Viscount HALDANE: Are you now going on to a new matter ?
Mr. MACMILLAN: I am still pursuing, I am sorry to say, the elusive boundary of the Hudson's Bay Company, but I will pass now altogether from the contentious atmosphere of the House of Commons Select Committee's Report of 1857. Bearing in mind my Lord Warrington's exhortation, I remember that 1763 is really the important date, and I am frankly once more indebted to my learned friends for putting this matter really beyond question, so far as they are concerned, in their Case. If your Lordships would be good enough to look at the Newfoundland Case, on page 8, line 10, this is Newfoundland's view of the accepted Hudson's Bay boundary in 1763. “ It is indeed probable that those responsible for the Royal Proclamation of the 7th October 1763 accepted as the Southern Boundary of the Hudson's Bay Company's territories the line shown on the small map inset in Mitchell's map (1755) of the British Colonies in North America, which represents the British proposal after the Treaty of Utrecht.” So Newfoundland's view in their pleadings is that the Hudson's Bay boundary is to be found upon a map, that is to say what was before the people who were considering the Proclamation, and that is the really relevant matter for our present purpose. Now would your Lordships be good enough to look at this map, Mitchell's map, which is No. 11 in the Canada Atlas; it has been before your Lordships before, it is what is called the King's Map ; it is the interesting map which came from King George's library, and bears upon it the marks of having been used for the purposes of showing the results of various important transactions. My Lords, the inset map to which they refer is the little map up in the corner, the small map inset in Mitchell's map of 1755, and there you will see a line drawn transversely through the Peninsula of Labrador, and the letterpress on it is, “ Proposed limits of Hudson's Bay.” That coincides, of course, precisely with the exact language used in the Pleadings. They refer to this line as representing the British proposal, after the Treaty of Utrecht, so there can be no doubt, whatever that, so far as Newfoundland is concerned, their case to your Lordships is that the Hudson's Bay boundary, so far as it was in the minds of the framers of the Proclamation of 1763, is the line shown in red and blue in Map No. 11, the King's map. My Lords, that plainly is not a height of land line. Would your Lordships see how that map fits into the big map. May I try to assist a little in the understanding of the map ; my Lords will notice on the large map towards the top a blue and red line, a straight line right across the map.
Viscount FINLAY : Not right across.
Mr. MACMILLAN : I mean extending across transversely, at an obtuse angle it goes off to the North East, and the inset map red and blue line is the continuation of that line ; and that line is lettered in red ink “ Boundary between the lands granted to the Hudson's Bay Company and the Province of Quebec,” that is along the top of the blue and red line in red ink, and that is the line whose prolongation through the inset map is described by Newfoundland in its Pleadings as the line which was probably before the framers of the Proclamation of 1763, as the Southern Boundary of Hudson's Bay Territory. My Lords have only to look at it to see that in no sense it is a height of land line.
The LORD CHANCELLOR : That is only a proposed line, it is not put as an existing boundary.
Mr. MACMILLAN : No, my Lord, but the point is that the statement of Newfoundland is that that is the line which was accepted as the Southern boundary of Hudson's Bay by the framers of the Proclamation.
Sir JOHN SIMON : Not the statement, I think.
Mr. MACMILLAN : May I read it : “ It is indeed probable that those responsible for the Royal Proclamation of the 7th October, 1763, accepted as the Southern boundary of the Hudson's Bay Company's Territories the line shown on the small map inset.”
Viscount FINLAY : If that were the case it would destroy the view of the height of land.
Mr. MACMILLAN : Of course it would, my Lord, and that is why I quote it.
Viscount FINLAY : The effect is purely negative.
The LORD CHANCELLOR: What is the authority for that assumption ?
Mr. MACMILLAN : That question, with great respect, should be addressed to Newfoundland, and not to me; it is their considered statement on their Record. Addressing it to me, my Lord, I think it is a very good one, for this reason, I just recall what I had read from the Opinion of the Law Officers in 1857, who said that, for the purpose of ascertaining the true boundary of Hudson's Bay territory, it would be proper to have regard to what was claimed after the Treaty of Utrecht, and 1750. There are other lines of interest upon that map.
Sir JOHN SIMON : There is a height of land just above.
Mr. MACMILLAN : I recognise, of course, the importance of reconstituting, if one could, the position in 1763. After all, what happened after that may be important, but what we are anxious to see is, is it not : what did those who used the language of the Proclamation of 1763 conceive to be the territory to which they were alluding as excluded from the Indian reservations, to wit, the Hudson's Bay territory.
Lord WARRINGTON : You need not go so far as that ; it may be that they did not assume a boundary at all : they were not concerned with settling the boundary of the Hudson's Bay property at that time, they may very well have assumed the boundary of the Hudson's Bay Company and then dealt with the rest.
Mr. MACMILLAN : Of course, my Lord, it was not necessary, on my view, that they should find a Hudson's Bay boundary at all, because they had general language which was sufficient to include all that was not in Hudson's Bay, and all that was not in Quebec, in Indian territory, without any exception of Newfoundland ; but I am, for the moment, really taking the considered statement of my learned friend's Case as to what it conceived to be the assumption. I will not put it higher than that, in the minds of the framers of the Proclamation of where the line of the Hudson's Bay territory was, and they say that it was probable that the authors of the Proclamation accepted as the Southern Boundary the line shown on the small inset map. Now, my Lords, the line shown on the small inset map, is not the height of land line, but is a different line ; it does not come: out at Cape Chidley, it comes out at, I think it is, Grimington Island.
Sir JOHN SIMON : My learned friend will have observed that the map does show, and shows in the neighbourhood, a height of land line.
Mr. MACMILLAN : And disregards it.
Sir JOHN SIMON : It describes it as the height of land line as fixed by the Treaty of Utrecht.
Mr. MACMILLAN : That is quite right “ bounds of Hudson's Bay by the Treaty of Utrecht ” ; that is the green and red line, the wavy line.
Sir JOHN SIMON : That is also labelled, “ Lands Height,” you will notice.
Mr. MACMILLAN : And also labelled, “ Lands Height.” I could have understood my learned friend saying that that line was the line which was in the minds of the framers of the Proclamation; but having
that map in front of them they rejected that line and said that the line that they had in mind, which makes it all the more prominent, was the red and blue line ; therefore, having before them a height of land line, they deliberately disregarded that and said that the boundary which was in the mind of the framers of the Proclamation was not the height of land line on the same map, but was the red and blue line. I do not know whether that is regarded as making too much of a Pleader's point—I do not want to make too much of a Pleader's point—but still it is rather significant that the statement made there varies so very widely from what is subsequently put before your Lordships in argument ; but my Lords will take this along with it, which has now been made abundantly plain, that in 1763 the height of land claim had not been advanced. It was in 1814 that the height of land contention of the Hudson's Bay Company (I read to you to–day the passage vouching that) was put forward and was canvassed and discussed.
It was approved by some persons ; other persons disapproved of it. But if the Newfoundland statement be true, it makes a most serious inroad into their contentions—if their own statement be true, and I can only assume for the moment that it is true, until it is disclaimed.
My Lords, there are other indicia of considerable value upon this question of Hudson's Bay in relation to the height of land. I shall have to refer to this map and the Quebec boundary question, later on ; meantime I thought it proper to bring it before you in relation to the pleadings of the Colonies. May I take one of those smaller matters which are sometimes indicative, more than would seem at first. My learned friend, at page 95 of his address, passing from the formal documents themselves, as to which he had expressed a view, with which I am almost in agreement, says, “ My own view, which I submit most humbly to the Board, is that what one has finally to do is to take the language of the formal documents, and that what has been done under them, though no doubt matters which your Lordships will carefully consider, is an entirely subordinate question.” I should think that view commends itself to my Lords as it humbly commends itself to me. He points out, of course, that the significance of these entirely subordinate matters varies very much according to the circumstances, and that where he can give an example of common consent, it has more weight than if it were really exparte. He classifies the different kinds of subordinate things, but it is remarkable that he selects as apparently the very first of those subordinate matters—certainly very early, because it is at page 98—as an example of one of these subordinate matters which assists him in the case of his height of land contention, the case of Fort Nascopie, and that topic was thus introduced to your Lordships.
My learned friend said that Sir George Simpson, a prominent official of the Hudson's Bay Company, being examined before the House of Commons Committee in 1857, had brought to his notice an incident which had taken place at Fort Nascopie. One Kennedy had said that a murder of Indians had taken place there and this incident was brought up against Sir George Simpson for the purpose of discrediting the
efficiency of the Hudson's Bay Government, and it was said : “ How comes it that these crimes can take place in Hudson's Bay Territory ? ” Sir George Simpson disclaimed the locus, Fort Nascopie, as being in Hudson's Bay territory, and my learned friend thus put the point : “ One of the things about which he was very much challenged—”
Viscount FINLAY : You are reading Sir John's statement, are you ?
Mr. MACMILLAN : If your Lordship pleases ; I prefer to put his exact language, rather than to paraphrase it. “ One of the things about which he was very much challenged was the failure—so it was alleged—of the Hudson's Bay administration properly to punish a man who was said to have maltreated (I rather think to have killed) a native at Nascopie ; and his answer again and again was ‘ Nascopi is not in Hudson's Bay jurisdiction ; it is in the jurisdiction of Newfoundland.’ What Sir George Simpson said is not evidence, but it is an interesting circumstance that, in 1857, that was one of the matters which came out, and Nascopie acquired considerable importance in the Committee for that reason. (The LORD CHANCELLOR) : It did not matter to him whether it was in the jurisdiction of Newfoundland or Quebec, I suppose ? (Sir JOHN SIMON) : It did not, of course. (The LORD CHANCELLOR) : The point was that it was not within the Hudson's Bay territory. (Sir JOHN SIMON) : It is rather this : nobody suggested at the time that it could be anything else. He did insist that it was in Newfoundland. I am not attaching importance to it, but it does fit in, that in 1857, when that map was printed by the House of Commons as the result of the Hudson's Bay Inquiry ”—your Lordships notice how the 1857 map is referred to as “ Printed by the House of Commons as the result of the Hudson's Bay Inquiry.” Then Sir John continues : “ (and it is rather interesting to notice), there was confirmation that that is where you get dividing line. Lake Nascopie is the head of the waters that are running down. As a matter of fact, Sir George Simpson did again and again insist : ‘ That is Newfoundland.’”
My Lord, we have the evidence of Sir George Simpson, and you will find it printed in Volume V, at page 2280. On that page your Lordships will see that my learned friend is quite right in saying that Sir George Simpson was insistent on Fort Nascopie being in Newfoundland ; but to say that nobody suggested at the time that it could be anything else, is a little remarkable in view of the topic being pursued as it was with Sir George Simpson. After he had, as my friend pointed out, said, I think twice if not oftener, that it was in Newfoundland, he is asked this at Question 1572, on page 2280 : “ (Q.) Do you know whether that fort belongs to the Hudson's Bay Company ?—(A.) It does ; it is a post or establishment called the Post of Nascopie. These posts are moved from time to time according to circumstances. (Mr. Roebuck) : Can you remove a fort ?—(A) A fort is half–a–dozen log huts, and may be erected by half a–dozen men in about a week ; that is what we call a fort. (Q.) It bears the same name wherever it travels ?—(A.) We call it