The British North American Colonies. Letters to ... E. G. S. Stanley, M.P, upon the existing treaties with France and America, as regards their 'Rights of Fishery' upon the coasts of Nova Scotia, Labrador and Newfoundland ... With a general view of the Colonial policy, etc

Front matter

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BY GEORGE R. YOUNG, ESQ. OF HALIFAX, NOVA SCOTIA. LONDON : JAMES RIDGWAY AND SONS, PICCADILLY. MDCCCXXXIV TO GEORGE R. ROBINSON, ESQ. M.P. Sir, I feel much pleasure in thus acknowledging the permission you have given me, of placing your name in front of this work. As a Colonist, it is, on my part, but an inadequate return for the eminent services you have rendered in Parliament to the British Depen dencies, whenever any question has been agitated, in volving their rights or their interests. It will gratify me, if the views I have endeavoured to illustrate shall inspire here a feeling of respect for those public ser vices, similar to that which is entertained for them in the Colonies. They are of equal value to both countries — to England as to her Dependencies, for satisfied I am by protecting these distant appendages of the Crown, you are supporting one of the main pillars of the British marine and commercial prosperity.

When I left Nova Scotia, in the month of June last, I had no intention of embodying my views upon Colo nial Policy in any publication. The notice given by you in July, of an intended motion in the House of Com mons, during the present session, upon the subject of the B ,l Newfoundland Fisheries," and the ignorance — to me astonishing — which prevails among many commercial and intelligent men in this country, relative to the natural resources and advancement of the North Ame rican Colonies, have induced me to embody the local information I possess, with the view equally of assisting your labours, and lending my humble aid to remove those ignorant and unfavourable impressions. The better these Colonies are known, the more they will be valued ; and to inspire an attachment for them is to extend and knit the circle of national feeling.

Letter I

Page Feeling of the Colonies relative to the Fisheries— A tone of warm and affectionate Loyalty prevails in them — The Ministry and British People may fan or extinguish it— Injuries sustained— The power of redress in the reach of the Cabinet 5

Letter II

Supposed Opinion of the Law Officers of the Crown upon the Claim of the French to an exclusive right of Fishery on the Coasts of Newfound land—Treaties from that of Utrecht to that of Paris in 1814— This Claim considered as a question of Intention — Debates in Parliament in 1783 — American Interpretation of the Treaty, and Resistance to the French — Arguments reviewed — Improvements in Newfoundland — Mr. Morris's Pamphlets — Mr. Villier's Memorial 10

Letter III

Treaty of 1783 — Mr. Oswald — Negotiations with America — Debates in Parliament upon the Provisional Treaty of Peace — Convention of 1818 — Mr. Rush's synopsis of the Arguments used by the American Commis sioners — Clamours in England and the Colonies — International " Rights in the Sea" reviewed. 29

Letter IV

Practical effects of these Treaties on the Coast of Nova Scotia—Ame ricans destroy nets — Lessen the Catch — Obtain Bait from our Harbours — Introduce Smuggled Goods, and carry on a barter trade with our Fisher men — Injurious to the Revenue and local Merchant — Drive the British Fishermen from their Stations in the Labrador coast — Naval Force not sufficient — In 1831, Americans engrossed the whole trade of the Magda len Islands — Their violation of the Revenue Laws unjustifiable 48

Letter V

By these treaties the Colonies lose the supply of the home consumption both of France and America — Extent and value of the French and American Fisheries — They manufacture or secure the best quality of fish — Duties paid on English fish on the Continent — Competition created both in Europe and the Brazils — America can take to the latter their cargoes assorted with cheap manufactures — They sail and man their fishing vessels at a lower cost — Manufacture of Salt and its cheapness in New England — Effects of the Competition of the French on the Trade of Newfoundland contents.

Letter VI

Page Amount of casual Revenues in, and Parliamentary Grants for, the Colonies — The British North American Provinces prepared to pity the expenses of their Civil Governments — Quit Rents in Prince Edward's Island— the Proprietors and People— Separation of Cape Breton from Nova Scotia, considered— Public forks not undertaken at the suggestion of the Colonists— Shubennacadie Canal— Government House in Newfound land — Fortifications in Canada — Rideau Canal — Distinction between extra and necessary expenditures — Folly of abandoning these Depen dencies 77

Letter VII

No War waged exclusively for the Colonies — Military Expense less than represented — Naval Force not chargeable to these Colonies — Benefits derived by the Mother Country from their possession — Field for Emigra tion — Area of the Colonies larger than that of Great Britain — Amount of Manufactures consumed in the Colonies contrasted with the United States — American Tariff— Foreign Countries neither in a situation, nor having the disposition to reciprocate 104

Letter VIII

British and Colonial Shipping — Exports to the Colonies and the Northern Powers of Europe contrasted — Considerations upon the Reci procity Treaties — British Trade with America — Statistics of Nova Scotia — Present condition, trade, climate, and state of improvement — Value of the Fisheries of Newfoundland — Colonial Fisheries — Comparative pro gress of the Colonies, and the United States and Great Britain, in popu lation, fye. — Mr. Scrope on Colonization 131

Letter IX

Appeal to the Chivalry of the Nation — The New World must exercise a vast influence upon the destinies of the Old — America hostile to British Liberty — These Colonies essential to overawe and control the United States — Necessary as affording a Station to prepare an Armament, and to refit our Navy stationed in the West Indies — Essential to British Independence — America not to be dreaded as a Military Power — Her Strength only in her Navy 159

Letter X

A Trade necessary for the national Defence ought to be protected — Lord John Russell — Naval Power never permanent unless supported by a Com mercial Marine — Ancient and Modern History — Fisheries the best nursery of Sailors — Comparison between the Naval Resources of the British North American Colonies and the United States — American Shore Fisheries com pared to Massachusetts and Maine — Chief Justice Halliburton's work upon this subject — Feeling produced in the Colonies by the system of Attack Consequences upon the Mother Country, if Nova Scotia, Sfc. were incor porated into the Union — Supply America with Fuel, and enable her with their superior Climate to prosecute the Cotton Spinning Trade Navy Estimates may be Reduced. j

Letter XI

Good faith in Treaties to be observed— The Colonies in this question seek only the fair construction of these Treaties, and a rigorous enforcemant of their terms— Methods of Redress— Appeal to the Government, and to Mr Stanley— Duties on the Importation of Fish from the Colonies ought to be reduced ! jgg THE BRITISH NORTH AMERICAN COLONIES.

Letter I

Feeling of the Colonies relative to the Fisheries — A toneofwarm and affectionate Loyalty prevails in them — The Ministry and British People may fan or extinguish it — Injuries sustained — The power of redress in the reach of the Cabinet. TO THE RIGHT HON. E. G. S. STANLEY, M.P. SECRETARY OF STATE FOR THE COLONIES. <5fc. fye. tyc. " Britain exists all over the world in her Colonies. These alone give her the means of advancing her industry and opulence for ages to come. They are portions of her territory more valuable than if joined to her Island. The sense of distance is destroyed by her command of ships, whilst that very distance serves as the feeder of her commerce and marine- Situated in every Continent, lying in every latitude, these her out-dominions make her the centre of a trade, already vast and perpetually ad vancing — a home trade, and a foreign trade — for it yields the riches of both, as she controls it all at her will.

They take off her redundant population, yet make her more populous ; and are destined, under the policy already commenced towards them, and which in time she will far more extensively pursue, to expand her empire, commercial, manufacturing and maritime, to dominions to which it would not be easy to affix limits."- Rush's Residence at the Court of London. " I can assure the House, that if the Honourable Member, or any other individual, can suggest any mode of conduct which is likely to promote the prosperity of the Colonies, I shall be most happy to attend to it." — Speech of Sir George Murray in the House of Commons, while Secretary for the Colonies, in a Debate upon the Trade and Fisheries of Newfoundland. Sir, When I had formed the determination of writing the following letters, upon the existing treaties with France and the United States, as affecting their " rights of fishery" upon the shores of Nova Scotia and Newfoundland, I intended to apply for the favour of pub lication in some of the daily newspapers.

As I pro ceeded with the investigation, the subject extended into collateral but necessary inquiries ; and on submitting my views to my friends, whose judgment I hold in higher respect than my own, they advised me to pub lish them together, that the uniformity and stream of the argument might not be affected. I offer this expla nation not for their matter, but their form. The views I have advocated are sanctioned by my own judgment; but I seek for them no favour, if they are not supported by facts, and the deductions of experience. I would reject them myself, if I did not believe them to be consistent with truth and political philosophy. The inquiry I prosecute necessarily compels me to arraign the measures of former Administrations. The pledge given by Sir George Murray upon this question continues to the present hour unredeemed.

In the opinion of the "enlightened public" of the Colonies, their best interests have been sacrificed, by the policy WARM FEELING OF LOYALTY IN THE COLONIES. 7 of the Government. They have the charity to believe, that this is to be attributed more to ignorance than to intention. The extent of that sacrifice I shall now endeavour to develope. I wish to press strongly upon your notice the practical evils to which we are sub jected, and which it is in the power of the Government, at least, partially to relieve. The principles which have governed your conduct since your accession to office — your gracious reception of the deputies from New Brunswick — the concessions made to their just complaints — lead me to believe, that you will not be slow to vindicate our rights, if once satisfied that they have been and continue to be invaded.

I write, Sir, with no intention of embarrassing the Government, on the one hand — your course is distinct and clear. National, like personal dignity, will be best consulted by the firm assertion of its rights. On the other, it would be an ungracious office, with the warm attachment I profess to the Constitution, and the desire which animates me that the connexion existing between the Mother Country and the British Dependencies may be perpetuated, to start any political question having a tendency to disturb it. There exists throughout all the Colonies, with which I am acquainted, a tone of kindly and affectionate feeling towards the British nation, founded alike upon the sense of benefits received, as upon a just apprehension of the practical superiority of their local governments. But I ought not to conceal that the existence and perpetuation of that feeling depend upon the policy pursued by the Cabinet.

It is for them either to fan or destroy it. The spirit of political inquiry, which exists in the old world, has breathed its inspiration across the Atlantic ; and is SPIRIT OF INQUIRY AMONG THE COLONISTS. spread far and wide among the population of these Dependencies. They are upon the advancing tide of human knowledge. They have caught up from the political and literary publications of the day, their tone of searching and sagacious investigation ; and apply it, with even its rougher aspects, to the discussion of their local affairs. After the array of facts I shall pro duce, and the reference I shall make to the feelings — the bitter and hostile feelings — with which the question of the Fisheries has been contemplated, I need scarce assure you that it is there the subject of frequent and hot decla mation.

We have submitted hitherto, but it has been with no very patient nor "winning grace." We have continued to suffer aggression, but it has been a suffering, softened and blended with hope. Yes, Sir, with the hope that the maternal Government would, by its own supervision, at length, discover, from the statistics of trade, the practical consequences of a policy which has been, and will yet be, I fear, even more destructive of the Colonial interests. Forbearance, at a certain point, loses even the semblance of a virtue. The meekest spirit, if goaded too far, will, and ought to rise in resist ance. Some of the Colonies will not submit much longer. Newfoundland may be provoked to execute summary vengeance upon the French. If the Ministry do not of themselves extend some measure of relief .and secure to us at least the fair participation in these— our local resources, the question even may be mooted how far, according to the modern doctrines of the Con stitution, the Government have the power of thus dis posing of the local and peculiar resources of the Colo nies, without their interests being consulted, or their sanction sought.

There are enow of angry spirits who DISSATISFACTION OF THE COLONIES. would delight to agitate it. I know it is a theme of political speculation, which, if once sent abroad, may lead to the propagation of principles dangerous to the peace, if not to the integrity, of the empire ; and one of the main objects of this appeal is, that, by recom mending precautionary measures, such discussion may be averted. It would be dishonourable to conceal, how ever, that the feeling of dissatisfaction exists— that it is spreading and strengthening — nay further, that the Colonists think they would be unworthy of the free lineage of their sires, if they were not irritated by the injuries to which they have been exposed. The advancement of the Colonies during the last twenty years has been rapid beyond all parallel, I be lieve, in the history of the world.

That advance, how ever, has been retarded by one of their most valuable sources of national wealth having been opened to the competition of two rival powers. How far the Govern ment have conceded, from the rule of international law, in granting these privileges, is a question I shall after wards discuss ; but, at the present moment, you will admit it, as a general principle, that the existing trea ties ought to be strictly construed — their tenor rigorously enjoined or enforced — and that the Colonies have a right to apply for redress, if they can establish, that the French and Americans exercise their privileges to an extent which their charters do not justify, and which, I am satisfied, the Government would not knowingly permit.

Letter II

Supposed Opinion of the Law Officers of the Crown upon the Claim of the French to an exclusive right of Fishery on the Coasts of Newfoundland— Treaties from that of Utrecht to that of Paris in 1814— This Claim considered as a question of Intention — Debates in Parliament in 1783 — American Interpretation of the Treaty, and Resistance to the French — Arguments reviewed — Improvements in Newfoundland — Mr. Morris's Pamphlets. — Mr. Villier's Memorial. " And as respects the right of fishing, upon the north-east Coast of this Island, in common with the French, your Memorialists humbly solicit the prompt answer of His Majesty's Government, so that they may receive the necessary information upon this important point be fore preparations be made for the Cod Fishing of the ensuing season, which will commence in May next ; and as additional grounds for this ap plication, Memorialists have to state that the Fishing on the Coast of La brador during the past year has, in many instances, almost totally sailed ; and generally the quantity of fish taken and cured there, has proved very inferior, so that Memorialists apprehend those fishermen, who have hitherto pursued the fishing on that Coast, will be compelled to resort to the French shore, unless they find the construction which His Majesty's Government may put upon the Treaties, not adverse to their proceeding thither.

Memorialists would further beg leave to state, that in the ab sence of the requisite instructions from his Majesty's Government, great inconveniences might be suffered by many of His Majesty's subjects; disputes may arise between the French and British fishermen ; and col lisions of a serious nature may happen, which it is the earnest desire of Memorialists to prevent." — Memorial of the Chamber of Commerce of St. John's, Newfoundland, to the Right Honourable Sir George Murray, Secre tary to the Colonies, dated January, 1830: Signed Thomas H. Brooking Esq. (now of London) President. " The yielding to France by the Treaty of Utrecht, the isle of Cape Breton, and the granting to that nation also, the privilege of erecting stages on our Island of Newfoundland, were great mistakes." — Ander son's History of Commerce.

In reviewing the pretensions of the French to an ex clusive right of Fishing on more than half of the entire Coast of Newfoundland, I shall consider it, in the firs^ place, as a question to be decided by the Treaties them selves ; and, secondly, as one of intention, to be ga thered from extraneous evidence ; for, after an investigation of the documents upon which the assumption is founded, and the collateral inquiries into which they lead, I esteem this, though a novel, the better course to adopt. If the question were propounded to the Law Officers of the Crown, they would be constrained, I think, Sir, to give something like the following opinion. " As this is a question involving international rights of commanding importance, and may affect the existing relations with the Colonies, or with France and this kingdom, we have bestowed upon it an anxious consideration, and present the conclusions, to which we have arrived, after deliberate inquiry.

By the Treaty of Utrecht, when France relinquished her right to Newfoundland and Nova Scotia, with the privilege of fishing on the coasts of the latter, she retained to herself the island of Cape Breton, ' and also all other [islands] both in the mouth ' of the river St. Lawrence, and in the Gulf of the same ' name, with liberty to fortify any places therein.' With regard to Newfoundland, it was stipulated that it should not be lawful for the subjects of France to raise any fortifications there, or to erect any buildings, besides stages made of wood, and huts necessary and usual for the drying offish, or to resort to the said island beyond the time necessary for fishing and drying of fish. But it should be allowed to the subjects of France to catch fish, and to dry them on land, on that part of the said Island of Newfoundland, which stretches from Cape Bonavista round the north point of the Island, and descending to Point Riche.

All the subsequent treaties refer to this primitive adjustment, and must be governed by its exact language. " Under this treaty it appears that the French enjoyed the right of fishing from 1712 to 1763— that no formal assertion was made, or, if made, never recognized, of an exclusive right ; and that, for this period of half a century, the English and they participated in the mutual enjoyment, along part of the present debateable line of Coast. " In the year 1763, by the treaty of Versailles, these conflicting rights of the two powers to their possessions in North America formed the subject-matter of fresh agreement. By the fifth article, His Christian Majesty relinquished his rights to the Islands in the River and Gulf of St. Lawrence, as well as the Island of Cape Breton, previously captured by the British forces.

The liberty of fishing and drying on the same portion of the Coast of Newfoundland, as conferred by the treaty of Utrecht, was confirmed to the subjects of France, and also the liberty of fishing in the Gulf of St. Lawrence, on condition that they should not exercise the right, "but " at the distance of three miles from the Islands or Coasts " of the Continent situate in the said gulf," and that as to all other places without the limits of it, they should have the right of fishing fifteen leagues from the Coast of Cape Breton — while the fisheries of Nova Scotia should be guarded by the same restrictions as before. By the sixth article, the Islands of St. Pierre and Mi quelon were ceded in full right to France, to serve ' as ' a shelter for fishermen,' and His Christian Majesty ' obliged himself, ' on his royal word,' neither to fortify ' the said Islands, nor to erect any buildings there, but ' merely for the convenience of the fisheries.' " By the treaty of Paris, concluded in 1783, these rights were, for a third time, subjected to new modifi cations.

The fourth article ceded to France the Islands of St. Pierre and Miquelon, thus relieving them of the prohibition, under which they were before held ; and enabling the Government to fortify, and the people to form permanent settlements, as might appear to either expedient. The fifth article . recites that in order to prevent the quarrels which had arisen between the two nations, His Most Christian Majesty consented to re nounce the right of fishery, granted by the treaty of Utrecht, from Cape Bonavista to Cape St. John ; and, in return for this concession, our Plenipotentiaries granted, ' that the fishery assigned should begin at ' Cape St. John, on the east coast of Newfoundland,' run round the north point of the Island, and descend on the west, not as before, to Point Riche, — the exact position of which was then in dispute,* — but to Cape Ray.

And it stipulated ' that they should enjoy this extension of ' their privilege, as they had the right to enjoy that which ' was assigned to them by the treaty of Utrecht S The * Reeves' History of Newfoundland, 124. " It appears that in 1764 the French Government, in a special memorial contended that Point Riche, mentioned in the Treaty of Utrecht, on the western side, was the same as Cape Ray, on the south-west extremity. This claim being only supported by a single map of no authority, the work of a geographer, by name Herman Mull, was completely disproved by a Report of the Board of Trade, and was decisively rejected by the British Court."— Mr. Villier's Memorial. last treaty is that of Paris, ratified in 1814. The thirteenth article runs thus : — ' The French right of ' fishery upon the Great Bank of Newfoundland, upon ' the Coasts of the Island of that name, and of the ad ' jacent Islands in the Gulf of St. Lawrence, shall be ' replaced upon the footing in which it stood in 1792.' " With reference, then, to these treaties, the point of the argument must rest upon the construction to be given to that of Utrecht.

The existing treaty of 1814 refers to the right as it existed, or, in other words, as exercised, in 1792— this was founded upon the treaty of 1783; and in it again it was stipulated that the enlarged extent of fishery should be enjoyed, as that assigned by the primary treaty of 1712. On consideration of the exact words contained in that document, we are of opinion, that the conclusion would not be war ranted, that a sole and exclusive fishery was intended. It allows the erection of buildings and stages made of boards ' necessary and usual for the drying of fish, and ' to catch fish and to dry them on land ;' but this can not be construed to grant a sole fishery ; and if the usage of mutual enjoyment can be held to interpret the right, their submission to this practical construction for so long a period, puts an end to the question.

" It has been said, however, that the French mainly vindicate the assertion of this right upon a declaration from his Majesty the King, which accompanied the treaty of 1783. The following are the terms upon which they rely : — " To the end and in order that the Fisheries of the two " nations may not give cause for daily quarrels, His B. " M. will take the most positive measures for preventing " his subjects from interrupting in any manner by their " competition, the fishery of the French during the tem " porary exercise of it, &c, granted upon the Coasts of " Newfoundland ; and he will for the purpose cause the " fixed settlements which shall be formed there to be " removed. His B. M. will give orders that the French " fishermen be not incommoded in cutting the wood •' necessary for the repair of their scaffolds, &c. The " thirteenth article of the treaty of Utrecht, and the ' ' method of carrying on the fishery, which has at all times " been acknowledged, shall be the plan upon which the " fishery shall be carried on there ; it shall not be de " viated from by either party, the French fishermen " building only their scaffolds, confining themselves to " the repair of their fishingvessels, and not wintering " there; the subjects of His B. M. on their part, not " molesting in any manner the French fishermen, dur " ing their fishery, and not injuring their scaffolds dur " ing their absence."

To this there is a counter-declaration from the King of France of the same period, de claring his entire satisfaction with it. " Now it will be apparent, that the language of the declaration, admitting it, for the present, to have equal authority with a treaty, does not confer, by fair and reasonable construction, the exclusive right contended for. Its whole import presumes the presence of British subjects. They were not to destroy the stages of the French in their absence; but what possible motive, I ask, could they have to approach the coast, if they were neither allowed to erect fixed settlements, nor fish on its shores. True, upon the first clause, which states, that His B. M. will take the most positive measures for preventing the interruption of the fishery, by any manner of competition * during their temporary exercise of it, some doubt might be raised ; and it may be con- * Since writing the above, I have seen the very elaborate statement, prepared by Thomas Hyde Villiers, Esq., while agent of Newfoundland, and addressed to R. W. Hay, Esq. on the 20th October, 1830.

I have much pleasure in adding the following extract from that production :— " The object of the declaration is to secure to France that all possible efficacy be given to such principles as may prevent dispute, ' and that the fisheries of the two nations may not give cause for daily quarrels.' Then it pro ceeds to detail a series of measures to be adopted with a view to these precautions. But where was the occasion for these precautions and arrangements, if an exclusive fishery had been ceded to France ? The fishing being exclusive, the British fishermen had no right to be upon it at all, and the British Government would simply have restrained them from going there. In what ' manner,' then, could the British interrupt the French by their ' competition V How were ' disputes' or ' quarrels' to arise ?

Whence the necessity for the most ' positive measures' to prevent the interruption of ' competition '.' Every phrase appears to con template British participation in the fishery. " But the declaration specifies the measures that are to be taken in order to prevent disputes, and omits to specify what, from its paramount im portance as a precautionary measure, must have been mentioned had it been intended, namely— that the British are not to fish at all within the French limits. It provides, with a view of preventing the evils they had formerly suffered in their concurrent fishing, that the ' fixed settlements' should be removed. Again, it may be asked, what question there could be that the British would maintain their fixed settlements for fishing, if they were not to be allowed to fish ? Neither is there anything in this provision incompatible with the concurrent fishing of the British.