Mr. MACMILLAN : That would be the Executive instrument.
Lord WARRINGTON : Yes, it looks rather as if the Proclamation was intended to be operative so far as Newfoundland was concerned.
Mr. MACMILLAN : I am much obliged, I had read it, I confess, grammatically as language of narrative rather, that is why I made perhaps what was rather a concession on my part in the early part of my case.
Lord WARRINGTON : It may not make any difference.
Mr. MACMILLAN : Well, it does explain all this, and all those references I have been reading since from Statutes and other documents where it always puts it on the Proclamation as the effective instrument are probably right. If this be the effective instrument, then my Lords will, I respectfully think, go this length with me that if that is all that Newfoundland effectively got it sounds much less impressive than the language of the Commission and contrasts in the most marked way with what was done for Quebec.
Now as to the documents preceding the framing of the Statute of 1809, fortunately there is not very much upon that. I will ask reference to Volume III, page 1194. It began to appear before very long that this annexation business had been over done so far as Quebec were concerned, and that the Lords of Trade had been right when they said that what you ought to withdraw from the care and inspection of the Governor of Newfoundland is that part of the coast from the River St. John to Cape Phillipeaux instead of which Parliament were more generous to Quebec and just handed the whole thing back, then the kind of trouble which had been anticipated arose and at page 1194 you will find a letter from Governor Holloway of Newfoundland to Lord Castlereagh suggesting re–annexation to Newfoundland. There was a difficulty about the American fishing boats resorting to the coast and a difficulty about the want of jurisdiction in Newfoundland, and vessels could not be sent up to Quebec. The last paragraph of the letter is all I need at the moment read : “ The Coast of Labrador was formerly annexed to this Government, and, I understand by my Papers from the Admiralty was removed to Quebec on account of a few Grants to Individuals, which extended but to a small District, I therefore humbly beg leave to suggest to your Lordship the advantage which will arise to His Majesty's Government by annexing the Coast of Labrador to this Command as the most effectual mode of suppressing this Illicit Trade which otherwise will prove a great evil to the Trade of Great Britain.”
Now this illicit trade is the illicit trade carried on by the Americans who carry “ Great quantities of provisions as well as other contraband articles which they sell and barter to the British merchants.” There must have been some kind of bootlegging going on at this time, and it was thought it would be better to transfer the coast of Labrador to this command, the Newfoundland Command, as an effectual mode of suppressing this
illicit trade by these ships that were infringing the customs regulations. That was the inception of the re–transfer.
Lord WARRINGTON: I see it was said the offence which was committed on the coast of Labrador was committed without the jurisdiction of the Government of Newfoundland.
Mr. MACMILLAN : Yes, that was the difficulty, Quebec was too far to go.
Lord WARRINGTON : They took an American vessel and they could not deal with it.
Mr. MACMILLAN : That was the trouble as I have already suggested. There are one or two other letters about it. Page 1198 refers to this same matter. It is a letter from Governor Holloway to Cottrell enclosing papers re seizure of American schooner “ Malinda,” and at line 20 it says : “ I therefore have to solicit their Lordships that the whole of these Papers may be laid before Sir William Scott, that he may see the hardship of the case, and decide thereon accordingly, in order that the Captors might be exonerated from any consequences that might be incurred by this unavoidable delay.” Now the trouble is the disposal of this vessel detected in carrying on an illicit trade. Then I do not think it is necessary to delay further, there is very little other material. The result was the Act of 1809.
Now one turns to it next at page 190. This of course as I started with saying is the beginning of the title of Newfoundland's present rights. One has merely been retracing matters back to the references ; now we come to the starting point in 1809, and not much is to be got out of this because after a recital it simply says it is expedient that the said coast of Labrador and the adjacent islands should be re–annexed to the Government of Newfoundland. We are all agreed it is the same subject–matter as we started from which is being handled here and being handed back : “ For re–annexing Part of the Coast of Labrador and the Islands lying on the said coast to the Government of Newfoundland.” Would my Lords look over the page at what is interesting as a matter of jurisdiction, section 15 of the Act of 1809 enacts : “ And be it further enacted, That it shall be lawful for the said Supreme Court of Judicature of the Island of Newfoundland to hold Plea of all Crimes and Misdemeanors committed, and of all suits and complaints of a civil nature arising within such parts of the Coast of Labrador from the River Saint John to Hudson's Streights and the said Island of Anticosti, and all other smaller Islands so re–annexed to the Governor of Newfoundland or on the Islands, Seas and Harbours, to which ships and vessels repair from the Parts of the Coasts of Labrador and the Island and Islands so re–annexed to the Government of Newfoundland for carrying on the Fishery, in the same manner as the said Supreme Court holds plea of crimes and misdemeanors committed.” Again you have the same
but a shorter recital of the purpose for which this whole thing was being handled, and it talks of the ships and vessels repairing from the parts of the Coast of Labrador, and the Islands so re–annexed to the Government of Newfoundland for carrying on the Fishery. The whole atmosphere of it again is preserved, the atmosphere of a Fishery, and fishery purposes. Then, my Lords, I may go now to the last statute which we have to consider, namely, the Act of 1825. The Act of 1825 has now to be considered and it is in the Red Volume at page 205, at page 211.
Sir JOHN SIMON : Pages 210 and 211, I think.
Mr. MACMILLAN : Pages 210 and 211. First of all, I am going to go through some of the preliminary documents. Would your Lordships first look at page 1218 in Volume III ?
This is a Memorandum submitted by James Irvine of Quebec on the 1st February 1821, and he discusses the position which had arisen from the Act of 1809. He is a Quebec person, and he is disturbed by the results of what has happened by the re–annexation of the coast of Labrador to Newfoundland, and at page 1221, after setting out his reasons, he says, “ For the reasons herein set forth, and others that might possibly be urged, it is hoped that the said Act, in so far as relates to the Coast and Islands in question may be repealed, and the said Territories re–annexed to the Province of Lower Canada, to which they appear naturally, and of right, to belong.” This is the proposal to reverse what had been done in 1809. My Lords, there is just a small sidelight on page 1220, the small print matter is an embargo which was put on by a Proclamation in 1813, and it is rather interesting that that embargo excepts from its operation certain vessels. Reading from the small print on page 1220, “ And we do hereby strictly prohibit and forbid the sailing or departure of any ship or ships, vessel or vessels, having on board any of the before–mentioned articles, from any port or place aforesaid, in and within our said Province of Lower Canada, to any such place, Country, Kingdom, Dominion or Territory aforesaid, save and except such vessels having on board so much of the before–recited articles, as may be necessary only for the supply of those parts of the Coast of Labrador, which are occupied as Trading Posts and Fisheries and have recently been annexed to our Government of Newfoundland” ; you have a very good indication there of what were the things that had been recently annexed to our Government of Newfoundland—“ parts of the Coast of Labrador, which are occupied as trading posts and Fisheries” ;—“ and also in like manner necessary for the supply of the settlements of our Island of Anticosti ; in the Gulph of St. Lawrence” ; and if I may go back, just for a moment, to that critical paragraph, which my Lord Warrington was looking at at a moment ago, in the Proclamation, and just read that up with this, there, on page 154, it is also “ to put all that coast,” and “ that coast,” is that coast which had been put under the care and inspection of the Government of Newfoundland, and is that coast upon which an open and free fishery may be carried on ; and therefore, the thing which is
being handled is a coast on which a fishery may be carried on. It is merely here and there you find it emphasized. This gentleman (who I see writes from Edinburgh, but was a Canadian merchant) asks for the repeal of they Act of 1809, complaining that the jurisdiction of Newfoundland was operating to his detriment. At page 1223, Lord Dalhousie submits to Lord Bathurst, on the l0th March 1824, a despatch in these terms, “ I have the honour to transmit to Your Lordship, copy of an address presented to me by the Legislative Council of this Province setting forth the evils and inconveniences that have arisen from the Separation of a Portion of the Coast of Labrador and the adjacent Islands from Lower Canada of which they once formed a part, and praying that the same may be re–annexed to this Province ; And as I am myself convinced that this representation is well–founded in every respect, I beg leave to give it my strongest recommendation and support” ; and then follows the address of the Legislative Council of Lower Canada to Lord Dalhousie, which I shall not read, complaining of the result of this re–annexation which had taken place. Then on page 1226 there is a letter from Mr. Cochran to Lord Dalhousie on the 25th March 1925, “ My Lord, I had yesterday the honour of receiving your Lordship's letter of the 21st I am obliged now to trouble you with a matter which ’though of very little importance in itself requires your Lordship's decision. It relates to the application made by the Legislative Council, by an address in the Session of 1824, for the re–annexation of the whole cost of Labrador, up to Hudson's Streights, to the Province of Lower Canada. I have drawn up a statement of the pretensions advanced on the part of Lower Canada and of Newfoundland, which I enclose. The question is whether the claims of the former should not be cut down, and confined to that part of the coast lying West of Bay Forteau—Isle au bois, or Ance à Sablon, inclusive.” I may just pause a moment there, because I will not go back to it, on the point of whether Woody Island is included or not, you see there, my Lords, where the word “ inclusive ” came from, “ Isle au bois or Ance à Sablon inclusive,” the word which troubled my learned friend Mr. Barrington–Ward when he was addressing your Lordship on that small point in the ease, “ Isle au bois, or Ance à Sablon, inclusive (it is no matter which boundary is taken) so as to comprehend the last Canadian Fishing post of any importance on that Shore, and to leave to Newfoundland its most Westerly fishing establishments.” What strange language to use if you are dealing with large territorial claims ! This is a matter of relatively small importance, as he said, but there are claims before us, and I suggest that you just cut this bit of the coast in two, and see that you do it in such a way as to give to Canada the last fishing post of any importance on that shore and leave to Newfoundland—what ? : “ Its most Westerly fishing establishments.” Therefore, we are dealing with fishery establishments, and all this trouble had arisen about conflicting jurisdiction among fishing men and fishing establishments, and this is saying : but the thing so as to leave on one side the fishing stations, which properly belong to Newfoundland, which ought to
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be under the Governor of Newfoundland, and the stations to the West or the Quebec fishing stations, leave to Quebec. There is the foundation of the whole matter as to how it is to be done : you must see that you comprehend the last Canadian fishing post by the point selected to the Eastward, and the most Westerly establishment of Newfoundland is to be left to Newfoundland, and there you get your point. Then the next passage is at page 1231, on the question of the re–annexing of the coast of Labrador. This is from Newfoundland on the 20th May 1825, to the Under–Secretary of State for the Colonial Department : “ Sir, in the absence of His Excellency the Governor, I beg to transmit to your care a Memorial from the Chamber of Commerce to the Right Hble Earl Bathurst relative to the re–annexing the coast of Labrador to the Government of Canada—a subject, which is considered so intimately connected with the welfare of the Trade and Fisheries prosecuted by many of the Inhabitants of the Island that I flatter myself it will obtain His Lordship's consideration, and be a sufficient apology for the trouble I again give to you.” Of course, the Newfoundland point of view was the opposite side. Then comes what is more important for our purpose, the Memorandum by the Colonial Under–Secretary on the proposed Bill, on page 1234. The writer first deals with the question of the feudal position in Canada, and we need not pause over that ; then there is a question as to the form of land tenure in the second article, and then this is the third topic at page 1235: “ Certain parts of the Coast of Labrador, were settled by French Canadians, & the Lands are held upon French tenures.—It is therefore highly convenient that this part of the Labrador Coast should be annexed to the Government of Canada, But the Act of 1747”“that should be 1809—“ annexes the whole of this Coast to Newfoundland. Therefore, without the assistance of Parliament, it is impossible to carry this object into execution.—The Bill therefore provides, that the Coast shall be divided at a point which the Governors of the respective Colonies have fixed upon.—The point of division is the point at which the Canadian Settlements end.” Now my Lords, that is where you get the Ance Sablon point. It was assumed, although as we have since found not entirely accurately, to be the Eastern terminus of the Canadian fishing stations, and all beyond it were Newfoundland fishing stations. I think subsequent investigation has found that was not entirely so, but that was the endeavour of the Legislature at that time : to get the point on the shore where, at one side. you had Canadian fishing stations, and on the other side Newfoundland fishing stations, and thus end this unhappy controversy which had arisen in consequence of the application now of Newfoundland and now of Canadian Legislation to persons who did not appreciate that administration. It was following upon that that there was passed the Act of 1825, and it is Section 9 which is of importance for the present purpose, at page 210 of the red volume. After recitals, the Statute proceeds at line 42, “ and it is expedient that certain parts of the said Coast of Labrador should be re–annexed to and form part of the Province of Lower Canada : be it therefore enacted, that so much of the said