due north and south from the bay or harbour of Ance Sablon inclusive, as far as the 52nd degree of North Latitude.
The evidence between the years 1854 (when the final step was taken to make Newfoundland a responsible self-governing colony) and 1880 when the Order-in-Council referred to in paragraph 30 hereof was issued makes any other view untenable. These years are of peculiar importance in this dispute, because in them the question of the interior boundaries of the peninsula first assumed practical importance. In 1857 the Committee of the House of Commons referred to in paragraph 4 hereof, was appointed to inquire into the affairs of the Hudson's Bay Company's territories. The question was raised whether Fort Nascopie (situate on the second northern bay of Lake Petitsikapau, practically at the height of land at the source of the Hamilton River) was within the jurisdiction of the Company or of Newfoundland, and the evidence on this point of Sir George Simpson for many years Governor of the Hudson's Bay Company should, it is submitted, be given great weight, as expressing the official view of the Company as to what was understood to be and was treated as the area comprised in the "coast" of Labrador. Sir George Simpson considered that Fort Nascopie was within the jurisdiction of the Newfoundland Government. Cf. his evidence before the Committee, and also a letter dated 17th January, 1849, to Sir Henry J. Tetley, forwarding from Earl Grey a despatch from the Governor General of Canada with letters from one Kennedy, making charges against the Hudson's Bay Company, and Sir George Simpson's reply. In this correspondence Mr. Kennedy described a journey from Hudson's Straits with Indians six hundred miles through the interior of Labrador, and the murder in 1840 of one Indian by another at Fort Nascopie. Sir George Simpson replied that even if he had known of this murder earlier he could have done nothing, because the murder was "committed within the jurisdiction of Newfoundland, where the Company have no exclusive rights of trade, but are merely as one in the crowd of traders," the only difference being that the Company penetrates to parts of the country inaccessible to many others.
In the same Report of the Hudson's Bay Company Committee, Questions and Answers 26, 739, and 3106 support the submission that it was generally believed and understood that the boundaries in Labrador were determined on a "watershed" or "height-of-land" basis. Moreover J. Arrowsmith's map (dated 1857), which was referred to in the proceedings, and is attached to the Report and was ordered by the House of Commons to be printed, emphasises this height of land basis, and assigns to Newfoundland the boundaries claimed by her in this Arbitration. This map was included in the Atlases on both sides in the Alaska boundary dispute, in which it was described by Mr. Dickinson for the United States as fairly to be considered as an official map. It is supported by other authoritative maps of the period, and must, it may confidently be assumed, have been before those responsible between 1867 and 1880 for the British North America Acts, the Ruperts Land Acts, and the Order-in-Council of 1880. These statutes and Order-in-Council were definitely concerned with the interior limits of territory in the Labrador Peninsula, so that it is important to observe what strong confirmation is given to the evidence already mentioned by two official acknowledgments made by the Canadian Government, first by their official maps of the period, which assign to Newfoundland precisely the area which she now claims, and secondly by the correspondence in 1874 between the Canadian Government and the British Embassy at Washington in reference to the boundary now in dispute. In the course of this correspondence Lord Dufferin, then Governor General of Canada, stated that the line of division in the interior had only been defined as far north as the 52nd degree of north latitude, but that it had always been assumed that the boundary line in the interior would have taken the direction laid down on the accompanying map which followed the height of land. (It has not been possible to trace the actual map so described.)
37. In support of the submission in paragraph 36 hereof the Colony of Newfoundland will rely upon:
(a) a consideration of the maps which will be submitted to the Judicial Committee, as affording
evidence 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; and
(b) the facts referred to in paragraphs 9 to 12 (inclusive), 15 to 18 (inclusive), 23 to 29 (inclusive), as showing that from 1763 to 1880 Newfoundland and Newfoundland alone effectively controlled and occupied the area from the coastline back to the height of land. The Government of Newfoundland in exercising jurisdiction was consciously claiming possessory rights, as appears as early as 1766 from Governor Palliser's proposals for military blockhouses for the purpose (inter alia) of establishing the possessory right to the whole country (cf. the Appendices to the Report of the Lords of Trade dated 13th May, 1766).
38. Even apart from the considerations urged 20 in paragraphs 36 and 37 it is submitted that in any event the conclusion suggested in paragraph 36 necessarily follows from the use of the expression the "coast of Labrador." The line of the crest of the watershed is the only boundary in the interior for which any principle of reason or law can fairly be advanced. At the dates material to be considered for the purposes of the present arbitration, the occupation of a coast would have conferred upon the occupying state a right to the hinterland as far as the height of land, and it is contended that by parity of reasoning the grant of a coast would, in the absence of indication to the contrary, confer jurisdiction over an area similarly limited; and in the present instance, so far from there being any indication to the contrary, the reasons put forward in paragraphs 36 and 37 support the conclusion which would normally be reached, and there is in addition the consideration that the crest of the watershed would be a natural limit to impose in a "grant to the end that open and free fishing . . . might be extended to and carried on upon the coast of Labrador," since it would be contemplated that the fishing to be encouraged would be for cod on the sea-shore, but also for salmon along the rivers, as far as the fishermen cared to go.
In support of the proposition that at the material dates the occupation of a coast would have conferred upon the occupying state a right to the hinterland as far as the height of land, reference can be made to the Louisiana boundary controversy. The American Commissioners contended that the correct principle was that settlements on the seacoast should be taken to extend to the crest of the watershed. They pointed out that it was impossible to accept either of the extreme views, viz. : on the one hand that settlement only entitled the settler to the area actually occupied by him (which in the normal case of occupation by one or a few ships under a commission would have been so small as to be valueless), and, on the other hand, that settlement on a part of an unappropriated or partly unappropriated continent entitled the settler to the whole or the whole of the unappropriated parts of that continent. Messrs Pinckney & Monroe, in a letter of the 20th April, 1805, to Don Pedro Cevallos, setting out the American case say: "The principles are those which have been recognised by European Powers in similar transactions, and which, of course, ought to govern the present one . . . The first of these is that when any European nation takes possession of any extent of sea-coast that possession is understood as extending into the interior country to the sources of the rivers emptying within that coast, to all their branches and the country they cover." They point out how necessary "it is that there should be some such defining principle, and how just this principle is as well as practicable. Nature seems to have destined a range of territory so described for the same society, to have connected its several parts together by the ties of a common interest, and to have detached them from others." Spain did not challenge the principle thus contended for. The United States' Secretary of State, in a letter to Don Luis de Onis of the 12th March, 1818, observed that in the letter of the 20th April, 1805, Messrs. Pinckney & Monroe "lay down and establish by a chain of reasoning that neither Mr. Cevallos at the time, nor your Government at any period since then, ever attempted to break, three principles sanctioned alike by immutable . . . "
" . . . justice, and the general practice of European nations which have formed settlements and held possessions in this Hemisphere, and by the application of which to the facts also stated in their note this question of the Western Boundary ought to have been and ultimately must be settled." The first of these principles was that set out above, i.e., the watershed theory.
Nor is it immaterial to note that in the Ontario-Manitoba Boundary dispute, which came before the Privy Council in 1884 after a previous arbitration at Ottawa in 1878, the Dominion of Canada contended that the northern boundary of Ontario was the height of land dividing the rivers flowing into Hudson's Bay from the waters flowing into the Great Lakes. The issue largely turned upon the construction of the words of the Quebec Act 1774, defining the northern boundary of that Province as the "Southern boundary of the territory granted to the Merchant Adventurers Trading to Hudson's Bay," and the words of the Order-in-Council and Proclamation of 1791 which divided Quebec into Upper and Lower Canada, and carried the dividing line "north until it strikes the boundary line of Hudson's Bay." The Dominion of Canada did not regard this Northern boundary as of great consequence, but it is noteworthy that in their case, prepared for the 1878 Arbitrators, they supported the proposition that possession of a sea-coast is understood as extending into the interior country to the sources of the rivers emptying within that coast, by reference to Phillimore 2nd Edn., Vol. I, pp. 277-9, the U.S. case in the Louisiana dispute, Twiss Oregon, pp. 209-11, 226, 300. Their case further points out that the Commissioners appointed in 1871 by the Governments of the Dominion and Ontario, to settle the north and west boundaries of that Province, received from the Dominion instructions, of which the following is an excerpt: "You will then proceed to trace out survey and mark eastwardly the aforementioned Southern boundary of the territory granted to the Merchant Adventurers of England trading to Hudson's Bay. This is well understood to be the height of land dividing the waters which flow into Hudson's Bay from those emptying into the valleys of the Great . . ."