In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Friday, 22nd October, 1926.
THE RT. HON. THE LORD CHANCELLOR (VISCOUNT CAVE),
THE RT. HON. VISCOUNT HALDANE,
THE RT. HON. VISCOUNT FINLAY,
THE RT. HON. LORD SUMNER, and
THE RT. HON. SIR THOMAS WARRINGTON.
IN THE MATTER OF THE BOUNDARY BETWEEN THE DOMINION OF CANADA AND THE COLONY OF NEWFOUNDLAND IN THE LABRADOR PENINSULA
THE DOMINION OF CANADA (of the one part)
THE COLONY OF NEWFOUNDLAND (of the other part).
[Transcript of the Shorthand Notes of MARTEN, MEREDITH & CO.,
8, New Court, Carey Street, London, W.C. 2, and CHERER & CO.,
2, New Court, Carey Street, London, W.C. 2.]
Counsel for the Colony of Newfoundland :—The Rt. Hon. Sir JOHN SIMON, K.C., Mr. F. T. BARRINGTON WARD, K.C., The Hon. W. J. HIGGINS, K.C. (of the Newfoundland Bar), Mr. W. T. MONCKTON and Mr. C. H. PEARSON, instructed by Messrs. BURN &BERRIDGE.
Counsel for the Dominion of Canada :—The Rt. Hon. H. P. MACMILLAN, K.C. (of the Scottish Bar), The Rt. Hon. C. J. DOHERTY, K.C. (of the Canadian Bar), Mr. AIMÉ GEOFFRION, K.C. (of the Canadian Par), Mr. MAURICE ALEXANDER, K.C. (of the Canadian Bar), Mr. H. STUART MOORE and Mr. C. P. PLAXTOX (of the Canadian Bar), instructed by Messrs. CHARLES RUSSELL & CO.
Sir JOHN SIMON: My Lords, we took the liberty of having spread out for your Lordships, in case you cared to see it, the map from the British Museum. It is not in fact quite correctly reproduced.
Viscount FINLAY: Is this it?—(Indicating.)
Sir JOHN SIMON: That is it. It is not quite correctly reproduced in the Canadian Atlas. The copy in the Canadian Atlas contains marks which are not on the British Museum original. I am not saying it is material, I daresay it is some variation traced to some other source. At any rate, it is convenient, I think, to have the actual map before one. It is a map which was made in the year 1755, and was a very celebrated, and in many respects. a very remarkable map. It may well be supposed to have been used after that date for a considerable time in considering these difficult geographical questions. It is quite certain it was used, for example, when the Treaty of Versailles came to be drawn up after the independence of the United States was finally established. As I said yesterday, the name of Mr. Oswald, which you see written in several places on the map—the line is as suggested by Mr. Oswald—that name is the name of the British Commissioner who was engaged in negotiating the Treaty with the United States of America in 1782. In the same way it is a very convenient map, my Lord, to trace the extended boundary of Quebec, which your Lordship saw described in the words of the Statute of 1774.
The LORD CHANCELLOR: We only want the upper part of it.
Sir JOHN SIMON: I think, as a matter of fact, for 1774, it may go a little bit down.
Viscount FINLAY: Are there any material differences in this map as compared with that which we have?
Sir JOHN SIMON: Nothing, for the present purpose, which will matter at all. There is a branch of the case which is coming, which has to be dealt with really in one compartment, about Indian lands, where it may be important to observe the distinction.
Viscount HALDANE: 1755 was the date of this.
Sir JOHN SIMON: 1755 was the year in which Mr. Mitchell made or published the map. If you look at the letter-press on the map, the legend and notes, you will see with how much care he proceeded. If I may
say so it is a very honest map, because you will find at the bottom of it what is a little amusing, you will find his statement that he does not know the exact latitude and longitude of a number of places, and he is inviting those who have the map before them to supply him with the additional information. The special merit of the map when it was made is this: instead of relying merely upon the tradition or the fancy of earlier cartographers, Mitchell, who really was a scientific man, used as his principal source of information, the observations that had been made on board ship, observations of latitude and longitude, and he gives a most elaborate table in which he described exactly how he got the points for a whole series of places.
The LORD CHANCELLOR: Did you say somewhere there was a note which might be in the handwriting of King George?
Sir JOHN SIMON: I did not say so. I could not help observing that the very abbreviated report in the “Times” newspaper this morning suggested I did. What I said was it came from King George the Third's library, and there was every reason to think it had been before the eye of King George the Third. I am not prepared to say that King George's writing is upon it. I do not think that is so.
Viscount FINLAY: I think all you said was it might be.
Sir JOHN SIMON: It might be. I think it would be useful to the Board, though it is going back for the moment, if, with that map before it, you would allow me to re-read the description of the extended boundary of the Province of Quebec, the boundary which is laid down in the Act of 1774. It is very easy to trace on that map, and it is useful to do so. The boundary you see in the first volume, the red volume, is, your Lordships will remember, by the Legislature, traced, beginning, so to say, at the other end, beginning at the Cape Gaspé end. If I may read the words to your Lordships, you will see how you can trace it very easily on this map. The words which are on pages 158 of now first volume are these: “All the Territories, Islands, and Countries in North America, belonging to the Crown of Great Britain, bounded on the South by a line from the Bay of Chaleurs”—just below the Gaspé Peninsula—“along the High Lands which divide the rivers that empty themselves into the River St. Lawrence from those which fall into the sea”—that is along the spine—“to a point in Forty-five Degrees of Northern Latitude, on the eastern bank of the River Connecticut, keeping the same latitude directly west, through the Lake Champlain, until, in the same latitude, it meets the River St. Lawrence; from thence up to the eastern bank of the said River to the Lake Ontario; thence through the Lake Ontario, and the River commonly called Niagara; and thence along by the Eastern and South-eastern Bank of Lake Erie following the said Bank.”
Viscount Finlay: That does not correspond with the map, it is in the middle.
The LORD CHANCELLOR: This line is put on for another purpose.
Sir JOHN SIMON: Yes. Your Lordship is not understanding me to say that a particular line on this map will show you what the line is. I am only saying it is a very convenient map to trace what is meant. The reason, Lord Finlay, why the line you are looking at now ceases to correspond with the description is this, that the map before your Lordship is a map of the library of King George, which would have put upon it the boundary ultimately fixed between the British possessions and the United States of America, a thing that did not happen till 1782, and consequently you are now finding what it is which was lost in that part to the original or to the enlarged Colony of Quebec, owing to the Independence of America. You will find the Province of Quebec, as defined in 1774, embraced four or five States of the Union of the United States, Illinois for example.
The LORD CHANCELLOR: It is easy to follow.
Sir JOHN SIMON: It is easy to follow; following the bank on the south side of Lake Erie. Then, my Lord, the Legislature in 1774 was a little doubtful as to whether the line they were prescribing would cut off a portion of the Colony of Pennsylvania, they were not quite sure at what point the two ends would meet, so that the Legislature proceeds to provide an alternative description. I will read from that point, if I may, from Ontario: “Through the Lake Ontario, and the River commonly called Niagara; and thence along by the Eastern and South-Eastern Bank of Lake Erie, following the said Bank, until the same shall he intersected by the Northern Boundary, granted by the Charter of the Province of Pennsylvania, in case the same shall be so intersected; and from thence along the said Northern and Western Boundaries of the said Province, until the said Western Boundary strike the Ohio.” That great River, of course, ultimately flows into the Mississippi. Then alternatively the Legislature said: “But in case the said Bank of the said Lake shall not be found to be so intersected, then following the said Bank until it shall arrive at that point of the said Bank which shall be nearest to the North-western angle of the said Province of Pennylvania and thence by a right line”—that means by a straight line—“to the said North-western Angle of the said Province.” Just going round the square.
The LORD CHANCELLOR: There might be a little interval at the corner.
Sir JOHN SlMON: That is what they had in mind: “Thence along the Western Boundary of the said Province until it strike the River Ohio.” You will see it is about half-way down.
Viscount FINLAY: More than half.
Sir JOHN SIMON: More than half: “And along the Bank of the said river, Westward, to the Banks of the Mississippi, and Northward to the Southern Boundary of the Territory granted to the Merchants Adventurers of England, trading to Hudson's Bay.”
The LORD CHANCELLOR: It does not give the Northward line; is that supposed to be a straight line?
Sir JOHN SIMON: That is the Western Line. Then all it says is: “Striking until it reaches the Southern Boundary of the territory granted to the Merchants Adventurers of England, trading to Hudson's Bay.” That is to say that this boundary thus placed as it was laid down in 1774 would have included a portion of what is now the State of Ohio, it would have included Indiana, it would have included Illinois, it would have included Wisconsin, and it would have included a part of Minnesota. It is those areas I have just described using the nomenclature of the States of the United States which are cut out by the Treaty of Versailles in 1782. What you find marked on that map and I think is described in handwriting as the line of Mr. Oswald, or something of the kind, is the line which the British Commissioner negotiating with the United States was proposing as the boundary. It is very nearly, though not exactly, what the boundary was.
The LORD CHANCELLOR: In other words it fixes the Southern boundary and the Western boundary.
Sir JOHN SIMON: It does. Your Lordship sees it plainly treats the Southern boundary of the Hudson's Bay territory as being if not ascertained, ascertainable, and ascertainable on some principle.
The LORD CHANCELLOR: And as constituting the Northern boundary of New Canada.
Sir JOHN SIMON: That is right.
The LORD CHANCELLOR: You infer the Eastern boundary was the sea?
Sir JOHN SIMON: I think so.
The LORD CHANCELLOR: Or perhaps, apart from the words of title, the Eastern boundary was Labrador.
Sir JOHN SIMON: There is no doubt at all, it will not be a matter of dispute. The effect of this Act of 1774 was to throw inside the Province of Quebec, which now became a perfectly enormous area, the