Mr. MACMILLAN : It forms the Eastern boundary of Quebec.
Lord WARRINGTON : It forms part of the Eastern boundary.
Mr. MACMILLAN : With great respect it forms the whole of the Eastern boundary.
Lord WARRINGTON: Does it ?
Mr. MACMILLAN : Yes, my Lord, it is the Eastern boundary. Following my Lord as well as I can, your Lordship suggests : let us take the River St. John, all to the west of that is Quebec ; then your Lordship suggests ; and therefore all to the East of that is Coast of Labrador.
Lord WARRINGTON : Well ?
Mr. MACMILLAN : That would only carry my learned friends along to the East of that till they reached the sea.
Lord WARRINGTON : I see what you mean.
Mr. MACMILLAN : It would not give them this great extent of inland territory at all ; they have to invoke something else for that ; they would then have to invoke this : that on the North East shores they are entitled to get their boundary by going to the height of land.
Viscount HALDANE : Do you say that the River St. John's is really a longitudinal line which is to be carried up to there, and further if necessary, but there is no grant of the land East of that line.
Mr. MACMILLAN : No, my Lord, that was the boundary of Quebec and it was originally fixed with this idea : that it would include all the seignoirs that had been granted and were dependent on Quebec.
Viscount HALDANE : On the East of that line further territory may be granted by another substantive title, or may be left in the Crown.
Mr. MACMILLAN : Undoubtedly. You remember the Labrador business had all been disposed of by this time ; Newfoundland had got what it was to get on the Coast, and then when the territory of Quebec was carved out, “ the River St. John to its head,” was selected as the boundary of the Province of Quebec. Therefore, the two things they were dealing with were entirely different, the one was a boundary for a settled Government, for a settled population, the other was a grant of something (X. as my learned friend put it) to enable the fishery to be protected.
Viscount HALDANE : It is not only a line.
Mr. MACMILLAN : That is all it is defined by ; that is on my side of the account : that you have in Quebec something which is described by superficialities, and in the other case something which is described only by termini. Now no one suggests that it is merely a line which has length without breadth that we are dealing with here at all ; it is conceded it has some content, but, as to how much, one does not get much help from that contrast, I am afraid. The first point, as I say, is on the language itself, and I suggest to your Lordships the fact that two points on the coast are selected is very significant. I might just take along with that, what Governor Palliser thought. Governor Palliser was the most energetic of Newfoundland Governors, and he was extraordinarily active ; he got into a good deal of trouble in consequence of his activities, and what he said in answer to an enquiry upon which he had to report (I shall come back to this later on)—he was asked to report on various things, and you will see, at page 956 in the third volume, one of the things he was asked to report upon was this : “ What is the capital extent of the Coast of Terra Labrador under Your Government ” that is “Heads of Enquiry respecting the State of that part of the Coast of Terra Labrador ” on page 956.
The LORD CHANCELLOR : This is 1766.
Mr. MACMILLAN : Yes, my Lord.
The LORD CHANCELLOR : Three years after.
Mr. MACMILLAN : Yes, Governor Palliser succeeded Governor Graves.
Lord SUMNER : Who puts this question ?
Mr. MACMILLAN : The Government. The question was put to him in his Commission. You will observe that the Enquiry is, “ What is the extent of the Coast of Terra Labrador ”—not “ Coast of Labrador.” My learned friend would have to say, if one were to read it in his view, “ What is the extent of the Coast of Labrador,” because “ the Coast of Labrador ” is coincident with “ Terra Labrador ” in his view. The answer is “ From River St. John, which is the Western Boundary to Cape Charles, which is the Eastern Extremity, is 150 leags & from Cape Charles to the Entrance of Hudsons Streights is 160 Leags more, making together an extent of 310 Leagues of Sea Coast.” What he has in mind when he is asked, “What is the extent of Terra Labrador under your Government ? ” is that he is asked what is the extent of your jurisdiction, and he says, “ I have 310 leagues of sea coast to look after.” There is no suggestion there that he is going away into the height of land, he did not so conceive it ; and you will find that Governor Palliser was not a person who was in the least inclined to under–estimate
the extent of his jurisdiction, because he got into very considerable trouble owing to his zeal.
Sir JOHN SIMON : Might I ask my learned friend : is not the second question one which bears on it ?
Mr. MACMILLAN : “ What is the Nature of the Soil and Climate ; what are its natural or improv'd Productions & are any, or if any, what Parts thereof Adapted to Inhabitancy.” The answer is “ The Climate is much the same as in Newfoundland, is too severe to Admit of any Cultivation or Improvements, the Sumers being so Short, that nothing except a little Garden Stuff can ever be brought to Maturity ; it is not capable of any Produce to Subsist European Inhabitants, therefore no part of it is adapted to Inhabitancy, its natural Produce is nothing but Woods, there is great tracts without any Wood, being nothing but bear Rock, or covered only with a deep Moss.” Now that is exactly consistent with our case. It is 310 leagues of sea coast where the climate is too severe to admit of any cultivation and improvement. That exactly answers our description of the sea coast there, where all these other things cannot be done. On the other hand, the climate inside is quite different, as your Lordships will hear a little later on. You get there a most accurate description of the nature of the sea coast at that point ; it is the natural kind of thing that Palliser would have thought and reported upon. Of course, my Lords, no controversy has arisen here, as to the purpose of this whole arrangement. My learned friend, observing the seriousness of the point, was quick to disclaim it, and to interpret it. He said, as I noticed, twice over, this : “ The whole question here is not what is the purpose which was primarily the object of the grant, but what is the construction to be applied to the language now it has turned out in this back country that there is something which is value.” How the construction of the language used in 1763 under any proper interpretation can change according as we find out, 100 years afterwards, that there is something of value or not, I fail to understand.
Viscount FINLAY : Where are you reading that from ?
Mr. MACMILLAN : From Sir John Simon's address at page 241, He said, “ The whole question here is not what is the purpose which was primarily the object of the grant, but what is the construction to be applied to the language now it has turned out in this back country that there is something which is of value.” How the construction can change when you find out there is something of value, I am quite at a loss to understand. He says, further, at page 78, “ it is absolutely true that the purpose, the thing to be served, in the minds of those who legislated and directed, was unquestionably a fishery.” It is right to add that he said also, “ though not only a cod fishery.” He would not have said that, no advocate would have said it, unless he felt himself compelled to say it, and that is the impression which any
person would draw from these documents ; therefore, he has to say : although that is the avowed purpose and we are all agreed that was in the minds of everybody, you must discard that assistance in interpreting the document before you now that it has turned out that there is something of value there. I suggest, on the contrary, that if you look at the documents, and you discover any ambiguity there, then the very thing to go to is the thing which Sir John would discard, the thing which he admits was the purpose, and the thing to be served, in the minds of those who legislated and directed ; it is the very topic, the one thing to address one's mind to, if they are in search of a canon of interpretation.
Now I would ask my Lords that you would next pass over to page 156 of the Proclamation and carry in your minds, if my Lords are good enough to do so, the point which we had reached. We have got the Labrador fishing question disposed of. We have got the Government of Quebec with its territory set up, and at that point my learned friend stops and says, “ Now you have disposed of the whole Peninsula of Labrador.”
Sir JOHN SIMON : No, I do not say that.
Mr. MACMILLAN : From the height of land.
Sir JOHN SIMON : Between the particular termini.
Mr. MACMILLAN : From the height of land ; yes, I think I am right—from the height of land on the West, Cape Chidley on the North, right down to the boundary of Quebec on the West ; you have disposed of this whole great tract of territory now, when you have done these two things, when you have given the Commission to Captain Graves and when you have delimited Quebec, then there is nothing more left over. My Lords, I suggest you have a great deal left over. You will find on page 156 this, “ And whereas it is just and reasonable and essential to our interests and the security of our colonies, that the several nations or tribes of Indians with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominions and territories as, not having been ceded to or purchased by us, are reserved to them, or any of them, as their hunting–grounds ; we do, therefore, with the advice of our Privy Council, declare it to be our Royal will and pleasure that no Governor or Commander–in–Chief in any of our Colonies of Quebec, East Florida or West Florida, do presume upon any pretence whatever to grant warrants of survey, or pass any patents for lands, beyond the bounds of their respective Governments, as described in their commissions.” The bounds of Quebec, of course, in the view of the Colony, boarded upon Newfoundland territory for a large part, “ As also that no Governor or Commander–in–Chief in any of our other colonies or plantations in America do presume for the present, and until our further pleasure
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be known, to grant warrants of survey, or pass patents for any lands beyond the heads of sources of any of the rivers which fall into the Atlantic ocean from the West and North West, or upon any lands whatever which, not having been ceded to or purchased by us as aforesaid, are reserved to the said Indians or any of them.” My Lords, I pause there, first of all, because it is plain, upon the papers for the Colony which are before us, that they have misread these words about “any lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the West and North West.” It is plain that their first view, at any rate, was that that applied to this territory in Labrador, and that, as they were not to pass any patents for these lands, and as you come, lower down, to a reference to “ all the land and territories lying to the Westward of the sources of the rivers which fall into the sea front the West and North West as aforesaid,” somehow or other that supported the impression that all in Labrador to the Eastward of the watershed fell into Newfoundland ;that I am accurate in saying that, my Lords. I think appears from one of the maps, No. 17 in the Newfoundland Atlas, if your Lordships would look at it for a moment. It is a most curious error that the Colony has fallen into here. This map, No. 17 that was referred to, shows that backbone running through the pink, that non–existent backbone, was apparently assumed by Newfoundland to be the dividing line between the land and territories lying to the Westward of the sources of the rivers which fall into the sea from the West and North West as aforesaid,” in the Proclamation. Your Lordship will see in the printed note upon the left hand side of that Atlas the concluding words : “As laid down in the Proclamation of the 7th October, 1763: ‘ There was reserved to the Crown . . . all the lands and territories not included . . . within the limits of the territory granted to the Hudson's Bay Company ; as also the lands and territories lying to the Westward of the sources of the rivers which fall into the sea (i.e. the Atlantic Ocean) from the West and North West.’ By implication or exclusion, then, all that lay Eastward and South Eastward of the watershed delineated on this map must be ‘under the care and inspection of the Governor of Newfoundland ’”; and in their Case they have put forward the same grounds.
Lord WARRINGTON: The real fact is, that when they are talking about the rivers running Westward into the Atlantic they are talking of the rivers running through the old Colonic, down on to the Atlantic Coast.
Mr. MACMILLAN: That is exactly so.
Lord WARRINGTON: They are not talking about this country at all.
Mr. MACMILLAN: That is why this note is wrong. That is why the Case, as based on that contention—it is part of their case here, if your Lordships will look at page 10 of their Pleadings , they quote it : “There was reserved to the Crown ‘for the use of the Indians, all