Lordship ground or material for holding that my learned friend is not entitled to the blue line. The significance of that, if I am right, is enormous. It makes a complete breach in the case against me.[sic] because the moment that my learned friend has to depart from the height of land, his problem, like mine, is the ascertainment of the depth of the coast. It not being the height of land, where else is it ? Of course, my learned friend may have much larger ideas as to what is meant by “ the coast,” as a second part of his case. We have not heard that yet but we shall hear it in reply, possibly. But, if it is not the height of land, my learned friend, has to find a meaning for “ the coast ” also, and he and I are in pari casu in the problem what is the true extent of coast which was placed under the care and inspection of the Governor of Newfoundland, and included in Captain Graves' Commission as a new element.
Now I should like to pass to a rather different topic, but, I venture to think, an instructive one. Why is it that in 1763, this critical year, when the Government was considering the disposal of these territories and these fishery rights, they selected the Governor of Newfoundland as the person to whom they would entrust whatever they did entrust to him ? My suggestion to your Lordships has been this, that although in certain of the later Acts—and, indeed, early on, because I think it is in the Proclamation too—you find language used which connotes territorial jurisdiction, the primary intention of the whole thing was the regulation of the fisheries. I am not going back upon all that I have said with regard to that matter, but I want now to suggest to your Lordships why it was that the Governor of Newfoundland was the person selected for this task, whatever that task was.
Now, my Lords, what was the state of Newfoundland at this time ? It is very interesting to consider it. The State of Newfoundland at that time, I venture to think, justified completely the wisdom of the selection of the Governor of Newfoundland as the custodian of the coast of Labrador and its fishery interests. It was perfectly natural that Captain Graves should be selected for this task. It would have been quite unnatural to select him as Governor of Indian territories and of large areas extending far inland.
The history of Newfoundland is a very peculiar one, and much of it is told with a considerable degree of accuracy in the printed papers for Newfoundland itself. We have a historical sketch in Volume IV at pages 1667 to 1690, for which I claim no inspiration, but which professes to be based upon documents, and your Lordships will take it with all reserve as a summary of the historical position. But I have some contemporary material here which can put before your Lordships. There are a good many papers, which are of such value as your Lordships may be pleased to attach to them. We have a very interesting description in Volume IV at pages 1847, of the kind of Government that went on in Newfoundland.
Lord WARRINGTON : That is an extract from an Act.
Mr. MACMILLAN : It is headed: “ Extract from ‘ An examination of the Act of Parliament relative to the trade and government of the American Colonies,’” and it is by James Abercromby.
Viscount FINLAY: Is that the one that begins: “ Having thus stated the different and particular constitutions of Government” ?
Mr. MACMILLAN : Yes, my Lord, that is exactly it. This is interesting, because it says : “ This treatise was prepared for the use of Pelham, First Lord of the Treasury, and Granville, President of the Council, and contains an elaborate survey of the charter and constitution of each of those Colonies.” Therefore, this account of the Colony was prepared by some person who had a special duty to investigate it. He was writing in May of 1752, and he describes the Newfoundland Government thus: “ Having thus stated the different and particular constitutions of Government in all these Colonies, For as to that of Newfoundland tho. Rank'd amongst the Best, and first, In point of Property belonging to this Kingdom, from the Discovery thereof by Cabot, for Henry the 7th in the year 1497; Yet the object of that Government relates to a kind of Police amongst Fisher Men, and to them only.”
Then in the same volume, at page 1908, you have a picturesque description of it in the evidence given by one William Knox, before a Committee appointed to enquire into the state of trade to Newfoundland in the year 1703. This gentleman says : “ That the Island of Newfoundland had been considered, all former Times, as a great English Ship moored near the Banks during the Fishing Season, for the Convenience of the English Fishermen. The Governor was considered as the Ship's Captain, and all those who were concerned in the Fishery Business, as his Crew, and subject to Naval Discipline while there, and expected to return to England when the Season was over.” Then it says : “ The English had then no Rivals,” and so on. There is a picturesque contemporary description of the sort of person that the Governor of Newfoundland was regarded as being.
Viscount FINLAY : It is impossible to take that as being a complete description. No doubt the fishery started it, but Newfoundland came to be a colony in every sense of the word.
Mr. MACMILLAN : Not at this time, my Lord.
Viscount FINLAY : It was coming to be that.
Mr. MACMILLAN : There were the most resolute efforts made to prevent it becoming a colony.
Sir JOHN SIMON : It was called a colony by Abercromby.
Mr. MACMILLAN: I shall give your Lordships the passages on that subject later on ; there is any number of them.
Viscount FINLAY : It is perfectly correct as regards the inception of it, but at what particular time it transcended the conception which is a mere fishing station, is a question of particular enquiry.
Mr. MACMILLAN : Yes, my Lord.
Viscount HALDANE : I think it was in eighteen–fifty—something, that it got its status. Was there not some Act ?
Mr. MACMILLAN : It was rather earlier than that, my Lord. I think it was in 1832 that it got a Representative Assembly.
Sir JOHN SIMON : That was not by Act of Parliament, I think.
Viscount FINLAY : But apart from representative government altogether, when did it become a settled community as distinguished from a mere fishing station ?
Mr. MACMILLAN : I cannot say, my Lord. It will be necessary to look at the historical account here.
Viscount FINLAY : That seems to be the point of this. Perhaps it is in the account that begins on page 1667.
Mr. MACMILLAN : Yes, my Lord.
Viscount HALDANE : It was a military and fishing establishment for some time.
Mr. MACMILLAN : May I just give your Lordships a reference which may help, which is page 1943. Here is a letter from the Earl of Bathurst addressed to the Attorney and Solicitor–General, from Downing Street, on the 4th of March, 1825. It says this : “ Gentlemen, You are aware that the Island of Newfoundland was long regarded merely as a Fishing Station, and that in order to prevent Colonization there, various provisions were made by Parliament to insure the Return of the Fishermen to England at the close of the Fishing season. In consequence of this Policy, the Island was for a great number of years destitute of all these civil Institutions which have been generally established in the other Colonial possessions of the Crown. There has never been any internal Legislature, nor until a comparative recent period, was there even a Court of Civil Justice. Indeed the peculiar system of Maritime Government, and Maritime Jurisdiction, which was so long maintained in Newfoundland, cannot be said to have been abolished before the Enactment of the Acts of the last Session of Parliament, 5 Geo. 4th C. 51, and 67.” I am not quite sure what year that was.
Sir JOHN SIMON : 1824.
Mr. MACMILLAN : 1824: So that in 1763, which was 60 years before this, the system was a peculiar system of Maritime Government. Nothing could be more authoritative than this, because this is a case for the Attorney and Solicitor–General on the very topic of the Acts of Parliament in force in Newfoundland.
Viscount HALDANE: That is in the case for the Lords.
Mr. MACMILLAN : It is a letter by Lord Bathurst addressed to the Attorney and Solicitor–General and dated the 4th of March 1825, my Lord; and he there describes the position, I think accurately, and answers the point put to me by Lord Finlay, when he says that down to to the last session the peculiar system of Maritime Government, and Maratime Jurisdiction, persisted.
Viscount FINLAY : That is directly on the point to which I was calling attention; but what is there said may be qualified by other parts of the ease.
Mr. MACMILLAN : Yes, my Lord, no doubt.
Viscount FINLAY : But that directly bears on the question.
Mr. MACMILLAN: Yes. my Lord ; and your Lordships will see that this is an independent document altogether, and it is not one which emanates from either of the parties here.
Now we have a somewhat racy witness on this subject in the Chief Justice of Newfoundland, who gives evidence in 1793 before the Committee appointed to enquire into the state of trade to Newfoundland. This is how he describes Newfoundland. I am not going to read very much from his evidence, but on page 1916 in Volume 4 there is a passage to which I should like to refer.
The LORD CHANCELLOR : This is Mr. Reeves.
Mr. MACMILLAN : Yes, my Lord, the Chief Justice of Newfoundland. I am going to pick out a sentence or two. In the fifth line on page 1916 he says : “ Notwithstanding the Increase of Inhabitants, Newfoundland is still nothing but a great Ship, dependent upon the Mother Country for every Thing they eat, drink, and wear, or for the Funds to procure them ; the Number of Inhabitants seems to me rather to increase this Dependence, inasmuch as their Necessities are thereby increased.”
My Lords, at the foot of that page after discussing questions about the inhabitants and what that resulted in he said : “ I take the Liberty of doubting whether this Reason was a good one. I never can be brought to think, but that placing a Governor there, whose Business it should be to prevent People settling, would have been a more probable Method of preventing it than continuing the present floating Government,
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which has no regular Authority to send Persons Home, and which departs from the Island just at the Time when the Seamen and Fishermen are hesitating whether they shall stay the Winter or not, and might be easily turned in their Resolution by the Apprehension of any Interposition from Authority. The Consequence has been, that Newfoundland has been peopled behind your Back ; you have abandoned it to be inhabited by any one who chooses, because you thought appointing a Governor would constitute a Colony and encourage Population. The Western Merchants, who found out the Reason that ‘ a Governor would make a Colony,’ knew perfectly well what they were about in urging it ; they knew that the Presence of a Governor would interfere with their Plan, winch was to go on without Inspection or Control ; they over reached those who heard them, and succeeded in the only object they proposed themselves.” In the meantime they, among the rest, proceeded to take all the advantages they could by adding to the Number of Residents every year. Just look at at this comment at line 19: “ The present floating Government seems to me so constituted, as to confer the least possible Advantage of a Government. The Governor's Appointment continues for Three years, the Term of his Station ; the Captains of the Squadron, who are his Surrogates, are often changed during the Station. It happens, therefore, that the Governor has One Year to see and learn, another to execute his Authority with some knowledge, and a Third Year with some little more.” I observe Mr. Burke's description of him is : “ A military gentleman living on board a Man–o–War.” That is quoted from Volume III, page 1139. That was the kind of person so far from being as General Murray or Governor Carleton was to be, a person on the spot, Governor in the ordinary sense with a territorial jurisdiction, the Governor of Newfoundland was a person who was only there from April till October. He lived on board a ship, and his period on his station was coincident with the period of the fishing. That was the kind of person who was seeking to be Governor of whatever was given into his hands by the Commission of 1763 on the coast of Labrador.
My Lords, I think I am entitled to say that the gentleman to whom the coast of Labrador was confided was a gentleman of certainly a maritime character. He lived on a ship ; he was a Captain ; he came to and fro during periods which coincided with the fishery and he escorted the ships out and saw them home with their catch at the end of the season. If it were desired to do what I humbly submit it was desired to do, to secure after 1760 (a) that the French should be prevented from encroaching beyond the terms of the Treaty in the matter of fishery in the Gulf of St. Lawrence on this coast and on the Islands, to ensure (a) that, and (b) on the other hand that our own fisheries on this coast were developed under proper control and some regulation the choice of the Governor of Newfoundland for such a task was dictated by every consideration of common sense and propriety. He was already engaged in controlling fisheries, his business really was that of a fisheries Patrol Officer of a somewhat exalted kind, and therefore he was a person eminently fitted to discharge the duty of being Governor of a fishing