Mr. BARRINGTON–WARD : When your Lordships adjourned, I was just dealing with the case of Mr. Coghlan, and I do not want to go back to that. Your Lordships have it in mind now.
But there are one or two other cases which I had selected as illustrating the proposition that the administration of Newfoundland had occupied, so far as the nature of the country would admit it, the whole of that coast, assuming that our definition of that term is accurate.
Viscount HALDANE : Have you any cases dealing with inland ?
Mr. BARRINGTON–WARD : Yes, my Lord, I think there is rather an interesting case. There is one interesting document to which I should like to call your Lordships' attention, because it deals with furring, and that is the case of a certain Lieutenant John Cartwright, and I will give your Lordships the reference to it at once. It is in Volume III, at page 1142. That is rather an interesting case, because I think it gives you a view of what the country was like as long ago as the year 1774.
Sir THOMAS WARRINGTON : Is that the date of this document ?
Mr. BARRINGTON–WARD : Yes, my Lord ; and I will tell your Lordship how I trace it. The date is the 23rd May, 1774, and the way in which I am able to trace that date is that that letter was enclosed with another letter.
Viscount HALADANE : It refers to the Labrador Fisheries.
Mr. BARRINGTON–WARD : Yes, my Lord. Lieutenant Cartwright was the brother of a certain George Cartwright whose name also appears in these papers, and he obviously was on such terms that he could communicate with Lord Dartmouth at home. This was sent to Lord Dartmouth in a letter of that date, and the reference for the purpose of fixing that is Volume V, page 2250. He says this : “ When Labrador first came into our hands and the arrangements we had spoken of took place, it still required some consideration and prudence to be able to turn this acquisition to the best account. Having already as extensive a fishery in Newfoundland, as we could well occupy, it was not immediately apparent by what means we should avail ourselves of those of Labrador. We there found a few Canadians scattered along the coast in the Gulph of St. Lawrence, and along the Straits of Belleisle, who carried on the seal and salmon fisheries ; and we understood besides,
that the french had occasionally fished for cod from a few particular parts. The prospect of meeting other salmon streams along the unoccupied parts of the coast was encouraging, and the sealing posts, affording specimens of a fishery which depended not upon the accident of there being freshwater rivers, and in all probability abounding more in proportion as we should advance towards the north, promised no inconsiderable returns to the adventurer ; but the informations concerning the cod fishery, carried with them no reasons for believing it was worth while to quit the certainties of Newfoundland, for the hopes of better things in Labrador.”
Viscount HALDANE : That is to the North, along the coast ?
Mr. BARRINGTON–WARD : Yes, my Lord.
Viscount HALDANE : It is not up the rivers.
Mr. BARRINGTON–WARD : Of course, it does refer to the rivers, does it not, my Lord ? Then it goes on : “ Besides, there was ample room in Newfoundland for its improvement.” Then at the bottom of the page he says : “ The protection of the King's Ships in 1764 and 1765, together with that spirit of enterprise which distinguishes the commercial part of the british nation, induced some few to make trial of the cod fishery about Chatteau Bay.” Then at the top of page 1143 it says : “ Thus, then, it was now thought to be seen how we might best begin to avail ourselves of Labrador ; by making its cod fishery an appendage to that of Newfoundland ; and the seal and salmon branches subordinate again to the cod fishery ; and Henley Harbour, defended by Chateau Island, was approved of as a convenient port for mooring the ships and manufacturing the fish.” Then he explains what they did there, and you will find, just a little bit lower down, at line 15 : “ The country likewise produced ”—“ the country,” your Lordships will notice —“ The country likewise produced good samples of fur, besides which there was a traffick opened with the Eskimaux Indians ”—your Lordships see that that is inland—“ and some reason to look for the establishment of a Whale–fishery ; so that, upon the whole, the merchants promised themselves, from appearances, no inconsiderable advantages, as soon as they should be able to effect proper settlements, and be put in a capacity of reaping the benefit of their labours by suitable assistance and protection from government.” I submit that that is a very valuable passage.
The LORD CHANCELLOR : It is the first time that you get a reference to a mile from high–water mark. I see that at line 35.
Mr. BARRINGTON–WARD : Yes, my Lord. “ Experience hath taught us, on the contrary, that the seal fishery is the grand staple of Labrador ; every successive season showing its great importance more and more ; and that the next in rank and consequence is the salmon
fishery, as abounding to a considerable degree, and not being subject to much uncertainty ; while the cod fishery is so expensive, and so precarious, except at a few particular stations westward of Chateau, as to make it the height of rashness for anyone to practice it, unless it be in a subordinate way, as employment for the labourers during the intervals in their other occupations.” Then, this is where I think, as the Lord Chancellor pointed out a moment ago, the idea of the mile must come from ; I do not know where else it does come from.
These are proposals for legislation ; “ That all the land backwards through the whole extent of every sealing post, to the distance of one mile from highwater mark, shall be accounted as part of such post and belong in full right to the proprietor ; except that a right be reserved of cutting wood for the use of His Majesty's Ships or Forts ; and a general right of free passage to all through every uninclosed part of the same ; and excepting also that a right be reserved to any cod–fisher of erecting upon and adjoining to the same; every building and work necessary in the cod fishery ; and of cutting wood sufficient for such buildings and works upon the shore, and for fuel ; but nothing more. But the Seal–fisher being the proprietor of the soil, that his necessary works and erections shall not be encroached upon, or interfered with, by those of the cod–fisher, nor he be any way obstructed by him in the execution of any part of his business.”
Then he deals with salmon fisheries inland at line 14, and he says : “ Every distinct river, rivulet, and brook shall be accounted a separate salmon fishery ; and the inferior shall never be esteemed dependent upon the superior except united in the possession and real occupancy of the same proprietor ; so that the minor streams, if unoccupied, may be taken possession of by another, notwithstanding the principal river into which they empty themselves shall be in the hands of a proprietor. But then the proprietors of these lesser streams shall confine themselves in fishing to the same ; and the proprietors of the rivers into which they flow shall not by nets or works of any kind block up the mouths of these lesser streams so as to prevent the salmon from running into the same ; but shall leave a clear passage into them wide enough at least for a skiff to row in and out with room for her oars on each side.” I submit there, that as early as 1774, this, gentlemen, is clearly contemplating an entry into the heart of the country up the various rivers.
Viscount HALDANE : It does not say anything about the heart of the country.
Mr. BARRINGTON–WARD: No, my Lord ; that was my gloss on the effect of that passage. But there is no limitation there as to the user of any rivers in Labrador. I do not think there is anything else on that page that I need read. I am very anxious, as your Lordships will quite understand, not to read anything which is unnecessary ; but will your Lordships kindly look at page 1145, line 10, where it says ; “ That every proprietor of land under the sanction of any of the fore–
2 U 2
going clauses shall have the sole right of durring, hunting, and shooting within the same.Second, That in the unappropriated part of the Country, the Furrier shall have a permanent property in all death–fall paths, pit falls, traps and snares; in all tilts, huts, and other works necessary or useful to a furrier which he hath made, raised or constructed, on condition of continuing to occupy the same.”
Sir THOMAS WARRINGTON: Did anything come of this ?
Mr. BARRINGTON–WARD : No, my Lord.
Sir THOMAS WARRINGTON : This is merely a suggestion by a private person ?
Mr. BARRINGTON–WARD : Yes, my Lord, but I am only using it as an expression of the views of a gentleman who was living there as long ago as 1774, which I venture to submit to the Board seems to show that even in that rather early time they were contemplating a general user—that is all—a general user of this somewhat unknown and rather wild country, for furring, fishing and the like.
Now, my Lords, I think I can shorten this part of the matter, if your Lordships will permit me just to give you a reference to two other acts of occupation, without going into them, because they are very long, and are not easy to summarise. Perhaps I may just give your Lordship the two references.
Viscount HALDANE : This is very inconclusive. This is a memorial, and it does not appear what was done with it, or what it was.
Mr. BARRINGTON–WARD : Does your Lordship mean the one which I have just read ?
Viscount HALDANE : Yes.
Mr. BARRINGTON–WARD : That was a suggestion by this Lieutenant to Lord Dartmouth as to how this country of Labrador should be administered.
Viscount HALDANE : How the coast should be administered ?
Mr. BARRINGTON–WARD : No, my Lord, the country.
Viscount HALDANE : Well, the coast.
Mr. BARRINGTON–WARD : I am saying, the country.
Viscount HALDANE: There is nothing that goes beyond the coast.
Mr. BARRINGTON–WARD : I was treating the matter as showing that the contemporary view of the extent of the territory was that it was not limited to any narrow limits on the sea shore.
The LORD CHANCELLOR : Certainly his suggestions go up the rivers.
Mr. BARRINGTON–WARD : If your Lordship pleases ; that is the purpose for which I used it. I think I have made good the proposition that settlers were not discouraged in Labrador, provided that they complied with the Fishery Act.
Sir THOMAS WARRINGTON : Except that it contemplated going up the rivers, there is nothing else in it except in Line 11, where he talks about furring.
Mr. BARRINGTON–WARD : Yes, my Lord.
Sir THOMAS WARRINGTON : He talks about marking beaver houses. I suppose that means the erections of the beavers themselves up the rivers, does it not ?
Mr. BARRINGTON–WARD : Yes, my Lord.
Mr. BARRINGTON–WARD : I have read that passage on page 1145, line 12 ; that is the right of furring, hunting and shooting. I am submitting that that country not being in any way developed, being entirely wild, that is the only sort of occupation and user that could possibly take place.
Lord SUMNER : I suppose you may say a right of furring naturally implies a pretty wide range of country in which to lay your traps ; the fur–bearing animals are not so plentiful as all that.
Mr. BARRINGTON–WARD : I am obliged, my Lord ; that is the view I am endeavouring to submit to the Board, that, in answer to the suggestion made in the Canadian Case, that we are limited to a mile, I am submitting we are not limited by any metes and bounds except the natural bounds for which my learned leader has contended this morning.
The LORD CHANCELLOR : That was not sent to the Governor of Labrador.
Mr. BARRINGTON–WARD : That was sent home to Lord Dartmouth, His Majesty's Secretary of State for the American Department. For what it is worth, it is evidence of the position at that date. May I give your Lordships the reference to Cartwright & Pinson (it is not a legal case ; they are the gentlemen concerned in the matter) at page 1059, Volume III. It is rather long, and I do not want to go