of the said Masters of fishing Ships, By–boat Keepers or Inhabitants, shall think themselves aggrieved by such Judgment or Determination, and ahall appeal to the Commanders of any of his Majesty's Ships of War, appointed as Convoys for Newfoundland, the said Commander is hereby authorized and impowered to determine the same, pursuant to the Regulation in this Act.”
Viscount HALDANE : It was an Admiral's ship.
Mr. MACMILLAN : Yes. Now Palliser was not quite sure whether this applied to the coast of Labrador, because you see it is in terms Newfoundland. Labrador had been annexed to him and he was in some difficulty to know whether these regulations applied in terms, and he wanted an Act of Parliament passed to extend the Act of 1699 to the coast of Labrador; but his Commission had told him to apply it to the coast of Labrador, and, if I remember aright, he did not get an Act of Parliament. Perhaps my friend can remember whether there was an Act.
Sir JOHN SIMON : No ; he pressed for it, but did not get it.
Mr. MACMILLAN : Because it was already in his Commission.
Sir JOHN SIMON : That would not have been a good reason as against a complainant.
Mr. MACMILLAN : The interesting thing is this. He has not sure whether these regulations applied or not, although his Commission told him to do nothing contrary to these regulations, and he wanted an Act of Parliament to clear it up, and he did not get it—for what reason we do not want to inquire further.
This, then, is my submission upon these Commissions. I am still completing the picture of the Newfoundland position. You have got the Governor of Newfoundland armed with these powers, placed in the care and inspection of this coast, with its native Indian inhabitants who were Esquimaux, with no contact with the interior Indians, with whom he was unable to communicate because he did not even know their language, and concerned with the coast and subordinating everything that he did to this purpose of maintaining the fishery on that coast. It only emphasises the intent and purpose as expressed by the Proclamation that this whole transaction is to the intent that the open and free cod fishery of Newfoundland may be extended to this coast, and may be extended to this coast under a person already conversant with this class of business and suited, therefore, to carry on a coastal administration over a temporary fishery such as this was.
My Lords, I now propose to leave that chapter altogether and to come on to the next legislation. I have dwelt so long upon 1763, for this reason, that we are all agreed that that is the critical year. We are all agreed that from the language employed it is that we are to find out
the extent of the jurisdiction of Newfoundland, and to get the key to the answer to the question proposed to my Lords ; and we are further agreed that it is the subject matter—we will call it X — of the Commission and Proclamation, which was in turn bandied back and fro between Newfoundland and Quebec, maintaining throughout its identity ; because it has always been by reference, it is always the same thing which is passing from one hand to the other : if me find out at the start what that thing is, or at least find sufficient indicia to enable us to define it, then one approaches the subsequent Acts with this in mind : What is the subject matter of the 1763 transaction ? Because whatever was that subject matter was also the subject matter of the subsequent Acts of 1764, 1809 and 1825. Therefore one has to proceed to those other Acts, bearing in mind that throughout, this X, this unknown quantity, to which the territory of Newfoundland on the mainland, had been defined in 1763 ; the root of title was in 1763 ; the others were all documents of transmission, not documents of origination.
I approach, therefore, now the next episode in this history, the Act of 1774, the Quebec Act. There is a most important Order in Council which heralded the passing of the Act of 1774. That is in Volume III, at page 1075, and its recitals contain so complete an account of the reason for the passing of the Act that I find myself absolved from the necessity of going into it otherwise to any extent.
Your Lordships recall that the jurisdiction which had been given to the Governor of Newfoundland extended, as we are all agreed, from the River St. John to Cape Chidley. The Governor of Newfoundland proceeded to frame regulations for his fishery (these are in the volume), regulations which were adapted to the enforcement of the Act of 1699, and he proceeded most rigorously to enforce these along the coast within his jurisdiction. In the course of doing so he encountered on the coast the sedentary fishermen who carried on seal fishing and to some extent also salmon fishing on the shore of the St. Lawrence, and who held grants, some of them from the French period, and some of them grants made by General Murray ; and their indignation at Palliser's action in seeking to enforce a cod fishery régime applicable to temporary fisheries and with maritime inspection of these people who were seated on the shore with their grants and carrying on the sedentary fisheries, was so great that a large amount of trouble arose over that matter and it came to be recognised that this confiding of that part of Labrador to the Governor of Newfoundland was a complete mistake ; because he was a gentleman who was well adapted to protecting cod fisheries and had all the means and energy to do that, but his regulations, which he was bound to conform to, were quite inappropriate to deal with the sedentary population of seal fishers entitled to remain there during the winter, because they held actual titles, they held grants, and his jurisdiction was totally unsuited for the sedentary fishermen who exercised the seal fisheries on that coast. Consequently great complaints were made and the result was that they took from Newfoundland the whole of the Labrador Coast ; but as subsequently appears,
they went too far, because the grants held by those people along the south coast did not extend away up to the north coast, and the north coast was a proper place for a cod fishery. The mistake was, as seems to have been recognised in subsequent legislation, to hand the whole of it over ; because that was overdoing the thing ; the remedy was too large ; a less drastic remedy would have been sufficient ; and it just happens that at the end you have the matter brought to the position that it should have been brought to earlier. The way they did it was this. I draw particular attention to the Order of His Majesty in Council. It is a most important document, for this reason, that it shows the attitude of the Government at home to the position and the attitude of Newfoundland. You will notice, as I proceed to read it (because I am going to take it a little slowly) that the conception of the Governor of Newfoundland, in the minds of the Privy Council, was not a conception of a territorial magnate in Labrador at all, but of a person looking after cod fishing on the shore.
Now I have to vouch that, and I propose to ask my Lords to read it and see if I am right. This Order of His Majesty in Council is on page 1075. It is dated the 22nd April, 1773, the year before the passing of the Quebec Act. “ Your Majesty having been pleased by Your Order in Council of the 8th of July 1772 to referr unto this Committee a Representation of the Lords Commissioners for Trade and Plantations, dated the 24th of June, 1772, Setting forth, That they have had under their Consideration a Paper Communicated to them by the Merchants of Great Britain interested in the Trade Seal Fisheries on the Coast of Labrador and their Lessees ; as also of the possessors of certain Seal Fisheries on that Coast under Grants from the Governor of Quebec, describing the particular nature and Circumstances of those Fisheries, and Stating the great Loss and Detriment which have ensued, by those fisheries being made Subject to such Rules and Regulations, as the Governor of Newfoundland has thought necessary to be laid down for the Fisheries of Cod and Wale, since the said Coast of Labrador has been annexed to that Government.”
My Lords, those regulations are printed at page 937, if my Lords care to note it in the margin ; and you will see that they are regulations of that type—cod and whale regulations. “ That they have likewise taken into their Consideration a Memorial presented to Guy Carleton Esquire, Your Majesty's Governor of Quebec, and signed by Sundry Inhabitants thereof, Subjects of your Majesty, to the like Effect, Where upon the said Lords Commissioners represent That while Canada remained in the Hands of the French, and the Coast of Labrador was considered as a dependency thereupon, a Fishery for Seals was amongst other objects of National concern, attempted and brought to a Degree of perfection, and the returns from this branch of the Exports of Canada amounted annually to about Ten thousand pounds Sterling ; In consequence of these Attempts, Grants of several Islands in the River and Gulph of St. Lawrence and some Tracts on the Main Land, with the exclusive Privilege of Seal
Fisheries &c. were made in times past by the Crown of France to certain persons and the rights of Property thereby vested in them have passed as Inheritances, and been Sold and Leased to Tenants at pleasure ; Various other Species of Claims have been exhibited as derived from French Tenures, which it is needless now to Enumerate and which have passed by Succession through different Hands ; and since the Cession of Canada, these ffisheries[sic] have been again taken up, & sundry of your Majesty's Subjects leave Possessed themselves of Posts, and Settlements, either in virtue of Leases from proprietors under French Titles, or by Grants from your Majesty's Governor of Quebec for a Term certain, or until such time as your Majesty's pleasure should be known ; In Confidence of the validity of these Tenures, it is stated that many Adventurers have followed the Established practice of Canada by Purchasing from the former Grantees the whole of their Dwelling Houses, Fishing Implements, Utensils and Warehouses, appropriated to particular Posts or passes, and large Sums are said to have been employed in re–establishing these ffisheries[sic] ;—That the Fishery for Seals it is asserted, cannot be prosecuted in the Open Seas, and made general like those for Cod and Whales, but is practised in a manner widely different from any other ffishery[sic] in the Gulph or River St. Lawrence, and requires much judgment and circumspection, it is chiefly formed by the contiguity of small Islands or Rocks to the main Land, which Occasion Strong Currents called Passes, where only such ffisheries[sic] can be exercised and to which the make and Contexture of the Nets must be particularly fitted ; it is chiefly followed in the winter Season, and the immediate Operation of Catching these Animals commences in December and lasts only about fifteen Days ; but the ffishers[sic] employed in the Business must be at their Station in the course of the Month of September, and cannot get away from it before the end of May. That this is in brief the nature of the ffishery[sic] for Seals, and these the Circumstances of the People engaged in that Business, that by your Majesty's Royal Proclamation of the 7th of October, 1763, Your Majesty thought fit to put all the Coast of Labrador from the River St. John to Hudson's Straits together with the Islands of Anticosti and Madelaine, and all other smaller Islands lying upon the said Coast, under the Care and Inspection of your Governor of Newfoundland, to the End as your Majesty therein graciously declares, that the open and free ffishery[sic] of Your Majesty's Subjects might be extended to, and carried on upon the said Coast of Labrador and the adjacent Islands, and from this period the Posts and Settlements on the above Coast and ffisheries[sic] thereupon depending were detached from the Government of Quebec, and became Subject to the Ordinances and Regulations of Your Majesty's Governor of Newfoundland.”
My Lords, I attach great importance to that passage. Again, you find at this contemporary period that the Privy Council. when they are seeking the origin of the rights of the Government of Newfoundland, say that the rights are derived from the Proclamation ; and they recite the Proclamation. Therefore, when I have thought fit several times in the course of my address to speak of the Governor of Newfoundland as a
person having the care and inspection, that was not merely an advocate's device of repeating a phrase frequently in order to impress it ; it was using the contemporary language of the Privy Council as they themselves used it when they were describing the position of the Governor of Newfoundland at the time.
Viscount HALDANE : It was an explicit policy.
Mr. MACMILLAN : Yes. my Lord. I cannot sufficiently emphasise the point there ; because here you have a different type of fishery in existence upon these shores, the sedentary fishery, and you have brought in contact with this class of person the Governor of Newfoundland. You have a reference to the Proclamation, and what the Privy Council are pleased to say is : “ That this is in brief the nature of the ffishery[sic] for Seals, and these the circumstances of the People engaged in that Business, that by your Majestys Royal Proclamation of the 7th of October 1763 Your Majesty thought fit to put all the Coast of Labrador from the River St. John's to Hudsons Straits together with the Islands of Anticosti and Madelaine, and all other smaller Islands lying upon the said Coast, under the Care and Inspection of your Governor of Newfoundland.” That was what the Privy Council conceived to be the position ; that was not a territorial jurisdiction to the height of land, as I humbly submit. It is : “ Under the Care and Inspection of your Governor of Newfoundland, to the End as your Majesty therein graciously declares, that the open and free ffishery[sic] of Your Majesty's Subjects might be extended to, and carried on upon the said Coast of Labrador and the adjacent Islands, and from this period the Posts and Settlements on the above Coast and ffisheries thereupon depending were detached from the Government of Quebec, and became subject to the Ordinances and Regulations of your Majesty's Governor of Newfoundland ;” not in order that there might be constituted a new territorial administration to the height of land in Labrador, but for a specific and Limited purpose, and the primary ambit of his duties was care and inspection ; so at least thought the Lords of the Privy Council at the time. Then they went on : “ That from the foregoing Account of the nature and Circumstances of these Posts and the ffisheries[sic] depending thereon it will, as the said Lords Commissioners conceive, appear, that to Subject them to the same Rules and Regulations, as may be well adapted to the ffisheries[sic] for Cod and Whales, is in effect to destroy them : That the Seal Fishery being of necessity a sedentary ffishery[sic], requiring great Expence, Nets of a particular quality and Construction, immediately fitted to the pass they belong to, employing materials of a bulky nature, and requiring Houses for wintering the ffishers[sic], cannot be made open and general in the manner of ffishers[sic] above mentioned.” You cannot have an open and general seal fishery : therefore the Proclamation was inappropriate to this part of the territory altogether, because the Proclamation said that the annexation was in order that an open and free fishery can be carried on. You cannot have an open and free seal fishery according to the Privy