which was neither Newfoundland nor Quebec. It has always been either one or the other, and therefore the real question in this arbitration is where you should say, on the proper construction of these documents, that the line between Newfoundland and Quebec is.
The fourth point is upon a quite different subject matter. I gratefully accept any concession from the Dominion of Canada. The fourth point is this, that in this case at any rate, it is not disputed that the Newfoundland area, whatever the width of the band may be, is an area which includes the sinuosities of the coast, which runs round the heads of the inlets. That is not disputed, and indeed I should think, having regard to the fact that fishery was uppermost in people's mind, it would be ridiculous to suggest the contrary. Curiously enough. Canada seeks, I think without any warrant, to make an exception to that general proposition ; it takes the largest of the inlets, an inlet which has been called an inlet, as your Lordships noticed this morning, from the very earliest times when it was explored, and it says : “ No ; this inlet goes in 140 miles, and we wish to set up a case that properly speaking it is not an inlet at all.” I find a certain amount of difficulty in knowing how far I ought to deal with that contention, because, of course, my case, which I in no way retract, is that the height of land is the relevant consideration. But I can very briefly summarise the considerations which I think go to show that this attempt to treat Hamilton Inlet in a different way from the other inlets on the coast is a hopeless attempt.
Viscount FINLAY : What exactly do you mean by “ Hamilton Inlet ? ” Do you mean merely the inlet next to the sea ?
Sir JOHN SIMON : No, my Lord. If your Lordship takes the Admiralty chart, as I think the Lord Chancellor pointed out the other day, the whole thing has been constantly called “ Hamilton Inlet.”
Viscount FINLAY : You include the lake in the expression “ Hamilton Inlet.”
Sir JOHN SIMON : What is called the lake, certainly, my Lord. This attempt to say that the inlet stops somewhere—I do not know exactly where it stops, but at some point which my learned friend suggests—and that inside of that you have something which is not inlet, is contradicted by all the most important considerations in this case.
Viscount HALDANE : This is your fourth point ?
Sir JOHN SIMON : Yes, my Lord, this is my fourth point.
The LORD CHANCELLOR : This is your first disputed point ?
Sir JOHN SIMON : Yes, my Lord, I am taking the exceptions to the sinuosities.
Viscount HALDANE : What was your fourth common ground ?
Sir JOHN SIMON : It was this, my Lord, that it is agreed by Canada that the area to which I am entitled is an area which follows round and includes all the sinuosities of the coast, and does not seek to jump from headland to headland, with the exception—and here is the controversial matter—of Hamilton Inlet,.
Viscount HALDANE : I see ; and therefore Hamilton Inlet is the first disputed point ?
Sir JOHN SIMON : Yes, my Lord. Now I am coming to the first disputed point. I was just observing that there is a great deal of
material about this in the books, and indeed this is rather entertaining reading, because nothing is more entertaining to the unscientific mind than to read the way in which scientific men treat one another. There is some extremely controversial matter here. It appears that a gentleman, as to whose high qualifications in his own field I raise no question—he was a geologist—was able to assist the Government after this dispute arose by a most elaborate essay on the marine flora of the inlet ; and there is a document in the book where he deals in great detail with the botany of the subject. The only difficulty in his way is that he does not know any botany, and consequently it was necessary for us to produce the evidence of two of the greatest botanists in the world, who took his list and pointed out that he was wholly and absolutely in error, firstly in supposing that a number of plants were marine plants, and secondly in his description of the habitat of a great number of these interesting natural products. It is one of the few things which has given me a little relief. I reminded myself of the saying attributed to Lord Dundreary when the British Association met at Oxford, and distinguished men conducted a heated controversy. I think it was the occasion when Disraeli said he was on the side of the angels—I am told it was not the same occasion, but at any rate it, was one occasion; and Lord Dundreary appeared on the scene, and said that really we were infinitely obliged to these scientific gentlemen for quarrelling so amusingly before us. There is really a delightful passage in one of these documents, exhibiting to the judgment of posterity the botanical achievements and qualifications of some of the witnesses.
Lord SUMNER : The same sort of entertainment is afforded by the disputes of other learned gentlemen.
Sir JOHN SIMON : Yes, my Lord ; except that the other disputes are commoner and not so enlightening.
Viscount HALDANE : I think the occasion which you were referring to was a Church Conference.
Sir JOHN SIMON : I saw, from a warning from one of your Lordships, that I had mentioned the wrong occasion.
Now, perhaps, I may state some points categorically, because I have collected them on a piece of paper. The first point that I make about Hamilton Inlet is this : the question is not whether the waters of Lake Melville call it Lake Melville without prejudice—not whether the higher waters are particularly saline or brackish—one question is whether people can make tea out of them—but the question is whether the land adjoining those waters is coast or not. Secondly, I would suggest this : this question has to be approached from the point of view of the draughtsmen and other authorities of 1763, and not from that of experts or supposed experts in botany, geology, hydrography, zoology, and any other ologies, in 1926. Then, thirdly, approaching it in this light, even if one was to confine one's self to the primary object of regulating fisheries, it can hardly be suggested that the area is so limited as to embrace less than the margin of all waters where, by English law, a public right of fishery would exist. Here we are getting on to territory which is very familar to some of your Lordships. As we know in some of the fishery cases which have been before this Board, matters have been most elaborately explained, especially in the second fishery case, in the Judgment of Lord Haldane. Of course, a public right to fish extends to all waters within the flow and re–flow of the tides ; it is not limited by asking a botanist or a zoologist whether a particular sea shrimp or flower grows there. It is a perfectly elementary proposition
that the public right to fish, the thing which was the primary interest undoubtedly of those who were legislating in 1763, extends to all waters within the flow and re-flow of tides, whether such waters are rivers or not.
If your Lordships care for any references, although I do not trouble your Lordships to turn them up, they are to be found in Volume V, or, at any rate, most of them. Lord Haldane Judgment in the second fishery case in 1914 is printed in Volume V, at page 2165 ; and on the immediately preceding page, as Lord Warrington has been good enough to turn it up, there is a very well known authority, a gentleman of the name of Moore.
Viscount HALDANE : I do not know whether it makes any difference, but I think it is right to say that the second fishery case was Quebec law.
Sir JOHN SIMON : That was the third case, my Lord.
Viscount HALDANE : You mean the second one, which was—
Sir JOHN SIMON : British Columbia, my Lord.
Viscount HALDANE : That was English law, all right, yes.
Sir JOHN SIMON : Yes, and I deliberately chose the second
case. I had the honour of appearing before your Lordship in one or two of these cases, and I chose that one.
Viscount HALDANE : In the third case it was French law.
Sir JOHN SIMON : Yes, it was, my Lord ; and it was decided that none the less the result would be the same. However, I was talking about the second case.
On the immediately preceding page, in Volume V, on page 2164, there is a very simple passage which I think comes from my learned friend Mr. Stuart Moore's well–known book on fisheries.
The LORD CHANCELLOR : This is rather familiar.
Sir JOHN SIMON : Yes, my Lord. I was going to say that we might pass from Stuart Moore to Hale ; it is within a page or two. On page 2165 there is a convenient extract which comes from the Law Reports, 1914, Appeal Cases.
Viscount HALDANE : It could only be done by a grant prior to Magna Carta.
Sir JOHN SIMON : That is the only way, my Lord. Your Lordship and I have been through this, if I may say so, from the two sides here, more than once. The passage is at the bottom of page 2165, and your Lordships will appreciate that this is reprinted from the Appeal Cases. If I may, I will just take a sentence or two from my Lord's Judgment. He was, of course, Lord Chancellor, in giving the Judgment. At line 30 he says this : “ But in the case of tidal waters (whether on the foreshore or in estuaries or tidal rivers) the exclusive character of the title ”—that is to say, the private title—“ is qualified by another an paramount title which is prima facie in the public. Lord Hale i his De Jure Maris, in a passage cited with approval by Lord Blackburn in his judgment in Neill v. Duke of Devonshire, states the law as follows : ‘ the right of fishing in this sea ’ (i.e., the narrow seas adjoining the coasts) ‘ and the creeks and the arms thereof, is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord, or as the right of fishing belongs to him that is the owner of a private or inland river. . . . But though the King is the owner of this great waste, and as a consequence of his property hath the primary right of fishing in the sea ’ ”—that is the narrow seas adjoining the coast—“ ‘ and the creeks and the arms thereof, yet the common people of England have regularly a liberty of fishing in the sea or creeks or arms thereof, as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks, or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty ’ ” ; and then it goes on to say : “ Their Lordships are in entire agreement with him on his main pro–
position, namely, that the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define.”
Then my Lords answer the first question which is put to them lower down on the page, where they say : “ These considerations enable their Lordships to answer the first question, which reads as follows : ‘ Is it competent to the Legislature of British Columbia to authorize the Government of the Province to grant by way of lease, license or otherwise the exclusive right to fish in any or what part or parts of the waters within the railway belt—(a) as to such waters as are tidal, and (b) as to such waters which, though not tidal, are navigable ? ’ The answer to this question must be in the negative. So far as the waters are tidal the right of fishing in them is a public right subject only to regulation by the Dominion Parliament.”
The LORD CHANCELLOR : Is not your point not whether there is a right of fishing, but whether there is a coast ? I suppose you do not talk of the “ coasts ” of Loch Lomond, but you talk of the “ coasts ” of Loch Fyne, which is a sea lake.
Sir JOHN SIMON : Yes, my Lord, I think so ; but I am not aware that there is a public right of fishing in Loch Lomond, for the reason that it is not tidal.
The LORD CHANCELLOR : Is not the point whether the word “ coast ” applies ?
Sir JOHN SIMON : I think that your Lordship has not quite got the proposition that I was making. What I was saying was that the question is whether or not the land adjoining these waters is coast. Then, this is my proposition : I say that in the light of the main object which was aimed at in 1763, which is the regulating of the public right of fishery, it is extremely difficult to suppose that those who were concerned could have been providing for the Government of an area which would not embrace the margin of all waters where there is by English law a public right of fishery.
The LORD CHANCELLOR : Unless they are right in saying that “ fishery ” means “ cod fishery.”
Sir JOHN SIMON : Yes, my Lord ; I quite agree in that case it would be so. But assuming that I make good the point—and there are endless illustrations of it—that the fishery is not limited to cod, then it is difficult to suppose that, however limited, in 1763, is the construction to be put on the words used, the primary object of the thing was going to be bisected in this very odd way.
(Adjourned for a short time.)