Sir JOHN SIMON: Quite possibly. On any view, what I have been calling attention to—I hope not at too much length—appears to me to have a very material bearing, because it does appear quite conclusively to show that all attempts to suggest some quite narrow strip break down on the conduct of all the parties, from the King downwards.
Viscount FINLAY: I think you said that these were square blocks.
Sir JOHN SIMON: It does appear that the first of them is a square block; the first one is described as a square block. It is to be found on page 963.
Viscount FINLAY: What page is this?
Sir JOHN SIMON: It is page 1321.
The LORD CHANCELLOR: Mr. Macmillan, which map are they on, can you tell me?
Mr. MACMILLAN: They are shown on one of the maps in our atlas, I think.
Sir JOHN SIMON: I did not know that they were.
Mr. MACMILLAN: I am sorry. It is not in the atlas; it is a map which I have seen myself. May I say what we did? We inquired of the Government of Newfoundland what was the extent of those grants which they had made, and they were good enough to supply us with a map on which they show the precise territory. I have that map here, and I can show it. May I do so?
Sir JOHN SIMON: By all means. But I just want to give Lord Finlay the reference. At page 1321, at line 26, your eye will catch the phrase “or about 12 miles square.”
Viscount FINLAY: I had an impression that they failed to comply with the terms of the grant.
Sir JOHN SIMON: From the terms of the document I should have thought that they were given a discretion, but I should not have thought that they would have failed to comply with the terms of the grant if on one occasion they chose a long narrow oblong which went further in.
Viscount FINLAY: It would certainly have been within their discretion to give any shape they liked, but in one case they did give a square block.
Sir JOHN SIMON: My friend Mr. Macmillan has been kind enough to let me see what he says his clients got from the Newfoundland
Government when they asked to be informed what were the grants which the Newfoundland Government had made on this coast.
Mr. MACMILLAN: That is what I understood; to the Moravians, of course.
Sir JOHN SIMON: Yes; the others we are coming to. Here they are, my Lord. It raises an interesting question in geometry as to whether any of these is a square. I should have said myself that one of them was rhombus.
The LORD CHANCELLOR: It need not be a square; it is so many square miles.
Mr. MACMILLAN: The furthest north is the last, I am told.
Sir JOHN SIMON: I do not think it is material to my case to decide exactly where they were or how big they were.
The LORD CHANCELLOR: They go beyond the mile.
Sir JOHN SIMON: Not only that, but my argument, which your Lordships will weigh and give such force to as you think right, goes much beyond that. My argument, is that it shows that “coast of Labrador” is used in the sense in which I submit “Main” or “Coast” is used.
The LORD CHANCELLOR: I understand that, but in fact all these grants extend far beyond one mile.
Sir JOHN SIMON: Yes, and it is treated as beyond question that the person who will have authority in these matters will be the person who has jurisdiction over the Coast of Labrador.
Sir THOMAS WARRINGTON: If it has the description “part of the Coast of Labrador,” you do not want to go any further, because it is the Coast of Labrador which the Governor has to govern.
Sir JOHN SIMON: If your Lordship pleases. The only other thing about Hudson's Bay which I have to say to complete it is this: In 1815, owing to the activities of this North West Company which I mentioned earlier in the day, the Hudson's Bay Company considered what course they should take, and they proposed to exercise quasi-sovereign rights in their own area to an extent they had never done before, and they reported their intentions to the Government of the day. The Government of the day I do not think very much liked it. I do not suppose a Government very much likes a subordinate corporation setting out with an army of its own. There was a controversy, and in the course of the controversy the question arose as to what was the extent of
Hudson's Bay territory. One or two letters passed. I do not say they were altogether in favour of my contention, but they are very material, and it is helpful, I think, to refer to them now.
The LORD CHANCELLOR: This happens to the west.
Sir JOHN SIMON: Yes, in 1815. There are two or three letters about that in Volume VIII, page 4114. Your Lordship will be interested to observe that the Hudson's Bay Company was advised by some very distinguished counsel. I have not, as a matter of fact, at the moment, seen their opinion; it would be very interesting to see i, but it comes in a moment. In May, 1815 (the day of the month is not given), addressing Lord Bathurst, who was Colonial Secretary, the Hudson's Bay Corporation write: “That by their Charter granted by King Charles the 2nd bearing date the 2nd May 1669 they are authorized to make Laws both Civil and Criminal for the Government of their Territories in North America, so as such Laws be reasonable and not contrary to the laws of England but as near thereto as may be. That no laws either civil or criminal for this purpose have hitherto been made except such bye laws of the Company as from time to time were found necessary for the Regulation of their Servants and immediate Dependants in their said Territories. But a considerable addition having been made to the Population thereof by a new Colony lately settled there which is likely to increase to a considerable extent it is become necessary that a more enlarged and comprehensive Code should be established for the good government as well of the Company's Servants as of settlers others within their Chartered Limits in North America.” I am speculating, but I rather imagine that the New Colony there referred to was probably Fort Garry. “That proposed Ordinances for this purpose have been prepared under the advice of Counsel (a printed copy of which is annexed) and are intended to be sent out to the Company's settlements in Hudson's Bay by the Ships of this Season which will very shortly sail, but your Memorialists are anxiously desirous that such Ordinances should receive the sanction of His Majesty's Attorney & Solicitor General before they acted upon.” The delegated power of legislation was rather a queer one. Their legislative power was limited by this: “So that such laws be reasonable and not contrary to the laws of England but as near thereto as may be;” so perhaps it was prudent for the Hudson's Bay Company to ask that the Attorney–General and the Solicitor–General should certify.
The LORD CHANCELLOR: Then Lord Bathurst says: “What are your limits?”
Sir JOHN SIMON: On page 4115 Lord Bathurst says he wants a distinct specification of the limits of the territory within which it is proposed that such ordinances should have effect. Then the answer is on page 4116, on the 8th June, 1815. “Mr. Goulburn having desired
that your Lordship should be furnished with a distinct specification of the limits of the Territory within which the ordinances of the Hudson's Bay Company relative to the better administration of Justice are to have effect, I beg leave to transmit a Copy of the Charter granted by King Charles the 2nd from which your Lordship will observe that the grant of the Territory included all lands which lie upon the waters that run into Hudson's Bay. The limits therefore can only be defined by the Height of land which divides these waters from those which run into the Sea in any other direction.”
Now I shall be much interested to see (and I have sent, for the paper, which I think is to be found) what was the opinion of Sir Samuel Romilly, Mr. Scarlett, Mr. Holroyd, Mr. Cruise and Mr. Bell, who are mentioned on the next page—a very distinguished team, anyway. “The geographical discoveries which have been progressively made by the Company's Servants for many years past have ascertained with great accuracy the situation of the height of land which is laid down distinctly in most of the recent maps of North America. On the South East of Hudson's Bay it divides the rivers that run into James Bay from various branches of the St. Lawrence. On the South West, it divides the waters of the Saskatchewan & Red River from those of the Missouri & Mississippi & on the North West those of Churchill River from the Athapescow, & other rivers which flow to the Northward into the Frozen Ocean. Within these limits the Governors of the different establishments have always exercised jurisdiction, so far as circumstances required but in consequence of the increasing population of the Country, new rights and varied interests have arisen, which call for a more regular and effectual administration of Justice. For the satisfaction of all persons living within the jurisdiction of the Company, it has been thought advisable to take the opinion of several eminent counsel of the different courts of Law and Equity who concurred in an unanimous opinion that the Company have a complete title to all the Lands within the limit above mentioned and that within these limits their Governor and their Council appointed by the Company, are empowered by the Charter to administer Justice according to the Law of England.” Probably the phrase about the height of land is to be found in the opinion. “A copy of these opinions is enclosed for your Lordships' information. As these questions involve points of Royal Prerogative, we were anxious to obtain the opinion of the Law Officers of the Crown in addition to those of Sir Samuel Romilly, Mr. Cruise, Mr. Holroyd, Mr. Scarlett,and Mr. Bell.”
Viscount FINLAY: Who were the Law Officers of the Crown at that time?
Sir JOHN SIMON: I am not sure; probably if one thought a moment one might find out.
Viscount FINLAY: It does not matter.
Sir JOHN SIMON: “The high sanction of their opinion would certainly have been a great satisfaction to the persons acting under the Charter,” and so on.
Then there comes back a very cautious letter from Downing Street. May I warn your Lordships that it seems to me at least—I have no reason whatever to say so except from looking at the document—that the date must be wrong and there must be some intervening documents. I have sent to enquire if the next document was the 12th April, 1816. I think it must be 12th April, 1816, because it is referred to in the reply on page 4119, so that I think we ought to see what the intervening documents are. Apparently the Government did not like the idea of the Hudson's Bay Company starting this imperium in imperio. Line 28: “His Lordship has therefore, as a preliminary measure, and with a view to ascertain the extent of jurisdiction which the Hudson's Bay Company can legally claim under their Charter, referred the case to the consideration of His Majesty's Law Servants. As soon as their report shall be received, a communication of Lord Bathurst's views on the subject will be made.” Then follows this sentence, which your Lordships must not overlook: “In the interim his Lordship has only to express his decided objection to the measure announced in your letter of creating an Armed Force for the defence of a Territory, the title to which in the extent to which it is asserted is, to say the least of it, extremely doubtful. Nor can his Lordship believe that, under the circumstances stated, the Company can have any disposition to incur the responsibility of persisting in the measure which you have announced to be in their contemplation.” I infer that in between the two there was a gap, that things had got worse, because this Hudson's Bay Company was extremely vigorous. I rather infer that in the interval the Hudson's Bay Company were saying: “We are not going to make laws, but we are going to enlist an army.”
Then comes the answer on page 4119: “I have the honour to acknowledge the receipt of Mr. Goulburn's letter of the 12th inst. in which he informs me that your Lordship with a view to ascertain the extent of jurisdiction which the Hudson's Bay Company can legally claim under their Charter has referred the case to the consideration of His Majesty's Law Servants, and I have to assure your Lordship of the perfect readiness of the Hudsons Bay Company to afford to them every assistance which their documents may furnish and to facilitate by every means in their power the legal determination of so important a question. I beg leave to recall it to your Lordships recollection that the Directors of the Hudsons Bay Company have in former communications expressed an anxious wish for the opinion of the Law Officers of the Crown upon this question, that they might have either the additional weight of their authority as confirming the opinion of Mr. Justice Holroyd”—he had been made a Judge in the meantime—“Sir Samuel Romilly, Mr. Scarlett, Mr. Bell and Mr. Cruise, or that had His Majesty's Attorney and Solicitor differed from those great authorities, that menus might hove been found to bring these Chartered Rights at once before the King in Council.”