“The history of Kings County, Nova Scotia, heart of the Acadian land”

Governor Cornwallis initiated courts of justice based on English common law in 1749, leading to the establishment of County Courts and a General Court. This book asserts that in January 1757 (as do others), Nova Scotia took its first steps in transitioning from being ruled solely by the Governor and Council to establishing a Representative Assembly, comprising twelve members for the province and additional representatives for various townships, including Dartmouth. Members and voters were required to be Protestant, above twenty-one years old, and possess a freehold estate in their district. The first Assembly convened in October 1758 (this time without a representative for Dartmouth), followed by adjustments to representation in subsequent years.

Over time, the judicial system evolved, with the introduction of Circuit Courts and changes in court jurisdictions. The New England town meeting model influenced local governance, coexisting with courts to address various civic matters, including poor relief. Dartmouth held town meetings until its incorporation as a town. The narrative also explores the growth of Baptist communities, the role of the clergy, and the social and political dynamics during the American War. Additionally, it mentions the formation of Light Infantry companies and the challenges faced by Governor Legge in maintaining loyalty during the conflict.

Following this overview, the subsequent text comprises brief biographies of prominent figures and families who are connected to Dartmouth in some capacity.

“Until January, 1757, the Governor and Council ruled alone in Nova Scotia, at that time, after long debate, it was decided that a Representative Assembly should be created, and that there should be elected for the province at large, until counties should be formed, twelve members, besides four for the township of Halifax, two for the township of Lunenburg and one each for the townships of Dartmouth, Lawrencetown (both in Halifax County), Annapolis Royal, and Cumberland. The bounds of these townships were described, and it was resolved that when twenty-five qualified electors should be settled at Piziquid, Minas, Cobequid, or any other district that might in the future be erected into a township, any one of these places should be entitled to send one representative to the Assembly and should likewise have the right to vote in the election of representatives for the province at large.

Members and voters must not be “Popish recusants”, nor be under the age of twenty-one years, and each must have a freehold estate in the district he represented or voted for. The first Assembly met in Halifax on Monday, October 2, 1758, when nineteen members—six “esquires”, and thirteen “gentlemen”, were sworn in. At a meeting of the Council in August, 1759, soon after the dissolution of the second session of the first Assembly, the Council fixed the representation of the township of Halifax at four members, and of Lunenburg, Annapolis, Horton, and Cumberland, at two each. For the newly formed counties of Halifax, Lunenburg, Annapolis, King’s, and Cumberland, there were to be two each.”

County Government, Public Officials:

“When Governor Cornwallis came to Nova Scotia in 1749, one of his earliest acts was the erection and commissioning of courts of justice for the carrying out of the principles of English common law. In pursuance of his orders from the crown he at once erected three courts, a Court of General Sessions, a County Court, having jurisdiction over the whole province, and a General Court or Court of Assize and General Jail Delivery, in which the Governor and Council for the time being, sat at judges. In 1752, the County Court was abolished, and a Court of Common Pleas similar to the Superior Courts of Common Pleas of New England erected in its place. In 1754, Jonathan Belcher, Esq., was appointed the first Chief Justice of the province, and the General Court was supplanted by a Supreme Court, in which the Chief Justice was the sole judge.

In 1829 Judge Haliburton wrote: “There is no separate Court of Common Pleas for the Province, but there are courts in each county, bearing the same appellation and resembling it in many of its powers. These courts when first constituted had power to issue both mesne and final process to any part of the Province, and had a concurrent jurisdiction with the Supreme Court in all civil causes. They were held in the several counties by Magistrates, or such other persons as were best qualified to fill the situation of judges, but there was no salary attached to the office, and fees, similar in their nature, but smaller in amount than those received by the Judges of the Supreme Court, were the only remuneration given them for their trouble. As the King’s bench was rising in reputation, from the ability and learning of its Judges, these courts fell into disuse, and few causes of difficulty or importance were tried in them. It was even found necessary to limit their jurisdiction, and they were restrained from issuing mesne process out of the county in which they sat.

The exigencies of the country requiring them to be put into a more efficient state, a law was passed in 1824 for dividing the Province into three districts or circuits and the Governor was empowered to appoint a professional man to each circuit, as first Justice of the several courts of Common Pleas within the District, and also as President of the courts of sessions. In 1774 an act of the Legislature was passed, first establishing the circuits of the Supreme Court. At Halifax the terms were fourteen days, liberty, however, being allowed for longer terms if the number of cases to be tried demanded an extension of time. No less than eighteen or twenty acts of the legislature relative to the times of holding the courts in the province, were passed between 1760 and 1840. In 1824 an act was passed changing the constitution of the courts of Common Pleas, and dividing the province into three Judicial Districts: the Eastern District, to comprise the county of Sydney, the districts of Pictou and Colchester, and the county of Cumberland; the Middle District, the counties of Hants, King’s, Lunenburg, and Queens; the Western District, the counties of Annapolis and Shelburne. In 1841, by an act of the legislature, the Inferior Courts of Common Pleas were abolished and the administration of law was generally improved.

With the advent of the New England planters to the county, came the introduction of New England’s time honoured institution, the Town Meeting.

[An institution on the radar of those in Dartmouth long before being enacted in law in Dartmouth township, a practice which continued for the first few decades of its existence as an incorporated Town. Martin indicates the last of the “old style” (New England) Town meetings in Dartmouth was held in 1902].

“The New England town meeting was and still is”, says Charles Francis Adams, “the political expressions of the town”, and many writers have spoken of the influence the institution has had in developing and conserving that spirit of independence and sense of liberty which have been characteristic of the New England colonies and colonies sprung from New England. In all the New England settlements in Nova Scotia, the Town Meeting was from the first, in conjunction with the Court of Sessions, the source of local government. The Court of Sessions was composed of the magistrates or justices of the peace, the chairman of which was the Gustos Botulorum, and its secretary, the Clerk of the Peace. By this court, the constables, assessors, surveyors of highways, school commissioners, pound keepers, fence viewers, and trustees of school lands, were appointed. In the Town Meeting the rate-payers met to discuss freely all local affairs, not the least important matter under its jurisdiction being always the relief and support of the poor and the appointment of overseers and a clerk of overseers for carrying out the provisions for the needy the Town Meeting made. For many years it was customary for certain rate-payers to “bid off” one or more poor men, women, or children, for stipulated sums to be paid weekly by the town. In these cases, where it was possible, the rate-payers made the poor whom they bid off, useful in their homes [“parties in need of domestic servants will now have no difficulty in supplying themselves.”]; for such service, and for the sum they received, giving the unfortunates, board, lodging, and clothes. Many persons also, who became town charges were “farmed out” to men who made their living wholly or in part by boarding them. See also “The Great Awakening in Nova Scotia, 1776-1809”, Armstrong, Maurice Whitman] .

Up to 1790, and how much later we do not know, the Town Meetings of Cornwallis were held in the Meeting-House, but after that they were held in some other convenient place. In 1839 an act was passed to enable the inhabitants of Cornwallis to provide a public Town House for the holding of elections in that township. For this building the township was to be assessed in a sum not to exceed two hundred pounds. In 1879 the three townships of the county were united in a central government, and the Town Meeting and Court of Sessions became things of the past. In place of the three townships now arose the Municipality of King’s County, the sole governing body of which is the Municipal Council. Under this new system the county is divided into fourteen wards, twelve of which elect one councillor each, and two, two councillors, for a term of two years. The Council as a whole then elects a Warden, who corresponds to the Custos Rotulorum, of the old Court of Sessions, and whatever other officers it was the duty of the Court of Sessions to elect. Under the Municipality’s control thus came all the interests that formerly pertained to both the Town Meeting and the Court of Sessions. The change of the county to a Municipality was affected at a meeting held at the court house on Tuesday, January 13, 1879, pursuant to a notice by the then Sheriff, John Marshall Caldwell.”

“Before 1888 the only towns in the Province incorporated, besides Halifax, were Dartmouth, Pictou, Windsor, New Glasgow, Sydney, North Sydney, and Kentville.”

“Barristers and Attorneys in King’s County: … James Ratchford De Wolf (long Medical Superintendent of the Insane Hospital at Dartmouth, N. S.)”

“The next rector of Aylesford was the Rev. Richard Avery, son of John and Elizabeth (Simmons) Avery, who was bom at Southampton, England, and educated there, at Warminster, and at Oxford, his brothers, the Rev. John S. Avery, M. A., and the Rev. William Avery, B. A., being chiefly his tutors. Passing the Clerical Board of the S. P. G. in London, Mr. Avery was sent out as a Deacon to Nova Scotia, and by Bishop John Inglis was given the curacy of Lunenburg. In the spring of 1842 he was called as assistant to St. Paul’s Church, Halifax, and Christ Church, Dartmouth”

“In 1827, the Rev. George Struthers, also of the Established Church of Scotland, who afterwards (the Rev. John Martin of Halifax officiating), January 28, 1830, married Mr. Forsyth’s eldest daughter, Mary, and the Rev. Morrison were sent from Scotland by the Lay Association as missionaries to Nova Scotia. At once Mr. Struthers came to Horton, Mr. Morrison going to Dartmouth, which place he afterwards left for Bermuda.”

“The Baptist body in Nova Scotia had its birth in a general religious Revival, and its growth may largely be traced through later similar revivals. Of these revivals King’s County has had always its share, and out of them have come undoubtedly a great deal of deep, continuing religious life.

In 1809 the members of the Cornwallis Baptist Church numbered sixty-five, in 1810 fifty-six, in 1811 sixty-three, in 1812 seventy-three, in 1813 sixty-five, in 1814 sixty-eight, and in 1820 a hundred and twenty-four.

Mr. Manning’s pastorate of the Church lasted until his death, which occurred, as we have said, on the 12th of January, 1851. In 1847, on account of his failing health, the Rev. Abram Spurr Hunt, a young graduate of Acadia College of 1844 (and master of arts of 1851), was chosen to assist him. “When Mr. Manning died Mr. Hunt succeeded to the pastorate, and in this office remained until November, 1867, when he resigned and removed to Dartmouth, the well known suburb of Halifax.”

“On the breaking out of the American War in 1775, Light Infantry companies were ordered by the Governor to be formed in the various townships of King’s and other counties. The number of the King’s County contingent was to be fifty men at Cornwallis, fifty at Horton, and fifty at Windsor, Newport, and Falmouth, together. Fearing sympathy on the part of the Nova Scotians who had come from New England with their rebellious kinsmen in the New England colonies, Governor Legge further ordered that all grown men in the several townships should take an oath of allegiance to the British Crown. … Among the men sent from England to govern the province of Nova Scotia during nearly a century and a quarter, not one ever showed such ill-temper as Governor Legge, the incumbent of the governorship at the outbreak of the war. His charges of disloyalty towards England included, not only the inhabitants of the province who had recently come from New England, but the staunchest members of the Council at Halifax as well. As early as January, 1776, he writes disparaging letters concerning the New England settlers to the British Secretary of State. A law has been passed, he says, to raise fresh militia troops, and he has been endeavouring to arm the people, but he has just been informed from Annapolis and King’s counties that the people in general refuse to be enrolled. Though Governor Campbell ‘s report to Lord Hillsborough in 1770 had stated that he did not discover in the people of Nova Scotia any of that “licentious principle” with which the neighbouring colonies were infected, it is a well known fact that in Cumberland, in 1776, the greatest disaffection towards England did prevail. That it would have been perfectly natural if the people of the midland counties of Nova Scotia had sympathized with New England in her protest against the abuse of power on the part of the British Government from which she had long suffered must be freely admitted, that among the inhabitants of Annapolis, King’s, and Hants such sympathy was outwardly shown, remains yet to be proved.

It is a well known fact that the King’s Orange Rangers, a Loyalist corps raised in Orange County, New York, through the efforts of Lieut.-Col. John Bayard in 1776 and ’77, in October, 1778, were sent to reinforce the King’s troops in Nova Scotia, and that until the disbandment of the corps in 1783 they were employed chiefly in garrison duty in Halifax. The statement of the writer of the manuscript in question is that in King’s County symptoms of rebellion strongly showed themselves, one of these being that certain King’s County people were even preparing to raise a liberty pole. This seditious spirit in King’s being reported to the government at Halifax by Major Samuel Starr, a detachment of the Orange Rangers stationed at Eastern Battery, Halifax, was ordered to Cornwallis, under command of Major Samuel Vetch Bayard.”


“JAMES Fillis AVERY, M. D. Dr. James Fillis Avery, son of Cap.t. Samuel and Mary (Fillis) Avery, was born in Horton, May 22, 1794, and for three years studied medicine with Dr. Almon in Halifax. He then went to Edinburgh, where he graduated in 1821. After graduation he spent six months in the Hospital of the Royal Guard at Paris, under the superintendence of the noted Baron Larrey, the first Napoleon’s principal medical adviser. Dr. Avery practised medicine in Halifax and also founded there, in George Street, the noted drug firm, which for many years he personally conducted. From this firm, in time, sprang the firms of Messrs. Brown Brothers, and Brown and “Webb. In later life he retired from business, and for some time travelled in Europe. He was an early governor of Dalhousie College, was an elder in St. Matthew’s Presbyterian Church, on Pleasant Street, and was interested in many philanthropic institutions. Among the business enterprises that he took substantial interest in was the Shubenacadie Canal, from Dartmouth to the Bay of Fundy. The first (and probably only) vessel that ever went through that canal, it is said, was called for him. The Avery. For many years, until his death. Dr. Avery’s residence was on South Street, adjoining that of Mr. George Herbert Starr, who had married his niece, Rebecca (Allison) Sawers. Dr. Avery died unmarried, universally respected, Nov. 28, 1887, and was buried near his parents at Grand Pre.

ALFRED CHIPMAN COGSWELL, D. D. S. Alfred Chipman Cogswell, son of Winckworth Allen and Caroline Eliza (Barnaby) Cogswell, was born in Upper Dyke village, Cornwallis, July 17, 1834. He married, Oct. 8, 1858, Sarah A., dau. of Col. Oliver and Sarah A. Parker, born in Bangor, Me., Oct. 10,1830, and had two sons. His residence for many years was in Halifax and in Dartmouth. Dr. Cogswell studied for two years at Acadia College, and then on account of ill health abandoned his college course. His studies in dentistry were later pursued in Portland, Me., and his first practice was in Wakefield, Mass. In 1859 he removed to Halifax, N. S., where he formed a partnership with Dr. Lawrence B. Van Buskirk. Some years later he graduated as D. D. S. at the College of Dentistry in Philadelphia. For many years Dr. Cogswell was a successful and skillful practitioner in Halifax, where he was also an elder in St. Matthew’s Presbyterian Church. The younger of his sons, Arthur W., in 1884 received the degree of M. D., and was appointed Surgeon of the Halifax Provincial and City Hospital.

HON. THOMAS ANDREW STRANGE DeWOLF, M. E. G. Hon. Thomas Andrew Strange DeWolf, M. P. P., M. E. C, fourth son of Judge Elisha and Margaret (Ratchford) DeWolf, born April 19, 1795, married December 30, 1817, or March 26, 1818, his first cousin, Nancy, daughter of Col. James and Mary (Crane) Ratchford, born June 1, 1798. Mr. DeWolf represented the County of Kings from 1837 until 1848. He was made a member of H. M.(first) Executive Council, February 10, 1838, and was subsequently Collector of Customs. When a qualification bill authorizing the election of non-resident members was introduced in the legislature as a government measure, he resigned from the Executive Council. He died at “Wolfville, September 21, 1878 ; his widow died at Dartmouth, March 10, 1883. Hon. T. A. S. DeWolf had fourteen children, the most important of whom was James Ratchford DeWolf, M. D., L. R. C. S. E. and L. M., of the Royal College of Surgeons, Edinburgh.

THE REV. ABEAM SPURR HUNT, M. A. Eev. Abram Spurr Hunt, though not a native of King’s County, was for many years, as Rev. Edward Manning’s immediate successor, pastor of the Cornwallis First Baptist Church. He was born at Clements, Annapolis county, April 7, 1814, grad. at Acadia in 1844 (its second class), and on the 10th of Nov. of that year, was ordained over the newly formed Baptist Church at Dartmouth, N. S. In 1844 also, he married Catharine Johnstone, eldest surviving daughter of Lewis Johnston, M. D., and niece of Hon. Judge James William Johnstone, and in 1846, removed to Wolfville, where for a winter he studied theology under the Rev. Dr. Crawley. In 1847 he became assistant pastor to Rev. Edward Manning at Cornwallis, and in 1851, at Mr. Manning’s death, succeeded to the pastorate. Until 1867 he continued pastor of the Cornwallis Church, his ministry being in every sense a successful one. His field of labour, however, was so wide and his duties so arduous that at last he was obliged to seek an easier parish. When he determined to remove from Cornwallis, the Dartmouth Church recalled him, and to that Church he continued to minister till his death, which occurred, October 23, 1877. In 1870 he was also made Superintendent of Education for the Province, and the duties of this office he also discharged until his death. Mr. Hunt’s children were: Eliza Theresa, married as his 2nd wife, to the Hon. Judge Alfred William Savary, of Annapolis, so well known as a jurist and historian (see among other writings, the Calnek-Savary “History of Annapolis,” and the “Savary Family”); Lewis Gibson, M. D., D. C. L., of London, England ; James Johnstone, D. C. L., Barrister of Halifax; Aubrey Spurr; Ella Maud, m. to the Rev. Arthur Crawley Chute, D. D., Professor in Acadia University ; Rev. Ralph M., a clergyman, who died young, deeply lamented. Mrs. Abram Spurr Hunt, a woman of high breeding and exalted Christian character, survived her husband between seventeen and eighteen years. She died in Dartmouth, Halifax, May 29, 1895.

MAJOR GEORGE ELEANA MORTON Major George Eleana Morton was one of King’s County’s most excellent and enterprising sons. He was a son of Hon. John and Anne (Cogswell) Morton, was born at Upper Dyke village, Cornwallis, March 25, 1811, and was one of the pupils of the Rev. William Forsyth. Going to Halifax at about eighteen years of age he entered a drug store on Granville Street, which business he afterward purchased. In 1852 he erected the stone building at the corner of Granville and George Streets, long known as “Morton’s Comer,” where for many years he conducted a wholesale and retail drug business, at that time the largest in the province. He was the first business man in Halifax to send out a commercial traveller. About 1870 he closed his drug business and opened a book and periodical store, and a lending library of current literature. He retired from business in 1888, and died as the result of an accident, Mar. 12, 1892, and was buried in Dartmouth. Mr. Morton was a man of great intelligence, and of distinctly literary tastes, and his contributions to the press, both in prose and verse, were numerous. In 1852 he published, in conjunction with Miss Mary J. Katzmann, The Provincial, a monthly magazine. Later he published a satirical magazine called Banter. In 1875 he wrote and published the first “Guide to Halifax,” and in 1883, a “Guide to Cape Breton.” His newspaper articles appeared chiefly in the Guardian, the British Colonist, and other newspapers. He was unusually well read in English literature, and his writings contain many quotations from classical authors. He was an accomplished letter writer, and for many years kept up an interesting correspondence with friends abroad, especially with his cousin. Dr. Charles Cogswell. He was one of the original members of the N. S. Historical Society, and was always actively interested in the work of that Society. In religion he was a Presbyterian, his membership being in St. Matthew’s Church. In politics a Conservative, he was for many years a personal friend of Messrs. Johnstone, Tupper, Parker, Holmes, Marshall, and other Conservative leaders. He was an ardent supporter of confederation, and had great faith in the future of the Dominion. Nov. 23, 1859, he was appointed 1st Lieut, in the 2nd Queen’s Halifax Regt. ; Sept. 23, 1862, he was appointed Captain. On the reorganization of the militia by the Dominion Government he was retired with the rank of Major. He was one of the promoters of the N. S. Telegraph Company, was original shareholder of the N. S. Sugar Refinery, and shortly after the discovery of gold in 1860, became interested in gold-mining. He held mining claims at Waverly, Montagu, Elmsdale, and Lawrencetown. George Elkana Morton married in Halifax, in March, 1849, Martha Elizabeth, eldest daughter of Christian Conrad Casper and Martha (Prescott) Katzmann, bom Apr. 2, 1823, died Apr. 6, 1899. He had children: Annie, born Dec. 13, 1850, died Mar. 29, 1855; Charles Cogswell, born Aug. 14, 1852, married Apr. 27, 1905, Winifred, daughter of Leonard and Lucy Leadley, of Dartmouth, N.S., and now resides in Kentville. For the Katzmann Family, see the Prescott Family Sketch.”

“Of the Bishop families of Horton many members have occupied positions of trust and many have attained prominence in the communities where they lived. Such have been … Watson Bishop, of Dartmouth, N. S., Superintendent of Water Works for that town”

“THE KEMPTON FAMILY The Rev. Samuel Bradford Kempton, D. D., now of Dartmouth, N. S., but for many years the honoured third pastor of the Cornwallis First Baptist Church, in succession to the Rev. Abram Spurr Hunt, is the son of Stephen and Olivia Harlowe (Locke) Kempton, and was b. at Milton, Queen’s county, Nov. 2, 1834. He received his early education at Milton Academy, and in 1857 entered Horton Academy. In 1862 he graduated, B. A., at Acadia University. He then spent a year at Acadia under the instruction of Rev. John Mockett Cramp, D. D., in post-graduate work. In 1833 he was ordained pastor of Third Horton Baptist Church, and in 1867 became pastor of the First Cornwallis Baptist Church. In that position he remained until 1893, when he removed to Dartmouth, as pastor of the Dartmouth Baptist Church. Dr. Kempton received his M. A., from Acadia University in 1872, and the honorary degree of D. D. in 1894. Prom 1878 to 1907 he was one of the governors of Acadia, and in 1882 was appointed a member of the Senate of the University. His ministry at Cornwallis was laborious and faithful, he had six preaching stations and was obliged to travel many miles every week. He married in Horton, Oct. 1, 1867, Eliza Allison, dau. of Abraham and Nancy Rebecca (Allison) Seaman, and had two children : Rev. Austin Tremaise, b. Feb. 6, 1870, m. June 7,1893, Charlotte H. Freeman; William Bradford, b. May 29, 1885, d. July 17, 1893. Of these sons, Rev. Austin Tremaise Kempton graduated at Acadia University in 1891, and received his M. A. in course in 1894. He was ordained to the Baptist ministry at Milton, Queen’s county, N. S., in 1891, later studied at Newton Theological Seminary, and has since held pastorates in Sharon, Boston, Pitchburg and Lunenburg, Mass. He has also been a successful lecturer, his lectures on the “Acadian Country” having done much to make the charms of King’s County known throughout New England.

Of one, at least, of the Orpin grantees, and the family from which he sprang, a writer in the Halifax Herald of January 25, 1899, gave the following interesting account: Among the enterprising pioneers who first came to this part of the country to make of the wilderness a fruitful field, was Joseph Moore Orpin and his wife, Anna Johnson Orpin. Mr. Orpin ‘s father, Edward Orpin, was one of the founders of the city of Halifax. He first took up land on the Dartmouth side of the harbor, and employed men to subdue and clear it of a forest of trees and a heavy crop of stone.

One day while he was on his way with a lad, sixteen years old, named Etherton, carrying dinner to the men working on his land, he was surprised and captured by the [Mi’kmaq]. They compelled silence and began their march with their captives in the direction of Shubenacadie. They had not gone far when one of the [Mi’kmaq] gave the boy a heavy blow, felling him to the ground. Instantly his crown was scalped and he was left for dead. After travelling some distance, Mr. Orpin found that one of his shoes was unbuckled. He stopped and pointed it out to the [Mi’kmaq] walking behind him. As he stooped down to buckle it the [Mi’kmaq] stepped ahead of him. Orpin saw his chance, caught up a hemlock knot, and as quick as lightning gave the [indigenous man] a blow which brought him to the ground. He had confidence in his own fleetness of foot. Instantly he was flying for liberty.

As soon as the [Mi’kmaq] in advance discovered the trick, and recovered from their surprise, they gave him chase. But Orpin was too fleet for them. He escaped and reached home in safety. Strange to relate the boy returned to the city soaked from head to foot in his own blood. The doctors of the city did what they could to heal his scalp wound. They succeeded only in part. Directed by them a silversmith made a silver plate, which the young fellow wore over his unhealed wound. After a time he returned to England.

In the same year Mr. Orpin had still another adventure with the [indigenous] neighbors of the young colony. On this occasion, too, he was on his way to the place where his men were at work, carrying them their dinners. Again he was seized by the skulking [Mi’kmaq] , and hurried away toward Shubenacadie. After reaching one of the lakes, the [Mi’kmaq] stopped to take a meal. For a special treat, Mr. Orpin was carrying a bottle of rum to his men with their dinners. At the lake the [Mi’kmaq] drank the whole of it, and it made them helplessly drunk. This was good fortune for the captive. He reached Halifax again with the scalp safe on his head. This last experience made him more cautious for a long time. The stony ground in Dartmouth, and his trouble with the [Mi’kmaq], induced him to give up his Dartmouth lot and commence anew on the Halifax side of the harbor. Some years later, he went to the North West Arm. He never returned. Diligent and thorough search was made for him; but he could not be found. The belief at the time was the [Mi’kmaq] caught him again and took secret revenge on him in torturing him to death at their leisure.”

“…the Katzmann family of Halifax county demands notice. Lieut. Christian Conrad Casper Katzmann, b. in Eimbeck, Hanover, Prussia, Aug. 18, 1780, came to Annapolis Royal, N. S., as ensign (he is also called adjutant, 3rd Battalion) of H. M. 60th Regt. He m. (1) in Annapolis Royal (by Rev. John Millidge), June 11, 1818, Eliza Georgina Fraser (who had a sister, Mrs. Robinson, and a brother, James Fraser, Jr., Postmaster at Augusta, Georgia), who d. shortly before April 5, 1819. He m. (2), April 6, 1822, by Bishop Inglis, Martha, dau. of John and Catharine (Cleverley) Prescott, of Maroon Hall, Preston, Halifax county, and retiring from the army, bought Maroon Hall. His children by his 2nd marriage were Martha Elizabeth, b. April 2,1823, m. to George Eleana Morton ; Mary Jane (the authoress), b. Jan. 15, 1828, m. to William Lawson, of Halifax; Anna Prescott, b. Sept. 25, 1832, d. unm.. May 31, 1876. Lieut. Katzmann and his family are buried in Dartmouth, N.S. Mr. and Mrs. John Prescott are probably buried at Preston.”

“THE PYKE FAMILY The Pyke family in King’s County is descended from John Pyke, who came to Halifax with Governor Cornwallis in 1749, it is said as his private secretary, and was killed by Indians in Dartmouth, in August of the next year. His wife was Anne Scroope, b. in 1716, her grandfather or his brother, it is believed, being a baronet in Lincolnshire. Precisely how long before he came to Halifax John Pyke married, it is impossible to say, but his son (and only child, so far as is known), John George, was born in England in 1743. After her first husband’s death, Anne (Scroope) Pyke was married to Richard Wenman, another of the company that came with the Cornwallis fleet, and to her second husband she bore three daughters: Susanna, married to Hon. Benjamin Green, Treasurer of the Province; a daughter m. to Captain Howe, of the Army; another daughter m. to Captain Pringle of the army. Mrs. Anne Wenman died May 21, 1792 ; her husband, Richard Wenman, was buried Sept. 30, 1781.”

Eaton, Arthur Wentworth Hamilton. The history of Kings County, Nova Scotia, heart of the Acadian land. Salem, Mass., The Salem press company, 1910. Retrieved from the Library of Congress, www.loc.gov/item/10025852/

The Church of England in Nova Scotia and the Tory clergy of the revolution

“In the United States there should be much interest in the Diocese of Nova Scotia, for that Diocese owes its existence to the Tories of the Revolution, who went in thousands from New York and Massachusetts to the “Acadian Province by the Sea,” and its first bishop was, at the outbreak of the war, the honored rector of the leading Church in the older Colonies.”

“If it had not been for the fierce legislation of the Whigs in the various colonies against the adherents of the crown, the history of this part of the country, both secular and religious, would be vastly different from what it is.”

“The attention of New York loyalists seems to have been early directed towards the almost uninhabited province of New Brunswick.”

Eaton, Arthur Wentworth Hamilton, 1849-1937. The Church of England In Nova Scotia And the Tory Clergy of the Revolution. 2d ed. New York: T. Whittaker, 1892. https://hdl.handle.net/2027/uc2.ark:/13960/t6b27tb7p

The Great Awakening in Nova Scotia, 1776-1809

The book delves into the historical and social landscape of Nova Scotia, particularly focusing on religious movements, governance, and societal norms. It begins with a discussion on religious fervor in the late 18th century, influenced by New England revivalism, and the subsequent tensions between Anglicanism and dissenting sects. The text explores the impact of legislation on religious practices and the social dynamics between different religious communities, highlighting the presence of dissenters and the struggles they faced.

Furthermore, it describes the migration patterns from New England to Nova Scotia, emphasizing the collective nature of settlement and the adaptation of New England practices in township organization. The role of government intervention in local governance and its effect on the development of town meetings is examined. Additionally, societal issues such as slavery, education, and moral conduct are addressed, shedding light on the complexities of early Nova Scotian society.

The passage also discusses the repercussions of the American Revolution on religious institutions and the political climate of Nova Scotia, showcasing the diverse responses of ministers and communities to the conflict. It concludes with reflections on the resilience of Nova Scotians amidst uncertainty and the efforts of religious leaders like Henry Alline to provide spiritual guidance during challenging times.

“In the year 1799 the Bishop of Nova Scotia reported to the Society for the Propagation of the Gospel in Foreign Parts that the Province was being troubled by “an enthusiastic and dangerous spirit” among the sect called “Newlights”, whose religion seemed to be a “strange jumble of New England Independency and Behmenism.” Through the teaching of these “ignorant mechanics and common laborers”, the people were being excited to a “pious frenzy,” and a “rage for dipping” prevailed over all the western counties. It was further believed by the Bishop and the Anglican clergy that these sectaries were engaged in a plan for “a total Revolution in Religion and Civil Government.”

“…as Bishop Inglis recognized, the movement was a continuation of the great revival of religion which occurred in New England between 1740 and 1744, it may be properly called “The Great Awakening in Nova Scotia.”

“Although laws — such as 1758’s an Act for the establishment of religious public Worship in this province, and for suppressing popery — were intended only for the proper regulation of the Church of England, and although the Assembly took care to insert a clause in the act providing for the liberty of conscience and freedom of worship for Protestant Dissenters (32 Geo. II, Cap. V, ii), the remaining sections of the act contain very stringent laws against “popish priests,” providing “perpetual imprisonment” for any offenders found within the province after Mar 25, 1759, and a fine of £50 and the pillory for any person harboring, relieving, concealing or entertaining such a priest. These harsh enactments were omitted from the revised laws of 1783, but Test Oaths were required of all Catholics until 1827. The Anglican church was not disestablished until 1851, nevertheless, there was enough of the coercive in the law to arouse the suspicion of the New Englanders… Were not these laws respecting unlicensed teachers and preachers similar to those aimed at the itinerants and exhorters in Connecticut and Massachusetts?”

“…Governor Lawrence was led to issue a second proclamation on January 11, 1759. This document contained the solemn assurances of the government upon the subject of civil and religious liberties within the province, which early won for it the title “The Charter of Nova Scotia.” (T.C. Haliburton, An Historical and Statistical Account of Nova Scotia (Halifax, 1829), I, 220. A copy of the original proclamation may be seen in the John Carter Brown Library, Providence, R.I. It also appeared in Boston News-Letter, Feb 15, 1759.)

Regarding religion the proclamation declared:

…full liberty of conscience, both of His Majesty’s royal instructions and a late act of the General Assembly of this Province, is secured to persons of all persuasions, Papists excepted, as more fully appears from the following extract of the said act, viz: “Protestants dissenting from the Church of England, whether they be Calvinists, Lutherans, Quakers, or under what denomination soever, shall have free liberty of conscience, and may erect and build Meeting Houses for public worship, and may choose and elect Ministers for the carrying on of Divine services and administration of the sacrament, according to their several opinions, and all contracts made between Ministers and Congregations for the support of their Ministry are hereby declared valid, and shall have their full force and effect according to the tenor and conditions thereof, and all such Dissenters shall be excused from any rates or taxes to be made or levied for the support of the Established Church of England.”

“With the opening of the Ohio country in 1768, immigration from American colonies practically ceased, and Nova Scotia remained a back-water untouched by the main currents of American migration until the flood-tide of Loyalist refugees burst in upon it at the close of the Revolutionary war. Immigration from the other side of the Atlantic, however, continued.”

“The movement from New England to Nova Scotia was social and not individualistic. Associations of families and not lone pioneers, made the plans, sent their representatives… When they reached their new township they met together, chose their own officers, and laid out their own lands and town-plot. This was all done in accordance with old New England practice. (Cf., R.H. Akagi, The Town Proprietors of the New England Colonies (Philadelphia, 1924), esp. Ch. 1, 3 & 4.)”

“The term “proprietor” is very familiar in New England history. The proprietors were the owners of the land and were responsible collectively for the improvement of the new plantation. “More specifically they were responsible for inducting and enlisting newcomers, for locating home lots and dwelling houses, for building highways and streets, for subdividing the adjacent arable land, and subjecting the meadow and forest, for a time at least to a common management. Records of proprietors meetings at Falmouth, Cornwallis, and Horton show that the Nova Scotia immigrants followed the New England custom.

At the first meeting of the Falmouth proprietors, on June 10, 1760, Shubael Dimock, a former deacon of the Separate Church in Mansfield, Connecticut, was elected Moderator, and, according to custom, a standing committee of three was appointed to manage the prudential affairs of the community. This committee laid out the lands as they had been laid out for over a century in New England; two hundred acres for a Common, sixty acres for a town site and certain tracts for a meeting house, cemetery, school, and for the first resident minister.”

“In one very important respect, however, the Nova Scotian proprietors differed from those in New England. The number of lots or shares in each township was determined by the government and not by the proprietors meeting, and each proprietor received only his exact share; the lands remaining in the township then still remained in the hands of the Crown, and were granted to new proprietors by the Lands Office at Halifax and not by the local proprietors meeting.”

“In 1766 there was a remonstrance from the principal inhabitants of Halifax to the Lords of Trade because “all the scum of the Colonies” was being admitted to the province which they said had been “inundated with persons who are not only useless but burdensome,” and that the passage money of “persons from goals, hospitals and work-houses” was actually being paid by the other colonial governments… There is ample evidence, however, to show that there were among the pioneers self-reliant and socially assured leaders who, given the advantages of a new land, soon forged ahead and achieved prosperity and independence for themselves.”

“The neatly planned towns, with their regularly laid out streets and village greens, did not materialize. Instead, the shortest path across the fields of an absentee owner, or of a deserted homestead, connected the irregularly scattered dwellings of the village.

Because of direct government interference, the associations of proprietors in Nova Scotia never developed into the influential town-meetings which were so familiar in New England. As early as 1761, on the recommendation of Governor Belcher, the Lords of Trade disallowed an “Act enabling proprietors to divide lands held in common,” which had been passed by the first assembly. Belcher’s motive… was to extend the authority of the central government over the townships…

The fate of town-meetings was bound up with the intrigues of the Halifax circle. Instead of permitting the freeholders to elect their own officers, it was arranged that the grand juries of the four principal counties should nominate candidates for the local offices and then the local Justices of the Peace choose from among the nominees the men who should finally be appointed. In this way the offices of the townships were kept in the hands of the friends of the government, or at least that group of enterprising men who held key positions in council. About the only power left to the town meetings was the care of the poor. The change did not pass without protest, but on the whole the towns were too weak to defend “the rights and liberties of Englishmen.”

In 1770 the town meeting of Truro objected to the officers chosen to govern it. Liverpool and other towns also made complaints, but a warning that the Attorney-General had been instructed to prosecute persons who called “Town Meetings for Debating and Resolving on Several Questions Relating to the Laws and Government of this Province” seemed to have a quieting effect. The new settlements were too scattered to unite in any effort to preserve their liberties, and too poor to carry on the struggle. Those who might have been their leaders already held offices under the centralized system and shared in its profits.

It was this lack of leadership, organization, and experience, as well as their remoteness and poverty, which to a great extent determined Nova Scotia’s attitude during the War of Independence. There can be little doubt that Governor Belcher’s policy “prevented the formation of some twenty little republics in western Nova Scotia, and it enabled the central government to establish communications with the townships and to retain a check upon their activities. It also accelerated the moral and social decline which has already been observed.”

“Drunkenness seems to have been the most prevalent evil. Provincial statutes, comparable to the “Blue Laws” of New England, provided severe sentence for all breaches of the criminal code, and for such offenses as profanity, or absence from Church. Church wardens were ordered to walk the streets during the time of divine worship to discover the delinquents. (1 Geo. III, Cap. 1, Acts of the General Assemblies.)

Slavery was practiced by those who could afford it. The Nova Scotia Gazette from time to time carried advertisements such as the following:

Ran Away

On Monday the 10th., of June last, between the hours of 9 and 10 at night, a negro woman named Florimell, she had on when she went away, a red Poppin Gown, a blue baize outside Petticoat, and a pair of Men’s shoes, she commonly wears a handkerchief around her Head, has scars on her face, speaks broken English, and is not very black.. 1 Guinea Rwd. and all charges for their trouble. (Nova Scotia Gazette, July 9, 1776. See Also Ibid., May 28, 1776. The price of slaves varied from £20 to £75 N.S. Money. Cf., T.W. Smith, “The Slave in Canada” N.S.H.S., X, 11 ff.)

In addition to household slaves it was customary for Town meetings to farm-out the local poor. The wealthier rate-payers “bid-off” these unfortunates, who then went to work for them in return for food, lodging and clothes. The town-charges thus became a form of indentured servants, and in addition the good citizen who took them received from the town a sum of money equivalent to his “bid”. (Eaton, Kings County, 162.)”

“Henry Alline, who before his conversion was a leader among the younger set in Falmouth, has left accounts of evenings spent at neighbor’s homes, where the young people amused themselves singing “carnal songs,” telling stories, and causing great mirth by imitating the “extra-ordinaries” of the Newlights, whom some of them remembered before 1760 in Connecticut.”

“In 1765 the Assembly passed An Act Concerning Schools and Schoolmasters, which required all would be teachers to be examined by a minister or two justices of the peace, and to present a certificate of morals and good conduct, signed by at least six inhabitants. He must also take the oath of allegiance. By the same act, boards of school trustees were set up to administer the lands reserved in the original plans of every township for a school. (6 Geo. III, Cap vii, Acts of General Assemblies. The effect of the Act was to place the control of the school lands in the hands of the Anglican clergy, from which they were wrested only after a long and bitter struggle ending in an appeal to the Privy Council in the middle of the nineteenth century. Cf., Eaton, Kings County, 269,270.)”

“…the majority of the population of the province before 1784 were Dissenters. In Halifax, even before the great New England migration of 1760, settlers from the American colonies composed a large and influential part of the community. A protestant Dissenter’s meeting House, known as Mather’s Place in honor of the well-known Boston divines, was erected in 1750 and was supplied by Congregational ministers until the end of the revolution.” (Walter Murray, “History of St. Matthew’s Church,” N.S.H.S., XVI, 137-170.)

“The final blow to congregationalism in Nova Scotia was the American Revolution. (M.W. Armstrong-“Neutrality and Religion in Revolutionary Nova Scotia,” The New England Quarterly, Mar. 1946, 50-62). To the already demoralized and disintegrating churches were now added the calamities of a further loss of ministers, an increased uncertainty because of privateers and possible invasion, and the gnawing uneasiness of a divided loyalty.

By 1775, half of the Congregational pulpits were already vacant. During the war, some of the ministers evinced republican sympathies, but were instantly silenced by the government. The Rev. Benaiah Phelps of Cornwallis was accused of being “an uncompromising Whig” and left the province in 1777. The Rev. Seth Noble of Maugerville, after months of seditious activity, fled to Machias. The Rev. Arzarleh Morse of Granville seems to have been peaceable enough, but at the close of the war gave up his trying charge and returned to New England. John Frost who had been ordained by the church of Jebogue was reported to the Provincial Council in the month of August, 1775, for interfering with a muster of the militia at Argyle and for publicly expressing “his hopes and wishes that the British forces in America might be returned to England confuted and confused. (Minutes of the Council, Aug. 23, 1775. Mr. Frost was deprived of his office as justice of the peace and died shortly after.) The Rev. John Seccomb of Chester was also charged before the Council with “preaching a Sermon tending to promote Sedition and Rebellion,” and with “praying for the Success of the Rebels.” (Ibid., Dec 23, 1776, Jan. 6, 1777) He was placed under a bond of £500 for his future good behavior and henceforth had an uneventful career. Only the Rev. Israel Cheever of Liverpool, “a hard drinker,” and the Rev. Johnathan Scott, the farmer-pastor of Jebogue, avoided the political pitfalls of the times and labored to preserve the New England way in Nova Scotia.

The Presbyterian churches were not so seriously affected by the war… Only the Rev. James Lyon of New Jersey, who had once advised the patient Mr. Bruin Romcas Comingoe “To avoid a party spirit in politics,” showed republican sentiments. Migrating to Machias, Maine, he became the center of plots and schemes to capture Nova Scotian villages and plunder British shipping in the Bay of Fundy. There is some evidence that some of the Ulster settlers in Colchester County shared Parson Lyon’s views. Writing from Halifax to the Secretary of State in 1776, General Massey said, “If you Lordship will pardon me for going out of my walk … I take upon me to tell your Lordship that until Presbytery is drove out of His Majesty’s Dominions, Rebellion will ever continue, nor will that set ever submit to the laws of England.”

“In a time of greatest doubt and discouragement, Alline and his followers in every township pointed out the blessings of peace, and turned men’s thoughts away from the political issues of the day. The uncertain Nova Scotians were made to feel that in contrast with conditions in the other colonies their own lot was good, and that in escaping the horrors of war they had been the particular subjects of divine favor.”

Armstrong, Maurice Whitman, 1905-1967. The Great Awakening In Nova Scotia, 1776-1809. Hartford: American Society of Church History, 1948. https://hdl.handle.net/2027/wu.89065270951

The New York Loyalists in Nova Scotia

“From the beginning of the strife in the American colonies, New York, which unlike Massachusetts [–and like Nova Scotia] was a royal or crown colony, naturally showed marked loyalist sympathies. It has often been sweepingly asserted that all the leading families of New York were Tories, but that this was far from being the case is shown by the fact that some of the most active supporters of the revolutionary cause, like John Jay and Gouveneur Morris, bore names as proud as any in the province; and that although the DeLanceys, DePeysters, Philippses and Johnsons, and the greater part of the local aristocracy who acknowledged the leadership of these families, were enthusiastic supporters of the crown, the Schuylers and Livingstons, at least, were known as equally enthusiastic in the Whig cause.”

“So far as religion ruled, the Episcopalians naturally were almost entirely Tory in feeling, and the same was true of a minority of the adherents of the Dutch Reformed body, while the Presbyterians and people of other dissenting bodies, as a rule, were Whigs. In both New York and New England the government officials, almost without exception, ranged themselves on the side of the crown…”

“Of Queen’s County, Long Island, Jones’ History of New York says: Nearly a third of the whole inhabitants have since the late peace and the recognition of American independence preferred inhospitable wilds of Nova Scotia rather than live in a country governed by the iron and oppressive hand of rebellion”

“Many of the Loyalists who had come to Nova Scotia were so destitute that in May, 1783, an order for a muster was issued by Governor Parr… According to this muster the Revolutionary war had brought into Nova Scotia 28,347 persons, of whom 12,388 were men, 5,486 women… of these people, 480 (settled at) Dartmouth.”

Eaton, Arthur Wentworth Hamilton, 1849-1937. The New York Loyalists In Nova Scotia. [New York: The Grafton press, 1910] https://hdl.handle.net/2027/hvd.32044019369461

Trials For Treason In 1776-7

This describes the settlement of Cumberland township in Nova Scotia by settlers from Rhode Island around 1762-1763. During the American Revolution, some settlers sympathized with the revolted colonies, leading to attempted capture of Fort Cumberland in 1776 by parties from Machias. This attempt failed, leading to arrests and trials.

Dr. Parker Clarke and Thomas Falconer were found guilty of treason but pleaded the King’s pardon. James Avery and Richard John Uniacke’s fates are unclear, with Uniacke later becoming a prominent figure in Nova Scotia’s legal and political spheres. Indictments were also issued against other individuals involved in the rebellion, highlighting the struggles Nova Scotians faced in going it alone during the tumultuous events of the revolutionary period.

“The township of Cumberland was settled in 1762-3 or thereabouts, by settlers from Rhode Island. They came in four schooners, and a list of their names was formerly in the Archives of the Province. During the whole of the struggle between the mother country and her colonies, the Cumberland settlers, especially those from the old colonies and the north of Ireland, warmly sympathized with the revolted colonies. In 1772-3-4 and 5, a large immigration took place to both the township and county, principally from Yorkshire, and in no instance during the revolutionary struggle, and the many acts of violence committed in and about Fort Lawrence and Fort Cumberland, is it known that a single Yorkshire settler ever swerved in his loyalty.

In the November of 1776 the original settlers of the township, at the instance of parties from Machias, and led by Jonathan Eddy, William Howe, Samuel Rogers, and John Allan, attempted the capture of Fort Cumberland, then garrisoned by 260 Fencibles under Lieut.-Col. Goreham. They had proceeded in their design so far as to invest the Fort when the timely arrival of forces from Windsor and Halifax under Major Batt put an end to their plans and dispersed their forces. Several arrests were made, and among them Dr. Parker Clarke, Thomas Falconer, James Avery, and Richard John Uniacke.

They were brought to Halifax, and Clarke and Falconer were detained in close custody until the Easter Term of 1777, when they were tried before Chief Justice Morris and Mr. Justice Deschamps. Clarke’s trial took place on the 18th of April, the Attorney General, William Nesbitt, and the Sol.-Genl., James Brenton, acting for the prosecution and Daniel Wood, Senr., for the defence. The Crown called William Black, Thomas Robinson and Lieut. Dixon as witnesses on behalf of the prosecution, but no witnesses appear to have been called for the defence.

Of course the jury returned a verdict of guilty. Falconer was tried the next day, counsel for the Crown same as before. He conducted his defence in person and appears to have acted like a sensible man in challenging as many of the jury as possible, who the day before had found Clarke guilty. The prosecution called the same witnesses as the day previous, with the addition of Milburn. The jury returned a verdict of guilty, and both Falconer and Clarke before sentence and execution pleaded the King’s pardon, whereupon the Court ordered that the Provost-Marshal keep them in close confinement as convicts until the next term, and that in the meantime their sentence be respited.

James Avery and Richard John Uniacke appear to have fared somewhat differently. On the first day of the Easter Term Nesbitt moves that the court consider the nature of the security given by James Avery, who hath escaped out of the jail in Halifax; and on the 22nd of the same month the Solicitor General, James Brenton, moves that the Provost-Marshal assign over the bail bonds in The King vs. Avery and Uniacke, the defendants not having entered their appearance, and the motion was allowed and entered accordingly.

From Mr. Uniacke’s name appearing on the indictment as a witness he must have turned King’s evidence; clearly from the motion of the Sol. Genl. he was not at the trial. No mention is again made of either in the records of the court until the 3rd of April, 1781, when Mr. Uniacke takes the usual oaths, signs the roll, and is admitted a Barrister and Attorney. Thenceforth the records are full of him, and the court rings with the name of Uniacke. He became Solicitor General on the 5th of April, 1782; Member for the township of Sackville in 1783, (the township adjoining that from which a few years previous he had been taken as a rebel); Speaker of the House of Assembly in 1789; Attorney General in 1797; edits an edition of the Provincial Statutes in 1804; Member of the Council in 1805.

Indictments were returned on the 3rd of April, 1777, against Jonathan Eddy, Zebulon Roe, William Howe and Samuel Eogers, and it was ordered by the court that a capias issue to the Provost-Marshal to apprehend them and seize their goods, chattels and estates wheresoever found, returning an inventory of their goods, &c. , into the court.

The following papers were found in an old box in the basement of the Court House at Halifax, and they are respectfully offered as a small contribution to the history of Cumberland County. They are in the hand writing of Edward Barron and William Nesbitt, and the reader will notice that they are the minutes of the preliminary examinations. The Judge’s minutes of the trial are still in existence, and may before long be given to the public in another form.

J. T. B.

Mr. Parker Clarke being accused of having Extorted Money from Mr. Thomas Robinson, of Amherst.

Thos. Robinson being sworn, Declares that Some days after the Rebels appeared in arms at Fort Lawrence, that said Parker Clarke came so to this defendant’s house with Zebulon Roe, when the former told this Deft, that he had an acct. against him of a long Standing for one pound fifteen shillings and that now was the time for payment, this Deft, than said that he did not know that he owed him a farthing, as he, the Defendant, understood that Wm. Bulmer had promised to pay it and he always thought it was paid, that said Clark then answered that ho had ‘not received anything from said Bulmer on his acct. and then again demanded payment, and that Roe demanded in a threatening manner that if this Deft, did not immediately pay said amount, he would oblige this deponent to go prisoner with him, this Deft, then said that he had not any moneyin the House but if they would pemitt him to go to Mr. Black’s he would endeavour to get the money, which he did, and pay’d it to Dr. Clarke.

It appears that Dr. Clarke did attend Mr. Robinson’s Son for which he brought his acct.

Fort Cumberland, 3rd Decemr., 1776.

E. BARRON, Just. Peace,


Halifax, S.S.

Province of Nova Scotia

[ At a Supreme Court, Court of Assize and General Goal Delivery, held at Halifax, the first Tuesday in April, A.D. 1777, for the County of Halifax and Province Nova Scotia. ]

The Jurors for our Sovereign Lord the King, upon their Oath present, that Parker Clarke of Cumberland, in the County of Cumber- land,, commonly called Doctor Clarke, and Thomas Falconer, of Cobequid, in the Province Nova Scotia, being subjects of our present Sovereign Lord, George the Third, King of Great Britain, France and Ireland, &c., not having the fear of God in their hearts nor having any regard for the Duty of their allegiance, but being moved and seduced by the Instigation of the Devil as False Rebels and Traitors against our scl. present Sovereign Lord the King, then supreme head, natural and undoubted Sovereign Lord, entirely withdrawing that Cordial Love, and that true and due obedience, fidelity and allegiance which every subject of our said present Sovereign Lord the King should of right ought to bear towards our sd. Lord the King, and also Devising and as much as in them lay most subtilty, wickedly and Traitorously intending to subvert and change the Rule of Government of this Province, duly and happily Established under our suld present Sovereign Lord the King, in the months of November and December last, in the year of our Lord one Thousand, Seven hundred and Seventy-Six, and on several Days of sd. mouths with Force and Arms ; and in the Township of Cumberland, Province aforsd. with a Great number of Traitors and Rebels against our said Sovereign Lord the King, (to wit) to the Number of three hundred whose names are yet unknown to the Jurors, being armd. in a warlike and Hostile manner, with Drums beating and with Swords, Guns, Swords, Pikes, Pistols, Clubs and Divers, other weapons offensive and defensive, with force and arms; did falsly and Traitorously Assemble and Join themselves against our sd. Lord the King, and then and there with force and arms in pursuance and execution of their wicked Traitorously Intentions and purposes aforsd.; did falsly and Traitorously prepare, Order, wage and Levy a Public and Cruel War against our Sovereign Lord the King, then and their perpetrating and comitting slauther amongst the faithful subjects of our sd. Lord the King, and then and their during sd. war with Forces armd, and with sd. Traitors and Rebels so assembled, armed, and arrayed as aforsd.; did falsly and Trayterously assault and attack his Majesty’s Fort and Garrison at Fort Cumberland aforsd. by firing several shott at the same with Intention as they gave out and publickly declared to take from our sd. Sovereign Lord the King his sd. Fort and Garrison of Fort Cumberland, in the sd. Province Nova Scotia aforsd.; and the same to hold against our sd. Sovereign Lord the King, requires the Duty of their allegiance and against the Peace of our said Sovereign Lord the King, his Crown and Dignity, and against the form of the Statute in that case made and Provided, and against the Laws of this Province.

D. WOOD, JUNR., D. Clk. of Crown.

MR. T——., MR. UNIACKE. Witnesses.



That he was present on the 29th of November, last, when a party commanded by Lieut. Dixon, in his Majesty’s service, did take prisoners, James Falconer & —– Avery, both from Cobequid, they were both under Arms and endeavoured to make their escape by running away, but were taken in their flight and deprived of their Firelocks, Powder and Ball which they had about them, and was informed they had made their escape from camp still, where the Rebels were that day defeated and dispersed. And further deposeth that he saw one Parker Clark, of Fort Lawrence, in the County of Cumberland under arms, along with on Zebulon Roe, who they styled Colol. & one Wm. Howe, who was called Major of the Rebels and appeared of their Party, and they were at the Deponent’s house.

WM. BLACK. Sworn before me the 10th of January 1777.


That some time in the month of November, last, one Parker Clarke commonly called Doctor Clarke of Fort Lawrence, in said County of Cumberland, along with one Zebulon Roe, whom they called Lt. Colonel and Wm. How whom they called Major among the Rebels, came under Arms to this Deponent’s house. That said Clarke told that he owed him some money, about thirty-five shillings. The Depont. answered, he did not know he owed him any, but desired to know what it was for and said Clarke having told him, he then said he did not realy owe that money but it was due by another, on which the said Roe then clapping this Deponent on the shoulder and said, he must pay that money to said Clarke or go along with them a prisoner. On which the Depont. fearing to be made their prisoner, beged they would let him go and Borrow it from his Neighbour Mr. Black, on which said Clarke came along with this Depont. to said Mr. Black’s with a Bayonet tyed on his Gun, where he paid said 35 shillings to said Clarke which he would not otherwise have done had he not been forced in manner aforesaid.


County of Halifax.


That on or about the 11th of November, that being sent a Message by Col. Gorham Commanding ye Garison at Fort Cumberland to a place called Number 1, to one Mr. Smith which having delivered, and the next morning being about to return to the Garison, one Mr. Richd. J. Uniacke who liveth at Number 1 aforesaid that he must goe along with said Smith to the Rebel Camp, which the Depont. at first refused, but said Uniacke Insisted he must go, otherwise the Rebel Centrys would carry him there by force, and that Colol. Eddy as he called him of the Rebells would never forgive them if he would not goe to him and would Immagine they harbored any person from the Garison he would never forgive him, on which choosing rather to goe to the Centry of himself than be carried by violence he went along with said Mr. Smith to the Centry in order to get permission to return to the Garison. When he came there he told said Eddy what he came about, and to let him return with Mr Smith to the Garison who had teams with him to bring out some Goods, said Col. Eddy said he had no objection, but some Frenchmen particularly one John Cassie told said Col. Eddy that the Depont. was a spy sent out from the Garison, and not to give credit to what the Depont. told him, upon which the Depont. was detained a prisoner with said Rebells, and in a day or two after said Eddy told this Depont. he was Glad they had detained him as a prisoner for that in a few Days they expected some Guns from Machias, with them Privateers, and as he knew he the Depont. was more experienced in Guns than any of them, he would make him their Gunner, to which the Depont. declared he would never fire a Gun against that Garison or his Majesty’s troops, but he might do as he pleased, on which he ordered this Depont. before their Committee as they called them at the house of one Ebenezer Gardner, about 2 miles from their camp, and being carried before said Committee consisting of one Foster Chareman, one Amos Kellum, Wm. Maxwell, Elijah Airs of Sackville, Jessie Bont of Fort Lawrence, one —– Suthrich of Jolly Cure, Simon Chester of Amherst, Nath. Reynolds, Junr. of Amherst and one —– Newcomb of Amherst, and one Michel Burke of Bloody bridge, Committeemen who gave him a writen order as soon as he had passed their Centries, to go to a place called Tantermar in Sackville, and there to remain till further orders, he remained in the camp about 7 Days before he went to Tantermar, Dm-ing which he saw a Company of men from the River St. Johns, commanded by one Capt. West, and another arived from Cobequid in the Rebell Army’s Camp, about 25 men who joined the Rebells, he the Depont. did not know any of them, but one James Falconer and James Averey. Falconer they called Captain, he has seen him very oft come to said Col. Eady’s, and Avery he was told was their Commissary, and has seen him distribute some Flower to them, that as soon as the Rebells were dispersed he came to the Garison. He also deposeth that while he was a prisoner in the Rebell Camp, he heard said Col. Eady & Zebulon Roe say they would give a reward of two or three hundred pounds to any person who would tning in Fraiiklyn, as they called him, to them.


Sworn before me this 10th of January, 1777. WM. NESBITT. }

Nova Scotia, HALIFAX, S.S.}


The King, ag. Parker Clarke, } High Treason


John Cody, foreman ; James Coxdale, Philip Merlin, Robert Nesbitt, Conard Spence, John Taylor, Casper Drilleo, Robert Collins, George Lunn, John Wooden, Jr. John McGra, John McDonald. Who do say that the said Parker Clark is guilty of the Treason as Indicted.

Recorded in open Court this 18th day April, 1777.}

By order of court, D. WOOD, JUNR., D. Clk. Crown.


The King ag. Thomas Falkconor. } For High Treason


John Cody, foreman; James Coxdale, Philip Merlin, Robert Nesbitt, Conard Spence, Thomas Phalon, Casper Drilleo, Robert Collins, George Lun, John Wood, Junr., John McGra, John Godfried Huntrys. Who do say that the said Thomas Falkconor is guilty of the Treason, whereof, he stands indicted.

Recorded in open Court this 19th of April, 1777. }

D. WOOD, JUNR., Clk.



In the Cause, The King, against Parker Clarke, for Treason.

The Prisoner, the said Parker Clarke, Humbly praying Leave of this Honourable Court, and requesteth, That Judgment and execution may be stayed and respited on the verdict found against him, the prisoner, for that it was given in evidence on the Trial that he, the said Parker Clarke, did on or about the Twenty Ninth Day of November last, voluntarily surrender and deliver himself up to Lieut. Thomas Dixon, Then under command of Lieut. Colonel Gorham, in order, as the prisoner then hoped, to acquire and obtain His Majesty’s Mercy and Most Gracious protection and pardon under the several proclamations as well of His Majesty’s Commissioners for Restoring peace. Lord and General Howe and of Lieu. Col. Gorham commanding at Fort Cumberland. And doth most Humbly pray this Honourable Court for the stay or respite of Judgment and Execution against him, and that this Court will be pleased to command him, a fit object of compassion, to the Mercy of His Majesty’s most Gracious protection and Free Pardon under the said Royal authority granted and Impowered by his Majesty’s Most Merciful and Gracious Commission to the said Commissioners, That the same may be extended to him, the prisoner, who in perfect penitance and Repentance is, and shall be, ever bound to pray as well for our Most Gracious Soverign Lord, King George as this Honourable Court.”

Nova Scotia Historical Society “Reports and Collections of the Nova Scotia Historical Society for the year 1878. Volume 1”. Morning Herald, 1879. https://archive.org/details/collectionsofnov01novauoft/page/n6/mode/1up

Plural office-holding in Massachusetts, 1760-1780, its relation to the “separation” of departments of government

The principle of organizing government into separate departments, crucial in American federal and state constitutions, aims for a government of laws, not men. In Massachusetts, this separation was adopted to ensure the independence of government branches rather than differentiating their functions. It wasn’t about creating distinct types of power but ensuring branches acted independently. The separation aimed to prevent the concentration of power in a few hands, safeguarding government for the public good.

Massachusetts’ framers saw this as vital for checks and balances, drawing from English constitutional history and laws against incompatible offices. They viewed it as a safeguard against oligarchy and aimed to establish a government serving all citizens’ interests. This separation was influenced by colonial and English experiences, particularly the constitutional struggles of the mother country, where combining important offices was a longstanding practice. Thus, Massachusetts’ constitution sought to guard against government dominated by individuals, tracing back to both colonial and English governance traditions.

“The principle of organization of government on the basis of “separate” departments is not only fundamental in the structure of American Federal government, but it has been written into every one of our state constitutions in one form or another.

That purpose was stated in Article XXX of the Declaration of Rights of the Massachusetts Constitution to be the achievement of “a government of laws, and not of men.” In another article the same purpose was stated more fully in the following words: “Government is instituted for the common good;—and not for the profit, honor, or private interest of any one man, family, or class of men.”

“The separation of departments had a well-understood meaning to Massachusetts constitution makers, and it was incorporated in the Constitution of 1780 for a practical purpose. This study seeks to show that the primary purpose of the constitutional statesmen in adopting the principle was in reality not a “differentiation of the functions and organs of government,” for discussion of differentiation of the functions of government was negligible at the time. What they actually sought to ensure was the independence of action of the various branches of government or departments: they did not have in mind a separation of powers into different types of power in the modern sense, nor any absolute separation of departments. In the eighteenth century the chief problem in connection with the separation of departments was a separation in office-holding, for which they went back to the common-law rule against the holding of incompatible offices and the English place bills. Neither was the separation of departments, as modern students have supposed, an end in itself. The examination made in this study of the meaning and purpose of the organization of powers in separate departments in Massachusetts in the colonial period has shown that not only was the principle possible of execution in terms of the colonial understanding of it, but that its execution became so universal in the early Massachusetts state government that it was then very much taken for granted. Today political scientists for lack of consecutive discussion have lost sight of the ends which the constitutional framers had in view, their reasons for adopting the principle, and their interpretation of it.”

“It will also be seen that the separation of departments, far from being a check to the majority as is sometimes said, actually was looked upon by the constitutional fathers of Massachusetts as their most important protection against an oligarchy and as a guarantee of government for the benefit of all groups of the state, although not, of course, for the benefit of the majority alone. The study, it is believed, will show that the purpose which the constitutional statesmen of Massachusetts had in mind was to establish a “government of laws and not of men,” that is, a government which would function in the public interest. This end they sought to achieve through a separation of departments.

English constitutional experience and theory and the common-law rule against incompatible offices have hitherto been much neglected as an influence in American constitution making. Actually, for decades prior to the Revolution, the separation of departments was something more than a theory to the Massachusetts colonists. That the principle was necessary to insure effective checks and balances in the public interest was demonstrated to them, not only by their own experience, but also by the statutes and common law of England. In the mother country, the Revolution of 1688 with its constitutional changes was conceived to have furthered greatly the separation, or independence, of the departments and to have resulted in provisions for this purpose not only in the Act of Settlement (since important provisions in that Act were never enforced) but also in a long series of subsequent statutes. In adopting the principle, therefore, the Massachusetts constitution makers looked upon it as something which had already been achieved in England by the common law, by the Act of Settlement and by the various place bills, the passage of a series of which began in 1693 and continued for the greater part of the eighteenth century.

In her first state constitution, Massachusetts adopted a threefold statement of the principle of a separation of departments. The experience which called for such a thrice-certain guarantee went back not only to the beginnings of Massachusetts government, but also to the constitutional struggles of the mother country. The “government of men,” which the Constitution of 1780 provided against, had flourished in Massachusetts from the earliest days of the colony, but the practice of combining important offices of state in the hands of a few men was a custom of long standing in England before it was transplanted to Massachusetts. From the colony period (1629-1692), the “government of men” was carried down in Massachusetts (but with some differences) into the province government set up by the Charter of 1691.

The Trading Company Charter of 1629 had given the Massachusetts Bay Company a Governor annually elective by the General Court, which was a body made up of all the members of the Company. During this colony period, the annually elective Governor was merely primus inter pares, his fellow magistrates (the Assistants) like him acting in an administrative and judicial body of the company known as the Court of Assistants, and constituting also the County Courts and the Council of the Magistrates. They also were members of the General Court. Quite otherwise under the Charter of 1691, the Governor was removed from popular influence by being made appointive by the Crown, while new powers given by the Charter established him as the chief magistrate of the province.”

Brennan, Ellen Elizabeth. Plural Office-holding In Massachusetts, 1760-1780: Its Relation to the “separation” of Departments of Government. Chapel Hill: The University of North Carolina Press, 1945. https://babel.hathitrust.org/cgi/pt?id=mdp.39015008733639&view=1up&seq=7

The Radicalism of the American Revolution

Wood argues the American Revolution, often portrayed as conservative due to its limited social upheaval and political focus, was actually profoundly radical in reshaping societal relationships. While it differed from other revolutions, it was no less transformative. In the 18th century, social issues like class divisions were attributed to governmental abuses rather than systemic isms like capitalism. The revolutionaries, though seemingly focused on political change, aimed for significant social transformation by challenging monarchy and establishing republics.

This shift was radical for its time, as it disrupted traditional power structures and societal norms. The society of that era perceived individuals as deeply interconnected, evident in public punishments designed to shame wrongdoers and involve the community. Additionally, various forms of unfreedom existed, including indentured servitude and slavery, highlighting the complex social fabric of the time. The revolution brought about profound changes that reverberated through subsequent history, challenging traditional notions of authority and dependency.

“If we measure radicalism of revolutions by the degree of social misery or economic deprivation suffered, or by the number of people killed or manor houses burned, then this conventional emphasis on the conservatism of the American Revolution becomes true enough. But if we measure the radicalism by the amount of social change that actually took place – by transformations in the relationships that bound people to each other – then the American Revolution was not conservative at all, on the contrary; it was as radical and revolutionary as any in history. Of course, the American Revolution was very different from other revolutions. But it was no less radical and no less social for being different. In fact, it was one of the greatest revolutions the world has known, a momentous upheaval that not only fundamentally altered the character of American society but decisively affected the course of subsequent history.

It was as radical and social as any revolution in history, but it was radical and social in a very special eighteenth-century sense. No doubt many of the concerns and much of the language of that premodern, pre-Marxian eighteenth century were almost entirely political. That was because most people in that very distant world could not as yet conceive of society apart from government.”

[–Canada is stuck in this state of perpetual dependency, seemingly forever more, trapped under a mountain of clumsy carpentry.]

“The social distinctions and economic deprivations that we today think of as the consequence of class divisions, business exploitation, or various isms – capitalism, racism, etc. – were in the eighteenth century usually thought to be caused by abuses of government. Social honors, social distinctions, prerequisites of office, business contracts, privileges and monopolies, even excessive property and wealth of various sorts – all social evils and deprivations – in fact seemed to flow from connections to monarchical authority.”

[–As it does today, in Canada, with the crown adherent class who manufacture the system by which they themselves are governed without any real input or check by the people.]

“So that when the Anglo American radicals talked in what seems to be only political terms – purifying a corrupt constitution, eliminating courtiers, fighting off crown powers, and most important, becoming republicans – they nevertheless had a decidedly social message. In our eyes the American revolutionaries appear to be absorbed in changing only their governments, not their society. But in destroying monarchy and establishing republics they were changing their society as well as their governments, and they knew it. Only they did not know – they could scarcely have imagined – how much of their society would change. J. Franklin Jameson who more than two generations ago described the Revolution as a social movement only to be roundly criticized by a succeeding generation of historians, was at least right about one thing: “the stream of revolution, once started, could not be confined to narrow banks, but spread abroad upon the land.”

“Idleness, leisure, or what was best described as not exerting oneself for profit, was supposed to be the prerogative of gentlemen only. Gentleman, James Harrington had written, were those who “live upon their own revenue in plenty, without engagement either to the tilling of their lands or other work for their livelihood.” In the early 18th century Daniel Defoe defined “the gentry” as such who live on estates, and without the mechanism of employment, including the men of letters, such as clergy lawyers and physicians…Aristocrats lived upon what we today might call “unearned income”, they did not work for a living. Although some northern colonies might suggest that gentleman Farmers ought to set a “laborious example to their domesticks”, perhaps by taking an occasional turn in the fields, a gentleman’s activity was supposed to be with the mind. Managing their land of the states meant exercising authority the only activity befitting a truly Freeman.”

[–The above section is reminiscent of a passage from Coke Upon Littleton concerning tenure in socage: “Idleness, which is the ground and beginning of all mischiefs….And amongst the Romans, agriculture or tillage was of high estimation, insomuch as the senators themselves would put their hand to the plough; and it is said, that tillage never prospered better than when the senators themselves ploughed.”]

“Only a society that intuitively conceived of individuals as enmeshed in social relationships – bound tightly to the community in a variety of personal ways – could make sense of the such public confessions and of the traditional public punishment still common in the 18th century. Subjecting criminals to public censure at the pillory or whipping and mutilating their bodies in front of neighbors and friends was designed both to involve the community in the punishment and to make the criminals feel shame for their actions. Men and women in 18th century Boston were taken from the huge cage that had brought them from the prison, tied bareback to a post on State Street, and lashed 30 or 40 times “amid the screams of the culprits in the uproar of the mob.” In New York criminals with labels on their breasts were brought to the whipping post on a wooden horse set upon a “triumphal car.”

Everywhere criminals had their heads and hands pillared and were exposed for hours on end to insults and pelting by onlookers. The stocks were even moved about, often to the particular neighborhood of the criminals so they could feel their mortification more keenly. Executions were likewise conducted in public (New York’s gallows stood on the Common), and they drew thousands of spectators. In every punishment the authorities were determined to expose the offender to public scorn, and with the lowest of criminals to do so permanently through mutilation. Persons with a brand on their forehead or a piece of ear missing were forever condemned to the contempt of the intimate worlds in which they lived.”

Most conspicuously unfree of course were the half million Afro-Americans reduced to the utterly debased position of lifetime hereditary servitude.”

“It is evident that many northerners as well as Southerners experienced the Master slave relationship and exercised or witnessed this most severe sort of patriarchal authority at some point in their lives.”

“Tens of thousands of whites, usually young men and women, were indentured as servants or apprentices and bound to Masters for periods ranging from a few years to decades. As late as 1759 Benjamin Franklin thought that most of the labor of the middle colonies was being performed by indentured servants brought from Britain, Ireland and Germany. It has been estimated that one half to two thirds of all immigrants to the colonies came as indentured servants. Among these immigrants were an estimated 50,000 British and Irish convicts and vagabonds shipped to America between 1718 and 1775 and bound over as servants for periods of seven or fourteen years, or even in some cases for life. Yet being bound out in service or apprenticeship for a number of years was not always an unrespectable status, and it was by no means confined to the lowest ranks of the society.”

“In the colonies servitude was a much harsher, more brutal, and more humiliating status than it was in England, and this difference had important implications for the colonists’ consciousness of dependency. Colonial bonded servants in fact shared some of the chattel nature of Black slaves. Although they were members of their masters household and enjoyed some legal rights, they were a kind of property as well, valuable property. Colonial service were not simply young people drawn from the lowest social ranks but, more commonly, indentured immigrants who had sold their labor in order to get to the new world. Precisely because these imported servants were expensive, their indentures or contracts were written and their terms of service were longer than those of English servants – 5 to 7 years rather than the year long agreements usual in England.”

“Because labor was so valuable in America, the colonists enacted numerous laws designed to control the movement of servants and to prevent runaways. There was nothing in England resembling the passes required in all the colonies for traveling servants. And as expensive property, most Colonial servants could be bought and sold, rented out, seized for the debts of their masters, and conveyed in wills to heirs. Colonial servants often belonged to their masters in ways that English servants did not. They could not marry, buy or sell property, or leave their households without their Master’s permission.”

“The subjugation of colonial servitude was thus much more cruel and conspicuous than it was in England, where the degrees of dependence were much more calibrated and more gradual. Consequently, the colonists were much more acutely conscious of legal dependence and perhaps of the value of Independence then Englishmen across the Atlantic.”

“By the middle of the 18th century Black slavery had existed in the colonies for several generations or more without substantial questioning or criticism. The few conscious stricken Quakers who had issued isolated outcry’s against the institution hardly represented general Colonial opinion. Southern planters showed no feelings of guilt or defensiveness over slavery, and even the most liberal of masters coolly and callously recorded in their diaries the Savage punishments they inflicted on their slaves. “I tumbled him into the cellar and there had him tied neck and heels all night and this morning had him stripped and tied up to a limb.” “

“By modern standards it was a cruel and brutal age and the life of the lowly seemed cheap. Slavery could be regarded, therefore, as merely the most base and degraded status in a society of several degrees of unfreedom, and most colonists felt little need as yet either to attack or to defend slavery any more than other forms of dependency and debasement. In addition to the stark forms of unfreedom, many people in this monarchical society experienced other kinds of inferiority and dependency. Closest to the legally unfree were those who did not own their own land.”

Wood, Gordon S. Radicalism of the American Revolution. Vintage Books, 1993.

Howe (1835), Dixon (1920) and McLachlan (1923): Comparative Perspectives on the Legal History of Sedition

Joseph howe province house

This paper recounts three trials for seditious libel in Nova Scotia, drawing parallels between Joseph Howe’s trial in 1835, F.J. Dixon’s trial in 1920, and J.B. McLachlan’s trial in 1923. Howe’s trial, though acquitted, established him as a folk hero due to his successful self-defense. Dixon, emulating Howe’s defense, was also acquitted, while McLachlan’s trial, marked by government manipulation and interference, resulted in his conviction and imprisonment.

McLachlan’s case, unlike Howe and Dixon’s, exemplifies a miscarriage of justice, orchestrated to suppress the working-class. Despite legal efforts inspired by Howe’s defense, McLachlan’s trial failed to challenge the unjust system. The analysis emphasizes the significance of these trials in Nova Scotia’s legal and political history, showcasing struggles against state oppression and the impact of legal and political maneuvering on outcomes.

“Then there is Howe, who was prosecuted by the corrupt magistrates whom he exposed in his day. By the way, he successfully defended himself, and I hope to perhaps follow his glorious example. He is now proclaimed as Nova Scotia’s noblest son.” — FJ. Dixon, 1920

“When they tried Joseph Howe for sedition, they erected a monument to him in the shadow of the County jail [sic: Province House yard].” — J.B. McLachlan, 1924

“I am not a prophet, nor the son of a prophet, but I tell you that what happened to Howe will happen to McLachlan.” — J.S. Woodsworth, 1924

In Halifax, in 1835, Joseph Howe, a newspaper proprietor and editor, was tried for seditious libel for publishing the second of two pseudonymous letters critical of local government. In Winnipeg, in 1920, F J. (Fred) Dixon, an independent labour member of the Legislative Assembly of Manitoba, was tried for seditious libel for publishing in the strike bulletin which he briefly edited during the General Strike of 1919, articles critical of the strike’s suppression. In Halifax, in 1923, J.B. McLachlan, communist secretary of United Mine Workers of America District, was tried for seditious libel for having written an official letter critical of the violent actions of the provincial police in Sydney. These three “state trials” document the important historical conflicts out of which they arose, reflect the politico-legal contexts in which they occurred and illustrate the meaning of the “misrule of law” as it developed through the repressive exercise of state power during both the colonial and the national periods.”

“Ironically, the industrial action which led to the prosecution of McLachlan did not originate with the Cape Breton coalminers. In June 1923, Sydney steelworkers struck again for recognition of their union. When mounted provincial police, who had been summoned at the behest of the British Empire Steel Corporation (Besco), made a bloody charge against the Sunday evening crowd on Victoria Road in Sydney on July 1, McLachlan, in his capacity as secretary of District 26, authorized a wildcat strike. “This was a fateful decision,” writes David Frank, quoting McLachlan’s official letter (sea Appendix 1), one that brought down the wrath first of the provincial government and then of the international union. For his call to arms McLachlan was charged with seditious libel and subsequently sentenced to two years in jail. For his violation of international union polity in calling the sympathetic strike he was removed from office by John L. Lewis [president] of the United Mine Workers. McLachlan was prosecuted because he was the leader of an illegal sympathetic strike. The seditious libel for which he was convicted was an official letter signed and ordered circulated by McLachlan in his capacity as secretary of District 26 of the UMWA.”

“The parallels to Howe rest with Fred Dixon, who was acquitted after defending himself in a great forensic address purposely modelled on Howe’s. McLachlan, on the other hand, was dissuaded from defending himself, did not testify on his own behalf and was perfunctorily convicted. “[C]ivil libertarians, then and since,” according to Howe’s biographer, Murray Beck, “have excoriated the [McLachlan] trial for its alleged unfairness.” Yet, Beck too refuses to acknowledge any parallels between Howe and McLachlan. He forbears describing Howe as “seditious libel,” a technical term he uses in relation to McLachlan, and does not confront the suspicion that chief counsel for the defence, Gordon Sidney Harrington K.C., (in David Frank’s words) “deliberately exploited the case to promote the fortunes of the Conservative Party and prove the iniquity of the Liberal government.” Beck also fails to identify “McLachlan’s lawyers” as two politically ambitious Conservative barristers — the other was Halifax labour lawyer, John Archibald Walker — both of whom were elected to the Assembly in the Conservative sweep of 1925 and appointed to the cabinet. Harrington, a former mayor of Glace Bay, which was also home town to McLachlan and headquarters of District 26 of the UMWA, was counsel to the union.”

“McLachlan — unlike Howe and Dixon — was a gross miscarriage of justice, in which the accused was “framed”, charged, tried, convicted and imprisoned for having published a seditious libel when in neither the legal nor the ordinary sense of the word had he published anything at all. Before the “fixed” publication, the Crown did not have even a prima facie case against the accused. The obvious motive for the government’s conniving at newspaper publication was not only to lay the basis for the charge of seditious libel, but also to give some reason for McLachlan’s incarceration and transportation to Halifax, which Attorney-General O’Hearn was later to characterize as “a neutral [safe?] county.” The very possibility of contesting the legal repression – by achieving a counter-hegemonic success à la Howe and Dixon — was precluded by the careful manner in which the government stage-managed the proceedings against McLachlan from beginning to end. Circumstantial evidence suggests that the McLachlan prosecution was the result of a conspiracy involving the Red-baiting provincial Liberal government, the management of Besco and the proprietor of the Morning Chronicle — the only Halifax newspaper in which McLachlan’s official letter was published. The District circular appeared verbatim on the front page of the edition of 6 July 1923 — a mere two days after it was issued — under the incendiary sub-headline, “McLachlan’s War Whoop.” Publication in Halifax had been arranged by Andrew Merkel, Maritime superintendent of The Canadian Press, whose vice-president, George Frederick Pearson, was also hereditary president of the Chronicle Publishing Company Limited. A lawyer and highly influential political insider — Beck describes him as “long a mastermind of the Liberal Party” — G. Fred Pearson was also Besco’s solicitor. Though McLachlan’s conviction for publication in Halifax was eventually struck down on appeal, at the time of the trial even the strongest legal defence would have been ineffectual against a government partial to Besco, a mass-circulation morning newspaper complicitously toeing the government’s line, an “anti-Bolshevik” Attorney-General prosecuting in person, a manipulable jury altogether unacquainted with labour-management relations in industrial Cape Breton, and an highly interested judge. Presiding over McLachlan was Justice Humphrey Mellish, a corporate lawyer and former solicitor for the Dominion Coal Company — who was elevated to the bench in 1918, so that he could more effectively protect the interests of his former corporate clients. The fact that Mellish’s law firm, Mclnnes Jenks Lovett & Macdonald [now Mclnnes Cooper & Robertson], was in Besco’s pocket — the senior partner, Hector Mclnnes, was a director of the corporation — was sharply emphasized by J.S. Woodsworth MP in House of Commons debate in March 1924, following the announcement of the government’s decision to parole McLachlan. Woodsworth, who toured Nova Scotia in January 1924 at the invitation of the Nova Scotia Workers Defence Committee, enquired “concerning the judges of the supreme court, and… was told that the corporation influence on the bench was so strong that the court is looked upon by labour as a company department.” Charges of seditious libel against Woodsworth, a former editor of Winnipeg’s Strike Bulletin, were indefinitely stayed when Fred Dixon was acquitted of the same charge. Woodsworth read into Hansard the words uttered by Joseph Howe before the jury while introducing his discussion of The Libel Act 1792: It is ninety years since in Nova Scotia a man was tried for sedition. Then a man was haled before the courts and accused of being “a wicked seditious and ill-disposed person, a person of most wicked and malicious temper and disposition.” That man is now regarded as one of Canada’s greatest sons, Joseph Howe. But he was able to say at that time, in connection with his trial: “And here I may be permitted to thank heaven and our ancestors, that I do not stand before a corrupt and venal court and a packed and predetermined jury.’,

Joseph Howe’s trial for seditious libel, eighty-eight years before McLachlan’s, has never been excoriated for unfairness by civil libertarians or anyone else, because Howe was tried by an impartial, disinterested judge — Chief Justice Brenton Halliburton — and acquitted by an enlightened jury. Indeed the canonical, politico-biographical interpretation of Howe does not consider the possibility that this too was a trial for sedition, lest it be compared with the trial of the politically persona non grata working-class radical, J.B. McLachlan. Repeated ad nauseam is the canard that Howe was tried for “criminal” libel, suggesting that the dual character of defamation as crime and tort could disprove the self-evident truth that Howe too was tried for seditious libel. Indeed the very success of Howe’s self-defence accounts for this misunderstanding of his trial, which resulted in an acquittal despite the fact that the truth of a libel was not pleadable except as a defence to an action, and that neither truth nor public benefit could be pleaded in justification of a seditious libel.”

“Joseph Howe — it needs to be said — was neither arrested nor jailed, though he expected to be and arranged for bail to be posted by his friends, while McLachlan and Livingstone were not only arrested, transported to Halifax and imprisoned, but were initially denied bail at the instance of the Crown. Nor was Howe’s venue changed from Halifax to Sydney, to be tried by a jury of coalminers, who had as little understanding of abuses in the administration of local government in the District of Halifax as the jury of Halifax petit-bourgeois who convicted McLachlan had of labour relations in industrial Cape Breton. The Crown failed to make its case in Howe and Dixon and would have failed to do so in McLachlan had he too been tried by a jury of his peers. Howe — tried and acquitted by sympathetic friends and neighbours and readers of his reformist newspaper, the Novascotian — was thought by the Halifax bar, who to a man refused his retainer, to be foredoomed. Conversely, McLachlan’s lawyer, seeing in his client a latter-day Howe, was overconfident of victory.”

“In preparing his defence of McLachlan, Harrington, like Dixon, availed himself of The Speeches and Public Letters of Joseph Howe, a new and complete edition of which had been produced in 1909 in a commendably bipartisan manner. The publisher was the Halifax Chronicle, the Liberal Party organ founded in 1844 and once edited by Joseph Howe, while the reviser was the prominent Conservative lawyer and municipal politician, Joseph Andrew Chisholm K.C. Chisholm, who in 1916 acceded to a puisne judgeship, played a significant collateral role in the proceedings against McLachlan. In June 1923, he presided at the criminal assizes in Sydney, when, according to Attorney-General O’Hearn, “in the neighbourhood of twenty-odd bills of indictment against strikers for their criminal activities in February 1923, were thrown out” by the grand jury for lack of witnesses willing to testify. Chisholm was also, according to J.S. Woodsworth, one of only two of seven judges of the Supreme Court of Nova Scotia who had had no “known relations” with Besco or its constituent operating companies.”

“What mattered were the changes in Canada between 1919 and 1923. By the latter date, sedition law was being used systematically against working-class radicals in general and strike leaders in particular, regardless of their lack of socialist credentials — a tendency strikingly illustrated by the prosecution of Fred Dixon MLA. Not only had new repressive state security laws been introduced, but also the state’s determination to repress working-class radicalism had been renewed since 1919 and the range of potential uses of existing sedition law accordingly broadened. If the significance of Howe for McLachlan relates more to the forensic use of history than to the forensic use of law, then McLachlan is an object lesson in the failure of legal history as legal argument. It is not a question of the uses or sources of law, however, because Howe, as a jury trial resulting in an acquittal did not form a legal precedent. Howe in relation to McLachlan concerns the historical uses of law versus the juridical uses of history, and in either respect depends upon a mutually agreed, authoritative and analytically sound reconstruction of the leading case. When the Crown denied the existence of any previous trials for sedition in Nova Scotia, the defence attempted unsuccessfully to adduce Howe as a precedent.”

“G.S. Harrington, who had never practised in Halifax and was far from being the “noted barrister” of John Mellor’s rose-coloured romance, was facing one of the leading criminal counsel of the Halifax bar in Attorney-General O’Hearn. Harrington nevertheless aimed to achieve, without any help from his client, whom he did not call to testify in his own defence, what Howe and Dixon had achieved by unassisted advocateship. The upshot was that Howe immediately became a “folk hero,” and ultimately a figure of Olympian myth. His trial became the defining moment in the political history of the province. Dixon was overwhelmingly re-elected to the Manitoba legislature in the general election held four months after his acquittal. McLachlan, however, remained a working-class anti-hero, whose trial and unsuccessful appeal, in David Frank’s words, “passed on into the untapped obscurity of legal history.” Scholars of Howe have failed to acknowledge the resemblance of the McLachlan sedition trial to the Howe sedition trial. They seem unaware that seditious libel at common law is sedition not libel, and that Howe was not on trial for defamation, but for a crime against the state. The politically and socially dangerous implication for the historiography is that Howe, the petit-bourgeois “conservative reformer,” would be coloured by association with McLachlan, the working-class radical and Bolshevik pariah. Yet, at the time of his own sedition trial Howe did not consider himself, nor did his friends or enemies consider him to be conservative in any sense of the word. That Howe stood four-square in the English radical whig tradition is clear from a close, impartial reading of the stenographic report of his courtroom address in his own defence.”

“In that sense, J.B. McLachlan no less than Fred Dixon was a legatee of Joseph Howe, as well as the provider of a legacy of working-class political radicalism — and his forerunners were the radical reformers of a century earlier. Excepting only McLachlan, the study of sedition in Nova Scotia has been obfuscated by the “criminal libel” misnomer such that the seditious libel prosecutions of William Wilkie in 1820 and Joseph Howe in 1835 are not seen for what they undoubtedly were: show trials staged by the ruling class to counter the perceived threat to the established order posed by ancillary crimes against the state. Just as Howe implicitly compared himself to the English radicals of the period of extreme Tory reaction in the late eighteenth and early nineteenth centuries — many of whom were tried and convicted of seditious libel — so the comparison with Howe was advocated by McLachlan’s senior counsel, the Conservative lawyer-politician Harrington. If the radical pamphleteer William Wilkie — tried and convicted of seditious libel in 1820 after an unsuccessful self-defence conducted along the same lines as Howe’s fifteen years later — was a forerunner of Joseph Howe, then Howe was a forerunner of J.B. McLachlan, who assumes a place of honour within the century-old tradition of political protest and trials for sedition in Nova Scotia. McLachlan, writes David Frank, “was a political trial, part of a Canadian tradition we have found it all too easy to forget. These kinds of trials, such as Joseph Howe’s in 1835, had long pitted the forces of change against the forces of continuity.””

“Clearly a line of defence which did not result in a verdict of not guilty was “an ineffectual one”; however, to criticize it as incoherent, as David Frank does, is ex post facto rationalization. Just as scholars of Howe have disposed of some archetypal myths — such as that the verdict established freedom of the press — only to replace them with others, so students of McLachlan fail to recognize that one of the lessons of that case is that criminal law and criminal justice history are not necessarily combinable in the context of legal proceedings. Political trials, however significant they may be in other respects, are not necessarily significant sources of law. Frank, for example, argues that counsel for the defence in McLachlan “probably unreasonably, accepted the argument that truth was no defence in a case of seditious libel.” Harrington’s acceptance of what had long been a settled principle of the common law can hardly be considered unreasonable for a lawyer pleading in a criminal court. Moreover, Harrington’s failure to recognize that one of the lessons of Howe was that the restriction on truth as a defence “could be easily evaded in the process of clarifying the defendant’s intentions” is fully consistent with his argument on appeal that seditious libel law was unaffected by the passage of The Libel Act 1792. There the jury’s right to “find” intention as a matter of fact was explicitly affirmed. The problem with Harrington’s defence was not incoherence but error of law. The Libel Act 1792 was the very statute which enabled Howe to evade this common law restriction on defence pleading in the course of clarifying his innocent intentions.

As John Mellor correctly states, Harrington “had based his whole case on the famous Joseph Howe and his acquittal on a similar charge of seditious libel.” Harrington either did not understand or failed to elucidate the legal justification for Howe’s acquittal. He not only misunderstood the implications of The Libel Act 1792 for sedition law, but also mistook the legal heart of Howe’s defence. Harrington nevertheless believed that he could defend McLachlan in the same manner and with the same success as Howe had defended himself. Despite the fact that McLachlan was not defending himself, and that Howe had called no witnesses, there seemed to Harrington little point in putting the accused in the witness-box, to be exposed to a withering, ideologically perverse cross-examination by the Attorney-General. “It was generally believed,” according to Mellor’s hearsay: that if Harrington had arranged for defence witnesses to give evidence for McLachlan at the trial, he could quite possibly have won an acquittal, but instead, Harrington had based his whole defence on drawing an analogy between the famous Joseph Howe case, which had ended in acquittal, and the McLachlan case with its communist overtones. This is an aspect in which McLachlan and Dixon differ; Dixon was a non-socialist, while McLachlan was a revolutionary socialist who could scarcely have been permitted to speak candidly in his own defence in open court.”

Just as the legal argument from analogy failed to obtain an acquittal for McLachlan, so the argument from legal history has failed to obtain recognition of McLachlan as a case which merits judicial reconsideration. As recently as 1990, the authors of an essay on the historiography and sources for the study of Russell could claim that “[t]he legal history of the Winnipeg General Strike trials has yet to be written.” The same may be said for the legal history of working-class radicalism in Nova Scotia.”

Cahill, Barry. “Howe (1835), Dixon (1920) and McLachlan (1923): Comparative perspectives on the legal history of sedition.” University of New Brunswick Law Journal, vol. 45, 1996, journals.lib.unb.ca/index.php/unblj/article/view/29601

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.


Sedition In Nova Scotia: R. v. Howe and the “Contested Legality” of Seditious Libel

Joseph Howe’s trial for sedition in 1835 marked a pivotal moment in Canadian history, likened to John Wilkes and Charles James Fox in significance. Howe’s defense, a masterful application of legal principles, challenged the government’s use of sedition law to silence political opposition. His arguments, rooted in fundamental freedoms and legal rights, led to his acquittal and established a precedent against repressive prosecutions. The trial showcased the interplay between law and politics, highlighting the role of sedition as a tool for stifling dissent and the importance of legal resistance in defending constitutional liberties.

Howe’s victory dismantled sedition as a crime in Nova Scotia, discouraging future prosecutions and emphasizing the power of the jury to uphold civil liberties. While Howe’s success was a blow to government repression, lasting reform required political action in the legislature, where the battle for constitutional change ultimately unfolded. Overall, Howe’s trial exemplified the complex relationship between law, politics, and individual rights in the struggle for freedom of expression and governmental accountability.

“Nova Scotia had found [in Joseph Howe] not only its John Wilkes but also its Charles James Fox.” — W.S. MacNutt, 1965

“In a seminal article published in 1974, Kenneth McNaught described Howe as one of Canada’s “two most significant cases involving political freedom of the press” — the other being Dixon for seditious libel arising from the Winnipeg General Strike of 1919. McNaught failed to mention an important early New Brunswick case (Hooper, 1830), where the proprietor-editor of the British Colonist (Saint John) was prosecuted for seditious libel after publishing, under the author’s suggestive Puritan nom-de-plume (“Hampden”), a letter castigating the legal profession and the administration of justice. Hooper, like Howe and Fred Dixon after him, defended himself — but was discharged rather than acquitted, due to a hung jury and the trial judge’s advice to the attorney-general to stay the proceedings. Whether Hooper’s discharge or Howe’s acquittal established, preserved or strengthened the freedom of the press is a moot point which, regardless of how it is decided, does not provide the key to understanding either the legal or historical context of Howe’s trial for sedition. Yet traditional scholarship fails to offer a properly contextualized legal or political analysis of Howe, which was by any definition a state trial.

Another question which requires attention is whether the prosecution of Joseph Howe for sedition would have taken place at all had Howe’s newspaper not been the voice of radical political opposition to Halifax’s corrupt, inefficient and unreformed government. This self-perpetuating gerontocracy of justices of the peace, based on the old English model, had ruled Halifax since its founding in 1749. It had been resisting any and all attempts at civic incorporation since 1785, when Saint John, Canada’s first city, was incorporated. Published criticism of the magistrateship tended to be construed as criticism of the executive branch — the lieutenant-governor and council — who “were equally supreme in the control of town affairs as those of the province at large.

The grand jury for the year 1835 was impaneled on the opening day of Hilary Term and formally charged by the chief justice. The date was later than usual, but in good time for the spring sitting of the Quarter Sessions on 3 March. Both Howe’s half-brother Joseph Austen and the two magistrates, James Noble Shannon and John Leander Starr, sought and received permission to withdraw when, on 17 February, the attorney-general came to the grand jury room and presented to the foreman an indictment against Joseph Howe for libel. Howe afterwards read into the record a passage from the now lost indictment which makes crystal clear that the charge was seditious libel:

“The jurors of our Lord the King upon their oath present, that Joseph Howe, late of Halifax, in the County of Halifax, printer, being a wicked, seditious and ill-disposed person, and being a person of a most wicked and malicious temper and disposition … [and] greatly disaffected to the administration of His Majesty’s Government in this Province, and wickedly, maliciously, and seditiously contriving, devising, and intending to stir up and excite discontent and sedition among His Majesty’s subjects….”

“Though the grand jury had ample opportunity to quash the indictment, they chose instead not to run the risk of antagonizing the government by forcing the attorney-general either to discontinue the prosecution or to lay an ex officio criminal information. Returning true bill suggests timidity on the part of the grand jury in the exercise of their investigative function — at least where political trials were concerned — and their action was not even remotely comparable to the independence and assertiveness of earlier, reformist grand juries. If the neo-conservative grand jury of 1835 had been of the same political stripe as that of 1834, then the bill would certainly have been rejected. Everything turned on the composition of the new grand juiy: whether to prosecute; whom to prosecute; by what means to prosecute.”

“This was not mere criminal libel – defamation; this was sedition. “That is not the law as respects public bodies,” stated Archibald. “It does not allow the defendant to escape in this way.” The attorney-general then sketched the common-law crime of sedition, omitting Fox’s Libel Act, which had already been covered by lead counsel. Archibald’s contention that the defendant’s rebuttal of the crown’s inference of malice was “unknown to the law” differed from Howe’s constructive application of the Act, according to which the jury was not required to convict solely on the basis of the sense ascribed to the alleged libel in the indictment. In other words, the effect of construing the Act as Howe did was to undermine the common-law rule that the intention of the writer is to be gathered from the words written. The accused had argued forcefully that if the crown had the right to infer malice from the content of the alleged libel, then the jury had the right to reject that inference, and to determine on other grounds the presence or absence of seditious intention.
Recognizing the weak self-interestedness of the crown’s case, Archibald focused more on its procedural than on its substantive aspects. Indeed, he came dangerously close to suggesting that the government had prosecuted for sedition in order to forestall the magistrates impoliticly initiating an action for defamation:
If the nature of the charge [against the magistrates] would have allowed of a private prosecution, the defendant would then have been obliged to put his justification upon the record, and to prove the truth of it by witnesses placed in the box and examined on oath, not by hearsay, nor even by the report of a committee of His Majesty’s Council.”

“Howe’s defence was built on the bedrock of law, not the sand of fact; and it was as ingenious as it was brilliant in its simplicity. The proceeding must have induced in Chief Justice Halliburton a sense of déjà vu; he had been on the bench in 1820, when Chief Justice Sampson Salter Blowers delivered his charge to the jury in Wilkie. Fifteen years later, Halliburton, having succeeded Blowers in 1833, now found himself presiding over only the second seditious libel trial to have occurred in the province. The charge was a congeries of evasion, irrelevancy and prejudication, which strikingly illustrated Halliburton’s too limited experience at the bar; as a lawyer, the chief justice was much the inferior of his contemporary, the attorney-general. Indeed, the only constructive parts of his charge were those which regurgitated the attorney-general’s reply. Like Archibald before him, Halliburton was at pains to explain the nature of the prosecution in order to justify, if not cloak, its purpose. As the trial proceeded, it became clear that it was the crown, not the accused, that was on the defensive.”

Howe was the first, and would be the only, acquittal of an accused seditionist in Nova Scotia. “Your verdict will be the most important in its consequences ever delivered before this tribunal,” Howe admonished the jury in his defence, implying that the liberty of the press might be in jeopardy if it were to find against him. A defence which persuaded a trial jury, applying Fox’s Libel Act, to return a verdict of not guilty cannot reasonably be described as “from the point of view of the law…magnificently irrelevant.” Such an interpretation ignores the truism that the jury was ultimately the judge of both law and fact. The trial judge could only advise and warn, direct and instruct — and then consent to the verdict, regardless of what it was. The jury’s responsibility in sedition cases was greater still because there was no clear, positive law defining seditious libel; that was for the courts to determine by reference to case law. As part of received English criminal procedure — consistent with Nova Scotia’s common-law reception protocol — Fox’s Libel Act was deemed automatically to be in force. It was declaratory, affirmative and ameliorative of the common law of libel, and tended to enhance the liberty of the subject. To be sure, both Attorney-General Archibald and Chief Justice Halliburton passed over in deafening silence an Act which they knew to be the strongest weapon in Howe’s tiny legal arsenal. However, Gray had already elucidated it in presenting the crown’s case; and the accused made much of it in his defence. The attorney- general and the chief justice may therefore have concluded that the less said about it the better. They could hardly have taken exception to Howe’s account of it, which was correct and compelling in every way.

The suggestion that the law was disregarded by the jury is likewise mistaken. The opposite is true; the law was scrupulously regarded by a jury exercising their prerogative under Fox’s Libel Act to give a general verdict on the evidence. They found that there was no seditious libel, not because the statements in “The People” were true or because their publication by the accused had been for the public benefit, but because there was no seditious intention. Howe’s forensic enabled the jury to infer absence of malice from truth and public benefit, these being the two elements which would afterwards combine in the Libel Act, 1843 (“Lord Campbell’s Act”) to form the justification defence to criminal defamation. That the crown inferred malice from the publication, without attempting to prove seditious intention, was an attempt to presume the accused guilty, as it were, until he could prove himself innocent.”

“Though the bar was, for Howe, the career path not taken, he had conducted an intensive study of both the state-trials case law and the treatises. By no means “magnificently irrelevant” from the point of view of law, Howe’s defence exploited to the full the resources of criminal procedure. Though the accused undoubtedly “stated a great variety of things which could not be evidence,” he had also stated more law than either the attorney-general in his summation or the chief justice in his charge to the jury. To the extent to which doubts respecting the function of juries in libel cases were removed by Fox’s Libel Act, Howe construed the remedial statute liberally. Hence the correctness of the jury’s decision “to take its view of libel, not from Archibald, not from Halliburton, but from Howe, and bring in a verdict of ‘not guilty.’” Despite the brilliance of his forensic oratory, Howe’s triumph was more forensic than oratorical in character. To paraphrase Beck, the accused had in effect convinced the jury that the procedural law applicable to their function in a seditious libel case empowered them honourably to acquit him.”

Howe’s crash-course mastery of sedition law à la Thomas Erskine figured prominently in his defence to the charge. Unlike Wilkie, he argued not for truth as a defence to seditious libel but for a narrower definition of it that excluded fair comment. Yet there was no criticism of the administration of justice — as in Hooper, and also to some extent in Wilkie — and no allegations that the magistrates were guilty of misfeasance. This is what distinguishes Howe from both Wilkie and Hooper, where the crown’s case was stronger and the verdicts guilty. While the resort to sedition law bore the legitimacy of precedent, it was a double-edged sword, as Attorney-General Archibald realized. Despite the chief justice’s rather unsubtle attempt to direct a verdict of conviction, the government could not depend on a trial jury to toe the line; and, because of Archibald’s unwillingness to allow either of the law officers lead for the prosecution, Howe was able to exploit with spectacular success the very public forum of a trial at bar in the Supreme Court. As Howe’s triumph demonstrates, the government’s prosecutorial monopoly and control of the judiciary did not mean that a struggle such as Howe’s was a purely self-defensive reaction to an undefendable charge arising from the repressive use of the criminal law. The fact that truth could not be pleaded as a defence to seditious libel did not mean that there was no defence.

The Howe case is a uniquely rich exemplification of contested legality. An analysis of Howe’s great speech in his own defence reveals not only the legal sophistication of the accused, but also highlights the importance of law-finding in the verdicts of libel juries. Howe’s arguments from fundamental freedoms and legal and equality rights thoroughly discredited the charge against him. They derived from his belief in the jury’s obligation to safeguard hard-won constitutional liberties, such as freedom of the press (only recently achieved in England), and to oppose by their verdict repressive use of the criminal law by government. The very nature of sedition law and the deep interpenetration of government and the judiciary under the ancien régime placed in high relief concerns about crown prosecutorial responsibility, the independence of the grand jury, and the impartiality of the bench.

The fact that the Nova Scotia government controlled the inauguration of state- criminal proceedings was hardly a controversial departure from English practice, as it was in Upper Canada in the 1820s and New Brunswick in 1830-1. The attorney-general’s monopoly over crown prosecutions (which by no means precluded private prosecutions) was benign — except when the government ordered the prosecution of a suspected political criminal. Despite the fact that the ex officio criminal information formed no part of received English criminal procedure in Nova Scotia, Attorney-General Archibald could easily have proceeded by that mode – simply because the offence charged was sedition (a public libel) rather than defamation (a private libel). That he did not to do so, and explained why in his summation, is a most telling illustration of the triumph of constitutionalism over legal repression.”

“The trial jury’s freedom to render a general verdict was based on the recognition that Fox’s Libel Act was of full force and effect in Nova Scotia and that it applied to all forms of libel, public (seditious, obscene, blasphemous) as well as private (defamatory). Trial by jury and verdict according to conscience — central to civil-libertarian opposition to the development of sedition law in eighteenth-century England, and virtually suspended in Upper Canada under the Seditious Aliens Act (1804-1829) — were taken for granted in Nova Scotia. As is clear from Howe, Erskine’s famous arguments on the trial jury’s right to deliver a general verdict were recapitulated, and Nova Scotia’s instantaneous reception of the common-law declaratory Libel Act was reconfirmed. Upper Canada, where the need was greater because of a punitive sedition statute, did not have the benefit of Fox’s Libel Act. Ultimately, it fell to the jury in Howe to become the voice of popular protest against oppressive prosecutions and Sessional misgovemment, as that role had been abdicated by the new neo-conservative grand jury. Though the accused in his defence suggested no such thing, the trial jury by their verdict sent a clear message to the Council and the magistrates that the local government was inefficient and corrupt and required reform or replacement.”

“As an episode in Canadian law and Canadian history, Howe clearly demonstrates the very broad applications of a judicially-legislated offence like seditious libel. As J.M. Bumsted has written in another context, “Seditious libel was the classic Anglo-Canadian charge used by those seeking to muzzle public criticism.” Seditious libel had more of sedition than of libel about it. The long-term politico-legal effect of Howe was to extinguish sedition as a crime in Nova Scotia; there would not be another prosecution for nearly ninety years. Before Howe, seditious libel prosecutions were an assured conviction; after Howe, they were deemed risky, counter-productive and not worth pursuing.

Sociolegal history is essential to understanding the interrelationship of law and politics and government’s use of the former to regulate and control the latter. Certainly the Nova Scotian sedition cases – Hoffman (1753), Wilkie (1820), Howe (1835) and McLachlan (1923) – document the overwhelming importance of political crime both to the colonial state and to the experience of “conservative” reformers such as Joseph Howe, not to mention radical ones such as William Wilkie and J.B. McLachlan. Sedition law was an extreme and usually effective means of censoring extra-legislative political discourse. Prosecutions were designed to intimidate influential public opinion-makers and neutralize potential leaders of a popular opposition, by stigmatizing pro bono publico criticism as untrue and unfair and imputing a spirit of disloyalty to it. Yet while serving to justify and excuse its repressive use by government, the law was multi-purpose. Victims of the prosecution could use the machinery of the criminal law to contest legal repression by government. Sedition as an instance and instrument of the repressive use of criminal law reveals tensions between rule of law and rule of government, state and people, authority and discretion — articulated in concerns about government control of public prosecutions, the grand jury and the judiciary. Howe’s great hopes and expectations for British justice had everything to do with constitutionalism and nothing with legalism. Howe’s optimistic sentiments bespoke his fundamental belief in the system, his belief that the rule of law was the guarantee of the liberty of the subject and of equality before and under the law. The source of Howe’s immense popular appeal as a victim who refused to lie down was not that the government had deprived him of his constitutional rights, but that they had falsely and maliciously accused him of, and prosecuted him for a crime which he had not committed. He used the law decisively to remedy its misuse by government, a strategy which highlighted the political inexpediency of legal repression. What had worked before would not work again because it was wrong.

The positive effect of Howe’s success, however, should not be exaggerated. The fact that public prosecutions were always initiated by government meant that trials in the Supreme Court were risky self-defensive exercises, which, while not precluding the possibility of unanticipated acquittals, made their occurrence improbable. And it is evident that claims of contestability, which defied precedent and the collective wisdom of the legal profession, were weak on their face — given government control of the prosecution process in state trials. Nevertheless, the effect of Howe’s acquittal was to checkmate legal repression by holding the magistrates accountable, and embarrassing the government in such a manner as to kick-start reform in the legislative sphere. The reform leadership-in-waiting— in other words, the lawyers who would not defend Howe in that most public of all public forums, the Supreme Court — declined to do so in part because they realized that the more important struggles ultimately had to take place in the political arena, in the House of Assembly, and not in extra-parliamentary forums such as the grand jury and the liberal press. Repressive prosecutions, the political use of the criminal law and ancillary crimes against the state could only be effectively resisted if “high-profile” acquittals were procured. Legal successes, especially surprising ones, caused massive loss of face and credibility on the part of government, and unquestionably discouraged resort to sedition law after 1835. However, constitutional reform could only be secured by political action in the legislature. From 1836, when the final battle was joined, until 1848, when final victory was won, the legislature – not the courts – would be the arena of political struggle in Nova Scotia”

Cahill, J Barry. ‘Sedition in Nova Scotia: R. v. Howe (1835) and the ‘Contested Legality’ of Seditious Libel’ University of New Brunswick Law Journal, Vol 51, 2002, pp. 95 – 140. https://web.archive.org/web/20210207140058/https://core.ac.uk/download/pdf/288207148.pdf

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