In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Tuesday, 9th, November, 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. LORD 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, may I inform the Board that the two sides, Newfoundland and Canada, are binding up the Shorthand Note in case it may be thought hereafter convenient for any of your Lordships to have it for reference : and in each case the Juniors have made a short index of subject matters, which has been bound into the end of the Report, so that I think it is very easy to find, in case it is needed, where the different topics have been dealt with on either side. I think it will be convenient to have two volumes. The one I hold in my hand is the one which has already been prepared of the case for Newfoundland.
Viscount FINLAY : That is one half ?
Sir JOHN SIMON : Yes, my Lord , and it ends (I am indebted to my learned Juniors for doing it, and it seems to be very conveniently done) by an index of subject matters, so that if anybody does wish to turn up any part of the argument it can be easily done. Your Lordships will say whether or no you think it worth while to be provided with the Shorthand Note in that form.
The LORD CHANCELLOR : Speaking for myself, I am so conversant with the matter now that I think I know the page of every important document.
Sir JOHN SIMON : I thought it extremely likely your Lordships would take that view, and I am not pressing it on you.
Viscount FINLAY : I think the index may be very useful.
Sir JOHN SIMON: It will be available for any of your Lordships if you wish it: I am not doing more than saying it is available.
Viscount FINLAY : I have a document here headed “Submissions.”
Sir JOHN SIMON: That, your Lordships will remember, was the way in which I was allowed to present to the Board, at the end of my argument (now I am afraid some time ago), ten propositions which I suggested would be sound.
Viscount FINALAY : I thought perhaps this document was something new.
Sir JOHN SIMON : No, my Lord. Now, my Lords, if I may just take the compartment which I propose to deal with next, and will deal with as briefly as I may, the compartment is the Hudson's Bay compartment of the case, which I wish to deal with, not for the purpose of going over old ground, with which, as the Lord Chancellor has said, your Lordships are now all painfully familiar, but for the purpose of addressing myself quite specifically to a suggestion, or rather two suggestions, which have been made by the Dominion of Canada in argument on the other side. There are two things which my learned friends have advanced on this part of the case which I wish to challenge, and which I think I can overthrow. The first is the suggestion that a height of land as the limit of the Hudson's Bay area is a new–fangled nineteenth century invention ; if I may quote the language of my learned friend, Mr. Geoffrion, in the Shorthand Note at page 676 at line 20, that “in 1763 it had not been dreamed of,” or, if I may again quote him at page 669 at line 35, where he says, “ There was no suggestion of height of land being the limits of Hudson's Bay until quite recently.”
The LORD CHANCELLOR : Until 1815.
Sir JOHN SIMON : Yes, my Lord, 1815 or 1814 ; or, in a third passage, where he says : “ The Hudson's Bay Company thought of a new line,” meaning the height of land, “ in 1814 ” ; and, indeed, I think suggests that they borrowed it from President Monroe. I am going, I hope, to satisfy the Board, and it is material that I should, that that view completely overlooks, and indeed shuts one's eyes to, material which I propose to take in order ; and I think I can satisfy the Board, in fact, that though, of course, the Charter of the Hudson's Bay Company, as we all know, did not in express terms take you back to the landward boundary which I suggest, still I think I can satisfy the Board that contemporaneous maps, maps at the material time, and documents at the material time, both most strongly indicate that that was the view. The second point which has also emerged in the course of the argument for the Dominion of Canada on this, is this : My learned friend, Mr. Macmillan, examined some material, which at a late stage had come to the notice of the parties, which had to do with the way in which this question of the extent of the Hudson's Bay territories was dealt with in the first half of the nineteenth century, and down to that House of Commons Committee in 1857. Your Lordships will remember that my learned friend examined the various legal opinions which were given at that time, and suggested that the result was quite inconclusive. I agree, of course, that that is much less important than the first point I have just mentioned, because it arises later, it arises after the event ; but I propose to show your Lordships, and I hope to satisfy your Lordships, that, as a matter of fact, the view that the Hudson's Bay territory extended to the height of land was a view which not only prevailed, as I have already said, in the
eighteenth century, but that, when the matter came to be considered by legal authority on the one side and on the other, the British Government itself came to the definite conclusion, and announced it to the Hudson's Bay Company, that they accepted that as the true view of the matter ; and that is the reason why in 1857, when the House of Commons Committee investigated the proceedings of the Hudson's Bay Company, you will not find in the volume, though it is a most elaborate enquiry, a lot of discussion about the extent of the territory, because as a matter of fact it had already been accepted, and in terms asserted, by the British Government, to be the area which we claim. Now those are the two points that I wish to make about Hudson's Bay.
Viscount FINLAY : Was that by agreement ?
Sir JOHN SIMON : I will call attention to a document, issuing from the Colonial Office to the Hudson's Bay Company, in which they say so in terms. That is the reason it did not become controversial afterwards. To take the first of these two matters first (and, of course, it is the more important) how does it really stand ? Is it correct to suggest that “ the height of land,” “ the sources of the rivers,” and limits of that sort are a nineteenth century new–fangled notion which has been inserted into this argument at a stage so late as to be quite unimportant ? It is quite contrary to the facts and documents which are available to the Board. It is to be observed in the first instance (I will summarise my points) that, of course, the language of the Charter of 1670 itself (your Lordships remember it is in Volume II, page 367, but I do not ask your Lordships again to look at it unless you wish to) the Carolian Charter, indicates, or at any rates suggests, an area which is limited by some such consideration, because it grants in terms “ lands and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, etc. flowing into Hudson's Bay,” so that you start with this, that the actual text of the Charter–of course, I am not saying that this does not still call for exegesis—
The LORD CHANCELLOR : The actual words are on page 368.
Sir JOHN SIMON : I only remind your Lordships because I know very well, as the Lord Chancellor said, these things are becoming very much trampled and well worn ; but it is to be noted, in this connection, that the very language of the document itself, its express terms, speaks of “ lands and territories upon the countries coasts and confines of the seas, bays, lakes and rivers,” that is on page 368, line 14, “ Together with all the lands and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid.” Now if you will carry your eye back, you will see that the “ seas, bays, lakes, rivers, creeks and sounds aforesaid ” are to be found a few lines higher up as being, “ All those seas, straits, bays, rivers, lakes, creeks and sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits, commonly called Hudson's Straits.”
Lord WARRINGTON : It seems to me very important to bear in mind that what they got was the lands and nothing else, the lands within the entrance to the Hudson's Straits.
Sir JOHN SIMON : Yes, that is it, my Lord.
Viscount FINLAY : There are two grants, are there not, there ? There is the grant of the sole trade and commerce of all those seas and straits within the entrance, and then there is a grant of land.
Sir JOHN SIMON : Your Lordship is quite right, the monopoly of the Hudson's Bay Company was, as Lord Finlay points out, really a double monopoly : it was a monopoly which was territorial in a semisovereign sense, so much so that, by the terms of their Charter, they were at liberty to set up a police force, and perhaps an armed force and, of course, to administer justice (they were much more than a Province or a Colony, they were an imperium in imperio, like the British South Africa Company was at one time) ; in the second place, over the corresponding area, there was a monopoly of trade ; those were the two things. I do not want to spend time on those, unless it is the wish of your Lordships, but I do point out, in the first instance, that there is nothing very surprising in supposing that people who had to draw a map or expand the language and meaning of this Charter should have supposed that it went to the height of land. The case of the Hudson's Bay Company is an easier case for height of land, than my case ; no doubt it is.
Viscount FINLAY : It is different altogether.
Sir JOHN SIMON : Whether different altogether your Lordships in due course will determine ; I am saying, at any rate the language is more elaborate, and therefore it is easier to reach the conclusion.
Viscount HALDANE : There is no evidence to show there was the height of land which they thought there was.
Sir JOHN SIMON : I may perhaps be wrong, in these scientific matters one is easily misled, but I should have thought that dealing with a country which was known not to be as flat as a table, but to be a country of a very considerably mountainous character, très accidentéas the French might say, I thought it followed inevitably there was a height of land.
Viscount HALDANE : It does not tell you there is a height of land in the document.
Sir JOHN SIMON : It does not.
The LORD CHANCELLOR : The words are, “ on the rivers which lie within.” That carries you up.