While Canadian legal historians have long been attuned to the importance of British legacies in the development of Canadian law,1 they have been reluctant to explore the deep history of imperial engagement in the period prior to the founding of Halifax in 1749. An exception to this statement is the work done on the early history of Crown–aboriginal relations, stimulated by the emergence of a multiplicity of aboriginal legal claims in the post-1970 period.2 This scholarship has not been well integrated with the rest of Canadian legal history, however, which takes an established settler society and representative government for granted.
Unlike the history of the British colonies that became the United States, with their tighter geographic concentration, their focus on agriculture and their easily grasped east–west axis of development, those that became Canada offer a diverse collection of colonial entities prior to 1749, based mostly on trade rather than agriculture, spread over an impossibly large and varied landscape from the west coast of Hudson’s Bay to the Avalon Peninsula of Newfoundland to the Bay of Fundy. It is understandable that Canadian historians, legal and otherwise, have found it difficult to generalize about colonial development in this period.
The origins of these colonies (other than Nova Scotia) in imperial chartered enterprises offer a new way of thinking of them within the same frame of reference. This approach could be extended to the French chartered enterprises in New France as well, although they will only be alluded to in this essay. Not only does looking at Rupert’s Land and Newfoundland as chartered colonies help us see what unites them, but comparing and contrasting the experience of the chartered colonies on the Atlantic littoral south of Maine will also help to illustrate some important differences in the imperial legacies in the northern and southern halves of North America.
Legal discourses of intrusion
The chartered enterprise was a legal vehicle by which European sovereigns could ‘download’ the risk of colonizing to adventurers, without incurring the large expense of armies and navies to carry out this task. Whether structured as a corporation or a proprietorship, the chartered enterprise was a creature of the royal prerogative, usually created by letters patent.3 The benefits were expected to be economic, social, geopolitical and religious: enhancing commerce at home, exporting vagrants and the unemployed, expanding a monarch’s sphere of influence abroad vis-à-vis rival sovereigns, and evangelizing ‘heathen’ nations. The charters had to enable the creation of governance structures for new polities, provide some guidance about relations with aboriginal peoples, and address the issue of rights to land for potential settlers. They were drafted with a view to avoiding direct conflict with rival powers but also used to shore up one’s own territorial claims and to exploit any weaknesses in the claims of rivals. While the chartered enterprise is an inherently transoceanic phenomenon, historians have tended to focus on the resulting colonies rather than the means by which they were to be erected. As Christopher Tomlins says of colonial American history, it has been ‘far more an interior history of colonies – of European settlements and their affairs – than of colonization’.4 He urges us to think of the chartered enterprise as the primary instrument of what he calls the ‘law of colonization’.
In his magnificent book Freedom Bound: Law, Labor and Civic Identity in Colonizing English America, 1580–1865 Tomlins expanded on these assertions.5 His account will be described briefly, then interrogated for what it may contribute to the history of the northern reaches of the continent. Do the legalities of intrusion described by Tomlins as characteristic of ‘English America’ resonate in what will become British North America? Was there a single legal template governing English incursions into North America?
For Tomlins, the big picture of American history is one of colonization, of first dispossessing and marginalizing the aboriginal inhabitants, then bringing in new populations, first white and European, later black and African, to ‘improve’ the lands that had been taken. This work of colonization forms the great arch of American history, stretching from the earliest encounters of the sixteenth century to the end of the Civil War. In it, the American Revolution is largely a sideshow, an event that accelerated tendencies already well underway. It plays little role in Tomlins’s book, shattering the Manichean divide between colonial and national history that has been such a feature of American historiography. And what role does law play in this narrative? Tomlins argues:
One must address the law of colonizing before one considers the laws of the colonies that resulted, for it was the former, not the latter, that first projected specific legal and institutional structures onto transatlantic landscapes to create a colonized English America.6
Tomlins begins with the writings of Richard Hakluyt the elder (1552–1616), lawyer, MP and propagandist of empire, organizing the first of his book’s three parts around Hakluyt’s famous triptych of ‘manning, planting and keeping’ colonies. Law was crucial to ‘manning’ in the sense that the early Stuart monarchs possessed the authority to forbid any subject from departing the realm without licence. Population was in effect a resource that the king could keep within his realm, or deploy abroad if such were deemed politic. All the seventeenth-century charters contained express provision on this subject because it was legally necessary.7
Law was also crucial to planting and keeping: it had to provide justifications for dispossessing the native peoples, for keeping other European powers at bay, and for ensuring that settlers’ title to their ‘improvements’ would be protected. At the level of developing international law, it was Roman law that provided the intellectual infrastructure underpinning the rules that states accepted as governing their relations inter se with respect to claiming ‘new’ territories.8 However, when a monarch wished to impose his or her rule on such a territory there was room for national variation, and thus a variety of laws of colonization. Here, Tomlins argues that a specifically English discourse around the legality of appropriation by construction (or improvement) evolved, which he traces through the various charters from that of the Virginia Company in 1607 down to William Penn’s charter of 1681, and including various charters of the Newfoundland proprietary colonies of the seventeenth century.9 Conspicuously absent from Tomlins’s inventory is the longest-lived of all the English charters, that of the Hudson’s Bay Company (HBC) granted in 1670, to which we will return later.
Tomlins’s central insight here is expressed as follows:
[While] Spanish colonizing was a narrative of the conquest of peoples living in civil societies, [the] narrative of English colonizing is one that progressively banishes existing inhabitants to the margins of its consciousness by denying their civic capacity, their sociability. In the English narrative the indigenous become brutes, in whose place the colonizer first desires, then actively imagines, an empty landscape to populate anew.10
This new narrative ‘elevated land over people as the primary object of the colonizer’s attention. It rearranged both the legalities and the institutional mechanisms of colonizing accordingly’.11
For Tomlins this narrative became particularly potent after the near-destruction of Jamestown, Virginia in 1622, when one third of the inhabitants were killed in a surprise attack by members of the Powhatan Confederacy. Far from bemoaning the attack, Edward Waterhouse, a spokesman for the Virginia Company, rejoiced in it, observing:
[It] must needs bee for the good of the Plantation.… [O]ur hands which before were tied with gentlenesse and faire visage, are now set at liberty by the treacherous violence of the Sauages.… So that we… may now by right of Warre, and law of Nations, invade the Country, and destroy them who sought to destroy us: whereby wee shall enjoy their cultivated places, turning the laborious Mattocke into the Victorious Sword… and possessing the fruits of others’ labours.12
And in retaliation for the attack, the English indeed gave no quarter.13 After this event, ‘indigenous populations suddenly begin to appear not as inhabitants of the territories in question, with whom some form of mutual accommodation might be reached, but as deadly alien enemies threatening [the settlers] from beyond’.14
The charters, in Tomlins’s account, both reflect and reinforce the holy trinity of manning, planting and keeping that defines native peoples as exterior to the great work of improvement. In spite of this unifying theme, however, the charters also speak to localism and helped foster a sense of local identity and indeed ‘rights’. For Tomlins, these became increasingly important as loci of resistance over the course of the seventeenth century, as the imperial centre became more interested in directing its overseas possessions, subjecting them to a uniform hierarchy of rule, and integrating them into a transatlantic economic and political system that would advance metropolitan interests.15 As Elizabeth Mancke observes, the rights and privileges referred to in the charters ‘became customary practices and were integral to colonists’ understandings of their constitutions, which, in the concluding narratives, were violated by the Ministry and Parliament and then compounded by the king who did not stop the usurpations’.16
The ‘law of colonization’ from a northern perspective
In spite of the phrase ‘English America’ in its title, and occasional references to Nova Scotia and Newfoundland, Freedom Bound is clearly about that portion of English America that will go on to become the United States of America. Nonetheless, it is worth asking whether its broad themes can shed light on the Canadian experience, in particular the role of law in the colonizing experience and the encounter with native peoples.
In all of the northern colonies of the seventeenth century that did not become part of the US – Newfoundland, Rupert’s Land, Acadia and Canada (Quebec) – company charters and proprietorships played an important role in the colonizing process, but they have seldom been compared even to each other, much less to those of the more southerly colonies of the eastern seaboard. Nor has it been argued – for good reason – that they played the key role assigned to them in developing the constitutional consciousness of the thirteen colonies.
Although the formal law of colonizing and some of its instruments may have been the same throughout northern and eastern America, two key factors ensured that the colonial enterprise took a different turn in the northern colonies. Those factors, themselves interrelated, are: the nature of the resource endowment, and the demographics of settlers and native peoples.17 The colonies south of Maine were from the beginning agricultural colonies and competed for space with the native people who relied on both agriculture and hunting. This competition became particularly intense after the Great Migration of the 1630s, when 20,000 mainly English migrants arrived in New England, leading to a population of some 250,000, most of them native-born, in the eastern seaboard colonies by 1700. Possession of land was important not only as a marker of control vis-à-vis other European powers, but also for the livelihood of the settlers themselves. Wars with native Americans ensued almost immediately upon contact, and continued for over 250 years as the settlement frontier moved west and south.
The resource endowments of the northern English colonies were not agricultural and the law of colonizing, although similar on the surface, was very different in practice. Consider Newfoundland, whose economy was based on the incredibly productive cod fishery. By the 1660s the total catch was about 200,000 tonnes a season – as much as was taken in the early twentieth century.18 Whether this resource should be controlled by means of a colony of settlement remained the key question of Newfoundland history for centuries. The will to colonize was constantly contested in Britain itself by the English west-country merchants, who supported a migratory fishery and opposed any kind of a permanent settlement on the island, fearing potential competitors. This stance led to persistent tensions with adventurers such as Sir George Calvert (later Lord Baltimore) and Sir David Kirke, who thought that the island’s fish and other resources could be more effectively exploited by settlement. Securing a charter to part of Newfoundland, as Calvert did to his ‘colony of Avalon’ in 1623, or to all of the island, as Kirke did in 1637, was no guarantee that the claims of the west-country merchants would be silenced or go unheeded by the Privy Council.
The nature of the resource strongly influenced the emergence and nature of property rights in Newfoundland and, to some extent, the relations of fishers and planters with the native people, the Beothuk, in ways very different from the patterns of the more southerly agricultural colonies. Fish are an open-access resource that cannot be enclosed. The migratory fishery did not need full-fledged private property to carry on its work. It needed only access to coastal land on which to build wooden flakes to dry the fish.19 The competition among the hundreds of ships arriving in May for convenient spaces on the shore had been dealt with by a tradition that the captain of the first ship to arrive in a particular harbour became the ‘fishing admiral’ for the season, with power to adjudicate disputes over access to shore sites by those ships arriving subsequently. This tradition was already referred to as ‘ancient’ in the 1634 Western Charter that formalized it; the charter itself, issued by the Privy Council in the name of the Crown, affirmed the privileges of west country fishermen to use the shore of Newfoundland to prosecute the migratory fishery.20
These tensions would continue through the seventeenth century and into the eighteenth, but without any form of government being provided for the plantation as a whole. Sir David Kirke, who had managed to get a charter for ‘that whole continent Island and Region aforesaid, commonly knowne by the name of Newfoundland’ in 1637 that superceded Calvert’s after the latter’s death, did exercise a quasi-manorial jurisdiction around the settlement at Ferryland in the mid seventeenth century.21 But in spite of being named the ‘right Lord and Proprietor of Newfoundland’ in the charter, he had neither the resources nor the motivation to extend his authority to the whole English shore (meaning the eastern shore of the Avalon peninsula), much less beyond. And the Western Charter specifically forbade him from exercising any authority over the migrant fishers.
Moreover, population growth was slow: the eastern shore had about 1,700 inhabitants in 1679. Uncertainty about the source of legitimate authority at Ferryland after Kirke’s death in 1654 reinforced the little plantation’s vulnerability to metropolitan manoeuvrings. At times the west-country lobby almost succeeded in having the settlers removed altogether. In 1675 the Privy Council instructed naval commodore Sir John Berry to remove all the permanent inhabitants of Newfoundland. On arrival, Berry formed the view that this was neither just nor practical, and ignored his orders.22