Legitimacy, or otherwise, of the BNA

Is the BNA illegitimate? Let these facts speak for themselves.

  1. The members of the Legislative Assembly elected in 1863 were only authorized to legislate under the Colonial Constitution and had no authority to make significant changes to it without first obtaining the people’s consent through a vote.
  2. The resolution of April 10, 1867, which preceded the enactment of the British North America Act, was the only authority possessed by the delegates who procured the Act, and it did not empower them to arrange a federal union without including Newfoundland and Prince Edward Island.
  3. The delegation was not legally constituted, as it did not have equal representation from each colony as required by the resolution.
  4. The delegates did not ensure just provision for the rights and interests of Nova Scotia, as mandated by the resolution, and the proposed union would deprive Nova Scotians of their rights, liberty, and independence, furthermore it would expose them to arbitrary and excessive taxation, by a Legislature over which they can have no adequate control.
  5. The scheme of confederation was never submitted to the people of Nova Scotia for their approval before it came into effect, which the resolutions argue is essential for its constitutionality.
  6. The resolutions express dissatisfaction with the way Confederation was forced upon Nova Scotia without their consent and against their will.
  7. The people of Nova Scotia expressed loyalty to the Queen and her government but requested the repeal of the British North America Act as it pertains to Nova Scotia and asked for the revocation of the Queen’s Proclamation regarding Confederation.

Wilkins examines the unique constitutional situation of Nova Scotia, which was granted a constitution by King George II, further developed by his successors on the English throne. Despite its effectiveness, the constitution had some deficiencies, notably the lack of a court for impeaching and punishing political offenders.

He expresses a preference for Nova Scotia’s constitution, molded after British monarchy, which he sees as superior despite acknowledging the United States’ constitutional craftsmanship. The speaker then shifts focus to contrasting Confederation with Canada, which he finds “hateful and detestable”. He argues that joining the United States would afford Nova Scotia more freedom and self-governance than being part of Canada’s oligarchical system.

He highlights the loss of Nova Scotia’s freedom under the British North America Act, which gives Canada extensive power to tax Nova Scotia arbitrarily. He criticizes the lack of control Nova Scotia has over Canada’s legislature, with only 19 out of 253 members representing Nova Scotia at the time, since dwindling to 11 out of 338 members.

He concludes by asserting Nova Scotia’s right to preserve its own constitution, which he claims belongs to the people of Nova Scotia and cannot be taken away by the Parliament of England. He argues that Nova Scotia has never been legally confederated with Canada and asserts that it is up to Nova Scotia to decide its future regarding Confederation.

Speeches delivered by Hon. Martin I. Wilkins, (attorney general) in the House of Assembly of Nova Scotia, session 1868, on resolutions relative to repeal of the “British North America Act, 1867”. Wilkins, Martin I. (Martin Isaac), 1804-1881. https://archive.org/details/cihm_23507

On the Nature of a Colonial Constitution

What was Nova Scotia’s colonial constitution?

According to Hon. Martin I. Wilkins, attorney general at the time of the imposition of the BNA, Nova Scotia possessed a chartered constitution, irrevocable except through force. Nova Scotia, once known as Acadia, was possessed by both the French and English, ultimately becoming British territory after a conquest and subsequent cession by Louis XIV to Queen Anne in 1713.

The treaty of Utrecht solidified Nova Scotia’s status as belonging to the British Crown “forever.” This grant to Queen Anne is emphasized as absolute ownership, surpassing typical property titles. Wilkins argues that neither the people nor the Parliament of England had jurisdiction over Nova Scotia at that time; it belonged solely to the Queen and her heirs.

In 1747, under George II, a patent was issued to Lord Cornwallis, granting Nova Scotia a constitution. This constitution mimicked Britain’s, establishing a Governor, Council (Senate), and House of Assembly. Wilkins highlights the power vested in Cornwallis to summon general assemblies and enact laws for the province’s welfare, emphasizing the constitution’s permanence.

However, subsequent governors delayed convening the Legislative Assembly, preferring to govern through the Council. In 1755, Nova Scotians protested, arguing that only the House of Assembly could enact laws under the granted charter. The matter was referred to England, where Attorney and Solicitor Generals affirmed that the Governor and Council alone lacked authority to make laws for the colony.

The irrevocability of the charter is underscored, with a comparison drawn to a similar case in Grenada (now known as Cambell v Hall). After issuing a commission similar to Cornwallis’, the King attempted to impose taxes on Grenada, leading to a legal challenge. The Court of King’s Bench, led by Lord Mansfield, ruled that the King had relinquished legislative authority over Grenada upon issuing the commission, thus invalidating the taxes.

Wilkins asserts that Nova Scotia’s charter is binding and immutable, having been granted by the Crown. The legal precedents cited affirm that once such charters are granted, the Crown relinquishes legislative authority, making any subsequent attempts to impose laws or taxes illegitimate.

Speeches delivered by Hon. Martin I. Wilkins, (attorney general) in the House of Assembly of Nova Scotia, session 1868, on resolutions relative to repeal of the “British North America Act, 1867”. Wilkins, Martin I. (Martin Isaac), 1804-1881. https://archive.org/details/cihm_23507

Letter of Hon. Robt. J. Walker, on the annexation of Nova Scotia and British America

Letter of Hon. Robt. J. Walker, on the annexation of Nova Scotia and British America

“But, in 1774, our people had been most loyal, and at a time when loyalty to kings was a sentiment; much deeper and more universal than it ever has been since the whole system has been rocking on its base under the teachings and results of the American Revolution.

Our complaint was taxation without representation; but, although this was a great grievance, it does not compare in atrocity with the attempt against your will and protest to transfer you as slaves to a foreign Dominion. Who wonders that you resist and denounce the effort?

As Lord Chatham said of us in the war of the Revolution, “You would be fit to be slaves if you did not resist.” Rest assured, England will never attempt to drive you by force into the Canadian Dominion, continue to endeavor to obtain for Nova Scotia a repeal of the Union.

But if, after one more effort, this should fail, or even if now you should regard the case as hopeless, then you should commence immediately a most earnest effort for annexation to the United States. In hoc signo vinces.

Appeal to the masses of the people everywhere, organize your committees in every county and district. Speak through the press, through public oral addresses, through lectures and social intercourse. Let there be no thought of war nor of any collision, except of argument and intellect. Do this, and your success is certain.”

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Hon. Robt. J. Walker. “Letter of Hon. Robt. J. Walker, on the annexation of Nova Scotia and British America”, Washington Chronicle. April 23, 1860. https://babel.hathitrust.org/cgi/pt?id=aeu.ark:/13960/t2988tm5b&seq=6

Ottawa’s a Hard Road to Travel

Oh listen to the East! oh listen to the West!
Oh listen to the fifing and the drumming!
The heart of Nova Scotia beats happy in her breast,
For HOWE and the people are coming!
Take off the coat boys, roll up the sleeve,
Howe and the people are a-coming!
Take off the coat boys, roll up the sleeve,
Howe and the people are a-coming I believe

The people cannot rest, they see the land opprest
With Tupper’s cruel nightmare “Botheration,”
And Johnathan’s warhorse tramples down our rights by force,
Till the people cry “confound Confederation.”
Take off the coat boys, roll up the sleeve,
Ottawa’s a hard road to travel,
Take off the coat boys, roll up the sleeve,
Howe and the people are a-coming I believe.

Tupper and McCully try to bluster and bully,
And never let the people put a word in;
But we’ll teach the tricky knaves that we were not born their slaves,
When we drive them to the other side of Jordan!
Woe to the turncoats who laugh in their sleeve,
We’ll give them a hard road to travel,
Woe to the turncoats who laugh in their sleeve,
For Howe and them people are a-coming I believe

Halifax Citizen, May 22, 1866. Page 1, Column 6. https://news.google.com/newspapers?nid=D90uR9ClOh8C&dat=18660522&printsec=frontpage&hl=en

Anti-Confederate Petition

We publish today another installment of over 500 names of respectable citizens of Halifax, against the Quebec project of Confederation. This swells the list, of from the capital alone, to over 1500 names already published, and we have no doubt that there are still numbers in Halifax who would have signed the petition, but have not yet had the opportunity of doing so. The lists, however, will remain open for some days yet.

 

Halifax Citizen, Aug 2, 1866. Page 2, Column 3. https://news.google.com/newspapers?nid=D90uR9ClOh8C&dat=18660802&printsec=frontpage&hl=en

“So great a change in the constitution of the country would never be permitted without an appeal to the people”

House of Assembly – Monday, April 10.

In the evening, when the house resumed, Dr. Tupper’s resolution on “a Union of the Maritime Provinces” was taken up. The hon. gentleman went into an explanation of former attempts at Union, and its necessities, -the action last year in reference to a union of the maritime provinces, and the subsequent delegation to Quebec, after, as he said, the union first contemplated was found impactable. He then branched out on the beauties and particulars of the Quebec scheme, and for about two hours and a half travelled over pretty much the same ground as those in favor of the measure have taken, in the press and on the platform, over and over again. One thing the Dr. was honest enough to state, viz: that if the bargain was not a better one than it is for the lower provinces, “it was the fault of their own delegates.” He said “he did not come to the discussion of the present question supposing it would have any particular effect.” In this we agree with him, -it was moved to give him and others an opportunity, in a safe way, to get the Quebec scheme opened up to discussion. He expressed his belief “that that scheme had taken such a root in the country that it would soon be secured in all its entirety; and that, holding such view, was his excuse for trespassing so long on the House.” We cannot but think that in this the Dr. is most egregiously mistaken. He stated that out of the large amount of patriots presented against the scheme, the signatures to which had been obtained by all manner of means, there were not 3000 who had expressed against union, but rather for delays, &c.

The Dr. endeavored to impress on his hearers the great danger there was of being overrun by the Americans, -and the security we would have though Confederation.

The grounds of his arguments for apprehending hostilities by the Americans, were: the Repeal of the Reciprocity Treaty, -the termination of the Lake Treaty, -the Passport System, and the temper of the press of the States; all these went to show that the disposition of our neighbors was to close up all avenues of communication. -The speaker did not, in the slightest degree, refer to any of the causes which have produced unkind feelings, although he was perfectly well aware of them.

We believe, if as much time and attention had been given to the cultivation of friendly feelings and the extension of our commercial relations with the United States, as has been devoted to their annoyance, by acts and language, our position today would be much more agreeable.

At the close of his speech there was a slight expression of applause in one of the galleries, -on which, Mr. Miller remarked – if such conduct as repeated he should use his privilege of clearing the galleries. The noise made scarcely warranted the threat.

Mr. LeVesconte said he merely rose to correct one part of the Prov. Sec’s speech. In his county he did not believe there could be found 25 persons in favor of Confederation.

Mr. Locke spoke somewhat similar in reference to Shelburne.

Mr. Bourinot said he could readily understand applause from the people of Halifax, as they only were to be benefitted by the Union. But he would tell the hon. Prov. Sec. that so great a change in the constitution of the country would never be permitted without an appeal to the people.

The Prov. Sec. admitted that Richmond was an exception, that County had declared against Union; yet he was correct that there was not 3000 of petitioners who had stated their views.

Mr. Killam asked the Pro. Sec. if he was so confident of the feelings of the people, why it was that he was so afraid to go to the country?

After one or two other observations the debate was adjourned.

Halifax Morning Sun, April 12, 1865. Page 3 Column 4. https://news.google.com/newspapers?nid=dw5aoL0HVgwC&dat=18650412&printsec=frontpage&hl=en

The Confederation Fenians

[From L’Union Nationale, Montreal, May 25th.]

Nous tenons de source absolument certaine que les journaux du government ne font courir des bruits de saise d’armes feniennes e d’attaques dans les provinces maritimes, que pour avoir l’occasion de tenir en eches les patriotes qui veulent lutter constitutionellement contre le projet de confederation. Il n’y a rien a craindre des fenians pour ce qui regarde le Canada, nouse pouvons en donner l’assurance positive.

 

[Translation]

We have it from an absolutely certain source that the Government Journals (of Canada) set rumors afloat of the seizure of Fenian arms, and attacks, in the Maritime Provinces, only to get a chance of checking the Patriots there who are struggling constitutionally against Confederation. We can give the most positive assurance that as regards Canada there is nothing to fear from the Fenians.

Halifax Citizen, June 2, 1866. Page 4 Column 2.  https://news.google.com/newspapers?nid=D90uR9ClOh8C&dat=18660602&printsec=frontpage&hl=en

Halifax Citizen, Feb 3, 1866

 

The proceedings of the political meeting in Yarmouth, called by requisition to the Sheriff on the 29th ult, are fully reported in the Tribune of Wednesday. They were of such a character as to show that the Government have few friends in that township. Thomas Killam, Esq., M.P.P., and the Hon. Stayley Brown both spoke very decidedly against the general policy of the Government, not on Confederation alone, but with reference to the School bill, Retrenchment, and every other feature of Tupper’s policy. The former gentleman said, “Our alienation from our friends was accomplished step by step, as we saw one measure after another to which we were conscientiously opposed brought forward by them – sad principles to which we stood pledged deliberately abandoned.” Only two persons in the meeting, which was both numerous and respectable, opposed the resolution, which we published on Tuesday, and these explained their position by saying that they “did not wish to tie up the hands of the future member, and make him a mere tool.” Although no candidate was brought out at the meeting, John K. Ryerson, Esq., was named on the following day, and his card appears in the Tribune. He pledges himself to oppose Confederation, to endeavor to remove the political School Bill from the Statute Book, to effect a modification in the Militia Law, and to press for liberal aid to steam communication between Halifax and Yarmouth, and Yarmouth and Boston. The card closes with the final paragraph :-

“Finally, I pledge myself, if elected, to use my best endeavors to hurl the Tupper Government from the position they have disgraced by the infamous enactments of the [past two Sessions, under the operation of which the country is now suffering.”


 

The Confederation journals of New Brunswick, despairing of advancing the Quebec scheme on its own merits, seem to be trying to promote it by raising an Anti-Catholic cry. They are willing to get the assistance of the Catholics of Nova Scotia and of Lower Canada to carry the measure; but if they can divide the Protestant and Catholic anti-Confederate majority of New Brunswick by a cry of creeds, they appear to think that the Canadian end will justify the extraordinary means.

Halifax Citizen, February 3, 1866. Page 1 Column 1 https://news.google.com/newspapers?nid=D90uR9ClOh8C&dat=18660203&printsec=frontpage&hl=en

“The gorge of every honest man should rise at the servility and treason which would thus sell our birthright”

While perusing the abominable misrepresentations and absurd charges which the chief Confederationists indulge in, in striving to support a scheme which has been virtually knocked on the head, for a time at least, one hardly knows whether to smile at their folly or frown at their mendacity. Every one who has raised his voice in opposition to the proposed annexation to (falsely called union with) Canada, has had to take a share of personal abuse, while those who have given it their sanction are all wisdom patriotism and moral worth!

The good things which Canada had in store for us, and the unselfish liberality with which she offered to take charge of our revenues, were portrayed in the most attractive hues; and the happiness of our existence under such an arrangement was to equal the halcyon years of the Millennium. All this was very fine, and with but one drawback, videlicet: There was not a word of truth in the whole of it! The people suspected the scheme, detected its imposition, and overthrew it. Cajolery, humbug, intimidation, were successively tried in vain, and now in their battled pique most of the delegates heap obloquy and insult upon all who contributed to trip them up and expose their trickery. They say that the opponents to this Federation are hatching treason in the shape of annexation to the United States – that it was they who gave a death blow to the Reciprocity Treaty – imperiled us with America and several other equally absurd accusations. The annexation twaddle may be at aside when we call to mind that some of the most prominent and influential opposers of the Confederation scheme were also strong opposers to a reconstruction of the American Union: therefore not at all likely to advocate giving their native province to the control of the Federal Government.

We Anti-Unionists have brought about the repeal of Reciprocity Treaty, have we? The editor of the Unionist knows that for three years an American Committee has been appointed to report on its working with an eye to its abrogation, as Canada was accused of acting unfairly, in placing almost prohibitory taxes on goods not specified in the Treaty. Then came the culminating point when the sworn foes of the United States, making dens for themselves upon the Canadian shore, issued from thence upon their murderous and thievish errands, and returning found shelter and comfort upon British soil – a soil supposed to be a friendly and a brotherly one to the American people. Had the Canadian government not at once repudiated the last villainous act, wild and frightened would have been the wail upon her invaded borders; what what it cost Canada by way of cure had been better expended in prevention. Even yet, they are not guarded, their folly may find them out.

Nova Scotia, especially Halifax, has contributed her full share of insult and provocation, which we fear will be long remembered by those who are only too able, when they have the will, to retaliate. And a greater part of the press, instead of teaching a liberal and friendly spirit, was either filled with gross abuse and the most bare-faced libels, or else threw covert sneers or detracting paragraphs against a people with whom the prosperity of our country is so inseparably united.

Of the first, the Journal made itself superlatively vile and obnoxious. Its late puny editor, a Yankee retrograde, threw in his poison and his gall, and made himself conspicuous above all others in the intensity of his hate. Fortunately he could do no great harm at the worst. Since then it has changed its name and editor. The Unionist has more talent guiding it now, but no more truth. Me. McCully says the Chronicle has suddenly fallen in love with American institutions, and speaks differently from what it did formerly. The editor at the time alluded to was not the same who now speaks through its columns, and shows a spirit of manliness and fair play towards old friends. All that has been said by the press or politicians of the Provinces cannot hard the United States one jot; but it may bring trouble upon themselves. There are many of the American editors who inveigh bitterly against Britain and her “neutrality;” but if they have no more weight than Bennett of the Herald, their opinions will go exactly for what they are worth. We are bound to respect the law of England and stand by her in need; and if every one in British North America had obeyed the laws of their sovereign the Reciprocity Treaty might not have been repealed, the Americans would have respected us as they did before the war, and the timid to-day have had no fear of an invasion.

If fate have in store for us such a great calamity, would we be safer by Confederation? Far from it. Our 30,000 hardy seamen, which in the programme were to go man Canadian gunboats, and our brave militia, too, might have to leave our coasts bare to the ravages of the invader, without those able hands to shelter or protect the helpless ones at home!

But what do our patriotic delegates care if they but carry their point, and rise another step in the ladder of their ambition? Nothing. They are ready to toady to the future masters they would give to us – hold the candle to their steps that their way may be bright and glorious. Faugh! the gorge of every honest man should rise at the servility and treason which would thus sell our birthright.

And independent people spurn the thought
And claim the liberty for which their brave forefathers fought.

Halifax Sun and Advertiser, April 12, 1865. Page 3 Column 1. https://news.google.com/newspapers?nid=dw5aoL0HVgwC&dat=18650412&printsec=frontpage&hl=en

Halifax Citizen, Tuesday May 16, 1865

Another fine illustration of the integrity of Canadian politicians, has been recently given to the public in the correspondence on Confederation submitted to the Legislature at Fredericton. In a despatch dated the 4th inst, Governor Gordon of New Brunswick calls Lord Monck’s attention to the fact that the Canadian government had altered an important clause in the Quebec convention report, so as to give it a meaning entirely different from that it was intended to bear. Clause 24 of the report reads as follows :-

24. The local Legislatures of each Province may from time to time alter the Electoral Districts for the purpose of Representation in the House of Commons, and distribute the Representatives to which the Province is entitled in any manner such Legislature may think fit.

That is the version certified by Sir E.P. Tache, as “a true copy,” and in that shape it was not only sent to the legislatures of the Maritime Provinces, but was also laid before both Houses of the Imperial Parliament. In the copy of the report and resolutions submitted to the Canadian Parliament, however, the text is altered by changing three words and interpolating four others:

24. The local Legislature of each Province may from time to time alter the Electoral Districts for the purpose of Representation in such Legislature, and distribute the Representatives to which the Province is entitled in such local Legislature in any manner such Legislature may see fit.

This alteration is of vital importance. The resolution as it originally stood, gave the several Provinces the right to arrange or alter the constituencies for the election of representatives to the federal House of Commons; as surreptitiously altered by the Canadians, it restricts this power to the making of alterations in the constituencies electing members of the local legislature only. Governor Gordon asked Lord Monck for an explanation of the discrepancy, but no reply to the request has been vouchsafed. The alteration in the text of this resolution, is one of those curious things that could not possibly be the result of accident. The words must have been interpolated by design, but what the design was, we must leave to some one more skilled in the mysteries of Canadian intrigue and dishonesty than ourselves to decide.

Halifax Sun and Advertiser, April 12, 1865. Page 1 Column 1. https://news.google.com/newspapers?nid=D90uR9ClOh8C&dat=18650415&printsec=frontpage&hl=en

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