To Better the Condition of the Province

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To Better the Condition of the Province
David Shank Kerr
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TO BETTER THE CONDITION OF THE PROVINCE. LETTER 10. ST. JOHN, March 22nd, 1882. To His Honor the Honorable Robert D. Wilmot, Lieutenant-Governor of the Province of New Brunswick. To the Honorable the Executive Council, and to the Honorable the members of both branches of the Provincial Parliament. Your Honors and Gentlemen: On inquiring into the causes of our low condition compared with our thriving neighbors, we look back to the beginning and find that this country, though previously inhabited in some parts by refugees (not loyalists), grantees and other settlers, this Province was principally organized for the Loyalists who had taken the British side, by the command of the King, but against their own interests – in the war with the thirteen Colonies, or United States, and came here beginning in May, 1783, and followed by other arrivals, to a mere wilderness, in the afternoon of their lives and the sunset of their prosperity, with loss of their homes, fortunes, and every earthly comfort by the dreadful results of that war, determinedly forced upon them by the Sovereign himself, and submitted to by a weak, mercenary and unprincipled ministry – a war most wrongfully declared, most disgracefully mismanaged and most ignominiously ended, throughout which the Loyalists had to fight, to bleed, to endure horrors of the worst description, and finally lose everything of earthly value, save a bleak and desponding prospect of a gloomy future. Some are accustomed to say of them -- the Loyalists -- “Why, the Loyalists did all and mighty things, indeed, towards first settling this Province.” Others ask, “What did the Loyalists ever do?” and charge them with doing nothing worthy of remembrance. Not agreeing with either saying, nor intending to offer a history of the Loyalists, yet the centenary celebration of their landing being intended in 1883, it becomes the more proper to speak accurately of them as connected with the first action of this Province, especially as my parents, who landed here in1783, were Loyalists who lost all their property, with painful circumstances I need not relate, yet allow me to make mention of one sample of the Loyalist Regiments: My father, James Kerr, a captain in a very celebrated infantry and cavalry regiment, distinguished for great and valorous services (as history shows), called the “Queen’s Rangers,” was wounded, as nearly every surviving officer of the regiment was, at the Battle of Brandywine, by a bullet, which he carried to the day of his death, whose second son, Thomas Kerr, a brother I never saw, ensign officer in the Royal Newfoundland Regiment, Canada, in the war with the United States, 1812, mortally wounded in the great and successful battle at French Town, River Raisen, near Detroit, Jan’y 1813, especially particularized, (with Col. St. George), in Col. Proctor’s despatch, for great bravery and gallant conduct on the occasion, and whose much esteemed brother officer, Captain David Shank, of cavalry, for his gallant deeds, rose to be Lieutenant General in the British army. The Colonel John. G. Simcoe, for his remarkable military skill and daring adventures, was personally honored and thanked by their late Majesties, King George III and Queen Charlotte, and was appointed the first Governor of Upper Canada, Lieutenant General of the British Army in command of the Town of Plymouth, in 1801, and afterwards to the Chief Command of the forces in India and other high distinctions, which he did not survive to fill. Richard Armstrong, Major, a gallant officer in the war – I believe he rose to be Lieutenant General in the British Army. Captain John Saunders of cavalry, late Chief Justice of this Province, Lieutenant Christopher Robinson, father of Sir John Beverley Robinson, that excellent Chief Justice of Upper Canada; Lieut. Allan McNab, of cavalry, father of the late distinguished soldier and statesman, Sir Allan McNab, of Upper Canada; John McGill, captain, and many years Legislative Councillor of Upper Canada; Wm. Jarvis, officer of cavalry, Secretary of the Province of Upper Canada; Adam Allan, lieutenant of infantry, who commanded a military station at Grand Falls; and other distinguished officers whose names at present I cannot call to mind; Stair Agnew, captain, and Hugh McKay, lieutenant, same regiment, many years members of the House of Assembly of New Brunswick. I will refer in my remarks to other regiments of them. In justice to the Loyalists and their claims to remembrance, I will fairly present the differences which gave rise to the war – their part in the war, its mismanagement, and the ignominious end and treaty of peace which destroyed and brought the Loyalists here; and their general character and status in reference to the first settlement of this Province. Nothing could be more opposite in law than the views of the American Loyalists to those of the Whigs, or rebels, as the Loyalists finally called them. Long before the rebellion was dreamed of, the common doctrine of the most eminent lawyers of the time was that the power of the British Parliament was boundless – that it could do anything it pleased. Sir Wm. Blackstone (if I remember right), whose indiscriminate laudation of the laws and constitution of England were so excessive as, in a measure, to impair his otherwise useful work, somewhere tells us, or quotes on authority, that Parliament could “do anything but make a man a woman or a woman a man.” Lawyers, while students, reading Blackstone, are apt to swallow such chimeras whole, unless some way challenged, and [notions so acquired by eminent lawyers are of little worth, but why it ever should have been supposed that Parliament could rob and murder at pleasure or do anything wrong they pleased, and had no constitutional bounds of restraint, I never could understand] consistently with security under the law. I have long observed that the British Parliament was a most dangerous institution, which has, in its time, committed more outrages, on fair justice and right, than any other power of which I am acquainted. There should be, and I think there are other ways of maintaining its limits besides an appeal to the sword, and losing a great part of the empire as in the case I am examining, or walking into Parliament as Cromwell did. In this boundless power, with a corrupt ministry in Parliament, which the Sovereign himself controls, with a corrupt Chief Justice there, whose advice alone His Majesty will take, if it favor “the divine right of kings” or despotic power and a corrupt and mercenary Parliament, many of whose votes are given for measures to avoid the personal displeasure of the king. How easy is it for such a king to combine with such a Parliament and sweep away all our liberties under the Great Charter and trample upon the best rights of the people, as in the case I shall present. I conceive the law itself which the Sovereign is bound by his coronation oath to observe, as much in his Court of Parliament, and for the protection of his subjects, according to law, as in his ordinary courts of judicature, sets constitutional and explicit limits to his parliamentary power and contrary to Dr. Blackstone’s principle, Parliament cannot constitutionally rob and murder on the highway, nor treat security under the law, as of no account. I distinguish between arbitrary power, and constitutional right. The extraordinary doctrine propounded by the noble Lord Chatham, whose manliness, at least, I have always admired, substantially asserted in Parliament, without any legal foundation for it, that “a colonist had no right to manufacture even a nail for a horse’s shoe,” yet the trade and navigation acts set forth in my third letter do not forbid manufacturing in the colonies, there never was any law for such imposing nonsense, and by his Lordship’s speech in Parliament in 1766, for the repeal of the stamp act, I never could understand how his Lordship could on any principle, make it out that while Parliament could not take a man’s money by taxation “out of his pocket,” which might be only a few dollars, “without his consent,” yet Parliament could stop a man’s money coming into his pocket without his consent by thousands of dollars, and actually ruin him by cutting off his lawful trade and navigation and keeping his lame horse in the stable till he could send across to an English manufacturer to make a nail for his horse’s shoe. Every one must see that absurdity, and that the same principle which affects a man’s pocket by taking money out, must apply in preventing it from coming in, as affecting his pocket, and therefore representation or consent is alike required in both cases, yet the opposite was certainly the common opinion of great lawyers and judges of the Supreme Court; yea, by my Lord Chief Justice Mansfield in this very case, and by most reputable authorities and classes of the time, to a very large extent in every one of the colonies, and therefore that Parliament had a right to enact the trade and navigation laws, the restraints upon manufacturers, the stamp acts and the duties on tea. This opinion gave a tone to the same thing, in the military and civil services and generally throughout the colonies among great bodies of the people, of course all those of the foregoing belief considered the opposite view unlawful and rebellious, got up by unprincipled and reckless men for their own avarice and ambition against the best of Kings and that resistance to British authority was wholly unlawful and unavailing by those who promoted it. The Colonists, or those presenting the opposite views substantially, maintained that the Court of Parliament, being only a part of the ancient Aula regis or great court of the King of England, like all the other branches of it, required to summon parties to be affected by its acts to appear or be represented there, and so had been the course of the Parliament in England from time immemorial. That by the common law of England, the jurisdiction of the Court of Parliament was bounded by the dominion of England proper, or within the four seas, and did not extend to the Sovereign’s separate dominions in America, but if attempted to be extended it could only be upon the admitted principle that the Sovereign’s subjects in England, leaving there for a domicile in the Sovereign’s dominions in America, took with them the common law of trading and representation which became the law of such dominion, between Sovereign and subject in America, the same as it existed in England and by that law they were entitled to trade and be summoned, and represented in the Parliament of England, before any laws could be passed to affect them. That their English ancestors, having left England and becoming domiciled in the Sovereign’s dominions in America, are entitled by that common law to trade to representation in America when the trade and navigation acts 12 and 14, Charles II., and the other oppressive enactments in furtherance of them were passed without these colonists being summoned or represented in the Parliament enacting them, such acts were unconstitutional, tyrannical, oppressive and void. That the acts themselves, and all the others in oppressive furtherance of them, being enacted for the benefit of certain merchants and manufacturers in England, in restraint of trade, and to the exclusion and great injury of the Sovereign’s subjects in America, by depriving them of their lawful rights of manufacturing, trade and commerce, which, by the laws of the Great Charter (see chaps. 29 and 30), they were entitled to use and carry on were clear monopolies, namely, criminal offenses at common law, and by Statute 21, James I., chap. 3, sec. 3, 3rd Institute, 181, against monopolies, in full force in the Sovereign’s dominions in America when the objectionable acts were passed and were accordingly unconstitutional, oppressive and void. That the tax by the Stamp Act, and the tax upon tea, without representation were only a completing of the chains, which Parliament, with the consent of the Sovereign, had been previously forging to manacle and enslave the Sovereign’s subjects in British America, and that all the enactments complained of were oft repeated instances by the Parliament, of mere arbitrary and despotic power, assented to by the Sovereign to serve a greedy monopoly to one set of subjects to the manifest injury of another, against the common and statute laws of the land, and not for a constitutional exercise of its legitimate powers, according to Magna Charta (see chap. 29, 30, 3rd Institute 181) or the laws of the land. That those unconstitutional and oppressive enactments had always been resisted from first to last, by Acts in their Colonial Legislatures, by numerous petitions to the Throne, and in all other lawful ways but without effect. That the reciprocal bond of union, between subject and Sovereign, being, that the subject bear true allegiance to the Sovereign, and the Sovereign would protect the subject and govern him according to law and the coronation oath, yet the Sovereign had not done it, but repeatedly broke his legal obligation by joining in illegal acts of Parliament against the subject’s right, which made it lawful for them to renounce their allegiance, yet they did not desire it, nor to separate, but to continue their connexion with their Sovereign as his liege subjects, and only to be relieved from those unlawful and oppressive enactments which were being multiplied against them, and they had most ardently hoped, from their resistance, and many petitions for relief, that those Acts would be relaxed, and they gave notice of their complaints by numerous petitions to the Throne, and waited long and anxiously before declaring independence in the hope that some reasonable terms of compromise might be offered and accepted, and the difference peacably reconciled, but His Majesty would offer none other than war, fleets and armies for their subjugation and enslavement, they were accordingly compelled to accept the appeal from the unconstitutional acts of the Court of Parliament of England to the power of the sword, the battle field and to the King of Kings to decide. It further appears in relation to the dispute, by Dr. Ryerson on the Loyalists, 1 vol., 388, that intelligence having been received in England, producing great excitement, of the throwing of the tea into the harbor of Boston by some 18 persons disguising themselves so that they should not be known, wherefore Lord North, Prime Minister at the Parliament, in March, 1774, offered four several bills against Massachusetts: -- 1st. To close the port of Boston against the exportation and importation (to the suffering and ruin of many thousands) till Boston paid for the tea. 2nd. To annul the charter of Massachusetts, taking the government entirely out of the hands of the people and arbitrarily vesting it in the power of the Governor and changing their right to elect juries. 3rd. To empower the Governor, in any indictment charging a capital offence committed, in opposing the officers of the revenue to change the place of trial to Nova Scotia or England. 4th. To quarter British troops upon the inhabitants of the Town of Boston. All those most illegal, tyrannical and oppressive acts were quickly carried through Parliament before any notice could get to the parties affected by them, or any to represent them, nor any offence charged or committed, nor the possibility of any of the parties being heard in their defence; nor would the House of Commons hear any petitions by accidental agents then in London, nor any petitions in reference to those outrageous acts from the Lord Mayor of London for the people, nor petitions from Ireland and Scotland against those enactments; and all this (as it appears afterwards) was done by the express will and command of the King himself against the opinion of Lord North, his Prime Minister, and what high law functionary was advising the King to take those mad proceedings against the opinion of the Prime Minister was not generally known, but by Mr. Grevill’s Diary, cited by Young in the Constitutional History of England, pages 28 and 29, it appears to have been Lord Mansfield who was the King’s special advisor and at the bottom of the whole of it. At all events, we find his Lordship supporting those bills with all his zeal in Parliament, in a speech (too lengthy to give), but which seems to have highly pleased His Majesty, who was personally offended with any who opposed His Majesty’s views; and though those bills were more an outrage against law and liberty of the subject and common decency itself than anything to be found in a civilized age, and were resisted by a most able lawyer and honest man, Lord Camden, who had made great research, and opposed, as well as Lord Chatham, Lord Mansfield’s views, confining himself to the one subject in hand – that there could be no taxation without representation, of course the same authorities equally govern, that Parliament cannot constitutionally injure or debar a man’s money interest without representation or consent; but those proceedings were supported by the highest common law functionary in the kingdom, and while this instance goes to prove the illegal and despotic acts (as I said) done in Parliament, even by Chief Justices, it alike shows that by these illegal and tyrannical proceedings, and by the subsequent act of Parliament denying the colonists the privilege of the deep-sea fishing, and the absolute refusal of the King or Parliament to answer the following year in any way but in war – the admirably expressed loyal and touching petitions from the United Colonies and New York, show how determined his Majesty was to get rid of his colonies and involve his faithful Loyalists in war and ruin (for no other rational conclusion from his Majesty’s acts can be drawn) in spite of the colonists’ most urgent desire to remain with him, by absolutely denying that they had any rights; but if they would give up everything they were claiming, if they then applied in a proper way (as he expressed in his reply) his Majesty would grant them (poor slaves) reasonable indulgence; yet in 1778 (too late) his Majesty, by Lord North, his Majesty’s Prime Minister, repealed all the oppressive acts above named, and offered to give to the British Colonies more than ever they had asked for, declaring at the same time that the course then pursued agreed with the opinions which he, the prime minister, had always entertained. I have no doubt that the opinion of Lord Mansfield was wrong; but if the principle of those repeals and offers was wrong, why did not my Lord Chief Justice stand up in his place in Parliament and oppose them? If right, what should have been the just punishment of Lord Mansfield for unconstitutionally and surreptitiously interfering in 1774 with the duties of the prime minister and losing the colonies? I have thus endeavored to present, from books which I have read and other information, the views of each side. I cannot discern anywhere that the Loyalists had anything to do with bringing on the war; their interest appears to have been every way against it. I am quite sure a large number of them did not know, when they entered the war, the particulars of difference, (my father did not) and I am fully satisfied that the Whig colonists had no idea of war, as may be seen by various histories, and from the nature of their objections. Hence, with all deference to the Loyalist side of the question, I have not a particle of doubt, in view of the foregoing objections, that the American States, in law and fact, were right in the course which they pursued, and, as to war, particularly in the outlook, which the people presented in their position and differences of opinion, such a dreadfully cruel war, if it took place, obviously every public servant of the crown to be used, by the American side as an arch enemy to liberty and to the country; the very first to be pulled down, imprisoned, robbed of his property and, perhaps, lose his life, because he was loyal to his king. So was it with my grandfather, a British commissary in New Jersey. Brother against brother, son against father, husband against wife, friend against friend, and every man to kill, imprison, or destroy his own blood in order to save his own life, and the thousand other ills incident to such warfare; to have declared war, as was done; the evils complained of un-redressed and unanswered, and with the manifest consequences staring them in the face, showed a cruelty and wrong on the part of His Majesty, or his advisers, especially the interested part, for which such advisers should have been impeached and dealt with as traitors of the State. In my next I will show the disgraceful mismanagement on the British side of the war, its ignominious termination and the loss and misery of the Loyalists and their relation to the first settlement of this Province. Your very obedient and humble servant, DAVID SHANK KERR.