Baltic. If you are going to say a thing cannot be an arm of the sea because cod are not caught there, then the Baltic is not an arm of the sea. The truth is that if both the rise and fall of the tide and the degree of salt in the water, as shown in the documents we have put in in the case, were indeed tests, and if they proved that Lake Melville is not an arm of the sea, then the Baltic is pure fresh water. But as against that, if we are going to deal with the thing in a scientific way, there is material which is available in these volumes. I will only indicate it without seeking to read it, and if your Lordships will be good enough either to read the pages, or hereafter to consult the Shorthand Notes to get them, that is all that is necessary.
On geology perhaps the best material I can present to the Board is advanced by Professor Gregory, and that is in Volume V, page 2489. Professor Gregory, as your Lordships may know, is Professor of Geology at Glasgow University, and I do not think anybody will dispute that he is one of the principal living geologists. So far as geology goes, beginning at page 2489, he gives a most careful account of this area. Incidentally I think Lord Finlay might like to know that in the view of Professor Gregory you do get what I may call a unity in the area I am speaking of. He contrasts what I call my green area, the Atlantic slope, with the slope on the other side, and suggests that there are certain elements of unity in the area I am speaking of. But I do not press that. Then there is a summary which I ask leave to call attention to. That is in Volume V, page 2508. I think if I may read the summary, I will leave your Lordships, if you think right, to consult the details.
Lord WARRINGTON : Was this written by Professor Gregory for the purposes of this case.
Sir JOHN SIMON : Yes, my Lord. Professor Gregory had put before him the material which had been filed or presented, which is partly due, I think, to the observations of a gentleman called Professor Kindle.
Lord WARRINGTON : I thought that must be so because I see on page 2505 there is a discussion on the meaning of the word “coast.”
Sir JOHN SIMON : Oh, yes, my Lord. There is no question about it.
Lord WARRINGTON : We had not been referred to it.
Sir JOHN SIMON : I think one of your Lordships asked when one of my learned friends on the other side was arguing, what was the best summary on our side, and I think if I had to pick one and only one I should take Professor Gregory's summary.
Viscount FINLAY : I think it was I who asked for that.
Sir JOHN SIMON : That naturally may be discounted as being the view of one distinguished man only.
Lord WARRINGTON : But still it gives an example in Canadian geography of where “ coast ” is used.
Sir JOHN SIMON : In British Columbia there is an actual compartment which is called “Coast,” and it is a very considerable area. But I am not concerned so much with analogy, as with the facts here. On page 2508 there is the conclusion of this gentleman who has been examining the thing from a geological point of view. He says : “ The Peninsula of Labrador consists of two main sections–an eastern belt facing the Atlantic, which is high and mountainous, and is deeply indented by many arms of the sea (fiords and fiards).” I do not know whether your Lordships happen to know the refinement which distinguishes a fiord from a fiard. I gather from reading these papers that if the chasm in the structure of the earth fills up with water to a limited extent it is a fiord, but that if in the process of nature, because the whole skin of the earth sinks, you get water welling up to a higher level –of course it keeps its own level, but the ground is sinking –the thing changes in its character and becomes what the geologists call a fiard. A fiard is a drowned fiord. That is the sort of distinction.
Viscount FINLAY : If it is drowned it is not there.
Sir JOHN SIMON : It is not all drowned.. Perhaps one should say that a fiard has the appearance which is presented if the ground which surrounded a fiord has been further immersed. “ The western section is a plateau with a comparatively gentle undulating surface sloping downward to Hudson Bay and Ungava Bay. The high mountains and arms of the sea in the western section give it a distinct geographical entity. This belt has been called, as by some Canadian geographical authorities, the coastal region, and that term is in accordance with geographical and Canadian usage, as may be illustrated by the wide areas assigned to ‘Coast ’ in British Columbia.”
Mr. BARRINGTON-WARD : The word “western,” in line 19,. is a misprint.
Sir JOHN SIMON : Yes, that is so. The word “ western ” should “ eastern,” of course. It should read : “ The high mountains and arms of the sea in the eastern section give it a distinct geographical entity.” Then the Summary goes on : “ The Hamilton Inlet has been generally accepted as a fiord, and as the longest fiord in Labrador. Its entrance is not a ria, but a fiard ; and the inner (Lake Melville) is the essential part of Hamilton Inlet, and to it the name inlet was first applied.” It is rather a striking fact that “ Inlet ” as a label is first attached to the Grosse Water Bay part. “ As a deep basin filled with seawater below a thin
layer of freshwater, it is an arm of the sea. Its branch, the Double Mer, is accepted as a fiord, and Lake Melville has still better title to the name fiord. The Labrador inlets were neither cut by ice nor by ancient rivers. Their arrangement shows that they were due to the fracturing of the eastern coast of Labrador during the earth–movements which upheaved the Labrador coastal mountains and led to the foundering of the floor of the North Atlantic basin. The inlets are true fiords ; their arrangement is essentially different from that of river valleys, the normal arrangement of which is illustrated by the river valleys on the Labrador plateau. Labrador is strikingly similar in structure to Scandinavia, both peninsulas which in each consist of blocks of ancient rocks are found on both sides of the watershed. The watershed is the main boundary between the fiord–river mountainous region of Norway and the gentler slope of Sweden to the Baltic.” That will show your Lordships the kind of material available in much greater detail in the pages which precede.
Immediately following that–and I direct a little attention to it–is the comment made by Mr. Tate Regan (who is the Keeper of Zoology at the British Museum), which is one of the documents on which Canada relies. With regard to Dr. Kindle's effort to prove by reference to botanical specimens and the like that the inner waters which I call Hamilton Inlet should be regarded as Lake and not as marine, I forbear to read the document, but if your Lordships will cast your eye through it you will observe that with much deliberation, and more in sorrow than
in anger, Mr. Tate Regan points out that it is quite obvious Dr. Kindle knows nothing about it. And a rather amusing thing is if you read Dr. Kindle's account of the botany of this place, he vouches as the gentleman who has catalogued or helped to list his specimens a gentleman who as a matter of fact was a student. If you turn to page 2370 you will see in this extremely elaborate botanical excursus of the Canadian Professor, he says : “ The plants in this list were collected by R. H. Wetmore. Determinations were made by R. H. Wetmore under direction of Professor M. L. Fernald, of Harvard University.” I will show in a moment that Professor Fernald of Harvard University knows all about this, and has also had dealings with Mr. R. H. Wetmore, and puts the matter in its true aspect. Professor Fernald is Professor of Botany at Harvard, and what he says is to be found in Volume VIII, page 3936.
The LORD CHANCELLOR : Are you going into this at length ?
Sir JOHN SIMON : No, my Lord, indeed I am not. When one comes to page 3936, Professor Fernald of Harvard University, who was Fisher Professor of Natural History (Botany) at that University, deals with all this elaborate table and catalogue of the plants of Hamilton Inlet, and says at page 3937: “ Dr. Kindle's party contained a student, Mr. R. H. Wetmore, subsequently one of my students, who was instructed to collect specimens of all flowering plants seen.” And then he proceeds to deal in detail with all sorts of specimens, and points out
that there has been a misapprehension on the Canadian side. The real reason why some of these things he catalogues are not to be found
blossoming or growing at, let us say, Goose Bay, is not because Goose Bay is not sufficiently saline, but it is because Goose Bay is not sufficiently boisterous. Those are things that grow on exposed places, and when you get into Goose Bay I believe they even grow cranberries there, and various fruits.
So that I leave these gentlemen to fight their battles out in these interesting volumes more in detail. My submission is that there is nothing whatever in this attempt to try and secure that, Hamilton Inlet is to be dealt with under a sort of contracting–out clause. There is not the smallest ground known to me on examination of these documents, why it should be supposed that in 1763 those who were responsible wished to draw any such distinction. In so far as this distinction is suggested to arise from scientific conditions, while wishing to give all due weight to anything said on the other side, it would appear as though the weight of testimony, so far at any rate as it is uncoloured by the controversy having arisen, is entirely in favour of the whole inlet being called Hamilton Inlet. There is an appreciable ebb and flow ; there is great depth ; there are steep wall–like sides ; there are undoubted and admitted fiords alongside, such as Double Mer ; there is navigability, there being not the slightest difficulty in very considerable ships getting up there ; the basin is permanently salt. The surface is salt in spite of the very large contribution of fresh water which is of course always engaged in diluting it. The Hamilton River, as a river, debouches into Goose Bay or the head of the inlet, and there you do find the bar, the natural river bar at its mouth, for the bar of Hamilton River and the North West River is in Goose Bay, not 140 miles further down at all. Lake Melville receives not one river, but many rivers, and perhaps one may describe it as an ante–room of the sea. If you look at this Admiralty chart its true character, at any rate the view of those who issue impartial directions and who are experts, is plain enough, it is to be regarded as an inlet. I say that in order to get rid of the suggested case against me, but, of course, it is no part of my own case, because I am relying upon tests which are much more fundamental than that.
Now, my Lords, if I might have regard to the time, I think I could usefully use the time which I imagine remains to–day, if I were to point out to your Lordships why I say that the Proclamation of the 7th of October, 1763, is not the controlling document and that the document which in fact does control the matter is the Commission. We have been led to make a little further investigation on this subject because of the observations made by some of your Lordships in the course of the argument. One of your Lordships pointed out that if you take the Proclamation (printed, of course, as your Lordships know, in the first Volume at page 153) you see an indication that there has been the advice of the Privy Council. You find the passage, for example, at page 153.
The LORD CHANCELLOR : You get it again at page 154.
Sir JOHN SIMON : That is the particular one I am coming to. On page 153 you get it at line 12: “ We have thought fit with the advice of our Privy Council ” ; then, as the Lord Chancellor says, and it is more immediately important, you get it at page 154, line 17 : “ With the advice of our said Privy Council.” That suggested what I confess I myself had not in the first instance observed, namely, this question, whether the Commission to Graves which your Lordship remembers is to be found printed immediately before this document on page 149 could be regarded as being issued with the advice of the Privy Council, because if you examine the language of the Commission, the actual language of the document itself does not say so, and indeed no Commission under the Great Seal would say so. If your Lordship looks at the end of the Commission at page 152 you will, observe it is a Commission “ By writt of Privy Council,” which means as your Lordships know, or did at least in that period of our constitutional history, the Privy Seal is used as an authority for the purpose of requesting the impression of the Great Seal, then the Great Seal in its turn is used. Of course, we are now living in times where the use of the Privy Seal as a condition precedent to the imposition of the Great Seal is obsolete. I think the Statute is 1884, the Great Seal Act, which provided that there shall be no case in which the use of the Great Seal is to be conditional upon the use of the Privy Seal, but in these days, in the days of George the Third, the Privy Seal was constantly used as the way of securing or requisitioning, regularising, the use of the Great Seal.
Lord WARRINGTON : This comes from the Patent Roll?
Sir JOHN SIMON : Yes.
Lord WARRINGTON : There is a note at the head.
Sir JOHN SIMON : What we have discovered is this, the Registry or Index of the Privy Council documents has been available (indeed it is in this building), enquiries have been made and we have discovered what we did not know before, that on a particular day and on the same day there was an Order–in–Council made in terms which authorised and approved both the Commission and the Instructions. The document, your Lordship, is a document of the 30th March, 1763. I told my Lords these documents will be actually available in print to–morrow morning. Perhaps I may just make my point now, because it does fill up a small gap which was remarkable. If I may just read from the Privy Council Register the record of the 30th March, 1763, it is in these terms : “ Newfoundland. Commission for Thomas Graves to be Governor. Approved.” And the next document with the same date is “ Instructions for Governor Graves. Approved.” I will just read the first document. “ Upon reading at the Board a representation of the Lords Commissioners for Trade and Plantations