lying to the westward of the line, taking that line up to the 52nd, and then due west along the parallel, would be all within the boundary of Quebec.
Mr. MACMILLAN : It would be the pink area, would it not ?
Lord WARRINGTON : Substantially the pink ; only the apex would have gone beyond it.
Mr. MACMILLAN : I am anxious to make that point, because I think the impression was rather conveyed that it was, so to speak, aiming at that point.
Lord WARRINGTON : It may be ; it is so on the sketch map, certainly.
Mr. MACMILLAN : The sketch map is only a diagram for the purpose of the Newfoundland case.
Lord WARRINGTON : It would add a rectangle, more or less, of land to Canada, the western boundary of which would be the eastern boundary of Canada as laid down by the proclamation.
Mr. MACMILLAN : If the point were taken against me that on each side of the River St. John you were dealing with territories of the same depth, because my submission is this : that what came back in 1774, what one was handling throughout, was not a strip of coast, and that the map is erroneous, (indeed some of my own maps are erroneous) in showing that pink strip as the subject–matter of a transaction ; that we got a large part of that. What was not, in my designation, coast came to us by the re–transfer. We had already got the greater portion under the 1774 Act.
Lord WARRINGTON : For the present case there are Canadian maps of authority that do rather show that black of land as being part of Quebec.
Mr. MACMILLAN : Quite a number.
Lord SUMNER : You pointed out a line from the 52nd parallel to this intersection at the height of land somewhere to the south–east. That is what, so far, has been Newfoundland's Case ; but is it consistent with the terms upon which the reference has been agreed that Newfoundland should say : “ Well, the argument of Canada has convinced us that the 52nd is more than we are able to, establish, but we would put forward as an alternative, at our own expense, of course, the height of land which is dotted along there.
Mr. MACMILLAN : I have hatched the portions on my own map; they resemble two humps.
Lord SUMNER : Is it, in your view, competent for Newfoundland to shift its ground and say : “ Well, the theory of the height of land is a theory equally applicable to the South as to the west up to what we call Labrador, and therefore we fall back upon that.”
Mr. MACMILLAN : If I may say so, I think it would be quite competent for Newfoundland to ask at your hands less than they do claim. There might be difficulty if they were asking for more than they claim ; but if the Board were not satisfied with the reasoning of Newfoundland, as to its boundary on the west, I do not think I could take up reasonably the attitude that your Lordships could not locate the boundary in a direction or in a line that gives them less than they claim ; that would be an unreasonable position.
Lord SUMNER : The whole case might be put upon the view that as the boundary must go to somewhere, and, all other ways have failed, let us have the height of land all round.
Mr. MACMILL : Your Lordship will appreciate the practical importance of what I am putting just now, because this line up here does not go up to the height of land. My learned friend left it with a curiously rugged boundary at this point, and I am testing their principle of the height of land all over by the history of the matter as exhibited in the maps and documents.
Lord SUMNER : There has always been an Achilles heel.
Mr. MACMILLAN : And the Achilles was killed. I rather thought at this point that I almost had my learned friend's assent on page 83 of the proceedings. When your Lordship pointed this out on Mitchell's Map, and that the argument could not be made out, I rather thought Sir John agreed. However, that is neither here nor there. The topic was very fully discussed at that point and rather rapidly left. May I just add one other point on the southern boundary of some importance. If my Lords would pray take in hand Volume III for a moment and turn to page 910 (this is the report of the Lords of Trade of the 8th June, 1763) there are words there that perhaps have not received at my hands so full an exposition as they deserve. They are at about line 14 : “ It is needless to state with any degree of precision the Bounds and Limits of this extensive Country, for We should humbly propose to Your Majesty that the new Government of Canada should be restricted so as to leave on the one hand all the Lands lying about the great Lakes and beyond the Sources of the Rivers which fall into the River St. Lawrence from the North, to be thrown into the Indian Country.” Pausing there for a moment, what is the land “ Beyond
the sources of the rivers which fall into the River St. Lawrence, from the north ?” First of all, for this purpose one must see what they were talking of as the River St. Lawrence. Fortunately that is made clear beyond any doubt. The point of division between the River St. Lawrence and the Gulf of St. Lawrence is just on the West end of Anticosti. That is made quite clear by two references which I shall give, showing that the River St. John is treated as a river flowing into the River St. Lawrence. Perhaps the best reference for that is Volume I, page 153.
Sir JOHN SIMON : I do not know if I could help my learned friend by any sort of admission, because I think we are rather disposed to agree on this. I have looked at this carefully too. I think a fair view, as far as one would form one at the time was, without drawing a precise boundary they were rather disposed to call whatever was to the west—
Mr. MACMILLAN : This is how I show it on my map.
Sir JOHN SIMON : I have drawn a similar line. I think if you join Gaspé to the River St. John, I make a fair concession to my learned friend if I say there is a good deal to indicate that they call what was to the west of that the river, and what was to the east of that the gulf.
Mr. MACMILLAN : If you please, my learned friend is very kind.
Sir JOHN SIMON : It is not quite consistent, but that is the substance.
Mr. MACMILLAN : I think you may remember the River St. John is described as a river which flows into the River St. Lawrence rather than the Gulf. There is always a question, there is a question looming here, when does a river cease to be a river and become the sea ? If that be so, would your Lordships just pursue it a little further ? All that lies to the north of the rivers flowing into the St. Lawrence is to be reserved to the Indians. The result of that, my Lords, is this. This is, of course, a more modern map, and therefore more accurate, no doubt, but the point arises on any of the maps : If you take the River St. John as the terminus of the River St. Lawrence, then all the rivers which flow into the River St. Lawrence westward of that point are rivers which you have to consider for the purpose of this description “ beyond the sources of the rivers which fall into the River St. Lawrence from the north.” The River St. John flows into the Lawrence from the north, and so do all these other rivers. The Moisie is one of the best known, which you see beyond that ; all the territory north of that is to be thrown into the Indian country. Let me do it mathematically and draw up a line thus ; you will cut right into the green, and all the land to the north is to be reserved for the Indian territory. You cut right into the green territory ;
and therefore the contemplation at the time cannot have been that the Newfoundland territory was to include what the Lords of Trade expressly contemplated should be thrown into the Indian territory. quite a large part—that elbow of green—is by these words, in my submission, excluded.
The LORD CHANCELLOR : The word is “ beyond,” not “ to the north of.”
Mr. MACMILLAN : “ Beyond the sources of the rivers.” Am I stressing it too much when I say that “ beyond the watershed ” means the land to the north of it there, because the watershed is east and west generally. There again some difficulties emerge, I respectfully suggest, for my learned friend's case. He does not take the watershed line. He says that the 52 degrees is not truly related to the watershed line, but is a line which he gets by simply drawing straight along the latitude of this point of contact with the perpendicular to the 52nd latitude. All these things show, I respectfully submit, that on this part, at any rate, of their boundary, they cannot present to your Lordships' Board any precise boundary at all. The various reasons and suggestions that they have made fail, when they are probed, and they do not and cannot derive from any of the documents before the Board the boundary which they seek to establish.
Lord WARRINGTON : What you are now suggesting is excluded from Newfoundland is that square inset ?
Mr. MACMILLAN : The elbow, yes; this bit. Again I am using all this, and I pray my Lord to have it in mind, as critical material directed to showing that the boundary here suggested was not the boundary in the minds of those who transacted this subject in 1763. That has been throughout my address to your Lordships—I am afraid at wearisome length—the point which I have been seeking to establish. If I can break down my learned friend's suggested boundary at point after point, which I humbly submit I have been able to do, then I get him dislodged from what is generally a height–of–land contention and placed in the position of a person with rights on the shore, indefinite but possible of definition. My learned friend, if I may say so, did not deal with the yellow strip in a manner which, if he will pardon me saying so, was so clear as the rest of his case ; and I personally do not quite understand yet what is the position with regard to the yellow territory except that it was the territory, I think, that was supposed to satisfy the language of something to the north that was to be Indian territory.
Viscount FINLAY : Which is the yellow territory ?
Mr. MACMILLAN : To the north of this slate coloured strip.
Viscount HALDANE : You say that is all the same as Indian territory ?
Mr. MACMILLAN : Yes, my Lord ; that is part of the Indian territory. I do not quite know where we are with regard to that, or whether it is conceded that that bit is Indian territory, but that it stops at the height of land on this southern height of land. At any rate, with great respect to my learned friend, I have not been able to derive so clear an impression from his address with regard to this part as I have on his other part. It is between the height of land and Old Quebec. Where, and what is it ? It was upon this that it was suggested that the Act of 1774 could operate, and this only. It is not north of the rivers flowing into the River St. Lawrence.
The LORD CHANCELLOR : Not north of all of them.
Mr. MACMILLAN: Is it north really of any, with great respect ? The blue line cuts right through river after river all the way along.
Lord WARRINGTON : Then the yellow comes up to what are here marked as the sources of the rivers falling into the River St. Lawrence.
Mr. MACMILLAN : It leaves all this territory here up to this height of land. What exactly is the theory of that, I am afraid I have not quite appreciated, but it abuts upon the limits of Newfoundland's claim, as you notice, in the corner there. The yellow forms part of the boundary, whatever be the legal denomination of that boundary. I gathered that the suggestion was that that was what was thrown into the Quebec area in 1774. I pass from that with the suggestion that on this part of the boundary the case has not been made out. My Lord, there is an aspect of the case which has not been much discussed, and which I do not propose to spend much time upon, but it is interesting to look at the variations in the commissions and instructions issued to the Governors of Quebec and Newfoundland. You find that the commissions and instructions reflect the variations in their legal position on this coast. There are the periods 1763 to 1774, 1774 to 1809, and 1809 to 1825, and certain variations appear in the commissions and instructions from time to time reflecting the change in the position. It would be sufficient for my purpose, I think, to make one particular reference to Governor Carleton's instructions in Volume II, because of the detail with which this matter is dealt with at page 820. This was after the Act of 1774 ; and after the Act of 1774, my Lords will recall that all that Newfoundland had had was re–annexed to Quebec. At Volume II, page 820, you find the instructions to Guy Carleton as Captain General and Governor in Chief of the Province of Quebec. In smaller print at the foot of the page, you will see an extract from certain official papers. Apparently, the general instructions had been drawn up in draft, and at line 21,