Concepts of Native Peoples and Property Rights in Early Canadian Poetry

Our collective and textual environments in Canada are at present heavily saturated with the discourse of property values and rights. Almost everywhere one looks, whether in Toronto or Montreal, Halifax or Vancouver, there are real estate signs and advertisements, and almost every day the local and national newspapers carry a story about latest native land claim or the most recent fluctuations in property values. There is now talk of enshrining property rights in the Charter. In the midst of this property-obsessed environment, many of us dip at least from time to time into a literature that is coeval with the establishment in Canada of property rights as most of us understand them. Yet few readers and critics of Canadian writing have paused to consider the interplay among literary activity and property acquisition that begins in the seventeenth century with the assimilation to Britain of parts of what would become Canada and rises to its first crescendo in the early nineteenth century with immigration on a massive scale to central and eastern Canada. “Like the old Romans, and some few others,” wrote Thomas Carlyle in Past and Present, the […] Epic Poem [of the British] is written on the Earth’s surface: England her Mark!” (1966 [1843]: 151). My subject in this essay is the reflections of that “Epic Poem,”—that British signature – on the portion of Earth’s surface that came to be called Canada, and in the process, became the host and inspiration for that subspecies of English writing that became to be known as early as 1806  as “Canadian poetry” (Bentley 1990). In addressing the “fundamental puzzle” of property rights —“How do things come to be owned”( Rose 1985: 73) — I will consider three conceptions of ownership and explore their reflections in a selection of early Canadian poems, poems which underpin their treatment of British property rights in Canada with supportive notions of Canada’s native peoples. The three conceptions of ownership with which I shall be dealing are: (1) the right of first discovery; (2) the right of first possession; and (3) the right of annexation through labour.

     On May 2, 1670, the Charter of the Hudson’s Bay Company was proclaimed by “CHARLES THE SECOND [b]y grace of God King of England Scotland France and Ireland defender of the faith etc.”(Charters…1931: 3). Legitimizing a scheme originating with two disaffected French traders, Radisson and Groseilliers, the Charter gave “the Governor and Company of Adventurers of England tradeing into the Hudson’s Bay” exclusive commercial rights in the vast area of land drained by rivers emptying into Hudson Bay. It also christened this vast area “Rupert’s Land” and made “the said Governor and Company” its “true and absolute Lordes and Proprietors…”(Charters…193: 4, 11-12). Among the key terms in these residentially feudal proceedings in the possessive phrase “Hudson’s Bay,” for it was because Henry Hudson, and English navigator in the service of James I, was in 1610-11 the first European explorer to enter the bay which was given his name, that sixty years later Charles II could  assign Rupert’s Land to a company of English traders and explorers. In appropriating  Hudson Bay and Rupert’s Land through the right of first discovery and then assigning it to the Hudson’s Bay Company on the basis of that right, Charles II was merely operating according to a long-standing convention among imperial powers of western Europe. A succinct account of the origin and purpose of the right of first discovery is given by the great American jurist John Marshall in the 1832 aboriginal rights case of Worcester v. State of Georgia: “The great maritime powers of Europe discovered and visited different parts of [North America] at nearly the same time… To avoid bloody conflicts, which might terminate disastrously for all, it was necessary for the nations of Europe to establish some principle which all could acknowledged and which would decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, ‘that discovery gave title to the government by those subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession.’” (qtd. In Calder et al. 1973: 197).  With the “creation of monopolies” around Hudson Bay, the Gulf of St.Lawrence, and elsewhere, adds Olive P. Dickason in The Laws of Nations and the New World, “such regions […] became exclusive to the European power […] concerned” (Green and Dickason 1989: 230).

     Thus, when he proclaimed the Hudson’s Bay Company Charter in 1670, Charles II assumed the understanding and agreement of what might be called a consensual community — a European audience who knew the rules of the game of first discovery and were prepared to abide by them. Almost needless to say, the native peoples living in and around Hudson Bay were not part of the relevant consensual community¹ — indeed, they are only just now becoming forcibly so through highly visible political demonstrations such as those at Oka and South Moresby Island and, less spectacularly, through the Canadian legal system. In the 1980 Federal courts case of Baker Lake et al. v. Minister of Indian Affairs and Northern Development et al., for example, the Canadian government argued that the Charter of 1670 and subsequent legislation had abrogated any rights that the Inuit may have had in lands in the Northwest Territories. This argument was not entirely  accepted by the presiding judge, however, for while maintaining the subordination of native rights in land to Parliament, Justice Mahoney acknowledged the existence of an “aboriginal title” that was “not extinguished by the grant of title to the Hudson’s Bay  Company, [or] by surrender or by legislation expressly extinguishing title”(193).² The Baker Lake case is but one instance of the complex and , at times, bitter struggle that is now taking place in Canada over lands subsumed by European discovery, royal proclamation and the resultant re-naming or “Englishing” without which they could scarcely be included in the “Epic Poem” of the British Empire.

     The fact that the imperial nations of western Europe generally accepted and respected the right of first discovery did not prevent them from engaging in military disputes and commercial rivalries, especially on the contentious peripheries of areas claimed by other European powers. It was not until the Treaty of Utrecht in 1713 that Britain secured from France and other signatories to the treaty uncontested sovereignty over the territory around Hudson Bay (as well as over Nova Scotia and Newfoundland).  Even after the Treaty of Utrecht, the Hudson’s Bay  Company  faced challenges to its rights in Rupert’s Land from two quarters: from rival traders in England who sought to discredit the Company and disprize it of its monopolies by demonstrating its failure to undertake the exploratory activities  specified in its Charter(see Robson 1965 [1752]); and from rival traders from New France who sought to establish trading depots and partners on the peripheries of the area rather cavalierly claimed for the Company by Charles II. It was during this acquisitive period prior to 1713 that the earliest first-hand  account of Canada in English poetry was written by a man who was acutely aware of possession as a necessary supplement to the right of first discovery in the establishment of property ownership. That man was Henry Kelsey, a servant of the Hudson’s Bay Company who is generally credited it being the first European to set his foot and make his mark on the Canadian prairies.

     In the spring of 1691, probably on “a bend of the Saskatchewan River about twelve miles below [what is now] The Pas, Manitoba” (Davies 1968: 309), Kelsey planted a large wooden “Cross” at a place that he had earlier christened “ deerings point” after Sir Edward Dering, the deputy governor of the Hudson’s Bay Company (Kelsey 1929: 1-4). Kelsey later used this event to conclude a verse journal about his “Journey” in 1690-91 from York Factory on Hudson Bay to the Canadian plains:

At deerings point after the frost

I set up there a Certain Cross

In token of my being there

Cut out on it the date of year

And Likewise for me to veryfie the same

Added to it my master sir Edward deerings name….

The Inland Country of Good report hath been

By Indians but by English not yet seen

Therefore I on my Journey did not stay

But making all the hast I could upon our way

Got on the borders of the Stone Indian Country

I took possession on the tenth Instant July

And for my masters I speaking for them all

This neck of land I deerings point did call…

In these lines, as throughout Kelsey’s verse journal (though not in his prose account of 1691-92), the language of the native peoples is silenced, and both the Indians themselves (the “Assinae poets [Assinipwatug] of the Hudson’s Bay Company’s officers…[of the] Time” [Kenney 1929: 47n.]) and their Country” are systematically Englished, most obviously in the case of “deerings point.” It might be an exaggeration to say that only after “Wa-pas-kwa-yaw”(Whillans 1955: 55-56) has become known and iambically scannable as “deerings point” can it enter a regular decasyllabic couplet, take its place harmoniously in the “Epic Poem” of the British Empire. Nevertheless, “This neck of land I deerings point did call” is notable not only for the poeticizing flourish of its delayed verb (a device also evident earlier in the passage) but also for its metrical regularity and smoothness, a quality that sets it off from its surroundings as a point of special importance for both Kelsey and his Company. Greenblatt could be writing of Kelsey or, indeed, Mackenzie when he observes of Columbus that in taking possession of the New World for Spain he sought to evoke an  aesthetic response  in the service of a legitimation process,” “to conjoin the most resonant legal ritual he [could] summon up with the most resonant emotion” (199: 74, 81).⁴ Nowhere more clearly than in his self-signalizing description of his supreme moment of discovery and appropriations does Kelsey cast himself as an author of the “Epic Poem” of Empire.

     To most people of British origin who emigrated to eastern and central Canada, or were born there, in the years surrounding Mackenzie’s journeys to the Arctic and Pacific Oceans, the principle of first discovery was probably as remote as Baker Lake or the Straits of Juan de Fuca. For them, possession of a piece of property was not established by a proclamation of presence in vermilion paint on a rock face. Nor could it necessarily be secured or insured through the acquisition of a deed or title to land, for, as many learned to their dismay, these were not always issued and not always honoured. What, then, counted as possession for farmers in the Annapolis Valley or settlers on the North Shore of Lake Erie? The answer lies in what Richard Schlatter in Private Property: the History of an Idea has called “the standard bourgeois theory” (1951: 151) of ownership: the theory set out most famously and influentially by John Locke in section twenty-five of the second of his Two Treatises of Government. According to Locke, ownership of land devolves to the first person who “hath mixed his labour with [it],… and joined to it something that is his own,” and, hence, “remove[d] [it] from the common state that nature hath placed it in…”(1965 [1690]: 134). Or as David Hume states the theory in An Inquiry Concerning the Principles of Morals: “where a man bestows labor and industry upon any object which before belonged to nobody, as in cutting down and shaping a tree, in cultivating a field, etc., the alteration which he produces causes a relation between him and the object, and naturally engages us to annex it to him by the new relationship of property” (1957 [1751]: 125-26n.).⁵ In the current atmosphere of contention and uncertainty about native people’s property rights and land claims, it is inevitable that the statement “which before belonged to nobody” should leap out from this passage like one of the more obstreperous villains in a medieval romance. Nor would this effect have failed to register itself on a thoughtful settler in late eighteenth– or nineteenth-century Canada, for the statement “which before belonged to nobody” raises the question of what counts as first possession or original occupation in areas previously inhabited by native peoples — areas that could not be said unequivocally to have “belonged to nobody.”

     Fortunately for the peace of mind of many early Canadians, there had arisen almost simultaneously in Britain and France at the middle of the eighteenth century, a theory of social development that neatly categorized Canada’s Native peoples as among those who had no rights in property because, in Locke’s terms, they had not “mixed their labour’ with the land and, hence, “removed it from the state of nature.” Formulated and promulgated in Britain by Adam Smith and in France by A.R.J. Turgot, the four-stages theory was, as Ronald L. Meek has shown, “a very common and very important ingredient in Enlightenment thought in the social sciences from 1750 to 1800”(1976: 230), and found its way into such widely read and influential works as William Robertson’s History of America, William Blackstone’s Commentaries on the Laws of England, and Henry James Pye’s The progress of Refinement. According to the theory, all societies develop through four distinct stages, each defined by its mode of subsistence: (1) a savage stage based on hunting and gathering; (2) a barbaric (or pastoral) stage based on herding; (3) an agricultural stage based on farming; and (4) a commercial stage based on trading. Of these four stages the first two were held — in the buzz words of the day — to be “rough’ and “rude,” and the second two ‘polished” and “refined,” with the great leap forward occurring with the agricultural stage when in Blackstone’s words, “tillage” gave rise to the right to “permanent property in the soil” (1809, v 2: 7-8). Out of the “separate property in lands” that comes with agriculture, argues Blackstone, comes the “civil society” necessary to “ensure” property rights, and, with civil society, comes the “long train of inseparable concomitants” that make up a polite and polished civilization, from “laws […] and the public exercise of religious duties” to the “leisure” required “to cultivate the human mind, to invent useful arts, and to lay the foundations of science.”

     Now the crux of the four-stages theory as regards property rights is that the native peoples were regarded by proponents of the theory as ‘savages” or, at best “barbarians,” and, therefore, as nomads: unsettled and therefore relatively uncivilized people whose relationship with the land was only transitory and sporadic.⁶ Because nomads did not mix their labour with the land, they did not own it. As William Cronon has shown in Changes in the Land: Indians, Colonists, and the Ecology of New England(1983: 56; Rose 1985 : 86n.), the only lands recognized by Europeans as the property of the naïve peoples was land under cultivation. And as J. Mackay reveals in Quebec Hill (1988 [1797], early British visitors and emigrants to Lower Canada were either genuinely or willfully blind to the fact that in their homelands the Hurons who settled in Quebec after the diaspora of 1659 had been practicing agriculture for thousands of years (Trigger, Children). “They are now so far civilized as to cultivate their lands for their subsistence,” writes Mackay of the Hurons at Lorette; “yet many of the still retain, not a little, of the indolent roving disposition of their ancestors”(1988 [1797]: 15n.). In Abrams Plains, published in Quebec eight years earlier in 1789, Thomas Cary makes a similar observation, describing the agricultural Hurons of Lorette as an “half-tamed race” who are well placed “To learn the manners of polish’d town” (1986 [1789]: 14). To Cary, it is the duty and burden of the white man to cultivate simultaneously the physical and moral landscapes of Canada. “How blest the task, to tame the savage soil…!,” he exclaims,

But oh! a task of more exalted kind,

To arts of peace, to tame the savage mind;

The thirst of blood, in human breasts, to shame,

To wrest, from barb’rous vice, fair virtue’s name;

Bid tomahawks to ploughshares yield the sway,

And skalping-knives to pruning hooks give way;

In Circe’s glass bid moderation reign,

And moral virtues humanize the plain! (1986 [1789]: 4)

By treating mental culture as an aspect of agriculture, Cary implies that the native peoples exist in a state of wild and fallen nature like animals, experiencing much the same emotions and drives as four-legged hunters and predators. Mackay implies much the same thing when he observes in a footnote to Quebec Hill that during the winter the “savages [of Lower Canada] range through the woods…much as usual” (1988 [1797]: 15n.). Of course, there are only two things to be done with such wild creatures: either they must be “tamed” and domesticated or they must be driven into the forest where they can do no harm to European settlers. In the first instance — and this is Cary’s solution—they would accrue the characteristics of “polish’d” societies, including rights in property; in the second, they would remain nomadic hunters without an investment in the land and, thus, with no rights in it.

     This latter solution is the one favoured by most early Canadian poems that deal with the European settlement, be they set in Nova Scotia, like Oliver Goldsmith’s The rising village (1989 [1825, 1834]), or Upper Canada, like Alexander McLachlans’s The Emigrant (1991[1861]). Goldsmith’s view that the “wandering savages” of Nova Scotia were little better than the ‘beasts of prey’ with whom they shared the “woods and wilds of Acadia”(1985: 8-9) probably derives in part at least from Thomas Chandler Haliburton, who, in turn, follows William Robertson in viewing North American Indian culture as the “rudest” and “least civilized” (1825: v. 2: 30-244) that could  be conceived. In his General Description of Nova Scotia, Haliburton does little more than plagiarize Robertson’s History of America when he describes “savages” as “wandering tribes, who depend upon hunting and fishing for subsistence” and , thus, “nearly resemble […] animals” (Haliburton 1825: 46, 52). Since Robertson’s view of the character traits of “savages” dictated directly or indirectly the way in which Goldsmith and many others perceived the native peoples, it is worth placing them briefly on view. Apparently on the assumption that the mentality of hunters is shaped by their mode of subsistence and nomadic way of life, Robertson lists such qualities as “perseverance” and “a spirit of independence” among their positive characteristics; however, he also dwells at great length on their vengeful and cruel disposition, which he sees as the salient feature of all savage societies. “[T]he most frequent or the most powerful motive of the incessant hostilities among rude nations,” asserts Robertson, is “the passion of revenge, which rages with such violence in the breast of savages, that  earnestness to gratify it may be considered as the distinguishing characteristic of men in their uncivilized stage…The desire for revenge is communicated from breast to breast and soon  kindles into rage,” which, in turn issues in great acts of cruelty (1825, v. 2: 233). Similar views are expressed by most of the travel writers upon whom Canada’s early poets relied for information about the native peoples. A “diabolical lust for revenge […] is the predominant passion in the breast of every individual in every tribe” (1956 [1781], v. 2: 328-42) wrote Jonathan Carver, the principal source of Abram’s Plains. “[A] word in the slightest degree insulting will kindle a flame in their breast that can only be extinguished by the blood of the offending party, and they will traverse forests for hundreds of miles […] to gratify their revenge” (1968 [1807], v. 2: 264-65), added Isaac Weld, a principal source for both The Rising Village and The Emigrant. No wonder a note of relief is heard in both theses poems when, after brief skirmishes with or near the settlers in the Halifax and Toronto areas, the “wandering Indian[s] turn another way” (Goldsmith 1985: 10-11) and are “seen and heard no more”(McLachlan 1991 [1861]: 53). The best place for nomadic hunters driven by revenge is the distant forests where, as is the case in “The Indian Battle” episode in The Emigrant, their violence and cruelty can be vented on one another rather than on white settlers.

     Further support for the notion that Canada’s native peoples were nomads with no investment or rights in the land over which they roamed in search of food and , occasionally, revenge was provided by another theory that was current through the colonial period and beyond because, in the words of Cornwall Bayley in a footnote to Canada, it appeared highly “agreeable” both to scientific “reason” and to Christian “Revelation” (1990 [1806]: 10n.). This was the theory, traceable to the Spanish Jesuit Joseph de Acosta (Huddlestone), that  the native peoples of the Americas were descendants of Noah who had migrated across Asia after the confusion of tongues”(Bayley 1990 [1806]: 24) described in Genesis 11 and, from Asia, had come to the New World by way of an isthmus — the Bering bridge —between present-day Russia and Alaska. Of great importance in reconciling “the designs of God’ with the four-stages theory was that Bruce G. Trigger calls “degenerationism” or the “theory of degeneration” (1987: 51, 406):  the idea that —to quote Pierre de Charlevoix — as Noah’s progeny “separate[d]  and […] spread themselves […] over the whole earth”(1761, v. I: 47) they became degenerate in proportion to their distance in space and time from their point of origin. (Incidentally, the application of the same theory to the other passengers on the ark led to the idea, prevalent among emigrants to Canada until well into the nineteenth century, that by comparison with their European counterparts, the animals of North America were degenerate — hence McLachlan’s contention that the birds of Ontario are songless [1991 [1861]: 29] and Catherine Parr Traill’s assertions that, on the contrary, the birds of Canada are no more songless than the flowers of the country are odourless [1836: 91].) As Bayley explain in the long Note “on the subject of the origin of native Americans” that he cribbed from Carver and appended to Canada, the degeneration of peoples far removed from the cradle of civilization in Mesopotamia took place in all spheres, from “manners and customs” to language and religion:

Superstition would naturally creep into their religious ceremonies; the climate and local circumstances of the regions they colonized would alter not only their manner of living, but even their bodily appearance — The loss of literature and education would corrupt their language — and  the want of proper materials and opportunities would occasion that decay of arts and sciences which must finally terminate in barbarity.

                                                                                           (1990 [1806]: 24)

As this passage intimates, environment was frequently added to distance and isolation from civilized origins as a factor determining the degenerate and savage — or barbaric — nature of the native peoples of North America. No wonder Canada’s native peoples were in a state of extreme degeneracy. Among other things, they had been exposed for centuries to climate in which, as Frances Brooke has Arabella Fermor observe in The History of Emily Montague, ‘Tis sufficient employment […] to contrive how to preserve an existence.” Not only does the cold “bring […] on a sort of stupefaction,” writes Arabella, but it also “suspends the very powers of understanding.” “Genius will never mount high.” she concludes “where the faculties of mind are benumbed for half the year” (1985 [1769]: 103). Since even Milton counted the “cold/Climate” of England as a factor hostile to the creation of epic poetry (1957, 9: 41-47), few could wonder for long why Canada’s native peoples had no written literature or history, no music of any complexity or charm, and — in the words oft the Swedish traveller Peter Kalm — no “built towns and houses, [no] artificial fortifications, [no] high towers and pillars and such like” (1772, v. 2: 276-77) — in short, no culture or property of any real value or consequence.

     It should now be evident that in late eighteenth- and early nineteenth-century Canada, a number of theories and preconceptions operated together to generate and sustain the view that the native peoples of North America were animalistic nomads who could hardly be expected in their natural state to understand the concept of rights in land, let alone to possess or exercise such rights. The very fact that property rights and native peoples are nowhere brought into conjunction in such poems as Abram’s Plains, Quebec Hill, and Canada may in itself be an indication that such a conjunction, though not unthinkable, was not for may years after the conquest a topic for serious reflection or anxiety in either Britain or British North America. To take just one more example: in Adam Hood Burwell’s Talbot Road, a settlement poem published in The Niagara Spectator in 1818, the only mention of the native peoples is contained in a passing reference to the ability of Commerce to “tame[…] the hardy savage, rough and rude…” (1991 [1818]: 21). Nowhere in his lengthy account of the founding and development of the Talbot Settlement on the north shore of Lake Erie does Burwell refer to the existence, let alone the rights, of native peoples in the immediate or adjacent areas. Rather, he treats Colonel Talbot and his first settlers as the original occupiers and possessors of the area between Niagara Falls to the east, Amherstberg to the west, and Westminster Township (near present-day London) to the north — the area frequented by the Ojibwa for thousands of years.

     Indeed, any special interest that Talbot Road holds from the perspective of property rights resides in the unmistakably sexual colouring lent by Burwell to what Hume, following Locke, calls “occupation or first possession …[as] the foundation of property” (1957 [1751]: 125n.). Throughout the poem, both Colonel Talbot and Burwell’s narrator view the settlement of Upper Canada as a process of stripping naked a female nature and reclothing her in a more elaborate and attractive dress. “Earth shall resign the burden of her breast, / And wear a richer, variegated vest” decides Talbot early in the poem, and later the narrator confirms that we have beheld [nature’s] pristine form display’d ,/ And seen the changeful hand ‘of Talbot and his settlers” prepare, / A robe, more pleasing, for her[…] to wear …”(Burwell 1991 [1818]: 8, 19). Carole Fabricant could be commenting on these and other passages in Talbot Road when she connects the eighteenth-century habit of viewing nature as a maiden in need of sartorial assistance, as a goddess alternately being stripped bare and clothed in finery,” with a desire to “redress” or “cancel out the ill effects of the Fall” by recreating a “Paradisial existence” in a corner of the past-lapsarian world (1979: 126-30). But Burwell’s nature is not merely undressed and reclothed; she is twice “pierc’d (8-9)—twice occupied, first by Talbot himself and then by his first settler — as if to imply that she has been taken in marriage by both men and, as was the case at the time, become their property. There may be some “masculine fantasy” in this aspect of Talbot Road, and perhaps also some sexual pathology, but here seems to be no anxiety about antecedent or competing native property rights. No native lover preceded Talbot on the north shore of Lake Erie, and no sordid divorce involving one seems likely, particularly since, by 1818, the Talbot settlers had so mixed their labour with the land that, in Lockean terms, their rights in it were beyond dispute.

     Remote in time as they now are, the conceptions of native peoples and property rights that pertained in Canada during the Colonial period have persisted to the present day, particularly in that most conservative of disciplines, the law. In the Baker Lake case, a good deal of historical, anthropological, and contemporary evidence was adduced to demonstrate the “[a]side from a handful employed in the settlement [at Baker Lake],  the Inuit of the […] area were nomads less than a quarter century ago” (1980: 206-7).⁷ In an eerie echo of the view of four-stages theorists such as Roberson that native peoples of North America had achieved only a rudimentary level of social organization, “Proof of Aboriginal Title” in the Baker Lake case turned to a considerable extent on whether the “Inuit and their ancestors were member of an organized society…” — a society, that is, with rights comparable to those of advanced (post-agricultural) “states or nations” (1980: 226, 219). The view that “the Inuit’s nomadic ways, relationship to the land and social and political order [had not] changed from prehistoric times until their settlement”(1980: 208) was weighed against opinions expressed by previous courts in Canada, the United states and elsewhere, with special emphasis on Calder et al v. Attorney-General of British Columbia, a seminal case of 1973 in which Nishga Indian Tribal Council advanced the claim that “the aboriginals or Indian title to certain lands had never been lawfully extinguished”(1973: 145). “[T]he fact is that when the settlers came [to British Columbia], the Indians were there, organized as societies and occupying the land as their forefathers had done for centuries. This is what Indian title means…” runs a crucial passage from the Calder case (1973: 328) that is quoted in Baker Lake (1980: 224). Also brought forward from Calder (1973: 383)is Chief Justice Marshall’s opinion in the seminal American case of Worcester v. State of Georgia (1832): “America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations […] having distinct institutions of their own  and governing themselves by their own laws. It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered which annulled the pre-existing rights of its ancient possessor”(qtd. In Baker Lake 1980: 225).  Supporting Marshall’s enlightened arguments in the Baker Lake case is Justice Baldwin’s opinion in Mitchel v. U.S (1935) that the Indians’ “hunting grounds were as much in their actual possessions as the cleared fields of the whites…[T]heir right of occupancy is […]as sacred as the fee simple of the whites”(qtd. In Baker Lake: 228-229.)⁸ Precisely to the extent that they are concessive and balanced, these opinions point of the conflict that lies at the heart of many land disputes involving native peoples in North America and, no less in the present than in previous centuries, provoke the fear and anger of many whites. As Justice Mahoney states it: “[t]he coexistence of an aboriginal title with the estate of the ordinary private land holder is […] an absurdity. The communal right of aborigines to occupy it cannot be reconciled with the right of [the] private owner to peaceful enjoyment of his land” (Baker Lake 233).

     In Canadian poetry, the first sign of misgiving regarding native rights in land occupied by Europeans occurs in The Rising Village, which was begun by Goldsmith in 1823 and first published in England in 1825.⁹ The locus of this anxiety is an explicit treatment and dismissal of native property rights whose origins seem to lie in the poem’s textual, biographical and historical contexts. The most prominent of these contexts is the early chapter in A General History of Nova Scotia in which Haliburton not only furnished Goldsmith with this theme of “[t]he origin and growth of a modern Colony,” but also provides several examples of the “great outrages” visited upon “the solitary and peaceable settlers” in the Maritimes by the “savage” and “ferocious” Micmacs and Richibuctos. In the vicinity of Halifax particularly, Haliburton observes, “[t]hese savages[…] defended with obstinacy a territory they held from nature, and it was not until after very great losses, that the English drove them out of their former hunting grounds”(1825: 47). “[H]ideous yells announce the murderous band, / Whose bloody footsteps desolate the land, “run the equivalent line in The Rising Village, “And  now, behold! [the] settler’s bold aggressors fly, / To seek their prey beneath some other sky; / Resign the haunts they can maintain no more…”(10-13). Goldsmith was, of course, much less learned in the law than the future Judge Haliburton , but he had enough legal knowledge to appreciate the force of the phrase “territory […] held from nature” in his compatriot’s account of the native resistance to white settlement in Nova Scotia. Such knowledge can be claimed with confidence because, according to his Autobiography, one of the legal texts that Goldsmith read during a brief stint in his teens as a clerk in a “Lawyer’s Office” in Halifax was none other than William Blackstone’s Commentaries on the Laws of England (1985 [1825]: 34). As well as being grounded in the four-stages (and in this respect alone an important influence on The Rising Village), Blackstone’s Commentaries Contain a highly enlightened discussion of property rights that may have been a seminal influence on Haliburton and Goldsmith, and a source of anxiety for the latter.

     The relevant portion of Commentaries is the section entitled “Of Property, in General” in the second volume, where Blackstone draws a distinction between the primeval natural right” of “wandering” peoples to the land that they use or need for subsistence and the “idea of a more permanent property in the soil, “ which, as observed earlier was” introduced and established” through the “regular connexion and consequence” that came with “the art of agriculture” (1809, v. 2: 7). Blackstone goes on to draw an explicit contrast between the natural law under which “American [Indian] nations” ad the “first Europeans”—  the savages and barbarians of Europe — held “transient” rights to property and the post-agricultural notion of “permanent property,” and he expresses deep misgivings about the practice of “sending colonies” into “countries already peopled, and driving out or massacring the innocent and defenceless native…” “How far such conduct [is]consonant to nature, to reason, or to Christianity,” he writes, “deserves well to be considered by those who have rendered their names immortal by thus civilizing mankind.”(1809, v. 2: 7)

     As Haliburton’s concessive and Blackstonian reference to “territories […] held from nature” by the Micmacs indicates, the question of the right of settlers to land was still being considered — or, perhaps, beginning to be reconsidered – in Nova Scotia in the early eighteen twenties. So, too, was it in the United States, as witness the landmark case of Johnson v. M’Intosh, which was decided in the same year —  1823 — as the publication of Haliburton’s General Description and the writing of The Rising Village. In a decision that controversial in its day, and which is still cited in American and , occasionally, Canadian land disputes involving native peoples, Chief Justice Marshall held that, while “exclusive title” to a huge area to the northwest of the Ohio River is what is now Illinois and Indiana had passed under the “fundamental principle “ of  “discovery” from its “original inhabitants” to the European nation that first discovered it, the Indians remained “the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion…”(qtd. in Guerin v. The Queen 378). As Chief Justice Dickson writes in the seminal supreme court of Canada case of Guerin v. The Queen (which acknowledges native rights in land), Marshall “was […] of the opinion that the rights of Indians in the lands they traditionally occupied prior to European colonization both predated and survived the claims to sovereignty made by various European nations in the territories of the North American Continent (377-78).  In essence Marshall recognized that, in Chief Justice Dickson’s words, “the Indians’ rights in the land were […] diminished; but their rights of occupancy and possession remained unaffected” (378). Only “by purchase or by conquest” could the “Indian right of occupancy “ be extinguished by the Crown (Johnson v. M’Intosh qtd. in Calder 151).

     Goldsmith’s response to the vexed and vexing issue of native land claims in The Rising Village seems aimed at reassuring his white readers. In the first place, he implies that the area of Nova Scotia that was colonized some “fifty summers” earlier by emigrants from Britain was at that time completely uninhabited: when the first “lonely settler” built his “home” “amid a wilderness of trees,” Goldsmith writes, “not a voice upon his ear intrude[d]; /… [and] solemn silence all the waste pervaded…”(1989 [1825, 1834]: 8-9). In similar attempts to obviate the perception of a conflict between “aboriginal  rights” and “white conceptions of ownership and possession of […] land” (Monkman 1981:133) both Alexander McLachlan and Isabella Valancy Crawford send their settlers into areas where, in the words of Malcolm’s Katie, the animals have not seen “the plume or bow / Of the red hunter” (Crawford 1987 [1884]: 9). To further reassure his white readers, Goldsmith  emphasizes that, since the land settled by Europeans in Nova Scotia was an uninhabited wilderness, the newcomers to what Blackstone calls “countries already peopled” were the “wandering savages” who suddenly appeared on the scene:

Behold the savage tribes in wildest strain,

Approach with death and terror in their train;

No longer silence o’er the forest reigns,

No longer stillness now her power retains;

But hideous yells announce the murderous band,

Whose bloody footsteps desolate the land…

                           (Goldsmith 1989 [1825, 1834]: 10-11)

He hears them oft in sternest mood maintain,

Their right to rule the mountain and the plain;

He hears them doom the white man’s instant death,

Shrinks from the sentence, while he gasps for breath,

Them, rousing with one effort all his might,

Darts from his hut, and saves himself in flight.

                           (Goldsmith 1989 [1825, 1834]: 10-11)

“[A] man’s home is his castle , et domus sua cuique est tutissimum refugium” (1669: 162) wrote the great English jurist and common lawyer Sir Edward Coke in a passage that has become proverbial, and may well have been known directly to Goldsmith in Coke’s Institutes, the first volume of which he read alongside Blackstone’s Commentaries during his brief apprenticeship as a lawyer.¹⁰

     Lest there be any doubt that in driving the settler out of his house and off his land, the native people have burned a fat volume of legal principles, Goldsmith proceeds to emphasize the extent to which the settler has removed his land from the common state of nature by mixing his labour with it. Before the arrival of the native peoples the settler had cleared the land of trees and planted it with “golden corn.” After their departure he “retains possession of the soil” through “patient firmness and industrious toil” (The Rising Village:10-13). In case the reader has failed to grasp the Lockean point, Goldsmith adds a note to the effect that “[t]he process of clearing land, though simple, is attended with great deal of labour”(The Rising village: 10-11n.). Since The Rising Village is a poem and not a brief, it supplements legal points with affective strategies which find an appropriate gloss in Hume’s supplement to Locke’s theory of ownership. “Perhaps, too, private humanity towards the possessor concurs” with  the legal arguments, observes Hume, “and engages us to leave with him what he has acquired b his seat and labour, and what he has flattered himself in the constant enjoyment of “(1957 [1751]: 126n.). It is no small irony that the native peoples, exiled form their traditional lands by the agricultural and commercial activities of the white colonists of Nova Scotia were in a parallel position to those same colonists whose exile “beyond the Western main” as describe in The Deserted Village provided the Canadian Goldsmith with the inspiration for his chronicle of settler heroism and achievement. The difference, of course, is that, while the plight of his fellow whites who were “forced […] to quit their native plains” (The Rising Village: 5) excited Goldsmith’s “private humanity,” the plight of the native peoples in similar circumstances did not . To Goldsmith and many others in colonial Canada, whites were the only finders and keepers, losers and weepers, who really mattered.

     More sympathetic to the native peoples of Nova Scotia was Joseph Howe, a “conservative reformer” (Beck 1972: 370) who in 1832-33 celebrated the past achievements and current prospect of his beloved province in a poem that was not published until the year after his death in 1873. Looking back in Acadia to the time before Nova Scotia’s “wild beauties were by [agri-]culture graced” (1989: 9), Howe sees the Micmac Indians, “dusty savage[s]” whom he treats in a manner consistent with his liberal conservatism. Both a skilful hunter who “stray’d” through the wilderness uttering “death notes” and bedew[ing] the flowers” with “blood,” and the “Lord of all the loveliness his eye survey’d” who “bow[s] to “God […] but stoop[s] to none beside”(9), Howe’s typical Micmac is by turns the ignoble savage of the four-stages theory and the noble savage of post-Rousseauian Romanticism. Since Howe, like Goldsmith, relied heavily on Haliburton for his view of the native peoples, it is scarcely surprising that he also introduces them in close conjunction with the “wild animals “ that they hunt and “nearly resemble.” Inhabiting the “ancient groves” of Nova Scotia with the “Cariboo” and the “moose,” Howe’s Micmac is animalistic by association and mode of subsistence. “[M]ark his agile figure as he leaps / From crag to crag, and still his footing keeps, / For fast before him flies the desp’rate deer […] His hardy limbs are equal to the race…”(1989: 9-10). Yet  Howe also shows “the forest’s dusky child” living a life that is passionately in tune with the natural world. As he stands over a “fallen tenant of the wild” — the deer that he has just slain — he gazes over the surrounding terrain with a “glow of pride” that is both justified and ominous for the sense of ownership that he “proudly feels”  for the “beauties” of Nova Scotia is likened to that of the “am’rous Othello” for “[t]he budding beauties of Venetia’s maid….” (1989: 10). Neither callous nor sentimental about the fact that the “dusky Savage” is doomed, like the deer, to become a “fallen tenant” of Nova Scotia, Howe views the Micmacs with pity and fear as the admirable yet flawed victims of a tragic destiny and a superior culture.

     In the chapter “Of Property in General” in his Epitome of the Laws of Nova Scotia, a Blackstonian compilation printed by Howe in 1832-33, the Halifax lawyer Beamish Murdoch includes a discussion of the “right of European nations to dispossess the aboriginal inhabitants of America, of the territories of the new world” that could well have been in Howe’s mind when he wrote Acadia. Confining his remarks to “these Northern regions” where Britain and France took possession, not of “agricultural and comparatively civilized countries,” but of “an uncultivated soil…filled with wild animals and hunters almost  as wild,” Murdoch argues that “[i]t might with almost as much justice be said the land belonged to the bears and the wild cats, the moose or the cariboo, that ranged over it in quest of food, as to the thin and scattered tribes of men, who were alternately destroying each other or attacking the beasts of the forest. I do no think that they themselves had nay idea of property (of an exclusive nature) in the soil, before their intercourse with Europeans” (1832-33, v. 2: 56-57). More inclined than Murdoch to credit the Micmacs with “an idea of property,” Howe nevertheless depicts them as nomadic hunter-warriors whose relationship with the land is usufructuary rather than “exclusive.” The “sylvan city” to which the hunter returns is a “Camp,” a temporary dwelling typical of a culture at the savage and most “rude” (Howe 1989: 11) stage of a social development. The fact that Howe’s subsequent descriptions of the Indian camp and an Indian war canoe (1989: 11-12) echo those of Weld (1968 [1807], v. 2: 239-40, 294-300) and John Lambert (who visited “detachments of Micmacs…and other small tribes” during one of three annual visits to Quebec [1816, 1: 353-85]) suggests that these two travel writers were also among the channels through which the four-stages theory passed to Acadia. Lambert includes Robertson among the principal sources of the chapter on the “Aborigines of North America” in his Travels and, though sympathetic to the native peoples, characterizes them as “half-civilized, half-savage” hunters and fishers who, for the most part, lead an “indolent,” “erratic,” and “wandering life” (1816, 2: 354-65).

     Nowhere is Acadia more clearly imprinted with the four-stages theory and its implications for the rights in land than in Howe’s summary remarks about the state of native peoples of Nova Scotia prior to the arrival of John Cabot in 1497:

For ages thus, the Micmac trod our soil,

The chase his pastime, war his only toil,

Till o’er the main, the adventurous Briton steer’d,

And in the wild, his sylvan dwelling rear’d,

With heart of steel, a thousand perils met,

And won the land his children tread on yet. (Howe 1989: 13)

Not only does this passage imply that, as nomadic hunter-warriors, the Micmacs had little, if any, rights in the “soil:” it also canvasses several legal principles — first discovery, consummation by possession, and conquest — under which Nova Scotia has become “our soil.” As Haliburton states the case in his Historical and Statistical Account of Nova Scotia (1829): “[t]he discovery of Cabot, the formal possession taken by Sir Humphrey [Gilbert], and the actual residence of Sir John Gilbert [in Maine], are considered, by the English, as the foundations of the right and title of the crown of England, not only to the territory of Newfoundland, and the Fishery on its banks, but to the whole of its possessions in North America”(1: 8; quoted in Howe 1989: 50). Haliburton’s account of the defeat of the native peoples by English settlers in the Halifax area in his General Description is relevant here, as is Murdoch’s discussion of the principles of discovery, possession, and conquest in his Epitome (1832-33, 2: 55-56). As germane to Howe’s treatment of the Micmacs as to his ensuing description f the Acadians is an excerpt from Murdoch’s commentary “On the nature of the tenures of land in Nova Scotia” which broaches a topic related to — it might almost be said , bordering upon — the present discussion: “[t]he lands in the province are all either the property of the crown, or held by titles derived from it, the rights of the Acadian settlers having been extinguished by the Provincial Act of 1759, […] which recites in its preamble that this province always belonged of right to the Crown of England both by priority of discovery and ancient possession, […] that the French King by the Treaty of Utrecht in 1713, had ceded to Queen Anne, the province and all rights therein…”(1832-33, 2: 76).

     In the Calder case of 1973, Justice Hall observed that during the colonial period in Canada “understanding of the customs and culture of our original people was rudimentary and incomplete […] [T]hey were thought to be who without cohesion, laws or culture, in effect a subhuman species”(169). To substantiate his point, Hall quoted Marshall in Johnson v. M’Intosh as stating that “the tribes of Indians inhabiting the country were fierce savages, whose occupation was war…” And as if to demonstrate the longevity of the four-stages theory, he also quoted Justice Davey’s statement in the judgment under appeal in 1973 that the Indians  of mainland British Columbia “were undoubtedly at the time of settlement a very primitive people with few of the institutions of civilized society, and none at all  of our notions of private property” (1973:170). A position similar to that of Justice Davey was taken by the judge whose decision was appealed in  Simon v. The Queen, a 1985 case turning on the “right to hunt” of a Micmac Indian in an area of Nova Scotia covered by a Treaty of 1752. “[T]he Indians were never regarded as an independent power,” wrote Justice Patterson; “[a] civilized nation first discovering a country  of uncivilized people or savages held such country as its own until such time as by treaty it was transferred to some other civilized nation. The savages’ rights of sovereignty, even of ownership, were never recognized” (qtd. in Simon v. The Queen 399). Commenting on this opinion Chief Justice Dickson wrote hat “the language used by Patterson J. […] reflects the biases and prejudices of another era in our history . such language is no longer acceptable in Canadian aw and indeed is inconsistent with a growing sensitivity to native rights in Canada”(Simon v. The Queen: 399). Further evidence of such frowning sensitivity in the courses can be found in R. V. Sioui, a 1990 case involving the rights of a “Huron band on the Lorette Indian reserve” as defined by a treaty of 1760 (1025)/ there, justice Lamer argued that “a fundamentally different viewpoint”— the viewpoint of the native peoples — has to be taken into account in disputes involving aboriginal right, and urged the adoption of “[a] liberal generous attitude, heedful of historical fact” in approach chi such disputes(1056, 1035-36). Different viewpoints, different societies, different and, perhaps, in commensurable conceptions of land and possession: such area the fundamental differences that must be faced and, somehow, resolved if Canada is to archive within its borders the consensual community without which the unity of the country is surely not possible. This essay offers no answers to the urgent questions that now face all Canadian sm but it is offered in the conviction that there is at least some value in attempting to understand the legacy of the past that is still very much with us in Acadian writing and Canadian life.”

Notes

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