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 1 
 
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c 
 
 o n . 
 
 
 H *-^v<iAvA F^ 
 
 '^^UA^C^e-O . 
 
 »-«i- 
 
 THE 
 
 ^ 
 
 ^ortf^erf^ anb jp^esterf^ ^ounbaries 
 
 OF THE 
 
 PROVINCE OF ONTARIO, 
 
 AND THE 
 
 AWARD RELATING THERETO, AS DISCUSSED AND 
 
 EXPLAINED 
 
 BY THE 
 
 Hon. sir FRANCIS HINCKS, K.C.M.G., 
 
 ^, '■■'^'" 
 
 IN HIS 
 
 PUBLIC LECTURE AT THE EDUCATION DEPARTMENT, TORONTO, 
 
 MAY Gth, 1881. 
 
 , ' r 
 
 PRINTED BY C. BLACKETT ROBINSON, 5 JORDAN STREET. 
 
 1881. 
 
I 
 
 
/ 
 
 THE 
 
 ort^erf^ cinb WesterfY Eounbaries 
 
 OK THE 
 
 PROVINCE OF ONTARIO, 
 
 AND THE 
 
 AWARD RELATING THERETO, AS DISCUSSED AND 
 
 EXPLAINED 
 
 HY THE 
 
 Hon. sir FRANCIS HINCKS, K.C.M.G., 
 
 IN HIS 
 
 PUBLIC LECTURE AT THE EDUCATION DEPARTMENT, TORONTO, 
 
 MAY Gth, 1881. . 
 
 IToronto : 
 PRINTED BY C. BLACKETT ROBINSON, 5 JORDAN STREET. 
 
 1881. 
 

THK 
 
 
 ^ 
 
 OP THE 
 
 PROVINCE OF ONTARIO. 
 
 Sir Francis Hincks having been introduced to the meeting by the 
 C;hairman, the Hon. 8ir W. P. Howiand, K.C.M.G., C.B., delivered 
 the following lecture : — 
 
 Sir Wm. Rowland, Ladirs and Gentlemen, — 
 
 Before entering on the subject to which I propose to invite your 
 attention this evening, I must express to you the deep gratification 
 which I felt on being invited, during a recent visit, to address a 
 Tox'onto audience after the lapse of so many years. Should my life be 
 spared for another twelve months, a period of fifty years will have 
 elapsed since, as a young man, I settled in the old capital of Upper 
 Canada, then popularly known as Little York, but within two years 
 afterwards incorporated as the City of Toronto, Ten years after my 
 first settlement at York, I became a member of the Government of 
 United Canada, and was under the necessity of taking up my residence 
 at the capital, since which time, with the exception of about two years, 
 when the sessions of Parliament were held at Toronto, under the alter- 
 nate system, I have been a compai-ative stranger among you, although 
 I have had frequent opportunities of seeing several of my old fellow 
 pioneers, and have had the gratification of being invariably met with 
 a friendly greeting, not only by my old friends, but by those with 
 whom I had had differences of opinion on what may now be properly 
 termed dead issues. 
 
 Having several years ago entirely withdrawn from party connec- 
 tion, a political address would be wholly repugnant to my feelings j but 
 circumstances seem to me to render it desirable that the public should 
 
be better informed on a subject which is generally supposed to be 
 imperfectly understood, while it is due as well to my own character, as to 
 the memory of the late lamented Chief Justice Harrison, that a full 
 expla'nation should be given of the grounds on which the Arbitrators 
 appointed to determine the true boundaries of the Province of Ontario 
 arrived at their decision. Such an explanation is, I think, likewise due 
 to the Right Honourable Sir Edward Thornton, Her Majesty's Minister 
 at Washington, who w^as goo<l enough, at the joint request of the 
 Governments of the Don\inion and of Ontario, to act as third Arbitrator 
 on the occasion referred to. While it is no part of my duty to defend 
 the action of the Dominion and Provincial Governments in agreeing to 
 leave the disputed boundary of the Province of Ontario to be deter- 
 mined by Arbitrators, I may remark that there are many precedents 
 for such a mode of settling conflicting claims. It is fortunate that 
 there is no danger of this question, complicated though it is at present, 
 leading to the fearful consequences which history, as well as our daily 
 observation, teaches us to be the result of territorial disputes. A very 
 large proportion of the wars which have occurred during past centuries, 
 and which have entailed such immense losses of blood and treasure, 
 must be attributed to quarrels regarding boundaries ; and in modern 
 times the expediency of resorting to arbitration as the best mode of 
 settling such disputes, has been very generally admitted. 
 
 CRITICISMS ON THK AWARD. 
 
 In the case of the Ontario boundary arbitration in 1878, the 
 unanimous award made after a most careful and conscientious exami- 
 nation of the voluminous papers submitted to the Arbitrators, together 
 with the cases of the learned counsel on both sides, has been severely 
 criticized, not only by the Select Committee of the House of Commons 
 in 1880, but by the leaders of the Dominion Government in the Senate 
 and House of Commons during the last session. It has tden stated as 
 an objection to the competency of the Arbitrators, that two of the three 
 were not members of the legal profession, but I have been unable to 
 find any precedent in analagous cases for confining the choice of 
 arbitrators to lawyers. In one of the most recent cases, when arbi- 
 trators were appointed to determine the boundaries between Zululand 
 and the Transvaal in South Africa, there was one lawyer, the Attorney- 
 General of the Cape, joined with a civilian, and an officer holding the 
 rank of Lieutenant-Colonel. I own that I fail to discover the value of 
 special legal attainments in such a case ; and, moreover, there were before 
 
re 
 
 the Arbitrators conflicting opinions yiven by eminent judges an<l lawyers. 
 The greatest judges are far from being infallible, and are themselves 
 always desirous of the assistance of counsel, whose duty is to submit 
 eveiy point of law, and every fact, in support of their respective clients. 
 Let me, for argument's sake, suppose that in a trial before a judge, a 
 clause in an Act of Parliament had a special bearing on the case in 
 controversy, and that the counsel, whose client woidd be benefited by 
 that clause, were to fail to bring it to the notice of the Court, and that 
 the judgment afforded proof that this important clause had not engaged 
 the judge's attention, surely it would not be contended that, however 
 eminent the judge might be, his judgment ought to carry as much 
 weight as that of a non-professional arVjitrator whose opinion had been 
 formed after a full consideration of circumstances, which had never been 
 brpught under the notice of the judge. I shall have to make a practical 
 application of this suppositious case to the disputed boundary of Ontario 
 on the south-west, and as bearing on the judgment of Chief Justice 
 Sewell in the De Reinhardt case, which was concurred in by his col- 
 leagues. I must, before doing so, notice as briefly as possible some 
 statements, which appear to me to be a sufficient justification of my 
 placing on record the reasons, which induced the Arbitrators to make 
 the award which is now the subject of controversy. During the 
 session of Parliament held in 1880, a Helect Committee was appointed 
 by the House of Commons to inquire into, and report upon all matters 
 connected with the boundaries between the Province of Ontario and 
 the unorganized territories of the Dominion. The report, concurred in 
 by nine out of thirteen members of that Committee, declares that " the 
 award does not declare the true boundaries of Ontario," adding, "it 
 seems to your Committee to be inconsistent with any boundary line 
 ever suggested or proposed subsetjuent to the Treaty of Utrecht." One 
 of the principal witnesses, Mr. William McD. Dawson, a portion of 
 whose evidence is embodied in the report, stated that the Arbitrators 
 had adopted a boundary " which was not a possible one." Sir John 
 Macdonald is reported in Hansard to have said : — " We have only 
 to read the written statement of one of those Arbitrators, Sir Francis 
 Hincks, in which he admitted they did not settle the true boundary, to 
 be convinced." Sir Alexander Campbell was reported to have made 
 substantially the same statement in the Senate. It has seemed to me 
 that such allegations as I have cited, render it desirable that the public 
 should be put in possession of the grounds, on which the Arbitmtors 
 concurred in an award, which, although adverse to the claims of the 
 

 
 Ontario (lOveruiiHint, was promptly accepted by it, and Hub.se<iu('ntly 
 by the Provincial Legislature. 
 
 SOLTII-WESTEUN HOUNDAHY. 
 
 I shall firfit consider the South-Westerix Bouiidary, It is evident 
 from the report of the Select Committee, that its framer attached much 
 greater weight to Commissions to (lovernors as affecting boundaries, 
 than the Arbitratoi's did. (Jonmiissions may be of assistance in inter- 
 preting obscure langua^je in an Act of Parliament, but where the mean- 
 ing of an Act is free from doubt, it cannot be set aside by a Commission. 
 The south-western boundary of Ontario depends on the construction 
 of the Imperial Act of 1774, on the effect of the subsequent treaty 
 with the United Statep of 1783, and on the proclamation i.ssued under 
 the Act of 1791. It is important to consider the circumstances under 
 which the Act of 1774 was passed. In the year 1763 a treaty was con- 
 olude<l at Paris, between England and France, which contained the fol- 
 lowing provision : " In order to establish peace on solid and ilurable 
 foundations, and to remove forever all subject of dispute with regard 
 to the limits of the British and Fnmch territories on the continent of 
 America, it is agreed that for the future the confines between the do- 
 minions of His Britannic Majesty, and those of His Most ( ihristian 
 Majesty, in that part of the world, shall be fixed irrevocably l)y a line 
 ' drawn along the middle of the river Mississippi from its source to the 
 river Iberville, and from thence by a line drawn along the middle of 
 that river and the lakes Maurepas and Pontchartrain to the sea .... 
 provided that the navigation of the Mississippi shall be etjually free as 
 well to the subjects of Great Britain as to those of Fmnce in its whole 
 breadth and length from its source to the sea." The treaty from which 
 I have just quoted was concluded on the 10th February, 1763, and on 
 7th October, 1763, a proclamation was issued erecting four new Gov- 
 ernments, one of which was Quebec, the western boundary of which was 
 fixed at the south end of Lake Nipis.sing. In the year 1774, in conse- 
 quence of urgent representations, as to the necessity of establishing a 
 settled government in territories, where no government of any kind 
 existed, a bill was introduced by the Government of the day, the object 
 of which was clearly stated by Lord North in language which I shall 
 quote. " It is well known that settlers are in the habit of going to the 
 interior parts from time to time. Now, however undesirable, it is open to 
 Parliament to consider whether it is fit there should be no government 
 in the country, or, on the contmry, separate and distinct governments. 
 
 i 
 
'^^^•^w^^vr 
 
 or whether the ncattered poHts should be animxinl to Canada. The 
 House of Lords have thouj^ht proper to annex them to Canada, but 
 when wo consider that there must be some government, and that it is 
 the desire of all those who trade from ('anada to *^' )se countries, that 
 there sliould b(! some govf-rumeiit, my opinion is that, if gentlemen will 
 weigh the inconv(miences of separate governments, thfjy will think the 
 least inconvenient method is to annex those postti, though few in popula- 
 tion, great in extent of territory, rather than to leave them without 
 government at all, or make them separate ones. Sir the annexation 
 likewise is the result of the desire of the Canadians, and of those who 
 trade to those scfttlements, who think they cannot tr&de with safety a» 
 long as they remain separate." Now, it must be borne in mind, that 
 the principal posts in the unorganized territories, when the Act of 1774 
 was passed, were situated on the river Mississippi, and of course in 
 British territory by the treaty of 1763. The pretension of the advo- 
 cates of the due north line, which is the boundary claimed by the Do- 
 minion, is that Parliament deliberately abandoned the natural boundary 
 of the Mississippi, thereby excluding from the benefit of the Act, the 
 very persons for whom it was specially intended, and that it adopted, 
 without a single conceivable motive, a conventional line running due 
 north from the junction of the Ohio with the Mississippi. It is well 
 known that the bill was introduced in the House of Lords in 1774, and 
 that as sent down by that House to the Commons the description was 
 " all the said territories, islands and countries, heretofore a part of the 
 territory of Canada in North America, extending southward to the 
 banks of the river Ohio, westward to the banks of the Mississippi, and 
 northward to the southern boundary of the territory granted to the 
 Merchants Adventurers of England trading to Hudson's Bay, and which 
 said territories, islands and countries are not within the limits of some 
 other British Colony as allowed and confirmed by the Crown." Now it 
 has never been pretended that there was any ambiguity in that descrip- 
 tion as to the western boundary, but a discussion was raised in the 
 Commons by Mr. Edmund Burke, then agent for the State of New 
 York, who had doubts whether under the description Canada might 
 not encroach on territory on the north-east of that State, which had 
 actually been in dispute, and which by amicable agreement had been, 
 made over to New York, reserving the rights of Canadian settlers in 
 the disputed territory. The territory on the Mississippi had never been 
 in dispute during the protracted wars between the British and French 
 regarding boundaries in the Ohio valley. 
 
INTENTION OK ACT OF 1774. 
 
 There is not the slightest reason to suppose that a single member of 
 the House of Commons desired to alter the natural boundary of the 
 Mississippi, on the banks of which were the principal settlements, for 
 the inhabitants of which the act was specially intended to provide a 
 government. Mr. Burke, as appears from a report of his remarks in a 
 book entitled " The Cavendish Debates," insisted very strenuously on 
 defining the boundaries more precisely. I am not unaware that the 
 framer of the report of the Commons Connnittee has, on the authority 
 of Mr. Justice Johnson of Montreal, pronounced the Cavendish Debatf-s 
 as of no authority, but the Hon. Wm. Maodougall lias given most satis- 
 factory reasons for considering them a valuable contribution to the history 
 of the period. There is however a letter in existence, addres.sed by Mr. 
 Burke to the Legislature of New York, in which he explains with great 
 precision the object of his amendments, and from which it is clear that 
 it never was contemplated to interfere with the Mississippi boundary. 
 The change in the description of the boundary was made while the 
 House was in Committee on the Bill, four members, one of whom was 
 Mr. Burke, having left the House in Committee to arrange the new 
 description. Jt is said " the difference was whether the tract of country 
 not inhabited should belong to New York or Canada," and mo.st assuredly 
 this difference could not possibly apply to territory on the Mississippi 
 River. I shall now cite the boundaries as finally agreed to by the 
 Hou.se, and I request your most particular attention to the first words, 
 which seem to me to deserve much more consideration than has been 
 given to them by the advocates of the due north line, from the confluence 
 of the Ohio and Mississippi Rivers. " That all the territories, islands 
 and countries in North America, belonging to the Crown of Great 
 Britain, bounded on the south by a line from the Bay of Chaleurs, along 
 the high lands which divide the rivers that empty themselves into the 
 River St. Lawrence from those wliich fall into the sea, to a point in forty- 
 five degrees of northern latitude on the eastern bank of the River Connecti- 
 cut, keeping the same latitude directly west through the Lake Champlain, 
 until in the same latitude it meets the River St. Lawrence, from thence 
 up the eastern bank of the said river to the Lake Ontario, thence 
 through the Lake Ontario and the river commonly called the Niagara, 
 and thence along by the eastern and south-eastern bank of Lake Erie, 
 following the said bank until the same shall be intersected by the 
 northern boundary granted by the Chartei- of the Province of Pennsyl- 
 vania, in case the same shall be so intersected, and from thence along 
 
9 
 
 the said northern and v/estern boundaries of the said Province until the 
 said western boundary strike the Ohio ; but in case the said bank of the 
 said lake shall not be found to be so intersected, then following the said 
 bank until it shall arrive at that point of the said bank which shall be 
 nearest to the north-western angle of the said Province of Pennsylvania, 
 and thence by a right line to the said north-western angle of the said 
 Province, and thence along the western boundary of the said Province 
 until it strike the River Ohio, and along the bank of the said river 
 westward to the banks of the Mississippi, and northward to the South- 
 ern boundary of the territory granted to the Merchants Adventurers of 
 England trading to Hudson's Bay." You will not fail to observe? that 
 the intention of the franiers of the amendment, as of the original Bill, 
 was to include all the territories belonging to the Crown of (Ireat Britain 
 in the nowly constituted Province, which were not already included in 
 the old Provinces. You will notice how precise the definition is until the 
 Ohio is reached, a'ter which there was no territory regarding which there 
 could be a dispute. You will likewise bear in mind that the la.st clause 
 of the description is precisely the same as in the original bill, viz., 
 " Westward to the banks of the Mississippi and northward to the southern 
 boundary of the territory granted to the Merchants Adventurers of Eng- 
 land trading to Hudson's Bay," and that in that bill " northward " 
 could not have had the meaning which has been claimed for it, and which 
 is that it must necessarily mean "due north," although the meaning of 
 the word is really "towards the north." 
 
 THE DE HEINIIAKDT CASE. 
 
 Great stress has been laid on a d-'oision given in the year 1818 by 
 the Court of Queen's Bench at Quebec, presided over by Chief Justice- 
 Sewell, on the trial of a person named De Reinliardt, for a murder com- 
 mitted at a place called Dalles in the vicinity of the Lake of the Woods. 
 Some judges who gave evidence before the Select Committee on the 
 boundaries in 1880, referred to this judgment as conclusive in favour of 
 the due north line. Judge Johnson said that " Chief Justice Sewell, 
 who tried the case, is looked upon as the greatest luminary of the law 
 Ave ever had in Lower Canada. It may almost be said that he made 
 our laws." Again, Mr. Justice Armour said: — "There is a judicial 
 decision as to the meaning of the word ' northward ' in the Quebec 
 Act. The decision was that 'northward' evidently meant 'due north.' 
 That is the De Reinhardt case. No doubt about it, it is a clear deci- 
 aion, and were I deciding judicially I would be bound to follow that 
 
10 
 
 decision." As Mr. Justice Armour procoedetl to state, that if asked his 
 individual opinion as a person looking into the matter, he would deter- 
 mine that " * northward ' had reference to the territoiy and not to a 
 limitary line,'' I do not think that his evidence is much in favour of the 
 due north line. I shall state the reasons which led me, and I believe 
 my co-Arbitmtors to attach no importance whatever to the judgment in 
 the De Reinhardt case. The (jue-stion of boundary was never fairly 
 brought before the Court in 1818. It is well known that vei-y high 
 authorities, including the eminent counsel by whom De Reinhardt was 
 defended, the Honourable Messrs. Cartier and Macdougall, the Honour- 
 able David Mills, who has made a most valuable report on the subject, 
 the Messrs. Daw.son, up to a recent period, and the learned coun.sel who- 
 represented Ontario before the Arbitrators, have all held that the^ 
 language employed in the Order in Council and the Proclamation of 
 1791, "including all the territory to the westward and southward of 
 the said line to the utmost extent of the country called or known by 
 the name of Canada," must be interpreted as giving to Ontario, then 
 Upper Canada, a much more extensive territory to the west, than what 
 it would be entitled to according to the interpretation placed on the Act 
 of ITTJ- by those who hold that the Mississippi River was the boundary 
 of the old Province of Quebec, and that the Act of 1791 was intended 
 to divide that Province, but not to extend it. I refer to this difference 
 of opinion here to shew that the view taken by the Arbitrators was 
 never presented to the Court in 1818. Had it been pointed out to the 
 eminent judges who presided on that occasion, that the language of the 
 Act of 1774 made special provision for including in 'the new Province 
 " all the territories, islands and countries in North America belonging 
 to the Crown of Great Britain," before defining the boundaries, it 
 might have been presumed that the intention of the Act would have 
 been so manifest, that even if the language had been deemed ambigu- 
 ous, its meaning could scarcely have been misunderstood. To my own 
 mind, there is no ambiguity in the language. The object of the Act 
 was to provide for the government of all the territories not included in 
 the old Provinces, and not south of the Ohio River. When the Missis- 
 sippi was reached, the word " northward " was quite sufficient, as the 
 western boundary was that established by the Treaty of 1763. How 
 any one could have imagined that Parliament would have been guilty 
 of the absurdity of excluding the settlements on the river from the 
 benefit of an Act chiefly intended for them, and of abandoning a natural 
 boundary like the Mississippi in order to run a line due north, without 
 
 . 
 
11 
 
 any conceivable object, is incomprehensible to me. The point which 
 strikes me as important is that De Reinhardt's counsel rested their case 
 on the Act of 1791 and not on that of 1774, and it will be found on 
 reference both to the arguments of counsel, and to the jv^dgment of the 
 Court, that the most important branch of the decision was that the 
 Act of 1791 only authorized the division of the old Province of Quebec 
 into two separate Provinces, and consequently that the proclamation 
 could not be interpreted to give Upper Canada any territory that had 
 not been included in the old Province of Quebec. Now, the Arbitrators 
 were of opinion chat on this point the judgment of the Court delivered 
 at Quebec in 1818 was correct, and consequently that the boundaries of 
 Ontario must be limited to those of the Province of Quebec as defined 
 by the Act of 1774. There have been so many opinions, which I 
 admit to be entitled to great weight, in favour of the boundary which 
 was contended for by the eminent counsel for the prisoner in the De 
 Reinhardt case, that it is highly probable that, as lawyers, they held 
 their construction of the Proclamation of 1791 to be correct; I must, 
 however, point out that it is the duty of a lawyer, when defending a 
 criminal, to spare no effort to procure his acquittal, and, in thinking the 
 De Reinhardt case over in my own mind, it occurred to me that if 
 counsel had contended for the Mississippi boundary as that established 
 by the Act of 1774, and had concui-red with the Arbitrators, that after 
 the treaty of peace with the United States in 178.3, the most north- 
 western angle of the Lake of the Woods became the south-western 
 boundary, they might not have saved the prisoner whom they were 
 defending. The evidence on the trial as to the precise locality of 
 Dalles was conflicting, but to a very slight extent, Mr. Sax, a witness 
 for the Crown, held that Portage des Rats was the north-west angle, 
 and that its longitude was 94° 6' west. Mr. Joseph Bouchette placed 
 Portage des Rats in longitude 94" 10' west, and the north-western 
 angle in 94" 25'. Now, Dalles is placed in 94° 40' west longitude, and 
 would conse«iuently have been outside the boundaries of Upper Canada 
 under the award of the Arbitrators. Again, Mr. Coltman, one of the 
 witnesses, stated that Dalles was on the River Winnipeg, about fifteen 
 to eighteen miles from the most north-western point of the Lake of the 
 Woods, and that it was on a line " running to th(^ north with a little 
 westing." If, then, it he assumed that the north-western angle of the 
 Lake of the Woods is the true south-western boundary of Ontario, then 
 Upper Canada, it would have been fatal to the prisoner's case for his 
 counsel to have contended for the boundary estaUished by the Act of 
 
12 
 
 1774, and they accordingly argued most strenuously that the Proclama- 
 tion issued in accordance with the Act of 1791, had considerably 
 extended the botindaries of Upper Canada. 1 confess I have been a 
 good deal surprised at some of the recent opinions given V>y gentlemen 
 who claim to be experts, as to the meaning of the term " northward." 
 Mr. Lindsay Russell declares in his evidence that this word " admits of 
 no choice in its interpretation." Such was not the opinion of Mr. Sax, 
 the surveyor exiimined for the Crown on the trial of De Reinhardt in 
 1813, which, although instructive, is not a little amusing, and deserves 
 to be noticed in detail. 
 
 MEANING OF NORTHWAKD. 
 
 Mr. Sax — A line, supposing it ran due north from the junction of 
 the Ohio and Mississippi rivers, would leave the River Winnipeg five de- 
 grees out of the Province of Upper Canada — not a nonhward line but 
 a due north line. 
 
 Attorney-General — Do you mean to say that a northward line is 
 not a north line ? 
 
 Mr, Sax^ — It is not always ; it may be north by east, or north by 
 west, or north north-west, or many other points of the compass. A due 
 north line is one that goes direct to the north pole without any deviation 
 whatever. 
 
 Attorney -General — And does not a northward line go to the north 
 pole 1 If you had a northward line to run would you not run it to the 
 north pole 1 
 
 Mr. Sax — Perhaps I might and perhaps not ; I would certainly run 
 it northerly, though I might not run it due north. 
 
 Attorney-General — What is to prevent you taking it due north ] 
 If you had a line to run from a given point until it struck a river, and 
 thence to continue along the course of that river northward, would you 
 call that drawing a northern line 1 
 
 Mr. Sax — Undoubtedly it would be a northern line, but not a due 
 north line. 
 
 Attorney-General — Would it not? Could it be east or west? 
 
 Mr. Sax — It might, according to circumstances, be a north-eastward 
 or north-westwardly line, and yet a northern line, that is a line having a 
 northward course or drawing nearer to the north pole as it progressed 
 though not an astronomical north line. 
 
 Attorney-General — Is not a north line a line northward 1 
 
 Mr. Sax — Certainly, a line running due north is undoubtedly a 
 northward lino. 
 
In 
 •t 
 
 Attorney-General — And a line true north-weatward you would call 
 a north-westward line ? 
 
 Mr. Sax — Certainly, a line due nortli-west is a north-westward line, 
 but a line, for instance, that runs towards the north, notwithstanding it 
 may gain in its course more northing than westing or easting, is not 
 therefore necessarily a due north line, but is a northern or north-ward 
 line. 
 
 Chief Justice Sewell — I i-?ally do not comprehend the distinction ; 
 to say that a northward line is not a north line, I confess, appears to me 
 to approach the reductio ad absurdum. Suppose that we had a compass 
 here, and from a given point I draw a line north-westward, that is to say 
 terminating ut a point north-westward, would not that be a due north- 
 west line 1 
 
 Mr. Sax — It would if drawn due north-west, but if in drawing it 
 you gained northerly it would from the course of its deviation be a line 
 northward though not a north line. 
 
 Chief Justice Sewell — Then its course northward must unques- 
 tionably be due north if a line north-westwardly is a north-west line. 
 I want to know whether n point of fact, a fact that any man can tell 
 as well as a surveyor, whether a line from the eastern or western point 
 of the compass, drawn northward, is or is not a north line. Just answ er 
 that question, yes or no, and then you may explain that answer in any 
 way you think proper. 
 
 Mr. Sax — It certainly must be to a certain extent a north line, but 
 not a due north line. 
 
 Chief Justice Sewell — Why not ? 
 
 Mr. Sax — A line drawn from any point between two cai'dinal points 
 of the compass, direct to any cardinal point, is a due north or due west 
 line as the case may be ; but a line may be so drawn between two points 
 as to be called by surveyors a northward or a southward line as it may 
 chance to gain in the course of running it upon that point of the com- 
 pass to which it is approaching ; as I might draw a line from a point 
 north-westwardly but gaining in a northerly direction in its course, so 
 that at its termination it would be a line northward from having more 
 northing there than at the point from which I started. 
 
 I confess that I think that Mr. Sax's opinion is entitled to infinitely 
 more weight than that of Mr Kussell. 
 
 IMPORTANCE OP A NATURAL BOUNDARY. 
 
 I have already stated the reasons which induced the Arbitrators to 
 
! I 
 
 14 
 
 arrive at the conclusion that the intention of the Act of 1774, and ita 
 language, interpreted according to common sense, was to extend the old 
 Province of Quebec, so as to include all the territories belonging to the 
 Crown cf Great Britain in America, not included in the old British 
 Colonies, now the United States, nor in the territories belonging to the 
 Hudson's Bay Company, nor in the Indian territories north-wesi, of the 
 Mississippi. The view taken by the Arbitrators was never presented 
 to the Court in 18 18, and the territory between the imaginary due north 
 line, and the Mississippi, having become part of the United States, the 
 absurdity of placing such a construction on the Act of i '74, as would 
 have left an important strip of territory without any government what- 
 ever did not strike the learned judges. It must be borne in mind, that 
 although the Commission of a Governor cannot supersede iin Act of 
 Parliament, as the framer of the report of the Commons Committee of 
 1880 seems to imagine, it may fairly be cited as coi'roborative evidence 
 of the intention of an Act, where any ambiguity of language is found to 
 exist. The tirst Commission issued under the Act of 1774 to Sir Guy 
 Carleton proves conclusively what was understood at the time to be its 
 meaning. Immediately after the word " northward " the words 
 "along the eastern bank of the sai^ river " were added in the Commis- 
 sion. It really looks as if it had occurred to the framer of the Com- 
 mission that the hastily prepared amendment to the original Act might 
 create doubt at some future time, and yet Mr. Burke, the framer of the 
 description, thus explained his intention. " My idea was to get the 
 limits of Quebec, which appeared to many as well as to myself intended 
 to straiten the British Colonies, removetl from construction to certainty : 
 and that certainty grounded on natural, indisputable, and immovable 
 bamers — rivers and lakes, where I could have them, lines where lines 
 could be drawn, and where reference and description became necessaiy 
 to have them towards an old British Colony, and not towards this new 
 and was thought favourite establishment." Is it conceivable that the 
 author of the passage I have quoted could have intended to abandon 
 such a natural boundary as the Mississippi, for one without sense or 
 meaning, and the adoption of which would have left without any gov- 
 ernment, the very settlements, which it was specially intended to in- 
 clude 1 I need only observe further that I believe that those who main- 
 tain that the boundaries were enlarged by the proclamation issued under 
 the Act of 1791, concur with the Arbitrators in the opinion that by 
 the Act of 1774, the Mississippi was the western boundary of the old 
 Province of Quebec. 
 
l.') 
 
 EFFKCT OK TRKATY WITH INITKI) STATES 0\ THE HOUNDARY. 
 
 1 have now to draw your attention to tlie effect of the Revolutionary 
 War on the boundary of the old Province of (.Quebec, When tlie treaty 
 of peace was concluded at Paris, on 3rd September, 1783, boundaries 
 were established to which I shall hilefly refer. It is sufficiently evident 
 that there was a desire to find natural boundaries, if practicable, and 
 accordingly the line of division was carried through Lake Superior to 
 to the Long Lake, thence by water communication to the most north- 
 western point of the Lake of the Woods, and from thence on a due wcht 
 course to the river Mississippi. In a paper dated in 1876, written by 
 !Mr. S. J. Dawson, the Chairman of the Commons (.'ommittee of 1880, 
 he argued that the diplomatists who framed the treaty of 1783 had in 
 view, not the Mississippi proper, but "the main artery of the vast liver 
 system to which the comprehensive name of the Mississippi was applied 
 in those days." He maintained that " the diplomatists, who framed the 
 treaty, knew perfectly well that the northerly waters of the Mississippi 
 were far to the south, and that they must have meant a bi*anch or trib- 
 utary of the Missouri, called the White Earth River, vvhich would in- 
 tersect the due west line at a point over 450 miles west of the Lake of 
 the Woods." Mr. Dawson held that "it is impossible to avoid the con- 
 clusion that the true intent, meaning, and spirit of the treaty of 1783, 
 was that the western boundary of Canada and the United States, and the 
 <!astern limit of Louisiana on the due west line, should bo at a point 
 upwards of 400 miles west of the Lake of the Woods." I have referred 
 to Mr. S. J. Dawson's opinion so late as 1870, to establish that he recog- 
 nized the north-western angle of the Lake of the Woods, as within the 
 Canadian territory, and further that he recognized the Mississii)pi as the 
 western boundary. Mr. Dawson, when he stated with such confidence, 
 that the diplomatists in 1783, " knew perfectly well" that the northerly 
 waters of the Mississippi proper were far to the south of such a line, 
 must have been unaware that, eleven years after the treaty from which 
 I have quoted, viz., in 1794, another treaty was concluded, which com- 
 mences as follows : — " Whereas it is uncertain whether the river Mis- 
 sissippi extends so far to the northward as to be intersected by a line to 
 to be drawn due west from the Lake of -the Woods in the manner men- 
 tioned in the treaty of peace between Her Majesty and the United 
 States it is agreed etc. The agreement was that the two nations would 
 make a joint survey of the said river from one degree of latitude below 
 the Falls of St. Anthony to the principal source or sources of the said 
 river, and if the result should be that the river would not be intersected by 
 
r 
 
 such a due west line, then the two parties will proceed to establish a 
 boundary by amicable negotiation. This was subseouently accomplished 
 by tlip Treaty of 1818 establishing the 49th parallel of north latitude.. 
 At that time, thirty-five years atter the period when Mr. S. J. Dawson 
 thought that diploniatists " knew perfectly well" all about localities, it was 
 not known whether the Lake of the Woods was north or south of the 49th 
 parallel, and it was accordingly provided that a line should be drawn 
 due north or due south from the north-western angle to the 49th parallel. 
 The Mississippi of the treaty between England and France, of the Act of 
 1 774, and of the treaty with the United States, has its source almost due 
 south of the Lake of the Woods, where the international boundary is 
 fixed. It seemed to the Arbitrators that under all the circumstances of 
 the case, the true south-westerly boundary of Ontario should be held to 
 be at the international boundary, rather than at a point due north of 
 the source of the Mississippi. The latter would have been in nearly the 
 same meridian, I may observe, and would have entailed much useless 
 expense in surveys, besides disputes as to which was really the true 
 source of the Mississippi, which according to Mr. S. J. Dawson, is to be 
 found " in numerous brooks and countless lakelets." 
 
 NORTH-EASTERN BOUNDARY. 
 
 I shall now proceed to state the grounds, on which the Arbitrators 
 arrived at their decision as to the true boundary on the north-east. 
 Up to the time when it became my duty to study the question as an 
 Arbitrator, I had been under the prevailing impression that the height 
 of land was the southern boundary of the Hudson's Bay Territory. It 
 would be impossible, on such an occasion as this, to state all the argu- 
 ments which have led me to think that the pretensions of the Hudson's 
 Bay Company were without foundation. I may, however, refer to the able 
 papers, which the late Chief Justice Draper prepared, regarding the 
 claims of the Company, and likewise to a memorandum from the Hon. 
 Joseph Cauchon, who was Conmiissioner of Crown Lands in 1857, and 
 which is printed in the appendix to the report of the Commons Com- 
 mittee as the memorandum of Mr. W. McD. Dawson. I presume that 
 the cause of the action taken at that particular time was the approach- 
 ing termination of the lease of the Indian territories. The claim of the 
 Hudson's Bay Company, under their original charter, was described in 
 the memorandum prepared by Mr. Dawson under the Commissioner's 
 instructions, to be " to government, jurisdiction and right of soil over 
 the whole country watered by rivers falling into Hudson's Bay." I 
 
17 
 
 the 
 
 in 
 
 ivs 
 
 rer 
 
 I 
 
 havp been unable to discover any authority for so extensive a claim 
 Thore can be no tloubt that the Hudson's Bay Company themselves pro- 
 posed, after the treaty of llyswick, that the French should not trade or 
 J)uild any house, factory or fort to the north of the Albany lliver on the 
 "West Main Coast, or north of Rupert's Kiver on the East Main Coast. 
 It is tru<i that under the treaty of Utrecht the French were to restore 
 to Great Britain a number of forts, but it does not appear to me that 
 this restoration was ever completed. It was provided by the treaty that 
 " within a year " Connnissaries to be named by both parties were to 
 determine the limits between the British and the French, and it is 
 notorious that euch Commissaries never did determine the boundaries, 
 while the French king, many years after the treaty of Utrecht, declared 
 with referenc«' to the pretensions of the Hudson's Bay Company, that he 
 was " tirmly resolved to maintain his rights and his possessions against 
 pretensiona so excessive and so unjust." The proclamation under the 
 Act of 1791 establishes the north-east boundary at the termination of a 
 line drawn due north from the head of LakeTemiscamingue, until it strikes 
 the boundary line of Hudson's Bay, and it is contended by the very 
 same parties who insist, contrary as I think to common sense, that in 
 the Act of 1774 northward must mean due north, that the meaning of 
 words which seem to me sufficiently cleai", must have been to the boun- 
 dary of the Hudson's Bay Territory, and not to the bay. Now, in the Act 
 of 1774, when the territories wei'e really meant, and not the bay, the 
 language is not susceptible of misconstruction. The words are " the 
 southern boundary of the territory granted to the Merchants Adventurers 
 trading to Hudson's Bay." But, as in the case of the western boundary, 
 the Commissions to various Governors aftbrd a clue to the meanins 
 attached to the language of the proclamation by the Imperial Govern- 
 ment. For a considerable time the Commissions were in the precise 
 words of the proclamation " to the boundary of Hudson's Bay," but in 
 1838 Lord Durham's Commission contained the words "until it strikes 
 the shore of Huilson's Bay." Now I wish it to be clearly understood, 
 as Mr. W. McD. Dawson seems to imagine, that the decision of the 
 Arbitrators was founded on the Commission, that such was not the case. 
 In accordance with the Statute of 1791, au Ordei- in Council was passed 
 authorizing the proclamation, which fixed the north-eastern boundary at 
 the boundary line of Hudson's Bay, and that I hold to be a sufficient 
 description of the shore, although it was satisfactory to the Arbitrators 
 to have the additional evidence aftbrded by the Commissions. I have 
 already adverted to the Albany Bi\er having been proposed by the 
 B 
 
18 
 
 Hudson's Bay Company as their southern boundary, and it seemed to 
 the Arbitrators that a natural boundary, following the course of that 
 river left to the representatives of the Hudson's Bay Company (juite as 
 much territory as they could justly claim. It would be wholly impos- 
 sible for me within the limits to which I am necessarily contincd, to 
 refer at any length to the numerous documents which led the Arbitrators 
 to reject the pretension of the Dominion Government, that the height of 
 land was the southern boundary of the Hudson's Bay Company's terri- 
 tory. The original charter limited the territorial grant to territories 
 not in the possession of any other Christian prince, and although the 
 subsequent treaties of Ryswick and Utrecht affected the boundaries be- 
 tween France and England, yet there is no evidence of any new grant 
 having been made to the Hudson's Bay Company. In his very able 
 report on the boundaries, the Hon. David Mills has maintained that the 
 effect of the treaty of Utrecht was not to restore to the Hudson's Bay 
 Company what it had lost by the treaty of Ryswick. There was a warm 
 controversy between the two Governments as to whether the term 
 "cede" or "restore" should be used, and it is far from improbable that 
 the British Minister may have been inspired by the Hud.son's Bay Com- 
 pany to contend for the word "restore" while the French Minister was 
 very urgent for the word "cede." It appears from a letter of Mr. Prior 
 that according to the cartes sent by both plenipotentiaries " there was no 
 very great difference " between the claim of Great Britain, and what 
 France was willing to concede, and it is quite certain that the French 
 never contemplated surrendering the territory claimed by the Hudson's 
 Bay Company to the height of land. As a matter of fact, the boundaries 
 under the treaty of Utrecht were to have been settled by Commissaries, 
 who never acted in the matter, and, fifty years later. Great Britain ac- 
 quired the French title. Chief Justice Draper furnished a number of 
 extracts from documents bearing on the question of title on which he 
 observed : "They certainly shew that neither after the treaty of Rys- 
 wick, nor that of Utrecht, when they stated the boundaries, they were 
 either willing to submit to, or were desirous of obtaining, nor yet in 1 750, 
 when they set forth what they thought themselves entitled to claim 
 under their charter, did they ever think of asserting a right to all the 
 countries the waters of which flow into Hudson's Bay, Their claim to 
 lands lying both northward and westward of the bay is entirely at 
 variance with any such idea." 
 
 OBJECTIONS TO AWARD ANSWERED. 
 
 I could not treat the important subject under your consideration 
 
10 
 
 with entire satisfaction if I failed to notice the numerous criticisms to 
 which the award of the arbitrators has been subjected. I shall dismiss 
 very briefly that class that I believe to be numerically the most formid- 
 able, whose opposition to the award is based, not on its merits, but on 
 the extent of territory to which Ontario is entitled under it. The 
 decision of the arbitrators had scarcely been announced in 1878 when an 
 anonymous writer over the signature " Britannicus," published several 
 letters on the subject, in which he contended that the award was 
 " open to grave objections," the first being that "the region is worth 
 millions." He was told in an article, that I contributed to the press, 
 that ** the ArVntrators were appointed to decide on boundary lines on 
 principles of law and justice, and ought not to have been influenced by 
 the extent or the value of the territory in dispute." 
 
 CHIEF JUSTICE HARRISON ON AWARD. 
 
 I shall offer no apology for citing a few extracts from letters of the 
 late Chief-Justice Harrison addressed to me in August 1878 on the 
 subject of the criticisms made on the award : " I feel satisfied thiit you 
 can give an answer to all and sundry who attack the award. I believe 
 there never was an award made in a matter of such importance that is 
 so little open to honest criticism . . . Singular to say, since the award 
 was made I have received from Judge McDonald of (ruelph an old 
 lithographed map without name or date, but evidently made long be- 
 fore the Constitutional Act of 1791, which indicates the northern 
 boundary of Upper Canada to be on the precise line where we have 
 placed it. ... I also received the Gazette (Montreal) of 15th August, 
 containing the second letter of " Britannicus." These attacks, with the 
 exception of the last, are puerile, and the last is a perfect absurdity. 
 Assume that all which " Britanrticus " says about the territory awarded 
 to Ontario, is true, how does that affect the validity of the award 1 Our 
 duty was judicial, we had little or nothing to do with questions of policy. 
 By the light of the evitlence adduced, and the arguments propounded, 
 we unanimoulsy decided upon certain boundaries, for the north and 
 west of the Province. Whether the land thus given to the Province was 
 full of diamonds, or only of worthless rocks, was no business of ours. 
 The surveyor who finds the boundaries of two lots of land is never 
 influenced by the consideration that one piece is intrinsically more valu- 
 able than the other. None of the able counsel who addressed us 
 ventured so far to take leave of his senses as to attempt to take such 
 untenable ground." 
 
20 
 
 .lEALOI'SY OF ONTARIO. 
 
 In 
 
 " HritaiiniouH " is a representative of the dasH of whose opinions Mr. 
 Royal, M.P., is )n:' of the latest exponents. He was a member of the 
 Select ('omniittee of 1H80, and while Mr. S. J. Dawson is the 
 avowe<l advouiite of the formation into a new Province of a large portion 
 of the Province of Ontario, Mr. Royal contends that Manitoba should 
 obtain ports on Lake Superior and Hudson's Bay. The masses outside 
 of Ontario take no other interest in the subject than to oppose the 
 extension of her territory without the least reference to her legal 
 rights. I may notice in this connection an extraordinary assertion in 
 Mr. W. McD. Dawson's evidence to the effiect that Quebec would not 
 have consented to enter confederation had the legal boundaries of 
 Ontario been believed to be, where they were placed by the award of 
 the Arbitrators, or, perhaps I should rather say, where the witness 
 himself stated them to be in his report in ISHT. There is a very simple 
 answer to Mr. McD. Dawson, and all who share his opinions. The 
 boundaries of Ontario depend on the construction placed on the Statute 
 of 1774, the Treaty of Peace of 1783, and the Proclamation in con- 
 formity with the Statute of 1791. The claim of the Dominion, as well 
 as that of Ontario, is based on the construction of the law. Mr. McD. 
 Dawson's recent pretension, which I need scarcely remind you is at com- 
 plete variance with the formc^r assertions both of himself and of his 
 brother, is based on the omission to define the western boundaries in th(^ 
 Commissions of the Earl of Durham in 1838, and in subsequent Commis- 
 sions, which, so far as I have any knowledge, is not deemed to have any 
 legal effect by any of the disputants on the boundary question with tlie 
 exception of the Messrs. Dawson. 
 
 CLAIMS TO MORE EXTENDED BOUNDARIES. 
 
 Having noticed those opponents of the award, who do not pretend 
 to appeal to the law in support of their pretensions, I shall advert very 
 briefly to the views of those who contend that the Proclamation issued 
 under the Statute of 1791 extended the territories of Ontario beyond 
 the boundaries of the Province of Quebec as established by the Statute 
 of 1774. The Act of 1791 declares that a message had been sent to 
 both Houses of Parliament, signifying the royal intention to divide the 
 Province of Quebec, and it then makes provision for the future govern- 
 ment of the two Provinces to be created out of the old Province of 
 Quebec. It is true that the Proclamation uses the term Canada instead 
 of Quebec. I have already stated that although a Governor's Commis- 
 
21 
 
 Hion cannot 1>«» invoked in oppoHition to nn Act of Parliaincint, it may 
 fairly be referred to when the hiii.<,'uage is at all anihiguouH. It Heema 
 to nui that the Proclamation of ITl'l could not he conatrued to give an 
 extension of territory not contemplated by the Act, but tlie lii-st Com- 
 nti.ssion iuHiied under it to Lord DorcheHter describcH the territory com- 
 prised in Upper Canada to be nil I\ ing to the westward of the* line from 
 I^ike Temihcamingue to the boundary of Hudson's Bay, "as were part 
 of our said Province of Quebec."' The Arbitrators concurred so far witli 
 the judgnu^nt of the Lower Canada Court in 1818, as to eontine the 
 western boundary to that established by the Act of 1774. I have now 
 to refer to a mild criticism which \ notice merely to drsnv attention to 
 what I consider a very reasonable view of the south-western l>oundary. 
 Shortly after the publication of the award, a writer in the Monetary 
 'fiiiias, of Toronto, criticized the decision to adopt the north-western 
 angh; of the Lake of the Wor Is as the south-western boundary, on the 
 ground that the true boundary was a point on the meridian of the 
 source of the Mississippi, due west from the international boundary. 
 The writer took precisely the same view as the Arbitrators — that under 
 the Statute of 1774 the western boundary was the Mississippi River, 
 and it must b(! obvious that such was the view of the diplomatists who 
 negotiated the treaty of peace between Great Britain and the United 
 States. Moreover, he admitted that the a -vard '* cannot be impeaclied 
 as inequitable," although he gave it as his own opinion that the Arbi- 
 trators had "stumbled" on a decision which, ''■ if the work had to be 
 done over again, we fail to see in what respects it could be materially 
 improved." I admit that there is much to be said in favour of the view 
 taken by the writer in the Monetary Times, which I believe was like- 
 wise the view of the Hon. Wm. Macdougall, who has studied the ques- 
 tion veiy carefully, and who has pronounced himself strongly in favour 
 of the Mississippi having been the western boundary of the Province of 
 Quebec under the Act of 1774. Practically it is a matter of no import- 
 ance whether the south-westerly boundary is at the international 
 boundary or at a point a few miles farther west that would be inter- 
 sected by a line on the meridian of the source of the Mississippi. 
 
 HON. WM. MACDOUGALL S OPINION. 
 
 I have noticed Mr. Macdougall's opinion on the south-westerly 
 boundary, and it may be convenient to advert here to his criticism on 
 the award as to the north-easterly boundary. In his speech on the 
 subject in the House of Commons in 1880, Mr. Macdougall stated that 
 
22 
 
 he had become satisfied that the words " boundary line of Hudson's 
 liay" had been a clerical error of the Attorney-General, but as he did 
 not state the grounds for that opinion, I am unable to judge whether they 
 are entitled to any weight. It appears however from his evidence be- 
 fore the committee, that when in England in the year 1869 he took a 
 great deal of trouble to ascertain whether the description was a clerical 
 error. He searched the records of the colonial office without success, 
 and then went to the Privy Council office were he procured the Attorney- 
 Geiieral's fiat, which, he said, he opened " with a good deal of anxiety," 
 only to find the same language as in the original proclamation, " to the 
 boundary line of Hudson's Bay." He still, however, clings to his opinion 
 that " it was an error of the Attorney-General, who being human in 
 those days, as in these, was liable to err." May it not be possible that 
 Mr. Macdougall himself has erred in his conclusion that an error was 
 committed by others ? The Arbitrators, I need scarcely add, did not feel 
 themselves justified in assuming thatthe proclamation issued inconformity 
 with an Act of Parliament contained an important error. Mr. Macdougall 
 likewise stated that the Arbitrators " had found in some communications 
 between the Imperial Government and their officers in this country the 
 words 'to the boundary line of Hudsons Bay.'" This seems to lue an 
 extraordinary mode of describing a proclamation issued on the authority 
 of the King in Council for the division of the Province of Quebec in 
 accordance with an Act of Parliament. Mr. Macdougall took no notice 
 of the commissions in which the shore of Hudson's Bay was declared the 
 l)0undary, nor does he seem to have recollected that on every occasion 
 when the territorial boundary was meant the description was invariably 
 " The territory belonging to the Merchants Adventurers trading to 
 Hudson's Bay." Mr. Macdougall has acknowledged that the Hudson's 
 Bay Company had at one time agreed to accept the Albany River as the 
 southern boundary of their territory, and although it was never agreed 
 to by the high contracting parties, still the fact that the Hudson's Bay 
 Company at that period made no claim to any coi ntry south of the 
 Albany River is confirmatory of the correctness of the award. 
 
 MR. W. M'D. DAWSON's OPINION. 
 
 I shall now proceed to the consideration of another view of the 
 boundary question. In the report of the Select Committee of 1880, the 
 evidence of Mr. W. McD. Dawson, is prominently brought forward, as 
 that of the person '* who was the first to investigate the case on the part 
 of Canada, in 1857, than whom no one should have a more thorough 
 
£3 
 
 knowledge of the subject." Mr. McD. Dawson himself states in his 
 evidence that he wrote a report in 1857 for the Commissioner of Crown 
 Lands, which he adds " has been the cause of all the controversy that 
 has since taken place in relation thereto." He gave an interesting 
 account of the circumstances under which he wrote this well known re- 
 port, having assured Mr. Cauchon, who was then his chief, " that there 
 was no authority whatever for such a boundary" as the northern water- 
 shed of the St. Lawrence. 
 
 I may state, before noticing Mr. Dawson's evidence further, that it 
 ought to be carefully read, together with his own report of 1857, and I 
 shall be much surprised if any different opinion from my own is arrived 
 at, and that, I must acknowledge, is that it is a mass of inconsistency. 
 Mr. Dawson informed the Committee that " the case presented by the 
 Dominion was no case at all," that the learned Counsel, "after a great 
 deal of desultory reading, failed to seize the true facts of history bearing 
 on it," and he then referred to the prevailing ignorance of the subject, 
 which he illustrated by a quotation from the evidence of his esteemed 
 friend, Col. Dennis, Deputy Minister of the Interior, which I shall have 
 to notice later. 
 
 CHARGE AGAINST DOMINION COUNSEL. 
 
 IMr. Dawson has not only made the very serious charge against the 
 learned counsel for the Dominion which I have just cited, but in his 
 answer to a question whether he had, himself been consulted, he declared 
 that " it very often seems to be the habit of governments not to consult 
 those who know most about the case that has to be dealt with." I 
 should feel that an apology was due from me to the learned counsel 
 icr the Dominion, Mr. McMahon, Q.C., of Ontario, and Mr. Monk, of 
 Montreal, for noticing such a charge, were it not that it enables me to 
 define clearly Mr. W. Mc.D. Dawson's peculiar position as to this question. 
 It will not I presume be denied by a single member of the legal profes- 
 sion, or indeed by anyone else, that the duty of the learned counsel for 
 the Dominion was to advocate the claim of the Government which they 
 represented, to the utmost extent of their ability. The Dominion claim 
 which was formally made in March, 1872, was to a boundary on the 
 west on the meridian due north from the confluence of the Ohio and 
 Mississippi rivers, and on the north, to the height of land dividing the 
 waters which flow into Hudson's Bay, from those emptying into the 
 great lakes. Such was the Dominion claim made in 1872, in the form 
 of a draft of instructions for a Commission to be appointed to survey 
 and locate the boundaries. If the Dominion counsel had neglected to 
 
24 
 
 support the pretension, which they were retained to defend, they would 
 of course be liable to censure, V)ut it has never l)e('n pretended V)y any 
 one, until very recently by Sir John A. Macdonald, that they failed 
 from want of zeal. I am sure that the Arbitrators would have unani- 
 mously borne testimony to their exertions in support of the boundaries, 
 which they were instructed to contend for. But then they did not con- 
 sult Mr. W. McD. Dawson. Now it is quite true that there is a very 
 wide divergence between Mr. Dawson's opinions in LS")7 and in 1880. 
 Most assuredly no lawyer who had read Mr. Dawson's report of 1857, 
 would have called on him to support the Dominion claim, and if the 
 learned Counsel could have made a forecast of Mr. McD. Dawson's evi- 
 dence in 1880, he was the last person to whom they would have applied 
 for aid in support of their case. An extract or two from Mr. McD. 
 Dawson's evidence Avill suffice. He said "I think therefore that in com- 
 mencing their description at the shore of Hudson's Bay, the Arbitrators 
 were correct." Then having referred to Lord Dui'ham's Conmiission in 
 183S, which only defined the boundary into Lake Superior, Mr. Dawson 
 states in his evidence, " From that date the Province of Upper Canada 
 no longer subsisted as a divisional part of the old Province of Quebec." 
 The Messrs. Dawson avow that they hold the opinion that the lan- 
 guage in the Commission of a Governor can supersede an Act of Par- 
 liament, although in the report it is said, " it may be r-emarked that tiie 
 judges who appeared before your Connnittee seemed to be .strongly of 
 the opinion, that the boundaries of provinces with constituted govern- 
 ments could not be altered V)y Commissions to Governors or proclama- 
 tions." I refer to Mr. Dawson's opinion at present, merely to demon- 
 strate the impossibility of counsel employed to advocate the Dominion 
 claim, being guided by his advice, valuable as he himself pronounced it 
 to be. Let me suggest a case. Had the Government of Mr. Mackenzie, 
 in 1878, instructed the learned counsel, which it employed, to abandon 
 altogether the pretension of Sir John Macdonald in 1872, and to adopt 
 the Dawson theory, if I may so term it, that the true western boundary 
 was to be determined by the Commission to Lord Durham in 1838, as 
 terminating at the east end of Lake Superior, and had the decision been 
 precisely what it was, as it most assuredly would have been, what, I 
 ask, would have been the consequence 1 Why, from one end of the 
 Dominion to the other it would have been proclaimed that the Govefn- 
 m'ent of Mr. Mackenzie had deliberately sacrificed the rights of the Do- 
 minion to the Province of Ontario. Between those who contend for the 
 due north line, and for the Mississippi boundary, there is at least one 
 
25 
 
 principle held in common. Botli profoss to be governed by tlie Statute 
 of 1774, and to claim the boundary prescribed by that Act. They differ 
 as to the interpretation of the Act, but they acknowledge it as their 
 guide. The Messrs. Dawson repudiate it altogether, and claim that the 
 Province of Canada had been deprived, by virtue of the language of a 
 Commission, of territory over wliich it had exercised jurisdiction during 
 many years. I feel assured that on one point there can be no difference 
 of opinion, and that is, that Mr. Mackenzie's Government acted wisely 
 in in.structing their Counsel to maintain the Dominion Claim precisely 
 as it had been put forward by the Government of Sir John ^lacdonald. 
 Even if Mr. Dawson's view of the question were as sound, as I believe 
 it to be the reverse, it would have been most improper for counsel to 
 have entertained it. Their duty was to defend the Dominion claim, not 
 that of the Messrs. Dawson ; and they performed it faitlifully. 
 
 MR. WM. M'D. D.WVSOX's INCONSISTENCY. 
 
 In his report in 1857, Mr. Dawson had taken the most extreme view 
 of the claim of Ontario, then part of United . Canada, and he felt it 
 necessary to endeavour to reconcile that opinion with the one which he 
 subsequently adopted in 1880. He declares in his last evidence: "I 
 claimed these countries as the birthright of the people of United 
 Canada," but he soon after admitted that " the claim put forward by me 
 would have inured, if promptly and efficiently maintained, to the bene- 
 fit of Upper Canada, but that was not a point of special importance at 
 the time we were one Province, under one government and one logisla- 
 ture, and every acre of those vast regions was as much the property of 
 the one as the other portion of the United Provinces."' This is a speci- 
 men of Mr. McD. Dawson's mode of i-easoning. The claim was either 
 in accordance with the Act of 1774, or it was without foundation. In 
 1791, Mr. Dawson must admit, that all the territory in the old Province 
 of Quebec, which was not comprised in Lower Canada, became part of 
 Upper Canada, The disputed territory, as I Avill call it for th(^ sake of 
 convenience, was, of course, part of the United Province, and when the 
 Provinces were again separated Ontario retained the precise boundaries 
 of Upper Canada. To do the Dominion Government justice, they have 
 never pretended that Ontario was not entitled to her true boundaries, but 
 have merely disputed what those l:)oundaries really were. Mr. Dawson 
 asserts that the decision of the Arbitrators '* has no basis whatever of 
 history or fact to sustain it," and he then gives it as his opinion that 
 they had " one of three things open to them to declare," viz. : 1st. That 
 
26 
 
 Ontario embraced the whole North-West Territory under the Procla- 
 mation of 1791, which I have just dismissed as untenable." The Arbi- 
 trators dismissed it likewise, although Mr. McD. Dawson's report of 
 1857 was calculated to induce them to adopt that boundary. 2nd. 
 "Tiiat it was bounded by the line prescribed by the Quebec Act in 
 1774." That was precisely what the Arbitrators did decide, although 
 the precise boundary was necessarily govei'ned by the terms of the 
 treaties between Great Britain and the United States, negotiated dur- 
 ing the interval. 3rd. "That a more recent definition, which they 
 seemed to have intended to adopt in part, should prevail. Mr. Dawson 
 is completely mistaken if he imagines that the north-eastern boundary 
 was adopted on the ground of the language in the Commissions of Lord 
 Durham and of other Governors. The Proclamation issued under the 
 authority of the Statute of 1 7 9 1 and of an Order in Council, was the ground 
 of tlie decision, although the Commissions were held to be corroborative 
 of language not (^uite so clear as might have been wished. It appears, 
 then, that although Mr. W. McD. Dawson stated in his evidence that 
 the decision of the Arbitrators " had no basis whatever of history or 
 fact to sustain it," the south-western boundary was determined on 
 one of the three grounds which he himself stated in his evidence it was 
 "open to them to declare," viz., "that it was bounded by the line pre- 
 scribed by the Quebec Act in 1774," while, as regards the north- 
 eastern boundary, his own language in his evidence is : — " I think, 
 therefore, that in commencing their description at the shores of Hud- 
 son's Bay the Arbitrators were correct." I think that it will be gener- 
 ally admitted that the evidence of Mr. W. McD. Dawson has no weight 
 whatever, and I shall therefore proceed to consider the course which the 
 Dominion Government has adopted with reference to this boundaiy 
 dispute. 
 
 POLICY OF DOMINION GOVERNMENT. 
 
 It will, I presume, be at once admitted that the Province of Ontario 
 is entitled to precisely the same territory west of the Quebec boundary 
 line to which united Canada was entitled prior to Confederation. I 
 liave already referred to Mr. Cauchon's report of 1857, which Mr McD. 
 Dawson claims as his own, and which is published as his in the appendix 
 to the report of the Select Committee of 1880. That report, which was 
 adopted by the Government of the day, concludes a long historical state- 
 ment in the following words : — " This brief chronological sketch of the 
 history of the Company and of the circumstances connected therewith, 
 must sufficiently shew that they have acquired no territorial grant what- 
 
27 
 
 ever under either of the two conditions to which their Charter was subject ; 
 first, as regards the countries then known upon 'the coasts and con - 
 fines' of Hudson's Bay, because they were already in possession of 
 another Christian prince, and were therefore excluded from the grant 
 in terms of the Charter itself ; and, second, as regards discoveries, be- 
 cause when they first penetrated into the interior, 104 years after the 
 date of their Chartei', they found the country and, a long established 
 trade, in the hands of others, unless, indeed, as regards some discoveries 
 to the north, which are of no special importance to Canada." In his 
 evidence before a committee in 1857, Mr. McD. Dawson stated that for 
 " the boundary designated for us by the Hudson's Bay Company, viz., 
 the water-shed of the St. Lawrence, there is no earthly authority except 
 themselves." Mr. Dawson's view, which gave Canada, now represented 
 by Ontario, much more territory than was given to it by the Arbitrators , 
 was deliberately adopted by the Government of the day. On the 16th 
 January, 1869, a letter was addressed to the Colonial Department by 
 the late Sir George E. Cartier and the Hon. William Macdougall, from 
 which I shall make a brief quotation : — " Whatever doubt may exist as 
 to the ' utmost extent ' of old or French Canada, no impartial investi- 
 gator of the evidence in the case can doubt that it extended to and in- 
 cluded the country between the Lake of the Woods and Red River." 
 The chief opposition to the award of the Arbitrators has been raised by 
 the professed admirers of Sir George Cartier, who declared that "no 
 impartial investigator" would hesitate as to giving Ontario a greater 
 extent of territory than that awarded by the Arbitrators. It is evident 
 from another part of the letter that Sir George Cartier and Mr. Mac- 
 dougall held the same views as the counsel for the prisoner in the De 
 Reinhardt case, as the counsel for the Ontario Government, as the Hon. 
 Mr. Mills, and as both the Messrs. Dawson so late as 1876. I shall 
 now advert to the negotiations in 1S72 between the Governments of the 
 Dominion and of Ontario. On the 14th March of that year the Hon., 
 Joseph Howe, the Secretary of State, transmitted to Lieut. -Governor 
 Howland, a draft of instructions to be given to the Commissioner who 
 was to be appointed to locate the boundary line. The instructions pre- 
 scribed as the westerly boundary the meridian of the confluence of the 
 Ohio and Mississippi rivers, known as the due north line, and as the 
 northerly boundary the height of land. This was objected to by 
 Ontario, and the boundary has remained ever since in dispute, although 
 in a report made by Sir John Macdonald on the 1st May, 1872, the im- 
 portance of establishing it without delay was forcibly urged. It is to 
 
28 
 
 l»e inferred from the evidence of Col. Dennis, Deputy Minister of the 
 Interior, that the Dominion claim made early in 1872, and which was 
 at complete variance with the previous pretensions of that (jrovernment, 
 was based on a report from himself to the Minister of Justice, Sir John 
 A. Macdonald, dated Ist October, 1871. In that report it is expressly 
 stated, in section 18, that the Charter of the Hudson's Bay Company 
 described their grant " as extending over and including all lands and 
 territories drained by the waters emptying into Hudson's Bay," and 
 reference is made to a copy of the Charter marked F. On this Mr. W. 
 McD. Dawson remarks : — "Whereas there are no such words in it, nor 
 anything that, as I would translate that very al)surd document, could 
 possibly bear such a construction." Mr. McD. Dawson did not, Avhen 
 pointing out the mistake into which Col. Dennis had fallen, advert to 
 the fact that this misquotation from a document which, it may be pre- 
 sumed, Sir John Macdonald accepted without ascertaining its correct- 
 ness, was made the ground of a territorial claim which, although nearly 
 ten years have elapsed, is still in dispute. 
 
 AWARD SHOULD BE ADOPTED OR SET ASIDK ON APPEAL. 
 
 The question at issue between Ontario and tlie other Provinces com- 
 prised in the Dominion is so important that 1 feel that it would be 
 unbecoming in me to make any complaint of the treatment of the Arbi- 
 trators who faithfully discharged a public duty which they were called 
 upon to perform. Their unanimous award, arrived at after a careful 
 study by each Arbitrator of the evidence in the case and without previous 
 consultation or communication of any kind with one another, has been 
 attacked in a manner wholly without precedent to the best of my belief. 
 I am persuaded that no Government; in Great Britain would repudiate 
 an agreement entered into by its predecessors to leave a disputed ques- 
 tion to arbitration. This, however, is a point which I have no intention 
 of discussing. I merely wish to state that ray own anxious desire would 
 be that there should be an appeal to set aside the award to the highest 
 judicial tribunal. In the mean time I desire to record my entire dissent 
 from the statement of Mr. S, J. Dawson, as reported in Hansard, that 
 ** the award was made in the absence of anything like full information 
 on the subject, and even without a due consideration of the information 
 that was available," and having by your indulgence been permitted to 
 explain the grounds on which the award was made, I rely with implicit 
 confidence on the judgment of an enlightened public as to its merits. 
 
29 
 
 SUMMARY OF CHAR(iES— DEFENCE OF COl'NSKL. 
 
 I shall be as brief as possible in suiiimiug up. I think the charges 
 may be stated as, 1st, "The whole case was thrown away — it looks 
 almost as if it was deliberately thrown away." "It was most wretch- 
 edly managed on the part of the Dominion." 2nd, "They, the Arbi- 
 trators, did not affect to set up the true boundaries according to law ; 
 they laid down a mere conventional or convenient boundary." I have 
 given the utterances of Sir John Macdonald in the House of Commons 
 on the 18th March last as I find them in Hansard. In support of the 
 first charge. Sir John Macdonald referred to the Imperial Act author, 
 izing the surrender of Rupert's Land and the North- West to Canada, and 
 stated that "the contention was not raised that that Act says that 
 Rupert's Land shall be held to be whatever was in possession or deemed 
 to be in possession of the Hudson's Bay Company," and again " to shew 
 how ineffectually the Dominion case was presented, I may say that that, 
 view of the subject was never presented before the Arbitrators." I fear 
 very much that owing doubtless to his more pressing duties. Sir John 
 Jias been unable to read the papers in the boundary case, and that he 
 has relied on others, as in the case already noticed of Col. Dennis's mis- 
 quotation in 1871, to supply him with facts. Had he read the parlia- 
 mentary blue book he would have found at page 254 in the Dominion 
 case submitted by Mr. McMahon, Q.C., the statement that the 2nd section 
 of the Act, .31 and 32 Vic, cap. 105, provides that Rupert's Land " should 
 include the whole of the lands and territories held or daitwd to he held 
 by the said Governor and Company." The words underline! were placed 
 in italics, but possibly l)y the fraraer of the report or some other official. 
 Mr. Mc^NIahon, however, in his address to the Arbitrators, as will be 
 seen at the foot of page 283 and 284, specially brought the clause under 
 consideration as being " a confirmation of everything that the Hudson's 
 Bay Co. had been claiming under their Charter " adding " that is a point 
 which I am sure the Arbitrators will not lose sight of in dealing with 
 the question." And yet Sir John Macdonald stated in the broadest and 
 most explicit terms that Mr. McMahon never presented this view to 
 the Arbitrators, and consequently deliberately threw away the case. A 
 word now as to the Arbitrators. I can only answer for myself. My inter- 
 pretation of the Rupert's Land Act is that it was intended to convey to 
 the Dominion the whole propeiiiy of the Hudson's Bay Company, with 
 certain specified reservations that have no bearing on the point under 
 consideration. I did not imagine that the Act could be so interpreted 
 as to transfer territory belonging to a third party, and I am perfectly 
 
30 
 
 certain that if Sir John Macdonald's construction of the statute could be 
 maintained, it would be in direct contradiction to the spirit and intention 
 of the Act, and a gross act of injustice. I proceed to the second charge. 
 The duty of the Arbitrators was to find the true boundaries of Ontario, 
 and they pre charged with declaring " a mere conventional or convenient 
 V)0undary." Now, for my present purpose, I shall refer merely to those 
 pretensions which specially engaged the consideration of the Arbiti-atora 
 as affecting the south-western boundary. On the claim under the Procla- 
 mation of 1791, which the Arbitrators held to be valid, notwithstanding 
 the able arguments of counsel, of the Hon. Mr. Mills and others, includ- 
 ing the Messrs. Dawson, one of whom, the Chairman of the Committee 
 of 1880, fixed the boundary at the White Earth River, 450 miles west 
 of the Lake of the Woods, they concurred in the judgment of the Quebec 
 Court in 1818 that no territory could be awarded to Ontario that was 
 not comprised in the old Province of Quebec as created by the Act of 
 1774, modified by the Treaty of 1783 with the United States and by 
 subsequent treaties. They entirely rejected the Dominion claim to a 
 boundary on what is known as the due north line, and having no doubt 
 whatever that the Mississippi River was the western boundary of the 
 old Province of Quebec by the Act of 1774, and that by the Treaty of 
 1 783 the south-western boundary must be either at the international 
 boundary at the north-western angle of the Lake of the Woods, or still 
 further west, they decided in favour of that boundary which they were 
 clearly of opinion Ontario was entitled to. On the north-east they were 
 clearly of opinion that the height of land boundary could not be sus- 
 tained, and that the true point of departure was the point on James's Bay 
 due north from the head of Lake Temiscamingue. 
 
 CHARGE OF ADOPTING A CONVENIENT LINE REFUTED, 
 
 The sole ground for the charge that they adopted a conventional or 
 convenient boundary, is that the line connecting the north-eastern and 
 south-western boundaries was adopted for the sake of convenience. The 
 Arbitrators were guided in their decisions solely by Acts of Parliament^ 
 Proclamations authorized by Orders in Council on the authority of Acts of 
 Parliament, and international treaties. They found in the Proclamation 
 of 1791, that after reaching James's Bay, the description proceeded thus : 
 " including all the territory westward and southward of the said line to 
 the utmost extent of the country commonly called or known by the 
 the name of Canada." If the critics of the award believe such language 
 susceptible of the construction that it lays down a precise spot on the 
 
31 
 
 north-west as a boundary, then their charge might have some foundation, 
 but the fact is that tlie language would have justified the Arbitrators in 
 extending the boundaries of Ontario very considerably. They were 
 strongly urged by Col. Dennis, one of the permanent staff of the De- 
 partment of the Interior, after their decision as to the south-westerly 
 and north-easterly bounilaries became known, to connect the two points 
 by a natural boundary, and being aware of the fact that the Albany 
 Kiver had been formerly suggested by the Hudson's Bay Company ae a 
 satisfactory southern boundary, they adopted it. It is not a little 
 singular that the award was promptly accepted by Ontario, although the 
 only questions of doubt were decided in favour of the Dominion. Both on 
 the west and north the doubts were whether Ontario should not have had 
 more territory. 
 
 TUB MANITOBA BOUNDARY ACT. 
 
 I must say a few words on the Boundary Act of last session, which 
 Appears to me to be a most extraordinary attempt to solve the question 
 in controversy. The objection made to the award of the Arbitrators is 
 that they did not find the true boundaries, but adopted a convenient 
 boundary. I need not repeat my refutation of this allegation, but even 
 on the assumption that it had any force, it would not apply to the 
 western boundary, regarding which the Arbitrators were clearly of opinion 
 that the international boundary at the north-western angle of the Lake of 
 the Woods, was the true point of departure. The northern boundary 
 which, owing to the vagueness of the language employed in the Procla. 
 mation issued under the Act of 1791, is more open to doubt, remains 
 still in dispute between the Dominion and Ontario, so that the Act has 
 simply engaged the Province of Manitoba in the controversy as to one 
 branch of the award, and has thus made confusion worse confounded. 
 Moreover, the Dominion is now contending for a territory on the north 
 of Ontario and eastward of Manitoba's new boundary, which could 
 scarcely be erected into a Province. I do not think, however, that the 
 Act of last session will prove disadvantageous to Ontario. It has put 
 an end to the Dawson scheme of a new Province of Algoma, and it has 
 rendered it almost necessary to settle the western boundary, in which 
 Manitoba is interested, without reference to the northern boundary, 
 with which that Province has no special colicern. The western bound- 
 ary is not only the most important, but the least open to doubt, as I 
 think I have already clearly demonstrated. I will only add in conclu- 
 sion that the Arbitrators were of opinion that having reference to all 
 
32 
 
 the facts of the case, the boundaries set forth in the award were sup- 
 ported to !i Jarger extent than any otlier line by these facts, and by the 
 considerations and reasons whicli should and would yuide and goA'ern 
 the determination of the questions by any competent legal or other 
 tribunal. 
 

 A