Other profound implications of this decision seem to have been overlooked.
The upholding of one 18th century Royal Treaty in respect of Nova Scotia argues that all such revelant treaties also remain valid. Of various such agreements, the two of greatest consequence at the present day, which currently are overlooked by Nova Scotian officialdom are the Treaty of Union (1707) and the Treaty of Utrecht (1713).
The Treaty of Union provided that, in the Union of the countries of Scotland and England, what had previously been Scottish territory would retain, in perpetuity, its own distinct and separate Legal System, a system which was fully codified by James Dalrymple (the Viscount Stair) in his 17th century tome on the subject. This is the same legal system which came recently to prominence in the matter of the Hague trial of those accused of perpetrating the Lockerbie Air Disaster.
Nova Scotia was granted as a Scottish colony in 1621 by King James (of Bible fame) acting in his capacity as the sixth King of Scots to bear that name. (He also happened to be the first King James of England.) Nova Scotia had a tenuous existence during the 1620s and the North American part of the colony was ceded to France in 1632 by James's son, the ill-fated Charles. However, before that happened, a detached part of Nova Scotia had been established as an enclave wholly within Scotland and this continues to exist up until the present day, although its precise location is now either indeterminate or else purposely kept obscure for fear of international squatting incidents. Throughout the rest of the 17th century, this European part of Nova Scotia was not only well delineated at Edinburgh Castle, but was in continual use as the place where Baronets of Nova Scotia were created, a practice which continued right up until the formation of the united country of Great Britain in 1707, a union which was strongly promoted by John Dalrymple, the first Earl of Stair, son of James Dalrymple the legal doyen. John Dalrymple had himself, during his rise to prominence, become a Baronet of Nova Scotia and had received the title, like all the other such baronets, within the bounds of the European enclave of our Province.
In the year 1707, the North American part of Nova Scotia was still nominally controlled by France, but that country was not doing so well in European wars of the time and eventually, in 1713, was compelled to relinquish control of the mainland parts of Nova Scotia. The 1713 Treaty of Utrecht returned mainland Nova Scotia, not to England, nor to Scotland, but to the United Kingdom of Great Britain, thereby restoring to a large degree the glory of the early 16th century Nova Scotia which, though it had survived continuously in the meantime, had done so in the much reduced size of the small European N.S. enclave in Edinburgh.
In 1721, a Governor Philipps was appointed to the new British base at Annapolis Royal and it was there that he perpetrated one of the earliest boondoggles of a 3 century succession of such things in Nova Scotia. What he did was to set up a Court for settling disputes following the pattern of English Common Law, because he happened to have a copy of an instruction leaflet for doing such things. The only problem was that that set of instructions was meant for use in Virginia. Its use in Nova Scotia was unquestionably contrary to the provisions of the 1707 Treaty of Union.
In 1763, an edict went out from the Court of St. James to the empire in North America in general that all colonies which had not established viable alternative legal systems were to adhere to a system based upon the English Common Law. It is likely that King George had not been properly briefed on his history and on his responsibities in his capacity as King of Scots. In the case of Nova Scotia, such an edict has to bow to the provisions of the earlier Treaty of Union. Quite why the edict was accepted in Nova Scotia in the 1760s, is unclear, but it is not too late to change to what is right. Only a reversion to a system based not on English Common Law but upon Scots Law will satisfy the relevant 18th century treaties and uphold the Majesty of the Crown in the manner demanded by the Supreme Court of Canada. Such a revision would not likely cause great disruption to the conduct of everyday affairs in Nova Scotia and would certainly not preclude those aspects of aboriginal or Acadian regulatory practices which are in use here, nor would it render void many acts of the Legislature.
This long overdue correction would, however, administer an appropriate admonishment to a Nova Scotian legal clique which seems far too much imbued with its own importance and its ability to profit by fostering dispute than with its proper potential to serve the Province well by mitigating it. Some time back in school mugging up on the re-instated Scottish system would perhaps help to instill in them a little overdue modesty as well.
13 Feb 2001
Alasdair McKay