The LORD CHANCELLOR : You have reconstructed the words of the draughtsman.
Sir JOHN SIMON : I have exactly. I have taken the documents as they were before 1763 and have compared them with the documents after 1763, and with the help of my friend Mr. Barrington–Ward I have had put in red ink in the margin what the changes were. When you look at them you see quite clearly, the man who was dealing with the document, which is now in the Lord Chancellor's hands, was plainly addressing himself to an extended territorial jurisdiction, and indeed I think, my Lord, in the margin in red ink you will find the word “ territories ” popping up. It used to be “ The said Island,” and it is now changed into “ The said Island and territories.” I do not wish to labour the point or occupy further time about it, but I think I am quite right in what I am indicating about it.
Viscount FINLAY : Would you give me the page on which the special instructions are ?
Sir JOHN SIMON : 391 are fresh instructions, your Lordships have them before you.
Viscount HALDANE : These relate to the “ Island of Newfoundland and all the coast of Labrador.”
Viscount FINLAY : As compared with the earlier instructions, what page are they on ?
Sir JOHN SIMON : They are not printed, and therefore I am afraid for the moment I must ask your Lordships to take my word for it, but there is no difficulty in going further.
The LORD CHANCELLOR : On page 5 of this copy the words put in are “ And the coasts and territories of Labrador and islands adjacent thereto,” and a little later on “ said islands,” and somebody has put in “ and territories.”
Sir JOHN SIMON : That is right ; it shows plainly that “ territories ” is a new word. I have now ventured to put before the Lord Chancellor what Lord Finlay was asking for, namely, the earlier instructions which have in the same way been compared with the later instructions and exactly the same observation applies.
Lord SUMNER : He does not use the words “ coasts,” which may be the property of the islands as well as of the continent, but he uses the word “ territories.”
Sir JOHN SIMON : Lord Sumner, I think, is putting it a little bit higher than I am entitled to claim. He uses the word “ territories,”
and as I have pointed out the use of that word can be associated with and exclusively with, the new area, but, of course, there are passages where he also uses the phrase “ coasts of Labrador.”
Lord SUMNER : Quite, the new area is to be preserved as the coast of Labrador.
Sir JOHN SIMON : Your Lordship has put it quite right. I do not suggest the word “ coasts ” does not also occur. My argument on this point is simply, we are dealing here with territorial annexation, but it is, I think, a striking fact that the way in which it was done was to take the Instructions as they previously existed and the Commission under the great Seal as it previously existed and then to proceed to put in, as the Lord Chancellor says, reconstructing the words of the draftsman, additional phrases and clauses and references which show quite plainly that “ territories ” really may be said to mean a portion of Labrador.
There is another rather interesting and striking circumstance, which is this : if your Lordships take the Instructions, if my Lord Chancellor looks at the last page of them, you will find that even such a phrase as “ Rivers ” is a new insertion. Would your Lordships take Volume II, page 404, at the bottom of the page—it is the same document that Lord Finlay was asking about just now. These Instructions, as your Lordships know, are very long, they deal with an immense variety of matters, there are probably 80 or 90 paragraphs ; but would your Lordships please look at page 404, paragraph 74, at line 42 ? The Governor of Newfoundland after 1763, under his extended Instructions, is told to do this : “ and, if there be any Fishing in any other River or Harbour in Newfoundland, or the other Islands and Coasts under your Government, not in this Scheme mentioned, you are to add a Column or Columns for the same, and insert therein the best Account you can get.” Now here is a striking fact : if you will look at my comparison of the Instructions, you will find that the phrase “ River ” is put in for the first time when Labrador came in ; it had never been in the Instructions before ; so that so far is it from being true that this extension of the jurisdiction of the Governor of Newfoundland to Labrador is a mere matter of maritime police, he is, for the first time as it happens, when these Instructions are thus enlarged, given an explicit direction to have regard to fishing, not merely on the coast, but in the rivers. I do not know whether my Lord Chancellor has the exact passage before him.
The LORD CHANCELLOR : Yes, it is put in afterwards ; where he comes to Newfoundland, he has put in the words “ or the other islands or coasts under your Government.”
Sir JOHN SIMON : I think I am right in saying that “ river ” is itself a new word. I do not think it is open to doubt if you make a
careful comparison between the pre–1763 and post–1763 Instructions and Commissions that what the authorities at home conceived they were
dealing with was a territorial extension, which was far from being a mere dealing with the sands of the sea shore, but which embraced rivers and embraced an area which is called indifferently “ Territories ” and “ Coasts.”
Lord SUMNER : What is the exact point about this word “ River ” ? I suppose the object is to extend the word “ Coast,” if it is preceded by territories, but does the mention of “ Rivers ” in Labrador, and not in Newfoundland, mean there were no rivers, or fishable rivers, in Newfoundland ?
Sir JOHN SIMON : Your Lordship has not quite got my point ; it is not a big one, but I think it helps my case that the language of the Instructions to the Governor of Newfoundland before 1763, in this paragraph 74, contented itself with a general direction about “ if there is any fishing in any harbour.”
Lord SUMNER : No doubt it included any fishing if there was any.
Sir JOHN SIMON: I have no doubt the moment when “ river ” became specifically mentioned, is the moment when the Labrador mainland is added.
Lord SUMNER : It seems to show that this gentleman is very careful.
Sir JOHN SIMON : I hope your Lordship will not think I am making more of it than that. That is my first point of common ground ;
I say it is no matter of dispute now, that we are dealing here with a material territorial annexation, though, of course, how deep, remains to be decided. The second point I wish to make, which again is common ground I think, is this, and it is one which has been strangely over–looked in a great deal of the argument I have heard from my learned friends: Whatever be the depth to which this territorial jurisdiction extends on Labrador, the nature of the jurisdiction, the quality of it, is exactly the same as the quality of the jurisdiction in the island of Newfoundland itself. I have heard a great deal of argument during the last week or two that has seemed to suggest, that you had the Governor of Newfoundland established in his island in complete and undoubted sway, and that then there is added to him some incidental duty which is of a qualified kind. Nothing of the sort. The documents, if they are compared, show quite conclusively, and it cannot be disputed, that in point of quality, once you have ascertained how deep you go, the duties are exactly the same in the two cases. Let me give your Lordship one very striking illustration of that. Again and again, you will remember, stress has been laid on the fact, and it is the fact, that the Governor of Newfoundland, in
relation to the coast of Labrador, was told that he was to conduct himself so as to have due regard to the Imperial Statute 10 and 11 William III ; you will remember it comes in the Instructions, and it is all over the place. The Imperial Statute 10 and 11 William III, was passed for the Island of Newfoundland and applied to the Island of Newfoundland, and what is more it never applied to anything else except the Island of Newfoundland. Therefore, if any stress is going to be laid on the circumstance that the Governor of Newfoundland, in dealing with this Labrador area, was to have primary regard to the particular and rather curious fishing regime which goes on there, it is to be remembered that that is exactly the thing which he was directed to do in reference to the Island of Newfoundland, and the truth of the matter, of course, is this : it is all very well for my learned friends to emphasize the undoubted truth that until quite recently there were not more than a handful of white people on the Labrador Coast, save quite close to the salt sea waves, but the thing is equally true about the Island of Newfoundland, and if anyone was to look (I rather think it is in the book somewhere,) at the census of Newfoundland, you will find that the Island of Newfoundland was an exactly similar place, it was a place where you had not any white people except in the rarest case within more than a mile or two from the waves until quite recently, and indeed the interior of it was to a very large extent unknown, just as the interior of Labrador was unknown.
Lord WARRINGTON: It was the policy of the Imperial Government to prevent the settling of Newfoundland.
Sir JOHN SIMON : It was, my Lord. All I say is, my second point, which is really common ground now we have discussed the case, is : you may dispute as much as you like, and it is a serious and difficult question, how deep back you go, but let us realise we are not only dealing with a territorial jurisdiction, but we are dealing with a territorial jurisdiction of a quality which is exactly the same as the quality in Newfoundland itself.
Viscount HALDANE : You say the jurisdiction is not distinct, but at line 14 on page 154 the purpose is given, “ And to the end that the open and free fishery of our subjects.”
Sir JOHN SIMON : Yes, your Lordship is perfectly right ; I am going to deal with that rather carefully in a moment ; though even there, my Lord Haldane, I would beg leave to say exactly the same thing might have been said at that date with regard to the Island of Newfoundland itself. The policy of the Imperial Government in 1763 was to secure in reference to the Island of Newfoundland itself the very same thing; and therefore it is fallacious to draw this suggested contrast between a completely organised and effective Government, which passed over the whole of this immense area of the Island, and compare that or contrast that and set that against a more limited and casual
exercise of authority on the coast of Labrador. The two things are the same.
Viscount HALDANE : Still you have a permanent residence for the Governor in Newfoundland at St. John's.
Sir JOHN SIMON : I am not at all sure that the Governor did not live on a ship ; he came back every winter. You will find, my Lord, as a matter of fact, that in April 1763 Captain Thomas Graves, Governor of Newfoundland, was in London. He came back along with everybody else in the Autumn of the year, and he went out as Commodore of the fishing squadron in the month of April. I know the day, that he started back, within a day or so, in 1763.
Viscount FINLAY : He went on a ship, but when he arrived he did not remain at anchor, rolling up and down on the waves.
Sir JOHN SIMON : I do not know how uncomfortable it may have been, but I do not think he had a luxurious Government house there.
Viscount FINLAY : I do not say that.
Sir JOHN SIMON : Your Lordships have a little confirmation of this point of mine, though really, as I say, the point is common ground, and it is this : you remember that Governor Palliser, the Governor who succeeded Graves, found himself in a difficulty, because he had got instructions which told him that in administering the Labrador area he was to act on the lines of the Imperial Statute 10 and 11 William III, and the good man therefore, when he found people who were saying they were entitled to hold land on the Labrador coast, was minded to turn them out, because he said : “ Oh no, the Statute of 10 and 11, William III. does not allow things like that.” He got himself into this difficulty, that the people who were on the Labrador coast took some good advice, and it was pointed out quite accurately, with some acuteness, that 10 and 11 William III did not apply to Labrador, but only applied to the Island of Newfoundland, and your Lordships I daresay remember in these Volumes, that Governor Palliser reports his difficulties to the authorities at home, and says, “ Here I was, acting on my instructions to deal with these people on the Labrador Coast, as I should certainly have done with them if I met them on the Island of Newfoundland, and now I am threatened with an action.” I daresay your Lordships will remember from the documents that it was proposed at home to have a new Act of Parliament which would extend 10 and 11 William III in express terms, so that it applied, not only to Newfoundland, but to Labrador. That was never in fact done. All that point goes to show that as soon as you said to Governor Palliser : “ Now go and do on Labrador what you have been doing in the Island of Newfoundland,” he did his best to do it, but there was this technical difficulty, that 10 and 11