The Labrador Boundary


Privy Council Documents


Volume XII


Contents








12 Nov., 1926.

Mr. Macmillan.

Viscount
Haldane.

Mr. Macmillan.

12 Nov., 1926.


Mr. Macmillan.

12 Nov., 1926.

Mr. Macmillan.

Viscount
Haldane.

Mr. Macmillan.

12 Nov., 1926.

Mr. Macmillan.

12 Nov., 1926.

Mr. Macmillan.




p. 910

Charter to the Hudson Bay Company, on the interpretation which my learned friend puts upon the Hudson's Bay Charter, and which was put upon it by the Law Officers whose opinions he has printed, that " all the coasts of Labrador " between these two points, that short description, has the same content, and precisely the same content, as the elaborate description of lands and confines and countries, and so on, which you find in the Hudson's Bay Charter of 1670. I hope I do not weary your Lordships by reminding you of the exhaustive enumeration of particulars in the Hudson's Bay title, a title which embraced rivers, coasts and bays, and all the rest of it, a very elaborate enumeration indeed of countries, lands and so on ; but the case now submitted to your Lordships is that by the shorthand use of the words " all the coast of Labrador " there is confided to Newfoundland exactly the same thing upon the East side of the watershed as he had, by his grant of 1670, confided to the Hudson Bay Company on the West side, because if from the height of land in this area to the Eastern shore passes under the description of " the coast of Labrador," so equally, the area to the West, that is to say, from the great sea known as Hudson's Bay up to the watershed from the West, is equally, of course, " coast "—but in that case the Western coast of the Peninsula of Labrador is contrasted with the Eastern coast of Labrador, which it was said was given to Newfoundland ; consequently, you have this remarkable position, that taking the watershed in this vast area of over 500,000 square miles, it is composed entirely of two coasts and two coasts only, a coast confided to the Hudson's Bay Company on one side and a coast confided to Newfoundland on the other side. My Lords, it is surely unlikely that, had His Majesty been minded to confer this large territorial grant upon Newfoundland, he would have chosen to do it in such shorthand language as the words which we have before us, " all the coasts of Labrador," when it was found necessary, in days when people were perhaps even less exact in the use of language, to describe what was given to the Hudson's Bay Company, on the other side of the watershed, by the most careful and full enumeration of territory, which careful and full enumeration of territory now means, according to my learned friends and according to the Law Officers of 1849, a grant of lands up to the watershed.

Viscount HALDANE : Can you give us the mileage of the disputed territory and of the Island of Newfoundland ? I think 111,000 square miles is the disputed territory in Labrador.

Sir JOHN SIMON : We think it is 102,000, my Lord.

Mr. MACMILLAN : I think I can answer his -Lordship. Newfound-land is 40,200 square miles ; the area claimed in the Labrador Peninsula by Newfoundland is 113,000 square miles.

The LORD CHANCELLOR : You say less, Sir John ?

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Sir JOHN SIMON : That is why I interrupted my learned friend.

Mr. MACMILLAN : Of course, you may correct me, if I am wrong.

Sir JOHN SIMON : We arrived at a figure of 10 2,000, but it is enough to say it is more than twice the size.

Mr. MACMILLAN : Shall we say 100,000 ; we are dealing wholesale here, Sir John ; it is not a retail trade.

Sir JOHN SIMON : Is that a firm offer ?

Mr. MACMILLAN : I daresay you would like it.

Viscount FINLAY : You do not stand on a matter of 10,000 square miles in a matter of this sort.

Viscount HALDANE : Anyhow, it is more than twice as large.

Mr. MACMILLAN : I think it is fair to say, is it not, that we are Mr. Macmillan. dealing here with territories on a very large scale, and it is not so impressive a point for me as it might be in other circumstances.

Sir JOHN SIMON : We are dealing with it on an American, if not on an astronomical scale.

Mr. MACMILLAN : I prefer, where I can, not to make too much of a point which is not really of very great consequence, but it is, of course, significant.

The LORD CHANCELLOR: What proportion does it bear to North America as a whole ?

Mr. MACMILLAN : It is a very small thing ; but, of course, I contend it is a very large area when you come to the word " coast," but I am glad to say I do not have to rely on a mere ad captandum argument of that sort. That is the operative effect, really, of the argument which has been addressed to your Lordships, and it is now my duty very shortly to combat it to the best of my ability. My Lords, I said that you are here furnished (and it is an unusual position) with an admission as to the purpose of this whole business ; what was in-tended ; and it is surely rather an odd thing that the grant should be sought to be construed as if it had inadvertently included something more than was necessary to effectuate the purpose. Ordinarily one construes a grant so that it shall be effective. You ask : what was the purpose which it was desired to effect ? We are told that it is common ground that it was to secure a margin of the sea for a fishery. It may be, of course, and my learned friend is entitled to say this, that the person who was minded to secure a margin of the sea for a fishery may

p. 912

have used language which, upon a subsequent interpretation, may be found to be very much larger than the language which was necessary to effectuate the purpose in view, then the grant would be effective and would convey more than was necessary ; but it is not to be lightly inferred that the person setting out with a definite and admitted object in view has inadvertently used language which, although ambiguous, must nevertheless be held, as against the grantor, to be a grant inclusive of something infinitely greater than was necessary to effectuate the purpose in view, which could indeed have no relation to the purpose in view at all. I say again, if such language is used, of course, it must have its effects, but your Lordships are engaged here, are you not, in doing what I am afraid so often falls to the lot of a Court in construction—your Lordships are being asked to impose upon persons more than 100 years ago—may 150 years ago—an intention which very probably they never entertained. It is often one of the most distressing duties of a Court to have to say that a Testator has used certain language, and therefore certain results must follow on the canons of interpretation, although every one is well satisfied that the Testator contemplated no such thing. It is a painful duty, but one from which the Court does not flinch when it is necessary ; and the question often arises in connection with the interpretation of contracts as well : if persons choose to use language which has an accepted connotation, a necessary connotation, even although the Court may be satisfied that that was not the real intention of the parties, nevertheless the Court will attribute to the persons the intention which their language on a proper interpretation bears. My Lords, it is only a branch of the general principle of law ; that people are taken to intend the consequences of their acts ; they are taken to intend the consequences of their words.

Viscount HALDANE : It is only when the words are ambiguous that you are said by the Courts to have to sit yourself down in the Testa- tor's armchair.

Mr. MACMILLAN : Yes, that is the position which the Court adopts at times. It is a very important point to have the grant here, and I think it is really inherent in my learned friend Sir John Simon's argument, he almost went so far as this—I hope this is not a travesty of his submission—he said nobody cared twopence about this place (that is his actual colloquial phrase, I noted it at the time) now it has become of value and now that your Lordships are called upon to scrutinise this grant, you are to infer, or you are to impose upon the authors of this language an intention with regard to that for which they at the time cared nothing—for which they did not care twopence—you are to impose upon them an intention now, not in order that the purpose of the grant should be effectuated, but in order that there should be held to have been a transfer of territory in 1763 unnecessary for the purpose in view, and not contemplated by the persons who were the authors of these docu- ments. That seems to me the most striking feature of this case, and one which is not to be lost sight of when the argument submitted is really

p. 913

this : that you are to impose upon the authors of these writings an intention which they did not entertain at the time, and could not have entertained at the time, when their minds were concentrated upon one object and one object only, namely, the carrying out of certain articles of the Treaty of Paris and ensuring that this great new asset, the cod fishery on the Labrador coast, should be properly administered. My Lords, it is a feature, I think almost a unique feature, of this case, that you have got to rest on conjecture as to the intention of the whole business. Apart from my learned friend's admission, and he now suggests that his statement was inaccurate, but Sir John is not generally inaccurate at critical parts of the case—apart altogether from the merely ad hominum method of selecting a phrase from one's friend's speech, which may be an unkind way of founding one's argument, and I prefer to rely on what is very much more important : the authors of this phrase now on the table for interpretation—the very authors of this phrase—have at the time they use this phrase told you what was in their minds when they used it, and why they used it. My Lords, the Lords of Trade, who were the active agents in this matter, had no doubt about it ; they speak with no uncertain voice on the subject. On the 8th June 1763, they made a Report and, in Volume 3 at page 909, this is what they said after discussing " the advantages resulting from the Cession made to your Majesty by the late definitive Treaty " —they are there considering the new assets of the British Empire—and they state at the top of page 909, "But as no such regular civil Government is either necessary or indeed can be established here no perpetual Residence or planting in intended ; It will there be sufficient," that is to say in places of that sort : "to provide for the free Trade of all your Majesty's Subjects under such Regulations, and such Administration of Justice as is best suited to that End. Such We apprehend to be the case of Newfoundland, where a temporary Fishery is the only object, and this We suppose has been the reason, which induced your Majesty to annex the coast of Labrador to that Government." Can anyone without sophistication read that passage without having it brought home in the most emphatic fashion that the reason which operated in the annexation of the coast of Labrador to Newfoundland was this : the object of the fostering of the temporary fishing. Now "temporary fishing" is a word of fixed significance ; it is the cod fishery that is the fishery by the people who came out from this country, and it is distinguished from the resident fishery, which was the fishery which was carried on by the people who had to remain on the coast, mostly for seal, but also to some extent for walruses and other animals which came about the shores.

The LORD CHANCELLOR : The sedentary fishery.

Mr. MACMILLAN : Sedentary was the word, but the temporary fishery was the fishery which was the great fishery carried out from the Ports of England, and necessary for seamen for our navy ; and there you have the Lords of Trade, who were the very persons, participants both

p. 914

in the preparation of Graves' Commission and the Proclamation, the persons who were consulted on this matter, telling you, in this very year of Grace 1763, what was the reason of the annexation. The reason of the annexation to Newfoundland was that, as in Newfoundland the temporary fishery was the only object, hence there was apparently annexed, the coast of Labrador. Now, my Lords, that from the Lords of Trade is a significant voice, but my learned friend has said very very little to your Lordships upon the even more emphatic language of His Majesty himself in his Proclamation of the 7th October 1763. I should have thought that this is a matter upon which your Lordships would have expected more asistance from the other side of the Bar, because it is obviously at the very heart of the whole question. It is a passage on page 154, where this very matter—I shall come back on this a little later, but for the moment, I am furnishing your Lordships with the contemporary interpretation by the authors themselves of the language they used— and what is said in that Proclamation is this, " and to the end that the open and free fishery of our subjects may be extended to and carried on upon the coast of Labrador " ; now I pause there just for a moment, my Lords ; of course, there you are dealing with something that can be carried on upon—what is my learned friend's phrase ? —" a margin of the sea " ; " and the adjacent islands we have thought fit, with the advice of our said Privy Council, to put all that coast, from the River St. John's to Hudson's Streights together with " certain islands, " under the care and inspection of our Governor of Newfoundland." Again, my Lords, I ask that passage to be read without sophistication ; any person reading that at the time would say : I see the coast of Labrador is very important for this open and free fishery, and in order that it may be carried on there, the Governor of Newfoundland has been invoked, and we have put the coast of Labrador where that fishery can be carried on, under the care and inspection of our Governor of Newfoundland. My Lords, I do not want to re-open or rediscuss the question which is perhaps of some little importance, as to which is really the ruling document here, whether it is the Proclamation or the Commission. It is not for me to say what my own view on the matter is, but I confess my own feeling about it has veered once or twice from one side to the other. The Proclamation is, of course, a document of a different type from the Commission. The Commission, is addressed to the individual who is entrusted with duties, it is his warrant to carry out duties ; it is therefore an executive instrument of importance ; on the other hand, the Proclamation is the announcement of what His Majesty has been pleased to do ; it is cognate in some sense to a Statute, although it has a different legal status ; but it is an announcement to the world of an executive act of the Sovereign. At one stage of the argument my Lord Warrington was good enough to call attention to the language of it, with a suggestion which I have, of course, studied with all the respect with which one would a suggestion coming from that source, and I do not know quite yet, if I am satisfied with the view which I am going to suggest to your Lordships. If you notice, the whole Proclamation runs in the past tense, but that is a feature which is common

[1927lab]




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