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HALLIBURTON, Sir BRENTON, army officer, lawyer, judge, and politician; baptized 27 Dec. 1774 in Newport, R.I., son of John Halliburton and Susannah Brenton; m. 19 Sept. 1799 Margaret Inglis, and they had four sons and five daughters; d. 16 July 1860 in Halifax.
Raised in a clerical family of Scottish descent, Brenton Halliburton’s father served on a British frigate during the Seven Years’ War and afterwards started a medical practice in Newport. The Halliburtons and Brentons were among the leading loyalist families there and, during the American Revolutionary War, John Halliburton had to flee the town after the rebels obtained control. Settling in 1782 in Halifax, where a brother-in-law, James Brenton*, was an assistant judge on the Supreme Court, he became head of the Royal Navy’s medical department and resumed private practice. When Brenton was about 12, his father took him to join his elder brother John, who was being educated in Scotland, but Brenton was placed instead at the school of the Reverend Mr Shaw at Enfield (London), England. After his brother’s death in 1791, he was brought back to Halifax, where he began to study law in the office of his brother-in-law James Stewart, a loyalist from Maryland.
At the commencement of war with France in 1793, Halliburton joined the Royal Nova Scotia Regiment, but two years later was transferred as a lieutenant to the 7th Foot, the regiment of Prince Edward* Augustus, commander of the forces in Nova Scotia and New Brunswick. While in command of York Redoubt, at the entrance to Halifax Harbour, Halliburton was thanked by the prince in public orders for his endeavours to rescue part of the crew of a wrecked frigate, the Tribune. In 1798 he was posted to a company in the 81st Foot, but Prince Edward transferred him back to the 7th. The next year he married a daughter of Charles Inglis*, the Anglican bishop of Nova Scotia. His marriage, and his belief that the Treaty of Amiens in 1802 ended the war with France, made Halliburton decide to return to law. He resumed his studies with James Stewart, who had become solicitor general; Halliburton signed the roll as an attorney on 12 July 1803 and was admitted as a barrister on the same day. He began practice as an assistant in Stewart’s private office and most of his early cases, in the Vice-Admiralty Court, concerned shipping.
The Halliburton family, through its position in Halifax’s social élite, was able to assist Brenton’s career. On 10 Jan. 1807, following the death of his uncle Judge James Brenton, Lieutenant Governor Sir John Wentworth* appointed him a puisne judge of the Supreme Court, a position Brenton thought would be less detrimental to his health than being confined in an office. Upon being sworn in, “I . . . returned home and prostrated myself before the Almighty to thank him for this instance of goodness to me.” Chief Justice Sampson Salter Blowers* was pleased with the appointment because former puisne judges had not had legal training. In 1819 Lieutenant Governor Lord Dalhousie [Ramsay*] described Halliburton as a judge “highly respected in publick & private life, a loyal subject, & a morally good man . . . peculiarly distinguished by great fluency of conversation, & a loud & vulgar laugh at every word.” In the opinion in 1887 of Peter Lynch, a Halifax lawyer and historian, Halliburton’s “law was not very extensive, but like his wine it was of the best quality.”
The Supreme Court travelled regularly on circuit throughout the province to try a variety of cases: debt, trespass, theft, assault, stabbing, rape, murder, arson, and casting away a vessel for the insurance. On circuit, Halliburton, in the opinion of a fellow judge, Peleg Wiswall, was “a very pleasing associate.” A spectator in a Windsor courtroom described him as “a small, delicate, light complexioned man.” Though good-humoured and sociable (he enjoyed public dinners and Scottish reels), he disliked the arduous journeys which circuits to Cape Breton involved. In 1825 he wrote, “I by no means wish to repeat my visit to that Island, oftener than my tour of duty calls upon me to do so – out of the four circuits which the Supreme Court has travelled thither, I have performed three, and I have taken the easy circuit to the Westward but once during these last seven years, altho my private business had compelled me every year, to visit that part of the Country, after returning from the eastward.” Yet he recognized that by travelling the circuits as frequently as possible, he could in later life, as he admitted to Peleg Wiswall in 1833, “remain at home with a better grace when I shall feel it necessary to do so.”
After several years on the bench, Halliburton was made a member of the Council by Lieutenant Governor Sir John Coape Sherbrooke*; his appointment took effect on 20 June 1815 and he took his seat on 26 October. The appointment solidified his position at the centre of an emerging “family compact.” Between 1816 and 1837 he attended the Council faithfully. He was frequently appointed with others to manage joint conferences with the House of Assembly when it sat, and he served on committees dealing with legal matters, roads and bridges, fisheries, and schools. After Inglis died in February 1816, Halliburton maintained his father-in-law’s moderate position on sectarian issues, in opposition to such extremist members of the Council as Attorney General Richard John Uniacke*. Thomas McCulloch* and Edward Mortimer* applied to Halliburton in 1816 to aid them in obtaining an act to incorporate an academy in Pictou for Presbyterians. Halliburton responded that “being himself a Churchman, and as warmly attached to his Church as they were to theirs, he would not concur in any measure that would establish a common centre for all Dissenters to rally round, but as a member of the Legislature in a Country where Dissenters formed so large a part of the population,” he promised his support “in their endeavour to establish a Seminary for the education of their own youth.” The bill, which passed that year with an amendment proposed by Halliburton, allowed Anglicans as well as Presbyterians to become trustees and teachers of the academy. Along with the other political moderates on the Council, Surveyor General Charles Morris*, James Stewart, and Simon Bradstreet Robie, Halliburton continued to support Pictou Academy until 1827. The four moderates all had strong ties outside of the capital and had offices which made them more responsive to provincial interests. In February 1827, however, Halliburton reversed his position on Pictou Academy because of the open disputes between McCulloch, its first president, and Bishop John Inglis*, Halliburton’s brother-in-law, and the opposition of the Church of Scotland, as an established church, to both the academy and secessionist McCulloch. Halliburton’s provincial perspective, or his basic tory inclinations, led him to write an anonymous pamphlet in 1828 attacking Thomas Chandler Haliburton*, who had made sweeping criticisms of Council members as “pensioned old ladies,” most of whom “think all the world is contained within the narrow precincts of Halifax.”
Until the late 1820s Halliburton had acquiesced in Attorney General Uniacke’s ambition to succeed Sampson Salter Blowers as chief justice. As Uniacke “gradually retired from the labours of the Bar and approached the decline of life,” Halliburton informed him that “the idea almost gradually arose in my mind that I should myself have claim to the office.” In 1829, at 54 years of age, he was the youngest man on the bench but had long been the senior puisne judge. As well, a financial crisis caused by his sisters’ entitlement to monies from his father’s estate, which he had used for a new house, probably sharpened his desire for the greater emoluments of the chief justiceship. In memorials to the Colonial Office he claimed that he had been recommended for the position by four successive lieutenant governors: Sherbrooke, Dalhousie, Sir James Kempt, and Sir Peregrine Maitland. He had carried on the duties of chief justice without extra pay, he pointed out in 1832, for Blowers, “who was an aged man when I went upon the Bench, has never travelled a circuit since my appointment and as his advanced years have long rendered him unable to attend the Courts, I have presided there, for the last ten years.”
Contention for the chief justiceship was to enter into the fierce “Brandy Election” of 1830. The main reason for the election was the dispute between the assembly and the Council over the control of taxes [see Enos Collins*]. But the rivalry which developed between Halliburton and Solicitor General Samuel George William Archibald* over the chief justiceship and their constitutional differences in the Council on revenue matters were both major factors. A manifesto published by the Council in 1828, but written by Halliburton, maintained that the Council had the legal right to reject money bills. In January 1831 Maitland intervened in the contest between Halliburton and Archibald when he sent the former to England, ostensibly to object to the reduction of imperial duties on foreign timber imported into Great Britain. Though he would handle other matters of provincial business there, including support for a provincial bill on the incorporation of dissenting congregations, many, such as Judge Lewis Morris Wilkins*, clearly recognized the trip as “a fine opportunity” for Halliburton “to exert his interest to procure the reversion of the Chief Justice’s appointment.” In Wilkins’s estimate, “Halliburton is strong and swift, and may have good bottom, but all must at time yield to superior Judgeship. . . . I wish success to Archibald; he is a mild, gentlemanly man and would make a pleasant Chief, and his legal abilities are quite equal to, if not superior to the other, who I think has a little tyrannical blood in him.” As a result of Halliburton’s trip, Archibald was forced to launch his own lobby in England. Halliburton’s absence from the bench became a matter of some concern when his stay dragged on for months since he refused to return until Archibald did. “We miss [him] very much,” William Blowers Bliss*, a Halifax lawyer and mha, informed his brother Henry*, “and need him at the Court which is filled by ignorance and prejudice and is going to the deuce.” By December he was back in Halifax.
During his absence, Halliburton’s views on constitutional change apparently altered, the result perhaps of his reaction to Lord John Russell’s Reform Bill and of at least one interview with Lord Goderich, the colonial secretary. In 1830, in response to Lieutenant Governor Maitland’s request for his opinion on an enlargement of the Council, Halliburton had recommended, in radical fashion, the formation of a separate legislative council and an increase in the number of seats in the assembly. However, writing from London in March 1831 to Simon Bradstreet Robie about the issue of popular representation, notably an elective legislative council, he noted that “there is little danger at present of the hasty adoption of any mischievous measures relative to Nova Scotia. I think they will leave us as we are, or make trifling alterations.” A strong tory, one who had experienced the effects of the American and French revolutions, Halliburton distrusted democracy.
On 4 Dec. 1832 Lord Goderich announced that, following the retirement of Blowers, the chief justice was to be Halliburton, “who has for many years discharged the principal part of that office.” His commission, dated 13 Jan. 1833, was announced to the Council the following month by the provincial administrator, Thomas Nickleson Jeffery*. The influential Novascotian, which was edited by Joseph Howe*, the leader of Nova Scotia’s emerging reform movement, reported “great diversity of opinion respecting the propriety of the choice.” On the legal side it blamed Halliburton for allowing the bar “to discuss points long since settled, talk against time, and . . . spend whole days in the discussion of causes that ought to be settled in a few minutes.” Halliburton’s appointment as chief justice brought him directly into the developing dispute over judicial independence. In 1830 Lord Goderich had instructed Maitland not to admit any more puisne judges to the Council, a move which had come out of the growing desire within the assembly to have judges excluded from political bodies. Three years later, when Halliburton received his appointment, the Novascotian argued that the chief justiceship “should have been filled . . . from England – by a perfect stranger to our local parties and political contentions – a man trained in the higher tribunals.” Further, evidently in reaction to Halliburton’s position within the “family compact,” it condemned his partisan activities. In its reply to an address by the assembly, however, the Council claimed that the presence of the chief justice in its midst was compatible with British practice. Nevertheless, in 1837 the British government decided that none of the judges in Nova Scotia, including the chief justice, should sit in a restructured council. On 23 Dec. 1837, when Halliburton’s withdrawal took effect, members of the Council presented him with an address.
Also of consequence to him during the 1830s was the debate over the transfer of casual revenue to the provincial legislature in return for a permanent civil list, a controversial matter involving the abolition of judicial fees, which had traditionally formed a substantial supplement to the income of the chief justice. In 1839 the Colonial Office directed the lieutenant governor to pay the judges set salaries and abolish fees. Halliburton accepted the proposal, though the resulting financial loss probably exacerbated his difficulties in meeting the expenses of a large family and maintaining his social position in Halifax.
Halliburton owned two estates in Halifax as well as valuable lands in Pictou and in the Annapolis valley. During his rise to prominence as a lawyer and judge, he had taken part in many of Halifax’s social and religious organizations, including the Hand-in-Hand Fire Company, the Turf Club, and the Provincial Agricultural Society. A leading Anglican, he was a zealous member of the diocesan Church Society, the Bible Society, and the Sabbath Alliance, and he served as a trustee of the Halifax Grammar School, the National School, and the Royal Acadian Society [see Walter Bromley*]. In 1833, at the request of the colonial under-secretary, Robert William Hay, he helped raise funds in Nova Scotia to purchase the Scottish home of Sir Walter Scott for his heirs.
Though Halliburton was removed from the Council in 1837, he remained active as chief justice. His career in that office, from 1833, was to cover 27 years. Only in 1853 were records and papers of the Supreme Court covering the period 1834–41 collected and edited by James Thomson, so that the documentary record of Halliburton’s service is not full. The cases heard by him during the years reported, which included charges of trespassing, breaking and entering, defaulting on promissory notes, and breach of promise of marriage, often necessitated judgements on rules of evidence, marine insurance, and land titles. Though Halliburton presided at Joseph Howe’s trial for libel in 1835 and voiced his opinion that the outspoken editor was guilty, Howe described him in 1851 as a “capital judge.” According to Halliburton’s obituary in the Digby Acadian, he was “an industrious and thorough legal student” who “made himself perfectly conversant with every new treatise of value upon law; and he was familiar with the improving practice and accumulating decisions of the English Courts.” On occasion he also quoted American legal precedent. In the case of Lessees of Lawson et al. v. Whitman in 1851, for example, he introduced into Nova Scotia law the American doctrine of constructive possession of land. The defendants cited American authorities for allowing a squatter, for a period of 20 years, entitlement not only to the land he occupied but also to all the land described in the title under which he claimed to hold the land, whether it was occupied by him or not. Halliburton observed, “The situation of lands in this Province resembles that of those in the United States so much more than those old and cultivated lands in the Mother Country that we may frequently consider with advantage the view which their courts have taken of questions of this nature.”
During his career as chief justice, Halliburton performed various related judicial functions. In 1851 the legislature appointed him to a commission to study the possible abolition of the Court of Chancery. Partly because they took so long in studying chancery reform in England, the commissioners were unable to agree by the time the commission was to end and in March 1852 they submitted individual reports, followed early the next year by further commentary on British legislation. Charles James Townshend*, a judge on the province’s Supreme Court, later wrote that Halliburton’s views reflected long experience and thorough acquaintance with the whole subject and were expressed in vigorous and clear language. Halliburton pointed out that, if abolished, the Court of Chancery would have to be re-established, which it was in 1864 as the Court of Equity under Judge James William Johnston*.
Advancing age and infirmity prevented Halliburton from going on circuit during the 1850s but he attended court in Halifax until as late as January 1859. That year Queen Victoria bestowed a knighthood upon him. Though increasing blindness must have caused difficulties, he took it for granted, even in his 85th year, that he would remain chief justice until his death. After enduring a long illness which reduced him “to the proportions of a child,” he died on 16 July 1860 and his burial three days later was conducted by Bishop Hibbert Binney*. Halliburton was succeeded as chief justice by William Young*.
Sir Brenton Halliburton published a number of pamphlets anonymously during his lifetime, including Observations upon the importance of the North American colonies to Great Britain, by an old inhabitant of British America (Halifax, ), another edition of which, entitled Observations on the importance of the North American colonies . . . , was published in London in 1831; Report of Mr. Bull’s jury, ex-officio, on the late conduct of his servants, in a certain public establishment ([Halifax], 1829), a copy of which is available at PANS; and Reflections on passing events; written prior to the termination of the late war with Russia, by an octogenarian (Halifax, 1856). The last of these is included in a collection of three works published after his death in two private editions: the first, John Bull and his calves (written previous to the Canadian rebellion); Addressed to Louisa Collins, who died at Margaretville, 16th of Oct., 1834, aged 1 year and 5 months; Reflections on passing events, appeared as an appendix to G. W. Hill’s biographical Memoir of Sir Brenton Halliburton, late chief justice of the province of Nova Scotia (Halifax, 1864), and the second, John Bull and his calves; Address to a mother, on the death of a young child; and Reflections on passing events, was published separately. Neither edition of John Bull bears a date or place of publication, but they were most likely also published in Halifax in 1864. Hill’s Memoir also appears in two editions, alike except that one includes the John Bull pamphlet as a separately paged appendix, while the other does not. In addition, some of Halliburton’s writings appear within the Memoir itself, including a republication of the Observations on the importance of the North American colonies on pages 121–43, and a satirical essay, “Critical state of the Bull family,” on pages 143–57.
A full-length oil portrait of Halliburton, painted in 1820 by Albert Gallatin Hoit, hangs in the courtroom of the Nova Scotia Supreme Court in Halifax.
Halifax County Court of Probate (Halifax), Estate papers, no.926 (mfm. at PANS). Newport Hist. Soc. (Newport, R.I.), Trinity Church, reg. of baptisms, 27 Dec. 1774. PANS, MG 1, 226, nos.31–32, 37, 40, 42, 44, 48–49; 334; 805, no.10: 24; 979–80; 1490, no.3; 1596, 1598–99; RG 1, 173: 402; 293, doc.110; 304, no.91; RG 5, A, 15, 16 Dec. 1808; P, 69, 1828, 1830; RG 8, 1, no.2; RG 39, J, 14–16, 39, 120, 122, 131; M, 45. PRO, CO 217/149: 168–77; 217/153: 471–72; 217/154: 397–401. Joseph Howe, The speeches and public letters of Joseph Howe . . . , ed. J. A. Chisholm (2v., Halifax, 1909). Letters and papers of Hon. Enos Collins, ed. and intro. C. B. Fergusson (Halifax, 1959), 14–16, 23–34. N.S., Supreme Court, Law reports: containing decisions . . . between 1834 and 1841 (Halifax, 1853). PANS, Report of the Board of Trustees (Halifax), 1955: 18. Ramsay, Dalhousie journals (Whitelaw), 1: 54, 66, 104–5, 111, 166–71, 188–89, 191–95. Acadian (Digby, N.S.), 24 July 1860 (copy in PANS, MG 1, 334, no.98). Acadian Recorder, 24 June 1826, 20 Feb. 1830. British Colonist (Halifax), 17 July 1860. Colonial Patriot (Pictou, N.S.), 20 Aug. 1833. Liverpool Transcript (Liverpool, N.S.), 9 June 1859. Novascotian, 13 July 1826; 14–15 April 1830; 7, 21 Feb., 4 March 1833; 10 Jan. 1848. Beck, Government of N.S. Brian Cuthbertson, The old attorney general: a biography of Richard John Uniacke (Halifax, ). Judith Fingard, The Anglican design in loyalist Nova Scotia, 1783–1816 (London, 1972). S. W. Spavold, “Nova Scotia under the administration of Sir Colin Campbell” (ma thesis, Dalhousie Univ., Halifax, 1953). The Supreme Court of Nova Scotia and its judges, 1754–1978 (n.p., n.d.). C. J. Townshend, “Historical account of the courts of judicature in Nova Scotia,” History of the Court of Chancery in Nova Scotia (Toronto, 1900), 3–60. A. W. H. Eaton, “Bishop Charles Inglis and his descendants,” Acadiensis (Saint John, N.B.), 8 (1908): 191–94, and “Correction,” 335. Peter Lynch, “Early reminiscences of Halifax – men who have passed from us,” N.S. Hist. Soc., Coll., 16 (1912): 196–97. Norah Story, “The church and state ‘party’ in Nova Scotia, 1749–1851,” N.S. Hist. Soc., Coll., 27 (1947): 33–57.