EXTRACTS FROM PROCEEDINGS BEFORE THE JUDICIAL COMMITTEE OF HER MAJESTY'S PRIVY COUNCIL IN ONTARIO-MANITOBA BOUNDARY CASE RE "WATERSHED" CONTENTION.
(Taken from printed transcription of notes of argument printed by order of the Legislative Assembly of Ontario, Toronto, 1889).
Council Chamber, Whitehall,
Tuesday, July 15th, 1884.
The Right Honourable The LORD CHANCELLOR,
The Right Honourable The LORD PRESIDENT,
The Right Honourable LORD ABERDARE,
The Right Honourable SIR BARNES PEACOCK,
The Right Honourable SIR MONTAGUE E. SMITH,
The Right Honourable SIR ROBERT P. COLLIER.
Counsel for Ontario :—Mr. MOWAT, Q.C., Attorney-General for Ontario, Mr. SCOBLE, Q.C., Mr. MILLS, and Mr. HALDANE.
Counsel for Manitoba :—Mr. J. A. MILLER, Q.C., Attorney-General for Manitoba, and Mr. D. MCCARTHY, Q.C.
Counsel for the Dominion Government :—Mr. CHRISTOPHER ROBINSON, Q.C., and Mr. HUGH MACMAHON, Q.C.
Saturday, July 19th, 1884.
Mr. MCCARTHY.—Yes, my Lord I say there is no proof that there was any possession of any country which as not drained by part of the St. Lawrence, prior to 1670. I start with that. Now, if it be necessary, I will go back and prove that to your Lordships, so far as we can trace it from the historical documents which are left to us. What were the French pretensions ? The French pretension was, that they had discovered
Hudson's Bay, and by virtue of that discovery they claimed that they had a better right than the English. The English said that they had discovered it, and I assumed on Thursday, and I think it was an expedient and a fair and proper assumption, that the English were right in that view. But whether they are right or wrong, the English undoubtedly first took possession of it under their discovery and then it is a question of law to what extent of territory that gives the English a right, internationally speaking as between them and the French, by virtue of their prior discovery and their after occupation. That question of law I propose to discuss still later on. As I understand the result of the authorities—speaking in that sense of the recognised rules which govern all the treaties dealing with this part of the North American continent, and I submit they must be accepted as the international law on the subject—it is this, that the discovery of a coast line, and the occupation of that coast line, give to the discoverer an entire right to all the territory that is drained there. Now, the American ministers put forward a much wider claim. They put forward this claim. They said that the discovery of the mouth of a river gave to the discoverer and occupier of that river, or of the mouth of that stream, a right to all the territory that was drained by the stream, and that is discussed in Dr. Phillimore's work, and aftewards [sic] in Sir Travers Twiss's, and settled now on this basis : that the American view put forward by Mr. Gallatin was too broad—that merely the discovery of the mouth of a river did not give a right to all the territory which it drained ; but that the discovery of the coast line, and the occupation, of course, in either case, did give to that discoverer and occupier a right, internationally speaking, to all the country that was drained into the coast line.
Sir ROBERT COLLIER.—You must not assume that to be so.
The LORD CHANCELLOR.—If Sir Travers Twiss said so—it cannot be taken to be the law.
LORD ABERDARE.—You must shew that the occupation followed on the discovery.
Mr. MCCARTHY.—Of course, my Lord, that would be so.
LORD ABERDARE.—I suppose the first occupation was under the charter.
LORD ABERDARE.—And the discovery was in 1610.
Mr. MCCARTHY.—Yes, that is also dealt with. If the discovery is not followed by the occupation, and anybody else intervenes, then it is also a question of whether there has been an abandonment.
LORD ABERDARE.—Yes, the French claim to have intervened.
Mr. MCCARTHY. . .Now, the proposition of international law I will state, and I do not think anything can be found to the contrary, and I
submit it is in accordance with reason and law. If this continued, how was the country settled ? The English settled on the Atlantic coast ; they claimed, as the map shews, that that settlement gave them a right as far as the Pacific Ocean. They claimed that Virginia stretched to the Pacific Ocean. The English claim was wider than the French, because the French claimed the watershed of the system up to the height of land. If your Lordships remember—and I will give the reference to it—when La Salle discovered the Mississippi, he came from the north. He started from Quebec and came down by the Wisconsin, and penetrated down the Mississippi to the mouth, and it was not until he got to the mouth of the Mississippi that he claimed to be the discoverer. Then he erected a pole, and made a proclamation in the name of the King of France that the whole of the territory drained into the Mississippi was taken possession in the name of the Crown of France. Now, everything in these matters relating to the continent was treated on that basis, and the only dispute was, as between the American minister setting up that the mere discovery of a river gave a right to the watershed of a river, and the other claim, contended for by the British minister and the Spanish minister, that that was not so unless there was a discovery of the coast line as well.
The LORD CHANCELLOR.—There seems to be about as much foundation for the one idea as for the other. If you say, that because you take possession of a few miles of the coast of Africa, you take possession of all the country which is drained by a river which goes three thousand miles, it is so absurd that I cannot conceive it to be laid down by any writer on international law. However, it has very little bearing upon this question.
SIR ROBERT COLLIER.—Whether it is so or not is of very little consequence.
The LORD PRESIDENT.—What do you conceive to be the bearing of all this ?
Mr. MCCARTHY.—The bearing of all this is that the charter did give to the Hudson's Bay certain definite limits. If it did not give to Hudson's Bay certain definite limits, the charter was void for uncertainty. Now what were those limits ?
SIR ROBERT COLLIER.—Then we go back to the charter.
Mr. MCCARTHY.—I am speaking about that charter, under which was the only possession that the English had in all this north country. The Hudson's Bay Company represented the Crown of England, and the charter purported to give them all the lands which drained into the Bay. Now, either it was void for uncertainty, and a piece of waste paper—and I am not required to admit that—or it did give to the Hudson's Bay Company certain definite limits. Where are those definite limits ? Can my learned friends on the other side suggest any definite limits to the Hudson's Bay grant ?
SIR ROBERT COLLIER.—I thought you were trying to suggest some title that they had, independently of the charter.
Mr. MCCARTHY.—No, my Lord.
SIR ROBERT COLLIER.—Then we come back to the charter, and we have heard your views on that subject.
LORD ABERDARE.—Would you argue that although the French may have possessed themselves of the portion of the territory draining into Hudson's Bay more distant from Hudson's Bay, and held possession of it for a considerable time, that claim of the company would have availed as against England itself when it once became possessed of Canada ?
LORD ABERDARE.—You argue that even although the evidence shewed, for instance—just as an example—that a portion of this territory awarded by the arbitrators within the watershed towards Hudson's Bay, had been occupied by the French, that occupation for fifty, eighty or a hundred years, would not avail against the claim of the Hudson's Bay Company ?
Mr. MCCARTHY.—Yes, my Lord, that is my proposition.
The LORD CHANCELLOR.—It is really a proposition which, if it is anything, is the most extraordinary imaginable. The French got access to this country, which is drained at a certain point by the St. Lawrence, they push their settlements into the interior, and do not meet there with any other settlements of any other nation whatever. According to your argument, they might organize these settlements in the most civilized way, and build towns and villages, and cultivate the land, but because King Charles II. had granted, a hundred or fifty years before, a charter to some of his subjects, which in the terms of it, as you say, construed upon certain principles, would include part of the territory which the French had so settled, therefore, internationally, the adventurers, the grantees of Charles II., have a right to turn out the French settlers ?
The LORD CHANCELLOR.—It is perfectly absurd.
Monday, 21st July, 1884.
Mr. MCCARTHY.—Yes. I wish to observe your Lordship's rule, and therefore do not go into the effect of the commissions. My learned friends who are to follow me will deal with that, and they would not be following your Lordship's rule if they repeated what I had said. Therefore I leave that to my friends.
Now, I have some observations to make, and they shall be very few, because my learned friend will have to deal with this in some measure. But I do not think I ought to close my statement without making some references as to the doctrine of law on which we rely as to the height of land. I suppose I may refer to Sir Travers Twiss' work on international law, as I suppose your Lordship will allow me to do to Mr. Halleck's works and other works on international law.
The LORD CHANCELLOR.—The thing which I am at a loss to understand is how the boundaries between the two different territories can possibly be determined by international law, unless you include in international law all conventions, acts and documents of title which have to define those boundaries.
Mr. MCCARTHY.—I mean this, and your Lordship will say whether I am to go on or not ; but what I understand is this, that from time to time nations have agreed upon certain well known rules for settling matters of this kind, and that this question as to the watershed, and as to the territory which one nation that discovers becomes entitled to, has in that way—by conventions, by arguments adduced at those conventions, by settlements made upon references—been so firmly established that it may now be accepted as a well known rule of international law. Now that well known rule of international law, so far as this continent is concerned of course, in early times—within the last century I may say—was of very great importance. There was an enormous continent ; the discoveries had all been made from the ocean ; each discoverer and each occupier was claiming certain quantities of land by reason of that discovery, and that gave rise to disputes and difficulties which ultimately have been settled, and settled upon a fair and reasonable basis, and these rules are now incorporated—if they were not incorporated before, and I think that the earlier authorities shew that they were—as rules of international law. Now I have already stated what I understand to be that rule, and what I understand also to have been the dispute with regard to that rule. One claim put forward by the Americans, which ultimately they had to withdraw as the argument was against them, was this : that the mere discovery of the mouth of a river gave to the discoverer the whole of that river (I mean followed by occupation because I am assuming occupation in all cases) and the land that was drained by it. Then the British authorities stated that that was stating the claim too widely, and that the true rule was this, that not merely the discovery of the river, but the discovery and settlement of the coast line, gave to the discoverer and settlers of that coast line all the country that drained into it. And upon that basis the French seem to have proceeded from the earliest times. The English at first took a wider view. They claimed that the mere discovery of the coast line gave them all that they chose to claim back even to the very ocean. The French took a more correct view by saying that it gave them a right to all the land that it watered, down to the sea where the discovery was made ; and so I have read, once or twice, references to the