matter of fact, Sir George Simpson did again and again insist: “That is Newfoundland.”
Viscount HALDANE: I do not believe anybody knew very accurately where the boundaries were. I remember when the late Lord Strathcona (then Mr. Smith) went out first about this time, he had to go a journey of nearly 1,000 miles on snowshoes to get to his post.
Sir JOHN SIMON: We shall come to some documents in which you will hear the exploits of Mr. Smith; and Mr. Smith in fact is Lord Strathcona.
That inquiry into the affairs of the Hudson's Bay in the year 1857 did not result in any immediate transfer of the Hudson's Bay Company. As your Lordships know, the British North America Act was passed in 1867 while the Hudson's Bay Company still retained its very large area of jurisdiction, and indeed almost of sovereignty. Here we are dealing with very familiar matters. I merely state them so that I may not be supposed to have overlooked them. Under the British North America Act, apart from the union of Canada by bringing into one Dominion four Provinces, you had, in Section 146, provision for the admission, within the Dominion of Canada, of the Colony or Province of Newfoundland, of Prince Edward Island and of British Columbia, as well as provisions which might admit Rupert's Land; that is to say, the Hudson's Bay territory and what was called the North-Western Territory. All that is very familiar. The ancient Colony of Newfoundland has continued to maintain its existence separate from the Dominion. Of course British Columbia came in, and Prince Edward's Island, and ultimately these other areas as well. Then, my Lord, in the next year, 1868, was passed the Rupert's Land Act, which your Lordships had better be reminded of. It is to be found in the red book, the first volume, on page 219. “Rupert's Land Act, 1868. An Act for enabling Her Majesty to accept a Surrender upon Terms of the Lands, Privileges, and Rights of ‘The Governor and Company of Adventurers of England trading into Hudson's Bay,’ and for admitting the same into the Dominion of Canada.” There is the recital of the letters patent which created the charter of the Hudson's Bay Company in the time of Charles II in the year 1670. Then there is a recital: “And whereas by the British North America Act, 1867, it was (amongst other things) enacted that it should be lawful for Her Majesty, by and with the Advice of Her Majesty's most Honourable Privy Council, on Address from the Houses of the Parliament of Canada, to admit Rupert's Land and the North-Western Territory, or either of them, into the Union on such Terms and Conditions as are in the Address expressed and as Her Majesty thinks fit to approve.” Then: “And whereas for the Purpose of carrying into effect the Provisions of the said British North America Act, 1867, and of admitting Rupert's Land into the said Dominion as aforesaid upon such Terms as Her Majesty thinks fit to approve, it is expedient that the said Lands, Territories, Rights, Privileges, Liberties, Franchises, Powers and Authorities, so far as the same have been
lawfully granted to the said Company, should be surrendered to Her Majesty, Her Heirs and Successors, upon such Terms and Conditions as may be agreed upon by and between Her Majesty and the said Governor and Company as hereinafter mentioned: Be it therefore enacted.” This is not an Act which does effect the transfer; it only authorises it. Clause 3 says: “It shall be competent for the said Governor and Company to surrender to Her Majesty, and for Her Majesty by any Instrument under Her Sign Manual and Signet to accept a surrender of all or any of the Lands, Territories,” and so on, “ upon such terms and conditions as shall be agreed upon by and between Her Majesty and the said Governor.”
Viscount HALDANE: The jurisdiction of the Hudson's Bay Company extended to a good deal more than Rupert's Land proper; it was a very large part of the North-west Territory.
Sir JOHN SIMON: They claimed, of course, to go right back westwards to the Rocky Mountains; and that map of Arrowsmith with the green area will carry you back to the Canadian Rockies at one point.
Viscount HALDANE: And the boundary on the other side was the river that runs north of Ontario and falls into the Hudson's Bay.
Sir JOHN SIMON: That is quite right. On the other hand, when you approach the thing from the Pacific, you have in the meantime British Columbia as one of the independent settlements. Consequently these people meet at a particular point. We know there was a good deal of controversy as to what was exactly the boundary.
This Statute in 1868 authorised the Crown to accept the surrender. It goes on: “Provided, however, that such surrender shall not be accepted by Her Majesty until the Terms and Conditions upon which Rupert's Land shall be admitted into the said Dominion of Canada.” That having happened in 1868, I would just remind your Lordships that the actual operation of the powers took place in the year 1870 under an Order in Council of the 23rd of June of that year. You will find it printed on page 221. I do not think that any useful purpose is served by reading this in any detail; it is merely to get the scheme of the dates and facts right. It is an Order in Council of Queen Victoria's Council which scheduled the Address to Her Majesty which had been made by the Senate and House of Commons in Canada. All these things taken together had this result: that that immense green area, the Hudson's Bay territory, passed into the Dominion of Canada. It did not become at that moment any portion of any provinces; it became simply a territory of the Dominion which the Dominion thereafter disposed of. The Hudson's Bay Company were compensated by a money payment, and that is the end of the independent existence of the Hudson's Bay Company as a territorial quasi-sovereign.
Viscount HALDANE: It still has rights of trade, and so on.
Sir JOHN SIMON: It has still continued as a most important and prosperous trading enterprise. That Order throws into the Dominion this immense area. Then I think the next thing is that the Canadian Legislature, by the exercise of its powers, formed out of these territories the Province of Manitoba.
Viscount HALDANE: What date is that?
Sir JOHN SIMON: The actual date of the Canadian Statute, I think, was 1870. It is 33 Victoria, Chapter 3, of Canada. It was the same year that the original Province of Manitoba was carried out of, and was a very small part of, the new and hitherto unorganised territories which had been acquired as the result of the cession of the Hudson's Bay Company's land. It was originally a much smaller area than the Province of Manitoba is to-day, and your Lordship may, perhaps, remember that it used to be called jocularly and familiarly “The Postage Stamp State,” because it was in the shape of a postage stamp. Having regard to the immense area out of which it was carved, it was, of course, very much smaller than the whole. Since then it has been enlarged and is now, of course, the very important Province Manitoba, of which Winnipeg is the capital, as we know
There was a doubt entertained, apparently, by the authorities, as to whether the British North America Act, 1867, really empowered the Parliament of Canada to establish new provinces in those territories, and I dare say your Lordships recall that there was a further Imperial Statute, which is also called the British North America Act, in 1871. It is printed at page 242 of the book. That Act removed those doubts, and, by Section 2, provided that: “The Parliament of Canada may, from time to time, establish new provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province.”
Now, my Lords, I think the next matter which I should like to call attention to arose in 1874, and for this purpose I shall have to trouble your Lordships just to look at Volume V. I think this is the first time we have broken into this volume.
Viscount HALDANE: What page is it?
Sir JOHN SIMON: It is about page 2293; but I might ask your Lordships' help to this extent. I should like just to state uncontroversially what it was that happened, before I ask attention to the actual documents, because I really think the documents will then be easier to understand, especially as they are not printed in the right order. If I could so far ask for indulgence, I would really prefer to be allowed to
state it for the moment; I really think if I can explain what this is about, it will save a little time.
The LORD CHANCELLOR: What we want to know is whether we can look at it. There is no question about that?
Sir JOHN SIMON: No question at all, my Lord.
The LORD CHANCELLOR: I see the heading.
Sir JOHN SIMON: Is there anything in the heading?
Mr. MACMILLAN: I do not raise any objection.
Sir JOHN SIMON: There is no question at all. The point is this. Your Lordship will recall that in 1871 the Treaty of Washington had been entered into between this country and the United States; it was in fact the Treaty which is most commonly called the Alabama Claims Treaty. It was the Treaty which was negotiated by Mr. Gladstone's Government and which, amongst other things, settled the Alabama Claims; but besides doing that, that Treaty contained a number of other provisions, some extremely complicated, which had to do with the rights of United States fishermen to exercise fishing rights in various places in this general area; the details do not matter. One of the things which was stipulated for in the Treaty of Washington was that commodities which were for the next fifteen years imported into the United States from either the Dominion of Canada or Newfoundland should not be subject to duty. There was a range of commodities, but the particular one that we are concerned with here was fish. That being the situation, there was a question in 1874, when Lord Dufferin was the Governor-General of Canada, when Mr. Fish was Secretary of State for the United States, and when our Ambassador at Washington was Sir Edward Thornton, as to whether certain consignments which were coming into America were or were not subject to duty. Mr. Fish, the American Secretary of State, addressed an official inquiry to the British Ambassador in Washington, who in his turn communicated not only with the Foreign Secretary here at home, but also with the Canadian Government, to ascertain what was the correct answer to the question. The question was this. Is there any part of Labrador which is neither Canada nor Newfoundland? and the answer was No. That answer was based upon information which passed from the Canadian Government, through the Government at home, to America. Therefore, again, although, of course, this proves nothing, it is a rather interesting instance of how this matter appeared to stand in the year 1874.
Now, my Lords, as I say, the letters are not in the right order, but you will find that the best way to approach the letters is to turn to page 2299, where you get in the first paragraph of Sir Edward Thornton's
despatch a perfectly plain indication of what it was that Mr. Fish wanted to know. He is addressing Lord Derby, writing, of course, to the Foreign Office here from Washington. “On the 19th of June last Mr. Fish addressed me a note enquiring whether Labrador formed part of the Dominion of Canada, although he was under the impression that it was politically attached to Newfoundland. He also asked whether any part of Labrador was separated either from the Dominion of Canada or from Newfoundland.” Your Lordships may take it—I have this morning examined the Treaty of Washington and I can give you the relevant Articles—that the point of that was that if the thing imported came neither from the Dominion of Canada nor from the Colony of Newfoundland, then it was not protected by the exemption which had been secured by the Treaty of Washington. That being the nature of the question, although indeed Sir Edward Thornton says he does not quite know what the reason for it was, if you look back to page 2293 you will see a little more in detail how the thing was deal with, though I do not think the letters are altogether in a convenient order. The first letter, No. 972, is: “I have the honor to acknowledge the receipt of your note of the 24th instant, and to express my great regret that it has been out of my power as yet to give a positive answer to your question with regard to the political position of Labrador. I can, however, assure you that the delay has not been caused by any neglect on the part of this Legation. From information which I have received this morning I am now enabled to state positively that the whole of Labrador outside the province of Quebec, the boundary of which is laid down in the Imperial Statute, 6 George IV, Cap. 59, is under the jurisdiction and Government of the Colony of Newfoundland, and is actually included in and forms part of the Colony.”
The LORD CHANCELLOR: Which Statute is that?
Sir JOHN SIMON: That Statute is the Statute of 1825. What he is meaning is this. There was this pink oblong which was cut out and given back and re-annexed to Quebec, but apart from that it is Newfoundland. Then at the bottom of the page: “Sir, I have the honor to acknowledge the receipt of your note of yesterday's date in which you are pleased to state, in answer to the enquiry of this Department, that the whole of Labrador outside the Province of Quebec is under the jurisdiction and Government of the Colony of Newfoundland, and is actually included in and forms a part of the Colony. Thanking you for this information.”
Then on the next page, on the 23rd November, still in the same year, 1874, Sir Edward Thornton is saying this to Mr. Fish: “With reference to my note of the 26th ultimo, I have the honor to enclose copies of a Despatch and of its enclosures which I have received from the Governor-General of Canada, giving more precise details as to the boundary between Labrador and the Dominion of Canada, and the position