Issue # 50, February 2011, ISSN 1913-4134
Join us on a pre-Confederation journey into aspects of the judicial life of Westmorland County as discovered by Eugene Goodrich when he obtained a "minute book" of the Court of General Sessions of the Peace for Westmorland County. Eugene presents us with a "slice of judicial life" in Tantramar in the late 18th/early 19th centuries that we hear, or read, little about (and some may wish not to!). I found it to be a most interesting journey in that part of our past. And as many of you who read this newsletter, and those of us who contribute to it, are devoted to the better understanding and protecting our area's history and heritage, Charlie Scobie, chair of the Town of Sackville's Heritage Board, provides us with the progressive means by which the Town of Sackville aims to accomplish the protection of its Heritage sites. As I wish to see Eugene"s complete document in this issue of The White Fence along with Charlie's and his committee's article on protecting our town's heritage, this editorial must use as few lines as possible, contrary to my usual lengthy meanderings in this space! So, without further delay, read of the many interesting pre-Confederation legal issues of Westmorland County that Dr. Goodrich was able to extract from this little book, as well as the Town of Sackville's efforts to protect its heritage. And, as usual (I hope), enjoy!
- Peter Hicklin
Tales from the General Sessions of the Peace:
Some Glimpses into the Early Legal Life of Westmorland County 1785-1809
By Eugene Goodrich
One of the minor guilty pleasures of historical research is unexpectedly finding interesting tidbits that have little to do with the subject at hand. Case in point: I have lately been doing some research into John Keillor who built Keillor House in Dorchester in 1813. Among other things, Keillor was a Justice of the Peace, one of about twenty local magistrates appointed for each county in the province by the Lieutenant Governor in Council. The need to learn more about his work as a magistrate eventually led me to the discovery of a minute book of the Court of General Sessions of the Peace for Westmorland County from 1785 to 1809, a copy of which is preserved in the Mount Allison University archives. Like its counterparts in other counties, the Westmorland "Court of Sessions", as it was called for short, met twice a year (first in January and July, later in December and June) at the county court house originally located at "Westmorland Point" near Mount Whatley, and, after 1802, at Dorchester. Presided over by the county sheriff, it was made up of the Justices of the Peace for the county (although not all of them attended every session), together with a Grand Jury of about twenty four and (usually but not always) a Petit Jury of about twelve, both of them drawn by lot from among the more substantial of the county’s landowners.
Among other things, the Grand Jury indicted violators of the King's Peace, nominated the officers for each township or parish 1 in the county, and made recommendations on various matters of local importance. As it had been doing for centuries, and still does, the Petit Jury heard the evidence and gave the verdict in the cases brought before it. Thus, the Court of Sessions 2 was both a law court for trying lesser offences such as assault and battery, petty larceny, rioting, etc., and an administrative body with control over all aspects of local government. Besides appointing the local officers nominated by the Grand Jury, it licensed stores and taverns, regulated weights and measures, fixed certain prices such as bread, levied taxes, supervised the building and maintenance of roads and bridges, oversaw prisons, hospitals and schools, regulated livestock running at large, regulated the local fishery and did much more besides.
Given the court's multifarious activities and functions, the value of its surviving records as a source of local social history will be obvious. Unfortunately, the minute books, which in any case survive only sporadically, are not as detailed as one might like - often, all we get is the charge to the jury and the verdict, or a simple list of offices or licensees without further elaboration. Nevertheless, besides finding out things I didn't know before about John Keillor, my laborious transcriptions of a sometimes faded and difficult hand were also occasionally rewarded with fascinating glimpses into at least some aspects of life in the early days of this community. Readers of The White Fence may be interested in the following:
The Parish Offices
The Overseers of the Poor were an early version of the social worker. Usually two in number, they identified indigents and paid local families out of county funds to board them. Young people whose parent(s) couldn't afford their keep were often apprenticed out as domestic help; essentially, they worked for their board in what amounted to abject servitude until age eighteen. As we will see more fully below, the Overseers also brought charges against miscreants who refused to acknowledge their illegitimate children.
The names alone of many of the offices hint at the economic life of a community intimately bound up with the land. Thus, there were Surveyors and Weighers of Hay; Cullers and Surveyors of Fish; Surveyors of Lumber; Guagers; Surveyors of Cordwood; Sealers of Leather; Surveyors of Lambs; Examiners of Butter , etc.
Little Boy Blue, Come Blow Your Horn . . .
By law, no swine whatsoever were to run at large on Westmorland Point or within one mile of Fort Cumberland; in other places they could do so if they were "sufficiently ringed and yoked." Where they were not, the remedy was to report the misdeed to the nearest Hog Reeve, who would do the job and bill the owner. In addition, the animals were liable to be impounded until the penalty was paid, along with the "customary poundage." The fines were levied on the oath of one credible witness before any Justice of the Peace. One half went to the tattle tale, the other half "to the use of the Poor of the Town" - an example of restorative justice 18th century style. For this reason, the Overseers of the Poor were particularly enjoined to prosecute every case they knew of "for the purpose of easing the Inhabitants of the Poor Tax."
The battle against loose livestock seems to have been an uphill one, as only four years later the court found it necessary to pass a new bylaw, which it did at the June Sessions of 1791. The original fines were also lowered, suggesting that the inhabitants considered them a trifle too stiff: "To prevent Nuisances: It is ordered that for the future no neat cattle or Sheep be suffered to be yarded or lay on the Public Highways under penalty of four shillings (rather than ten) per head by the owner who shall so yard them and of being impounded until payment."
An Important Office: The Inspector of Thistles
Urban sophisticates will no doubt wonder why thistles needed to be inspected. The minute book is silent on this weighty matter, but perhaps I can offer some enlightenment based on memories, now more than half a century old, of my boyhood on an Alberta farm. At that time, thistles were considered to be a terrible weed. If not checked (and apart from good summer fallowing, there was no way to check them in the days before 24D), they could almost take over a crop; at the very least they made stooking 4 a most unpleasant task. I haven't investigated this, but I assume that thistles were an unwanted import from the Old Country, probably arriving in the seed bags of the earliest settlers. It is somewhat curious that, although the first Court of Sessions was held in 1785, no thistle inspectors were appointed until twelve years later. I theorize that it took some years for the thistles to get a good start, and that the appointment of thistle inspectors was an attempt to eradicate, or at least control, the menace, probably by ordering the owners of infected fields to dig them out. This is definitely a topic that needs more research.
There was a Tavern in the Town (and also in the Country)
We are not told what type of conveyance it was, only that Evans was to "keep a good and sufficient Boat for transferring Fort passengers and give regular attendance at all proper Seasons for that purpose." Most likely, it was a sailing vessel, probably some kind of sloop. The Court did not prescribe a fixed schedule at this session, but for the convenience of passengers Evans was instructed to "erect a Pole at the point of O'lac on the Westmorland side and provide a Flag that may be hoisted on the same as a Signal, [and to] cause a horn to be blown also as a signal ten minutes previous to leaving Westmorland or Westcock to give notice of the Boat's departure." The rates were established as follows: "For one single persons in case of one passenger only: One Shilling and six pence - if more than one passenger, one shilling each - for all Bales, Boxes & Packages the rate of eight pence per hundred weight."
The regulations were to be in force for one year and the ferryman was threatened with a 20 shilling (= £1) fine for each transgression.
The ferry business seems to have been rather competitive. Either that, or it was so hard to make a shilling at it that no one wanted it for very long - the evidence will admit of either interpretation. Evans evidently ran between Westmorland and Westcock for seven years. Then in 1797 John Simonds was appointed, the only difference in his terms being that he was instructed to sail every Monday, Wednesday and Friday, and that the fine for each transgression of the regulations was doubled to 40 shillings. Simonds was followed by Benjamin Tower in 1798. The next year "at a special Session of the Peace holden in the third Tuesday of April, 1799" Edward Buck was licensed to run on Tuesdays and Saturdays.
There is no more mention of the Westmorland-Westcock ferry before the minute book disappears into the mists of time in 1809, but there seems to have been a similar story for other parts of the county. In 1797, Thomas Wheldon was appointed ferryman to operate between Dorchester and Hopewell Cape (the rate for a single passenger was five shillings), while William Black Esq. petitioned for leave to "keep a ferry over the Memramcook opposite his house." In 1798 Elijah Ayer Jr. was licensed to run between Dorchester and Hopewell Cape but he was replaced in 1803 by Hugh Boyd. By 1808, ferrymen in, and around, Dorchester included Hugh Boyd, James Black, Peter Poirer, Baptiste Vautour and Samuel 'Robeshow'.
A Fish Story
Petty Crimes and Misdemeanors
This first sitting also gave notice that it intended to enforce the 'blue laws' prohibiting the profaning of the Sabbath: "The Grand Jury Present the Disorders on the Lord's Day by People following their Common Callings, and Diversions and Amusements." The warning was either very successful, or else given up as a lost cause, as no similar injunction is recorded in any subsequent session.
Readers may be interested in some data and statistics on petty crimes and misdemeanors, at least as they came to the attention of the Court of Sessions: The riot of 1785 was the only such case in that year. In 1786 John and William Rowles were found guilty of assaulting Constable Thomas Carter in the execution of his office, while William Jones was charged with assaulting Daniel Ryan and "rescuing" a horse. ('Rescuing' is a legal term defined as "taking and setting at liberty, against the law, either goods or imprisoned persons"). There seems to have been some dispute over ownership of the horse. In 1787 John Thompson and Robert Scott were up for a breach of the peace, but then there were no more cases involving violence or thievery until 1795 when Jacob Tritz (presumably of Hillsborough, to judge from his name) was indicted for stealing a horse from Daniel McDonald. He pled not guilty and was acquitted by the jury, one of whose members, Tantramar Heritage Trust patrons will be interested to learn, was Bedford Boultenhouse.
A similar case of petty larceny in 1798 ended in a less happy experience for the accused. He was brought into court as a prisoner and also pled 'not guilty.' The jury convicted him and sentenced him to "thirty nine lashes on his naked body." Perhaps the discrepancy is partially explained by the circumstance that he was from Cumberland County, and thus considered fair game. In any case, his was the only instance of corporal punishment during the years covered by the surviving minute book. In 1800, 'native son' Jonas Allan was indicted for the same offence, but was merely bound over to the next session of the court upon posting a bond of £100. His brother [?], Matthew Allan, was similarly bound over to the next session on an unspecified charge. We will learn more about the Allan boys below.
There were no more cases of violence or thievery for another four years, but in 1802 Joseph Smith, David Howe and Israel Thornton Jr. were indicted for obstructing and damaging a mill wheel belonging to Christopher Harper (now of Sackville). They pled guilty and paid a fine of ten shillings and costs. It seems that "boys would be boys," then as now. Beginning in 1804 things began to pick up again. William and Robert Scott were acquitted of an assault on George Blakney, possibly because Blakney was at the same time indicted for stealing four sheep from Robert. He pled not guilty and posted a bond for his appearance at the next session, but nothing more seems to have come of the matter. At the same session John Gould beat the rap on a charge of stealing two tons of hay.
In the following year John Beckwith pled guilty to assault and battery on Sarah Davidson and was fined £9.10 shillings. This was the only instance recorded in the minute book of male on female violence. We can only speculate on the circumstances. Two cases of assault, battery and resisting a Constable in the execution of his office were tried at the December 1806 session, suggesting that Constables making arrests were not always accorded the respect due to their office. The Grand Jury also returned an indictment against Daniel Sears for assaulting Thomas Wheaton, but agreed to let him settle out of court after paying the costs of prosecution. The only other indictment that year was against John Downing for retailing spirituous liquors without a licence. The clerk made a note: "the Defendant to be notified," but we hear nothing more of the case. I expect this was a common occurrence.
In the December Session of 1807 John McFadden set a bit of a record by being indicted for no less than three assaults. He pleaded nolo contendere to the first and was fined a trifling two shillings and six pence. At first he pleaded not guilty to the other two charges, then withdrew the plea and confessed. That maneuver cost him a bit more: ten shillings and six pence for each conviction, plus costs.
Sex and Lies, But No Videotape
At the June Session a jury duly found Matthew guilty of assault and battery. He was fined £15 and costs and "committed" until they were paid. The hearing for bastardy was postponed to December, possibly because there were three other assault cases in the docket and the jurors were anxious to get back to their farms. It was, after all, haying season.
When the court met again in December of 1808, there was a new wrinkle. It seems that brother Jonas (if that's what he was) had been up to similar mischief. Robert Trenholm, one of the Overseers of the Poor for the Township of Botsford, laid a complaint against Jonas Allan of being "the Putative Father of a Bastard male Child, begotten upon one, Margaret Boys, of Botsford aforesaid, which child is likely to become chargeable to the said Parish of Botsford." Jonas,however, contended that there were other possible candidates for the honour, and so it turned into a case of "he said, she said." The minute book records that "the court went into an examination of the said Margaret Boys on oath - and having heard the Evidence produced by and on the part of the said Jonas Allan - and it appearing on mature deliberation that there was not a majority of the justices for finding the defendant guilty of being the father of the said Bastard Child," Overseer Trenholm therefore moved that the case stand over until the next session for further proof. The court was equally divided on the motion, and no order was made, so it looks as though Botsford Parish was stuck with the tab for maintenance.
Perhaps discouraged by this outcome, the court ordered that Matthew's case of bastardy stand over (once again) "until the next General Quarter Sessions of the Peace" in June, 1809. Perhaps unsurprisingly, it did not come up at this session either, and since this was the last one before our minute book ends, I cannot say if and when it ever did. By this time, the child must have been at least two years old, so it looks like Matthew got away with being a "dead beat dad," not the first of his kind - or the last.
A Violent and Unruly Society ?
Another piece of indirect evidence that things were relatively quiet in these early days was the fact that the court met only twice a year, although its original English (and perhaps American) version met quarterly. In fact, its original, and still full official, name was actually the General Quarter Sessions of the Peace , but that soon dropped out of popular parlance for obvious reasons.
On the other hand, it would be naïve to believe that these were the only such incidents. Given the rudimentary nature of the police services and the general cultural acceptance of, indeed even admiration for, the manly art of fisticuffs, many others must have occurred which never came before the court. But, whatever the case, we can say with certainty that really violent crime was very rare. From the founding of the province in 1784 to the disappearance of the county as a legal entity in the 1960s, there were only six hangings for murder in Westmorland County. That certainly suggests a peaceful society, even if, as in all ages, boys would occasionally be boys.
1. The terms 'township' and 'parish' were used interchangeably, at least in informal parlance, until the early 19th century when 'parish' replaced its rival. Based on English usage, the parish was a subdivision of the county and had nothing to do with church boundaries. By 1808 Westmorland County had eight parishes: Westmorland, Sackville, Dorchester, Moncton, Salisbury, Botsford, Hillsborough and Hopewell. Hillsborough and Hopewell became part of Albert County when it was carved out of Westmorland in 1845.
2. The Court of General Sessions of the Peace is often and easily confused with the Inferior Court of Common Pleas. The latter also met at the county court house and many of the Justices of the Peace were also Judges of the Inferior Court. The distinction was in the kind of cases heard. The Sessions of the Peace were for lesser crimes and were prosecuted by the Crown. (The King vs. John Doe). Common Pleas was for civil suits between subject and subject for amounts over a certain minimum (John Doe vs. Richard Roe).
3. Squeamish readers may be comforted to learn that, under a penalty of 20 shillings for each offence, no one was to "take off the upper sides of both ears, but that the end of one shall be entire."
4. This consisted of standing up tied bundles of grain stalks (called 'sheaves') in bunches of six or eight to dry in the field before threshing. I did plenty of it as a teenager in the 1950s and I am sure it was done here in the 1700s, as it had been for centuries in Europe.
5. It probably left from the creek below the fort.
6. Murder trials and hangings, such as the famous Babcock Trial in Dorchester in 1804, did in fact take place at the county seats, but they were conducted by the circuit judges of the Court of King's Bench, a division of the Supreme Court of New Brunswick.
7. And became one for Westmorland thereafter; in fact he attended the court in that capacity during this same session.
8. An 1803 census of the Parish of Dorchester identifies a total of 162 adult males. In 1801 the Court of Sessions levied a tax of £300 on the county to pay for the new court house and jail at Dorchester. The share of the respective parishes was: Dorchester £65; Sackville £60; Westmorland £55; Hopewell £50; Hillsborough £45; Moncton £35; Salisbury £10 (Botsford was not yet a parish). Assuming that the share of each parish roughly reflected the relative number of its inhabitants, I calculated the number of adult males in each parish as a corresponding portion of 162. Thus, Sackville, for example would have had 60/65 x 162 = 149.53 men. In the interests of humanity, I rounded it off to 150.
Conserving Our Heritage
By Charles H.H. Scobie, Chair,
Town of Sackville, N.B. Heritage Board
Scarcely a day seems to pass without news of a heritage building somewhere being scheduled for demolition, or of desperate efforts by citizens to prevent the loss of a structure of historical and architectural significance. Sackville is no exception. Located in an area that is steeped in history, unfortunately many of its heritage buildings have already been lost. Concern came to a head around the year 2000 after the loss of a series of buildings in the Sackville area. Since then, as the result of a long, slow process, the Town of Sackville, in December 2010, took action to afford a measure of protection for heritage properties in the central area of the town by passing the Town of Sackville Municipal Heritage Conservation Area By-law (By-law 219) and by designating two Municipal Heritage Areas.
Acting on the recommendations of a Heritage Advisory Committee that met from 2001 to 2004, in December 2004 the Town appointed a Heritage Review Board under the then New Brunswick Municipal Heritage Preservation Act (1978). Public consultation found widespread support in Sackville for the need to conserve for future generations our significant heritage sites, buildings, structures and landscapes. The Board carried out extensive research and created an inventory of heritage properties in Sackville. With the help of two provincial grants a Sackville Register of Historic Places was compiled in 2005 and 2006. Some 50 sites were accepted for listing in the New Brunswick Register of Historic Places, then for entry in the national Canadian Register of Historic Places. Much of the information gathered by the Board is readily available on the Tantramar Historic Sites website which is now part of the Tantramar Heritage Trust website: go to heritage.tantramar.com (or Google "Tantramar Heritage Trust") and click on "Tantramar Historic Sites." The website has over 100 entries, and includes links to the 50 entries in the Canadian Register of Historic Places.
A major concern of the Board was what could be done to conserve our surviving heritage properties. Seven municipalities in New Brunswick (Moncton, Fredericton, Sussex, Saint John, Rothesay, Bathurst and Caraquet) already had heritage by-laws and this seemed to be the best way to go. The result was a long and detailed report to Town Council in December 2006 recommending the adoption of a heritage by-law and the designation of two conservation areas. Unfortunately, at this point the province decided to work towards replacing all its existing heritage legislation with one brand new heritage act. This involved extensive consultation in which the Sackville Heritage Review Board took part but, unfortunately, it also involved a lengthy delay. A new NB Heritage Conservation Act was introduced in the legislature in November 2009, passed in February 2010, but not proclaimed until the summer of 2010. On the basis of the new Act the Heritage Board rewrote their proposals to Council, and after the required public consultation, Council passed the new heritage by-law at their December 2010 meeting.
Full details of the Heritage By-law are available on the Town of Sackville website; click on "Our Community" then "Heritage Board." Hard copies are available on request at the Town Hall, as is a brochure explaining the by-law. The text of the provincial Heritage Conservation Act is also readily available online (Google "NB Heritage Conservation Act 2010"). The by-law designates two Municipal Conservation Areas: Area A, consisting of parts of Bridge Street, Main Street and York Street, and Area B, consisting of part of York Street. Once some experience has been gained, the Board is prepared to consider designating other areas within the town.
The heritage by-law applies to the following types of development within the designated areas:
In all cases (except demolition) the by-law applies only to the exterior of buildings. When any of these types of development are undertaken a Municipal Heritage Permit is now required (in addition to a Building Permit or Demolition permit from the Tantramar Planning District Commission). Broadly speaking the aim will be to ensure that any alterations respect the heritage character of a building, and that any additions are visually compatible with the character-defining elements of the existing building. Contemporary design of new buildings is encouraged provided that the design is compatible with the size, scale, materials and character of existing buildings within the conservation area. The Board is more than willing to meet with property owners in a spirit of friendly dialogue to discuss plans for their properties and to offer help and advice.
The Heritage Board will make every effort to encourage the preservation of heritage buildings. However, where preservation is simply not viable, the Board will (however reluctantly) issue a demolition permit provided that a) where possible, the building is offered for sale for a nominal sum on condition that it is removed from the site; b) the Heritage Board has been provided with any photographs, plans, or historical documents relating to the building, or copies thereof; and c) provision has been made for salvaging any items of historical or architectural interest or significance.
Hopefully the new heritage by-law will play a role in encouraging owners to preserve and maintain their properties, and in maintaining the heritage character of parts of Sackville’s downtown. However, a Heritage Board cannot work miracles, and it has no funding at its disposal. It can and will continue its programs of education (an aim it shares with the Tantramar Heritage Trust), recognizing that an aware and concerned public is the best guarantee that our heritage, that which we inherit from the past, will be preserved for future generations.
Enquiries are welcome; please contact the Town's Department of Community Development and Programming at 364-4930.