Confederation
1864-1949



The Labrador Boundary


Privy Council Documents


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Volume XII








26 Oct., 1926.

Sir John Simon.

The Lord Chancellor.

Sir John Simon.

26 Oct., 1926.

Sir John Simon.

Viscount Haldane.

Sir John Simon.

26 Oct., 1926.

Sir John Simon.

Lord Sumner.

Sir John Simon.

26 Oct., 1926.

Sir John Simon.

26 Oct., 1926.

Sir John Simon.




p. 224

The LORD CHANCELLOR: To whom is this sent?

Sir JOHN SIMON: The Resolution carried in 1886 was sent to the Dominion of Canada, because it would rest with the Dominion, of course, to enlarge it.

The LORD CHANCELLOR: How would it rest with the Dominion to enlarge Quebec as against Newfoundland?

Sir JOHN SIMON: It would not.

The LORD CHANCELLOR: Is there any consciousness in this Resolution that they are claiming something which they think belongs to Newfoundland?

Sir JOHN SIMON: I do not know how that is, but it is quite certain that they are taking the view that they have not themselves got this boundary. I see the importance of the point your Lordship puts.

Viscount HALDANE: This matter was agitating the Parliament of Quebec because of the great success Ontario had had.

Sir JOHN SIMON: Yes. After all, one is, I will not say jealous, but a little interested in the successes of one's neighbour. The reason why I say that at the time it was supposed that the head waters of the Hamilton River were close to the head waters of the East Main River, is partly because contemporary maps will show it—I will not delay now, but I could show it by two or three maps about that time—and partly because it is recorded as a matter of fact, and observed upon at page 4009, line 12, where the Dominion authorities comment by saying:—“At that time, if I am not very much mistaken, the sources of both rivers were assumed to be situated, geographically, in relative proximity to each other.”
I do not feel justified in occupying too long in what, after all, is illustrative matter. It does not alter the true legal view, but I submit it rather throws strong light upon the suggestion that the Province of Quebec since 1774 has had this very great extension. On the contrary, it is quite plain that the Province was seeking to get something additional in 1886.
Might I mention, before we leave Hudson's Bay altogether, what perhaps might be interesting to your Lordships. You will remember that in the course of the history of the Hudson's Bay Company yesterday, with which I had to occupy your Lordships' attention for a long time, we came to the point in the year 1815 when the Hudson's Bay Company were in communication with the British authorities and were stating that they proposed to pass a code of laws for the area which they administered, and that the question undoubtedly then did arise as to what was the extent of that area. The passage which I was referring to, which will be fresh in your Lordships recollection, is the

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passage on page 4115, and more particularly on page 4116. I have two pieces of information now, with the necessary documents, which I had not got last night. Your Lordships will remember that on page 4117 there was this passage: “As these questions involve points of Royal Prerogative, we were anxious to obtain the opinion of the Law Officers of the Crown in addition to those of Sir Samuel Romilly, Mr. Cruise, Mr. Holroyd, Mr. Scarlett, and Mr Bell.” And at a later stage your Lordships will remember there was an indication that the Law Officers of the Crown were consulted. I am now in a position to inform the Board, and have the documents here, that what may be called both sides in the matter did take these opinions, and that the opinions concurred, the advisers of the Hudson's Bay Company being, as you see, Sir Samuel Romilly, Mr. Cruise, Mr. Holroyd, Mr. Scarlett and Mr. Bell, and the Law Officers of the Crown, who were not consulted for some years afterwards but whose opinion was actually before the House of Commons Committee in 1857, being Sir John Jervis, Attorney General, and Sir John Romilly, Solicitor General. It is at any rate a matter of some interest to lawyers that that should be the original opinion of these five eminent persons given to the Hudson's Bay Company, signed by their name; and that here should be the report to the Colonial Office by Sir John Jervis and Sir John Romilly, when the Law Officers in their turn were consulted. When I turn to the report of the House of Commons Committee in 1847, the Committee, you will remember, which authorised the publication of the House of Commons map which showed that green area, I see in that report that they record the fact that they had before them both the views which the Hudson's Bay Company had obtained and the views of the Law Officers of the Crown. I should ask whether I may, for the information of the Board if they think right, call attention to the very short statement which each of these sets of very learned authorities made on the subject, because it shows why it was that in 1857 at any rate, the House of Commons Committee, without any sort of question, took the boundary of the Hudson's Bay Company as being the height of land.

Viscount HALDANE: It is merely an opinion that the height of land was the boundary, and apparently it is founded upon documents and materials, and does not lay down any general question.

Sir JOHN SIMON: My Lord, it is the advice given as to the true extent of the Hudson's Bay territories, having regard to the language of their charter.

Viscount HALDANE: For the purpose of administering justice?

Sir JOHN SIMON: I most thoroughly appreciate that the view which hereafter your Lordships may be disposed to entertain on this subject is a view which is perfectly independent of, and no doubt of much higher authority than, the views that may have been offered on one side or the other in the middle of the last century; but the point I

p. 226

am making is not this; I am not seeking for the moment to cite to your Lordships these opinions as though they were legal authorities on points of construction, although the names are a little striking, but to show your Lordships that the map in 1857 was not a map which represented simply some unfounded claim, but was a perfectly deliberate laying down of the extent of the Hudson's Bay territory in the light of the consent and agreement of two sets of authorities, one advising the Crown and the other advising the Hudson's Bay Company.

Lord SUMNER: Did this concurrence of the Law Officers of the Crown in the view taken by the Counsel consulted by the Hudson's By Company, ever lead to any recognition by the Crown of the height of land?

Sir JOHN SIMON: I think it would have been perfectly open in litigation, or the like, for another view to have been taken. The Crown never followed up these views, or gave anything in the nature of definition. My point, my Lord, is that I want to show your Lordship how very strongly founded I am in the submission which I made, that this area, thus attributed to the Hudson's Bay Company, is an area which was really on both sides and from every point of view recognised as right.

The LORD CHANCELLOR: How is this opinion mentioned in the Report of the Committee?

Sir JOHN SIMON: It is mentioned in this way. I happen to have here the Hudson's Bay Company's volume from the House of Lords Library. It arises in this way. The Select Committee, containing some very well–known names—Lord John Russell, Mr. Gladstone, Mr. Lowe, and a number of others—made a report. It was appointed to consider “the state of those British possessions in North America which are under the administration of the Hudson's Bay Company, or over which they possess a licence to trade, and who were empowered to report their observations.”

Viscount HALDANE: What is the date of the report?

Sir JOHN SIMON: 1857. It is the Select Committee of the House of Commons. Its actual terms of reference involved the question of what are those British possessions which are under the administration of the Hudson's Bay Company. The report says this, in paragraph 3: “Your Committee have received much valuable evidence on these and other subjects connected with the inquiry which has been entrusted to them.” The previous paragraph refers to the Hudson's Bay material, and then paragraph 4 says: “Your Committee have also had the opinion of the Law Officers of the Crown communicated to them on various points connected with the charter of the Hudson's Bay Company.” I have before me, my Lord, a copy of the opinion

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of Sir John Jervis and Sir John Romilly, who were the Law Officers in the year 1850, which was given at the express request of the Colonial Secretary, Lord Grey. I will not, of course, read it unless I am authorised to do so. It is only a couple of sentences which matter.

The LORD CHANCELLOR: What do you say, Mr. Macmillan?

Mr. MACMILLAN: I have no objection at all, my Lord; it is most interesting.

Sir JOHN SIMON: Then I would like to call attention to what it is. Sir John Jervis and Sir John Hominy were invited in the year 1850, or 1849 perhaps—their opinion is 1850—by Earl Grey, who was Colonial Secretary, to advise the Crown as to the extent of the territories of the Hudson's Bay Company, and as your Lordships well know, if I may say so respectfully, those particularly of your Lordships who have held the position of Law Officer, until comparatively recent times the form which an opinion of the Attorney General took when he advised, say the Colonial Office, was not as it is in recent years, merely a straightforward statement, “We are of opinion,” so and so; the report began with the recital of the instructions and materials sent to the Law Officers. I think Lord Finlay will remember it was so even in his day, because I can remember seeing some of his. It was done really to record the instructions upon which the opinion was given. The nature of the report made by Sir John Jervis and Sir John Romilly upon this material is this: “My Lord We were honoured with your Lordship's commands contained in Mr. Hawes' letter of the 30th October last, in which he stated that he was directed by your Lordship to transmit to us the copy of a resolution of the House of Commons, that an address be presented to Her Majesty praying that measures may be taken for ascertaining the legality of the powers which are claimed or exercised by the Hudson's Bay Company on the Continent of North America. Mr. Hawes then stated that he was to enclose the copy of a letter from the Chairman of the Hudson's Bay Company, together with a statement and map, prepared under his direction, of the territories claimed by the Company in virtue of the charter granted to them by King Charles II.” Then I think there is an immaterial paragraph. Then when we come to their opinion they say this: “In obedience to your Lordship's commands we have taken these papers into our consideration and have the honour to report that, having regard to the powers in respect of the territory, trade, taxation, and government claimed by the Hudson's Bay Company in the statements furnished to your Lordships by the Chairman of that Company, we are of opinion that the rights so claimed by the Company do properly belong to them. Upon this subject we entertain no doubt.” We have here the material which was submitted, and the material is the other opinion, the opinion of Sir Samuel Romilly and his colleagues. Perhaps it would be interesting to see the originals. The first of the
2 I

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heads of opinion is this: “We are of opinion that the grant of the soil”—

Viscount HALDANE: What date is this?

Sir JOHN SIMON: This is the opinion of 1814. “We are of opinion that the grant of the soil contained in the charter is good and that it will include all the country, the waters in which run into Hudson's Bay as ascertained by geographical observation.” That is signed—and it is interesting to some of us—by Samuel Romilly, William Cruise, G. S. Holroyd, J. Scarlett, and John Bell.

Viscount HALDANE: That is all the waters that run into the Hudson's Bay?

Sir JOHN SIMON: Yes.

Viscount HALDANE: Including the East Maine River, I suppose?

Sir JOHN SIMON: Yes. Would your Lordship care to cast your eye on the originals? (Same handed to the Lord Chancellor.) The position was that the Hudson's Bay Company had been contending (and said they were fortified by the opinion of these eminent persons) from 1814 onwards that that was the extent of their territory. In 1850 Sir John Jervis and Sir John Romilly, being asked by Lord Grey whether they agreed, said they entertained no doubt that that was the proper view.

Viscount HALDANE: No doubt about the powers claimed. Did they say no doubt about the territory?

Sir JOHN SIMON: I think so, my Lord. It was the question they were asked. “Mr. Hawes concluded by stating that your Lordship requested that we would take these papers into our early consideration and inform you whether we are of opinion that the rights claimed by the Company do properly belong to them.” Then your Lordship sees that being before the House of Commons Committee, the House of Commons Committee says, in 1857, in paragraph 4, “Your Committee have also had the opinion of the Law Officers of the Crown communicated to them on various points connected with the charter of the Hudson's Bay Company.” Then they go on to speak of “a territory over which the Company now exercise rights”; and the map which your Lordship knows, of 1857, is the map ordered by the House of Commons to be printed, and its inscription shows that it is for the purpose of showing the territories which the Hudson's Bay Company claims. Without wishing to carry it too far, that does seem rather to show why there was not more controversy about it.

[1927lab]




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