °-';""-""g »i an ujiuerstanding, are all included under the general term of non c4o* Lt ido BOOK I. CHAPTEll IV. which also comprizes lunatics and idiots, but is more fre- quently used to signify persons accidentally deranged.— The king is guardian by law to all these descriptions of unfortunate beings, to prevent the unworthy frorti taking unfair advantage of their mental aberrations and weakness also to hinder them from committing mischief. The crown accounts to all these (except idiots born) for the profits of their estate, when they recover their senses, or to their legal heirs or representatives, after their death : and by stat. 17 Edw. 2. c. 10. the king is to provide for their custody and support. 1. B. C. 304. Upon petition to the Chancellor, who is the kings dele- gate in this respect a commission is issued to inquire into the party's state of mind — and if he be found non compos he is usually committed by that judge to the care of some friend, relative or other person, (called his committee) and a suitable allowance is made for his maintenance. Pau- pers deranged in mind are in this province, placed under the management of the overseers of the Poor, for the town- ship. The Committee should not be any person who would benefit by the death of the insane party. 2. P. W. 638. By the laws of ancient Rome, a prodigal was subjected to the same curatorship as an idiot or lunatic, and it is a pity that at least those who add habitual intoxication to prodigality, should not be restrained from consummating the ruin of themselves and their connections. 7. The Post office h, a source of revenue to the crown, derived under different British statutes, which extend to the colonies. These acts give the government the exclu- sive privilege of carrying setters and impose penalties on any person who shall carry a letter for pay. The assem- bly annually grants about JtlOOO to aid the post office de- partment, in establishing posts in different parts of the ^HK KEVENUB. ii\ province. The whole amount of the different branches of control of the assembly, may be £9 or 10,000 which k *bout the same with the grant ma... by the British Parlia- ment for the civil establishment of the colony, bo that a, far as regards civil government, thi« provinco i« not bur- thensome to Great Britain, who receives with one hand as much as she pays with the other. The military establish- ment and the naval, are on the contrary heavily expensive being perhaps XI 50,000 per annum, and not counterba- laiiced by any revenues. The commercial and territorial advantages arising to the crown are the only benefits to be poised against this heavy expenditure. Recovery of Crown Debts, The Prov. act of 1778, 18. G. 3. c. 3. 1 P. L. 209 210 directs "that the Collectors of the public money, In any case where they are obliged to give credit according to Jhe laws of the Province, shall take such recognisances in the name of our sovereign lord the king, to be paid ^^ to our said sovereign lord.the king, h.3 heirs and succes- sors, and to his and their use only :» it likewise directs tha a warrant of attorney to confess judgment, should be taken at the same time annexed or endorsed on the re- cognizance. If the amount be duly paid at the time ap- pointed the collector may discharge the recognizance^ and the same shall become void." ^ec. 2. directs that when such recognizances are not pu,. when due, the collector is to " transmit them to the " treasurer of the Province by the first safe conveyance." .. ^/u ?; ^''^''^' "^hat the treasurer, upon receipt there- ot shall cause the same to be prosecuted in H. M. Su- « preme Court at Halifax, and the recognizance being duly ..lea, ^,^ .„c ^umcssion oi tne Uebt being acknowledged " no imparlance shall be granted, but judgment shall be VOL. I. jg BOOK L'-'-CHAPTSB IV. *' made up thereupon, and eiecution shall issue to levy th« *' debt ie persons, lie presents n list of their nnmes to the Govermu-, who ninrks one of the the throe for shoritfin eiich comity for the ensuing yonr. The person so desigiujtcd, nmst reside in his county, nnd must enter security nd tnko out his conunl«Bion, which in- vests him with the odicc of high sherilV. Once regularly appointed he continues in oflice till another regular np- poinlmcntof sheiiirforthe county takes place, because the vacancy of such an oftico woidd suHjxMid the execution of nil jmH'css, ami be productive of uuu'h inconvenience. If the person - pointcd and sworn in tho manner lirst .l vrsNolsniMl^omls UmiikI tilloiil. Ho IB niso (,) , ii(|unp into i\w fiiMlin^ *.nii<|.|..n iicasmri.. —WIhmv iIu' fliniil JH n plmniiD' m .lri;.|„lnnt in n nwi, the iHMonn- oxroulos llio piocisR. tuul «Iip muno couibo in rofjnl„r. if just c,\ro|Mion bo tolvcn inni i,1I.»\v(mI lo tho ithoiiir'o, suspirion oCiiKoiVRt vv piutiulily. ns wIumc lio »tiny?fti.. arioso l»y llu> jn,l,mnn h\\ clprtivc o(11roi«, ns urro Also sluMiir.-hnl in tl.i. p.ovinro ih,. ^oxvuun i.ppoiiitH ami rommissions immoiums. >vho hoM (lu>ii odin-s noi nri- nually liko sluMills. but until tho crown or gov.-mi.r tliinK« propor to r(Mnov,> ihoni. 3. Jusf,W.o oftfio /Vvw. Tho ofnro ofoonsorviilor oC (ho pom-o >V!,s oriiriually olo.Mivo in F.n^rlnn.l. IV.si.h-R (hoNo ploclo.l by (ho p.oplo, thr.o m>ro oorti.in pnhlio ollircrs Hho woit» cv^ojfido h,'op,.r.s of Iho ponoo, an.i «hilo (ho right of ,>lortiuu; oi.nsorviKors Iuh br,'oni(> obs».l,-(o, yot dm powor .nul ,lu(y of tuMing in (hat oapari(y, Iu.h ron- tmuiHl to bo »nnoxo(Mioral pros(Mva(ion of (ho pi-uro of tho lun,uf (ho King's authority wid.in his province Tho Chanoollor, (ho Tr.^asuror. (ho Mas(or of (ho Koljg nnil ovory otIuM- .bulgo in his own oour(,— koopors of tho |H>aro, nn.l ,nay oonnnit thoso who break (ho poaro or binaoo ; (he sheriff within his county, the coroner in his district, have similar autho- nty— constables nrn nici ^jv^^.,..,.-.*-.— .i'.i ... ■^ •'" vviijvi^aiuts VI lac peace wiunii • I'MOHOrVATK! MArilNTIUTfU. 181 tho hnumU of dm Nniilrmpiit, or plarn for wliirli (|,oy nto «|>|»"iiil.'f|, mill MKiy n|.|.io||,.,„l |,r...ikrr« nClhn ponrn, ruul *'""""'' *' « ""»'! "1 n.M„yM(nlnt,-H Imvu.-r i,„,.„H<,l u ^.n-n. vori-ly ol pul.l.r .lolioHondM-m, it umm louml oor.KH.uy to np- pon.t u «rnMl numlM-r to n.oH d,n .xi.onrioM „(• tl... pul.lic. Many ol d.o ohir, Hintul,.„ ,|iro,,, that ,Ury „|„„|,| |,„ of onth's notice of the intended action in writing, signed by the prosecutor or his attorney, with the place of abode, and may tender amends, which if refused, may serve him in case a jury afterwards think the amount was adequate, to throw the expences of the cause upon the prosecutor. He may, after action commenced, pay into court the amends with the costs then incurred, which will have the same effect as to subsequent costs. Constables and others acting under a warrant signed and sealed by a justice of the peace, are also protected -rom au't, providnd they furnish a copy of it within G days bUBOUDINATK MACISTllATKS. 133 alter it in regularly demanded. Justices of the peace en- dorsing warrants against criminals are relieved from any responsibility, and any action against a justice of peace or the constables or others aiding him, for acts of an offi- cial kind, must lie commenced within six calendar months aAcr the act complained of shall have been committed. % actof 1829, 10 G. 4, c. 44. In all actions against any Commissioner, magistrate, sheriff, constable, or any persons whomsoever, for acts done under any English or provincial statute, they are to plead the general issue, or any brief plea, setting forth generally that such act was done in pursuance or by virtue of such statute ; and on the trial give the facts in .,'videncc on which they rest their de- fence, without pleading specially. Abuse of authority by a justice of the peace proceeding from interested or mali- cious motives makes him liable to punishment as a crimi- nal by indictment or information, but the courts discourage all attempts to render justices liable for venial errors, or small irregularities not arising from any bad intentions. Justices of Teace are also empowered by act of 1823. 3, Geo. 4. Cap. 30, contd. by other acts, to try civil ac- tions for debts not above £5. One Justice may decide in cases not above £3. from £3 to £5 two Justices, and if the claim is under twenty shillings, the decision is without ap- peal. But this and other branches of their jurisdiction in avariety of civil and criminal matters, will be more mi- nutely explained in subsequent parts of this epitome. The Chiefofthe justices of peace is called the custos rotulo- rum (keeper of the record rolls :) He is named by the exe- cutive, and by him is appointed the clerk of the peace for the county, whom however the sessions may suspender discharge on sufficient grounds by stat, 1. W. & M. st. 1, c. 21, sec. C. See 4, B. C. p. 272. The clerk of the peace commits examinations (in criminal investigations) to writ- 134 noOK I. CIIAI'TI-.Il V. ing Qiui is tho secretary auil reg.Htor ol'ull proccetliniri of the soRsions of tho ciuinty. CowUy Ifarmics and officrnfor thvir collection. nesi.los the g,.ncMMl revemic of tl.e provinro, omc!, ooim- ty has a revenue of its own for the purpose of nmin.ai„i„« Its loeal estaMishuu-uts (or the poor, and the exp.M.ses of cnnuual just,ee,as well as many other eharg<miliU« (li(< hiiN; otHpirihiotiN lii|uorii l»y loliiil, llio juHlircM «»rtlM! pouco in tmli oomily Imvu tlir powor orgrniHing Ihm-iicch uihNt <'«Kr ccni roniniiNNion, ni:il pnyH ovrr tinartorly lIuMnnonnl lir hmmmx-h to iho Connly TruiiNuror. Hio prooor«l,i ol'lliis (inut in lliililiix »;onnly,in«> nppropri- nli'il as lollo\v8 :— Tlnot! lilVliH uro piiid ipmrlorly by llio ronnfy frr.>8nror, U\ llio ooniiniNnionrrH (or tlio «lr(>o(H of llnhlax, to in) laid ont in tlirir repair, and two (iftliH aro paid towanls tlio xahuirs ol'llio rolioo dr|)artniontat Hali- fax, nntlor the ordors of (lio HC8HionH. In all llm otlior tumntics the procciuh of the lioonee t\nul are to be appro- priated and applied in the nmkin^ mid repairni^ olioadH mul bridges, and eHtablishing ol" ferries, nnder the t>rders«>f the sessions. The elerks of licence giv(! bonds uilh two snreties, for perlonning their duty, and the clerk of the sessions receives Js. (id. fee for writing the bond, act of i7'.M). aa, G. X c. la. V. 1. p. 4u. iHoi. -11, r>. j. c. 15. ury. iso(>. 'in, (J. ;).c. 3. V.J. p. 2. iHir.. 55, g.j. c. 17. sec. 5. 2. P.L. 158. Hawkers and pedlars by act f>f 1782. 22. (i. 3. c. 1. 1, r. L. Si.*), arc subject to certain regulations, ond pay for licences which arc issued in the same manner os spirit li- cences, by the same outhorities ; and by act of 1815. 55, G. 3. c. 8. J, P. L. 110. the fvmd thus derived is added to the spirit licence fund, and appropriated in the same way. Resides the management of these funds, the grajiid juries aic authorized by very many acts respecting tires to assess .-,, V." -T T-'TT jiTjijj- tiiv. v.\jjvijv,un iiiiviiuuiii t»u lire, e^giIie^', ladders mid other articles, directed to be kept for the pre- ^1 ruHiiiiNATi: M*wi»TiiiTi:(i. I3t volition and oxtiii«ui«l.ii,« Hr.)«. 'V\w rovmuoi c,f couii. Iip« nnci towiiMliips nrn Mii«rnen».„l by tlio renin oC public hinldin««, urirl l|n„N iuhI lorlriturnH incuno.l under a rnulti- plicity nCI'roviniiiil nvAn. U«'«id«H thn r(.r.-«;.in« onirorN r.u.l, county nml r, nr.nmiuto for each township, candidatoi Inrtho folh.wiutf town ofhca,, viz.* SurvyorH oftho lines and boundnricM of the township, over«eorM of tho poor, both niTtcv, utuUul in tho snn.o p,;r,Hon«,— a town clrrk who in «wom to k,,..p tho records of the township proceedm^M nnd other nmtter.s c.nnocted with his duty, constabh.s, surv(. 1792. I7«M, 1777. J7yo. 1798. 1829. 1791. VOL. 1. l.P. L. 106, do. 291, do. 330. do. 204. do. 377. do. 392. do. 386. I 18 138 BOOK I. CHAPTER V, t)ffices,) twice the required number of persons to be re- turned by the grand juries, from which list the sessions selected ; and the numbers of each description of officers were fixed by law : but by later enactments* the grand juries are directed to return such number of candidates as the sessions direct, as the numbers before limited by law were found insufficient. Poundkeepers in each town- ship are appointed by the sessions.f Inspectors of butter in Cumberland county, are in the like manner appointed. J Town criers are also taken no- tice of in the consolidated trespass act§ Besides the fore- going catalogue, there remain the assessors of poor rates, who are chosen|| by the semi annual meetings of the free- holders of each township or settlement, and the assessors appoint the collectors of that rate, which is the only regu- lar fund managed by the township authorities, without the intervention of the sessions and grand juries of the county. — Cullers and surveyors of dry fish, surveyors of lumber and surveyors of cord wood are to be appointed by the grand jury at sessions annually.lF Constables are officers known to the English law, from an early period, and their general duty is to preserve the peace withm their district, and they possessed at common law for that purpose extensivp powers of arrest, imprison- ing, breaking houses &,c. in cases wherp such strong courses are really necessary to prevent violence and crime, or to bring atrocious offi^nders to justice. Most of the mo- dern statute laws having invested justices of the peace *By51,G. 3. C.24. t 40, G. ;{. c. .7 3, G. 4. c. 22. i 42, G. 2. c. 2. § 3, G. 4. c. 32. tl 1, U. 4. C. O. IT 2, G. 3. c. 8 1811. 1800. 1822. 1802. 1822. Ib23. 1762. 2, P. L. 1, P. L. 3, P. L. 1, P. L. 3,P.L. a, F. L. 1, ? L. 79. 424. 137. 456. UO. 149. 82 m SUBORDINATE MAGISTRATES. 139 with large and discretionary powers for the same objects, the chief duty of constables now consists in their attend- ance on the different courts of justice and police office, to enforce order and in the execution of such written vvar- j-ants or verbal orders, as they may receive fro.n the autho- rities of the law. These duties are regulated by many of the statutes of the province, and will be adverted to as we proceed. #- BOOK I—CHAPTER VI. LjinS CONNECTED WITH AGRICULTURE, I. Roads and Bridges. Tho making and repair of roads and bridges arc provided for by tlic labor imposed by sta- tute law, upon the proprietors of lands and other inhabi- tants, for the roads and bridges of the township or settle- ment in which they reside, and also by grants of money by the legislature of the province. The statute labor is regu- lated by the act 7, G. 4, c. 2. 1826, 3, v. P. L. p. 231, and by the 8, G. 4, c. 23, 1827, and 10, G. 4. c. 45. 1829, in amendment. By these acts the grand juries and- sessions in every county appoint as many surveyors of highways for each township and settlement as ure necessary, {see title Town Officers,) The persons named are bound to attend and be sworn to the faithful discharge of their duties, with- in fourteen days after their appointment of which they are to receive notice, and their omission to do so or neglect afterwards in performing their duties, subjects them to a forfeiture of five pounds. LAWS CONNECTED WITH AOniCrLTtJRE. 141 The labor is apportioned as follows, viz : The owner of a cart, team or trr.ck must send it with two oxen, or with two horses, (or with one horse if he owns no more,) and a driver, to work on the roads or bridges for 4 days in each year, when directed by the surveyor, allowing 8 hours work daily. Other persons between 21 and 60 years of age, and able to work, are to provide theniselves, with implements, and labor under the orders of the surveyor for six days in the year. In the instances of hired servants, minors be- tween IG and 21, apprentices, journeymen, and day labor- ers, the labor is diminished to two days in ihe year Sub- stitutes able to work are permitted to be sent; the military of the regular troops and stafTof the army are exempted— The forfeiture or compensation for not performing this duty is as follows, viz : For the owner of two horses or oxen lOs. a day, of one horse, 7s. All others forfeit 3s. for each day's neglect. These sums are recoverable before on or more justices of the peace at the suit of the surveyor, as if they were debts, and he is to apply them to the repair of roads. If the surveyors think the labor of men preferable, they may call on the owners of carts, to send two men instead of their cart, &c. The constables arc directed to make out lists of the persons liable to work, and of those who are to send carts, &c. for the use of the surveyor, and at his or- der they are to summon them to attend. This is to be done between the 20th day of May and the 20th day of September, and not to interfere with seed time, and harvest, and six days notice is necessary. The surveyors fix the time and place, and must superintend and direct the woA and they are excused from any other labor on the roads. In the case of poor persons who cannot without injury to their families perform the labor, any two justices of the peace may let^sen the number of days work at discretion. As in the case of new settlers, they often live at a dis- ,,.,,, J, ^.yjjoac-iu iuau, uiiu iiiuoi cnaeavor to moke a road to their own dwellings, the justices in ses- I '^1^' 143 BOOK I.— CHAPTEn VI. eions are empowered to grant permission to any one, to do his statute labor on any road they think proper, and the cer- tificate of the surveyor, obtained within a month after such work is done, p-.events any further claim on him. Persons above 60 years keeping carts, &c. are only obliged to send their cart. The surveyors are to take the direction of two or more Justices of the peace, in the altering or repairing any road. In winter the inhabitants are obliged to labor under the directions of the surveyor for one day, whenever any very heavy fall of snow obstructs the roads, under a penalty often shillings on each defaulter. At the end of his year of office, each surveyor is to ac- count under oath to the sessions for all his proceedings, and pay over the money into the hands of his successor' under penalty of ten pounds. For the preservation of side paths the sessions of each county and district are to make regulations under fines between 5s. and 40s. for their viola- lion. Persons living on islands, in which there are roads, or islands bridged to the main land are exempted from per- forming statute labor on the main land, and must perform it on the bridge or road in the island. Penalties are enact- ed for encumbering, or injuring roads, for trailing logs on them except over the snow, and for destroying trees that grow between any road and the sea, rivers or lakes, wher- ever the road is within 30 feet of the shore or margin 3 P.L.231. '^ ' ' The expenditure of Provincial funds specifically granted for roads and bridges, by the assembly is regulated by the act 4 & 5, G. 4. c. 14. ^ v. P.L. p. 183, by the 7, G. 4. c. 2. s. 17, 1826, 3 V. p. L. 231. 8, G. 4. c. 23 & 29, 1827, and9,G. 4. c. 14, 1828. The governor and council are empowered to appoint and removfi thp mmmiooi/^nuro ft>,. the expenditure of sums granted for roads and bridges. (In Laws connected with agriculture. 143 practice tfiey are usually recommended every year by the members for each county and town.) The secretary of the province prepares a list of them for the use of the treasur- er and makes out their commissions and bonds within 20 days after their appointment. He is also to notify them of their nomination which is done by publication in the Ga- zette, and the clerks of the peace in each county take the bonds and attend to their regular execution by the sure- ties. The sureties must be approved by two Justices of the peace of the county. The commissioners are allowed 5 per cent commission out of the sum they expend. The commissioner having given proper security receives a warrant from the Secretary's office under the governor's hand upon the treasury of the province, for the amount to be expended, but the treasurer must retain two thirds of the amount until the whole work is completed and regular- ly approved and certified. If commissioners enter mto bargains with contractors, it must be done after 10 days or longer public notice; they must take security from the contractor, and transmit a copy of the contract to the Secretary's office. They are not to pay the contractor more than one third, till his work is completed and certified, and a form is prescribed in the act of 8, G. 4. 1S27. c. 29. for the contracts to be entered into. A form is prescribed in the same act, for certifying the performance of the work, which must be signed by 3 or more justices in General or Special Sessions for the county. If the commissioner superintend 10 or more laborers he has an allowance of 5s. a day besides his commission No laborer must have above 4s. a day, and the day's work is to be ten working hours. The commissioners must produce the receipts of the laborers employed, and also account upon oath ; which oath any justice of the peace is to administer without fee. Con- tracts are forbidden except in building or repairing bridges 144 BOOK i.— CHAPTEn vi. or opening new roads. No one commissioner is to employ more than forty laborers at one time, and all laborers must be paid in money. For every ten laborers the commissioner is to appoint d foreman, who works with the rest and directs the work also m the absence of the commissioner. The foreman may receive 5s. per day, and no more. Commissioners must not hire teams at a larger rate than lOs a day for a cart, driver, and two horses or four oxen, and 7s. 6d for a cart, driver, and one horse or two oxen. There is to be no allowance for extra hours of labor. Commissioners are to make a re- turn of any encroachments they discover on the road, to the Supreme Court or sessions of the county. Commissioners are prohibited from laying out any new road, or making any alteration in the line of an old one, if such new road or altered line will be productive of a de- mand on the government, by the owners of the lands, over which the new piece is to run, until they lay before the go- vernor and council a plan of the work proposed with an es- timate made by three " credible and well qualified" per- sons of the probable expenses of compensating the pro- prietors, and of making the new road or alteration. The Commissioner is not to begin any such work, until he re- ceive an order of the governor and council to that effect, (act. 7. G. 4. c. 2. s. 17. 3 v. P.L. 233.) The act of 1827. 8 G. 4. c. 23, section 3. directs the Commissioner immediately on receiving such an order, to notify it to all persons interested, and to require them to name an appraiser to act on their part, an appraiser on the part of government being named in the order in council. The two appraisers are then to be sworn by a justice of the peace, « faithfully and impartially to lay out " such road in the wnv mnsf nHvnn*o«ia«.ic *r^ *u^ ....ui: . - — _• .••.v.^v^-«T f_- iij^ put/no " and least prejudicial to the owner of the lands, and to Laws connecx£d vvitH auricultume. ii^ *' appraise and value the lands wanted for such road • " the damages to such owner or owners." When sworn they arc to go on the lands, and lay out tlio road to the best of their skill, and estimate the loss sustained by the owner in improvements and land, and the inconvenience and ex- pence of fencing to bo incurred. Their valuation with a plan and measurement of tlie roads, as they have laid it out, is then to be returned to tlio Prothonotary or his Deputy for the county, who is to lay it before one or more judges of the Supreme Court, or before the senior judge, and one or more other judges of inferior court for the county. These courts are authorised to confirm or annul the return after hearing the parties, if they on notice appear to request a hearing. Tlie court may order the same appraisers to make another return, which shall be final. If the apprai- sers at the first cannot agree, they are each to make a sepa- rate return in the same way. The judges are then to ap- point a sworn umpire and his decision if it concur with ei- ther of the two returns shall confirm it. If the owners of land refuse or neglect to appoint their appraiser, the courts are authorized, after notice, and hearing parties if they at- attend, to name in the stead of such as persevere in not naming. If proceedings are irregular, the courts are authorized ont complaint on cither side to set them aside and name three persons who are to proceed as before stated. — Sec. 4. The surveyors of highways of each township are autho- rized to lay out particular and private ways either open or pent, with swinging gates, under tlie direction of the ses- sions who are to establish such roads at the application of the parties interested. Any individual injured by them is to be compensated by agreement with the surveyor, or else by lawful valuation, and the expence is to be assessed and collected as the poor rate is, 7, G. 4. c. 2. s. 16. 3. v. P. L. 233. The sessions are empowered to direct as many gates and bars, to be established on such private roads as VOL. I. 19 14G BOOK I. CHAPTEn V*. they think fit and to make regulations on the subject.— 9, G. 4,c. 23 sec. 2d, 1827. and may impose fines between 58. and 40s. for the breach of them, to be prosecuted on oath before a justice of the ,>eace, and the proceeds to go to the poor of the township. All roadwork must be done between the 20ih May and 2()th September, (except the governor direct otherwise on one of the great post roads.) 0, G. 4, c. 14, sec. G. 1828. More particular regulations exist as to the streets of Halifax, and some otlicr towns which will be noticed under the head of local laws. Act of 1826. 7, G. 4. c. 2. 3, P. L. 234. 235. sec. 22— Imposes £5 penalty on any person who * shall alter any * public road or highway, or any private road'—' laid out ^ and established by law, or shall make any encroachment ' thereon, not being lawfully authorized so to do.' Sec. 23. Anyone justice of the peace upon his own view, or ' the oath of one credible witness,' is to ' impose * a fine not exceeding 20s. on any person who sh 1 encum- * berany of the highways, roads, streets or bridges in this ' provmce,by laying timber, wood, carts, rubbish, trucks, or ' any other thing thornon, to be recovered by warrant ofdis- ' tress, and sale of the offender's goods and chattels.' If the ofllendcr is not known or cannot be /ound, then the articles encumbering the road &c. may be sold to pay the fine. The fine is to be paid over to overseers of the poor for the use of the poor of the town or place where, or nearest to which the offence shall be committed j overplus, if any logo the owner when he is discovered. If the nuisance be continued it is a new offence, and may be again prose- cuted for similar penalty. Sec. 24. Empowers the sessions in each county and district, to make rules to prevent damage to side paths of roads and streets. For breaking any such rule, oiFender iUWS CONNECTED WITH AfmiCULTTTRE. 147 is liable to fine from 5s. to ^Os. on conviction before any one justice of the peace, to be Ic .ed by warrant of dis- tress, and sale of oflonder's goods and ciiattels j fine to b^ applied to repairs of sucli sideways. Sec. 27. Any persons trailing on the « roads or high- ' ways' ' any logs, timber or other lumber, when the same *arebareofsnow,orthe frost in the ground insufficient • to support the cattle travelling thereon,' liable to fine from .5s. to 20s. for every offence, recoverable before any one justice of peace of the county or district whore oftence 13 committed, on his own view, or Duth of one credible wit- ness, to be levied by warrant from the goods and chattels of oflTender. 2. Femes. The Provincial act of 23, G. 3. c. 10, 1 vo?. P. L. p. 237. respecting ferries, empowers the justices in general or special sessions for each county, to establish such ferr.es within their county, as they think necessary, and license ferrymen under such regulations as they consi- der right, for the breach of which they may impose fines not exceeding 40s. The ferrymen thus appointed have an exclusive right, and the carrying persons for hire over such a ferry unless by their consent, or on their neglect and re- fusal to give due attendance, subjects the offender to a fine not exceeding 203. If the ferryman neglect his duty, any one else may dis- charge It and take the fares until a new ferryman be ap- pointed. By the Militia stat. 1 & 2, G. 4, c. 2, sect. 40, 3 v. P. L. p. 82, licensed ferrymen, are exempted from trammg, but must be provided with arms, &c. 3. Sewers.— A Sewer is defined in our law books, as a fresh wafpr fronofi «rUV. u i.- ..- ., "'- • •• """ "uiiua, lu curry me water to the sea and prevent Uie inundation of low grounds. Many acts 14@ BOOK I.— CTTArTER VI. of Pnrliamont worn mmlo in En/^land nt nn cnrly poiindmi this Nnhjrct, for (ho iiitprovcmriit mid prc^crviitioii of low groumlfl. Tlio very iUfrciit <|ii;imiiy of land of ilir first <|ua- lity con(aiii«'»l in (ho hv.-a imirsli<>.H on (lio liny ofJMnidy, nnd tho rivvr.s nowiiig into it, render tlu; enihanknients mid drainNnujnired for its rnitiviition of the first iinportaneo fo th(5 ngricnitiiral prosperity d in tiu; consolidated act of 1823, 4, (leo. 'I.e. 1;{, ;> v. I». [,. IT).-), uhieh is in somu points altered hy the net of ISi'), 10. (\.,\, e. ;?7. Hy theso acts upon the request of the proprietor."! of marshes, mea- dows or low ;,'rounds, uliere dykin;j; and emhanliment may bo tho thou^dit necessary to keep out Iho sea, or to redeem wet or swnmpy lands, tho governor and eouneil arc em- powered to grant commissions of sewers for sueh lands, to as many pcMsons as th(>y may think proper. 'I'ho conuuis- sioners of Howois are cmpowiMcMl to mec^t tf),'r<'lher as oc- casion requires, and to decide on th<' method of proceed- ing* — to cause dykes and wears to be built wIumi neces- sary, to employ worknuMi, to assess nnd tax tho owners of the lands for the expenses, i)roportioninGf the rate to the quantity of(3. per aero, his land en- LAWI COIfKRCTED WITH AuniCVl.TVnr.. 149 clonod by tluil dy ko m liuhlo (or lii. .ale, but hia pcison, gooda uiid other laiidH urn not bound to iimko it good. Thn coniinisHionnrw nro to Uv wworn, iind tlioy appoint collt!ct()rs of till! dykf! riitdH who urn hIho toboNworn. Tho coniniiwsionnrM nro hIIovv(mI to chargo lOs. por dinin ouch vvhilo jic.imdly !oy(!d, and uImo roasonablo ullowunces for tho in the counfy, by name, to distrain the goodu of the proprietor, aiidH(!ll them to satisfy the rates due, with costs which arc not to exceed 10s. in any one case. When rates are not pnid ihe lands rated or part of them may be let or sold to pay tiuiir owners rate, school lands and cler- gy lands are not to b(^ sold for rates. Any justice may let on 20 days . M\rv, ' -i iho sale must be by tho sheriff or deputy, afti r ihree months notice given by the commis- sioners in the Royal Cazctte, tho sheriff's charge is limited to 10s. in these cases. Fn all common cases where works arc to be made, the proprietors on six days notice from tho commissioners or any of them, arc to attend in person, or send substitutes, with teams, implements, &c. to accomplish whatever is re- quisite, and their cpiota is to be settled by the commissioners, in proportion to tho quantity of the dyke land each owns. Where a sudden breach takes place, or inundation is threa- tened, tho six days notice is to be dispensed witJi. Those who omit to attend and work, or send men and teams for- feit 5s. a day, for each man, and an equal sum for each 150 BOOK I. CHAPTER VI. lean, they ,l,ould have furnished, ,nd thi, forfeiture i, doubled where the work is rendered neeessary by „ ,„dde„ b each of the dyke. These fines are eollee.ed and dispos- ed of us the dyke rates are. If any proprietor's dyked lot shall be injured by cutting off sods or soil to make a c'yke. or ifsuch a lot shall be ies- sened m dimensions by the building of new dykes, he shall be compensated either by a sufficient piece of the common a«d und.vided marsh if there is any, or if not, in money. The quantity ofdamage is to bo ascertained by five free- holders, not interested, and the commissioners are to de- cree possession of land, or contribution by the other pro- prietors according to such valuation. If any person pas- ture cattle near the dykes, and the dykes receive injury in consequence, two or more commissioners are to make an order commanding »hc party to repair the mischief bv a certain day. If he fail to do so, the commissioners shall cause the injury to bo immediately repaired. Such diso- bedience incurs 10s fine, besides the cost of the repair re- coverable before any justice of peace of the county, and to be lcvnsiil-« -^rti-i:/-^- i . ^ ficient by the ;^;;-^l^^"'"^»'^ - .xuhiu;., wnere 4 leei i3»uf. t Act of 1825J, c. 12. 156 BOOK I. CIIAPTICII Tl vcrcd at the Sossiona or any court of record. If the offen- der be unable to pay, he is to be imprisoned and put to hard labor for dm months, or to be whip2)cd at the discretion of tlic Court— Sec. 9, 3 P. L. U8. Sportsmen and others found trespassing in cultivated enclosures arc subjected to a fine between Gs. and 10s and costs, recoverable before any justice of peace of the county, half to the owner of the land, and half to the poor of the township. Sec. 19, 3 P. L. 140. 8. Pounds. By act of 1600, 40 G. 3. c. 8, 1, P. L. 424 The sessions, at the recommendation of the grand juries, are to establish us many pounds as are necessary in each township and settlement in the county, and appoint a commissioner for building them. If the owner of land find cattle, goats or swine trespassing on his enclosures, he is authorised to carry them to the pound where they are to be detained. The pound keeper's duty is to cause them to be cried or advertised in three of the most public places of the township or settlement. The owner must pay the damages, and also Is. a head for their support (or (3d for smaller animals, before he can receive them back ; and if ho refuse to pay, after 8 days impounding, they arc to be pub- licly sold to pay damages and expenses. Trespass act of 1822, c. 32, 4th section, 3, P. L. 137.' By the 5th sec tiou of the same act 20s. penalty is imposed on the rescue 01 cattle or swmc driving to the pound, and ^£5 penalty for broaltmg a pound, or taking cattle, &c. out of one irregu- larly. ® 9. Cattle. The sessions arc authorized in each county to make regulations to prevent horses or cattle infected with contagious distempers from going at large, and may impose fines up to £10 which are recoverable before two justices ofthe sessions, 1779,19, G. 3. c. 2. 1 P. L. 214. The malicious killing or woundimr nfnnuu jo -^.i LAWS CONNECTEto WITH AomcULTUUE. I57 nishQble by imprisonment or public whipping at tho dis- crct,onofthcfeuprcmo Court or sessions, and the owner may recover treble dun.ugcs ; but the olFender is not to be sentenced m damages if previously punished as a criminal and vice versa, if he has paid damages he is to be free from' whipping or imprisonment, 1824. 4 & 5,G. 4,c. 4. 3 P L 181 If the owner or person having charge of caitlj wan- tonly and cruelly injure them, he is liable to a fme be- tween 5s. and £3, which one magistrate may impose, and ithe cannot or does not pay, to imprisonment not above 20 days, 182',. G, G. 4. c. 22. a, P. L. 213. The sessions arc to make regulations to prevent the clan- cJestine removal of sheep and lambs, with penalties not exceeding £5, recoverable before two justices or the ses- sions. 1779. 19, G. 3. c. 7. 1, P. L. 215. Any person keeping dogs which have been known to kill sheep or accustomed to worry them, after notice, is liable to pay the owners 10s. a piece for any sheep or lambs they may kill, and also a fine of X3, half to the poor and half to the prosecutor, recoverable before one justice. 1794. 34 G. 3. c. 2. sec. 1. 1, P. L. 331. -d Wolf having at timt time paid a visit to the province the sessions and giand jury were by the same act directed to grant rewards for tiie extirpation of their race. They are not among the wild animals native of the province and no other instance is knownof their appearance. A law did exist to encourage the destruction of other beasts ol prey by rewards, but it has expired long since. The Justices in General Session are empowered to make regulations, to prevent trespasses by cattle going astray or at large, under fme not exceeding 40.. recoverable be- lorc two justices or the sessions. 1822. 3, G. 4 c 32 s 0&7. 3, P.L. 138. Swina and Goats from their real or suDDosnd nmno^.i ties for mischief aro not oaly included in the last m'entioned I 168 HOOK I. — ciiAPTEu vr. clauses, but are honored with special superintendants in eacli township called hogreaves, (an office conferred on the gayest bea'.ix in Halifax.) These creatures if found at liberty, out of the -round of their owner, are forfeited, and the hogreaves are bound by oath to seize and sell them. Any other person may do so, if the hogreaves are not present. Sec. 8. (1822.) 10. Thistles. This prolific weed has been made the subject of an act, the 31, G. 3. c. G. The sessions arc to make regulations to prevent its growth and increase, and publish them by posting them up in the most public places in every township. The sessions are moreover to appoint annually two in- spectors in each township, to carry their regulations into effect, who must not refuse the office or neglect the duty ofit under £3 fine. Other persons violating the regula- tions are liable to 40s. fine for each offence. Those ^fines are recoverable before the general sessions. The act is directed to be publicly read at the first sessions in every year, after the grand jury are sworn, vol. 1. P. L. p. 286. 1 1 . Burning Woods.— The process of clearing and im- proving the country, requires the frequent burning of woods, underwood, marshy soil, &c.— and much caution as to the season at which the fire is used, is' necessary, to prevent the fire when once kindled, from spreading to a mischievous extent. To guard against such consequences the act of 1701. 1, G. 3. c. 5. 1, P. L. 67, directs the grand juries at the March sessions, annually to make re- gulations with the approval of the Justices. The fines for their violation are not to exceed £5, and prosecutions must not be later than 3 months after the offbnce. 12. Grist Mills. Millers are obliged to grind any grain for which their mill is prepared, and to bolt any wheat, rye, or buckwheat, ground at their mill. They are entitled to LAWS CONNECTED WITH AGHICULTUflK. 160 1-16 forgrindi.i^r, to be ascertained by a sealed measure, and to one pint per bushel for bolting. If they refuse to' gruid, oi to bolt what they have ground, or tak( more toll than their duo, they are liable to 40s. penalty, which is re- coverable before two justices of peace. See acts 1770 10 G. 3, c. 8, P. L. 162, 1782, 21, G. 3, c. 5, 1, P. L. 224* 17S7, 28, G. 3, c. 2, 1, P. L. 252, and 1815, 55 G. 3, c. 4' 2, P. L. 148. ' ' 13. Running the Bounds of Townships. The Surveyors of lines and bounds in each township are once in three yearsf to run out the boundary lines of the township, and renew Its marks. It is to be done on the first Monday in March, and ihe surveyors of adjacent townships arc^ to give each other six days notice, and those who neglect to attend^ forfeit 40s. each, recoverable before two justices. If the persons notified do not attend, the others in attendance are tu go on without them. Act of 1765. 5, G. 3, c. l.sec. 3 I, P. L. 107. I ^ fiOOK I.-CttAPTER Vli. L^WS OF IJVSPECTIOJV AJ^D REGULATIOJSf COJVJVECTED WITH AGRICULTURE AND TRADE. Inspections, The province laws have subjected to par- ticular inspection a number of articles of provision, build- ing materials, fuel, hides a-jd leather. This regulation is intended to protect purchasers in the province, from impo- sition, and to establish in foreign markets a good charac- ter for articles produced or manufactured in Nova Scotia. •4. Articles of Food. 1. Fkh. Merchantable codfish, (usually called dry fish) IS directed to be of the quality considered merchant able at Newfoundland, act of 1762, 2, G. 3. c. 8, sec. mu/h.4n ,^-\*^^ «^™« ^^Mhe staves of hogsheads inch thick on the thin edge. Hogshead hoops to be 15 feet long, and S 1-4 inches thick on the thin ed^^. n„.i *. be substantial and well shaved. Dry fish offered Vo'r'^aie r.llVJ lO.VNECTEU WITH T1UI>E, l«l M .h.pped for cportation without the certificate of a cul- roffi^h,. forfeited by the seller or ahipper. CuHe™ are to be allowed .d. per quintal, (,„ be calculated „„ ho whc^e quanuty subjected to their inspection, by .et of 1830. II G. 4. c. 3.) and 4d. per mile travel, for he,r d„„es. I„ the ca,e of vessels bound to a mt ke ,„ Lurope, this certificate must be produced to tha Co ector of t,.e Port, before the vessel ca'n obtl'al!::! ance. 29 G. 3, c. II, sec. 3, 1 P. L. 274, (1769.) The same act unposes a penalty on a culler passing unfit fish "thl amount of i.rul, value. The ,0th clatse of the I:, of .ako; by' the tu^: oZTy tl'""" '""'' """'- '» ^ The .nspectionofred or smoked herring was regulated by an act passed in 1798, I, P. I,. 393. Ihich wfs , em porary, and appears to have expired. By .he acts oflSSS, 9, G. 4. c. 20, and 1829,-10 G. 4 c oO, a complete code or system is established, to reJat. L" :„t le T" "'''-'''' '^'" °^ »"'='• '^^ ^oSr: A chief inspector for the province is commissioned b, U.e governor. He is to give bonds with U,ree sure .es ij «00 penalty, and also ,o be sworn to perform hirdu,r W, h t e sanction of the Governor, he appoinrs nd rt mo^es deputies, at every port, and in as great number a. ho sessions in each county choose to direct. He .„ .ake bonds with two sureties from each deputy "n a sum not above £250. The deputies must also be sworn Th" principal mspector is liable to be sued for their misconduc" or negligence, and he may have recourse agai«st them The exporter is obliged to produce a certificate of th. inspector or deputy for his fish, and any fish carried inhmd for sale or shipped for exportation, which has Z^^ VOL. I. 2j 169 BOOK I. — CHAPTKn VII. The foos allowed for inspection are Is. 3. for each certi- ficate. For branding, a tierce lOd ; barrel 7 1-2 ; half barrel, 6d ; exclusive of the cxpenco of packing and coo- pering. For ihe inspection of empty barrels, Id each, and Gd per mile travel when necesfinry. The inspector is not bound to go from his place of his residence unless there arc above 20 barrels to be inspected. The chief in- spector is entitled to receive from his deputies, 3d per tierce, 2 1-2 per bbl. and 1 1-2 for each half barrel inspect- ed by them. TJiere are very many minute regulations contained in these acts respecting the quality of the fish, the mode of inspecting and other forms to bo pursued, and the fines and penalties imposed. Our plan will hardly admit us to detail them, and as yet the system is an expe- riment, and will probably undergo many further modifica- tions in minor points. It may be added however, that these acts point out very particularly the description of staves and barrels to be used in the fishery, and the quan- tity as well as quality of the fish in each cask is the subject of special regulation. {Butter. An inspection of this article is established for the county of Cumberland, by 42, G. 3. c. 2. 1802. 1, P. L. 466. The inspectors in each township, are to be sworn. They receive 3d per firkin for inspecting, and are liable to 40s. fine for refusing to act, and a fine of ten shillings is incurred, on every firkin sent out of the county not properly inspected.) 2. Beef and Pork* By the act of 1794. 34, G. 3. c. 9. 1, P. L. 336. Inspectors and repackers of beef and pork, intended for exportation in each township, are annually to be appointed by the grand jury and sessions of the county. The act prescribes their oath of oflice. It regulates the * For WRiflrhinff rnttl^ cnM tn Pi«*<>liAt. ,«-^n*' Vtl\-i ,' meftsures. LAW$ CONNECTED WITH THVUB. Iflg description of bnrrnls to bo used. Fixes tl.o qualitie. and quantity of the article. The penalty on exporting the ar. ticJo Without inspection is 4O3. per barrel on the owner and iOa. per barrel on the shipmaster. For shilling it after in- spection, £50. For misconduct, penalty on tho inspcc tor, £50 For obstructing an inspector or a constable m searclnng a vessel for uninspected articles £50.- SInpstorcs are exempted but must not exceed 2000 lb gross weight in each vessel. Suits under this act are to b« brought u. supremo court, or inferior court of common pleas. The fees allowed the inspectors are for a barrel Is. half barrel 7 1-2 ; for a new hoop 2d. for pickling &c. bbl. 7 1-2 ; 1-2 bbl. 5d, the owners finding salt. This act was made perpetual by act of 1807. 48, G. 3. c. 23 2, p. L. 23. but was repealed and re-enacted nearly verbatim, by act 1830. 11, G. 4. c. 6. 3. Grain, Bread, Biscuit and Flour. The inspectors arc allowed 4s. per 100 bushels, for measuring of all kinds of gram, except oats, and for these 2s. The specific gravity of gram, each kind is pointed out, and if it does not come up to the standard, it is to be rejected. The fees are to bo paid half by the seller and half by the buyer. By consent of the parties, the ditTeren.'.e from the standard either under or over, may be made up to meet the weight prescribed by adding or subtracting from the quantity ; Is. per bushel fine IS imposed on grain exported which is under the stan- dard weight, act of 1792. 32, G. 3. c. 4. 1, P. L. 292 -56 G. 3,1810, c. 4,2,P. L. 199. Measurers are subjed- ed to fines for negligence, or for undertaking to survey the delivery from on board more than one vessel at a time. By the 29, G. 3. 1789, c. 10, 1 P. L. 273, all kinds of flour ^and meal shall be sold, bartered or exchanged by y^igat only, and a rounded stick must be used to strike the measure of meal or grain, and all flour, &c. for export I 104 nooK I. — ciuiM-rn vu. or ialo, by art of KOn, .%, G. n, c. 8, n. id. i, p. l.. n77. By 3, O. a. 176a. c. U. I, |». L. S7. nil n.Mir, j.iHouii or ilnp bread digposoH of cx.-upt by woitflit. am foifniird iukI » po- nalty in luldition ofiOs por cwt. incurred, to l»n rnnovcrrd on oith of ono witnosH, before 2 jiiNtiees of Mcncn of the coun- ty. TJio forfcitod nrticlcN «o to tlio poor of (he plnen nnd the ponnltiog to (ho informer ; prosiMMiiion must bn brought wilhin (en diiyf..— An oiifh to be taken by iuNpco- tom of dour i« given in I, P. I,. 377. ThcQssir.c of broa.l in regulated by the act of 1796, :ir,, G. 3, c. 8. I, P. L. .}7i ; made |)(>rpetnal by act of 1807. 48, G. 3, c. •2'2. J, P. L. 22. l\y t|,i„ |.,^v whenever the price of flour varies Is. in the rut. fioni that at which tho preceding rate was established, the sessions, gc-neral or tpecini, arc nu(hori7e.l to fix Ihe weight of the diflerent kinds of bread accordij.- lo a (able given in tho act which is calculated to settle tho just allownneo for the baking of tho bread. The qualities of bread allowed (o be made, are settled in tho act, and no others are sulfcred to bo sold under penalty of from Os. to JOs. To enable the justices to set (he assize, i( is made incum- bent on tho clerks of the market, if directed, (o notify tho prices of flour and meal, liom tin.e to time,(o the .sessions. The book in which lh(« returns an« Hawkers and Pedlars. An act of 1782. 22, G. 3. c. 1. 1 P. L. 22.5. P.^l.„ -.. dr^ectedtotakeout licenses in each county ;;"districl where they travel. Those are to be paid fof half yearly! il 173 BOOK. I CHAPTBll Vn, and to be issued in Halifax, by the clerk of licenses, in other counties and districts by the clerk of the peace, with the approbation of three or more justices of the peace. These are issued in the same manner with licenses for re- tailing liquors, and the same kind of bond is taken for se- curity. The duty payable is as follows, for a foot pedlar ;£3,— with one horse or other beast of burthen £G,— and two pounds for each additional beast. These sums are to be paid for the half years license. Any person selling goods or exposing them to sale, Without such license, (except in the place of his abode, or at a public fair or market) is to forfeit all the goods ho has exposed to sale. Justices, sherifls, under sheriffs and constables, arc directed particularly in the act to see to its observance. The sales offish, fruits and victuals, of manu- factured articles sold by the makers, their children, ap- prentices and servants, are exempted from the operation of this law, and tinkers, coopers, glaziers, plumbers, har- ness menders, and other persons who mend kettles, tub?, household goods, or harness, travelling about with the materials of their work, are protected by express words —The act of 1815, 05, G. 3. c. 8. 2, P. L. 1^9. directs the proceeds of the act above to be paid into the county treasurer, in each county and district, and to be aJled to the license fund and to be disposed of accordingly by the grand juries and sessions. Licensed He onscs. A Fine of £10 for each offence is imposed on persons Belling liquors by retail without license, recoverable before twojusticesofthepeace,by actof 1799.39,G.3.c. 13. 1, P. L. 411, 416. continued by different acts. The same act imposes a similar fine on persons hanging out a sign, stating that they are authorized to sell liquor by license, if — _, -„-.. „.,,, -xvciiacu j una a nne oi Jti* mi liiose who take LAWS CONNECTED WITH TllAOE. 173 out such a license and neglect to have such a sign. The penalty is the same for selling liquor at two places under one lie use, as for selling without license. The justices in the spnng sessions, are annually to prepare a list of per- sons to receive licenses— act of 1815. 55, G. 3. c. 17. sec. 2. 2, P. L. 158 & 5th sec. of the act of 1799. 1,P.L. 412. Each person licensed must enter into a recognizance with one good security, in the penalty of £50 for obedience to all laws respecting licensed houses,— to keep good or- der in his tavern, to prevent gaming in it, and to secure the payment of their license duties within ten days alter they become due. For this bond and the license, the clerk of licenses receives 5s. and the clerk of the peace 2s. 6d. by act of 1801. 41, G. 3. c. 12. 1, P. L. 445. & 6th sec. of act 1799. 1, P. L. 411. for taking a minute of the bond in the sessions book. Tavern keepers and others taking out licenses to retail, are not allowed to sell goods or merchandize under £20 pcnaltj, by act of 1799. 19th sec. 1, P. L. 41G. Shop keepers may obtain a shop license by which they can sell liquors in quantities, not less than one quart, (and in Halifax town and suburbs, not less than one gill.)* The duty on the retail license is, in Halifax Peninsula - . . , . £q p^^^^, Elsewhere - - 3 do. On shop licenses in Halifax township, - 4 do^ Elsewhere, - - 2 do. • The act of 1828. 9, G. 4. c. 17. allows any one liavinff a shop license, to retail all kinds of liquors in any cn.antity whatsoever, and raises the duty on shop licenses throughout the province, to .£6 per annum. The act of 1830 1, Win 4 c. n. imposes on every kind of license to sell liquors, within the town and peninsula of Halifax, £i additional duty. It also raises the fee of the clerk of the peace at Halifax, for his attendance (.n taking a license bond from 2s. 6d to 5s I believe the house now sitting is about making some further Ct.ange iii toe uuiy (r.Iarch iS32.) These acts appear much Goafused and obscured by frequent changes. 174 hook i,>^('iiArTicn vn rhrs(».lniin, nropnynMn in .|nnfl..rlv pnymPnlMluoo moi.ilm ,n n.lvnnrP ; ,M,rl, .p.nUrr hrin^r ,,„i,| fur ril if^ omunirnrnnHMW. Tho N,..sio„«nn, nho ,ni1l,n,i,.r,| i,, KiMMt lirrnsos frjalis «<> Immhomh livii.jr „„ vo,uU ivmolr. nii.l liiHn '«''M'"'»<.'.I, lo ruronin^r,. U„.,n fo nliiu.l piH..,f„i„m.M.I f.) «Ihi fiiivcll.-r S,.,'. (i itn.l <>. .!!». (;. ;i. ... i;,, , p ,^ ,,,^ 411. Anno WMK Wy ,|,..!Mh s.rlion olMMmo ,„>(, ,uM.onJ Koppn.^r nolon« hons.vM ,„• ,.||,rnvi«,. (,lu,,sin,,r ihrir lir.-nrn •mMo lorfpif i,. ,„„y ho iHunul ov.-i- (o gno.l |H-I,nvinr, , (luMi- hon.ls niP «oH;.ii,.,| ; ,„„| |,y fuM „r iHir,. f,:,. ({. ;|, ,.. 17, s(V. .1. 2 \\ ].. ir.M, „ny tun jusfiors on sworn rvi.I.Miro inny Misprn.l ihn li.vnsn oli|„< pris,,,, .on.plain.Ml of. who mny hou.n.M .ipp,..,! („ ||„. .....sions, luil iUo nnsprnHion ro- •"nniH nt Toir,. until tl.,. app.-,,! ,m ,lH.-mnn..,l. Ily iUo Sll, «ort,on or tho nrt oti;!),.. l.j.cM.srs inrrrUul, uni Uuur in llHMown ol ll..,|,(i,v,nnis| not ho ^rnuito.l ovoopt to innlion- por.,«n,ltl.oymn«t Hot npn sign witluhoir nninoH ami a statomont that ontntninnu-nt m.-.y thoro ho h<.,l li.r mnn ""'I Imrso. thoy mo honn.l .mIso to hnvo two spn.o hr Hh<,p, „„,|,;r pain of ior- '•''tn,«: tho.r lioonso. Thoso who havo shop hronsos aro not to sntror tho |„,nors thoy soil to ho por coat lor collection. The elerk oil.conses .ode.^do«hletho amount, if he neglects to ncconntl ,_, _.e. ,j,. .vcc4;is. iiio ciciK oniccnscs .s empower- l.iiWI C'ONNKcriilU WITH TnAhK. 175 1 77H,' ^ I7!»H \hihJ I I ll. ed to vi«il, licntiRfMl lioUHrn »l, all HonnoriN, ho in to proBo- cuto nil (.H;-ii(|(.|H iiKniiiHl, tlionn Ihwh, niid ho in Hworii to n-tcnrulc llirm. Any |m.|hoii iiiliiiriiplin^ or iiHHjmlhngfhin oflicnr vvhiln ho in vlHilin^ Hiirh n pl(i.;o, in mniio li„M,, ,„ j,,. nNr« nro not piiid in (en <|,iyH nihr tlioy hocoirio duo. tho i'loik in to proMociMc nml rrrover llii-ni iK-foro ono jtiB- tirn «)lpn(u',o, IVoMi llio purly or Iiih HuroliciH. 'I'Ih, iirl of n?M», \h iliroctxMl f.) 1,0 pnlilicly rr-iuj |,y ||,o rlrrl* of f|,n poMrp, on (ho lirM, (hiy oflho Hprin^r HOHHionN in ovory o«Mni. ty. Tho (i.r.'^roin^ mcIn nro all ronliiniod fionHion linH Iioon ronowod for fivo ycnri moro, hy aot Ih;|(>. |, W. 'I. c. !UV' M). (Janutfrnt. — Tho HPHHJonH in onch rounty, nro in March and Hoptond)or, in ovory yonr, to rc^odalo tho furoH and ratos of oarriaf^oH ll.r tho connty. ThiN iH l., ho posiod «p in th(! nioHt pnhlic placos. Any pcirfton d»;mnndin« or ro(.-oivin^r h,r«(!r faros, \h Hnl.joot to 'H)h. ponalty, rooovora- blo boloro on.! jnstico. Ilidf tho lino ^f.oH to tho proHoou- tor, tho otluT half to h.; laid onton tho Htrootsoftho town* whoro tho olf.Miro \h oominitt.^d. — Aot of I7r>«;, ;{;{, (i. 2 0. II, I, r L. W. 'J'ho for««;L,'oin^ oxtondod nnivorHally at Im^ut an act of 1 HOD, OHlubliHliod u syalom of liccnHcs for ♦ The oxpn-Hsioii •' town" for what wo now call n townuhin tliat IN, acorunn lorritorial division of a county, is frt-nuont ii! laws of MaMischusoitB. lH2r», ) Arnnud. I'm BOOK I CHAPTER VII. truckmen within the town and suburbs of Halifax, lor which sec the chapters on the local laws. Bills of Exchange.— On bills of exchange drawn by per- sons residing in Nova Scotia, upon persons in Europe, that are sent back protested, 10 per cent damages, and C per cent per annum interest, is aUowed, reckoning the interest from the date of the protest to the time of payment. When drawn here on persons in the other colonies, 5 per cent da- mages and G per cent, per annum interest. When drawn on any part of America, not part of his Majesty's domi- nions, 5 p. c. damages, and 6 p. c. interest; when drawn by persons in the province, on other persons also in the provmce, six per cent interest is allowed. Acts of 17G0 34, G. 2, C.2. 1,P.L, 57. 1807, 48, G. 3, c. 20. 2,P.L.22.' Interest—Interest is forbidden to be taken at a greater rate than 6 per cent, per annum, on the loan of monies, wares, merchandizes or other commodities whatsoever, all con- tracts at a higher rate are made void. Persons taking a a larger rate are liable to a forfeiture of treble the capital sum, halfto his Majesty for the use of the province, and the other half to the prosecutor, recoverable in any court ofrecord, inthesame county where the offence is com- mitted, an exception is made in favor ofkypothecations or bottomry bonds, and another in favor of hired cattle, swine and grain, provided the lenders take the risk of accident and death. All prosecutions under these laws must be brought within 12 months after the offence, and an appeal or writ of error is allowed from the Inferior to the Supreme Court in such cases— Act of 1770, 10, G. 3, c. 5, I, P L 160. 1774, 14 & 15, G. 3, c. 1. 1, P. L. 183. ■if Limitation of Actions.— rhough the subject of this title will be more fully reviewed in a subsequent place, it may be well to mention here the chief features of the statute of the province, as applicable to accounts, promissory notes, LAWS CONNECTED WITH TRADE. I77 bills and other transactions of ordinary business. The pro- vincial act 1758, 32, G. 2, c. 24, sec. 4. 1, P. L. 35. directs that all actions of trespass on the case, shall be brought within six years after cause of action. The 8th and 9th sees, make exceptions in favor of minors, married women, persons non compotes mentis, prisoners and persons living out of the province, provided they were in that situation when the cause of action accrued, but they must commence their suit within six years after the disability is removed and it IS enacted, thereby, that if the defendant be out of the country when the cause of action accrues, the action may be brought at any time within six years after his re- turn to the country. The practical explanation of this aw IS that a creditor on a book account, note of hand, bill of exchange, or under any agreement not under seal, must sue for his demand in the course of six years after the money becomes due or payable to him. The cause of ac- tion is said to ' accrue' at the earliest moment when the creditor might have demanded payment according to the terms of the transaction. The exceptions above mention- ed are to be understood with this caution, that if the debtor Ti 'r^r "',' I" '"^ '^^'^' ^^^^P^^^ predicaments at the time of the debt being first due, he will not be enti- t ed to the beneht of the exception. There are circum- stances however, that may prevent the operation of this law agamst a debt. Thus in a book account if the parties continue to deal with each other, and there are transac tiois both of debit and credit from time to time, the 4th section ofthe statute prevents the account from running out ofdate while additional items are going on between the parties, so that a continual course of business may .« on for very many years, and the older parts ofthe account Uiough more than six years standing, will notrunoutof date. But if the account be settled and balanced, and the dealings cea.. to go on as usual, then six years only i« al- lowed to bnng the action. Again in cases of promissory kOL. 23 '>. •^^ 'kb'^- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I IM IIII2.8 ■ 50 IIS 1^ Kii 112.2 lio 2,0 11:25 i 1.4 m 1.6 Riotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.V. 14580 (716) 872-4503 iV f^ 4^ mi years. The only attachment before judgment being'now absconds from pursuit. English creditors are favored in some respects. In the mode of transmitting proof of their claims by an English Statute, andin the case of insolvent ^" """'"•»' bcia ineir debt by provincial act of '^»atk^Msk 180 liOOK I. CHAPTER VII. 1817, 57 G. 3, c. 1, Sec. 5, 3 P. L. 2. In the case ol debt- ors who are absent or absconding, they may be proceeded against, if they leave property or debts dye them which can be attached, which attaching is considered equivalent to personal notice to them of the suit, a sufficient time be- in;^ allowed for their agents to give them k.dce. The creditor is in some cases prevented from taking the debtors goods in execution by the effect of the statute, 8, G. 3, c. 4, Sec. 6. 1768, 1 P. L. 137, which gives the landlord a right to the goods on his premises as far as his rent ii un- paid J but this does not extend beyond the amount of one year's rent. The foregoing sketch may suffice on these points which will be all separately noticed in their proper places. The forfeitures of vessels and caigoes, &c. which arise from the laws of the Revenue though connected with com- merce, will be best arranged in some future part of this work. ■ BOOK I.— CHAPTER VIII. Ljiws for the PRESERVATIOJ^ AKD IM- PROVEMEJYT OF RELIGIOJy^JVD MORALS. Religion.— The act of 1758, 32, G. 2. c. 5, 1 P. L. 7, de- clared the "sacred rites and ceremonies of divine wor- " ship, according to the liturgy of the church established "by the laws of England" should be deemed the fixed form of worship in the Province. Ministers of the Church of England were required to produce testimonials from the Bishop of London, to assent to the book of common prayer, and subscribe to the orders and constitutions of the Church, and the laws established in it. On compliance with these requirements, the governor was directed to in- duct the minister into any parish that should make presen- tation of him. The governor and council were authorized to suspend and silence any other persons assumin.^ the functions of Ministers of the Church of England. This jurisdiction of the Governor and council is supposed to be taken away by the subsequent erection of this and the ad- cent provinces, into an episcopate, of which Halifax is the cathedral church, and Nova Scotia' the title. The second II IP ' nooK. 1. — riiAPTF.n vfh. clause of ,1,0 ac, provided ,l,a, protcstan, ,lis,c,.,crs of all .leno„„„a.,o,.s should have free liberty of conseien e a,ul ™.gh erect and build ,„ee,i„g houses for public wjrsh' and ehoo.em,„istcrsfor performing divine s'rvieo leetd- men 1h °'""'""'' '"'' "°"'"'"^ ''<="'<=™ ««=« clergy- men and eongrega„„„s were declared valid, and all such d.ssen,ers were declared to be excused from rates" ,axe for the support of the established church of England and lese prmleges are all declared to extend to ifoman c". thohcs, by act of 1827, 8,G. 4. c. 33. The five Zaininl 1.C Wo sh,p, and have been since entirely repealed.* The to»nsh,p of Halifax was erected into one parish un- der the name of St. Pauls, byac. ,759. aa.G.a.'c. fs ". aa of .»>7 °"^P""°f """^ ^=' off into another parish bv act of 1827 8 G. 4, c. 30. under the name of St. Gcorse's The act of 1759, 33 Geo. 2,e. ,0, directs the governo and counc, to set off new parishes on the ereeticf ofTew churches, chapels and places of worship of the E.,g I rishof^. ^"Sulafons were originally framed for the pa- wl „ I "^'' T/ """"""^' "•"'"'"' "'Witions, ami were made general for all parishes. The following a c the acts on this subject : *" 1759. 33,G.2.c. 3. 1, P. L. 49. ) do- c" 10. . 55 J 62. J 170O. 34, ,. c. lo! T&- 8,G.3.c.l. 1812; 52, G.3?ses.t"'c.'i5.2.P.L.'92: \ Under these acts, the parishioners meet in each parish the,r twochurchwardens and twelve vestrymen. Notice mustbeg,ve„ totheparishionerspreviously. The church warde_n. and vestry are eatitk-d to exercise the powers of 11, G. 4 c 1. ^ abrogated. See also relief bill, 1830. LAWS FOn TlIK PRESBRVATION OF llELiOlON. ISiJ the same officers in England-and Jmve corporate powera to hold lands, receive donations, and collect dues. TJioso elected to be officers must serve or pay X5 (each) fine. The parishioners by a majority of votes may at their annu- al meeting vote money for the support of their minister, to be levHjd in half yearly payments assessed according to their abilities to pay At quarterly meetings on the first Mondays oi March, June, September, and December, they may in like manner vote money for repairs of the church and Its usual furniture, ornaments &c. for salaries of or- ganist, clerk and sexton, and clerk of vestry. The church- wardens and vestry act as assessors, and collect assess- ments, and three other parishioners named by the parishi- oners assess those officers. If rates are not paid after a month s notice, the churchwardens may on affidavit of no- tice obtain a warrant of distress from one Justice of Peace to enforce payment. The parties may appeal to the next sessions, and the decision of the sessions is final. Tho ministers may sue the churchwu/dens for tho monies they have received, or neglected to receive for the use of the mi- nisters. By the act 1759. 33, G. 2, c. 2. 1. P. L. 48. Qua- kers arc permitted to make solemn affirmation where an oath IS required by law, in the following form z— " ^ i^ ^•)f'' '^'•''"'J'' sincerely and truly declare and affirm which is to have the force of an oath in law, ox- • cept that they are not to give evidence in criminal causes and It has been thought tliat they are disqualified from acting as grand jurors, though they have sometimes sat.- Ihcy must have been of that persuasion for a year before to entitle themselves to the privilege of this act, and if guilty ofaffirming falsely incur tho same penalties as if tjieyhad been sworn. Many difficulties were felt by dis- JVotc.^X frrant from one of the early governors cives to the minsters of St. Paul's O-lOths of the pew renter his ?ifax " regiH^ered m the registry of Deeds at Ha. i84 BOOK I. — CHAPTER VIII. senting congregations owing to the want of corporate powers to hold lands and manage the temporal concerns of their churches, to remedy which, nn act was passed in 1828, 9, G. 4. c. 6. comprising a code of regulations on the subject of which the following is an outline. Sec. 1 . Any religious society or congregation within the province contammg not less than 20 members of legal capacity to contract, may establish themselves under the act Vo forni their society under this act, they are to execute a deed m writing under their seals and signatures attested by two or more witnesses. This deed must be entered in a book, to be provided and kept for the purpose by the So- ciety, and (by 2d sec.) it must be registered on the oath of the subscnbmg Witnesses, in the county or district regis- try where the society is established, and the registration certified m writing by the registrar on the deed. In this deed they must « declare and constitute themselves, and each and every of them, members of a congregation ^^ of christians, for public worship and other religious pur- " poses." It is to contain a name or designation for the so- ciety, to declare the place where it is established, and the sect of christians with whom it is connected, or chiefly as- similated. It must name two or more members of the so- ciety to be trustees, giving them a name of office, and des- cribe by metes and bounds, the lands and tenements convey- ed to the congregation, or to any in trust for it, or held and enjoyed by it either as the site of their " church, chapel or place of meeting for public worship," or for places of interment, or for the residence of their pastor, or for a glebe, "or for the support and maintenance of the said « congregation and the ministers, officers and members thereof, or m aid or support of other lawful objects " connected with such religious establishments." This deed IS to contain as much of the constitution of the socie- ty as the parties think proper j » but particularly the mode " by which future members can or may be admitted into liKLirjiox. 18C •« such congregations, and by whom tlic right of voting at " its meeting shall be enjoyed, and how the votes of the " members shall be ascertained and given, and the manner " m which all vacancies in the trust shall be from time to *' time supplied." ^ Sec. 3— This deed having been registered, all the pro- perty moveable and immoveable of the congregation as a society, and all its claims, securities, legal instruments and documents, connected with property real or personal, are entirely vested in the trustees and their successors for the use and benefit of the society, and shall be stated and considered as the property of the trustees, by their name of office in all proceedings, civil or criminal, both in law and in equity. Sec. 4— Authorizes the trustees to sue or defend in any actions or proceedings, civil or criminal, in courts of law or equity, where the interests of the society are concerned. The death or removal of trustees not to cause any cessation or suspension in proceedings, nor to affect the payment of expenses or damages. Sec. r,._T,imit3 the possessions of such a society to £2000 per annum, in landed estate, and £10,000 capital m money, securities for money and moveables— and gives the society power to sell, let, use, apply or dispose of all their possessions as they think proper. Sec. 6._The congregation may meet whenever and as often as the members think proper; and by majority of votes, may adopt and alter rules for thcit constitution and government, choose trustees, supply vacancies in the trust or remove trustees, and generally conduct the business of the society. These meetings must be previously notified m conformity to their rules, and a chairman must be cho- sen at each meeting, and all the proceedings of the meet- ing must be duly entered in the books of the concrecation. VOL 24 ':u£«MqV 18G n(M)K I rilAPTKH Vllt, Olid signed hy the chaimmn and by the clerk ol the luccf- ing. Proof of such entry so signed, shull be deemed sufficient evidence of tho proceedings and of the rogulttriiy of the meetings. Sec. 7.— Directs members admitted, after the deed of constitution is registered, to execute ii in the presence of two witnesses, before they can bo considered members. Sec. S.—Directs land held in trust for such a society, previously to its formation under this act, to bo transferred to the trustees named in conformity to thia act, and vests It when so transferred by the old trustees or their survivors, or such of Ihem as remain in the province, as fully as if all tlio original trustees had transferred. Sec. O.—Tho trustees under the orders of the congrega- tion voting by majority, arc empowered to grant, sell, mortgage, lease or convey real estates of tho society. The instrument must be executed by the trustees in their names of office, and signed by the chairman of the meeting, at whicn the act was directed to be done. Sec. 10.— The trustees are authorized to enter into written contracts with ministers, chosen by the congrega- tion, for such salary and on such terms as shall bo agreed on. Sec. 1 1 .—The chairman of the meeting and the trustees are to cause the contract with the minister, to be register- ed m the county or district registry of deeds, on the oath of one of the subscribing witnesses. On its being registered, the mmister is to be considered as the settled incumbent. Sec. 12.--Whenever the funds of the society in hand or disposable, are inadequate to meet the claims on the rustees, the majority by vote may empower them to assess the amount on the members and collect it. It is to be assessed and voted according to the societv's rules on the subject^and the trustees may sue for the 'separate rate of iii:i.i(.iON 11:^7 each inoiubor, bcli.it; any ami ((.mputonl, Miit may U brought nKuiimt (ho im-mbcr hiiuHcir or iiKuiiiHl IiIm lopro- NCiitalivoH coiijpotont and lioblo. Soc. 13 — ThiH net not to air.icl or loHHon tlu» Inwg or privileges of tlio cliurcli of JlnglumJ, in thiH |)rovinco. • Tlioprovii,einlarl,»fl8;i(). li,(J.^.c. I. enaeiH nee. 1. that " it Hhall not be re(|nire.l oC«»»/ ol InH Maj.^Hty's Hub- •' jocts within this province, to make or HiibNcribo the wnid •' dechiration" [viz. the " ,leehnali..n again.sl tranwnb- " stantintion, and the cU'chirntion against tranNubHlanlin- " lion aiitl tho Invocalionof mni\H and the Haerifico of tho " Muss, as practised in the Church of I? onie"]—" or either •• of thorn 08 a quuhfication for sitting and voting in tho ♦• general assembly oi'Uiis province, or Ibr the exercino of ** nny office, franchise or civil right within the Haino." Soc. 2.— Enacts that a roman catholic mny sit in cither council or assembly, on taking and subscribing tho oath directed by the 2d and IJd clauses of the catholic relief bdl. Imperial act JO, G. 4. (vido appendix for tho oath) "mstottdof the oaths of allegiance, supremacy and nb- " juration.'' Sec. 3.— Authori/CH roman catholics to hold " all civil " and military offices and places of trust or profit, in this " province, under his Majesty, his heirs and successors, " and to exercise any other franchise or civil right, upon " taking and subscnbing the said oath" &c. instead of the former oaths. Sec. 4.— Excepts tho oaths of office, which have no re- ference to religious tenets. Sec. r>.— Aiithorizes the administration of the new ooth by the same persons «fcc. ns former oaths. Observation of the Sabbath. The provincial act of 1761. 1,G. 3. c. 1. 1,P.L.64.G6. expressly forbids the exr^osnrn nftrnaAa f^r anl« «~ j -ii u. 'V1';»V-S ,7W1"> ) uiivi ait my- IPM hooK I.— » MMrrc nil. inff«n.lsrllin;i on thoLonl'i ,!av .« clri.Mlv |Molnl„h..|. u.ifi llio rtrrpn.Mi oliinlk nml liv«|, iWi. ,v|ii.|i nmy lio i.ol,i on Siuuliiys »M'roi,> \\ „Vlo,'k m ih,. moMMr,^. nrul aUrr ft ••VIork in llu' oOnnoon. All lal»>r oi |..iMmii.< on (||o l.onl's .!«> is uIso proliil.it.d. Kvoiy ollrn.i.-i nir.nnM tlio ««Mv^oin.^ mUnxH IimI.I.' loi rarli olii>...MMo lO-i. liiir, ..ii ronviotion holoro ono jiiMico ..Ipnu n tli(< otttti olonr .•rcMlil)lo^^illM-s^ onipon !iiioun vi.nv. 'I'mv.-im lur|.MM„n,| olhrr li(|iioi soll.MN mv foil.uNU.n to sutrn |li<. inlinhitnin« ot'tUv plaro to sptMHl fluMi- liinc in ilirir luvirs, and if dt>n.,-d .-ntraiu may break in ; prr«on« rolksing to aid thorn in this romprot aro snl,|,.ct 1.. !('«. ptMialty lor every uculoot. A penalty ior non atfendan.^o on public wor.slup ior tluvo nu)nilis (unI<>sN sieknrN.s 01 necessity prevent.) of lOs. r.,,- «veiy Inad ol a tiiinily iuid :.8. lor every eliild or servant, ree.)verable b.doni .)ne justice, who i.s eiiipouer«ur.i, nor Icsr than 2-1. This act is to l)c publicly read at every Uuar- ler Sessions arter the grand jury arc sworn~.nnn all public places olworship in the province' imm iirtnllT'll. :n.r wmr, „|, „ m|.iii(.i.mim I|(|ii..ih rnixf* ur iiimiixoil, )•> uii iiiiiiiiini -iIh.vc r.w, iiiimI«|)iiviiI nl rcin.xly Mi law, miij m ,„|iii|y, ii^,„„m iIik jioirliiMrrM, tlinr ••xmMili.iH or uiliniiiiMlriitorN. irplndgiH iii« liiKni I..1 any «urli justico may roinniil lor a inontli |.> ,jrunl or nnlil tlio nnionnl in paid ; llm jMiniilly t„ g„ u, ij,,, poor (.f tlio plaoo. 'IVavollcTH and hoardcrH not to Im, allljctcrl hy thn act. It niiiy bn widl undor lliiM li<;a<|, loallndo (o tlio p./nultioN im- poHcd on pcrHoiiM purclui.sin^'; l- *i / , ., - - r— -j-'^v j^iiG xOi ver it from the winners with CHAItlTl'. m costs, by action of debt under the act, in any court of re? cord, according to a short form prescribed in tho act, with- in one month. If the loser does not sue in a month, anv other may sue within the next month, in which case half goes to the prosecutor and half to the poor of the town or p ace. The parents, guardians or masters of persons under 21, niay sue for them in the same manner, and recover tre- ble the amount with costs. A penalty of five times the sum won, IS imposed on persons winning by any kind of fraud m play, recoverable by private prosecution in an ac- tion Any two or more justices of peace, may enter any public houses suspected of keeping gaming tables, and if any are found, order them to be removed in 48 hours as nuisances, on refusal or neglect they are empowered to break and prostrate the gaming tables, and to require se- cnrity for good behaviour during 12 months, from the keep- ers of such houses, or for their appearance at the next quarter sessions to be prosecuted for their offence, on con- viction to be fined or imprisoned as the court shall direct. Charity. Poor Laws—Uhe laws to afford public relief to the poor were consolidated into one act in 1823, 4, G. 4, c. 6 3 V L. 149. The following are the regulations of this act. It directs the freeholders of every toimship (except Halifax which IS not included in any part of this law) and of every settlement or place not comprehended In a township, and contammg txvcniy or more freeholders resident, to held two meetings annually if necessary, on the first Monday of April, and the first Monday of November. Twenty days before the day of meeting, the overseers of the poor are to issue thcir precepts to the constables of the place, who must give ten days notice of the meeting. At these meet- tngs the freeholders present are first to choose a chairman and then to vote such sums of inonev ns thov u.a^^ ^_^ ' ary for the support of the poor during the current year, or the hall year ensuing. If the business cannot be complet- 1912 HOOK I.— "ClIAPTIiU VIM. fn\ on the day of meeting it may be adjourned by vote of the majority to another day, to conclude it. If the sum voted prove insufficient, the next meeting may vote a sum tocovei the deficiency. If tlio overseers neglect to issue their precepts, they are each to forfeit £10, to bo sued by the clerk of the peace or by any private person, before any court of record in the county or district. If the freehold- ers do not meet and make adequate provision for the poor, tho sessions general or special, on application of the overseers, are empowered to amorce tho place in a sum sufficient for that purpose, and to appoint five assessors in the same manner as the freeholders should otherwise do. At the freeholders meeting five of their number aru to be chosen msessors. The assessors must be sworn, three of them arc a quorum. They arc to assess the inhabitants of tho place according to their known estate, real or personal, to make up the sums voted. They are also to appoint tho collectors of tho poor rates. If they think any person can- not pay one shilling annually, they arc not to assess him. If an assessor refuse to serve he is to pay lOs. fine, reco- verable by the overseers, before two justices, and to be le- vied by distress, and another is to be appointed in his stead. No one however is to be compelled to serve as as- sessor, more than once in three years. The Collector who refuses to serve is liable to the same fine a^ an assessor, re- coverable in the same way. The collectors are to account every quarter with the overseers, and pay over to them tho amount received. Il they neglect to do so, tho overseers may sue for the amount in any court of record in the pro- vince. A collector neglecting to act for 30 days, after having accepted the ofiice, forfeits £5, to be sued in the same way. They are to sue all persons not paying their rates, before any one justice of peace, to be levied by war- rant of distress, and these arc to be levied, notwithstand- ing an appeal. The Overseen of the poor, wiio are appoint- ed as aiiocidy described in the catalogue of town officers. "^•g^KfJ'a?/" tUic POOR. 103 we each habic to £5 fine, for refusing to «ervo, recovera: ble before two justices, by the overseers who shall beino^ fice next after such refusal. They are to be sworn to dL. chargethe.rdut.es. They are to issue precepts for the town mcet.„gH, to receive the accounts and money from Z CO lectors quarterly. They are to prosecute asLssoTsor ollector« ,efus.ng to serve, and also such collectors as fa' account and i^y over regularly. It is their special du ■ ty to d,spose of the lunds received by them for the support of the poor. They are to enter all their proceedings fn a book kept for the purpose, and at the expiration of their office they are to deliver this book and any balance of mo- ney m hand to their successors. Within one month after the.r office exp.rcs, they must render to the clerk of the peace of the county or district, an account of their receipts and expenajtures, to be laid before the next sessions , L they are obliged to account on oath (if required) at the next quarter sessions afte. their office expires. The ses- sions are authorised to audit these accounts, and to pass or reject the.r items on reasonable grounds for adoptinir or reject.ng them. All overseers neglecting to render their accounts to the clerk of the peace as above prescribed may be sued by him or any inhabitant of the place, for £5 each, fine, wh.ch is to be levied by Warrant, under the hands and seals of two justices of peace. It is also the duty of the overseers, to complain to the sessions of the county or district, if the freeholders of their township or settlement neglect to make adequate jjrovision by votes for the sup- port of the poor. The overseers are also empowered to demand re-payment from any persons who have received relief, and who were at the same time possessed of or enti- tled to any property real or personal, and if necessary to take legal steps to recover the amount: which they are to give credit for, when recovered in their account with the tOWnshin. Thn nvpre^nra ara nla^ A'.^^^i^J ^- --r i . . •»=%.- «icv «jic^,icu lu rciuna lo persons who have been overrated, upon receiving an order voii. I. 25 104 HOOK I. — ruAPTrn viii from tlio gciieiul oi s|)coiul Nossioiin, lo tlm( olloi I. Any persons who think thomsolvcs ovcrralodin [uoportion li) others, may nppcnl (Vom the rnte, to the next gonornl hoh- sioiis or iho next sessions specially held to hear those np- pcnls, nnd the justices nre enipo\\(ie, & f>7, G. 3, c. 9. 3, P. L. 1).~1817. The description of persons for whom each township or settlement is bound (o provide is specifically fixed by the oct of 1 770. Thoy must have been born in the place, or have servi-d an ap- prenticeship in it, or must have lived in if, as hired servants for one year, next previous to their application for relief, un- der on agrement to servo for a whole year (the agreement is required by the act of 1817,) Tho children of parents who have gained a settlement.— TJioso are the elassesof persons who are declared in the act of 1770, to be entitled to a set- tlemcnt. To prevent towns from being improperly burthen- cd several other regulations are given. The 5th section of the act of 1770, enacts that the parents, the grandfather and grandmother, the children and grand children of thoso in want shall be, each one, obliged to relieve and maintain riKtinABs ANn vA(jn,mTR. lOfi :). llmni, wlirii |KU)i-, ol.l, liiiiio nii.l iuipotonj, nl ll.oir privnto cx|»(>iiN.«, ill Kucli tiiiiiiiior iimhIkiII bo dirwIcMl by llio justi- cos ill llioir .umiloi HOflHions li>r (|,n vminiy or diHlriol, nn- ilorpoMuKyolOH. awunldor ovory porBoii ro ordoro'il to l)u i(ili.,v(ul, wl.il,. (In, „r,l,3r is no^ Inclo.l, tu l,o rncovorod "rnflio uHunI iimiiiinr." Il iH iiIho dirooKMl tinil. wlioro niiy JiHMlmiul or liiihor IbrsnliOH Urn w\(vmu\ cliildroii, or vvl.oro a widow IbrrtakoHlior childron, and leave, bnliind tlioin pro- l»Mly rnal or personal, llio ovcrBnors oCllio plaeo arc to np- ply folwojuHlicoHof poaro wIioho wnrrani signed mid Hoidnd will anil.ori/.,, li.eiii to Hoi/.n tlio porty'n goods, and chnttelH, and to lot out liin r.al <-Htatn and roeeivo tlio ronlw, nnd on llio allownnro and approbation of the «jnartor «o«- NioiiH to Holl il,e whole or part of tlio personal property No.7.ed, at auction pnbliely, and to apply the prneeeds of inntsand ^oo.ls I.Hi.e Hi.pportortlie children left destitutn, fill. Hortion, act of 1770. ()„ eoniphiint of the overseers nny two justices of peace may bind out any persr.ns fomid iH'gging or strolling about, for any term not above a year. If any person apply for relief who has not a legal sottlo- inent in the place, bnt belongs to «omo other townsJiip, ho IS to bo recpiircul to make oath before a justice of peace of Ins last residence— ho is to be relieved, and a copy of his allidavit certified by the justice who took it, ami nn ac- count f)f the expence incurred in fluch relief to bo transmit ted in a reasonable time, to the overseers of the place ho belongs to, who are to bo cliarg(Ml with all oxpenco, in- curred on his account, act of 1770. ;{. sec. act of 1 80J. I St section. Townships or individuals thinking thcmsolvoff aggrieved by any act done under the act of sottlomont (1770) are by the 8tli section, allowed to appeal to the next Quarter Sessions, who arc to decide equitably, and their judgment is to be final and binding on all parties. lieggnra and flagranti. The act of 178-. 38, G. 3. c.O. sec. 6. J, P. L. 200. ion lUlUK f.— OllirTtu VIII. rMi|Mmrr«nny |lur.< piMirrpi oC portrotu rxmiiitin all din. onlnrly mi.i hrg«,uly |.ri«on« liMiiul Mrollin^ in ,u,y ,,„rt «l tim |in>vinrn, hihI if il„.y „„, „„„|,u, ,„ ,i,^,^ „„y ^.j^j,,,^^ im>m.«tl,oy powwolnMniniii^a «oIh.| nii,l hoi.n.t livnli- '"»•"•. 1<» ron„„i, HuMii In Iho noxl jnil or I.M.Imvrll. ,„„{ Ijrovhio (hoMi m. ninpNiyoi-, nnn.nl,KHn.onioju.tiooorthopoaoo. ...'ihllso C^U. pas. us to Htato tho plaoo (Von. ulnol, (ho in.livi- ^I"al,loparls.«n,lthoplaooo(his.lo.iination. or oInMixMi upon any township. rkmu!:;:^;uh !? ' ^ '"■^"''" ''' ' "• '"^"> ""^' '--c thoir iHinuics oil tho township. (itl,.-lVm„„ „ |,„ |,„vo IHH-,. I..g„n,. „,,„.,„,| , „„,„, .oI« .'T "":"'"« "" '"" '"'"•""" "■"«"" "'■■*« • coj-Uhcatofroni lim inuM.-!.;...- -I. . j . - * * ii».(Haim AND VArmANTn. 107 7tli. — PnrNoiiM who, not linviiiK wlinrowilli lo iniiintniii lliom«r«lvnH, livn idin luid rn('ii«n Ut worit for llm tinuul w««nN. Hlh. All \mmmn ^jtnmn "l»<»"» •«» l»"K nliiw. Tlio«o who nin int'liKlpd in ih,, /|(|,, Mli.fUli «V. 7lli dHNNON urn mjhjoctr »nl lo iiii|)riMoiiiii( tluui forlhr.iniing :— tho jiislico or jiiHti- Cf'H aro looxaniin.j lIi.? parly ho charg.Ml bof.»ro thoin aw to tho placn wh.-noo ho oanm, Iiih hiNt l.!gal wottlomoiit and hiH niannor .)f livolilH.o.l. TIiIh oxamination in t(. bo coni- inittod to writing, and Higimd by tho oxnrninod and by tho justico or justi(30H, and th(5 luttor aro t.> transniit it to tho RosHionH noxt oiiHuing, wlioro it iM to bo filod ami kopt on record. In <;aMo tho party thusoxamincd can make it ap- rmar to tjirj !ijMticn>i at ! «?- V .^tijiuiiawuii, t.fmi jiu IB noi a ao- *orter and that ho hai a lawful Vvay of getting his liveli fp^J'T'lp- 106 nOOK I. — ClIAI'Ti;|i VIII, hood, or If J.0 can procure sou.., rcponHibl. l.ousekconor to np,K,ar to I.ih character and givo security for hi« appear- once be ore such justice or justices on some future day if ro<,u,rod. then the proceeding against him under this act appears to close; but if he cannot do either of these things they arc to commit him for a term not exceeding 14 days' and in the meanwhile to order the overseers of the poor of the place m which ho was apprehended, to cause the cir- cumstances of his apprehension to bo advertised in the newspaper8--specifying the place of his confinement and the time and place of his re-oxamination. If at the re-ex- am.nation no accusation bo laid against him, he is then to be discharged. Constables are bound to apprehend all vagrants, and by tho r,th section, constables, jailors or other inferior public officers, not doing their duty in tho execution of this act, and private persons who disturb the execution of the act, or rescue offenders apprehended un- dor It, or assist them to escape from custody, arc liable to a i>cnalry not exceeding £5, on conviction before one jus- t.ce,onthe oath of one credible witness, to bo levied by the justice issuing a warrant of distress. If suflicient distress cannot be found he may commit the offenders to prison or to hard labor in the house of correction, for a term not ex- ccoding two months. The Gth section imposes a penalty between 10s and 40s on persons knowingly sheltering deserters or vagabonds' recoverable as the penalty in 5th section, and a month's' nnpnsonmcnt is imposed, where they have not goods to be distrainecl for the fine, but if they have been punished un- der tJie English act for sheltering deserters, they are to be free from this penalty. Indians. An act of 1762, 2, G. 3 c '^ i P T -yo ^, *, vj. o, c. c>, 1 r. L. 7S, requires tlm Governor to cause the attorney general to prosecute in a summary way in any of the courts of record, all persons - j3 ..... ^,,a.^,^ in ineir irade anu dealings, and an EDUCATION. too ttct of 1829, 10, G. 4, c. 2% uuthoriHCs tl.o schhIoiis in each county ant) district, to inuko, andulter whon noccsBary, re- giilationH to prevent the 8a)e of Hpirituous HquorH to In- dians, and to enforce them by pcnaltiea not exceeding 2()h. for any offence. The ponalticH may bo recovered before one justice, half to go the prosecutor and half to the /;oor Indians of the place. Oflbnders may be deprived of their hcensc at the discretion of the sessions. Any two justices of peace may order any teacher of a school receiving pro- vincial allowance, to receive and teach Indian scholars mule or female gratis. Disobedience forfeits his allowance or salary from the public for that year. Education. 1. Common Schools. — A temporary act of 1828. 9, G. 4. 0. 2. combines many of the rules which had been pre- viously acted upon with respect to common schools, digest- ed into a system with some more experimental provisions. This act allotted a sum of £4000 annually for 3 years then ensuing, as bounties for common schools, and established the principles on which they were to be conducted. The governor is authorized by the first cltiuse to appoint in each county and district, five commissioners to superintend schools. These may be removed at pleasure, and the vacancies filled by the governor. Sec. 3. — The board of commissioners of whom three arc a quorum, divide their county into as many school dis- tricts as arc necessary. The board is to enter the school on their list, and to appoint one, two or three trustees to each school district, where the people engage to establish and maintain a school of fifteen or thirty children for a year, and to build or provide a school house, and keep it in repair. The trustees are incorporated to sue and to be sued in all mntfnrc rnlnfinn' trx iUr, c.^l.rvf.1 1 ^1 , -- .„ s.^ ^.j ^„^ oL::vOi, ailU lllVy iirC lO to make engagements with the teachers. 200 BOOK I.— CHAPTER Vllf. Sec. 5.— Whenever two thirds of the rateable inhabi- tants of a school district, agree to be assessed for support- ing a school, this binds the district. Sec. C — The board of commissioners may remove trustees, and fi'l up vacant trusts. Sec. 7 — All teachers of schools must be licensed by the board of the county, under penalty of X20, recoverable by the clerk of the board in the Supreme or Inferior court in the county, half to prosecutor and the other half to the board for the use of the general funds for schools in the county. Sec. 9. The trustees are to make minute returns annu- ally to the board of the state and progress of the school and itsexpences, &c. Sec. 10, which must be correct, un- der penalty of £20 on each trustee. Each county's share of the £4000 is specified in the act by sec. 2, and certain rules are given in sec. 1 1 & 12, to guide the commission- ers in subdividing it into small sums!, to aid each school established in conformity to the act. Sec. 13. The clerk of the board receives 5 per cent on the amount of monies passing through his hands. Sec. 14. The board of each county are to send a re- port to the secretary of the province annually, for the infor- mation of the Governor and of theLegisFatuie. Sec. 15. The board is also empowered to displace tea- chers, annul their engagements with a school, and with- draw licenses to teach. The board must take security from their clerk to account. Sec. 16. The governor and council are directed to fur- nish all boards, trustees and teachers with general instruc- tions for their guidance, which must not be repugnant to the act, and are to be issued from the secretary's office. These are the principal features of this law. Had it been PtTmanent it miffht havfi hpon nrrknor ♦« ^o'^" ~;- — -n:^, C _ ^ ^,.,, ._,^ s.UTU given nil llS details here in full. But many of its enactments are to be Schools. SOI tliud and tho luws on this subject have been so oAen and so suddenly changed, that until they acquire more sta- bility they can hardly be considered a part of our code, (A new act on this subject is now under discussion in the aa- •embly.) From the importance however, of ihe subject of education, I should take leave to recommend to all per- sons connected with schools, whether as commissioners, trustees or teachers, and to those magistrates and heads of families in the country, — to whom the subject is of para- mount importance, to be furnished with a copy of the laws and instructions, which may from time to time be passed on this subject. School Lands. The act of 17GG, G G. 3, c. 7. 1 P. L. 120, after stating that his majesty had been pleased to order that 400 acres of land in each township, should be granted to and for the use and support of schools, enacts " that the said quantity " of lands shall be vested in trustees for the said purpose, •• and such trustees shall be and are hereby cnabied to sue " and defend, for and on behalf of such schools, and to " improve all such lands as shall be most for the advan- " tage and benefit thereof" Schools at Halifax for common education. There are three of these, to each of which the school votes have generally given £100 per annum, and the tem- porary school act before described continues that grant. The oldest is the Acadian School set on foot in 1813, through the indefatigable zeal of Walter Bromley, whose name as a philanthropist and a lover of Nova-Scotia, will long be cherished. It is on the plan of Joseph Lancaster modified by Mr. Bromley, and has afforded elementary instruction of the most useful kind, to many thousands ofourycith of both sexes, and its establish- ment marked an era of moral and intellectual chan"ft in the body of our native population, who were before most roL. /. 2G 202 BOOK I.— CHAPTER Vlll. destitute of the menns of instruction, especially in the ca- pital. The building was crocted by subscription. It was followed, filler an interval of somo years, by the National ichool, on the Madras sysicm, under the superinteiidance of the English church clesgy, and by the Catholic school, conducted luider the care of the clergy of that church in Halifax. SCHOOLS or A HIGHER KINn. The colleges and grnmmar schools which liave been endowed permanently, are established by acts of the pro- vince passed at diflerent times. 1. Schonl of Halifax . The earliest act of this kind is that of 1760. 20, G. 3. c. 3. 1 P. L. 220. Tiiis act directed a sum of money to be employed in erecting a public school in Halifax. The sum of £1500 appears to have boon raised by lottery ii. the town, and from the necessities of the then provincial government it was applied to diflerent purposes, but a piece of ground and a wooden building which had been used for the meetings of the legislature, was subsequently assigned to the school in lieu of the money.* The same act en- dows the school permanently with jClOO per annum out of the provincial treasury, of which the schoolmaster is to re- ceive £100 and the usher £50. f It autHorises the gover- nor to name five trustees, one to be a president and the other four arc called directors. They are incorporated to hold lands, &c. and authr>.ized to make every regulation and arrangement. Ti..s a<:t was an.cided in some points bj^temporary act of 1811, 51, G. 3, c. 2, P. L. 62, which thlfoH li'°J°"'"""'« ?^t''« nsseinbly and the older copies of ri nWnf.5 w r"'"'' "' "^^""^^^ at that time, and not^ince Msembly ' "' Preserved in the library of the house of U9hw'!rifiO°hlT«*^'''^f scholars, to entitle it to the vsner s A6U bv the iifat not Km» <>n o^i.^i : ^ • act of 1811 ' "' """' """ '^•' '^""*"*'" suiiicicnt unaer WINDSOU rOLLBGr. 8oa has been contiiuiud by several acts and will expire in 1832 if not renewed. By the original act the trustees were an- nual, but by the amended net, hold their officeg during plpasure. 2. College at Windaor^ The next establishment in point of time Is King's Col- lege, Windsor. By the net of 1789, 29, G. 3, c. 4, 1, P. L. 2G8, a permanent appropriation of £400 sterling P'r annum, was made by the province, in order to esta- blish this seminary, and a grant of £500 was made in the same act, towards the purchase of ground for its use. The following public officers were made ex-officio, govemori ofthe college, viz • the governor, the lieut. governor, the bishop, the chief justicn, the provincial secretary, the speaker of the house, the attorney general, and the solici- tor general,— and their successors in office. They were also invested with corporate powers, under the name of the governors of King's College, Nova Scotia, and authorized to make by-laws and nominate the president and profes- sors, to have a common seal, sue and defend actions, &c. It was directed that the president should be a clergyman ofthe established Church of England, a charter was after- wards obtained from the crown and statutes made. The archbishop of Canterbury, for the time being, was appoint- ed patron by the charter, and the bishop of Nova Scotia, visitor. His majesty's government have granted L.IOOO sterling a year to this institution, besides the provincial grant ; and divinity, and other degrees are conferred in it. The governors or the majority of them, at any general meeting, can make statutes and by-laws, and appoint the president and professors, appoint officers and servants and fix or alter their salaries. None of the teachers, officers, &c. can be absent, unless sick, without leave from the go- vernors, who may appoint deputv oresidfint. nr Wpnnf v nro. fessors, in case of leave of absence, and appropriate part of the principal's salary to the deputy. •y M BOOX I. CMAPiEn Till, 3, ,/3cademy at Pictou. A college regulation at Windsor Avhich Ims been re-, cently repealed, required persons seeking degrees t! jre, to subscribe to the 39 articles of tiie English church. As this rule operated inconveniently in some cases, in a pro- vince where the people arc divided into man} religious eects, the Presbyterians, who are numerous in the eastern parts of Nova Scotia, obtained in 1816, an act of the pro- vincial legislature lor founding an Academy at Pictou. By this act (50, G. 3, c. 29, 2 P. L. 217, amended by act of 1819, 59, G. 3, c. 15, 3 P. L. 54.) twelve individuals of that persuasion were incorporated by the name of « Trustees of the Pictou Academy," vacancies in their number to be fdled up by the trustees, subject to the veto of the governor. The trustees to be either belonging to the English church or the Scotch Presbyterian church, and the teachers to be under the same restriction. The rules and by-laws to be made by the trustees, subject to the veto of the governor. This institution which was very popular at its outset, appearing to be a relief to tender consciences, received large sums from public subscription, and for eleven years obtained annuallv from tiie votes of the legislature a sum of about L.400. "it was carried on as a college, lectures in divinity given, and the education (to the pupils) was almost entirely gratuitdus. The mode in which It was conducted gave rise at length to much con- troversy, and the trustees having refused to place it under more direct control of the provincial government, his ma- jesty s council have for some time negatived all applica- tions for money in its favor.* 4. College at Halifax Under the administration of carl Dalhousic, a proioct was entered into of establishing a college in the metropo- lis, modelled after the university of Edinburgh, in order ^.J^ An act has passed 1^*32, setthrig ,).is .ffair. Sec nppon- HALIFAX COLLE«iB. 205 that the youth of the town intended for the higher walks of life might attend lectures, without the necessity of college residence, or absence from parental superintendance. A sum of L.9750 currency belonging to the crown was given by his late majesty Geo. 4, towards the undertaking, £2000 was granted by the province, to which a loan of £5000 from the provincial treasury for 5 years without interest was after- wards added.* Of these sums. L5000 was invested in the purchase of L.S289 9 6—3, P. C. Consols for the use of the college, and the residue being L.11750was expend- ed in the erection of the building, the provincial govern- ment having given up a large space used before as a pa- rade, in the centre of the town, and containing above an acreofland which was granted to the college. The act of incorporation was in 1820, 1821, 1 & 2, G. 4. c. 39, 3, P. L. 1 1 7. The act made the following public officers for the time being, governors cr-offido, viz : The gover- nor general of his majesty's North American dominions, the lieutenant governor of Nova-Scotia, the bishop of Nova-Scotia, the chief justice and president of council, the treasurer, the speaker of the house, and the president of the college itself. The college was to consist of chairs for classical learning, for natural philosophy, and for mo- ral science. To these three, the governors might add at their discretion ; the governors have power to maJvc rules, and his majesty is authorized to name a visitoi- from time to time. Owing to causes not tlioroughly understood, this institution has never gone into operation. 6. Academy at AnnojioUs. The act of 1828. 9, G. 4. c. 11. in force for five years, authorizes the governor to appoint three trustees, to con- firm by-laws, give instructions, and replace vacancies, and exercise all the powers of a visitor. (There was for ncveral years a law, granting in eaqhcountv, £100 a vear See act of 1823. 4, G. 4. c. 7. 3, P. L. 1 53. 206 BOOK I. CHAPTER Vlir. for a grammar school, but it was found to be then a pre- mature measure, and was in consequence abandoned.) Addenda to Chapter on Education. Common Schooh.-By the act of 1828, there was granted by sec. 2 the sum of L.4000 a year, for three years, to be paid to the governor for the use of common schools, divid- ed thus : Districts-of Halifax, L.200 j Colchester, L.333 • Pictou, L.356 ; Counties of Annapolis, L.390 ; Kin^'/ L.366 ; Hant., L.333 j Shelburne. 1.366 ; Queen's, L.266 •' Lunenburgh, L.360 ; Sydney, L351 j Cumberland L.266- Cape Breton, L.413; besides by sec. 17, L. 100 each to' three schools in Halifax for common education. Sec. O.-At the end of each year, the trustees of each school are to make a return to the commissioners of the county or district, of the number, names and ages of the scholars,-their progress in education; the amount and particulars of the expenditure of the school, the amount of the master's salary, and the manner in which it is paid and that he really and bona fide receives the benefit of the' provinc.al allowance, and that the engagements made to the board by the inhabitants have been fulfilled; and they are also to send the board a certificate frojn the teachers, that the salary stated is real, and not nominal or collusive. Sec. ll.-Directs each county or district's general sum to be subdivided thus : L.50 to help inhabitants to obtain temporary teaching, (who cannot keep up a school of 15 scholars), under regulations to be made by the commissi- oners. The rest of the money the commissioners are to divide among the schools entered on their list, under sec. 4th according to their direction. Provided no one school ot 30 scholars or more shall receive in the year above L.20 and no school of 1 5 to 30 scholars more than L. 1 5. Pro- vided always, that school, receiving the allowance are to SCHOOL AT HALIFAX. 207 teach, wholly or in part, as many poor scholars ^m^i, as the board of commissioners direct. Where the board think a populous settlement able to support its school without aid no allowance is to be given, except for poor scholars, which IS not to exceed the rate of 20s. each, or £10 in all for any one such school. Sec. 18. The commissioners are re- sponsible for the money entrusted to them, and they are to take securityfrom the clerk of their board—who by Sec 13, they have power to appoint. This clerk receives and pays all the monies. (For alterations made 1832, see ap- pendix.) ^ School at Halifax. The amending temporary act of 1811. 51, G. 3. c. 2. 2, P. L. 62. Sec. 1, empowers the trustees to send 10 free scholars to that school, to receive such education as the trustees direct ; they are to be poor. Sec. 2.— Authorizes the salaries to be drawn for by the governor, quarterly out of the treasury. Sec. 3._Trustees hold office during the governor's pleasure Sec. 4.— Incorporates them under the name of « the " trustees and directors of the public school in Halifax »— with power to sue or defend suits, accept and hold grants of lands, money, stock or other property, for the use of the school. Sec. 5.— Authorizes them to fill up the vacancy of the master's place. The master must be or become a member of " sdme religious protestant congregation in Halifax," and be licensed to teach according to law. Sec. 6.— If the master misbehave, the trustees are to report him to the governor, who is empowered to dismiss him, if satisfied of the justice of the complaint. >,_ BOOK L— CHAPTEIR IX!^ ^'^ ^^ *'^ LAWS FOR THE PRESERVATIOJ^r OF HEALTH AJVB TO REGULATE AMUSEME^TTSi^ v 1. P%M> and Surgery.-^The act of 1828. 9, G^t^^b expressly prohibits unqualified persons from cIaifliiji^.or taking any compensation for medical or surgical ?eryi- ces. By this act all persons having a dip^^HPii^jgr testi- monial from a regular medical college or institutioa, ,are qualified, and others licensed by the governor on Qi^gpiina- tion by judges appointed by him. Military and naval me- dical men are exempt from the operation of the act, and by act of 1829. 10, G. 4. c. 10. persons who had been re- gularly settled in practice in any part of the province, for seven years before the act of 1828, are also exerap|e.d. . Quarantiyit. 2. Contagious Distempers. — The first law passed on this subject is that of 1701. 1, G. 3. c. 6. 1, P. L. 68. which directed that vessels having infected persons on board coming into Halifax harbor should anchor two miles below the town, and hoist an ensign with QUAIUMT1N£< 209 the union downwards, at Uie main topmast head, and that the master should not permit any of his crew or passengers to land. Within 24 hours he was to notify the Governor of the number and condition of the sick on board, and conform to the orders of the Governor for performing ing quarantine, foi* airing and cleansing the passengers, vessel and goods, and for removing the infected and sick persons out of the ship. Before removing the sick on shore, the master was directed to give security for the expense attending their maintenance and curej and he was sub- jected to a penalty not to exceed £100, for any breach of the act, recoverable in any Court of Record. In cases of vessels arriving in other ports of the province, the nearest justice of the peace (or justices) is directed by the same act to restrain all intercourse between the vessel and the shore, until he receives orders from the governor, whom he is to notify of the facts, and he is au- thorized by warrant to the constables of the place to en- force his authority. In consequence of the fatal preva- lence of the ytilow feVer in the United States, the act of 1799. 39, Geo. 3. c. 3. 1, P. L. 399—404. pass- ed, enlargmg and defining the rules of quarantine Its first section empowers the Governor and Council to declare quarantine to extend to vessels coming from such places or countries as they deem infected j and to make regulations for their performing it. Sec. 2.— Empowers the Governor to appoint health offi- cers for such places in the Province as he thinks proper. These officers are empowered to speak such ships as ar- rive during the existence of quarantme. Force civil and even military is authorised, to compel vessels to perform quarantine. Masters coming from infected places, or having infected persons on board, concealing the facts, are made liable to twelve months imprisonment. Sec. 3 imposes £100 penalty on the master or person in charge VOL. I. 27 210 BOOK I. CHAPTEU IX. of the ship, going on shore, or suffering any one to quit the ship, without license from the proper authorities, or neg- lecting to carry the vessel to the place of quarantine ap- pointed for her. Persons so quitting the ship maybe, (by any one) forced to return, and each person so improperly landing is liable to £50 penalty, and six months imprison- ment. The penalty recoverable in any court of record, and bail may be demanded for it on the writ. Sec. 4— Directs how quarantine is to be oerformed ivhen necessary. The duty devolves in this respect on the neighboring justices of peace and overseers of tlie poor, ivho are to act in conformity to the orders of the governor and council ; and the treasury of the province is made an- swerable for expenses when infected persons are unable to refund. The act also imposes £50 fine and six months imprisonment on persons escaping from the places on shore appointed ; and on persons without authority visiting the infected, and returning or attempting to return j officers neglecting their duty, forfeit office, and also are fined £60 Persons embezzling goods under quarantine, are made lia- ble to treble damages and full costs. Infected clothincr or furniture may be burnt or purified. The persons and property under quarantine may be freed, on certificate of performance by the health officer, who is made liable to caj^ital punishment if he " knowingly" give a false certifi- cate. Persons concealing or clandestinely taking letters or goods from quarantine, are also made liable to capital punishment. Master of vessel is bound by 14 sec to re port if there be any ground of suspecting coatagion, and to obey all the regulations of quarantine, under fine not exceeding £200 for each offence. Health officers are to be paid out of the Province treasury for their actual scr- vices. Separation and muntenance of sick in contagious disorders. The act of 1775. 15 and 16, G. .3. c. 2. 1, P. L. 157. AMUSEMENTii. 21) authofiises two or more justices of the peace, and the over- seers of the poor, to take charge of infected persons, and those who come from suspected places,and to separate them from neighbors, to prevent the spreading of the contagion, and to maintain them, &c. and also points out the mode of defraying the expense, if they should be paupers. Their settlement is first liable to refund it— if they have not any settlement it is to fall on the provincial treasury. Hali- fax town is exempted from this act's operation Regula- tions respecting inoculation are given in the same act.— (New measures on the subject of quarantine and contagion, are before the legislature.) •/imusements. As there is nothing more calculated to benefit the health of body and mind than amusement moderately pursued j this subject is in some degree connected with the last. I have placed them together, as the provincial laws on both these subjects are designed to protect the moral and physical well being of individuals. 1. Gaming. — The provincial act of 1759. 33, G. 2. c. 1. 1, P. L. 46. contains a number of regulations to pre- vent gaming. It declares all public gaming, lotteries and public gaming tables to be nuisances, (section 1,) and empowers any two or more justices of the peace, to enter any house suspected of keeping gaming tables, and to di- rect their removal within 48 hours. If this order be dis- obeyed, the justices may « break and prostrate" the tables, and bind over the keepers, either to good behavior for 12 months, or for their appearance at the next Quarter Sessions, where on conviction they may be either fined or imprisoned. (Sec. 5.) The same act annuls all notes of hand or other securities, whether personal, or on real estate, which shall be given for money lost at play, or for bets on the game, or for money kat to the players ;. knowingly). 212 llOOK I.—CHAJ'TER IX. Real securities when given for such purposes, are trang- ferred by the act to the benefit of the next lieirs of the gamester, (Sec. 1.) Sec. a.—Entitles any person who shall lose above 20g. at one sitting or in 24 hours, to prosecute and recover the loss within a month, and a common informer may Due for the amount during the next month ; one half to tho prose- cutor, and the rest to the poor of the town. Parents, guardians or masters, may sue for what minors have lost at play, by sec. 3. Sec. 4.--Imposes a penalty gf five times the amount on a fraudulent winner to be sued for, by any person who chooses. f f< . Si?or/5.— Sports, games, and pastimes, are forbidden to be used on the Lord's Day, and a fine of 10s. for each of- fence IS mcurred. Masters and parents are liable to this fine, ifthey suffer a servant or a child to transgress this ..law. Conviction must be on the oath of one credible wit- ness, before a justice of the peace, or upon view of a ias- t.ce. Act of 1761, 1, G. 3, c. 1, s. 2. l,p. L. 65. See Ante, p, IBS. ^ j, , 3. G«n*.-Unnece8sarily firing out of any " gu^, ,„us. ket, pistol, orother fire ann»-in any town, or the sub- urbs of any town, is made liable to fine oflOs. If the par- ^ has no effects to 24 hours imprisonment in the gaol. The fine may be imposed by one justice on the oath of a credible witness, and levied by warrant of distress : provi- ded the complaint be made within 12 hours. Forfeitures fi.t !/T''"*^' '"^ half to the government. Act iL?!:. n ^' '' '• ''• '' ^- ^- ^^' ^^t««^«d by act of 1807, 48, G. 3, c. 21. 2, P. L. 22. 4. l?Vre.u.or^5.-The Provincial act, 2 G. 3, c. 4, 1 P L 79, passed in 1762, declares the manufacture of fire -'"""»"* «"««««isance, ana ynposes 40s. fine cii GiAMF. 213 any person who shall make, give, expose to sale or sell them, or shall use them in any public place, or permit them to be used on their premises— recoverable before one justice—half to the poor and half to the informer The military commanders are excepted from the ope- ration of the act, and so is the governor, and his subordi- nate oflfcers. Bonfires are not to bo made within 300 yards of buildings, stacks of hay of corn, under 40s. pe- nalty. Sec. 4. 5. Game.— The provincial act of 1794. 34, G. 3. c. 4. J, P. L. 333. for the presenration of partridges and blue winged ducks, amended by act of 1813. 53, G. 3. c. IC. 2, P. L. 113. forbids the killing of partridges between the first ofMarch and the first of October, and the killing of bluo winged ducks from the first of April to the first of August. 10s. fine is imposed for each ofience, and the purchaser or possessor is equally liable to be fined. One justice may impose the fine on oath of a credible witness, or on confession of the offender, and it is to be levied with costs on the person or property of the party. The infor- mer receives the whole fine. Indians and poor settlers ipay, notwithstanding, kill those birds for their own use, by pec. 3, act 1794. The act of 1816. 66, G. 3. c. 5. 2, P. L. 200. fixes a similar fine on the killing or obtaining snipes or woodcocks, between the first of March and first of September, under the same regulations and cxemp- tibns, as in the last mentioned act?. See laws respecting fishery,^. 131. 162 :1U' ii.uo orij bdl. UOOK I.—CHAPTER X. MILITLI ,^J\rD BILLETIJVG UIWS. The last chapter related to the protection ofhealth, this has tor ,ts object the protection of the community from foreign enemies. The sedentary militia comprises all the male mhabitants of the province, capable of bearing arms. a is regulated by annual acts of the assembly. The laws at present in force on the subject are the act of 1820, 1821 1 & 2 G. 4, c. 2, 3 P. L. 73. of 1823, 4, G. 4, c. 4, 3 P. L.' 147. of 182G, 7, G. 4, c. IG, 3 P. L. 261, act of 1828. 9, G. 4, c. 20, act of 1829, 10, G. 4, c. 39, and continuing act of 1830, 11, G. 4, c. 13. These acts regulate the militia. The act of 1808, 48, G. 3, c. 2, 2 P. L. 44, of 1811, 51 G 3, c. 5, 2, P. L. 67, of 1813, 53, G. 3, c. 17, 2 P. L. 113,' andcontmuing act ofll,G.4, 1830, c. 17, direct the mode of biUettmg and accommodating the militia, and re- gulars, when marching in the province. The details of these acts are very numerous and minute, and they are calculat- ed to meet any exigencies that may arise. At present however, the whole duty required is two days attendance, or a fine m compensation lor absence. Everv one houv^on MILITIA AND BILLETTINO LAWS. jf^^-, 1(3 and GO if well, is bound to turn out. No one is obliged to travel further than 12 miles to the place of training These laws provide against the infliction of severe military punishments, and they also forbid the commanders carry- ing militia out of the province, without their own consent. Act of 1820, 3, P. L. 73. Sec. 1.— Every resident from IG to GO years of ago, (with certain exceptions) to be enrolled and serve in the militia of the place where he lives. Sec. 2.— The militia to be divided into regiments by counties and districts, and these may be subdivided by the governor into batallions ; batallions to consist of not less than 300, nor more than 800 men each, and a district to bo set offfor every battalion. Companies also arc to be set off by districts for the convenience of assembling, except flank companies. A company to consist of not less than 30, nor .more than 80 men, &c. Sec. 5.— Directs that those who volunteer to serve in artillery or flank companies, must be enrolled for 5 years and continue that term, unless thoy remove from the coun- ty or district, or are discharged by the commanding officer of the company. Sec. O.—Imposes 10s. fine on persons neglcctinc^ to en- rol themselves in the militia company where they iFve, and r^s on youths arriving at the age of 16 who neglect to enrol themselves. Sec. 10. If a dispute arises as to the age of a militia man, the burthen of proof lies upon the militia man. Sec. 12.~Directs bonds to be given by militia men for the care of muskets, &c. when issued to them, in the pe- nalty of £5. ' Sec. 13.-.Gives a fee of Is. to be paid by the person giving such bond, of which sum half is to go to the clerk ) company, for filing up the, bond, and the other half 3 clerk of the peace for filing it. to 210 BOOK I. — CUAVTBA X. Sec. 16 — Directs the captains to take charge of arm* for such of their company as do not give bonds individually. Sec. 18. Imposes 6s. a day fine on any person withhold- ing such arms from the captain of the company, after train- ing is over. Sec. 19— Directs a fine ofL.5onthe lending, pledg- ing, selling or embezzling a musket, and lOs for any other articles : the receiver made equally fineable. If carried away by water, L. 10, recoverable before any one justice of peace. On non payment the justice may commit the of- fender 4 days for each fine of 10s. 40 days for a fine of L5. and 3 months for each fine of L.IO, 1-4 to the informer, the residue to make good deficiencies and repair arms,' &.C. Sec. 20.--On information on oath given of such offence, a justice may issue a warrant to arrest the accused. Sec. 21. If the accused immediately restore the arms, &c. they shall be entitled to a remission of half the fine or imprisonment. Sec. 22. The commander of a regiment or battalion may, as often as he thinks necessary, appoint an inspection of arms, &c. and the same penalties attach, if deficiencies appear as if they were at training. Sec. 23 — Directs militia man leaving jhe province, or moving out of his company district to give up his arms, &,c. to the commanding oflicer of the company, in good order, under L.5 penalty. Sec. 25 — If a militia-man's arms or accoutrements, in the opinion of the captain Ok commanding oflicer of the company, are dirty and out of order at training or muster, he is liable to a fine from 2s. 6d. to. 10s. Sec. 5^6.— Forbids the use of militia arms for fowling or other private purposes, under 5s. penalty for each offence. Sec. 28 — Fine from 5s. to 20s. on improper conduct of militia-mcn on parade. or % illLITIA A^D BILLETTINO LAWS. 3tf 't!8fe.'^3^:^jriBitice is bound to enforce the fines §a iinpo^d. m^rWf'^ttnpoms W9i fine on a fnHitf«-fnan ns%!md attorniet^clerks, storekeepers, anq others actual](v employ- ed in the civil and militfljy , departments of the amjy ; constant ferrymen, licensed as such, one nailer to each gristmill, postmasters and carriers aictuafly appointed and employed as such, and Quakers duly certified fey their society. All those exempted from li'&thtng' are td be at all times furnished with arms and ammunition, tard to per- form all other duties prescribed by this act, except meipbers of the council, judges of the supreme cotirt, the secretary of the province and quakers. Quakers are to pay each 20s. per annum for their exemption. Sec. 41. — Empowers the officer in command at any muster or training whether regiment, battalion, or company is muster- ed or trained, to commit any non-commissioned officer or private, guilty of dninkenness, contempt, disobedience or other VOL. I. 98 313 BOOK I. — CHAPTEll X. • mMavior on the occasion, to the county jail for a space of time not exceding 3 day,, nor less ,han 12 hours, without baU or mavnprize, and prescribes the form of warrant for committal. The sheriff or jailor refusing to receive the prisone is to forfeit £5 for each offence. Non-commission- ed officer appointed to escort the prisoner, and not comply- ing IS to be reduced to the ranks and forfeit 40s. for each otlence, and every private appointed to escort him, not complying, to forfeit lOs. (See sec. 8. of the act of 1828) Sec. 42.-~That there shall be an adjutant to each regi* ment or battalion, points out his duty and grants him £15 per annum for his services, to be drawn from the provincial treasury on the governor's warrant. Sec. 43.-.Imposes 40s. fine on refusal to act as ser- geant, corporal, clerk, drummer or fifer, if appointed. Sec. 44.-~Prescribes an oath to be taken by clerks of companies, points out their duties, grants them 1-4 of all fines recovered for their compensation, and exempts them from being drafted or ballotted for actual service. Sec. 4..— Imposes a fine between 20s. and L.5 on a company clerk neglecting his duty, to be sued for by the officer commanding the company. Sec. 46.~Prescribesthe appointment of sergeant major and clerk,-.to each battalion. ^ ' Sec. 47.--Regulates the returns of strength of compa- ZLT^y^T"'"' ^^^^""^^^^ffi"-' «tate of arms &c. Sec. 48.~Empowers the officers in command to con- fine any person wilfully interrupting the men in their exer- cse or duty, until the exercise or duty is ended, if nece . poses los. Jine for each offence. sicSl*^"^'""" """ '"'"''"' '" P^"'»™ "i-'y through ».ckness, accident or natural infirmity, i. to cr,L.»i„l co.„mana,«g officer of regiment or battalion. The coToncl MILITIA AND BlLLETTm« tiws. 219 or field officer is to order a board of one field officer and wo captains, to inquire into and decide on the complaint (See sec. 9. of act of 1828.) The certificate of a physi- <^ian or surgeon, resident in the county or district, is to be obtained ; which is to be given gratis, under 40s. penalty. The board report their opinion after full consideration. 1 If this IS in favor of the application, the commanding officer IS to grant a certificate to ihat effect, which exempts he applicant from militia duty, while his disability con- tinues J medical man giving false certificate, liable to £10 line. Sec. 60.~Relates to conferences of the officers, and to their uniform. Sec. 51 — Officers changing residence. Sec. 52.~Cashiered officers, who are liable to duty as privates-same of officers resigning or dismissed. Sec. 53 & 54.~Authorize the calling militia into ac- tual service, on sudden emergencies. From 65 to 81 inclusive, relate to drafts for actual ser- vice, and the rules then to be followed by the militia em- bodied. They are to receive pay equal to that of the regular army of Great Britain, are to be tried by th : own officers-are not to suffer corporal punishment, except im- prisonment, and not to suffer death except in cases of de- sertion to the enemy, mutiny and sedition, traitorous coi> respondence with the enemy or traitorous surrender of posts (fcc. The governor and council in case of invasion or imminent danger of it, may put in force select parts of the articles of war at their discretion, not contrary to the provincial law. No person can be put to death by virtue of a sentence of a militia court martial, without a warrant from the governor. Sec. 82.— Appoints the duties of the quarter master of each battalion, and of the quarter master sergeant. Sec. 85.— Supreme court on conviction before a jury, may fine up to the amount of L.20, any one accessary m 220 BOOK I. CHAPTER X. # to desertion of militia-man from actual service, and on non- payment, may commit offender to close imprisonment for a term not exceeding three months. Two justices of peace may convict for the same offence, but can only fine to L.5, liable on non-payment to close confinement for 20 days, or until fine and costs be discharged. Sec. S6. — Limits actions against any person for what he may do in pursuance of this act to 3 months— and he may plead the general issue, and give the special matter in evidence. Sec. 87.— Governor may order militia act to be read. Sec. 88.— Governor may appoint inspecting field of- ficers. Sec. 89.— Governor may accept volunteers from the militia, for the defence of New-Brunswick,— but they are while on that service, to be subject to the militia laws of Nova-Scotia, and to none other. Sec. 90. — Persons of color to form separate companies. Sec. 91 — Fire engine men and firemen in Halifax, exempted from militia trainings. Sec. 92.— Repeals all former acts on this subject, and 93 limits the law as an annual act. The cct i, C 1. c. 4. (1823.) 3, P. L. 148. by its 8th sec. exempts the servants of army and navy officers, re- ceiving rations, from militia duty. The act 7, G. 4. c. 16. (1826.) 3, P. L. 261. Sec. 3.— Fixes the fines for non attendance at 10s. for the first day, and 20s. for the second— and makes the clerk of company's evidence valid in the prosecuting for these fines. Sec. 4— He who appeals from any fine under the mili- tia law to a board of officers, must give notice in writing of his appearand the clerk must notify the appellant of the time of meeting of the board. Sec. 5.— Commanding officer of regiment, battalion or w MILIUA AND tlLLETTlNO LAWS. 221 detachment, is to impose the fine for improper conduct of militia man on parade mentioned in sec. 28. of the act of 1623. 1&2,G. 4.C.2. 3,P.L. 80. Sec. 6.— Protects militia men attending muster or train- ing, or going or returning, from arrest under civil process . during the days of muster or training, and gives an action of damages against the officer who actually makes the arrest. The act of 1838. 9, G. 4. c. 26. sec. 3. makes persons who neglect to enrol themselves liable to pay fines for the days of training &c. on which they should have attended, besides the fines for non-enrolment. Sec. 4.— Directs the militia to be called out t'.vice a year, and three days notice to be given to each militiaman of the trainings &c.— notice on the field of the next day or days of training sufficient. Notice may be left at the house, or given in any reasonable way, and no excu?e to be made as to the formality of the lotice, if the party was aware of its having been given. Sec. 6. Directs licensed ferrymen to transport officers or men going on militia duty free, of charge. Sec. 6.— Authorizes the commanding officers of regts. or battalions as occasion may require to form boards of officers to determine the appeals of the men from fines, such a board must consist of 3 captains, or 1 field officer,' and 2 captains, or 2 captains and 3 subalterns, or 1 cap- tain and 4 subalterns. Sec. 7— Provides that justices of the peace shall have no fees for any service performed by them under the Mili- tia law. Sec. 8.— Extends the provisions of sec. 41, of the act of 1820, l~l «fe 2, G. 4, c. 2, 3, P. L. 82, to misconduct of the non commissioned officers and men, on all occasions of militia duty. Sec. 9.— By this section the board mentioned in sec. 49, of act 1820, 3 P. L. 85, may consist of 2 captains and 3 it' 222 \ •BOOK I. CHAPTER X. .ubaltcrns or one captain and 4 subaltern, to enquire into excuses of sickness, &c. ™« <=°™'=ii » ^ diaw on the provincial treasury, by warrants, for the amount of meal, »d lodging incurred by the militia forces o„ march. The governor is authorized to draw warrants on the rcasury (not to exceed L.500 in one year) for the meals, (dinners only,) ordinarily incurred by his Misty! regu a,, op,, ,,„„,,, ,,„^ one post to another {.yL order. The governor is authorized, with advice of council, to drawon the treasury, warrants „o,aboveL..50i„a year m^r-lfeTp.";' "^ '" ""^^"^'^ -'"'' ^" Sec. 4._In places where there is a deficiency of accom- modation in public houses &c. the magistraies are em- powered to billet part of detachments on fther houekee^. ers, according to their discretion. ^ carry baggages, and any two justices of Peace for any County in the line of march, upon the application of 2 fltr^'r'f "-^ •'^'^"'•"'^"'' » Ji a'^'^'-^^J^' "^S^^'^^^if^^rties of the Subject, is and stands limited to the Princess Sophia, E lee tress of Ha- •nover, and the Heirs of her body, beinc Protestants- mnl':\ ''"^"T^ ^"' "^^^ 4 obed'nce o; allegiance unto any other person claiming or pretending clarf ThVt^-^ ^'"""l ''^'^' -^f^'"^ •• ^"^ ^ do?urther de? Clare, That it is not an Article of my Faith, and that I do renounce, reject and abjure the opinion, that Princes excommunicated or deprived by the Pope, or any other TTk^ ^l'^^ \'" °^^^™^' '"^y be deposed o^r mur' A„HtSJ;w^;T '"^/k^t'?^ ^^ Ty P^^««« whatsoever: And I do declare, that I do not believe that the Pope of Rome, or any other foreign Prince, Prelate, Person, State or Potentate, hath or ought to have any temporal or civil jurisdiction, power, superiority or pre-eminence, directly ?/nH"f ?k"^^'""" f'' •■""'™- ^ d« «^^" that i will de- fend to the utmost of my power the settlement of proper- ty withm this realm a. established by the laws : And I do hereby disclaim, disavow and solemnly abjure, any in- ^^llTuf^^'^V^^'^l^'^''^ Church Establishment as 'sweirth«Vrn''^'" '^'' '^^^'^'' ^"^ I do solemnly swear that I will never exprcise any privilege to which I ' ^^IJS^^tv'^^ '"ii*'"^' *° ^''""'^ or weaken the Protestant Religion or ProtestantGovernment in the Uni- ted Kingdom : And I do solemnly in the presence of Crod, profess, testify and declare, that I do make thisDe- c^aration, and every part thereof, in the plain and ordina. • ly sense of the words ofthis^ath. • cVaSiun, APPENDIX. 329 * equivocation, or mental reservation whatsoever. So help ♦ ine God.' ' III. And bo it further enacted, That wherever, in the Oath hereby appointed and set forth, the name of his pro- sent Majesty is expressed or referred to, the narno of the Sovereign of this Kingdom for the time being, by virtue of the Act for the further limitation of the Crown, and better securing of the rights and liberties of the Subject, shall be substituted from time to time with proper words of refer- ence thereto.' Pages 52, 56. — " Though the general court of Massa- " chusetts had, as early as the year 1662, readily granted, "to a few French protestant refugees " liberty to inhabit " there ;" yet the first act which occurs, of ally colonial " assembly, for the naturalization of aliens, was passed in " Maryland, in May, 1666 : and from the many similar " laws which were enatced in every subsequent session " till the Revolution (1688,) it appeals that great mim- " bers of foreigners transported themselves thi their dur- " ing that period." 1, Chalmers' political annals of the United Colonies, 315. The same author states (p. 316, 317,) that several governors " granted letters of deniza- " tion to aliens, under the authority of which they traffick- " ed contrary to law, and that tho American courts of jus- " tice," — " supported their pretensions in opposition to "the acts of navigation But their judgments were pro- " perly reversed, by the king in council, during the reign '■ of William ; because a governor could not dispense with " an act of parliament." It was decided oy C. J. North, " that a naturalization in Virginia, or in any other planta- " tion is only local, not extending to any other colony," Ibid. 322. Journ. plantation off. 4. v. p. 27, 32, 34. Sco Craw and Ramsay. Vaughan's reports. These acts are stated to have been " only intended to " enable them (naturalized aliens) to purchase land ; but •* not to qualify them to trade, or to be owners or masters "of ships." Ch. Pol. An. 322. Page 96. — The governors were instructed to allow of no appeals from the general coirt, except to the king in council, as the assembly of Virginia hade^rcised a power of revising the sentences of that court. 1, Ch. Pol. An. 343. it was decided by King William 3, " that it was " equally the inherent right of the subject to prosecute " appeals, as of the Sovereign to receive them from the " colonies, without any reservation of charters." Record, Proprietaries. B. p. 353—5, 403. 1, Ch. Pol. An. 304. f' S30 *»*prNnM w I*. 07. — " i^onalhli^ oltlioduiiiror oriiiiinvnn.il.- i . .orront Inm, ..n„porin« i-MnpcrlnUl: fp^ J ' I"; : ^ U ro.om.ao.ul t h. trial : yet I ca.u.ot bit . o' t, u mIo iIio cotistitutioiis oftho tfovorninonts ni'tult t wt'Trk'i: '"" ■""""' "'■"" ''■i""'''""Hlui ■;'':;;! 1 ot tho mother co.u.hy. in havin,r tUrl h.mr.l.VliHt , ! t m ho.r persons, ns well as their ollio^. If (ho ■ , c- o ' «ta o n„„,,„. ,„^ ^,,,, ^,^_^^^^ c.,nstitution s a re L was oo.:.pose.l ornieuofth., best evporioinv f, rt m , n 1 oS 'Sn 7 '"'"'^^ '"'•" '" '•-•-'^'^o- ihi; i^K r^: i -ouncil, the ho.i,.e ot r<-pr,>sentativeH, or iho coiirH wW'n ^u^bors o the le.i.la.ive eo.u.eil, in,;;;.^^ ,"' 1. orT^Ui! '"■ ^^•^'■'^ton.'e, ha.l all an a.hninis.rat ion i t J u nlulenee and extent of interest that it wo„M ,hr e l X n m ; and to tho I.ogislatnre n more t,n.. and polit n f di . rdn.tion ot power, whirl, inst,.ul of the lids,, u. « ici . consti';;.7 ^''f^ 'T ''^^ «^r-"<--.-oul.l throw tl e d a d const ,H,, ,,ai,„,.M.f power in.o the hands of^overn n"erp.i;r,:rH7^^^ """" ' ^^'''"'"'^^''^'i-" of IhSCuIo. -/V system has prevaile.l in sonu, of rr. ^^. Colonics which wavmg the nuU.er of righ., and .«lop,o,| as mo of r>rl7?''^Pr'^^Vr"'^'' ''*«'»-'''" «•♦*'•'<'"<» with tl ! best elllHMs. The I lonse of "Assembly precede ive y n.ll ot tins natnre* by separate resolutions npon 3 tom,-these beu.<. sent np to the (^Hnl(•il, are sepunUo ly approved or rejected, and those which have bee . as- of o^ '" '^ro subsequently e.nbodiesp||ch of the Colonial Secretary sth Oct IS/' '" ^Jovernor of Prince E.lwonihhmd',; in rnis volume.— .1 ho session not hnv nir closed, I nm not enabled to ..vc an exact abstract of the changes ? p"o- • Money BiJI. '#M:' 4 *h Ai't'KNnm. an I' Cf ^oJL "";".," «"''«"'in;'nt volumn of tl.i, work. A "■1.1 AnXl , ' "'"''• ,'" ""•• '"«■ i|'»"IHy,lncy' n «o, (iH uikIi.imImii.I iI.. V "', |»- -«!"».; If ro-oimcti •upport riSZr •'' ^^'^^' "-elusive, lo v^uiioch, the founder of the- in«titution is to be one #? 232 APPENDIX. •^ Those who are to go out of office are to be ftice4 by tide heretofere tjrualees, and they are to be considered hon- orary trustees. The governor is to name 4 new trustee j the bill appoiiitS the Rev. Mr. Fraser, tt. C. Bishop of Tanen, V. A. of this province, to be also a trustee ; the 7 old and 5 new trustees to manage the institution. In case of a vacancy, tlie board are to nominate a new member, but the approbation and final appointment, in case of dif- ference, is to rest with the governor. Dr. M'Culloch is to have L.2b0 per annum salary, and remain chief professor. No theological class is to be taught in the academy. A grammar school is also to be provided for out of the fund$ of the institution ; in aid of which object, the house have granted the trustees at present the sum of L.400. These acts evince a greater attachment to education in the peo- ple ofN. S. than has been manifested lit any former period, and we may hope th&t this the dawning of a more enligh- tened system. A proposal to unite the Halifax and Wind- sor Collegea48 before the Assembly. Page 208. Quarantine. — From fears respecting the cholera, crossing the Atlantic, measures are before the assen'bly on this head. The provincial laws already en- acted seem sufficient, if duly enforced, for all purposes of the Mnd, but the legislature has not yet decided whether they will add any new regulations. A bill has passed compelling all persons selling goods by auction to take out an annual license, paying L.20jper annum for it. There were one or two additional articles intended to > be put in this appendix ; but as their insertion would have caused a considerable delay in the.appearance^f this volume, I have postponed them to the next. Errata. — Page 1, lii^s 3, for nre re&d is. P. 4, line 16, for Viners* read Viner*a. P. 7, line 27, for gae read age. P. 29, line 15, for setiiemeuts read settlements. P. 51, line 14, ba mlic tedApsiUcy. P. 54, line 6, for seamen read seaman. P. 66, line 22, dele 'of house: P. #, line 28, iox take read takes. '^ P. 71, line 21, for title of deeds read title deeds. P. 84, line 22, for liousc read throne. P. 85, line 24, dele took. P. 148, line 15, dele the. P. 123, line 3, for judicia read judicial. P. 134, for p. 34, read 134. P. 151, line 3, for preservatiou read preservation. P. 151, line 3.^, for find reeAfine. P. 101,-iine 11, for o read of P. 170, Ime 9, for orther read othe¥. # ^■4 INDEX. ■W^ # ♦ » *■ lillf *»-**^ >;w» % INDEX. a Abjuration, 61. ^« Absentees' land, 184, 185. Accounts, public 110. Actions, 122, 129, 132, 176 to 178, 189,*l»l, 192, 212,220,224. Acts of AHsembly sent to England, 81,60,85. with suspending clause, 60. date and effect of, 85. publication of, 85, 168. 174, 176, 188, 190. Administration 106, 106 Affidavit, 71, 196 Affirmation, 183 Aliens, 46,49, 61, 76, 102 Allcgiunco, 49, 50, 51 Amercement 192, 194 Annnpolis Academy, 206 Appeals 96, 165, 188, 196, 221 Apprentice, 189 Arbitration, 113 Arms, 216, 216 Army, 112, see military Arrest, 67, 86, 178, 180, 221 Articles of war, 219 As-sessors, 186, 139, 149, 192 Attorney, 123, 217 general, 198, 208, 217 Auctioneers (appendix.) B Hail, 210, 218 Bank notes, 171 Barrington rivor, 153 BeucoiLs, 103 Beef, 1G2, 170 Beggar?, 195 to 198 Bills, 62,68,81,88, 86. 87 of exchange, 76 Bill«tting, 214,228 Bonfires, 213 ijondn, 109, 115, 179 Bricks, 166 Bridges, 134, 136 Broad, 163, to 166 Butchers, \G9, 170 Butter, 162 Buo^s, 10a ' C Paoh. Condidates, 70,71, 75 Cape Breton, 68, 167 Capital punishment, 104, 210, 219 Carriages 176 Carts, 224 Cattle, 156, 157 Churches, church ratet and officers, 92 94, 104, 119, 181,182. 198 188 Chancellor, 91, 94, 98, 120, 130 Chief Justice, 63, 126, 180 Civil law, 16, 86 Clerks of Assembly, 79 of Peace, 183, 184, 150, 176, 192, 198, 216. of liceuRes, 186, 174, of market, 187, 166, 169, 170. of militia compaav, 218 Coal, 163, Coin 171, Coining 104 Collectors of «xoi^, 109, 110. county rates, 186.. light duty, 111. poor rates, 188, 192. Colleges, 202 to 207 Committees (of the house) 74, 81, 98, 84, 86— of lunatic 120 Commons, 168, Constables, 119, 129, 182, 187 Confession 121. Contempts, 67. Cordwood, 168, Coroner, 128, 129, 130,217. Costs, 149, 166. Corporal punishment, 157, 219' •* Criminals 129, 133, 134, 197 Crown, 68, 88, 108, 121, 122, 130 Council, H. M. 61,62, 66, 79, 88, 87,91, 92, 96, 97, 130,217 Courts. Supreme 121, 123, 129,184, 144, 146, 150, 157, 168. 176, 200 Common Plea8,146,168,176,200 of record, 151, 168, 164, 165, 169, 191, 192, 193, 209,210, 217, 222, 228 of Errors, 92. Militia 217, 219, vice admiralty, 92 Courthouses, 134 Cullers offish, 187,138, 161 Cumberland, 133, 162 Cusio* ruluiuruiii, 1S3. \ .' i ^ IKOCX. ■# D Ocbti lint th* erown, UP undsrL.5 1S8 Dnmiso of th« crown, 83 DonJKon, AS Doottaiul, lis. 129 Deputy, 105, iirt, ITi Dmiortlon, ir«6, 108,220 Dovino 68. jiMslill.-m 114 Dogd, 157. Dowor, BI. Dry lish, 1({0 Duties. 109, 110,118, niS, 117 Ducks, 213. DyUerntcsMS Dwellings tte. right of ontoritiR nml •ourrh, H4, 1«0, 189, 170 171, 170, 18S, 191 ripclioiwfiS, 7.1to7S Fnr rouchiilBiit, 141 Knglish croditort, 1 70 Kiitry of nood«, 113 Kioiipn 125 I'sohcnt, 100, 118> 125 ll«tray, 125 Fvitlonco, 55, 78, 215, 320 Kxcisc otlicem, 7(t, lOO, 110, 114 Kxecntioiw, 80,06^,122 F.xprutivo rouncil, f)rt ExeniiHions (militifi) 217, 210, 223 Fniin. 104 Fnlso Alnims, 217 rw.x. 104, i:»(>, 101 ti> 163, 10(5 to 170, 17:«, 215 FpIomv, 70, SO, 100 Fciiot's, 151, 155 IVncn vi.wi'iN. I.IT, 16.1, 155 Fonios. 1.10, 1 17. 221 Finos, 112, 11), IIS 122, 121 to 120— 1 2s, 120, i:j:,, 1:17. 110 to 142, 140, H7, 149 to 169— 161 to 175, IMS to 1;>r>. 19S 209 to 21.1, 215 to 224. Fires. i:?0, I6S. 213 Firoworks, 212 Fishoiy, 161, 152, 107. ISS Flour, 1().1, 1(51 Forcst.illiiig, 17,-, Forri^;!) sprvicr, .12 Forrignors, 54, 65, 77, 101, 102 Foi foitiiros, 1 1 1 , 1 1 2, 1 1 1 . 1 25, 1 2P, 137, 101, 104. 100, lOS. 109, 171, 172, 174, 170 Fortifir.'jtions I 2 Freedom of rojwcioiirp, 04, 1S2. 187 nflrnn. Si A (.'nniing, 178,100. 101, 811 Onols, 125, 12s, 1.14 ^ Guolors, 1 OH, 218 m^ Q«(.>!. 137, 168 llttiiiicidc, 129 Monp'^, lOO. Iforsos, 221 llonsi'of Corrcdioii, 101, 105, 190. 197, l!)s. ,t?"f '9 Wk ■■^F UfDCX. I tamU^mtt, 180, 172 to 170. to I MiotHi 7(1, 94, lis , clofkoffiouiuoa, 180. 174.g| l(lto|mri(oti«, ll)(l, 1U7 iiodlar'f, Ifl. Tttipnrliittcn, 121 nuntiom, nnn uBPon^lx. Iiiipri«()iiinont, 124, IftSto lAI, 157. U|ht bviiiioi, lUJJ, ffO, 111. KM, 175, 18H, 180, 10(i to lOH, LitTio, IflR, llifi. 210, 210, 218, 22U Inrlimm, 162,10^213 fiit'anls 7«J 94 * ImiH, 174, 180, »23 Itiociiliitioii, 211 lnr|urritM 121) IiwpuntiouM, 187, 138, 15S, 161 to 180. Liitiitiition0factioM. 170,177.178. lUl, 220. I.iquora, 180. 100, 100. Lotttirius, 211. Lumber, 102. LniintioR, 70, 04. US. 120. INfuf^nn Carta. 41). M Inntmctioiw, (Iho kiiigV) 80, 60, 89, Mnd [mnom, (rco lunotics.) 04. Invntitiotii, 105 Invoice, 1 1 1 IntornNt, 170 IhIuikIh, 142. eoali MnrkutN, 104.' Morahfli^ 144. Mustnr of tlio RoIIh, IIM). AfrtHtord of vunmoIr, (noo vliipa, ) MdiisuroN, 160. MoMiil-tira or griiin. lult oiiil KIT, 168 Mo«Hnfiri)H (li!gi»lative,) 61, 70. Milil.iry, lOJ, 108, 809, 218, 217, 220. Milifia, 81,94, 147, 215, 221. Jiiil (Ht)o gnol) .iMiiiiiicii, 50, HO Judges 7.H, bO, 01, 97, 00, 10.1, 1.10, 217. .lury, 120,151, 220, (hro grand jury) l\iiii<','M'' MilMHiriB, 161. JHsticoH of IVm.p, H5, »J, 05, i:J0 Millora, 151, 15M, 160, 217. (0 134,217,221 Minos. 117. Miuom, 04, 178, 101. lli.Mi- niitlioiHy, 111, no, 142, INfonoy liilln, 68. Appuudjix. Kir., 172, 174, 101, 106 to 1!)!), Monuy, public 04. 20<)to2ll,2'^:?, 221. Mui.Inr. Oft, 120. ,|unM, 212, 213, 2I«, N.ifnrnli/.iition. 62 to 50. % 217, 220, :^2. Nfgotiiiliio not()« undfjr 2«». roid, 171 K N<'W Hr!lll(irH, 141. Kind's prpfogalivp, 07, 100. 11H. '^"W roiuU, lit. nntlioiity, 31, 50, 53,57,60, ^"'''^ "'"^ HII. (Sec crown.) Kiiif; inCoiinc'il, 03, 00. King's iloMcli. oni|i(>\vt'rnd lo try Cio- vornorn, 03. * Nuwtnciv*, 140, 211, 212. O % Lnnds of (lif> rrown, 04. 1 15 iition, 51. lot orKoid for ratos, 131, 1 10. I.nw, of nntiono, 10 Ktudy of, I lo 14. ntntiilo and foninion, 22, 2.1. T.«^i,sl.ilivo power, 17, IS, 32, 00, 105, 100 l.r.ntJirr, lOH l.ilx'ity, .IH, 42, 4.1, 4 4, fll. 107, 1S2, 1S7, OmiIh, (iirrrlod to l»o tnkon 64,70, 120, 12«, 134, i 12, Ml, 140, 150, 101, 104, 100. 103. form of, fur (i|ipr:tiNing uuw rond^, 144. form of, undor Rnlicf Itill. (i» (ippnndix.) OfTicerH, public 81, 91, 92, 94, 105, 217. Ordinnncts, 58. Uv()r«iroir« of poor, 110, 120, 137, 101, 102, 105, 210. Oitflnvvs. 70. % '^1^. INDEX., Revenue, 94, 109, lltt, Rivers, 161 to 158. Roadf, 186, 140 to 1 4^. S Jbw, 95, 182. Parliament, mu of ||, 82, 64. Partridgea, 218,* Panes, 44. Paupers, 198. 194, 191. . . ' Pay, (militk.) 217, »18."* Pedlars, 136,171. Peers, 76. Penalties, (see fines,) Pensioners, 77. Permits, 114. Physicians and Suifeons, 208, 217 219, Pickled fish, 161, 162. Pictou Academy, 204. Pino trees, 104. Piracy, 88, 92. - Pleading, 132, 133, 160,220. Pledges, 189, 190. Poll at elections, 71, 72. Poor settlers, 152, 213. Poor laws, 134, 191 to 195, 2U. Poor, (fines for the use of) 146, 161, 153, 164, 156, 157, 164, 168, 170, 171,188,189,1^,213. Pork, 162. Ports, 103. Posse comitatus, 124. Post office, 76,86, 120, 217. Posting up acts &o. 174, 175, 190, 191. Pounds. 134, 137, 138, 156. President, 79. Prisoners, 134. Privateers, 92, 101. Privnto ronds, 146. Process, 130,189. Proclamations, 61, 87, 103. Protests in Council, 66. Province notes, 171. Prothonotary, 145. Public worship, 188. buildings, 137. houses, 171, 18S. Publication of fines, 164. a Qnukers, 18;!, 217. Quarantine, 208. Quit rents, 116. R Ransom, 62. Rates, 134, 148, 15.1. Reading of acts, enjoined, 71, ISS 175, 18S, 220. Registry, 68, 185. ^ . , 129. Sabbath, 12«, 187 to 189, 212. Salaries, 86, 110, 184, 202. Schools,. 199, 200, 201. 206. Ap. pewflx. ^ Scrutmy, 69,78. * Sealers of Leather, 137. Seameu, 196. Secretary, 143, 203, 217. Security of sheriff; 127. clerk of licenses, 136. road commissioners, 148. C. inspector offish, 161. pedlar's, 172. for license, 178. for good behavior, 174, 191. for costs, 1 50. for gaming debts, 190, 2 1 1. Servants, 189, 190, 194, 196. Sessions, 119, 133 to 188, 142, 144 to 147, 161 to 153, 156 to 168, 164,165, 170, 172 to 174, 183, 192 to I9P 199, 224. special, 151, 192, 194. Sewers, 147. Sheriffs, 61, 69, 73, 86, 123, 128, 129, 130, 149, J51, 172,217, 218. Ships, 46, 52, 129, 163, 170, 196, 208, 209. Side paths, 146. Signs, 172, 174. Snipes, 218. Soldiers, 196, (see tniiitary.) Solicitor General, 217. Speaker of Assehibly,79,'"80, 84, 86. 203, 205, 217. Sports, 212. St.itute law, 21 to 24, 37, 77, 99. Statute Inbor, 140, 141. Staves, 160. Steel yards, Ifif). ., Stocks ami pillories, 134. Streets, 175. Surveyor of bounds, 137, 15f). of highwnys, 137, 140, 141, 142, 145. offish, 187. of lumber, 1.37, 166. of hay, 137, 170. * of cordwond, 138. Suspending clauses, 60. >* i It j|i||, ^f^ WtiK%, # t S39 Taniin, IM. Tftvenu, 188. 189, 223. TazatioB, 81. Tender, 17|. » ThiatlM, IBS- Timber, 167. ^ Town clerki,* 187, 154. B^ men, 138. officerg, 187 to 189. boonda, 1S9. meetingB, 191. Travelleri, 44, 189. Treason, 60, 88, 95, 104, 171 Treasure trove, 117. Treaniry, 166, 210, 212,217, Treaaurer, 97, 109, 110, 111 180, 148, 169, 205, 217.' ,«- °*"<=»«n'y. 184, 186, 197. Treaties, 101. Treble daraagea, 167. forfeiturea, 176. costs, 165. Trees, 105, 142. Trent, 162. Truckmen, 176. Truflteea, 118, 184, 199, 200, 202, 204, 205, 207. "Vacant seat. 8^ ||| Vagabonds, 18K Vagrants, 186 to 188. /' Veaaels. (See ahips.) ViceAdnniBil, 91, 92.^ Vk:e Admibltyi 92. Virginia, 56. Volunteeni, 209, 220. W Waggons, 224. Jl^ Waift, 117. Waiters, 110. 223. War, 101, 219. 121, Warehousing, 106, 109. Warrant, justice's, 114, 182, 188. 172, of confession, 118. Watch and Wnrd, 217. r. Ways, private 145. ''^ Weights, 169, 170. Windsor College, 208. Wolf, 167. Woodcocks, 218. Woods, burning of 168. Wrecks, 117,126,129. 201, Wrat. 88 48 44^ g, ^^^ ^^ ^^^ £ lie, 160,176, END OF VOL. I, »