The Labrador Boundary


Privy Council Documents


Volume XII


Contents








9 Nov., 1926.

Sir John Simon.

9 Nov., 1926.

Sir John Simon.

Mr. Macmillan.

Sir John Simon.

9 Nov., 1926.

Sir John Simon.

9 Nov., 1926.

Sir John Simon.

9 Nov., 1926.

Sir John Simon.




p. 831

Sir JOHN SIMON : Your Lordship is right. If you will look at page 3208, the translation is at the bottom of the page, and it is I think very well done, so that I will take that if you please. It says : "And the whole being considered ; We have fixed the limits of the domain of the King called the Traite de Tadoussac, that is to say, on the north bank of the river Saint Lawrence from the lower end of the seignory of Eboulemens"—there then follows a lot of description. I have traced it. It is as a matter of fact arranging the boundary at the Quebec end.

Viscount FINLAY : I wish you would indicate to me on the map where these places are.

Sir JOHN SIMON : Will your Lordship take my map. The actual detail at the beginning of this passage does not matter much. It is marked in a red line on the map. What I want your Lordship to see is not so much the names of the places as the method which is followed. What is his method is the point. After all, the question is not a geographical question, but a linguistic question. Would your Lordship look at the text. It goes on to say : "which is opposite the north–east point of isle–aux Couches, to cape Cormorant, being about ninety–five leagues of front, with the isle–aux–Oeufs and other isles, islets and shoals adjacent thereto ; on the western side, by an imaginary line drawn east and west, to commence from the lower end of the seignory of Eboulemens to the height of land at the portage of lake Patitachekao " —and so on–and then he describes the portage. You are to go on by the fleur–de–lis " and so on, "further to the west by lakes Spamoskoutin, Sagaigan and Kaouakounabiscat, at the height of land, in the latitude of 47º 27', where the said Sieur Normandin has also affixed four fleur–de–lis on four balsam firs" —apparently if you went into the backwoods you would find balsam firs ornamented with the fleur–de–lis—" and running still to the west, towards the region of Three Rivers, and in depth by the height of land, about two leagues from the Little lake Patitaouaganiche," and so on, down to line 42, where it says : "all of which lakes and rivers pass through Lake St. John into the Saguenay "—therefore being in the drainage area of the St. Lawrence—" and form the boundary which separates the lands of the Domaine from the hunting country of Three Rivers. I am not saying more than this. It is perfectly plain. In the flourishing days of the French Empire in Canada where the French were engaged in marking out the boundaries in which they were proposing to grant a monopoly of trading rights, I do not suppose they had been squeamish about allowing Frenchmen to invade the Hudson's Bay territory, but the thing to do was to mark out a boundary, and that they did. In that respect the map which Lord Finlay has before him and which comes from a Canadian atlas, and which, so far as the marks on it are concerned, has been prepared for the purpose of this case, is not very accurate, because although it is drawn with great accuracy so far as regards the beginning and the end, the gentleman who has drawn it, once he has got into the interior, has allowed either his pen or his imagination to

p. 832

take charge and has pone charging away not to the height of land but beyond it, for which there is no justification at all.

Mr. MACMILLAN : Perhaps you will help me in one respect. I am a little puzzled. I quite see the point about the watershed being shown and indicated by this description, but I do not take it that you are suggesting, are you, that the watershed was the southern boundary of the Hudson Bay territory ?

Sir JOHN SIMON : No.

Mr. MACMILLAN : I. was a little confused.

Sir JOHN SIMON : What Lord Finlay put to me was, if I may say so, a perfectly just correction. 1 am not saying in this passage the height of land. is being indicated as being a Hudson's Bay boundary, but, I am saying that this shows from the French side, dealing with a country of this sort which, of course, was unsurveyed and largely, therefore, unknown, that really faute de mieux if you want to have a boundary at all, this is the sort of boundary you have.

Viscount FINLAY : It is obviously a physical feature.

Sir JOHN SIMON : And I do not know any other. Your Lord–ship sees what I mean by saying they have gone a little wild. I am content now to conclude this, and I will keep myself to this, the remain–ing point about Hudson's Bay, by taking what your Lordship knows in several pieces already, 1815, the year in which the Hudson Bay Company got the advice of Sir Samuel Romilly, and so on, 1849, the year in which the Colonial Office got the advice of Sir John Jervis, and 1850, the year in which the Government of the day, having got the view of the Law Officers that the Hudson's Bay claim was perfectly right, announced, as I shall show, to the Hudson's Bay Company that they felt bound to accept it. Of course, these things, though they are interesting, do not prove the case at all. It is merely that I am anxious to get these particular events in their proper sequence. First, we have had printed, and I think it is convenient that your Lordships should have the document which I produced in original and which my learned friend afterwards inspected, the document of 1814. I do not think your Lordship will regard the time as being unfairly occupied if we look just for a moment at this. It contains some very interesting matter. (Handing document to their Lordships.) What I am handing you is, on the front page, the opinion of Sir Samuel Romilly, Mr. Cruise, Mr. Holroyd, Mr. Scarlett and Mr. Bell, on the first point asked, and inside you will find the case submitted. If you look at the Case, there are some interesting things in it, showing how the Hudson's Bay Company regarded their own rights. Will you please observe that after making an extract from the Act they say, on page 2, “The description in the grant

p. 833

made to the Hudson's Bay Company by their aforesaid Charter has been held by the most eminent Geographers to include all the country lying upon the waters which run into Hudson's Bay.” I have established, I hope, this morning, that that was a perfectly just statement.It is perfectly true of Bellin, de L'Isle and Mitchell ; everybody you can think of. Then they go on at the bottom of page 2 and say this, which is very interesting and was rather new to me : " In the year 1745 an Act of Parliament was passed granting a reward for the discovery of a North West passage through Hudson's Bay, but with a saving clause reserving the rights of the Company. In the year 1748 Mr. Dobbs and some other gentlemen, who were associated to prosecute this discovery, made an attempt to set aside the Company's Charter. They alleged that the grant of land was originally annulled "—he means was originally null—" because it was not limited by any definite countries "—it was void for uncertainty, you see—" and that the grant of an exclusive trade was illegal as a monopoly. They also alleged that the conduct of the Company had been such as to vacate any right they might have had ;that they had neglected to occupy, settle or improve the country, to extend its trade, to prevent the encroachments of the French from Canada or to prosecute the discovery of a North West passage–on these grounds Mr. Dobbs and his associates applied to the Crown for a grant of part of the country within Hudson's Bay with various privileges." Then this will interest Lord Haldane, I think. " This petition was referred to the Attorney and Solicitor General." If your Lordships search your memory you will, I have no doubt, remember that the Solicitor General was no less a person than Sir William Murray, the Lord Mansfield of whom Lord Campbell says, " He was the first Scotsman who ever gained distinction in the profession of the law in England." The Attorney, I think, was Sir Dudley Rider, but the Solicitor was undoubtedly Sir William Murray, and they " reported that 'Considering how long the Hudson's Bay Company had enjoyed and acted under this Charter without interruption or encroachment, they did not think it advisable for His Majesty to make any express or implied declaration against the validity of it, till there had been some judgment of a Court of Justice to warrant it and the rather because if the Charter was void in either respect there was nothing to hinder the Petitioners from exercis– ing the same trade which the Company now carried on.' "Therefore the matter was left unsettled. That is said, and I think fairly. Then they go on in their case on page 3 to refer to the Peace of 1763 and they say : " They have frequently passed the Canadians into the country within the limits of the Hudson's Bay Company and even made some fixed establishments near the source of the rivers which run into Hudson's Bay." Then they describe the matters which had followed on that, and then they finally put this question on the fifth page : “ Under these circumstances the opinion of Counsel is requested as to the rights of the Hudson's Bay Company on the following points :—1. Whether any objection can be made to the grant of the soil contained in the Charter and whether the grant will include all the country, the waters of which

p. 834

run into Hudson's Bay, as ascertained by geographical observations.” Now what happened. Because it is the sequence that matters now. That being the opinion which the Hudson's Bay Company obtained, they sent that opinion to the Colonial Secretary, Lord Bathurst. The reference is in Volume VIII, page 4117, at the top, about the second or third line of the page, where they say : "We enclose the opinion." It is the third line : "A copy of these opinions is inclosed for your Lordships information." They call it "these opinions" because they had consulted several Counsel. I am anxious to show what is new matter, namely, that the Government adopted it; not merely the Law Officers, but the administrative and executive authority. They then went on to say that they hoped the Law Officers would be consulted as to whether that is right.

Lord WARRINGTON : The letter which accompanied the opinion makes the claim founded upon the height of land.

Sir JOHN SIMON : In plain terms, my Lord. I was trying to show your Lordship, and I hope I have done so, that it was a misapprehension to say that this was a new invention. This has happened all the time. It was not a thing invented because President Monro suggested it. They said they would like to have the Law Officers' view, and I gather they would be content to have it. The Law Officers' view was not taken at the time, and my learned friend, Mr. Macmillan, was perfectly right when he corrected what was rather a gross chronological error of mine. I had given the impression, I think—I had not meant to—that the Law Officers' opinion followed at once. As a matter of fact, neither in 1815, nor, indeed, in 1820, was an opinion obtained from the Crown advisers. If you turn to page 4124, you will see that in 1820 the Hudson's Bay Company is still saying they do want to have a declaration that this is their boundary. This is the nature of the petition at the bottom of page 4124.

Viscount HALDANE : It looks as if there had been some other questions submitted and answered, but perhaps they are immaterial.
Sir JOHN SIMON : I have looked at them, my Lord, they are perfectly immaterial, they do not bear upon this at all.

Mr. MACMILLAN : I agree with my learned friend.

Sir JOHN SIMON : My learned friend has looked, and he agrees. Then you will look at page 4124. 1820 follows 1814, and the Hudson'sBay Company are saying : “ Wherefore your Petitioners most humbly pray leave to refer to the said Memorials and documents and to exhibit other evidence in support of this their petition and to be heard by Counsel therein and that your Majesty will be graciously pleased to

p. 835

declare that by Virtue of the said Letters Patent of His said Majesty King Charles the Second, your Petitioners are the sole and absolute—Lords Proprietors of all Lands between the extreme heights from which any Waters flow into the seas within Hudson's Streights and the said Seas, and that Your Majesty will be pleased to appoint commisioners to run a Line along the said Heights.” They are still pressing for the thing to be done. Nothing was done. What happens next you will find conveniently collected in the other little print which I have here, which includes the opinion of Sir John Jervis. This happened as late as 1849. These are command papers which were included in a return to the House of Commons. Now see what happened. It is a piece of Parliamentary history which is very easily overlooked. In July, 1849, the House of Commons " Resolved that an humble address be presented to Her Majesty, praying that Her Majesty will be graciously pleased to direct that such means as to Her Majesty shall seem most fitting and effectual, be taken to ascertain the legality of the Powers in respect to Territory, Trade, Taxation and Government, which are or recently have been claimed or exercised by the Hudson Bay Company," and the address is therefore given to Her Majesty. Then, of course, what happened is what you would suppose, that the Law Officers are consulted, and your Lordship has on the next page, page 2, the opinions of Sir John Jervis and Sir John Romilly, written from The Temple, in January, 1850, in a form which was familiar and usual then and long afterwards. As Lord Finlay knows, you started by reciting all the instructions you got. They proceed to say at the bottom of page 2 that : " having had the statements furnished to your Lordship by the Chairman of that Company "—which, as your Lordship knows, included the opinion of these learned advisers in 1814—" we are of opinion that the rights so claimed by the Company do properly' belong to them. Upon this subject we entertain no doubt." Now, so far we are merely dealing with the Law Officers on the one hand, and private legal advisers on the other. Now see what happened. Mr. Hawes is writing from Downing Street—he is the Under–Secretary of the Colonial Office, Under-Secretary to Lord Grey, the Lord Grey of the Reform Bill—to Mr. Isbister, who is the gentleman who had made himself particularly objectionable on the subject of what is the extent of the Hudson's Bay territories, and he is informing him that there has been this address from the House of Commons, that there has been a statement obtained from the Company, that this has been put before the Attorney General and Solicitor General, and that they advise that the Hudson's Bay Company is quite right. Then follows what I had not sufficiently appreciated when I addressed the board before, namely, a letter from the Colonial Office, Downing Street, of the 6th June, 1850, to Sir John Pelly, who was the Chairman, the Governor, as it is called, of the Hudson's Bay at the time, in which he says this : “ With reference to your observation that it would be of the utmost importance if the decision of the Privy Council on the rights and privileges of the Company

[1927lab]




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