Confederation
1864-1949



The Labrador Boundary


Privy Council Documents


Volume I

Volume II

Volume III

Volume IV

Volume V

Volume VI

Volume VII

Volume VIII

Volume IX

Volume X

Volume XI
Contents

Volume XII








21 Oct., 1926.

Sir John Simon.

Viscount
Haldane.

Sir John Simon.

The Lord
Chancellor.

21 Oct., 1926.

Sir John Simon.

Viscount
Finlay.

Sir Thomas
Warrington.

21 Oct., 1926.

Sir John Simon.

Sir Thomas
Warrington.

Sir John Simon.

21 Oct., 1926.

Sir John Simon.


p. 11

Viscount HALDANE: We talk as though the Crown had established colonies in those places. A colony ordinarily understood is something with a defined area. Newfoundand was little more than a station for fishing and a station for which the Navy at home had to be recruited, and was under the rule of a British admiral. By degrees the Government of Newfoundland became crystallised into its present form, but that took a very long time. I was going to ask you this: when there was the setting up of Newfoundland as a possession of the Crown it may be that it was little more than the setting up of the rule of an admiral, but when you extend the boundaries of Newfoundland it may be that what would ordinarily look like a mere strip may be something much larger, an undefined area in which the Naval Governor is to operate. The whole point may be quite unimportant—I do not know—but all I ask you to do is to bear it in mind.

Sir JOHN SIMON: I have not only borne it in mind, but I have spent a good many months in endeavouring to prepare myself to present it to your Lordships.

Viscount HALDANE: We shall get Mr. Higgins's criticism of some of these vague sections.

Sir JOHN SIMON: We have not come to any section yet. It would be of very great assistance, having to deal with a large mass of material, if I might ask your attention to the area of the Hudson's Bay Company, in the first instance. I am then going to pass to the other areas, not forgetting the one which your Lordship has already in mind. I take this because 1670 is a definite date and there happens to be a definite document, and it is rather convenient to get rid of that portion.

Viscount HALDANE: We have seen this before. Out of it a great deal of the north-west territory was carved.

Sir JOHN SIMON: I must now ask your Lordships to turn to a green book, Volume II.

The LORD CHANCELLOR: We are getting to the condition of things at the date of the Treaty of Paris.

Sir JOHN SIMON: That is the point, my Lord. I am going round, and will then fill it all up. Nobody could read the Treaty, and still less the arrangements made in connection with the Treaty, unless they had, as it were, blocked up the map. I was going to take the Charter of the Hudson's Bay Company and call attention to a map. The Charter is to be found in Volume II. on page 367. This is, as my Lord has observed, a document which has been before the Court many times, and my excuse for dwelling upon it now is not because I think it is unknown to your Lordships. but because we are dealing here with very important matters, and probably it is as well to look at it afresh.

p. 12

Viscount HALDANE: It might be as well if we had a map of the whole of Canada in some shape or form, because so much of Canada was carved out of the Hudson's Bay territory.

Sir JOHN SIMON: That is quite true. I had prepared myself from that point of view. The difficulty is this: your Lordships would really need a map with no boundaries on it, and that is not quite the same thing.

Viscount HALDANE: That is not quite the same thing. Still, we could see how the boundaries had been restricted.

Sir JOHN SIMON: I know your Lordship will trust me. I have had that in my mind, and I am going to call attention in a moment to a map which I think will help you. Might we look at the actual language of the document? It is a Charter granted by Charles II. It is interesting to notice the first name in the Charter at line 12 on the page is: “Our dear and entirely beloved cousin, Prince Rupert,” which is the reason part of the land was called Rupert's Land. There are a number of other names, many of them interesting names to note to-day. It recites that Prince Rupert, the Duke of Albemarle, Lord Craven, Lord Arlington, Lord Ashley, and a number of other persons, John Portman, citizen and goldsmith of London, “have, at their own great cost and charges, undertaken an expedition for Hudson's Bay in the north-west part of America.”

The LORD CHANCELLOR: The north-west part of America?

Sir JOHN SIMON: They did not know how much more west there was. It all depends upon how much further you think it goes. “For the discovery of a new passage into the South Sea, and for the finding some trade for furs, minerals and other considerable commodities, and by such their undertaking have already made such discoveries as do encourage them to proceed further in pursuance of their said design, by means whereof there may probably arise very great advantage to us and our kingdom: And whereas the said Undertakers, for their further encouragement in the said design, have humbly besought us to incorporate them, and grant unto them and their successors the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in whatever latitude they shall be, that lie within the entrance of the straits commonly called Hudson's Straits, together with all the lands, countries and territories”—I venture to think the next words may have a little importance—“upon the coasts”—that is one of the early instances of the use of this rather difficult phrase—“and confines of the seas, straits, bays, lakes, rivers, creeks, and sounds aforesaid”

Viscount HALDANE: It seems to suggest that there was granted the commerce of the rivers which flowed into the bay.

p. 13

Sir JOHN SIMON: I think so:—“which are not now actually possessed by any of our subjects, or by the subjects of any other Christian Prince or State.” That is all recital.

Viscount FINLAY: I think the word “coasts,” particularly in early English, was not confined to the coast of any piece of water.

Sir JOHN SIMON: I think not. One could give examples which actually go back to the authorised version of the Bible. There are many cases. What my Lord Finlay says is an extremely important consideration which I shall have to develop.

Sir THOMAS WARRINGTON: Here the expression is “coasts and confines of the seas.”

Sir JOHN SIMON: Your Lordship will see in a moment what is the area which, by common consent, was indicated by those terms. Those words are words of recital, but your Lordships had better have the words of the grant, which are on the same page, page 368. “And to the end the said Governor and Company of Adventurers of England trading into Hudson's Bay may be encouraged to undertake and effectually to prosecute the said design, of our more especial grace certain knowledge and mere motion we have given, granted and confirmed, and by these presents, for us, our heirs and successors, do give, grant and confirm, unto the said Governor and Company, and their successors, the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds in whatsoever latitude they shall be, that lie within the entrance of the straits, commonly called Hudson's Straits, together with all the lands and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid, that are not already actually possessed by or granted,” and so on. Then at line 24 it reads: “and that the said land be from henceforth reckoned and reputed as one of our plantations or Colonies in America, called 'Rupert's Land': And further we do by these presents, for us, our heirs and successors, make, create and constitute the said Governor and Company for the time being, and their successors, the true and absolute lords and proprietors of the same territory, limits and places aforesaid.” Your Lordships know well that the authority of the Hudson's Bay Company in its area, whatever it is, was of an extraordinarily high degree; they are made absolute lords and proprietors of “the same territory, limits and places aforesaid” . . . . “To have, hold, possess and enjoy the said territory, limits and places, and all and singular others the premises thereby granted as aforesaid, with their and every of their rights,” and so on. Then there is rather an interesting acknowledgment of the King's overlordship which perhaps it is worth reading. It is at the bottom of the page: “paying yearly to us our heirs and successors for the same two elks and two black beavers whensoever and so often as we our heirs and successors shall happen to enter the said Countries Terri-

p. 14

tories and Regions hereby granted.” The word “coasts” is also used I think very much in the way Lord Finlay was suggesting, on the next page, page 369, “And furthermore,” and so on, “we have granted, and by these presents, for us, our heirs and successors, do grant unto the said Governor and Company, and their successors, that they and their successors, and their factors, servants, and agents, for them and on their behalf, and not otherwise, shall for ever hereafter have, use and enjoy, not only the whole, entire and only trade and traffic, and the whole, entire and only liberty, use and privilege of trading and trafficking to and from the territory, limits or places aforesaid; but also the whole and entire trade and traffic to and from all havens, bays, creeks, rivers, lakes and seas, into which they shall find entrance or passage by water or land out of the territories, limits or places aforesaid; and to and with all the natives and people inhabiting, or which shall inhabit within the territories, limits and places aforesaid; and to and with all other nations inhabiting any of the coasts adjacent to the said territories, limits and places, which are not already possessed as aforesaid.” I ask your Lordships to note the use of that word “coasts” there; it seems at any rate very plausible that in that particular connotation it is not even a maritime term at all; whether it is or not, it obviously indicates a substantial area. That, I think, is one of the documents which it is convenient to look at.
Now might I ask your Lordships—you have indulged me so much in waiting for a map—to turn to the smaller atlas in the white cover, and, by way of illustration, to turn to one of the maps. I am quite deliberately taking this, because I think it satisfies for the moment one of Lord Haldane's suggestions. This is the Newfoundland atlas, and if your Lordships will turn to Map 26, I think it is what Lord Haldane had in mind. This is a map with a very interesting history. Perhaps I might just indicate what it is. There was a Committee of the House of Commons which was set up for the purpose of examining the question as to whether the Hudson's Bay Company should continue to be proprietors administering this territory, or whether, on the other hand, the Hudson's Bay Company should be dispossessed and bought out.

Lord HALIDANE: What date is that?

Sir JOHN SlMON: I think it sat in 1857. It was a very distinguished Committee. I was interested to notice that Mr. Gladstone was a member of it. Mr. Roebuck took a part in it, and quite a number of well-known parliamentary names appear.

Sir THOMAS WARRINGTON: I see it says “ordered to be printed.”

Sir JOHN SIMON: Lord Warrington is quite right; you will get it from the bottom of this map: “Ordered by the House of Commons to be printed, 13 July and the 11 August, 1857.” It is an Arrowsmith map. Arrowsmith was a very well-known cartographer in

p. 15

the middle of the last century. The House of Commons in connection with that Committee caused this map to be printed. The green area indicates what at any rate at that time was supposed to be the Hudson's Bay area. I am not concerned in the least whether the map in every other respect is right, but anyone who is interested in the boundaries of Alaska may observe that it gives a boundary for that. I think Lord Finlay has seen this map before, and has spent many hours on it. For the present purpose I am merely on the green area. You notice in the title to the map, which is on the left-hand side of the chart, it says, “Map of North America, drawn by J. Arrowsmith. On this map the territories claimed by the Hudson's Bay Company in virtue of the charter granted to them by King Charles II. are coloured green; the other British territories pink, and those of Russia yellow.” What interests me, my Lord, and I think it is really important to notice it as we pass, is this, that you see here illustrated what undoubtedly was the prevailing view, that the Hudson's Bay territories extended to what you may call the height of land. It is a phrase more used in the New World than in the Old, but it means the watershed. You will notice the boundaries in the peninsula of Labrador between the green and the pink, between the Hudson's Bay areas and those not Hudson's Bay areas, are indicated by dotted lines, three dots and a space, and so on. It is evident, looking at that, the view was that you would get the Hudson's Bay territory running up to what is called the height of land.

Viscount HALDANE: Height of land is not marked.

Sir JOHN SIMON: No; but if you look at the way the rivers are drawn you will see that they are one way or the other; it is the watershed. In the whole series of areas under the British Crown in the 17th and 18th centuries, this principle of ascertaining the boundary is the principle which is found to be constantly applied. It is not that you get in the terms of the grant, the line traced, or even the words used. You can illustrate it again and again from the Continent of North America. If you had such a thing as a grant or claim to what was called a coast, in the absence of some other and precise artificial line, the view which prevailed, and the meaning attaching to the grant, was one which carried you up to a point which would thus be traced. Take, for instance, the ancient Colony of Virginia, going back to Queen Elizabeth. The coast of Virginia meant going up to a point where the watershed caused the rivers to flow. There is exactly she same thing in Carolina, a whole series of them. How far the Hudson's Bay Company went to the west has always been, as your Lordships know, a tremendous controversy, because the Hudson's Bay put forward very big claims which on one view might even have carried them to the Pacific, but so far as regards the area we are more intimately concerned with, which is the Labrador Peninsula, there is no doubt about this that if anybody sat down in the middle of the 18th century and said to himself “Now, how far is this area an area

[1927lab]




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