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 and Part II here.)
In this, the third and final article in my series on Cape Breton Annexation — and the long and ultimately unsuccessful battle to repeal it — I offer excerpts from the Petition of 1843, as Cape Bretoners, once again, argued the legalities of the annexation with the British government.
This seems like a good point to state that all the information presented in these articles can be found at Cape Breton University’s Beaton Institute. I have reprinted it here mainly because a simple recounting of the case might defy belief and because it amply demonstrates the intensity of the story. As I said at the outset of this series, Cape Bretoners’ passionate attachment to their Island is clearly not a recent phenomenon and the Annexation story has a direct bearing on Cape Breton’s current condition.
Some would argue that the legality of the annexation of 1820 is still very much in question today.
Principals and precedents
IT IS THEREFORE MOST HUMBLY HOPED, on the part of the Petitioners, that the Annexation in 1820 of Cape Breton to the Province of Nova Scotia, and the legislative authority of that Province over the Island, may be adjudged illegal, for the following, among other,
First. Because the Island of Cape Breton was, by the Proclamation of 1673 [sic], annexed to the Government of Nova Scotia, in the same sense only as the Government of Grenada was by the same Proclamation declared to comprehend also the Islands of St. Vincent, Dominica, and Tobago: and that, as the promise afterwards made by the same Proclamation to call General Assemblies within the said Governments respectively, in such manner and form as used as in the other Colonies and Provinces in America, applied to St. Vincent, Dominica and Tobago severally, no less than Grenada, so the same promise ought also to apply severally to the Island of Cape Breton, and seems to have been actually so applied and performed to the Island of St. John or Prince Edward, which was annexed to the Government of Nova Scotia by the same sentence of the Proclamation as annexed Cape Breton: such several applications of that promise, and its several performances, being only consistent with the manner and form used and directed in the other Colonies, as well in the West Indies as on the Continent of America.
Queen Victoria’s first meeting with the Privy Council, 1837. (Painting by Sir David Wilkie, Royal Collection Trust)
Second. Because, if the promise made by the Proclamation of 1763, to call Assemblies in those Governments respectively, be not understood as applying to Cape Breton, yet neither the Annexation of the Island to the Government of Nova Scotia by the Proclamation, nor the including of that Island in the Commission to the Governor of Nova Scotia, could or did confer upon an Assembly, already constituted for that Province as it existed before such Annexation, the power of legislating for Cape Breton.
Third. Because, even if by the Proclamation of 1763, or by the subsequent Commission of Nova Scotia, or by any other act of the Prerogative, the Island of Cape Breton had been so annexed to Nova Scotia, as to give its Assembly the power of legislation for the Island, still the Letters Patent of 1784, granting powers to constitute a several and distinct Council, and to summon a several and distinct Assembly in that Island, and by their consent to make laws for it, were authorized by usage and precedents, and were valid and effectual to confer such institutions severally and distinctly from the Province or Legislature of Nova Scotia.
Fourth. Because such institutions so conferred upon Cape Breton could not thereafter be revoked or annulled by an act of the Prerogative alone, which had then parted with its power of legislating for the Island, except through the instrumentality of those institutions, and could not therefore confer such a power upon any other person or body politic as the Legislature of Nova Scotia.
Fifth. Because the several and distinct existence of Cape Breton as a Colony apart from Nova Scotia, had, between 1784 and 1820, been recognized by several Acts of Parliament then in force, assuming and embodying that distinction, by which act Cape Breton and Nova Scotia were in 1820 severally and respectively governed under different laws of Trade and navigation, each Colony being governed thereby liable to restrictions or exemptions from which the other was excluded.
Sixth. Because the validity of such an act to the Prerogative as in 1820 annexed Cape Breton to Nova Scotia is inconsistent with the private rights of the inhabitants of that Island, and irreconcilable with all the principles and precedents upon which the constitutional rights of British Colonies depend.
Shock of rejection
The report however of the Judicial Council in this case was preceded by no public discussion of the Judges among themselves, no pronouncing of judgment in open court, and though certainly unsparing in words as far as recitals are contained, is notwithstanding so far from giving any intimation of the reasons upon which it is founded, that the whole judgment is contained in the single monosyllable “not.” This has been received with great surprise, not only in Cape Breton, but I believe also throughout all the North American colonies. It is probably asked there, as your Lordship may suppose, whether in any Court of Law in this Country, upon any matter but of the most trifling character, the suitors would not be greatly and reasonably dissatisfied with a decision so pronounced, and whether a tribunal, whose judgments are to be so given would not have need of the highest station and character to keep up that confidence in its authority, that is indispensable to the administration of justice, and particular in questions of constitutional rights…
Map of the British Empire, 1886 (City of Boston Public Library)
The disappointment, therefore, which the Petitioners must feel at the decision of the Privy Council, being unmitigated by any thing in the manner in which that decision was given, they have now only to rely with the greater anxiety upon the sole resource that remains, the kind consideration of Her M. Government to the other part of their Petition. For after submitting to her Majesty the question of right and law, which has been decided, the Petition proceeds to implore the faith and favour of the Crown in the following words.
“But should notwithstanding the high authorities in Petitioners’ favour, there probably exist in Your Majesty’s mind a doubt of Petitioners’ strict legal and constitutional right to what they seek, the petitioners then further humbly beg leave to throw themselves on the goodness of their sovereign, and hope, that, as a matter of expedience, and to promote the interest of your Majesty’s loyal and dutiful subjects in this Island, now estimated to amount to between fifty and sixty thousand souls, and in consideration of the injuries inflicted on them by the annexation, your majesty will be graciously pleased to exercise your high prerogative of mercy and compassion, and grant, as an act of grace and favour, the separation of Cape Breton from that of its sister Island of Prince Edward Island by directing the immediate convening of the Legislature prayed for.”
It is to this object of the Petition, therefore, that I most respectfully invite your Lordship’s consideration.
A passionate pride of place
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 or 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 a Legislature of its own.
Fishing for cod on the banks (detail), 18th century
From Traité général des pesches, by Duhamel du Monceau, 1772
(National Library of Canada)
Petitioners beg also to submit that the Island of Cape Breton is fruitful in resources, which could they be developed and fostered by a local Legislature would raise its inhabitants to wealth and independence, as in addition to the Sydney Coal Field — estimated to contain one hundred and twenty square miles of workable veins of Coal, varying in depth from three to eleven feet; and the Western Coal District, comprehending the River Inhabitants, Port Hood and Cariboo Cove on the Gut of Canso side of the Island, immense deposits of Gypsum are to be found in many parts of the Lakes of this Island, and which lakes have a navigable and safe communication with the ocean, as well as at Aspy Bay near Cape North, at St. Ann’s, at Plaster of Paris Cove in the Gut of Canso, and other harbours of the Island outside of the Lakes, and which might become an article of considerable export to the United States under the fostering care of a Legislature in this Island. Lime Stone and a valuable description of Lead Ore are amongst its other productions. In several settlements on the Lakes, numerous Salt Springs are to be met; and these being situated near to the veins of Coal so necessary to the manufacture of Salt, and in the very heart of the best fisheries of North America, would become of incalculable benefit to those fisheries, and a source of wealth to the Island, under the protection of such a Legislature. Iron Ores also of various descriptions abound in the Island; and various other metallic minerals, which also require such a helping hand.
Amongst the principal settlement so the Island may be mentioned the Town and Freewarehousing Port, and spacious and excellent harbour of Sydney, in the Northeast quarter of the Island, and opposite the main entrance into the Gulf of St. Lawrence; with its valuable Coal Mines, whence a large export of that article annually takes place to the United States and the British Colonies, and is the principal resort of the settlers in that quarter for supplies, and to which to bring them agricultural produce and the proceeds of the Fishery. Also the town and Freewarehousing Port and excellent harbour of Arichat, in Isle Madame, which commands the Southern entrance into the Strait of Canso, a much frequented passage into the Gulf of St. Lawrence and dividing Cape Breton from Nova Scotia, with its extensive Fisheries and noble Fishing Establishments, and also the depot for the agricultural produce and the trade of the Southern ports of the Island, together with the ancient settlement of Port Hood, now a port of Entry, and the emporium of the trade of the western parts of the Island. There are numerous other Settlements well worthy of particular notice, would it not be entering too much into detail to treat of them at large.
Sydney Coal Field (Louis Frost Notes http://www.mininghistory.ns.ca/lfrost/lfcfa00.htm)
Your Majesty’s Petitioners further humbly submit that, as they conceive, the importance of this Island would not only render it consistent with sound policy, but as imperatively requiring that it should constitute a Government of itself, or at least be the centre or head of one. Its value to France when under her dominion, the immense expense incurred by that Power in fortifying the Harbour of Louisburg in it, and the influence and authority the possession of this Island gave France in America, at that period, are evidence by History; and former anxiety to retain it, and strong aversion to its falling into the hands of Great Britain may possibly revive, and at some future period because that Power to endeavour to regain its possession. Its geographical position and value in other respects, whether viewed as commanding at once the entrance into the Gulf of St. Lawrence and adjacent seas, and being consequently the Key to Canada; or considering the money spent in its acquisition — the blood spilt in its capture — the valuable fisheries on its coasts — the fine timber in its forests — the fertile land in its territory, or its inexhaustible Mines of Coal and Iron, cause its prosperity and possession by England to be all important.
Situated as is this Island between the parallels of 45°27’ and 47°5’ North latitude, and 59°38’ and 61°50’ West longitude; being about 100 miles long and 80 miles wide; containing about 2,000,000 acres of land, standing out in the Atlantic ocean in advance of and as it were a bulwark and protection to the British Possessions in this quarter of the Globe, possessing some of the finest and most accessible harbours in America, and separated by a narrow Strait, which might be easily guarded from the American Continent; it is here that England might concentrate her forces, rendezvous her fleets, and defy the world: and should she unhappily at any future period have cause to retire from other parts of America, Nature has prepared for her this Isle to which to withdraw, and wherein to make her final and successful stand, as the permanent seat and Key of British Dominion and Naval supremacy on this Hemisphere. But it is only by being a Government of itself that the Island can flourish or become to England the important station which nature has designed it, and which the security of the British Possessions in America may require it to be.
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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