Viscount HALDANE : Is there anything to show by what law that Court was set up ? Was it a Court established by the Lord High Admiral ?
Mr. MACMILLAN : I think it purported to be a Court of Vice–Admiralty.
Viscount HALDANE : And it probably was. Was it called a Court of Common Pleas ?
Mr. MACMILLAN : Yes, my Lord, consisting of four Commissioners.
Lord WARRINGTON : The original Commission authorised the setting up of a Court.
Mr. MACMILLAN : Yes, my Lord.
Viscount FINLAY : Apparently the Court was kept open daily for the constant interruption of the fishery trade by continually issuing orders.
Mr. MACMIILLAN : Yes, my Lord; this obnoxious Court seems to have caused a good deal of trouble. I think the legality of the Court was questioned, and its existence at all; but I have not got the reference to that now, and I may be mistaken about it.
Now, my Lords, the Committee came to be of opinion at page 1878, line 10, “ that a proper Court of civil jurisdiction should be established in the Island of Newfoundland, specially constituted for the Purpose of trying such Questions as are not now provided for by any Act of Parliament ” —
Sir JOHN SIMON : The answer to the question put by my Lord Haldane I think must be that by the terms of the successive Commissions to the Governors of Newfoundland, one of their express authorities, delegated to them, was to appoint Judges and Courts ; so that it was within the terms of the Commission, both before the Commission extended to Labrador and afterwards. Is not that so ?
The LORD CHANCELLOR : And I think in the Instructions also.
Sir JOHN SIMON : In the Instructions also, my Lord.
Viscount HALDANE : The Court of Common Pleas created by Vice Admiral Milbanke may be just a Common Law Court.
Mr. MACMILLAN : Probably so, my Lord. I am afraid I am not sufficiently familiar with it. He was to appoint Commissioners of Oyer and Terminer.
Sir JOHN SIMON : Here is the passage : “ appoint Judges and in Cases requisite Commissioners of Over and Terminer.”
Mr. MACMILLAN : Yes. Mr. Attorney and Mr. Solicitor were consulted by the Lords of Trade, and at the foot of page 1878 you find this : “ Mr. Attorney and Solicitor–General are desired to take Notice, that the Government of this Country, having always considered the Trade of Newfoundland merely as a Fishery, to he carried on solely by the Subjects of His Majesty's European Dominions, it has always been the Wish of Government to bring back the Fishermen at the End of every Season to the Ports of the said Dominions, and to prevent their establishing themselves as a Colony in Newfoundland. With this View no Civil Commission was given to the Governor, who goes out Annually, till about the Year (blank), and no Court was established for trying Crimes of any Sort till about the year (blank), but all Criminals were to be brought Home to Great Britain, to be tried under the Authority of the Act of 10th and 11th W. III. Ch. 25. That of late Years a greater Number of His Majesty's Subjects continue to reside at Newfoundland during the Winter, after the Fishing Season is at an End, than formerly. That the Committee of Privy Council see this Circumstance with Regret, thinking it contrary to ancient Policy, and the true Interests of this Country, and wish to prevent it as much as possible. The Attorney and Solicitor General are desired also to take Notice, that much the greater Number of the Fishermen are extremely poor and ignorant, and thereby very much exposed to be defrauded by those with whom they deal.” Now the learned Lord Officers returned an opinion, and it is rather interesting to see what their opinion was. This was what I had in my mind : “ That the Court of Common Pleas erected last Year by Your Majesty's Governor is not founded on any Authority legally given to the said Governor, and cannot be supported or justified by Law.” That is on page 1879. I thought there was something about it. So that the Merchants were justified in complaining of being brought to a Court which, in the opinion of the Law Officers, had no jurisdiction at all.
Viscount FINLAY : They wasted their time.
Mr. MACMILLAN : Yes. It was a Court which had no authority, according to the Law Officers of the Crown. I thought there was a passage to that effect, but I hesitated to state it categorically until I had had it verified; but here one lights upon it by accident : “ That the Court of Common Pleas erected last Year by Your Majesty's Governor is not founded on any Authority legally given to the said Governor, and cannot be supported or justified by Law. That they do not find that any Court of Judicature is established in the Island of Newfoundland, excepting in the Special Cases mentioned in the Acts of Parliament 10th and 11th W. III. Ch. 25; and 15th and 26th of Your Majesty, Ch. 31 and 26; And that as Your Majesty is not precluded, by any Provision in the Acts before mentioned, nor by any other Acts with which they
are acquainted, from so doing, Your Majesty may, by virtue of Your Royal Prerogative by Commission under the Great Seal, establish a Court of Civil Judicature for the Purpose of hearing and determining all Questions that may arise of the Nature hereinbefore mentioned. And they further report”—This is the Law Officers—“ They further report, that after paying due Attention to the peculiar Policy of this Kingdom, with respect to the Territory of Newfoundland, which has always been directed to discourage the Subjccts of these Kingdoms from establishing themselves in that island, and to encourage the Return of the Fishermen and Seamen to these Kingdoms, they had prepared, conformably to the Directions of the Committee, a general Outline of a Court of Civil Judicature, in Cases not yet provided for by any Act of Parliament which is as follows” ; then they set out a plan for a Court, and they say that it may be advisable to erect a Court of Civil Jurisdiction.
Your Lordships might just note, along with that, a reference to page 929 in Volume III. This is the 25th November, 1763, after Governor Graves had got his Commission. This is addressed by the Lords of Trade to the Committee of the Privy Council for Plantation Affairs, and it says : “ My Lords,—Pursuant to your Lordships Order on the 31st of December 1762, we have considered the Memorial of Richard Gridley a reduced Captain of General Shirley's first Regiment of Foot, now on half pay, praying that His Majesty would confirm to him by grant his possession of the Islands of Madelaine in the Gulph of St. Lawrence Where he alleges to have made an Establishment, and improved a considerable Fishery for Seals and Sea Cows; and we beg leave to report to your Lordships, that tho' we think that all possible encouragement ought to be given to every usefull undertaking of this King, and that the petitioner may have merit in the improvements he has made, yet, as His Majesty has not thought proper to establish any Form of Civil Government in the Lands and Islands comprized within the Commission of the Governor of Newfoundland, it does not appear to us to consist with propriety to make for the present the grant prayed for by Captain Gridley.” You will notice there that the Island of Madelaine was one of the islands that had been annexed to Newfoundland in 1763.
Lord SUMNER : What is the inference which you draw from that ? That is two months after the Proclamation.
Mr. MACMILLAN : Yes, my Lord.
LORD SUMNER : The other was antecedent to the Proclamation.
Mr. MACMILLAN : Yes, my Lord.
LORD SUMNER : What is the conclusion to be drawn from it ? Is it that he should not have the grant which he asked for, namely, confirming him in his possession of the Madelaine Islands, because His Majesty has not thought proper yet to establish any civil government ? Is that because the whole territory, islands and all, was to be regarded as a
sort of camp occupied by armed forces, and therefore, it would be out of place.
Mr. MACMILLAN : I rather thought this, that it was to be a place to which fishermen should resort, and the Government was the government of the Governor of Newfoundland, confined to keeping order among the fisherman there during the period when they were there, and, of course, incidentally, regulating the disputes which must have arisen among them with regard to their rights along the coast of Labrador. There was to be no private property at all, but there must be somebody there to prevent rows breaking out among the people as they arrived there and planted themselves on the coast for the season.
Lord SUMNER : It may mean that it is premature to give a civil proprietory grant until there is a civil government to enforce it, and able to protect him.
Mr. MACMILLAN : But it was added to Newfoundland, and I have read the passages where it stated that there was no proper civil administration there at all, and one Court which was set up was held to be illegal.
Lord SUMNER : But that is the representation, that until there is a civil government, it is no use giving a proprietory grant ?
Mr. MACMILLAN : Yes, my Lord.
The LORD CHANCELLOR : Is it not rather confirmed by the previous letter, which is even closer to this case ?
Mr. MACMILLAN : Page 928, my Lord.
The LORD CHANCELLOR : The letter where they speak of Labrador, and say : “ There is yet no civil government established in this country.”
Mr. MACMILLAN : Yes, my Lord, and apparently none could be. I rather underline the words “ comprised within the Commission.” The Commission does not authorise the setting up of a system of civil government in the Islands.
Sir JOHN SIMON : Surely the phrase “ comprised within the Commission ” governs “ lands and islands,” does it not ?
Mr. MACMILLAN0 : Well, it is not a large point, but there it is. I propose now, having given your Lordships a picture of the Governor of Newfoundland to the best of my ability, and clothed him witlh the powers that he has, and indicated to your Lordships what was the purview of his task in the Island of Newfoundland, and that he was a
person who was selected to have the Coast of Labrador handed to him, to suggest the motive of doing that, which was the motive expressed, and that motive—to the end the fishery may be carried on—abundantly justified the selection of the Governor of Newfoundland, and there was extended to him the charge of the fisheries, with rights on the land comparable with those which were extended to him in his original jurisdiction on the coast of Newfoundland.
Now I want to pass to another question which is rather an interesting one. The Commissions and Instructions which were given to the Governors of Newfoundland at this critical time have been alluded to by my learned friend, and I, in my turn, want to make one or two comments upon them. Your Lordships will remember that the first Governor of Newfoundland, under the new regime was Captain Graves. His period of office was so short that we have practically no record of what he did, because his Commission, which is to be found in Volume I, at page 149, was dated the 25th April, 1763, and he came out on his ship and remained on his ship, and in October, 1763, he returned to this country; so that in that year he had barely time to address himself to his task, and, therefore, there seems to be very little record of what he did.
But his successor in office was a person of much vigour. Hugh Palliser obtained his Commission on the 9th April, 1764, and that is to be found in Volume II, on page 411. For the next four or five years after that he annually went out to Newfoundland, and remained there in the usual way throughout the fishing season. He was Governor until 1768, and he must have left Newfoundland for the last time, as far as I can gather, in October 1768, because the Commission to his successor is in the following spring, the year 1769. He was there for a long time. He had a rather troubled reign, because he came into conflict with Quebec at a very early stage of his career, and there is an exchange of amenities between him and the Governor of Quebec. But the instructions which were given to Governor Graves, and which were repeated and amplified in the instructions given to Governor Palliser, contain some matter of interest.
My learned friend made his text on Governor Graves's Instructions, but you will find corresponding articles in Governor Palliser's Instructions. I am taking Governor Graves's Instructions first of all, because that was that series to which my learned friend alluded. The Instructions to Governor Graves are to be found in Volume II at page 391. This document has been before your Lordships more than once, but I have to take up a point or two with regard to it, lest it should be thought that I have overlooked my learned friend's comments about it. I have already referred to these instructions for the purpose of showing that the prime consideration, the first topic which was dealt with, was the enforcements of the provisions of the Treaty of Utrecht. That was a purely fishery matter, as your Lordships see, and was the matter upon which attention was concentrated before the Lords of Trade addressed themselves to the territorial question at all. My learned friend drew