The Labrador Boundary


Privy Council Documents


Volume XII


Contents








12 Nov., 1926.

Mr. Macmillan.

Viscount
Haldane.

Mr. Macmillan.

Viscount
Haldane.

Lord
Warrington.

Mr. Macmillan.

12 Nov., 1926.


Viscount
Haldane.

Mr. Macmillan.

12 Nov., 1926.

Mr. Macmillan.

Lord
Warrington.

Mr. Macmillan.

Viscount
Haldane

Mr. Macmillan.

12 Nov., 1926.

Mr. Macmillan.

Lord
Warrington.

Mr. Macmillan.

Lord
Warrington.

Mr. Macmillan.

Lord
Warrington.

12 Nov., 1926.

Lord
Warrington.

Mr. Macmillan.




p. 915

mon to Proclamations. It is the announcement of a fait accompli, and if you look at the language which is used with regard to Quebec, His Majesty says on page 153, line 12 " We have thought fit, with the advice of our Privy Council, to issue this our Royal Proclamation, hereby to publish and declare to all our loving subjects, that we have, with the advice of our said Privy Council, granted our letters patent under our Great Seal of Great Britain, to erect within the countries and islands ceded and confirmed to us by the said Treaty, four distinct and separate governments, styled and called by the names of Quebec " and so on. Notwithstanding the form in which that language is used, I think there can be no doubt that the Government of Quebec was created by the Proclamation. There are no Letters Patent under the Great Seal creating this new Government of Quebec. What there is is a Commission issuing to each of the new Governors.

Viscount HALDANE : You will notice a material circumstance that the new Governments are created, in the language on page 153, " Within the countries and islands ceded and confirmed to us by the said Treaty."

Mr. MACMILLAN : Yes, my Lord.

Viscount HALDANE : On the next page, when you are dealing with fisheries, they are not referred to, and could not be referred to, as having been ceded or confirmed.

Mr. MACMILLAN : Yes, my Lord, but it was appurtenant, of course, to the lands that we got. The French were really ousted from the fishing rights they had, and therefore it came to us in that sense.

Viscount HALDANE : No doubt that was so, but at the same time it is not put there as something which is created ; it is a sort of appendage to the existing island of Newfoundland.

Mr. MACMILLAN : That is quite true ; but, for the moment, I was really on what I might call a grammatical question. It has been said that this passage upon page 154, from line 14 onwards, is a recital of something already done by something else, and I confess that I had rather read it that way myself until my Lord Warrington suggested that that might not be accurate.

Lord WARRINGTON : I did not know then there was an Order in Council approving of the Commission, so that the Commission was passed on.

Mr. MACMILLAN : With great respect, I am not sure that that really alters the position. If you take the language, for example, with

p. 916

regard to Quebec, because I want to get what you might call the style of the document, the currency of the document, you will find there that the King erects the Government of Quebec, and although it is true he says that with the advice of the Privy Council that has been settled——

Lord WARRINGTON : He says he has by Letters Patent.

Mr. MACMILLAN : And there are none ; there are just Commissions to Governors.

The LORD CHANCELLOR : What is the date of the first Commission ?

Mr. MACMILLAN : The first Commission would be to Murray ; he was the first Governor.

Viscount FINLAY : It is in the terms recited at about line 12 on page 154.

Mr. MACMILLAN : I asked that that search should be made, and there seems to be no such thing.

Viscount HALDANE : On page 153 he had got the whole of that enormous territory ceded and confirmed by the French King, the title being in the King of England ; that would be in some form of Commission.

Mr. MACMILLAN: The question for the moment was, what this recital means that " we have granted our Letters Patent " ; naturally, one would ordinarily assume that His Majesty had granted Letters Patent, and one was put on search to see whether he had granted any Letters Patent.

The LORD CHANCELLOR : There was a Commission to Murray on the 21st November, 1763.

Mr. MACMILLAN : That is the Commission, my Lord ; that is the first Commission to the Governors, but it is after the date of the Proclamation, and therefore historically it is not accurate to say there were Letters Patents which had been granted.

The LORD CHANCELLOR : On page 176, we have that fact mentioned.

Viscount FINLAY : The letters Patent were merely to erect four distinct and separate Governments in the ceded territory.

Mr. MACMILLAN : But one was looking to find if there were any such, and there do not appear to be any Letters Patent. It is done

p. 917

through the medium of giving a Commission to the Governor, and it is in that form it goes before the Privy Council.

The LORD CHANCELLOR : I think there must have been some Letters Patent although they are not now forthcoming.

Mr. MACMILLAN : I can only say I have instructed that a search should be made, they have been looked for, and cannot be found.

Viscount FINLAY : Does it make any difference ?

Mr. MACMILLAN : I do not think it does, my Lord.

Viscount HALDANE : They may have been brought up at the same time.

Mr. MACMILLAN : The point I was on was whether when the Proclamation uses the language in the past tense, " we have done something or other," that is recital or executive action. That is what I was on.

Lord WARRINGTON : It does not really much matter, because you must go back to the Commission to see what he did. You do not get the details without going back to that.

Mr. MACMILLAN : Your Lordship has, I know, done me the credit of seeing that I have always said so with the most complete candour throughout this case.

Viscount HALDANE : The King at that time intended to make a complete and exhaustive disposition of the whole of the territory he had got, he sets up four governments, and if you like, annexes to Newfound-land, an easement on the coast, whatever that means of Labrador, but it is an independent area outside the bounds of what he has got from succeeding the French King, and it is quite independent of setting up the four Governments.

Mr. MACMILLAN : My learned friends in their printed Case have stated that this Proclamation is the root of their title and is the foundation of Newfoundland's jurisdiction, and my learned friend has been anxious to get away from the position not unnaturally, because if the Proclamation is the root of his title, it certainly gives a title which is very much less comprehensive in its terms than the language to be found in the Commission ; therefore, one can understand the desirability, from his point of view, of shifting his ground from his pleading, and saying that this was the foundation and the other was not, but at the same time. you cannot leave outside the Commission and I am now going to go to the Commission, and it has been present to my mind, it always

p. 918

struck me that my learned friend referred to this so very little, while harping on the Commission, that I am going to take them both together, which is much sounder.

Lord WARRINGTON : There must have been some sort of Letters Patent ; look at line 32 on page 154, " We have thought fit to publish and declare by this our Proclamation that we have in the Letters Patent under our Great Seal of Great Britain, by which the said Governments are constituted, given express power and direction to our Governors."

Mr. MACMILLAN : That is the Commission: they are Letters Patent. Would your Lordship, before concluding the matter, just look at page 159 and see how, in 1774, this is described by Parliament, at line 18 "the Province of Quebec as created and established by the said Royal Proclamation of the 7th of October."

Lord WARRINGTON : Certainly.

Mr. MACMILLAN : Therefore, the Statute says the Province of Quebec was created and established by the Proclamation.

Viscount FINLAY : Is that at page 159 ?.

Mr. MACMILLAN : Yes, my Lord, at line 18. I do not want to be controversial on this and to develop it at great length, but I want to show that you cannot do, as my learned friend does, treat this Proclamation as if it were comparatively negligible in the matter of its description of the grant, when it is referred to over and over again, by Parliament and elsewhere, as itself the very source of the rights.

Lord WARRINGTON: But it is a very curious thing that the Proclamation in that part that you refer to here, states that something has been done, and in other parts it directly gives orders and directions to the person to whom it is addressed.

Mr. MACMILLAN : Far be it from me to try to penetrate these recondite matters; I can only tell your Lordships what I know myself.

Lord WARRINGTON: We have here " we strictly enjoin and require."

Mr. MACMILLAN : That is de futuro, is it not, my Lord ?

Lord WARRINGTON : It is more than that. Then there is another one, "and we do hereby authorise, enjoin and require the Governors and Commanders in Chief of all our Colonies respectively as well those under our immediate Government" and so on, "to grant

p. 919

certain lands" and so on. There are certain parts of it which are direct commands.

Mr. MACMILLAN : But the thing, which frankly, was puzzling me, was that certain passages in the Proclamation, seem to be rather in the nature of a recital of acts already done than to be themselves executive acts. I am going to leave the matter with this observation : that apparently Parliament regarded the Proclamation as an executive document, and not merely a reciting document in the matter both of the setting up of the Government of Quebec and also in this very matter of the annexation of the coast of Labrador to Newfoundland. You find that, of course, in the Act of 1809, on page 195, where you will find that the Coast of Labrador was " annexed to the Government of Newfoundland by the said Proclamation of the seventh day of October, one thousand seven hundred and sixty three " ; therefore, in the minds, at any rate, of the people who were framing this legislation, there was present the conception that it was the Proclamation that was the effective instrument that had done it, and therefore the draughtsman of these measures, where the language occurs, would have before him the Proclamation, and in this matter of Labrador, what he would read would be what the Proclamation contained on the subject, and what did it contain on the subject--be it either an explanation or an executive act itself : that a certain coast had teen put under the care and inspection of our Government of Newfoundland. My Lords, as I stated, I am not greatly concerned whether my learned friend's first view or his second view is right, because if the Proclamation be the executive act, your Lordships are undoubtedly entitled to resort to the Commission to help to construe it ; if on the other hand the Commission be the executive act, by parity of reasoning, you are entitled to refer to the Proclamation for assistance ; therefore, it does not greatly aid your Lordships to carry on a discussion upon this matter, but I did not wish to leave it in this position : that I accepted the view that the Commission was the sole executive document and that the Proclamation could be treated as lightly as my learned friend had treated it ; now he puts it as something that was a mere recital, and possibly an inaccurate and incomplete recital of what had been done. My Lords, it is a contemporaneous exposition by the very same person; His Majesty who had granted the Commission also made this Proclamation, and he did it by and with the advice of the same persons as the Proclamation was issued, by and with the advice of the Privy Council, with whose advice and consent the Commission and Instructions were equally framed ; therefore, you have here a complete picture of the minds of those persons, and what they thought they were setting about, what their object was, and what they thought they had done, because we have the advantage, first of all, not merely the intention and the purpose disclosed to us, but we have what they did, and then we have the statement that this is what we have done, so that your Lordships are supplied here with an apparatus of interpretation of an exceptional

[1927lab]




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