Sedition in Nova Scotia: R. v. Wilkie (1820) and the Incontestable Illegality of Seditious Libel before R. v. Howe (1835)

Thomas Beamish Akins, in his historical work on early Halifax, strongly criticized the 1820 trial of William Wilkie for (seditious) libel against local magistrates. Wilkie’s pamphlet, published anonymously, led to his indictment and a two-year imprisonment sentence with hard labor, sparking public sympathy. Akins condemned the trial as tyrannical and cruel, arguing that Wilkie’s offense would be dismissed in his time. Meanwhile, Beamish Murdoch provided a more neutral account, omitting Wilkie’s name and the specifics of his crime, likely to protect Wilkie’s family reputation.

Despite the lack of attention from Joseph Howe and subsequent historians, Wilkie’s trial marked a turning point in Nova Scotia’s legal history, representing one of the first prosecutions in Nova Scotia for political (seditious) libel.

The trial, a response to his public criticism of the judiciary, demonstrated the intertwined nature of prosecutorial and judicial powers within Nova Scotia’s colonial government. While Wilkie’s case was a rare instance in Nova Scotia compared to Upper Canada, it played a significant role in shaping attitudes towards sedition and political dissent.

“Writing in the posthumously published final version of his historical chronicle of early Halifax town, lawyer-archivist Thomas Beamish Akins condemned the infamous 1820 state trial, R. v. Wilkie, in these memorable words:

An anonymous pamphlet was published from the press of A.H. [Anthony Henry] Holland, charging the magistrates of the town with malpractices, which caused much excitement. It was discovered to have been written by Mr. William Wilkie, of Halifax. He was indicted for libel, tried at the Easter term of the Supreme Court [17 April 1820] and sentenced to two years imprisonment with hard labor in the House of Correction [Bridewell]. This was esteemed a most tyrannical and cruel proceeding on the part of the government. The pamphlet was a very paltry offence, such as at the present day [1839] would be passed over with contempt. Wilkie, though not a person of much esteem, yet being a member of a respectable family in the community, should have been spared the indignities thrown upon him by Chief Justice [Sampson Salter] Blowers and the other Judges of the Supreme Court. After the sentence was known, the sympathy in his favor was very general throughout the town.

T.B. Alkins, “History of Halifax City” (1895) 8 NS Historical Society Collections [hereinafter Collections] at 195.Akins’s “History” originated as a paper read to the Halifax Mechanics’ Institute in 1839 and was first published in pamphlet form in 1847.) Akins himself, having been born in 1809, was not old enough to have formed a personal opinion of the merits of Wilkie at the time. A bibliomane, Akins’s private library at one time held two copies of ‘Wilkie’s’: S.I. Stewart, comp., A Catalogue of The Akins Collection of Books and Pamphlets (Halifax: PANS, 1933) at 79.

Akins’s jeremiad begs to be contrasted with a later, perfunctory treatment of the same event by the lawyer-chronicler, Beamish Murdoch, whose narrative history of Nova Scotia contains a rather obtuse account which omits mentioning the accused by name or even specifying the crime:

At the April term [1820] of the Supreme Court at Halifax, a young man, who had published a pamphlet, imputing blame to the magistrates in pecuniary matters, and to H. M. council, for neglect of duty in not auditing their accounts according to law, was sentenced to two years imprisonment in the house of correction, at hard labor.

B. Murdoch, A History of Nova-Scotia, or Acadie (Halifax: J. Barnes, 1867) vol. 3 at 454. Murdoch’s intention may well have been to spare the feelings of William Wilkie’s elder brother, the merchant James Charles William Wilkie (1788-1867), who was a prominent and highly-regarded citizen of Halifax, having served for many years as clerk, then cashier/ accountant, of the Halifax Banking Company [“Collins’s Bank”]. The “young man” in any case was identified by the Murdoch annotator, William John Stirling, as “A worthless profligate named Wilkie,” Public Archives of NS [hereinafter PANS],RG 1,vol.525,’ at 454 [marginalium]. Stirling, however, had an axe to grind: he was the son of the late Dr. John Stirling, who had been party to a sensational Supreme Court case in 1819, which Wilkie ridiculed in his pamphlet as a “judicial farce”.

The exceedingly meagre historiography of Wilkie rests on the dual basis that William Wilkie was the Nova Scotian parallel to Robert Gourlay, “the best-known radical” of the pre-Rebellion era, (See for example, D.A. Sutherland, “Wilkie, William,” Dictionary of Cdn. Biography [hereinafter DCB], vol. 5 at 853-54; “The Merchants of Halifax, 1815-1850: A Commercial Class in Pursuit of Metropolitan Status” (Ph.D. thesis, University of Toronto, 1975) at 117-18, 134 (nn. 59-62), “1810-1820: War and Peace” in P.A. Buckner & J.G. Reid, eds., The Atlantic Region to Confederation: A History (Toronto & Fredericton: University of Toronto Press 1994) 234 at 258-9. Here, for the first time, R. v. Wilkie is correctly identified as a case of “seditious libel.”) and the precursor of Joseph Howe.

G.V.V. Nicholls, “A Forerunner of Joseph Howe” (1927) 8 CHR 224-32. No attempt is made in the course of this ambitious undergraduate article to develop the promising theme of its title. S.D. Clark, Movements of Political Protest in Canada 1640-1840 (Toronto: University of Toronto Press 1959), who has heard of Gourlay, knows nothing about Wilkie or Howe. The Nova Scotian segment of Clark’s account (at 131 et seq.), which confines itself to the period up to and including the War of 1812-before there were any movements of political protest in Nova Scotia-thus begins too early and ends too soon to realize the stated purpose of his inquiry.

[In regard to “before there were any movements of political protest in Nova Scotia” above, there are a few other instances of spirit the author doesn’t note including the Hoffman rebellion of 1753 and the period surrounding the American revolution, of which Nova Scotia played an admittedly minor part but not without battle (at Cumberland) nor legal consequence.]

While there is something to be said for these arguments from analogy-Gourlay was twice tried unsuccessfully for seditious libel on the eve of Wilkie’ s prosecution, and Howe was tried and acquitted of seditious libel fifteen years after-neither approach addresses the significance of Wilkie as a legal proceeding for a crime against the state, nor analyses it as a successful exercise in the official repression of political dissent.

On this subject see J.S. Martell, “Origins of Self-Government in Nova Scotia: 1815-1836” (Ph.D. thesis, University of London, 1935) at 178-80, 375-76. It is suggestive of the misconceived relative importance of the two trials that Wilkie was completely ignored by both Howe himself and historians of Howe, though Howe has by no means been ignored by historians of Wilkie. The only student of Howe to have pursued the comparison was its centenary historian, George Farquhart

“This is not to say that the local impact of the trial exceeded its comparative historical value; simply that the conviction, penal sentencing and apparent banishment of Wilkie administered a quietus which deferred for ten years the movement towards law reform. It was also a premature birth, or false start, to the movement for political reform.

The reform movement began in earnest as a result of the bitterly contested “Brandy Election” of 1830, in which the struggle between the executive-cum-legislative-cum-judicial Council of Twelve and the representative Assembly precipitated the final collapse of the Loyalist Ascendancy, which had subsisted for nearly forty years. The second reform movement also climaxed in a seditious libel prosecution – of the vanguard of the “emergent opposition press,” Joseph Howe – whose newspaper, the Novascotian; or Colonial Advocate was to Halifax what William Lyon Mackenzie’s Colonial Advocate was to York – Toronto. The attempt to silence Howe failed as spectacularly in 1835 as the attempt to silence William Wilkie by the same means had succeeded in 1820, largely because Howe confined his attacks to the magistrates of Halifax. Wilkie, on the other hand, commenced with the local magistracy but then broadened the scope of his attack to include every institution of government, save only the lieutenant-governor. Wilkie, a mere eight years older than Howe, epitomized the young man of destiny in a hurry; he was sadly out of his depth and ahead of his time.

The significance of Wilkie for criminal justice history lies in the fact that, while it was by no means the first state trial to have taken place in the province, it was almost certainly the first prosecution for ‘public’ or ‘political’ libel. This paper attempts to superimpose on the Nova Scotian evidence the theoretical apparatus deployed by Barry Wright in his recent, ground-breaking study, “Sedition in Upper Canada: Contested Legality,” by focusing on the Wilkie sedition trial as the oligarchy’s instinctive response to the challenge of published public criticism. That this response assumed the form of legal proceedings for a crime against the state-seditious libel-is hardly surprising, in view of the fact that three of the four judges of the Supreme Court, as well as the attorney general, were at that time members of the Council, which one early twentieth-century wag likened to Nova Scotia’s Star Chamber.’ The prosecutorial and judicial functions of the administration of criminal justice could not be considered in any degree separate or even separable. Procedurally speaking, the integrated oligarchical structure of colonial government affected the administration of criminal justice in a manner which accentuated the interoperation, rather than the separation of powers. The crown prosecutorial and judicial authorities were interdependent, rather than independent of government (of which they formed the most influential, if not the most important part).”

“The two Nova Scotian seditious libel cases-unlike Upper Canada, there was not a concatenation of cases-permit only a qualitative analysis of the significance of political prosecutions in the criminal courts, not their quantification. The thirty-four common-law sedition prosecutions in Upper Canada between 1794 and 1828, tabulated by Wright, correspond to only one in Nova Scotia during the same period. Another major divergence between the two colonies is that while in Upper Canada, “[c]ourts were not resorted to after 1828,” in Nova Scotia the second and historically more important of the two proceedings did not take place until 1835-after the second, effective reform movement was well underway. The fifteen years which elapsed between the seditious libel trials of William Wilkie and Joseph Howe suggest that sedition proceedings in Nova Scotia, unlike Upper Canada during the same period, were indeed “isolated or extreme exceptions.”” They signified the points at which sedition crystallized in the government’s mind as seditious libel, thanks to the print medium, whether pamphlet or newspaper.”

Barry Cahill, “Sedition in Nova Scotia: R. v. Wilkie (1820) and the Incontestable Illegality of Seditious Libel before R. v. Howe (1835)” (1994) 17:2 Dal LJ 458.