Mr. MACMILLAN: The height of land is said to be latent in 1763.
Lord SUMNER : It is there, but the line seaward is still more latent, because where it was in 1763 we do not know.
Mr. MACMILLAN : It is not for me to contend with your Lordship, but I can only suggest : take the case between France and Britain with regard to the shore rights. they are not proprietory rights, but rights with regard to which, had we not been able to come to some agreement, there might have been a casus belli, and an equally serious tribunal might have had to consider the question of delimiting the sufficiency of the margin of Newfoundland to answer the rights which the French had there.
Lord SUMNER : Under a different form of reference we might have had to do it, and could have done it if we were Boundary Commissioners, or geographers, by parallels of latitude and longitude ; but here we have to say what was meant in advance, by people who did not know where it would be convenient for the line to go back, because the fishery along there was a thing which was new as far as the Governor was concerned—where they conceived it to be latent. It is like the famous black hat in a dark cellar which was not there.
Mr. MACMILLAN : I do not belittle the difficulty of the problems, but on the other hand I do not think it would be legitimate to seek refuge in my learned friend's contention merely because it happens to be an easier one to adopt. I admit the attractiveness of it presented as attractively as it was. After all, if you take the Hudson Bay case, there there was a latent boundary also, a latent boundary which has never been discussed and which down to 1814, when the Opinion was obtained, was considered to be elsewhere; and indeed prior to 1763, as the Newfoundland case tells us itself, it was not regarded as the height of land.
Lord SUMNER : In that case they were able to show it.
Mr. MACMILLAN : It re–appeared again in the Ontario–Manitoba case; it was insisted on there with vigour as it is insisted on here, and it was answered : No, it shall not prevail against possession, there have been French possessions beyond the line ; that was one of the considerations. There was also the consideration of the Lake of the Woods point and the other point ; but these things had the effect that the Hudson's Bay height of land boundary had to give way ; they said, “ You have not proved that is the Hudson's Bay Boundary.”
Lord SUMNER : What is the evidence of possession here ? If what we are seeking was latent in 1763, how does the possessory exercise of this by the Governor of Newfoundland operate ?
Mr. MACMILLAN : Only in this sense, that if the grant be indefinite in extent, it may be necessary to render it definite, then you
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are entitled, as in the case of prescription, to resort to the extent of the possession as the badge of the ownership. I am only invoking that doctrine.
The LORD CHANCELLOR : It depends on what the possession is ; it depends on what the nature of the grant is, I suppose ; although, of course, the possession down to modern times might be used.
Mr. MACMILLAN : Your Lordship recalls the terms of one of the Opinions I read yesterday where the point was put quite clearly that you must have regard to possession, and then came the Opinion of the Law Officer, Mr. Bethel, as he then was, where he said that you must have regard to claims that were put forward at the Treaty of Utrecht and Ryswick and 1750 ; all these are relevant matters in considering what is the territorial boundary of Hudson's Bay. All that shows, does it not, that the relatively easy refuge of the height of land, however attractive it may be, is not necessarily conclusive of this matter, and that the mere difficulty of ascertaining and bringing to the surface a latent boundary by the use of those criteria, which I suggest, namely, the purpose of the grant and the possession had under the grant—
The LORD CHANCELLOR : It does not mean that the whole of the land claimed must have been possessed in the ordinary sense of possession but rather that there are acts of possession.
Mr. MACMILLAN : Your Lordship corrected me quite properly. It is not quite like private ownership, where you are describing the content of private properties. In territorial possession it is true certain acts of possession may be treated as the badge of a much larger acquisition ; and one has in mind certain much canvassed doctrines of international law on that subject, which we are not relying on here ; but I am much concerned with this aspect of the case, because I see how your Lordships are impressed with it : the contrast, on the one hand, with the suggestion which is inherent in this, ab initio, that it was an ascertainable boundary of the height of land although such a boundary was not mentioned and though the terms, in my humble submission, were not apt to designate that—
Viscount FINLAY : It has not been urged that the possession up to the height of land was necessary for the fishing rights ?
Mr. MACMILLAN : No, it was not put that way ; it was put this way with much force: you must assume an interior boundary, because it is conceded that this is not merely a notional mathematical line. We start in agreement there, that there is some depth. Then I am confronted with this : “ Well, it being common ground that there is some depth inland, what is to arrest my progress as Governor of Newfoundland until I reach the height of land. May I not proceed in my own Government until I reach the height of land ; what else is there
to stop me ?” and since that it is said that this physiographical boundary was inherent or implicit in the language used in 1763, and that if that had been written at large it would have been “ That you shall be Governor of the Coast of Labrador from the Sea Coast to the height of land.” That is as the grant is now expounded. Are your Lordships minded to hold that if the problem had been presented in that way to the framers of Captain Graves' Commission in 1763, that his Commission would ever have been framed in such language ; that he was to be Governor from the sea coast to the height of land ? My Lords, it is certainly curiously inconsistent with the terminology of the Proclamation. The Proclamation you may remember excludes two things from this territory, it excludes Quebec and it excludes Hudson's Bay ; and Hudson's Bay at that time, according to the Mitchell Map which was before them, cut off a considerable bit of the North End towards Cape Chidley, yet there is no exclusion of Newfoundland at all, although, ex hypothesi[SIC], Newfoundland has got that grant, which is now being invested with all the authority of a territorial grant, which may be still of equal validity with the Hudson's Bay grant seated in this place at the time the Proclamation is made. There is no exception of anything ; you have given jurisdiction to Newfoundland.
The LORD CHANCELLOR : I feel great doubt about that map being before them. I think if they imagine that Hudson's Bay had jurisdiction some distance down from Cape Chidley, they could hardly have put that part of the coast under the jurisdiction of the Governor.
Mr. MACMILLAN: One can find support for almost any point in these volumes. I can answer your Lordship, if I may say so, almost to the letter on that question, if any Lord will be so good as to pardon me trying to answer your Lordship's point.
The LORD CHANCELLOR : I remember your reading it from the case for Newfoundland, but I feel some doubt whether that particular sentence could justify it.
Mr. MACMILLAN : May I try and do it in an altogether different way, not that way ; this is again one of those small things which are often significant. Will your Lordship turn to Volume III for the moment, to see if I can answer it. As your Lordship has raised the point, I should like to see if I can do it. If you turn to Volume III, page 1080, what is happening there is that in the year 1773, and we are just at this period therefore, the Lords of Trade are considering an application by one John Agnew for a grant of minerals on the Coast of Labrador. Would your Lordships look at the second paragraph of that document. Perhaps I should read first what he asked for.
Sir JOHN SIMON : I read it.
Mr. MACMILLAN : But the significance of it, I think, was not brought out, and I did not intervene when it was being read. On the “ Coast or country of Labrador between the River St. Laurence and Hudson's Streights at a certain limitted distance not exceeding 60 miles from the sea”—now that is what Agnew wanted. This is the reply : “ That the proposition contained in the Petition, which your Lordships have referred to our consideration, does not in the general view of it appear liable to objection : we beg leave however to observe to your Lordships, that the description of the limits, within which the petitioners propose the Grant to be made to them, appears to us, so far as it regards the Labrador Coast, to be attended with some difficulty ; for, as on the one hand the proposing the River St. Lawrence as the Boundary to the South is not sufficiently precise ; so, on the other hand, by extending the Grant Northward to Hudson's Streights, they will take in a very large part of what has been already granted to the Hudson's Bay Company,” now observe the significance of that ; this is the attitude of the Lords of Trade at this time, in 1773. What is before them ? An application for a coast grant from the River St. Lawrence to the Hudson's Streights.
Lord WARRINGTON : And 60 miles inland.
Mr. MACMILLAN : And 60 miles inland.
Lord WARRINGTON : May it not be that it was the 60 miles inland which would encroach on the Hudson's Bay territory, up at that top part ?
Mr. MACMILLAN : With great respect that part at the North there chimes exactly with Mitchell's Map.
Lord WARRINGTON : If you look at the scale, if you go south from Cape Chidley 60 miles would take in the whole of that promontory and rather more. I only suggest it may be explained by that.
Sir JOHN SIMON: That was the suggestion I made at page 195 of the Shorthand Notes ; we look at it from that point of view.
Mr. MACMILLAN : Would your Lordships look at it from my point of view for the moment. My point of view is that there was an authoritative map hanging in the King's Library at that time which shows that boundary which—I do not hold my learned friends to their Pleadings too much—but which they at least thought was in the minds of everybody at the time, and which fits exactly with the idea expressed in 1773. If you are going up to Hudson's Straits you will take in a very large part of what has already been granted to the Hudson's Bay Company, “ who are entitled by their Charter to all mines and minerals within the territories granted to theme.” That would be exactly so if Mitchell's Map was the map these gentlemen were looking at ; because
the moment they look at Mitchell's Map they would see the inset map which shows that would necessarily take in a large part of what Hudson's Bay had.
Viscount HALDANE : What was the exact date of Mitchell's Map ?
Mr. MACMILLAN : 1755, but it was brought down to date by all those additions marked upon it ; it was used, so to speak, as the basis map by which His Majesty was informed from time to time of what was going on.
Viscount HALDANE : This was after the Treaty of Utrecht.
Mr. MACMILLAN : Yes. Oswald's line is marked on it also.
Lord WARRINGTON : That was after the Treaty of Utrecht, and after the discussion had taken place in consequence of that Treaty, when certain proposals were made with regard to the boundary ?
Mr. MACMILLAN : Yes, my Lord.
The LORD CHANCELLOR : Your case is that in 1763 there was granted to Newfoundland the whole of this very area.
Mr. MACMILLAN : A coastal strip, yes, my Lord.
The LORD CHANCELLOR : Which they thought was under Hudson's Bay.
Mr. MACMILLAN : They thought that, my Lord, and you will see, in a moment, why they thought it, because at this time, my submission is going to be, the Lords of Trade were thinking in terms of “ care and inspection ” only, and were not thinking in territory at all. I shall be able to vouch that, I think explicitly, from certain of their reports I am coming to. However, your Lordship asked me if I could suggest anything better than the map, and I humbly offer that for my Lord's consideration.
Lord WARRINGTON : Then there is the act of 1774 ; Parliament, in 1774, thought there was a good deal more than “ care and inspection ” involved.
Mr. MACMILLAN : It is for your Lordships to judge. In order to complete my account of Newfoundland I should give your Lordships a reference to three documents in Volume IV. My Lord Finlay asked me yesterday to indicate when Newfoundland really changed over from the fishing station idea to the idea of a residential colony and I gave, you may remember, a letter of Lord Bathurst's, which your Lordship was good enough to say dealt with the point ; but you will find in the