West Florida, as described in your Lordships' Report, be assigned to the Government of Canada.” There is a sort of rounding–up there of everything that has been acquired. He has dealt with the territory which my learned friend is so interested in, the territory round about the lakes ; he has made his suggestion about those, and he also goes on to say : Let us have a general round–up so that there shall be nothing left over.
The LORD CHANCELLOR : There must be an implied exception there of the coast of Labrador, whatever that means.
Viscount HALDANE : He includes that in the words which are used there, “ which are not already included within the Limits of His Majesty's ancient Colonies, or intended to form.”
Mr. MACMILLAN : No, my Lord ; with great respect I think not. I do not think the exception is there. If it is there at all, it is an implied exception. Your Lordships will see where my point comes in there. I think as one reads these documents, looking at them in their true historical perspective, the impression which one forms is this, that Newfoundland was not regarded as having acquired territorial jurisdiction to any material extent at all. It is true that it did acquire, and we have accepted the position that it acquired, certain territorial jurisdiction ; but I venture to suggest for my Lords' consideration whether the whole idea was not merely, as the proclamation talks of itself,—“ care and inspection ” I think were the words.
This question of the territorial aspect of Newfoundland and the main land was really negligible ; that was not considered of any importance. What was of importance was the vigilant observance of fisheries on its coast. You find throughout when they are dealing with the parcelling out of this territory of French Canada which had been ceded to us, a conspicuous omission to refer to any territory of Newfoundland in that area. It is always treated as if the Newfoundland Government is seated there, but as an institution of fishery interests, and therefore it is really irrelevant to the question of the parcelling out of the territory for territorial jurisdiction. You will see how that comes in in the proclamation. It fits the language of the proclamation extremely accurately, but on the generality of the language you do observe the suggestion of His Majesty was (of course, it was not carried out) that “ all lands whatsoever, ceded by the late Treaty ” be joined to the Government of Canada. That certainly would embrace, in my submission, the territory which my learned friend now claims and which, according to his view, had already been excised from the ceded territory and confined to the Government of Newfoundland. “ Having thus informed you Lordships of the King's Intentions with regard to the Extent of the New Governments to be erected in North America ; I am now to repeat to you, That His Majesty entirely concurs in your Lordships idea, of not permitting, for the present, ally Grant of Lands, or New Settlements, beyond the Bounds proposed in your Report ;
“Now—observe the words—“ And that all the countries, beyond such bounds, be also, for the present, left unsettled for the Indian Tribes to hunt in ; but open to a free Trade for all the Colonies : And the King; would have the Instructions to the Three New Governors in North America, formed so, as to contain the strongest Injunctions and Restrictions for this purpose.” Then they are told to get ready commissions for Governor Murray and the others. Then he deals with the ancient Colonies on page 917. I need not trouble with those, we know what they are. Then he thinks that the Agents for Indian affairs should “ correspond with your Lordships, in regard to the Indian country, and transmit information.” Following upon that, my Lord, you have the report of the Lords of Trade at page 919: “ In Obedience to your Majesty's Commands contained in a Letter from the Earl of Egremont, dated the 14th of July last signifying to US Your Majesty's Most Gracious Approbation of Our Idea, that that large Tract of Country, bounded by the Mississippi and the Limits of the Hudson Bay Company on the one hand and on the other by the Limits of Canada, East and West Florida and His Majesty's ancient Colonies, should for the present be made subject to no grants of Lands nor to any Settlements, But acquainting us, that it was Your Majesty's Pleasure, that it should be put under some civil jurisdiction, by a Commission,” and so on, for certain objects given, and “ that the whole of this Territory should be inserted in the Commission of the Governor of Canada.” Then they give reasons why it would be better to adopt another policy. My learned friend read the first paragraph there in order to emphasise that the adjacent territory around the lakes was what was in mind, particularly the six nations. Then he says : “ If these objections ”—that is to the King's proposal—“ should appear of Weight to Your Majesty, We would humbly propose that a Commission under the Great Seal, for the Government of this Country, should be given to the Commander in Chief of Your Majesty's Troops for the time being adapted to the Protection of the Indians and the fur Trade of your Majesty's subjects.” Then at the bottom you find the inception of the proclamation : “ In the meantime we humbly propose that a Proclamation be immediately issued by Your Majesty as well on Account of the late Complaints of the Indians and the actual Disturbances in Consequence, as of Your Majesty's fixed Determination to permit no grant of Lands nor any settlements to be made within certain fixed Bounds, under Pretence of Purchase or any other Pretext whatever, leaving all that Territory within it free for the hunting Grounds of those Indian Nations, Subjects of Your Majesty, and for the free trade of all your Subjects, to prohibit strictly all Infringement or Settlements to be made on such grounds.” My Lord, I pause here just to remind your Lordships of what are the two cardinal points of my learned friend's case which I have in mind as I am reading these documents, and which are no doubt present to your Lordship's mind. His case hinges upon two points, first, that the Hudson's Bay country was the height of land ; secondly, that there was no Indian territory reserved to His Majesty in the area
he claims, that is to say, in the green area. These are the two cardinal matters, and that explains the anxiety with which he addressed himself to the ascertainment of the Hudson's Bay boundary on the one hand, because it was a height of land boundary, and the even greater insistence which he placed upon the identification of the hunting grounds of the Indians which were reserved to the Crown. If his case breaks down on either of those points, then the claim collapses, and he finds himself driven from the height of land to some place else. Where he might find a rest for the sole of his foot is a question which your Lordships may have to determine. If he is once dislodged fron the height of land on which he has for the moment perched himself, then he will have to journey towards the coast in my company, however unwillingly, and find himself arrested at some particular point which will be the point your Lordships will determine ; it may be one mile, or more, or less, but it will be some point other than the height of land. Then he will be confronted with precisely the difficulty which he is pleased to taunt me with, that I suggest a boundary which is indefinite and unascertainable, while he is able to present to your Lordships a physiographical boundary, attractive, therefore, because ascertainable by scientific means and not merely ascertainable by legal means, as my boundary is. One can understand therefore his anxiety on these two topics of the Hudson's Bay boundary and the Indian territory, because if he fails upon either of those he is dislodged from the peak—I should not say “ from the peak ” ; there are no peaks there—from the plateau upon which he is at the present moment perambulating the bounds. These documents bring one to the Proclamation. I am in your Lordships judgment as to whether I have not made good this up to date, that the fishery matter, with its attendant disposal of the coast of Labrador, was out of the way ; that the survey was being made now of Canada, the ceded territories, with a view to seeing what should be done with them ; that there had been a transaction—I am using the most neutral language—with regard to the coast of Labrador, but that that was over, and that the question still remained, what was to be done for the Indians, and what was to be done with regard to the parcelling out of this vast area ceded to Great Britain. It was the second chapter upon which they were embarking in this matter, and it was the sequel to the second chapter that the proclamation was published. My learned friend has said that the proclamation is the root of their title ; in point of fact it must be in the commission ; and there we are agreed, because Sir John has put it now upon the Commission and not upon the Proclamation.
Viscount HALDANE : Was not there a good deal more of what is now within Canada to be disposed of ? You have talked of Canada. Canada consisted then of the Provinces of Quebec and Montreal on the one hand, and a rather indefinite Province called Ontario. Beyond that there was the whole of the north–west territory ; the Hudson's Bay made some kind of claim to it under the name of Ruperts Land, and there was also what is now British Columbia. Is there any trace of attention to the fact that the British Possessions in North–west America
extended to this vast tract ? There is not a word of attention to it in the documents you have read.
Mr. MACMILLAN : To the Northwest tracts ?
Viscount HALDANE : Yes.
Mr. MACMILLAN : I thought Sir John made his point good, if I may respectfully say so, when he pointed to the great territories round the lakes and to the northwest from there.
Sir JOHN SIMON : And to the northwards also.
Mr. MACMILLAN : It was the great Indian territory.
Viscount HALDANE : There was a much larger territory away beyond that, extending to Alaska now. Nobody knew what the boundary was. Russia came in at one stage, but all that was in dispute between us and the French.
Mr. MACMILLAN : We got all the French had, but what the French had they did not themselves know.
Sir JOHN SIMON : That is right.
Viscount HALDANE : I think that that is very likely. Consequently you do not find any systematic attempt to dispose of it, but it was vested in the Crown.
Mr. MACMILLAN : You do find this, that “ All lands whatsoever ceded by the late Treaty should be assigned to the Government of Canada.” That was the King's proposal. It was not carried out because the Quebec territory was not such as to embrace it all.
Viscount HALDANE : What were the words in the Treaty ?
Sir JOHN SIMON : Would your Lordship permit me to say that I cannot help thinking for the purpose of the matter in hand, the western limits would be the Mississippi, because your Lordship recollects that by the terms of the Treaty the French withdrew to the west of the Mississippi, and how the Sovereign rights might be distributed west of the Mississippi I fancy will be out of the picture. Is not that a fair suggestion ?
Mr. MACMILLAN : As always, my learned friend puts it quite fairly. The French did still retain under the name of Louisiana—which partly ran up there, but it was something very different to what is now the State of Louisiana—a large area there in what is now the United States to the west of the Mississippi.
Viscount HALDANE : It may have extended up to the Arctic Circle.
Mr. MACMILLAN : The actual boundaries between France and the British Dominion are set out on page 336 in Section 7 of the Treaty. There it is done by frontiers, and a frontier is laid clown.
Lord WARRINGTON : The cession is in clause 4 of the Treaty. and the actual boundary is laid down by clause 6. In clause 4, Canada and all its dependencies is ceded.
Mr. MACMILLAN : I think I am therefore justified in saying that all that France had in that region was given, whatever it was. This is the definitive Treaty of Paris, and I will read it, if I may. “ His Most Christian Majesty renounces all pretensions which he has heretofore formed or might have formed to Nova Scotia or Acadia in all its parts, and guaranties the whole of it, and with all its dependencies, to the King of Great Britain.” I think my learned friend read this.
Sir JOHN SIMON : Yes, we went through this.
Viscount HALDANE : Does “ Acadia ” there mean Canada ?
Mr. MACMILLAN : This is the real Acadia of the French. Then it goes on : “ Moreover, his Most Christian Majesty cedes and guaranties to his said Britannick Majesty, in full right, Canada, with all its dependencies.” Acadia was sometimes used for Canada in some of the old maps, but it is not so used there. They really mean Nova Scotia and, I think, New Brunswick also.
Sir JOHN SIMON : Yes ; the peninsula.
Mr. MACMILLAN : “ Canada with all its dependencies, as well as the island of Cape Breton, and all the other islands and coasts,” and so on. It is in the most all–embracing terms.
Viscount HALDANE : I observe two things in it. In the first place, there is no reference to Hudson's Bay at all there. Whether they thought it was not necessary to provide for that. I do not know, but Ruperts Land being a very wide place you would have thought that they would have put something in.
Mr. MACMILLAN : We had already recovered for Britain, under the Treaty of Utrecht, the whole of the Hudson's Bay territory.
Viscount HALDANE: Including Rupert's Land ?
Mr. MACMILLAN: Yes, whatever that was.