In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Thursday, 28th October, 1926.
THE RT. HON. THE LORD CHANCELLOR (VISCOUNT CAVE),
THE RT. HON. VISCOUNT HALDANE,
THE RT. HON. VISCOUNT FINLAY,
THE RT. HON. LORD SUMNER, and
THE RT. HON. SIR THOMAS WARRINGTON.
IN THE MATTER of the BOUNDARY between the DOMINION of CANADA and the COLONY ofNEWFOUNDLAND in the LABRADOR PENINSULA
THE DOMINION OF CANADA (of the one part)
THE COLONY OF NEWFOUNDLAND (of the other part).
[Transcript of the Shorthand Notes of MARTEN, MEREDITH & CO.,
8, New Court, Carey Street, London, W.C. 2, and CHERER & CO.,
2, New Court, Carey Street, London, W.C. 2.]
Counsel for the Colony of Newfoundland :—The Rt. Hon. Sir JOHN SIMON, K.C., Mr. F. T. BARRINGTON WARD, K.C., The Hon. W. J. HIGGINS, K.C. (of the Newfoundland Bar), Mr. W. T. MONCKTON and Mr. C. H. PEARSON, instructed by Messrs. BURN &BERRIDGE.
Counsel for the Dominion of Canada :—The Rt. Hon. H. P. MACMILLAN, K.C. (of the Scottish Bar), The Rt. Hon. C. J. DOHERTY, K.C. (of the Canadian Bar), Mr. AIMÉ GEOFFRION, K.C. (of the Canadian Bar), Mr. MAURICE ALEXANDER, K.C. (of the Canadian Bar), Mr. H. STUART MOORE and Mr. C. P. PLAXTON (of the Canadian Bar), instructed by Messrs. CHARLES RUSSELL & CO.
Sir JOHN SIMON : My Lords, since the Board last sat to consider this matter, my clients have had an exhibit prepared which I will describe to your Lordships, because I think you will perhaps think it useful to inspect it at once. They have taken the sketch map, showing my green area which I claim, and with the help of the survey of Mr. Low and other modern surveys which give information as to the superficies of the Labrador Peninsula, they have made one of those raised models such as your Lordships have often seen with reference to different parts of the world. Though I quite agree that you can ascertain the general run of the land by inspecting Mr. Low's survey, because he gives heights, this puts the thing in a visible shape which makes it very easy to understand at any rate what we mean.
The LORD CHANCELLOR : How large is this model?
Sir JOHN SIMON : The same size as my little sketch map.
Viscount FINLAY : It is very difficult to get the elevations on a small model.
Sir JOHN SIMON : I think your Lordships will think it is a striking way of presenting the argument.
Lord SUMNER : Are the perpendicular heights and horizontal distance strictly in proportion?
Sir JOHN SIMON : Certainly not, my Lord ; they never are, in any such model. The object is merely to show them. So far as the perpendiculars are concerned, naturally they are very disproportionate. It shows what one means when one says there is an area or slope, as I have called it, which falls within Hudson's Bay area, and there is a slope, or coast, which is the coast of Labrador between particular points.
The LORD CHANCELLOR : It is only to illustrate your argument?
Sir JOHN SIMON : That is all. It is not any bigger than the sketch map. If your Lordship thinks it right to have it placed before you here, it would not be, I think, in your way. Could we have the model brought in, my Lord?
The LORD CHANCELLOR : Yes. (Model produced.)
Sir JOHN SIMON : Your Lordships appreciate for the purpose of indicating what is meant there is, as there almost must be in such things, an immense disproportion of vertical as opposed to horizontal. (Their Lordships inspected the model.)
The LORD CHANCELLOR : The rise on the Hudson's Bay side is pretty abrupt and comes far inland, but the coasts of Labrador are steep at the sea ; you get what may be almost called a plateau.
Sir JOHN SIMON : You do, my Lord. I think that that is quite a fair remark. Will your Lordship allow me to use a pointer for a moment?
The LORD CHANCELLOR : Yes.
Sir JOHN SIMON : All your Lordships appreciate that when I speak of the Hudson's Bay territory, I mean the area which is bounded by the height of land running so, as your Lordships see. Thus on the model the area that is enclosed there on the Hudson's Bay, within the Hudson's Straits, all drains into that area. Your Lordships see what I mean when I speak of a corresponding area here. It is quite true, as the Lord Chancellor says—and it is an important fact—that you get, at any rate in the northern part, a very sharp rise almost immediately. Incidentally, I think one begins to appreciate why Lord Egremont may very well have wanted to know where it was, in the view of the Hudson's Bay Company, you had the entrance to Hudson's Bay, if he was going to authorise the striking out of a new unit to the west of it. Then your Lordship sees (Lord Haldane in particular was interested in this) why it is that the system of these lakes behind the Hamilton Inlet is a system which does drain into the Atlantic. There was a little difficulty in tracing it on my map, I quite agree, but that is the way it actually goes. Then, of course, the people who used this expression “ coasts of Labrador ” did not know, and indeed until quite recently it probably was not known accurately whether you might find the slope in that sense coming as far as it in fact does, or whether it would come to here. That is necessarily I think only to be discovered when what the Lords of Trade called the natural boundary is in fact tested on the ground.
The LORD CHANCELLOR : Does that projection like a club foot or dog's head appear on any of the maps ?
Sir JOHN SIMON : Yes, my Lord. Your Lordship remembers that there are some maps which do show a very similar bite out of the general boundary.
2 O 2
The LORD CHANCELLOR : I do not remember any such turn to the west and down again in any of the maps before your sketch map.
Sir JOHN SIMON : We will test that, my Lord. There is a certain indication, though I agree not quite so pronounced. Perhaps your Lordship for a moment would think it useful to turn to the south of the St. Lawrence.
The LORD CHANCELLOR : Which is the St. Lawrence River ?
Sir JOHN SIMON : This is interesting, because this shows, and shows quite accurately, how the mistake arose when it was supposed that the waters of the St. John River came up further than they really do. There is in fact a slight prominence which means that the St. John River really is a smaller river, and that the high waters really belong to a separate stream ; that is the truth which Mr. A. P. Low discovered. There is another thing your Lordship will notice which is interesting. I am putting the pointer on Lake St. John. It is there. Therefore when you had the Lords of Trade proposing that you should have a line running along the height of land from the head waters of the River St. John along the head waters of the river running into the St. Lawrence, to Lake St. John, they imagined—inaccurately no doubt—that they were in fact tracing a straight line. Your Lordship remembers that some of the maps in the middle of the 18th century showed it. It is not accurate, because there was behind that an area which I am now pointing to which really was still draining into the River St. Lawrence. That is true enough. That is the area which, in my sketch map, is now yellow, and undoubtedly that area fell within the boundary of the Province of Quebec in 1774, and has never come Out of it again.
Viscount HALDANE : Where is the 52nd parallel?
Sir JOHN SIMON : My Lord, that you will find there. (Indicating.) Would your Lordships for a moment look to the south of the river and gulf of St. Lawrence? I venture to think that this model very plainly shows what the Lords of Trade meant when, in 1763, they were considering what ought to be the boundary of the British Government of Quebec and suggesting that it should run “ along the height of land.”
Viscount HALDANE : Is that Cape Chudley at the other end?
Sir JOHN SIMON : This is the cape. Your Lordships see what they were doing. Of course this is, as all such things must be, exaggerated vertically. The Lords of Trade were saying : We have Frenchmen on the south side of this waterway and they ought to be thrown into the new Goverment of Quebec. Therefore they say : Draw the line like this along the top of the height of land, and then you will get the Frenchmen who are on the south of this waterway thrown into the area to which they naturally belong, and they will enjoy the French law, and so
on. Of late, before the British conquest, the French empire had endeavoured to push its way down on the south side, the Nova Scotia side of this slope, and the result is that the British Colony of Nova Scotia has been much restricted. They say : Draw the boundary there, and the result is that you will have a coast as they call it, of Nova Scotia, free for plantation and colonization, meaning from there up to the height of land on that side.
Viscount HALDANE : It is strange that they did not follow the height of land as regards the new Province of Quebec. They drew an absolutely straight line from here to here.
Sir JOHN SIMON : When the Proclamation was made, that is the way it was done, but your Lordships will have noticed—I called attention to it on Tuesday afternoon—the Lords of Trade in their recommendation spoke of that line, not as a straight line joining the head waters of the River St. John to the Lake St. John, but as a line starting from the head waters of the River St. John and then following along the head waters of intervening streams until it ran into the Lake St. John. When the Proclamation was drawn, no doubt because the maps of the period were not very accurate or complete, or perhaps for simplicity's sake, the thing is described, as the Lord Chancellor says, as a straight line. I think it is quite clear very soon, not at once, it was appreciated that there was some country which was to the north of that again, where I am resting the pointer now, which was country not in the Hudson's Bay territory. There was, in other words, a certain corridor here which indeed is the yellow on my sketch map. Of course, I am not at all disputing that that area—I am now moving my pointer more or less over the area in question—painted yellow in my sketch map undoubtedly fell into the Province of Quebec as soon as the Province of Quebec was enlarged in 1774. It is very curious to notice the language which Lord North used in 1774 when he was recommending the Quebec Act of 1774 to the House of Commons. If your Lordship would take the third volume of the book and would turn to page 1124, you will find what Lord North had to say. Let me remind your Lordships of the historical position. 1774, the year of the Quebec Act, was the year of the throwing of the tea into Boston Harbour ; that had happened earlier in the year. Parliament here in Westminster in the year 1774 was, for the greater part of the Session, engaged in considering an earlier Bill, which was called the Bill for the government of Massachusetts. There were those warnings uttered in the House of Commons which are famous in history as to what would happen in connection with Boston and Massachusetts Bay. Later in the year there was brought down from the House of Lords the Quebec Bill. It was a Bill which started in the House of Lords, and, as I see by reading the Annual Register, in the House of Lords it received comparatively little discussion. It is the first few words of Lord North's speech on page 1124. I think nothing could be more striking than his use of the