which is already territory of the Hudsons Bay Company”? I apprehend it would be said, when we look into it more closely. “There is no doubt the view would be that it would carry the Hudson's Bay territory back to that
The LORD CHANCELLOR: Is this, what you call the height of land, on No. 26 practically your line?
Sir JOHN SIMON: Yes, my Lord. I will anticipate at once by saying our case is that the location and definition of the boundary to which Newfoundland is entitled in Labrador is a boundary which is to be ascertained by reference to the height of land. It has certain termini at either end. It has Cape Chidley at one end, and has a terminus which has differed from time to time at the other end. I am answering the Lord Chancellor's question more particularly. At one time the terminus at the lower end was not what it is to-day, because it also included the pink; the terminus was at the River St. John, which is the river between the pink and blue. What was shifted afterwards, quite deliberately, and a portion of the coast of Labrador (observe the extreme significance of this fact; I am most anxious that the stress of it should be appreciated) which had previously been attached to Newfoundland was annexed to the Province of Quebec and the result of that was that the pink oblong passed from the one jurisdiction to the other.
Viscount HALDANE: Do you say that was done by Statute?
Sir JOHN SIMON: Yes, my Lord. I will call attention to it. The reason that I am starting with these other illustrations is because I am anxious to present to the Tribunal this broad consideration, that in the absence of some other test, or some defined and artificial limit, you have, as a matter of fact, by the practice which was understood and incorporated in such distributions of territory, really a direction to go to the height of land. I have taken that out of its turn because it is one of the areas which you have to bear in mind. In a very similar way I would invite your Lordships to look at another map in this atlas. For the moment I will deal with this point more briefly. Will you take the first map in the Newfoundland atlas; it is a map of 1656. I have here the original of this map which is on a larger scale: it may save your Lordships' eyesight, because this is very small. There are two or three things on this map. Will you first of all just look at this for a moment. Observe the title: “Le Canada ou Nouvelle France.” Might I call attention to the legend which is very striking as showing the use of this word. He is going to say that different parts of the map are derived from different sources: he is going to say that the northern part comes from one source and the southern part comes from another source, and this is the way he says it: “Ce qui est le plus avancé vers le Septentrion est tiré de diverses relations des Anglois, Danois.” He is saying: “My picture,” as for instance Estotilande which was an
old word used for “Labrador”— “is really due to what I have heard from Englishmen and Danes.” It is most interesting to notice that there are extraordinary Dutch and Danish words in the northern part of the map. I am told (I do not know it myself) that the Dutch for “Turtle” is “Schild padde,” and if your Lordship's eye runs up the coast of Labrador you will see “Schild padde,” which is now known as Turtle Island or Bay. Then see how he goes on: “Vers le Midy les Costes de Virginie Nouvelle Suede Nouvelle Pays Bas et Nouvelle Angleterre sont tirées de celles des Anglois, Hollandois,” and so on. When I look at that map, I find great difficulty in believing that the legend so written is really distinguishing between the mere margin of the Sea of Virginia and the land of Virginia, the territory of Virginia, which is at the back of the immediate margin of the sea. Does your Lordship see Virginia? It is edged in green near the bottom. Virginia, you will notice, is, by this cartographer “Sanson.” A great deal of it may be imagination; I am not saying that the mountains are quite where he puts them. He says, this is the Colony of Virginia, and he takes it back to the height of land between those limits of the sea margin. The British Museum have been, as they always are, most helpful about this, and they have been good enough to let us have for your Lordships' inspection the original of this map which is a little clearer than the reproduction. Might I offer your Lordship the original? (Same handed to their Lordships.)
I think your Lordship will see, if you take the original, that what I was submitting is justified as far as the map itself is concerned.
The Colony of Virginia is depicted as running back to the height of land. I rather think it is what was then called New Sweden. I think it is Delaware nowadays. In the same way with New England and what is now called the New York State. Broadly speaking there may conceivably be small exceptions, but it is quite plain that this at any rate is drawn on that principle and I pray in aid the interesting and striking circumstance that in the language of the cartographer at any rate you describe these areas in the south as Les Costes de Virginie, which I venture to think means the tract of land running back from the margin of the sea and understood to run back to the height of land.
The LORD CHANCELLOR: I do not quite see how you get your height of land in every case. It looks like it in the case of Virginia, certainly.
Sir JOHN SIMON: Does your Lordship see there is rather a curious example which a little helps me? It is not French Florida, it would be Spanish Florida, on the extreme left-hand bottom corner of the map. He has there got his rivers—you only see their sources, they would run into the Gulf of Mexico if this map continued, and his notion is, apparently, right or wrong, you get your Spanish Settlement which is pushing up as it does from St. Louis and so on, and on the other hand you get French Florida on the Atlantic side. He goes on to say as far as the great
river of Canada is concerned, or the St. Lawrence and “tous les environs”—these are according to the statements in the French—in the same way, I think I am justified in saying the boundary between what he calls terre de Laborador, or New Britain, because Bretagne in this connection does not mean Brittany in France, but our Britain—the boundary between that which is edged green and Canada, which was French at this time, which was edged yellow, appears to be based upon what I may call the height of land. There are exceptions. I am not wishing to carry the point too far.
Viscount FINLAY: Where, on this map, would the Alleghanys run?
Sir JOHN SIMON: I think it would be the western boundary of Virginia. There is there an indication of a continuous mountain range; one must remember always the cartographer possibly gave a little rein to his imagination. He not infrequently depicted mountain ranges very much more like railway lines than they really are in nature.
Viscount HALDANE: You notice in Spanish Florida the boundary line at the top is shown by a number of smaller hills edging up to what is apparently a mountain chain?
Sir JOHN SIMON: That is right.
Viscount HALDANE: That is what you mean by the height of land?
Sir JOHN SIMON: That is what I mean.
Viscount HALDANE: That is the only demonstration of the height of land in the map, because if you come up to Labrador—there is one in Virginia, too—there is not much of the same sort as far as height of land is concerned.
Sir JOHN SIMON: There is not much, but I venture to think there is a little if your Lordship would consider it. I do not want to carry it too far. I think, my Lord Haldane, the indications really do extend to the boundary between Labrador and French Canada. He draws a series of rivers in the area of French Canada which run to the St. Lawrence. On the other hand, he draws some rivers which run to Hudson's Bay, and he draws a line—I agree you cannot assert with perfect assurance he means it as a height of land, but it is entirely consistent with that notion. The same thing is striking in the case of Virginia, and I think also in the case of Nouvelle Angleterre.
Viscount FINLAY: What is the meaning of the term Estotilande?
Sir JOHN SIMON: It is a very interesting enquiry and one upon which a great deal of learning and a labour has been devoted. Some
people think that word really was in some way connected with Esquimaux, and it was an attempt to say Esquimaux land: it is a word used in these early maps, more particularly for the more northern part of this peninsula of Labrador.
Viscount FINLAY: It is a merely a matter of conjecture.
Sir JOHN SIMON: It is merely a matter of conjecture. The same point arose as to the word “Labrador” itself: there are all sorts of views, and one possible view is that the word is really Portuguese, and some Esquimaux were taken over by the early Portuguese to Portugal and became labourers, and the land became known as the Labourers' Land. Neither of those two questions is capable of very confident answer. I am not wishing to put more emphasis on this than is right.
Viscount HALDANE: What you say, if I follow, is that “coast” is there used to denote what we should call the basin?
Sir JOHN SIMON: I think so, yes. What we shall ultimately have to determine is these two questions: First, what is comprehended in a grant of the coast or all the coasts of Labrador; and, secondly, even though at the time when the grant was made nobody was much concerned with anything except maritime matters, is there any reason for supposing that as between Quebec on the one hand, and Newfoundland on the other, you are left with a No-Mans-Land? Is not the true view that the meaning of the grant is such that it does carry you to the height of land, though, of course, I at once concede what Lord Haldane has been quick to point out, that the purpose to be served at the time when the grant was made was a purpose which was primarily, you may say if you like which was practically exclusively, a purpose closely associated with the sailor and the sea? It does not follow, of course, because the purpose which the grant may have been primarily directed to serve is a purpose which would be effected on a narrow selvedge, therefore, on the true construction of the grant a narrow selvedge is all that was granted; and the whole question here is, not what is the purpose which was primarily the object of the grant, but what is the construction to be applied to the language now It has turned out in this back country that there is something which is of value. In these cases it is always, of course, the discovery of something of value which raises the trouble. Your Lordships, perhaps, would like to know what the particular thing is in the present instance. It is primanly due to the discovery that spruce-wood is very valuable for the purpose of making pulp, and though if you had asked anybody, whether a Quebecian or a Newfoundlander, a hundred years ago, what was the value of land, say, at the back of Hamilton Inlet, he would have told you, of course, it was nothing at all, no one had ever been there, and it was a perfectly useless place. A very considerable portion of this disputed area has got sprucewood on it.
Viscount FINLAY: For making paper?
Sir JOHN SIMON: For making paper. Of course, in the early 'nineties (to go no further back) this began to be appreciated; and since this is public land—most of it has not got a private proprietor—of course, it is a matter of great importance to both of these great authorities, the Dominion of Canada on the one hand, and the Colony of Newfoundland on the other who it is, on the true construction of the documents which will be put before your Lordships, is to have the administration of this area. That is the origin of it.
Now, my Lords. I was going round this part of the world with the object of showing your Lordships first of all the Hudson Bay area, and, secondly, the other ancient British Colonies such as Virginia and New England, and others of the sort, to show how this conception that a unit of territory based upon a certain stretch of sea-board would be a territory that runs back to this natural limit, which is called the height of land, was common. It is, of course, noteworthy that neither in the case of Hudson Bay, nor I think in the case of these other Colonies, Virginia, and so on, was there anything which said so in express terms; it really was what was involved in the language used. Now if we take the area more immediately important, the area of Labrador, the position was this: Newfoundland claims to be, and is very proud to be, the oldest overseas Colony of the British Crown. It is said to have been discovered by Cabot—John Cabot, according to one view, and Sebastian Cabot according to another.
Viscount HALDANE: What was the interval between the Cabots?
Sir JOHN SIMON: They were really working more or less together, that is the reason there is some doubt about it.
Viscount HALDANE: Were they brothers?
Sir JOHN SIMON: No, they were father and son, Jean was the father and Sebastian was the son. They were Venetians, and they sailed from Bristol. They sailed under commission from King Henry VII. I dare say your Lordship will remember, one of the frescoes in the corridor of the Houses of Parliament is a very striking frescoe of the grant of the Charter to Cabot by Henry VII.
Viscount HALDANE: What was the date?
Sir JOHN SIMON: I do not think the actual Charter is extant, but the hour and day of the discovery is recorded: it is the 24th of July—I am corrected, it should be the 24th of June, 1497, at 5 o'clock in the morning. That is said to be the moment at which Cabot first sighted it.