— EDWARD WHELAN] Von. VI. : Provincial Parliament. LEGISLATIVE COUNCIL, ———@ 6 eo _—___. ere DEBATE ON THE FISHERY RESERVE QUESTION, lon. Colonel Swadey’s speech continued. ] Weil then, your Honors, I think there can be no doubt that, with respect to that class of the Fishery Reserves, new particularly in question, that is the reserves of which the nature is thus expressed in the original grants :—‘* And further saving and reserviag for the disposal of His Majesty his heirs and successors, 500 feet from high water mark oa the coast of the tract of land hereby granted, to erect stages and other necessary buildings for carrying on the Fishery,” the soil is reserved to the Crown, or in other words the fee simple is in the Crown, subject fo an ease- ment; and that all the territorial revenue of the Crown, of | ad which these reserves form an important part, having, Civil List Act of 1851, been transferred to the Assembly— | the disposal of these reserves, with a view to the public ser- | vice to waich they were originally dedicated, is now as com- pletely in the Government of this Colony as ever it was in | the Crown. Here, with your Honors’ permission, I will Say | : is about myself, with reference to the Fishery Re- | ; L was vot a member of the Government, either | at the time when that Bill was sent home, or when it Was | iew Wo orves Bill, introduce into the Legislature; and when it came up to} vo ee avin = . { this House L did not think (as sack of your Honors as were | taen members of it will recollect), that such an Act was at | all required to enable the local Government to deal with the | Fishery Eeserres. When I considered that, by the Civil } ' List Act of 1851, the Queen had conceded to the Legisle - | \ WEEKLY JOURNAL Chis is true Liberty, wher Free-barn M nasenier wr stcon Seaman tee aS AEA Orr — me rc | determine whenee Sir Edward Bulwer L | his argument and the statements on which it is have certainly not been communicated to him by an of the people of this Island. | Sidered the facets which have ‘infer from his decision,) hav De Eram OF POLITICS, en, Having to advise the Public, may speak free.-—-EURIPIDEs. ytton has derived |, the Governmen based. They ‘undisturbed posse y friend tual! He may have impartially con- actually be wan | Sider been supposed to him for his. | consideration ; but as these facts, (as it seems quite fair to e all proceeded from parties whose interest in all matters affecting the lands are directly that, with reference to them, to exercise it. settling those local questions which have caused so much aisquietude in the Island. Lo the expediency of such a settlement I am fully alive. Most gladly would I co- Operate in measures by which it may be practically obtained in @ spirit of conciliation and fairness to all parties, and the subject is engaging my unxious deliberation.” The amicable Justment of confliciing claims which Sir Edward recom- by the | meads, is to be effec ied, it seems, by means of an arbitration between Proprietcrs and Tenants; but any thing more visionary, or less lilely to eventuate in a satisfactory result —‘to tenants at least—cannot, I think, be proposed with any semblance of fearability. Conciliatory measures are to be adopted—conciliatory of the good will of the proprietors ! But how the proprietors are to be conciliated with respect to any questious at issue between them and the people, except by the ful . eee by the full cession to them of all their claims by the people, not. However, if this very absurd scheme for | amicabie adjustment and conciliation is to be tried, let it be | }80; the L kaw @ sooner the better. IL will now, by your Efonours’ pervoission, move the Resolution which I have prepared to suomit to your Honors. ae following Resolution, which was seconded by the Hon. tare and (rovernment of this Colony all her right, title and { Mr. Craswell. interest to and in these Reserves, it appeared to me that su sh | an Act would be superfluous; for we were, and we still are with respeet to the Fishery Reserves, exactly in the sam linguishment of her territorial revenue ia this Colony to t Legis'ature thereof. became law, woalddo no barm, although it wnight do no good, Ld. dnot oppose it. Such was my cpirsion then; and ireumstances have since shown that it was a correct opinion. The Government instructed the Attoraey General to file an information against Mr. Cox, of Movreli, who was in posses- | ecrtain portions of Fishery Reserves of which the | fee simplo is in the Crown, for the purpose of testing the e een ¢ n Oj . power of the Goverument to dis possess him of, or eject him from, such reserves, and the verdict was in favor of the Go- Yeroment, with the exception of a reservation of judgment with respect to the extent of the reserves. When such re- serves arc upon the oren sea-coast, or ujon the coasts of a bay or harbour, no doubt is, or can be, entertained as to their extent ; but when they run up creeks, or small inlets of the sea, or Wp rivers, there arises doubt and difficulty in attempting to determine their extent. In such cases the re- serves arc Got exactly alike in any two, and consequently the multiplication of legal details, with respect to them, must be very perplexing, if not almost endless. Hence arose the agtessity of consulting the authorities at Home, with the view of procuring such a decision or determination concern- ing the reserves as might render the solution of any ques- tion or difficulty arising out of them here a comparatively easy affair, The Fishery Reserves Bil! said, it was true, that no more rent should be paid to proprietors for Fishery Reserves of which the fee simple is in the Crown; bat it was indecd a begging of the question to all intents and pur- poses for Sir Edward Bulwer Lytton to say, as he does, “the Act forwarded does not resume the lands for the Queen, who is their owner; but, by the abolition of rent, practi- caliy transfers them to the tenants who have no right what- ever to them except that which they derive from their land- lords.”’ Now, so far is this from being the ease, that the Act does positiveiy resume the lands for the Queen, in the sense in which she is their owner, or rather the sense in which the Government of this Colony are now their owners; that is for the public service to which they were originally dedica- ted, by the abolition of the payment of xent to proprietors, who have no just right or claim to it; and by declaring that rent for suck lands, when exacte? and paid, shall be exacted by and paid to the party to whom alone it can now, under existing arringements, '\-eome due, that is to the local Go- vernment of this C¢;ony, to whom the Bill reserves the right of Inasing the said Fishery Reserves land, or any part or position, chereof, and the sole control and management = the sane, and of the rents, issues and profits, arising there a and to all this, without the passing of any such Act ata . they are constitutionally and legally entitled, in ate 0 Her Majesty’s transfer of all her territorial sae a to the Legislature of the Colony for their disposa oe esi ~ the Despatches to which I have referred, L could, were 1 others from successive necessary to do so, refer to many — ; Colonia! Secretaries, calling upon successive Governors 0 i ] the Crown Lands, and this Colony to watch carefully over ao oo the territorial revenue of the Crown generally therein. bu i h on this head to prove that the I have already said enoug eh ged hye Crown has duly asserted, and fully maintained its 11 ns all lands ungranted, and to all lands specifically reserved in However, thinking that the Bill, if it | Octobe any graats of lands in this Island, made by it since 1764 , of the Crown generally were transferred b Majesty ‘to the Legislature of the Colony; and I think the facts respecting the administration of our public affairs by | i ed, to Ww our local Government since that event occurred, have adverted, have also made it clear that the local Go- ‘own knowledge many years ago. Resolved, Taat this House is of opinion that the right of »| this Government to dispose of those Fishery Reserves, the 2 ; eer e | soil of which is reserved to the Crown, is not a right depending position os that occupied by Her Majesty previous to her re- | on any obsolete claim, as stated in the Despatch of the Right he | Elon. the Secretary of State for the Colonies, dated the 20th r, 1858, but one which isin frequent cxere’se and | cannot be alienated. His Hon. COLONEL SWABEY, having moved his Resolution, said, 1 will merely add that, by consulting the Journal for 1859, it will be seen that the right of the Government to dispose of these Reserves was frequently exercised betweon the years 1813 and 1839; and any one acquainted with the business of the Public Laads Office musi know that ever since the establishment of that office, the same right has been exercised therein every day. lion. Mr. DINGWELL. His Honor, Gol. Swabef has said, that when the Fishery Reserves are upon lands abutting upon the open Sea, there can be no doubt as to their extent; but that, when they are within bays or harbours, or run up eréeks or rivers, it may, very frequently, be a matter of serious difficulty to ascertain their extent. Now, Your Honors, I am of opinion that when the Home Government made the Reserves and specified their extent in the Original Grants, they were very well aware of their real nature. They could not possibly have supposed that the Reserves were upon lands abutting upon the sea only ; for they must have known, quite as well as we do, that although the fish may be taken in the open sea, the open sea-coast could afford no shelter for the fishing craft, or facilities for the safe keeping of boats, fish, or apy other property of fishermen ; and that unless the Reserves were to exiemd along the coasts of the bays and harbours, and up iulets of the sea, creeks, and rivers, the making of them at all would be a mere mockery ; for, otherwise, they would afford none of the necessary facilities for the prosecuting of the Fisheries, to any extent, successfully. Iam glad to be able to admit that, in one respect, the Home Government acted wisely when granting away the lands of this Island ; although, at the same time, I admit that the wholesale mode in which they did it is now most justly condemned by all who ure CONSCLOUs UF its results. The wisdom for which 1 am happy in being able to commend them, is that which they displayed in making the Fishery Reserves, and in making them as they did. The lands were bestowed upon the Original Grantees for little or nothing; but, in making the Vishery Reserves, which have been legally defined as extending up inlets of the sea, creeks, and rivers, us well as along the open coasts of the sea, they evinced a prospective regard for the interests of those who would become the actual settlers in the Island, the cultivators of its soi!, and the openers up of its resources ; and of its natural resources, they must well have known that the Fisheries, if not actually the greatest, would be among the principal. In defining the extent of the Reserves, the Crown Law Officers have, I believe, given it as their opinion that they must be held to extend, not only along the sea coasts, but up inlets of the sea, creeks, rivers, and streams as far as the tide flows; and, I think, any other definition of their extent would be fallacious and absurd, although I admit that some authority in the Island should be invested with a discretionary power, by the due exercise of which their being carried too far inland might be prevented. Their extent in such direction certainly cannot, I think, be fairly determined, unless highwater mark, or the flow of the tide inland, be made the grouud of the determination. Any deviation from their extent so indicated would, almost) to them, that effect would amount to nothing short of 2 most ‘ territorial | invariably, lead parties into doubts, difficulties, disputes, and | tievyous public robbery—a total deprivation of the only up to the time when all Crown Lands, and the " — very probably, in the eof into leW'sdite."T will }uot nsebtion g P y P upon some authority to prevent their being carried to an | Opposed to those of the people of this Island, I should think be ref he has had but little room left | lor impaytiality, how much soever he may bave been disposed | the m He says, “I could earnest! is IS, y wish the 5 | Legislature would devote its attention to some feasible scheme ore His Honor then read and moved | > eee CHARLOTTETOWN, PRINCE EDWARD ISLAND, MONDAY, MAY 16. 1859. | fishermen. ‘really be reouired by | Sold them, should pay rent for them to the Government. Hon. Mr, BAGNALL, anner in which some portions of the Fishery Reserves been dealt with by the Government of this Colony ; particularly as respects a certain portion of them, which, it appears, was granted by Governor Smith, in the year 1820, to Richard Rollings, subject to the conditions and reservations mentioned in the Royal Instructions, relating to Fisheries to be carried on upon the coasts of this Island; and also, as respects another certain portion of them, granted by Governor Ready to George Clark and anotiier, the same being a part of the shore of Peter’s Island, Rustico, “to be held,” as appears by a record of the Grant, “so long as the said George Clark and another, their heirs and assigns, shall actually carry on and conduct a L'ishery on the said premises —to cease, determine, and be void, if they shull cease from so carrying on or conducting the same fora longer period than eight months at any one time.” These two cases of the disposal of portions of the Fishery Reserves, and others Which have subsequently been made, from time to time, by succesgive Governors or Governments of the Island, up to the present time, are quite sufficient, | should think, in the opinion of any reasonable man, to prove that the right of the Crown, or of the Government of this Island to dispose of such Vishery Reserves, has never been relinquished, or even more, that it has never ceased to be exercised, except during very short intervals. This being the real state of the question, L know not on what grounds the present Secretary of State for the Colonies has presumed to call the claim, on which our Legislature has based the provisions of the Fishery Reserves Bill, “an obsolete claim.” The claim is most certainly anything but obsolete; fur not only has it been duly asserted and acted upon ever since the first Order in Council, ssion of them, at least until they should ted, for bona fide fishing purposes, by As respects Fishery Reserves, which proprietors ‘have sold, I think that, whilst the purchasers should be left |ta undisturbed possession of them, except when they should fishermen, for fishing purposes, the Tier. LITERATURE AND NEWS. —— ———————— — (EDITOR No: 45. t, and to allow the tenants to remain in Law, the Government was in a position to assert the claim of the Crown to all Reserves in which the fee simple isin the Crown, } advised the instituting of legal suits, at Common Law, against unjustifiable possession of ut, important as it is that the Government should be able, on certain and positive grounds, to procure a final decision, in every case, in which the extent ; of any Reserve is in dispute, we had better not allow ourselves proprietors oy the representatives of the proprietors who|to be in any way perplexed by the consideration of that | question at present; but confine ourselves to that which is I have some little knowledge of | PFopetly under diseussion. individuals having and retainin any portions of such Reserves. (To be continued.) -?-ea¢+e o— SUMMARY OF PROCEEDINGS, MISCELLANEOUS PETIMONS, The following petitions were presented to tho Louse, and tho same were S8everally received and read, viz :— By Hon. Mr. Dingwell.—A petition of divers inhabitants of St. Peter’s Lake, Township No. 39 and vicinity, praying that the Act for the protection of the Alewives Fishery may be amended by preventing the setting of nets or seining witli- in a certain distanee of the mouth or entrance of the Lake. | By, Hon. Mr. Forgan.--A petition of the Mayor and Com- mon Council of the City of Charlottetown, setting forth that in consequence of the outer end of Pownal-sireot wharf being appropriated to the use of the steamer Westmorland, to the excluding all other vessels, tho amount of wharfage is consi- derably lessened—that a sum of £600 will be required to re- pair the said whar?. Memorialista; therefore, respectfully submit that a portion of the publie revenue ought to be ex- pended for that purpose, and pray that the premises may re- ceive the favorable consideration of the House. By Hon. Mr. Forgan.—A_ petition of divers inhabitants of Townships Nos. 65 aud 30, praying that the Legislative Council will concur with the House of Assembly in granting a sum sufficient to provide a Rope and Winch for the Seow at Elliot River Ferry. By Hon. Mr. Bagnall.—A petition of divers inhabitants of Township No. 25, praying that a Post Office may be estab- lished at the residence of dooms Rogers. By Hon. Mr. Bagnall.—A petition of divers inhabitants of Summerside and vicinity, praying that the Legislative Coun cil will coneur with the Mouse of Assembly in the making of a pecuniary grant in aid of individual subscriptions towards purchasing a Fire Engine. made in 1764, for the grauting of the lands of this Island, came into effect in the Island, up to the present time, as his | been most clearly shewn by Lis Honor Coleuial Swabey ; but the people have always been fully alive to the great value of the advantages which the strict preservation of thes Keserves and their due allotment to the purposes to which they wore originally dedicated, are calculated to confer upon then generally 5 and [ believe they have never failed to take advantage of every suitable oecasion to give public expression of their seytimients to this effect. With resp2cb to another portion of the’ Fishery Reserves, at Rustico, on Middleton's Cove, L indy disi be allowed to state, that when, years ago, the establishment of a Fishery was first pro‘ected there, the project was abandoned because, as there were no roads to the Reserve, or shore, through any of the farms adjoining the Reserve, or abutting on the shore, and consequently no access to the Reserve, except by and from the water, it was thought it could not be carried on with any reasonabie prospeet of succes. Dut a few years ago, roads having been previously opened to the shore, through the lands abutting thereon, Mr. Dean obtained a licence of occupation of this Reserve for the purpose of conducting a fishery thereon, and the concern has, under good and judicious management, grown up into a large, success!ul, and very useful establishment. The determining of the real extent of the Fishery Reserves up creeks, inlets, rivers, and streams, has hitherto puzzied the wisdom of all our legislators; and all the legal acumen of the Crown Lawyers has been brought to bear upon it in vain; but His Honor, Mr. Dingwell, appears, nevertheless, to have got completely over the difficulty ; and L, therefore, beg leave to congratulate him upon his happy solution of so difficult a question. Hon. Mr. DINGWELL explained. I merely said that, in my opinion, the extent of the Fishery Reserves, in such Cases, evuld not he ascertained in anything like a certain and satisfactoriy manner, unless 1t Were W UG deiwsmiwed hy tho extent to which the sea flows up the rivers, creeks, inlets, and streams; aad I certainly think that any other mode of determining their extent would be unjust and arbitrary. lion. Mr. BAGNALL. Well, it is certainly very clear that if fishermen were to be excluded from the bays or har- bours, or even to be prevented from prosecuting or carrying on the business of the Fisheries freely in the creeks, inlets, rivers, and streams, as far up as the tide flows and as natural facilities are to be found for fishing purposes, such exclusion and prevention would, in fact, amount to little less| than actual prohibition of the trade, as respects the people of | the Island themselves. The fishermen must be allowed freely | to enter our bays and ecrecks, and freely to ascend up cur rivers, streams, and inlets, and to come within the bars of | our harbours, not only for the purpose of sheltering their fishing craft and boats, but also for that of drying and curing their fish, or the privileges offorded to them, as fishermen, upon the open sea coasts would be of very little vaiue to them. And, with respect to the views of the present Secretary of State for the Colonies, Sir Edward Bulwer Lytton, concerning that class of Reserves in which the fee simple is in the Crown, as he hus expressed them in the Despatch now before | : | right, privilege, or benefit prospectively reserved for the people | (for the purpose of shewing that power should be conferred |by the Crown, when granting away, without consideration, | t ed the lands of this Island. but, whatever, may be determined | 0 ; hich [ | undue extent inland,) a circumstance which came within my | ejsewhere respecting the very humble and submissive mode | the same were severally received and réad, viz: A person who was settled | of conciliating the proprietors, reeommended for the adoption us, I certainly think that were legislative or legal effect given | By the Hon. Mr. Forgan— A petition of the Minister, Trustees, and Members of the Calvanistic Baptist. Church vf Bedeque, praying for an Act of Incorporation. Ordered, That the last six preceding petitions be referred | to the Special Committee appointed to report on all petitions | relating to miseellancous subjects. TEACAERS’ PETITIONS. By Hon. Mr. MelIntyre—A_ petition of Artemas Morrow Teacher, and the Trustees of the Morell District School, pray- ing that the Legislative Council will concur with the Hines of Assembly in granting a sum of money a6 a remuneration for the services of the said Teacher. By lion. Mr. Metntyre—A petition of divers inhabitants of Little Harbour School District, Township No. 45, praying remuncration for the seryices of Matthew Reville, an un- licensed Teacher. By Ilon. Mr. Forcan, a petition of John Stewart, Teacher, of the Rona District Schoal, Township No. 62, praying that the Legislative Council will concur with the House of Assembly in granting the sum of £14 2s. 6d. which was. deducted from his usual semi-annual allowance, in consequence of his not having had the average attendance of scholars required by law. By Hon. Mr. Bacau, a petition of Robine Richardson, an unlicensed Teacher, praying remuneration for her services as such at Summerside. By Hon. Mr. Bagnaxt, a petitionof Ellen Walsh, Teacher, raying that the Legisletive Couneii will coueur with the jouse of Assembly in granting her the sum of £8 15s. Od., which sum has been deducted from her usual half year’s allow- ance in consequences of her not having had the average attend- ance of scholars required by law. Ordered, That the five last preceding petitions be referred to the special committee appointed to report on all petitions relating to education. : Wepyespay, April 27, 18509 The following petitions were presented to the House by: the Hon. Mr. Dixrewrun, and the same were severally re- ecived and read, viz: A petition of Charlotte Jane Alley, praying that the Legislative Guuucit will eanenr with the House of Assombly in granting her allowance as a Teacher for six months at Cardigan, which has been withheld on the ground of deficicney. on the average daily attendance of pupils: A petition of John McDonald, late Teacher of the Powna! District School, Township No. 69, praying that the Legis- lative Council will concur with the House of Assembly in granting him the sum of £11 17s. 6d. which he claims for six mouths’ services, and which was withheld in consequence of his not having bad the daily average attendance of pupils required by law. A petition of Mary Ann Anderson, of Sea Cow Head, West Bedeque, licensed Teacher, praying remuneration for her services for six months amounting to £17 10s. Od., which has been withheld in consequence of an allegod irregularity or breach of the rules of the Government schools. A petition of Henry Vickerson, late Teacher at Elliot River, praying that the Legislative Council will concur with the House of Assembly in granting him tie sum of £12 0s. 74d. which he claims as the balance for his services for six months, and which has been withheld in consequence of a very slight deficiency in the daily average attendance of pupils required by law. Ordered, That these four petitions be referred to the special committee appointed to report on all petitions relating to education. sa Tuurspay, April 28. The following petitions were presented to the House, and By Hon. Mr. Forgan, a petition of Margaret Morrison, meat and the Legislatare have been unremittingly a long way inland, thought proper to engage in fishing on a of this Legislature, by Sir Edward Bulwer Lytton, 1 hope | of Bonshaw, in indigent circumstances, with an aged parent, verome 3 watchful for the protection, with no other end ia the public benefit of all property then transferred to them, |to go up a brook, he took down a rail or fence which, as 2 for the interests of the people, as most steadlustly to refuse e puv Majesiy. It wiil, therefore, I trust, be freely acknowledged by youc Honors, that it is the duty of this House to protest inst the declaration made by Sir Edward Bulwer Lytton, ia bis capacity of Colonial Minister, that the claim asserted by the Legislature avd Government of this Colony to the ishery Reserves, and set forth by them in the Bill to which he says he cannot advise that Her Majesty’s consent should be given, is an obsolete claim ; and to withstand, to the very utmost of their constitutional power, to resist the intention, spirit of fa | bear upon It. or rather the attempt which is being made to transfer or give up to the ae oe a most valuable public property, | on no other grounds of justification of such public spoliation, than that the proprietors “ have leased it, improved it, and incorporated it into farms ;” and that their adverse—although most unjust and constantly disputed occupancy thervof defeats the title thereto of the Crown. ‘such a liberty is to be denied or withheld, it will frequently ‘be very difficult for a man engaged in the fisheries to tell. ‘where he can find or ve allowed a suitable place to cure his ‘fish. This question, involved as it is in that of the extent of ‘the Fishery Reserves inland, is one of very great importance ; ‘but yet it is one which I think might easily be settled if a f fairness and moderation were brought directly to ; ae ‘poundary partition had been run across the brook, and for | their sanction to it. and placed under their control ad at their ee ced | ising my was prosecuted by the party who bad put up the!” Hon. COLONE! ‘fence or barrier, and involved in a vexatious law suit. | Hon. COLONEL SWABEY. The answer of the Crown If Law Officers to the query, What is the legal meaning of the | word ** Coasts ’’ in the Grants? is this: | ‘The word ‘* Coasts ’’ has no clearly defined legal meaning ; and its meaning in any particular Grant, may depend upon the other parts of the Deed, and the description and local Situation of the premises. We should conceive, however, that I am not, however, such an advocate for the’ exercise of this liberty as to wish or seek to disturb the recognized rights of property by insisting upon it to any thing ‘that could fairly be deemed aa unreasonable or unjust extent. ‘In many cases, I do not mean all, I think, the best way ‘would be to allow the proprietors who have improperly It is very easy to! leased Fishery Reserves, to pay the rents arising from them generally it would be taken to apply to those places in which the sea cbbs and flows, and thatit would extend, therefore, to those portions of the Bays, Harbours, and Rivers, ia which there was an ebb and flow of the sea.”’ s ‘Taking this genora! interpretation of tye word ‘* Coasts,’’ and being governed by it, in seeking to ascertain the extent of any Reserves in any locality, little or no difficulty would attend it ; and I imagine that, with respect to the extent of the Reserves from which the late Government haye sought to eject Mr. Cox, ,it would be found they extend along way past Mr. Cox’s pro- perty. In #850, persuaded that, independently of any Statute Fie. aK ne view than | small scale, and in returning home, from the open sea, having | this House at least will evince so much independent regard. who is very infirm, praying relief. A petition of William G. Mugford, of Charlottetown, ‘cripple, in destitute circumstances, praying relict, |. Ordered, That these two petitions be referred to the »special committee appuinied to report on all petitions relating ‘to paupers. . A petition of John McKinnon, late a Preventive Officer, at Charlottetown, regarding the seizure of the schooner '« Dragonet” in the year 1805, for a breach of the Revenue ‘Law, aud praying compensation for services performed, by him. A petition of Duncan McPhee and Hector McLean, praying to be indemnified for certain work performed at Prinee-street Wharf, and materials provided, in the year 1856. " Ordered, That the last two petitions be referred to. the special committee appointed to report on petitions relating to miscellaneous subjects. (For continuation see last page.) ’ ; j ano PUBLISHER. #4 ‘ ’ : * 2 » < ; [= - = + Sew ian ever Ts