Sir JOHN SIMON: Your Lordships have the red volume, page 149, and I must now ask attention in rather more detail to the language of the Commission to Thomas Graves, the date of which is 25th April, 1763. It begins by reciting the earlier and more restricted Commission which is described as appointing “you the said Thomas Graves to be our Governor and Commander in Chief in and over our Island of Newfoundland in America.” The words of the grant or Commission begin at line 23: “Now know you that Wee have revoked determined and made void and by these Presents Do revoke determine and make void the said Recited Letters Patent,” and then: “And Wee reposing especial Trust,” and so on, line 29,“Do constitute and appoint you the said Thomas Graves to be Our Governor and Commander in Chief in and over our said Island of Newfoundland”—now come the new words—“and all the Coasts of Labrador from the Entrance of Hudsons Streights to the River Saint Johns which discharges itself into the Sea,” and so on. I have already called attention to the fact that the language would fit the Hudson's Bay. Over the page on page 150 there is a reference at line 6 to the instructions “herewith given to you.” Then it goes on at line 9: “And Wee Do further give and grant unto you the said Thomas Graves full Power and Authority from time to time and at all times hereafter by yourself or by any other to be Authorized by you in that behalf to administer and give the Oaths”—these are really oaths to attest the loyalty of citizens; and then at the end of the parenthesis on line 17, “to all and Every such Person and Persons as you shall think fit who shall at any time Or times pass into our said Islands or shall be resident or abiding there or upon the Coast of Labrador.” It appears, whatever else it is, to be some indication that the coast of Labrador is a place where people may have been residing. Then the next passage is line 20, going straight on: “And Wee Do by these Presents give and grant unto you full Power and Authority to constitute and appoint Judges and in Cases requisite Commissioners of Oyer and Terminer for the hearing and the determining of all Criminal Causes Treason Excepted”; and then a few lines lower down, “which Justices of the Peace so Authorized may and shall hold and keep General Quarter Sessions of the Peace in such Places as you shall appoint according to the Custom of this part of Great Britain called England and to adjourn such Session from time to time and from place to place as shall be most convenient and necessary for the peace and welfare of Our Subjects Inhabiting there.” Then there is a proviso: “Provided neither you nor they do any thing by virtue of this Commission or the Powers hereby granted contrary or oppugnant to the Act for Encouraging the Trade to Newfoundland passed in the tenth
and Eleventh years of the Reign of King William the Third nor any way obstruct the powers thereby given and granted to the Admirals of Harbours or Captains of Our Ships of War or any other Matter or Thing either prescribed by the said Act.” I will call attention to the statute of William III in a moment. It is really a matter which Lord Haldane has once or twice referred to. The scheme was a very odd one. Under the Statute of William III the primary object undoubtedly of the British regime in Newfoundland was in order to encourage the fishery, and by the Statute of William III it was provided that the captain of the first fishing vessel which arrived at any given port or harbour should be the first admiral; that the captain of the second vessel which arrived should be the second admiral, and so on; and that is the meaning of the reference here to “not exercising your powers so as to obstruct the powers granted by the Statute of William III to the admirals of harbours.” I do not think the rest of that page matters, but will your Lordship take the three last words on page 150 and read on: “And all such Justices of the Peace and their Inferior Officers and Ministers whom you or they shall appoint amongst the Planters or Inhabitants Resident and abiding there are strictly required,” to do this, that, or the other.
Sir THOMAS WARRINGTON: If you look back, “there” takes you back to line 28 of the previous page, “the said Island and Coasts aforesaid”; “keeping the Peace and Quiet of the said Island and Coasts aforesaid.”
Sir JOHN SIMON: Whether “coasts” is to be interpreted as implying a very narrow margin or a wide margin, there is no doubt these powers are common both to the Island and the Coast. On page 151 1 think I can safely ask your Lordships to go down to the middle of the page, line 20, “which said Oaths and Declaration you shall administer and give or cause the same to be administered and given to all and every the Person and Persons who ought to take the same according to the Laws and Customs of this Kingdom And Wee Do hereby give and grant unto You the said Thomas Graves full power to Erect appoint and set apart one or more convenient Court House or Court Houses for the more orderly meeting of such Justices of the Peace in Order to hold such their Quarter or other Sessions with a convenient Prison adjoining thereto for the keeping of such Offenders.” And the new clause begins at line 30, on page 151: “And Wee Do hereby require and command all Officers Civil and Military and all other Inhabitants of our said Islands and the Coasts and Territories of Labrador and Islands adjacent thereto or dependent thereupon within the Limits aforesaid to be obedient aiding and assisting unto you in the Execution of this Our Commission and of the Powers and Authorities herein contained and in Case of your Death”—of course, there being no means of immediate communication, you had
to provide for it—“in Case of your Death Our Will and Pleasure is that the Person upon whom the Command of Our Ships under your Command shall devolve do take upon him the Administration of the Government of Our said Islands and Territories as aforesaid.” It is enough to submit that whatever might have been the primary object of this extended grant—and I concede from beginning to end that its object was official; there is not the least doubt about it—it is to be observed that the language throughout is language which treats the new area and the island of Newfoundland on exactly the same terms, the truth of the matter being, of course, that at this time the interior of Newfoundland was as worthless, and almost as little known, as was my green area on the coast of Labrador. In both cases the practical object to be served was a quite limited and maritime object; but that is not the question. The question is whether or not the language used in the extended Commission is apt to describe and include as a matter of application, the coast, in the sense which I suggest.
Viscount HALDANE: What does the phrase “adjacent thereto” govern? Does it govern “territories” as well as “islands,” or does it govern only “islands”? It might be either.
Viscount FINLAY: Is that in line 32?
Viscount HALDANE: Yes.
Sir THOMAS WARRINGTON: I think that carries you back to the very beginning, does it not?
Sir JOHN SIMON: Yes, my Lord. I think your Lordship is right. “Adjacent thereto” I do not doubt does carry one back to the first page, page 149, at line 34, to the words “other small Islands on the said Coast of Labrador.” It was known, of course, to be a coast.
Viscount HALDANE: Does “adjacent” cover “territories” as well as “islands”? It might be either.
Sir JOHN SIMON: Yes, my Lord, I see the point.
The LORD CHANCELLOR: I think it refers to both.
Sir JOHN SIMON: I rather think so, my Lord, and I think so because, following the words “adjacent thereto” is “dependant thereupon.” This document again and again describes the new area, the Labrador area, as being a dependency of Newfoundland.
Viscount HALDANE: Yes, the coasts.
Sir JOHN SIMON: Yes, my Lord, whatever that may be supposed to cover.
Then the new paragraph on page 151 at the bottom is important. That says: “And Wee do hereby declare Ordain and appoint that you the said Thomas Graves shall and may hold Execute and Enjoy the Place of our Governor and Commander–in–Chief in and over Our said Island of Newfoundland and all the Coast of Labrador”—now your Lordships will observe the language—“from the Entrance to Hudson's Streights”—which is the same language as was to be found in the Hudson's Bay Charter, so that where the one ends the other begins—“to the River Saint Johns.”
Viscount HALDANE: His jurisdiction is not only the island, but the whole island and the territories on the coast.
Sir JOHN SIMON: There is no doubt about that, my Lord. Your Lordship appreciates, as I think I mentioned in the opening sentences which I addressed to this Court some days ago now, I am afraid, that Labrador is a peninsula which is at least five times as big as the thing which I am talking about. There is no doubt at all that the Hudson's Bay Company already had a title to one portion of the coast of Labrador, namely, a portion of it which abuts on to Hudson's Bay. You can go on either side, of course.
Viscount HALDANE: That is East of Cape Chidley?
Sir JOHN SIMON: Yes, my Lord; and in the same way, of course, the coast of Labrador, if you regard yourself as passing up the Gulf of St. Lawrence, would not stop at the River St. Johns; it would go on further into the Gulf. But you have here a cutting out, from Labrador as a whole, of a portion. The whole question is: how much?
Now, my Lords, that being the nature of the grant—and I will not ask leave to spend time in discussing it, because your Lordships see the nature of it—you will find that a very important document accompanying it was the instructions; and that document is to be found in Volume II at page 391. I do not think that these instructions are important in great detail, partly because they contain comparatively little new matter, but they do contain some new matter. You will remember that just before your Lordships rose at the short adjournment, we were reading the document addressed to the Lords of Trade, in which they said that they had amended the instructions in view of the extended area now to be governed from Newfoundland.
The instructions on page 391 are passed under the Royal Sign Manual and Signet, as distinguished from a Commission, which passes under the Great Seal, and they are a document which, as your Lordships know, accompanies the Commission of a Governor to this day; there are always the two things. I suppose that if one spoke in the language of constitutional law, one would say that the authority of the Governor,
vis–a–vis other subjects of the Crown, or the world at large, is to be found in his Commission. The instructions, constitutionally, perform a slightly different function: they indicate the methods by which, or the qualifications subject to which, the Crown looks to its servant to discharge his duty.
Having begun again by calling them “Instructions to Our Trusty and Well Beloved Thomas Graves Esquire Our Governor and Commander in–Chief in and Over our Island of Newfoundland in America, and all the Coast of Labradore,” and so on, the document continues, at line 22 on page 391: “With these our Instructions you will receive Our Commission.” Now I will pick out, if I may, two or three things which seem to me to be material; there are not many of them. It would take a long time to read them all, because there are seventy or eighty paragraphs.
On the next page, page 392, there are cited certain passages from the Treaty of Utrecht, which was, historically, of course, the cause of the modifications in all these documents; and the passages recited dealt with a very complicated manner. I will try to state all that it is necessary to remember quite frankly, if your Lordships will trust me so far. The Treaty of Utrecht had this effect, that the French, although of course their empire ceased East of the Mississippi, none the less did retain a certain fishing facility on a portion of the coasts of the Island of Newfoundland. It was the North West Coast, the part which is more or less opposite Belle Isle. There is that recital, that on the coast of the Island, the French were, under the Treaty of Utrecht, to have certain fishing facilities; they were to be entitled to land and dry their fish, but they were not to have that right—if indeed they ever had had it—on the mainland, or at any rate not on the part of the mainland that we are concerned with here. That is recited, and it is one of the reasons why these Instructions take the form that they do take.
Then would your Lordships kindly remind yourselves of paragraph 7 on page 393, to which I had already called your attention, which says: “It is Our further Will and Pleasure that you do, from time to time, as the nature of the Service will allow, visit all the Coasts and Harbours of the said Islands and Territories under your Government, in order to inspect and examine the State and Condition of the Fisheries, which are or may be carried on upon the said Coasts and Islands.”
I quite understand that it may be said, “You see then how very narrow and how truly maritime is the use of the word ‘coasts’”; but, of course, the word “coasts” and the word “islands” go together in in this connection.
Then it goes on: “You shall also use your best endeavours to procure accurate Draughts or Maps of the several Harbours, Bays and Coasts of Newfoundland, and the other Islands and Territories”—“Territories” is a strong word there, because the territories are not on the islands, but they are elsewhere—“under your Government, and you are more particularly to direct the Officer of an Vessel under your Command which may be appointed to visit that part of the Coast of