Mr. BARRINGTON–WARD : It is page 251 in Volume I, my Lord.
Viscount FINLAY : This is in the Statute ?
Mr. BARRINGTON–WARD : Yes, in the Statute itself. It says : “ And be it further enacted by the Authority aforesaid, That (according to the ancient Custom there used) ”—so that it had previously been there for some considerable time—“ every such Fishing Ship from England, Wales, or Berwick, of such Fishermen as shall, from and after the said twenty–fifth day of March ”—that was in 1685, I think ; that is the 25 March that is referred to—“ first enter any Harbour or Creek in Newfoundland, in Behalf of his Ship, shall be Admiral of the said Harbour or Creek during that Fishing Season, and from that Time shall reserve to himself only so much Beech or Flakes, or both, as are needful for the Number of such Boats as he shall there use.” You see that that is the privilege for being the first comer, so as to make him bestir himself.
Viscount HALDANE : It says that the ship is to be the “ Admiral.” That is a curious expression.
Mr. BARRINGTON–WARD : Yes, my Lord, and there are things which are still more curious. Even in those days titles were pleasant, and a merchantman, going out and finding himself the Admiral for the season, was not at all likely to be displeased, and I dare say that it might be taken as a little compliment to be a full admiral for, at any rate, the summer season.
Viscount HALDANE : I think it was merely so as to put him under the jurisdiction of the Commander in Chief out there.
Mr. BARRINGTON–WARD : Yes. Your Lordship will see that these various admirals to whom I am just going to refer had a certain limited jurisdiction, with a right of appeal to a captain of His Majesty's ships.
The LORD CHANCELLOR : What proposition are you leading up to now?
Mr. BARRINGTON–WARD : I thought that your Lordships ought to have before you the principle which my learned friend, Sir John Simon, has fully conceded, that the purpose of these arrangements in Newfoundland was to provide seamen or marines for His Majesty's Navy. If I have sufficiently stated that, I will not go any further with it ; but my point is that that was not the end of it ; there was a great deal more than that. My learned friend, Sir John Simon, pointed out this morning the difference between the Commissions and the Instructions.
The LORD CHANCELLOR : I remember all that, and about setting up the Courts, and about the Moravians, and so on ; but for what purpose are you reading this?
Mr. BARRINGTON–WARD : I thought your Lordships ought to have it before you, as your Lordships' attention had not been called to it before. But if your Lordships have it in mind, I think it does not matter, except perhaps the last Section. The second man who came out was called a Vice Admiral, and the third man was called a Rear Admiral, and they all had a light of appeal in cases of dispute.
Viscount HALDANE : Is there any section that you want to refer to?
Mr. BARRINGTON–WARD : The last Section to which I desire to call attention is the one on page 256, because that shows that even in Newfoundland, to which alone this Act applies—
The LORD CHANCELLOR : Yes, of course.
Mr. BARRINGTON–WARD : Governor Palliser got himself into some difficulties, and I think he was actually impleaded in the Court of King's Bench before Lord Mansfield from exercising powers under this Act in Labrador.
The importance of the last section is this : will your Lordships kindly look at page 256, line no. 6, where it says : “‘ And whereas some doubt has arisen, whether Oil, Blubber, and Fins, taken and imported by the Company of Merchants of London trading to Greenland, are not liable to the said Duty ; ’ Be it therefore enacted by the Authority aforesaid, That all Whale Fins, Oil, and Blubber, taken and imported by the Ships of the Company of Merchants of London trading to Greenland, were not, nor are intended to be charged or made liable to the Duty of twelve Pence for every twenty Shillings Value of Goods imported, charged in the aforesaid Acts, but that the Whale Fins, Oil, and Blubber, taken and imported as aforesaid ”—now, my Lords, these are the words : “ and also all Whale Fins, Oil, and Blubber of English Fishing, taken in the Seas of Newfoundland, or any of the Seas belonging to any of his Majesty's Plantations or Colonies, and imported into this Kingdom by any of his Majesty's subjects in English Shipping, were, and are hereby declared to be free of the said Duties, as all Fish of English taking.” The point about that, of course, is that when the Canadian contention is put forward that this Act simply related to cod only, and to nothing else, I venture to submit to the Board that it is quite plain that they had in contemplation whales as well as a subject of industry, and that involves a sedentary fishery.
The LORD CHANCELLOR : Whales do not go far inland.
Mr. BARRINGTON–WARD: No, my Lord, but I am going a little further with it.
Lord SUMNER : What do you mean by a sedentary fishery for whales ?
Mr. BARRINGTON–WARD : I mean that people would have to remain behind there in order to catch whales at the appropriate season of the year.
Lord SUMNER : I understand that there may be a station ashore for the purpose of drying out the blubber, but I should have thought that you followed the whales.
Mr. BARRINGTON–WARD : Yes, my Lord, but what I mean is that it is rather different from the cod fishery, in which you come out in ships convoyed by ships of war, and you have a season, whatever it is, perhaps from May to September, and then return. This, on the other hand, involves a more or less continuous presence in the place. I will not adventure myself as an expert in the matter, but I only make that comment in calling attention to this Act, not because anything really turns upon it in the decision of this case, but because I thought your Lordships ought to have before you a matter which is constantly referred to in the few documents which I am going to read.
Sir Hugh Palliser, as I ventured to remind your Lordships a few minutes ago, described this as “ that excellent Act—”
Viscount HALDANE : What we rather want to get is the large principles of the thing.
Mr. BARRINGTON–WARD : If I might illustrate from the cases the principles from which I am contending, my submission is this, that both in Newfoundland and in Labrador the Governor was Governor in the fullest sense of the term that the nature of those territories would admit.
Viscount HALDANE : He was not, because he had not the authority of an ordinary Governor's commission.
Mr. BARRINGTON–WARD : Yes, my Lord, he had a commission.
Viscount HALDANE : I said the ordinary Governor's Commission.
Mr. BARRINGTON–WARD : I do not know quite what your Lordship means by that.
Viscount HALDANE : Peace, order and good government is not given to him.
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Mr. BARRINGTON–WARD : I know that, my Lord, but he had a Commission, and he had jurisdiction, in my submission, over the whole of the territory, in the case of Labrador so far as it was known, of course ; and the instances which we have collected show you that jurisdiction was exercised and show in my submission conclusively that it did not extend to any strip of the coast at all, but it extended, so far as the nature of the country admitted, over the whole of the country. There was jurisdiction over the trappers and the hunters, and there was jurisdiction over the salmon fisheries, and complete control, both in Newfoundland and in Labrador.
Viscount HALDANE : There are no words to give him jurisdiction over the trappers.
Mr. BARRINGTON–WARD : My submission, my Lord, is that what was done is a fair—I will not say “ test,” but it is proper to be referred to as showing what the framers of the Commission meant.
Viscount HALDANE : It is fair to say that it was only very loose, and whatever he elected to do he was not prohibited from doing.
Mr. BARRINGTON–WARD : I am sure your Lordships will realise that I am going to observe economy of time, and I am going to endeavour not to go into any matters which are not material. Now will your Lordships just look at one or two illustrations of the proposition for which I am contending.
The first one that I wish to put before your Lordships is in the fourth volume, at page 1961 ; and your Lordships will observe that that is as early as 1719. This is valuable as showing that the Home Government were consulted about these matters. That is a case in which Mr. Skeffington, who was an inhabitant of Indian Bay, which is in Newfoundland, petitioned the King, setting forth : “ That your Petitioner hath for about Twelve Years past Improved the Salmon Fishery in two or three Rivers or Brooks to the Northward of Cape Bonavista ; and hath at very great Expense and Labour near fforty[sic] miles up the Country ”—
The LORD CHANCELLOR : This is Newfoundland, not Labrador.
Mr. BARRINGTON–WARD : Yes, my Lord this is Newfoundland ; I am starting with that, because one has to bear in mind that the conditions prevailing in both these territories were substantially the same. It says: “ And hath at very great Expense and Labour near fforty[sic] miles up the Country cleared Lands of the wood, and the said Rivers or Brooks”—I need not read any more of that ; but he most humbly prays : “ That he may be incouraged and protected in carrying
on the said Fishery according to the Intention of the Act made in the 10 & 11th of King William the Third for Incouraging the Fishery of Newfoundland.” Then he asks : “ That he may use occupy and enjoy all such houses, Stages and other works made by him for taking and Curing of Salmon.”—It is not only cod, but even as early as that, it is salmon.
Then that was referred to the Lords Commissioners for Trade and Plantations, and on the next page there is a letter from a gentleman of the name of Richard West, who has the letters “ L. S.” underneath his name, which I think must mean Legal Secretary, because I do not think it can refer to a seal. It says this : “ In obedience to your Lordships commands, I have perused and considered the Annexed Petition of George Skeffington, and humbly certify to your Lordships, that I am of Opinion that the prayer of it is not Inconsistent with the Act made in the Tenth and Eleventh year of King William, for encouraging the trade to Newfoundland.”
Then your Lordships see that on page 1963 they set out what Mr. Skeffington had represented, and then they say at line 21 : “ We have upon this Occasion discoursed with the Petitioner and others who have appeared in his behalf, and take Leave to observe that the Places where he has begun this Fishery are between Bonavista and Cape John in the North East Part of Newfoundland, which Places have never been frequented by any Fishing Ships from this Kingdom. As the Petitioner is the first who has attempted to sett up a Salmon Fishery there, and as the Prayer of his Petition is no ways inconsistent with the Act for encouraging the Trade to Newfoundland, We humbly offer that His Majesty be graciously pleased to grant the Petitioner for the Term of 21 Years or such other time as His Majesty shall think fit the Sole Fishery for Salmon in the Places called Fresh Water Bay, Ragged Harbour, Gander Bay and Dog Creek between Cape Bonavista and Cape John, where he has already built Houses and other Conveniences for that Purpose, And that he have Liberty to cut Boards and Timber for his own Use in the Parts adjacent to those Rivers Brooks or Creeks for the said Fishery only.”
Viscount HALDANE : All that that means is that in Newfoundland there was nothing in his Petition considered to be inconsistent—
Mr. BARRINGTON–WARD :—with the Act ? Yes, my Lord. Now will your Lordships look at the distance, because what applied to Newfoundland must apply to Labrador. There is no distinction between the two.
The LORD CHANCELLOR : It depends upon what Labrador is. Have you got any similar case in Labrador ?
Mr. BARRINGTON–WARD : Yes, my Lord ; I am coming to that next.