ning with the Louisiana boundary controversy, 1805, where it was propounded for the first time) are nothing more than instances where one or more states as parties to a dispute put forward—because it served or appeared to serve their interests—a theory having some resemblance to what is now contended to have been a rule of law. This theory, however, never received any such recognition as to make it a part of the "Law of Nations." The decision of the Judicial Committee of the Privy Council in the Ontario-Manitoba Boundary Case, 1884 (to which case the Colony refers) and the dicta of their Lordships abundantly support this conclusion. The "watershed" theory was advanced in that case; all the authorities now put forward by the Colony as supporting it were cited in the course of the argument; but their Lordships expressed themselves in no unmistakable terms as being clearly of the opinion that this theory had received no such recognition as would entitle it to be cited, much less countenanced, as an accepted principle of the law of nations. Moreover, the theory, even as a theory, had never been dreamed of when the coast of Labrador was put under the care and inspection of the Governor of Newfoundland. It was a much more modern invention.
The years 1854 to 1880, having been described in the last preceding "Reason" as "the crucial years," it is, perhaps, to be assumed that the Colony's claim is that it was during these years the occupation of a "coast" produced the alleged effect. Canada does not hesitate to deny that in those or any other years the occupation of a "coast" produced the alleged effect. Canada does not hesitate to deny that in those or any others years the alleged rule formed part of the Law of Nations, but, in any event, it certainly cannot have governed acts and instruments executed and given full effect to something like one hundred years prior to the period mentioned, and at a time when it is not even pretended to have been known of either as a rule or even as a theory.
14. It may, furthermore, be noted that the alleged "Law of Nations" has to do with the effect of occupation of a coast as conferring a right to the hinterland of such coast. Here there is no question of acquisition by occupation. Settlements on the coast were, indeed, rigidly excluded under the
Instruments of 1763, and the regulations which were made for its government. Such rights as Newfoundland has she holds under the legislative action of His Majesty and the Parliament of Great Britain, and not by virtue of any occupation on her part. And finally, the rule that is invoked as forming part of the "Law of Nations" is not even stated to be that a coast in itself includes the hinterland. On the contrary, the rule as stated implies that a coast and a hinterland are—as, of course, they are—two perfectly distinct things, the occupation of one whereof gives a claim to the other. It is not even suggested that there was a "Law of Nations" to the effect that when one said "coast," he meant hinterland, and it cannot be said too often, the entire question before this Court is: What did His Majesty mean when he spoke of the coast of Labrador in the Commission of Captain Graves and the Proclamation of 1763?
15. Finally, the Colony's contention "that the crest of the watershed would be a natural limit to impose in a grant 'to the end that the open and free fishery . . . might be extended to and carried on upon the coast of Labrador and the adjacent islands,' since it would be contemplated that the fishing to be encouraged would be for cod on the seashore, but also for salmon along the rivers as far as the fishermen cared to go," disregards all the conditions and limitations imposed by the policy of Great Britain as regards the fishery at Newfoundland and on the Labrador coast. The evidence in the case puts it beyond dispute that " the open and free fishery of our subjects" referred to in the Royal Proclamation of the 7th October, 1763, was the deep-sea fishery for cod, with the appurtenant right to take bait, then carried on upon the seacoasts of Newfoundland under the special title and regulations established or rather confirmed by the Imperial Act 10-11 Wm. III., c. 25; that the policy underlying all the measures relating to this fishery was to establish a nursery for seamen to man the Royal Navy; that, in pursuance of this policy, the object aimed at was the encouragement of a transitory fishery to be carried on by Englishmen whose homes were in England where they would
be available to the Navy; and that, under the regulations established for that coast, the salmon fishing was no more than a premium offered to attract fishermen from England to the prosecution of the paramount object—the deep-sea fishery for cod. It was thus an object of attention only in so far as it was or could be carried on within the same area as the cod fishery, i.e., on the sea-coast. The "coast," under these circumstances, was a mere appendage of the sea, and its depth inland would naturally be limited to what was required to accommodate those who carried on the deep-sea fishery under the several laws and regulations governing this fishery.
REASON 4: Because Newfoundland, and Newfoundland alone, between 1763 and 1880, effectively controlled and occupied the area from the coastline back to the height of land.
16. This "Reason" raises an issue of fact in regard to the extent of territory effectively controlled and occupied by the Colony of Newfoundland between the years mentioned. That this occupation covered the area from the coastline back to the height of land, Canada submits is unsupported by any evidence that has been or could be adduced. The great bulk of the acts of occupation claimed to have been performed, are, from Canada's point of view, quite innocuous, inasmuch as they were so performed within the strip of seacoast over which Canada does not dispute the Colony's authority. The acts of administration claimed to have been performed beyond these limits are, on the Colony's own showing, so few, so trifling, and so widely scattered in time as to offer no support whatever to the affirmation contained in this "Reason;" and were, moreover, if done at all, done without right, and constituted a mere usurpation of authority and trespass upon the territorial jurisdiction of Canada, which cannot be invoked as evidencing any right. Canada, on the other hand, establishes by documents produced in support of her Case and of this present Counter-Case, that she alone has had any effective occupation and has exercised any effective powers of administration and authority within the disputed territory. Moreover, as already pointed
out, there is here no question of acquisition by occupation. Newfoundland's rights, whatever their extent, rest exclusively on the titles which conferred them.
REASON 5: Because the maps between 1763 and 1880 show that according to the general belief and reputation prevailing at all material times, the jurisdiction of the Government of Newfoundland extended as far inland as the height of land.
17. In support of this "Reason" the Colony has reproduced in the Atlas accompanying its Case a series of forty-six maps, or portion of maps of the Labrador peninsula, or parts thereof, dating from 1656 to 1912. A number of these maps purport to show geographical conditions called by the Colony "traditional boundaries" existing in the Peninsula of Labrador, or parts of that Peninsula, prior to the Commission and Proclamation of 1763, which so-called "traditional boundaries," it is claimed, are reproduced in subsequent maps. It may be said at once that, whatever divisions may have been made by map-makers or believed by them to have existed or may have actually existed prior to His Majesty having in 1763 by the Commission to Graves and the Royal Proclamation of that year dealt with the coast of Labrador as including and embracing the entire coast of the Atlantic and of the Gulf from Hudson's Straits, to the River St. John, and with Labrador as embracing the entire territory whereof that was the coast, that action on His part obliterated any such divisions.
It matters not at all what internal divisions of the Peninsula may have existed or been believed to have existed prior to this action on His part. Furthermore, nothing shown on these maps indicates any division between interior territory and coast of Labrador, and that is the only boundary line in question in this case. Whatever weight may attach to maps generally as evidence of reputation where such maps are contemporaneous, and in agreement in what they purport to show, and where reputation is a material factor, it is submitted that nothing appears upon those produced by the Colony bearing upon, or which can or should affect the interpretation of the word "coast," as used by His Majesty in the
Commission and Proclamation of 1763. These maps, it is further submitted, entirely fail to support the contention set forth in this "Reason, namely, that the maps between 1763 and 1880 show that according to the general belief and reputation prevailing at all material times, the jurisdiction of the Government of Newfoundland extended as far inland as the height of land." The maps in question neither shown or purport to show anything tending to establish any such belief or reputation existing at any time in regard to the extent of the jurisdiction of the Government of Newfoundland.
REASON 6: Because no other precise interior boundary has ever been suggested for which definite reasons can be advanced.
18. Canada submits that definite reasons have been advanced in the Dominion's Case and in this Counter-case in support of the boundary suggested by Canada, and that this is the only boundary not merely suggested by, but consistent with, any construction of which the Statutes, Orders-in-Council and Proclamations can be shown to be capable.
II. THE LINE OF THE 52ND PARALLEL OF NORTH LATITUDE.
19. The claim to this line as the Southern boundary appears to rest entirely upon the effect attached by the Colony of Newfoundland to the British North America (Seignorial Rights) Acts 1825. Canada has already, in its Case (p. 81, para. 30) explained what that legislation was intended to effect, and did, in reality, effect, viz.: the transference from the jurisdiction of Newfoundland to that of Lower Canada of the length of the coast of the Gulf of St. Lawrence extending from "Ance Sablon, inclusive" to the River St. John. By that explanation Canada stands. Canada submits that the Act cited dealt in no way with the question of the inland depth of the coast. Whatever was the depth of the coast prior to that Act continued to be the depth of that coast after it. All that the Act determined was that the "coast," whatever its then existing depth, should in the length above mentioned be annexed to the Province of Lower Canada.