By Elizabeth Mancke
In August 1759, the Nova Scotia assembly passed “An Act for the Quieting of Possessions to the Protestant Grantees of the Lands, formerly occupied by the French Inhabitants, and for preventing vexatious Actions relating to the same.” The legislation prohibited “any troublesome or vexatious Suits of Law” by Acadians trying to recover their lands and made it illegal for any courts in the province to hear cases brought “for the Recovery of any Lands” by “the former French Inhabitants.” The text of the legislation indicated that “some Doubts have arisen . . . concerning the Title of the said French Inhabitants to any of the said Lands,” and some New Englanders were wary of moving hundreds of kilometers north to settle on lands to which Acadians might have legal recourse to recover.
Ten months earlier, in its first sitting, the assembly passed “An Act for confirming Titles to Lands and Quieting Possessions” with an explicit provision “That no Papist hereafter, shall have any Right or Title to hold, possess, or enjoy any Lands or Tenements, other than by virtue of a Grant or Grants from the Crown.” Anyone convicted of assisting a Catholic to acquire land would see it revert to the Crown. To register a land deed, a person had to swear “the Oaths of Supremacy and Allegiance” before the province would register the deed. But that 1758 act left loopholes for Acadians. It included a fairly standard clause that protected “the Title of any . . . Person non compos mentis, imprisoned or in Captivity, who shall be intitled to sue for and recover any such Lands or Tenements to which they are intitled within one year after such Impediment shall be removed.” The act’s last section also allowed “That if any Original Deed shall be lost, and Proof thereof in Court be made,” it would be accepted and entered in the registry.” Either of these provisions could have been construed by Acadians to argue for the restoration of their lands. Deported Acadians might reasonably have argued they had been imprisoned or held in captivity, and upon returning to Nova Scotia, take the oath and ask for the lands back. As well, some Acadians were Protestants and related to New Englanders, and thus the restrictions against Catholic landholding would not cover them.
The August 1759 legislation, therefore, closed the loopholes. The preamble is a justification over 800 words long for why Protestant settlers on the former lands of the Acadians should have their title protected and why Acadians should be prohibited from filing suit to restore their property. In tone and detail, it is similar to the legal opinion that Chief Justice Jonathan Belcher wrote in the summer of 1755 and presented to the Council to justify military action to remove Acadians from their lands and transport them to other colonies. The preamble to the legislation, however, goes further and charges the Acadians with “manifest Treasons and Rebellion.” Belcher’s 1755 opinion, in contrast, only accused them of “Perfidy & Treacheries.” The charge of treason effectively makes the legislation a post hoc bill of attainder, a legislated judgement of treason that could apply to a group and did not need the same standards of evidence used in a court trial with a jury. A bill of attainder also allowed for suspension of customary civil rights, such as the right to sue, and for harsh punishment, such as the confiscation of property. During the American Revolution, rebels used bills of attainder to confiscate the property of loyalists. The practice became so abusive that prohibitions on bills of attainder is one of the only protected rights included in the body of the US Constitution. But an important precursor to those later excesses was the 1759 legislation in Nova Scotia.
By the late summer of 1759, the immediate military threat that justified activating the deportations in 1755 had abated. The British took Louisbourg in the summer of 1758. In August the British navy and army were waiting in the St. Lawrence River hoping for an opportunity to attack Quebec. Although the British conquest of Canada was not a foregone conclusion, and it would be another year before Montreal fell to British forces, and the French command signed articles of capitulation, Nova Scotia was not in immediate military danger. Indeed, settlers were moving into the province because the military threat had past. Nova Scotia need this legislated act of dispossession because some “substantial and industrious Farmers Protestants” from “Neighbouring Colonies” had been granted some of the land, and “many other substantial and industrious Farmers Protestants are daily applying for Grants of Townships.” Persons among those intending to “Settle the said Lands” had raised questions “concerning the Title of the said French Inhabitants to any of the said Lands.” The assembly passed the legislation to quiet the concerns of land-hungry New Englanders who desired some of the best farmland north of Long Island and Narragansett Bay, and not because there were pressing military concerns to justify a post hoc bill of attainder.
Once enacted, the legislation had to stay on the books for decades because so many land grants depended on its continued existence. The 1758 legislation against Catholics owning land in Nova Scotia, could be repealed, which the assembly did in 1783, but also required that within six months of the law coming into force, all Catholics would swear an oath of allegiance, the text of which was included in the legislation. The 1759 legislation, however, could not be repealed. In many respects, the 1759 legislation spoke powerfully to the concern that the dispossession of the Acadians enacted through the deportations could be undone, that Acadian refugees could recover their lands. It is an important and sobering reminder that eighteenth-century people understood that military disruptions did not have the long-term permanence they might want without civil validation. The ultimate dispossession of Acadians came not through the barrel of a gun but through the power of the pen, and not in the heat of war, but in the quiet of peace.
This blogpost is derived from an essay that Stephanie Pettigrew, Keith Grant, and Elizabeth Mancke are preparing for publication. Elizabeth is solely responsible for the contents of this blog.
Dr. Elizabeth Mancke is UNB’s Canada Research Chair (CRC) in Atlantic Canada Studies. Her broad research interests address the impact of European overseas expansion on governance and political systems, from local government to international relations. Atlantic Canada provides unusually rich points of analytic purchase on major issues in the modern world. She has used her CRC to build an open-source database of pre-Confederation legislation (bnald.lib.unb.ca), with Stephanie Pettigrew as project manager. Using the database, she is now beginning research on the historic foundation of the regulation of commons (such as marine fisheries and Crown lands) in Atlantic Canada.
 The Perpetual Acts of the General Assemblies of His Majesty’s Province of Nova Scotia (Halifax, NS: Robert Fletcher, 1767), 73-75.
 Ibid., 2-5.
 Nova Scotia: Opinion in Council as to the removal of the French Inhabitants in Nova Scotia, dated Halifax ye 28th of July 1755. Rec’d with Chief Justice Belcher’s Letter to Mr. Pownall,, Rec’d March 26th, Read April 7, 1756, in Nova Scotia, Correspondence, National Archives, UK, CO 218/4, 24-26d.
 Brett Palfreyman, “The Loyalists and the Federal Constitutions: The Origins of the Bill of Attainder Clause,” Journal of the Early Republic, 35 (Fall 2015), 451-473.