HC Deb 25 March 1823 vol 8 cc684-91
Mr. Hume

said, he held in his hand a petition from a numerous body of the freeholders and others of the town of Sydney, in the island of Cape Breton, which he considered to be most important, involving, as it did, principles not confined to Cape Breton, but applicable to every colony in his majesty's dominions. That the House might better understand the prayer of the petition, it was necessary to recall to their minds that, at the close of the war of 1763, certain colonies were ceded to Great Britain. Among them was the island of Cape Breton, which was immediately placed under the government-general of Nova Scotia, exactly as Dominica, St. Vincent's, Grenada, and Barbadoes, were placed under the government-general of Grenada. By his prerogative the king in council had a right to issue such orders and directions in the case of colonies, obtained either by cession or by conquest, as might enable the government of those colonies to be beneficially carried on, until, either by the king's own act or by parliament, the king became divested of that particular prerogative. This was by no means a doubtful point.—The hon. gentleman here read an opinion of lord Mansfield to the above effect, and added, that when once the king had divested himself of that particular prerogative, he could not interfere, without the sanction of parliament, in the government and regulation of whatever colony was in question.—The case had been gone into minutely in 1774, when a plea was set forth, on the part of the crown, to levy a 4½ per cent duty on Grenada. That colony had been conveyed to Great Britain by treaty in February; and, by a proclamation from his majesty in October of the same year, a separate government was established in it, and a power granted of carrying on the same; by which proclamation, therefore, his majesty divested himself of the prerogative which he had until then possessed of making laws, of levying duties, or of in any other way interfering with the internal government of the colony. This was distinctly established in 1774; when the case was forcibly argued on both sides. By proclamations of that nature the immediate royal authority in Dominica, St. Vincent's, Grenada, and Barbadoes, had been relinquished, and separate governments established in each in the shape of assemblies, who were authorized to pass laws, to levy taxes, and to do every thing that was neccessary for those colonies, adhering to the spirit of the laws of England, and from time to time submitting their acts to his majesty in council; those acts being always subject to their approbation or disapprobation. In consequence of the peculiar situation of some, of those islands, his majesty accompanied every commission issued for their separate government, with secret instructions, directing the governors of those colonies what to do under certain contingencies, and requiring them, if circumstances should render it necessary, to convoke assemblies of the freeholders and other inhabitants, in order that, in conjunction with the governors and councils, such laws should be enacted as might be conducive to the welfare and prosperity of the said colonies. In the year 1784, when governor Parr was appointed to reside in Cape Breton, that island contained only about eleven hundred inhabitants. In the commission to governor Parr, his majesty in council pointed out the general instructions by which he was to guide himself in the government of that colony; and at the same time, in the 23rd article of the instructions to the government of Nova Scotia, it was declared, that no regulations established for the government of Nova Scotia should be extended to the island of Cape Breton, so as in any way to interfere with the regulations adopted in that island. So great were the precautions taken on this subject, that when a duty was laid in 1792, on the importation of British goods into Nova Scotia, a distinction, exclusive from any share in the duty, took place as respecting Cape Breton. All this operated as a great encouragement to settlers; and the population of Cape Breton in consequence increased to upwards of 20,000 souls. Thus affairs went on from 1784 to 1820, when, without any previous notice whatever to the inhabitants, a proclamation was issued by the governor, lieutenant-general sir James Kempt, declaring, that it was his majesty's pleasure that the government of Cape Breton should be re-annexed to that of Nova Scotia, and form an integral part thereof; and that the island should be a distinct county of Nova Scotia. Now, what the petitioners complained of was, that although the proclamation of 1763, the commission of 1784, and every commission since, pledged to them the enjoyment of a separate and distinct government, yet, in defiance of the usage of forty years, in defiance of the original proclamation, by which the king divested himself of the prerogative of further interference with their government, in defiance of the unequivocal opinion of sir James Mansfield on the subject, in defiance of the uniform tenour of all subsequent commissions and instructions to the various governors of the colony, they suddenly found themselves, by sir. J. Kempt's proclamation, transferred to Nova Scotia, and forming a part of that colonial province. What could be a more serious infringement of the rights of any colony than that the king should, by a simple declaration on the part of a governor, assume the power of annulling its former independence? Such a proceeding was calculated to produce all sorts of evils and absurdities. Among others, one anomaly which it occasioned, he would mention. In Cape Breton the laws respecting the descent of property were much the same as in England. The law of primogeniture, for instance, was the same as in England. In Nova Scotia, on the contrary, as in France, a division of property took place. Now, in what a situation was the property of the inhabitants of Cape Breton, hitherto subject to laws similar to those of England, placed, by the annexation of that colony to Nova Scotia! There were other great differences in the laws respecting property of Cape Breton and those of Nova Scotia; so great, that it was almost impossible for the inhabitants of the former now to know what was the actual condition of their property. There could be no higher question for the consideration of parliament. Property which before sir J. Kempt's proclamation was worth 10,000l. had in consequence fallen in value to 3,000l. The petitioners, therefore, prayed that, at least, if parliament in its wisdom should, for any important purposes of state, determine to sanction the arbitrary proceeding of depriving them of the right which they had so long enjoyed of a separate and independent government, they should grant them some compensation for the serious injury which their property had sustained, and allow them to remove with their families to the United States, or elsewhere, where they would live under the protection of known and fixed laws. Such unsteadiness of legislation as the case which he had described manifested, was seldom exhibited, even in a canal or a road bill. He really trusted that no such principle as that which it involved, would ever he seriously recognized by parliament. To show that there could be no possible mistake as to the right of the colony of Cape Breton to separate and independent assembly, the hon. gentleman read extracts from the secret instructions sent, in the first instance, to the government of Halifax and Nova Scotia. Agreeably to these instructions, no duty had been imposed on British manufactures in the ports of Cape Breton. In 1792, a tax of 2½ per cent was imposed on all British manufactures imported into Nova Scotia. This continued to be levied until 1820; but not a farthing of it at Cape Breton. This was a proof that the governments were considered distinct and independent. How surprised, therefore, the inhabitants of Cape Breton must have been to find themselves subjected to a duty on British manufactures, notwithstanding the sacred pledge which they had received of exemption from any such duty! The proclamation of 1820 assumed a fact which never existed. It declared, that Cape Breton should be "re annexed" to Nova Scotia. Now it never had been annexed to Nova Scotia. It was always independent of Nova Scotia. The proclamation, therefore, was erroneous. In Nova Scotia a debt had been incurred before the junction of that colony with Cape Breton, to pay which the people of Cape Breton were now taxed. A false paper money had also been issued; not receivable at the Treasury for some time, and therefore subject to depreciation. In consequence of this, the bullion and coin had left Cape Breton, and they were subjected to all the inconveniences of this depreciated paper currency. For the various injuries which the petitioners complained of, only one plea had been alleged—economy! Now, there were ample funds collected in the colony for the support of its government, which had never been more than 2 or 3,000l. a year; and if there had not been, the inhabitants would willingly pay not only this expense, but such further expense as might be rendered necessary by the calling of an assembly. The petitioners prayed the House not to pass any bill to sanction this union of their colony with Nova Scotia, and to remedy the steps already taken, unless such great commercial advantage to the empire at large rendered the measure necessary; in which case they prayed to be indemnified for the injuries suffered, and to be allowed to remove to some other colonies, where they might have the benefit of their old laws.

Mr. Wilmot

observed, that if; as the hon. member had stated, this petition involved a great constitutional question, it would have been better to have given notice of a specific motion, than to have entered into it at such length on presenting the petition. He thought, however, he should be able to convince the hon. mover, that he had completely misunderstood the case, and that the union of the two colonies was in no way unconstitutional. When the hon. gentleman said that the petition was numerously signed, he was mistaken. The petitioners were 250 out of a population which the hon. gentleman had himself stated at 20,000. Up to the present time, not a single remonstrance had been sent from the colony to the colonial department, though the union had taken place in 1820; and, if the authority of a governor might be taken in opposition to the petitioners, he said on that authority, that the colonists found the union beneficial rather than not beneficial The petition, too, was got up in a manner which added nothing to its weight. The gentleman who had attempted to get a petition signed, had not been able to obtain any signatures, and had at last only obtained authorities to affix signatures. He understood that the petition had not been drawn up in the colony in its present shape, but that the signatures had been affixed to it in consequence of the authority he had mentioned. As to the constitutional question, the hon. gentleman had totally mistaken the proclamation of 1763. That proclamation divided the colonies, which had been ceded by France, and which did not then possess legislatures, into four separate governments—Quebec, East Florida, West Florida, and Grenada. In neither of these governments would the hon. gentleman contend that Cape Breton was included. The proclamation then proceeded, "We have thought fit to annex the islands of Cape Breton, &c. to our government of Nova Scotia." Nova Scotia, it was to be observed, then possessed a constitution; so that it was impossible that the promise of separate legislatures, which was held out to the above four governments, could apply to Cape Breton, which was by that very same proclamation annexed to another government. In 1766 two members were returned from Cape Breton to sit in the assembly of Nova Scotia; but, because there were few or no freeholders in Cape Breton at that time, the election was declared informal. An act of legislature had also passed in 1766, for the better recovery of his majesty's dues in Cape Breton, which, after reciting the union of that colony with Nova Scotia, declared that the dues should be payable there, as in the rest of the province of Nova Scotia. No doubt, from the year 1784 a change had taken place; and in consequence of the small number of inhabitants in the colony, the governor was allowed to make regulations for the government. But the instructions to a governor were not to be allowed to overlay the constitutional right of the colony to a share in the representation of Nova Scotia. The measure taken in 1820 was, therefore, rather a restoration of a right. Since that time, the people of Cape Breton had sent representatives to Nova Scotia; and in the case of one of those representatives, a Catholic, who was a favourite of the people of Cape Breton, the test oaths were altered to enable him to take his seat. The people of Cape Breton had derived various advantages from the union. For example the reduction of the tax on coals; and, if some individuals were displeased with it, there was not the least evidence of the measure being generally dissatisfactory.

Mr. Bernal

strongly urged the claims of the petitioners to the attention of the House. It could not be contended, upon the proclamation of 1763, that Cape Breton was put on a different footing from the other ceded colonies. It would be quite as legal to deprive Grenada of its separate assembly as to unite Cape Breton to Nova Scotia. The hon. secretary had said, that the people had no grievances to complain of. Was it no grievance to be taxed for the debt of Nova Scotia; that their metallic currency should be withdrawn, and that they should be inundated with a depreciated paper currency? Was it no grievance that the laws of inheritance were altered? If the colonists had made no communication to the colonial office, it was probably because they thought that representation in that quarter would be of no use.

Mr. Bright

said, that this was a question which involved the interest of all the colonies. The treatment of Cape Breton was one of extreme injustice. That colony was important from its situation; it was one of the fortresses of England; it commanded the entrance of the Great St. Lawrence and the fishery Newfoundland; and it was, therefore, an obvious matter of policy to see that the inhabitants were attached to Great Britain by justice and by kindness. The rights of the colonies should be protected, whether they were founded on English law, or on long usage.

Mr. Hume

defended the colonists from the charge of delay. A meeting of the inhabitants had taken place at Sydney, in April, and, after deliberation, they had appointed a committee to employ an agent in London, to ascertain what legal measure could be resorted to. An agent had been appointed, who had however neglected the business, and in filet lost the papers entrusted to him. This was only known to the colonists in June, 1822, and then a gentleman had been sent over here to ascertain what could be done on the subject.

Ordered to lie on the table.