A Short History of Cape Breton Annexation (Part II)

Editor’s Note: In light of Senator Dan Christmas’ recent speech re-opening the issue of Cape Breton provincehood, Spectator contributor Kenzie MacNeil re-offers material originally published in The Cape Bretoner in 1993 on the Annexation of 1820. You can read Part I here.

 

“[T]he annexation was not legal according to British law. The king had no right to just take the island and annex it to Nova Scotia…And this annexation, to the people on the left, looking for their own House of Assembly – this was a terrible slap in the face. They became the focus toward a reinstatement of our separate status. They were the separatists. And this fight went on way into the 1840s…There are rallies and many petitions over the years are sent to Great Britain – and very large numbers of people favour separation in this end of the island.” — Dr. Robert Morgan, interview, Cape Breton’s Magazine, 1980.

The late Dr. Robert Morgan (photo via Cape Breton's Magazine http://capebretonsmagazine.com/modules/publisher/item.php?itemid=1135)

The late Dr. Robert Morgan (photo via Cape Breton’s Magazine)

Much of what we know about the history of annexation and the subsequent separatist movement in Cape Breton is thanks to the work of the late Dr. Robert Morgan, who wrote extensively on the subject.

The following excerpts from one of his papers, The Separatist Movement in Cape Breton, 1820-1846, explain the legal arguments used by petitioners protesting the 1820 annexation:

(The Petitioners) used constitutional and practical arguments. They claimed that annexation had been constitutionally illegal. Their case went back to the Proclamation of 1763 which stated that King George III “with the advice of our Privy Council, thought fit to annex the islands of Saint John (Prince Edward Island) and Cape Breton, or Isle Royale…to our government of Nova Scotia. The separatists interpreted being part of a government simply as being under the jurisdiction of a governor or governor-general, and retaining a local house of assembly. In proof, they pointed out that the government of Grenada included a number of islands each of which had its own lieutenant governor and assembly. In fact, all other areas mentioned in the Proclamation, viz., Quebec, Florida, Grenada, the Antilles, Georgia and Prince Edward Island received their own government. The Proclamation of 1763 did not link Prince Edward Island to the province but to the government of Nova Scotia. Being part of the province of Nova Scotia would have meant that Cape Breton and Prince Edward Island had been annexed as counties of that province. In proof they showed that the same Proclamation annexed lands to the province of Georgia. Therefore, by annexing Cape Breton Island to the government of Nova Scotia, the King was not precluding its having its own separate governor and assembly.

Hence, in 1769 Prince Edward Island and in 1784, Cape Breton, each received a lieutenant-governor and house of assembly to be called when the population of the island warranted it. The instructions to the Governor of Nova Scotia added that “due care be taken that laws, statutes and ordinances passed in our Province of Nova Scotia, that the same do not extend to our Islands or pretext that our said Islands are included in this our commission to you and are parts of our Government of Nova Scotia.”

The instructions not only guaranteed the two islands’ making their own laws, but made the distinction between a province and a government, inferring that both islands were still under the government of Nova Scotia, but with their granted own law-making bodies.

These points were important since they rested upon the Royal Prerogative or the King’s powers to deal unilaterally with conquered territories. When a territory was newly conquered, the King had the power to tax and indeed to rule it using his own prerogative. However, once a house of assembly had been granted, the Royal Prerogative no longer applied, and only the local assembly or Parliament could itself pass laws for the colony. Moreover, once the King had granted a house of assembly to a colony, only an act of parliament could remove the body. This constitutional point had been decided in 1765 when the King had failed in an attempt to abrogate the legislature which he had granted to the once-conquered island of Grenada. Like Cape Breton, Grenada’s assembly had not been called. Lord Mansfield in deciding the case showed that the King in granting an assembly to Grenada had irrevocably given up his prerogative in regard to the island. Only an act of Parliament could change the constitution of the island. The case bore direct relevance to Cape Breton which had been conquered, but was given its own assembly, which was abrogated in 1820. The separatists claimed that the annexation of Cape Breton to the province of Nova Scotia, by annihilating the assembly of the island through the illegal use of the royal prerogative, was unconstitutional and hence null and void.

1758 Map of New England and Nova Scotia showing Newfoundland and Cape Breton Island situated in the Gulf of St. Lawrence. The map includes identified fishing banks. By the mapmaker Thomas Kitchin (Beaton Institute https://beatoninstitute.com/map-of-new-england-and-nova-scotia)

1758 Map of New England and Nova Scotia showing Newfoundland and Cape Breton Island situated in the Gulf of St. Lawrence. The map includes identified fishing banks. By the mapmaker Thomas Kitchin (Beaton Institute Cape Breton University) Click to enlarge.

The annexationists on the other hand, claimed that the Proclamation of 1763, by uniting Cape Breton and Nova Scotia, had granted the island a constitution, and had abrogated the Royal prerogative over the Island. Hence, except by an Act of Parliament, no further change could be made in the status of Cape Breton. According to this view, the 1784 separation of Cape Breton from Nova Scotia by royal prerogative was unconstitutional. It followed that the “re-annexation” of Cape Breton to Nova Scotia was no annexation at all, but simply a return to the legal status of the island. The separatists were convinced that this argument was superficial, and lost no time in trying to disprove it. Richard Gibbons travelled to England with a petition in 1820, and in 1823 managed to have the great parliamentarian Joseph Hume bring up the point in the House of Commons. When this failed to elicit official response, a decision was sought from the eminent constitutional lawyer Henry Brougham, afterwards Baron Brougham, a member of the Appeals Division of the British Supreme, and founder of the judicial committee of the privy council. Brougham gave the key opinion that “The Crown having given a Constitutional to Cape Breton after its cession, including a Legislative Assembly, I am of opinion that it cannot now abrogate that Constitution by Proclamation annexing Cape Breton to Nova Scotia in the face of an express Provision in the former Proclamation excluding the Authority of the Nova Scotia Government (see Campbell V Hall Cowper 204) [sic].” This opinion became the strongest ammunition of the separatists’ arsenal and was never explicitly refuted by any British Official.

 

“May it please Your Majesty” – Excerpts from the 1842 petition

That many of your Majesty’s Petitioners or their ancestors settled in this Island about and since the year 1784, at which time the Constitution contended for was granted to said Island, under the faith and in the firm beliefs that such Constitution would be enjoyed by its inhabitants: that some of them invested their property and others by patient and unremitted industry, and amid many privations acquired the same therein, with reference to the operation thereon of the Laws of England which then prevailed in said Island, and under a persuasion that so soon as a House of Assembly could be convened, such alteration, and such only, from the wholesome Laws of the Parent State would be introduced as their local situation might call for; but that they would not, as has been the case, be subjected to the Laws of another Colony without their  consent or their even having been consulted:

Henry Brougham, 1st Baron Brougham and Vaux. Replica by James Lonsdale, oil on canvas, 1821) https://www.npg.org.uk/collections/search/portraitLarge/mw00824/Henry-Brougham-1st-Baron-Brougham-and-Vaux?LinkID=mp00583&search=sas&sText=Henry+Brougham&role=sit&rNo=2

Henry Brougham, 1st Baron Brougham and Vaux. Replica by James Lonsdale, oil on canvas, 1821. (National Portrait Gallery)

That the Island of Cape Breton steadily and latterly rapidly advanced in prosperity under a Governor and Council, from the year 1784 until the year 1820, and this without the aid of the stimulus of the immense sums of money expended for the support of a large Army and Navy as enjoyed by the Province of Nova Scotia, or any of the other various advantages possessed by that Province over this Island;

That its inhabitants were at this latter period earnestly expecting a House of Assembly to be convened under the Constitution long before granted by His Majesty, and for the calling of which Assembly the said inhabitants had previously applied; but they now have to inform Your Majesty, that to their utter astonishment and dismay, at a period when the population of this Island amounted to some twenty thousand souls, many of them largely engaged in trade; when the Commerce and Agriculture of the Island were in a state of advancement, and intelligent persons in sufficient numbers were amongst them to constitute an Assembly; at a period also when they had the past experience of other Colonies to profit by, and thus be enabled to avoid errors into which other Colonies had fallen in legislating; in a word just at a time when they were in a more fit state than they had ever been, and fondly hoped soon to be taken as it were from the cradle of their political infancy under a Governor and Council, and led on through a vigorous youth up to manhood, under the auspices of their local Legislature; the uplifted cup of hope was suddenly and unexpectedly dashed from their lips by the astounding announcement that they had been deprived of their local Legislature, and annexed as a County to the Province of Nova Scotia; and this too without any pecuniary remuneration for the hopes they would thereby sustain, and the depreciation in the value of their property which would follow; or any immunity from liability to the public debt of that Province: but on the contrary they have with concern seen yearly draws from them large by Nova Scotia, great part of which goes towards the legislation of the public debt and by that Province, no part of which debt was contracted by or for the benefit of this Island, but for Nova Scotia alone; while the sums appropriated for Roads in Cape Breton have borne but a small proportion to the sums granted to other Counties of the Province for the like services,and is far short of the proportion which the population, revenue, and wards of said Island entitle it to.

Your Majesty’s Petitioners further humbly submit that in addition to the circumstance of Cape Breton having grown up under separate and distinct Laws and habits from those of Nova Scotia From 1784 to 1820, this Island has been formed by nature to be a distinct Colony therefrom, it being separated from Nova Scotia by a strait, uniting one part of the Atlantic with another part of it, called the Gut of Canso, which necessarily cuts off all land communication between the said Province and Island, the passage across which Strait is often, at certain seasons of the year, both difficult and dangerous owing to its being filled with drift in floating ice, which difficulty, together with the extreme distance of many populous parts of this Island from Halifax, the Capital of Nova Scotia, Sydney, the former Capital of Cape Breton, being about three hundred miles, and other settlements much further distant therefrom, causes a hindrance to resident Members attending the Assembly at Halifax; but which necessity and hindrance would not exist had this Island Legislature of its own.

Queen Victoria by Henry Thomas Ryall, published by Colnaghi and Puckle, after Sir William Charles Ross stipple and line engraving, published 1842. (National Portrait Gallery https://www.npg.org.uk/collections/search/portraitLarge/mw145609/Queen-Victoria?search=sp&sText=Queen+Victoria+1842&firstRun=true&rNo=2 )

Queen Victoria by Henry Thomas Ryall, published by Colnaghi and Puckle, after Sir William Charles Ross stipple and line engraving, published 1842. (National Portrait Gallery)

Your Majesty’s Petitioners therefore now humbly prostrate themselves at the foot of the Throne, and with uplifted hands and imploring prayers beseech the merciful consideration of their Queen. They, as British Subjects,inheriting the feelings and common Rights and Privileges of Britons, which latter according to their conceptions and in accordance with the opinions of the great men of the present and former times, were expressly, immediately, and irrevocably pledged to them by His Most Gracious Majesty King George the Third in the year 1784, unless annihilated or’ abrogated by an Act of the Imperial Parliament; pray Your Majesty for the restoration of the Constitution so as above granted to them, and for the convening of their local Legislature under a Lieutenant Governor Council and Assembly conformably to the Grant of His Majesty King George the Third, and consequently that the Laws of Nova Scotia, and the authority of its Legislature may no longer be enforced over this Island. But should, notwithstanding the high authorities in Petitioners’ favor, there possibly exist in Your Majesty’s mind a doubt of Petitioners Strict legal and Constitutional right to what they seek, Your Majesty’s Petitioners then further humbly beg leave to throw themselves on the goodness of their Sovereign, and hope, that as a matter of expediency, and to promote the interests of Your Majesty’s loyal and dutiful subjects in this Island, now estimated to amount to between 50 and 60 thousand souls, and in consideration of the injuries inflicted on them by the annexation, Your Majesty will be graciously pleased to exercise Your high prerogatives of moral and compassion and grant, as an act of grace and favor, the separation of Cape Breton from the Province of Nova Scotia and permit the Island to enjoy a similar Constitution to that of its sister Island of Prince Edward, by directing the immediate convening of the Legislature prayed for, and Your Majesty’s Petitioners as in duty bound will ever pray.

 

Responses to the Petitioners’ Case

From The Spirit of the Times, an early Cape Breton newspaper of 1844:

Hear, you Cape Bretonians, descendants of the brave,
Enrol yourselves together, and freedom you shall have;
Muster all your energies, and set your Country free:
Despised by Nova Scotia, no longer shall you be!

Detail from Sydney and Bridgeport Coal Mines, 1828. Map 721. (Beaton Institute, Cape Breton University https://beatoninstitute.com/)

Detail from Sydney and Bridgeport Coal Mines, 1828. Map 721. (Beaton Institute, Cape Breton University)

How often has the question been asked — and asked in vain — why is it, with the resources Cape Breton possesses, that island, instead of improving, is going on from bad to worse, and the value of property daily decreasing? To make such an interrogatory now may seem absurd, because it has been so often put, and so thoroughly canvassed that the words — Although very simple words — have become divested of their meaning the eyes of Cape Bretonians. They now draw forth but a cool shrug of the shoulders, and the observation — “Ah, we know all that — but how is it to be helped!” There is no necessity to recapitulate the many evidences existing as to this melancholy fact. There is no need to repeat the old, but too true, story of revenue absorbed, claims ridiculed, capital withheld and energy prostrated that Nova Scotia may be befitted. It were worse than useless, we repeat, to go over this again, because there is no man, whose opinion is worth having who does not know that the depression of Cape Breton is to be traced to the illegal act which made this island a part and parcel of Nova Scotia, and any man who believes that this is no solution to the question, we would not be at the pains of convincing to the contrary — such a man’s influence would be worthless on either side…We hope and trust that the inhabitants of Cape Breton will take matter into consideration, for it is one of vital importance — and not only to us but to those who come after us. Break the fetters now, and they are broken forever, I at the present moment pass unheeded and the rust of centuries may corrode upon them.

Baron Brougham, member of the Appeals Division of the British Supreme, founder of the Judicial Committee of the Privy Council, in a letter to Lord Stanley gave the following legal opinion:

The Crown having given a Constitution to Cape Breton after its cession, including a Legislative Assembly, I am of the opinion that it cannot not abrogate that Constitution by Proclamation annexing Cape Breton to Nova Scotia in the face of an express Provision in the former Proclamation excluding the Authority of the Nova Scotia Government (see Campbell vs. Hall Cowper 204).

Lord Stanley, Colonial Secretary of Great Britain in 1844, in private correspondence:

…an erroneous and illegal act, I fear.

I have formerly looked well into the case and the result was to convince me that the Petitioners are right in point of Law. It would, I think, be ill-policy to deviate from the straight path of precedent and rule in order to promote the objects of such Suitors. If they should succeed the inconvenience would be extreme.

From a private and confidential letter to Lord Stanley from Lord Falkland, Lieutenant Governor of Nova Scotia:

Lucius Bentinck Cary, 10th Viscount Falkland, by Frederick Richard Window. (UK National Portrait Gallery https://www.npg.org.uk/collections/search/portraitLarge/mw126853/Lucius-Bentinck-Cary-10th-Viscount-Falkland)

Lucius Bentinck Cary, 10th Viscount Falkland, by Frederick Richard Window.  (National Portrait Gallery)

Should the Judicial Committee of the Privy Council declare the annexation of Cape Breton to Nova Scotia illegal, the people of that Island, who are anxious to be independent, would be dissatisfied, were it immediately re-united by an Act of the Imperial Parliament, i.e. by a chain more binding than the one just dissevered; their complaint having been that they were joined to Nova Scotia against their consent, their grievance was the tie, and they attacked the legality of the measure in the hope of being freed from its consequences, and not merely to ascertain whether the function had been legally brought about or not; since had their consent been given it would have mattered nothing whether it had been effected by an act of the Crown or by an Act of Parliament.

On the other hand your Lordship is aware that, should Cape Breton be formed into a separate Government, a considerable portion of the Casual Revenue, in exchange for which the United Legislature voted a Civil List in the last Union would at once be claimed by that Colony, and that a new and distinct Civil List might therefore be necessary for Nova Scotia; and it is possible that, from the temper exhibited by the House of Assembly, you may conceive that, there being smaller Revenues to offer in exchange, great difficulty would be experienced in obtaining a provision in any degree adequate to the exigencies of the public service.

The Roman Catholic population in Nova Scotia and Cape Breton met in concert with great pertinacity; not one Roman Catholic Member of Assembly, or one Member returned by Roman Catholic influence, supporting the Government; and as I have not only done my utmost socially to conciliate them, as they acknowledge, but have as your Lordship is aware placed one of that faith in the Legislative Council, and official seats in the Executive Council to two others, this fixed hostility cannot originate in any discontent felt by them at being neglected, or unhandsomely dealt with as a body, politically, but must proceed from one of two causes, as either from a decided attachment to principles which I have deemed it my duty to oppose as tending to dissever this Country from England, and which they, influenced by local feelings only uphold; or as I am constrained most reluctantly to believe, from a desire to embarrass the British Government at any cost in any part of the Empire, and originating in motives distinct from local influences. Under either hypothesis, it will I fear be idle to hope for their co-operation, and the diminution of their power in the Legislature would therefore be highly advantageous.

 

The Outcome

The Judicial Committee of the Privy Council did not render an explicit judgment on the case. A report of the Lordships appeared in the minutes of Her Majesty in Council as follows:

The Lords of the Committee, in obedience to Your Majesty’s said order of reference, have taken the said petition into consideration and have heard Counsel on behalf of the said Petitioners, and have likewise heard your Majesty’s Attorney General on behalf of Your Majesty’s Crown, and their Lordships understanding it to be Your Majesty’s pleasure that their Lordship’s consideration of the matter referred to them, by Your Majesty’s said order of reference, should be confined to the question whether the inhabitants of Cape Breton are by law entitled, to the Constitution purporting to be granted to them by the Letters Patent of 1784, mentioned in the said Petition do agree humbly to report their opinion to Your Majesty, that the inhabitants of Cape Breton are not so entitled.

 

Kenzie MacNeil

 

Kenzie MacNeil is a writer, performer, producer and director whose credits include producing The Rise and Follies shows and composing the anthem “The Island.” He also served as editor and publisher of The Cape Bretoner.

 

 

 

 

 

 

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