Mr. MACMILLAN : Not your proposition ; no. I do not suggest that for a moment, but I do suggest this, that the attempt (so to speak) to bolster up the height of land as the legal and just boundary because it has the support of international law as well as of reason, failed in that case. It is put again with an insistence which I am afraid we Counsel too often exhibit on page 2139, for Mr. McCarthy, returning to the charge, says : “ I mean this, and your Lordship will say whether I am to go on or not.” Counsel is getting into difficulties, and is anxious to ascertain whether he is to go on with his topic.
Viscount HALDANE : Mr. McCarthy was an advocate of immense energy.
Mr. MACMILLAN : I gathered so from the written page. “ I mean this, and your Lordship will say whether I am to go on or not : but what I understand is this, that from time to time nations have agreed upon certain well known rules for settling matters of this kind, and that this question as to the water shed, and as to the territory which one nation that discovers becomes entitled to, has in that way—by conventions, by arguments adduced at those conventions, by settlements made upon references—been so firmly established that it may be accepted as a well known rule of international law.” That is not at all unlike what my learned friend Sir John is putting forward, that it is an accepted legal view that the height of land is the boundary which you are to adopt.
Lord WARRINGTON : I do not think Sir John put that forward at all as an accepted legal view, that the height of land was to be adopted.
Mr. MACMILLAN : My impression was that he said it was founded in both reason and principle.
Sir JOHN SIMON : I must answer for my own argument, and I know of no reason why I should answer for Mr. McCarthy's.
Mr.MACMILLAN : My Lord was asking me as to your argument. I thought you had submitted that it was a boundary founded in both reason and principle. I may have mis–quoted. If it is both unprincipled and irrational, I will not trouble with it.
Viscount FINLAY : If they agreed to it, there it is.
Mr. MACMILLAN: At page 2144, on the sixth day, the Lord Chancellor says this, and this is on the Hudson's Bay question you will notice : “ Then, when different nations are disputing about boundaries, they have recourse to abstract reasoning and certain principles, and so on; but to represent that as a rule of international law—and especially
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as a rule of international law which had any existence or was imagined by anybody at the time we have to consider in this inquiry—is surely a proposition which cannot be maintained. You might just as well go back to the time at which the Pope was supposed, by international law, to be able to give away whatever districts in the world he pleased. Those words ‘ international law ’ are very misleading. There are certain principles generally accepted amongst nations ; there are particular reasons which have been constantly resorted to when disputes have taken place, about boundaries or otherwise, between nations, as the best available means of settling those disputes ; but to say that there is any general international law that gives to the first discoverer of the mouth of a river and a certain line of coast, as against all other nations, whether he occupies it or not, or without regard to what extent it is occupied or not, a right to all the country that is watered by any of the rivers that come in there, is a proposition which no amount of modern books will prove. (Mr. Robinson) : Well, I am not desirous for one moment of arguing this question at length, or expressing any opinion of my own. All that I can say is that I find it laid down in the clearest language in the book which my learned friend has referred to, and your Lordship will find that confirmed. (The Lord Chancellor) : We really cannot have the laws of the world made by gentlemen, however learned, who have published books within the last twenty or thirty years.” I do not know whether that is Sir Travers Twiss or Sir Robert Phillimore. Then Lord Aberdare makes an interposition which is rather interesting : “ It must be borne in mind that Charles II was utterly unaware of the enormous bearing of such a proposition as yours.” My Lord, I suggest that in 1763 the framers of this proclamation were utterly unaware of any suggestion that by putting the coast of Labrador under the “ care and inspection,” they were inherently invoking a doctrine of reason which subjected the whole territory up to the height of land to the Governor. The Lord Chancellor says : “ It is quite certain that France never recognised any such idea, nor can I perceive that it was ever suggested on the part of the Hudson's Bay Company in the early stages. We first meet with it in the Selkirk grant of 1814 ”—my Lord, 41 years after the proclamation which, according to my learned friend, gave the Governor of Newfoundland the whole territory of Labrador up to the height of land upon the east side.
Viscount HALDANE : Mr. Christopher Robinson was an admirable advocate, but he was not at all combative, in my recollection ; he gave the thing up.
Mr. MACMILLAN: I do not know whether you commend that example to me, or deprecate it.
Lord SUMNER : Whether he gave it up or did not give it up, made no progress with it.
Mr. MACMILLAN : The only point about that is this. My learned
friends in their Pleadings appear to rely upon the Manitoba ease. It is referred to at some length in their Pleadings, although my learned friend has not made a point of it. I invoke it in turn for this purpose as showing that a sacrosanct height of lands boundary of the Hudson's Bay received very scant commons at the hands of the Privy Council in the 1884, and although at that time it was sought to be supported with learning (no doubt inferior to that of my learned friend, but at that time the best learning of the day) it did not succeed.
Lord SUMNER : I do not think I understood Sir John Simon to be resting his height of land upon any legal principle. I understood it roughly to be this, that when you have two administrations, both under the British Crown, who between them divide somewhere a great unexplored and savage tract, you get a boundary at some time or other, and in default of agreement on the parallel and longitude or something of that kind, what is there better than a watershed which at any rate can be discovered if you are sufficiently self–sacrificing to spend a few winters in this appalling climate.
Mr. MACMILLAN: It would have been more formidable for me to meet it had it been put in that form, but I think it was put much higher. It was put in this way, that there was a boundary of Hudson's Bay and a boundary of Newfoundland, coincident boundaries, meeting on the height of land. It was put in that form against me.
Lord SUMNER : So I understood. Assuming there was nothing intervening and they did join with one another somewhere, it is none the worse for the fact that learned Counsel advised that the height of land is the right one ; but still, the point as I understood it was that where you come to the end of Hudson's Bay you begin the Labrador part.
Viscount FINLAY : Would you read the terms in which the question is put ? Is not it : Where, having regard to the effect of the various documents referred to, or some of them, is the boundary to be fixed
Mr. MACMILLAN: What is the location and definition of the boundary as between Canada and Newfoundland in the Labrador Peninsula under the Statues, Orders in Council and Proclamations ?
Viscount FINLAY : We are not to find out what a good boundary would be; we are to say whether or not a certain boundary has been laid down by these documents.
Mr. MACMILLAN: That is exactly it, my Lord ; the same point in the Ontario and Manitoba ease. There also the Privy Council was ascertaining a legally existing, though unknown, boundary.
Viscount HALDANE : That was the reference to arbitration in Manitoba, was it not ?
Mr. MACMILLAN: The arbitration award was brought up here on the question of its validity. Questio that it was invalid ; then what was the true boundary ?
Viscount HALDANE : So the substantive question was raised ?
Mr. MACMILLAN : The substantive question was raised.
Viscount HALDANE : The Committee departed from the findings in Canada.
Mr. MACMILLAN : No, my Lord, they confirmed the award of the arbitrators.
Viscount FINLAY : Must it not ultimately resolve itself into a question of agreement ? Did the parties agree on this? Can you infer from these documents that their agreement was that the boundary should be so and so ?
Mr. MACMILLAN : If one were in the region of contract, but this is not a case of the two parties contracting with each other. It is a case of a regime imposed upon a territory, and therefore the construction is very much the same question, no doubt, but it is a question of what was done.
Viscount FINLAY : I agree ; but the question must be : “ Was this boundary fixed ?”
Mr. MACMILLAN : Yes, my Lord.
Viscount FINLAY : In that way ?
Mr. MACMILLAN : Yes.
Viscount FINLAY : Or at any time. It might be done at any time, of course, by agreement.
Mr. MACMILLAN : We are agreed, fortunately, here among many things in disagreement, that the root of title (I use advisedly my learned friend's expression) of Newfoundland is in Graves's Commission. The case is sought in the proclamation. I think one may reconcile these two by saying that the combined effect of the proclamation and the commission constitute the title which this honourable Court is now interpreting.
Lord WARRINGTON : The commission is really the operative document
Mr. MACMILLAN : The other is recital.
Lord WARRINGTON : It refers to the result of the commission having been effected.
Mr. MACMILLAN : One has in a sense to carry them together, because what was done in the proclamation was done in the light of what had been done under the commission, and therefore one is dealing with the disposal of this whole problem there and then. As I say, my learned friend and I are in agreement that there is the centre of this controversy ; what was done then ; what was in the minds of those who, in 1763, disposed of this territory ; how did they do it ?
Viscount FINLAY : What do the words which they used fairly mean ?
Mr. MACMILLAN : What did they effect by the words they used ? What is the true interpretation of those words ? I have been concerned up to this time to contest, to the best of my ability, the height of land point. My Lord, if I have established two points they are, if I may say so, very vital to the case against me. If I have established, first of all, the presence of Indians to whom the proclamation related, I have introduced the tertium quid into this area which my learned friend so strenuously combated. If I am able further to show that the height of land, the blue line coming down from Cape Chudley, was not in the minds of those who framed the proclamation or the commission as the boundary of my learned friend's interests on the main land, whatever they were, that the height of land was not known at that time even as a contention in that district, and was advanced at a much later period in consequence of the opinion obtained in 1814, then I have got a long way to show your Lordship that when the coast of Labrador was put under the care and inspection of the Governor of Newfoundland, and when there was added in the Commission to Captain Graves the coast of Labrador within certain termini upon the coast of Labrador, there was no intention whatever, and upon a sound construction of the language used there is no necessary inference that what was intended to be done was to include the whole area right up to the height of land ; and if my learned friend's case is right, actually to take from Hudson's Bay part of Hudson's Bay territory, because the land drained across on the inset map of Mitchells falls short by a long distance of Cape Chudley, and what he got was a jurisdiction, in my submission, on the shores of that district, but did not get a jurisdiction extending inland. Nevertheless, putting together these two statements of my learned friend (1) that Newfoundland went to the height of land, and (2) that the authors of the proclamation had before them as the boundaries of Hudson's Bay the diagonal line across Labrador, the result is that my learned friend's case drives him to this : that they actually gave Newfoundland part of the Hudson's Bay territory in 1763.
My Lords, on those two matters, I submit that I have given your