Sir JOHN SIMON : One is clear that water would run down hill even in Labrador. Therefore, if you give people the land upon the rivers—
Lord SUMNER : Sometimes the rivers are frozen in that district.
Sir JOHN SIMON : I agree, and sometimes for the greater part of the year, but even then water will not run up hill.
Viscount HALDANE : The source of a river and the land in which it lies may be of various kinds. It may be mountains, it may be high up and it may be a height of land, or it may be just sufficiently not flat to enable the river to flow.
Sir JOHN SIMON : Your Lordships will understand me throughout to be using the expression “height of land” not in order to suggest any pinnacle or peak, but in order to use a phrase, common I believe in the New World, for describing what we ourselves would describe as a watershed. I think watershed is a much better word.
Viscount HALDANE : If they had said watershed, it would have been understood.
Lord SUMNER : It means the same thing.
Sir JOHN SIMON : It means the same thing ; I only use this expression, which is a new expression to me, because I gathered in the New World it is used instead of watershed.
Viscount FINLAY : I had never heard it before.
Sir JOHN SIMON : Nor I, my Lord, but in English and in French it is to be found in the maps. Let me use “ watershed, ” because that is what I mean ; I only used it because I desired, as much as might be, to adapt our linguistic peculiarities to those of the New World.
Lord WARRINGTON : In some instances, although there is a watershed, there is hardly any height of land. I am thinking particularly of the watershed between the Thames and the Avon in the neighbourhood of Bristol.
Sir JOHN SIMON : Your Lordship is, of course, quite right ; in other words, the slope of a roof of a shed may be very steep–pitched, or it may be a very shallow slope.
Viscount FINLAY : It is difficult to argue from one case to another. The grant in the case with which we are concerned is of “ the coast. ” In the Hudson Bay case the grant is “ together with all the land and territories upon the countries, coasts and confines of the seas,
lakes ” and so on “ aforesaid, not already possessed by any Christian Power.” That is very different language indeed from the language that we have to deal with, applicable to Newfoundland and to Labrador.
Sir JOHN SIMON : Yes, my Lord. And may I make this observation to my Lord Finlay, who has been good enough to make that comment ? I am sure that my Lord appreciates quite clearly that I am addressing myself, in a compartment, to a question as to the nature and extent of the Hudson's Bay territory ; and it is really impossible for me to argue the case except in such a compartment.
As regards the question of whether or not you ought to use such language as “ territory on the coast of Labrador,” your Lordships will recall that yesterday afternoon I was calling attention to a number of passages in which the word “ territory ” is used ; but I agree with Lord Finlay, if I may be allowed to say so, quite definitely (and indeed I conceded the point a few minutes ago), that the language of the Hudson's Bay Charter leads one more easily and readily to the watershed than the language of the documents which your Lordships have to construe.
For the moment, however, I am not doing that. I am not reading this passage in order to prove what my “ coast ” means. I am reading this for the purpose of saying that the Hudson's Bay territory did in fact run up to the watershed ; and that it is not true that the Hudson's Bay Company invented that notion in the nineteenth century, but it has in fact always been the true view, and, indeed, it is asserted contemporaneously in both maps and documents.
That is my point, your Lordships see, because, of course, as Lord Finlay remembers, although it is a long time ago now, when I opened this ease I built up my case by treating the peninsula of Labrador as a defined area, the boundaries of which, or the outline of which, was more or less known. So that we are not dealing with some terra incognita in urging that you had already got appropriated to the Hudson's Bay Company one slope, that you had already got appropriated to Quebec another slope, and that therefore there was an inference to be drawn in construing difficult words as regards a third slope. But, of course, what I am now saying is addressed to the area which is called the Hudson's Bay area. Your Lordships appreciate the point, which is not directly bearing on the question of what is the grant upon which I have to rely. I conceive that it is not necessarily in my favour, as my Lord has pointed out ; but I was observing that the first thing to notice is that the actual language of the grant in the Hudson's Bay Charter would naturally indicate that at any rate territory upon rivers or upon the coast of rivers was included. I hope that your Lordships will recall how yesterday afternoon a very similar expression, which is on page 1070, was noted by your Lordships, and more particularly by Lord Warrington in reference to the Labrador Newfoundland itself. Your Lordships will remember this phrase which we had twice over about
territory on the coasts of Labrador ; but that, of course, will come later on.
Lord WARRINGTON : And you may add to that that the territory which was given to Hudson's Bay by the Charter is uninterrupted territory. It is not merely narrow strips by the side of the rivers, but it is uninterrupted territory, because it was to be called Rupert's Land. The whole area was so called.
Sir JOHN SIMON : It was, my Lord.
The LORD CHANCELLOR : They got an express grant of minerals.
Sir JOHN SIMON : Yes, my Lord, they got an express grant of minerals, and I am going to call attention to a very interesting contrast between the two things. I understand Lord Warrington to be observing that whether I am correctly tracing out the landward boundary or not, at any rate it is clear that you get a continuous sheet of territory.
Lord WARRINGTON : Whatever the boundaries are, it is a continuous sheet of territory inside them.
Sir JOHN SIMON : Yes, my Lord. That is the first point that I want to make upon this.
Now, my Lords, when does “ height of land,” or rather “ watershed,” expressly appear ? Is it true that it appears only in the year 1814, or the like ? I have ventured to challenge what my learned friend, Mr. Geoffrion said, but if I may be allowed to say so, he had just excuse, because in that passage which was read from the ManitobaOntario argument, interlocutory comments, the then Lord Chancellor, Lord Selborne, did suggest that it was a nineteenth century idea. But that only shows that the matter was not at that moment being presented upon very full information as to the old history, because it is quite contrary to the facts.
Now will your Lordships kindly observe the map which, with the permission of the authorities, we have put up on the board there. There is the original British Museum map of John Mitchell of the year 1755. It is better than the one which Lord Sumner has before him, because, of course, it has not got the later marks upon it. Your Lordships have only to inspect that map–and if I may say so I think it really merits inspection upon this point–in order to see that there is actually there indicated in 1755 a line which is marked “ height of land.”
The LORD CHANCELLOR : “ Land's height” is what it says on the map here.
Sir JOHN SIMON: “Land's height.”
Viscount HALDANE : It does not show you much of Labrador.
Sir JOHN SIMON : No, my Lord. I am, of course, dealing with Hudson's Bay, as your Lordship appreciates.
Viscount FINLAY : On this map of Mitchell's, do you regard the expression, “ line of height,” which you say appears there, as denoting the watershed ?
Sir JOHN SIMON : Yes, my Lord. The expression is “ land's height,” the genitive. The inscription is this : “ Bounds of Hudson's Bay Territory,” I think. Then immediately afterwards you get “ Land's height.” It is not a question of private opinion ; but anyone who inspects the map and observes the way in which the rivers are depicted, can see at once that the line, which is a wavy line, and which is marked as “ Bounds of Hudson's Bay,” is, in fact, a line which is designed by the cartographer to indicate where you get a watershed.
Lord SUMNER : It actually does go round the heads of two streams. You have the words “ Bounds of Hudson's Bay ” and the words “ Land's height.”
Sir JOHN SIMON : I am much obliged to your Lordship.
Lord SUMNER : That is in King George's map.
Sir JOHN SIMON : Yes, my Lord.
Viscount HALDANE : Does that come into Labrador ?
Sir JOHN SIMON : It is the same in both. Now, as your Lordships are so kind, will you, before you leave that map, allow me to add this : if your Lordships inspect the map, you will see that that wavy line, which beyond all question is a watershed line, has got attached to it in Mitchell's map the statement : “ Bounds of Hudson's Bay under the Treaty of Utrecht,” a Treaty of 1713. While the map is before your Lordships, I was just proposing to read the Treaty of Utrecht, and see what it said. It is on page 329 of Volume I, and it says this : “ The Most Christian King shall restore to the Kingdom and Queen of Great Britain to be possessed in full right forever ”–now, my Lords, what ?–“the Bay and Streights of Hudson, together with all lands, seas, seacoasts, rivers and places situate in the said Bay and Streights, and which belong thereunto.” So that here you have as plainly as possible, the contemporary exposition of what Hudson's Bay territory is and upon John Mitchell's map of 1755–which is probably the most authoritative map available at this critical
period–you have this wavy line, which beyond all question is a watershed. Of course it is a watershed. No one can inspect this map for five minutes without seeing that ; and it is in terms stated upon the map to be the boundary under the Treaty of Utrecht. How, after that, it can really be seriously said by anybody who has studied the documents in this case that the watershed or height of land in this case is a new–fangled invention which nobody ever dreamed of in connection with Hudson's Bay until 1814, passes my comprehension. The fact is that both the maps and the documents are full of this suggestion, and whether it is right or wrong–because it is perfectly open for a tribunal in 1926 to say that it is wrong ; nobody has ever decided judicially that it is right–to say that it was not a common understanding at the time, is to say something which is quite contrary to the recorded facts.
Lord WARRINGTON : The Treaty of Utrecht used almost the words of the Charter.
Sir JOHN SIMON : It did, my Lord, deliberately.
Lord WARRINGTON : “ All lands, seas, seacoasts, rivers and places situate in the said Bay and Streights, and which belong thereunto.”
Sir JOHN SIMON : It did that deliberately, my Lord.
Lord WARRINGTON : Then it says “ no tracts of land or of sea being excepted.”
Sir JOHN SIMON : Yes, my Lord. A very amusing diversion has been attempted by my learned friend Mr. Macmillan with regard to this point. I watched his performance with the greatest admiration, as I need hardly say. He has been anxious to lay all the stress on the effort of the Hudson's Bay Company after the Treaty of Utrecht to get rather more than the watershed or the height of land gives them. But if your Lordships will recall what it was my duty to address to the Board about a fortnight ago, I spent a good deal of time, and I trust that I did not unduly weary the Board, in pointing out the explanation which is written quite plainly upon the documents. The explanation is that when the Treaty of Utrecht came, the British position was so strong, and the French position was so weak–the Marlborough Victories had driven the French to their knees–that for some years before the Treaty of Utrecht, you actually find the Hudson's Bay Company doing what in the circumstances was very natural, namely, trying to prompt the British Government to make an extended claim on their behalf to a boundary, which indeed in the documents is not described as the boundary to which the Hudson's Bay Company is entitled, but it is described as the boundary which they would like to have. No doubt it is perfectly true that they then proceeded to say to the British Government : “Now you have got the