We have briefly touched upon the relationship which Great Britain had with Nova Scotia. It was much the same as her other colony, Canada. Back then, the province of Canada (a considerable period of time was to pass before the name was applied to the federal establishment that came about in 1867) included substantial portions of the present day provinces of Quebec and Ontario. In 1763, the Seven Years War was ended with the Treaty Of Paris: A new government under British control was established at Quebec. The existing governments of Newfoundland and Nova Scotia, at the same time, were given additional territory to govern. "Labrador, from St. John's River to Hudson Bay, Anticosti, and the Magdalen Islands, were placed under the jurisdiction of Newfoundland, and the islands of St. John (Prince Edward Island), and Cape Breton (Ile Royale), with the smaller islands adjacent thereto, were added to the government of Nova Scotia."5 The Quebec Act, although a significant cause in the coming war between Britain and her colonies, did bring relief to Roman Catholics in Quebec long before the same civil rights were granted to Catholics in Great Britain. In 1801, Great Britain and Ireland come together under one legislative body. In June, one hundred Irish members became part of the British House of Commons and twenty-eight temporal and four spiritual peers took their seats in the House of Lords. Thereafter commerce between the two countries was freed from all restrictions.6 "No Irish patriot can regard the Union as other than the sale of his Parliament, justifiable or unjustifiable according to his politics ..."7 At the time it was thought by Pitt that the union, in the face of the very real threat of France invading Great Britain, to result in one British Parliament, would be of one line and the Catholic majority which held sway in the Irish Parliament would be reduced to a minority in the larger parliament. What Pitt promised, in return, was that Ireland should have free trade and Catholic relief.8 Once the union was put through, however, Pitt was prevented by the political forces in England to deliver on his promises. "Catholic Emancipation waited for thirty, and Tithe Reform waited for near forty, embittered and envenomed years." Pitt resigned, thinking he would be called back, but the king let him go, a case as Lord Rosebery put it of "genius giving away to madness."9 As Lord Rosebery further observed, "it is Pitt's sinister destiny to be judged by the petty fragment of a large policy which he did not live to carry out ..."10

To put a few finishing touches on the Catholic Emancipation we need to make reference to that great English statesman Charles James Fox. It was Fox who introduced, on March 2nd, 1790, a motion for repealing the Corporation and Test Acts: it did not pass. These acts went back to the days of the Puritans. In 1661, the Corporation Act was passed prohibiting all those who did not belong to the Church of England from holding any municipal office; in 1673 came the Test Act which "compelled all holders of civil, naval and military office to receive Holy Communion according to the Church of England rites, and make a declaration against Transubstantiation."11

Rational argument, that Roman Catholics should have the same rights in Great Britain as everyone else, would win over rational men, but rational argument, unfortunately, was of not much help when confronted by the rule of the mob. An English aristocrat, Lord George Gordon declared that the new law was designed to put "papists" in power and make the rest second-class citizens. Gordon's speeches appealed to the average Englishman. Riots broke out in London, the Gordon Riots.

The average Canadian of the time, however, cannot be compared to "the average Englishman." Canada had a significant French (read Roman Catholic) population. It was The Quebec Act of 1774 among other things, that extended the borders of Canada with the view to hemming in the rebellious colonies. In 1774, Canada was to include territory that had been claimed by the French: the Great Lakes, the valley of the Ohio, and part of the basin of the Ohio. The act provided Canada with a government. It was one, as Pitt's biographer was to observe, that was "destitute of all constitutional checks." Von Ruville continued, "The legislative council was to be appointed by the king, and the decision of all important matters was to be referred to the 'King in Council.' The ancient laws without a trial by jury were restored. The Roman Catholic religion [seemingly in exchange] received legal recognition."12

The next piece of British parliamentary legislation to effect Canada came in the same year that France struck her new Constitution. We have seen where the American Revolution drove thousands of loyalists into the remaining British provinces of America. While Quebec, as we know it today, got its share of loyalists, those that fled to Canada headed mostly to that part which was to become known as Ontario. The Constitution Act of 1791, opposed by the British inhabitants of that part which was to become Lower Canada, divided Canada into two parts with the intended effect of creating harmony. The French would be left in the majority in the one province, Lower Canada, and the English would be left in the majority in the other province, Upper Canada. "The British parliament reserved to itself the right of providing regulations, imposing, levying and collecting duties, for the regulation of navigation and commerce to be carried on between the two provinces, or between either of them and any other part of the British dominions or any foreign country."13 The Constitution Act of 1791 did not have its intended effect, especially in Lower Canada. Disharmony between the French and English populations continued, and relationships were further soured by those political problems naturally arising when a representative government is coupled with an irresponsible executive. This acerbity was "aided by the want of good municipal institutions; and the same constant interference of the imperial administration in matters which should be left wholly to the provincial governments."

John George Bourinot makes the point that large territorial governments can not function well without good municipal institutions, or local self-government. Much of the municipal setup as came about in Nova Scotia, was adopted from England. England, unlike Continental Europe, was to a very large extent self-governing and decentralized. Just about all local matters were handled by Justices of the Peace, distinguished gentlemen, often churchmen. I again turn to the respected historian Paul Johnson:

"In so far as anything at all was done, the instrument was the Justices of the Peace at Quarter Sessions, whose main work was not judicial at all but administrative and legislative. They made new local laws by pretending to interpret the old. They set a county rate and approved parish rates, and they saw to it that parishes produced funds and/or labor or both to mend bridges. These sessions, or assizes, brought out most of the leading figures in the county, lay and clerical (about half the Justices were parsons by 1815) four times a year. ... Since the justices combined executive, legislative and judiciary functions all in one, they could when they met take any action they saw fit to deal with local emergencies.14

"There was then [c.1790] no regular police establishment in the town [Halifax], the magistrates, by turns, attended to police duties with the aid of the town constables, who were annually appointed. All special matters were discussed and settled at the special sessions, which was generally a private meeting of magistrates in the back office in conjunction with the Clerk of the Peace. Criminal charges of a delicate nature, or when private character was likely to be affected, were usually investigated with closed doors, and no information made public until found to be necessary for the ends of justice."15

In Nova Scotia, Governor Lawrence, pushed into it by the home authority, called into being a representative assembly. Back on October 2nd, 1758, the first representative assembly19, ever held in what is now known as Canada, met at the Court House in Halifax (at the corner of Buckingham and Argyle).20 One should observe, however, that these first assemblies were more advisory than legislative. The assembly could not tax, except to the extent that "the inhabitants of any town or district might be authorized to assess or levy within its precincts for roads and ordinary local services."21 Up to this time, it seems if the governor wished to know what the law might be in Nova Scotia, he would turn to his well thumbed copy of the Law of Virginia. Richard Philipps, who early in the 18th century was appointed governor of Nova Scotia, put administrative procedures in place at Annapolis Royal based on a copy of "His Majesty's Instructions to his Governor in Virginia." In April of 1721, imitating Virginia, Philipps set up a general court at Annapolis Royal with the Council to act as a judicial panel. So, with the calling together of the legislative assembly in 1758, no longer were Nova Scotians to look to the laws of another English colony to see what it was legally able to do and not to do. The governor was to be guided "by such reasonable laws and statutes as hereafter shall be made or agreed upon with the advice and consent of Council (membership of which came about as a result of Royal appointment) and the Assembly." The province had come of age.

Notwithstanding the establishment of a elected assembly, the governor was to continue to have considerable power and cannot be compared to the figurehead Lieutenant-Governor which the province has these days. The governor had, from the times of Cornwallis, a group of men (the Council) which he selected and with which he met and which guided him in his decisions. By 1755, membership on the Council was set at twelve, picked by the Governor, but which members must be confirmed by the authorities back in London. Usually it was rubber-stamped. The governor was to summon and call general assemblies of the "Freeholders and Planters." "The governor, council, and assembly were to have full legislative power subject to disallowance in England, although their statutes and ordinances were 'not to be repugnant but as near as may be Agreeable to the Laws and Statutes of this our Kingdom of Great Britain.' The powers of veto, and of summoning, proroguing, and dissolving assemblies belonged to the governor. He also had 'full power and authority with the advice and consent of our said Council to erect, constitute and establish such and so many Court of Judicature and publick Justice within our said Province and Dominion as you and they shall think fit and necessary for the hearing and determining of all cases as well criminal and civil according to law and equity.' He [the governor] was to appoint judges and to have the power of pardon."22

Governor Cornwallis, in the setting up of Halifax in 1749, was responsible for -- and completely in charge of -- all those souls, both military and civilian, who disembarked with him upon the shores of Chebucto. Within a month of his arrival, in July of 1749, he commissioned individuals to act as Justices of the Peace. Why, when there must have been so much to do, did he feel this to be necessary at such an early stage in the building of this far-flung outpost? Simply because this was a British outpost. The functions of the Justices of the Peace have already been briefly stated. We saw where the historian, Paul Johnson, made reference to the Quarter Sessions and how they were a "weighty source of stability for England during these difficult years" and characteristic of all British institutions. It was a court of limited criminal and civil jurisdiction, and of appeal, held quarterly by the justices of peace in the principle communities throughout Nova Scotia. Most of the criminal matters were dealt with at the quarter-sessions.

Simeon Perkins at Liverpool was such a magistrate, and we can see in his diary where he made regular reference to the local administration of justice at that place, for example:

1783: 11 Apr, Fri: "The courts both set at 2 o'clock, license the taverns, regulate the abuses on the roads, & establish a ferry for the ensuing year etc. ..."
1789: 11 Nov: "[Two men broke in to Perkins' cellar] The court pronounced sentence against Nathan Buck, to be whipped 20 stripes, & pay costs. John Ames Buck sentenced to one hour in the stocks, & pay costs. The sentence immediately executed."
1791: 17 May: A thief was tried at Liverpool. Found guilty, he was sentenced to be whipped thirty strips at ye post and pay costs. The convicted person could not pay the costs so he was jailed until he could?
1801: 29 Jan: "... Consultation about the Small Pox is held at the Court House. ... General Inoculation ... some against it." [Several houses are designated "Pest Houses" where those suspected of small pox are to be placed; a white flag is to be hung at all infected places.]
1810: 12 Apr: "... The courts set Joseph Buxton black boy is examined. He confesses himself guilty of taking the weights & puts himself on the mercy of the court. After some other business he is sentenced to 20 lashes on his naked back."

A case of a more serious nature, such as one which might require a sentence of death, was not heard by a court of quarter sessions, though the accused might initially be arraigned before it. These more serious matters were heard by a Court of Assize. The Court of Assize held sessions periodically in each community for the purpose of administering civil and criminal justice by the judges of the superior court of the province, the Supreme Court of Nova Scotia. This superior court was at the capital, Halifax. The judges of the Supreme Court, however, were obliged to travel on circuit at particular times of the year, so to hold assizes in the various communities throughout Nova Scotia. This process goes back a long way. It was established in England by the Magna Carta in that the judges were to visit each county once every year to take assizes. The main reason was so that the jury, who constituted the Grand Assize (Grand Jury) which could constitute a large number of people, might not be obliged to travel from remote corners of England to appear in court at Westminster. It was a system that lasted in Great Britain right up to 1971.

This system of the judges of the superior court was first established in 1774. In addition, to Halifax, the communities to which the Supreme Court judges were required to travel and hold court were then identified as being Horton, Annapolis, and Cumberland.23 There were then, on the Supreme Court, only two judges and a chief. Two of the three were required to sit to hear a matter. Stephen DeLancey (brother to James DeLancey), a loyalist lawyer that came up from New York, circa 1783, wrote London to suggest that more judges were required if justice was to be done.24 Two -- and the chief did not like to travel -- were out on circuit twice a year25, once in the spring and then again in the autumn. DeLancey was to write in 1786:

"There are at present no roads from Halifax either to the County Town of Sydney or Shelburne, and the voyages by sea are precarious and in some degree dangerous -- so that to ascertain exactly that the judges will be present at the appointed time of opening the court it is necessary that they leave Halifax a considerable time before that appointed for the sitting of the court ..."26

"From Shelburne, we may set aside all thoughts of traveling onwards upon wheels; indeed, such mode is not very advisable even thus far. An associate judge of the Supreme Court very nearly broke his neck not many months ago, in consequence of the bad state of the Barrington roads; and if the province continues to extort such journeying from elderly gentlemen, it is not improbable the Bench may, ere long, present a few vacancies."27

There was a greater reason, we suppose, to set an example to those men who were in the armed forces than those who were but civilians. There are numerous examples of military men who were put to death, usually because they were found guilty of mutiny. On September 18th, 1809, six mutinous seamen of the Columbine were "hung in gibbets on Mauger's beach."31 Two months later, on November 23rd, Edward Jordan was "hung in chains" on the beach at Black Rock Point near Freshwater Bridge. Jordon was convicted of piracy and murder on board the Three Sisters.32 For certain of the less serious crimes the Supreme Court would order that one of the convict's ears be cut off -- one-eared men were to be avoided.33 As late as July 25th, 1825, "John Puttum, for forging province notes, was sentenced to one year's imprisonment, one hour in the pillory, and to have one of his ears cut off."34

Except at Halifax, there were no provincial prisons, though each community had its own lock-up or jail. From all appearances the jails were there merely to secure those charged with offences. If the guilty had money (or family that would go good for them), the preference seems to have been to fine them. For those who could not pay, there were the corporal punishments to which we have already referred. The communities were not prepared to go to the expense of keeping convicted criminals for any length of time.

It seems that the first civilian prison was established in Halifax in 1815. It was named after the well know prison in England, Bridewell. The preamble to the legislation setting up Bridewell, declared that "it is expedient for the suppression of vice, and the correction of disorderly persons within the township of Halifax, that a Bridewell, or House of Correction, should be established ..." A Justice of the Peace had authority to commit a person to Bridewell, "to be kept, governed and punished." Persons liable to be put into Bridewell, were "all disorderly and idle persons, and all persons who shall be found begging, or practicing an unlawful game, or pretending to fortune-telling, or common drunkards, persons of lewd behaviour, vagabonds, runaways, stubborn servants, apprentices and children, and all persons who notoriously misspend their time to the neglect and prejudice of their own or their family's support, upon due conviction ..."35 We might add that, while in jail, it was expected that the prisoner, through his friends or family, would supply his own food or make arrangements with the jailor, viz. pay him jail-money.

At Halifax, because of its military establishments, both army and navy, there had been a need for a military prison since the first days of its founding in 1749. The first formal structure built as a military prison was the one on Melville Island at the head of the Northwest Arm just west of the Halifax peninsula. Today it is the location of the Armdale Yacht Club. (One can still see the broken glass imbedded into the tops of certain of the exterior walls.) The establishment of the Melville Island prison took place, it is thought36 in 1793. It was the first year of the long Napoleonic wars (1793-1815). It was in that year -- an event to which we have previously referred -- when an expedition was fitted out at Halifax under General Ogilvie. This British force sailed to the French Islands of St. Pierre and Miquelon. The French there gave up without a fight, and, in the result, six hundred French prisoners were brought to Halifax in June of 1793. Governor Wentworth, with a view to being helpful, took a lease on Melville Island for £60 a year. At the time there was "a dwelling house and buildings erected for a fishery." He fitted the place out to receive a number of prisoners, but as Murdoch tells us, "General Ogilvie preferred to lodge them in the Cornwallis barracks, in the town." At some point, however, with the government having purchased the island and secure buildings having been built on it, prisoners (French, and at a later point American) were kept there. Many were left to go about their business in the town, hiring themselves out to the locals, so as to make a little money to pay for their keep. There probably were a number, however, who needed constant guarding. For example, in 1811 we see French prisoners being put to work on the Dartmouth and Truro roads.37 At one point, February 13th, 1814, a public notice went out:

"[I]nhabitants of Halifax and its vicinity, having either American or French Prisoners of War in their employment, are hereby required and requested to send them to the Prison at Melville Island on Monday next, the 21st inst. for the purpose of attending a general Muster.38 No excuses will be admitted for non-attendance." -- Wm. Miller, Agent for Prisoners of War. 39

The expense of keeping prisoners-of-war at Halifax was reduced by trading them for British prisoners. Such trades were beneficial to both of the warring sides. In 1812, an agreement was struck which provided in Clause Three:

"American prisoners taken and brought within any of the dominions of his Brittanick majesty shall be stationed for exchange at Halifax in Nova Scotia-- Quebec, Bridgetown in Barbadoes, Kingstown in Jamaica-Falmouth and Liverpool in England and at no other posts or places. -and British prisoners taken and brought into the United States shall be stationed at Salem in Massachusets- Schnecteday in the state of New York-Providence in Rhode Island- Wilmington in Deleware, Annapolis in Maryland-Savannah in Georgia-New Orleans in Louisiana and at no other ports or places in the United States. -The Government of Great Britain will receive and protect an agent to be appointed by the Government of the United States, to reside at or near each of the before mentioned places in the British Dominions for the purpose of inspecting the management and care which is taken of the American prisoners of war at each station: and the Government of the United States will in like manner receive and protect an agent, to be appointed by the British Government to reside at or near each of the stations before mentioned within the dominions of the United States for the like purpose of inspecting the management and care taken of the British prisoners of war at each of the stations ..."41

To close this part of our History, we turn to the Nova Scotian historian, Beamish Murdoch, who wrote:

"There appears to be very little of local affairs during 1810, of which I can find any record. The newspapers of Halifax are filled with the war in Europe, &c. - the sailing or arrival of men-of-war, and ordinary advertisements. The official letters of the governor are brief and few. Occasionally a play is notified, performed by the officers of the garrison. The Rockingham club has its Saturday dinner, at 4, p.m., (held, I believe, at the Rockingham inn, about 6 miles from town, West side of the basin.) Addresses are published from the inhabitants to general Hunter and admiral Warren, and the merchants of Halifax give the latter a public dinner on the 26 November, at Mason hall, at which Mr. Belcher presides, and Mr. Hartshorne is vice president, - and about 160 sat at table. Saint Patrick's day has its public dinner, &c. In fact, while war raged elsewhere, Nova Scotia was peaceful, busy and prosperous, (on a limited scale), and free from disturbance, agitation or crime."44

-- The End Of Part 4 Of Book 2.

[NEXT: PART 5 -- "The War Of 1812: Eastern Theatre."]

(Now Available As A Book)