In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Friday, 12th, November, 1926.
THE RT. HON. THE LORD CHANCELLOR (VISCOUNT CAVE),
THE RT. HON. VISCOUNT HALDANE,
THE RT. HON. VISCOUNT FINLAY,
THE RT. HON. LORD SUMNER, and
THE RT. HON. LORD WARRINGTON.
IN THE MATTER of the BOUNDARY between the DOMINION of CANADA and the COLONY ofNEWFOUNDLAND in the LABRADOR PENINSULA
THE DOMINION OF CANADA (of the one part)
THE COLONY OF NEWFOUNDLAND (of the other part).
[Transcript of the Shorthand Notes of MARTEN, MEREDITH & CO.,
8, New Court, Carey Street, London, W.C. 2, and CHERER & CO.,
2, New Court, Carey Street, London, W.C. 2.]
Counsel for the Colony of Newfoundland :—The Rt. Hon. Sir JOHN SIMON, K.C., Mr. F. T. BARRINGTON–WARD, K.C., The Hon. W. J. HIGGINS, K.C. (of the Newfoundland Bar), Mr. W. T. MONCKTON and Mr. C. H. PEARSON, instructed by Messrs. BURN &BERRIDGE.
Counsel for the Dominion of Canada :—The Rt. Hon. H. P. MACMILLAN, K.C. (of the Scottish Bar), The Rt. Hon. C. J. DOHERTY, K.C. (of the Canadian Bar), Mr. AIMÉ GEOFFRION, K.C. (of the Canadian Bar), Mr. MAURICE ALEXANDER, K.C. (of the Canadian Bar), Mr. H. STUART MOORE and Mr. C. P. PLAXTON (of the Canadian Bar), instructed by Messrs. CHARLES RUSSELL & CO.
Sir JOHN SIMON : My Lords, the matter which I mentioned just
when the Board was rising the other day, can be verified in a moment,
if I may hand to the Board a volume of Public Bills. Your Lordships will see, looking at that volume, which contains the Public Bills of 1825, that on page 177, you get the Bill of 1825 as introduced into the House of Commons. Immediately following it, in the same volume, you will find the Bill as amended in the Committee. The amendments in Committee consisted in putting into the print a whole series of numbers, but it is not by any means limited to the 52nd parallel. If your Lordships, for instance, will look at page 179 and page 180, you
will see, as introduced the Bill was "within weeks," which is filled up "within three weeks," and there are instances all over the place.
Viscount HALDANE : It would not require a separate resolution if it was put in in Committee.
Sir JOHN SIMON That is what I observed just before the Board rose the other day. I was saying that the practice was in 1825 and for many years afterwards, that a Bill as introduced into the House of Commons omitted every number, and the numbers were then put in and it was a rule of the House—this is what Lord Haldane was referring to—and it is still a rule of the House, that you do not require actually to put the Question and take a Vote for filling in the figures.
Viscount HALDANE : A Bill may be introduced in that form and then filled up in Committee.
Sir JOHN SIMON : It was, there is no doubt.
Viscount HALDANE : If it were amended, it would require a resolution.
Sir JOHN SIMON : Yes, there is no question on that. All I wanted
to clear up was that it is really not correct to suppose, at any rate at that period, that the fact that the Bill as introduced contained that blank, indicates that the matter was not already deliberated upon, and, so far as the Government was concerned at any rate, determined. It is merely because it was the practice of the House ; and you will find literally hundreds of instances in that volume. Lord Finlay asked me, if, for instance, a penalty was to be imposed, whether the practice was to leave out the figure of the penalty. There are instances there ; I have had some marks put in to show them.
Lord WARRINGTON : There is one at the end of that very page.
Sir JOHN SIMON : There is. Just to complete it—because it is not worth delaying on a technical point—the Standing Orders of the House of Commons to-day contain, amongst others, Standing Order 37, which is to this effect : " In going through a Bill no question shall be put for the filling up of words already printed in italics and commonly called blanks, unless exception be taken thereto, and if no alterations have been made in the words so printed in italics, the Bill shall be reported without amendments unless other amendments have been made thereto." The old practice was that you physically had a blank, with nothing to tell you what the figure should be. The more modern practice as any of us who are or have been Members of the House of Commons know, is that the Bill does in fact contain the figures, though the theory used to be that they were not there, and that is why they were printed in italics.
Viscount HALDANE : The effect of it is merely the same as
underlining the words in italics. They are in the Lords Bill and the Lord Chancellor puts a motion that amendments be made, the effect of which is that the words which are there underlined are put in italics and they are treated not as not there, nor yet as there, and to say that the Bill does not require amendment.
Sir JOHN SIMON : You, so to say, look through the paper and you see behind, in italics, what would be there if at that stage it ought to be there.
Viscount HALDANE : The position is a little ambiguous.
Sir JOHN SIMON : Yes. The curious thing is that a hundred years ago the House of Commons literally applied this rule and left an absolute blank. Nowadays both Houses in this respect follow the same general rule, that is to say, clauses or phrases which could not constitutionally or according to our practice be there to begin with, are put in italics, and it is not, in that case, until after you have got the resolution of the Committee that they are in.
Viscount FINLAY : Putting them in italics means that they are not there, but merely suggested.
Sir JOHN SIMON : That is so. I merely wanted to show what I think is now clear, that there is no ground for supposing that because in the Bill of 1825 you find a blank, that indicates that " 52 " or " 57 " was inserted per incuriam or without thought. It would all be ready, and then, of course, the practice would be to leave it out. I need not say any more about that.
My Lords, there are just two or three matters, I am afraid, which follow on this Indian Country, and I am very anxious not to be tempted
to go back on it in the remarks I am going to add this morning, when I hope to conclude. Perhaps I could just refer to the matters which do remain to be dealt with.
My Lords, in addition to the book of Parkman's, which I think Lord Finlay saw, another very interesting account, which I think may be regarded as a safe guide, is to be found in Mr. John Fortescue's well-known " History of the British Army," which is now coming out in volumes. In the third volume of the " History of the British Army," by the Hon. J. W. Fortescue, which deals with the period between 1763 and 1793 (it is a book published by Macmillan) you will find, beginning at page 11, a couple of pages which put the picture of the thing very well indeed, and I think really show the strength of my contention that the Indian Country, the scene of all these disturbances, was nowhere in the neighbourhood that we are discussing to-day. The learned author, Mr. John Fortescue, puts it in this way at the bottom of page 11. He describes how at the end of the war there was the usual agitation for economy (which is apparently a universal phenomenon) and that in the House of Commons at that time all sorts of people, Mr. Edmund Burke and others, were urging that the military establishment in America should be immediately cut down. After describing what happened and quoting Edmund Burke as speaking of the huge increase in the military establishment—there was obviously an economy campaign going on—Mr. Fortescue says this at the bottom of page 11: " Within a month of the voting of the new establishment, a sudden movement in America threw startling light on the -vexed question of Colonial Defence."
Viscount FINLAY : When was this ?
Sir JOHN SIMON : This was in 1763, after the Treaty of Paris had been signed in February. The House of Commons met in the Spring and the subject of reducing the expenditure of the troops in America became very prominent. At the end of the Seven Years' War there had been what in those days was regarded as a tremendous outlay, there was a National Debt, and retrenchment was the order of the day. Mr. Fortescue says : “Within a month of the voting of the new establishment, a sudden movement in America threw startling light on the vexed question of Colonial Defence. It will be remembered that after the fall of Montreal in 1760, Major Rogers, the famous ranger, had been sent with a few troops to enforce the capitulation of the French posts on the Great Lakes and at the back of Canada. During his progress he was met by an Ottawa chief named Pontiac, who asked him what he did there, who being answered that the French had surrendered the entire country to the English, seemed to acquiesce in the new state of affairs. None the less, the whole of the Indian tribes were galled to the quick by the thought that the territory, which they claimed as their own, should have
been transferred by one white nation to another, without a word of consultation with them. French traders and French adventurers who
had penetrated into these remote regions, where they lived a half-savage life among the native tribes, lost no opportunity of inflaming the resentment of the Indians against the British ; while the British on their side took small pains to conciliate their new subjects. Finally Pontiac, who went near to be a man of genius, planned a great confederation of all the Indian tribes, to attack the whole of the British posts simultaneously, and to drive the hated intruders, as his ignorant followers hoped, into the sea. His emissaries flew far and wide to the various chiefs, northward to the head of Lakes Michigan and Huron, southward to the very mouth of the Mississippi, and by the spring of 1763 the weapon of offence was forged and Pontiac ready to strike. On the British side the chances of parrying such a blow were slender indeed. Amherst's
force had been reduced to a mere skeleton.” General Amherst was Commander-in-Chief in America and took a very light-hearted view of this trouble ; he ultimately retired from ill health. " Amherst's force had been reduced to a mere skeleton by the costly expeditions to Martinique and to Havana ; thousands of men had died and as many thousands had been rendered unserviceable by sickness. The consequence was that the posts for security of Indian territories were held with ridiculous weakness, though there was hardly one of them within distance to support another. Beginning at Niagara and following the southern shore of Lake Erie, there came in succession Forts Presquile, Le Boeuf and Sandusky ; while Fort Detroit guarded the passage to Lake Huron ; and Michillimackinac, now called by the shorter name of Mackinac, the Strait between Huron and Michigan with a small outpost, Sault St. Marie, a few miles to the northward, in the south-east corner of Lake Michigan on the Wabash, while Fort Miamis on the Maumee preserved communication between Ouatanou and Lake Erie. Finally, there was a chain of posts on the line from Pennsylvania to the Ohio, Forts Cumberland, Bedford, Ligonier and Pitt, all of them familiar to us since the days of Braddock, with Fort Venango north-wards of Fort Pitt, to secure the passage to Presquile and Niagara."
Your Lordships see, therefore, this tells you what these forts were, and, of course, Labrador is a long way off. I forbear to read the next passage, which is detail and very interesting detail. He goes on to describe how on the 7th May, 1763, Pontiac and 65 other chiefs entered Fort Detroit ; and your Lordship will observe the date, it is May, 1763 ; and you may take it that in July, 1763, the people in London were in a state of grievous anxiety; hence those documents that I was reading the other day.
That is what the Indian country is, and the meaning of the Proclamation that was issued. Then the author goes on at pages 13, 14 and 15 to describe in a great deal of detail the events of August and September. He describes how Amherst appealed to the Provinces, to the old Colonies, to produce levies for their defence. It is perhaps interesting to notice that the State of Pennsylvania refused to provide a single soldier—whether because of the convictions of its original founder