IMAGE EVALUATION TEST TARGET (MT-3) fe Q^ /. fA 1.0 21 12.5 1/ ■ I.I 1.25 nil ^ m ^ us, 2.2 2.0 m U 11.6 iV CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian institute for Historical IVIicroreproductions Institut Canadian de microreproductions historiques 1980 Technical Notes / Notes techniques The Institute has attempted to obtain the best original copy available for filming. Physical features of this copy which may alter any of the images in the reproduction are checked below. D D D Coloured covers/ Couvertures de couleur Coloured maps/ Cartes g6ographiques en couleur Pages discoloured, stained or foxed/ Pages ddcoiordes, tachet^es ou piqu6es Tight binding (may cause shadows or distortion along interior margin)/ Reliure serr6 (peut causer de I'ombre ou de la distortion le long de la marge intdrieure) L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. 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The following diagrams illustrate the method: L'exemplaire film6 fut reproduit grAce A la g6n6rosit6 de I'dtablissement prdteur suivant : La bibliothdque des Archives publiques du Canada Les cartes ou les planches trop grandes pour dtre reproduites en un seul clich6 sont film6es d partir de I'angle 8up6rieure gauche, de gauche d droite et de haut en bas, en prenant le nombre d'images n6cessaire. Le diagramme suivant illustre la m6thode : 1 2 3 1 2 3 4 5 e aP^i::^ jU- -eo-*-* tf*^^^ ^-^^^^^ , ;. 1' ' '.ii; ..! ill" -Mi . . •.'.I TUB BOUNDARY QUESTION. . '., .liM '1;. BY THE HON. JAMES COCKBURN, Q.C. i . I .; . ' I. , 7 : . F-A.RT I. I ; • .' • ' ] I ■ 111 • t ' 'I ' ! ■' t ■ ■ ; By the Treaty of Paris in ITGS, Prance ceded to Great Britain, Canada and all her territories in North America east of the Mississippi and north of its source. The source of the Mississippi is traced to Lakis Itasca, in the State of Minnesota, in 47** S8' north latitude, nearly two degrees south of the present boundary between Groat Britain and the United States, consequently since 1763 from the Atlantic to the Eocky Mountains, within the confines of the Canada of to-day, the supreme power has been that of Gx'eat Britain, and the only territorial rights founded on title other than the constitutions granted to the Provinces, were those which had previously been conferred on the Hudson's Bay Company by the Charter of Charles II in 1670. Canada, or Nouvelle France, (for they may be said to have been identical,) included extensive territories which were undefined both towards the north and west. The French limits on the north were nearly always in dispute with Great Britain and tho Hudson's Bay Company prior to the cession of 1763. In October, 1763, the British Crown, out of these ceded territories, by aEoyal Proclamation established the first Province of Quebec, which was included within very nearly the same territorial limits as that Pipvi nee ho lds to-day. But in 1774 the British Parliament passed the Queboc'Xcl, which added largely , to the existing Province, taking in what afterwards became Upper Canada in the west ; and all those extensive territories south of Lakes Huron, Michigan and Superior, then part of the British possessions and now forming the States of Ohijj, Indiana, Illinois, Michigan and Wisconsin, which were " during His Majesty's pl8h- Bure annexed to and made part of the Province of Quebec," with a form of civil government and with defined boundaries towards the south and west, and abutting towards the north on the territory of the Hudson's Bay Company. The war of American Independence lost to England all her possessions south of the great lakes, and the southern boundary of the Pi'ovince of Quebec became there- fore changed to the international boundary between Great Britain and the United States, by the Treaty of 1783. The boundaries declared by the Quebec Act have not been otherwise altered, and in ascertaining the western boundary of the Province wo must still go south to where by that Act the western boundary was made to com- mence, which was the point of junction of the Ohio and Mississippi rivers. In 1791 another Act was passed by the Imperial Parliament called the Constitu- tional Act, which provided for the division of the Province and established a separate constitution for Upper and Lower Canada, when they should bo divided according to a line of division to bo settled by His Majesty in Council. By a Pi'oclamation made at Quebec, on the 18th November, 1791, by General Alurid Clarke, then Lieutenant Governor, the division line was recited as follows (shortly) commencing at a stone boundary on Lake St. Francis, &c., &o., thonoe to the Ottawa Eiver and ascending the said river into Lake Temisciraing and tlionce on a line dne north, until it strikes the boundary line of Hudson's Bay (iuclu'ling all the territory to the westward and southward of the said line to tho utinosi. <"xtent of the country commonly called or known by the name of Canada*). No boundary was defined by the Act itself. 9 f-r ^'■ •The clause In the parentheils has an Important bearing on the oaso. Tt Is allegod to 1 ave been ua •uthurlzed and is m conflict with other aatliority to be roferred to hereafter. _.' J [/"i^ w l\ tl The following events may be enumerated in their order : — The Union of Upper and Lower Canada in 1840. The Confederation Act of B. N. A., 1867. The Bapert's Land Act of 18G8, by virtae of which the title was acquired by the Dominion to all the Hudson's Bay Company's territories. The Province of Ontario as successor to the Province of Upper Canada, claimed that she was entitled to a portion of tlieae territories, and that her boundaries should be adjusted accordingly. This claim Haivfng'^en resisted by the Dominion, was referred to arbitration by the two Executive Governments, and an award was made by the arbitrators, Sir Edward Thornton, Sir Francis Hincks, and Chief Justice Harrison, in August, 1878, which assigned boundaries to the Province that included « large portion of the disputed territory. A Select Committee of the House of Commons having investigated the subject during the Session of 1880, reported that in their opinion the award hod not described the true boundaries of the Province of Ontario. With these preliminary remarks we now proceed. The boundary on the west, as defined by the Quebec Act (1774,) which gave the only statutory definition of the boundaries of the Province of Quebec, as subsequently divided by the Constitutional Act of 1791, into Upper and Lower Canada, and again reunited into Canada by the Union Act of 1840, is a line drawn from the Junction of the Ohio and MisHissippi rivers " northward to the southern boundary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay." The true rule of construction of an Act of Parliament, according to Chief Justice Tindall, is that it is the duty of the Courts to confine the enquiry to the words of the Legislature, nothing adding, nothing diminishing, and that no conditions or C[ualifications which are not found there shall be imported into an Act of Parliament. We have familiarized this rule by the more homely and perhaps more expressive way of putting it, thus: an Act of Parliament must be read within its own four corners. The only permissible exception to the rule is when the language is so ambiguous that it cannot be clearly interpreted by itself, in which case extrinsic 'evidence may bo admitted to prove the intention of the Legislature, but it is contended that in this statute the language is sufficiently jglain. The whole difficulty in this boundary turns on the mewlfng of norfAii'drS^^nd experts were called before the C/ommittce to explain the meaning of this word in its exact as well as popular sense. Col. Dennis, Surveyor-General Bussell and others said that this word as used in the Statute can only have one meaning, and that is dvie north, and that no other inter- pretation can be given to it, for if we are asked to deviate fi-om the true north there ^ould be equal reason for a deviation to the east as to the west and so vice versa, and that, therefore, by exhaustive process, northward taken by itself, that is without any condition or qualification, can mean nothing else than north. The point of junction of the Ohio and the Mississippi is about 600 miles south of Lake Superior, and a line drawn due north from the junction would pass near Fort William, and so follow on till it reaches the southern boundary of the Merchants Adventurers or Hudson's Bay Co.'s territory, said to be the height of land to the north of Lake Nipegon . This is the line claimed by the Dominion to be the true lino in accordance with the Quebec Act of 1774. The award of the arbitrators has •established a stone monument at the north-west angle of the Lake of the Woods and a line drawn due north from that point to English River as the extreme western bound- ary of Ontario. The monument at the Lake of the Woods was placed to mark a governing point on the boundary between the United States and Great Britain some Tears ago, and has no^significance in respect of the present dispute further than its having been now adoipied as"a'governing point by the awai-d. This awarded line is some 350 miles to the west of the Dominion line, and, if prolonged southward into the State of Minnesota it would strike very near to the source of the Mississippi. Ontario claimed far west of even that line; indeed, her claim extended to the base of the Kocky Mountains, but she seems now disposed to rest upon the award, and we may, therefore, treat her claim as being limited to the awarded boundaries. We shall nfine our present remarks to the western bor.udary in order to avoid confusion. II I II t The argument on the part of the Government of Ontario, in support of their case, is briefly this: — But in the first place it should be understood that both TOU'ties are agreed up to the junction of the two rivers. The southern boundary of Canada, according to the Quebec Act of 1774, commenced at the Bay of Chaleurs, thence westerly to Lake Erie, thence to the Ohio Biver, thence along the Ohio until it joined the Mississippi. The Dominion and Ontario part at that point; thd former starts due nortn because she says that is the boundary accoraing to the Statute. But the Ontario Government say — to continue their argument — that it was the intention of the British Parliament, when it passed the Quebec Act, that the boundary should follow the banks of the Mississippi to its source, that being northward, although far from due north ; that a due north course would have deprived a number of French settlements in Illinois which were located between where that line would have run and the river (which runs from the north>west) of the benefits of civil government which was, they allege, the main object of the enlargement of the Province, and they point to the> preamble of the Statute in sup- port oi that viQW ; and they say that if the Statute is doubtful in its language it was within the prerogative of the Crown, independently of Parliament, to dofitio the loundavies of its possessions (according to Md prerogative law the original jurisdic- tion over boundaries would soem to be vesteu in the King in Council) and that the Crown has extended the boundaries westward in order to meet the requirements of the case by the Commission issued to Sir Guy Carleton on the 27th December, 1774, appointing him Governor General of the said Province. This Commission, after describing the southern boundary, in the same words as in the Quebec Act, to the junction of the Ohio and Mississippi, has these words in addition: "along the eastern bank ol the said river" : turning to the Act, after the description of the teiTilories and boundaries, we find this clause : *' be and the same are hereby, during His Majesty's pleasure, annexed to and made part and parcel of the said Province ot Quebec," it is Contended that though PnrliAment had fixed the boundary, the clause ''during His Majesty's pleasure" was intended to preserve the prerogative which the Xing Bubsequently thought proper to exercice by the issue of the naid Commisr'ion, which does not, therefore, conflict with the Statute and which operates as a legal extension " along the eastern bank of the Mississippi to the southern boundary of the Hiiil^on Bay Company's territory." But the answer is that the Statute in the , deferential language of that day begins with: "May it therefore please your Most I Excellent Majesty that it may be enacted, &c." * and that the clause relied on only ; meant the pleasure to be exercised (if at all) by His Majesty through Parliament. But oven it be, as is contended, that there was a reservation in the Statute of the prerogative power as to boundaries, there is nothing to show that the power was ever exercised independently of Parliament, for the King's decree or edict could only have taken form, and effect through an Order in Council duly published by Eoyal Procla- mation, not as here, by the issue of a Commission to a Governor in which boundaries or other description of territories outside the Province ought in fact to have been given, eo as to extend the jurisdiction over other parts of British North America included, with the same Government as was shown oy the Koyal Instructions which accom- panied the Commission, and in which Sir Guy Carleton is styied the Governor General of Quebec and all His Majesty's territories in America dependent thereupon. He ia thereby required to regulate the peltry trade in the Indian territories, and is given " power to establish courts of justice for the Province at large, or separately, for its dependencies," the word " dependencies " in the Tnstructions, is peculiar, and follows the French idea and form of expression, for, by • "^i. 5aty of Paris, the French Kin^ ceded to England " Canada and all its dependencies, ' and by a Royal Charter of his predecessor, Louis XIV., Louisiana and Illinois had been declared to be dependencies of Canada or NouveUe France. Louisiana remained with France, but the Illinois country, on the east of the Mississippi, came to England as a dependency of Canada. If, then, we are to look outside the Statute and to the Commission for further light • It will be rememl* llieKlng. . * th« Acta of Parliament used to be in tlie form of Petitions addreued Co aa to ltd moaning, wo must also look at the iloyal instructionfl ; and, reading both togcthoi* as one ins'rumont, as thoy should bo read, it will be Hoon that no exercise of the itrorogative was callod in to extend tho Statute, but that the limit of British jurisdiction, and uot the limits of the Province, was what was intended. Besides, when we consiilor what tho Act has accomplished in bringing in large territory north and fouth of tho lakes, and that a considerable number of French eettlomcnts in Michigan, Ohio and Illinois were, in fact, brought within the enlarged boundaries of the Province*, and that the preamble has, in truth, boon carried out by the Act as it stands, the conclusion must bo, that so far, the argument has failed. Another Act of tho Crown which is strongly relied upon to establish an enlargement of Quebec co equal with French Canada, is the Proclamation by General Clark, of the division of the Province in pursuance of the Cdnstitutiohal Act of 1791. ThatStatul it will bo remembered, provided a Constitution for the civil government of Upper end Lower Canada respectively, to take effect when the Province of Quebec should be divided by His Majesty into twR separate Provinces, and that it should be lawful for His Majesty in Council to authorize the Governor or Lieutenant-Governor to fix and declare the day of the commencement of the Act within the eaid ProVinoes respectively. On the 12th September immediately following, a Commission, under tho Gre^t Seal, was issued to Lord Dorchester, appointing him Governor General of tho two new Provinces of Upper and Lower Canada, which has the following recital : — " And whereas wo have thought fit by our Order rnade in our Privy Council on the 19th day of August, 1791, to divide our said Province of Quebec into two separate Provinces by a lino to comraonce at a stone boundary on tho north bank of Lake St. Francis (here follows the description until it strikes the Ottawa river then) to ascend tho said river into Lake Tomiscan^inguo, and from the head of said lake by a line drawn due north until it striked the i^un^aiy une of'Hiidson's Bay; the Province of Upper Canada to comprehend all such lands, territories and islands lying to the west- ward of the said lino of division as were part of our said Province of Quebec, and the Province of Lower Canada to comprehend all such lands, territories and islands lying to the eastward of tho said line of division as were part of the said Province of Quebec." On tho 18th November following, at Quebec, General Clark, the Lieutenant (Governor, in the absence of Lord Dorchester, issued his Proclamation (Ont. Doc. 27) which recited that by an Order in Council in the month of Atigust last the Province of Qjobec ha' been divided into two distinct Provinces by separation of the same, according to ihe following line of division, namely, (herie follows word for word the eamo dosci iption as in Lord Dorchester's Commission to the end of " Hudson's Bay," and thou leaving out the remaining words of that description it proceeds to give these words instead) : " Including all the territory to tho westward and southward of the said lino to the utmost extent of the country, commonly called or known by the name of Canada, "f The Proclamation further recited the Statute of last Session, and the authority thereby given to His Majesty to authorize the Governor, or in his a'osenco tho Lient.- Govornor, to fix and declare the day of commencement of that Act, and that by another Ordor in Council of 24th of August a Koyal Warrant had boon issued com- manding tho Governor or Lieutenant-Governor to fix and declare the said day. *The following iettlements may be mentioned : Detroit, Mlamts, Mlchlllmaklnao, Bt. Vinoenne, Green Bay, Haultst. Mary, Prairie des Uhlena, Presqa'Isle on Lake Krle, and many others.— De Bougala- velle, French Posts, p. 80. lutUet aveudlsh Mebates on the Quebec BUI, Attorney General Thurlow said: "Now the House win remember that the whole of Canada as we allowed it to extend was not Included in the proclama- tion, that the bounds were uot oo-equal with It as It stood then, and that It is not Included in the present Act of Parliament." t At this date (1701) England had no territorial rights south of the International boundary estab* Ushed by the treaty of 1783, consequently this proclamation could have no application to the question of the Mississippi boundary which was entirely wlthlu United States territory. There Is an isolated unattached paper without beginning or ending, \^litoh Is called a copy of description of the line of division agreeing with Qeneral Ularke'a proclamation, to ba found on page 411 of the Ont. Doc. We are there referred to p. 389, where it is represented to be a oopy of a paper firesented to Parliament describing the line (this statement Is not verified or ooaflrmea in any way) his, if true, would be of no oonsequence, for the line was established by the Order In Counoll of IDtli AuguBti which was after the olose of the Sesslqn ; Parliament had nqthtnK to say on the a^bjeet of th» line ; on the contrary, the Statute expressly sanctions the establishment of the division line by the Orown. I Then followed tho Proclamation fixing the 26th day of December for the com- mencement of the Act within the said Provinces respectively. Given under tho Great Seal of the Province of Quebec. Witness Alurod Clark, Lieutenant-Governor, &c., &c. It will have been observed that there are two Orders in Council referred to in this Proclamation : one of the month of August (the 19th according to Lord Dor- chester's Commission) relating exclusively to the division line ; tho other of the 24th of August, relating especially to the day of tho commencement of the Act. The former is nowhere given, either among tho Ontario or tho Dominion printed papers, and it would seem not to be forthcoming now, but there can be no doubt thr* the line as established by that Order of the 19th August, is correctly recited in Lord Dorchester's Commission of 12th September, which, being under the Great Seal, is the highest and most conclusive evidence that can be produced of the face. On tho other hand, the Proclamation by General Clark (issued under the Seal of the Province) was only authoritative to tho extent of tho Eoyal Warrant which it recites, i.e., the fixing and proclaiming the day of commencement of the Act. The desoription of tho division line was an unauthorized recital, and could have no effect in the direction contended for — as an enlargement of the Province by the act of the Crown — even if it could have been so read, but we have a direct authority to the contrary, in the De Eeinhardt case, tried at Quebec before Chief Justice Sewell and Mr. Justice Bowen in 1818, when the Court held in the clearest language that the Statute and the Proclamation together only had the effect of dividing the already defined Province of Quebec, and did in no way extend the boundaries. Th"j judgment was based on the assumption that General Clarke's Proclamation had truly recited tho division lino, and without the knowledge of the correct de^nition of that line as disclosed ip the Commission of Lord Dorchester. Thesaving clause in the Quebec Act had reference only to the continuance together of the territories thereby united ; the wrds of the clause are " be and the same are hereby, during his Majesty's ploasui'e, annexed to and made part and parcel of the said Province of Quebec." The union of all those widely extending territories reaching to the Ohio ou the south, whose population at that time was exclusively French — was a political experiment of douotful expediency, and the reservation of tho power to sever the union was in keeping with the doubts of the propriety of bringing such an immense extent of country under French law which had been freely expressed by the speakers during the debate on the Bill. This saving clause was constitutionally acted upon through Parliament in 1791 when the time had apparently arrived for a severance of tho union, by a message from His Majesty informing Parliament of his intention to divide tho Province of Quebec into Upper Canada and Lower Canada, whereupon Parliament proceeded, in accordance with the message which is recited in tho Act, to provide a constitutional form of government for the new Provinces. All this -was done in accordance with strict constitutional rule, and at the same time in harmony with the saving clause, which in no sense, either expressly or impliedly, indicated that Etis Majesty's pleasure should he used in the enlargement of the already unwieldly (especially so in 1774) Province of Quebec. The conclusion which wo arrive at is that the argument as to tho enlargement of the boundaries by the prerogative of tho Crown entirely fails, and that the question must bo determined upon the reading of the Statutes and other evidence of title. The constitutional principle, that an Act of Parliament cannot be varied or suspended by an Order in Council, Proclamation, or other independent act of the Crown, cannot, of course, be impugned, but here tho effoi*t has been to establish an authorized exception to the rule, through the saving clause in question, and the Commission and Proclamation which have just been discussed. But the establish- ment of the two Provinces of Upper and Lower Canada under the Act of 1791, put an ond to any further contentions of the same kind ; that Act was full and nnal unless repealed or altered by Parliament, so that it becomes altogether immaterial in what form, as to description of territory, the Commissions to the respective Governors after that date were issued. 6 A brief earvey of the ground will assist a oorroot understanding of tlio difficul- ties of the oase. If it be followed to the end, where would the eastern bank of the Mississippi lead to ? The source of that river is known to be Lake Itusca, in the State of Minnesota, nearly in the same line of longitude as the Northwest Anglo of the Lake of the Woods, WS" west, and in 47° 38' north latitude. Botwoon that point and the Lake of the Woods there is a considerable height of land, which divides the two great water systems of the Mississippi and the Hudson, the former draining^ eonthwards to the Oulf of Mexico, and the Lake of the Wooda draining northwards through Nelson Kiver to the Hudson's Bay. But the Statute requires the line to lead to the southern boundary of the Hudson Bay territory. How is this to be aeooni' plished ? The arbitrators seem to have essayed it, by a line drawn due north from Lake Itasca through the height of land to the North-west Angle of the Lake of the Woods, about one hundred and twenty miles, where British ground is reached, and thence by following the same due north line to English River, a further distance of one hundred miles, or thereabouts. English River we must suppose to have been intended by the arbitrators as the southern boundary of > Hudson's Bay Company's territory. What is the re.sult ? That the arbitrators h;, o been obligod at the last to adopt a duo north lino in order to reach the point of destination. The word •* northward " in the statute has been made to do double duty, first in a north- westerly course along the river bank, and when that failed to reach tho goal, by a gap of over two hundred miles, then a direct northern line had to be run, as we hare seen, to English River, the assumed point of destination. This is the only mode of reaching the angle of the Lake of the Woods, consistent with tho Quebeo Act, as road accoi-ding to the Ontario view. But Ck}l. Dennis has su^ested that the height of land which divides the two great water systems of the Hudson and the Mississippi, and which lies immediately north of Lake Itasca, may be accepted as the Company's southera boundary. There is much to favor this view. This height of land was the southern boundary of Assiuiboia before the 49th parallel was established as the International boundary ; and according to Mr. D. A. Smith's evi- dence, the Company held forts or posts there, and their claim of title extended thus far. The effect of adopting this as the southern boundary, intended by the Quebec Act, would be to estaolish the height of land round the head of Lake Superior, as the Ontario boundary, and would leave the Province in possession of a tract of some sixty miles in width, including the Thunder Bay and Prince Arthur settlements; This suggestion is, however, in direct conflict with the award. But there is still another route to the Lake of the Woods, which is relied upon and which should also be explained. Shortly after the Treaty of Peace between Great Britain and the United States (3rd September, 1783), which defined the future boundaries between tho two nations, a new Commission was iesued by the Crown to Sir Guy Carleton (22nd April, 1786), which gave a new description of the bound- aries of the Province of Queoec. Commencing in the east at the Bay of Chaleurs, thence to the St. Lawrence, and ranning westwai-d through the great Lakes and their water communications, thence to Rainy Lake and along Rainy Rivor to the North- West angle of the Lake of tho Woods, and from thence in a duo west course to tho Mississippi* and northerly to tho southern boundary of the Hudson Bay Com- pany's territory. This Commission was relied upon as carrying the boundary to tho Lake of the Woods, but where next? In a due west course to the Mississippi is an impossible boundary, for the source of the Mississippi is south, as we have seen, eome 120 miles from the Lake of the Woods, and there is no Misbissippi to the west. But Ontario claimed to follow this lait due west course, if not to a Mississippi, then to a branch of the Missouri called White Earth River, which crosses the International boundary, running from the north at about 350 miles west of the Rod River. This, then, was the western boundary claimed by Mr. Mowat. The northern boundary I its evit stor *The deaoription up to this point follows the Treaty boundary of the United States, but that had nothing to do with the weMtern boundary of Oanada. It was afterwards discovered by the two Oovern- menta that the Mlnlsslppl was south, not west of the Lake of the Woods, and they chani^ed th» Imandary to the 49th parallel of north latitude. in the the I being the Northern Saskatohowan, taking in aa part of Ontario all the Province of ilanitoba, with a large portion of the fertile belt beyond its western line. In support of this view the theory was advanced that the Missouri of to^lay (or its affluent the White Earth River) was the Mississippi of the Quebec Act, but the evidence of the early explorers is too clear to admit of such a novel proposi tion. The story ot the Mississippi in its connection with our enquiry may bo thus briefly told : The upper Mississippi was discovered by Joliet and Marquette, who in 1673 voyaged to Green Bay, on Lake Michigan, in their bark canoes ; thence they ascended the Fox River and portaged to the River Wisconsin which they descended till it joined the Mississippi, which they then followed down to 33° north latitude^ passing the confluences of the Missouri, the Ohio, and the Arkansas. Those men understood and spoke the Indian languages, were accompanied by Indian guides, and -were amicably received by the Indian tribes inhabiting the river banks, from the notes of their voyage it is clear that the Mississippi of to-doy was the Mississippi of the Indians, and the Missouri of toAlay was the Indian Missouri. (Garneau, vol. 1, p. 255.) La Salle followed the same route in 1679, and in 1682 he succeeded in accomplishing the first voyage to the Gulf of Mexico, by the Mississippi River ^ancroft, vol. 2, p. 329). Through La Salle's dis- •covories and reports, followed by French settlements, Louisiana became a French posHOflsion of great importance. It at first included the gioat basin of the Mississippi bounded by the high lands, the nearest European possessions to the east lying on the Atlantic side of the Alleghany range. But the title to this vast territory was changed by the Treaty of Paris of 1763, whereby France with- andary, and that was not aft'octod by the chui go in the Bouthcrn boundary caused !iy the Treaty. The arbiti-alovs had only one '' two courses before them, to follow the Mississippi according to tiio Ontario contention to its source, or the due north line according lo the Dominion contention. It would seem, however, that the result aa it happens is nearly the same as if the river had been followed to its source (for the Lake of Itasca is in very nearly the same lino of longitude as the monument at the Lake of the Woods), and a due north line had tlien been run to English River, some 220 miles. But we must still revert to the Statute to see whether the process of arriving at that point has carried into cfiect the true boundary as there expressed, and in viewing the reasons for and against the Missis- sippi line, we must keep the same map before our mind's eye that Parliament had before it in 17*74, when the country was all British territory to the east of that river, and when a continuous boundary from the Ohio and the Mississippi junction north- ward was being provided for, and we have still to consider the case as it then stood, in order to arrive at a correct conclusion, and if for the reasons that then existed the eastern bank of the Mississippi would have been rejected as not being the true line, then we could never have got so far we^t as the Lake of the Woods, for it is clear that this Commission c<'iild not carry us there. The reasons against the Mississippi line we have already given. One was that it did not reach its point of destination, but left a gap of 220 miles, from Lake Itasca to English River ; that was on the assumption that English River (as decided by the arbitrators) was the point of destination, i. e. the southern boundary of the Hudson Bay territory. But if Col. Dennis' suggestion be well founded, that the height of land immediately north of Lake Itasca was, in 1774, the southern boundary of the Hudson Bay territory, that objection would fall to the gi'ound. But neither would wo in that case have reached the Lake of the Woods, for the height of land being the boundar}^^ of the Province to the north, would have led eastwards towards Lake •Superior and then northerly round the head of the Lake, so that the true boundary of Ontario and (Quebec in that view would be the height of land that loads from near the Labrador coast to the International boundaiy at the head of Lake Superior. There were two transactions which may be noticed hero, and which we think bear upon the boundary at the head of Lake Superior. 1. The purchase by the Hudson Bay Company from the Government of the Province of Canada, under an Order-in-Council of Ist July, 1854, of a considerable tract of land at Fort William, fronting on Thu.idor Bay. To this may be added the evidence afforded by the Company's map produced before the Committee of the House of Commons in 1857, whicia indicates the height of land some 50 or 60 miles to the west of Thun-ler Bay as their boundary. 2. The Treaty of 7th September, 1850, betwe^'* the Government of the Province of Canada and the Lake Superior Indians, wl.oieb}^ the height of land is acknow- ledged to bo the boundary of the Hudson's Bay Company under their charter. TboBO two admissions have, we think, an important bearing on the question of title to that part of the territory which lies west and north-wost of Lake Superior (within British liihits) ; and taken in conjunction with the tonitorial jurisdiction exercised Sy the Province of Canada, and since Confodonition by the Province of Ontai'io, should dispose of the question without regard to tbo duo north lino from the iunction of the Ohio and the Mississippi. Ev/th admissioiiH point to the height of land as the true boundary. Besides the Commissions and Proclamations just refonod to, there are many other Commissions and Proclamations and a multitude of maps, reports, historical refereacos and learned opinions bearing on the case, and forming a field for investi- gation that should occupy months — not days — to nlaster : and if it be conceded that an arbitration, is the proper Forum for the adjudication of this important case, stili it must he apparent that an unfortunato choice of ai bitratora was made, for the late Chief Justice was, as is well known, an overworked man, and the duties of bia Court demanded even more than the full measure of his time ; the other distinguished gentlemen who set with the Chief Justice were also men whoso occupations were lmpoi*tant and pressing, and though it has boon staled that they had read and con- sidered the pi'lnted documents that wore submitted to them, we l JlTIT II. Mil ' ' '' I \.'' (j '/ III', ,■■■ ■ ' I . '■. l' An argument has been advanoed, that the Dominion should be estopped frmn asserting her rights, because hor Ministers in past contests with tlie Hudson's Bay Company expressed opinions at variance with their position in the present dispute. That they denied the validity of the Company's charter is perfectly trae,«nd it is also true that they claimed loi" Upper Canada in 1869 the country west to the Bed River, for, undoubtedly, they had boon misled by the supposition that the Order in Council of August, 1791, had enlarged the Province of Quebec to the utmost extent of Old or French Canada, which was not the fact, as more recent investigation has established. The Dominion ministers failed in their contention with the Company, for the Imperial Government refused to annul or even question the charter, and. the claim of Upper Canada to the Bed Biver Settlement was found then to be just what it is to-day— « delusion. The wisest course under the circumstances, as all now admit, was that which was adopted by the Canadian ministers — the purchase of the territories from the Oompany. It would be strange, indeed, if because ihey had done their duty in pressing the views of their Government to a point proved to be untenable, the same ministers should not now with perfect good faith and consistency be entitled to main* tain the position that they were forced by a superior pow^ r to accept. It seems clear enough to us, to-day, that the Government in 1869, aaA, indeed, throughout its eon- tuntions with the Hudson's Bay Company, supported aa it was by the almost uoaiii< mous publiu opinion of the country, occupied really a very untenable position in regard to its claim to possess the territory west of Lake Superior. That the Froneh settlements had at one time extended up to and far west of the Bed Biver cannot be (' "ited ; what then ? That does not nelp the position of Ontario in the least, so fai ., her progress westward is concerned, for that was barred by a line of limitation. There may be a difficulty about determining the exact position of tha line, the Statute has to be construed one way or the other, but, when ouce asoertained, wo (moaning Ontaino) can go no further. The true position is lost sight of. Great Britain held the oontinont, so to speak, extending from ocean to ocean, and she chose to carve out of it, the> Province of Quebec, which so far from having 4»een made com- mensurate with old French Canada, was given a western frontier, o^nning, as wo have seen, at the junction of the Ohio and the Mississippu It matters not to us DOW what the French did in the west before the cession to Great Britain in 1763, whether they were simply intruders without claim of right or were engaged in actual conflict with the Hudson's Bay Company ? If there was any debateable ground left between them it came to Great Britain, not to Upper Canada. But as to the north- ern boundary the case is different. The Dominion, like the great Canute, has to retire before the advancing waves; what she loses Ontario gains, because the northern boundary of the Province of Quebec by the same Act of 1774 was made to march with the territory of the Hudson Bay Company wherever that might be. The effect sought to be given to the proclamation of General Clarke, of 18th November, 1791, and the claim that the Province of Quebec had thei-eby become co- extensive with the undefined Canada of the French, is aided and assisted by efforts to establish, bv evidence, that both in the north and in the northwest French afcendanoy and territorial rights bad been acquired. As regards the dominancy over the Hudson's Bay, straits, shores and rivers, we have the prior right by dis- covery claimed for France, although history had always heretofore given that honor to England, but the discoveries throughout this case have been very wonderf\iI. Then we have Fronch naval supremacy asserted, and the withdrawal of the French flag from those northern seas after tho Treaty of Utreeht (1713) declared by an eminent Q. C, to have really meant a proclamation of renewed sovereignty. From the new reading he has given to the lUth article of that treaty, which runs thus: *' It is how- ever, provided that it piay be entirely free for the Company of Q'lubec and all other 12 subjects of the Most Christian King (Louis XIV) to go by land or by sea wheresoever they please out of the lands of the said Bay," of qourse such perfect freedom of action meant nothing less. Then we have extracts from travels, references to history, the memoirs of the priests and the relations of the Jesuit Fathers to establish that the French fur traders and voyageurs penetrated to the most distont places in the north-west, to the shores of Lake Athabasca, to the sources of the Saskatchewan, to the very base of the Eocky Mountains long anterior to the conquest. But the conclusion is inevitable that when France ceded to England, in 1763, all her sovereignty in North America, excepting only Louisiana and her territory to the west of the Mississippi, all qu^tion of French territori.il right must cease, and the only remaining questions i.hatcanVariso are those between England as the supreme power, Hudson's Br/ Company, under a British charter, and the Province of Quebec as enlarged and establifihed by tb© Imperial Act of 1774, or as again enlarged, if it was enlarged, by the Act' of 1791, establishing the two Provinces of Upper and Lower Canada. All the mist and con- fusion imported into the case from French wars, conquests) discoveries and settle- ments, and the controversies arising therefrom in former times . should properly jfce ladd aside as having no legitimate bearing on this present territorial dispute. t U'ppei" Canada (or Ontario) must miiintain her right as a British Province, not Tinder any. imaginary inheritance of liglitM derived from France or the Frenob people, acquii*ed, if thej' everi were aoquiied in those remote regions, against the national flag whose supremacy was finally acknt-viedged by the Treaty of Paris. We will turn now to the consideruiion of the northern boundary of Ontario as delineated by the award : "Commencing at a point on the seuthern shore of Hudson Bay, commonly called James' Bay, Avhero a line produce I due north from the head of Lake Temiscaming would strike the said south shore, thence along the said shore westerly to the mouth of the Albany Eiver, thence up the middle of said river and the lakes thereon to the head of Lake St. Joseph, thence by the nearest line to the east end of Lao Seul, theiico westerly through iac Seul and the English Eiver to a point where the same Will be intersected by a true meridional line drawn northerly from the monument at the north-west angle of the Lake of the Woods." Much stress has been laid, as we have already indicated, upon the effect of the Order in Council of the 19th August, 1791, which established the line of division between Upper and Lower Canada, in its bearing upon the northern boundary. The recitals contained in the Proclamation of General Clarke and in the Commission of Loi-d Dorchester are precisely the same as regards the mere description of the line "from the head of Lake Temiscaming by a line drawn due north untiil it strikes the boundary line of Hudson's Bay. " The question is does this form of wordsmean the bay or the ten-itory of the Hudson's Bay Company. A boundary line is an improper expres- sion to apply to a bay which has a natural boundary of its own — a shore. The water would not be a bay without a shore. Both are required to form a bay ; but a bound- ary line it has not, for one of its parts is the boundary. You would not say the boundary line of England, but the shore or boundary of England ; but you would say the boundary line of France, because France has no natural boundary (towards the interior), and has instead an artificial line to define its limits. It is the word "line " Which makes all the difference. Then we must look to the boundary established by the Quebec Act, 1774. After leaving tho junction of the Ohio and Mississinpi the boundary runs " northwatd to the southern boundary of the territory granted to the Hudson 8 Bay Company." This, then, is the ' northern boundary of the whole pro- vince from west to east. That is legal notice of the charter, and thud the word line, inapplicable to a bay, is seen to be applicable to the territory --the western exten- sion of which the arbitrators have already discovered at English Eiver in defining the Western boundary man^ hundred of miles distant, and they ought to have had no difficulty in recognizing the' same territory dependent on the same title at the. Hud- son's Bay itself, the root, as it were, of that distant offshoot. The line of the Hudeonis Bay territory is clearly tho true construction of this limitation, and that line, according to the Company's contention, is the height of land which divides the water syatems of the Hudson and tho St. Lawronoo ; but the arbi- 13 trator9,hA^(^ owned' {lie dfvteibn line to the slidre of the bay, thus I'gnoriflg the Com- pany's tjtle in this part of the territory. "Wp have seen that in the De Reinhardt case this Order in Council was hf Id to have established tho division line between the two provinces — nothing more. No ejxtension of limits in any direction ; and since its date (19th August, 1791,) the sub- ject of the Hudson's Bay territory has been twice investigated by Select Committees of tho House of Commons. On the last occasion (1857) on oxhaustive enquiry took pliace into the territorial rights, claims and possessions of tho Company. A map, specjiilly prepared, exhibited the Company's territory, coloured green, to contrast with pink for what was admitted to bo Canada, and on it tho hoiglit of land leading from cast to wont, forming tho ^ggg water-shedlat a distniico of «b mfc two himdrod miles south o^ the bay, is the distinctly marked Doundary boLwoon tho two countrios. There 'fcould be no mistake. All present saw by the map tho diviolon about midway between Hudson's Bay and Lake Ontario. Sir George Simpson, the Governor of llio Company, was examined at great length. He claimed up to that boundary on behalf of the Company. ',Chief Justice Draper was also oxaminod, and put in a written stato- piento'ni bii'hiilf of Canada, and although he referred therein to the Statutes of 1774 and pf 17^1, ahd^ also to the OMer in Council land General Clarke's proclamation containing the Vords "to the boundary line of Hudson's Bay," yet he made no claim that by either one ©r other of these instruments had tho boundary been carried to the shore. On the contrary, he stated in the same paper, that " the union of tho Province:^ has given to Canada the boundaries which tho two separate P. uviucfs of Upper and Lower Canada had, the northern boundary being the territory granted to tho Hud- son's Bay Company." The Secretary of State for tho Colonies, the Bight Hoi orable Henry Labouchere, was chairman of the committee, which finally reported on all matters referred to it on the 31st July, 1857. Mr. Labouchere, on the 22nd January, 1858, in a despatch transmitting a copy of the report to the Governor General, Sir Edmund Head, says : " Her Majesty's Government has come to tho conclusion that it Would be impossible for them to institute proceedings with a view of raising this question (as to the validity of the charter) before a legal tribunal without departing ttom those principles of equity, by which their conduct ought to bo ruided. If, therefore, it is to be raised at all, it must be by other parties on their own responsi- bility. With regard to the question of boundary as distinguished from that of the validity of the charter. Her Majesty's Government are anxious to afford every fticil- ity towards its solution, a mode of accomplishing which is indicated in the corres- pondence, if such should be tho desire of Canada." Tho mode indicated was a refer- ence of the question to the Judicial Committee of tho Privy Council as recommended by the LaW Officers of the Crown, but the suggestion was not acted upon by the Provincial Government, nor was any step taken in that direction. It will be borne in mind that the Company were openly in possession of this part of the country by their occupation efforts and trading posts on James' Bay, and had been in undisturbed possession ever since the Peace of Utrecht, about one hun- dred and fifty years, and that by common consent and reputation, the height of land had been for a long, period of time treated practically as the truo boundary ; that it is marked als the boundary of the Province on nearly all the maps in use, and the surprise is therefore natural that it should have been discovered by tho Arbitrators now that by an Act of the tlrown, the effect of which was apparently unknown to Her Majesty's Governnient and to all tho members of this Select (Committee, and had not been ir6marked by the a6ute mind of Chief Justioe Draper, this reputed boundary had been materially changed so long ago as 1791. We agree, however, with tho arbitrators in the view that it was competent to the Crown by virtue of its prerogative powers, to have changed this northern boundary while it remained unaflfQctod by Statute by a duly promulgated Order in Council. But no such Order was ever pass-od, and we vontuie to express the opinion that it never was the intention of tho Crown thus to override the Charter of Charles II., which at all events in respect of the grant of the shore, and " the lands upon tho coast and confines of the bay," is free froni any kind of doubt ; whatever may be said as to the distant territories upon the rivers leading into the bay, such an act of th^ u Crown would have been utterly at variance with the policy that has been always upheld by the Imperial Government in regard to this charter and in direct conflict with the opinions of its law officers, and we must look for some more solid foundatiorv to support such a conclusion than the strained interpretation put upon the word^ " boundary line of Hudson's Bay." But the award has given to the Province 100 miles of the actual shore as well «6| the intoiior country with the ^orts and trading posts there standing. One or two points in connection with the Eoyal Commissions to the Grovernoi's General wo may mention in passing, not that we attach importance to them as being authoritative on the question of boundary, but because they have occupied a conspicu- ous place in the discussions. Tlio argument of Ontario as to tho enlargement of the Province by the Acts of the Crown d'cpcnds ou tho saving clause in tho Quebec Act, and the first Commission to Sir Guy Carleton after it was passed, and on the Pro- clamation of General Clarke— those disposed of, all the rest lequire but slight remark. These points are — 1. The Commission of 22nd April, 1786, to Sir Guy Carleton which carried the boundary line to the angle of the Lake of the Woods and thence duu west to the (supposed) Mississippi Eiver, was in words expressly revoked and determined by the Commission of 1791 to Lord Dorchester. Whether that was done in view of the obvious error contained in ili« former, it is now impossible to pay, but it phows how unreliable these documents would be if we were obliged to depend upon them as authorities upon the boundaries. 2. The Comraissioii to Loi-d Durham in 1838 defines two boundaries for Upper Canada, the eastern and the southern. The eastern giv«8 the line of division from Lake Temiscaming duo north, but carries it to the shore of Hudson s Bay instead of to the boundary lino as in Lord Dorchot Loi 's and subsequent Commissions. This supports the view taken by the arbitrators, aud no doubt had its effect in influencing their decision. The southern line carries the boundary along the St. Lawrence through Lakes Ontario, ii^rio, and Huron, thence into Lake Superior, and there stops abruptly, going no further west. We might indulge in a number of speculations as to how these mistakes arose. Probably the official scribe in preparing the instrument, having no knowledge of a Hudson s Bay territory, used the propei* expression "shore," believing such to have been intended in the previous Commissions, and having some doubt as to an exten- sion beyond Lake Superior, ho contented himself with running his boundary tn^othe lake and so making an end of it. One thing is at all events certain, that the Crown never intended by these in- struments, oven if it could have legally done so, to have f hanged any of the existing boundaries ; they did not profess to enact new boundari> they wex-e either rightly or wrongly following existing boundaries — that was all. No other boundary of the Province of Quebec towards the north was ever given than that mentioned in the Act of 1774, i.e., the southern boundary of the territory granted to the Hudson's Bay Company. We must^ therefore, examine the Hudson Bay Company's title to the tenitory in that direction. By his Royal Charter in 1670, Charles IL granted to the Hudson's Bay Com- pany for ever, together with the right of exclusive trade therein, all the lands and territories that were not possessed by the subjects of any other Christian prince, situate upon the coasts, seas, lakes, bays and rivers in whatsoever latitude within Hudson's Straits, to be known thereafter as Eupert's Land, with power to make laws for the good government of the Company and its Colonics and Possessions. During tho French wars the Company lost and regained and again lost certain of its forts and trading posts on the Iluclisou's Bay, aud this state of things continued till the Peace of Utrecht in 1713, when France finally withdrew from all claim to the pos- pessions upon the Hudson's Bay and its waters. By the Treaty it was provided that France should restore to England, to be possessed in lull right forever, the Bay and Straits, together with all the lands, seas, coasts and rivers belonging thereto. " No ti'acts of land or sea being excepted which are at present possessed by the subjects Qf Franco." The fortresses and buildings to be delivered over withiw sis months, 1 it And it was ftirther provided that within a year the limits between the ^udson^s Bay and the places still appertaining to France, should bo determined by Commissioners to be appointed between the two Powers ; and further that Franco should make satis- faction to the English Company trading there, for all damages and spoil done to their colonies and ships. In pursuance of this Treaty, full possession was delivered to the Hudson Bay Company, under a Commission from the Queen (Anne) and thoCorripany on the one hand, and another Com mission from the French King and the Canada (^.k>m- pany (a French fur company trading at Quebec) on the other, nnd the French settlers at the IJjiy wore brought away in an Englibh vessel ^ent out ibr the purpose. Subse- quently the Hudson's Bay Company addressed repeated memorials to the Government on the BubjeOt of payment of their losses, and praying for a settlement of the boundary between them ana Canada ; and in the year 1719, Commissioners were appointed by the King (George IJ.) to treat with the Commissioners of France at Pans, on these and certain other subjects of difference. The English Commissioners were instructed by their Government to insist upon the 49th parallel of north latitude as the southern boundary of the Company^s territory, beyond which the French were not to i)ass on any pretence, by land or sea, or on or through any lakes, rivers or countries. The Commissionei's mot, but their discussions led to no result. The English Commissioners complained that the French Commissioners could not be induced to come to any settlement of those questions, and they were finally directed by the English Court to withdraw from Paris. The Hudson Bay Company were never afterwards disturbed in their possessions by France, although other French wars followed, which were eventually concluded by thePeace of Paris and the cession by Fmnce to England in 1763, of Canada and all its dependences. Thu Counsel for the Ontario Government attached much importance to the I)06ition which the Hudson Bay Company had occupied at the time of the Treaty of iyswick (161)7) which followed the capture of several of their forts by the French, and their submission to a reduction of thoir possessions at that time. That the Com« pany submitted (under protest) as they were obliged to submit to the misfortune of war is undeniable, but a fresh war quickly brought a change of fortune, and by the Treaty of Utrecht ali-eady alluded to, France was compelled to restore to England all these conquered possessions. It is a principle of the Law of Nations that a reconquest restores to the subject property previously lost to the enemy. The Oi'own is bound to protect the lives and properties of its subjects and to restore the latter, if temporarily lost and again recovered. But Ontario contended that hero a fresh grant was necessary, and that as to all the possessions so lost to France and restored by her after the Peace of 1713, the Company's title was lost. The Crown, however, did not take this view of its duties, for nothing seems moi'e clear than that the course pursued by England in sending out a Commissioner in 1713, to take over from the Commissioner appointed by the French King a complete delivery of all the forts and places in the possession of the French, and the actual restoration of the same, then and there to the Company, operated and was intended to operate as a re-investiture by the Crown in favour of tlie Company of all their territory, titles and franchises, and in further proof of this intention, reference may be had to the lettera on the subject between Lord Bolingbroke, of 29th May, 1713, and the Duke of Shrewsbury, the British Minister at Paris, of 23rd June, 1713 (Unt. Doc. 152), and the letter of the Earl of Dartmouth, of 27th May, 1713, addressed to the Lords of Trade and Plantations, in which he says: "The Queen has commanded me to transmit to yott the enclosied petition of the Hudson's Bay Company * * * ^ Her Majesty did not think fit to receive any act of cession from the French King, and has, therefore, insisted only upon an order frotn that Court for delivering possession to such persons as should be authorized by Her Majesty to take it. By this means the title of this Company is acknowledged, and they will come into the immediate possession 6f their property without further trouble." (Ont. Doc, p. 129.) Then as to the boundary between the Company's territory and Canada the formal written demand by the English Commissioners at Paris, in 1719, after the above re-investiture made under the positive instructions of th^ir Government to insist dn the 49th p^araliel of north latitude as the boundary line is an admission by the Crown that to tliat extent, at least, the Company's title extended, and the first act of George III., afliar the cession, was the Royal Proclamation of 7th October, 1763, which established the Province of Quebec and which contained a clear recognition of the grant to the Hudson Bay Company. Again, in the Quebec Act, 1774, Parliament, as we have seen, in defining the boundaries of the enlarged Province, made the southern boundary of the Com- pany's territory, the northern boundary of the Province, and in numerous instances since then the Ih'iush Crown and the British Parliament have recognized in the amplost manner the Company's title as a valid subsisting title under the charter of King Charitiis. England had originally asserted and maintained her prior title to the Hudson's Bay and sti'aits and all the lands and territories upon the rivers and waters leading thereto by right of discovery, in accoi*dance with the law of nations. Sir Travers Twiss says : " The title which this charter (of Oharles II.) created was good against other subjects of the British Crown by virtue of the charter itself, but its validity against olhei lations rested on the principle that the country was discovered by British subje o. The only nation that contested England's title by discovery was France, and that contest was settled b^' tb;ce of arms, followed by the Treaty of Utrecht, and the claim of France to the Hudson's Bay was never revived. The theory of the high-land boundary proceeds from the law of title by dis- covery. Franco, by diacovory, acquired the St. Lawrence valley and the country upon the lakes, rivers and waters discharging through it to the sea, and thus the height ^f land that encloses its vast water system towards the north, south and west, became the legal as well as the natural boundary of Canada. Again the Mississippi carried from its source bounded by its high lands the title of French discovery towards the Gulf of Mexico, while in iho north the Hudson carried the English title along its great rivers to the high lands from which they flow. In 1763, the French title to Upper Canada was on the same footing as the Hudson's Bay Company's title to their territory, both were founded on discovery. Upper Canada was a wilderness, quite as much so as was the Company's territory ; there were no settlements and no European population, hardly half-a-dozen insignificant trading posts, * few indeed, and fiar between, yet the French title was carried without a question to the height of land at the head of Lake Superior. The validity of the Charter has been challenged on the ground that the grant of fJl the lands drained by streams, however remote, which flow into the Hudson's Bay, is vague, indefinite and beyond the competency of the Crown, and on the ground of its having conferred exclusive trading privileges, the latter objection may be dis- missed, for it has been acquiesced in by both Parliament and the Crown, and it has, besides, been conceded by the Law Officers that the territorial rights of theCompapy were not affected thereby. But the first named objection really brings up the question of title by discovery, which is said to be an inchoate title requiring to be followed within a reasonable timo by oecupancy of some kind. The principles of International law, which have been laid down by the Jurists on this subject, are drawn from the treaties and practice of the European nations since the discovery of America, and are founded on precedents. Our own history furnishes ample authority for such an extreme exercise of Boyal power (as it appears at the present day) : the Charter of Queen Elizabeth to Sir Walter Ealeigh in 1584, under which Carolina was founded ; the Letters Patent of James I in 1606 to Sir Thomas Gates and others, granting all the territory on the Continent of America between 34° and 40° north latitude ; the Charter of 1609 to the Company of Adventurers of London, gra g the colony of Virginia, which extended alc^ng 400 miles of the coast, and " ran u^ into the land throughout from sea to sea, west and north-west, including all the islands within 100 miles along the coast of both seas ;" the Charter of James I to the Council of Plymouth in 1620,for the colonization of New England from the 40th to the 48th degrees of north latitudes, and extending inlength from the Atlantic to the Pacific; the Charter of Charles U. to Lord Baltiindre, in • Vroatenao, Niagara, Sault Ste. Marie, ITeplgon and Fort WUJlank )|»U'<.;i yyjiiiKKj oflj V n 1633, uuder which Maryland was i'jnnded. Pennsylvania was chartered by Charles to William Penn in 1680 (BaiuMott, V )1. I.) In all these cases the Charters preceded the occupuncy, and were founded on discovery nloiie, the interior of the country being wholly unknown. Spain, Portugal and the Nethurlands recognized and acted upon ; the same principle, and if wo turn to France we find in the first Commission to a Canadian Governor, in few words, the same extent of sovereignty asserted as was assnmed by Charles II. in the (Charter of the Hudson's Pay Company, the words of the Commission from the Fiench King, Charles JX., to the Marquis de la Roche in 1598 are ** Canada, ITewfoundland, &c., the river ot the great bny (St. Lawrence) and the lands adjacent to the said provinces and rivers, which are the whole length and depth of the country, provided they are not inhabited by the subjects of any other Christian Prince." (Ont. Doc. 39). And the Commission to the Marquis de Lauzon, 1651, appointed him Governor "over the whole extent of the St. Lawrence and the islands and lands adjacent on both Hides, and the other rivers that discharge thei ein." (Ont. Doc. 40.) Thus did Pr 'le, three-quarters of a century before the Hud- son's Bay Charter, exercise t^overeign pi oprietary powers over an unknown interior of country, through and in connection with its rivers and water communications, while her actual occupancy was confined to the seaboard ; and yet it has been asserted that the claim of title set up by the Hudson's Bay Company lo follow the rivers to their source was unsupported by precedent, and that its only batsis was a fiction and invention. Phillimore, in treating of this subject, says (Vol. 1, 34s) : " The occupation of a portion of the sea coast gives a right to the usual protecting limit at sea, which is teld to exist in all old countries. The right of dominion would extend from tho por- tion of coast actually and duly occupied inland so far as the country was uninhabited, and so far as it might be fairly considered to have the occupied seaboard for its natural ou'^.let to other nations." Again, he quotes, with approval from the negotia- tions between Spain and the United States respecting the western boundaiy of Louisiana, the following piinciple there laid down : " When any European nation takes possession of any extent of sea coast, that possession is understood as extending into the interior country to the sources of the rivers emptying within that coast, to all their branches and the country thoy cover, and to give a right in exclusion of all other nations to the same." But it is conceived that neither the validity of the Charter nor the extent of the territory professed to be conveyed by it, can any longer be considered an open question for the action of the Crown and of the Imperial Parliament especially, since tne enquiry befoi-e the House of Commons in 1857, and the acquiescence of Canada therein, followed by the purchase by the Dominion of the Company's title, must effectually estop Canada and every Province of Canada from the repudiation of that title, and therefore the charter of Eupert's Land should be accepted for all purposes as valid and subsisting, and hence it can only be by adverse occupancy, suflScient to establish a title in itself, or by the geographical features of the territory, as they indicate the limits of the water shed of Hudson's Bay and Straits, that the claims of On+ario to have her boundary rectified towards the north can be successfully main- tained. One of the points relied upon by the Counsel for Ontario during the argument, was that the title of the Hudson's Bay Company had never been consummated by actual occupancy, that prior to the acquisition by England of the French title in 1763, the French fur-traders had penetrated to the interior of the country in the north and in the north-west, and had established posts and factories at numerous points on its lakes and rivers, and had thus acquired a title by discovery and occu- pancy against that of the Company, and that the latter had confined their actual occupation during all that time to the Bay and the mouths of its rivers. The latter part of the proposition would seem to be true ; but it is equally true that from the cession of 1763 the French traders had gradually withdrawn from those settlements and had voluntarily given place to the Canadian North- West Company, which from the year 1785 occupied all the advanced posts in the territories. The conflicts that arose between that Company and the Hudson's Bay Company, and the efforts of the 18 latter to expol tho former, are too well known to rol()yinif a force of 2,000 voyageurs, they had ostivblislied a large number of fao- torieb and trading posts, which wcM-e scattered tbroui^h the torritory. But in 1820, these two rival ootnpauios became united and brought into one concern their capital and jHisso-tsioiis, under the corpoi-ato name, powiirs and title conferred on the Hudson's Hay Company ijy their charter. At the time of this union, the Company thus re-foi-rnoil held 13:1 forts and trading posts, extending in all directions on the Hudson's Hay and on all the rivers and waters of tho noi-thern part of the continent The North West Company had been the Krst Kiii'opeans to cross the Rook}' Jlli)untain8 in the northern latitudes, and had establish jd traiit of tlxe occupaiion at iho time of tho (iupert'ri Land Aot in 1H(J8, whicii Npo iks from its date, and it Hayw, "for tho purposes of this Aut tho term ' Rupert's fj'iud ' shall include the wholo of tho lands and torritorios hold or clairaod to bo hold by tho said Governor and (/'omp:iny," a. id Ilor Majosty was oinpoworod by it to ac.-opt a surrender of the torritorios and to Je(5laro by OrJor in Council the terms and conditions of such sur- rondor, and thoroupou Rnitort's Frmd was t-) bd ailmlttod into tho Dominion, and it should ihon bo lawful for ttio PaniamouL of Canada to make and establish laws for tho peace and good govern mont of the same. Her Mijosty's Order in Council was duly made, whoiohy it was provided amongst other things thiit tho Company should retain .ill tho above trading posts along with a bl'tclc of land to '>o soloctod and attached to oairh. Thus wo lind that, though no occupation was roquisi. an actual occu])ation oxistol, and had existed for over 100 years, sutftciout to satisfy tho most technical roquiremont, moro than sufficient even to establish a title by itsolf indop3n- dontly of any charter. Yet by this award, regardless of Royal Charters, Acts of Par- liament, the Queen's Order in Council, and tho possessor}' rights secured to the Company, tho ai-bitrators have made over to tho Province one hundred and more milos of the soa coast with the forts, trading posts and inaprovemonts thereon, and a territory of HOO miles in extont from oast to west, with an averago breadth of 200 miles, containing 110,000,000 Jicros of land. A discrepancy has boon much commented upon botwoon the claim mvlo by the Company to have the 49th parallel of north latitude declared to bj their boundary a? urged by tho Paris Commissioners in 1719, and tho height of land which ha-i more recently boon claimed as their proper boundary. Tliore is very little ditforonce between them; the former is only a geographical line which desci-ibei as noarly as a straight lino can well do, tho gonoral bearing of the deviations of tho high land. Ontario would jjain by the straight lino at the oast end, and she would loso at the Lake Superior end where tho laud is moro available. In fact, tho Province would be a gainer by tho adoption of tho natural boundary in pfoforence to tho straight lino ; tho alleged di-^cj-opancy is not worthy of a second thought. In oui' view tho northern bonniiary, as awarded, cannot bo sustained upon any principle, either le^al or equitable. If wo could assume tho argumont to be sound as to the exclusive claira of inherit- ance which was pressed upon the arbiti'ators, it would have boon a curious reverse of fortune that time and constitutionid changes had produced upon tho relative positions of Ujipcr and Lower Canada in regard to the North-West. Wo have soon the French traders and voyagours, in tho early days, '-essing eagerly forward, and passing the Upper Province by, in quest of furs ana dventuros, tho route to China and La Mer de I'oufsf, while later, the Upper Canadians were felling tho forest and tilling tho soil, having quite enough on thoir hands in raising the roof-trees of their homos and villagv>8. They had no eyes for the West till 185 T, when Chief Justice Draper was e;ont h )r>io to claim for both Upper Canada and Lower Canada, then united, such portions of the lorritoi-y as should bo found to be fit for settlement; but thu knowledge of tho cou\itry was so imperfect and the difiicultios of comraunicaHon so great, that Canada, then, would have declined to accept the Rod River country (as slated by the Chief Justice boforo the Committee of the House of Commons) if accom,)aniod with engagement'" involving tho opening of direct communication, and the oxpeni;e and responsibility of its government ; and now that the full raluo of iho territory is reoogni55od and communication is being opened by means of the Pacific Railway, the exclusive claim of Upper Canada is put forward as being a right to tho inheritance of the early discoveries and titles acquired — as is said — by tho French, and whilst the Attorney Gonoral waxed eloquent in his arguments in support of French dis- co veiy and occupancy as against the Hudson's Bay Company and the British title. He was happily unmindful that tho Frenchmen of Lowcr Canada of to-d.iy have also a claim to be considered ; that it was their fathers who had thus spent thoir lives and their treasure in the prosecution of North-West discoveiy. And are they to be denied even the modoat Hbaro which Hhoald oorao to them through Confoduration in &\t this new found wealth, which iH ho glowingly set forth in t'lo j)ublic documonlH of the Ontario Government ? One item alone, the value of timber east of the Luke of the Woods, is |126,(iOO,000. Are they to have no share of that ? When the ^bolo of that country whs discovered by thcra— according to the argument — is stamped with their familiar names in all directions, and has been the grave of n;:m- bers of their people, and to all this Ontario had never contributed a dollar nor the sacrifice of a single life. But was there not, it may be asked, an implied undertaking on the part of Ontario towards the other Provinces that they should all shaie proportionally in the Hupert's Land purchase. We have seen that in the scheme of Coufeileration, and the clauses providing for the admission of that territory into the Dominion, there was perfiect silence as to there being any exclusive rights on the part of Ontario, and that m the purchase of the territory, in the Pacific Railway contracts and expenditure, in all connected with the acquisition and the development oi the North-West at the cost of the Confederacy, Ontario has stood in !ho front as the most prominent actor, having the most influential voice in the Councils which inspired these on^'itge- ments, and brought into being those properties, as the joint properties, assets and engagements ot the Dominion. It was quite as competent to the arbitrators to have awarded White Earth River to bo the wchtern boundary of Ontario as a due north lino from the angle of the Lake of the Woods, fcuch an award would have been tantamount to a decree of dismember- ment of the Dominion, thire can be no doubt of that. This loads us naturally to the enquiry whether the Executive Governments of the Dominion, and of the Province, could without due legislative sanction, place the future of Canada in a position of so much peril ? Arbitrations have been frequently resorted to in boundary disputes between independent naliony, because there is no alternative. There are no International Judicatures competent to decide buch issues, but when we have to decide a municipal boundary dit-pute, the legal tribunals of the country,— who alone under our Constitu- tion can authoritatively interpret the language of the Statutes — with the right of ultimate appeal to the Privy Council, should have been resorted to as being the only legitimate mode of decision. The Parliament of Canada had established a Supreme Court, with special juiisdiction over just such disputes as this, and the Legislature of Ontario had atsented and indeed agreed 1 y an Act (without which the Supreme Court could have had no jurisdiction in cases affecting that Province), to that Court holding jurisdiction in aiZ controversies between the Province and the Dominion, or between the Province and any other Province of the Dominion. The two Legislative bodies had thus established their tribunal, and it was not competent for the Executive Governments acting alone to select any other. They could not by virtue of mere Orders in Council, which are not laws, oust the Supreme Court of that jurisdiction which the luws of both Legislatures had conferred upon it. It hao become the fashion to treat the Dominion and the Province as if they stood towards each other in tliis matter, as Independent Sovereign States, with power, as it were, through their respective Executive Governments to make binding treaties (such as this reference to arbitration). This is entirely wrong, each government holds only the special powers delegated to it by the B. N. A. Act of 1867. The Local Governments and Legislatures have no control over Provincial boundaries. They have only, under the amending B. N. A. Act of 1871, an assenting power to legisla- tion by the Dominion Pai-liament, when an alteration of an acknowledged existing boundary is desired ; but no such power is given in regard to the establishment of a disputed boundary, and it should be remembered that the dispute as to the western boundary of Ontaiio depends upon an Imperial Statute, which is beyond the power of any Canadian Legislature, either directly or indirectly', to alter. There is no power given to either the Dominion Parliament or the Provincial Legislature to deal with such a case. The Crown, by virtue of its prerogative, has original jurisdiction over the boundaries of its possessions ; until the Imperial Parliament shall have Assumed and exercised jurisdiction in any particular case, when the exclusive power WW of tho Crown cousom fi)r tho fuliiro. TIiuh vvhon Purliumont, by tho (^noKoc Act (177 1), OHtabliHhod tho wentorn bomulary of tho Proviiico, it whs ho longer comp«tont to tlio Crown, acting; ulouo, to chimgo that bo'iti.lary, nor couM tho Crown dofino what \h tho truo intoi'prututioM of that boundary ; that can only bo aiuhoritatively and finally dono by judicial dooiHion, or by anothor Act of tho Iniporial Parliainont doclaratory of tho former. Chiof Juntico Draper, whon in P]n;^I.*uid in 1857, proviHod up)n tho Imperial authoritioH tho roforoneo of thJH disputed boiindaiy t't the Judicial Ci)mmittoo of tho Privy (youncil. UoHiiyn in his report to the ({ovomor (lOtuMal : "On such u reference I pr« ime tho Judicial Committee would Himply make a report and not pronounce a judgment upon which report I[or MajoHly nntjht irtsue an Order in Council oHtablif^h- ing the liouru'.aries \n virtue of her prerogative lioyal. Such a doclarution would. 1 venture to Hubmit, meet with roftpeet and oboJioneo in all Her Mjijosty'rt Courtu of Justice, but if th'^re wuh a shadow of doubt of the full authority of »'ich an Onler, a tloclaratory Act .-i Parliainont founded upon it or U|)'»n the report of tho Judicial Committor, would '^t the que-ttion at rest for over." Tho Colonial Minirtter approved of Chief Justice Draper's Hui^