Viscount HALDANE : Another thing I do not notice is any definition of Louisiana.
Mr. MACMILLAN : It comes out in this fashion. If you look at the frontier as set out in Article 7, you will find there the reference to the River Mississippi, and it is to the west of that that the French keep.
Sir JOHN SIMON : It is Article 7, I think.
Viscount HALDANE : Extending indefinitely north.
Mr. MACMILLAN : No, my Lord, not indefinitely north, but indefinitely west of that point. “ In order to re–establish peace on solid and durable foundations, and to remove for ever all subject of dispute with regard to the limits of the British and French territories on the continent of America, it is agreed, that, for the future, the confines between the dominions of his Britannick Majesty and those of his Most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the River Mississippi, from its source to the river Iberville, and from thence, by a line drawn along the middle of this river, and the lakes Maurepas and Pontchartrain to the sea, and for this purpose, the most Christain King cedes in full right, and guaranties to his Most Britannick Majesty the river and port of the Mobile, and every thing which he posses, or ought to possess, on the left side of the river Mississippi, except the town of New Orleans.” That does not exhaust the boundaries.
Sir JOHN SIMON : Forgive me, that is a matter of argument. If you will assume, as I suggested in opening, that the River Mississippi was regarded as rising on the height of land which was the southern boundary of the Hudson's Bay then it follows you have got a cutting off of the French Empire entirely to the west of that line. It was part of the proposition which I made.
The LORD CHANCELLOR : On that map which we have been using, which was nearly of that date, the boundary of the Hudson's Bay territory fixed under the Treaty of Utretch is marked by straight lines. The whole territory would be treated there as Hudson's Bay territory. There is also marked “ Parts unknown.”
Sir JOHN SIMON : No doubt.
Viscount HALDANE : That may be the explanation of it.
Mr. MACMILLAN : It is also shown by this, in the second Article. The Treaty of Utrecht is confirmed. Under the Treaty of Utrecht there was “ Hudson's Bay territory,” whatever that was. It is one of the difficulties in this case that lines were never drawn ;
territories were described. The Hudson's Bay territory. whatever that means, was British at that time, but all French Canada was ceded to us. Your Lordships are not really, if I may say so, much troubled with the question of the Hudson's Bay boundary to the west; it is the Hudson's Bay boundary on this side of it, to the east side, that is of moment in the present case. I shall have a good deal to say about it later on, but in the meantime my suggestion is that my learned friend's green area was part of the Canada which had been French and became ours, and was dealt with as we have seen. Referring again to the document in front of us, your Lordship has my view upon the two chapters of the Commission and the proclamation. Will your Lordships now look at page 921 ? There is one other letter to be taken, I think, along with this. We are still before the date of the Commission. which was the 7th of October. This is a letter from the Lords of Trade to the Earl of Halifax, who had succeeded Egremont.
The LORD CHANCELLOR : If you are taking them in order of date, are not the instructions to Lord Colville before this?
Mr. MACMILLAN : The instructions to Lord Colville are found in Volume VIII, page 4215. The relevance of that is this, my Lord, that Lord Colville also got instructions to see that the 4th and 5th Articles of the Treaty of Paris were carried out. It is only necessary for the purpose of filling it in and accounting for everything here. This is the Commission to Lord Colville, whose command, so to speak, fitted in with Captain Graves's command, and he also is exhorted to see to the carrying out in the waters under his charge of the 5th and 6th Articles of the Treaty of Paris, the fishery Articles, just as Captain Graves's Commission had been altered when he got his new commission. In order to effectuate that, this instruction was given to Lord Colville “ as Commander in Chief of His Majesty's ships and vessels employed, and to be employed, in the River St. Lawrence and along the coasts of Nova Scotia, Islands of St. John and Cape Breton, etc., providing for the supervision of the fishery on the said coasts.”
Lord WARRINGTON : These are the Admiralty instructions.
Mr. MACMILLAN : Yes, my Lord. “ By the Commissioners for executing the Office of Lord High Admiral.” He is a purely nautical person. He is instructed under a reference to the 4th and 5th Articles of the Treaty of Peace. It is line 32. Captain Graves's was 5 and 6 ; this is 4 and 5. Four related to the gulf and river of St. Lawrence.
Viscount HALDANE : You see what it was that he was to do at line 21 ; he was to guard “ the coasts of the provinces within the extent of your Command, and protect the trade bound to and from those Provinces, and the Fishery upon the coasts.” It was purely defence.
Lord WARRINGTON : He was in no sense a Civil Governor ?
Mr. MACMILLAN : No.
Lord WARRINGTON: He was admiral.
Mr. MACMILLAN : He was to pay attention to those Articles of the Treaty. On page 4216, line 12, you will see : “You are therefore to use yonr utmost care, diligence, and attention, that the several stipulations herein before-mentioned be duly and strictly performed, according to the Tenor and intention thereof, as far as they shall come within the limits of your command; as also to settle and guard the fishery of His Majesty's Subjects within those Limits, taking care to
prevent the subjects of France from giving them any disturbance by Acts of violence or injustice ; or by any evasion contrary to the spirit and intention of the said Treaties ; and likewise to prevent the French from catching Fish,” and so on. He was to look after elicit trade, and then there were paragraphs about moving people from the northern colonies to East and West Florida. He had some things to do on shore ; he had to make surveys and charts, and all the rest of it. That really had completed the arrangements that were necessary to look after the fishing matters under the Treaty, and that is all disposed of before the Proclamation is issued. There also precedes the issuing of the Proclamation, the letter of the Earl of Halifax to the Lords of Trade on the 19th September, 1763, page 921: “ Having laid before the King Your Lordships Representation of the 5th of August last, transmitted to the late Earl of Egremont in your Letter of the same Date, I am commanded to acquaint Your Lordship that His Majesty, upon Consideration of the Reasons therein set forth, is pleased to lay aside the Idea of including within the Government of Canada, or of any established Colony, the Lands which are to be reserved for the present, for the Use of the Indians. And His Majesty thinks proper to direct that the Extent of the Commission, which Your Lordships are to prepare for the Honourable James Murray, shall be exactly such as is marked out in your first Report of the 8th of June last, and in the Map thereto annexed, under the Denomination of Canada. That such Government be described in the Commission, as comprehending all such Part of Canada on the North Side of the River St. Lawrence, and all such parts of His Majesty's ancient Colonies of Nova Scotia, New England, and New York, on the south side of the said River, as lie within the Limits above mentioned, and that It be called the Province of Quebec. His Majesty approves Your Lordships' Proposition of issuing immediately a Proclamation, to prohibit for the present, any Grant or Settlement within the Bounds of the Countries intended to be reserved for the use of the Indians.”
Viscount HALDANE : The Indians got a mere occupancy title ; they got no legal title. The title was in the Crown.
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Mr. MACMILLAN : That is so. The Privy Council dealt with the proclamation, and on page 925 you have a record of their approval of the procalmation. I do not read it, because I do not want to delay unduly. It was approved by the Privy Council and was directed to be issued, and then you have this very important document, the Royal Proclamation. The first topic dealt with in the Royal Proclamation on page 153, in the Red Volume, is the erection of four distinct and separate Governments, Quebec, East Florida, West Florida, and Grenada, three on the main land, and one among the islands. The Government of Quebec is first of all described as “bounded on the Labrador Coast by the River St. John, and from thence by a line drawn from the head of that river ”—pray note the difference there ; it is “ from the head of that river, through the lake St. John, to the south end of the Lake Nipissim ; from whence the said line, crossing the River St. Lawrence, and the Lake Champlain in forty–five degrees of north latitude, passes along the high lands which divide the rivers that empty themselves into the said River St. Lawrence, from those which fall into the sea ” —that is right down to Cape Rosieres, and it is still called the River St. Lawrence—“ and also along the north coast of the Baye des Chaleurs and the coast of the Gulph of St. Lawrence to Cape Rosieres, and from thence crossing the mouth of the River St. Lawrence by the west end of the Island of Anticosti, terminates at the aforesaid River St. John.” I just paused a moment because I was not quite sure that I had done justice to the point :—“ passes along the high lands which divide the rivers that empty themselves into the said River St. Lawrence, from those which fall into the sea.” Yes, that is one the south side ; I was afraid for a moment I had done an injustice to the description.
Sir JOHN SIMON : That is right ; you will see it on your big map.
Mr. MACMILLAN : I used it for the moment for showing that the River St. Lawrence went down to Cape Rosieres, and I was not sure that I was justified in saying that.
Sir JOHN SIMON : It is just about opposite the River St. John.
Mr. MACMILLAN : Just about opposite. Now, my Lords, that is the description of the Government of Quebec. The Proclamation proceeds to set up three other Governments, East and West Florida, and Grenada, with which we need not delay.
Then comes, on page 154, what I venture to suggest is one of the most important of all the statements which we have in this critical year 1763 ; “ And to the end that the open and free fishery of our subjects may be extended to and carried on upon the coast of Labrador, and the adjacent islands, we have thought fit, with the advice of our said Privy Council, to put all that coast, from the River St. John's to Hudson's Streights, together with the islands of Anticosti and the Madelaine, and all other smaller islands lying upon the said coast, under the care and inspection of our Governor of Newfoundland.”
Viscount HALDANE : The phrase is very curions : “ care and inspection.”
Mr. MACMILLAN : If my view as submitted is sound, that the whole matter of concern at. this time was a vigilant observance of fishery rights and their protection from encroachment by the French, then the language is exceedingly apposite. It was a care and inspection of fisheries that was confided to this Governor. He was selected for the very reason that he had experience in caring for and inspecting fisheries ; that was his job in Newfoundland. He was selected to do that thing, and here you have an express declaration in a document of the highest authority, a document described as the source of Newfoundland's original jurisdiction in the Labrador. In that document you find the express statement by the very persons concerned in this whole distribution of administration, of what they have done ; because this is a recital of something accomplished already—“ We have thought fit ” ; this is not the instrument which does it ; it is a record of what has been done ; and observe how it is done. It is done in association with this question of Quebec. Then you will find, a few pages further on, that we have got Quebec, we have got this care and inspection of the coast, and then we have still got to deal with the Indians, and we have dealt with that.
Lord SUMNER : I understand your case to be that some territory was assigned out of the general land of the Crown by this Proclamation.
Mr. MACMILLAN : Yes, my Lord.
Lord SUMNER : Then all the rest of it “ to the end that ” and “ under the care and inspection of,” appear to go not to the quantum of the territory, but the policy. That is what he has to do with it ; it is a description of the territory as opposed, it may be, to its area.
Viscount HALDANE : They were gradually progressing from administration by the Crown, to Crown Colony government. You had got something like Crown government in the Island of Newfoundland itself, and you had got it in Quebec, but here there was a gradual progress in which it was not necessary to do anything more than to put certain coasts and islands under care and inspection. They did not become Crown Colonies. They became under the custody of somebody, who might be the Governor of another Colony or who might be someone else.
Mr. MACMILLAN : That may have been the general survey, but it does not leave me quite comfortable in answer to my Lord Sumner. I would like to meet that point as it was expressed to me, in this shape ; it is a point I ought to meet. If there is a territorial content in this already, then the mere fact that you describe the purpose with which you have confided that territory to the Governor of Newfoundland will not necessarily limit the extent of it. I think I have your Lordship's point correct.