Governor who is not to extend tolerance to Papists, if my learned friend is right.
Now there is another rather good statement of the same kind by Mr. W. Ewing on page 3736 in the same volume. I content myself with giving the reference.
Now I am going to pass from this question of the Indians. It seems to be a controversial topic, and the question between us is quite a simple one. When the Proclamation of 1763 was framed, did it, or did it not, reserve in the language of reservation to the Indians any part of the green territory ? That is the problem. My submission is that I have shown, contrary to my learned friend's submission, that that proclamation did refer to an Indian reservation in this district.
Viscount HALDANE : Before you pass wholly away from Ewing's document, I see at the bottom of page 3736 he says : “ These Indians now come from Ungava (their headquarters) to Davis Inlet and from there get enough grub to enable them to resume their hunting back to Ungava.” It looks as if they crossed the height of land.
Mr. MACMILLAN : I am afraid that they did not think much of the height of land in those days. There is no doubt that they roamed over the whole of the interior plateau.
I am sure that your Lordships have noted in passing the significant omission on page 156 of Volume I. When the King declares it to be his “ royal will and pleasure, for the present as aforesaid, to reserve under our sovereignty, protection, and dominion, for the use of the said Indians ” certain lands and territories, he describes them as “ all the land and territories not included within the limits of our said three new governments, or within the limits of the territory granted to the Hudson's Bay Company.” That is to say, the lands and territories not included within the limits of Quebec, or within the limits granted to the Hudson's Bay Company. The strange thing is this : If Newfoundland was seated in this region as well as the Hudson's Bay Company and the Quebec Government, why did he not also say “ or within the territory which I have assigned to the Government of Newfoundland ” ?
The LORD CHANCELLOR : That is what troubles me. I thought it was common ground that something was annexed to Newfoundland.
Mr. MACMILLAN : I think the explanation is quite simple, my Lord. At least, I should not say that anything is quite simple in this case, but the explanation I think is at least a tenable one, and it is this, that if I am right, the Governor of Newfoundland had a coastal jurisdiction, and no concern with the Indians at all. He was concerned, if you please, with Esquimaux, whom he encountered in connection with the fishing, but he had no concern with Indians at all ; and my submission keeps him to the coast, keeps him to a territory where, as that map shows, there were no Indians at all, but there were Esquimaux, a different class of people altogether. Therefore I have accounted for
the situation quite satisfactorily. The omission is intelligible in my view, because no Esquimaux territory was reserved to the Indians, but it is unintelligible upon my learned friend's hypothesis.
The LORD CHANCELLOR : You read this as meaning that all the lands and territories are reserved to the Indians, not included in the limits of the three governments ?
Mr. MACMILLAN : That suggestion is attractive, if I may say so respectfully, and it rather links itself up with what one may call the preamble at the top of the page, where it says : “ And whereas it is just and reasonable and essential to our interest 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 as their hunting–grounds.”
That suggestion, which your Lordship was good enough to make, rather links itself with that, they are thinking of Indian territory.
The LORD CHANCELLOR : I am trying to understand what your argument was. I did not want to make a suggestion of my own.
Mr. MACMILLAN : I quite understand. On my view, there you have an intelligible view, it was riot necessary to exclude the lands handed to Newfoundland, because they were not, on my hypothesis, Indian lands.
From that topic I pass now to what is a matter of importance for my case in this connection, that is the question of the Hudson's Bay Territory. I had indicated to your Lordships my learned friend's two main contentions were as I conceive them the green area is all mine, for two reasons, first, there are no Indians in it to whom the Proclamation applies, and therefore there is no separate piece of territory to be accounted for, secondly, the green area east of the Hudson's Bay boundary is all mine, and there is no gap there, the boundary of Newfoundland and Hudson's Bay are coincident boundaries and that boundary is the height of land.
May I ask your Lordship's examination of that topic for a moment. The suggestion offered to your Lordships then is that after the Commission and Proclamation of 1763 the boundaries of Newfoundand and the Hudson's Bay Company were coincident boundaries and the frontier was the height of land from Cape Chidley following the blue line southwards. That is the submission. These two Territories were then exhaustive in that region of all the Governments or jurisdictions or whatever one likes to call them, and my learned friend's argument culminated as my Lord may remember in his consideration of the Hudson's Bay Committee Report in 1857. Now, my Lord, would you kindly turn, because this is a little important, to the passages
where my learned friend dealt with this matter, which are to be found on pages 224 to 230 of his address.
Viscount HALDANE : We have not got the printed proceedings before us.
Mr. MACMILLAN : They are available.
The LORD CHANCELLOR, : I think we should follow it the better if through that medium you refer us to the documents which Sir John referred to.
Mr. MACMILLAN : If your Lordship pleases. The argument culminates in a passage as follows about line 30. My learned friend had been expounding the Select Committee's Report of 1857, and had been indicating its importance to your Lordship, and in particular you may remember he brought some most interesting original documents, opinions of Law Officers and so on, under your Lordship's notice, and I think the matter came really to a point in the comments of my Lord Warrington of Clyffe at page 229 where my Lord was good enough to say this, addressing Sir John : “ It comes to this. The House of Commons in 1857 accepted the claim made by the Hudson's Bay Company in the letter of the 8th June 1850.” This was how my learned friend formulated the position to you, my learned friend replied : “ Yes ; and they say they did so having before them the opinion of the Law Officers.” My Lord, I confess in my simplicity what I took from that question and answer was this, that if I went to the Hudson's Bay Select Committee's Report I would find two things, first, that the Committee passed upon the subject of the Hudson's Bay boundary, and came to a conclusion upon it in the sense my friend indicates, namely, that the height of land was the boundary of Hudson's Bay. I further took from that statement this inference that they did so in reliance upon the opinion of the Law Officers before them, which law officers my learned friend has indicated were Sir John Jervis and Sir John Romilly. At page 225 he refers to “ The Law Officers of the Crown who were not consulted for some years afterwards but whose opinion was actually before the House of Commons Committee in 1857, being Sir John Jervis, Attorney General and Sir John Romilly, Solicitor General.” And he says at page 225, line 30 : “ In 1857 at any rate, the House of Commons Committee, without any sort of question, took the boundary of the Hudson's Bay Company as being the height of land.” And there are other references and also an indication of who the Law Officers were. I have before me a copy of the opinion of Sir John Jervis and Sir John Romilly who were the Law Officers in the year 1850. And at the foot of page 227 he says : “ We have here the material which was submitted, and the material is the other opinion, the opinion, of Sir Samuel Romilly and his colleagues. Perhaps it would be inferesting[sic] to see the originals.” I assumed therefore if I examined this Report
to which I was directed I would find these two things. I have examined the Report and I am now going to ask my Lords to consider it a little carefully because I propose to establish to your Lordships' satisfaction two propositions on this, first of all, that the Select Committee never passed their imprimatur on the height of land as the boundary of Hudson's Bay at all, and, secondly, that the opinion of the Law Officers to which they allude was not the opinion of Sir John Jervis and Sir John Romilly at all, but was another opinion, and I undertake to demonstrate both of these matters from the Report itself. The Report, my Lord, is commendably brief, it occupies two pages.
Viscount HALDANE : What year was it ?
Mr. MACMILLAN : 1857, it is dated the 31st July, 1857, and it is the Report of a Select Committee appointed to consider the state of those British Possessions in North America which are under—
Viscount HALDANE : What Government was that ?
Mr. MACMILLAN : I cannot say my Lord. My learned friend, Sir John Simon, suggests it was Lord Aberdeen, but I am not sure.
Lord WARRINGTON : That was the year of the Indian Mutiny.
Mr. MACMILLAN : We can easily find it.
Viscount HALDANE : I will find it in “ Whitaker.”
Mr. MACMILLAN : I observe my Lord Chancellor has the actual Report before him. Perhaps my Lord will be good enough to follow my comment with the text before him. This is : “ The Report of The Select Committee appointed to consider the state of those British Possessions in North America which are under the Administration of the Hudson's Bay Company, or over which they possess a License to Trade, and who were empowered to report their Observations, together with the Minutes of Evidence taken before them, to The House : Have considered the matters to them referred, and have agreed to the following Report.”
Now, my Lord, for my purpose, of course, it would be my duty to read the whole of this Report, the two pages of the Report, in order to demonstrate that they came to no finding at all on the height of land, but I do not propose to do that if your Lordships will take it from me, and the Lord Chancellor will check it from me, I find from beginning to end of their Report no finding upon this subject at all—none.
What I do find on the other hand is certain interesting information which I shall show is entirely counter to my learned friend's submission. Paragraph 3 of the Report runs thus : “ Your Committee have received much valuable evidence on these and other subjects connected with the Inquiry which has been entrusted to them, and especially have had the advantage of hearing the statements of Chief Justice Draper, who
was commissioned by the Government of Canada to watch this Inquiry. In addition to this, Your Committee have received the evidence taken before a Committee of the Legislative Assembly, appointed to investigateur this subject, containing much valuable information in reference to the interests and feelings of that important Colony, which are entitled to the greatest weight on this occasion.” Then comes the passage on which my learned friend relied. “ Your Committee have also had the Opinion of the Law Officers of the Crown communicated to them on various points connected with the Charter of the Hudson's Bay Company.”
My Lord, I confess I assumed from that that that was the opinion of the Law Officers of the Crown, being Sir John Jervais and Sir John Romilly. I am sure, I am in your Lordship's judgment, that was the impression your Lordships formed also, but it was not so. The Committee consulted the Law Officers.
Viscount HALDANE : I want to see who were the Law Officers.
Mr. MACMILLAN : I have got their names, Mr. Bethell, as he then was, and Mr. Keating. This is a very important point, I pray your Lordships will take the references to this passage in Article 4, because it has a most intimate bearing on my learned friend's whole argument.
Viscount HALDANE : It was Sir Richard Bethell and Sir John Romilly.
Mr. MACMILLAN : You will see that when I bring you to the Law Officers' Opinion in a moment. If you will be good enough to turn in the Report to page 402 in the Appendix to the Hudson's Bay Report, here is the Opinion. It was given by the Law Officers of the Crown, on the instructions of Mr. Secretary Labouchere, and you will see there a letter addressed from Mr. Merivale, I suppose he must have been the Secretary to the Committee, to the Attorney–General and the Solicitor–General, with enclosure. He says he is directed by Mr. Secretary Labouchere.
Viscount FINLAY : What is the date of this letter ?
Mr. MACMILLAN : 1857, it was during the period of the investigations they were making, the 9th June, 1857 ; “ I am directed by Mr. Secretary Labouchere to transmit to you, jointly with you (Solicitor–General—Attorney–General) copies of two despatches from the Governor of Canada enclosing the copy of a Minute of his Executive Council, and and[sic] extract from another Minute of the same, in reference to the questions respecting the affairs of the Hudson's Bay Company, now under investigation by a Committee of the House of Commons. You will observe from the former of the Minutes that the Executive Council suggest, on the part of Canada, a territorial claim over
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