1421

Exhibit with Appendix (J).

SELECT CASE FROM THE RECORDS OF THE SUPREME COURT OF NEWFOUND

LAND.

(Argued and determined in the Supreme Court, St. Johns, New

foundland.)

From the year 1817 to the year 1822.

JENNINGS AND LONG against HUNT AND BEARD.

October 26, 1820.

On this day the Chief Justice delivered the following judgment: The defendants, Phillip Beard and Co., are engaged in an extensive salmon fishery at Sandwich Bay on the Labrador, where they have a fixed establishment.

The plaintiffs, Jennings and Long, are British subjects, and reside at Halifax, in the province of Nova Scotia, from which place they have, for a few years past, resorted to Sandwich Bay for the purpose of a salmon fishery likewise. In the pursuit of their common occupation, the parties appear to have been brought into contact upon disputed points of right; the defendants claiming exclusive property in all the rivers in Sandwich Bay, as well as the circumjacent coves within 3 miles of the mouths of the rivers; and the plaintiffs con-, tending for the right to place their nets in any vacant spot not actually indispensable to the others fishery. While the parties were in difference, the Surrogate, Captain Robinson, of His Majesty's ship "Favourite," arrived at the Labrador, and the defendants Beard and Co. immediately brought their case before him, alleging their rights, and complaining of the trespass which had been committed by Jennings.

*

In looking into the proceedings which took place before the Surrogate at Labrador, it does appear that he had received certain rules and regulations, in the form of a proclamation, expressly applying to the case before him, and that his decision was founded upon those regulations; but it is then offered in explanation of this circumstance, that the Governor's proclamation necessarily formed part of the Surrogate's proceedings, and was, in fact, the law upon which he founded his judgment. In support of which position, a bundle of orders and other acts of the local Government has been handed into Court, containing a series of regulations and observances for the trade and fisheries of this island, and variously affecting the persons and property of its inhabitants, from which I am to infer that a legislative authority in this Government, unknown to the laws of England, but claimed under a prescriptive exercise in Newfoundland, is

now, for the first time, sought to be established in this Court. So large, and, indeed, so dangerous an innovation upon the accustomed principles of adjudication in the Court, ought not to be passed over unobserved. If the proclamation by which the Surrogate is stated to have been governed, be legal, then, indeed there can be no doubt that it is as binding on this Court as it was on the Surrogate Court; and that it will be equally binding on the King in Council, should the case go to an Appeal. There is no dispensing power in Courts, and that which was the law of the case at Labrador, will be the law in London. I am bound, therefore, to apply to it the same considerations which, I think, would be applied by the Lords of Appeal. It is a determined principle of law, that the King holds a legislative power over conquered or ceded countries, but that no such power is held over countries originally settled by British subjects. This island and the Labrador were first discovered by the English, and peopled by emigrants from the United Kingdom. But the application of the principle does not rest upon a question of geography, it is expressly declared by the statute 49th Geo. III, cap. 27, that the Courts in Newfoundland shall be governed by the laws of England, so far as they may be applicable; and the same course of administering justice, is, by the statute of 51 Geo. III, cap. 45, extended to the Labrador. These statutes are affirmative of what was before the common law of all the English colonies; over which it has been solemnly recognised in the celebrated West Indian case of Campbell v. Hall, (Cowp. Rep. 204), that His Majesty holds no legislative authority. The King has, indeed, large prerogatives; but the prerogatives of the Crown are defined by the constitution, and form a part of the law of the land. It will not be contended that there is a prerogative peculiar to Newfoundland; and if there be not, then a proclamation for regulating the trade and fisheries of this island and its dependencies, must rest upon the same foundation, as a proclamation for governing the trades and fisheries of Great Britain.

"Proclamations," says Blackstone, (vol. 1, p. 270), "are binding upon the subject, where they do not either contradict the old laws, or do not establish new ones, but only enforce the execution of such laws as are already in being, in such manner as the King shall judge necessary." And I am not conscious of having seen any act of state, in modern times, which has not been perfectly in unison with this first principle of the constitution. It is a mere sophism to distinguish between regulations and laws. Everything which prohibits that which was not prohibited before, is a law. But to bring this matter at once to the test, let us look at the code of regulations for the fishery and trade on the coast of Labrador. The first article " 1422 declares" that no inhabitant from Newfoundland, nor any per

son from any of the colonies, shall, on any pretence whatever, go to the coast of Labrador; and if any such are found there, they shall be corporally punished for the first offence; and the second time, their boats shall be seized for the public use of British ship fishers. upon that coast." The regulation which debars a million of His Majesty's subjects from the exercise of a common right, submits their persons to ignominious punishment, and their property to

• Rules and Regulations by Governor Pallisser, 1765, printed at British Case Appendix, p. 690, see ante, p. 6.

forfeiture, may well be called a law; and if it be, however penal its provisions, I am bound to enforce them. Now it is well known that the principle fisheries at Labrador are actually carried on by people from this island; and I have purposely put this case, because I wish it to be clearly seen to what extravagant consequences the principle contended for must lead. The public instrument more immediately connected with the proceedings before the Court is, indeed, of a very different character, and I am aware that it was framed with the benevolent view of quieting the differences which had arisen at Sandwich Bay. But I apprehend that the claims of individuals to the right of fishing in the seas and rivers of that bay could not lawfully be affected by the regulations of the Government.

APPENDIX (K).

Extracts from French Official Correspondence concerning the Nature of the French Treaty Rights in Newfoundland.

No. 110.-Admiral Krantz, Minister of Marine, to M. Goblet, Minister of Foreign Affairs.

PARIS, July 10, 1888.

We have upon the French shore an absolute right of exploitation, perhaps exclusive, which takes precedence over everything. The English have, at the most, only a right ("faculté ") of conditional fishing and of tolerance. Their competition cannot trouble us nor interrupt us. It should cease as soon as it affects us. Under these conditions (and this point has never been, so far as I know, the object of dispute) it is we who are the judges of the trouble and of the interference, and when we establish their existence we have the right to require that they be removed. To admit the contrary would be to reverse the rôles and to abandon the very principle of our right. [Livre Jaune, 1891, Affaires de Terre-Neuve, p. 167.]

M. Waddington, French Ambassador to Great Britain, to the Marquis of Salisbury, Secretary of State for Foreign Affairs.

LONDON, December 15, 1888.

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In any case, the British declaration says that ... The XIIIth Article of the Treaty of Utrecht, and the method of carrying on the fishery, which at all times has been acknowledged, shall be the plan upon which the fishery shall be carried on there: it shall not be deviated from by either party; the French fishermen building only their scaffolds, confining themselves to the repair of their fishingvessels, and not wintering there; the subjects of His Britannic Majesty, on their part, not molesting in any manner the French fishermen during their fishing, nor injuring their scaffolds during their absence."

What is understood by "the method of carrying on the fishery" is defined by the developments following this phrase in the text of the declaration. It is the modus vivendi of the French on a coast which has ceased to belong to them, which is regulated; it is their provisional encampment, their right to cut wood necessary for their small repairs, which is confirmed; it is, in a word, the most thorough commentary on the territorial rights of the British Crown in respect of the temporary servitude ("servitude temporaire ") agreed to by it. "The method of carrying on the fishery" signifies the international police regulations which shall govern the relations of the fishermen of the two nations, and an impartial examination precludes

the discovery of the least restriction on the method of fishing of the French, or on the manner of preparing the fish, provided that the French establishments preserve, as they do to-day, the character of temporary buildings" possessed by the scaffold. [Blue Book, Correspondence respecting the Newfoundland Fisheries, 1884-1890, pp. 192-193.]

66

1423 No. 149.-Admiral Krantz, Minister of Marine and Colonies, to M. Spuller, Minister of Foreign Affairs.

PARIS, October 15, 1889.

I have received the report of the fishing season of the Commandant of the Naval Division of Newfoundland.

The two questions which are there mentioned as having a special interest at the present moment are those of the lobster fishery and of the policing of the fishery upon the French shore.

Concerning the latter question, it has been admitted until now that if an English cruiser was present we should demand from it the removal of obstacles by which the Newfoundland fishermen could disturb ours, but that when our cruisers were alone they should themselves suppress these obstacles. This manner of procedure reconciled in a reasonable and proper manner for everybody our status of usufructuary with the right of sovereignty of England, and we have never demanded more.

But the doctrine maintained by the new Commander of the English Division and the acts by which he supports it destroy this order of things. This would mean, according to Admiral Walker, that English property could not be interfered with by our cruisers.

This new state of affairs would create in our station an inacceptable condition, while at the same time it would unsettle the conditions of the enjoyment of our rights. If, although proprietors assured of the right of not being disturbed in our fishing industry in Newfoundland, we are, however, no longer the judges of what is an interference with us; if the British cruiser present alone determines for itself the question of interference and removes it according to its judgment; if, finally, in the absence of the English cruiser it is the transgressor who is obliged to judge and condemn himself, I ask what substantial and important right remains to us of those so formally guaranteed by the treaties and the Royal declarations of the last century. It is evident that our rights, not to be illusory, admit of another sanction, and that in exercising, as they claim to do up to the most extreme limit, the power of superior police and of execution which we have abandoned to them to the present rather by courteous deference and in a spirit of conciliation than to subject ourselves to a legal obligation, the English officers exceed the bounds of propriety and violate our rights. If it is necessary to revert to principles and to apply them rigorously, which might perhaps be disagreeable, but to which the new English course of action constrains us, we may say that it is not right that a sovereignty be subjected to the mere pleasure of another sovereignty upon which it is not dependent; in the enjoyment and preservation of a certain right in which another nation has no share; that since we are invested with an incontestable and uncontested right of fishing freely without be