Confederation
1864-1949



The Labrador Boundary


Privy Council Documents


Volume I

Volume II

Volume III

Volume IV

Volume V

Volume VI

Volume VII

Volume VIII

Volume IX

Volume X

Volume XI
Contents

Volume XII








1 Nov., 1926.

Mr. Macmillan.

1 Nov., 1926.

Mr. Macmillan.

Sir John Simon.

Mr. Macmillan.

1 Nov., 1926.

Mr. Macmillan.

Sir John Simon.

Mr. Macmillan.

The Lord Chancellor.

Sir John Simon.

Mr. Macmillan.

Lord Sumner.

1 Nov., 1926.

Lord Sumner.

Mr. Macmillan.

1 Nov., 1926.

Viscount Finlay.

Mr. Macmillan.

Viscount Haldane.

Lord Warrington.

Mr. Macmillan.




p. 454

a considerable extent of country, which is also claimed by the Hudson's Bay Company, as owners of the soil, and with rights of Government and exclusive trade under their Charter. You will observe by the annexed Parliamentary Papers of 12th. July, 1850, that the ‘Statement’ of the Hudson's Bay Company's rights as to territory, trade, taxation, and government, made by them to Earl Grey, as Secretary for the Colonies, on the 13th. September 1849, was submitted to the then Law Officers of the Crown who reported that they were of opinion that the rights so claimed by the Company, properly belonged to them ; but suggest, at the same time, a mode of testing those claims by Petition to Her Majesty, which might be referred to the Judicial Committee. I am further to annex a Parliamentary Return made in 1842, containing the charter of the Company, and documents relating thereto ; and another of 23rd. April, 1849, containing amongst other papers an Act of 2nd. William & Mary, ‘ for confirming to the Governor and Company to Hudson's Bay their privileges and trade.’ The rights so claimed by the Company have been repeatedly questioned since 1850, by private persons in correspondence with the Secretary of State, and are now questioned to a certain extent, as appears by these despatches, by the present Local Government of Canada. I am to request that you will, jointly with (Solicitor–General—Attorney–General) take these papers into your consideration and report.—Whether you think that the Crown can lawfully and constitutionally raise, for legal decision, all or either of the following questions :—The Validity at the present day of the Charter itself ”—that is the Hudson's Bay Charter—“ The Validity of the several claims of territorial rights, of government, exclusive trade, and taxation, insisted on by the Company. The geographical extent of this territorial claim (supposing it to be well–founded, to any extent). If you are of opinion that the Crown can do so, you are requested further to state the proper steps to be taken, in your opinion, by the Crown, and the proper tribunal to be resorted to ; and whether the Crown should act on behalf of the Local Government of Canada, as exercising a delegated share of the Royal authority, or in any other way.” This was the invitation of the Select Committee on Hudson's Bay matters to the Law Officers of the Crown, to advise them upon these matters communicated by their Secretary to Mr. Attorney–General and Mr. Solicitor–General of the day, and there follows on pages 403 and 404 the Opinion of the Law Officers, being the Opinion of the Law Officers of the Crown referred to in their Report. One would have expected in view of the submissions of my learned friend that one would have found the Law Officers of the Crown saying the boundary of Hudson's Bay is without doubt the height of land. That is what one would have assumed. What they do say, on page 404, after dealing with the questions of the validity of the Charter itself, because this was often in question because of its vagueness, is : “ The remaining subject of consideration is the question of the geographical extent of the territory granted by the Charter, and whether its boundaries can in any and what manner be ascertained. In the case of grants of considerable age, such as this Charter, when the words, as is often the case, are indefinite or

p. 455


ambiguous, the rule is, that they are construed by usage and enjoyment, including in these latter terms the assertion of ownership by the Company on important public occasions, such as the Treaties of Ryswick and Utrecht, and again in 1750. To these elements of consideration upon this question must be added the inquiry (as suggested by the following words of the Charter, viz. : ‘ not possessed by the subject, of any other Christian Prince or State ’ ), whether, at the time of the Charter, any part of the territory now claimed by the Hudson's Bay Company could have been rightfully claimed by the French, as falling within the boundaries of Canada or Nouvelle France, and also the effect of the Acts of Parliament passed in 1774 and 1791. Under these circumstances, we cannot but feel that the important question of the boundaries of the territory of the Hudson's Bay Company, might with great utility, as between the Company and Canada, be made the subject of a quasi–judicial inquiry. But this cannot be done except by the consent of the parties, namely, Canada and the Hudson's Bay Company, nor would the decision of a Committee of the Privy Council have any effect as a binding judicial determination. But if the Hudson's Bay Company agreed to the proposal of the Chief Justice of Canada, that the question of boundaries should be referred to the Privy Council, it being further understood by both parties, that the determination of the Council shall be carried into effect by a declaratory Act of Parliament, we think the proceedings would be the best mode of determining that which is, or ought to be, the only real subject of controversy.”
That is the opinion of the Law Officers to which allusion is made in the Report. I am sure my learned friend must have been in error when he suggested what I think we all assumed, that the Opinion in question was the Opinion of Sir John Jervis and Sir John Romilly.

Sir JOHN SIMON : I am much obliged to my friend. Of course, I had not appreciated this, else I would have told the Board ; at the same time, as we are clearing it up, let us clear it up completely. I notice that the letter which was addressed. to the Attorney–General and Solicitor–General, which I venture to think is not from the Secretary of the Committee, it was from some Government Department, I am not sure, but I notice it begins by saying : “ You will observe by the annexed Parliamentary Papers of 12th. July, 1850, that the ‘ statement ’ of the Hudson's Bay Company's rights as to territory, trade, taxation, and Government, made by them to Earl Grey, as Secretary for the Colonies, on the 13th. September, 1849, was submitted to the then Law Officers of the Crown.”
That document, subject to my friend's correction, included the Opinion of Sir Samuel Romilly, Mr. Cruise and all the rest of them.

Mr. MACMILLAN : My friend is really doing me rather an injustice. I was going to come to that in a moment ; it is the next matter in the note that was before them, but my point now is the question whether the

p. 456

Opinion of the Law Officers of the Crown referred to in the Report is the Opinion of Sir John Jervis and Sir John Romilly.

Sir JOHN SIMON : My friend has made his point perfectly right, but I thought from his manner and peroration, he was passing from it. It appears that Sir John Jervis's Opinion was before Sir Richard Bethell at the time.

Mr. MACMILLAN : It is all coming.

Viscount HALDANE : Does it matter whether it was Sir Richard Bethell or Sir John Jervis ?

Mr. MACMILLAN : It matters vitally to my friend, because he invoked this as being the Opinion of the Law Officers which said the height of land was the boundary, therefore he was able to say he had the Opinion of a Committee of the House of Commons, confirmed by the Opinion of the Law Officers at the time, that the height of land was the boundary.

The LORD CHANCELLOR : If this recital is correct, then the Law Officers, to whom this statement was submitted, did confirm it, not these two, not Bethell and Romilly, but the earlier Law Officers referred to.

Mr. MACMILLAN : Yes, I was going to bring it out in a moment.

Sir JOHN SIMON : May I put myself right, because Mr. Macmillan is correcting a statement which one might well be supposed to have intended to make. I want to be quite fair about it, I am not saying my friend has not thrown new light upon the matter, but allow me to say the important point is not that some Law Officers have expressed an Opinion, but that the House of Commons Committee sat and when they published their Report, they did as a matter of fact, as far as I appreciate, not throw any doubt on the area so far as their report was concerned. There may be material which my friend has got which shows they did, but that is my point.

Mr. MACMILLAN : That is a little different from the statement that the House of Commons without any sort of question took the boundary of the Hudson's Bay Company as being the height of land, and did so, having before them the Opinion of the Law Officers. I may have drawn a wrong inference from what my learned friend said, but I confess in my simplicity I had no difficulty at all.

Lord SUMNER : It sounds like this, that two Law Officers under some circumstances agreed, and I do not know how many other Counsel advised it, that the Hudson's Bay Company's boundary was the height of land. Then the House of Commons, having that amongst other learned

p. 457

Opinions before them, of course, they had further Opinions before them, did not say they agreed, but they did not say they disagreed. The last state of the matter was that Mr. Bethell and Mr. Keating said the best things was, if they consented, to remit this dubious question to a quasi–judicial authority, and that does not seem to have been done.

Mr. MACMILLAN : There is a good deal more to come.

Lord SUMNER : It is only to see if I follow you as far as you have got.

Mr. MACMILLAN : As far as I have got I have got this, I am in search of two things, a statement in their report that they had passed upon this subject and come to a conclusion. Your Lordship is quite right, the report is blank upon the subject. Secondly, I was in search of the opinion of the Law Officers which they say they had before them. This is the opinion of the Law Officers. I was now going to point out to your Lordships the history of the position. It is quite true that the Law Officers referred to in the Report, when the papers were before them to advise, had their attention drawn to the fact that the previous Law Officers in 1850 had expressed that opinion, but that was not the opinion which was before this Committee. The opinion of 1850 was brought to the notice of the Law Officers who advised this Committee, and the significance of it to my mind is this, that the Law Officers who advised this Committee, did not say the matter is clear and the boundary is the height of land, but they said the matter is quite in a different position. They suggested other methods of ascertaining what was the boundary and they said that : “ In the case of grants of considerable age, such as this Charter, when the words, as is often the case, are indefinite or ambiguous, the Rule is, that they are construed by usage and enjoyment, including in these latter terms the assertion of ownership by the Company on important public occasions, such as the Treaties of Ryswick and Utrecht, and again in 1750.” In short so far from subscribing to the view that the height of land was the boundary of the Hudson's Bay territory, now a generally accepted boundary, as to which there need be no question, the learned Law Officers of the day consulted by this Committee, said nothing of the sort, they said on the contrary, having before them the opinion of their predecessors of 1850 upon which my friend relied, and which he thought was the opinion upon which this Committee acted, they said there are quite a number of considerations to be kept in view in determining where the boundary is and we think it is a fit matter for the Privy Connell, but the topic may be pursued a little further, and I propose to do that. They did allude also in their report to Chief Justice Draper's statement which they say they have had the advantage of hearing.

Viscount FINLAY : I only want to see to what point we have got[sic] As I understand it you say you have now shown that this had no

p. 458

bearing, it left the question entirely open about the effect of the height of land.

Mr. MACMILLAN : Yes, in 1857 entirely, and my learned friend was very naturally misled because he thought this Committee had before them an opinion of the Law Officers of the Crown saying there was no doubt about the height of land ; whereas the Law Officers of the Crown who they consulted reported in the sense I have indicated. It is quite true these Law Officers had before them the opinion of their predecessors.

Sir JOHN SIMON : Which is recited in the opinion they had before them.

Mr. MACMILLAN : I know.

Viscount HALDANE : Tell us how it was on your theory that the Hudson's Bay Company got established the reputation of the boundary up to the height of land ?

Mr. MACMILLAN : The history of that is most interesting and was quite accurately told to your Lordships by Sir John Simon.

Lord WARRINGTON: Is not really for our purpose the question not what the boundary was in 1857 of the Hudson's Bay Company, but what in 1763 the parties regarded as the territory of the Hudson's Bay Company.

Mr. MACMILLAN : My Lord, I can only deal with my learned friend's argument in detail, but your Lordship may remember great emphasis was placed by Newfoundland on this matter. I am surely not to be debarred from showing that he is not entitled to any aid from this at all, because it is all based on a misapprehension. May I most humbly subscribe to your doctrine, I think 1763 is the important thing, but I am coming to that in a moment. I must first of all dislodge my friend on one front, I cannot deal with all fronts at the same time.

Viscount FINLAY : What at present you are contending is that what happened was the matter was left entirely open at that time.

Mr. MACMILLAN : Yes, entirely open. Would your Lordships pass to what Chief Justice Draper said, this was before this Committee. First of all there is his oral testimony at page 212, if your Lordships would look at one paragraph. This is the person whom they referred to, they had the special advantage of hearing him as the Agent of Canada : “ Taking the points in the order in which you have mentioned them, first of all, with regard to the question of the limits of the province of Canada, are there any statements which you wish to lay before the Committee on that head ?—I should say with regard to that point that the view which is

[1927lab]




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