The Labrador Boundary

Privy Council Documents

Volume XII


9 Nov., 1926.

Sir John Simon.

9 Nov., 1926.

Sir John Simon.

The Lord Chancellor.

Sir John Simon.

9 Nov., 1926.

Sir John Simon.

9 Nov., 1926.

Sir John Simon.

9 Nov., 1926.

Sir John Simon.

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were sent to Hudson's Bay by one of the ships appointed to sail on the 8th instant, I am to remind you that the proceedings for the purpose of giving effect to the Resolution of the House of Commons of 5th July, 1849, have not led to any reference to the Privy Council, and that the question raised by that resolution stands in the following position: Steps having been taken as you are aware, to obtain from the Hudson's Bay Company a statement of its claims, that statement was duly submitted to Her Majesty's Law Advisers, and Her Majesty's Government received from them a report that the claims of the Company were well founded. It was observed in that report that, with a view to the fuller satisfaction of the House of Commons, and the parties interested, it would be advisable to refer the inquiry to a competent tribunal, and that the proper method of raising a discussion upon it would be for some person to address a petition to Her Majesty, which petition might then be referred either to the Judicial Committee, or the Committee of Privy Council for Trade and Plantations.” The last paragraph, which I have no doubt you have observed already with your eye, is very important for me. It is : "Such a petition was therefore essential to the complete prosecutions of the inquiry, Lord Grey accordingly gave to certain parties in this country, who had taken an interest in the condition of the inhabitants of the Hudson's Bay Company's territories, and had questioned the validity of the Company's Charter, an opportunity to prefer the necessary petition if they were so disposed, but, for the reasons which it is unnecessary to repeat, they respectively declined to do so." Then observe how it ends : “Lord Grey”—that is the Secretary of State—"having, therefore, on behalf of Her Majesty's Government, adopted the most effectual means open to him for answering the requirements of the address"—the House of Commons says, what is the boundary?—“has been obliged, in the absence of any parties prepared to contest the rights claimed by the Company, to assume the opinion of the Law Officers of the Crown in their favour to be well–founded.” I therefore make entirely good, I trust, the second point which I sketched to your Lordships this morning. I have not only shown, I trust, that this conception of the Hudson's Bay area being bounded by a watershed or height of land is as old as the middle, at least, of the eighteenth century, and was not at all a new–fangled invention, but I trust that it is now plain that the Government of the day, not the Law Officers, the Secretary of State, accepted in 1850 that this was the boundary.

The LORD CHANCELLOR : It was re-opened in 1857, you remember.

Sir JOHN SIMON : I do, my Lord ; I have not forgotten it ; but if you examine what it is which is asked in 1857 it is really this. I quite appreciate that Sir Richard Bethell says in 1857 it would be well to have this decided by the Privy Council. The real question he is asked is this : Would it be proper for the Crown, first, to challenge the validity

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of the grant, and, secondly, if machinery were to be adopted to ascertain what its true ambit is, what machinery should that be ?

The LORD CHANCELLOR : What are the geographical limits.

Sir JOHN SIMON : I meant that.

The LORD CHANCELLOR : It is not very important, because, after all, what happened in 1857 is not the important thing ; it is the view which was taken in 1763.

Sir JOHN SIMON : I quite agree, my Lord. I thought it my duty to do what I could to show in a consecutive form to what extent it may be fairly claimed by the Hudson's Bay Company that the kind of boundary they had insisted upon was a boundary which was not only approved of by the Law Officers—I speak of them with all respect, but they do not always decide matters of policy—but was formally adopted by the Secretary of State. I think I am right in saying (the Lord Chancellor has it before him and I have a copy here) in 1857 what is really being asked of Sir Richard Bethell is this : it is suggested that this charter of Charles II, could be impeached on various grounds, vagueness, illegality, and all the rest of it. The first question is, is it not, Would it be proper ? It is page 402: " Whether you think that the Crown can lawfully and constitutionally raise for legal decision all or either of the following questions." That is the question asked Sir Richard. He is not asked his advice on the facts ; he is asked whether he thinks it is lawful and constitutional for the Crown to raise the question. He says as regards the question of the validity of the charter, " I do not think you ought to raise it at all." Then he says as regards the validity of the territorial claim, if that was to be raised it would have to be decided by the Privy Council. I might perhaps observe in passing—and my learned friend, Mr. Macmillan, will forgive me—that it was a slip to describe the author of this letter from Downing Street as though he was the Secretary of the Hudson's Bay Committee, House of Commons ; This letter is signed H. Merivale, and he is Mr. Herman Merivale, a very important public figure in the middle of the last century, at one time Under Secretary for the Colonies and later on extremely well known in a Public Department as well as being a man of letters. I only want to show that the real question that Sir Richard was asked was not really to express a view as to whether the area was or was not what was suggested ; he was asked a question of constitutional propriety and he advised by saying that it would be quite improper to challenge the claim of these people to have a charter, and as for what its area is, the only judicial conclusion to be reached about that would be to ask the Privy Council.

Viscount FINLAY : Nobody would take it on.

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Sir JOHN SIMON : I quite agree, if I may say so, with the Lord Chancellor, that these matters are only incidentally relevant, but I trust that I have at any rate established all I wanted to establish with regard to the Hudson's Bay Territory, and I. claim to have established it ; first, that in 1763 the statesmen and draftsmen who were contemplating dealing with newly-acquired areas, having before them, as we must suppose, such a map as the map of 1755, or what you please, must be treated as having regarded the Hudson's Bay territory as a territory which, on the Hudson's Bay side, went up to the watershed. If I make good that point, then, of course, I have gone one very important step on my way, because it would be rather a remarkable circumstance (if I may use the pointer) if there already was, in the view of the statesmen of 1763, a horse-shoe shaped bite taken out of this territory here,and when they come to make the grant of what is admittedly territory which is going to be annexed to Newfoundland, starting as they do at exactly the same point that The Hudson's Bay territory started from, because they do not start from Cape Chidley, they start from the entrance to Hudson's Straits---

Viscount FINLAY : What is that ?

Sir JOHN SIMON : That is Cape Chidley. It is exaggerated vertically many times in order to give your Lordships a proportional view. It would be a remarkable thing if the statesmen dealing with the situation as it was, did not proceed on this view, that you already had a line which was running notionally along the watershed, which would mark the divide between the area which threw the water into Hudson's Bay and the area which threw the water on to the Atlantic Coast, and still more remarkable when you remember that the language they use is " The coast of Labrador from the entrance to Hudson's Streights," which is the precise language that is used by the Hudson's Bay charter. Therefore, unless you are to suppose that they contemplated starting from this part where I am resting the pointer, and travelling along some different line with the result that you get a sort of curious undistributed middle, the inference is, I venture to think, a strong one (if the language is one which can be fairly so interpreted) that by the coast of Labrador beginning from the entrance to Hudson's Straits, they meant, on the top, the other half of this. That is all I wish to say about Hudson's Straits. I am sorry it has occupied as long as it has.
Might I put before you in a rather more complete way what my learned friend, Mr. Macmillan, very usefully called the calendar of 1763. My learned friend, of course, was quite accurate in the references which he made, but he did not include them all, and I have taken the liberty of having a little calendar drawn up in order of date for the year 1763 with a second column which gives the references in the green book or red book to the document, and a short description of the different documents. Your Lordship will observe at once that it was an extremely busy year. The reason that so much had to be done was, as I indicated to your Lordships briefly yesterday afternoon, that when you came to

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the midsummer of this year 1763 you would have found Whitehall and Downing Street in a fever of anxiety about the situation in British North America, in view of the Indian war. I am going later on to ask your Lordships to have this table of dates before you, that you may see what was the information that was reaching this country ; because it explains very clearly indeed why the proclamation of October came to be made. Would your Lordship just glance down this diary ? You will observe that I have one or two extra documents to introduce. First of all February 10th, as we all know, on page 330 of the first volume, is the actual date of the Treaty of Paris. Then the next document of March 15th, has been read to the Board, but now that we have this matter, I trust, in a more complete shape, I venture to think the gloss put on it by my learned friend Mr. Macmillan is not quite accurate. It is Volume II, page 386. I am not quite sure whether it has been appreciated, I confess I had not appreciated it myself, that as a matter of fact there was a very sudden change of policy in reference to the relations between Newfoundland and the mainland which, when you go through these documents in the months of March and April, will become evident. Your Lordships may have observed it, I must admit I had not myself.It is this. Down to a very late date in March there was no intention of putting any territory in Labrador under the Governor of Newfoundland at all. All that was intended was just to have some cruisers inspecting the coast. That was the conception which was carried down to a particular point, when, within the course of quite a few days, three or four days, the policy was changed, and the alternative policy was adopted of securing for Newfoundland a territorial footing upon Labrador.
You will find that this is quite clear when one takes these documents in order. If you will take page 386 you will perhaps remember that in that document the Lords of Trade indicated an alternative. They said : “Now as far as regards this Labrador coast, we shall have to do one or other of two things ;” and my friend Mr. Macmillan urged that at the date that they wrote this document the alternative which was ultimately adopted was the second of these two alternatives. My friend is wrong about that, I think. At page 387, line 32 : “As to the Concurrent Fishing on the No. East Coast of Newfoundland, in case any of your Majestys Subjects should engage in it, much will depend upon the Temper, Judgement and Discretion of the Officer of the Navy, who shall be appointed to superintend that Fishery, and who certainly should be instructed to adhere to the Sense & Execution of the 13th Article of the Treaty of Utrecht with Justice to the Subjects of both Crowns. Upon the Coast of Labrador” —now this was the view on the 15th March— “it will be impossible to prevent the French continuing to have the full benefit of their former should be made there.” I do not think the stress there is upon private occupation ; it really means, unless you treat it as you may treat a plantation in a colony. “Or sufficient Cruizers stationed with instructions to the Commanders to seize all French ships coming Commerce with the Indians of that Coast, unless some British settlement within a certain Distance of that Coast.” What happened was

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that originally the second of those alternatives was adopted ; there was no idea of extending territorial jurisdiction on the mainland of Newfoundland at all, and that suddenly a change was made, because it was realised that a more complete authority upon the mainland was necessary. That will be made clear by the documents which follow. First, there is a new document ; I am sorry I have to introduce it, to complete the story. That is the 17th March. I must now hand your. Lordships these new documents. It is from Lord Egremont to the Lords of Trade. There is a bundle here of some new documents, and in these new documents the communication from Lord Egremont of the 17th March, 1763, is Document No. 10.

Mr. MACMILLAN : We have not seen these.

Sir JOHN SIMON: You will find that several of them have already been read, we have already printed them ; but as a matter of fact this one is a new one, March 17th, 1763: " My Lords, I have the King's Commands to acquaint your Lordships, that his Majesty having taken into Consideration your Representation of the 15th instant,"—that is to say, having taken into consideration the document I read last in Volume II, at page 386—" does not judge proper that any Steps should be taken thereupon untill Your Lordships shall have fully complied with the Directions given you by His Majesty's Orders, in my Letter of the 8th. I am therefore commanded to signify to Your Lordships His Majesty's pleasure, that you do, without loss of Time,"—now see what it was—" prepare a Draught of Instructions for the Governor of Newfoundland for this Year, with such alterations from, or Additions to, the Instructions, which have been formerly given in time of Peace, as Your Lordships shall judge necessary or expedient, in order to render them conformable to the stipulations of the Definitive Treaty, which I have already transmitted to you. As it is the King's Intentions that the Governor of Newfoundland shall sail as soon as possible "—they usually left this country in the month of April— “I am commanded to signify to Your. Lordships His Majesty's Pleasure that you do acquaint me, for the King's Information, how soon he may expect the Draught of Instructions above-mentioned.”
At that stage there is no request to draw a Commission or to make instructions which will include anything but the Island of Newfoundland. Then if you will go back to my Calender you wilt find that on March the 21st, Document No. 11, the Lords of Trade reply. They say : “In obedience to your Majesty's commands signified to us by the Earl of Egremont, one of your Majesty's principal Secretaries of State, in his letter of the 17th instant, We have prepared and humbly beg leave here—with to lay before your Majesty, ‘a Draught of instructions for the Governor of Newfoundland for this year, with such alterations from or additions to the Instructions which have been formerly given, in time of peace, as we judge necessary or expedient, in order to render them conformable to the stipulations of the definitive Treaty’ which has been transmitted to us by his Lordship. It may be proper for us


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