Thus by the establishment of a custom-house, and the introduction of the laws of navigation, was another pillar added to the civil government of that place. But this was considered and treated as an innovation by those who clamoured for a free fishery, and Stat. 10 & 11 Will. 3. and this institution being effected without the authority of parliament, was questioned in the same manner, and upon the same ground, as the commissioners of the peace, and of oyer and terminer. The article of fees was a topic on which a complaint might be founded with most hopes of success, where the interests of a fishery were concerned. This the merchants pushed with petitions and memorials for some time without prevailing: and the fees of the custom-house are a cause of complaint to this very day.
Property in flakes, &c. discussed.
The activity of Mr. Palliser during his government, had contributed to bring forward the old debated question of property in flakes and stages. These questions were of different sorts, the first related to the parts between Bonavista and Point Riche, the two limits of the French fishery. Many tracts of land within those limits were claimed as private property; and, as such, might interfere with the concurrent right of the French to fish there. This matter was agitated at the board of trade, and an additional instruction upon that head was given to the governor, by which he was commanded, not upon any pretence whatsoever, to allow any exclusive possession to be taken, as private property, of any lands, rivers, or islands in the northern parts, between Bonavista and Point Riche; taking special care that such ships as resorted to that part, should chuse their stations as they arrived, and should take up, and occupy, subject to the governor’s controul, such space only of beach as was proportioned to the number of their boats, conformable to Stat. 10 & 11 Will. 3[74].
Justices appointed.
This provision was with a design of preserving peace between the fishermen of the two nations. But the exclusive property which some persons claimed in stages, flakes, and beach, was a question that applied to the whole of the island; and had become of a magnitude to call for some discussion and adjustment. The board of trade thought proper to consult Mr. Yorke, then attorney general, upon this point. They proposed to him two questions; first, Whether exclusive property in any part of Newfoundland can be acquired under colour of any provision of Stat. 10 & 11 Will. 3, without a grant or patent from the crown? secondly, If any part of that act does warrant such exclusive property, what is the nature and extent of it? Can it be acquired for the purposes of cultivation, and settlement of the land, or is it confined to the purposes of fishing; and in what manner, and upon what principles, and by whom are any disputes arising thereupon to be decided?
By the answer to these queries, it was hoped to obtain some clear judgment upon these points, for the direction of the governors; who had sometimes considered this as real, sometimes as personal property, at other times as no property at all; and were involved in great difficulties, and exposed to vexatious suits for what they had done at Newfoundland, in relation to this doubtful sort of occupation and possession. But I do not find that these questions were resolved by the attorney-general, or that the board pressed him for any answer to them[75]. So that these points remained for examination in after-times.
Mr. Palliser carried into execution upon the coast of Labrador (which by proclamation, the 7th of October 1763, had been separated from Canada, and annexed to the government of Newfoundland) that plan of a free fishery, to be carried on by ships from Great Britain, which was practised at Newfoundland, and which he had shewn himself so determined to maintain upon its original principles. In order to accomplish this he had contest with exclusive property. Several persons claimed on that coast a property in fishing-posts and settlements; some under grants from the French governors of Canada; some from General Murray. These he broke in upon, and withal he treated the American subjects of Great Britain, who were concerned in some of these settlements, as excluded from this fishery, by Stat. 10 & 11 Will. 3. which statute he held to apply to Labrador, now it was brought within the government of Newfoundland, and under the authority thereof he contested the private rights set up on that coast. To give effect to these principles, he made some rules and regulations for carrying on the fishery in those parts.
These novelties caused many complaints to be brought before the board of trade, which led to very long enquiry for three or four years, at different times.
Upon these questions, the board of trade took some measures; with regard to the Americans, they were of opinion that it was not the design of the Stat. 10 & 11 Will. 3. to exclude from the fishery ships fitted out from America. With regard to the other points which turned upon considerations of property and legal topics, they referred to the attorney and solicitor general, some cases of grants from French governors. Upon view of these cases, the law officers were of opinion, that these could not be allowed as valid in any judicial enquiry, and ought not to stand in the way of any rules, or regulations to be made in the government of that coast[76].
Some time after, it appeared to the board, that the forcing of these rules and regulations, in order to throw open the fishery there to adventurers from Great Britain, was not a wise policy. They were calculated only for a cod, or whale fishery, whereas the seal fishery, which was most pursued here, was a sedentary fishery, and needed the encouragement of exclusive property, to support the expence of the adventure. They therefore, on the 24th of June 1772, recommended to his majesty that the coast of Labradore should be re-annexed to the government of Quebec[77]. This would certainly put an end to the disquietude under which persons laboured, who had private property there, which they saw exposed to the operation of Stat. 10 & 11 Will. 3. This, however, does not seem to have been the reason for the board recommending such measure; for being called upon to reconsider their opinion as to the re-annexing of the coast of Labradore to the government of Quebec; they said, that it was not in consideration of the loss which individuals would sustain, if private property was disturbed, but they said, when it appeared to them that a great part of that coast was claimed as private property, under grants from the governors of Canada; and that his majesty was bound by treaty to admit those claims; they thought he could not in justice enforce regulations that were subversive of those rights[78]. According to the principle here laid down, the Quebec act Stat. 14, Geo. 3, c. 83, annexed to that government all such territories, islands, and countries as had, since the 10th February 1763, been part of the government of Newfoundland, and they were so to continue during his majesty’s pleasure[79].