^ ^^^. ^>, V..W. IMAGE EVALUATION TEfT TARGET (MT-3) '-•' 1.0 I.I 1.25 lU 12.0 i-4 IIIIII.6 ^^ y /] 7 ?^ ""^ w^''-***" '^/v^'*" ^ o / M Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (7l6) 5/*-^5V<5 '^ ■^ i^ U CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Tschnical and Bibliographic Notas/Notaa tachniqua* at bibllographiquaa Tha Instftuta has attamptad to obtain tha baat original copy available for filming. Faaturaa of this copy which may ba bibliographically uniqua, which may altar any of tha imagaa in tha reproduction, or which may significantly changa tha usual method of filming, ara chaekad baiow. □ Coloured covers/ Couvertura da coulaur I — I Covers damaged/ D D a D n Couvertura endommagia Covers restored and/or laminated/ Couverture restaurie et/ou pellicuMe n Cover title rnissing/ Le tit titre de couverture manque Coloured maps/ Cartes giographiquas en couleur Coloured ink (i.e. other than blue or black)/ Encra de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations/ Planches et/ou illustrations en coulaur Bound with other material/ Reli4 avac d'autras documents Tight binding may causa shadows or distortion along interior margin/ La re liure serrie peut causer de I'ombre ou de la distorsion le long de la marge intirieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajouties lors dune restauration apparaissent dans le texte, mais. lorsque cela itait possible, ces pages n'ont pas iti filmtes. Additional comments:/ Commentaires supplimentaires: „ L'Institut a microfilm* le meilleur exemplaire q-j'il lui a it* possible de se procurer. Les details de cet exemplaire qui sont peut-*tre uniques du point de vue bibliographique, qui peuvent n odifier une image reproduite, ou qui peuvent exiger une modification dans la mithoda normale de filmage sont indiqute ci-dessous. TiM totd I I Coloured pages/ Pages da couleur Pages damaged/ Pages endommagdas □ Pages restored and/oi laminated/ Pages restauries et/ou pelliculies r~1 Pages discoloured, stained or foxed/ [yU Pages dicolordes, tacheties ou piquies D TtM pOM Of U film! Orig begi the I •Ion othe first sion or ill r~n Pages detached/ Pages d*tach*es Showthroughy Transparence Quality of prir Qualiti inigala de i'impression Includes supplementary matarii Comprend du matiriei suppiimentaire Only edition available/ Seule idition disponible rr] Showthrough/ r~~| Quality of print varies/ |~n Includes supplementary material/ pn Only edition available/ Tlw ■H«l TINi whi( Map diffc entii begi righi requ metl Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une peiure, etc., ont *t* filmies * nouveau de facon i obtenir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est film* au taux de reduction indiqu* ci-dessous. 10X 14X 18X 22X 26X 30X J ^ 12X 16X 20X 24X 28X 32X Th« copy film«d hare hat b««n raproducad thanks to the generosity of: Douglas Library Queen's University L'axamplaira fiimt f ut raproduit grica k la ginArositd de: Douglas Library Queen's University The images appearing here are the best quality possible oonsldering the condition and legibility of the original copy and In keeping with the filming contract specif Icatlona. Las Images sulvantes ont M4 reproduites avac la plus grand soln, compta tenu de la condition at de la natteti de i'exemplaire filmi, et en conformity avec lea conditions du contrat da fllmaga. Original copies in printed paper covers are filmed beginning with the front cover and ending on tha last page with s printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or Illustrated Impres- sion, and ending on the last page with a printed or illustrated impression. Les exempiaires origlnaux dont la couverture en papier est imprimAe sont fllmfo en commen^ant par !e prsmisr pist st sn tsrmlnsnt soit par !a dernidre page qui comporte une empreinte d'impresslon ou d'lliustrstlon, soit par ie second plat, salon la cas. Tous las autres exempiaires origlnaux sont filmte en commen^ant par la pramiire page qui comporte une empreinte d'impresslon ou d'lllustration et en terminant par la darnlAre page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the symbol -^(meaning "CON- TINUED "), or the symbol V (meaning "END"), whichever applies. Un dee symboies suivants apparattra sur la derniAre image de cheque microfiche, seion ie cas: ie symbols --► slgnifle "A SUIVRE", Ie symbols V signif!e "FIN". Maps, plates, charts, etc., may be filmed et different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames ea required. The following diagrams illuatrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmte A des taux de reduction diffirents. Lorsque ie document est trop grand pour 6tre reproduit en un seul cliche, 11 est f llmA A pertir de Tangle supirleur gauche, de gauche d droite, at de haut en baa, en pranant ie nombre d'imagea n^cassalra. Les diagrammes suivants lliustrent la mithoda. 1 2 3 1 2 3 4 5 6 [he ontar LEC POL Thh Proci WITH SI ANELA EDll (>^-."P,>f^V, VtVN/ ( CC'.\Jv\c.i\ , "Yixd \ t K a.\ C Ovv,>yi VW*. HE ONTARIO BOUNDARY CONTROVERSY: LEGAL AND CONSTITUTIONAL POLITICAL AND HISTORICAL: »'i Thk Proceedings Before The rMPERiAL Privy Council, WITH SELECTIONS FROM THE DOCUMENTS IN EVIDENCE, A SPECIAL APPENDIX, AND ANIELABORATE ILI 'ISTRATIVE HISTORICAL MAP. EDITED, WITH ClUTICAL ANP EXPLANATORY NOTES, lii JOHN P. MACDONELL Of the Ontario Civil Service. TORONTO : THE CARSWELL COMPANY (Limited). 189G. fe Jf f \ LP r r C, -]0 / T HIS volui Govemi It contai important qu( miles was, af coafirmed to Dominion of Province of < of its own, w principles as } The Edit the paper, Ap closing parag observations < He has h iiection with i upon by the Ontario — now the evidence, the superviai passed throu| which had be he employed with that w sent on the ai Committee ol instance of t out of the O Cfise also, in t also compiled 1882, and he affixed. It is Oliver Movvai the territory iirdent devotii and tact, and J Preface. "TFT V ^HIS volume, for general circulation, is iasuetl with the permission of the Government of Ontario. It contains the record of the proceedings in final settlement of the important question of boundary, wherein a disputed territory of 100,000 square miles was, after a litigious contention extending over a period of '20 years, coutirmed to the Province of Ontario. The parties concerned were the Dominion of Canada, and the Provinces of Ontario and Manitoba : with the Province of Quebec watching developments, as having a boundary tjuestiou of its own, which must ultimately be settled by the application of the same principles as governed this case. The Editor is alone responsible for the foot notes throughout, and for the paper. Appendix B, pp. 408-416. He calls attention to the opening and closing paragraphs of that paper, and to the Note at pp. 406-7, as containing observations of general application. He has had special opportunity of being familiar with all the facts in con- nection with this dispute, as, from 187G until the matter was finally adjudicated upon by the Privy Council, he was employed by the Attorney-General of Ontario— now The Honourable Sir Oliver Mowat, K.C.M.G. — in examining the evidence, or sources of evidence, bearing upon the question, and, under the supervision of the Attorney-General, put in form, and annotated, and passed through the press, for submission to the Arbitrators, the material which had been gathered by the Attorney-General himself and those whom lie employed to assist him ; and he subsequently also dealt in a similar way with that which was to be submitted to the "Privy Council. He was pre- sent on the argument before the Arbitrators, and on that before the Judicial Committee of the Privy Council. He performed the like services, at the instance of the Attorney-General, in the " Indian Title " ca.se, which grew out of the Ontario Boundary case, and was present at the arguments of this Cfuse also, in the various Courts, and before the Judicial (,^ommittee. The Editor also compiled, by the like direction, the "Ontario Boundary Papers," 1856- 1882, and he prepared the notes to which the initials "G. E. L." are there affixed. It is needless for him to remind the reader what Ontaiio owes to Sir Oliver Mowat in this matter of the assertion and establishment of her right to the territory in dispute. But for his profound study of the (jue-stion — his smlent devotion to the labours involved — his mastery of every detail — his skill, and tact, and generalship — this valuable territory, stored with wt^alth of timber n I'UKVXVh—CoitCniKri/. and iiiiuemLs and iiivcious metals, and wliich promises ir, l.e one of the richest gold producing areas of the world, miyht have been lost to the Province. This 18 generally known and acknowledged ; but it is not so o-enerally known or realized, that whilst the other (Jovernments committed their interests to the bauds ot outside counsel, and paid them fees commensurate with the magnitude of the matter at stake, /ns services, whether at the bar or in the study— long- continued and engrossing, an tins interesting subject. The copious notes, critioil and historical, illustrate and add to the interest <-^t tlie toxt, an.I enable even those who may have had no previous acquaint- Huco with the subject t.. api.rehend the bearing of the various points in arguiueiit. TOKON'TO, •k-XK, 189(5. n, Srd Auiniiit, IS78, «ztwMM oa Um North and North-t /Lto, M on I r ioi., (ap. U, putpwted to tniufor lyMI Aot parpoit*d to timnttor to •nd WMolatBMd bjr AM ■■•,ji»'.i>'t^ *4J--v««ta>«d from On- likaftKkV-^rtot Vrltmr « hU It^eiibt tioni »9,000 " AOttlMtpartof '^-'"V— - ••aon«dt«Tittoiy ^ -SoDtb Md Km* , b»«t Lmmi .... 7.000 •• \ M 01 diqnMI '^ ,y 'X'wliiiad IM Onto* ^; 100" ■3^ r .RIO. NITOBA, ART. uncil. province e Woods, mourable r (2) is a rovince Ohio ng the valley 181), pro- )m where Canada sinuous ed for by irnments, Order in lound by i fi 95* 90* 19' SO- TS^ r*^ : 7 nr-" CCkmMK >^ V. bt ».^. A w»**.' .rork "■ ■: f-'' 4 * S Z'^^ N 3i '-ft-'-',' ?\i 1 \ ^ / \ J 22J^ / J ha ^^l^^^^''^ y "^^ f%i' "^!: -?ii''-. ,?>* u :0- \ 4 i>r THE WOdM At OtS BPIS V^.I ril.CH.-'*"*' ^.....x-^-^^r^^ 'H .^^< ^. \ y- JV/ < ft »'(, , ^MiAAi*«wJ •■:^1^1 r^ : iJm i-****** *'.' 1 irW# •■ ..^■"vo-w, ^* \ '^*,-ff-^^" ,^~^ fa 4 ^ \. %,\\h>^ <-'Ji ■a/ tfmUHtrtlt tf rtfCknadOr /*y »\m» OUT ''PI?5 ■"^^ ^^^^-V— tJ SBSIfiSi 4^ I ""■•V,, ':ni| 7^—-^^. /T^^i [ si •1 \' '» K IS >Vj It?- .e^Jli^'e. \ -4— \^%'&-,„J...J. 0" »( f KANses OF 8^r LOU '9 ^ rHE 4 F'CtNEvlEve * Thrill l||||'r||"|"-|" I ,F' PRUDHOWME tuUi bijla. SaiU !Sti2 ttltumt. Mil oUi.vt'UiidthiM'UJtSsifirit^ Jar 1673 85^ aod golc isgi real Ui 'K conti lucrs esped does, Bri emt arm ->. -«IH ■Mi % THE PROCEEDINGS ^ BKTOBE HEB MAJBSTY's IMPKBIAL PBIVT COUNCIL ON THB ' ; SPECIAL CASE BESPEOTINa THE '..■ WESTERLY BOUNDARY OF THE PROVINCE OF ONTARIO. IN THE PRIVY COUNCIL. ; I IN THE MATTER OF THE BOUNDARV BETWEEX THE PROVr^CES OF ONTAR.O AND .«AN,TOBA IN THE DOMINION OF CANADA. """ba. Between. THE PROVINCE OF ONTARIO. OF THE ONE PART, AND THE PROVINCE OF MANITOBA, of the other part. SPECIAL CASE Meferred to the Judicial Committee of Her Majesty's Imperial Privy GouncU and tleVrrvI^ce'of On\TH^^ *'^* 'h' '^"^^^^^ between that province and MissisS River^^^^^^^ of the Ohio waters whi^h^flow Into Hudson's Ba/tV.'"" ff *''' W* ^^ ^^"^' ^^^^^ing the o^^heGreatW^^^ *^e vaHe, .that^el^l^rbS^^^^^ 44 Vict., cap. 14, (1881). pro- the westerly boundary of the Province of OnJ^rln Jf ? .L *' "" '^ * ''"e drawn due nortt f rom wEew, from the United States of America " The ^^l^-'r*""^ line of the height of Wn^ iJ^^, ?^:.:u .t^^, alternat ve claim of Manitoba, to the irr«<,„i;. .' f h?"~* to*th1l!;di Th« reference oFth; Case; howeveTaraVc°edSoXh^^ '^tu''^ ""'''' line provTded fo'r'by CotcK^^titlfeSrTChl the decision of the'j'udioiaYooTmiitee " (JoS^^^^^ ^""^'^''"^ " "^eir readiness to beVund by 1 (B.) THE SPECIAL CASE. .[ It has been agreed to refer the matter to the Judicial Committee of Her Majesty's Privy Council, and an Appendix has been prepared containing the materials agreed to be submitted with this Case for the adjudication of the dispute. Each and every of the particulars in the said Appendix is submitted quantum valeat and not otherwise. In addition to the particulars s( ' forth in the Appendix, any historical or other matter may be adduced which in the opinion of either party may be of importance to the contention of such party ; and (subject to any rule or direction of the Judicial Committee in that behalf) such additional matter is to be printed as a Separate Appendix by the party adducing the same ; and copies are to be furnished at least ten days before the argument. The bo k known as the Book of Arbitration Documents may be referred to in the argument for the purpbse of shewing, in part, what materials were before the Arbitrators.* It is agreed that in the discussion before the Judicial Committee of the Privy Council reference may be made to any evidence of which judicial notice may be taken, or which (having regard to the nature of tho case and the parties to it) the Privy Council may think material and proper to be considered, whether the same is or is not contained in the printed papers. The questions submitted to the Privy Council are the following : (1) Whether the Award is or is not, under all the circumstances, binding. (2) In case the Award is held not to settle the boundary in question, then what, on the evidence, is the true boundary between the said provinces. (3) Whether, in case legislation is needed to make the decision on this Case binding or effectual. Acts passed by the Parliament of Canada and the Provin- cial Legislatures of Ontario and Manitoba, in connection with the Imperial Act, 34-5 Vict., cap. 28, or otherwise, will be sufficient, or whether a new Imperial Act for the purpose will be necessary. O. MOWAT, Attorney-General of Ontario. James A. Miller, Attorney-General of Manitoba. * The Book of Arbitration Docun^ents, printed under the title " Statutes, Documents and Papers bearing on the Discussion respecting the Northern and Western Boundaries of the Province of Ontario, including the principal evidence supposed to be either for or against the claims of the Province. Oompiled by direction of the Government of Ontario ; with explanatory Notes," — is also printed in Sess. Papers, Ont., 1879, No. 31. The Cases submitted to the Arbitrators on the part of the Province and the Dominion respectively, together with a report of the argument of counsel on that occasion, as well as the correspondence and papers relating to the boundaries, of dates from 1856 to 1882, will be found in Sess. Tapers, Ont., 1882, No. 69. THE ARGUMEiNT. ; Council Chambkk, Whitkham,. TUESDAV, July loth, 1884. I resent : The Right Honourable The Lord Chancellor Ihe Right Honourable The Loin) Pjiesident, The Rigiit Honourable Lord Aberdare. The Right Honourable Sir Barnes Peacock The Right Honourable Sir Montague E SmIth The Right Honourable Sir Robert P. Collier ' Counsel for Ontario :— Mr Mowat on j>/ Mr. ScoBLE. Q.C., ?.!r. Mills, and Mr Haldane. ^'^^''^^^"^^'^^-"^ /-' Ontario, Counsel for Manitoba :~Mr. J. A Milter Or Ati. n Manitoba, an.l Mr. £>. McCarthy, Q.C. ''''^'^^'^' ^'^■' Attorney -General jor Counsel for the Dominion Government and Mr. Hugh MacMahon, Q.C. -Mr. Christopher Robinson, Q.C., f.., . Mr.- Moc\™''l/"do'L\T ; Z^Z "" ^-'r-Z-vinee of Ontario. who has the right to begin in Jl is ca ^ I tnl T\^''t^^'^P^ ^^^« considered The Lord Chanc\llor._'suTs antia'h? th^V 'f ^''"^^'"^^ ^^ ^^^^hoh^. whether a certain Award is or is not Sr Im H ' -^''^ ^i""''''«" submitted is [denies its validity ? ' ^""^ *'^ ^^^ circumstances, binuing. Who Mr. MowAZ-The Province of Manitoba. i/:^MZ^^^ru^"^«^-^^-^'^^i^>- |^.^^The^L0RD CHANCELLOR.-I suppose you would say ^, ^rU.a facie, is Mr. Mowat.— Yes, my Lord. The Lord CHANCELLOR.—If so woiil.? nnf u i [disputes its validity to bcnn ^ ^ '"''"' "I'«" ^-'^^ Person wlio Mr. MowA-r-If youP Lordships think- ri.d.t Ihe Lord Chancellor.— Of course if hnfi, r.v |that would be a different thin./^ ' ""^ ^'°" ''^^^'■<^*'^^ '^ was not binding .or£ifaftX-;;^5i;;{f^raJ:;S'^r^'^^^i ^•^^ ^-«^"-*^-- P-ba^y can, fclie history of the ca,^Ld the cf;;,^' f ,, ^ '^'"^"'l just state, as shortly as I fnade to arbitration anr'the award w ^f '' ""'^"' ^'^^'^'^ ^he reference was tn 1867, the Confederation A^'was Tnssel brt Tt \ '''' «'''^^*-^-- banada was brought into the ^^^1^"!^ IH::!^'^ the then Province of ■n,. Pn,>w: c ...... '-■■■ •"••' ••'::cauiu pare oi the Dominion as as to the k*.;, mi T^ -"v.-...^ ar, ui, yiit, part, ^ther. The Provinces of New Brunswick part and the Province of Quebec and Nova Scot la 3 were also made a part ARCJUMENT OF MR. m'CAHTHY, (^.C. Ind to bt;mfa part ofSada a, colderate.l, upon the joint Pf '■''■■»' ^* riZ of the Hudson's Bay Company, who c a med to be tl^y,^";;'?"^^"^ ^^^^ • ° ■ <• r.f v..r.f «rprp fhe owners— of what is known as Rupert s Land, a con iVvTsv was entored into onTel alf of the Canadian government, continuing he fZrIvtht had been initiated before confederation, in which it was attempted rfrshc vCtiat theS^^^^ to the Hudson's Bay Company, which was made as «?!« ^nie in 1S6H By that Act provision was made for setthng the dispute the J.o";fc/^^^^'«^; was done in the year 1870. Shortly after that, the Province of S=t ^^^ ^^^^ St re'teS to U ™;JiZanr;erhap; beyond the point, which the arbi^ra^^ tor have s'nce determined as being the limit of Ontario on ^^e we,st^ The tors navt smce Dominion asserted that the Rupert s Lanil Act ^Hl'lTho le tfon and defined th^ boundaries of Rupert's Landfor the purpose. S conf d rEn^^^^^^^ whether that Act did or did not -"le-d determine fLf n-iPsHon at all events it was determined by the Quebec Act of 1774, by wh ch theTmits of the Province of Quebec were fixed. That Province afterward^. wiTdivided into two provinces, called Upper and Lower Canada m 1/91 In 7h40 these two Provinces of Upper and Lower Canada were again united and I IVp tW Province of Canada" to be disunited at the time of confederation, and ToZLXo^in^TofoL^^^ Quebec. Thereupon, by cert^^in Or^ .^^ r^.uncil of the Dominion of Canada on the one side, and o^^he Province of nn^^rio on the other it was proposed to refer the question of the dispute as to ?he boundad;: to thVawld 'of Lo gentlemen, who were named, and who were ^^'ra'S^f ttiK^^^^^^ this time had :.anitoba been taken into the ^^''^fl"' tlcCAUTHV -Manitoba was carved out of the new territory S ROBBRI COLLIEU.-Y0U sdd it was provided that it should be taken into tl"e confedeiration on the address of the two Houses-had the address of the '"^ SrSccSHT-twal to be taken in, but not as Manitoba. Rupert's Land '' ' ^ir^kS ^SSl^t tt^ auestion, whether the address had l^o I o/ifnal1'«'' presented ? ... . -.nni a''^"r fV~»..l Mr McCarthy.- Yes ; that was in LSTO, and ic was in l^rKaxtcr th^-, ditfe.^nces had arisen between the Dominion and tlie Province of Ontario th^ Or^ier^were 'nade referring the point. What the Dommion contends for is thi.^ the Dominion says the award is not binding. 4 (QUESTION OF THE VALIDITY OF THE AUUITRATORS' AWAUI). cen into the M i^n <^"ANCELLOR.--I thought you said you appeared lor Manitoba ? Mr. McGarthv.-I should have explained. Manitoba, as originally formed. did not come as far east as it does now. It did not touch the Province of (Jntario, as tiie Dominion claims the Province of Ontario is. There was a con- siderable space, some 200 or P.00 miles, between the we.stern part of Ontario and the eastern part of Manitoba, as Manitoba was formed. In 1880, Manitoba was of OiSado" ''*'^'''" boundary of Manitoba goes to the western bounda.y rnentT ^°"^"'^' OoLLiER.-When was it first called Manitoba i^ Acts of Parlia- Mr. MoCarthv.— When it was created, in 1870 mo" ^^"^""^ Collier.— You said it was called Rupert's Land in the Act .>£ n«nv^'n ^^""h ^T'^'^J^'f ^^f"" *'"^*^'"^' belonging to the Hudsons' Bay Com- pany was called Rupert s Land j v^" " «n,l ?>!'n^u''TK'' ^•^"™— First Of all, Rupert's Land annexed to the Dominion, and then Manitoba carved out of it.* Mr. McCarthv.— Yes. Manitoba, as orio:inalIy constructed, was west of the most north-wester y angle of the Lake of the Woods, which is the determining point, it was west of that as originally constructed, and did not approach on the eastward what Manitoba now claims to be the western boundary of Ontario In 1880 Alanitoba wa^s enlarged, and the boundary given to Manitoba by the enlarging statute was that Manitoba upon the east shoul.l meet Ontario, Therefore thi "^ Mr McCarthy -No. It was after the award was made that Manitoba was enlarged ;ind came to the western limit of Ontario The Loiin Chancellor. -Which boundary line does the question relate to ^ m- xMcLarthv.— The boundary line between Manitoba and Ontario— that is the western limit of Ontario and the eastern limit of Manitoba The Lord CHANCELLOK.-Then at the time the award was made, Manitoba had no interest in that question ? Mr. McCarthy.— No. The Lord Chancellor,— But the Dominion had ' Mr McCarthy. -The Dominion had. Perhaps if your Lordships will look at one ot these maps_ it will assist you [producing maplf All this that is marked in blue IS what is claimed as Rupert's Land,' This is Hudson's Bay, and this is what I IS claimed as being Rupert's Land. The boun- west longitude." •fhis is, in effect, a JUupert 3 Land did not extend to the international boundary. ARGUMENT OF MR. M CARTHY, Q.C. Mr. McCarthy. — That will be a good deal in dispute here. My learned friends on the other side contend for the French view of the case ; we are con- tending for the English view of the case, and the dispute was between France and England as to the Hudson's Bay rights. Sir MoxTAGUE Smith. — That, I suppose, was fought out before the arbitrators. Mr. McCarthy.— It was, and it is again before your Lordships. The Loiu) Chancellor. — I have a map,* which may not perhaps be exactly the same as yours. Here is a square block which is coloured yellow, and within which there is a smaller block with an orange margin on which Manitoba is marked. Mr. McCarthy. — That was the original Manitoba, the small block. The Lord Chancellor. — Then comes a block to the east, with two lakes in it, Lake St. Joseph and another lake. LordAnERDARE. — What was done with the territory north of that which was assigned to Manitoba, between Manitoba and Hudscm's Jiay ? Mr. McCarthy. — Your Lordships see it on Johnston's map ;t it shews that very plainly. The Manitoba shewn there is the enlarged Manitoba. Sir Montague Smith. — According to what boundaries is Manitoba shewn here ? Mr. McCarthy. — According to my claim — the Manitoba claim. Lord Aberdare. — Did the award line carry the Ontario province up to the Lake of the Woods ? Mr. McCarthy. — Yes, to the most north-westerly angle of the Lake of the Woods. Lord Aberdare. — Then, the Dominion, under its assumed power of re-open- ing the {question, assigned to Manitoba a considerable tract of country beyond that which was given by the award of the arbitrators. Mr. McCarthy.— That is to say, if the Dominion view was right. Tliey did not actually set it out by metes and bounds ; they merely said, Manitoba on the east shall be where Ontario on the west ends. They left that point to be deter- mined. Lord Aberdare. — The Dominion drew no line as to the east i Mr. McCarthy. — No. They had originally drawn a line as to the east, but they did not draw a line to the east as regards that. The Lord Chancellor. — I understand you to admit that the disputed dis- trict was not within the limit of ^Lanitoba until the year 1880 1 Mr. McCarthy. — Yes. The Lord Chancellor. — ^That at that time, according to your view, it wa.*^ within the Dominion and not within Ontario <' Mr. McCarthy. — That is so. Sir Robert Collier. — Where was the line of the award ? Mr. McCarthy. — The most north-westerly angle of the Lake of the Woods. [The learned <:oii,n.,s. That part Ontario is not claiming, and did not da^m byThe Sir Montague SMiTH.-Then this dotted line is the award line, is it ? Eiver^'inSCi:7.fa J^ ILf ^ ^''^ ""^"^'^ ^'^^'^^^ '''^- ^^ ^^ ^ about entering upon. This is the northern height of land, which formfthe Hne of the watershed between Hudson's Bav and the St. Lawrence svstem Jt goes round Lake Superior. This inap*;hews all the heights of Tnd And this IS another so-called height of land in this direction.f whTch was at one time claimed to be the imit of the Hudson's Bay territory This then is the other Th Tas^ft iTnSf "r '•' ''' ^i"""*^ of theVsin thaf drains into HudsonVBay Jid the Llso^ RWpr rf ^''" f'^'"'^ ^y ^^" ^^^^""y ^^^«^> ^he Churchill RivJr a-id the JNelson River. Then, when you go west of that, the Mackenzie River fal In o tltT" ^rr' "t^ ?% '^' St-Lawrence system takes its r1 here and of ^f T «1 %^, lakes-Lake Superior and so on-and rolls away to the Gulf of bt. Lawrence. That is the St. Lawrence system. Then, below that there is mind, because they were referred to continually in disputes which arose between the English and French at the eariiest times "^ ^ ^ '"""' oeuween • I your Lordships will see the effect of the award was to completelv ignoijthe right o the Hudson's Bay Company to any territory whate^r^ ^ Sir Robert Collier.- We had better see what the award is .W.J '^ORD CHANCELLOR.-We had better first .see under what authority the award was made, and what the award is. ""uiity me i.^Jil: ^cCarthy.-I will just point that out to your Lordships before I comf>' he contentions we make upon it. In the Joint Appendix, page 7, your Lordshbs w^dl see how the matter was referred. Mr. Crooks ^ho was^he/ a member o? the Government of Ontario, reports to the executive of that Province a the Jocument which IS set out on page 7,1 reciting the Acts of Pariiament and -o ng on down to about line 20, where the important matter comes in : ° ^ LuWi'Il?,J'^''' °^^^^^^ objects the undersisned, before his late visit to Ottawa on other public business, was authorized by the other members of Your Excellencv's rmmoil fo propose (subject to Your Excellency's approval) to the Government of he DominbntL? hou d bo determined by a reference to arbitrators to be mutually a-n-eed upon and who p anding a.d ability might readily be expected to secure for theh- d cSo/tT; confidence Coinci ^r^'' °^ ^"'"^°, ""'^ '^''' P'^"'^^^ °t' th« Dominion. Your Lcellency's Council were of opinion that a decision by such arbitrators is likely to be more rromnt ml perhaps more satisfactory, than any other mode of decision whfch is att^nab e 7he R h^rChrerjtTi;"'^ ^"=»^"S*'i^ "^"^^ «^ ^^« Honourable wS^Buel 'ddpovS' a r f «! O'^tano, as one of the arbitrators, subject to your Excellency's ndothtn 1 ■f{.*^n""-'.'''^»''^''' ^^^"'« ''' Ottawa, conferred with the Premfer marl! l T°'^'" °^ ^^^ Dominion government on the subject of the said matteis Td Ima^l^the^ove suggestions to them. The government of the Dominion concurred i^ the * Johnston's Physical Mat). ~ ' ~~ • IthatU'dit'et i,!t^H.l,«'i Ba^y."'' ""'""' "''*' t>ass through Lake Winnipeg from the north from those I ^t Hon. Adam Crook, to the Lieutenant-Governor. 10th Nov., 1874, Se.s«, Papers, Ont., 1875.«, No. 14, r ARGUMENT OK MR. M CAUTHY, Q.C. views expressed on the part of the Government of Ontario, and proposed on behalf of the Dominion the name of the Honourable Lemuel Allan Wilmot, late Lieutenant-Governor of New Brunswick, to act in conjunction with the said Chief Justice, and that authority bo given to the said the Hon. William Buell Eichards and the Hon, Lemuel Allan Wilmot to agree upon a third person to be associated with them, such third person not being a resi- dent of Canada, and that the determination of a majority of such referees should be final and conclusive upon the limits to be taken as and for such boundaries as aforesaid respectively. The undersigned recommends that the Province agree to concurrent action with the Dominion" — I draw attention to that particularly — " in obtaining such legislation as may be necessary for giving binding effect to the conclusion which may be arrived at, and for establishing the northern and western boundaries of the Province of Ontario in accordance therewith." Tho Lord CifANCELLon. — That is in 1874. Mr. McCarthy. — In November, 1874. Then, on page 8, there is the formal Order of Committee of Council of the Province of Ontario acceding to Mr. Crooks' view,* and following that is the report of a Committee of the Privy Council of Canada :f "On a memorandum, dated the 12th November, 1874, from the lion. Mr. Mackenzie, stating that he recommends concurrence in the proposition of tho Government of Ontario to determine, by means of a reference, the northern and western boundaries of that province relatively to the rest of the Dominion ; that the Ontario government hav- ing name the Hon. William Buell Ilichards, Chief Justice of Ontario, as one of the referees, he submits the name of the Hon. Lemuel Allan Wilmot, formerly Lieutenant- Governor of the Province of New Brunswick, to act in conjunction with him, and advises that authority be given them to agree lupon a third person, not being a resident of Canada — "i Following tho words I have already read : " He further recommends that the Dominion agree to concurrent action with the Province of Ontario in obtaining such legislation as may be necessary for giving bindino effect to the conclusions arrived at, and for establishing the northern and western limits of the Province of Ontario in accordance therewith." That was the minute of council, and I fancy from the next document which appears in the case that that was confirmed by the Governor-General. It savs : " Approved by the Governor-General." Then : " I am directed to transmit" to | you, for the information of your Government, — " that was from Ottawa tv Toronto — the information that an Order has been passed naming -the gentleman i who has been appointed arbitrator for the Dominion. Then, on the 21st Novem- ber, the Under-Secretary of State for Canada writes to Mr. Wilmot § informing hini of his appointment, and at the top of page 9, your Lordships will see what | he informs Mr. Wilmot was the matter remitted to him : "His Excellency the Governor-General in Council has been pleased, at the instance I of the Government of the Province of Ontario, to direct that the question of the northern | and western boundaries of that Province relatively to the rest of the Dominion, be deter- mined by means of three referees, of whom one is to be named by the Government of the | Dominion, and one by the Government of Ontario, these two to have authority to agree upon a third, not being a resident of Canada — " and so on. Then at line 10 : " I am to add that the Dominion governme>'t "g.oe to concurrent action with the Pro- vince of Ontario in obtaining such legislation as may be necessary for giving effect to the I * Order in Comcil, 25th Nov., :874. Seaa. Paiiers, Ont., 1875-6, No. 14, p. 14. t Order in Council (Can.), 12th Nov., 1874. Ih. t Here- -jimit's in, in the original, thu conciudinfr portion of the Bontence : — " and lha,t the deterniiiiii' tion of a majority of such three leferees be final and conclusive upon the limits to be taken as and for fiuch | boundaries respectively." § Ses». Papers, Ont., 1882, No. 69, p. 248. 8 QUESTION OK THE VAMDITy OF THE ARBITRATORS' AWARD. the agreement, which I need not read. Then, the conclusions arrived at, and for establishing the northern and western limits of the Pro- vince of Ontario m accordance therewith." Nothing, I think, happens now until at the foot of the page your Lordships will hnd the Act passed in Ontario in 1874.* It recite.s : 'uamps ''Whereas by chapter twenty-eight of the Acts of the Parliament of the Unued rt°™/L?vf'^* ^"*r.x*"^'''^""^' P^«^«^ '" ^''^ «««"«« held in the tl rrty-fourtb and hirty-fith years of Her Majesty's reign, and intituled 'An Act respectinVthe establishment of Provinces in the Dominion of Canada,' it is enacted that the Par "ament O'^'iada may, from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such province upon such terms and conditions as may be agreed to by the said legislature, and may' w,th the like consent, make provision respecting the effect and operation o^ any S ZIZ-" ''""""*'°"' °'- '^^^•'^^"°" °^ ^-"^"'•y i- relation to any province afiected lapparently shewing that the arbitrators were appointed to Hx a boundary which both the legislative bodies were afterwards to sanction, whether ft incn-ased, or decreased, or altered the true a.id proper line of the wesLrn boundary of the Province : western " And whereas the northerly and westerly boundaries of the Province of Ontario have never been determined ; And whereas, subject to the approval of the Pari ament of Canada and the Legislature of Ontario, it has been agreed by the Governments of t»^- Dominion of Canada and the Province of Ontario—" ^governments of the and it goes on to set out I first clause of the Act is " The Legislature of the Province of Ontario consents that the Parliament of Oana,I» may declare that the boundaries which, by the award of the arbitrator^rforesa d or o? any two of the arbitrators aforenaid, may be decided to be the northerly and w;sterrv boundaries respectively of this Province, shall be declared to be the nonheriv and westerly boundaries thereof, or, in case the award shall be as to the westerTv bonn/-r a one, the same may be in like manner declared by the ParlianLt of Canada as aftj sad, and that the Parliament of Canada may therebv increase, diminish or otherwise alter the northerly or westerly limits of the Province of Ontario so that the same mav Joe in accordance with the award." ^y JThen there is provision made for the death or resignation of the arbitrator which is not important. This Act was not to come into effect un pro limed menrai?d";h r'- * '' ''T'' T P™^l--ed, because the Domini^ govern ' tt-v h A J^o™»"on parhanient never passed a corresponding Act. AUhouch hi « P''l' ^' ^i''"' ^'^^^^«hips will see by the Orders in Council to wHch I Ihave already re erred, to concurrent legislation which would give eH^t to the f Cs.on or opinion of the arbitrators-and that in point of fact" was the ba^is of T^^l e whole proceeding, the whole reference to arbitration-yet the Dom nion par hament were never called upon by the government and never cUd pa s an Act" 'uftlat^^^3n"tt ''"'"■"• ^""7"'' '' TT^ ''^'^ ^^^' ^tipuhite^Un Uietatt lust that it was not to come into effect until the Lieutenant-Governor in Coun- should issue his proclamation ; and he never did issue his procla.naMon, because K to. ""'"'' P"'"''^ ^^'' concurrent legislation which had been kn,] ,?^^f^°?i' 9«^^CELL0R.-Tl,e legislation of Canada was to be an effective StFnctritllt!:""' ""''' '' ^"^^' ^^"'^^ ^^'- P'-« -^^h the consent of th: *S8 Vict., Ciip. (), piititrio. ■' " An Act renpecting the Northerly and Westerly Boundaries of the Pro vince of 'M AKaUMENT OF MR. M'C'AUTHY, 1^.0.: Mr. MrCAHTHY. — Yes ; that is in pursuanco of the statute of 1871.* Then from 1874 until 1878, nothing appears to have been done, but in July, 1878, an Order in Council is paSsed by Ontariof which your Lordships will find at^ the foot of page 10, which recites, upon the report of the Attorney-General, that Chief Justice Harrison had been appointed in lieu of Chief Justice Richards. ^ Chief Justice Richards had become the Chief Justice of the Supretno Court of Canada, and then he resigned his position of arbitrator for Ontario, and Chief Justice Harrison became arbitrator iu his jilace. it also recited the fact that Mr. Wilmot had died in the interim, and suggested that Sir Francis Hincks should be appointed as arbitrator for the Government of the Dominion, and Sir Edward Thornton, the ambassador at Washington, as the third arbitrator— to that extent departing from the original terms of the agreement, which were that the two arbitratm-s appointed by the respective provinces should themselves have selected the third ; but nothing turns upon that. Then, it further goes on at the foot of the page : "And also that the Province of Ontario agree to concurrent action with the Government of the Dominion in obtaining such legislation as might be necessary for giving effect to the conclusion arrived at by the said arbitrators, and for establishing the northern and western limits of the Province of Ontario in connection therewith." That, your Lordships will see, is dated the 31st day of July. Sir RonEUT Collier.— The Committee of Council advised the foregoing. Mr. McCarthy.— Yes ; that is on the 31st July, 1878. On the same day, at Ottawa, the Privy Council of Canada adopt a corre.sponding Order, which is set out on page 11.+ The arbitrators thereupon preceded to hear the matter, and on the 3rd August the award was made. • Imp.Act, 34 and m Vict., cap. 28. + Obder i.s Councii, (Ontahio), Approved by thk Likutknant(Jovbrnor, the 31sr day or July, 1878. Upon consideration of the report of the Honourable tlie Attorney-Ceneral, dated .30tii day of July, 1878 recommending that the Honourable Robert A. Harrison, Chief Justice of Ontario, be appointed arbitrator in the matter of the northerly and westerly boundarieH of the Province i>f Ontario in relation to the re8t of the Dominion, in the room and stead of the Honourable William Buell Kiehardn, who, since his appointment as such arbitrator, was appointed Chief Justice of the Supremf Court, and subsequently resiRned his appointment as arbitrator, the (Jovernment of the Dominion havinff named Sir Irancis Hincks one of the arbitrators in the room and stead of the Honourable Lemuel Allan Wilmot, deceased, and the Right Honourable Sir p:dward Thornton having been named on behalf of the Governments of thf Dominion and Ontario ; and also recommending that the determination of the award of such three arbi- trators, or a majority of them, in the matter of the said boundaries respectively, be taken as final and conclusive ; and also that the Province of Ontario agree to concurrent action with the Government of the Dominion in obtaining such legislation as might be necessary for giving effect to the conclusion arrived at by the said arbitrators, and for establishing the nortlrem and western limits of the Province of Ontario in connection therewith : . ,.,,■■ j » The Committee of Council advise that the foregoing recommendations be adopted and approved ol by Your Honour. Certified, J. LOXSDAI.E CaPBROL, Assistant Clerk, Executive Council, Ontario. Rkpobt ok a Co.M.MiTTEi: OK iHE Privy Colncil (Canada), Approved Gk.neual ox the 31st July, 1878. HY the GoVER.VOR- The Committee of Council liave had under consideration the subject of the northern and western boundaries of the Province of Ontario, wliich, under previous Orders in Council, had been referred to the Honourable W. B. Richards, then Chief Justice of Ontario, named as referee on behalf of that Province, but who was subsequently replaced by the present Chief Justice, the Honourable K. A. Harrison, and the Honourable Sir Francis Hincks, who has been named on behalf of the Dominion ; and whereas subse- quently to the action taken under Order of Council of 12th Noveii;ber, 1874, it was ruutually agreed between the Governments of the Dominion and Ontario, that the Right Honourable Sir Edward Thornton should be selected as third referee, the Committee recommend that such selection be confirmed by Minute of Council, and that the determination of such three referees be final and cencluBivo upon the limits to be taken as and for eacii boundary respectively. Certified, W. A. Himsworth, Clerk, Privy Council, Canada. 10 (QUESTION OF THE VALIDITY OF THE ARBITRATOBs' AWAKD. 31 Sr DAY Of ami approved of Governor- uicil, Canada. Now, your Lordships have tho history of the reference, and of the award which followed upon that reference. The first point that we make is th s We say al a Tlrf h k'V*" these papers shew that it never was intended thartho awTrd should be b>ndn,^ or effective until concurred in by both legislative bodies The Loud Chanokllou.— Was it possible ? Mr McCahthv.-Wo say not. Wo say it was not possible as a matter of law and we say as a matter of fact it was never contemplated that it hould be I'lrective untd concurred in by both le^dslatures nassirefwhll-f'TlS "^".'^ ^'^.V^'V^^^.!^ propositiou, point out the different passages which I think, estal)hsh the fact for wliich I contend in addition to those to which I havoalready referred. The intermediate pages merely taetle Uhink fZTTl ''"^'^'^ ""^ the argument before the^ a^rbitrntor^ to which I think I need not refer at present. Then we come to pa-e 108, folbwin.. the :::^:^Jt^:^:i::^-'^' 'y - ^^^ ^-^ i.^87o*-thesre^dSg not :S3 r M r .^:r ;:£rt:l tt^zZnifT^t;;- provis,onal lines, which for certain purposes wore to%o regarded as such bordary 1 nes were agreed to by the Governments of the Dominion and the Province ;_''^ ' I may just explain that, pending this dispute, and in order that the timber might be guarded and regulated, a provisional line was a-reed to between the parties separating the disputed territory. To tho east of °tl'e line the Province lnagtnt!""° '^"^''' ""•^ '' '^' ''''^ °* '^' >'"« *'»« DomSn '' A"'^ whereas it was agreed by the Governments of the Dominion of Canada and I ^^■^T''"" l^ V"'^^'" '^^' '^' *•■"« boundaries should be determined by reference to I Then it goes on to recite that. Then it sots out the award. I fl, 'i^^i '^^'?^'* ^l'^ ^^^'"''^ °* ^^"^ ^""'^ ^^^'^'•'1 '« to give to this Province less territorv than had been claimed on behalf of the Province, and more ti^n-itnrJVyZT.r^ ment of Canada had contended to be within the limiroltre Sin e o "tlfanTs contained within the provisional boundary line.s aforesaid-" ''^ ^ '^°'""''''' ""^ t'»*" ^a« I'ltl}^ ^°%"n''^''i' *^ ^''' in^perml Act passed in 1871, which chives the Sir Robert Collier.— It recites: • laciop^^aLISnnJd.'-^ '"^"'^ *'"* ''" ''''""^^^™-^ '^'^^^^'-^ ^y ^'^ ^^^^ —'I be Mr. McCarthy.— Yes ; and then the enacting clause is: If.n.V^'''' Legislature of tho Province of Ontario "consents tiiat the Parliament of til P ^n , f "ortlierly and westerly boundaries respectivelv of this Province mil h or r ' ^°[*'^«^>P"d westerly boundaries thereof, whether the same increase' n.n,ush or otherwise alter the true northerly and westerly limits of this Pro vdnceT L Z^'l P^''^;«''»«V^ of Canada never did confirm these boundaries. I was propos- ing to refer to what I think without doubt indieata. t.b.t M-. ,-ntonti?r S IpouRuig now of it as a matter of fact, that, unless parliament did confirm t£ At page 109, 42 Vict., cai.. 2, "An Act ro8,,octii.t,' the Northerly and W.^sterly Bound ariesof Ontario." n ARdUMENT OK MH. MCAUTHV, g.C. : boimdarieH, the award should not be operative. The followiny document, at pai,'e 109, is a lecture delivered by Sir Kraticis Hiiioks, explanatory of the award.* The Loiil) CuANCKi.LOK. — I think that can hardly be evidence of anything, can it :* Mr. MiCauthy. Then- i.s n good deal, I am afraid, in this Joint Appendix which is not evidence of anything. The Loud ChancEI.i.ok. — ^The opinion of an individual, thouj^h he was ono of the arbitrators, can neither interpret the award nor settle the ((Uestion inilepentlently. Mr. McCakthv. — It was thought perhaps to be useful in this way: Sir Francis llincks admitted to some extent that the award did not follow the true line — that it was tosonio extent a conventional boundary .f Tlie Loud Chaxcei-I,ou. — It ought not to be brought in if it is not evidence. That can only be referred to without prejudice. Mr. .MoCahthv. — Tlu-n I pas-s on to page 12.j. Sir MoxTAOiK Smith. — \t)u say the Dominion parliament has never oon tirmeil it. Has it ever been asked to confirm it ^ Mr. McCAurnv. — Yes, repeatedly. I am coming to that now. At page 125 your Lordships will find that on the 3lst of December, liS7iin(1arif9 <>( the I'l-nvincc of Oiitarics iind tho Award relatirJ thereto, ai< discussed ami (!\|i1aiiii«d liy thi> Hull, Sir Francis HiiickH, K.C..M.(»., in IiIh Public Lecture at| the Kducatiiiu Deiiartriient. Toronto. May Otli, 1881. Toronto: Printed by C. Blaokett Robinson, 1S81. Thia lecture may also be found in Seon. Papers, Ont., 1882, No. 6i), p. 414. t The refersnce '■* to th' t'oUowinaf pardjfri»l>h of Sir Pranois Hiucks' lecture ; " CH.\RGK OK AOOPTINO A CoNVRNIKNT LiNK RKb'DTKl). "The !»ole ground for the charpfe that th«y adopted a conventional or convenient boundary i.s, that tli- line connecting til" northea.-itein and .south-weateni boundaries was adopted for the sake of eonvenienci The Arbitrators were (fuided in their decision solely by Acts of Parliament, Proclamations authorized b; Order.< in Council on the nutliority of Acts of Parliament, and international Treaties. Thiy found in th' Proclamation of 17!n, that after reaching .lames' l>ay, the description proceeded thus: ' Including all thd territory to the westward and southward of the said line to the utmost extent i^f the country commonhl called or known by the name of Canada.' If the critics of the award believe such langu.age suseeptibie liL the construction that it lays down a precise spot on the north-west as a boundary, then their charge tnighll have some foundation, )>ut the fact is that the language would have justified the arbitrators in extendiwl the boundaries of Ontario very consideral)ly. Tliey were strongly urged by Col. Dennis, one of the perl nianent staff [he was Deputy >rinistftr] of the Deiiartment of the Interior, after their decision as to tt(| south-westerly and north-easterly boundaries became known, to connect the two jMiints by a naturel boundary ; and being aware of the fact that the Albany River had been formerly suggested by the HudBdUir Hay Company as a satisfactory southern boundary, they adopted it." I Towards the close of the argument, as will appear further on, the Lord Chancellor alluded to tl-l subject .as follows: "What we gathered from Sir Francis Hincks' document is this, that the arbitratonl having settled certain points on the strictest principle, according to the best of their judgment, tlml the per.son who represented the Dominion said it would be convenient that those points should 1*1 connected liy a good geogra|)liical boundary, and the arbitrators thought the Albany River line was pro|iK| for that purposie. Then, finding some indicatums in previous docunien;.T that that view of the Alhanyl River line had been at one timi.' entertained by the Hudson's IJay Company, it was adopted. I do not thinil it is for the Dominion, I must say, to oomplain of that. I do not mean that they are bound by it; oil course they are not ; but inasmuch .as it was at their instance that that amount of deviation, if it wasil dcviali-jn, inr.ii the ascerlainiiii'iit of represented them, who .asked f )r it." * Sesa. Papers, Ont., 1879, No. SO. ^•^act line took place. 12 ey c.ii: uiiiy biarac the agent w that the lu within the I His Honoui be necesgarj i'ariiatqent as possible, Sir R( Mr. M uf Ontario, Act. Thoi having bee Province aj At tho end merely a re "The( of Canada w tlie delay in eti'eot otherw JTIien tho , Inierits of th Iwas a prop jatpage 130 " In vie Iment of Cam pntfintion to i |)y the arbitn the influence Ito by His E> That m ^nade by tin ilvice propc Sir Roi Mr. Mc Sir Roe Mr. Mc [late. Sir Roi Mr. Mci The Lo] Parliament c jifislate, of ( Mr. Mc( lurtiier, your vy the Legis Bons are goii le Parliame ^ill Hnd the; " That th tie respective *T!ie Assist; \M., 1880, Xo. 4 til ig document, at y of tho award.* net! of anything, Joint Appendix ui^li 111' was oDol the (|Ue8tion this way : Sir ; follow the true is not evidence. has never oon- •. At paf^e 125,1 , tho Provincial! nada.J; At linej Canada that the I the westerly side I jm the confluence I ay, the height ofl of this ttirritorjl juatice will con [ in the matter of j VOL and here ; and| tho Award relatinfjl in Public Lecture atf ;ett Robinson, 1.H81. boundary in, that tli-| sake of cimvenienc- liitioiiH authorized bvl . Thiy found in th' •1 1 ' Inchidiiiff all th-l It! country comm(iiili| ig'uagr RUHceptibIc n their charge tnighil itrators in extendiwl mnis, one of the per f :ir decision as to till lioints by a naturjil ited by the Hud»(m>r :ellor alluded to tli that the arbitratonl leir judtftnent, tlml ISO point.s should 1*1 iiver line was pro|iKl view of the Albantl .>ted. I do not thlnil are bound by it j oil leviation, if it wasil yt-ESTlON OK TUB VALIDITY OK THK ARBITRATOHS' AWAUD, the agent \vi that the iubjoct a8»um«H unusual importance in view of (he construction of public work, within the territory, and the co.iHo.juent influx of an unsettled and migratory population His Honour the Lieuteuant-( Governor will be glad to learn that such legislation as may e necessary a give efl^ect to the award will bo had at Ottawa at the next session of the larliaa,ent of Canada, as the legislation should, it is respectfully submitted, be. as nearly a3 possible, simultaneous and i"'' Provincial Secretary (Uutario) to the Secretary of State Int., 1880, No. 46, p. 3 (Canada). Sess. Papers t 11th March, 1879. J Journals Log. Ass. 1880, vol. 13, p. 160. 13 ARCiUMExNT OF MH. M'CARTHY, (J.C : r i 11 S [ the Government of Canada has hitherto failed to recognize the validity of the said award, and that no legislation has been submitted to parliament by the Government of t.anada for the purpose of confirming the said award." Then there is a legislative declaration passed in ISSO by the Dominion parlia- ment that the award is disputed. Your Lordships will find it in the Act, 43 \' ic, cap. -SO, page 133 : " Whereas certain territory on the western and northern boundary of Ontario is claimed by the Government of Ontario as being within the said province ; and whereas such claim is di.«puted ; and hereas the Parliament of Canada is desirous of making suit- able provision for the administration of criminal justice within the said territory untij the dispute is determined." The award was made in 1878. These numerous appeals had been made to the Government of Canada on the part of the Government of Ontario ; and in 188U an Act is passed declaring that the award is disputed in point of fact. _ The LoKi) Chancellor.— Is there any reference to the aAvard in that Act ? Mr. McCarthy. — No, except in the part I have read. The Lord Chancellor.— That does not refer to the award at all. Mr. McCakthv.— Not in terms. But that was the matter then in dispute ; it wa-i to provide for the adniinistiation of criminal justice in this disputed terri- tory pending the sattlement of that dispute. Then, on the 1st February, 188L page 134, tlfe Attorney-General of the province again appeals to the Dominion;' ° " 1 hope that the present session of the Dominion parliament will not be allowed to come to an end without the necessary Act being passed adopting and contirnungthe boundary award. If, however, we are again to be disappointed some additional legisla- tion is absolutely required." Then comes 44 Vict. cap. l,t providing for the extension of the boundaries of the Province of Manitoba, and giving for the boundary of Manitoba on the east the western limit of the Province of Ontario. •Seas. Papers, Ont., ISSli, Nl. ':i. t Act of the Provi.vce of Manitoh.v, 44 Vict., cap. 1, skc. 1, (18S1). An Act to Provide for the Extension of the Jicnndaries of the Prorinec Wherpas by chapter twenty-eight of the Acts of the Parliament of the United Kingdom of (j real Britain and Ireland, pi,.Hed in the session held in the thirty-fourth and thirty-fifth years of Her Majesty* re^Ln intituled "aA Act respecting the establishment of Provinces in the Dominion of Canada it is en- actldthat '' the Parliament of Canada mav, from time to time, with the consent of the Legislature of any I Province of the safd Dominion, increase, diminish, or otherwise alter the bmits "f .^V'^h Province, upon such terms and conditi.ms as miy be agreed to by tlie said Legislature, and niay,. with the bke cnnsen . make provisU... respecting the effect and .n^eration of any si.ch increase or diminution or alteration o | ten itorvTn relation t.) the province affected thereby ;- And whereas it is expedient and desirable that t bmindariesof the Province of Manitoba should be increased on terms and conditions of a just character; Thftrefore the Le^rislative .Vssembly of Manitoba enacts as follows : . r^ j ■ ,1 ^ 1 The Le^tatveAsseniblyof Manitoba consents that the Parliament of Cpada may mcrease or otherwise alter the limits o' the Province of Manitoba upon the terms and conditions set out in this Ad and'mvTmake provCo is respecting the effect and o,u-atio>i of any such increase or. alteration o ter . ?orv h" creLse or alteration of the limits of the Province t.; be so th.at the boundaries thereof shall H f 11 ,w. rnrnrnpneinfi' at the intersection of the nternational boundary dividing Canada fro n tliH I n ted^tates rZer of, by tie centre line of the road allowance between the twent5:-„intli and thirtieth ra ies of biw^^^^^^ the first principal meridian in the system of Dominion. land survey,: thence nor h^ly following upon the said centre line of the said road allowance .as the same is or may lic.^ ^ftpr be located defining th'. «aid ranee line on the ground across towns lips one to f-'.rty-s x bot I Tnclu^ivVo the intern" fm of the said centre line of the s.id road allowance by the centr. line of he r^ alh wanco on the twelfth base line m the sai.l system of Dominion lana surveys ; thence, easterly along 3 centre line of the roa^^:::L'Z^£ l^rdwld^ng'can^a^f^m'^e-Unit^d-Stat.s of' Wic^" to' the place . beginning.' ~ the D.m Art. 44 V, c. H i'i/,'a. this line U -iei-ribeJ as bein? drawn ' across townships one to forty-four." 14 • Iti tliis Act < QUESTION OK THE VALIDITY OF THE ARWTUATOKS' AWARD. in that Act ? MrMcCAR^THf 'v'°'';7^^'^''^'"^^f'^ "^'^ «^ tl^« P^-«vince of Manitoba^ \l'r Mc'Jakth^ ' n'''~^"t'^^".'' ^.'':*';^ boundaries are' defined, are they ^ Sir MojrrAGUE SMiTH.-It leaves it just where it was. Mr McCarthy -les. It is the third line from the bottom. The proposed \ ly boundary ot Manitoba is defined as • -ine pioposed Those are the last three lines, pa^e 13G The Lord CHAXCELLOR.-That seems to refer to some definable point • Mr. McCarthy.— The line has to be intersppfod " l.^. o i;..^ i i You^havo to tad o,.t ».hc,.„ that point is. That i.s .j„st what w^ 'atZfbW whott tt°"r;'onh't,tYH;'i,i'Tth'eTa^: of .ruCf • "t f ' --'^ line, or the lino I contonj for i, lake!; » the i,t-alo„, hat it httto ' Th" United btates is the point of intersection '^uuu.uy oi cne * DojiiNiox Act, 44 Vict., cap. 14, sec. 1, (1881), An Act to provide for the Extension of the Boundaries of the Province of Manitoba. Whereas, by an Act of the Legislature of the Prnviiippnf M-n.t. I, j .. . .eld in the present year of Hor Mttje«ty'H reign, and Sled '' An \o^ ff p"^ ''7'"/ "'f ««''«'°» thereof the Boundaries of the Province of^Manitobl" ?he Legi" ature of tha .roWn'"^." I? "'" Extension of mcreaseof the same by the alteration of its li.'nits, as hire na ter enact^V n,^ ,^ M ''?"' "^onsenW to the lu.reuiafer expressed : Therefore Her Majesty, by and with the ^dvt^'^^^I ''® *f ""J" i*'"^ «>"idition8 House of Commons of Canada, enacts as follows : . "^ """^ """««'>* °f "'e Senate and .!• The Province of Manitoba shall be increased ft« hprolnaffo.. ,i„e„ i il ^ ■ (l.^ries thereof shall be as follows :-" Co mnendn^ at tTeh^^^^^^^ t^at " *° '*y> "» t^at the boun- d.ndinff C.nada from the United StateVTf Ame ?a Vthe cln^^^^ *''", '"'"'>''tion»l boundary wenthM.nth and thirtieth ranffes of townships ly ng we^t thrfirst ,r ncinXlr H•*'"°^^'"^^^^ "'^ D.numon land surveys; thence northerly, follovvin| upon thrsaid cVnTre of f I f ^.1*" "^ '^^^ the same is or rniy hereafter ba located, defining the said range line on the <,rLn^ """^ '""^ allowance as f.rty.four,M,oth .nolusive, to the intersection of the sa d cenUe of the sa dS ali;;"''"'' townships one to the rovl allowance <.n the twelfth base line in the said sv^^ em of the Tl^mln' ^'I?'' ''^ *"« "en're of ea.eriy along the said centre of the road allowance cm t ho twelf h base inf f^ ovln 'm '^ """"^^ ' ">«»<=" wction by the easterly limit ..f the District of K^ewatin, arK^d brthe W^^^^^^^ chvper twenty-one, that is to say. to a point whe«, thel,f L„f." 'r .''7J.'>?./^V.' thirty-nmth Victoria, jne to forty-four. " Tiitas of Aitinrif-!! f.i fl)" .jU.,,. ,)f 1. ^:^„.„ _ .. ---",. ■'.■—-•..>.; n.n: uivuune L/anafl,» from tjj" 'V.-'^ ■ W|tUia the Proviu'c'e "of Manitoba ^h^irfrom ^nTa te"\he'»i*ssb.r of ' Tm '^ A''.*^' "^'d 'l^'criptiJn'n^t now w_^shall, from and after the aaid date, form and brthepKce of Manitta. '"^'^''' ""'""•'■ *'«' "-^ • in tin, Act of M.n., 44 V. c. ,, ..pra. t.i. ,i„e i, „e, Ti,,., a, ...„, Jrawi, ■. .ero,, t..,.,hip3 one to »orty.„x." 15 AROUMENT OF MR. M CABTHY, Q C. ^i Mr. McCarthy. — Then, ray Lords, there are two more despatches to which I think I ought tu draw your Lordships' attention. The first is dated 31st Decern ber, 1S81,* and it is a very long document, from the Attorney -General, or rather from the Lieutenant-Governor of the province, to the Dominion authorities, going over the whole subject again. It commences on page 137, and at page 141 the Lieutenant-Governor says : " I have called the Ontario Legislature to meet for the despatch of business on the 12th January. I perceive that the Parliament of Canada is to meet in the following month, and I would respectfully urge the great importance of my being officially informed, before the meeting of our legislature, whether the Dominion Government is now willing, with the concurrence of the Legislature of Manitoba, so far as such concurrence is necessary, to agree to the arrangements which have been suggested, and to obtain from Parliament, at its approaching session, the Dominion legislation necessary to give effect to such arrangements." Tliere is next a despatch oi" the 27th January, 1882,f which your Lordship will find at page 142. Here we have tlie first response from the Dominion, and that presents the view entertained by tlie Dominion government, who were still to some e.Ktent interested in the matter, and to whom the Lieutenant-Governor of the Province of Ontario had appealed. I refer especially to page 143, com- mencing with paragraph S ::|: "The proposal of 1874, referred to in your despatch, that the question in dispute should be referred to arbitration, does not seem to have been treated by either Govern- ment as a mode of seeking an authoritative decision upon the question involved as a matter of law, but rather as a mea. i of establishing a conventional line without first ascertaining the true boundary. In corroboration of this view, it is to be noted that of the three gentlemen who made the award referred to in your despatch under the reference of 1872, two were laymen, and only one of the profession of the law. His Excellency's advisers are of opinion that in advance of parliamentary sanction it was not only highly inexpedient, but transcended the power of the government of the day, to refer to arbitration the question of the extent of the North-West Territories acquired by the Dominion by pur- chase from the Hudson's Bay Company. That territory had been acquired on behalf of, and was in fact held for, all the provinces comprised in the Dominion, and the extent of it was a question in regard to which, if a dispute arose, Parliament only could have absolved the government of the day from the duty of seeking an authoritative determina- tion by the legal tribunals of the country. Such a decision having been once obtainecl, if it had been found that it promised to be to the convenience of Ontario and the adjoining province that a conventional i undary should be established in lieu of the legal boundary, authority might have been sought from the Legislatures of those Provinces and from th& Parliament of the Dominion for the adoption of such a conventional line, That the course pursued was not intended as a means of seeking a legal boundary is further shewn by the course pursued by the Legislature of Ontario, who, under the provision contained in the Imperial Act, 34 and 35 Vict., cap. 38, enabling the Parliament of Canada ta increase, diminish or otherwise alter the limits of a province, with the assent of its legis lature, passed an Act giving their assent to the limits of their province being changed by Parliament to meet the award, whatever it might be. The passage of such an Act shews that it was not sought that the true boundary line should be ascc dned, but that a conventional one should be laid down." The Lord Chancellor. — Very bad reasoning. * The Lieutenant-Governor of Ontario to the Secretary of State (Canada), Sesg. Papers, Ont., 1882. No. 23. tThe Secretary of State to the I.ieutenant-CJovernor, Sess. Papers, Ont., 1882, No. 60, p. 4()8. t The elaborate ansv, -r of the rrovince to the desi-.r.tch h V'P^^" certain territorial limits. lepiesentation in the Senate, besides that z £;So7£; tt.: *it ?hS't*n Vd't I'r, Y ' »«- The Lord Chancellor.— We can hear one counsel if if Jo ^ ■ ^ - Ma^toba and another for the Dominion, but I supp^ X!^ fre p^a^\il^?^l tt Manors OnSl^rSdltiik^t'^^^ H ^ ^e^Ween decision^shall not affect any question be Jeen^'o^'ariraS X ^mti^n''^' °"' m III The Lord President. — That is provided in the agreement. They reserve their rights. Sir Montague Smith. — So that it cannot affect the relations of Ontario with the Dominion. The question before us is simply between the two provinces. Mr. McCarthy.— I do not so understand it. If your Lordships fix thfr boundary, it does fix the boundary of Ontario for the purposes of the Dominion as well as for the purposes of the Province. Sir Montague Smith. — I did not understand that. Mr. McCarthy. — Oh, yes, mj' Lord, we are all agreed about that I think. Mr. Mowat. — Oh, yes. Sir Barnes Peacock. — I think it is stated somewhere that no question between Ontario and the Dominion .shall be affected by our decision here. Mr. Mc Carthy. — That is in the agreement between the two provinces. The two provinces came to a certain arrangemen. and in order to i>revent there being any question about it, we put in a clause stating that it was not to be pre- sumed that the agreement between us was to affect any questions between the Dominion and Ontario, and reserving the rights of Ontario as to the same. The Lord Chancellor. — Then is it agreed between you both, that both are to be bound by our decision ? Mr. Mowat. — Yes, both have agreed to be bound by your Lordships' decision. Is it your Lordships' wish that I should now address myself to the point whether — Sir Barnes Peacock. — The point whether the award is conclusive. Mr. Mowat. — If your Lordship pleases. The Lord Chancellor.— But is it convenient at this point to hear the learned counsel for the Dominion ? Mr. Mowat. — One question put to your Lordships is whether the award is valid ? The Lord Chancellor. — Quite so ; but if the counsel for the Dominion wants to add anything, of course this is the right time. We have intimated how- ever, that until we hear something on the other .side, there h a prima faeic case made out to shew that legislation was necessary in order to make the award binding. Mr. Robin.son. — I do not know that I have anything to add. I think it will be waste of time after the intimation your Lordships have given. Mr. Mowat. — It seems to me, my Lords, that there is a good deal to be said in favour of an opposite view. The Lord Chancellor. — Then we will now hear it. Mr. Mowat. — Very well, my Lord. I think I can satisfy your Lordships, independently of any statutory enactment, that provinces situated as these provinces are have a right to enter into an agreement for settling boundaries between them, and that such an agreement is binding without any legislative action. The Lord Chancellor.— But here, firstof all, the question is not indepen- dent of any statutory enactment, and, secondly, in determining whether the award, as it has been made, binds, we must see what the agreement was. Mr. Mowat.— Of course. Then, ray Lord, perhaps I may address myself to the point, first, as to what the agreement really was — whether it was that the aw&vd should be binding, if the Governments had the power to make it so, without legis- In.f.TVft Sn.nf»tlT1 ' T' Tipb'>'''T^'' thO!!1'V> +V1" f»ir/-> r»/-KirQi.nir>or> + o rr\r.xT V,n-r^ U^A iU'„ •" ^: "^ ..1.^..^^^^, u. 1^-14^.. „; , g. ,«,..., .,g,^.ii i^.„ tiiu-j iiaro siau. viiu power, it was not intended to exercise it, and the award to be binding was .0 require legislative sanction. 18 Addi to the tt in the Do Now, whs the two the legal thing ,subi power. I that that as it is ex Order in C The I Mr. Al always dr and by thi Lord page 8. SirM( Mr. M report, and therefore \ the reconiu What " The c I such referee! boundarier £ I I say that language, " determini The L( :.Ir. M( ;'The ur J Dominion in I to the concl jwestern hour What 1 Ibeeii agreed lis to be tina Imay be nec( Ithe langua^ lit was th Jagreeing, an( ■the Governn |by this Ordt jlegislation v, JCouncil of t! |concurrent 1 The Lo |to the concl I The Orde P- 7 ; Order in ( ^ovember, 1874, respectively, dat QUESTION OF THE VAUDITY OK THE ARHITRATORS' AWARD. .hat I think. I think it eal to be said Addressing myself to the former point, I ask your Lordships' attention, to the terms of the two Orders in Council. The Order in Council Zsed in the Dommion and the Order in Council passed in the Province are identical Now, what IS It that these Orders in Council agree to ? I assume at nresent Xf he two governments had the power of referring the mX toSrat'on he legal power of refernng it if they chose to do so, and I will sarsome- thmg subsequently. ,f your Lordships permit me, to prove that they had^he W power^ Assuming now that they had power to bind both governments, and I sfv tha that IS the effect of what they did, what is the agreement betweer. them as It IS expressed in these Orders in Council ;* as it is expressed, first of aU in th^ Order in Council at page 7. and expressed also in tiie subsequent Orders^ The Lord President.— The one at page 7 is a report Mr. MOWAT.-Yes, but that is the form in which our Orders in Council are indi; tt Go;;;:nor ' '^ ''^ ''''^"^'' ^^^^^^^^ "^^ ^^^ ^'«'"'"^**- «*• ^--"1. page 8!''''^ '^^^''''^'''^■~^^'''^'' ^''^''' ^" ^"^"^^^^ g^^^'^^'^ «^e next page Sir Montague SMiTH.-That at page 7 is the report Mr. MOWAT.-Your Lordships may take it in this way. First there is the report, and then there is the Order in Council adopting the report In effect therefore when a report of this kind is made and it is adopted by an oix^er then the recommendation so adopted becomes the Order in Council What IS It then that the Province and the Dominion ac-ree to ? It is that— " The determination "-that is the word used-" the determination of a maioritv nf \p^!^:fr^X^:^-'- -p- *^« '^-^-- be taken asi^renLt I "determination;" it is not a "determination " in the slightesHtgree "° 1 he Lord l.HANCELLOR.-But you must read that with the next sentence Mr. MowAT.-I quite agree, my Lord, and I was coming to that: ''°''"''- ;'The undersigned recommends that the Province agree to concurrent action with th« Dominion in obtaining such legislation as may he necessary for givinrbS " ^^^^^^ to the conclusion which may be arrived at, Ind for estabUing" tLe^oSn and [western boundaries of the Province of Ontario in accordance therewith." ''°"''^'" ^'^^ What that sentence was intended to provide was in addition to what ha.l been agreed to by the previous sentence. By the previous sentence the aw^v^ s to be final and conclusive, and by the following sentence any Sa on tW may be necessary feu- giving to the award bindin|effect is to take pfaco Observe ho language: " The undersigned recommends that the Pmvince aiee " It was the Government-the Lieutenant-Governor in Council-that° wl Weeing, and "the Province " means the whole people through its representat lerrn [the Government. The agreement I submit to your Lordships to have been that to concurrent Ik,, fi • r» 1 — i --■" "-o'--""^"" '^ '^""'uiu uu ^uur uorusnips to r |bj this Order there was a binding obligation on the Province to concurr K^r'!Tu*^''A'''^'^"'^"r'*'^'' the other hand, according to the Ordets in ICouncilof the Dominion, there was a binding obligation on the Dominfon l^ Iconciurent legislation with the Province. » i^ne jjominion to to thetn'iCon ■'•'''''''•~^"' "'^* ^' ''^ ^''^' " ^°^^^^^"^ ^^^-^ ^^ect f^ovember 1874. cited ante, p.' 8, and theTbient Ord^^^^^^ Respectively, dated 3l8t July, 1878, printed ante, p. 10, notes t a«d £ Province and Dominion. 19 le^raaawttMuuv ARGUMENT OK THE ATTORNEY-GENERAL OK ONTARIO Mr MowAT.— That expression was used because it was matter of dispute Avhether governments had the power of acting in such a manner Y^th^^t legLslatioa TnvP to satisfy vour Lordships that t)ie governments intended that the award Lould be Jna anJcoiclusive if'they could make it so. It was a question whetlier thev co^r/make it so or not, or whether without legislation U.e award might not b Win^ upon the governments, and yet perhaps not binding for all P"77J^7,^t^o"t legation ; whether the award, for some purposes, might not r.r,uire legislation by the Domin on and Ontario Parliaments, or by the Imperial r.trliament '^" tE had been a controversy as to the boundary between the P-vince Canada and the Province of New Brunswick many years ago ; and in that case anlmper^al Act had been passed to give effect to an award made on a reference bv the two provincial governments. There being that question, both governments L^he pi^sent case did all they could by their agreement to ^nake the award fina It would have been a perfectly idle thing, in a great controversy like this to leave theTuestion to arbitrators if the award was to have no binding character at a The aTbitration in that case would be perfectly nugatory^ An arbitration would not advance us one single step towards a settlement. Everybody must at the timp have seen that, and everybody must see it now. „ , . , v * tL Lord CHlNCELLOR.-The reasonable intention of this clause about iegislaUon was that the legislation should take place before the award was known, "^^^ Mr"" MowAT -My own notion was, that that would be the better course, and I manifested that opinion afterwards by getting an Act passed by the provincial leSslatu^e in advance of the award, but the Dominion did not take the same view, ^ ThrLoRD CHANCELLOE.-Have you evidence that attempts were made to r,«f Ipo-islation when it might have been a matter of common consent < ^ Mr MOWA^-No such evidence appears. The extent of territory which was *hen in 'Question was very large. The Dominion had been claiming as part of Onta io before The settlement with the Hudson's Bay Company, nearly one million sauare i^les instead of the 100,000 which the arbitrators have given us. square mi^es ^^^^^^^^^^^^ _Both parties seem to have been willing to tek their chance, and when that happens it is very natural that each should be willing Afterwards to use his power to recede from the agreement if he could. Mr MOWAT.-That I hope is not the legal effect of the language employe , for it certainly was not what was intended by the two governments at the time There ha^ since been a change of government in the Dominion, and diff-erent view. Ire entertained by the present government from those which ^e^e entertain bv theTovernment in power when the agreement was made. We did not at a expose that the effect of the reference to future legislation was anything mo than to make it as obligatory as the governments could possibly make it that the awar^ should be conclusive. In the first place they agree in so many wordj thatTshall be final and conclusive; they do not say that any legislation sh^ be necessrry. and there is no provision for any legislation beyond what s SsoSy" necessary." Whatever could be shewn to be necessary was to be dor The wJacreTs this: " The province agrees to concurrent action lu obtaimng such k^stS ma2/ be necessary, for giving binding effect ;" but if no legislation j.as necesary for giving binding eff-ect. neither, under this stipulation, could askf Sation It was only if it should appear that legislation was necessary ha 2 s at on .hould be had By the tei-ms ofthe agreement " the Province and St°n'' were agreeing tUe bound ; not merely th^^^^^^^^^ OntAvio Order in (Jouu«.ii, so lar as tnc govuriiment ouuim v=.i-., -J- --- _ ?o Tebound; by the Dominion Order in Council the Dominion government w^ to be bound. Vhat I Urge upon your Lordships is that the agreement about legislation is an additional stipulation, and not a qualifying stipulation. (QUESTION OF THE VALIDITV OK THE AUIUTRATORS' AWAUD. vince " and " tVl "Pi-rvwinno wasl Sir Montague Smith.-Do you argue that legislation was not necessary ^ Mr. MOWAT,— I contend that it was not necessary ' The Lord CHANCELLOR.-lt is difficult to separate the two arguments, as ta what they intended to do and what they could do. Your proposition is that tha Governor in Council could alienate the territory of Ontario, or of Canada ? Mr. MowAT.— No, my Lord, I do not go so far as that. The Lord Chancellor.— Sur«?ly it is necessary for you to say so • *!»•• f OWAT.— That IS the way the Dominion government argues against ua in one of the printed despatches. s b ^^ "o- le^iskW?°^° CHANCELLOR.-And without even an Act of the provincial r " ,^-' ^.o^^AT.-But I think I have authority against that view. If you^ Lordship will permit me to say so, I think I have direct authority that a settle- ment ot boun.laries,between provinces is not to be regarded as an alienating of territory by the one to the other; that if two provincial governments enter into an agreement for settling boundaries, it is no answer to thf binding character ot that agreement to suggest that it may involve an alienating of part of the land • it IS the Crown in the one case and the other. The Lord Chancellor.-How does' the Governor in Council get his power ? Mr. MowAT.-My authority for it is the case of Penn v. Lord Baltimore The Lord Chancellor.-I know the case. There were two individual proprietors, under grant from the Crown, of two provinces in North America and they made a private contract between themselves as to boundaries, and there the- Jinghsh Court of Chancery did have jurisdiction nu/"' ^*;'^^V?t' "^^r,^,""":^- ^" ^^« Appendix we have printed in full the chartei^ under which Lord Baltimore and Mr. Penn and their associates acted and entered into that agreement. The Lord CHANCELLOR.-But there it was a mere question of private rights The whole ot the territory was under charter. * Mr. MowAT.— But it was not a mere question of the ownership of land • it was a question whether the territory was within the one province or the other The Lord Chancellor.-How could the English Court of Chancery have any jurisdiction as to the matter except upon the footing of private rights ^ Is ifr JurisSon' "' ' '' ""^^ '"'^ "'^ *^"' footing ^that the coui-t ass.med' Mr. MowAT.— That court assume.! jurisdiction in a matter that involved government, and legislation as well. "vuivea th. r'^f'^^'?ri?'!'^r''"'°?~y.^" ™^^ '*^*^^* ^■'^'a* w*^« the consequence of what he court did ; but if you cite this as an .authority you must take it as you find it tZi^^^""''^' ^ ^T^ Chancellor of England, iJ l suit in the Court of^cLncery t ttronr^nf 0^'™"''^ ^If '"^^'^'^ H^^"'^ P^'^^^^'^ P^^«°°« to be enforced by ^t£ Sainfennf f]; ''' '^'\^'T^^^ ^^ compelling people to act conscientiously. b.fo^ifalTnttlltr'^*"^^ ''^ ^""^^•^^^ '''^' ^^^ --^-^«d - .iv. S' ,^^'^,f ~^^'' ""l ^""'^ ' .^""^ '^ ^^« "' that way the court was able to Kr wretht tl'^''''"'''';^"* '^1-^7-' *^'"= *^^* '^^d t« be done was to con! sider whether the agreement was a binding agreement or not Mr' mZ'?^TU^''''''^T^''^ ^-^^ '^""°*^ ^^^^ ^^'' ^' ^ P"Wic authority. Istronfan^l^rtolL'^rrnf P^P^^^^ g-«ts I submit bears a Ly cansilH«flf-^''''^''i^~T"'"'^^ ^°", ''''^ ^°^°^ to prove that two provinces I Mr. MowA^-S^^^^ lord"' ''' "'"'"'"" '' *'^^ ^="^-^"^«" paSiamenTJ 21 ARGUMENT OK THE ATTOUNEY-GENERAL OF ONTARIO.- Lord Aberdare.— But is that the question here ? Is not the question here "whether these two provinces can appropriate certain territory that belongs tc the Dominion, and does not beloag to either of them ? Mr. Mow at.— No, my Lord; we claimed that this territory was ours— was Ontario's— and that was the question for the arbitrators. Lord Aberdare.— The Dominion claims that it is its own. How can you deal with territory claimed by the Dominion on the plea that two provinces with recognized boundaries, and recognized existences, are dealing with each others territory ? , mi. i- v * Mr Mowa T.— I spoke of " provinces" in a general way. The question betore the arbitrators was not between Manitoba and Ontario, but between the Domin- ion and Ontario. ,.«,,, • -j. • Sir Montague Smith.— That makes it still more difficult, supposing it is an alienation. . ' , Mr. MoWAT.— But, my Lord, I claim it is not alienation. What the province is seeking is not to alienate from the Dominion. It is as to who shall have pro- vincial jurisdiction- whether the territory shall belong to Ontario or to another province ; and it is the Crown in both cases. But the Dominion may itself assign this territory away for that purpose. The Lord Chancellor.— But it seems to me that you are an immense way from your point. That case of Lord Baltimore's I have always understood to rest upon private rights, and it is plainly inapplicable to anything of this kind. Ihe Court of Chancery of England would never have dreamt of assuming jurisdiction to enforce an award of this kind, whether it be properly made or not, and you have to press not merely that the provinces could settle among themselves their boundaries and so on, but that the executive government of a particular Province and the executive government of the Dominion could do it. Mr. MowAT.— I have to press that no doubt, and I certainly think that upon that point Penn v. Lord Baltimore goes a great way as an authority for it. The Lord Chancellor.— And you have to do that in the face of an Imperial Act* expressly saying that they had to do this thing by legislation. ■ Mr. MoWAT.— That is going to another point, my Lord. I thought that that Imperial Act* made no difficulty in my way, for this reason. It provides for • Imp. Act, 34 & 36 Vict., cap. 28.— Thb British North America Act, 1871. An Act respecting the establishment of Provinces in the Dominion of Canada. Whereas doubta have been entertained respectinff the powers of the P''':l'»'««»* f^.^anf » '" «»^^^^^ 'Provinces in territories admitted, or which may hereafter fee admitted, into the dominion of Canada, and 'to provide for the representation of such Provinces m the said Parhament, and it is expedient to remove such doubts, and to vest auch powers in the said Parliament : , .^, ,, , . , i. »n,„ t ^tA, Be it enacted by the Quee'n's Most Excellent Majesty, by and w,th the advice and consent of the Lori ■Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, a^ o ows^ ^^^ ^^^ purposes as ' ' The British North America Act, 1871. " 2. The Parliament of Canada may, Tromtime to time, estabhsh new Provinces in any territories fom- ■ ing for the time being part of the Dominion of Canada, but not included in any Province thereof and may, at the time of such establishment, make provision for the constitution and fdmmistrat.on of any such Province, and for the passing of laws for the peace, order, and good government of such Province, and for its representation in the said Parliament. ... ^. i - 4i,„ t „~:oi»).,.~. ^f an» 3 The Parliament of Canada may, from t me to time, with the consent o. the Legislature of any Province of the aW Dominion, increase, diminish, or otherwise alter the limits of such Province upon sue terms and conditions as may be agreed to by the said Legislature, and may with t^elil^e consent, m^^^^ provision respecting the effect and operation of any such increase or diminution or alteration of territory m relation to any Province affected thereby. . ■ • t ^\. ..:i„j„of..f;»n ■natu^^ 4. Th« parliament of Canada mav. from time to time, make provision for the jwlminstration, peao», -order, and good government .it any territory not for the titiie being mcluaea in any rrovincc. 5 The following Acts passed by the said Parliament of Canada, and in ituled l^^V^<'^}^^^\y< ^^^^^^^^„ the temporary govefnment of Rupert's Land and the North-Western Territory when "'"tfd'r'th Canada | «nd '• An Act to amend and continue the Act thirty-two and thirty-three Victoria, chapter three, and to 22 QUESTION OF THE VALmiTY OF THE ARmTHAT0R3' AWARD. uestion bere^ IS ours — was sht that that mnatration, peaot, only one case. If a province wants to change its boundaries, or is willing to change its boundaries either by diminution or by increase, and the Dominion is willing, then certain provision for that pui-pose is made, but it does not provide for the case of a disagreement between them as to where the legal boundaries are. The Act does not touch that case at all. If a province is willing or desirous that its Imundanes shall be changed, and if the Dominion is willing too, then by the Act in question they can carry that out. I submit, my Lord, that whatever jurisdiction the two governments had before the Act to settle this matter cannot be affected by that Act, because the Act does not cover that ground. There are two cases which may arise ; one, wliere the parties are agreed, and one where they are not agreed. If they are agreed, then that Act applies, and renders it unneces- sary to go to t 1 1mperial Parliament for the purpose of giving effect to any change ^raf'^^r'^'^^ ^®^'f®d ; ^^^ if <^hey are not agreed, that Act does not meet the difficulty. I submit to your Lordships that it may be properly said that the Dominion and Province ougnt to be treated as having this power a /oriioW, if the power existed in the case oi'F&nn v. Lord Baltimore. The recognized doctrine now 13 that all colonial matters should be settled locally as far as possible, without coming to the Imperial Parliament. That is the principle of all recent legislation with reference to the colonies, and we have in the British North America Act an express declaration that the form of government, and the principle of government are to be those of the British constitution. A question of this kind between provinces, Lord Hardwicke points out in his Judgment, is a question which the King in Council might decide, and would be a proper tribunal for deciding. The Lord Chancellor. — Where there was no parliamentary government. You do not mean to say that if the question arose as to the limits between Eng- land and Scotland, it would be decided by the King in Council ? Mr. MovvAT.— I do not know how it might be in that case, but I thought what 1 have said in regard to the colonies followed from what I find in Lord Hard- ^V°i eS J"*^=™^"<^- Your Lordships will observe that there is nothing in the Act ot 1867, and nothing h^ any Imperial legislation, as to a settlement of disf)uted boundaries between a province and the Dominion. Such a case does not fall within any of the powers given to the Dominion Parliament by the British North America Act. If it had done so it might be inferred that it was intended that the matter should be dealt with by the Parliament of Canada, or in any other way that should be provided, but we do not find any such power given to the Domin- ion Parliament. If I were fortunate enough to be able to satisfy your Lordships that as a general rule provinces may, through their executive, settle a matter of this kind in a binding way, there does not seem to me to be anything in the ^ntish North America Act, or any other Imperial Act, that would make the -Uominion of Canada an exception to that rule. Sir. Robert Collier.— Where is the authority ? Mr. MowAT.— This case of Penn v. Lord Baltimore is the only one I have found. That case is reported in 1 Vesey, senior, page 143. It is stated there that the first objection for the defendant was : " That the Court has not jurisdiction, nor ought to take cognizance of it : for that the jurisdiction is in the King in Council." «9tabb9h and provide for the government of the Province of Manitoba," shall be and be deemed to have oeen valid and effectual for all purposes whatsoever from the date at which they respectively received me assent, in tho Queen's name, of the Governor-General of the said Dominion of Canada. C:.^ A ^j^°^?} as ITovided by the third section of this Act, it shall not be competent for the Parliament of i Pr.^,M„-» t "«V '•"^"l' V ".",■' — ■." '■■; '.'"■■ ""^' "■ ■-"" ~"''' ^ at"-"ie"t. la ao lar as iz relates lo cne i«.f I? Manitoba, or of any other Act hereafter establishing new Provinces in the said Dominion, sub- jm always to the right of the Legislature of the Province of Manitoba to alter from time to time the I„7i"''"^" ,*"y '»*' ■'•specting the qualifioationg of electors and memberg of the Legislative Assembly. I ana to make laws respecting elections in the said Province. 23 AROUMENT OK THE ATTOUNEY-OENERAL OF ONTARIO I ought to mention here that theie was a legislative body both in Pennsyl- vania and Maryland, just as there is in the Dominion and the provinces. The executive was hereditary. In Maryland the executive authority had been given to Lord Baltimore, his heirs and assigns ; and in Pennsylvania to William J enn, his heirs and assigns ; and tte two executives that had entered into the agreement were not the original grantees but their heirs. These circumstances seemed to me to bring the case very closely as a precedent for the present case. Lach of the litigant parties there was a colony with both an executive and a legislature, just as is the case here ; and there was no express provision in the charter of either of them under which a question of boundaries could be .said to be deter- minable ; and I therefore understand Lord Hardwicke as deciding that m such a case the power is incident to the office of the executive. The Lord Chancellor. -Did he decide it upon any ground connected with public rights at all ? Mr. MowAT.— I refer to the second objection, which was : " That if there is not an absolute defect of jurisdiction in this coi'.rt, yet being t proprietary government and feudal seigniory held of the Crown, who has the sovereign dominion, the parties have no power to vary or settle the boundaries by their own act ; for such agreement to settle boundaries and to convey in consequence, amounts to an alienation, which these lords proprietors cannot do ; but supposing they may alien entirely, they cannot alien a parcel, as that is dismembering." The third objection was that the agreement ought not to be carried into execution by the court. And this is the way in which Lord Hardwicke dealt with those objections : " First," he says, "the point of jurisdiction ought, in order, to be considered ; and though it comes late, I am not unwilling to consider it. To be sure a plea to the jurisdic- tion must be offered in the first instance, and put in prima die ; and answering, submit* to the jurisdiction : much more when there is a proceeding to hearing on the merits, which would be conclusive at common law : yet a court of equity, which can exercise a more liberal discretion than common law courts, if a plain defect of jurisdiction appear at the hearing, will no more make a decree than where a plain want of equity appears. It is certain that the original jurisdiction in cases of this kind, relating to boundaries between provinces, the dominion, and proprietary government, is in the King and council ; and it is rightly compared to the cases of the ancient Commotes and Lordships Marchers in Wales, in which, if a dispute is between private parties, it must be tried in the Commotes or Lordships ; but in those disputes where neither had jurisdiction over the other, it must be tried by the King and council, and the King is to judge, though he might be a party; this question often arising between the Crown and one lord-proprietor of a province m America : so in the case of the Marches, it must be determined in the King's courts who is never considered as partial in these cases." He seems to treat the matter as common to provinces generally. The Lord Chancellor.— It is perfectly clear what the grounds were if you take the judgment as a whole. Mr. Mowat. — Will your Lordship allow me to read a sentence or two to shew the way in which Lord Hardwicke deals with the second objection : " If it was so it would be very unfortunate, for suits and controversies might be, fos that reason, endless ; and this has subsisted above seventy years. This objection is insisted on at the bar, and not by the answer. The subordinate proprietors may agree how they will hold their rights between themselves ; and if a proper suit is before the King in Council on the original right of these boundaries, the proprietors might proceed- therein without making any other parties except themselves." This was the passage that I spoke about a moment ago on the^ subject of the effect of an agreement as amounting to a possible alienation. His Lordship said : 24 yUKSTION OF THE VALIDITY OF THE ARHITllATORS' AWARD. nnected with " To say that such a settlement of boundaries amounts to an alienation, is not the true idea of it; for if fairly made without collusion, (which cannot be presumed), the boundaries so settled are to be presumed to be the true and ancient limits." The executive in the present caae is, in some respects, in a stronger position than the executive in that case. Here the Governor-General, the representative of the Crown, is appointed by the Crown, and only holds oflSce during the plea- sure of the Crown. By the system now prevailing he has, therefore, the confidence of the Crown and also (in Council) of the repres^'ntatives of the people— the con- fidence of his parliament. The case is the same as regards the 'lieutenant- Governor. Your Lordships, I take it for granted, will take cognizance of the system of government prevailing in the Dominion and Province. TJie agreement in question 1 submit is, a fortiori, a binding and legal one, being an agreement entered into by parties having the confidence of the Crown and of the parliament and legislature in the locality. If proprietors situated as Lord Baltimore and Sir William Penn were situated have a right of this kind, I do not see on what <,'round the power ought to be considered as not possessed by executive govern- ments in such a case as the one before your Lordships now. Sir Barnes Peacock.— Would it not be contrary to the British North America Act, 1871, * section 3, for the executive government of the Dominion and the executive government of the province to alter the boundaries of the province < Mr. MowAT.— But I say they have not altered the boundaries. If legis- lation were necessary, we thought that under that Imperial Act of 1871, if Acts were passed by the Dominion and province, declaring the awarded boundaries to be the boundaries, no objection afterwards could be taken by anybody, because either they were the true boundaries or they were not. If they were not the true boundaries, and involved a change of boundaries, the Act of 1871 would, by Its express terms, apply. If they were the true boundaries, and involved no change, no legislation or agreement was necessary to maintain them. The Lord Chancellor.— The argument then is this, that persons who have nut authority to part with an acre of territory may nevertheless make an award which they agree to be conclusive evidence of the true boundary, so as to exclude any mquiry as to whether it was a true boundary or not. Mr. MowAT.— My argument implies that they have that power. As Lord Hardwicke said, if the agreement is in good faith, it will be assumed that the boundaries so agreed upon were the true boundaries, and he would not assume there was any alienation. The Lord Chancellor.— By what is this award made evidence, if it would alienate the smallest part ? Mr. MowAT.— I put the point as" Lord Hardwicke did, " Where two parties "— The Lord Chancellor. — Two proprietors. Mr. MowAT.— Yes, they were, in that case, two proprietors ; but the principle seems precisely the same. His lordship put his judgment upon the ground that you are not to assume, in such a case, that there is an alienation, and that if the agreement between the parties had necessarily involved an alienation it would be- void ; but he said that he could not a.ssume it involved any alienation. The agree- ment having been entered into in good faith (and the contrary, he said, was not to be presumed), his position was that it must be assumed .that the agreement stated the true boundaries, and involved no alienation. He answered in that way the very diflBculty your Lordship suggests. Printed »t page 22, ante, note. 25 4 ARGUMENT OK MB. SCOBLE, Q.C. « I Sir Baunkh Peacock.— Suppose the Province of Ontario were to legislate for land within the new boundary, and any one objected to it, could they say that reference of the Dominion and the Ontario executives would make their acts, or legislation, or administration of justice, binding ? Mr. MowAT.— That result would bo involved, of course. i x -i. • Sir BABNEtj Peacock.— It is not merely the disposal of the lands, but it i.s the fixing the territory within which the Province of Ontario is to administer iustice, and for which it is to legislate. .en- •*. i Mr Mow AT —Yes, my Lord. There must be some authority for hxing it; and how is it to be done ? It so happens that .so far as our westerly boundary is concerned, the parties have recently agreed that the question should be referre(l here. That required an agreement; and we have not been able to get the agreement extended to the whole ([uestion. Then how is the question to be settled ? I do not know any method, if there is no legal power of settling by the parties agree- ing in good faith as to what the true boundary is. Mr. ScoBLE.— T appear with the Attorney-General for Ontario, and I desire to add a few observations only to the argument which he has addressed to your Lordships. And I will first of all take the opportunity of addressing myself to the remark which fell from his Lordship the Lord Chancellor just now, as to the question of alienation as involved in this submission to arbitration. My Lords, if the arbitrators had assumed in any way to diminish or to increase the terri- tory of Ontario by their award, they would have been acting beyond the limits of the reference, and any order that they might have given on that point would have been ultra vires. • ■* • ^^^ The Lord Chancellor.— Do you mean it would be ultra vires it in poini of fact they made the admission > . t i lt j • i Mr ScoBLE.— No, because there I pray in aid the dictum of Lord Hardwicke and contend that it a boundary is referred to arbitration and the limits are fixed by the arbitrators, that boundary becomes by the action of the arbitrators the old and true limit. , .^ x i. i.u •* The Lord Chancellor.— It depends on whether the arbitrator has authority to do it. That is at the bottom of the (luestion. ,. .- Mr. ScOBLE.— I submit that as a matter of fact there might be an alteration of the limit of the province, but as a matter of law there would be none, because the award of the arbitrators would fix the legal boundary. Sir Montague Smith.— The difficulty is, has the government any power at all to make such a reference ^ The boundaries are fixed somewhere ; the difficulty is to ascertain them. Mr. ScoBLE. — Yes. . . Sir Montague Smith. — Courts of law might ascertain them perhaps inci- dentally, if any question arose ; but could any extraneous authority, short of an Act of Parliament, do it ? Of course the whole dispute assumes that there is a true boundary somewhere between these two. It is to be neither increased nor diminished as regards either, but it is to be ascertained. Mr. ScoBLE.— In the view I take of the point which this discussion has reached, legislation is not yet necessary according to the terms of the agreement between the province and the Dominion. Legislation was not contemplated for the purpose of enabling the arbitrators to act. Legislation was only contemplated for the purpose of giving effect to the award the arbitrators might make. In point of fact it was an agreement that if legislation was necessary-— Sir Montague Smith. — Theu the dimcuity is, until icgislation, how w the award authoritative so as to have the force of law ? Mr. ScOBLE. — It is binding in conscience. 26 QUESTION OF THE VALIDITY OK THE ARBITRATORS* AWARD. gs if in point m, iiOvf is The Lord Chancellor.— I should like to ask you whether it does not necessarily result from your i)roposition that if the Council* for the Dominion and the Council* for Ontario had themselves drawn a line upon the map, it would have been within their power to do .so without any reference to arbitration or any other proceeding whatever ? Mr. SconLE.— I apprehend it would. It would have been an act of the executive authority of the Dominion, concurred in by the province affected by it The Lord Chancellor.— Concurred in by the province ? You seem to me in this arjTument to confound the council with the province. . ''^>r Robert Collier.— You see it is a province with representative institu- tions. That makes all the difference. Mr. ScOBLE.— True, but the executive power of the government is reserved by the Act which constitutes the Dominion and the province. Sir Barne.s Peacock.— Suppose this award inchided a part of Rupert's Land winch was not formerly part of Quebec, and was given up to the British Govern- ment would that be binding ? It would be contrary to an Act of Parliament to sny that it should be binding,, because the 6th section of the British North America Act, 1867, says that the part v/i :^h formerly constituted the Province of Upper Canada shall constitute the Pro . ; j of Ontario. Well, if they put any- thing in by the award which was not part of what constituted Upper c'anada it would be invalid and contrary to this Act. ' Mr. Scoble.— That may be so, my Lord, but the contention before the arbi- trators was, and the contention hero today is, that no portion of country which was not formerly Canada, has been dealt with by the award The Lord Chancellor.— That is what will hereafter have to be considered It we do not admit that this award is to be a binding rule. Of course then we shall have to consider to the best of our power what the real boundary is • ,;J*''- Scoble.— Yes, my Lord, but the Rupert's Land Act,t if I remember Tightly does not provide boundaries for the territory of Rupert's Land, which at all conflict either with the legislation establishing the Province of Quebec or with the legislation under which fhe Province of Upper Canada, now Ontario was bnally established ; and therefore, if the arbitrators had as a matter of fact included in their award any portion of the land which is described generally as Kuperts Land, that would not have been in contravention of any Imperial ena t "^ ^^"^^ ^"^^^ * proceeding entirely unfettered by parliamentary Sir Barnes Peacock.— My view is that if the award included in it any part ot Kuperts Land, that part not being part of original Canada, then it was not a part which formed part of Upper Canada. It would be adding to Ontario some- r fu^ Z.l ■ °°* ^"^'^"S ^ ^PP^"^ Canada, and that would have been contrary to the 6th section of the British North America Act. Mr Scoble.— Yes, my Lord, no doubt Ontario is restricted to the limits assigned to Upper Canada by the various acts of authority on that point col- Ztl ?xu^® evidence before you. The Rupert's Land Act, 1868, i^ at page **i), and there is no reference there to boundaries whatever J . ,,S'r^^^«NEs Peacock.— I think it is all the lands and rights which belong to the Hudson s Bay Company. ° Mr. Scoble.— Yes, my Lord, the lands granted under the charter, or purported to be granted, to the Governor and Company of Hudson's Bay. But my argu- ^ - --* — • '— P- •T'«! "i »rif "o \ ici., Call. iO-j- itupcrt s i^and Act, ia08. whnr«7^f°VK "I**!? ^"a i*= •!^°'" the purposes of this Act, the term ' Ruport's Land ' shall include tha ahe Govlr^nr '*"i*^«"d territories held, or cUimed to be held, by the said Governor and Company" -J^« ithe bovemor and Company of Merchants Adventurers of England trading into Hudson', g;" P*°' '^*-» 27 ARGUMENT OF MB. SCOBLE, Q.C. ment upon this question of the power to refer, (for I think it is perfectly clear "pon the correspondence, and upon the Orders in Council, that there was no xegislatn e action contemplated necesLily by either party except a deelaratog Act a^^^^^^ the award had been made), leads me to this point, ^^ich has already been refened to by one of your Lordships, namely, as to the power of the f^^c^Jj^, ,f T^^'J ments of the Dominion and of the province to deal with a question of this kind whkh. I submit, according to Lord Hardwicke's decision, or rather dictum in the case of Penn v. Lord BaWimore, is not a dismembering or alienation of any exist- Sg province hut a mere ascertaining of the tnie boundaries of two coterrninous provinces. The 9th section of the British North America Act provides that « The Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen." j i. t I annrehend mv Lord, that entirely saved the royal prerogative in regard to mat- terFoftSHnd, and 'left the royal prerogative to be exercised by the Governor- ^^"^SiJ BARN^ErPEACOCK-But could the royal prerogative give anything to Ontario which did not belong to Upper Canada ? The lSTd CrANCELLOR.-Could you exercise the royal prerogative to settle boundaries if it included something which did not be ong to the Province ? Mr SC0BLE.-The contention is that the province includes the whole of North America, up to the Kocky Mountains, and therefore it could not possibly give anything which was not contained within the limits of the provmce as it '^°° The Lord CHANCELLOR.-That may be right or wrong, but is it an answer ? Mr SCOBLE.-I apprehend that so far as there was no legislation aflfecting the powers of the executive, the executive could deal with the whole of the and? coriprLd in the Domir n of Canada, whatever they might be. If there were aSslative enactment dng the limit of any provmce. t!.en I admit the rxecutive power could not ope. te over the lands contained within the province con- stituted by that legislative enactment, but otherwise I submit the power of the executive is free over the whole of the lands included in the Dominion not specifically appropriated. . , , . , x- 4. ^j- . The Lord Chancellor.— This is the legislative enactment : "The parts of the Province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the provinces of Upper Canada and Lower Canada shall be deemed to be severed—" nnd so on It savs " at the passing of this Act." Mr SC0BLE.-That is, your Lordships willsee,as far as the two old provinces of Upper and Lower Canada were concerned, and nothing more It says that old Upper Canada shall be Ontario, and old Lower Canada shall be Quebec. That is the whole effect of that section. . . ^ ^-^ • fti,;cA„<-» The Lord CHANCELLOR.-The words, " as it exists at the passing of this Act have reference to a certain state of boundary, and with reference to that the Province of Ontario is constituted. . , , .. tt n ;i„ . »„.l Mr ScoBLE.-And that province includes the whole ot Upper Canada and it is to ascertain the boundaries of Upper Canada, now called Ontario that the reference to arbitration was made ; and I submit that was well within the power. of the executive authority. • ., x •.-.— x-^a .^u^^ .«.fv... ,,-:n«r onrl Sir Moktauue Smith.— Supposing the arbiwa.ui= nad tan^n a,..,,,-^. .^..^. ; ---- manifestly straitened the boundary, so that it would not be he whole of the Province of Upper Oanada.-would not that nave been in the teeth of this Act of Parliament ? I mean, is it doubtful ? 28 ■' ^'■^■^ --s-f^api^^raw^^ -ygYv-v-Ty^s^p-jyvjj-H quest:on of the validity of the arbitrators' award. rovince as it % ^ViCkt* iTTOwr onn Mr. ScoBLE. — Except upon Lord Harwicke's decision : I perhaps only ought to call it Lord Hard wicke's opinion, because it was not necessary to the det r- inination of the question of jurisdiction, which was the main question. Sir Montague Smith.— If the arbitrators had authority, no one could assert that that was not the true boundary. Mr. ScoBLE. — The authority to settle it must be somewhere. Wherever a country is occupied, or claimed, by a government, I apprehend the power to deal with the lands contained within that government must reside somewhere. It must reside either in the executive or legislative authority. Sir Montague Smith.— Suppose the boundaries of two counties in England were in dispute ? Mr. ScoBLE.— They would be settled by an action of ejectment in an ordinary court of law. The Lord Chancellor.— Of course the legislature can do anything, so long as it is a competent legislature. Mr. ScoBLE. — I submit that according to the dictum of Lord Harwicke there is authority residing in the executive government. The Lord Chancellor. — Those two persons who were the only parties before Lord Harwicke could bind themselves. Mr. ScoBLE. — I think Lord Harwicke ojoes rather beyond that, my Lord, with great submission, in the general principle w hich he lays down. He says there : "It is certain that the original jurisdiction in cases of this kind, relating to boundaries between provinces, the dominion, and propietary government, is in the King and council. . . . Where before the King and council, the King is to judge." The Lord Chancellor. — That would relate to the crown colonies of course, where the legislative power resides in the King. Mr. ScoBLE. — I apprehend in a case of boundaries between states, the proper course would be a reference to arbitration. At all events, a legal course would fee a reference to arbitration, without appeal to the authority of parliament. I will give your Lordship a recent instance, occurring in this very district of British North America The question submitted under the treaty of Washington to the Emperor of Germany to determine the boundary between British Columbia, and Vancouver Island, and the United States of America, in which the question of the right of — The Lord Chancellor.— That was between independent states. There is no common legislature between independent states. It can therefore be deter- mined by international compact. Mr. ScoBLE.— Is not this in the nature of a compact between independent states, depending no doubt upon one government, but still, as regards their rights and legislatures. inJopendent— only controllable by the Dominion in certain respects, but otherwise perfectly free and unfettered in matters relating to their own domestic government and organization. I think the analogy must be taken to exist between two large provinces having independent rights, and the case of two independent states, rather than the case between two private individuals. In the case which is no doubt familiar to your Lordships, though it was not a question of boundary— the case of The Nawab of the Garnatic v. The East India Com^aw?/— although the East India Company was then a private company, and subject to the Crown, yet it was held that in its position lu India, it was entitled to enter into agreements with independent states in India, and it is put upon that ground by, I think. Lord Commissioner Eyre in giving his jp.dgment, that in a matter of this kind a matter of treaty as he calls it, aithough it was not a treaty, because it was more of an agreement, but he uses the old word treaty— in a matter of treaty of this kind the East India Company must be con- 29 ARGUMENT OF MR. 8C0BLE, Q.C. ii sidered in the light of an independent state treating with another independent state. So I apprehend here. Of course it may be that an action of ejectment may be- tried to settle this question, but surely this is a more convenient way of settling tbe question once for all, by some inter-provincial agreement, which will prevent harraasing and troublesome litigation of this kind, and I submit, my Lords, that unless it can be shewn that it was uLto^a vires of the executive governments ta refer this matter to arbitration, the whole question tails. I submit tiiat as a matter of convenience, and as a matter of right, it was mtra vires ot the execu- tive to refer this matter to arbitration, and that in the preliminary agreement which occurred before the reference, nothing' more was done in the way ot con- templating legislation than the contemplation of a declaratory Act which should give effect to the award of the arbiti-ators, thereby making it perfectly certain to all persons interested that the award had become law. It is only since the award that the objection has been taken, that there was no power to refer and I submit that the executive authority beinv4-Vi^''n V/\jinrloi-ir fV>of fViotr trava iia iurA ^;lrn,T1t n. larffetl not sucut;t:u m ycvumg tuc iiuruit>i.! ••' --j ,,- q—-~ — ; •■ - ■■ t i Area in another direction. Lord Aberdare.— You wish to swallow up the whole of this territory ? 32 JUNDARY : ONTARIO CO-EXTENSIVE WITH THE OLD PROVINCE OF UPPER CANADA. avour if he is fter some time in area as I can ther or not T i^^^v.^'^u'''"""-^ ^"^ ''''^ ^"y ^^'^ ^^°^«' but a furtlier portion I submit mv Lords that there IS a very strong case iudeed in favour of the position Sat we Z:'^^:ul7.T:fa'S^^^ ^^^^*^-^^«^-^ =-- us^Tth: area tha tJiey j,ave us was no doubt an extremely convenient one. Their decision aavP us a compact province. They found, as our northern boundary jLerBav ISi.h Rn^rand Albany River. We were quite content, and, on^hTwhoir'are con b a Srence of^oo Sn ..^^ Province to have ; with regard to that, there ma,y De a mnerence ot opinion. If the award is not to be regarded as final I mnsf lay before your Lordships what there is to be said in favour of much mo eeSen ti;: ;Zd^Td%o wMcTtV.1r"^ " 'P""': "°"-^^^ -- ""«h "- -btr" t::ttn1o0^1)J%ta;'m^^^^^^^^ i.s interested is only^^.OOO squkre miles b'Jng the wStn^^tTon" ^^^^^^ which, before the award was plaimprl «« r.ovf «* n i. .'F"*i"""- xne leiritory bv ,he old Province of Uppe^^r SlZZ'Z ?ht cfaitS!™';," Tv^^l^ S^Z^ by the old Province of Canada, and again, before the aetCent vrtt'h the S' ::Lt?v»7o3vro'3olo^'''"' Dominion itse,f a, part of Upp-C an^adt :?neg„tl:>«»andror '"°°"'^™'°' '°""^--' " -y invo,rthf n^eS;; bound'aV^"™"'' °°'-™''-Y»" would hardly wiah to obtain an inconvenient ,„.Aert:ri; tch-traVe: T^^^-^s^i^^n^ i te province, as limited b/ the conten^ionT^ML^X'^ a Uttle ovt%WOOO mm .quare miles, making it bTttSt^; '^tur^'trrs'th^te" rf Ont iT Even Manitoba, ^ now constituted under the DominioTlcrcontain, l?$Tnn prrnS-oJSfc.""'"-"''"-"^ ■>"'-' -'^ "'«» m- thrt!;':°.?rof s Sir Robert Collier.— What will it be ? «cuM col~5;7jt^96%'oTst.i: ,l5es"^lfth:t''''"""r '""■"''^™»' °"'«™ have far more than lSsX,ZZ^tuJ:^\tl7ltZZTt^'',ri'lS^t the old Province"of UoDer' ranadT "w it iu ?"' •"'*' "^"^ boundaries as Th. British z.rizz'tt. r\t uSs rvcte's^:? ^aL^r: 3 (H.) 33 (^-X^ ARGUMENT OF AITORNEY-OENERAL OF ONTAKIO re QUESTION OF BOUNDAUY : Scotia and New Brunswick. By the Union Act of 1840, the two old Provinces of Upper Canada and Lower Canada were constituted into the new Province of Canada, so that whatever territory the Province of Canada had was part of either Lower Canada or Upper Canada. Th«n what was the area, and what the extent, of the old Province of Upper Canada ? That province had been created under the Act of 1791, which contains a recital that His Majesty was desirous of dividing the Province of Quebec into two provinces. The Act did not make the division, but provided that if His Majesty carried out his royal intention, the constitution of each of the two pro- vinces should be the constitution set forth in the Act. His Majesty did divide the old Province of Quebec (enlarging it, as we say, at the same time that His Majesty was dividing it) into the two Provinces of Upper and Lower Canada. That renders it necessary to enquire what the limits were of the old Province of Quebec. That province was constituted by a previous Act of the Imperial Parliament, passed in 1774, which is commonly referred to as The Quebec Act* It was passed some eleven years after the cession of all French Canada to England. The cession took place under the Treaty of Paris, in 1763. Immedi- ately after the cession, a royal proclamation was issued constituting the Province of Quebec, but with very narrow boundaries. Nothing turns upon that procla- mation now. The tirst question is as to the Act of 1774, and the limits which it assigned to the Province of Quebec. I shall have to refer to the language in which that Act is expressed. The recital is : " Whereas His Majesty, by his royal proclamation bearing date the seventh day of October, in the third year of his reign, thought fit to declare the provisions which had * Imp. Act, 14 Geo. 3., cap. 83, heos. 1 and 2— The (^ukbro Act, 1774. An Act for making more effectual provision for the Government of the Province of Quebec in North America. Whereas His Majesty, by his royal proclamation, bearing date the seventh day of October, in the 1 third year of his reign, thought ht to declare the provisions which had been made in respect to certain countries, territories and islands in America, ceded to His Majesty by the definitive Treaty of Peace con- eluded at Paris on the tenth day of February, one thousand seven liundred and sixty-three ; and wheress by the arrangements made by the said royal proclamation, a very large extent of country, within which I there were several colonies and settlements of the s\ibjects of France, who claimed to remain therein under the faith of the said treaty, v is left without any provision being made for the administration of civil government therein ; and cen i parts of the territory of Canada, where sedentary fisheries had hem established and carried on by Hie subjects of France, inhabitants of the said Province of Canada, under grants and concessions from the government thereof, were annexed to the Government of Newfoundland, and thereby subjected to regulations inconsistent with the nature of such fisheries : May it therefore please Your Most Excellent Majesty, that it may be enacted, and be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That all the territories, islands and countries in North America, belonging to the Crown of Grest Britain, boundt^d on the south by a line from the Bay of Clialeurs, along the high lands which divide the rivers that empty themselves into the River St. Lawrenct from those which fall into the sea, to a point in forty-five degrees of northern latitude, on the eastern bank of the River Connecticut, keeping the same latitude directly west, through the Lake Champlain, until, in the same latitude, it meets the River St. I Lawrence ; from thence up the eastern bank of the said river to the Lake Ontario ; thence through the I Lake Ontario and the river commonly called Niagara ; and thence along by the eastern and south eastern I bank of Lake Erie, following the said bank until the same shall be intersected by the northern boundary granted by the charter of the Province of Pennsylvania, in case the same shall be so intersected ; and I from thence along the said northern and western boundaries of the said province, until the said western I boundary strike the Ohio ; but in case the said bank of the said lake shall not be found to be so inter I sected, then following the said bank until it shall arrive at that point of the said bank which shall be I nearest to the north-western angle of the said Province of Pennsylvania, and thence, by a right line, to the I said north-western angle of the said province ; and thence along the western boundary ot the said province I until it strike the River Ohio; and along the bank of the said rivei, westward, to the banks of the I Mississippi, and northward to the southern boundary of the territory granted to the Merchants AHven- \ turers of England trading to Hudson's Bay ; and also all such territories, islands and countries which have, since the tenth of February, one thousand seven hundred and sixty-three, been made part of the Govern- 1 ment of Newfoundland, be, and they are hereby, during His Majesty's pleasure, annexed to, and m«de| uart and parcel of the Province of yueut-u, an cieated auu estabiished by Ciie said iuyal proclamation of Kc i aeventh of October one thousand seven hundred and sixtv-three. I II. Provided always that nothing herein contained relative to the boundary oi the Province of Quebecl ■hall in any wise affect the boundary of any other colony. 34 WUNDAUY: CONSTRUCTION OF THE QUEBEC ACT, 1774. in North America. Province of Quebec I been made in respect to certain countries, territories and islands in America ceded to W;« Sr:2y,l763!J-''"*^^^ '"'^'^ °' ^^^^«' '^'^'^'^'^ ^' Pa^; I'Te^trntr' dif S- Your Lordships will observe that the proclamation only referred to a very small portion of the ceded territory, as I will shew directly! ^ ' "And whereas by the arrangements made by the said royal proclamation a verv large extent of country, withm which there were several colonies and settlements of S subjec s of France, who claimed to remain therein under the faith of the safd treat was left without any provision being made for the administration of civil Kovernment therein ; and certain parts of the territory of Canada—" government That is not material, I think, for our present purpose. We know, therefore from the recital of the Act why it was passed. It was passed in view ^f the cession S Canada to the British Crown, and for the purpose l{ providing a governt'^rfor a much more extensive territory than the proclamation had provided for TWs rmatioT '''''^'^ because, outside the territory embraced in the pri?' "—a very large extent of country, within which there werp HftvAr.ii „„i« • j settlements of the subjects of France. Jho claimed t^remZ ^ZiruZlrtTZtrtl " rnrtLTS."^^^ ^^^'"'^^ '^"^ P^~" "^'-^ -•^^ ^- *^« administraSntfLlf This demonstrates that the purpose of the Act was to include in the extendsd Province of Quebec such an extent of country as would embrace all the terr7 orv withm which there were colonies and settlements of the subjects of France ^ The Lord CHANCELLOR.-Settlements in the Province of Canada Lord Aberdare.— The French themselves reserved a nortion of wbof anciently called Canada, and threw it into Louisiana ^ ^'^^ "^^^ Mr MowAT^Yes, my Lord ; I shall have to refer to that in a moment Bv the treaty, the Mississippi was made the line of division between tirS h and ..euui possessions, and that part of Canada which was on the west If tl. Mississippi, Great Britain did not acquire. It was in effect tZnl • ^ establish beyond any sort of doubt, by the papei. which L p^rfntSE the' maps-that there were those colonies and settlements all alon- the east b«nk n? the Mississippi, and further colonies and settlements covering the whole of the Noi-^^h-West Territories to the base of the Rocky Mountains, aSd northward to Eh« Saskatchewan, besides the posts they had beyond the height of 1«L? 5 Hudson's Bay. All through this territory I sav therfi w!if W i ' ^P^""""^^ settlements of the French.^ They hadt7en'p:sLt;^7ThVct:try Zy S traded there, and were in exclusive possession, and had been so for « T^n^^ -J "J ' "!• T Th\Hudsoa's Bay Company's right's I shaU ha" to sp ak of^brinH bye, but I say here that neither the Hudson's Bay Company nor an v of W l- ? of Great Britain, had gone into that territory unUlafZ 1774 w't^a s^^^^^^^ tion nRrhnr.. nf nna t."vt r.^1- ,.^^„ *— e ^ tt.. , »»^«r^^ /*, With & Single excep. and up to some time afterwards, the company confined itself to Ml ^-i the Bay, and traded with the Indians found JherewSe he FrP^^b^? 1 possession and spread themselves all over the country ** 35 AROUMENT OF ATTORNEY-GENERAL OK ONTARIO re (QUESTION OF HOUNDARY : There ia to be placed on the Act a construction which will include all that territory. I will shew other grounds for this construction. Thus, the Act assigned to the Province of Quebec the whole of French Canada north of the line Which is described— we claim that the Quebec Act assigned to the Province of Quebec all British Canada north of the southerly line which the Act sets forth Mr. McCarthy.— All of French Canada ? Mr. MowAT.— All of French Canada which had been ceded to Great Britain, north of the described line. Now, what would that include ? It would include the territory along the Mississippi up to its source, because, by the Treaty of 17(53 — the treaty of cession* — the Mississippi was made the boundary between tiie British and French possessions. At that time it was not known how far north the Mississippi had its source, nor was the exact position of its source known, so that the effect of the treaty was that, as all Canada was ceded to England, all of Canada that lay north of the source of the Mississippi would pass to England. ■That would be the fair construction of the treaty, and that was the construction "which it always received. The Lord Chancellor. — But the southern line on this seems to be along the course of the River St. Lawrence. It says : " Bounded on the soutli 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 which fall into the sea, to a point in forty-Sve degrees of northern latitude on the eastern bank of the River Connecticut, keeping the same latitude directly west through the Lake Champlain until, in the same latitude, it meets the River St. Lawrence ; froru thence up the eastern bank of the said river to the Lake Ontario ; thence through the Lake Ontario and the river commonly called Niagara ; and thence along by the eastern and south- •eastern bank of Lake Erie, following tho said bank until the same shall be intersected by the northern boundary granted by the charter of the Province of Pennsylvania, in case the same shall be so intersected ; and from thence along the said northern and western 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 * Thb Treaty op Paris, 1763. Tht Dffinitivt Treaty of Friendship and Peace between His Britannic Majeiti/, the Most Christian King and the Ki:.g of Spain. Concluded at Paris, the 10th of February, 1763.* Art. IV. His Most Christian Majesty renounces all pretensions which he has heretofore formed, or might form, to N»va bcotia or Aoadia, in all its parts, and guarantees the whole of it, with all its •dependencies, to the King of Great Britain ; moreover. His Most Christian Majesty cedes and guarantees to his said Britonnic Majesty, in full right, Canada with all its dependencies, as well as the Island of Cape Breton, and all the other islands and coasts in the Gulf and River St. Lawrence, and in general, •everything that depends on the said countries, lands, islands, and coasts, with the sovereignty, property, possession, and all rights, acquired by treaty or otherwise, which the Most Christian King and the Crown t)f France have had till now over the said countries, islands, lands, places, coasts and their inhabitants, so that the Most Christian King cedes and makes over the whole to the said King and to the Crown of Great Britain, and that in the most ample form, without restriction, and without any liberty to depart from the said cession and guaranty under any pretence, or to disturb Great Britain in the possessions above mentioned. Art. VII. In order to re-establish peace on solid and durable foundations, and to remove for ever all subjects of dispute with regard to the limits of the British and French territories on the continent of America, it is agreed that, for the future, the confines between the dominions of His Britannic Majesty ftnd those of His Most Christian Majesty, in that p.'vrt of the world, shall be fixed irrevocably by 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 this river and the Lakes Maurepas and Pontchartrain, to the sea; *nd for this purpose the Most Christian King c«des in full right, and guarantees to His Britanmic Majesty the river and port of the Mobile, and everything which he possesses or ought to possess, on the left side of the Mississippi, except the town of New Orleans, and the island in which it is situated, which shall remain to France ; provided, that the navigation of the Mississippi shall be equally free as well to the subjects of Great Britain as to those of France, in its whole breadth and length, from its source to the sea, and " sxr-ressiy thst pm t —..>-.. is hst-^gsn the said Islaad of New Orleans and the right bank of that river, ttt ■ well as the passage both in and out of its mouth. * To which the King; of PcrtugAl accedttl on the aame day. 36 line, to the boundary ( said river, boundary c Hudson's I Mr. ] that para^ " That Grown of C. Now, the ernment h What and upon shewing tl beyond an to the A statutory < of the whc mit that t. word " nor Hudson's 1 The V in the de westerly d is intended means due strue the v described I '' due north able Frencl along the . settlements that constr at, even w but certait colonies an we cannot ; once more : " That ( Crown of Gr and so on. " bounded r cannot be. northern be in the desci The L( Mississippi, westward, t southern b( England tra Mr. M( language ai 5UNDARY : elude all that hus, the Act [•th of the line e Province of it sets forth. Great Britain, would include 'reaty of 1703 ' between the low far north rce known, so Ingland, all of to England. i construction CONSTRUCTION OF THE QUEBEC ACT, 1774. bhe high lands ace from those on the eastern rough the Lake roru thence up 3 .'Jake Ontario )rn and south- intersected by Ivania, in case 1 and western Ohio ; but in then following ,11 be nearest to ice, by a right Uhriitian King, jtofore formed, or >f it, with all its IS and guarantees as the Island of '., and in general, •eiffnty, property, \a and the Crown their inhabitants, to the Crown of liberty to depart possessions above move for ever ail the continent of ritannic Majeaty r'ocably by a line and from thence rain, to the sea; tritanaic Majesty a the left side of hich shall remain the subjects of 1 to the sea, and : of that rivtji', ka hne 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 th! bankTf the T;^.nAZ'J7^T^-^ *^' ^"".•^" °^ '^' Mississippi, and northward to the southern IludsoS Bay."' "^ *'''"*''^ '" '^' ^^ro\.s.nt. Adventurers of England trading S. Mr. MowAT.-Yes. Your Lordship will observe that in the be-inninc of that paragraph the enactment is this : "Oo""""o ot "That all the territories, islands and countries in North America belonaing to the Grown of Great Britain, bounded on the south by a line ''_ oeionging to tne Now. the opening expression of that indicates the purpose which the Gov- ernment had in view. The only line which is described is the south line What I contend is-and I contend this upon the language of the statute and upon a mass of evidence which I think is admissible f of the purpose of shewing the meaning of the Act, and which seems to me to place the matter- fn^JL T.'^'S"^ doubt; but in the meantimB-J am referring for the mrnent to the Act nnlv — wbnf T of^r.fo»,.l ;„ i.u_j. xi , „ 9, .:. '""'"'="'' to be along I ^LI^L^I ^P^^-^^at I contend is, that the word "northward "s ■ statutory descrintion dnftH nnf rofar +^ o !;,,„ „i. „ii u .^ ^ ^i ... J . f. ," — ~ — ^""^"v* lo, uuau \jin- wuru norinwara in the t^^'ltuT^^T ^"'4 ""f ''^'' ^? ^ ""« ^<^ ^»' but to the extension northward fif^LT fb i "^'''■^- . ^*^.^'^°™.«"t described the south line minutely, and I sub- mit hat the true construction is, that, having so described the south line the ZdU^trci;:?;^ '^ ''- ^^'^^^ ''-'''^'^ -^^-^^--^ *« ^^^ '-'^^-y «^ ^^ The word "northward" does not necessarily mean due north. We have m he description, the word "west" not as meaning due west, but in a wTnteidef'Tr'r^ T ^'^^^ '^' expression "due west" where due wes? IS intended. Therefore there is no presumption that "northward" in the Act means due north, and the effect of ,so construing it would be this: If vou con : Zlnt", r'\ r'^'T*^- ^ ''^'r^'S »«* '^ ^^^ ^^ole territory north of ?he 'due north "'^h^f/n f"T^ 'V' "'^^ "^'"'^y' ""^ ^^ ^^^ assume that it means, . Wp FTnib J^^'^,«o?'^truction cuts away a very large territory, and a consider. SncfS mP""?"-**'-'" '"^ "■ n"™*^\' ^^ ^'''''^ ^^l^'^i^^ ^"-'PP'." -nd th^n it strikes ''northward to the CS. T Pt?^*^'''.*'^^"*?,'^ ^^^^^''^ ^° *1^« Merchants Adventurers of iingland trading to Hudson s Bay." Mr. MowAT.-I may put the point in this way. You may say that the language admits, prima facie, of two constructions; that it meant a line- 37 AltHiUMENT OF ATTOHNKV-OENERAL OK ONTARIO re QUESTION OF BOUNDARY : trunnin<{ northward from that point to the Hudson's Bay territory, or that it meant the territory northward from this south line to the Hudson's Buy tcrri- tory. The second is the construction which, I will shew your Lordships, was Intended. The Act does not give a northern boundary at all in any view of the language. The Lord Chancellou.— No, the line goes "northward to the southern boundary of the territory granted to the Merchants Adventurers of England trading to Hubson's Bay." Mr. MowAT. — Yes ; and if you treat the word " northward " as referring to a line, you merely got to a point on the territory of the Hudson's Bay Company, and you have nothing in the Act to show how our northern boundary is to run from that point. Sir Montague Smith. — Do you say the line follows the Mississippi bank northerly T Mr. MowAT. — Yes, that is out construction. Lord AnERDARE. — That would give you the territory which the arbitrators gave you. Mr. Mow AT. — Yes, and that is our construction now. The construction in times past was that " northward " would einbraco (to use the language of ^his very Act) " all the territories, islands and countries in North America belonging to the Crown of Great Britain, bounded on the south " by that line which is described. And if so, when you have got to the source of the Mississippi, the whole of the British territory north formed part of Quebec. If you draw a due north line from the source of the Mississippi, that would give us all I need in ■order to sustain the arbitrators' award on the merits ; but by such a line you would leave out the French colonies and settlements in the North-West; and the statute did not mean to leave them out— it meant expressly to take them in. That was the very object of the statute. There is no distinc- tion between the French colonies and settlements in one part of Canada and the French colonies and settlements in another part of Canada. Wherever they were, it was intended to bring them into the British Province of Quebec ; and if so, the only way of construing the Act is that the word " northward " refers to the whole territory north of the described line up to the territory of the Hudson's Bay ^' ^^7* ' ^' ^'^'' *t seems Jo le so stated. It so, the Act must have been passed before Sir Guy Carleton's commis- sion. It is very possible that the Act may have passed before. Mr. MowAT.— It was before. Mr' MawAT''''?b*^''°"'7^'!' ^ T l^ ^^ "^^'^'"'^ ^^^^^^ ^"""^hs before. January, f774. ~ '^ ^^' ^^'"^"^ ^^ ^^' ^'^ ^^« '^' [Adjourned for a short time]. fb.f n''"?^''''''''T^^f°!'^''^ have" urged the construction of the Act to be u td^tV "'''" '^ '''' "'^^ all territory .orth of the described south lint I have urged this upon several grounds. I have urged that it sufficiently appears from he language of the Act, without any extraneous evidence. Secondh that S further appears from the fact that any other construction would exclude the fb N ?^'w"r"^.''^^'^"°^^'^*« "" the east bank of the MissTssppi and also i^ Lfrf Tb''^'''■"'"T.J^"^^ "^^^^ '^^' '^^' construction is^ further co^ himed by the terms of the commission issued immediately afterwards to tL Governor-Genera ; and I was going to refer then to the proceedLgs upon the m. contending, m the case of so old an Act as this, that it was pZer Touah ^ifirrJr.^ ri^^l^l^-it--^^ -f- *« ^^^^ proceedings. ^MTrerrf; constructio^inten;i;d^s^;;n:^sripSi^;'£\:i;^''^^^^^^ ^^'^^ *^^ 13tb 41 ■ 0f~ ~i liJilWHWiii'lifriiiinnt'ii^liii ARGUMENT OF ATTORNEY-GKNERAL OF ONTARIO re QUESTION OF BOUNDARY fill III i.1 The Lord Chancellor.— We must pause before we allow you to travel into that line of argument. What authority have you for the proposition that what was said by any gentleman in parliament is to be admissible as construing an Act of Parliament i If the opinion of Sir Francis Hincks is not admissible to construe an award made by arbitrators of whom he was one, how can the opinion expressed when a Bill is before parliament by any particular member be admissible to construe the Act ? Mr MowAT.— What I was going to shew was the terms ot tlie J^iU as it orifrinaliy stood, mentioning the changes that had occurred which create the difficulty, and shewing why those changes had been made, and that the changes have nothing to do with any limitation of the extent of territory which the province was to have on the west, and on the north* The Lord Chancellor.— You must give us some authority for the use ot such matters as evidence. At least they can only express the views of particular members as to what they supposed was in controversy. Mr MowAT.— Mv object is rather to point to the changes made in the matter of the Bill, in'its progress through the House and through committee in illustration and support of my contention. But, for the present, I will pass that I have pointed out that no other provision was made for any other part of French Canada north of that line by means of this Act. I may further mention, in connection with that observation, that l^fore the cession, and while the terri- tory was French, it was under the jurisdiction of the Governor of Canada, which is a circumstance to indicate that thd same course would have been followed by the English. No reason has up to this moment been suggested, from any source whatever, why any portion of French Canada should not have been included in the Province of Quebec. Whatever reason there was for putting any portion in, applies beyond any sort of doubt to the xvhole of French Canada— to the whole of Canada that belongs now to Great Britain, and which was not owned by the Hudson's Bay Company. ^. , .. i ^ . i- i My Lords, these are the principal grounds on which, if we have to rest entirely on the Act of 1774, without anything further, I submit it appears that the whole of British Canada, not including anything that was owned by the Hudson's Bay Company, was included in the Province of Quebec. But the argument does not rest there. There are other grounds that establish the same thing. In 1783, the treaty between Great Britain and the United Wtates was entered into, by which a very large part of Canada was ceded to the United ♦ The description in the Bill as it first stood was: "all the aaid territories, islands and countries, heretofore a part of the territory of Canada, in North America, extending southward to the banks of tho River Ohio, westward to the banks of the Mississippi, and north ward to the southern boundary of the territory urant to the Merchants Advgnturers of England trading to Hudson's Bay, and whieh said territories, islands and countries are not within the limits of some other British colony, as allowed and confirmed by the Crown, or which have, since the 10th of February, 1763, been made part of the government of New. °" Mr Edmund Burke, then a mimber, objected in the interest of the Province of New York, whose Britiah Agent he was, that this was not a boundary of certainty as between that province »nd Quebec, and he moved the one which he had proposed, as follows, viz. :—" a line drawn from a point on the east side of Lake Champlain, in 45 degrees north latitude, and by a line drawn in that parallel west to the River St. Lawrence, and uj) that river to Lake Ontario, an 1 across that lake to the Ki ver Miagara, »nd from Niagara across Lake Erie to the north-west point of the boui.dary of Pennsylvania, and down the west boundary of that province, by a line drawn from thence, till it strikes the Ohio. These words down to and inclusive of "thence" were inserted; and the words— until it strike the Ohio ; and along the bank of the said river, westward to ie banks of the Missicsippi, and northward to the southern boundary of the territory of the Merchants Adventureis of England trwling to Hudsons T> . -_j s,!s.-. s.!! sv.r.h te.rritfiriss. islands and countries which have, since the 10th of rebruary. una, ^n made" part of the governm^^^^ and they' are hereby, during His Majesty's pleasure, annexed to and made part and parcel of the Province of Quebec, —were next read. These amendments of the committee were reported to the House ; and the clause as tnally agreed to oy the House is as it stands in the Act. (See Joint App. pp. 370-374. ) 42 OUNDARY THE TREATY OF VERSAILLES, 1783. Thi Jfrpnfl X •l^' ^^r? ^tP',^J^' ^^3 ^"d 534 of the Joint Appendix.* This treaty described what should be the southern boundary of British territory in this quarter. It describes the communications from Lak^ Ontario to Lake Erie and Lake Huron, and then through Lake Huron • ^"'^ano to " Thence along the middle of said water communication into the Lake Huron ■ thence through the middle of said lake to the water communication between thS la^^nd Lake ;„ThrTVn rr T"^^ t^^^^ ^^P^"*''- '^"-•thward of the Tales Royal and Phiti^peaux That was the treaty. A difficulty occurred, because it was subsequently ^scovered that a due west line from the most north-western pointTthe Lake of the Woods would not strike the Mississippi-that the principarsoLce of t^he Missis^ The Lord Chancellor.— It i.s further .,uuth ? Mr. MowAT.--Yes, my Lord Sir R.)HERT Collier.- Then the west line would not go near it Mr. MowAT.-No, but then I may mention that there are tHbutaries of the ^Z'Th\t7F^'^uV-^ '\^^' ^'""' ^^'''^ ^' i^^^'f - tributary oFth i ssis wouict strike Ihe White Earch River is near the Rockj^ Mountains larger ? ABEROARE.-May not the Missouri have beei in their minds as the • 1 ^'*- ^^ ^ru?'-""!^** '' «"^ ^^^^ of <^he matter, which we put forward in thp , , * Trkatt of Vbrsaillks, 1783. " " .aid uXd Stltest^aVte'lrelett^dlus'treb^^^^^^^^ "h" ^^if ""^J^",' "^ '^e boundaries of the theboundarieB. vi^., from tWnorthVes aSe o^f Ea S^^^^^^ """^ "hall be drawn due north from the source of St. Cr?ix River to the h Lh UnH', l' ""fi^ 't't "j^'-med by a line those rivers that empty themselves into the R vLr St T Iwrill f ^ li*'""^ *{"? h.ffhlands which divide Ocean to the north.westernmo.rheTofConScuiRrv^r?^^ those which fall into the Atlantic to the forty.fifth degree of north latitude ^froHhenLbv a Hnh"f^^ along the middle of that river the River Iroquois or Cataraquy ; thence'a 'nK the midil« nf^ J^^^^ "^^'^ "1 said lat tude until it strikes middle of said lake until it str\es the commZcafioS wa^^^^^ betwerth.^'°I ["^^e Ontario ; through the along the middle o said coratnunication into Lake K Through thfmiddf^nf.t-rfu^^ ' !^''«"''« the water communication between that lake and Lake HnrnnV^.K'l'L'^'^'^?^ said lake until it arrives at munioation into the Lake Huron • thence throiii,hfh«m;^^i' ''^"""^ j*'?",^ *''* '?'^'*''' "^ "'^ water oom- between that lake and Lake Superiof- theScr hr^^ ?Lt %°^ '!"^ '"''«*" '^e water communication PhHppeaux, to the Long Lake rthmcetCughthA^^ northward of the isles Royal and cation between it and tfe Lake of the WoJds to the l^d 1 1«^^^ f^°X^*> ."J"* the water communi- lake to the most north-western point thwe^\ndfrfm?h„n!^^ V"® Woods; thence through the said thence by a line to be drawn aCg the middle of X satd rI™, M • '^*'- "''•""'• ^ ^^e River Slississippi ; northernmost part of the thirty-firft degr™ of Mrth latitude Snnf.,K'"'"lPP' ."!*'' * "hall intersect the he determination of the line last mentK irthelatitude of K'n^^ % ''"^*" ^^ dra«^ due east from thenaddleoftheRiver AnalachicXnrPafih^MoifJ i£ 1 ''^yL'°"*.'^^'f'^«8" °o'"*'i "f the equator, to the Flint River; thenceVtSt to th^h^^d^^^^^^^^ '" ''' junclon v^ith Mary's River to the Atlantic Ocean East hv a i;n»t?i!„^' *'?'* *hence down along the middle of St. from its mouth in the Bay of %"md v to its souree and from f^?""* *'°",'^ the middle of the River St. Oroix unds which divide the.rfvers tut ill il''thntUnti«Z:irrr?^^^^^^ '^?«-'d hifth'- Scotmonthe one part, and East FloridI orthTo^her s^in rJ^^H ." f^""?""^ boundaries between Nov, I a-rrCaX^^ -«- i«'-d- n^w^t^oVh^J^^tX^a^^^^^^^^ IKf tr .SS 4.3 fi ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO ve QUESTION OF HOUNDARY : tainment of the principal source or sources of the river, and it was in 1818 that the Convention took place settling the 49th parallel of north latitude as the boundary from the Lake of the Woods west to the Rocky Mountains. Then, the treaty as to the boundary line east of the Lake of the Woods was in 1842 ; and the Oregon Treaty was in 1846. The settlement with the United States was an arbitrary one ; they did not attempt to do anything more than agree on what the conventional boundary should be. I refer to this for the purpose of calling your Lordships' attention to the fact that a large part of Canada, as contained under the Act of 1774, and as set forth in the commission of Sir Guy Carleton, issued also in 1774, ceased by virtue of the Treaty of Versailles to be British territory ; and that in 1786, after that treaty, a new commission* was issued to Sir Guy Carleton, which describes his jurisdiction in the same terms as the treaty. Lord Aberdare. — What is the reference to that commission ? Mr. Mow AT. — Page 387. That commission appoints Sir Guy Carleton — "To be our Captain-General and Governor-in-Chief in and over our Province of Quebec, in America, comprehending all our territories, islands and countries in North America, bounded " — and so on, precisely in the same way as the treaty. So that there we have a commission to the Governor- General expressly up to the most north-western point of the Lake of the Woods, and thence as far west as should be included in a line due west from that point to the Mississippi, whatever construction that ex- pression should receive under the circumstances. That is again further evidence that there was no intention of stopping at a due north line from the Ohio and Mississippi. That is one of the governmental acts negativing the notion of that being intended. In fact there is not one tittle of evidence in any despatch, in any map, in any governmental act, or in any legislation, in favour of this due. north line. The sole thing on which the whole argument for it rests, is what may be gathered from the Act of 1774. Everything else that was done, so far as this point was concerned — every bit of legislation we have, every official paper, every despatch, every map, and all governmental action, both in England and in the colonies — is against the due north line as being the western boundary of the Province of Quebec, or the provinces which have been carved out of it, Uppes Canada, Canada, and Ontario. This is one of the commissions which negatives an)' such thing, because it expressly gives to Sir Guy Carleton, as Governor- General of Quebec, a jurisdiction at all events to the most north-western point of the Lake of the Woods and so much further — * Boundary Dkscuiption in Imperial Commission to Governor-General Carleton op QnEBKC, 22nb April, 1786, after the Treaty of Peace with the United States. And further know ye that we, repouing especial trust and confidence in the prudence, courage and loyalty of you, the said Sir Guy Carleton, of our especial grace, certain knowledge and mere notion, have thought fit to appoint you, the said Sir Guy Carleton, to be our Captain-General and Goveinor-in-Ohief in and over our Province of Quebec, in America, comprehending all our Territoriea, Islands, and Countries in North America, bounded on the south by a line from the Bay of Chaleurs, along the high lands whicii divide the rivers that empty themselve.i into the River Saint Lawrence from those which fall into the At- lantic Ocean, to the north-westmost head of the Connecticut River ; thence down along the middle of that river to th« forty-fifth degree of north latitude ; from thence by a line due west on the said latitude until it •trikes the River Iroquois or CatarasiA'*i!ipi \ ^nd tiorthward to the sniithern bonnd&ry of Che I territory granted to the Merchants Adventurers of England trading to Hudson's Bay ; and also all sucb I Territories, Islands, and Countries which have since the tenth of February, one thousand seven hundred | »nd sixty-three, been made part of the Government of Newfoundland, together with all the rights, mamben, and appurtenances whatsoever thereunto belonging. 44 3UNBAKY : IMPEEUL .CT or 1791-C0.S™UT,0N .OE UPPKB .^ .„w„h CANADA. in 1842 ; and OP QUEBKC, 22nb it says this : ^' ''^*^*"^«' ^tter describing the line to Lake Superior, it and'tltTalSut Woot't^the S fe oft 'l^ '^^ ^^ oom.uuication between to the most north-western poiat thereof and frl thelr'^' ' i^'""'' '^''''^^ '^' ^""^ ^^^^ .Mississippi "— ^ > '^"'^ *'^°" '•^^nco on a due west course to the River which never would have reached there HneflwitrOMoinVMS'^^^^^ '' --t«d. as to the due north Mr uZl^vT^d' ^J'-^d agreat ignorance of geography. be given toYhrexpre^sion " X w'e^t"''" uTeel'? ""^'4 "^^'' ^^^^ ^^^ ^^ is called the Mississippi is not toTe found due w.^^^ ""^'^i^""^'' P"'-"^' '^°'' ^^** reason why the description should cease until 7T l^^^^PT*' ^^*^ *^«^« i« "^ ''^ ^ti^T^' ^'' '^ inrde'XtlCitS?^^^^^^^^^ ^^^^^ ^«-^--- .oniJi^'n^^toSii^^yTaSeTo^w^^^^^^ a.o connecVfe with the original northward from the function of tL^^- ^^'^^''^y «"PPosed that it was dmwn probably they -pposert^^^e to the w^ tTTh'^^ P^^* -^-^ wrong in their no'Son of the point you have atued if J ' Y^''^'' u '^^^^^ '^^'"^ bable that they meant as much of the old honn^!^ ^- ''"^ '" substance pro- tlie United States ? boundary as remained after the cession to M^ MowAT -I think that is what they did mean after'tS;: ^eront'"'"'^^^-'"^^^ ^^^"*-^' ^-'^^^^1 in the old way, as remained to be^^^rs^s :j S:^Snii^ttirSi^^^jj^r ^-^-^^^ of what was owned by the Hudson's Bay Companv " ' *^' exception My Lords, I come now to the Act of 1791 * nn^ +„ . • occurred immediately afterwards and afford fnvfS! <^o ^^r am matters which of the construction for which I contend ^7™/»»ther very strong confirmation of 1791 did not give the botda^lTof the ptwnt'1^ "^^^Tf,"^^ ^'^ ^^* but when the matt^ was Ll^rJ^^i^?; S ^^:.^^^£^ * Imperial Act, 31 Oeo. Ill,, cap .SI HTon t.,„ r, ~ ' •' *''^'^- ''I (1791)- The Constitutional Act. and to make further pro^sion for the GovernmcnP^Z Z!d Province "^ *"''''"• *'* ^"^^ America] , ^^J^:^Z Sr K!;:^!^^ t^:^^^^X:f;^y ^ -..a^ t.. b„th Houses of Parliament of IWr Canada and the Province of Lower CaSbeTt p^'Th, ^'^u'"''^''' *° ^« "ailed the ProS H com™,"T '^f "^ ^h' «^i^. ^'"^■"'=«« -'«l'ect"^ry a LegiKve^ciL*.^il """'^""^'y. ^^^^''^'''d that Iherl ; Lrrj;^v H"1^°?"".""t?'* !".'^« "'*"««'• hereinaher deSed • a^H f 1 L''"'* an Ag«embly, to be seve™ ani w r/^' "/.Majesty, his heirs or successors, shall have wwer 'durW ? h '" "^^ °^ *•>« ""'^ Provinces |irom time to time ai)iKiintf.n adnii«;.t„- ih r. ' . "^'. ,*? ".'" Majesty, his heirs and ".."-"-j^r, " 'i lOedared to be, by virtue of and undCT'the authoritv",7'thirArt"r.r^'"''' f^*-" ]"?• ''"^the sam'e" are hereby Toses whatever, within the Province in which tl" s^me sh^l hale btn :o"Jal'Hed.'"^ *" *" '"***"*" *"^ P"^^ 45 AfiaUMENT OF ATTORNEY-GENERAL OF ONTiVRIO re QUESTION OF BOUNDARY : ment the line which he contemplated. We have official evidence * of what that line was. It contains what is material for our present purpose. I refer your Lordships to page 393. I need not read the first part because nothing turns on it, but after giving a description up to Lake Temiscaming, the paper goes on to des- cribe the line intended in this way : " And from the head of the said lake by a line drawn due north until it strikes the boundary line of Hudson's Bay, including all the territory to the westward and south- ward of the said line, to the utmost extent of the country commonly called or known by the name of Canada." We find several documents in which that language occurs at that period, and I refer to it for two reasons. I submit, my Lords, in the first place, it shews what the Province of Quebec was understood to include and meant to include. The Lord Chancellor. — Where is Lake Temiscaming ? Lord Aberdare. — It is due south of the easternmost point of James' Bay. The Lord Chancellor.— That description would include the greater part if not the whole of Canada, west of the dividing line. It will not help you as to the western boundary. Mr. Mow AT. — I am referring to it here for the purpose of calling attention to the territory the Crown intended to be included in the Province of Quebec : " Including all the territory to the westward and southward of the said line to the utmost extent of the country commonly called or known by the name of Canada." The Lord Chancellor. — That n^eans the whole of Canada, west of the lin" of division, whatever " Canada " means. The particular boundary divides Upper from Lower Canada, does it not ? Mr. MowAT. — Yes, my Lord. We have the same expression in the Order in Council afterwards made. I desire to prove to your Lordships that the territory that I want to include was part of Canada, au ' that being part of Canada, this expression shews it was to be included in Upper CaniiJ... 'I'hen this paper was the subject of correspondence also between the officials in this country, after the passing of the Act. Your Lordships will find that at page 397 there is a letter of the R?ght Honourable Henry Duiidas to the Lord President of the Council.f In the second paragraph, your Lordships will see this language : * PaPEU PKKSENTEl) TO I'AUI.IAMKNT I'BBVIOUS TO THE PASSING OF THE AcT OF 1791, CONTAINING THE proposed dksuiuption ok the llne ok division hetween the provinces of ltpper and lowek Canada. [The following is tlie Copy of the Paper ill question, as turiiibheil by the Public Record Office, Loudon, and set out in official ilocunieiits.J To cotnineiico at a stone bimndary on the north bank of the Lake St. Francis, at the cove west of Point au Baudot, in the limit between the Townsliip of Lancaster and the Seigneurie of New Lonfjueuil, runnine along the said limit in tlie direction of north thirty-four degrees west, to tlie westernmost angle of the said Seigneurie of New Longuenil, thence along the north-western lioimdary of the Seigneurie of VaudreuiL running north twenty-five degrees east, until it strikes tlie Ottawas' River, to ascend the said river, into the Lake Tomiscanning, and from tlie head of the said lake by a line drawn due north until it strikes the boun- dary line of Hudson's Bay, including all the territory to the westward and soutliward of the said line to tlie utmost extent of the country commonly called or known by the name of Canada. ■I-Thb Right Honourable Henry Dondas to the Lord President. {Being the letter referred to in the Imperial Orders in Council of i4th Augxist, 1791.) Whitehall, 17th August, 1791. Mt Lord,— An Act having pasaed in the last session of Parliamont, entitled "An Act to repeilj certain parts of an Act passe* in the fourteenth year of His Majesty's Rei^n, intituled ' An Act for making more effectual provision for the Government of the Province of_ Ciuebao in North America,^ and to lualie | further provision foi Uie government (if the said Froviaco," and it bcins provided by the iSth acKiioii vi i the said Aoi, that by reason of the distance of the said Provinces from this country, and of the change ti) I be made by this Act in the government thereof, it may be necessary that there should be some interv«ll of time between the notification of this Act to the said provinces respectively, and the day of lUI commencement within the said provinces respectively, it shall and may be lawful for Hia Majesty, wittij 46 JOUNDARY FORMATION AND LIMITS OF THE PROVINCE OF UPPER CANADA. Loudon, and set out io «f ,h. IJaaTI I*""" ^l^'^^'P herewith, by His Majesty's command, a printed copv of the said Act, together with a copy of a Paper presented to Parliamen prev ou^ to JhJ passing of the said Act describing the linn*^ proposed to be drawT for separtin^ Jhe Province of Upper Canada and Province of Lower Canada " separating the Srad^wrJrndu'f ^^^ ^"' "^ '^^^ ^^^ ^^""^ -P--- - ^° -hat Upper Mr' Mow.T^° V^'''''°";w V' ^" ^*r^^' -««t of a certain line. Mr. MOWAT— Yes; so that I must shew your Lordships what Canada did' entitled to all of Canada west of that line. After the Act of 1791, and the previous Act and the mterpretation which was put upon it by the Imperkl Gov.^rnment J think I am entitled to use what I find here-the description as to whaT the S: Th^ A':t"nm-rdttr "'f^ i!^« ^^-- ^' QueUc\\'dTndUed unaer uie Act ot 1/74 ; and it it does not shew that and if it is not fair in »<.a if "i tar There?, notM "'-'V.' '? ™ '"'^f'" *a"hV„V.rw.rd" lUh° u W oe incmaed. J here is nothing in the language that would prevent us from nlarina on It that construction^ So that if Quebecr previous to t^iis yfar 179^ d dTot already embrace al of Canada, west of that line, the Orders Tn Council and other documents referred to-the Orders in Coundl particukrlv-opera ed to day of the commencement of the S Acf w th7n H?5 «„n ^^overnment there, to fix and d.^clare the .:.all not be later than the 3l8t December 1791 ""* provmces respectivly, provided such day togetVeTwr rc'o'^y ^.fl^prp^r'SiteS ?o%Sm^:f, ^'"^'"'^'«^'.'' printed copy of the said Act. describing the line proposed to b^dr^awn for Heparat.W^^^ to the passing of the said Act,' Lower Canada ; and I am to de«iro tharyour fflship will be nC.H ^?.^ ^T' ^^'"'^% *"'*, P'""""* of m Council, for His Royal consideration with r™t to tT,efiv?n^„.HV,'*y the same before His Majesty meat of the said Act, L well as the bo"u„"dari::T the°said provinces restotrvfly!"' '^'^ " '''' <="»"•-=« I have, etc., [Enclosure in the preceding letter. ] ""'"'"'' ^'''"das. To mmm.no.. of t u J '^^^ proposed line of division. Pointed; rdTin''^: c^%^zA''LVtsZ::f t-Li^^rnK: !'•• ^"''"^''' f^'^ t« -<•* °f running alongthe said limit, in the direction of no?th^thirt^fou^^^^^ fc>eigneune of New Longueuil, said Seignenrie of New Longueuil, thenceXnVthe norfV L„w Nvestermost aitgle of the ronniiijtr north twenty-five Wees eaT unt^l VHtrik^'«^'>.»^>^^^^^ boundary of the Seigneurie of vludreuil. Lake fomisoanning, and froL^ the head of he sa d7ake bv ritn^'drl' '" T""^ 'iT «*''?,"^«'- '"'» '»>^ t^°Py furnished by the Privy Council Office, London.! At tlie court at St. James's, the 24th of August, 1791. Present : The Kino's Most Excellent Majesty. Lord Chamberlain, i t „-j r» Lord Frederick Campbell. m/ o f ' t. . Lord Grenville. Mr. Secretary Dundas, -J^^^^'^^^J^^^Z^^ ^rK:the 17th of this instant. fourteenth year of His Majesty's rZn,entteJ «*n Act fop Zttl '""° ^ST'l "^ "" Act passed in the .rnment of the Province of^ Qu^ebec fn C^^A^ne^lcan/d ^o'^lll'a'kf fuThtrlToVTsLrfS ^^l^nTu 47 ^w'^;f'-j'^Sjy«-^^ !il AUOUMENT OF ATTOItNBY-CJENERAL OF ONTARIO re QUESTION OB' UOOTDARY: Lord Aberdare. — Is this contested by anybody ? Mr. Mow AT. — Yes ; for if this is correct, then the due north line from the confluence of the Ohio and the Mississippi is put out of the question, and that fact makes the great difficulty here, because it is on the west side of the awarded territory that the land is most valuable. That on the north side is not valuable now, but will be some day. It is not a very fertile country, but still is a country that may be inhabited. Lord Aberdare. — What I meant was this. They would of course accept that all that was west of that line was Upper Canada. Then the question comes, what is Canada? Mr. Mow AT. — I shall have to shew that. ^ The Lord Chancellor. — All that can be inferred from this is, that there is a line fixed between Upper and Lower Canada to the east, about which there is no dispute. It can also be inferred that the northern boundary was the Hudson's Bay territory, but where exactly the western boundary of Canada is, there is nothing whatever to help you. Mr. MowAT. — The expression there is that Quebec includes all that is " commonly called or known by the name of Canada." I do not think there is any room for doubt, with all the proofs we have here, that all north of the prescribed of the said Province ' ; and also copy of a Paper presented to Parliament previous to the passing of tlic said Act, describing the line proposed to be drawn for dividing the Province of Quebec into two separat, provinces, agreeable to Your Majesty's royal intention, signified by Message to both Houses of Parliament to be called the Province of LTpper Canada and the Province of Lower Canada, and stating, that by section 48 of the said Act, it is provided, that by reason of the distance of the said Provinces from this country, and of the change to be rarfde by the saM Act in the government thereof, it may be necessary that there should be some interval of time between the notification of the said Act to the said Provinces respectively, and the day of its commencement within the said Provinces respectively, and that it should be lawful for Your Majeaty, with the advice of your Privy Council, to fix and declare, or to authorize the Governor or Lieutenant-Governor of the Province of Quebec, or the person administering thegovernmHnt there to fix and declare the day of the commencement of the said Act withm the said Provinces respectively, provided that such day shall not be later than the 31st of December, 1791 : " The Lords of the Committee, in obedience to Your Majesty's said Order of Reference, this day took the said letter into their consideration, together with the Act of Parliament therein referred to, and likewise copy of the said Paper describing the line proposed to be drawn for separating the Province of Upper Canada and the Province of Lower Canada ; and their Lordships do thereupon agree humblj to report u their opinion to Your Majesty, that it may be advisable for Your Majesty, by your Order in Council, to divide the Province of Quebec into two distinct provinces, by separating the Province of Upper Canada and the Province of Lower Canada, according to the said line of division described in the said Pajier copy of which is hereunto annexed : . . , , , . j • . , , ^r i.;r • ^ " And the Lords of the Committee are further of opinion that it may be advisable for Your Majesty, by warrant under your Royal Sign Manual, to authorize the Governor or Lieutenant-Gavernor of the Province of Quebec, or the person administering the government there, to fix and declare such day for the commencement of the said before-mentioned Act within the said two Provinces of Upper and Lower | Canada respectively, as the said Governor or Lieutenant-Governor of the Province of Quebec, or the person administering the government there, shall judge most advisable, provided that such day shall not be lat(!r than the 31st day of December in the present year, 1791 : ^i. ,. i - ^i. t , " ' Tke Proposed Line of Division to commence at a stone boundary on the north bank of the Lake St. Francis, at th« cove west of Pointe au Bodet, in the limit between the Township of Lancaster and the Seigneurie of New Longueuil, running along the said limit in the direction of north thirty-four degree< west to the westermost angle of the said Seigneurie of New Longueuil, thence, along the north-western boundary of the Seigneurie of Vaudreuil, running north twenty-five degrees east, until it strikes the I Ottewas River, to ascend the said river into the Lake Tomiscanning, and from the head of the said lake I by a line drawn due north until it strikes the boundary line of Hudson's Bay, including all the territory P to the westward and southward of the said line to the utmost extent of the country commonly called oil known by the name of Canada.'" ., ,. . • , u ^ I His Majesty this day took the said report into His royal consideration, and apviroving of what ill therein proposed, is pleased, by and with the advice of His Privy Council, to order, as it is hereby ordered, I that the Province of Quebec be divided into two distinct proTinces, to be called the Province of UPP«'| Canada and the Province of Lower Canada, by separating the iftid two provinces according to the foUowl ingline of division, viz. : . . , -r , r,. -r, ■ ^ ^i. . il "To commence at a stone boundary on the north bank of the Lake St. Francis, at the cove west oil Pointe au Bodet. in the limit lietween the Tf^wnship of Lancaster and the Seifirneurie of New Lonl ffueuil, running along the said limit, in the .Jirection of north thirty-f«ur degrees west, to the westermoHI Mglo of the said Seigneurie of New Longueuil, thence alon^ the north-western boundary of the Seigneunil oi Vaudreuii, ruuniiig north tweui> *. id river into the Lake Tomiscanning, ve the passin^r „f the provmces agreeable to Your Majesty's i oval hitenHoV, .ril'fi .^,"'L^ '''"''°'=^ "^ ^^u^bec into two separate to be called the Province of Uwer Ca3i, an!) th^'p^ •'^^'^ ''y.^''"«^»« *" both Houses of Parliament secuon 48 of the said Act, it is pSed tW bv rp«l °y?r !i ^^"^ Canada, and stating Sbv .».l„, „„, rf Hi, M.i,M,',Scip iX7j Sr„? "'** ?,',' "W" HonourablSn™ V"-;.™, or th. |K.«„ ad.ni,iiMm,;» U„ „,«■,, "...i"."." i- .';i™,'™««l-'i'>.v»mor of i|„ P,„vinc, of ■;" -- "ji isaoie, lor 1,,^ oconinenccment. Within tiiB ior.V.^i.^^;. "',i 'tr ""' 4;''^'-'^.'^ -^".^n Juy ,ia i!,«y shaji mdne AIMJUMENT OF ATT0RNEY-(4ENERAL OF ONTARIO re t^UESTION OK BOUNDARY : Lord Aherdare. — You have the Lake of the Woods* eoiLstantly luentioiiwl, but you decline to confine yourself to that. Mr. Mowat. — Since the award i.s not to be recognized, I want to go I'lirther if I can. ' SirRoBEiiT C.iLMKR. — Yoii will be HatisfteJ with that:' Mr. Mow AT. — If I also get the north boundary which the arbitrators gave us. Sir Barnes Peacock. — It is only the western boundary that is now before us ? further provision for the (iovermnent of the said Province," provided that suoh day, «o to be fixed and declared for the conimencemont of the said Act, within the said two provinccts resiiectively, shall not be later than the thirty-first day of Deo(Miibnr, one thousand seven hundred and ninety -one. Stkph. Cottrkll. Proclamation ok 18th Novkmhkii, 1701, FixiNd a dav kor the commknckment ok thk Act ok that YKAR within Uri'KR AND LoWKR CANADA KESPKt'TIVKLY. Aluhbi) Clahkk: Gbokok THE Third, by the Grace of (iod, of (Jreat Britain, Franco and Ireland, King, Defendeidf the Faith, and so forth. To all our lovinjf subjects whom these presents may concern, greeting : Whereas we have thought fit, by and with the advice of our Privy Council, by our Orde.- in Coimcil, dated in the month t>f August last, to order that om- Province of *2aebec should be divided into two distinct provinces, to be called the Province of Upper Canada and the Province of Lower Caniida, by separating the said two provinces according to the following lino of division, viz. : — ''To commence at » stone boundary on the north bank of the Lake St. Francis, at the cove west of Pointe au Bodet, in the limit between the Township of Lancaster and the Seigneurie of New Longueuil, running along said limit in the direction of nortli thirty-four degrees west to the westernmost angle of the said Seigneurio of New Longueuil, thence along the north-western boundary of the Seigneurieof Vaudrouil, running north twenty- five degrees east until it strikos the Ottawas River, to ascend the said river into the Lake Tomiscaiining, and from the head of the said laka by a line drawn due north until it strikes the boundary line of Hudson's Bay, including all the territory to the westward and southward of the said line to the utmost extent of the country commonly called (ir known by the name of Canada." And whereas by an Act passed in the last session of Parliament, intituled, "An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's reign, intituled. ' An Act for makine more effectu.al proviaion f :)r the government of the Province of t^uebec, in North America,' and to make further provision for the gov- ernment of the said Province," it is provided that by reason of the distance of the said provinces from (Ireat Britain, and the i;hange to be made by the said Act in the government thereof, it may be necessary that there should bu .some interval of time between the notification of the said Act to the said piovinces re8i)ectively, and the day of its commencement within the said provinces respectively ; and that it should be lawful for us, with the advice of our Privy Council, to fix and declare, or to authorize the Governor or Liemenant-Governor of our Province of Quebec, or the person adminisijring the Government there, to fix and'declare the day of the commencement of the said Act within the said provinces respectively, provided that such day shall not be later than the thirty-first day of December, one thousand seven hun- dred and ninety-one. And whereas, in pursuance of the said Act, we have thought fit by another Order in Council, bearing date the twenty-fourth day of August last, to authorize our Governor, or, in his absence, our Lieutenant-Governor, or the person administering the Government of our said Province of Quebec, to fix and declare such day as he should judgt most advisable for the commencement of the said Act within the Province of Upper Canada and the P 'vlnce of Lower Canada respectively, and to that effect have, by our w.irriint to our right trusty and well-beloved - and 18 now a portion of (Jntario It iVnnf o *^ Company's territory, boundary, amUhereforo,thouc-hnart of H?^rL,™! °°T <""'<'Vt om western not to be decided now ° "^ " "«""''""■ SOes beyond that, that has it e.tel:'"'''""^-* '"'™''°" - ^ *« "■-'-•■. I»und«ry !, how far north Sir t"rc, °'b -wSTo!' ™ ;1 "'S'""" ">» *'"-P»8 Lake, between the two Province, . whether Zrrb„ ? determine is the l,„u„dar)r between tbe two Province.' ' Th!tZuZ^LZ^\'" ,"""■," '» "■» boundary dmw the WMtern line. That irwharwrh.v..f r'^- "'''''''' '' M««'»arv to tetween the two Provinee/of Ontt Ind Znlf"™'"'' *' "-"■"^-y «- .errit„;y diptTi'^d™^,;^ J,;r£rba''tlt'i:a5frr"\^'^ ?» want to ca vonr Lurdshin^' „tl,.nH, „ . It' i .. ' ' '""= '" ""ake out. I milen from tife Bay ,o £ t ' , " Tt K '""'■ ,"'■" o'' »"'"»' «'« i'' 700 Hudson', ,i,y Co,„illny\ tnt^ly:™ ."own^L'SUllt""""''' ""^ "'"' '"' B^ .npaay.s chart er iftoTfo „n'd at p^e's*!"-'" """ """■ ''"« «'■*-•» •T„. Eov.,, i:„„„.„ ,Kc„,ro«A";;;r,„rHu,;s«~. B«TS»,,„, 2.,, M„,"i5j — r, „ [Extracts.] Oharlkh the Second, by the Grace of (Jr.H K-,-„„ t v , , of the Faith, etc' ^ '"' '""^^ <^' ^-^d, King of England, Scotland, Prance, and Ireland, Defender To all to whom these presents shall come, greeting • A ington Anthony Lord Ashley, Sir John Ro'i„Hon and Si,?T '. Tv'**'" ^f^ "^ ^■•«^«n, H^nry Lort ir ffi^-^n!^ ssr^^iii^;.!:^^ ^!r^^^^^"^^B^^%^^'^. '^-£^^ John Kirke, Francis MilliM-^fA^^iv;?,:?!' .•Mgreatco,standchargeVnndertaTenkn^"iJdTt'i,',n^^^^^ '- « "•- ^uuuu,,, nave at their for the discovery of a new passage into the South s" an^i f. r"^h l^'^'^' *"*' ""'"'-^''^t part of America d other con.sidpralil^ nn,..,„„^:*,„„ ....j , "," f.''' an" 'or the hnding some trade for fnra m/no^ii.' UBS have olroorl,, — J •", "iinerais, - very c a.u] other consii^rable -comm;d7tre;:::nd V«.ch\Mr' r^^^^^^ as to encom;age them to proceed further in pursuance "'IJ^^?-^"'?!, h^ve already made such IiWeriM '""t',I .w;r.:7„!?f>,'^^^r',^r '« V-"™ kh^dom'"^ ^"'^ "^^■«"' ^^^ — -hereof Emky -i>.n the the entrance of the traits c— nf;r^S'^ft„:j-t''^^.a^.|e^the^^ 51 ' ARGUMENT OF ATTOUXEY-(}ENEUAI. OF ONTARIO re QUESTION OF BOUNDARY Your LordshipH know that the validity of that charter has been very often questioned, but it haH never been adjudicated upon. The Loud Chancellor. — I think on this occassion you can have nothini;; to do with any question as to its validity. Mr. MovvAT. — I will assume it is valid, and that the only (juestion is, how far it extends. The object of tho chiirtor was trade. The grant of the lands appears, fro::. t,l'. i loo of the instruiiien,t to have been merely incident to the intended ,)|,.ji.ji..n . ;f tho Company in the way of trade. It provides however for towns and v;llii^.;os, and colonies, and so on, on the lands that were granted to them. The language of tho grant is very large ; it is to be found at page ^44 : " And to the eiid the .said Governor and Company of Adventurers of England trading into Hudson's Bay may be encouraged to undertake and ell'ectually to prosecute the said de.sign " — that is searching for the north-we.'^t pHSsage — " of our more espeiial grace, certun knowledge and mere motion, we have given, gr.tnted and confirmed, and l)y these presents, fov um, our In irs and successors, do give, grant and confirm, unto the sulci Goveinor and Company, and their successors, the sole trade and commerce of all the seas, straits, bays, rivers, lakes, creeks, and sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits commonly called Hudson's Straits " — countries and territories upon tlie coaHta and confines of the mm, straits, bays, lakes, rivers, creeks, and sounds aforesaid, which are not now actually possessed by any of our subjects, or by the subjects of any other Christian Prince or State. ' * * * * ,■,,,,. -iirj. And to the end the said Governor and Company of Adventurers of Lngland trading into Hudson s Bay may be encouraged to undertake and effectually to prosecute the said design, of our more especial grace, certain knowledge and mere motion, wk h.wk given, granted and confirmed, and by these presents, for ua, our h irs and successors, do give, grant and confirm, unto the said Governor and Company, and their succe.s9ors, the sole trade and commerce of all the seas, straits, bays, rivers, lakes, creeks and sounds, in whatsoever latitude they shall be, that lie withih tlie entrance of the straits commonly called Hudson « Straits, together with all the lands and territories upon tlie countries, co.-vsts, and confines of the seas, bays, lakes, rivers, creeks and sounds aforesaid, that are not already actually possessed by or granted to, any of our subjects, or possessed by the subjects of any other Christian Vrince or State, with the fishing of all sorts of fish, whales, sturgeons and all other royal fishes, in the seas, bays, inlets and rivers within the premises, and tlie fish therein taken, together with the royalty of the sea upon the coasts within the limits aforesaid, and all mines royal, as well discovered ni not discovered, of gold, silver, gems and precioui^ stones, to be found or discovered within the territories, limits and places aforesaid, and that the said land be from henceforth reckoned and reputed as one of our plantations or colonies in America, called "Rupert's Land." , . , , i. j i-,. i And furthtr we do, by these presents, for us, our heirs and successors, make, create, and constitute the said Governor and Company for the time being, and their successors, tho true and absolute lords and proiirietors of the same territory, limits and places, and of all other the premises, saving always the faith, allegi.ance and sovereign dominion due to us, our heirs and successors, for the same, to HAVK, Hor,r, possess and enjov the said territory, limits and places, and all and singular other the premises hereby granted as aforesaid, with their .and every of their rights, members, jurisdictions, prerogatives, royalties and aiipurtonances whatsoever, to them the said Governor and Company, and their successors for ever, TO BB HOi.DEN of us, our heirs and successors, as of our ni.anor of East (ireenwich, in our county of Kent, in free and common aoccage, iind not in capite or by Knight's service, viKLDlNd and I'AYINO yearly to us, our | heir* .and successors, for the same, two elks .and two black beavers, whensoever .and as often as we, our heirs and successors, shall happen to enter into the said countries, territorieb and regions hereby granted. ^ ******* * And furthermore, of our ample and abundant grace, certain knowledge and mere motion, WK llAVt granted, and by these ijresents, for us, our heirs and successors, do grant unto the said Governor and i Company, and their successors, tliat they and their successors, and their factors, servants and agents, for them nnil on their behalf, and not otherwi.se, shall for ever hereafter have, use and enjoy, not only the whole, entire, and oiilv trade ,aud tr.atfic, and the wliiil(>, entire, and cnly liberty, use and privilege "i| trading and tratticking to and fnnn the territory, limits and pl.aces aforesaid, but also the whole and eiitir-r trade and tr.atfic to and from all havens, bays, creeks, rivers, lakes and seas, into which tliey shall find entrance or piissacre by water or land out of the territories, limits and places aforesaid ; and to and with | all the natives and people inhabiting, or wiiich shall inliabit witiiin the territories, limits and jilacea afcir.' said ; and to and with all other nations inhabiting any the coasts adj.acent to the said territories, iiiiiit< and places which are not already pos.sessed as aforesaid, or whereof the sole liberty or privilege of trad^ and traffic is not granted to anv other of our sulijects. * And moreover, our will and pleaxure is, and by these presents, for us, our heirs and successors, we H" GIVK and grant unto the said (iovernor and Company, and their successors, * * * that it sh.iU and may be lawful to and for the said Governor and Company, and their successors, fr.om time to time, anil at all times from henceforth, to erect and build such castles, fortifications, forts, garrisons, colonies ur plantations, towns or villages, in any iiarts or places within the limits and bounds granted before in tliesf presents untr the said Governor and Company, as they in their discretion think fit and requisite. * lii WiLueo.s whereof wc have caused thc^c our Letters tti be made rateiit. Witness oursalf at Winchester, the 2nd day of May, in the two-andtwentieth year of our reign. By Writ of Privy Seid. Pkjott. 52 So far t recogniz follows; "To of the sea possessed Christian with the LOR Mr. The " An plantation Mr.; "Am create and successors, places, am dominion i enjoy the hereby gra prerogativ Company, and .so on. The described Lord The J Mr. iA about this possession in the pow grant. E' the constr grantees t( which are case of a d territory o I required,— The I tional ques what is to j commission Mr. M The L I question. Lord . I hunters ; w Mr. M( I of the Bay. Iconsiderabh I accrued to t Ipany never BOUNDARY : been viTy often EXTENT OF THE HUDSON'S BAY COMPANY'S TERRITORIAL GRANT. with the right of fishing, and so on. Lord Aberdare.— And the right of mines Mr. MowAT. — Yes. The Lord Chancellor. — "And that the said land be from henceforth reckoned and reputed as one of on,, plantations or colonies in America, called ' Rupert's Land.' " Mr. MowAT.— Yes and then it goes on : successors the true and absolute lords and proprietors ^of the same Territr? ifmfts and places, and of all other the premises, saving always the fl^thZtl^' a ^^ dominion due to us, our heirs and succe8so1-8.forTheLmeV& '"'"'''^2 and 80 on. That is the grant. The Lord Chancellor.— Yes. Mr. lAfowAT.-Your Lordships know that a great man\ charters were issued t::s^^'^:i'll:'\ ^r^'^'^r^-^'^" newly^lisc^^tXanVrtt' fn ?)?! . u^u ;, ^^ ^^"""^ ""^^ unknown, and the charters are very laree which are recognized in international law as sufficient fo° that purpoTe ?n S I w^nf .i'^f''".^"' ^"*^ ^« If material for our present purpose ? We want to know |huntJ;r^wlrwenTir^''",'fV^^' "occupation" would be occupation of the M ' M ^^""^ taking beavers and elks. I of tbf li ^OWAT.-But the Company did not do that-they did not leave the shores \^^::zj.:^!^^^:i^$%ty:^' -^ -'of doubtnLf^n'r: accued to them mc "'" ' "'""' '^' "^''^ ^" ^'■*'^^ ^" ^'^'^ '"^'^'•'^'• pany uevr-r did that common with other British subjects, the Hudson's Bay Com- 53 ■ i ! :MM:-A J ARQUMKNT OF ATTORNEV-OENERAI. Ob' ONTAKIO tV (irESTION OK BOUNDARY Lord Aherdare.— They did m 'j occupy all at once. Mr. MowAT. — They occupied no part of it. They erected what were called forts, that i.s, trading po.sts, made Hufficiontly strong to resist attacks by the Indians of Hudson's Bay. They had a few such posts on Hudson's Bay, and they traded only with those Indians who came there. They did not go into the country at all. The Lord Chancellor. — But your proposition is that the words of the Act, which speaks of " territory granted to the Merchants Adventurers of England trading to Hudson's Bay," really relate to nothing except a few forts upon the Hudson's Bay — is that it ^ What is the subject which these words, according to the ordinary principles of construction, are intended to describe ? Mr. MowAT. — What I say is, that undor these words no interest passed Which did not belong to the Crown. The L(3U» Ceian(^ei,lor,— But the words are, from the conflux of the Mississippi and ^^er:^^r':::^SX^::^:!,^:i r "^ of everything which had not it material whether it wafd nutTrv 1^^^^^^^ European countries, is Is that question materiirhS ^ "'' "^ ^"''^"^*' ""' '^">' ^^^'' "^^^O" ? Lord An.mnA«E.— It was dispute.! by France ./ ,. , T, '' i ^nfjlish Govornrnent, and not "cedod" ^hPMrWwT +T.»* il** »nv .; ci" 2 .in Jto ' K" ^f ?h ^■'"' "''"", "''T *" ""J' 'liJ ""' "'"oh *.. TlH .>..4„„lc"S™\E'creXi" '" ■"'™'-"'8"*a„a„yHu„g There are several consi.lf rations which' I thint wo^..»„* • ^u territorv inVuob"c Hut i tt To '%-Tr- "^ "''^'^'^^'y ^^^'' "'^^^^ing ««ch territorVthafth^vha LLo,H«tT v *^"'" ^'"^"^ ^^"^^^ ^'^'^" them a larger S.■ant^veI■t. such th t t „i-Tf f ' ! T"" rT'^" °^"^f the terms of the win. 1. was c"le 1 to Etlanf in ms v"' f'^ "^'^.^ ^"-'r^^^^ ^« *^-"-' ^"^ En.lan.l throu..h I'LcSh t Prri f/ ' ^^ Tf"'!' -'H' *^^*^^' ^" ^^ich came to h>?n On,^hSY\ \"'"^«—'^'^''* territory would certainly not have been excluded i:;^:^^^ ' • ' e^:^,^^,^f^^r ^ --'^ "^^ ^^^« ap^sx^ Hudson's Bay Comnanv but thl.! ' ''^ *'''r '^*' government under the th. Hudson' BarSpanfum^^^ Z "" "'""T ^''' f"!^^"^'"^^ *^^"tory which and therefore [ sav thTLrwoll % ?ru^^"''' '^'^^ "" jurisdiction over; ouned by the Hudson's Bav Ton n«n " ^ -f '"°'*''"?^ ^' '"<^^"'"g ^^^ritory ti'-.- titll; teriftoy whic^was tCr *^';"*«^7 *" ^^'"ch they had perfected within the cessioi^?terSvmadeTnW^«"^^ ^'^'''^r ^'^"^'^ "«^ ««™« was ceded by France trEniTwh r ^^ by France to England. Whatever to it arose fmm that cession' was' no to' bT ''"' T. '"'? "-P""^*'"" '^^"^ '^' ^^^^ excluded under those^3s'ft;',rt?il tw%3t^TQu:;:7 "''^' "^^ ^^ '« oecupltin^^riTnlMc^vr1• r^r-^^h^^^^^^^^^^ -^ -*-"7 BavLu;pany^ras■:;ordofo^FrenXlt'^^^^^^^ ^^«"P^*^«"' ^-^ ^^« ^udson^s applicable t^iT^a^ses'TsZ^ni^^ ^''""^^•^" "."occupied, and by the laws by any nation. S d scovfier fs entit^e^^^^^^^ of makinc^his title crood b, oPnnLf i " * moderate time for the purpose Bay Commny werf not -the^bl I'" """^ '" ""' ^"^ ^'^ '^'' "^^'^ ^he Hudson's Manitoba ^now comprise The nT ""■' Z "''T''' ""^ ^'^•^^ ^'^''^^ory which penetrated this teZoTwhillils Z^S^I^^^^^^^i^.^^^^ '^^ 55 ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUKSTION OF BOUNDARY : V '■' into the country, erected forts and posts, and in this way, and by its traders and trading conipanios, had as effectual an occupation as the c"-c"""f «°S^« P';'^^ Lord Aheruare.— Up to what time do you go on to say the Hudson s ±Jay ''"^r ST^TtT-er penetrated until long after 1774^ What took place was this :- After the cession of 1733 the French abandoned the country, ft had been ceded to England. The French posts were under the com- mand of French officers generally, and the- gave up those P'^f «' «o™« ^f them when they wore demanded, and others they abandoned without a demand. Their Canadian engac,is, however, with many French and Canadian gentlemen of good family, remained behind in the settlement that had been formed, and continued, in a certain degree to prosecute the fur -^^e^ fhen the English people from Canada and the other Provinces went into this territory, and' began tra.iing with the Indians, and re-established ««»« f ^^ French forts, builf others, and occupied the territory even in a fuller way ta^^^ French themselves had done ; and it was not until the eftcct ot a 1 this was very much felt by the Hudson's Bay ^^"n^'^^y. f^at chey en tered mto th^^^^^^^^^ at all, or sent any of their servants or employees into it. The ^f^/^^h traders began to form companies, and there was also trading by in^'ividuals; but ult»nately they wore all united into a company called the NortlvWes Company whose operations were very extensive. Then the Hudson's Bay Company followed these, and after a time began to erect posts where this company had erected the u Thincrs wont on without any serious quarrelling between the two companies, until the E°irl of Selkirk took ai interest in the Hudson's Bay Conipany, somewhere in the early part of this century. The disturbances then bef me formidab e But not until the latter part of the laso century, and untd after all these acts after the cession to England, after England becsinie the proprietor ot the territory-through France, and not through the Hudson s Bay Companj at all-did the Hudson's Bay Company go into the interior. They have ad- mitted that We have got proofs from themselves that they had ne^el ™one into the territory ft aS, but had made use of their posts a bug the Bay for the purpose o, traetore the cession,_and Bii sh subjects, English an.l French, after the cession, went into he te^'ritory, settkd there, established themselves there in various ways, and traded with the Indians ^^''' There were two purposes to be served by the charter. One was the pui- pose of trading, and the other was the purpo.se of forming ^'^ttleuients^ \N ha I submit is, that the Hudson's Bay Company never made use "« .^he chai er t the purpose of settlement at all. Thoy d-. no appear to have so d a single oo of hind or pretended to sell it, or pretended to occupy it tor the purpose colonization or settlement, from 1670, when_ their charter was f ^"^ed u til a large arant was made by the Company, in 1811, to the Earl of Selkak, nearly LV' vears after this charter was made. n„fa,.;.^ ? Tf is Noxv, my Lords, what is it that is contended for as against Ontauo ? U i contended that under the words of this charter the whole " ^^ territoj washed by the rivers that fall into Hudson's Bay been ne the property ot the companv— consisting of about one and a half million square miles ; that they wt e n? [leYto k" ep ont"of it everybody else; that the effect of t.^je charter v.^ entitle them to keep it in the condition in which it tlien was,_ ^^.'^^^^^^^ ^^^th^^^^^ at all The company did not want it settled ; it was not their interest to ha\. n ettled. iV^TZ blaming them for this ; they had a right to pursue their own interests in the way best htte.l to promote them, but tlie fact is that it was agaimt 56 )UN»AHY : EXTENT OK THE HUDSON'S BAY COMPANY'S TEURITORIAL GRANT. heir interest to have the comitiy settled, and they made no attempt, nor pretended to make any attempt, to settle it until differences arose .,uite recently-durincr the present century, feo that for 1 50 years they had made no use of their charter for he purpose of settlement, anrl did not possess themselves of any of- these lands. '' This long course of proceeding on their part is sufficient, I submit, under the authorities, to shew that this land did not belong to them, and that this land is Lit to be treated now as belonging to them. The Lord Chancellor.— Surely that does not bear upon the question. The question we have to consider here is what is the meaning of the boundary of Canada, as dehned by the Acts of Parliament and the Treaty of 1783 Mr. MowAT^-What I submit is, that when the Act of Parliament says that the boundary of Quebec is to extend to the territory granted to the Hudson's Bay Company that means effectually granted to the Hudson's Bay Company- erritory which the charter, under the circumstances, had the effect of vesting in the Hudson s Bay Company. I cannot conceive that any other way of constr Jing the statute is possible. It is not what loose general words mav haVe been used- more vague than are to be found in any other charter-but what the effect of ho.se words ,s. Was the grant effectunl ? Did the interest pass .' What is the erntory the title to which passed under the charter ? All these considerations b ar upon t le point. Under this charter, no territory pas,sed except what the company chose to appropriate and accjuire the sovereignty of for the nation. There has been no case that I have been able to discover-I have heard of no 2lT'!i ' . ^"^^ "^ ^^'^ "^'^ ^^''""*^*'''' ^'^ *^ff'^«*^ '•'^'^ «iven beyond territory which he grantees themselves aciuired by those means. It was never considered InSd'whitVT '"■"'"■^' ".'"r^^^ '" ^'^^'"' ''"'' '-'^'^ orterrkrefwe'e J?rll f tl\e company did not appropriate and make their own in that % ,^? *^,V t''«'" ^ts being considered that those charters granted any territory 'en M ^wn, ] ^ T f ''* ,^"'"^1^^ ^° ^^''" ^^'""S tlat, notwithstanding the geneial words contained m them, they were not to be con,sidered as really con- \eymg anything beyond what the companies wouhl appropriate in the way required by international law for the purpose of cnvi.u. a title ^ in^.- luTvT il'^f '"^'/r ''' T''^ ""^ r. !'i^trument granting, the necessary mean- n^ nus be, effectually granting ; and if I can make out that this charter did not . tttcuially grant certain territory, I make out all that is necessary for the purpose grinled"^ ''''"'"'^^ the Hudson's Bay Company to wluaU..s eSiSy Sir MONTAGUE SMITH.-It exp.es.sly excludes territories occupied by any t wh-^t oxtn;\^l"T'~!"'rT"^ ^"^"'^'^ • '^"*^ ^'"'' >'^" ^''y '"eans of .shewing to w ii.it extent tiie l^rench did occupy ? ^ l^.^^°'f^^''''"''■rf^~'^''' ^'"t""'' '■'^"'^tantly .. ecu pied : y.^uwill .see that if you look at this map \fhe Ontario houmlary rmrp of JS.SJ,] ^ ixais that Ruperts Land was the known denomination of a large district in .Noitn America— the same denomination as wc have in the Hudson'.s May cluxrter. Mr. MOWAT.- iut are we to be bnund by this map '. It is a map prepared at the instance ot the Company, to shew the territories clainie.l by then as uupert s ivaiid.* "^ the r'"]^.''? Chancelloh.-I do not .say that I look upon this map as provi«- tW^solu te boundary, but it does seem legit imate to refer to it as against tie 57 ARGUMENT OF ATTORNEY (iENKRAL 01-' ONTARIO TP QUKSTION OF HOUNDAUY extraordina,ry idea you are suggesting, tliat we should limit what is described in the boundary words by considering what might or might not have been the legal rights of the Hudson's Bay Company if they had been contested. Mr. MowAT. — But your Lordship will find a great many more maps which treat the territory which is now Manitoba, as being Canada. You will find per- haps ten maps describing it in that way for one in which it is called Rupert's Land. The Lord Chancellor. — If we have any map of any antiquity, [ do not see why we should not look at it. I do not say now what decision we might come to upon it, but for you to contend that Rupert's Land means nothing at all is most extraordinary. Ml'. MowAT. — I do not contend that, but I say Rupert's Land does not come •Iowa to this region. The Lord Chancellor. — If you can make that out, well and good, but your general proposition that we can use only maps which shew something which wa.s actually settled and in colonization by the Hudson's Bay Company is absurd almost on the face of it. Mr. MowAT. — Probably that may be stating the case too stiongly. What I meant to put was that the Hudson's Bay territory did not come down to that now in dispute between Ontario and Manitoba. The Lord Chancellor.— That is another proposition. Mr. Mowat. — Then, my Lords, I think it will be convenient if your I^jrdships will allow me to shew your Lordships what the evidence is as to this matter. These old charters are always governed, I apprehend, by the consideration of what was done under them. The charters referring to the newly discovered America particularly recpiire a construction of that kind, but I understand that that is the general rule in regard to all the old grants — that what was possessed under them is extremely material in determining vvhat they are to be considered as covering. Now I wish to shew your Lordships what the Hudson's Bay Company pos- sessed under this charter, and then your Lordships will consider how far they had the effect of entitling the other side to say that the land and territories in ques- tion were eft'ectually granted or not under those words. I think your Lordships, on consideration, will say that no territory will be excluded from Quebec as lielonging to the Hudson's Bay Company, or included in their charter, if the Hud- son's Bay C/oiiipany had not so acted as to entitle themselves to that territory and to govern it ; otherwise Parliament would be leaving that territory without any government, and it is perfectly certain that they did not intend to do that. The IjORD Chanckllor. — But if it was inhabited only by savages ? Mr. Mowat. — It was inhabited by French colonists. It would be conven- ient if your Lonlships would allow me, first to shew what the Hudson's Bay Company did, and then what the French were in possession of. Upcm this point there is a i^reat deal of evidence, but the result of it all is to make the point very clear— ,so clear that I think your Lord.ships will assume it in the remainder of the discussion. There are proofs of all kinds. There are proofs from the English standpoint, there are pi'oofs in French documents, and there are proofs also to be found in the documents of the old Province of Canada, and of the Dominion of Canada itself. In the first place, take the Hudson's Bay Company's own statement of their title, in 17C0, after the Treaty of Ryswick. Your Lordships will find it at page ;5G0, of the Joint Appendix : " It was then, otter the happy re.storaticn of King Charl'^a the Second, that trada and curamerce began to revive, and in particular that noblemen and other public-spiiited 58 HOUNDAUY EXTENT OF THE HUDSON'S HAY COMPANY'S TERKI-OBIAL GBANT. oes not come Englishmen, not unmindful of the discovery and right of the crown nf Fn„U«^ t *i. parts m America designed at their own cha'rge. to adventure the es^bisHntof^^^^^^^ Z TnT^'l ; ' */ Hudson's Bay. and to settle forts and factories whereW to iS the Indian nations, (who live like savages many hundred leagues up the couSrv) doin to their factories for a constant and yearly intercourse of trade whX was ne^er a tempted by such settlements, and to reside in that inhospitaWe iortry before Z aforesaid English adventurers undertook the same." »oie country, betore the to M'tbiZo'lt:^;;^^^^^^^^^^^^ ;r,l':;;^-™--*-- ^-- Captam Mlddleton *,.».]»" f^r^.fr""^'^ considered your proposition of laying open the Hudson's Bav trade and settling the country higher up. upon those great rivts which run into the bav^ and though I may agree with you in the great advantage the public woiw receive from J!S * ^ ' V ^""i """"^"^ '° '^> ^""^ a'-e called bv us wood-runners (or coureur utot lli *^'" *;^^'- l^.y reaRon of waterfalls, during that little summer they eniov v^entuiig noneoTl:"'"" the company have in the bay. not five are c^^ablTo? our p" opfe have been "ovr"""'' , '^ ^'l '\^^' '" '^^^^'"''^ ""'^ ^^'^"^^ '^^^- Many of Sir Montague SMiTH.-But after all, what is this ? manckr frTT/Rrf'V^''"^' f a statennent by Middleton, who was " a Com- ixunsuas imy <^ompany tor many voyages Mr. MowAT.— Ifc is an historical statement. in wWoh ^h?HSou's B« v^"'^''' ^'"^1 '^'^ '' T' '" ^'^P-'^^' '^^' ^^e manner n IV fiV.. • . /i ? X -^ Cumpany acted under their grant was to send hunters he^nafrv!; /,^' •"*'""''■ ^^"^^^'^^^ ^^''^^^^ communiclttions and relations with .nnn k''!''^ ''*''"'" '''■**^" ^•^''^^ "^ P««itions which they fouiv' conven7en Le^P tL 1 '• '° 'r?; ^'" ^""^" '^^''' i'^ "«t likely to be brought into S Mr Mowat'"^^^ * r r"t'^* ^I ^^^' ^ ^^'^ "«* understand. ^ «hip sagfeSr '^'^ "'* ''"^- '"^'^ "^'" ^'^^ ^"*^"«'- i" the way your Lord- in thi ierro?noT'""'~'''' ^"^' P'"" ''^^^^^ ^'^^"^^^ — -^t, whether Mr. Mowav.— Yes U IS perfectly clear, I submit, that li was not intei ,led to aiv^. fn fl>. ^mntees any power of interfering with other natic ./. ' Is nrLtled by^this charter to grant them any territory which would intrLe with other The Loud CHANCELr.oR.—What w.a.H »,! roa= ttl-.-l i.s uxpres.sly excluded. ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY: Mr. MowAT. — Am I limited to that view of the matter, that it was only what was then possessed by any European nations ? The Lord Chancellor. — As far as the construction of the charter is con- cerned, you certainly are. You are at liberty to say if afterwards any European nations settled and acquired certain territory, and it was recognized. The charter might not stand in the way of that. That is another matter. Mr. MowAT. — Could it be said of any instrument that it granted what it did not effectually grant ? The Lord Chancellor. — What is an effectual grant ? Mr. MowAT. — A grant so as to convey a title. The Lord Chancellor. — There is nothing about title. It is a grant of land within certain bounds. I think you are travelling into a question which has little relevancy to the matter in hand, namely, whether or not they did those things which were necessary to give them a good title to the whole territory which they claimed. Mr. MowAT. — We have been considering those words as meaning effectually granted. The Lord Chancellor. — They cannot mean that when used as boundary words. That would be raising all sorts of law and fact, which would make them perfectly useless. Mr." Mow AT. — Taking the other view, it is extremely uncertain how far the territorv extended. The Lord Chancellor. — The question of fact, investigate by all means; but we are not assisted, to my thinking, in the investigation of the question of fact by entering into questions of law, and whether they were guilty of default or not in not doing things which would be necessary to complete their title. Mr. Mow AT. — Nothing could be move uncertain than to say that all territory is conveyed upon the confines " of a country. What does that mean ? Does it mean ten miles, fifty miles, or a hundred miles, or what does it mean >. Lord Abeudare. — I suppose in later days the Hudson's Bay Company entered their territory from the south ; first, I suppose they entered it through Hudson's Bay, but afterwards from various parts of Canada. Mr. Mow AT. — Yes. They always entered it from the north at the time of the cession by France ; and for more than half a century afterwards they continued to do so. 1 • 1 1 • 1 Lord Aberdare. — Is there any reason to suppose that that which they in later years occupied as their Hudson's Bay territory, and which extended to the south much farther than you would admit, ought not to be considered as Hudson's Bay territory now for tfie purpose of this argument ? Mr. Mow at. — It was always a matter of dispute, my Lord. After the cession cf 1763, the English people going there from the Province of Canada, and the other provinces, always claimed a right to go there as to ungranted English territory. The claim of the Hudson's Bay Company was never acquiesced in. The reason why, after a time, there was no dispute, was that the Hudson's Bay Company took in, iis partners, all other persons who were engaged in the trade, and after they united their interests there was, for some time, no longer occasion for active dispute in regard to the matter. Lord Abekdare.— Taking your own argument, the land granted by the Hud- son's Bay Company to Lord Selkirk in 1814 comes to the bend of the Red River, south of Manitoba. Mr. Mowat. — At that time they were claiming the whole no doubt. After the North-West Company had occupied the territory as I have already mentioned, the Hudson's Bay Company began to follow ttiern, and in that way 60 BOUNDARY : EXTKNT OF THE HUDSON'S BAV COMPANYS TERRITORIAL GRANT. nted what it a how far the 1«21, the two companies ^ited in foinfl '""^^T^ ^^^^^ Subsequently, in posts which be^Jhad beCged tr^He'^aZly' ^" ^'^ ^"^^^ ^'^^ ^^^^ ^^« n.ade ^^anlVrSI'-^fLrt InKale I'th""''^^'^;^ ^'^^ ?™P->^ --^'^ have of Canada extended to the Lake of tlirWoods " ' " '''"' '""' '' '''' """^^^ Mr. MowAT.-It was in dispute. ■ claiV. il^^hadTrnd':; h h tanr' He oo'f f "\'"' *^ '''^^^^■^^ *° ^^e company -i-^Pfa^:^^ state o. things wa. Jii . MOW AT.-l think I can shew your Lordship it was so Mr. ^Z^'^^^-^^r-l ^-"^ -' -l^^-ed in but disputed, actively. ' '''P"*'^ *'°"' ^^^ "^""^^^t it was known; disputed of Canadaf " ^^^^^^-^^-By whom ^ Was it di.sputed by the Government dian'Lpa"Ji^a,;itad^^^^^^ and by the Cana- ested. And the claim of the Hudson'. R " n^" ^*''^'' ^^'"^^^^ ^^^ "'^t, inter- the Laperial Government thev treated fhT ^"'"P""^ 7"^ "«<^ acquiesced in by Bay Clpany as standing ttl ^^^^,5^;, "^^^ ^^^ the Hudson'! The Loud Chancellor.- Where is that ? "^ Joinrip^S~?hLTS^ i:V^LJr''''f^'V'' P^»« 207 of the Quebec, 17th April 1816 It s on. .f^ "^ V^'Tf ' °^'=^' ^"^ '« ^^^ted at the Ear of SolS's cl .im was ^nvtf • "" T"!^"' "^- '^•^^""^^"ts which shew that Government. Som^o ll em " St'^th^ o ^' ?• *'^^ P'"^^'^ ^^ ''- shew that clearly enough : " ''^'"''' •"" ^he subject, but they all ^'on^^i^:r^::!:^S:'t^^^;::^y:'j:^::'f ;« *>- Administrator in chief, and "jade upon Lis Hfe in tiu, cou^Hf Z^oJZ 7rZu trt'v^ '''' ^"""^^^ '"^^ '^« about to undertako, His Excellenov ]yJ uZ^'Ll ^ u "''/'''" ''°""*''>^ ^^'«h J^e is ship a n.ilita.y ^.^^d for h S ^ersc^L " 'o ^^3- "T ' ^''" ^^^^^ *° g"-^"* ''^^ Lord- 's to ,:on«ist of two sergeant.s'and tweC rank L'"^ ^^^^ ITZ'T'-- Vt P^^*^' "'^'°^' I'ia.ed under your con.mand, and I am •pr?m..Pnli ! Reg»nent De Meuron, is hilntion of His Excellencv the Lieut^ant 2:^3.1 .o ""^- '°. ^7 *^^« 1^°^^^^^'^ P'"- en,ployn,ont of this force for any other X^^rra^^ f-'-«««. against the of Selkirk. You are Partirular v o dered ToTm i ^'''T' protection of the Earl eo,n,„an.l in any dispuLs which I." o7cur b w x trEa'rU?t r' l'' 'Tl'' ""^'^^ ^«- ^"V'/oy's and those of the N.,rth-\Vest Commnv 1 ! .1 "''' ^'''^ ^'^ '"'^''O'"^ ^nd ^vliirh nmy arise out of .uch disputes "^""'P'^^^' ""^ ^« ^^"^^ '^"7 P^^t or share in any affray tionsflU; "tl;,;" ^Jl^S'ZZr;^!^ you womd not omy be disobeying your instruc 61 y AB(JUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDART ; m i : I may also refer your Lordships to the correspondence between the Imperial and Canadian authorities, commencing at p. 142 ot the Ontario Appendix.* The Lord Chancellor. — What we want to know is whether when this arose, and those disputes existed, the Government of Canada alleged that this territory belonged to them ? I can see no trace of that. So far as this has any bearing, it has a bearing the other way. Lord Aberdare. — As I understand, your argument is that these southern territories were only acquired by the Huds(m's Bay Company by the union of the company with the North-West Company, and therefore could have formed no part of the Hudson's Bay territory such as is referred to in the definition of the boundaries of Canada in the Act of 1774. Mr. Mowat.— I do not know that it is quite that. The North-West Company were not entitled to the territory except as Canadians and all other British subjecte were. They were merely claiming the common right of all British subjects as against the exclusive claims made by the Hudson's Bay Company. When afterwards they united with the Hudson's Bay Company, it was their common interest to exclude all except those who had united — all the important traders did unite ultimately. They found it was their common interest to do so. For a time there was no question raised as to jurisdiction or as to territory, the interest of the Canadian and Hudson's Bay companies being alike satisfied ; but by and bye it arose again. That is, it arose when other Canadian traders entered the country, and the Red River settlers desired to he freed from the domination of the united cotnjmnies, and the Government of Canada cast about for new fields to .satisfy the tide of advancing immigration. Sir Robert Collier. — Perhaps it might be convenient to go on with your general argument now. I only suggest that. Mr. Mow AT. — Yes, my Lord. If it is to be assumed to have been made out, (whatever r.nportance may appear j to be attached to it from the authorities that I may present), that the Hudson's Bay Company had not gone beyond the shores of the Bay, and that they had not gone into the iuterior at all, then I need not trouble your Lordships with anything | more upon that point; but I think it should be well understood to be so, whatever the effect of it may be. Lord Aberdare. — Up to 1774 ^ Mr. MowAT. — Yes, up to 1774. Lord Aberdare. —But surely it is a fair argument to say they were in con- 1 tinned occupation of territory after 1774, and that was pretty good evidence of what was originally granted to them by the charter, and understood to be granted to them by the charter. Mr. Mowat. — Anyone might go in in that way after 1774. All Her Majesty's | subjects did go in. Lord >.lit;"^.DARE. — That is no proof they had a right to go in. Mr. MowAT. — Your Lordship is referring to the mere fact of po.ssession anJ | what it might shew. It was not by virtue of the charter the Company went in, They, havixig gone there, in common with others of Her Majesty's subjects, without | interference by anybody, and exerci.sing no more rights than the other s\ibjects of Her Majesty exercised, would not be held — Lord Ahehdahe.— It was the exercise of a right, and a very strong exercise, when, rightly or v/rongly, they granted the large territory to the Earl of Selkirk j in 1814. They were generally presided over by men of high po.sition. • This is a selection of papers reliitiiipr to the Red River hottlement and to the jmiceedings of Lord Sel- kirk to the wmtw«,rd of Lake Superior, 1815-1819, from Parliamentary Papers, Imp. Ho. Corns. 1819, No. 219, ;-.p. 1, ■*.. '.'J. m. ()!. >V>. 7!. 72; Rrf.v.rn, Tjyip Hn. Oi;ms ' "" ' """ """ """ ne 24. 1819. "p. 279. 280. 284. 285. 2>*6. 62 PRIORITY OF THE FRKNCH POSSESSION OF THE NORTH-WEST. 3 on with vour 1 Her Majesty's of internat onal Jaw-that having 'the mouths o? ..rvers t'ey tre ent Jefl'"^^^^^^^^^^^^ banks and to the whole territory they watered entitlett to their occ.^£a^XT^n:^Z^^^^^ '- '''''' "^-'^ -^' '''- ^-^^ were Mr MowAT -That is the claim they made, and there is no other around I know oi on which they pretended they could claim this territoz-j The exn essionJ in the charter might mean anythinL' or nothinrr thev wp,p iv." ^^,"® ^^^f'^ssions but the company latterly endeavoured to g ve"3;Snrss to '^.el tvT ''^- ^ taking that ground ; and of course the watL of thk terri^o, v wp f '^P' *^««'«f ^^ of do flow after running a long distance Into Hu "son stv " "'" 'P'"^"^ ^. (miters, too, are to be taken most strono-ly in favour nf fb^ t "w.,.,« i and against the grantees ; and a construction whi Jh cIL, /tim.„^b r ^'^^% \Miatevei. It was between a century and a centurv anrl « h^UaVi- li '., '""'^ occupation began before the Hudson's Bay cCanv en^itir ^ % "m'^ tenitory. Some of these things were estaWi^heZ eSv and b vli n ' ' " i""'" ago as 1 749. A committee of the Housp of (^Vmnmis w« , ^- 'V^ •^"''l? '" '''"" e.xeu,pted from the license as already constituted into a coZy T it in 8*s' I Mr. MowAT.— I shall be content with whiit has been lw.,...l,Tf t , pay Company itself in some discussions, declared iUi^ Z^^^blelbh^^^^ f" ' Im astronomical line on such large territory It is a vo v o^kHv I" ^^'''' |oo. Alaska is divided from Canada by an a ti^o, X^ i } a ^'f/V"''"^ U t .. Unds of the Americans it was ,Lposed thn^'IHrL'^hout^t sX^d ana ,t uas tmi^nd 1 1: w ouKl co,s.^enormou^u_inJo do it. I„ coi.sequenc? of 63 AUOUMENT OF AITORNEY-OENEUAr- OF ONTAUIO Vf (QUESTION OF HOUNDARY li that a teinpotary arrangement had to be made. It is important we sliould have th" natural boundaiy which the award sives ns, if we can estabiisli to the satis- faction of your L )rdshii)s that we are entitled to that or more. With I'eference to your Lordship's observation about Vancouver's Island, per- haps I oujrht to uienlion that that was not claimed by the Hudson's Bay Com- l)any under their charter, but un,'land trading into Hudson's Bay, and \Villiam M Gilhvray, .if Montreal, in the Province of Lower Canada, escpiire, Simon M'tiiUivray, of Suffolk Lane, in the Cityui .London niprchant, and Edward Ellice, of Si.ring Gardens, in the County of Middlesex, escpiire, have repi-e-iented to us that they have entered into an agreement, on the 2Gth day of March last, for puttiii;,' .w end to the said competition, and carrying on the said trade for 21 years, commencing with the (mttit i" 1821 and ending with the returns of 184 1, to be carried on in tlie name of t!ie said Governor and Oomii:iiiy exclusively ■ And whereas the said Governor and Companv and William M'(iillivray. Simou M lnUiyray, and Edward Ellice, have humbly besought us to make a (ir,ant, and give our Royal Licen.se to them jointly, o: and for the exclusive privilege of trading with the Indians in North America, under the restrictions ami upon the terms and conditions spucificd in the said recited Act : , • , •, i ■ i i Now Ksow Yk, that we, being desirous of enc(mraging the said trade and remedying the evils wliicli | have arisen from the competition which has heretofore existed therein, do grant and give our Hoyiil Liconsr under the hand and seal of (uie of our Principal Secretaries of State, to the said Governor and Company, and William M'Gilli vrav, Simon M'Gillivray, and lOd ward Ellice, for the exclusive privilege of trad.ng with | the In Mans in all such parts of Nortli America to the northward and westward of the lands and territories belon 'in-' to t\\<- United Slates of .Vmerica as shall not form part of any of our provinces in North America, or of invlands.irterritnries belong! tig to tlie said U„it,.dState< (,f .America, or to anv European government, state (u-'powiT • and we do bv thesf' presents give, grant an 1 secure to the said (Governor and Company, Willi un.M'Gillivrav, Si.ii,ei M'Gillivray, and K hvard Ellice, jointly, the sole .and exclusive privilege, for | the full period of -Jl years from the date nf this our Grint, of trading with the Indians in all such parts o! North .\merici as aforesaid (exCHi)t as liereinaft'T excepted). ••.••,,„,, , , j , i Vnd wo do hereby declare that nothing in this our Grant contained shall be deemed or construed to autliorize the siid Governor and Companv, or William M"Gilliv.-ay, Simon M'Gillivray, and Edward LllicP. or any person in their employ, to claim or exercise any trade with the Indians on the north-west coast ul America to the w.wtw.vnl of tlm St ^^ now, by an amalgamation of interests, VreltTaL the North We^^ which Imp. Act 1 and 2 V.ct., cap. 66, and the former license, it proceeds • ^^ompany. After reciting the and for the like exclusive privilege of trading w™h the fndLn« in N^,fh a ^"' License and authority, of upou similar terms and coLition^s to those spedfi^ and referred"to in the s^^^^^ "?« period.'^nd ye, that in oonsideration of the surrender made to us of the said recfted er«ni- In/'r* ' ^°^' ^^^^ encouraging tho said trade, and of preventing as much as possible a reTurrene^nf 'thf ^T^ '^''''''°"« "^ referred to m the said recited grant; as also In consideratio^o tL yerr^rent hLin^f^'^' mentioned or We do hereby grant and give our License, under the hand and seal nf nn/^f „ i? *''®'" ■"e^'Mved to us : State, to the said Governor and Com,,any, and their successors for the «x!l?,l- """ ^".?<=ipal Secretaries of the Indians in all such parts of NortL America to the nofth ward «nH% i"""^® privilege of trr.ding with terrtories belonging toShe United staTesTAmerica I^^TaH not^^^^^^^ '^' 1*»^« "d North America, or of any lands or territories belonging to the said UnXdStatl o/a ""^ P''°^incea in European government, state or power, but subject nevirtheless as herewlr mltf ^ America, or to any these presents give, ^rant .and secure to the said Govwnor and Comnanv anTth^^^ '' ^"? ^« do by exclusive privilege, for the full period of 21 years from the datrof7hi«n,,! '^''°^/'"'''«' *''« ^"^^ and Indians in all such parts of North America as^afore8aiT(except as hereinafter rn"t nnin ""^"^'"S^ ^'"' the But we do herety declare, that nothing in this our grant contained shLn kI h °^^* ' authrrue th.? said Governor and Company, or their successes or any arsons nh'l?'"®'* ,"'' co-'^-'ued to exercise any trade with the Indians on the north-west roast nf An,iSnof ^u'"'''''^ employ, to claim or Mountains, to the prejudice or exclusion of an^ he subjects of any or^'L states ^J^'^»^d »f the Sto.°y of any convention for the t me being between us and such fnr«i "^^^P^^^ively, may be entitled to ,i,.ii" ^r^'i'^^l: nevertheless, and we do hereby declare our pleasure to be that n„f m„ i, • ahall extend or be construed to prevent the establishment by us, Seirfor succesL™ w"^^^ contained aforesaid, or any_of them, of any colony or colonies, provlnc^™viMes oXr^^^^^^ afore.aid territories to any existing colony or colonies to us, in rX of our' Im^ri'Tr"^"''?. P*""' °^ t^e lnrs:rv\^^ceTprvictT°^ ''-' ^--"--' - '" - -y-Tirer'>^!hiX°d3if^^ Governor and Company, and their successors, and the persras aEizedtoLr^r ""^ ?'=??' *he said them, shall trade with tlie Indiana during the period of tKur erant within fhtT^ Z" ^'''''"^"•e trade by that part thereof whi.h shall not be comp^rised^within^Ly'such co'oS oJ S>^nJTfore&^ °' ^'"»'° I Pans. Ca^..^m«' Vo,°^*fi'V^"^«'''"'« ^"y C'""P-y '- the Colonial Secretary, 21st Januarv. ^^ g,,, ' 5(B.) 65 ARGUMENT OF ATTOKNEY-OENERAL OK ONTARIO rc QUESTION OF BOUNDARY ,'Hi Lord Aberdare.— That is enough for me ; that goes far beyond the territory granti^d to Lord Selkirk, Sir Robert Coi-LIER. — It goes further to the west. Lord Aberdare.— Therefore the Colonial Office at that time must have admitted that they had territorial rights in this country. Mr. Mow AT. — But this is a letter from the C ompany to the Colonial Sec- retary. . Lord Aberdare. — To the Colonial Secretary in answer to his letter, m which he suggests that there should be certain surrenders. The Loud Chancellor. — What is of more importance is Mr. Merivale's own letter, to which this is a reply, at page 222, in which he says, in the seventh paragraph : . " It is stated in the report" — the report that is referred to is that of a select com- mittee of the House of Commons—" that the districts likely to be required for early occupa- tion are those on the Red River and Saskatchewan. If that should be the case, the por- tion of territory thus generally indicated should be rendered free for annexation to Canada." Lord Aberdare.— Canada is there being treated as external to this country. The Lord Chancellor. — That is a report of a committee of the House of Commons, hpecially appointed to inquire into this matter, and certainly not in the special interests of the Hudson's Bay Company. Mr. MoWAT. — But, my Lords, would that mean anything more than that that was part of what was claimed by thp Hudson's Bay Company? The Lord Chancellor. — It was certainly not at that time part of Canada. Lord Aberdare. — It is treated as being external to Canada altogether. Mr. MowAT. — It would seem to be treated as being external to Canada; but it is an observation which might be made even if it was understood that it was a part in dispute, but whether in dispute or not that it should be annexed to Canada. There is nothing in the letter incompatible with the view that, upon a determination of the boundaries, these districts might be found to be within the limits of Canada ; and the question of referring the boundary to the Judicial Committee for decision is actually discussed in the letter. Then if your Lordships i take other passages you will find my construction made clear. For instance, take the letter of the Colonial Secretary to the Governor-General, at page 224, with which was transmitted the correspondence between the Colonial Office and the | company already adverted to. We find him stating this: " I do not propose to discuss the question of the validity of the claims of the com pany, in virtue of their charter, over the whole territory known as Rupert's Land. Lord Aberdare. — Over the whole territory? Mr. Mow AT. — Yes: " Her Majesty's Government have come to the conclusion that it would he impossible I for them to institute proceedings with a view to raise this question before a legal tribunal, without departing from those principles of equity by which their conduct ought to be guided. If, therefore, it is to be raised at all, it must be by other parties on their own [ responsibility." Lord Aberdare.— But the very expression "the whole territory" assume? that a very large portion of the territory at any rate was their due. It wouW be very difficult to hold that that was to restrict them to a very small portion indeed — the immediate neighbourhood of their own trading forts. Mr. Mow AT. — At all events, it seems clear, taking the whole of the corres- pondence, that the territorial rights of the company did not go down to what in dispute between Manitoba and ourselves, which is 700 miles from the B£y.| is 66 BOUNDARY (QUESTION OF TITLE OF UPPER CANADA TO THE NOKTH-WEST. d the territory 3 than that that The Lord Chancellor.— It is very important, because the Red River actu- ally Hows through Manitoba into Laico Winnine.', does not it ? Mr. MowAT. — Ves. Lord Auehdarr.— And the .Saskatchewan runs still further west The Lord Chancellor.- Yes. If at that time the Red River territory was not part ot Canadis the inference of law is prima facie thftt Manitoba was not Mr. Mowat.-I think your Lordship will find that looking at the whole of the conespondence- which was not intended on the part of the British (Jovem- mont to admit the right of the Hudson's Bay Company, although sometimes expressions may be found to imply such admission if you look at these expressions alotie— looking at the whole of the correspondence, I think your Lordships will come to a ditierent conclusion. ^ The Lord Chancellor.— Does it not shew that they were not parts of Mr MowAT.-No I do not think that i* does. I think, my Lord, that it is pretty clear— and I think I can satisfy your Lordship of that before I close mv argument— that whatever was not Hudson's Bay territory was Canada The Lord Chancellor -If this part was not occupied by the Company, and therefore not to be deemed Hudson's Bay territory, still it seems pretty clear that even so late as 1858 they were not parts of Canada. Mr. M( AT.— There are expressions which imply that, but there are also other expre.s>ions in the correspondence against that assumption. Lord A herdare.— Expressions which imply it, which were made after the whole controversy had been fully raised, and with the view of procuring the cession of lands not required by the Hudson's Bay Company from England to Unada Iherefore they were expressions made with the whole view of the case tully before them. I think you may use the time between this and to morrow not by fortifying arguments in favour of a possible extension of Canada into these remote regions, but by narrowing the question in some practicable way Mr. Mowat.— If your Lordship pleases. Sir Robert CoLLiER.-It would save a good deal of time, and a good deal of trouble to yourself, if you did that. * I Mr MowAT.-I will read a sentence or two more from that very same despatch from the Colonial Secretary to the Governor-General : I < .v" ^J^^ ''''^rJ^ \Z ^^^ question of boundary, as distinguished from that of the validitv ot the charter Her Majesty s Government are anxious to afford every facility towards it« solution a mode of accomplishing which is indicated in the correspondence, if such should be the deaire of Canada. I And so on. At that time Canada was .claiming all this territory Lord Arerdare.— No, no ; I do not understand Canada as claimin<^ these erritones. The Canadian settlers wished to go into the country, which w°as said be very rich, and from which they were excluded by the Hudson's Bav lompany. I do not understand that they claimed it as a portion of Canada but as a portion of the continent, which it was convenient, and perhaps ri^ht that Uanadian subjects should colonize. r s , "»t Mr. Mowat.— It was claimed on that ground I agree, but it was also claimed on the ground of right at the same time. Both grounds are put forward The tacts with regard to the position of Canada in the matter were shortly these • ™ ^.^"^'^^"^ ^^y Company desired a renewal of its exclusive right of trading'' iheir existing license would expire in about a couple of years, and they wished I to know beforehand whether there was likely to be a renewal of this license which I was over territory which did not belong to them under their charter So that Ihaving an exclusive right to territory which was theirs, and a right of exclusive 67 m ^M ^ ^^^o. IMAGE EVALUATION TEST TARGET (M'-3) A // %^ A /, /M/. 1.0 1.1 11.25 1^ m m u "* u. 2.0 LA. Ill 1.6 6" Hiotogmpnic Sciences Corporation •^ i\ \ A *^. % 'O V , "!.*^ ^.'ovincM then that in the meantime the Chif JustL Ihn ■«« ^^^^ *? ^' determmed, and to England, should see, ' '^''° ^^''"''' *° ^*^« ^een accredited of such communicatiin from Canada Lm.vl settlement, contingent on the opening with the Province. 2^ naUrmediatf^tLfZ^ *° u*"^" *''^''' f>^^»re union ment to prevent the absorptbrortho teSrvweJ ^ ?" i!"«^ ^'' ^^^''^^'' <^°^«™- «n,igration from the United States 3rd IS every fLmtv*..' ^7k "'' ^^ ,^°«"th°rized Canada to explore and survev the tfirrJf^tl I? / ^^""'"^ ^® «^°"''«^1 ^or enabling Mountains." ^ ^ ^^'^^^^^ ''«*^««» I'^ke Superior and the Rocky "The recommendation of the Report was in effect- Isfc Th»t fl, p ■ \ ,., be free to annex to her territory suoh r^r^r^Hf.r.a^f,u^ I ■' . ** *"'' Provmce should be available to her for the purnoses of LZtTf ^l^^l^. I"", ^^' neighborhood as may and maintain oommunicatioT G for whSl ' "^n^ ^'j'f »» '^^^ J« ^he is willing to open tration. The districts oX Red Ri^e/ and thTlE^^^^^ looafadmiSis- referred to—" ^ ''*® Saskatchewan are those particularly Srer^Ly^X-SyTL^" il*l*'" ™" «ftertho„ghe, instead of S.c,..„y of sLe for the OAnia ™ the .uhLrS"""™""" "'"■ "" ''•J'"/' lnorth-Westem Temtorie?' ■' "■""'»8 "P *» "MUement the |.tairte'pV?n'J?Srir:«T„:'EtT'r^^^^^ "■!,"'""'= '-» "-ing, eo„. U.f,,-, ?,. po°tr'of U »Toui*rt^d'e''d'to''o?nada1? rdM*„T f ," "■■' Canada, and then the other eround was that it i^Tki. A "?' ''«'™« to the Hudson's Bay Company hTd no 3ttole.n ft hT '°°'»»"'». «■"! th"* Uh to refer to at page SsYis this * "^ " ''"''• ^'"' P'™^' ''''ich I M°oufXtTp;l,^'„'^rtre\*S^^ i *° H-""""'' «*? Company, I » w„ in^hL rirrhitt7U'xx"/'!st i",'.^''-" -" ™m% •Journals, Le(f. Ass., Can., 1865, p. 48, ' ~ 69 ■ ^^"SSSSiSiSliW ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY ; ht .«' that the whole of the charter and the claim of the Hudson's Bay Company should be set aside, but not on the ground that the territory belonged to Canada. Mr. Mow AT. — Is your Lordship referring to the passage which I read from Mr. Brown's report ! The Lord Chancellor. — Yes, the passage you were just now reading. Mr. MowAT. — Well, my Lord, this language may be general, but the founda- tion of the whole thing, the first step which was taken after the Order in Council of 17th January, 1857, and the appointment of Chief Justice Draper as special agent to guard Canadian interests in connection with the proposed renewal of tlie Company's license, was Mr. Cauchon's report as Commissioner of Crown Lands, and he argued the matter from beginning to end ; and as to the point that the Hudson's Bay Company owned no part of this territory, he takes as strong ground as anybody could take, as your Lordships will find. Lord Aberdare. — But first look at what occurs after that which you just now quoted, which is a statement on behalf of Canada. At page 257, Mr. Card- well sums it up.* It is a communication from the Colonial Secretary to the Oovernor-General. It refers to a conference which took place between your Canadian Ministers, deputed to proceed to England to confer with Her Majesty's Government on the part of Canada, and the Duke of Somerset, Earl De Grey, Mr. Gladstone, and himself, on the part of Her Majesty's Government ; and he says; "On the fourth point, the subject of the North-West Territory, the Canadian Ministers desired that that territory should be made over to Canada, and undertook to negotiate with the Hudson's Bay Company for the determination of their rights, on condition that the indemnity, if any, ishould be paid by a loan to be raised by Canada under the Imperial guarantee. With the sanction of the cabinet, we assented to this proposal." All that does not look as if it was an admission of the rights of Canada. It looks rather like an admission of the rights, qualified perhaps, of the Hudson's Bay Company, under which they were to make over to Canada a country external to Canada. Mr. Mow AT. — But if your Lordship finds at the very start, and as the founda- tion of the whole thing, that the Government of Canada had a report prepared by their Commissioner — which is set forth at page 168,and is a very long document — maintaining the very contrary 1 Lord Aberdare. — Look again at this, the report of the Canadian delegates to England on the same page, 257.^ These delegates, that is to say. Sir John I Macdonald, Sir George Cartier^ Mr. George Brown, and ilr. Gait (I think he was afterwards knighted) say : " The important question of opening up to settlement and cultivation the vast | British territories on the north-west borders of Canada next obtained the attention of the conference." Mr, MowAT. — But then, if you go on to observe towards the foot, it says : " The claim of Canada was asserted to all that portion of Central British America I which can be shewn to have been in the possession of the French at the period of the I cession, in 1763." The Lord Chancellor. — That is another matter quite ; at the present we I have not that before us. It is not even evidence which you can offer on that | subject. If it w^as so in the possession of the French as to be part of the terri- tory admitted to be theirs, and ceded to the Crown after the war, then a strong I argument could be founded. But that is not the ground, and I observe that in this same report of the Canadian delegates the mimite of the Council approved! ' Journals, Leg. Ab8., Can., 1866, p. 13. 70 + Ih, p. 9, OF BOUNDARY: ASSERTION OP TITLE OF UPPER CANADA TO THE NORTH-WEST. by the Governor was referred to, which speaks of the Government of Canada being ready to co-operate with the Imperial Government for the annexation to tSIs thewT.*r'"^'^' territory as might be available for settlement I hat IS the tone ot the correspondence at that time Mr MowAT -Well it is the tone of a portion of it, my Lord, bat simul- taueously With all that there is the claim to ownership. Andls to the eviirce of the French possession and ownership, the Appendices put in before your Lord! ships are largely taken up with it. ^ The Lord CHANCELLOR-Claim to ownership of that which was in the to aluL^w^Itw?^' ' ^°'^ ■ ^""P/ i^ '?^^''^y y^"'" ^^'•'^^^iP that we are entitled to all that was in the possession of the French in 1763 The LoRDCHANCELLOR.-There are Various sorts of possession. If the fnTwLrr''^ '* as part of that territory which was acknowledged to be the rs! i that • buTif r^'^'.^''^ ^^^^' '^? ^ '^^"^ y«"^ ^'S^^'^^ would be strong bvth« rndl !lK *^*^,g°^« '"^.'•^ly as squatters into a territory not occupied ^ \r ^?,™P^"y' that would be quite a different thin<^ ^ Mr. MowAT— The Company's territories, whatever they may have been wore rJnLf';^^^ the charter itself is silent as to their extent; the adverse titbof France to these districts is asserted by Charter, and by actual and sole possession and by reason of contiguity ; the Company did not set foot there untiimo and «ien not by virtue of their charter, but of their right in common with all other oAhe Nor^i't ' rr "' " ™""f '/ \'' '^'y ^«""^ it already in tlTe occupatfon ^i^r ? r Company and of other such sr^ :,cfcs, Canadian and English, bince your Lordships are looking at expressions on one side will vou allow oTth'e &ommit:Tr'" '' 1 f"^ ^' ^'^' \' ''' i^^^^' ^^^^^^ 'hTrtpor" the Committee of Council.* The paragraph commences : . .X. . X.® . P'*°® the committee do not admit that the company have a le»al titlA United StaJ« to th«T ^u'^*T.°^'*"1i Btretching along the northern frontier of the .p.J.'i^t''^'' if it be admitted that the charter of 1670, recognized as it has been by uZgZTTTXTI' ''?"■' "uTP^^y * freehold 'riglf in the soil in Rupert'I Land, Canada contends that the cultivable tract in question forms no part of that land " Does not It carry the company's claim far beyond what you have limited it to ? Even if you take it as excluding the right of the Hudson's Bay Company to the fCf wht'hT T^ '^t ^'^ ^"^-'^ ^i''''''' " ^^•^^^^ their claim farg?eat^er than t*iis which you have been arguing about. needhIvf,?ptVJ'7^*P'^^""/u?"H^'''^, larger extent of territory than I h re wmflf ! S to your Lordships ; but this exception which is referred to cdtivZe por^on- ' '' '"P''*^''' ^'^ ^^ P^^^^"* P^'^P^^^' because the for vnm. nr'"'^''! C0LLiER.--We had better confine ourselves to what is important lor your present purpose I think. ^ Mr. MowAT.— I propose doing so— I will not go beyond that. Lord Aberdare.— The cultivable portion goes to the Red River and the Saskatchewan; and they would both be outside that portion of the country Which was given to Ontario by the arbitrators. ^ country • Order in Oounoil. Canada, dated 22 June, 1866, Sess. Papers, Can., 1867-8 No 71 19. ■PliHPIII ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY : Mr. Mo WAT. — Yes, beyond it.' Your Lordship read the paragraph com- mencing — " Even if it be admitted that the charter of 1670 — " , " ; Lord A.BERDARE. — I think that goes strongly against you. Mr. MowAT.— It meets the suggestion that the claim was admitted, because the contrary is assorted, so far as regards that portion. Lord Aberdare. — No, it only says that they do not admit it to be Hudson's Bay territory, but it does not necessarily admit that it was a portion of Canada ceded in 1763. The Lord Chancellor. — They say of the Hudson's Bay Company that, first of all, they are entitled to nothing, that their whole charter and privileges ought to be swept away, but at all events they say they have not a good title to this territory. Lord Aberdare. — And that it ought to be annexed to Canada and made over to Canada, all which seems to shew that it was not part of Canada. Mr. Mow AT. — The Act of 1774 gave us all the territory bounded on the north by the Hudson's Bay territory. It does not exclude any portion of tlie territory of Great Britain. Lord Aberdare. — That evidently means up to the line of the Lake of the Woods. They do not go beyond the Lake of the Woods. It was unknown to them. We must take the line of the head waters of the Mississippi, and that strengthens your argument very much, in my opinion, in favour of the line which is along the Mississippi and Ohio. Mr. Mow AT. — Yes, I see the force of that, my Lord. {Adjourned to to-morrow^ SECOND DAY. Wednesday, July 16th, 1884. . Mr. Mow AT. — May it please your Lordships, the point which is now before your Lordships is the second question in the Special Case, which is expressed there in these words : " In case the award ia held not to settle the boundary in question, then what, on the evidence, is the true boundary between the said Provinces." The position which the Province of Ontario has taken with reference to the award, shews your Lordshipy that Ontario was satisfied on the whole with the boundaries which the award provided for her. So far as r ards the western boundary, the award assigned as our western boundary, a Lae drawn from the north-west angle of ohe Lake of the Woods northward to English River. That, according to the award, is the boundary between the two provinces. The Lord Chancellor. — Anything further north (which is in a different colour on the map) is outside th^ boundary which the award has given you. Sir Montague Smith. — The part shewn by the diagonal lines. The Lord President. — This red line is the award boundary. Lord Aberdare. — May I ask a question before you go further. Canada con- sists of seven Provinces and I think of four Districts ? Mr. Mow AT. — Yes, my Lord. Lord Aberdare. — And then, besides that, there is a great country not pro- vided for, called the North-West Territories. Mr. Mow AT. — Yes, my Lord ; but that general designation covers also the districts. Lord Aberdare.— By what authority were those districts formed ? 72 OF BOUNDARY paragraph com- dmitted, because RECENT DEALINGS WITH THE NORTH-WEST-FORMATIO N OF MANITOBA. then what, on the Canada con- taited power, whose iJl£i.nTtZTJ::t:'Zi,^i' I^wf '. ".nil convenient to set amrt certain nnrfi'nna «f +1,^ * -1 "'""'*='*• it' wa« i.and which your Lordsh^s hr/e been^l^frmed of "" '" ^^"' '^' """^^^ Mr MOWAT.-By an Order in Council, my Lord ' - ' ' whole of it may be suTored to "e 1a"ed Tt of°t"h?n ■ """'"T' '"<>'''<' *« ""''vf M^ir At"^ ^^r 4- '^ ?■ ox-inio^^n-^iii " -- America Act °'"-"'^»-'" P"''""""' °f " P<>"er given by the BritUh North ^^^^Sir Barnes PEAcocK.-That was done by the British North America Act Miniver 0. JusticllT™ tt^rit™' thTSlZr''"" '^"™'* °' '"^ fir Barnes Peacock.— And not otherwise ? j.eferetet^^-iln^rprlvfncer^'S't^ f"' "" ^T' °"--- "'* [adoption' ^«^«^^«^-A"d carved out four districts, which are awaiting are mSScTsTreirbltla^^ " "'^ "^' \T^' P^«^^"«-- When they Idistricts Thpv ^!! boundaries may or may not be the same as the so-called laistncts. They have now no governor or separate organization as a provTncT ' *33 Vict., cap. 3, (1870). 78 jj^nrf^"^ ARGUMENT OF ATTORNEY-OENERAL OF ONTARIO re QUESTION OF BOUNDARY liii i s Sir Montague Smith.— When you get northward to the English River, then does the award boundary follow that river eastward ? Mr. Mow at.— Yes. What we say is that the awarded territory was always part of our province. I had hoped (there is no harm perhaps in my saying so) that the whole question of the northern boundary might be presented now, but we could not arrange that with the Dominion Government, and it was arranged merely that the western boundary should come before your Lordships. . Sir Robert Collier.— That is the boundary between the two provinces which I suppose" is only the western boundary. ~ | Mr. MowAT. — Our western boundary. Sir Robert Collier.— By the Act of 1881, by which Manitoba was finally constituted, their eastern boundary is your western boundary 'i Mr. MowAT. — That is so. Lord Aberdape. — There is nothing about this limitation to the western boundary in the reference to us : " In case the award is held not to settle the boundary in question, then what on the evidence is the true boundary between the said provinces 1" Mr. Mow AT. — That means of course between Ontario and Manitoba. Sir Robert Collier.— But, as they only come in contact on the western ■ side, it only involves the western boundary of Ontario. Lord Aberdare. — Manitoba would extend northward beyond the limits of the award of the arbitrators. Mr. MowAT. — The Dominion Act has given a territory to Manitoba beyond the awarded westerly boundary. Lord Aberdare. — It has given the piece coloured yellow — the portion north of the portion given by the award. The Lord President. — The portion north of the red line, and of the English River ? Mr. Mow AT. — Yes; it is given to Manitoba conditionally. [The learned counsel explained to their Lordships on the map.] The Loud Chancellor. — If the Dominion has given that part which lies here [pointing on the map] to Manitoba, then the boundary between the two Provinces, supposing this [pointing] belongs to Ontario, must be traced here \j)ointing to that portion of the awarded ivesterly boundary which runs along the English River, etc.] Mr. Mow AT. — At some time. The Lord Chancellor. — But on the face of this present reference, what is there to shew that that part of the boundary is not now to be determiried ? Mr. Mow AT. — If your Lordship takes that view of it, I am quite willing. The Lord Chancellor. — I do not see what limitation there is. j Mr. Mow AT. — I am not anxious that your Lordships should not decide that. All that I am saying this for now is that your Lordships may see what the question really is. I do not say so because I have any objection to the northern boundary— or that portion of our awarded western boundary which follows the water communications— being examined and adjudicated upon as well as the other. The first paragraph of the Special Case- is this: " The Province of Ontario claims that the westerly, boundary of that Province ii either (1) the meridian of the most north-westerly ansrle of the Lake of the Woods, ai described in a certain award made on the 3rd August, 1878, by the Honourable Chief Justice Harrison, Sir Edward Thornton and Sir Francis Hincks, or (2) is a line west of that point." 74 )F BOUNDARY glish River, then SCOPE OF THE ARGUMENT ON BEHALF OP ONTARIO. toba was finally Lord Aberdare.— You are not prepared to limit vour armimnnf t^ *!,. 5« °„f the' LaVe'^f'The w:"/,*' °""'™'°''- '"" "' """"e"- «" "°rt«-™' Mr. MowAT.—If your Lordships were to say that it was one or other of tho«« two Imes I should be prepared to accept the liter °"® to th^L^g^rCe^"™--^^" ^^^"'^ ^^^ ""« ^^- ^^« ^*ke of the Woods up Mr. MowAT— Yes, that is our claim according to the award. 'Mr.r;-!^a?ry7o?h:t\^^^^^^ L'rd^ZErAL^''Tw'^\'J ^^'''r ''7^.^} «^«-« ^'^ be really in dispute ? more ^^^^^^RE.-It is for the counsel to decide. He does claim a great deal «ntui!''' ^^r"^^--! thought I was driven to claim all that just argument would fhniL I-*'' caixn.but if your Lordships say that the question Tsberween those two lines that ruling makes a great difference. ^ ^^"^ consent.' ^^"^ ^H^NCELLOR.-We cannot limit you to that, except by your own would-be aZ2T~^^ ^'"' ''^""^'"' P"^'^""^' '^' "^°^« ^'^"^^^'^ «f Manitoba Mr. MowAT.— Xo, my Lord. Sir Robert Collier.— The principal part of it. Mr. MowAT.- The addition made in 1881 would be abolished. Sir Robert CoLLiER.-The original part also. Act wLh°J.''u~^'' ^^'*"'^^^^ ^"^^"^^ *^^« ^^^ ''he subject of an Imperial Act, which would override our claim if we had any imperial Lord Aberdare.— Up to the limits at that time ? Mr. MowAT.-In respect of the first limits of Manitoba. Mr. MowAT.— Yes, my Lord. Parliament c^umTIJ^J Tm '^ 1 1^'\ *^l* ^^' ^^*^«*1' «'^ ^^^ ^« ^^^ Dominion miiament could add it to Manitoba by the subsequent Act of the Dominion. my a^80ck?If • V^''t ^^l^^ ^'"'^ ^°'^?^^P« ^"°^ "^« * "^i""t« to consult with coLidered „nll ?T ^^f*^,??^?^'" P^^t^^^^ * suggestion to me that I have not rfit^u'^iV^aVal^^^^^^^^ "^^' ^'^"^ - ^« -^«^^- - «^o"^ 75 ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO rC QUESTION OK BOUNDARY Sir RoHEBT Collier.— Very well. You had better make up your mind whether you do that or not. [The learned counsel for Ontario consulted together for a short time.] The Lord Chancellor.— Mr. Attorney-Genera), wliat you have lately said has directed ray attention to the Dominion Act of 1870, which did form the original Province of Manitoba, and which was confirmed as you say by an Imperial Act. Mr. Mow AT. — Yes, my Lord. The Lord Chancellor.— On the face of that, it appears, as distinctly as words can express the thing, that even the small province, the original Manitoba, is carved out of Rupert's Land, and was not part of Canada. Mr. MowAT.— Out of Rupert's Land and the North-Western Territory, my Lord ; besides, what the Dominion chooses to say in its statutes cannot take away the right of a province, or establish the right. The Loud CnANCELLOU.— I do not follow you. What stronger evidence of the fact can there be than two Acta, one of the Dominion, and the other of the Imperial Parliament, that this territory was Rupert's Land and not Canada. I am only speaking of the small Manitoba. Mr. MowAT. — By the Dominion Act* it is enacted that this province shall be formed out of " Rupert's Land and the North-Western Territory," not out of " Rupert's Land " alone. Rupert's Land was claimed by the company under their charter, but to the North-Western Territory the company made no pretence of claim whatever. The one and the other had been transferred by Her Majesty to the Dominion without specification of the boundaries of either. Moreover, the Act shews that whatever the southerly limit of Rupert's Land may be, it did not extend as far southward as the international boundary, for the Act declares that tiie parallel of 49 " forms a portion of the boundary line between the United States of America and the said North-Western Territory "—not between the United States and Rupert's Land. The Imperial Actf confirms, in terms, the Dominion Act, but does not use the name Rupert's Land in that connection. The Lord Chancellor. — Plainly on the very face of it, it shews that in the view of the legislature which passed that statute, it was previously territory forming part of the Union or Dominion of Canada, but not included in any Province thereof. The Lord President. — The Dominion Act, section 35, goes on : " With respect to such portion of Rupert's Land and the North-Western Territory as is not included in the Province of Manitoba." The Lord Chancellor. — Surely to argue against that Act, confirmed by an Imperial Act, is a bold undertaking. • Dominion Act, 33 Vict., cap. 3, sec. 1, (1870). 1 On from and after the day ui)on which the Queen, by and with the advice and consent of Her Maioity's'Most Honourable Privy Council, under th9 authority of the 146th section of the " British North America Act, 1867," shall, by Order in Council in that behalf, admit Rupert's Land and the North-Western Territory into the Union or Dominion of Canada, there shall be formed out of the same a Province, which shall be one of the Provinces of the Dominion of Canada, and which shall be called the Province of Mani- toba, and be bounded as follows : that is to say, commencing at the point where the meridian of ninety-six dajtrees west longitude from Greenwich intersects the parallel of forty-nine degrees north latitude ; thenc* due west along the said parallel of forty-nine degrees north latitude (which forms a iiortion of the boundary line between the United States of America and the said North-Western Territory) to the meridian of ninety- nine degrees of west longitude ; thence due north along the said meridian of ninety-nine degrees west longitude to the intersection of the same with the parallel of fifty degrees and thirty minutes north lati- tude • thence due east along the said parallel of fifty degrees and thirty minutes north latitude to its inter- section with the before-mentioned meridian of ninety-six degrees west longitude ; thence due south ainng the said meridian of ninety-six degrees west longitude to the place of beginning. t For the Imperial Act, see ante, p. 22, note. 76 K BOUNDARY : I up your mind 0»T*a.o BE««,™ ™ C.A.M TO THE UN. O, TH. «»«„,„ .„™„,™, confirmed by an Ur, "wpr^L~lTl^lctal',r.l,?J -r "'"rf ;°™ "PO" th-t to your place ..L the Donli'rA^! whlTSil^Thi.^;''' "P" P'^T' '" ">» 8"' mentioned, I submit that if (L m..I t i . , '""'ory in the way I hav. having the ImperW Acr.fterwardT tW ^ '^ "r °" ,H"" ."atute^ without the province. '^^ "terwards, the Dominion Act could not have affected thefLta we^^he"™'™-"''""""'^''^ " «">"'"» "-« >«» l-"™ W„ i£ Mr. MowAT^-That ia it, my Lord. no long:r'':7it'^S »rr™.7'"" '■™« °'""*'™^ "^ - I°>P«ri»' ^ct, you c«. conan,^he°2roUhe DomiL^n't't." ""'• """ "" '"^ ""P»-' A"' Oo-^o Provil"°'Sl";^'„l''t'^^aMrt^ndt^'r' ''•' ™"°'"- Th. the .jueatTon ,,:™^ted to ;ru"r "" """' "^ '"^ '°'°'°«°» »'"■ '"f™- to boundariM.°Turr,hiu57i°d"';hai iTLTJ T t"' ""''"' "'* ">" »™ «« much as poasible ? I been granted to thTHad^n'^^s Bay Com™„v i ^^ "'i'"*',?'" t>e considered to have *ralle „ to include"trrito^^w'irh7^irmt„"btt« ^ni'^P '=' ?° ""; merely, if Ihere is a difference between what i^n'^'^'fSP^'P"''*^^ *« g"^"* actually grants. between what it purports to grant and w^at it actualYy^^ast which had pointed out the reason why that mu^st have been Jheobieo^Tn ^?""P*"^' f^ I use too strong an expression when I say "must have been " but?' "l. Tu^ reason which makes it almost certain, if notquite certlin f^'ho V ^'i'*"^' *'^« m view. The Hudson's Bay Company had power^^^^^^^ ^T t!"' "^J«'°* necessary, therefore, whatever territorie^s 'TreTnXdef in^Z?rT« / \^ ^"^ ^?^ any government for them because thnf w!V^^!? i j X , *®^' *''P''o^'ide I What Parliament was dobg ^sTrovid nH 1? ""'^H ^^ *^' '^^^^^^^ i<«elf. no government before-fS Te Trr torrwCrr'^'S^^^ Pf ^^^^^^ ^^"«h had which had been ceded in irerwhthtLr lad be'e'I;''-'' belonged to France. law and under a French Governor and whTch now nTl T^^^^^A ""fer French .nent under English law and Iran EnglTshGoverir^^^ ITTV"' ^T^"' ships would hold that it was intenXd In Ipnv? ? f °.* *!""'' y^"'' ^^ord- Au^erica, north of the noutWly" nf ftm tt Iv^ '/ ^"*''^ ^°^'^ -f course it was, that whaiver'teTr^r^^ frKo;t-sl:^Tor^^^^^^^^^^^ ARGUMENT OF ATrORNEY-OENEBAL OF ONTARIO TC QUESTION OF BOUNDARY : ;i \ {: l^'l I ! ! > ! It! should be governed, namely, by the company, so also it was reasonable, right and necessary that the rest of the territory should be governed. I submit therefore that that single consideration, if there was reasonable doubt about the point, shews that the words ought to be construed as "effectually granted;" that they ought to be construed as meaning the territory b'^longing to the Hudson's Bay Company, the lands which they had the power of uisposing of, and in which they had the jurisdiction to govern, and legislate, and so on, in accordance with the terms of the charter. . i ■ i Then, what territory of the Hudsons Bay Company stood in that position? The charter, I have said, is extremely vague and indefinite, and what I submit is, that upon the reasonableness of the thing, upon the prius- tice with regard to all similar charters of that period, and upon principles appli- cable also to other cases— in construing this charter for the present purpose, in determining what ought to be considered as having been effectually granted to the Hudson's Bay Company, we are to look at what was done under it, and at what land was appropriated under it, by the Hudson's Bay Company, and that the charter cannot be said to have granted any more than was so appropriated, There is a difficulty in saying exactly what was appropriated; a difficulty in point of law. There is no difficulty with regard to the facts. There is no diffi- culty in ascertaining how much territory the company actually occupied, or how much terrioc.y they exorcised control over as proprietors, but then how much additional territory that might give is a matter of more or less difficulty. I may mention one or two things here in connection with other charters of the same period and founded upon the same principle. The Lord Chancellor.—! do not see how that can have any bearmg on the question which we have to determine. I cannot conceive how other charters not relating to this territory can have any bearing on the question which we have to determine. , „ , , , , , , , Mr. Mow AT. — I do not mean that the words of the other charters would have any bearing, but would not the view that was taken of those other charters, so far as they are analogous to this one, be material ? The Lord Chancellor.— If you shew that upon any bounding words of description, like those we have to deal with, applicable to other charters, a par- ticular construction has been put, I do not say that may not be in point. If you prove that a particular territory being said to be bounded by lands granted to a certain company, has been held to be not applicable to the lands de facto granted so as to introduce an inquiry as to how far it was a valid grant or not, perhaps it may have some bearing upon the case. If you merely want to shew that in a question as to the validity of a charter something may have depended upon what was done under it, I think that has nothing to do with the present question. Mr. MowAT. — I am not arguing as to the validity of the charter. I am assuming that it was perfectly valid, and merely inquiring how far it extended, and how much it can be said to have included. The Lord Chancellor. — That is a question of parcels upon the construction of the charter. . t , . , . . . , Mr. MowAT.— Yes, my Lord, it is ; but it seems, my Lord, to be matenaJ here to know what the parcels were that can be considered to have passed under the The Lord Chancellor. — But how you can shew that by^ shewing that the parcels were under another charter I do not know. " »r_ -Kx^Twrii^ T TOill nnf iirorft fViis nftint further acrainat vour Lordshios impression ; but it seems to me important that if we find charters as strongly expressed as this, and perhaps more strongly expressed than this, with regard to 80 OF BOUNDARY : EXTENT OF THE HUUSON'.S BAY COMPANY'S 'lEKRITOHIAL GRANT. )on the construction )y shewing that the he te.ritoues to be embraced in them, for instance definitely naming the particii- ar latitudes and perhaps naming, the particular points between which the S- tory granted lay-if ,t was found that charters so expressed relatinrto th« undiscovered parts of America, have been always treated as if th^^„ereI; Z'"Li;. 1 ' "''""*'?' "W^' "^^"^^ ""^ ^^« *«^"W' unconditila%\e?wS ho.e lat.tudas or points, but so much of that territJvy only as they acquired the sovere.gnty of tor England, from whom the charters einanated I thS that Zt'' ""'' '' '•'' '°^^ '" ''''' ^^^" '^^' I -^«»-\ e have no jurisdiction about taking the census. Under the British North America Act, the provision is made that amongst the exclusive powers of the Dominion is the power of taking the census. Sir' B.\RNES Peacock.— But have your judicial officers ever exercised juris- diction for this part of the territory before the surrender by the Hudson's Bay Company ?* Mr. Mow*T. — Yes, I can shew that. Lord Aberdare. — There was a decision of a criminal case, I think, by them ! Sir IJOBERT Collier. — We shall come to that. We are now on whether it was French territory in lVo3. That is the present question. Mr. Mowat. there is u great deal of historical matter bearing upon that. I will not trouble your Lordships with more than a portion of it, but sufficient, I think, for th. present purpose. ., ,• , Perhaps I had better first refer to what Governor Carleton says on the subject, in one of his despatches, dated at Quebec, 2nd March, 1768. It is at page 609, my Lords, of the Joint Appendix. T will read a little from that de.spatcli, commencing at the beginning. Your Lordships will observe that it is addressed to the Earl of Shelburne : " I have received your Lordship's letter of the 14th November, and one since, wrote from the oifice by your directions, dated the 8th of October last. " The drawing hereto annexed is taken from diiferent maps and the best memoirs and relations I have hitherto been able to procure. 'Tis intended chiefly to shew the western posts which the French formerly occupied, and how far they extend beyond Michilimakinae. 82 all- OF BOUNDARY: y including that — THE FRENCH POSSESSION-GOVERNOR CARLETON's ACCOUNT. bory ceded to Eng- nves ; it is not to or Ontario in this md one since, wrote Lord Aberdare.— Where is Michilimakinac » H,„,,f.„dSMSr;!;°'*'"'' """ ''- ■' "■'"=«^ "" "- -p. fc»'«» Lake wMeK„/srL;^:'Lt;ifd^kfMiCr ^°*" ^ Mr, MowAT.— The despatch proceeds- ' ...„gh ,„ put either the fert or iSS e^S'of'^rr^t 1"^ X""""' '°'""""°" He writes therefore of two French forts there, on the Saskatchewan ■ of t.eir t„de and th:Tr,VrLs ^r«f;";rrh\:!;:ZeVtrf=:„-:i:j'-' . Jn sancpi r^^p^r^^^^^^^^^ .ho le„„3 the Unl !'' r.. " °"'°'""' "' " ""P"- ''°« °» «'"» di'orotion ot their officers |this gen;ral rule/' ^ ' ^ Intendant's, were the only ones excepted from nSuor inirnl ^''f 'y^r"**^" '" ^"^^^"-' ^^^t^ *he Indians if they brouaht Pen h vt a the^Ki^:; -^' "^TT ^1"""-' ^^^« '^^^ ^^^^^^^ ^hat advantage! i peenis that at the King s posts the advantage was permitted : ^ d.encelt;hrd'Yaf"ilbtrt^ ''"°" "t; ^"^.'° *•" ^^^-^^ «'■ *>- ^''«*-t- f-- liuntin^ Jrounds thpl ,> ^- ^n T""^,*^" ^"'*"'"'' ^"^ accornpanv them to their fchF '»r^'»=. °"^ --S 'sr-hieJ'a^dVrre ' ss .r te;-;::riKiiTF" "^T^TLirrut^L-'xtLron-rcrt:: ■ ■ S3 m v8a# ArtGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY : ^ "Yoiu Lordship will be pleased to observe that the great inlets to the north-east, ^rom the Missisipi, are by the Ohio, and from thence up the Ouabach, which leads towards the sources of the River Miamis and Like Erie ; by the Illinois, that loads to Fort St, Joseph and Lake Michigan ; and the Ouisconcing, that leads to Fox River and Bay des Puans ; besides ♦hese, the different streams that run into the Missisipi carry them towards Lake Superior and the western lakes." Then what follows in the next paragraph has reference to the places on the east bank of the Mississippi, which I suppose your Lordships would think was clear, and perhaps it is not worth while troubling your Lordships with that.* The Lord Chancellor. — The only observation which occurs to me on that next passage is, that the French or Spaniards were there, but I suppose nobody contends that the Spaniards had any territorial dominion there. It plainly says that the settlements or posts spoken of are not necessarily such as to imply the assumption of territorial dominion. But as to the meaning of this description, you were referring to this document apparently to shew that the French extended their territorial acquisitions so as to include Pascoyat on the Saskatchewan. Mr. MowAT. — Yes, my Lord. The Lord Chancellor. — Then all I point out is that the contents shew that settlements or posts of a kind not involving territorial dominion are apparently in contemplation. The Lord President. — There is a reference to the King's territory at the bottom of the page. The Lord Chancellor. — That is of course important as distinguishing the King's territory — which probably woVild be Canada — from all these outlying places. Lord Aberdare. — It seems to contemplate a connection between what is called generally Louisiana and this district, rather than a connection between Canada and this distriit. Mr. MoWAT. — I shall trouble your Lordships with a short selection only from the voluminous evidence about the settlement of the French there, and about Canada extending to the Mississippi. Lord Aberdare. — If you are not going to insist on this part of it, I suppose I you might pass very lightly indeed over it. Mr. MowAT. — It was merely with the single purpo.se which I have spoken I of already, to shew that the territory which may be excef)ted from our claim ought at all events to b'^ considered as not extending so far as to exclude us from | the points which the arbitrators thought we were entitled to. * The two paragraphii of tlip rt('^patoh next Huct.epding tlie pan-vgraph hore referred to are as follows; " I shall easily find in the troops here many officers and men very ready to undertake to explore any | part of this continent, who require no farther encouragement than to he told such service will be accept- able to the King, and if jirop rly executed will recommend them to his favour; hut as they are imac quainted with the country, the Indian languages and manners, 'tis necessary to join with them some I Canadians to serve as guides and interpreters. The gentlemen here are mostly poor, and have families; in order to induce tliem to attach themselves thoroughly to the King's interests, 'tis necessary they | should he assured of their being taken into his service for life, and in case they perish on these expedition!, that thi'ir widows will enjoy their pay, to Hui)port and educate their children. "Should his majesty think proiier to allow the traders to go up to the western lakes, as formerly, 1 1 think a party migiit winter in one of these posts, set out early in the spring for the Pacific Ocean, find oiil I a good port, t.ake its latitude, longitude, and describe it so accurately as to enable our ships from the East I Indies to find it out with ease, and then return the year following. Your Lordship will readily perceive [ the advantage of such discoveries, and how ditficult attempts to explore unknown parts must prove to the I English, unless we avail ourselves of the knowledge of the Canadians, who are well acquainted with th( I country, the language and manners of the natives. * * * . * * I Appended to the despatch is the return therein referred to, headed, "List of the Upper Posts under I the French tiovernment, of the Garrisons thereat posted, and of the number of Canoes usually sent upeverr I year." Among the enuriierated posts^are Detroit and dependencies, Missiliniakinac and dependenclei | La Biiye and dependencies, liiinoiG, Tcmi:;carainguc, Chagouamigon, Nipigon, Oamanastigouia, alichip; ' coton, and Mer du Quest. The last of these— the Post of the Western Sea -comprised the country extend ing from the western watershed of Lake Superior to the Rocky Mountains, and from the Missouri to th( I porthern watershed of the Saskatchewan ; with numerous forts established therein. »4 OF BOUNDARY: THE FRENCH POSSESSION-OOVERNOR POWNALL's ACCOUNT. ;'s territory at the )art of it, I suppose The Lord OHANCKi,LOR._This certainly shews that in 1768 according to th. .^^^:r^SZ:r^''^ "' *'■«' '^ -proof wh.tev„ of th. Mr. MowAT.-The whok must be taken together. m.teri.1 "" CB*No.,.u,R._YeB; if you have other instances, that ™ay be Aewfng fhl'nS^ta torth-wJstTrri.l'rt'tr''''^' '"V" " r P^' °' ""''"'"•" U only necessary to confirm in substance what I will read o your Wstts I mL r m » T^ ^-^ ''^''^ "^ ^^^«^"«'- P^^'^^". which ^you wTll find at fvou Lordshi;"^''-""' f "l''* '''' ^^^"^'^^ ^^'^ - thHerXv andl |..pJt«\rrfl~ St™' "'•'"''" '° '""''' """"""" - "'»«e P»t. endeavoured iFmipl, w., ■ """*.0"» Bay Company during tlie nterval. The fact is the «rrwh,ch th.°v°'hri'';fl'''"''' O"""?""""' «™A-- ".ore and more, rfthe terri! 1.. p.»ttLrT;Lce"f.r™' t„T'';h'° """' "'™"""'" '» "'»• P"™. e„de.vo«red 85 Mimberlaii.1, 175«. ill 'If ARGUMENT OF ATTORNKY-OENERAL OK ONTARIO re QUESTION OV BOUNDARY: W.n > : 'i' with these natives. While the French kept themselves thus allied with the Indians AS hunters, and communicated with them in, and strictly maintained all the laws and •rights of sporting, the Indians did easily and readily admit them to a local landed possession, a grant which, rightly acquired and applied, they are always ready to make, as none of the rights or interests of their nation are hurt by it ; while on the contrary they experience and receive great use, benefits and profits from the commerce which the Europeans therein establish with them." Let me note there another piece of evidence to shew the course of proceed- ing followed by the French m order to acquire, and whereby I submit they did acquire, the sovereignty v^r this country — no one else being in possession of it. What they did was this : after conciliating the Indians they obtained from them grants of a local landed possession. There was no other way by which they could proceed to acquire sovereignty. The Lord Chancellor. — The context rather shews the contrary, because it says that the French possession interfered not with the rights of the Indians. And then he had said just before that the Indians were in the habit of making grants of this sort : " A grant which, rightly acquii id and applied, they " that is the Indians " are always ready to make, as none of the rights or interests of their nation are hurt by it." Lord AuERDARE. — As long as they were lessees with the full power of hunt- ing, they did not care where the right to the ^erritory rested. Mr. MowAT. — That is quite so, and thf y were willing to grant any rights (beyond that power of hunting) which the Tjuropean nations desired from time to time. It is the cumulative force oi these things which makes the point clear, that this territory had become French territory, and was what was ceded to Eng- land in 1763. Now, my Lord, if you will allow me, on page 602, I will read a little more on this point. Sir Montague Smith. — What is the meaning of this : " No Canadian is suffered to trade with the Indians but by license from the Govern- ment 1 " Mr. Mow AT. — " But by license." That is the very point. " No Canadian is suffered to trade with the Indians but by license from the Govern- ment, and under such regulations as that license ordains." I think that is in my favour as shewing that all this was done under government action. I mean, it was not the volunteer action of those who went in there to trade, but they were all acting under the Government, and by the authority of the Government : " The main police of which is this ; The government divides the Indian countries into so many hunts, according as they are divided by the Indians themselves. To these several hunts there are licenses respectively adapted, with regulations respecting the spirit of the nation whose hunt it is ; respecting the commerce and interest of that nation ; respecting the nature of that hunt. The Canadian having such license ought not to trade and hunt within the limits of such hunt but according to the above regulations ; and he is hereby absolutely excluded, under severe penalties, to trade or hunt beyond these limits j on any account whatever. " It were needless to point out the many good and beneficial effects arising from this i police which gave thus a right attention to the interest of the Indians, which observe the true spirit of the alliance in putting the trade upon a fair foundation, and which maintained all the rights and laws of the hunt that the Indians most indispensab' exact." Wiii your Lordship allow me to make hero this observation, in view of wliicu | ihese different extracts should be read — that this governmental interference by ] 86 OF BOUNDARY : THE FIIENCH POSSESSION— OOVKRNOR POWNALL's ACCOUNT. 36 from the Govern- ie from the Govern- ^^n'fi?" 0"*"""^*""^ ^""°^ *" <^^'« P«"od ^'^^ never objected to by the Hud- son s Bay Company a8 far as regards the territory in question • and it was not StIhe'rShf ofp ' "''r- ^"^'^ .?"^^^"^ ^^^ ^^ ' company "cognile" evt of ititattay " '' °""P^ '^" '^"^^^^y- *"^ -cq-- the sovereignty is a re.dar*lS«'^"'"°^ °'' **"" "^'"f* important service which arises out of this police, 18 a regular, dehnite procise, assured knowladge of the country. A man whose intpreat and commerce are circumscribed within a certain department, will pryTnto Ind sc utSe :zV:otztzz''' '':j '"'■•"*■ '^'^^'^ ^^-^ '^ ^-* ^«' byEe rant aitn : l7,!rr 1! ?• '^^'J'''' ^^ t*i- commerce of it will bear, whoever applies for a license scter e's and"fr: ""v"'" *^f.°^ '""*' '^ ^'^'^^ ^«^- beginsTopenlg toTew h irr o„rmtce allln"'' T-% ^^^^^ '^^ French have, by these means,%stablished a hPSP „.r„« „ • i , ^""f '°fl"eiic« amongst the Indians of that tract and have by the comZd of tt r'^'i'' °' "'i '^^ "'^*^"' P^««^^' P°'-*-g- -'^d ^osts that may InH nnf f"™"**""^ °^ <^hat country-m short, a military knowledge of the ground— then A gyrison, of course, implies troops of the King • ' brothe,UrtUr"bvfonnH''°'l"^.'''^r*'''' ^""^ '=''''*'"^ ''"^'^"°'^« ^''^l^ the Indians as tue pirirof S^ '^"/^."'=« "PO".and maintaining it (according to the ntees S tie W Th« T*'"'^ " " "IJ^^^ communication''ani exercisf of the nri;,.!,? T u i^ • ^'^^y ^^^^ insinuated themselves into an influence over the ssii: aiw'-th' ".*t^'r'/' possession, and by locating and fixing hose the wh^ e U ev «;rh. ' Winnipeg system whose influence extenu. throughout country." ^ ''°'"'' P"''"'""^ "^ » ''^^ ^"^'''^'^ i"' and real command ovef, the Al^'r' MnS'.J^T''''^'''^-?''."-'^''^ y^" '*y that is annexation? l,..,n,;. n..l 7k '''^' '* ''• t*"^ "^^y '"^ "^h'c'^ a 'desert country of this kind '.^omas possessed by one nation rather than another Lo^d ABERDA^Rr'ST •~^' ™"^ *^' ^ ^'^"' ^*^P *«^^^'^« it- ^- doubt, rouurlabout wn V of r^ h!' f fu"""^ expression if it is annexation, and a very sir-eJtrpr^n^TSett^^^^^^^ '"^^^ '^^y - to tlml!' ^'''''' Chancellor.- You might say we had annexed Borneo according Indies. ^''''^^— ^" ^"»«"«^ ^«^ acquired in this way ; it belonged to the itsdfls ritterShTng.^ '"'"'*' '" annexation ; but that it is annexatioS in ! Pc,se'\^']rtb'T^^''^.f ^-i"'* 'T' "^ t^" «*^«P« that are needed for that pur- I X'e from anv donbt t "^"'- '"^'^^*> ^°"'- ^^'"'^^'^^P^- ^ ^'^P-rt of this kind Eu.Sh Zernor an. i^^ r^'""'' "' .*" ^V^^^^acy, because it is made by the nation sdowTn ^1 • f^'P""'' ''■ ^"^ ^''^""" ^'^ ^"P«"«rs of what another lifiuon IS domg to acquire the sovereignty of the country I Sn- Montague SMITH.-Line 30 seems to be a summarv of it all : lliey have thus througout the country sixty oreev.nty forts " -Mr. Mowat.— Yes : hettle Jets, t^TchtlftrfeaT in^fh """'^''^ '!f *J '^ ^^^^^^^^ ''''''' ^^"^ ^'^^^^ -« --"7 Iforts without thf.w: it il-.^?^^^^^^ ™ one of which iforcc of Canada •" if wopl-^fn " ^'^ ^"^^'"^ '''^°^ support with ail the expense and FrancecoulT 'tis U.^ rndifn^^ter. l'^'*.??^''' governed-" not all the' power of I uia , tis the Indian interest alone that does maintain these posts." ■ 87 ^ I.l# ARGUMENT OF ATTORNEY GENERAL OF ONTARIO re QUESTION OF BOUNDARY: it till It is in consequence of always respecting these Indian customs that thfe English government has beeil so successful with the Indians, and contrasts so favourably in that respect with the United States, where they are always at war with the Indians and terrible disasters and atrocities are occurring between them : " Having thus got possession in any certain tract, and having one principal fort, they get leave to build other trading houses and entrep6ts, at length to strengthen such, and in fine to take possession of more advanced posts, and to fortify and garrison them, as little subordinate forts under the command of the principal one." Lord Aberdare.— Suppose the Hudson's Bay Company had pushed forward and came into collision with these forts, and there had been fighting, there probably would have been what would have been considered a case of wa,r— do you say that the French would have considered it a violation of their territory ? Mr. ScOBLE.— It was one ground of the war that led to the Peace of Ryswick that the settlements of Hudson's Bay were attacked by the French. Lord Aberdare.— That is quite another part of the territory. We are nor speaking of places hundreds and hundreds of miles from Hudson's Bay. Sir Robert Collier.— They speak of Canada in the next line. Mr. Mow AT. — Yes : " Though these principal forts have subordinate forts dependent upon them, they are yet independent of each other, and only under the command of the Governor-General; there is a routine of duty settled for these, and the officers and commanders are lemoyed to better and better commands. What the particulars of this are, and of the distribution of the troops, I have not yet learned as to Canada, but in general the present establish- ment for this service is three thousand rten, of which there are generally two thousand three or four hundred effective." Then he says :— " I have not been able yet to get an exact list of the forts in Canada." Sir Robert Collier.— Then he gives a list of what he supposes to be the forts of Canada. The Lord Chancellor —As far as I can follow the names, they do not seem to go beyond the undisputed limits of Canada. .... Mr. Mowat.— A good many of them are in the country along the Mi.ssissippi ;. others are in the territory of which we have been speaking. For instance, about the middle of page 603 Fort Alibi is mentioned, that is north of the height of land, near James' Bay. i ,• i. . The Lord Chancellor.— That I suppose is within the undisputed limits ot Canada. , . ., . Mr. Mowat.— It is north of the height of land— Fort AbbitibL Lord Aberdare.— That is within the territory which was conceded expressly to the Hudson's Bay Company by the Treaty of Utrecht, and before the document of which you speak. . ^ t. i^i. *i, Mr. Mowat.— It in fact continued always in possession ot V ranee atter the Treaty of Utrecht. ' . , , , t,. v Sir Robert Collier.— It appears to have been occupied by the h rench. They had a fort at Abbitibi. ,_ , Mr. Mowat.— Yes : the map says of it : " Built by De Troyes m 1686. And | of another post on Lake Abbitibi : " French Post founded before 1703." The Lord Chancellor.— In this list, at page 603, as far as the report of J Go.-ernor Pownall is concerned, it might be important, because he says these par- ticular forts are within what he understood to be Canada. Mr. Mowat. — Yes, my Lord. , , The Lord Chancellor.— Now I want to know whether there are any othersj which are outside the undisputed limits of Canada. Mr Mowat.— What am I to consider as the undisputed limits of Canada ? 88 OF BOUNDARY : THE FRENCH POSSESSION. ndisputed limits of . The Lord CHAfrcELLOR.-I mean Canada as it was after part of it had been ceded to the United States. Mr. MowAT.— All north of the lakes remained to Canada. ll.e Lord CHAN(:Ei.LOR.-These ten are n.entioned-can you po'nt out on the map any others ? j f «« "« Mr. MowAT -There i,s Fort Abhitibi. Then, in hi.s evidence before the Par- liamentary Committee of 1749, Richard White says : "The French intercept the Indians coming .iown with their trade, as the witness be- lieves, he having .een them with guns and clothing of French manufacture, and that an Indian told him there was a French settlement up Moose River, something to the south- ward of the west at the distance as the witness apprehends, of about fifty miles." The Lord Chancellor.-Is the one you pointed out before between Lake Huron and Lake Michigan ? Mr. MowAT.— Michillimackinac ; there is no question about that. The Lord Chancellor -That clearly was within the limits of Canada until it was ceded to the United States. Mr. MowAT.— Yes, my Lord. i The Lord Chancellor.— Then Du Quesne-where is that ? Mr. MowAT.-At the junction of the Ohio and Alleghany Rivers. I may men ion generally that the only names in the territory to the north or west he height of land with which we have to do in this paper, are Alibi, certain ot the posts dependent on Nepigon and Michillimackinac, and the posts of the .Sioux and St. Antoine— the latter on the Upper Mississippi Sir Robert Collier.— Are there any of them to the west ? Lord Aberdare.— None of these are to the west Mr. MowAT.-With regard to the others, while the post is in one particular place yet the territory which ,s supposed to be annexed to it extends much urther. For instance, "Missilimakinak and its dependencies" is the first mentioned there ; and it is an historical fact, and there is evidence of it in this book that he dependences there extended north and westof the height of land, although the fort Itself was south. And of the six forts grouped here as dependencies of Nepigon, some were situated beyond the height of land The Lord Chancellor.— Is it by Lake St. Joseph ? Mr. MowAT.— There is a fort at Lake St. Joseph was given to CanadT'*''^''''"'"^^** """'"' *" ^^ ''''''*^^ '^'*^''' ^^^ "'"^^' °^ ^^"* Sir Montague Smith.— North of the limits given by the award of th?L^k?s\^j™h."""-'' '^ "^''^^ ''''''' "'"^^•^- '' •« 'y ^^« -"^'^ '^-k .ave^Yn l^^^f^Yes, my Lord^ I think it is within the limits that the award ^ave to us. It is on a river which flows into Lake St. Joseph there and that nver passes through the territories that the arbitrators gave' us Th;n Jhere is also Fort Kamanistiquia, near Lake Superior men tneie is The Lord CHANCELLOH.-Thi8 ILst derives importance from this heading th«rHmTn k''- • A"yt^'"g you can bring into that is certainly described at I av iu^t hlfnT^ T **^ was understood to be Canada, and I think although he says just before he ha^ not been able to give an exact list of all the fo?ts in >. ' l^^ """^^ '"^y '"*^'" ^^** *^h«''« are all that he had a list of Mr. MowAT.— Yes, I think he does not mention any others. ' 1 shall have'to I go to other testimony for the others. *° Sir Robert CoLLlER-Fort St. Joseph-do I understand that to b« we-t -* ■c une tioiii tiie conduence of the Ohio and the Mississippi ? I suppose it was"- 89 ARGUMENT OF ATTORNEY-GENERAL OK ONTARIO re QUESTION OK BOUNDARY: therefore I 8upi>o>*e that to be in your favour, as excluding their boundary, which is the line from the Ohio to the Mississippi. Sir MoNi'AOUE Smith. — That would carry you to the west of their boundary. Mr. MowAT.—Thert' i.sipiite a number of forts between the Mississippi and the due north lino. Sir Robert Collier. — Take Fort St. Joseph: that may be taken as carryinj/ the boundary west of the line they contend for. Mr. Mow AT. — Ves, my Lord. , Sir Robert Collii:k. — Are there any others of that kind i Mr. MowAT. — Fort i^amanistiquia would be. It also is west of that due north line. You will see Fort William there, and then the Indian name under it. The present name is Fort William. Sir HoHERT Collier. — Yes, that is not in this list. The Loud Chancelor. — The value of this is that they are all forts in Canada. Mr. MowAT. — Yes, my Lord. There i.s another in this list which is on the Upper Mississippi and west of the due north line — Post Sioux. Sir Robert Collier. — Where is that ;' Mr. MowAT. — They are not marked with that name, but that is the general name whicli they received. Fort St. Croix, built before 1688, your Lordship will seci tliere [pointing on (he map]. Sir Robert Collier. — Is that in this list i Mr. MowAT. — It is included in the word Sioux. The word embraces a number, of which that is one. The Lord Chancellor. — No doubt that was, I ijuppo.se, in Canada until the cession to the United States. ? Mr, MowAT. — Yes, my Lord. Sir Robert Collier. — To the west of Lake Superior, no doubt. Sir Montague Smith.— Theie is a fort just to the north of Pigeon River- there is a number of those forts which you say came within the general description of the Sioux. Mr. Mow AT. —Yes, my Lord, and Canada at that time was considered to extend over the Mississippi to the west bank of it, and some of the forts included under this name were on the west side of the Mississippi, and they were all con- sidered as part of Canada — but of course that poi'tion west of the Mississippi was not ceded to the English. The Lord Chancellor. — Where is Miamis ? Mr. Mowat. — There were two of the name : one to the south-west of Lake Erie — a little below the most southerly part of it ; the other on the south-easterly shore of Lake Michigan. The Lord Chancellor. — Then it seems clear that the whole of those forts are within the di>trict which it is not in controversy was Canadian, or only in controversy in the view ot those who draw the line up from the Ohio. Mr. Mowat. — Your Lordship will find several named on the Upper Mississippi, For instance, St. Antoine is mentioned ; it is spoken of as being a fine one. That is in the region of which we have been speaking. I shall give your Lordships more particular information about these posts in the further evidence. 'I'he Lord Chancellor. — It seeuis to be established that there were these forts reputed to be in Canada which we have at page 603, and that in the terri- tories which were treated as Indian territories, for some purposes at all events, the French had other forts acquired in the manner which is described in the documents. Mr. Mowat. — Tlien, I may assuine for the present — Sir Montague Smith. — You hnd better go on with any further evidence. 90 OF BOUNDABV: j^ their boundary, taken as can-yinj,' THE FRKNCH PU88IS810N-KVIDENCE flKKORB H0U8K OF COMMONS COMMirrRB, 1749* rther evidence. Mr. MowAT.~There was a committee of the HouHe of Commons rn 1749* bofu.-e which evidence wan taken, and it is natisfactory hecaZ the HudLL supply the French with European goods purchased from the corapaily." ^ ' Richard White Hays : " The French intercept the Indians coming down with their trade as the witn^.a further extended by sending up Europeans to winter amon,, the natives which thou-^^ the Company have not lately attempted, the French actually do " ' *^ to jult'no';^^ CHANCELLOH.-IS that the Alibi settlement that you were referring Lord Abehdare.— Yes, I think so. on th^M^orm^^J'IC m"''' '''' ^u' ' '^^"'^ ^""'•^ "- -"^th^'- one there. on ine ivioose Kivei. Ihe Moose m another nver which flows into Hud8nn•^ Ratt The Lord Chancellor. -Where do they shew that ? I see a aood dpnl nf Sttrr f '"'"^' '"^ "'^^« '^ ^^^'-^ -^^^-^ -bout cL'Lt: fotesdln ot ThP ^npn '"pT!* "^^^ ^" that way that they had possession. I he Lord Chancellor.— That is your argument ? was ever donT~ ^^ ^' ""^ "'"^"'°'"' ' b"' '^^' ^' ^^e only way in which it evideX"^'"" CHANCELLOR.-These witnesses are certainly speaking of trade. Mr. MowAT.-Yes. The witness continues • _j; Bu^if they would build further jn_theccuntry^it would have a better effect. The I ^"^ ^t>-»ng«> April 24, 1749. (Pages 216. 218 226 7 234 ) *''^^'^«'" ^"•> »" Appendix. Reported by ' ' 91 ' ARGUMENT OF ATTORNKV-dKNEKAL OF ONTARIO re t^UESTION OK BOUNDARY : 5- French went there first and are *>ett«r beloved, bat, if we would go up into the country, the French IndianH would trade with us." « Alexander Brown says : "TiiH French intercepting the Houtliern [ndians, and by tiiat meunH obtaining the valuable fun. Has l>een informed by the Indians that the French Oanadene IndianH como within Hixscoru niilei of the EngliHli factorieR. The French Indianii come to Albany to trade for their heavy goods. Han heard Mr. Norton (the governor) ■ay that the French ran away with our trade. If the trade was opened, the French would not intercept the Indians, since in that case the Heparate traders must have out- factories in the same manner the French have, which the company have not ; " and being Mked, "In case these out-Hettlements were erected, whether the same trade could be carried on at the present settlements," he snid : " That it was impossible, but the trade would be extended, and by that means they would take it from the French. That, if these settlements were near the French, they must have garrisons to secure them against the French, and the Indians who trade with and are in friendship with them (whom he distinguished by the name of French Indians). He heard the Indians tell Governor Norton, in the year 1739, that the French had a settlement at about the distance of a hundred or sixscore miles from Churchill, which had then been built about a year, aud contained sixty men with small arms." I think eighty was the number that was usual at the forts, according to the evidence. The LoKD Chanckllor. — Where is Churchill ? Mr. MowAT. — It is at the mouth of the Churchill River, on the north- westerly shore of the bay. Then there is a general account of the proceedings. I now beg to refer your Lordships to some' historical evidence of that distant period, which you will .Hnd at page 64 of the Appendix of Ontario. The LoKU CwANCELJ.OK. — That is a separate book of documents, is it not ? Mr. Mow AT. — Yes ; a separate book of documents — the smaller book. I will read a little froni the beginning of this paper It is from Sir Alexander Mac- kenzie,* and shows the cour.se of proceeding, and confirms what I have said as to the French having occupied the territory in a way which, according to the rules of international law, gave them the sovereignty, until the treaty ceded the territory to England : " The Indians, therefore, to i)rocure the necessary supply, were encouraged to pene- trate into the country, and were generally accompanied by some of the Canadians " — this is telling the proceedings of the French — not of the Hudson's Bay Company — in the North-West territory, " who found means to induce the remotest tribes to bring the skins which were most in demand to their settlements in the way of t'-ade. At length, mili- tary posts were established," — that means by the French — "at the confluence of the diflTerent large lakes of Canada, which in a great measure checked the evil consequences that followed from the improper conduct of these foresters [coureura des boia], and at the same time protected the trade. Besides, a number of abl" ami respectable men, retired from the army, prosecuted the trade in person, undo. '/; pi, n^-i; active licenses. with great order and regularity, and extended it to such a distance t ii hose days ^ns considered to be an astonishing effort of commercial enterpris Then, speaking of missionaries: " They were during their mission of great service to the commanders who eng;iged in those distant expeditions, and spread the fur trade as far west as the banks of the Saskatchiwine River, in 53" north latitude, and longitude 102° west." Lord Abekdahe. — From that, would it not seem that all those expeditions were undertaken by the coiire\irH des bow, from the basis of forts erected on the * "A General History of the Fur Trade, from rr.nada to the North AVeot," printed with, and fonsici; an introduction to the work : " Voyages from Montreal, on the River St. Lawrence, through the Continent of North America, to the Frozen and Pacific Oceans, in the years 1789 and 1793. . . . London : 1801." 92 OK BOUNDARY : ip into the country, THE KKKNCH P08SE88ION -8IK ALEXANDKIt MACKENZIE'h ACCOUNT, , according to the tin,., prewcted th. Zl° '■ '°""'"" [""""'•• *' «»"1 '"'l •' 'h..«m. TI,o„ it »a, a ,ort of ba»i8 from whici, tlio,,, mon trade,! or,";;r.t,li::;,'"'te'i!!'' "r ;:'"'?'■ r-r""""'^ ■" *« "-ern.e„t. £ .r,i-;„td' ttl: S -r- --'-■""■ ^•'- ..;;.™t_,..e,, a„.n;. tL^N-r^^:^t-t *^r„ - ':,;Lrr^ ^^^^_ ft-r M0NT.„„. S„„„._Tho,e o„ the great We, are ,„„,t important for „ Tl.ev*yt;%4mpt;rewVr'^''''°"'"' """PP-- you read .!„„,. ». the b..,k, of siLtchew^rRivT r?3- Xth k, .''^i™'' *5", '"'•'""''"'" '" "«« u • 11 1 x-i , ,. ""'""r, in oj north latitude, and one tude 102* was^ " He gives the latitude tliere, which .shews how far they went ud " Notwithstaiiding all the restrictions wftf, x^kj^k ^ P ' French government, the fur traTe was " Jen^^^^ been already stated, and surmo anted Lnv^.„t f mimense distance which has hereafter noticed ; ^hile at thTsame time no ^^rtt^'"''"'^'''^ difficulties which will be obtain even a share of the traVeTthe countrv wL. M ""'" T'^^ ^'""^ ""''«'"^'« "^X '» Company, belonged to it, and frl its oroJCt'"*'' '"'°°'-'*'"« *<> *»'« charter of that mercantile adventurer." proximity, is so much more accessible to the histoJy^^XfurtrTdr^"-''^^^ '' ^^^^ *^« -^°'« ^-k .seems to be. the territoi^aUhaTtTm'"'^"' the fur trade was the only trade prosecuted in the the It^tT ''"^"^•^^''^^-There is nothing specially about the possessions of Lord ABERnAUE.-That assumes, " according to the charter of thnf hat this region, invaded by the French cha.sseurs or coXtr/if L^^ fact belonging to the Hudson's Bay Company ^''"'•ei"* des hois, was in of t^!lt-^;1^:::J::i'Tll^>^'^^ ^^ : -J^^^ according to the charter but- "„^- 1 to It. i hat certainly does assume that, in a. sense, it aho:ltr"'^^"-^^ ^^"^^^ ^^^- q-*« ^t as an authority, you must take ^^^^^^^o^UlM^^^ If that is ; -c at luie 30; ' '■ ""' •••-i: luu wia ■ yd ?WiSW!W93«? ARGUMENT OF ATTOIvNEY-(iENERAK OF ONTARIO re QUESTION OF BOV'NDARY I in that country, or at least till the frost should stop him. For this purpose he procured guides and interpreters who were acquainted with the country, and with four canoes arrived at Fort Bourbon, which wa,8 one of their posts, at the west end of Cedar Lake, on the waters of the Saskatchiwine." That i.s a .qood way to the west I suppose ? . i , Mr. FiOWAT. — Yes, a great distance to the west. Sir Robert Collier.— I see several forts are marked. , t^, r* i, Mr MoWAT —Yes, all the important ones are marked. The Fort Bourbon here mentioned is marked near the point of discharge of the Saskatchewan into Lake Winnipeg. There is quite a number of forts: I have not mentioned them all yet. . . , Lord Ah KRDARE.— Is your contention that all these existing places round Manitoba formed a portion of the district of Upper Canada. , , , , Mr MowAT.— Yes, my Lord. I am not claiming them now, but they formed a portion of it. They belonged to Upper Canada, because they were ceded by France to England. . , ,^,. .1 , The Lord Chancellor.— It is quite clear that that is what Sir Alexander Mackenzie speaks of, because he says in the passage just referred ij^: " For this purpose he procured guides and interpreters who were acquainted with the country, and with four canoes arrived at Fort Bourbon, which was one of their posts at the west end of Cedar Lake on the waters of the Saskatchiwine. His risk and toil were well recompensed, for he came back the following spring with his canoes filled with fine furs, wich which he proceeded to Canada, and was satisfied never again to return to the Indian country." Mr MowAT.— Of course he referred there to the better settled and better known pai .s of Canada. If your Lordships would permit me, I should now like to call your Lordships' attention to a few more passages bearing on this question, as it is very important. Sir Alexander Mackenzie goes on, at page 65, in this way "For some time after the conquest of Canada this' trade was suspended The trade by degrees began to spread over the different parts to which it had been earned by the French, though at a great risk of the lives, as well as the property of their new possessors, for the nativeshad been taught by their former allies to entertain hostile feelings towards the English, from their having been in alliance with their natural enemies the Iroquois Hence it arose that it was so late as the year 1766 before which the trade ! mean to consider commenced at Michilimakinac. Tho first who attempted it were satisfied to go the length of the River Camenistiquia." Sir Robert Collier.— We have read the whole of that passage already. Mr. MowAT.— I beg your Lordship's pardon.— Then there is a report by Colonel de Bougainville on the French Posts of Canada, l7o7, which is at page 26 of the Ontano Appendix.* He deals with some posts that are not material on the State of New Franca at the time of the Seven Years War (17Sil, ille was one of the most distin^iished French officers in the war which rraulted The Frencli original of his Mimoirr is tjiven in " IMritiona rt Mnaoiren Iiuditi. * From his "Memoir Louis Antoine de Bougainvil in the cinouest of Canada. The Frencli original i „ .,- j . ^ i ^u HcTpar Ferrl Margru, I'aris, 1807. His account of the I'ost <.f LaMcr ,1c I Ou,,tu> appended at length. Post of thk Wkbtkhn Sea (La Mcr d<- ro,».vO. -The Post o the Western Sea is the most ad van d towards the north ; it is situated amidst many Indian tribes, with whom we trade, and who have mt«r- cZhc also with the En«lish, towards Hudson's Bay. We have there seven forts Inult of sh^kades, M generally, to the care of one ..r two ..rticers, seven or eight soldiers, and eighty rmjmj,.'< ^^ ""'<'.?"■ .-J^Th, i push further the discoveries we have made in that country, and communicate even with Califoinia. liie i post of 2« 1/rr 'ninr.t includes the forts :5t. Pierre, St. Charles, Bourbo., je la Re.ne, Dauphin, Posko^ andldes Prairies, all ,.f which are built with palisades tliat can give protection on y against the Ind nw. tort St Pierre is situated on the left shore of lake Tekamamiouen, or Lac de la Pluie [Rainy Lake] at (« leagues from Michilim.akinak and SOOJrom Kanian.st^oyj.^ o^^ 1^^*". ^I^ln"!'^! I 7rom the preceding one, and at the entrance of Lake Ouinipeg. Jort la Reine is situated on the ngl sboff oftheRiverof the^Assi.nboelH. at seventy leagues f™". *Vtl5ourb,t \rlMw.?'"n~^''L'''^' ^^'^ '''""*''^ *^^^^'^^ " ^^ M^'- de rOuest r Mi. MowAT.— It was the name given by the French aeocrranhers nf ih^ peiiod 1695-1768, to a supposed inland sea near the western colsf of A^neHt represented as connected w th the ocean at first by one and subsequtit y by two ps ages or straits its position corresponding, on the later maps^ to that of the Lull of Georgia, (Straits of Vancouver), and the two passages corresponding to the two entrances to the latter, respectively north 'and "south oF Vanfouv^r's Und. And It was supposed that from this l>ost the discovery of this Or)"be'::eh;f ' '^ accomplished overland and the South SeJ 1^^ > IMie Lord Chancellor.-Is this particular post marked any where ^ . Mr- MovvAT.-The post includes a number of forts. A post did not' inoai. nn« I single building ; it means a series of forts . ^ """' ^"^ l^h^Loj{n^CHA^c.XLOR._It^^vas ap.'st consisting of several Torts ? I from the preoedinsr one, on the river Minanifhenacheauckti or FaTi Ti-„iiKlI v * o ^~^~'^~, hver „f that name [now Saskatchewan!, at 180 LaRueT n.m heC^^^^ ^^"^T" "i »'"'" "» "'e 7th ■■'"''' /!?'""" fi'^^r- The Fort rL Prairiefi ' at e gT.ty le™ &^^^ P. stfil*'" t^' ^'""^ *'"« th,. nv,.r „f that name. This noat has been farnwd in conai feratfon of V^^^^ f ?V".! """ "''''•"' l'^'"' u; cmmnandant is its farmer, w th a fourth intZst in t^traHp tL T ' ^ 1'*''' ''''""W'"' francs; C'nstmauv and the Assinil.ocls ; these tw rtriCf^rm each twohl" JwLI"'^Tx 7^'' *''"^^ '*'«'«"'' the ■he second that fron. this post L discovery o the" \^'e;"r„4™ mav l^t^, n^T'^":!'' ^'*" ^^' ^''*°*'ed ; lisiwery ,t will be necessarv th«.f. t\,., .v>„„L "1 „;1 .:.! .■7"_'!'^!' ^^^ ^ accomplished ; but to make thi« 95 li i^Aja^i^.;i^sim:aiSwSBfeu^ssa^ ARGUMENT OK Ari'ORNEY-GKNEBAL OF (.NTAIUO re Ql'KSTION OF BOUNDARY: Mr. MowAT.— Yes, my Lord, you will see that by the para2;iaph beginning : "The post of La Met d' Quest includes the Forts of St. Pierre, St. Charles, Bourbon, De la Rein(!, J)anphin, Poakoia, and Dee Prairies." The Loud Chancellor.— I wanted, if po.ssible, to see them on the map. Mr. Mowat. — The.\- are all on this map [the Ontario Government map]. Lord Aberdake. — This country is called " La Mer d' Quest." Mr. Mowat. — All the.He forts are considered to be . eluded in it, and they are marked. The Post of the Western 8ea embraces the whole of the territory. The whole of the North-West went under that name. Lord Aberl»ahe.— On this map the letters " Western Sea" go through Mani- toba. It was so called because it was supposed to be on the shores of the Pacific; where also California was to '« found. Mr. MowAT.— I may mention here that one of my friends who is with me from Cana'da [Mr. Mills] has given attention for thirteen or fourteen years to this subject, and is an expert in all geographical matters connected with it. If your Lord- ships would allow him to address the court, besides myself and my learned friend Mr. Scoble, on that part of the matter simply, it might help to shorten the discus- sion. The Lord Chancellor. — Oh, no. As we said yesterday, we cannot hear three counsel. Mr. Mowat. — Then, my Lord, this goes on to describe all these forts, and points out where they are situated. Your Lordship has looked at them on the map, and I suppose Tneed not read them over ; but at each of them there are offi- cers, at each of them there are soldiers, at each of them there are men employed iii very large numbers — eighty. In this respect much more was done to acquire sovereignty for France than the Hudson's Bay Company did to acquire sover- eignty for England over whatever territories they had occupied. Their forts were comparatively fewer, and they were not manned anything like so exten- sively. The evidence* shews that they had only 120 men and officers in all their forts, instead of the very large number that the French had. Your Lordships asked who Colonel de Bougainville was, and I mentioned some things about him. I .should have mentioned also that this memoir was .suli- j mitted at the time it was written to General de Montcalm, whose aide-de-camp he was, and that that officer testified to the correctness of the information which it contained. At page 28, speaking of this post. Colonel de Bougainville says : •"The post of La Mer d'Ouest merits special attention for two reasons— the first, that j it is the nearest to the establishments of the English at Hudson's Bay, and from which villages, and along the Missouri in descending it to the discharge of the River VVabiek, or to the Coquille, twenty-three villages of Panis. . , ^ ■ .u i To tlie >,outh-we»t of this river, and on the two shores of Oiionaradeba, or ii la trraisse, are the Hactannes or Gens du Serpent. They extend from the foot of a chain of very high mountains [the Rocky Mountains], which run north, east, and south, and to the soutii of which is the River Karoskiou or Cense- Pel^e, which is supposed to reach California. , ,r- • i • i He continued his journey, and found in those vast territories, where the Missouri has its snurces, by the Assinibiii'ls, three villages; after these are found the Makesch or Petits Renards, two villagw; tfie Privassa or G rands- Parleurs, tliree villages; the Kakakoschona or Gens dfe la Pie, five villages; the Kiskipisounouinini or Gens de la .Jarretibre, seven villages. . ^ j i i He could not go further on account of the war which was then being waged between the Gens de ii I !.__.,{.:;.j.^ „f,fi ti.u neishbourins nation. I mttv hero observe, that it is perhaps improper to use the tenii| viUages as Tiiave done, for all tTieae nations which inhabit the prairies form, like the Tartars, wandermsj horde*, live by the chase, and dwell in huts covered with skins. • Middleton to Dobbs, Joint App., p. 681, line 13, quoted ante, p. .59 : " Out of 120 men and officenj the company have in the Bay," etc. 96 OF HOUNDAHY: THE FRENCH POSSESSION DE BOUGAINVILLE'S ACCOUNT, 1757. niph beginning : b. Charles, Bourbon, II on the map. "nment map]. t." in it, and they are he teriitory. The go through Mani- orfs of the Pacific ; rho is with me from ears to this subject, t. If your Lord- my learned friend shorten the discus- 3 cannot hear three 11 these forts, and 1 at them on the -hem there are offi- le men employed in ,s done to acquire i to acquire sover- ipied. Their forts ing like so exten- and officers in all lad. and I mentioned is memoir was .sul> j vhose aide-de-camp information which ! says : jasons — the first, that j Bay, and from whicii 'abiek, or to tlie f'i>(|iiille, or a la Graiase, are the I :h raovin tains [the Rocky | iver Karoskiou or Cerisf Missouri has its snurces, j x-Hommes, four villages; lages of about 100 cabin! I l', four villaKeg; opposite! X, and Utasibaoutohactsi| 1 Renards, two villagej; dfe la Pie, five village d between the Gotis de li I improper to use the term I :e the Tartars, wandtiriiij I t of 120 men and officeni their movements can be vvatched ; the second, that from this post the discovery of the Western Sea may be accomplished; but to make this disccvery it will be necessary that the voyatjeura give up all views of personal interest." Then he goes on to say, amongst other things, what steps were taken for the purpose of discovery. The Frencli always Imd that matter in view, and were con- stantly making discoyenes and extending their possessions. Then at page 29 we have the Post of Tabitibi. i 6 . "^ '' Tabitibi is a post dependent upon Temiscamingue, situated at 120 leagues from the preceding fort, towards Hudson's Bay. Each post may contain one hundred men. They subsist on game and fishing. They sow no grain and have no village. All this country 18 mountainous, and not at all fertile. The post produces about 120 bundles of furs," The Lord Ciiancellor.— Where does that lie ? Mr. MowAT.-It is a little south of James' Bay. Then he describes, a little lower down, the method of proceeding. At line thirty he says : "We call wnye the licenses or permits that are granted by the Governor-General for a canoe laden with six thousand pounds of merchandizes intended to be sold in one of thl posts indicated. Such a license costs fifty pistoles. The Governor-General, who is at liberty to give more or less, applies these funds for the maintenance of poor families of othcers. Account is given to the King of only t ./enty-two licenses. The Governor sometimes gives as many as forty. The half of the fifty pistoles goes to the King, and the other half is at the disposal of the Governor for gratuities." la'tr f '^««<^f .*h\evidence here in regard to every one of these forts and po.t,s. Some of it I have read ; and some of it I have not yet read, as I do not thesl things.? "^ "^ ^"'"^' "^ "^' ''^'' ^^' ^'' ^«^"^ *« d^^P"*^ ^»y of The Lord Chancellor.— I should doubt whether they would dispute the historic account of these things given at the time, in 1757, by a we f known French vvriter, and as you say (and I daresay correctly) approved by the Govern ment ot Quebec. I should think the effect of that probabl? would not be al.^ed upon between you, but the facts I should think woiild be agreed ^ an. .nn/;lf f """^IT"^ '"Pf""'" f"^ ^^""^ ^^'^^ ^" ^^ese various fortresses that ja scattered over these various places were put there by Frenchmen would not r MnwAT TtT '^1^' *^' ^T\ Chancellor has said, the effect of that. Ml. AlcvvAT.--Well, for the present, I shall not trouble your Lordships with putting together the vast amount of evidence there is bearing upon all these forts Jhfin. as your Lordships have asked me what evidence there is as to hou-tarthis^territory was claimed by Upper Canada, as belonging to it, I will letei your Lordships to what appears upon that subject. It is necessar ly to a piderahle extent, in historical documents. The first'l would mention is a'i'pao-e 41-, where there i.s a petition set forth. It conmences at pa-.e 410. It is a \Ai- Z I n'sfsf f • f •'"'V'.'l 'f'T'l '' ^^ ^«^ '' Upp'ei^Canada, 59 Ge!) i, r,?' ' (l?l?i^'>'ch is entitled, "An Act to authorize the enquiry and trial of tnmos and Offences, committed within this Province, without the limits of anv described Township or County, to be had in any District thereof 'The S .tself IS at page 409.* The petition is at page 410. The petition is a lon^ Aft f l»i«tr count oiin.^,. titlcl ^ec. 1 of the Act in question is as follows :— ~ " ' •y, winch It miij-ht be inconvMninnt. t.,. frv i„ f A„ ..„,f:„.,i^.„ i J. J::_7. °?_'^°'"" '"'"^' '" *"«' tracts of IV v.,l.,„K f — .""-....^o .....c imoii uuiiiiiin,i,eu, ana may nereatter be ly. wnitn it might be inconvenient to trv in the partio'i!""- d;"*";"*- —h- ■'■'iXnX; i>e it therefore enacted by the "■" • • ••""_—•• It of the Legislative Council and e KinK's moat excellent M^ijeVtyrby a.^ w^ThX^'aXice^^^^^ An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's ivi^ (B-) 97 ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY: one, and the passages that I am going to read to your Lordships are the only ones probably that are material for our present purposes.* The Earl of Sel- kirk complained of this Act, and he wished to have it disallowed. The Lord Chancellor. — I do not see that he complainsof the Act. At page 410 there is a complaint against some legal proceedings in the Canadian courts. Mr. MowAT. — Yes, but proceedings in connection with this Act ; and I have a statement here which shews that Upper Canada was claiming jurisdiction. It is one piece of evidence to shew that Upper Canada actively claimed juris- diction beyond the due north line. Lord Aberdare. — " Westward to an indefinite distance," he says. Mr. MoWAT. — Yes, my Lord. At page 412 there are two or three sentences which will shew what I mean. He complains : " That the Chief Justice of Upper Canada in defiance of the Act of Parliament, which declares the western boundary of Canada to be a line drawn northward from the point of junction of the Rivers Ohio and Mississippi," — Of course that was his point, that that was our limit, and he says that there was an Act of Parliament saying so, and that the Chief .lustice acted in defiance of that : —"and in opposition to the unanimous decision of the court at Quebec, asserts that the Western District of Upper Canada extends westward to an indefinite distance." That is the expression that your Lordship read just now. So that there the Earl of Selkirk pointed out what it was which in his view the Chief Justice of Upper Canada asserted on that subjetet : " That in consequence of this extraordinary doctrine, your memorialist is apprehensive that under the provisions of this new Provincial Act the Chief Justice will not hesitate to issue bench warrants for the purpose of arresting several persons now resident at the Red River settlement," and so on. I cite that as an historical statement of what is said in regard to that distant period. The Lord Chancellor. — You cite it as an historical statement, but is it in vonr favour ? Mr. MowAT. — I cannot press it beyond what it says. The Lord Chancellor. — Because it savs : entitled, ' An Act for making more eifectual provision for the government of the Province of Quebec, in North America, and to make further provision for the government of the said Province,'" and by the authority of the same, That all crimes and offences committed 'n any of the said tracts of country or parts of this province, not being within the limits of any described county or township, may be in((uired of and tried within any District of this province, and may and shall be laid and charged to have been committed within the jurisdiction of the court which shall try the samt^ and such court may and shall proceed thereon to trial, judgment, and execution, or other punishment for such crime or offence, in the same manner as if such crime or offence had been really committed within the District where such trial mav be had, any law, usage, or custom, to the contrary notwithstanding." •Petition ok the Earl of Selkikk, 30th Jult, 1819. To the Right Honourable the Lords of the Gummiitee of Privy Council for the affairs of Trade aid Foreign Plantations. The Memorial of Thomas, Earl of Selkirk— Shewkth : That in the month of September, one thousand eight hundred and eighteen, a Bill of Indictment w» preferred against your memorialist at .Sandwich, in the Western District of Upper Canada, for a conspiracy to destroy the trade of certain fur traders calling themselves the North-West Company of Montreal. * That as they could not succeed in their endeavours to obtain from the Grand Jury in the Western District a true bill against your memorialist for the allngud c;)a;;pir,aoy, .inothcr bill wa-s, imraodiatoly afis the passing of this new Act, preferred against him on the same charge. * * The Bill has been found against vour memorialist and nineteen other persons, most of whose names have been inaeited in the Indictment, evidently for no other purpose than to prevent them being called as witnesses in your memorialiBt's defence. 98 •^f- \ OF BOUNDARY : ASSERTION OF TITLE OF UPPER CANADA TO THE NORTH-WEST. affairs of Tradr and That the Chief Justice of Upper Canada in defiance of the Act of Parliament which declares the western boundary of Canada to be a line drawn northward from the nm^t of juncnon of the Rivers Ohio and Mississippi, and in opposition to the unanTmous Ei^^^^ ISTantlS^r^^^^^ ''' ^^^^^- ^^^*^^'* °^ ^PP- Canrartl^r:^:t" Actofpa^Sn^'^^^''"^^^"^^^^^^^^P ^^" -* '^^^ his construction of the The Lord CHANCELLOR.-If you use it as a statement for any purpose van must use It for all. How can it be a statement with regard to the riZf ^ ^^^^^^Mr. MowAT.-No, not with regard to the rights, f do not cif^^H for that ..eS.r^^£:^ZiI^'^ '''' '' " ^" ^^^*^"«^^ «'^*--^ -^y of the- Mr. Mo WAT.— Yes, my Lord. Lord ABERDARE.-Were these acts committed in Upper Canada ? .Mr. MOWAT.-On the part of the Crown it was so claimed and fh.ffV • ■ diction was therefore in the courts of that provrnce but on th. n« .••';"■"," Selkirk, they were claimed to have been comSed'in thp ^'Tn^- ^ . '• ^""'^ and to be therefore, under the Imperial Act 43 Geo 3 o 1 4 w'f l" f^ territories," only of the courts of Lower Canrdrunless relegated fospedal clause' Tf 'T'' ment under the great seal of Lower Canada, toTe courts' of [w was a Lower Canada court that tried the De Reinhard case ^ " I^o^d ABERDARE.-AS against the "decision of the' whole court" and "in (lofiance of the Act of Parliament," he made this a.ssertion ^ ' '"^ Mr. MowAT.-In defiance of the Act of Parliament-that was Lord Selkirk', assertion. There was a trial in Lower Canada, in 1818, of pei^oL chimed w^if murder away up in the disputed territory, and in that case the court heKhat o n- westerly imit was a due north line from the Ohio and Mississinni ThL b«^ committed, ,8 not situated within the jurisdioLnofT^couSTr,^^^^^^ T "^ "'*,"'.'' ^° have been Parhament of 14 George 3rd, c. 83. which define" the boundrrv of thT pT^"' *' '^^^1""^ ^^ ^^'^ ^ct of KtrChfe &^?^'t* *° *"^' •" r^ court "U^pila'ad/"""'''^' ^"^ '^«"'f-« '^at these »ndMi8«8s,pp, andin opposition to the unaniZus decis.'^n of throlrV J""'i*'7"f the River* Ohio ^trlnrH*^"'"''.?*"/ ^PP*"" ^"»'^'' «''t™d8 Westward to an indefinite d stance tL^"?''*"''' '"''^'■'« ">»' ^^e extraordinary doctrine, your meraorialirt is apprehensive that nnder ?h« ^f," ^^^'' ' r ""^^^quence of this Act, the Chief Justice will not hesitate to issui SrWarrfnts for the n,,?^ '''?"' °^ *••"' """^ Provincial now resident at the Red River settlement, an.l that i .suorXrants ar/«nC>.°'^''r''"'^ T"'^^ P«"™'« bring away the partie.s to a distance of two thousand in es withnnt fhl.V ?"^'?""*'d to, or enforced, he will ng witnesses along with them, or the means for Snrn^ an mn^ opportunity of bring- men.onahst ought also to observe that as the settlers at Ili^d R^ver haT^fv fi ^7?k "■■ ""■ ^^'' *""*'• Your the most eminent counsel in England, declarina- that M.«RaH »• "htamedthe opinion of several of .«n,.t im ikely that warrants isS (und^ tCLw Act fof ^e a Zehtn"''' '^^™°«*dered as in Canada' it Plao, will be forcibly and, as your nlemorialist conceive .awfullyTeTisted ^"'^ "^ '^' '""'"" »' *^'*t r^'^:f^^^^J:^y:^^:.^:Lr. ^^- ^ -tioned is of an trrnPr^'"}* *'"^ Royal Assent to the Bill S't Seeing that it c,L{'n!f*"r'""''^^ ""^^t not to t."n Ull the pleasure of His Royal Highness the '^bleK4fi,tl".K!!'!!!'^.!' '=''"ir« i" l"«I«nd its opera- t-;s;:.;-:;7^S:r ['^irS^ri^^Z3!;r?'^fc ^.t mto co„sidera. "aiiie, and your memorialist further prays that when the MliHAnf. "Vl^en' '" Council to disallow the consideration he may be heard by ooWel on tlJsubject '" ^ taken under your Lordships^ 99 '"""" ARGUMENT OF ATTOBNEY-OENERAL OF ONTARIO re QUESTION OF BOUNDARY : «ase — the only case — in which a decision of that kind was made. There is a great mass of evidence which we have now, and was not before the court then, to shew what the true construction of the statute is ; for instance, a vast number of com- missions, and the judges had not the advantage of those commissions; and the great argument — the conclusive argument — that the Act of 1774 recites, that its object was to give a government to those colonies and settlements, naniely, the government of the British Crown, was not brought befoi-e the court at all; nor was a great variety of other mu ler. If reliance was placed on that decision,! could shew how very little material for judgment upon this point the court had; the judgment was never acted upon ; it was not acted upon in that case, and it has not been acted upon by any court since. The Loud President.— Was it not acted upon in McLellan's case ? Mr. MowAT. — No, he was ac(iuitted ; and on the occasion I am mentioning the Quebec court charged the jury, and the jury came to a conclusion on whatever evi- dence was brought before them. No doubt there is that judgment, but your Lord- ships will not take the judgment as being correct unless it was right, and I argue that it was wrong. The Lord Chancellor. — I do not think you can make very much out of a statement of that kind.* Mr. Mowat. — I put it in as one piece of evidence. I am asked by your Lordships what is the position taken in Upper Canada with regard to this territory, and that is one of the pieces of evidence that I put forward, and it is only one of many. Sir Barnes Peacock. — The prayer of the memorial is, that their Lordships: " Will take the Provincial Act into consideration as early as possible, and will advise che Prince Regent in council to disallow the same." The Lord Chancellor. — What was done — was it disallowed ? Mr. MowAT. — No, it was allowed. Sir Barnes Peacock. — What was the Act ? Mr. Mowat. — It is at page 409.-f- TheLoRD Chancellor. — However, that seems to add very little light, be- cause that seems to provide for a jurisdiction in parts of the province " which are not within the limits of any township or county therein," but what the bounds of the province are it does not say. Mr. Mowat. — No, my Lord. Sir Montague Smith.— What does it say— that under these Acts they might go into these Districts ? Mr. Mowat. — That they claimed the right to go, and would go. Sir Barnes Peacock.— Had they ever done so, before the Hudson's Bay Company settled theie ^ Mr. Mowat. — Yes. I will tell your Lordship what evidence of this there k The Hudson's Bay Cotnpany also send in a jietition, dated 3rd August, 1819, for the disallowance of the Act. At page 41.'J, the company, your Lordship observes, informed the Lords of the Committee of the Privy "^Council for Trade ami Foreign Plantations, that " By the interpretation which has been put upon it by the Chief Justice and the Law Officers in that Province, it has had the effect of operating as an I'X post faclo law witli respect to several of your memorialists' officers and servants, contrary to the established principles of justice, and to the law of England. For, in consequence of such interpretf- tion, criminal prosecutions were immediately commenced, and a bill of indictment pr^ forroH, .agiiJnst s^ertftisi of ihfir nfficors and servants, for a conspiracy to ilcsiroy the ira'-' Namely, the petition of Lord Selkirk. 100 t Sec. 1. printed ante, p. 97, note. OF BOUNDARY : ASSERTION OF TITLE OF UPPER CAVADA TO THE NORTH-WEST. ery much out of a ise Acts they might ante, p. 97, note. I North- West Company, m having committed certain acts alleged to have taken place at For Wilham (a trading post of that company) two years prior to the passing of the said colonial law Your memorialistH further submit that Fort William, where the said acts were alleged to have been committed, is not in Upper Canada," -that is carrying out the idea that it was a due north boundary— "being situated to the west of the boundary line of that province (as established by Act Parliament, 14 Geo. H., c. 83 , and therefore not within the jurisdiction or subject ta the legislature of that province." •* That was their constructicn. Sir Barnes Peacock -Fort William is within this part [pointing on the map] f Mr. MowAT.-Yes. It is a little west of the due north line, near the shore. oiniinV^^^ Peacock.— This is what is included in Ontario by the award Mr. MowAT.— Yes, my Lord. Sir Robert Collier -The object of this Act was to enable the Governor, by proclamation, to declare that any part of the territories was within the Province ot Upper Canada for the purpose of criminal jurisdiction The Lord Chancellor.— No, it assumed that there were certain tracts not parts of any described county or township, but which were within the limits of the province. It did not define any tracts. Assuming that it was within the province, the Act extended there. Sir Robert Collier.-" Any of the said tracts of country," it says, "or parts of this province. I should read " tracts of country " as meaning tracts of country not being parts of the province, not being within the limits of any pre- scribed township or county for the purpose of trying prisoners. It is merely for the purpose ot trying prisoners. The Lord Chancellor.— No, it is not so. The preamble commences : fifi A^J^^IT.^^T ^"^ P"''^*^ '"^ *^'' thirty-eighth year of His Majesty's reign, en- titled 'An Act for the better division of this Province,' large tracts of country are com- piehended in the several Districts of this Province which are not within the limits of any township or county therein." ' Sir Robert Colliek. — " Which are not within the limits of any township or county.'' The Lord Chancellor.— Of course, with regard to that Act, we must see whether there was any such Act, and what was the effect of it. Mr. Mowat.— The counties were re-constituted by it and grouped into dis- t lets certain of the m.^tricts comprehending also tracts of unorganized territory outside the limits of townships and counties. Section 40 reads : »nrl K^'^f ^^ it further enacted, by the authority aforesaid, that the counties of Essex n^!f ?.u ^^"Lr '^'*^.^'' """'' °^ ^^^^ province as is not included within any other ^'stnct thereof, do constitute and form the Western District." Ihe Act of 59 Geo 3 is printed immediatelv preceding, at page 409 Sir Montague SMITH.-What you cite" this for is to shew that under this Act hey did exercise jurisdiction within these districts, and that they were treated I as being within the Act ? Mr. Mowat.— Yes, my Lord. Lord Aberdare. — Where are you? voifi ^^/-/^'^^^.^t.— The petition I have just read is at page 413, and before parting Inh Jj i.uf"^^J'l'',*^/^*'^. something from Chief Justice Powell's report on this ibjfipt, icn 13 pnntuu at page 416. 101 » iFi» «{M iiiJ rt"i A fi a ARGUMENT OP ATTORN'KY-OENERAL OF ONTARIO re QUESTION OF BOUNDARY ■1 i:. hA Sir Barnes Peacock. — Do you shew that under that Act there was ever any trial by the Ontario judicial officers, in that part which is now included in the .award, before the Hudson's Bay Company's settlement ? Mr. Mow AT. — Yes, there is some e /idence of that, as I think I shall be able to shew your Lordship ; I do not know whether under that Act or not, but, at all events, whether it was under this Act or not, there w^ere trials. ' Sir B>RNES Peacock. — You say there were trials ? Mr. Mow AT. — Yes, my Lord. Sir Barnes Peacock. — In the part included in the award, before the Hud- eon's Bay Company's settlement ? Mr. MowAT.— Yos. I shall be able to shew your Lordship that. Will your Lordships allow me to read w:hat Chief Justice Powell says, in the para- graph commencing "The outrages," at page 416. This is the statement that he makes : " The outrages at Fort William were presented in the Western District of Upper Canada, that Post " — that means Fort William — " having been ever considered part of that District by the proprietors of the post, the governments, and the courts, yet the Supreme Court of Lower Canada had adjudged that it was without the Province of tipper Canada." He complains there of the adjudication in Lower Canada being contrary to what it had always been considered — that it was always considered to be in Upper Canada. The Lord Chancellor. — The Supreme Court of Lower Canada had adjudged that it was without the Province of tipper Canada ? Mr. MowAT. — Yes, my Lord. Sir Robert Collier. — What became of all this ? Chief Justice Powell com- plains that " the Supreme Court of Lower Canada had adjudged that it was with- out the Province of Upper Canada." What finally became of that? Was it finally treated as being within or without the province ? Mr. Mow AT. — In that particular case in which the judgment was pronounced, and in which the prisoner was found guilty, it was dispoised of in this way: The Oovernment sent to the Imperial Government the papers, the notes of the trial, and the points, in order that an opinion of the Law Officers might be obtained as to whether the locality was or was not in Upper Canada — whether the judg- ment of the court on that point was correct. "The matter seems to have rested there for about two years. There was a correspondence about wanting the opinion, but if any opinion was given there is no record of it ; at all events, we cannot find it. But we do find that the prisoner, who had been condemned upon the supposition that the act had been committed without the boundaries of Upper Canada, received a free pardon. Lord Aberdare. — Are you speaking of De Reinhard's case ? Mr. MowAT. — Yes, my Lord. The question was whether the spot was situ- ated in Upper Canada, or in the Indian territories, which would bring it within the jurisdiction of the courts of Lower Canada. My friend has not cited a caae, or suggested that there was ever a case, in which that view which the Lower Canadian court held in the De Reinhard case was ever acted upon by anybody. As I have already said, it was acted upon by no government a.ft^rv.'^ards, it was acted upon by no court afterwards, either in Upper or Lower Canada, and what- ever law there was required to be acted upon or put in force' in this territory was the law of Upper Canada. The Province of Manitoba has orinted an A'l^sndix in which is set forth 8 ! report of Mr. Ramsay, Q.C., afterwards Judge Ramsay, discussing this question jA boundaries, and the report so printed has a memorandum added to it ; and it 102 OF BOUNDARY QUESTION OF THE TITLE OF UPl'ER CANADA— JUDGE Ramsay's concession. d, before the Hud- nada had adjudged may shorten the matter a httle if I road it, because it really shews what was done and wha was well known to have been done, in this territory. westTf the due north Ime m Upper Canada. This is at page 71 * Mr. McCARTHY.-If my friend will allow me. it might shorten the time if I aJmit. as I ought to admit, as a matter of fact, that up to\he height of land-that LSZn T l^"P'"^'.^"^.^^^ ^.''S^'' «f land-Upper Canada di^ exercise jurisdiction. I leave my friend to point out that which is beyond the height of Lord Aberdare. — How far ? marked on'th^r;.-'^ '^ about 40 or 50 miles. Your Lordship will see that Mr MtcISHY'-iS"*' ^^"'* '^""''^ "''*^ ^' "'' ^^" *' *^' ^^^^ ^^ ^^' ^^^'^"^ Sir Robert CoLLlEK.-What do you call the particular height of land ? nr ^I;-^^?,^«™^-Yo»r Lordship will see it is marked on this printed map. ^ MrZltL^Tu'i''''^ ''""l^t^^P iheposition of the particular territorJ.] Ml. Mow at.— The due north lines are here. Au. ^J^r.^v^^^'^^V'^^'"' ^ *'?"?'*^ *^^^ ^^^y exercised jurisdiction between the mm' ^^'''} ^T^ "'''"" ^'^ ^^^ P'-^P^^ 1^"«. ^°d the height of land. Mr MnP. J.";; "^^^^^ "^^ '*'^*'^' "^^^ •''^' ^« ^^«- ^« <^''« information goes ? Mr. McCarthy.— I cannot say at all. ** The Lord CHANCELLOR.~There is an Act in 1803, " For extending the jurisdiction of Courts of Justice in the Provinces of Lower and 'E ptns ^f'Vo'th t' '*°' r"'"^"* °' persons guilty of criniel and offencZith^ <.,tain parts ot North America adjoining to the said Provinces." Mr. Mowat.— That is under commission. Mr^MowAT^^'v f ;:'?^T'^^'''^"''?.' ^^T.^ ^" extra-territorial jurisdiction, authorize it " neces.sarily. The governor might at his discretion un,ler that'^AT ^'"^"'«— ^°" ^« "«* «^y th« "ght to the land was exercised of 18^^' twT~^°- ?' documents here shew, with reference to that Act T «i ni •/ ^""^ l^^^f '" consequence of murders committed in Athabasca. I am not quite sure how far my friend's admission extends. If he admits that the De RtiX^H"t^r;Lf "a?"" n*u'' "^ authority beyond the meridian indicated in the foroiroinf 17s-i "''''^T" an^""' ^"'" ''^^"^'"^ ^^« commissioners when the Treaty of 1783 was made. This map is very much worn and appears to have been very much used. It comes as I have said from the custody of the Hudson's £ke of"thrWoodH '" '"*^ *'^'^ boundary line is laid down north of the Sir RoBKRT CoLLiEH. — Which line '' the Z^^^B^ct"''"'' '' ^^"'''" '' «" *'^ ""^P - ^^'"^ *^« ^-"^« °' Sir RoBEKT Coi.LiER.-That is the northern boundary of Canada ? Mr. MowAT.~Yes. Sir Robert Collier.~How about the western boundary ? f,^'^^'Fi~J^'' ^\"« i" question extends westward to a point north of the Lake of the Woods, and forms, in that extent, as well the northern limit of Canada or New Prance, as the southern limit of the company's territory Moreover, although the Ime stop.s in the meridian of the Lake of the Woods the westward extension of Canada or New Fronce to the limit of the map, in lo'ngi tude 103 , IS indicated ; but I only refer to it for the other purpose. There fre tlXkroUhTwo^d'r' " ^'^ """ "^^ ^'^^ ^' ''''' ^^""^^^^ •^ "- "-^h of S'' ^"^"^"^ Colijer.— But not as far west as the Lake of the Woods ? Mr. MoWAT.--Yes, my Lord, and as far west as the Lake of the Woods Sir Robert Collier —Then that is in your favour. Mr. MowAT.— Yes, in that respect it is in my favour Sir Robert CoLLiER.-Thon let us see it. [The map, Mitchell's, was uhewa and explaxned to thevr Lordships]. If they give a line as far west as tZ Lake 01 the Woods it is in your favour. Mr. MowAT.-There is the line, and there is the Lake of the Woods [point- ing them oat]. n/umt Sir KoBERT Collier -According to that Canada would go on here [pointing fhl H:S tijLf '^ ''' ''''''^- '^'''' ^^ ^^^^ -^ ^^^^^ ownTerritoi^^ Halifax^l!dtheofh«r^"*if and French Dominions in North America . . inscribed to . . the Earl of Rainy Lakes and thn T ^fl ^f fU w ' ""^'n^y committed the blunder of runnin? it through Lonir and larire additional t«rrifnrv TK. A '•- ^"^ *'^'-*' ^^" ''''"* •' *°"ld have (?iven to Canada a very Mowed by theKn'uulS.\^dl^nw't,.'lll^ «t«P of the.roui 107 bi- ■ ' T^WF^m«^"^E^?f^"'^?TB=lf^'r; ARGUMENT OF ATTORNEY-GKNERAL OF OMTARIO re QUESTION OF BOUNDARY : J 'i Mr. MowAT. — That is the line which marks it on the map. It is differently- coloured. Then there iw another height of land which runs away far north, being that which divides the waters that pass into Hudson's Bay through Lake Winnipeg from those that fall direct into the bay, and if you take that as the height of land it would give us the English River. Sir Robert Collier. — This is the boundary of Canada, and there is the L,ake of the Woods. The Lord Chancellor. — It seems exacfly so far to correspond with the boundary which has been laid down, unless tiie introduction of the smaller map there \pointing to that engraved on'the corner of the larger] destroys its value. Sir Robert Collier. — At all events they treat Canada as going as far west as the Lake of the Woods — perhaps farther. Then they claim to come down near to the Lake oS the Woods. That is not very far from the line drawn by the arbitrators, is it ? The Lord Chancellor. — This surely shews it somewhat farther south than the award does? Sir Robert Collier. — Somewhat farther. Mr. Mowat. — The English River is not marked upon the map. Lord Aberdare. — The waters of the English River found their way Into Hudson's Bay. Mr. Mowat. — Ultimately, after travelling a thousand miles. Sir Robert Collier. — This [pointing] would seem to represent the Lake St. Joseph, and the other lake called the Lonely Lake, pretty much as it is here [pointing on the Ontario boundary map]. Mr. McCarthy. — But the Lake of the Woods .is too far north on that map. Sir Robert Collier. — As far as I can undersiuiud, that would represent the Lake of St. Joseph. I suppose this would represent the Englisli River. The Lord Chancellor. — Which do you say is the Lake of the Woods ? [Tk lake ivas pointed out]. Then it is very inaccurately laid down. But there is no doubt this would correspond exactly with the awarded boundary. Sir Robert Collihr. — Thereabouts, I think. The Lord Chancellor. — The Lake of the Woods seems to be shewn too far north. Mr. Mowat. — Yes, and that would afford room for the English River and some territory to the north of it in Canada. Sir Robert Collier. — The Hudson's Bay Company treat all this pink as theirs. Then they treat the brown as Canada's. The Lord Chancellor. — That chain of lakes exactly corresponds with the northern boundary of the award. There can be no doubt of the extreme inaccuracy of the proportions and distances. Lord Aberdare. — Was that map before the arbitrators ? Mr. Mowat. — Yes, my Lord. The Lord Chancellor. — Produced by which party ? Mr. Mowat. — The maps procured from the Hudson's Bay Company were put in by tlie Dominion. The idea was, as it is here now, to put in everything. The Lord Chancellor. — The Dominion will not deny, I suppose then, that some weight is to be given to it. Mr. iVTowAT. — Then there are other maps to the same effect. I have two of the original maps here. One is " A new map of North America from the latest dis- coveries." The date is 1763.* That is the very year of the cession, and this map gives tne " Bounds of Hudson's Bay by thu Treaty of Utrucht." I .shall shew that that is a mistake ; but it shews what was supposed to be the boundary. •Map No. 130, in Notes on Maps, Ont. App., p. 121. 108 OF BOUNDARY ..iMIT OK THE HUDSON'S BAY CO'S TERUITORY-WHAT THE ANCIENT MAPS SHEW. there is the L,ake arther south than 1. Jat toUaSTw^'arair''''"" '' "" ^"^^ °' *» '^°°*. b"' *= otter the wld,"'"^" Co,,t,En.-Tho company put themselves a. above the Lake of The Lord Chasceller.-Is this a Hudaons Bav man > 1 .-. McCarthv -It was not a Hudson', Bay mfp '^ ' this lt,!,T be^se"' o'nt" i'ntL™'"' 'i^TfZ "'* ""^'-f "'» '" «'Pect of e^;^ of about same peHod, and a^ewiJ^M LTbeToS o^th^ lX"^^ tt Sir Robert CoLLlEu._That is the same thin.r the im. t^ng'-iij j;;''jfr:inS',2n''„?"'""' T"i,°\ ""* " '-"y *«« .ay. I have deferred mrtLSlf ^ trWtIe?r.T'''' """f "'j?"' ">' "™ '" ««' value which the Hudson's Bav ?„L,„;f j /T'" ',' '" *« ""'y """P "f any for the purpose of inXt^^ Sr^St" "*' "■"" ""^ "™ '^"'''^ f°- "»P^ .is..^, s,e'?; n '"at;;reitX*"af t'ir:\s o??Th "''r." "- "- not disputed at the time and no doubt wil? n f K? ? .J t, ^^'^ statement was :;lJL*r The stat;me.t,;otto."sLrt.^ ^^^e^lr^ S .h. purpose of ,h.wi4 tL n^°::ii^l:'c:r^^ic'sz,:i..''''' "'"'"• '-' '» .rbit^l^r"" *^°"™-^'°" -- -- -ding from the proceedings before the ""'; """■^'^-Jes, the map being mislaid for the moment : ..«., ot'rh'reiS".' Sad™e?L™rw?:„''t°h?r'' r^^'^f.^^'^'y » co„,i<,er„Uy Frenchman's Kiver " ° ""' ""P' '""■ "» ''"<> « '!>"»■> made to out Sir Robert Collier.— Who says this ' .h.,wsert°SeTce:" ■">""''"'™' '<"■ «>« -Wtrators, and printed now for «™.i..,; and thence norttrh. tSl^ltr s"n,ii;;'r^;;„:i;i J £rB„?C'''''°" °' ip;v:.Tnr,l;;*u;7a■Toft:te'?rl„T';Li^^ f'f'""'' Bay giv.n l„ us. We have the o^e map (Mitle W „„' n ^^^^ I ''*"™'°" have •ml iKre is the other one nerS , 1 ,„or„ v!F,? u u ^""^ '"™ «°nmienti„g, i=e^ ^:=i:lf £ 3E?ESS^ Jf ■ 1 '^ ^^at ,t is the u,ap which was prob^abli prepared for is'e bv tt p'*r ''"^''^^'' Committ".^ in 1748. pit^paita roi use by the Parlianientary he boundary. IS nil * Map No. 129, in Nateg „n Map«, Ont. App., p. 121. ^ ' ^ It 109 ARGUMENT OF ATTORNEY-UENEHAL OF ONTARIO va QUESTIOM OF BOUNDARY The Lord Chancellor.— It is unfortunate that it is not produced. Can we draw safe conclusions from a reported argument ? Mr. MowAT. — There is some difficulty there ; but in addition to the statement in my argument, we have in evidence the description of what this map contains. It is in the " Notes on Maps," map No. 80, at page 136o (169 of re-print) of the Book of Arbitration Documents, and at page 109 of the Ontario Appendix, both before your Lordships ; and I cannot do anything better. Both sides made search for these maps, and Mitchell's map was found, but this map has not yet been discovered. It was left, after the . arbitration, in the charge of the Dominion Government for re-transmission to the Company. Then there are a number of other maps which shew boundaries that would not include the territory in question. Sir Montague Smith. — Boundaiies of what ? Mr.' MowAT.—Boundaries of the Hudson's tay Company. Some of theie are in Albany, and I have not been able to produce them. Sir Robert Collier. — Where do they come from ? Mr. MowAT. — I will tell your Lordship what they are. We made a list of the Maps and Notes which we had before the arbitrators, and which your Lordship will find in the separate Appendix of Ontario.* Page 116 is what I am going to refer to; map No. UO.-f- The Lord Chancellor. — There seems to have been an immense number of maps. Mr. Mow AT. — Yen, my Lord, am immense number. The turn the thing has tak .las been a little different from what we expected or perhaps some of these maps might have been procured. All 1 can do now is to refer to the Notes in regard to them. This is a confirmation of the inference one would draw from Mitchell's map, namely, that the territory in the award was not claimed by the Hudson's Bay Company at that time. The note is that the map "Shews a line exactly tho same as that of Mitchell's map of 1755, already mentioned; it is engraved and coloured, but has no inscription. The map extend3 further to the westward and to the eastward than Mitchell's, but the line stops, incomplete, at either end, at the same points as on his." The Lord Chancellor. — Mitchell's is the one we saw. Mr. Mow AT. — Yes, my Lord. The Lord Chancellor. — Which seems to make the chain of lakt.j thej boundary to the north. Mr. MowAT. — Yes, my Lord. Map 120 is also a map which is at Albany. It, also, follows Mitchell's, and therefore perhaps it is not worth while to refer] to it particularly. Then 132, on page 121, is another.^ Lord Aberdare. — Were all these ma|)s before the arbitrators ? Mr. MowAT. — These Notes were before the arbitrators, and some of the maps I Sir Robert (Jollier. — Here you state "The western limit of the map is a j little west of the Lake of the Woods," Mr. Mowat : " A Una, engraved and coloured, and marked ' Bounds of Hudson's Bay by the Treaty j of Utrecht,' commences at the point in the western limit where the line on Mitcheirij map of 1755 (hereinbefore mentioned), produced westerly, would end — " so that it con- f •The Notes on Mapx, aa printed for the arbitrators, are reprinted in Seis. Papers, Ont., 1879. No.31,|i j 1S6, I t "Oarte des FosseHsiunH AiigloiseH et FrauvuiHe* clu Continent d« rAm^rique Septentriou*l«, i7S«. ^1 Vend fc Londres ohei. . . Millar, Rooque et autres. ..." ■ J"A new map of North America. . . . 1763. J. SpiUburg, sculpt." 110 ^#r OF BOUNDARY ot produced. Can THK TREATIES OF RY8WIC , 1697, AND OF UTRECHT, 1713. y. Some of theie mmense number of thain of lakt.j the I firms Mitchell's ; only it carries the line further west— « and rnn« f>.o„ . , ■ , Then tha following, J 83, published about 1763, confirms the same view England b7Th,'Z« ''°"'' A°""°'. »l">«»8 the advantage. „b..i„.j a,„i„ ^ Then No. 144 :* Itfoi;wTrutunS.;Th?h^^^^^^ ""'^'^T'^ '^^^^3^ '^'^ Treaty of Utrecht.' north of Lake NepigoV (cros Ing however aTivV^ .''''' "^ ^^^^ ^^'^'^^^^^^ '° » f^^^^ L,.e of the Woods^t a LZTA^Z:^.:^^^^^^^^^^^^ P-^n« t'^e Sir Montague Smith.— North of the lake ? Mr. MowAT.-North of the Lake of the Woods. Sir Robert Collier: ^^J P.„in« the Lake ef the Wend, .t . distance ,t .boat half.. deg„. north of that rM^s:!"T■i;iT^Jh:t°';'l^t^e:j' -" *- "- -^-^"^^ «>- i Lord ABERDARK.-Split Lake i.s on the Nelson River ! awarded teSyTJtLnu^^^^^^^^^^ 9"^*' Tl^ ^^ ^"^ P-t of the «iver . Your LoJdship ^iKe the liSe there ' " "^"^'^^ ^'^ *^^ ^^P ^ ^^'-^ Icentu'r^ A'^^^'^-^^-The line appearing on the English maps of the eighteenth Imaps^'^t'^rnoruTo? the Enllhh 'r-'"P"^^1 '^'^^ '^'t^ ""« '« ^ -"- of these Hv4- would be'n French teiSrv ^r'' ^""'l T ^"'^""'>' '^'^■^'•«f«^« ^^at the hi.- mr;;t'of fh^Tr't^'l ""dll'^'Sn'^ i-.tablished by the negotia- Mon,sieur De T,.'c to Mr Prior H. ' '*^ ^^ ^^^^^ ^f * '"«"'«"al from b-H3se negotSu ;f ■^-;.tlS:ih:\^^ Stra,ts ^vere given up to the English, and comml^T.fJrli.! the purpose ui deciding i.ow the territory was tVrbe divided! • "A map of the British Dominiona in North America " (I774). Ill u ■'t*' ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY By the previous Treaty of Ryswick,* the riglit of France was recognized to what was practically afl the forts of the bay, with one siugle exception. .Tlion, England having recognized the right of France to all tliose forts, whatever terri- tory should be" ousidered as accompanying the forts of course went to France likewise. Then, in consequence of the success of the British arms, the Treaty of Utrecht was much more favourable to England, and England insisted upon getting the whole bay and straits, and insisted also upon France surrendering all the posts and forts that were on tlie bay, and, as I have said, commissaries were to be appointed for the purpose of deteiinining exactly where the line should be.t The Enc^lish Government gave to the Hudson's Bay Company authority to receive possession from France of these posts and forts on the bay. They were delivered accordingl y, and there is a memorial from the Hudson's Bay Company ^. declar- ~ *TnK Treaty of Ryswick, 1097. . • • , j VII Tlie MoHt Christian King shall reRtore to the said King of Great Britain all countries, islands forts and colonies, wheresoever situated, which the English did possess before the declaration of this present war. And in like manner the King of Great Britain shall restore to the Most Chrmtian King all countries islands, fort,s and colonies, wheresoever situated, which the French did i>osses8 before the declaration of war ; and this restitution shall be made on both sides within the space of six months or sooner i« 't c»n be done And to that end, immediately after the ratification of this treaty, each of the said Kings shall deliver, or cause to be delivered to the other, or to commissioners authorized in his name for that purpose, all acts of concession, instruments and necessary orders, duly made and in proper form, so tliat they may have their •^-^'^.^^j^^^j.^ ^^^jj ^^ ^ i„ted on both sides to examine and determine the rights and pre^ tensions which either of th^ said Kings h.ath to the places situated in Hudson's Bay ; but the possession of thosL places which were taken by the'^French, during the peace which preceded this present war a,id we retaken by the English during this war, shall be left to the French by virtue of tlie foregoing article. The capitulation made tv the English on the 5th of September, 1695, shall be observed according to its form and tenor ; the merchan^dises therein mentioned sh^lt be restored ; the governor of the "'^t ta^e" tl^rVl »' be set at liberty, if it be not already done] the differences arisen concerning the execution of the eaid cai tulation and the value of the goods there lost, shall be adjudged and determined by the said ^ominis^oners ; who, immediately after the ratification of the present treaty, shall be invest«l with suffi- cient authorUyf..r the settling the limits and confines of the lands to be restored on either B'de by ^ ' of the foregoing article, and likewise for exchanging of lands, as may conduce to the mutual interest and ***'' And^tolwfe'iiScominissioners so appointed shall, within the space of three months from the timeof the ittification of the present treaty, meet In the city of London, and within six "'•J'f '«' *« b«T«" from their first meeting, shall determine all differences and disputes whic i mav arise conceining this matter, Xr which the articles the said commissioners shall agree to shall be ratified by both Kings, and shall have the same force and vigour as if they were inserted word for word in the present treaty. + Thk Treaty ok Utrkcht, 1713. . t, •. • ^ i X The said Most Christian King shall restore to the kingdom and (jueeii of Great Britain, to te Kossessed ill full right f.irever, the Bay and Straits of Hudson, together with all lands, seas, sea-coastt Ih era and places situate in the said Bay and Straits, and which belong thereunto,* no tracts of land or of »ea beine excepted, whch'^''' ** l''*^'^"' I'"''^''^^*'^ ^^ *'^^ ''"^^'"=*'' °^ ^'"'"''''- ^^^ u^*""''' "^ "i If f^r^y bnM- inSeremade, in the coiid tion they now are, and likewise all fortresses there erected either before ZceheFrencl^ seized the same, shall, within six months from the ratification of the present treaty, o sooner ?f possible, be well and tnily delivered to the British subjects having commission from the Queen of GreTt Britain to demancl an.l receive the same, entire and undemolished, together with all * '« o^""-;" *" cam on ball which are therein, as also >vitli a cpiantity of powder, if it be there found, in proportion t the -aon-ba and with the other provision of war usually belonging to cannon It '«-l'"^v«^«'' provided U a it ma%e enUrely free for tU Company of Quebec, and all other the subjects of the Most Clim .an KW whatsoever to go, by land or by sea, whithersoever they l-lease, out of the larids of the sai.l bay, ioKr with all th&,^^ arms and effects of svhat nature .,r condition soever, excep Buch things as are Ibove reserved in this'article. But it is agreed on botl; sides, to deternune w,t m vear .v"ommis«aries to be forthwith named by each party, the limits whi-li are to be fixed betweni saTdBaVo Hudson and the places appertaining to the Fr..ncli ; which limits both the British "^nd J^en^ gubiects shall be wholly forbid to pass over, or tlereby to go t., each other by sea or by ^''f- Th'" f" comSai^-s shall also h.ive orders to describe and settle, m like manner, the boundaries between th. other British and French colonies in those parts . ^ , . __ — ; There were two oripinals of this treaty, one in Latin, the other in Frenuh. This translation j' '''^t I'"''";!)'^; ^i authorUvlVv ■'yv,;-tantiOm a,l .-mlr,,,," ami in the French copy - cl luux qmni ,,-p,',„l,'nlCh,i\meiH IreatiM.Ki. i ; Le Clerri°Recueii, t.nn. 1 ; Proceedings of tho Commis saries, 1 710-20. [Note, Jomt App., p. 504] * Memorial of 1719, addressed to the Lords Commissioners for Trade and Plantations (Joint Apa, n 579) iTdeals With 1) " the surren.ler of tlie Straits and Bay," which, it is added, "has been ffl^? | P:.,"^..!':..™". fi... fln,.r ,.f thp Tre.atv. at least in such manner that the company acquiesce therein, , (2) ''tiie" running "of a line between tiie English and French territories,- which, it is '.''■8«^!,f'°;''".; i done "with ut delay for that the French have, since the conclusion of peace, yi/ , in 1715, made imemrtirheadof Alba^ . . . whereby they intercept t\ie Indian trade rem ^ [ to the company's factories, and will, in time, utterly ruin the trade, , not I'^y;!'?^'^.^ ^ J=?' / 1 ,7^^ rmvirations to the company for tlieir losses and damages." as to which it is set forth that the freiu t'ok from the conn"anv, Tn full peaee, ^iz., between the years '82 and '88, seven slii-is v'.th their '-•a'g^J and six forts and factories, in which they had carried away great stores of goods, laid up for trading wnnj the Indians . , ." 112 '^W'^ W BOUNDARY : WHAT TERWTOUY PASSED UNDER THE TREATY OF UTRECHT, 1713. STi^r^St'tL^Sr^h^if ^^^ ^^^^^^^^ the companv were whicl. the treaty^provided for But h J''" '^"''"''''^- ^^'y ^«^'« ^he forts territory should go. ^ *^'''' ^^' "« agreement as to how much It is clear that the territory intended was verv near th. v, IS very important to observe this h,.P«„<^ li\ ^ neai the bay; and it to Kngland under the TreTty of Ut ej f ^^^^^^"''1^'''^ ^^^ "«' SO France after the Treaty of Utiecht wo Xl ' ^h^^^^'' territory remained to .eJed to England in [y^J Whatever remain?d''f V^^' ^u""*^^ ^^'^^ was Utrecht in 1713, went • rEnXnd u^ZThT^^^^ ^T^^.^^ ^^'' ^''^^J oi claimed by the Hudson's Bay'^Company M luZl^ f 1763 and will not be claimed successfully. But not a^one that • T nlJ f ?' 'u ^^^'^^^^^^^ cannot be actually ceded by iVance to Fn<.S . ^ ' 1 ^"" ^^^^ whatever territory was larly the forts .md t^rdtort^^^^^^^^ ZnT'^^'f '"l^' i^^^'^' ^"^ P^'*-" butce« ^^^^ ^s l i*n 1791, within the bounds o? U^per Can2 '' '''' "'^'^^'^ P^^^' ^'^^^"d^d, Engl^r^iltVert/o^U^rS^ territory claimed by The papers shew this. I refer to the memL^ If Jr^ P"'P^'^ ""^ *^« treaty PHor, of 7th January. iri3!lTragr5oToir /Sr^prdi^ -^^ ^'^^^^ ^^ ^' 3h.l ie^nZn^;t.tt\ltr t^SrClhet* shall be expressed that F..„ce has ever possessed in^hat quarter This L^Tau ^dS'tl.^.h''''! '" *'^* ^"^^^'^'^ a source of perpetual difficulties, but to avoTd the^ .£ 1^^^^^^ tentiaries the same map of North America as Lfwn 'f -xi ?*\««°t to his plenipo- of Great Britain. His^ Majesty harcTuBed to be driwn" '''' ^l^^' Plenipotentiaries escribes the boundaries in Lclf a IZltVlJ^Z^Z & 17 ' '^"f "^^^^ agree upon this point on both sides. If however fbtm !k!! i^ i .^^^ ^''^^'^ '""y plenipotentiaries%annot remove, the deds.on must h. If a T^ °^'*'"^'" ''^''^' the kued for the adjustment of the' boLdairofTnferiea.''" ^^--asaries to be The Lord Chancellor.— Have you that map ? iides, endeavoured to get. ^ ^""^^ ""^'^^ diligently, on both The Lord Chancellor.— This is of 1703 !!i' P/J!:! "*•;?" --.-.« 'setter o? wolie'^wl^reirrtivTlnT'^^^^^^^^^^^^^ Wl* l^-'l,"^ *J?«.«*'n« offic'"' «""eHpondence. mav be <..V«„ f.h„ f.ii„,..; ._... . . _ Ned and places reatored. though the saxne oxpre&^eSTn^ aXle'lt " "rSeett'^^K^^^" P'^" 8 (B.) 113 ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY : lit manuscript lines inscribed tiiereon in 1719-20, deposited in the Department of Marine and the Colonies at Paris* I shall be able to shew to your Lordships published maps of that period, but subsequent to this date, on which there is printed a dotted line which accords with that upon the map which we bring here. Sir. Robert Collie u. — Are you speaking of this map now ? ^ y, Mr. MowAT. — Yes, my Lord. The Lord Chancellor.—! see upon the map in my hands a line, coloured, which is marked as the line alleged by the English, and that seems to go betwecs Lake Nepigon and Lake Superior. It is impossible to make an exact comparison between these. It certainly would pass through the territory now given by th& award to Ontario. ' ' ^ Mr. MowAT. — That is one of the English maps. Lord Aberdare. — I see you have on the map with which you have furnished us [the Ontario Boundary map of 188 Jf] a dotted line shewing the " Bounds of Hudson's Bay by the Treaty of Utrecht." On what is that founded ? Mr. MoWAT. — I put that on as shewing that some of the maps have that statement upon them. There is no doubt the Treaty of Utrecht was never followed by any agreement. I observe my learned friends have put in a memorandum declaring that it is disputed that the bounds were never settled under that treaty ; and a sentence is copied from Dr. Phillimore's book on inter- national law for the purpose of shewing it. But I can shew beyond any sort of doubt the bounds were never settled under that treaty. The assertion to the contrary is a mistake which got into a number of the maps and books. Sir Barnes Peacock. — I think, that the old map you produce [MitcheWs] has not any date upon it. Mr. McCarthy.— Yes, my Lord. It is dated the 13th of February, 1755. Mr. Mow AT. — In several of these maps which have been looked at, and in a number of other maps, the statement is made that the boundaries were settled under the Treaty of Utrecht. It is rather curious in connection with those state- ments that the lines laid down as the boundaries settled by the Treaty of Utrecht do not agree at all. On some of the maps it is the line of 49° ; in others it seems to follow the height of land ; and in another set of maps, the line so described runs away north to Split Lake. That fact alone indicates that there must be some mistake in saying that the boundaries were settled by the Treaty of Utrecht. My learned friends think it important to make out that they were so settled. The Lord Chancellor. — What is the clause of the treaty which relates to this matter ? It is at page 504, is it not ? Mr. MowAT. — Yes, clause 10. The Lord Chancellor : '< The said Most Christian King shall restore to the Kingdom and Queen of Great Britain to be possessed in full right for ever, the Bay and Straits of Hudson, together with all lands, seas, sea coasts, rivers and places situate in the said Bay and Straits, and which belong thereunto, no tracts of land or of sea being excepted which are at present *" Carte du Canada ou de la Nouvelle France, par Guillaume de I'lsle, de I'Acad^mie Royale des ; Sciences, et premier Geographe du Roy. A Paris, chez I'auteur, 1703." At page 101 of the Ontario App. it is stated of these lines : " On an original proof copy of this map, now deposited m the Bureau de la Marine, at Paris, there appears, as an autograph addition of the author and his brother, a line marked ' Ligne solon le m.$m<.ire de M. d'Auteuil.' This line commences at the entrance | to and on the south shore of Hudson's Strait, and runs thence south-westerly (crossing the Rupert Kiverjto , about lat. 504° ; thence due west to a point south-west of Fort St. Louis [Moose Fort] ; thence north-west- ward on a direct course to the parallel of 60°. and "Another autograph addit'ion to the Bair.e map is a line, marked ' Ligne selon la pretension des AiRJoi!,' ' Ligne selon les Angloia ' : it runs from the north shore of Davis' Inlet on the Labrador coast (in about Liign 31oY f;^ !*nd through Lake M^istassm^ fn the 49th nftrnllel. which it thence foUowi to the westerlylimit of the map." . . ^ ,„„, • ^ •> .J • -^^ ^o.o™ "?'*^ '^ey were " to endeavour t,-> and thence Bouth-westwar™ bf aUne paRsC tfc^T ak^^^ SSJ" north latitude, en the Labrador^U *^ve,tward from the Wdlake%*i!;Xn9?h't«'oft^^^^^ P^-^l^lo^ «°. and tCcr ' 115 ARQUMEKT OF ATTOBNEY-OENERAL OF ONTARIO re QUESTION OF BOUNDARY ; presented by the said Hudson's Bay Company to the Lords Coniraissioners of Trade, And still remaininj,' in your Lordships' offico, was the same as the line now propoaed by your raemorialists ibr the south-east and south boundaries ; " And 80 on. So there we have this statement, that up to 1750, nothing of the kind had taken place. Then again, in 1759, we have another memorial from the Company, printed At page 587 of the Joint Appendix, in which they state in regard to the limits that "proceedings were had by the said commissaries towards settling the same; but they were never able to brini; the settlement of the said limits to a final <;onclu.sion." The Loud Chancellor. — But the inference to be drawn, seemingly, is that when they refer to the map in the negotiations which followed the Treaty of Utrecht, they refer to an English map of that date. It is quite clear, from the passage at page 500,* that there was such a map. Mr. MoWAT. — Yes, it is clear ; but unfortunately we have not been able to find it. The Lord Chancellor. — And inasmuch as there was a general undertaking in very large terms to restore what had been considered to have been taken by the French from this country, in the absence of a settlement by the commis- sioners, 1 should suppose that the British map is that which must be referred to. Mr. MowAT. — Your Lordship will give it such weight as it is entitled to. We have not the map. We have some indications of what it contained, but we have not got either map. The Lord Chancellor. — We know there was a British map, and we know there was this general undertaking to restore : " The king has sent to his plenipotentiaries the same map of North America as had been furnished by the plenipotentiaries of Great Britain. His Majesty has caused to be drawn upon this map a line which describes the boundaries in such a manner as he has reason to think they easily may agree upon this point on both sides. If, however, there should be any obstacle which the plenipotentiaries cannot remove, the decision must be referred to commissaries to be named for the adjustment of the boundaries of America.' That is the passage. Mr. MowAT. — It would be hard to bind us by the maps of private parties on a point of that kind. The Lord Chancellor. — Not at all. Secondary evidence is receivable in such a case, where you cannot get direct evidence. It is quite clear when Mitchell's map was published — the exact date appears. But the view of the Hudson's Bay ■Company was that under the Treaty of Utrecht it was within the boundary there marked. Then there was the map of 1703, when, I suppose, the elements of dispute were already existing, shewing a straight line, which runs between Lake Superior and Lake Alemipigon. No doubt there are a great many things laid down with a certain amount of inaccuracy on that map, and in matters of detail it would be .comparatively of little use, but it shews that the then English pretensions were regarded by France as being to an apparently straight line, parallel and running beyond the end of Hudson's Bay eastward. Mr. MowAT. — Mr. Chief Justice Draper's paper, which is printed in the appen- dix, and which was submitted on behalf of the Province to the House of Com- mons Committee, pointed out the variations in the position which the Hudson's Bay Company took from time to time; and that while there are some maps mentioning the line your Lordship refers to, there are other maps which give another line. . _ ^ * See the p»per», M. de Torcy to Prior, and Prior to Lord Bolingbroke, ante, page 113, text and note. 116 )F BOUNDARY ; MS. LINES OF 1719, ON DB L'LISLE'S MAP OF 1703. 0, nothing of the not been able to lap, and we know private parties on copy of tt nJrof lVc?fw\1nl"'%"^'^^ inscriptions, app^arin, upon the mpi or tne map ot 1703 which is deposited in the library of the Ministrv nf Manne and the Colonies at Paris, are not printed as suggested] by your LoSin \\e have the undoubted evidence in our nrinted dnriirn?.nta -^^ oy your uorasmp. put on in 17]9,andin manuscript* ^ documents, that those lines were The Lord CHANCELLOR.-It comes from your own clients. are the'i-e ""^ '^^" P"*^ '"^ ^"" '^' P^^'P^^^ ^^ «'>«^i"g the forts that The Lord CHANCELLOR.-For whatever purpose it is put in is or is not " Fa Mr. MovvAT.— I will have the evidence upon that point collated and mv learned friend who is with me will mention it to your Lordships ' ^ to fl^T ^««^ „^™ELLOR.-This is a map of some importance with reference to the 1 reaty of Utrecht, because the French agreed to give up certain thTna. clescnbed in very general words, under the nam°e of restifutJori^not cession ^ I th.nk It was your observation, that the success of the Encdiuh in the wTr that wa s.^ succelsfuf ■ ^^'""'''^^ ''^ "^^^^ ^^^'^^^^^ ^'^^^ to be ceded, England timeP'' ^''^'' CHANCELLOR.-YOU mean after the great war in Lord Chatham's fan«.s the c„„p„„y s™t.i„ed by the e;ea,ie,°S„t°';h™:,1>f,lt'- ° ;.-±- *! j -. -..^on i.,.„U, Hoo.. Rive,-, .„d New Severn. And proceedings ierVhad V'thJ e 113, text and note. * See, as to these lines, ante, p. 113, and p. 114, note. 117 i...j^f.-tjj^L^,-a.^..B.-^f^^-TT:^ ARGUMENT OF ATTORNEY-QENERAL OF ONTARIO re QUESTION OF BOUNDARY .-atkid comniissarieB towards aettling the same, but they were never able to bring the settle- ment of the said limits to a final conclusion, nor did the said Hudson'H Bay Company ever receive any satiHfaction for their said damages." That is what the Company itself said : " That the papers which were laid before the said commissaries and the minuteH of their proceedings, aa also a memorial relative to this matter which, in the year 1750, after the conclusion of the last war, was presented to your Lordships, remaining, as your memorialists believe, in your Lordships' office, it is conceived from thence will appear the best state of the rights of both Crowns, and of the territories and claims of the said company that can be laid before you Lordships, whereto your memorialists beg leave to refer, " Your memorialists therefore humbly hope, in case any treaty of peace shall be set on foot between this nation and France, that your Lordships will intercede with His Majesty to take the premises into his royal consideration, and that he will be graciously pleased to cause your memorialists to have full satisfaction made them, pursuant to the said Treaty of Utrecht, for the aforesaid depredations they are thereby acknowledged to have sustained from the French in time of peace, and for which satisfaction is by the said treaty agreed to be made to the company, and that the limits of the said company's territory may be settled as by the said treaty is also agreed." Then the Dominion Government, for whom my learned friends are presumed to appear here, in one of their despatches to the Secretary of State for the Colonies, dated the Stii of Februar}', 18G9,* which is to be found at page 287 of the Joint Appendix, »nake this statement (the particular statement I am going to read is at page 294, and it is a declaration of piy learned friends' clients) : " As no defirito boundary was established between the possessions of the French in the interior, and the English at Hudson's Bay, down to the Treaty of Paris, 1763, when the whole of Oanp.da was ceded to Great Britain, the extent of the actual possession by the two nation for some period, say, from the Treaty of Utrecht to the Treaty of Paris, affords the only rational and true basis for ascertaining that boundary." That is the very thing I am contending for before your Lordships now. Then, letters are published in the Joint Appendix, shewing the searches that have been actually made, and the result of them, for any such decision. For example : Mr. McDermott was employed by the Dominion Government for this purpose, and the result of his examination appears at pages 717 and 718 of j the Joint Appendix. He says this : " The boundaries of the Hudson's Bay Company, as defined by the Treaty of Utrecht, are shewn on both editions of Mitchell's map as following the height of land j which forms the watershed of rivers running southward to the lakes or northward to the bay. I do not find, however, in the Records and Correspondence of the Commissioners of : Trade and Plantations (which consists of documents in French, Latin and English), any mention of a decision arrived at by the Commissioners appointed to fix this boundary j matter and other disputed questions." That is up to 1877. The Lord Chancellor. — Those are recent documents ? Mr Mow AT. — Yes ; they are the recent investigations as to whether there 1 had been a settlement or not. We have carried them up to a very late date indeed, and we have all been searching in every possible way ; so that there is no doubt whatever that the boundaries were never settled. Mr. Chief Justice Draper, in his paper put in on behalf of Canada before the committee of the Hou.se of Commons, makes the same statement on pages 196 to 198 of the Joint ( Appendix.-)- * Seas. Papers, Can., 1809, No. 25. t Memorandum from Chief Justice Draper, Agent for the Province of Canada, submitted to th« | <;!olonial Secretary, 6th May, 1857, printed with tlie Report of the Select Committee, Imp. Ho. of Conn,, on the Hudson's Bay Company, 1857, p. 374. 118 OF BOUNDARY : THE LIMITS NEVER SETTLED PURSUANT TO THE TREATY OF UTRECHT. E tw Jttihl? Ci"Nceu,<;B:_They were at that time endeavourins to oewuado mi. luuwAi^iney are my opponents here. ** MrMowAT vT'^'r''"-,"^^"" '^""''^ ^«''"«« ^"y ^••^»'»«nt from that. T e Kt c7anoello'r X^r- ?'^- '^\!'^ r ^^^ ^" ^"^•^-"^ f-'« 'that, ri.l of L Hudson't ftfi P u '"^l' '' *h*' ^^h*'^' "'^'•'^ '^^^'•y 'anxious to get M tie Hudson 8 Bay Company altogether at that tiine. ^ Mr MowAT -No doubt ; but they would not say what was untrue Thev American contLent!" ^ '°"' '^'"^ '^'^^ * ^''^'' P°^^'°") ^^ the North Mr. MowAT.~I do not know whether the reference there is to the Hudson's ^ :Sli:.y^^^^^^^^^^^ - *« th« wlttfrritone Mr Mowfr P^.^^^^'Jr-It. «««">« to apply to Rupert's Land. thaf Jltf i"'"''- 9«ANCELLOR.-I think it may be assumed that if the effect was and \"no^!n^l' *h^^r^*« ^J" fttempt to settle the question between France ainoiSf Vw^ '^'" ^^- ^' ^* Galissonnifere was one of the commissaries r At the foof^oTT!' """^ IP"'" ''* '^^ ^^P'-'^^-^ly ^<^^t^'« that noth^ngwas :. Th T / . TT . P^"' ^•'' statement which I refer to is to be found : ; rh^ Treaty of Utrecht had provided for the appointment of connnisaionera to regu- it. fcft St^Sarci^:^^^^^^^ ^-"'1 to enter into some details respecting , the TreS" ; uKt'' undeT tZ "dLtrti„'„"'=^f ',:;L"'f "''^'f ?*^' ''^l '"^•'" ''^"^^ '" ^''^ English by there, but the excessive cold, and the difflo"ritv of H„hllitpn ''^" ',"'"'•• They carry on a profitabfe trade ments there capable of affordiTany u„Se^« L r '^^^^ will never permit them to form establinh- I ajumented, as proposed, it win ^nt^M^Kr- °?'^*_".:9/'"'^*'.,'*»^ '^ "»e strength of the latter country be Engh„i,. ^ - ! -• "•*•'""'"■ i" "»" nnic war, to w.c»l, Hud«on-8 Bay froiu'the of HltIri4V;^Yt noti'^trb;^^^^ I the treaty, conveys the idea clearly that the Kn^l^h In T^ ""■'? '■eit'tution, wliich has been used in |they„,nerluidbutafevvestabliXne'nt«nnth^^ >*" •''*'i" on y what they have possessed, and as |*dered as belonging to France! '^* ^°'^' " '' ^"'^«"' ''«'* ^''^ interior of the country is con- 119 i ARaUMENT OF ATTORNEY-OENERAL OF ONTARIO re QUESTION OF BOUNDARY : il» late the boundaries of HuJson'a Bay ; but nothiag has been done in that matter. The term ' restitution ' which has been used in the treaty conveys the idea clearly that the English can claim only what they have possesRed." The Lord Chancellor.— That is a French argument. Mr. MowAT. — We have French testimony, in addition to English te.«itimony, that the matter had never been settled ; and there can be no doubt about the fact, because M. 'de la Oalissonnifere was one of those at that time authorized to endeavour to come to a settlement. He was himself one of the commissioners. We have un official French document a little later than that too, namely, the Instructions to M. de Vaudreuil, dated Versailles, 1st April, 1755, which are to be found at page 515 of the Joint Appendix. That is five years later : " By article 10 of the Treaty of Utrecht, it had been agreed that oommisHionurg should be named on both sides to settle the boundaries between the French and British American colonies. On occasion of an expedition that the English fitted out in 1718 against the fishing posts which the French had in the islands of Oanso, the two courts did in fact nominate commissioners to decide the property of these islands. The com- missioners met at Ptiiis. At the very first conference, those of the King of England, who claimed that the islands of Canso were dependent on Acadia, which was ceded to the English by the Treaty of Utrecht, were convinced, on inspecting the map which they presented themselves, that those islands were, on the contrary, included in the reserves expre.ssed in the article of the Treaty of Utrecht containing the cession of Acadia, and that consequently France had retained the property thereof. They withdrew, sayinjf they required new instructions from their court, and did not again make their appearance. Although there had been question, on di^erent occasions that since presented themselves, of naming other commissioners in execution of the treaty, the English had always eluded it UHtil the last war ; and Sieur de Vaudreuil is better informed than any porson how they abused the moderation," — here he inveighs against the English a little— " which had always governed His Majesty's proceedings ami views, since he has been a witness of their increasing usurpations in the territory of Canada during the long peace which followed the Treaty of Utrecht." Then a little lower down there is this statement : " As yet the commissioners have not entered upon the limits of Canada." The Lord Chancellor : " They [the English] have not yet explained thenjselves respecting the extent they propose giving their Huclson Bay boundaries ; but it is to be expected that they will wish to stretch them to the centre of the colony of Canada, in order to enclose it on all sides," I do not know what value you ascribe to this document. It does not seem to me to have much. Sir MoNTAGUK Smith. — You use that simply to shew that no map had been made, or any boundaries settled. Mr. Mow AT. — Yes, my Lord. Sir Montague Smith. — You have shewn that in various other documents, I do not know whether the other side deny it. Sir Robert Collier. — You had better wait till the other .side shew there was a settlement. Sir Montague Smith. — Because that is what you have been endeavouring; to establi.sh Mr. Mowat. — I found amon<;;st their papers indications of their intention to set that up, and therefore I thought it worth while to select the evidence to shew that there was nothing in it. Then there is just one matter more which I will speak of, and I vvill thes give place to my learned friend who is with me in the matter, that he ay supply what I have omitted. I want to shew to your Lordships the po-ii on 120 or BOUNDARY ; LIMITS CLAIMED KOR UPPER CANADA BY THE DOMINION. 1869. It does not seem no map had been Ontario is setting ^^ oZririym^'jy'^ claim that the Provi/ce of advanced for a conSderabrneld h«f^ continuing a claim which had been the arbitrators ga^ us wasSy onf^ territory which on, in the strongest possUde laninZ^ If" ^-'^ °^ ^^** ^^^ b««» 'n«i«ted that Canada '-d^ta^r^;;^ ItsS^^ -7 aepirtments, may not have bef" *'^^^*^^ in charge of the particular astom.d':;?Bay'""'""~''''^' ^^ ^^'"'^ ^ suppose part of the controversy ;i:t n \£ i i^^sLrs ^-^^ ^^^'^^^^^^^ Sir Robert 00.^^7-^11' of m.Vmr ''^ '"''^^ '' ^^^ P^""«- setting ittcS'^p"^"' "^ '^"•'' ^' ^^ ^° "'^^^^ "'^ ^'^-t- I^ - the Dominion itself .hieh S:clS:ia:^^^ -. propo.,s to th« eo.p.„y, freeho.rof'rp:;rAr^^^^ '''' -•^^^ -^ «-*« the ri,ht of soil, or Lake^rtt'^od'tToth: 'i;^^^^^^ '^-t^'««^>V extending fro.n the their''optiori:t;rr^tth?rtl^"''r' 'r!' -t'^-^th-e occasions, given in favour the second kT r!Zt orS^l""!' '^"^ "--- .«» far as we are k^are. geographical extent of the terrTtory /ranted ml iTZ ^"- '',". "'^^^'^ '^^' ^he country that 'could have been rthL^y lied tth ^'^''"'1"''' by excluding the boundaries of Canada' /whioh th. K . T ,r ^ *'''' ^"^''''^ as falling within the Btat.s that Uhe "Ittiol"^' f^^ttrst;^/^^^^^^ express lords), and treaties of Ryswick and Utrecht ' «hZ,u T ""P?' **"* public occasions, as at the Acts of 1774 and 1791 ' 5^^ „„? . considered; and also 'the effect of the which we lave sli (January erhrnr TT '^ ?' ^"^ ""^'''^ '^ *''« '>o^n pany. does not even C Siw' ^' ^' ^\^^.^ "^hts of the Hudson's Bay Com- neaJy one-tiiTrd of tL Anieri'r o"uin3'"o'^^^^ present claim to the fee single of his colleague conclude theTrrepStS Sir John Karslake' and nece.wy, before any un on of RnnLv T ^ P™P^atic statement that it is 'very limits of the territory and posse^sirs Ln r\?"\^" '' '^'''''^' '^^' '^' *«•»« deHa.d.' An assumnLn thPrTl \ f ""''^' ^^^ ''^'''^'' «'»°»''' ^e accurately by any competed wlrauthoW^^^^^^ which covers so much ground, and is unsupported Canacla ; anT seeks tfsuDDlv ah .r '^""^u "'" ''"^'^'^'^ l''^'^^'' ^nd clahns of may be 'made- s to sa/'the leastaTo^t t''^ ' u """'^^ ''' '^'^'"*^'" consideration . Wo notice these points in AfrLl w?'"*^^,'''''""Pt'«" f°^ '^e company. |Northcote'srepTy%^oTrevent tie nil,. ^' letter before remarking on Sir Stafford piy, prevent the possible inference that we have acquiesced in them " aJ;:" t',(i:f f"^;. ^^H ^'-f ™«^t in the same paper, at pa^e 293. whi.h T 1. The charter of Charles II. (and for the present we raise no question as to its 121 jy»"ilfeifaff ' »Brt»fcsei*'r(.-s ARGUMENT OF ATTORNEY-GENFHAL OF ONTARIO re QUESTION OF BOUNDARY : .,yailj AT^-Yes ; but I do not say they were not there at that recent date in rMoNT^JurSMx^H^lt^'^''^^^^ They had no exclusive p^osisln S • EE^PFArip7~Th '^^ *^'^ r^'^^" ^""^ ^«^'^« «^h«r« *t that date. bu i5ARNEs PEACOCK— There is no parol evidence to shew what was in nos- 7^^it::tn^' '-"^^ '' ^^^ -^-'^^-' - ^' ^^« ^™« of the passing Sir Robert Collier.- We shall hear the other side upon this. Mr. MowAT.-Upon that Act I will add one more word, and then I will sav nothing further. The fifth section, I think, shews what the intention of The II was in that respect namely, that it was not intended to take away from any provmce anything that would belong to that province if this Act rd^notTassed because the fifth section provides this : passeu "Ifc shall be competent to Her Majesty, by any such order or orders in council as aforesaid on address from the Houses of the Parliament of Canada, to declare that Rupert's Land shall, from a date to be therein mentioned, be admitted into andbecome p t of the Domimon o Canada, and thereupon it shall be lawful for the PaSment^f Canada from the date aforesaid .to make, ordain and establish within the land and Jerri tory so admitted as aforesaid all such laws,"— and so on Now whatever territory passed by this, was territory in which the Par Inunent of Canada was to have the power of making the laws Lolul y^^^^^^ merely for provincial, but for all purposes. I submit "that we cannot reld The Act as meaning to take away from a province land which belonged to that pmvince even supposing the Hudson's Bay Company happened fo be there For instance, the Hudson's Bay Company 'had posts in the settled parts of Oil ano with regard to which there is no dispute at all. where they traded with iM.cb Indians as they could get to trade there ^ Mr. ScoBLE.— May it please your Lordships. In the observations which I shall re^^^ to your Lordships in following my learned frieml, I shall endeavour to nt^^nt whiol^r n'' P°^'^^b^«^ «.''"PJy supplementing those portions of his u^uiuent which from the very voluminous character of the papers ho has not a g ao„t wh ch [ shall offer mainly to the point of supporting the award of the in^ T^' ^' '''^^''''"^ ''y m/Wwi?g that there is a Id t ?. 1 .'T.^ ''^^' r?'^ ^T"" "^' ^'"* ^^h^«h ^^« not in fact given to us. i thin? tlJT"^ Attorney-General has intimated his consent to thisline, which r t'nlf ; ' ^T ^u '■'^'^^P' f u^'^'"? ^ '''y ^"•^^^^ient line to establish |iitry commonly called or known by the name of Canada." Now we must ascertain what the meaning of that phrase is, and it is a phrase which occurs not only in the Order in Council, but in the commission which was issued to Lord Dorchester, the first Governor-General appointed after this division was made. His commission will be found at page 400,f and it fol- lows exactly the words of the Order in Council : * fnnted, ante, pp. 47-49, note. t Commistion as " Captain-General and Governor-in-Chief of our said Province of Upper C«n»di, *nd of our laid Province of Lower Canada, respectively," dated 12th September, 1791. 126 EXTENT OF UPPER CANADA. f boundaries in the Quebec, and the Province of Lo^XZltocnZlT T'n^^'K''^ ''''' ^^'^ P'-«^i"«e of .an^n^ . .e e.W.. o. .e "^t^J^S^ :^:^.;^ JS^.-^ conveT:d'brth: ttTz^^'^s^ir^^i'x^^^^^^^ r ^^^-^^^^ ^« ^ the " Province of Quebec " areTn these two tl?rl ! "? ^^'l"'^- " ^^^^^^ "^^^ terms ; and your Lordships will Ld t^atTn allX K r '"^'^ ^' interchangeable Government which were entered unon in 1 subsidiary acts of the Canadian vince into two parts, Ts for instanceTnT>.r"''?'"'f- ^^ '^'' ^^^^^«^«" «f the pro- C..M . .7.%. page -r.nL';jsi-^rSe:'.^--r-^S;r.' And Lieutenant-Governor Clarkfi nnHolnr, fU • l- -, used in the Order in Council a^dtLworTlsedi '""^ ."-^« communicates with Mr Dundas thpn <^«T.fo T ox . l.t.». dated l,t Dece:nbeM79l tZ f^:tl ttC^T "^ ^""j'^"'' ^i^ St SiSiS £3'^-- i/s?rr-= Upon examination, I observp thnf T n-^ n u ^ , leieinng . Council, respecting the biundarLs of tht tl ^'''!'^''*'''-' commission and the Order of as the difference li^s only in whTti^ep^^^^^^^^ precisely the same; but a variance between them^ and is theVeLtTeSectirimmaLlf '' ^ '^™^'^^^ '' ''' ''^ Kn^titutSLrwCpt^^^^^ identical with the country ^lulfortnlZ^ti:' n^^^^^^ *« ^^ S ScoL''T''T- p^°" •'^^^'^ the province which was divided -nntyi^oTAVlTnll^J^T:::,:^^^^^^ thesfme-as the practically interchVngeabir ' ^''^' "' ^'- ^'^^'^^^ «^3^«' '^e words were the SZsiSr^^::^^?— ^^^^ ^^ ^^^^ '^'^ --^^ ^- yo^ west a^d'rhVtLTbTun^d:;'; 'in^aS tl^t'!?^'^ ""^^^'^ ^\''^^' ^« *° ^^e west and south Ontario is enS,Z::LTj:'^^^^^^^ ^^^"»^ *« ^^- Lord ABERDARE.-Which was the boundary line ""'''' '^^'''''■ stn^^TSoLLSt^'V'':^' ^" PT* .'^^ ^"^^^^ "f*-- *« <^he east, oir itoBERT OoLLiER.— It IS this one [pointingl Mr. S. OBLE.— Yes, that blue line Mr ScomI ^*^^"f -Y«u have all that is west of that. /*! * Printed anle, p. 50, note. 127 ARGUMENT OF MR. SCOBLE, Q. C, re QUESTION OF BOUNDARY : Then in order to ascertain what the Province of Quebec which was thus divided in 1791 was, we must go back to the Quebec Act of 1774. The Lord Chancellor.— We must break oft here. It may be convenient .to counsel to know that the Council will not sit on Friday. {Adjourned to to-mon'ow.] r\ ^ THIRD DAY. I Thursday, July 17th, 1884. Mr.SooBLE.— When your Lordships rose yesterday, I was commenting upon the operation of the Constitutional Act of 1791, as continuing the Province of Upper Canada, constituted by that Act, with the same amount of territory as was given to the western portion of the Province of Quebec under the old description under the Quebec Act. And before I leave that part of the case, there is one other ■document to which I wish to refer your Lordships, and that is the proclamation of Governor Simcoe, which was published in 1792, consequent upon the promul- gation of the Constitutional Act. Your Lordships will find that proclamation at page 403 of the Joint Appendix,* and in that proclamation, after reciting the * Proclamation of Lieutenant-Governor Simcoe, dividing Upper Canada into Counties, 1792. J. Graves Simcoe. George the Third, by the Grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, etc., etc. To all our loving subjects whom these presents may concern : Whereas, in pursuance of an Act of ParliAment lately made and provided, passed in the thirty-first year of our reign, and of authority by us given for that purpose, our late Province of Quebec is becdnie divided into the two Piovinoes of Upper Canada and Lower Canada, and our Lieutenant-Governor of the said Province of Upper Canada, by power from us derived, is authorized, in the absence of our right trusty and well-beloved Guy, Lord Dorchester, Captain-General and Governor-in Chief of our said Pro- vince of Upper Canada, to divide the said Province of Upper Canada into districts, counties, circles or towns and townships, for the purpose of effectuating the intent of the said Act of Parliament, and to declare ^nd appoint the number of representatives to be chosen by each to serve in the Assembly of the said Province. Know ye, therefore, that our trusty and well-beloved John Graves Simcoe, Esquire, our Lieutenant- •Governor of our said Province of Upper Canada, in the absence of the said Governor-in-Chief, hath and by this Our Proclamation doth divide the said Province of Upper Canada into counties, and hath and doth appoint a,nd declare the number of representatives of them and each of them to be as hereinafter limited, named, declared, and appointed; that is to sa That the first of the said counties be here- after called by t.ie name of the county of Glengarry, whic, county is to be bounded on the east by the lines that divide Upper from Lower Canada, on the south by the River St. Lawrence, and westerly by ♦he easternmost boundary of the late township of Cornwall, running north twenty-four degress west until it intersects the Ottawa or Grand River, thence descending the said river until it meets the divi- sional lines aforesaid ; the said county is to comprehend all the islands in the said River St. Lawrence nearest to the said aounty, and in the whole or greater part fronting the same. » ♦ « That the seventeenth of the said counties be hereafter called bv the name of the county of Suf- folk : which county is to be bounded on the east by the county of Norfolk, on the south by Lake Erie until It meets the carrying-place from Point au Pins unto the Thames, on the west by the said carry- ing-place, thence up the paid River Thames until it meets the north-westernmost boundary of the county of Norfolk. ' ' That the eighteenth of the said counties bo hereafter called by the name of the county of Essex, which county IS to be bounded on the east by the county of Suffolk, on the south by Lake Erie, on the wast by the River Metroit to Maisonville's Mill, from thence by a line running parallel to the River Detroit and Lake St. Clair, at the distance of four miles, until it reaches the River La Tranche or Thames, thence up the said river to the north-west boundary of the county of Suffolk. That tho ninfcteenth of the said counties be hereafter called by the name of the county of Kent ; which county is to coiriprehend all the country, not being territories of the Indians, not already included in the several counties hureinbefore described, extending northward to the boundary line of Hudson's Bay. including all the territory to the westward and southward of the said line, to the utmost extent of the country commonly called or known by the name of Cwada. • • » Of which our loving subjects and all others concerned are to take notice and govern, themselvea Accordingly. In testimony whereof, we have caused these our letters to be made patent, and the great seal of our said Province of Upper Canada to be hereunto affixed. Witness our trusty and well-beloved John "If! "i'™^*'*'.. t!''"""*' tt!! Lieutenant-Governor of our said Pr< vinoe_of Upper Canada, and Colonel Cir.,,,..,an..;r.g- n!:r ..~.r.-^s_;r, ._i-pri- Gaiiada, ct-c, etc., at our Governmii-it UOU86, iu the Town of KillKai-o", thu Sixteenth day of July in the year of Our Lord one thousand seven hundred and ninety-two, and jn the thirty-second year of our reign. Wm. Jarvh, Secretary. J G S 128 EXTENT OF UP. OAN.- -BEARINQ OF LIKUT.-GOV. SIMCOE's PROCLAMATION OF 1792. NTO Counties, 1792. , King', Defender of the md govern, themselveji -"to divide the said Province of Upper Canada into districts, counties, circles or towus and townsh.pH for the purpose of efiectuating the u.tent of the said Act of Par' lament, and to declarn and appoint the nun.W of r.-prosentatives to be choten by fach to serve m the Assembly of the said Pro\ ince." ^""sen oy encn The number of the counties apparently constituted by that proclamation SrTed °"''*'^"*^^ °^ ^hi^l^ i« called the county of Kent, and is thus "That the nineteenth of the said counties be hereafter called by the name of the county of Kent, which county is to comprehend all the country, not bein^ territories of the Indians, not already included in the several counties hereinbefore described extending northward to the boundary line of Hudson's Bay. including all the territo 7^ the westward and southward of the said line to the utmost extent of the country com monly called or known by the name of Canada." ^"u"iry com Now ray Lords, that constitution of the county of Kent appears to be important in two ways. In the first place, there appears to iiave been certain territories of the Indians-Indian reserves-which were not intended to be mcluded m this county for electoral purposes, and the boundary of the county on the north was taken from Hudson's Bay itself, and westward and southward. Canada'' ''"""^'"^ commonly called or known by the name of TheLoRDCHAN0ELLOR._You will observe that in the Act of 1818,at the bottom of page 409, there is a reference to an Act of Upper Canada passed in 1798-that IS six years after this date-for the better division of the province. I referred to It yesterday, and I find that that contains-it is 38th George III, chapter 5— a wo™ * great number of counties, and the last section. 40. is in these "That the counties of Essex and Kent, together with so much of this Province as is not included within any other district thereof, do constitute and form the Western Dis- trict. Here, in the proclamation, you have been referring to the eighteenth and nineteenth counties : are those the two counties of Essex and Kent ? Mr. ScOBLE. — Yes. The Lord Chancellor.— In this Act nothing is said that indicates any bound- ary; but m the proclamation of Lieutenant-Governor Simcoe there are very important words indeed : ' • 1 J j° ''°™P'"®^®'^'1 »11 t'le country, not being territories of the Indians, not already included in the several counties hereinbefore described, extending northward to the boundary line of Hudson's Bay."' You say that " the boundary line of Hudson's Bay " means the sea, Mr. ScoBLE.— Means the bay itself— the coast of the bay. The Lord Chancellor. — That appears to me to be a strong proposition from the words " boundary line." Mr. Scoble.— I apprehend the boundary line of the bay can only be the coast line of that bay. The Lord Chancellor.— It does not refer to a natural boundary ; it means a territory called the Hudson's iJay territory. ±nc uuiiu ritiLyijjiiixNx. — J 5 IS an uunearu ol thing, and. as a geographical expression. I venture to say, utterly unknown. I 9(B.) 129 >i ••; ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY : ? ?, The Lord Chancellor. — Hudson's Bay territory of course : the words are per- fectly sensible as applied to it.* Sir Robert Colliku. — You hardly require to take it so high as that. Mr. ScoBLE. — I require to take it as high as Hudson's Bay on the east. Sir Robert Collier. — James' Bay ? / • Mr. ScoBLE. — That is a portion of Hudson's Bay. **' The Lord Chancellor. — That would have no place in the county of Kent The counties of Kent and Essex are the westernmost part of Canada.t Mr. ScOBLE. — Under the proclamation, the county of Kent was to include all the lands of Upper Canada (not being territories of the Indians) outside the limits of the other counties, and extending to the most northerly and most west- erly bounds of the province. But it is quite suflficient for my purpose if your Lordships should take it in that way. Lord Aberdare. — You still leave undefined what is the limit of Hudson's Bay. Mr. ScoBLE. — Ye.s. Of course, what I am most concerned about now is the western and southern portion of the district. Sir Robert Collier. — In one respect it does go up to Hudson's Bay ; it reaches James' Bay, which is part of it. Mr. ScoBLE.— Yes, of course. Then, my Lords, that is all I think I need trouble your Lordships with, with regard to the arrangement of 1791, and I now must go back to the state of things established by the Quebec Act of 1774. The Quebec Act is printed at page 366 of the Joint Api)endix, and the preamble recites a royal proclamaftion of the seventh of October, in the third year of the reign of His Majesty King George III— that is 1763— whereby His Majesty " thought fit to declare the provisions which had been made in respect of certain countries, territories ant" islands in America, ceded to His Majesty by the definitive Treaty of Peace, concluded at Paris on the tenth day of February, 1763 " — Your Lordships will see that the preamble goes on to state : " And whereas by the arrangements made by the snid royal proclamation, a very large extent of country, within which there were several colonies and .settlements of the sub- jects of France, who claimed to remain 'herein under the faith of the said treaty, was left without any provision being made for tlie administration of civil government therein." I shall presently have to call your Lordships' attention to the districts which were there referred to. Then comes a recital as to sedentary fisheries which is unnecessary to be dwelt upon, and then the enacting part goes on toYleclare— "Thatalltheterritories, islands and countries in North America, belonging to the Crown of Great Britain, bounded on the south by a line from the Bay of Cdaleurs, along the high lands which divide the rivers that empty themselves into the River St. Lawrence from those which fall into the sea, to a point in forty-five degrees of northern latitude, on the eastern bank of the River Connecticut, 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 tliroiigh the Lake Ontario and the river commonly called Niagara ; and thence along by the east- ern and south-eastern bank of Lake Erie, following the said bank until the same .shall be intersected by the northern boundary granted by the charter of the Province of Pennsyl- * The words " boundary line of Hudson's Bay," appearing in the orders in council, and commission, of 1791, and in the proclamations of 1791 and 1792, and continuing in the Governors' commisBiona upto 1835 were changed in the subsequent commissions to the Governors— from 1838 to 1846— to the words, *• il-r,r- .-.' Mr.H=r,*'.'a Hav." th!!.". indieatin" the true inter^rst&tio!! of the 6Xt>rePsio!l li*6d in the earlief documents. The arbitrators in their award gave effect to this view, and their lordships in the end adopted* t The easterly boundary line of the counties of E^sex and Kent, or either of them, as then consti- tuted, produced northerly, would intersect the shore line of the Bay, 130 THE WESTERN BOUNDARY-BEARWG OF THE ACT OF 1774 AND THE TREATY OF 1763. the words are per- ! limit of Hudson's OMo ; but in oa«e thZid '^^.l^^ Z7Z]TZl ^ '°?'^''^^. ^'"^^ '"^^ tl,M. following the said bank until itlhlu I } IH be found to be so intersected, ^lu I be nearest to Z norttwPstern a,r^^^ that point of the said bank which tl.once, by a right line, to tt si ^ ort^Jltn ^nd^ of th""";' ^^ y»-nia. and alo„. the western boundary of the sai^p^vTc^un'S sfri X^S 'Id a^ the bank of ,he Ba.d nver, westward, to the banks of the Mississip^ ■' ' ^ '°°« Riv:;o{;io'^?hli:fd::r^^^^^^^^^ -^e- the boundary strikes the boundary of the province ^S western hn^r/'^'^- "'^''' "^"'^ ^ ^^^ ^^^^^era fron. theVint at^whiTthe '^:::!;^^^^^ rerSlhr ^ ''''''''' north";:;d 'To" t t'u'h^ri'Zndaty V nr [eVt *'^ '''''' 'J ''' ^'^^-'PP'' -^' Adventurer, of England tracing to Hudson's Bay -' ^'^ ^™"''^ '"^ '^' ^^''^'^^^'^ Articl'e'i^Tthriril! ^-''^ ''°" ^?''J'''P'' ""*''"'y «»■■ """ in » moment.- , all rights, acquired by trea ror otLrwTse ^T.i t ti^.7Z"'X%'^'T''^' ^T^''^'"'^ ^^^ I Ihen flip aa^T^ni-u „_i.:- 1. t ii • i . h.2^^Wdressi^^ '''"'''''' '■^'^y important on the point I am •Artiolea 4 and 7 of this Treaty are printed ante, p."36."l[Uii~ +The commission to Sir Guy Carleton. of 1774 181 ARGUMENT OF MR. SCOBLB, Q.(3., re QUESTION OF BOUNDARY " In order to re-establish peace on 8olid and durable foundations, and to remove for «ver all subjects of dispute with regard to the limits of the British and the French territories on the continent of America, it is agreed that for the future the coiitines between the dominions of His Britannic Majesty and those of His Most Christian Majesty in that part of the world, shall be (ixed irrevocably by a line drawn the middle of the Kiver Mississippi from its source to the River Iberville" — The Lord Chancellor.— Wliere is the River Iberville ? Mr. ScouLE. — It is down south, near New Orleans: ' — "and from thence by a line drawn along the middle of this river, and the Lake' Maurepas and Pontchartrain to the sea." Now, my Lords, the fixing of this line of boundary between the French and English possessions in America, from the source of the Mississippi south, extended, I submit, the British possessions ceded by the treaty to the whole of the Fronch possessions which were on the east side of the River Mississippi, from its source southwards, and included therefore, as your Lordships I think will not be asked to doubt by my learned friends, this Country of the Illinois — this triangular bit of country between the two rivers, the Ohio and Mississippi. Sir RoKERT Collier.— Is it called Illinois in the map ? Lord Aberdare.— There is a bit called Illinois, but the fact is that the Illinois is a very large district. Mr. McCauthy. — I think it is marked on the map. Mr. Scoble. — I will shew your Lordships presently, the botindary of the | Illinois as given at the time by the authorities. Lord Aberdare. — Does anything turn upon it ? Mr. Scoble. — I do not think much turns upon it. I do not think it will be I contested that the Illinois country was part of the country ceded to Great Britain | by the Treaty of Paris. Mr. McCarthy.— There is no doubt about that. The Lord Chancellor.— Your argument is this, that the boundary line of I Canada, under the Quebec Act, runs up the Mississippi, otherwise there would have been part of the British possessions omitted, and not included either in | Canada or in any of the States ? Mr. Scoble. — Yes, a part would have been left entirely out. The Lord Chancellor. — And that argument is supported by the express terms of Sir Guy Carleton's commission ? Mr. Scoble. — It is. The Loud Chancellor.— And as you say, it is perfectly consistent withal reasonable interpretation of the Quebec Act itself? Mr. Scoble.— Quite so ; that is my whole argument on the point. The! proclamation,* as your Lordships may remember, that is printed at page 351 1 •Royal Proclamation of 1763, estahlishino Quebec and othbr Provinces. George R. Whereas we liave taken into our royal consideration the extensive and valuable acquisitions i. America, secured to our Crown by the late definitive treaty of peace, concluded at Paris the ICthdayl of February last; and being desirous that all our loving subjects, as well of our kingdoms an of our I colonies in America, may avail themselves, with all convenient speed, of the great benefits and advan- 1 tages which must accrue therefrom to their commerce, manufactures and navigation, we have tlionghtl fit, with the advice of our Privy Council, to issue this our Royal Proclamation, hereby to publish srd I declare to all our loving subjects that we have, with the advice of our said Privy Council, granted am I letters patent under our preat seal of Great Britain, to erect within the countries and islands ceded Md I confirmed to us by the said treaty, four distinct and separate governments, styled' and called by thenamei| of Quebec, East Florida, West Florida, and Grenada, and limited and bounded as follows, viz. : I First, The government of Quebec, bounded on tho Labrador coast by the River St. John, and from I thence by a line drawn from the hnad of thAt river, throush the Lake St. John to ths =.".-.!t;h J^nt! ^-f th:' L,ake^ipi88im; from whence the said line, crossing the River St. Lawrence and tiieLake ChamplaiDijj forty-five degrees north latitude, passes along the high lands which divide the rivers that empty themselvei I mto the said River St. Lawrence from those which fall into the sea ; and also along the north coast of tku 132 UNDARY ; 1118, and to remove for ritiah and the French le future the coiitines His Moat Christian y a !in»j drawn THE ROYAL PROCLAMATION OF 1768. Iberville "- 3 river, and the iake' veen the French and ippi south, extended, whole of the French ippi, from its source ik will not be asked — this triangular bit ;he fact is that the he bofindary of the not think it will be ded to Great Britain the boundary line of lerwise there would t included either in I out. rted by the express! ly consistent with a j 3n the point. The I 3rinted at page 351 1 I Provinces. tithtL'lTiic^uWt'oU^ '«-*-y ceded by this t^aty, Quebec, the government of East ?loHd! the'^' Provmces-the government of the j^overnment of Grenada The ^ovrrLi^^ ^''^ Florida, and is defined at page 352 to be boJnSed L thTs ^ly ' "''* "^ '^''' ^""'^ and fro^TeZTyTutt^^^^^^^ by the River St. John. to the south end o^f the LaCNipTa".n frofn °h *'''\f'^ 57"«'' ^''« ^^' «'• ^^^n St. Lawrence and the Lake (^.amSl n in fo'tv fi ^ '''' ""'^ 'J""' ''™««'"« *»>« «i^«'- .he high lands which divide the r^vera that «L. fu^'''', ""'"'^ '****"''«' P^««» ••""g Lawrence from those which fall into the ««^ -^ ^ themselves into the said River St* des Chaleurs, and the coast of he Gulf of Tt ' tT ° *'°";? *^" "°'"**> '="•'«* "^ *ho Baye crossing the mouth of the River St Lawr«n ^"^T"'' *° ^''P" f^"**'^"' ""^ fron. thence terminates at the aforesaid Alver St John " ^ """'' ' °* '^^ ^'^"''^ *»^ A"*''^"^". 'S;^Scr K^'-XTtd^^^^^^ us nothing about the western boundary ? t^^f^^^-toTZ^S^::&^Z^,^^^^t.^ by the Gu,f „f Me.ieo an. the Ocean an^T^K'"'"': *" \^^ "'""■«« "' St Ma^yTRivera ,d 1,^'^^^^^^^^ '"tt'' ^^'^'^ ""' Catahouchee Ocean ; and to the east and south by the Atla.itlo (Wan »nH /h. o*»°"/|?, "f.'*"* »^"^ "ver to the Atlantic within !"x leaKues of the sea coast. ° '''"'" ""'' '*>" ^iulf of Florida, including all the islands ani.i.;dfithi;rsr.:~ ward by the said lake, the Lake MaWoas Tnd ?h<.V ,R?>^*''.'="^* *° Latce Pontohartrain • t . the we»' eMt fr„,n that part of 'the River Mis iE which L^'in^'fh-r""''PH' '' '° »''« northward by a Inedrawn to, and carried on upon, four said Privy Council, j Gove^;,^^;;^;;,;::^,-^'™-^ 'y.ng upon the o'^d'oo^ nr^^rl^Z^l^^r:^^^,^^':;^ '"'rif'iS'r-^f^^'^Zn^^^I^r^^^^ P-ince of G.rgia all ktthe.seSrdoL^rtatTfTna'^l^^^^^^ *° °- -'--^ and the security of our colonies ':"!,: «"'d not be molested or dist,'rben\^fpoT„'';8lr„f"! f""nected, and who live under ouproeo: ls=th^--ir--£^^?o?Sx^^ its. for latiHu hov^nr) fl.,. i j.. _<. ^l r valuable acquisitions in I led at Paris the ICthdayj : our kingdoms a.s of out I great benefits and advani igation, we have tlioughlj n, hereby to publish sihI j rivy Council, granted am I 'ies and islands ceded and I d and called by tli« names | ks follows, viz. : River St. John, and from] id the Lake Champlaio ii I ers that empty themselrHJ yng the north coast of tk« i ■"• •- —"""'"'u, are reserved to the Sctlv f rbid "^"™ ^'>'?'' f^» '"'^ 'h« ieT fn u the w'est'a^d'north^'iT"" 'T''^ '■'!,*'"' -««'warW?h^ IwKfev . '"'•ruP*'" °f """• displeasure, all our lovingsubrect frnr^ T ^ afore,said ; and we do heieby |tht';r,;;r«;:^^r:r^'-i'f -/ °^ '•>« '-draVre"r'eCe2:Titro::;"o^.,::'i^.ei^f- - - I '.line r » •vlate.s to th; said Pro1;inc^-of''Quebee ^' wa^'WoW?' "^'\',"i'' ''^^^'^ Proclamation, " fo fa ^y of May, one thousand sevenTundred and sev^n.'l'!!!"?!""^''' '"''' '"'^J« void, from and af «-^a. Of m;;: or?h=T^-^si--j^d: :^ 133 ■ >r as thii after th ARGUMENT OF MH. 8C0HLE, Q.C., re QUESTION OF BOUNDARY: exfcendinff those hnunnf^'r"*^ */T* t"*^ ''■"nfidence in your loyalty, integrity and ability, do, by these pre.e,m eZh iihtf .?'l r^r'l''^ Lieutenant-Governor and Superintendent of the Post, audits Dep., ,|encif^ established, or to be established, within the Illinois District, in Our Province of t;uebeo, in America: To i'tfh' u^lt' ^"^T^^"" a>?d. enjoy the .anie. from and after the first day of May next, dunng our , N a ure, with all the rights, privileges prohts perquisites and advantages to the same belonging o5 an, e t liningi rene^^l .^H r "^'^ ''}%\>^^r^^^'^ directions as you shall, from time to time recefve from Our C: Pt* ^ Thief o? O f:'I!f^p"'""•*^'"^^ of our Provmce of Quebec, or from the Lieutenant-Governor or Commander in-uniei oi Uur said rrovinoe for the tune bems. Given at Our Court at St. James's, the seventh day of April, 1775, in the fifteenth year of Our Reign, By His Majesty's command. Dartmouth. 134 lOUNDARY: THE MI8M,S.srPP,_,TS nEMOT..«T HOUHCKS-ERRURS OF THE OLD OEOGRAPHERS. is to the west of the )..,tela„ noted upon^'ii-iSut^tr^Ku^-l'c^i'''' ^'"" '"'""»■ Mr. SC(,1,LE.-My Criend Mr. Robinson say, it ie 1755 Mr. Ro„,„»o»._Ye,. my Lord, that U correct. Woods *^® north-western angle of the Lake of the whioh sppnm fr> TY,« f„ 1 ii ''"ywii lo ue tne whole ot the lakes and river g,.i,.'a,ra?Ihe"?^i™,f-;J'ete„?,T" '^'™""' "'-» "-'»"»<' ".wn, a, • Mr. ScoRLE.— Yes, my Lord noJnJ^Zl. 'ildX"]s7h??" '• '^ Pf^^ "'^^^ *^ P'---* -« have heard sc.ms to hJe Z tmm Lake ?tlr''f ?* "'' ^''^l''" '•°^' ^'^'^^ the award ^-i'tr ^'^^^^^ -- ^"' "^^ ^""^^^^ ^' ''' time when the Question r.fH?! I " the boundary, in the year 1796, at the w. and L-ss sL:L\tlz SzL%??i-\rrt;o;" the A'g?nro7'the No^th wZf^o"" ""''' '.'^7 -^^^^P^Me to the«e gentlemen, that is, to was thon known onlv fn fi,» ''' ^^mtea istatcs. . fne source of the Mississ ppi furtl... north Zn Sl^L^o^M" W^:."' "^ '^" '"^ ^'^'^^«' ^'^^' ^^^ ^PP^^ *° '« fiom^the^dtsS?n''^"7^.''^- '* ^^' '"PP^^^^^ *« '^^ ^^^t^^'-'-d from it apparently M ScoB?K Yel nrr .'" T^ '*' "^^^ f^^"'"^"^'^ -^^^^^ we ffve had?' knowledge whethTr^UsrburTh.. f ^"■' 7^^*^, ""^ ^"«^ ^^ '"^ «^" n,-.!. x,^ wuemer ic is so, but 1 liave heard, and I think ohp nf i.^,,,. T.o;,ioU;^„ Slttr; '^"^™'"''7,""^^ ^'^'h^* "^^P^f Mitchell".., which VrVaUva'ver'; ^n^poUaut map historically, because it wa^s the only map before Ve English and 135 ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OP BOUNDARY i 111 ' * American plenipotentiaries when the Treaty of Versailles wan negotiated, the source of the Mississippi is taken to be n^^ of this north-west angle of the Lake of the Woods. The Lord Chancellor.— How does the map appear to be dated 1765? It was supposed to be dated 1783, or earlier, from which I inferred that the date was uncertain ? Mr. ScoBLE. — My learned friend, Mr. Robinson, tells me that the date is on the map. Mr. Robinson. — Yes, the date is on the map. Sir Robert Collier. — It is said to be 1755. Mr. McCarthy. — [After referring to the map] It is dated 1755. The Lord Chancellor. — Then that becomes a very important map. Mr. ScoBLE. — Yes, my Lord. Then at page 62 of the same report, your Lord- ships will find, in the last paragraph on that page, a statement of the origin of the Mississippi River, in Turtle Lake :* " Turtle Lake, the head of the Mississippi River, is about four miles square. Its small bays give it the shape of a turtle. This lake was supposed in 1783, to be further north than the north-wpst corner of the Lake of the Woods, and this supposition led to the error in the treaty of that year. The error arose from the fur traders who ascended the Upper Mississippi counting every pipe a league, at the end of which it was the habit to take a rest. Mr, Thompson found these pipe distances to be as unsubstantial as the smoke itself, and that each, instead of three, only measured twc niles And the error was, not to make due allowance for the sinuosities of the river. By this false method of reckoning the notion had arisen that the head waters of the Mississippi were 128 geo- graphical miles farther north than Mr. Thompson's survey proved them to be. The north bank of the lake is in latitude 47" 38' 20"," and so on. Lord Aberdare. — Where is Turtle Lake ? Mr. ScoBLE. — It is shewn on the map. The Lord Chancellor. — It is a very small lake. Lord Aberdare. — Turtle Lake is the northernmost source of the Mississippi, as Itasca is the furthest point from which it draws its supplies. Mr. ScoBLE. — I think so, my Lord. The Lord President.— It is the point furthest north. Mr. ScoBLE. — The fact of the ignorance which prevailed as to the extent of the Mississippi River is, I think, somewhat important with regard to this enquiry, because, as the King of France ceded to England all the country east of the Mississippi, from the source of that river down to the sea on the south. I apprehend that the boundary line of Canada, at the time of the treaty, and at the time of the Quebec Act, was .supposed to go very considerably north of the Lake uf the VVood.s, n ! that when you got to the source of the Mississippi River, continuing the western boundary, you would have to take, as that continued boundary, whatever was the dividing line on the north between Louisiana, which' remained to the French under the Treaty of Paris, and Canada, which by the treaty was ceded to England, and that therefore the true western boundary of Canada, as defined by the treaty and the Act of Parliament, was a line which extended along the banks of the Mississippi to the source of that river, and then followed westerly whatever was at that time the dividing line between Canada and Louisiana. But before I lenve this point, of the due north line taken from the confluence of the Missi.ssippi and Ohio rivers up across the American boundary into Canada, I think 1 may h^jre conveniently refer, although I shall not do so'at any length, *See ante, p. 39, note. 136 JUNDARY I EXTENT OF THE FRENCH POSSESSION-JUDGMENT IN CONNOLLY .. WOOLRICH. that the date is on of the Mississippi, necessary for me to 0a ovpr flm fo,.fc ^e au x ^'""aiua case, mat it is not been followed even by t^e court 'of t^^J'cZ ^'' t,"' '^?' «^^ ^^« "^'^ was a Justic'e'orthe Superior Court of th.T ^- ^°^f Canada judge. He- wa.s not inelu(ied in the limits of thp Hnrl w if n ^habasca country Crown of France, because he sav-ifannT,. f '^ ^"'"P^'^y. ^'-\ belonged to the Sir MoNTAr TF SmTw WK ' "PPeai-^ to me to be beyond controversy"— oir iuuNfAGUEfciMiTH.— Where are you readincr ? •'^ pa.t Jti^U-wesJ^^I^Sc^^ ^S- :;^ ii™it:i;;^t l!^\^ts^ - s s'^rLE^-Y^r'^"-"^''"'"^^ " ^ -^^^^ ''^^'-'^ thinSth :eT • Lord ABERDARE^And in another water system ? with,^^he'liSs~of'can"«i]f""' ^''^''1.'' '\' J"^^"^'^"^^' ''' ^^« "'^I'^ded^ Hudson's Bay Company ^'^'' """"^ ""'' "^'^"^ *^^ '^^"^'^^^^^ ^^'^^^^d to the tlu. iLt'o^CanStr^'^"--''''^^' ^^" ^^" ^^y-^^^^ ^^^^basca is within the Mr. ScoBi.E.— Yes, my Lord neccwit w?tEfn*?hT'^'''/ " '°. 'Y' '^"'''" *« '""'<"T of tha Dominion ; „„t Eonot0^n«,f f^i'^T-f ft Canada, but withfn tlie teiritory of the \lr SrL, .. w .S- o' "'»«l>. Atliabasca l,a, been carved »s a Distriet 1 ,it alteration in the western limits from those established by the 1-lth of the King, extending them west- ward without reference to the limits of Quebec, in such terms as plainly indicate the intention to compre- hend all tlie country conquered from France, under the name of Canada, which had not been relinquished t.) the United States of America, or secured to the Hudson's Bay Comiiaiiy, or de.«ignated as Lower exto: J^rl Selkirk is pleased to sav that the Chief Justice of Upper Canada declared that his jurisdiction nded to the 1 acifac Ocean ; his Lordship must have been misinformed j I never did pretend to pro- 138 lUNDAHY .XTENT OF UPP.a 0«„._„p,»,o» o, „,,,, ^„^^,^^ ^^^^^^^^ ^^^^ )K Maitland. t:'::n'Zjfj^?^':^^^^^^ pending in the year 1819, opinion in a letter to Lir.^JetrG^'etr MTttd '"''"^^'"' '^ ^^^^^^^ ^^« ?; SWr-.^'^ttT''?"-^.'''^ ^^ "«^ «-" - >'1--I opinion ^ Selkifk^n^l:t[^t^thrL^{il''r.1;l^^ T ^^"^^ ^o^a-untbyLord Cliief Justice Powell vvas alfeled To W^, ' *1 *« r^'^^^P'-e^^ions which explain, and he does explain He savsS "f^"!' f^^.^^en he was required to find it about Hue 15 -of the .rovemmenHn >"t^nt.on-your Lordships will was to extend the western liLFtToTSl^pt^Sa'Sr-"' the Province of (^aebeo inte„y:tt:;£ra,r r ':Lt;^tt:;7,-°' ^^^^^ - •^•^^-'^^ ^"^-*« *^e Canada, which had not been relinauishedTo tTlTTr/o"" ^'"''"''^ "'^'^«'- ^^^^ name of the Hudson's Bay Oo^pan^/orT^iXd^^LLTca'!" °' ^^ °^ — ^^ in th^ltt^eTo^f ^cSSloS ^^^^ ?« «P-- expressed the grounds of it ? . ^'^ ''^'''^^ ^^^^ "« without our considering ^^y^^^'on^y^^^^^^ will no doubt be ought to b^ varied from ti.e coZ nc^e o the Oh '"^'TJ-^'* ''^^ "^"^ ""^'^^ 1^"^ this as— connuente ot the Ohio and Mississippi.and I only cite Sir Montague Smith.-As a counterpoise ? as to that contentTot' ^'"""^^ '"*^ *^^^^ ^« -' ^o-ement of judicial authorities is a ^Sot'^o^p^tfcX al^inS^ l'^' ^^'/ ?--=- - t^- letter indicate a certain intention I suniose T b ' ' *f u ' ^^^ T'^^^^ '^^ ^^^^ l>^^^^y Mr. ScoBLK-Yes. myLord ^iTave '"' ''' ^'^ '^'''^^'^ ^° ^"-«i' ^ outt^rc^:^^;^^^?:^^^^-^^^ Mr ScoRTP TKo* '"'^" *•' "ears on this controversy? to include "all the temtory^rtLLuthwL. J' "".'"'"'.' """ ''™"""» »''" Ike utmost extent of the eouutrv oon.n, „i ,7?'"*,''' °'' *« ""i'i "le. 'o Cnada." """"""^ commonly called or known by the name of .noti?erb7freit;tatn'"TdtrtZem°met'Kfr?!,'' "-"""--I ""e way or Se'-drrhri=r vSf™ nh*^-"""^^^^^^ p»-" - -n^ia,a^*^--rttri-^^ liounop f.liu ovfo..!. .,« rr r-. . . ^ ~ ■ C^n ri ' Wn^'tauL'hi'?"^ over otfonces and otfeude hi„ irteYritorv ' ^tT'I^-'';" r^^ "'« "ffi"^" of »nd its Act 4^ !f;'/l!l'^'!.';l'"!l^.-^-- '.he.Parlia,nent of the United KinlH:.'^-^ u J!'u«.. P/i'.^f J'."'i«e "f Upoer li'e eourtB of Lower G.n.^f:;;^^^^^^l "''"'"'' «2'""'*i^ '» the'territol^^l^Soa'^'Br^t His Excellency Sir Peregrine Maitland. ^ '"*^''' *''® ''°°'"' '° "'e. etc., VVILLIAM DUMMKB PoWKI/L. 139 ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY; i- ■\ ' judgment in the Reinhard case is entirely done away with by a reference to the words of the Act, and to the words of treaty upon which the Act was passed, and that the Mississippi, as far as it goes, must be taken to be the line which fixes the western boundary of the Province of Upper Canada. Well, my Lords, I think that that would be enough to support the award. If it is presumed, and it was presumed that the rise of the Mississippi was con- sidei-ably north of the point at which it actually does take its rise— considerably north, that is, of the Turtle and Itasca lakes, and considerably north also of the Lake of the Woods — that would carry us, as far as the first natural boundary at all events is concerned, to the English River, which is the boundary given by" the award. The Lord Chancellor. — At present the only evidence as to that boundary — the northern boundary of the award— which we have heard is Mitchell's map. Mr. ScoBLE. — There is other evidence, my Lord. There is a despatch of Lord Shelburne to Lieutenant-Governor Carleton of Quebec, in the supplemen- tary appendix of the Province of Ontario, printed at page 1, dated on the 14th November, 1767 : "Instructions of the Imperial Government as to explorations of the territories to the westward of Lake Superior, and of certain northern territorie.s, as distinguished from the territories comprised in the Hudson's Bay Company's charter," which I think is of importance on this view of the western boundary. The last paragraph is : "As an accurate knowledge of the interior parts of North America would contribute in u oh towards enabling his Majesty's ministers to judge soundly of the true interests of the different provinces, I cannot too sti-ongly recommend to you the encouraging such adventu--rs as are willing to explore those parts which have not hitherto been much frequented, and consequently are scarcely, it nt all, known, particularly towards the territories comprised in the charter [of the Hudson's Bay Company north*] of the Hudson's Bay Company, northward, and the country beyond the Lake Superior, westward." The Lord Chancellor.— What is the meaning of that ? Mr. Scorle. — I do not know whether it is a misprint or not. The Lord Chancellor.—" North of the Hudson's Bay Company "—it can- not mean that. Mr. ScoBLE, — I cannot understand understand what it means — it. If it is correctly printed, I cannot —"the territories comprised in the charter of the Hudson's Bay Company north of the Hudson's Bay Company, northward," — The Lord Chancellor.— What do you refer to the passage for ? Mr. Scoble.— I refer to it to shew that as far as the English authorities were concerned it was terra incognita, though certainly not .so far as the French were concerned. Then the words to which I particularly refer are, " and the country beyond the Lake Superior, westward." Now, my Lord, that country "beyond the Lake Superior, westward," would certainly not be included within the territory granted to the Hudson's Bay Company bv charter. It was in the contemplation of the government at that time, four 'years after the treaty, that there was territory beyond Lake Superior, westwards, which passed to England under that treaty, and which was not included within the territory dI tlie Hudson's Bay Company. The Lord Chancellor. — How does that appear from the context ? It may r.« * The words which we have put within brackets are in the copy furnished by the Public Rfoord r ' — -:- ——'■---•, ,!^-; ••••, [•'•••••"'ir •-:•■ <.-!?Rviiif,- USUI the rtcaristcr Eo.-ik. Ir woiud si-cm iv be a case ot inadveitetit repetition, and that the true reading is : " particularly towards the territories com- prised in the charter of i he Hudsou's Bay Company, northward, and the country beyond the J.akeSu|iiTior, westward. —Public Record Office -Oolonial Correspondence, Canada {Quebec\ 1767, No, 4. 140 i"-^" UNDARY ; context ? It may t;ctmpa„r""°' ' °'"''°' "' ''"'' "■" " b^^ni^th of th« Hudson'. Superior, westward." ^ '*''* *^^ country beyond the Lake temtorilsXrSe'dl'r^^^ ZvV^' '^^^ "particularly towards the bevond the Lake Superior weLwZl" ^ ^Jompany's charter, and the country tli; distinction was drawn iTtT.r^ 7°'' "^"1^ ^' well-founded in saying that stand, which look as if^^t all hTf " >' ?° ^^''r, '"''11^' '"^ '^'^''^^^ ^^ '^"der- charter were intended To be described '"" " ^"'^""'' ^'^ ^''"P*"^'' betwfen ^trHud;oarC?oi' '^'\'^'-t '' ^ "^'^^ ^^^'^'^'^^^ ^rawn here Superior, westward ^"^ ^'^^P^"^'^ territory and the country beyond Lake it if '!;: t:rds^Wtir;T th7 H^^^^^^ ' ^^^P^-^^^^^ ^« -^ -• ^ ^^omd see there, but there seer o be som^eireitheJin'.^P""^'- "°,'',^^"^^ " ^^^« "«* of it, but r should infer thnfrTr^QKL *" *^^ ''"-'"^^ ^^^^^^ ^^ the print action taken upon tS ^ ""P^"^" ^^''^ ^^^'^'' ^^ ^ave been some S\v™','."" V ™'n ""r^T,*""" "o-^tiWe terms < know„°! ^'"="""" -I ™PP<>»« «'« "o«l.em limits of Louisiana w. v.rjr little m!". ^^''^^ '' Co^^ER- What was bounded on the north ^ W ri:'-i"".^r "^ I ^ill fi"d your Lordship the reference in a moment. 141 ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY: Mr. ScoBLE.— I do not think that cnn be contended at all. I think that what is. historically true is, that whatever the boundary between Louisiana and Canada was, whatever was north of that boundary went to England under the Treaty of Pans ; whatever was south of that line remained to France under the name of Louisiana. The Lord Prksident.— There is a partial boundary line on this map. Mr. ScoBLE.— There is. This description of Louisiana, to which I promised to refer, is at page 47 of the Ontario Appendix. Thomas Jefferys, who is des- cribed as "Geographer to His Majesty," in a book published in 1761, " History of the French Dominions in North and South America," gives the boundaries in this way : "The Province of Louisiana, or the southern part of N«w France, extends, accordine to the French geographers, from the Gulf of Mexico, in about 29 degrees, to near 45 decrees of north latitude, on the weHtern side, and to near 39 degrees on the eastern. . ^Tt is bounded on the north by Canada." The Lord Chancellor.— That at once proves you were too hasty in saying that New France was equivalent to Canada. Mr. ScoBLE.— You will find that in another b')ok, published in the year 1671, which is quoted at page 46 :* " Canada, as it is taken for one and the same Province with New France, contains New France properly so called." I have seen that " Canada ou La Nouvelle France " occurs constantly in the old French maps. , J^»t with regard to this limit of Louisiana, your Lordship will see, at pa^e 4.-),_Vaisette, another geographer, whose book was published in 1755, f after giving the degrees of latitude and longtitude, goes on to say that it " is bounded on the north by Canada."+ The Lord Chancellor.— What was Acadia l Mr. Scoble. — Acadia is now Nova Scotia. i'he Lord Chancellor.— It has been since we had it. It was not called Nova Scotia by the French. Was not it a part of New France at the time it was a French possession ? Mr. Scoble. — That I would not undertake to say. My impression is it was not, but I should be sorry to express any positive opinion on the subject. I think you will fin d in the old geographers a distinction taken between Acadia and Canada. + Geographic historique, etc., par Dom Joseph Vaisette. Paris, 1756. Vol. IV.' pp. 290, 302. lu. tl7^Zk'"^'it^^ "^ 'i"* ^l^^^\^r o*°»'''!y «et out in the charter to Crozat, comprised the Misnissinpi S^ludirthP mLTh'''^°/'''%^''"T'' ^'^^ "* *'"i^""'^y ''^'^'^'"«' °n «'*•'«' "We, to their s.u, c'e l»«H w^?»,a ^f ?? ' "?^ ,^*^ northern boundary, to the west of the Mississippi, would thus be along th Kirsf,.r. inH thTii"'^ ''°i?K''1X tributaries of the Missouri, fron, the 'Rocky Mountains to e ^oat bend 'and nf Z^v ll ""'J' '*"' K^*^ ^"''Pu'- ^l'« °"""t"«a "f f'e Upper Missouri, however, from the dian o'fbr.«r- , nH„/ "'■*'""^' ^k'",^ ^''^" ^^^\ di..covered. explored and taken possession of by the A82iboinJ^nTJ^h« r""""'""" °f th« Governor of Canada, proceeding from their establishments on thLl^I nTana 'Vh^ n "^T ?,%'"');'"»• ff'^-" that date, belonged perhaps more properly to Canada Illinois R Her fn tl,« ^LI "''' ''^■1° ^.t'"'^'*'- '*.'?'^ ■"''' ^""""^y »' ^^e Illinois-exteliding from the at the dfte of thfiS %• "f"'^* «"hm the jurisdiction at times of Canada and at times of Louisiana; at the date of the capitulation it was attached to the latter, and had been for sbme time. The TJortion of at the ?am?tim"e L'^llTrK'^h '*''• ""^^ \'^""''- "^"^ '"" """^^^ '^^ treaty of 17G3 ; but itt terrSy w^ U.Ht Hver ^?l^!.o^*'t^^h K^ ^^t incorporation with it of such portion of Canada as lay to the west of bound»rv of 1 ,n I ?!! hi »bovo observation in regard to the countries of the Upper Missouri, the northern to th« H^ll M . * ^''*"?Tj 5,''"?: ^'*i'«'' iV "'^ P'»''''"«' °f the sourc ot fhe Mississippi, from Lake Itasca Missoud fromt *?W' r./''*' ^.'^^r^^t" w"^ '^°*^ ^'ll.'''^ '*>« ^^'^^ '"^^ f"" *»*« the Mississippi and the bv the PonZ,^onl. f P " into Lake Winnipeg. The line of the i'.th parallel, afterwards agreed up<,n stns !,f'lrro=^I.t^?L?'^^'""r l_*'!L^°'*«d «"»*«- «« th« "fit .between the respective pos^.- I niil 142 lUNDAUY : WESTWARD e™S,ON OT PEENCB CA»AI,^_,,,„,vS, 1761 ; OOV. POWS.LL, 1756. too hasty in saying id sculptures. By John Lord ABERDARE-Th?s m^D is^a^oM r"\^^' *" *^' ^^""^'^ possessions. "Canada ou la NouvHleFmn"e^°''^^''°'^ "'''P' ^^^ you find it there- ies.Mion":Sm^^^^^^ a ^ood deal < " looseness of the boundaries of Canada etc aVeadv ,nni i ^ ^u- '^'^^°««' ^^^'by on France, says: ' ^^'^^ 1"°^' ^^' '° describing Canada and New '■ Canada as it is taken for nnn ar^A t-u b/F„„el, geogrfpllers °" '" ^'"'"'"' *''"«='' " '' '!■« ternfused which w?Cbt"cf';?ed7?„lit.f ",'■;"!'■ '" *« "-k of Jefferysto b«ca,„e more eom,,"o„r;„a«l io' CaSl ''°""""°"' '" ^""' *"""'=»■ »■"» " 183 of Ihe J„i„\ Appendtx £;», at te 21 ' " "' °''''"'" ^'""''■' P"*"^ ShrerfJEShlTit'erf.""'"'™"'"™ °' *»0»-"i-ionevof Crown Lands. The Lord CHANCELL01i.-It is an extract 1 .aliols w!;°j;.l; ^iTwied.-''''''' " """^ '"«-"-■• "vor countries and Mr. ScoBLE.— Yes, very indefinite. Lord Aberdare.— Its limits are unlimited Sn.eZrZt^--^!'"'' """ '"''■ ""' ''"^ ^'' ^^^^"^^"g ''^^ ^o^^^ry from Lake callecUWisr;i^^ t T^" ^--. - Httle F..„nch fort begins to slope an'dthe^rvl\r;;t?o:JT^^^^^ ""^ °' the said fort, the land probabi;^^'''^"^'-^'^^ ^''' Camenistagouia is what we call Fort William. ' ?ordlrR^;;.I'%i?.r-^''' embarrassed with these double names. sher) nrwl f^^^P^'^^-That is pretty well admitted now to be within the water- Mr Mcc!!rtVv''^T "IT f.P"''^"" «*■ ^^' '^'-^'^'^^y «f ^-tario. Mr 8C0BLE f -^ "^""^ """ ""^ *^' ^"' "^'■^'^ ^i"«- .'■ At ninety-Hvo leagues from this ffreateat hfimJif. lm= *!,„„..„„. J _.._,,.. 143 By T. Jeflferyg, Geo- .888WB«iW • ^ ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY : St. Oliarltts, eighty leagues further, on the Lake dea Bois. The fourth is Fort Maurepaa, a hundred leagues difitant from the last, near I he head of the Lake of Ouinipigon "—I suppose we must take that to be Lake Winnipeg—" Fore La Rnine, which is the fifth, lies a hundred leagues further, on the River of the Assiniboels." The Lord Chancellor.— I think all the.se were the .seven forts which are mentioned as the " Post of the West Sea " in one place.* Mr. ScoBLE. — Yes, I think they may be taken to be the same : *' Another fort had been buiit on the River Rjuge. but wa.s deserted on account of its vicinity to the two last. The sixth, Fort Dauphin, stands on the west side of Lac dea Prairies, or of the Meadows ; and tlie seventh, which i.s called Fort Bourbon, stands on the shore of the great Lake Bourbon. The chain ends with F.)rt Poskoyac, at the bottom of a river of that name, which falls into Lako Bourbon. The River Poskoyac is made by De Lisle and Buache to rise within twenty-tive lea;;ue8 of their West Sea, which they say .communicates with the Pacific Ocean. All tirese forts are under the Governor of Canada.'' Lord Aberjmre. — Lake Bourbon 1 .suppose was the French name for Lake Winnipeg ? Mr. ScoBLE. — The map gives it as one of the names for Lake Winnipew. "The Lake of the Meadows, or Prairies, is the lake I understand which is now known as Lake Manitoba. Lord Aberdare. — The Meadows Lake is the upper portion of Lake Mani- toba on this map, near Fort Dauphin, and Swan's Lake is the lower part. The Lord Chancellor. — It is clear one of the lakes was Lake Bourbon Mr. ScoBLE. — Now, my Lord, this book I suppose may be taken as shewing the popular knowledge, or, in fact, I may say shewing the scientific knowledge •of the geography of this part of the world possessed in England at the time of the jEiffairs of 1761, two or three years before the Treaty of Paris ; and the British governmen;., I think, may be taken to have known of the existence of these forts, and that they were, as the writer says, under the Governor of Canada, that is under the French government.. Now, my Lord, in connection with that, I would ask to refer your Lordships to a passage in Governor Pownall's report. Sir Robert Collier. — The Commissioner of Crown Lands goes on to say : " The above, it will be observed, is the English account of what was still French Canada, in 1760." . Mr. ScoBLE. — That was the argument of the Commissioner of Crown Lands, but I do not ask your Lordships to consider that. I onh' ask your Lord.ships to consider the authority which is cited. Then I would ask, in connection with that, your Lordf"'[' nsjj '.fciiuitc luiuriuauiuii ai/uut/ It/, unit" AV, anrl nar\r\r\k rfixra tr s — .; Ante, p. 94, note. t Quoted ante, pp. 85-8, 144 OOV. POWXALL ON THE KREKCH DOMINION. 1766-THE COUNTRY OF THK ILLINOI.. n forts which are I. I have not seen "The Poata were, in 1762 original title apparently would be that at foot of the natre It i« " A nr. • , itating the nature of the service in NnrtK A r^^^- j ^^ . ** " ^ Memonal operattons as founded thereon L^ up bTorl' Af ^'7°''°^ ^ ^^''^^ P'*^^ °^ Highness the Duke of Cumberland^56^"^Th« n,?! ''"^ .^""^'^f ^ed to his Royal mander-in-chief in 1756 and I 8un;oI fi;;«. ^^« ^"^^^ »] Cumberland was com- friend read extracts and gave Z^Lord ^1^ '° ""^^^ *? "f^'^f^y *«"««• ^7 regard to the forts in CanSIwh^ch arl ^fl i^^^ '^'l^* information with further call your Lo^d^^ attentionTn f? Tir"^ ^\^T ^^l' ^"*^ ^ ^^^^ ^^^7 to them, whfch are mSed therria^^^^^ '°^^''' "^^^ '^' ^^^^ ^-ignej '"'""'""'"" • ■ • • Bixcompaniea • . \ . . 300 'Oaskaskias. Fort de Chartrea. Village de St. Philip, Prairie de Rocher. Cahokias. Those were all nn<.fa J« t-u m- • l^iHage de Ste. Genevieve." openttioaof the Quebec Act bv the d^^nZuT "'?"'!' '"i "Jt'l-Jed from th. Wrned friend,. But your Llhp° will Cd'^S fa,£ "^ "'""'""y >»y ™ . m.) ..e „„e„i ide. up.„ isMt";,;™^ *, T^ s^r ^ t Jfcfturyi. and in Governor Pownall, as for instance a report by Governor Oaileton at page 609, as to the French posts of the interior, 1768.* The Lord Chancellor. — That was read. Mr. ScoBLE. — That was read. Now, my Lord, the French view of what they had, and what they ceded, was very much more in favour of actua' possession than the English view contained '.n thi documents which I have read. In fact the whole contention of the ] rench, from the time the French and British inter- ests come into conflict in this part of the world, appears to have been that they were in possession of the country, not only by right of prior discovery, but also by occupation and settlement. Lord Aberdare. — This contention g)es to shew the original Province of Manitoba was wrongly constituted. Mr. ScoBLE. — Well, ray Lord, if it were necessary to contend that, no doubt that might be contended upon these facts. At page 6i9, tl ere is a report of the Sieur de St. Lusson, who was sub- delegate of the Inteixdant Talon, in lG71,t in which he gives an account of the way in which he proceeded. He says : • Extracts printed aritc, pp. 82-4. + Record of the Takino Possession, in the Kino's namk, op the Oodvtrirs ok the West and North, BY THE SlEUn DK ST. LusSON, SOB-DeLEQATTS OF THE InTENDANT TaLON, 1071. Simon Francois Daumont, Esquire, Sieur de St. Lusson, C()mmi-«Bioner Subdelejrate of my Lord tli« Intendant of New France, to search for the copper mines in the cnuiitriea of the O.itaoUais, Nespercez, Ilhnois, and other Indian nations, discovered and to be discovered, in North America, near Lake Superior, or the Fresh Sea. ,. c k On the orders by us received, on the third of September last, from my Lord the Intendant of INew France, signed and paraphtid Talon, and underneath by my Lord Vahnikr, with paraph., to procewl forthwith to the countries of the Outaouais, Nespercez, Ilhiioia, and other nations discovered and to oe dis- covered, in North America, near Lake Superior, or the Fresh Sea, to make search and dii-covery there tor all sorts of mines, particularly that of copper ; commanding us moreover to take possession, in the King < name, of all the country, inhabited and uninhabited, wherever we should pass, planting in the first village* which we land the cross, in order to produce there the fruits ot Christianity, and the escutcheon (icu) o' France, to contirm Hisi .Vlaje.sty'a authority and the French dominion over it. u i t t at iif We having made, in virtue of our commission, our first landing at the village or hamlet of St. Mary i the Falls, the p acu where the Reverend Jesuit Fathers are making their mission, and the Indian natioiii called ChepotJs, Malaiiiechs. Noquets and others do actually reside ; we caused the gre.itost portion possicn of the other neighbouring tribes to be assembled there, who attended to the number of fourteen iiatioas : To wit . the Etchipoiis, the Malamechs and the Noquets, inhabiting the said place of St. Mary ot ui» Sault ; and the Banabeuuiks and Makamiteks ; the Poulxteattemis, Ouuiibonims, bassassaoua tottons, inhabiting the bay called dcs Puantu, and who have undertaken to make it known to their neiglibours, who , are the Illinois, Mascoutins. Outtougamis and other tribes ; the Christinos, Assimpoals, Aunionssonmns, Outaouais, Bouscouttons, Niscaks and Masquikoukioeks, all inhabitants of the northern country and neu neighbours of the sea, who undertook to tell and communicate it to their neighbours, who are very numerous inhabiting even the sea coast ; To whom, in the presence of the Reverend Fathers of the Company ol Jera and of all the French hereafter mentioned, we have caused to be read our said commission, and had inter preted in their language by Sieur Nicolas Perrot, His Majesty's interpreter in that part, so *■'»' V>ey ■"?? not be ignorant of it ; afterwards causing a cross to bo prepared in order that the fruits of Christianity » produced there, and near it a cedar pole to which we have affixed the arms of France, saying three times in aloud voice and with public outcry, that In the name op the Most High, Most Miquty and Most n«- DOUBTABLE MONARCH, LOUIS, the XIVtH. OP THE CHRISTIAN NaME, KiNQ OP FrANOK AND NAVABBB, »• take possession of the said place of St. Mary of the Falls, as well ai of Lakes Huron and »upe™; the Island of Caientolon, and of other countries, rivers, lakes and tributaries, contiguoui »°'l *°J*"°j thereunto, as well discovered as to be discovered, which are bounied on the one side by the NortnernM Western Seas, and on the other side by the South Se<>, including all its length or breadth ; raising at w» [ of the said three times a sod of earth, whilst crying Vive It Jiui, and iu»kiii(j tue wnoie ol tec a==c!ii' •',•>- L well French as Indians, repeat the same ; declaring to the aforesaid nations that henceforward m ny i this moment they were dependent on His Majesty, subject to be controlled by his laws, and to '»"'"V^I •lutonu, promiiing them all protection audiucoour on hia part agaioat tbw inounion or invMioi oi «»i 146 FRENCH POSSESSION OF COUNTRIES OF UP. MISSISSIPPI. AND N. AND W., 1671. 1689. bupenor or the Fresh Sea, to make search and discovery there ^or ^M ToTt's of mbt particular y that ol copper commanding us moreover to take possess on Tn the kS nL ■ .• i e° "7 "'"'^" we lana, the cross, in order to produce there the fmifa r.f He goes on to say that he has caused a number of tribes to assemble to th. number of fourteen nations, and he gives their names • "semoie^ to th» .«d had it interpreted in U..i, ,.„s..ge;yt:;5lt'?,.t.H^^^ in that part, SO that thev mav not hn i<»nni.n„f «(! i*. e^ i'*^'" '"ojosi-y s interpreter prepareIin;rderthattLTi:its:f OhSnity b prot^TthLTndirT '^'' Mn WF?^^yes'''°''"~^^'^ *^°^^ possession of tho whole continent. Lord ABEKDARE.-Discovered or to be discovered in thos'' davf "^T^^^'V. '^^^^ f '^"^ ^" """f ^ ^^^ '^"^« ^^^ *« ^^^'Y "^tion acted n those days They afterwards occasioned disputes and came to wars in order to nmmtam their nght to territories th.y had in an exceedingly Tr^ and easy manner taken possession of; and to a certain extent, according^to intermitiorS aw as It was then understood, they were perfectly right in doi^ so X here they profess to take possession of the whole of the continent : North^^rn'^LT'w '?''''T'^ "" V'"" ^'1°"''^'''^' ^^ich are bounded on the one side by the lis o^^tdThT'^ '''"'"'' ^'^ *'« '^'^^ '''''' '' the South Sea, including afl it Then at page 621, there is another record of taking possession in the Kintr'a name, at the countnes of the Upper Mjs issip^^ the ^oo.| pleasure of hi« .ai.i Most ChrLti^n MajeTty a«d , f him Jh'n wfn '" "'"^ ^^T'^'^' ""'"'i'^ ^'^^ behalf, „„ pain of incurring bis hatred and the Xet« o h!« 1.^? ^ • '" ?"'T" ""-' •'"""^''y '» »»'» of ignorance, we have attached to th^e I ack of the Anns of Fl^n^H '""^ 'Vf7^. *^^' "" """ ''''"«* cause thetakinK I..~o„, gi^.ed by us and the under'naS p rso"rwho"we?e":il pre^T"'"'' ""' "'""*^ °' .enii* K^thlr^!- fc-^^ertStheTctu^l'L^^^^^^^^^ Fath.r Gabriel Urouillets the kerFatWPuf^ ai,^ ?u "4 'he "nmsiond in this country ; the Rev. Je»us ; and of Sienr Nas terrot Hif fesS^^^^^^^ htZ' ^-ther Andr.^. all of theiOompany oi • Rbcobd of thk Taking Pos81s«8,o»l in the IwTname, ot th. Couktriks of thh Uppm Mississippi, 1689. ^rrmM Canada, Wd of the taking possession, in Hie Majesty's name, of the Bav de. Pnant- . ^P.i^ ^'f Puantb. of the OutaKa.nis,a and Maskoutinas,^ of the K Outkonohe ! fnd t^^^^^^ m? — •"'?• country of the Nadouesioux. a th« ril^rn li" ntkiZ ^:^a"'^°nl'* ^''^ ,^^^^ of the MissiMipi, the sill Mav, 1669. ■ •" ■ --=r, aiiu oiaor places uioi-e remote, •QrMQBv. »FoiRiTei •L»V» Winnebiea *WiicoBiln. •Siout 147 ARGUMENT OF MR. SOOBLE, Q.C., r« QUESTION OF BOUNDARY : I "fl for the King at the Post of the Nadouesioux, coinmisBioned by the MarquU de Denonville, Governor and Lieutenant-General of all New France," takes " possession of all the places where he has hitherto been and whither he will go," Then he describes the places he has been to, and records that he has taken possession, " for and in the name of the Kinjj, of the countriei and rivers inhabited by the said tribes, and of which they are proprietors." Then in regard to these matters of taking possession, I may call your Lordships atten- tion to page 623, line 20, where the pretension to Hudson's Bay la set up in a letter from Louis XIV. himself to M. de la Barre. It is dated Fontainebieau, 5th August, 1683: " V' " I recommend yoii to prevent the English as much as possible from ostivbh'shing themselves in Kr.dson's Bay, posseaaion whureof was taken in my name several years ago." Lord Abeudake. — That was in the evil days of Chiirles IL Mr. Sf!f)iir,E. — Yes. Then again, at page 621, writing again to M. de la Barre, x)n the 10th of April, 1U84, as to the affairs of the Nelson River, he says, at line 11 : " As i think it important, nevertheless, to prevent the English from establishing themsolvos on that river, it would be well for you to have a proposal made to the com- mandant at Hudson's Buy that neither the French nor the English should have power to make any new establishments, to which lam persuaded he will give his consent the more readily as he is not in a position to prevent those which ray subjects would wish to form in the said Nelson's River." And then, in regard to that same Nelson River, at page 625, on an application for a grant of the Nelson River, by Gaultier de Comport, in 1684, it is recited that this "Gaultier de Oomport^, Prevot^ of Oanada, has heretofore presented a memoir, by which he requests the giant, unto himself and his associates, of the ownership of the River de Bourbon — de Nelson — in Hudson's Bay, of which poHsession had been taken in the name of the King, for as long a time as it should please, with permission to establish three posts in the river which descends into the said bay, at seventy leagues from the place where the farmers are settled." Then, in a report made in 1085 by the Governor of Montreal,* to the Manjuii de Seignelay, the origin of the French claim by settlement is stated to be : " As regards Hudson's Bay, the French settled there in 1656, by virtue of an arret of the Sovereign Council of Quebec, authorizing Sieur Bourdon, its Attorney-General, to make (he discovery thereof, who went to the north of said bay, and took possession thereof in His Majesty's name." among all the Indian tribes and peoples of the Bay des Puants, Nadouesioux, Mascoutins, and other western nations of the Upper Mississippi, and to take possession, in the King's name, of all the places where he hw hitherto been, and whither he will go. We, this day, the eighth of Majr, one thousand six hundred and eighty-nine, do, in presence of tha Reverend Father Marest, of the Society of Jesur., missionary among the Nadouesioux ; of Mons. de Borie- GuiUot, commanding the French in the noighbourhood of Ouiskonche, on the Miasissipi ; Augustiu Legar- deur, Esquire, Sieur de Caumont, and of Messieurs Ijo Sueur, Hdbert, Lemire, and Ulein, declare to all whom it may concern, that having come from the Bay des Puants, and to the lake of the Ouiskoncbea, and to the river Misaissipi, we did transport ourselves to the country of the Nadouesioux, on the border of the River Saint Croix, and at the mouth of the River Saint Peter, on the bank of which were the Man- tantans, and farther up into the interior to the north-east of the Mississipi as far as the Menchokatoui, with whom dwell the majority of the Songestikons and other Nadouesioux, who are to the north-east i)f tht Mississippi, to take jiossession for and in the name of the King, of the countries and rivers inhabited by the said tribes, and of which they art) proprietors. The present Act, done in our presence, signed with our hand, and subscribed by the Reverend Father Marest, Messrs. de Borie-Guillot and Caumont, and the Sieurs Le Suetir, Hubert, heraite, and Blein. Done at the Post St. Anthony, the day and year aforesaid. These presents are in duplicate. Signed to the original : Joseph Jean Marest, of the Society sf Jesus. N. P^rot. Legardeur de Caumont. Le Sueur Je»n Hubert, Joseph Iiemire, and F. Blein. * The Sieur de Calliferea, afterwards, on the death of Frontenac, Governor of Canada. (Joint App.625). 148 fBENCH TITLE TO HUDSON'S BAY.-LORD CAMDKN's VIEW OF THEQUKBEC ACT, 1775. time of the treaty and fiibscj the parliamentary debat*^" oi The Attorney-Ueneral WM a very active person in those days; and in the«e la ter days I have read of an Attorney-General leading a force in the south Jf »k1 w^rJ f K P"aT'^ °' repressing attacks by the hostile tribes in that part of innHwV !>,'^**r'^"5""f'"'' ""^ ^^« ^*P« °f ^^°«d Hope led a force most gallantly the other day. and 1 behe a came off' victorious in his encounters. 1 think, my Lord a\ tuese do. uments, and others ^vith which the Appendix abounds, shew tolerably 'oarly onat before the time of the Treaty of Paris the King of France laid clam, -c-, ing to the fashion of those times, to the whole of the country to the w ,, . .^^ which constituted Canada as distinguished from Louisiana. I thiu k ,t v < . understood by the British Government at th. •ntly, because there is a rather curious thing iu , ,- 1 'XT , ' y®*"" ^o"owing the year in which the Quebec Act was passed No les. ^person than Lord Camden brought a bill into th« House of Lords for the repea of the Quebec Act,' and his objection to the Act was put on three grounds. The hrst ground was the extension of the limits of Canada ; the other two grounds were the grounds upon which the bill had been fought in both houses in the previous year, namely: first, they objected to th« establishment of popery in this large region, and in the second place, they objected to he establishment of a much more arbitrary government than that which pre- Lord CWen'^obsTrfed ^"^^^^ colonies. On the point of the first objection " There could be no good reason for so extending the limits of Quebec as to make them comprehend a vast extent of country two thousand miles in length from north to south, andboundedonthe west only by the South Sea." The Lord Chancellor.— A distinguished person speaking in the House of Lords upon an idea which, without proof, is not to bo accepted upon his authority. Do you suppose Lord Camden know more about it than we do ? anada. (Joint App. 625). •Dbbatb in thk HonaK of Lords, on a proposal to ekpeal the Qcebbo Act of 1774. {Parhamentart, Begirtcr, Vol. i, 1775, pp. 134, m, ISS, 139, I48, W). ,^r> A TT- T ... mh May. 1776. U>n Camden. -Kin I^rdRhip arranged his objections to the Act under the three following headi — l8t. 1 ho extension of the limits of Quebec. "<"«• . 2nd. The establiehnient. etc. 3rd. The civil despotism, etc. .„„iy .' J^*" "^ *■. '***'^'' f*^''? 'extension of the limits of Quebec] his Lordshin proved that th«r- ffe ofmrh''"Tn-''?''*"l^''°"!?'f '*'*° ""y »"« ""»"«' I kno'w of The noble Earfbehfnd me & tm e ,i^^th rt. iiL". V??'-.'*''^"'""*^ ^'■°'° ""^ ^T''^"'^'' "f His Majesty's servants on the reSinl wn'8 rIvT^ Ihi ft-' iT ?»^ *'"t.i*.wa» never so much as dreamed of that the whole skin trade, from Hud- 149 ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY : Mr. ScoBLE. — I do not suppose he knew as much, or at all events did not know as much as your Lordships will know when you come to the end of this case ; but it shews that according to the means of knowledge he possessed at that time, and according io his construction of the Quebec Act, the Province of Quebec was made to include all the territory France purported to cede, and Eng- land assumed to take. The Lord Chancellor. — What are the words in the Quebec Act? It is an Act containing the boundaries. What are the bounds which shew it extends to the Pacific ? You do not make much progress by showing what Lord Camden said. Lord Aberdare. — You seem in this argument to throw away all the instructions given to Governor Carleton and others to define these boundaries. You are going far beyond that found by the award. Mr. ScoBLE. — I think Governor Carleton went far beyond that. Sir Robert Collier. — If he went as far as that, it is quite enough for you. The Lord Chancellor. — What strikes me at present is. that the Act speaks for itself, and shews distinctly that whether the point is that for which your opponents contend, or that stated by the award, when you have got to that point you go northward to the southern boundary of the territory granted to the Hudson's Bay Company : and if we accepted your learned leader's suggestion, that means northward to Hudson's Bay, and nothing else. Still you cut ofi" an enormous extent of territory, taking into consideration Lord Camden's view. Mi. ScoBLE. — If your Lordships construe the word " northward " as referring to territory, and not to boundary, tjiat >vould give all that Lord Camden seemed to think it did. The Lord Chancellor. — I do not follow you. This Act states what territories are included, and it gives you, first of all, the line of boundary as far as the junction of the Ohio and the Mississippi. Then you either take north from that point, or from some point arrived at by going northward along the Mississippi, and the further boundary is struck northward until it meets the southern boundary of the Hudson's Bay Company. How can that be ? The thing is simply impossible. Mr. Scoble. — The westward boundary does not carry it further than the banks of the Mississippi. The Lord Chancellor. — And from that you strike northward until you reach either Hudson's Bay, or some territory which is described as granted to " the Merchants Adventurei's of England trading to Hudson's Bay." Mr. Scoble. — I submit the Act may be read in this way : " All the territories, ihlands and countries in North America belonging to the Crown of Great Britain bounded on the south by a line, etc., and extending northward to the southern boundary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay." The Lord Chancellor.— It is to give a southern boundary, an eastern boundary, a western boundai ; , and a northern boundary, and how it can include anything which is not within any pos.sible limits so described seems to be be3'ond the power of imagination to conceive. Lord Aberdare. — And it seems wholly uuneces.sary for what is v mr substantial contention. Mr. Scoble. — Well then, ray Lords, I will leave that part of the case, and in obedience to your Lordrships' view just expressed I will address myself now to what is the northern boundary established by the Quebec Act. That is stated to be " the southern boundary of the territory granted to the Merchants Adventurers of England trading to Hud-son's Bay." Now no southern boundary of tliose 150 SOUTHERN LIMIT OP THE TERRITORIES HELD BY H. B. CO. UNDER THEIR CHARTER. b furthei* thaa the for what is viur ernfcories had at that time, or has to this day. been ascertained. It is a his- • oncal error to suppose that any boundary was settled by or after the Treaty of Utrecht. At page 58, of the Joint Appendix, your Lordship will find the memorial of the Hudson's Bay Company, dated the 6th December, 1759 in which, _^ in prospect of an approaching treaty of peace between this nation and France -that is in prospect of the Treaty of Paris of 1763-they make certain representations. They state what the French had been doing in Hudson's Bad before the Treaty of Utrecht, they recite articles 10 and 11 of that treaty, any then, at hne 22, they go on to say this : j> J "That in pursuance of the said treaty, and an especial commission of her said late Majesty, Queen Anne, dated the 20th of July, 1713, the said Bay and lands, then in r™!r 1 ^/?'\r'^ '^fr'^^ "P *^ «°^«''"°'' knight aL Kelsey, ;h6 Jook , n n H .HI t ' •! J^""-^^''^ ^"'^^"'^'^ ^^y ^"""P^^y. ^"'i Oommissaries were appomtedtosetlethesaidhmitsand adjust the damages the company had sustained. Tf !p5 r. ''"P%*",V«''<^^ °/ ^^^ oo^Pany taken by the French appears by anaccoun Jated n the year 1713, and delivered to the then Lords Commissioners of Trade and Plantations, amounted to upwards of £100,000, besides the damages the company stained by the enemy's burning three of their forts and factories at Charlton Island. tor;!.! Ifr "?? ^^ l^""^"!' ^""^ proceedings wore had by the said Oommissarier ov^ards .settling the same, but they were never able to bring the settlement of the said 1:^1: £lhr:Lrdrares ''' *'^ --'' ^"^^^-'^ ^^y ^^-p^-^ -- --^- -^ It is perfectly clear then that these lines upon the various maps which point ont the limits .settled by the Treaty of Utrecht, are lines introduced into these maps without any historical foundation at all, because no limits were ever settled from the date of the Treaty of Utrecht, or from the date of the Treaty of Paris or since. It that is so, your Lordships have now to determine what ouc^ht to be considered the southern boundary of the territory granted to the Hudson's Bay Umpany, at the time of the Treaty of P^ris, and of the Quebec Act of 1774 I think the best evidence as to the condition of the Hudson's Bay CoraPa ly's settlements at the time of the treaty is to be found in a letter from the Right Honourable George G. Goschen, who was chairman of the company at the time of 1 1 o^uT ''"J*^''' "^^^"^ '^ P""^'''^ *<^ P*g« 594 of the Joint Appendix. It is dated 12th December, 1876. and addressed by Mr. Goschen. as Chairman of the tiudsons Bay Company, to the Secretary of State for Canada. He encloses, first 01 ail, a map ; then, a statement prepared with reference to the Parliamentary lie'ra'Tthi!,' ^'*'^ '"^ ^^■'''' '^'^^°' '° *^® ^°"'^^ paragraph of his letter. "At the time of the passing of the Quebec Act, x774, the company had not extended heir posts and operations far from the shores of Hudson's Bay. Journals of the following I f!,,"'''- v""f r^ ^'"^ preserved bearing that date, namely, Albany, Henley, Moose, Si"?'"; .!,"'{' ^T'^' r^ ^^''''^'^^- '^^"'^ J^"'-"'^''' g'^" "" information upon the subjfict ot the boundaries between Canada and the territory of the company nor was the i..CTuj o MS. map ui i.tiB, rcicrrGa to at p. i09 ant4. 151 ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY hi II Mr. ScoBLE. — I apprehend they could not extend their boundaries subsequent to the Quebec Act beyond the limits which ihose boundaries had at the time of the Quebec Act. The Lord Chancellor. — The question is, what is meant in the Quebec Act by the " territory granted to the Merchants Adventurers of England trading to Hudson's Bay." Mr. ScoBLE. — Yes, and that makes it necessary that I should refer, and 1 shall do it very briefly, to the charter of the Hudson's Bay Company, The Lord Chancellor. — What is important, as bearing upon that, is the use in that charter of the term " Rupert's Land," as distinguishing territory over which the grant was meant to extend. Mr. Scoble. — The first observation I will malce with regard to this charter, which is printed at page 341 of the Joint Appendix,* is that the King, in granting it, does not set up any title to the lands that he is granting by right of prior discovery, but only such title as he might have by occupation and settlement. The Lord Chancellor. — What are the words which appear to you to indicate that — the words whereby whatever is actually possessed by the King's subjects or the subjects of any other State is excluded ? Mr. Scoble. — Yes, and I say that excludes also any claim by right of prior discovery. He purports to grant whatever he has, that is, all the lauds, countries and territories. Lord ^BERDARE. — He assumes all to be his. Mr. Sco3LE. — Then, I apprehend, if he were claiming by right of first discovery, he would claim to have 'the whole of it. Lord Abeudare. — Then surely we come back to what is subsequently admitted to be Rupert's Land ? Mr. ScoBLK. — I do not think anything was subsequently admitted to be Rupert's Land, because in the Rupert's Land Act,-|- in which the phrase " Rupert's Laud " for the first time received legislative sanction, there is an express reserva- tion of all rights in regard to it. The Lord Chancellor. — There are some words which indicate what is meant — are not there ? Mr. Scoble. — I will give your Lordship the exact words. They are at page 445: " For the purposes of this Act, the term ' Rupert's Land ' shall include the whole of the lands and torritories held, or claimed to ha held, by the said Governor and Ojinpany." The Lord Chancellor. — " Or claimed to be held." You see the whole of the present relations of Canada and Rupert's Land are founded upon this. Mr. Scoble. — But the surrender wliich was to be made was only of — " the lands, territories, rights, privileges, liberties, franchises, powers and authorities, 80 far as the same have beeti lawfully granted to the said company." The Lord Chancellor. — Where is that? Mr. Scoble — In the *Jrd paragraph of the preamble, at line 34. Lord Aberdare. — But practically, although not admitting, and guarding against, the excessive claims of the Hudson's Bay Company, for the purpose of the annexation of those territories they were admitted. Sir Montague Smith. — They seem to me to be left uridefined, but they wished to take a surrender of whatever they had, and whatever they might claim. Sir Barnes Peacock. — The Act .speaks of "Rupert's Land and the North- Western Territory," and then it defines what Rupert's Land means. Mr. Scoble. — For the purposes of the Act, and not otherwise. * Extract! printed ante, p. 61. t Imp. Act, 31 and 32 Vict. , cap. 152 IM. SOUTHERN LIMIT OF THE TERRITORIES HELD BY H. B. CO. UNDER THEIR CHARTER. 1 indicate what is They are at page the purposes of the Act are, that this territorv shall hr. nRr+ nf f^! n • • V Ml. booBLE^Upon the tooting of a compromise. ^ Ihe Lord Chancellor.-No, upon the footing of its being treated bv the Imperial Parhament as external to Canada ♦ ^ created Oy the what'Rupe?t?s"L J •:."' ^'^ ''^* ^^^^-^V^on we do not get any further as to th.n It ^T^P1t''''^'''f^■T-t ^"^ ^^^ ^*"*1 li™'t-t>»fc that it was a large territorr Mr Scob/e %h"v''" ' ^^^ ^T?'"^.' ^'^^ «««"»« *« ^« ««' y«» d^o grthaT 1 • i S^OB^:^.— Ihey may have claimed under two rights. Thev mav have tt> 'A.?^'' f''' S^'a^'' K''^^'^ *« '^"^d immediately in the neighbourifoodi? their settlements in Hudson's Bay. and they may have claimed under the ritht derived from long occupation in regard to other portions of that tenitory ^ Sir Barnes Peacock.-Is not that what was intended to be annexed to Canada, for which they were to pay £300,000 ? " «-" oe annexea co Mr. ScoBLE.— It was a compromise arrived at between the Hudson's PJ^v Company and the Dominion of Canada between tne Hudson 8 Bay t),n ^'- ^f KN'^s PEAC0CK.-They purchased from the Hudson's Bay Company all those rights, with certain exceptions which were reserved to the HudsonWy a. ay^rf '^'7r^ f'^T''-. ^^^^ *^^«^« ^« ^ stipulation in Sie surrender as to the electric telegraph. Canada was to purchase from the Hudson's Bav Company their electric telegraph, and that is in the surrender, and in the Order m Council. Do you know how far that electric telegraph went ? withKnXmltio'n b^^ndTye"^ '^^'- ''' ''''^'' ^''^ ^^^^^ yo- Lordship at page'447 is^^'^'"''"^'"''^"^'''' ^"'^ P°'"* '"* ""^'^'^ ^^^ ^"""^ ^^''y "mentioned Mr. ScoBLF.-Fort Garry is where the town of Winnipeg now stands ImneHal oT CHANCELLOR.-Then that is very important^ because you see this Impenal Order in Council under that Act of Parliament, distinctly treats the own ot Winnipeg aa adjoining the forts of the Hudson's Bay Company Then ^^3^"" W. -« part of the terms for which they stipulated, be.^des^ getting £300 000, were to select certain blocks adjoining each of their forts in the Re! w town'oV W-^ "^" of .those was a block of 500 acres at the " Upper Fort Gar^y IhLtZ ^y'^/P^^'.l^^J^^.'^g the enclosed park around shop, and groutdTt the entrance of the town, shewing most distinctly that that waswithin their errant • Fort olrv'''?.^'f '''•~?v'^"""'^^'5 Pag«. there is also a reference to ■' Upp - i'ort (jfirry and the to.,ij ^ i Vinnipeg. ^^ had 3ni ^^"""^ Chancellor. -There is no doubt that the Hudson's B.v Company had settlements in this country at the time of the surrender. In construinrfcS their^Lrte^ar-^Tl^"*^ '^'^ anight hold that by right of occupation and not under * Bcu note to the Award, appendix A. hereto, 163 .,tamikiitm'>'-m m' ARGUMENT OF MR. SCOBLE, Q.C, re QUESTION OF BOUNDARY : The Lord Chancellor. — Supposing; they did, this Imperial Act is an instr-u- ment which treats that territory as external to Canada * and to be admitted into Canada, it' the Crown should think tit, on certain terms. Sir Barnes Peacock. — Canada was to purchase it for £300,000. Mr. ScoBLE. — That was a compromise. The Loud Chancellor. — And if it has been ascertained that that was part of Rupert's Land,* how can you say that it is now to be treated as part of Canada? Of course your argument on the award does not require you to say so, but if you are going to claim the whole of North America, north of the United States, you must say so Lord Aberdare. — All this argument seems to mo to .strengthen your claim for the more limited territory, which is substantially what you are going for. Sir Robert Collier. — That does not in the least hurt you, if you confine yourself to the contention which you were confined to sometime ago. The Lord Chancellor. — You told us 3'esterday that you meant to linat your- self to that, but I suppose further consideration leads you to take a different view ? Mr. ScoBLK. — It was rether in consequence of something which fell from one of your Lordships, because I was going to addre.ss myself to the state of things on the shores of Hudson's Bay at the time the Treaty of Utrecht was passed, and to shew what the Hudson's Bay Company had at that time, and that there was a claim on the part of the French King known to, and to a certain extent admitted by, the English to the land of what is called the bottom of Hudson's Bay. Lord Aberdare. — But that is mot before us ? Mr. ScoBLE. — It is important, incidentally, in regard to the argument as to the height of land. If it is going to be contended that we are limited by the height of land, then every piece of evidence which shews that we have a right to go to the shore of Hudsot Bay is of importance to our claim; if we are to be bounded by the height of land, we do not get to Hudson's Bay at all. The Lord Chancellor. — I thought at present we had only to decide the boundaries between Manitoba and Ontario, and nobody contends that Manitoba goes up to Hudson's Bay. IVIr. Scoble. — But I understood your Lordship to consider that, to a certain extent, the question of the northern boundary was involved. The LoKD Chancellor. — The northern boundary between Manitoba and Ontario, certainly ; but not the northern boundary of Ontario with reference to any place not adjoining Manitoba. Mr. Scoble. — If that is so, of course it is unnecessary to say anything further with regard to that, but I understood that your Lordships, in considering the question of the award, would consider also whether the northern boundary given to Ontario by that award was one which was supported by the evidence. The Lord Chancellor. — Certainly, but then that is the northern boundary between Ontario and Manitoba. Sir Montagu K Smith. — Where you leave Manitoba, going eastward, is not referred to us. Mr. Scoble. — Then it is not necessary for me to address myself to that. The point I understand your Lordships are jroing to determine is. What is the proper boundary between Ontario and Manitoba ? Sir Montague Smith. — Yes. Is there anything else referred to us ? Mr. Scoble. — They do not adjoin on the north at all. The Lord Chancellor. — Yes they do. I understand that the whole of that tract [pointing on the Ontario Boundary map] coloured with a pale yellowish 154 FRENCH POSTS, AND NORTH-WEST CO's POSTS, OF THE NORTH-WEST. bhat, to a certain eastward, is not tmt and orange coloured lines across it-single orange lines, not double- had been given by the Dominion to Manitoba.* Is not that so ? Sir Robert Collier. — Yes. . Z^! K°'''' 0HANCELLOR.-Then, of course, if the Dominion could give that to Manitoba, and it was not part of Ontario, the boundary there marked by the Engh-sh R.ver, Lonely Lake, and Lake St. Joseph, is in it. Of course, if it i, admitted on both sides beyond all question, then it will save trouble. Mr. McCARTr —Yes, we say it is necessary to consider it Lord Abe. ^ [to Mr Mowatl-li you will pardon me. it seems to me I?\w?^ tnake. your mind whether you are going to insist on the portion of Manitoba which is north of the tract which was awarded by the arbitrators^ Mr. MowAT.— We do not claim that. "ttora, Mr. ScoBLE.— No. not this cross^barred lattice part-the yellowish lines \J00%71/v%7viJ I. Sir Montague SMITH.-I understood the Attorney-General of Ontario to limit his argument to what was within the red. Mr. MowAT.— Ye.s. Perhaps, in a word or two I could explain about that piece of boundary as to which an observation has been made just now. By the terms of the Dominion Act extending the limits of Manitoba, its extern boundary 13 made to depend upon our western boundary, not merely for the distance between the two provinces, but for a further considerable distance, so «mt whether Manitoba gets that from the Dominion or not depends on the present question ; but we have no concern with it F "«< hn. ^;V^°^r^/''-''"^fT^''" ^''^ '*^^'fi«d «^^t^ <^he boundary in the cross- barred lines [referring to the map] ? j x o *.iusa Mr. MowAT, — Yes. The Lord President.— With the award line ? Mr. Scoble. — Yes. Lord ABERDARE.--Then your argument may as well be addressed to that ? Now I'iV? . V.^1l*' r'- -^ "^^ ^Pi ^'^'^'^^^ y°"^ Lord,ships with the other. ilnf H ° nt "" *^' t'-''^"'^ ""^'"J ^''' ^^^^^^'^ ^h« due north line from the w? I t'^e Ohio and Mississippi which is shewn on the map here, and the we te.n boundary which the award has given us, in that portion which is north of i. w''^ • n'^' ^rf ^ '' "^^' ''' ^*' *' 1 ^'^ ^^^'•«' *«y PO^t of a»y kind thpr. §".?.''' ^^y Company, or of the North-West Company, to be^ found awn, 1 K ' '^'''' «T\P'''*^' "^^^^^^ *^« P°^"«" of the territory which the Ccnt^. ^'^'" T' f " n *^r^r P°'*' ^^'^ "^*^' ^ I ^™ instructed, Hudson's alev^ri^f, ^''T-'^f'^'fu''"- ^'-'^ ^"''*^" North-West Company's posts. At J pTTv, f^^ "^"^L^^u ^^^T \?r^''y ^*y HudsonV Bay Company's posts until t or ILT"" "^ ?«i^'Sl-^'^'' ^""'P^'^J^ ^'^'i the Hudson's Bay Company within r/-r*' ^?-^u ^^/y T'*'^^^'^ ^''^"^^^ P^«<^«- ^'^d would be included wi hm the tern ory which, under the Quebec Act, was intended to be afiorded a civil government. They were not very important posts apparently. Lord Abkrdarr.— Fort St. Pierre is one ^ t-f j Mr. ScoBLE._Yes, Fort St, Pierre is one. and Fort St. Charles another Lord Abkrdare.— There is a fort cited, La Maune. 166 ;#'• I ARGUMENT OF MR. SCOBLE, Q.C, re QUESTION OF BOUNDARY : referred to. There is a letter from the Sieur Du L'Hut to M. de la Barre* in relation to operations in the neighbourhood of Hudson's Bay. He says, in [)art of hia letter, at line 38, page 624, after pointing out the success he has had in interfering with the operations of the English at Hudson's Bay : " The Klistinos, the Assenepolacs, the people from the Sapitii^re, the Openens Dachiling, the Outoubouhys, and Tabitibis, which comprise all the nations which are to the west of the Northern Sea, have promised to lie, next spring, at the fort which I have construciod near the River k la Maune, al the bottom of Lake Alemepigon, and next sum- mer I will construct one in the country of the Klistinos, which will be an efTectual barrier." Now the country of the Klistinos, as it is called here, would be to the north. The Lake Alemepigon is the same as Nepigon, which your Lordship will see lies within the due north line, but the fort Laraaune is north of this Lake Alemepigon, and it is within the extended boundary which the award has given us. Then Rainy Lake, your Lordships will see, is within that same contested district, and a post was established there by the French also. Lord ABERDARK—Fort St. Pierre, in 1731. Mr. ScoBLE. — Yes, in 1731. Sir RoBEKT Collier. — Is it on the map ? Mr. ScoBLE. — I will give your Lordship the reference in a moment). Sir Robert Collier. — It is not mentioned in page 603. Mr. ScoBLE. — This one, on Rainy Lake, is on the map, and is one of those mentioned in JefFerys' book, which I have already referred your Lordships to, at page 183. It is in that extract which I read from the memorandum of the Com- missioner of Crown Lands, Canada, 1857 : "At ninety -five leagues frcm this greatest height lies the second establishment of the French that way, called Fort St. Pierre, in the Lake des Pluies. The third is Fort St. Charles, eighty leagues further, on the Lake des Bois. The fourth is Fort Maurepas, a hundred leagues distant from the last, near the head of the Lake of Ouinipigon." Then Fort La Reine is a little farther on. We need not trouble anything about that. It is considerably farther on. It is described as on the River of the Assiniboels. The only ones that I need trouble your Lordships with are Fort St. Pierre, on Rainy Lake, and Fort St. Charles, on the Lake of the Woods. Sir Robert Collier. — Is it here on the map t Lord Aberdare. — Yes, it is on the lake, to the westward ; it appears to be just outside the district. The Lord Chancellor. — Fort St. Charles is in Manitoba ? Lord Aberdare. — The line of the award goes through the lake ; it does not give the whole. Mr. ScOBLB. — Ah a matter of fact, Fort St. Charles was within the territory assigned to the United States. -f- The order for the erection of these posts in the territory in question, you will find at page 64-0 of the Joint Appendix. It appears to be a report of the Conseil de Marine, dated 7th December, 1717. It says ; " Messieurs de Vaudreuil and Begon having written last year that the discovery of the Western Sea would be advantageous to the colony, it was approved that, to reach it, M. de Vaudreuil should establish three posts which he had proposed, and he was instructed at the same time to have the same established without any expense accruing to the King, as the person establishing them would be remunerated by trade, and to send a detailed schedule of the coat of continuing the discovery. In reply, it is stated that M. de Veudreuil, in the month of July last, caused the Sieur de la Noiie, lieutenant, to set out with fight canron to carry out this scheme of discovery. He gave him instruc- tions to establish the first post at the Rivar Kamanistiquoya " — That is just at the boundary. ___ • Dated 10th «eptember, 1684. "^ T.% ^£S OQ tiifi fiiiQrs of tlis Tff^V *> of ^-Hs Wocfis. l^ut witliin tihfi '^rsssGt- ITcitsd Ststss boiind^?^ lin a. 156 CONDITIONS OF THE SURRENDER OF RUPERT'S LAND. 3, moment . ; it appears to be e lake ; it does not d Ststfifi boilll£i£?' jin a. Lord Aberdare.— Fort William ? Mr. SooBLE.— Yes, Fort William • Ike-" ne.r lh» Lake of the Ohri.tme.ui, to e>t>blUb «.». of tb. third. 1 thV3t/'tL'tr„!pSiitw"'XT'"^ *" "" •*""'"' eo,o,, i:?p^&L-i^\ro„l^:/^^^^ '^ «■• ■'-■'-™' °' «» B./a^p::^^?S'i:;Th^K:^nVtK?Ln^^^^ certain •■ „„st, or station, n„„ actually po» Jed and oconpS by Lm°^ rtit ti^^retttei' - -' "^"= '- - ^wtrtht-reTnp^^Sol .'J Sir Barnes Peacock.— Yes ««f:„rtri.2''o?^:;™„T;S7hi.:'r'""° ^ '"«"'^'" ™^""-» — «> t,.:™:°riroi:er:r';:"t*Xtt7irRzrrH'''"»^^^^^ Sir Barnes Peacock.- They specify that. r.ndf;:i?°;E ?hT2t7ttf. ?,IL"-" '- *= '*=^"" '» *«'' ^-^ »' »- it to tn^Ser'thfr^-;;?;^ ^"''* °"™ -- '» '«>" ■'■ -^ «- t^rfer WlowtaSl .r,'" or/I"'" f,'"."' "'i ""^y "'""■• >">' " •>"" ■>»' -eceasarily ^ b«. I ttsihiiri: at°^e:tr £';:,^ni"ei S"^'-* '° '-^ ■'""'™'>-" °'-^*' ».nt™idrk°e?„!r™;7''''°\'«r''."P''°*'»»'»^^^ "d'hen the govern- look tre .urreader ^'^P'^^ ' '""""''J' «' 'he time that the governmelit * Christineaux-Kria— Orees T Deed of Sllrrnnd'"' "' ^ "- ■ - • — ' 167 ■the Indian tribn of that name. "~ •b L=nJ, iS-th Novouibbr, IS5S, the Goyernor and Company of AdTn. abgume;:t of mr. scoble, q.c, re question of boundary : » ■ ■' Sir Robert Collier. — Where is the Act enabling the government to accept the surrender ? Mr, ScuBLE. — Page 445.* Sir Robert Collieu.— I think this ' Act says : " Whereas a draft surrender has been submitted to the Government of Canada." I am not quite sure whether we have had before us the draft surrender which was so submitted. Here is the Order of Council, and I do not see that the Order in Council gives them all that they claim in their schedule, as at present advised : " The size of the blocks which the Company are to select adjoining each of their forts in the Red River limits shall be us follows : — Acres. Upper Fort Garry and Town of Winnipeg, including the enclosed park around shop, and ground at the entrance of the town 500 Lower Fort Gurry, (including the farm the Company now have under cultivation) 500 White Horse Plain 500." But I do not see that this Order of Council gives them all that they claim in their schedule. Mr. Scoble. — In section 2, on page 448, the next page : " The Company are to retain the posts they actually occupy in the North- Western Territory, and may, within twelve months of the surrender, select a block of land adjoin- ing each of its posts within any part of British North A.merica, not comprised in Canada and British Columbia" — The Lord Chancellor. — It goes on : "in conformity, except as regards the Red River territory, with a list made out by the Company and communicated to the Canadian Ministers, being the list in the schedule of the aforesaid deed of surrender." The Order in Council says it is in conformity with a list made out by the company, Sir Robert Collier. — That is so. Mr. Scoble.— As I understand, under that clause of the surrender, they have not claimed any land whatever within the limits of the bit of territory now under discu.«sion. The Lord Chancellor.— The Order in Council says expressly that the Com- pany may — " select a block of land adjoining each of its posts within any part of British Novth America, not comprised in Canada and British Columbia, in conformity, except as regards the Red River territory, with a list made out by the Company and comamnicated to the Canadian ministers, being the list in the schedule of the aforesaid deed of surrender." Lord Arerdare.— If they did get a block at Fort St. Charles, which is with- in the award.t would that be an argument that that was considered as not being a portion of Upper Canada ? , The Lord Chanckllor.— If it was proved that they did actually get it, it might be an argument, but the learned counsel says they did not get it. I should like to know whether there is any difference about it. If, independently of this, we should find a grant to Upper Canada, and there is any evidence that they actually got it, and it belonged to Upper Canada, the fact that by deed of surren- der they claimed it would not at all decide it. Mr. Scoble.— I understand that the statement I made just now must not be takci by your Lordships. My learned friends contest the point. The Lord Chancellor. — Very well. • Imp, Act, 81 and 82 Viot., c»p, 106. + See antt, p, 166, note f. 158 BOUNDARIES CLAIMED BY THE BRITISH COMMISSARIES AETER TREATY OF UTRECHT. irernment to accept out by the company, essly that the Com- r.gion^„'S:r'fhi7l;:et;^^^^^^ ''"^ '^"^ ^^^" ^ '-'^ '-^^- - *he particular are u%^"ht wS^h'is'" ^0^1^'^ ' ."^^^ "^«""- ^-«' -^ile we that is, with ;efrence to thft S.? K-V^^v^'^r .^''^^'' ^^an anything else, dated 703. There were two Zl '""^ *^ ^°!'*^ Chancellor had yesterday sdon la pretenZnZ:: A%iot^^\^^^ line n. ark e^ .- Zi/e map at a date conlrderably subsequeT.? Hh^r; '° K-\^ ^f" P"' ^'^ *^^ because althou-h the man il dTi^TV^no 1 r ^**« ^hich the map bears. Anglais" and the ine^S^on U lll^' J^'mT. " ^'^''^ ^« pre^ensiori de^ existence till 1719. The Hnes on t^irn^ "^^ 5 ^'4"<«^^^ " did not come inta pear to be lines on the oriS In but hL^^ '"^ "' ^ '^u '"''^^'^ ""'• ^' "«* ^P" period. I am told they io not "S^^fr on the fn- V.K *^' ^^^ ,"' ^ «ub.sequeit I think it must be so, for this rea on tuT^f t . .< ^ "".^'"*' '"*'^ ^^««1*- ^"d of which there is no evidence XUer at th-l f ' F^^ension des Anglois " your Lord.ship will find it at nal fiiTf ?u *^^date on the map. but in 1719, ^Boundaries Claimed Ey tL^E^^fsh o^nli :^^^^^^^^^^ ^ff"? ' ," K^" *^^ ^^^^ «^ under the Tieaty of Peace set fnrfh fV^f " , . ^^^ f^nghsh commissaries find the Memoir of d^lureu 1+ .n I .°^' ''^u ^* ^"^^ ^^^ your Lordships will forward by the commissaries '^ ''"^"'"^ '^' " P-^^ension des Angloi!" p„t lo Z M::e:C!l "eZ: f:/- ,X' ;f "l f ."■^""* ^^--O-nW, *Ar«„.A Lora Stair, not U. pernntte'*«• the subjects of each nutioa shal! xriS"^'"^T ^ ^^^^t^:^^ te:i ^l^''« -^^^ i™'- -v be de«„ed i„ the what™..vi,r Khali be allc.wed to pass to the north nr fhl !'^:.= *!?'^,*''*^ no French vessel, boat or shin or into the Str.ut or Bay of Hidsm umle" any nretexrwh 'f''^'' "^ '''^ "P'""' "^"P^ "^ i^^vis' Bay, towards drawn rom the said north cape of Davis- Bay t^wa^l 7>''^"«^er; and furthermore, that a Hm shaH bl he 8=u,l lake .„to two parts, and that a the pkce Xm tt """^f ^"^^ Miscosinke or Mistoveny, dividing m.rt, atiti.de another line shall co.n.nence, nd shallbe t^l'^f, 1">'« «hall intersect the 4i)th parallel of he 4iith parallel of north latitude ; beyond wh ch Jinlvlf ^ ''"u^'i*^" ^''«' ""'e f>-"f" th.. said lakealon? r;:^ri'7;,te''y|'l''- »'.-•' PaB^ the French nor any 3 ,t^r::?L!;t™:sr„="i™^';"".»' «-».•. «... .™.». fM d'A t 1 *»v»ivuji,, nrarKCTI.fO THB LiM to Uw Ki.(Uih deniftrWi ; th., wer. .0 ,r.p.r«, p,oWbl, for the infb™"iorouj:iVrincrc7„^'iZri''-r"' '" """ MtkWniM lud«t,ti:, Tll!fi\^«i?»>f"* *^« ^^»«- 0» ''t. «p^itio"B"tST»'iv^ ARGUMENT Of MR. SCOULK, Q.C , re QUESTION OF BOUNDARY : The Lord Chancei.i.or. — This lino was what at that time the British Qo?- erment claimed. Mr. ScoHLK. — Yes, my Lord, and what the French government would not agree tu, and so fur it illustrates, and muy perhaps illustrate correctly, the state- ments to which I have just referred your Lordships ; but as nothing whatever oame of the reference, I imagine noitlier party is bound. The Lord Chanokllou. — The line there laid down is a straight line ; tlie boundaries as actually ascertaiiKid are irregulai*. Mr. SooBLE.— The B^rench boundary, your Lordships will perhaps remember, Tuns close round the shore of Hudsons Bay: M. trAuteiiil's memoir locates the boundary there. The Lord Chancellor. — The British pretension brings it to the south of the lakes. Sir Robert Collier. — It tloes not claim any territory south of the line drawn. The Lord Chancellor. — The lakes now called Winnipeg Lake and Mani- toba Lake are treated us one large lake, aulace them at the 49th, not only from the shore of the Bay, which hM been ceded to them, but stretching toward tho west in every longitude ? The Treaty of Utrecht speaki only of restitution— let the English shew that which the French have taken from them, and they will restore it to them ; but all that they demand beyond this, they demand without any appearance of right. Article 10 of the Treaty of Utrecht restores Hudson's Strait ; why then wish that the boundary on this side should oommence at the north cape of Davis' Bay, in 51!^ degree* of latitude, since this cape is more than 120 leagues from the cape of Isle Bouton, at the 01st degree or thereabouts, which is the commencement of Hudson's Straits? This excessive claim would carry away a large portion of the land of Labrador, which France has not ceded. The line of separation should then commence at Cape Bouton, pass through the middle of the territory which is between Fort Rupert and Lake Nemiskau, of which Pbre Albanel, Jesuit, and Mr. de St. Simon, took possession in the name of the King, in 1072 ; follow, at the same distance from the Bay, along the eastern side, in suoh manner as to diviae in the middle the territory between the Lat^e of the Abitibis and Fort Monsipi or St. Louis; continuing, at a similar distance from the shores of the Bay, at tho western side, until beyond the rivers of St. Th6rfe■ .h?r..:j, Ke LtMtcrt\K';'hit ft';:':':,i"is,T„'rj'E tti otIi.T person, who chose to come int.) the coui.trv-in fnr./ U l7 °^ the eviilrnce. that after the treatv of 17fiq o^hLr £7 . • i ^"''. "'^'P^'"'" "P«" tory. in advance of tho Hu'so 'Xy E^u^£:^J:miTZ '"'' '''^^*""■ cesses, ostal.lisho,! trade rij^hts, an-1 the"r St' toh-Pin A,f ^' ^.^ '"""'-^ P'^' business and settling then.selves Iwnl hf a lu 1 rkts KS'nr'ir".!; "° traders for ,ed .hemselves into a coM.pany Odette Nr^ which for a series of years carried on practical vVLoivi I ,^^"'>^;)^f ^ ( ompany. jeet. Lord Bathurst was So "aryot" State YlTlSl-r^-u^^''.'^^' ''t Ontario Appendix, beginning, at uJo 42 oJ?L ^f r.-'' 'u"^ '^ ? '^" neighbourhood, with which they stateTherets to be JhJealtd » '^'"" °'*""'' ''^ *'« Then in the next letter, one from Sir Gordon Drummond to Lord Bathurst " Px.f 1« on which the aw can alonn flppiH« • i^ i,o» *k « "^ui-'reiy one ot law, and one in fact North-West Comprny Jo a legaTtbulh" '"'''" '"^ ^'^^^^^ '^^'^ '^^^^-'^ ^^3^ '^- There is a good deal more correspondence very much to the sam^ effV-nf aiw * 11 (B.) 161 B^ IMAGE EVALUATION TEST TARGET (MT 3) 1.0 II 2.5 £ ■- IIM 1.8 1.25 1.4 III ''^ .^ 6" — ► v] vQ ^ ^ ^. m !^ ^ /A '^ Photographic Sciences Corporation pt> 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 '4^ »S,i- €//> m. mfw* ARGUMENT OF MR. SCOBEL, Q.C., re QUESTION OF BOUNDARY : treaty with France. Then again, in 1817, page 146,comraissioner.s are appointed to investigate and report upon the subject of dispute between the Hudson's Bay Company and the North-West Company, and a proclamation is issued command- ing a mutual restoration of all places seized, and the removal of all blockades or impediments to the free passage of trade and traders by the accustomed coi»muni- cations.* The Lord Chancellor. — Are we not getting into an interminable quagmire? Mr. SpoBLE. — I merely wished, with reference to this particular part of the country, to say it reallj' was, except as far as men chose to occupy it, No Man's Land. It was under the government of England, exercised through the govern- ment of Canada, and anybody who chose to go and settle there, and establish posts there, could do so. The North- West Company were establishing positions there, quarrelling with the Hudson's Bay Company, and the Canadian and British governments prepared to leave them to settle their disputes in a court of law. The Lord Chancellor. — All that ended in the Rupert's Land Act. Lord Aberdare — Your argument is to shew that the mere occupation of certain hunting posts in this region, which occupation was in common with other hunting associations, is no proof that it belonged to them ? , ' Eabl Bathuest, to Govebnor-Genkbal Sib John C. Shebbbookb. Downing Street, 6th February, 1817. SlB^Since I had the honour of addtessing you on the subject of the dieputea existing between the North-West and Hudson's Bay Companies, I have rec«ived int«lligence from different quarters, of the con- tinuance of those proceedings which h /e involved the whole Indian country in disturbance, and which, if a check be not early put to them, threaten to b«i( utterly destructive of the intercourses subsisting between that country and His Majesty's dominions. To prevent consequences so fatal to both parties, and so preg- nant with danger to the safety of the Oanadas, His Royal HigLs^ss the Prince Regent has been pleased entirely to approve of the appoiatment of Mr. Coltman and Mr. Fletoher, as commissioners to investigate and report upon the subjects of dispute between the Hudson's Bay and the North-West Companieo. But as much time must necessarily elapse before their report can be received and properly considered, I am com- manded to signify to you His Royal Highness's pleasure that measures should be immediately taken for putting an end to those violent proceedings, which have latterly marked the contest of these two companies ; and with this view, that each should be restored to the possessions held by them previous to the commence- ment of their recent disputes. You will therefore, upon the receipt of this despatch, issue a pioclamation, in the name of the Prince Regent, calling upon the agents of each partj-, and upon all those whom either may have enlisted or engaged in their service, to desist from every hostile aggression or attack whatever ; and in order to prevent the further employment of an unauthorized military force, yon will require all officers and men composing such force to leave within a limited time the service in which they are engaged, under jienalty of incurring His Royal Highness's most severe displeasure, and forfeiting every privilege to which their former employment in His Majesty's service would otherwise have entitled them. You will also require, under similar penalties, the restitution of all forts, buildings or trading stations (with the property which they contain) which may have been seized or taken possession of by either party, to the party who originally established or constructed the same, and who were possessed of them previous to the recent disputes between the two companies. You will also require the removal of any blockade or impediment, by which any party may have attempted to prevent or Interrupt the free passage of traders, or othe's of His Majesty's subjects, or the natives of the country, with their merchandise, furs, provisions and other effects, throughout the lakes, rivers, roads and every other usual route or communication heretofore used for the purposes of tlie fur tr.ide in the interior of North America; and the fall aad free permission for all persons to pursue their usual and accustomed trade, without hindrance or molestation ; declaring at the same time that nothing done in consequence of such proclamation shall in any degree be considered to affect the rights which may ultimately be adjudged to belong to either party, upon a full consideration of all the circumstances of their several claims. I trust that the parties themselves will understand their own interests too well, not to jrield a ready obedience to the comm'tnds of Hi^ Royal Highness, but in order to ensure it you will not hesitate to arm the commissioners with such additional authority as you may con- sider requisite to enforce the proclamation, and to take every other measure in your power for securing the objectei which His Royal Highness has in view, namely, the cessation of all hostility both in Canada and the Indian country, and the mutual restoration of all property captured during these disputes, and the freedom of trade and intercourse with the Indians, until the trials now pending can be brought to a judicial decision, and the great question at issue with respect to the rights of the two companies shall be definitely settled. I havfl the honour to be, etc., Bathuest. Lieut.-Qeneral Sir John C. Sherbrooke, G. C. B,, etc., etc. 1()2 JNDARY : THE AWARDED LINE IN CONSONANCE WITH LAW AND WITH THE PAC^ W SfD7R^ T"^ '^V^' ^'"'^'''y belonged to them. Mr ScoBLE -Yes~ '" '" directing your argurrfent to that particular point ? LordJhfp7n1tL'ruVonlMsTase T£k T'"-?^^ ' "^^^ '"^ "^^^^^ '<> ^-r Arbitrators were perfectly L«fTfi;^ v ^^'^^-i^e evidence amply shews that the the line whilh therdTd V^^^^^^^^ iZ'^lf'TTl 1 ^"^ ""^ ^^«^' ^^^ ^^opti^ I ask your Lordshi^n. to 'conXm t^eir Iwa'd ' ""''"'''^* ^^'^^ '^"^ '-1^^- [Their Lordships consulted.] will Jni; ^hr tt^^nXld Tft'i^^^^ t^^^ ^' *« .^« -?-^-d t^at they Province of Manitoba wish e^ch to be h.!? f K ^•T^''?? ^^ ^^^^^d* ^^^d the who are to be heard amon^ thfvarious cm,! f '^.''''' ^^t^^ ^"^"^"^ themselves there will be only two counsel heS Th.n ^'^^T.^^J ^ * it is one case, and desire that you shVld traveT ito Je queltioa of 'auv ?n f^.^^':, ^^I^^^P^ ^o not hmits of Canada, north or west ThprnnnS .t^^'/^definite extension of the sent identification of the bo:ntarieIt;:ilTn iVtt ^b^Ar '' '' ''' '''- r^nsi'l:tMfy!:rL^^^^ ^^l<^\ the Province of Ontario now limited the demand of the provTnce is fir ? thatfb^r. *" ^^-«^>hey have the proper line on the west- thVnrT,!;.-f'- ' ^ '^^ due north line is not the due' north line, bu? that the 1 nHaken W """ f'"^* . ^Z""'^'^'^' ^*" ^' ^' ^ol line to follow on the west, a on. the bank o? S M-'^- ^"'"^^ '' ^^^ ^'^P^' get the determining point, t app°ears to me ihJ.l ^^^«'«!^PP\then, in o.der to where the southern boundary of the HuZn's 11 . ^'7'°'^" ^' ^^""^ *« ^^ew until you get .o that southerJ boundary, he liS^is Tot SJ" U^ '^'^«^"««' you follow up the eastern bank of fbA mT.!j ■ • J" ^^^°- ^^' ^«^ ^stance. of land, and that height of land was the soSho7?>'' ""^^ y«^««'"« to the height territory, then the course in order to find ^ ^^'^^^ «f the Hudson's Bay follow that height of land If Sat be nott^tj'lr ^'^l^'^dary, would be to Hudson's Bay territory ment oned in ?he t/nf \\ ' ?""*^"™ boundary of the where my lea^rnedfrien':iwourask your S^^^ L^ Tb' ^°" !? ^"^^ arbitrators assumed that there was no Hndinnt r , -P' ^^® ^^^^ of the through this height of land of wISi I am no ?,n.?^^ ^""l^'^ ' ^^'^ Penetrated west angle of thi Lake of the Woods TJtLT^i''''^ ' *^^ ^"^t to the north- « height of land t^ |p.i«tlt th';?ght™n2.i:t''aU.'"" ""' "■^"■"=" ^'°- - "' P--t which 163 ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY Mr. McCarthy. — My suggestion, if your Lordship will allow me, is, if that height of land be not taken, where is the line to stop ? That is one of the diffi- culties that has always occurred to me. The Lord Chancellor. — At present, upon the evidence, you have got certain limits laid down in certain documents, in the Quebec Act, a most authorita- tive document, and, to identify them, a map is produced giving the line of those lakes and the English River as the southera boundary of the Hudson's Bay l.irritory. These seem at all events to lead to the conclusion which the award has arrived at, and they have to be answered. Mr. McCarthy. — Yes, my Lord. Your Lordship will see the award finst follows English River, then up to Lac Hsul, and Lake St. Joseph ; it then takes the Albany River, and goes to Hudsoi.'s Bay. The Lord Chancellor.— You will observe, if the rest of the territory, farther east, is assumed to be coirectiy laid down, it ij a consistent water bound- ary. The water boundary starts from Hudson's Bay, going up the Albany River to Lake St. Joseph, then on to the English River, and so out on Manitoba terri- tory. If any natural boundary is to be regarded at all, that seems to be a very feasible natural boundary. Mr. McCarthy. —It entirely ignores any rights of the Hudson's Bay Com- pany. The line by the award is from Fort Rupert on the east, stretching to the Albany River on the west. Supposing there be any part that the Hudson's Bay Company were clearly entitled to between these two points, it is where they first settled and where they continuously < ccupied, and yet the award takes from the company that part of their territory to which beyond all question they are most clearly entitled. Lord Aberdare. — The award did not deal with this question of the addi- tion to Ontario. ' Mr. McCarthy. — Oh, yes, my Lord, the award started on the east at Fort Rupert, and then went along James' Bay until it struck the Albany River. The Lord Chancellor. — It is not that the arbitrators considered thiit to be. the bcmiidary in that direction; their oiEce was to arbitrate between the Dominion and Ontario. Mr. McCarthy. — The Dominion were alone entitled, at the date of the arbi- itration, to both north and west. Since the award, Manitoba has come in upon the west, but at the time of the award the Dominion was the owner both to the north and west. What I am pointing out is this, that if the due north line is followed to the north, a plain consistent line, of course that would end your Lordships' labours ; but if the due north line be not followed, and the Mississippi course be taken, as is urged on the other side, then in order to find out where the western line is, it is necessary to find where the Hudson's Bay territory ended, If it ended, as we contend, at the height of land, then your Lordships 'will see the effect that will have upon the western limit Where it appeared to me that my learned friends' arguments were inconclusive, was that they gave your Lordships no data, assuming the Mississippi was the proper course to take, where that should stop. The Lord Chancellor. — This map [Mitchell's] is evidence. Mr. McCarthy. — Conceding for the moment that that map is some evidence, and I think I shall be able to shew that it is not, it may not be unimportant, -at the opening, to point out what were the rival claims, for the Dominion and the Province, when this reference was made. The Dominion claimed, consistently, all along, for the due north line, relying upon the construction of the Quebec Act which we propose to contend for here before your Lordships. The Province, upon 164 • • BOUNDARIES CLAIMED BY DOMINION AND ONTARIO RESPECTIVELY; ,1871-2. on of the addi- 3ate of the arbi- PigeoLm™^"!'"' ""' " °"'""' » "" i»t,™.io„.. boundary from th. mouth ol ■■-}-■ Mr°ioS„?™ Yer-^'" " '"^ °"''"° "'»■"'*'«=' ^5' them in ,872 , •nd (he copy „rrapp,„v.d Mhu,. rf irp ■' ' r '"' ';' 'J'.''"""''"? "■>» »( Ontario, that the govemSrf C.n.rX,,u T" 'l""^. "'u''" '"■ '"'' "" """ittee adviae taudary LtJ"„X l''a™t?5»oripH:°'°r' *" "'' «°™'°"°""' ^ "*°'»' "" Now we come to the description : Pigeon E^v«^on^'^IJ'"l°^ ^"**"° ^ ^'^^ international boundary from the mouth of the fnrn^tiriVound:.^^ ]fn?ruid °b: iTrLrd t f r- "^r °' ^'^^ ^^°°^«' - '-« ''« of the Mississippi River three the boSnlrvV ^fnT ^'^^'^ "'"''^'^ ^'"'"^ *'^« ^o"'-^^ intersection of the southern bou„darroft7eH.l 'T ^"^^-'^ *° ^'^^ P°^°* ^^ _J'^^!i:^«^0^HANCELLOR^^ ^j^p^^j ^^^ \^^ ^^^^^ ^ I.ea north of the waterBhed of the KaTence lyZmTseZ'oT^'^t'f^, **"" '''' "'"''^'"' ^«°'*'''y t The two remaining paragraphs of the Order in Council are as follows- r- - limit. i^r^X'^of t^r^oZn*^^^^^ be '"fo-ed. that as to the western inents of Canada, that the limit "ntarirfa ftfrfLrtl./l *Tu"'°'°«^'*'«''°'=''«"*»°n of fo^er govern. that, while this government .^prepaVedfi view o all The c;r?,?2^,! ""^ r"°'"^ '" V^^ description, and propoeed, in case the same is accepted byt^e Lvfl?nn,«„f „f«""^^'^ ""^^^ *° **•« western limit so Itself bcmd by the proposal in any other event '^°''^'^""«°* "^ ^"""da. this government does not consider m^on'VthZt'ppoS^^ illTrtrtr'"'""'/^** :5'l'« l"-™™-* ™-"tains the the northern boundary lies north of ?he watershed of the S^^^^^^^^ ^'^ by the ndisputable facts, that 18 the northern boundary laid down by tCKovernment of PaL^^ ^a^^' ^^^ ''"? °^ ^^'""^ watershed (fovernmentof Canada should be inforLd that In Zw,.?.iTT- ' *°*^.'*** committee advise that the prepared, in case its position as to the northern boundarv fs aillpd'r'?''^r''' '^'« government will be consider any proposal which may be made by that government f.fr thl 1, \V\!.^ government of Canada, to to tile north of that watershed. government for the establishment of a conventional limit Ifi.T ABGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY : Mr. McCarthy.— No. They adopted the western limit at the Lake of ihe Woods. Instead of treating the Hudson's B&y territory as existing in fact, if at all, thoy ignored the Hudson's Bay Company having any claim. The Lord Chancellor.— I am afraid I do not see the topography exactly The Hudson's Bay claim, in 1755, appears, so far as the question now in dispute to have been limited to the water line— the water line of English River and the lakes. That is all we have at present upon it. Farther east, we know nothing as to the boundary, but I want to know whether that is different in your view from what is here claimed. Mr. McCarthy.— Oh, yes, my Lord. • The claim, according to that map, would have been to the height of the land. The LoRP Chancellor.— There is not a word about it. Mr. McCarthy.— It says the Hudson's Bay territories. . ; The Lord Chancellor.— We have Mitchell's map laying down the soothern limit of the Hudson's Bay territory. Mr. McCarthy.— Perhaps I may as well state that we propose to satisfy your Lordships that the Hudson's Bay territories were either bounded by the 49th parallel or by the height of land. The Lord Chancellor.— At present we know nothing about either the on° or the other. Sir Montague Smith.— The proposed boundary, mentioned at page 334 u what the Dominion proposed ? Mr. McCarthy.— No, that is ^vhat Ontario proposed. The Dominion pro- posed the due north line. Your Lordships will see by the next sentence of the letter. It may perhaps be as well, my Lords, to look at this map of Mitchell's,* which your Lordships think affords some evidence in favour of the view taken by the arbitrators [producing Mitchell's map to their Lordships]. Now this map, beyond a certain point, may be said to be, I think, so wholly wrong as to form no guide whatever. The first thing which I find in the map is, that the height of land is laid down and stated to be the boundary of the Hudson's Bay territory. That is the first thing I point out to your Lordships. You see it savs " by the Treaty of Utrecht." ^ The Lord Chancellor.— The height of land does not seem to be connected with the words Treaty of LTtrecht- " Bounds of Hudson's Bay by the Treaty of Utrecht." Then you may say that the thing is continued, no doubt. Mr. McCarthy.— That is what I mean. Lord Aberdare.— That is not the land's height. Mr._ McCarthy.— Yes, at that particular part, that is the . ud's height. But what this geographer, or mapper, did not know, or did not mark down, was that this land's height came down here [indicating the position of the height of land to the west of Lake Superior]. Lord Aberdare.— Perhaps that is because the land's height at that particular part ceased to be the boundary, and that is perfectly consistent with the descrip- tions constantly given by the English commissions to go to the north-west point of the Lake of the Woods. Now the north-west point of the Lake of the Woods IS certainly on the northern side of the watershed. There is the Lake of the Woods, and here comes the height of land [pointing on Mitchell's map]. Mr. McCarthy.— From this point here there is then another height of land, so to speak, not properly speaking what the Americans term, very expressively, " a divide," but a height of land that runs to Split Lake.t These rivers here all drain round Split Lake into Hudson's Bay, but this is the separating range of hills. * See ante, p. 107, note. 166 t See ante, p. 7, note +. THE AWARDED BOUNDARIES, 1878. hat map, would n the southern either the one at page 334, U of M/M?CAR?HrY''^'*r?/^ also drains into Hudson's Bay. land fomes down he- ^^^ " " ''' '"'"^° ' '^''^' ^^'^'^^ the^en'^lltrwrSTaltSt^^^^^^^^^^^ ^«"-. ''^though Si:i^:sr^of3S^3 Sir Srt ColTtL f ^ f^^l ^ \^'^ '° ^^P^^i° *h^' ^he« I come to it. and thi^' pp£'^Xl S.Tr XT' ^^ '"' ^"'^^^' "^^ ^^^^^^^^' Mr. McCarthy.— Yes ' ^^' Lords^hlp^e^f"-™"™™--- °f *« Treaty of mreoht, doe, your TreaJ^'^fuS'"'"-'''''' '""'"'"''>"' "'C-'''"" ""O ^orche^ler _ not the La4%tT„;£s-^.i^r,iL«rSTi?' " ="- '--- -* «-- *« is A... tpSf«;:i7*J't:p?'"''"'°'"'' '^ ^o™ *•"■"• "«' !""<» Chrisli„ea„. consiSbtSrIcT"''" "'" """ """ '"'' ■""» 01,ri»ti„ea„x extend, over a .. th^wS™;; toe"t .V' °''™""»''"^ '^»''«- Tbereis „„ such lake Lord ABEEDARK-That is a minor matter. neeti"^Uhthf £■!;«■;£ ttl°Wo'' f'^T^^o^tUy lake as the boundary con- lakes A^'-^^^-^-The Albany River really represents the outBow of these ehere1,%h?AC7ES?:r' tIsTs t T',' H^'-^T '" •"""-■ ^ay, .»d Manitoba. ThisTke Is welt^ffb^f 5'''A "'''?'"■ That lake there is Lake .ponding to it on the co^rr/t Lap puf in"" """■" "' "^ ''^^ ''""' ■" »» — S,r Robert CoLUER._It is an incorrect map no doubt •nd tj;^&-t-T:s' !:ir..^ir - «- — ^- wa ABERDARE.— Here where the English Kiver is ? followed If irnr^vt''mfnr-'^^^ '^^-^^ *^- — They have of the Woods here ^and ther.Tt^t f n"''''.,,*^^'^- P'^ ^«"«^ ^'^"^ ^^e^Lake to the AlZy Sver ?ak nrfhl R ? ""^ ?' '^^''^ °^ ^'^'^^ ' ^^^^ ^^en they get ortheRupTrUhThStif^SLfhtr^^'^ ^'°" ^^ *'« Frenchman's R^^er, ^^^^^^^^^^^ -'--' ^-^e arbitrators was the Dornlnfon^'S?e''oSgi7afLZ *'^ .1f'^'^*'"^^ "«^« ^-^-^ ^^^^ the not approach thrLakiorAw^'^^'^,^^"'°^^''*^«"°«' whose limits did pproach the Lake of the Woods, and the arbitrators were finding the - 167 !i; ARGUMENT OF MR. m'cARTHY, Q.C, re QUESTION OF BOUNDARY: northern and western boundaries of Ontario, and what they did wahto follow up tins chain of lakes here and ^o to James' Bay, takinoj from the Hudson's Bay Company all that country which undoubkedly. according to every contention, was treatud as the Hudson's Bay territory, if the charter was good for anythinu-' at all. If 1 am correct in my contention that you must first find this boundary that IS the southern boundary of the Hudson's Bay territory, in order to deter- mine the western limit, then the arbitrators were all wrong. Lord Aberdare. — Then, according to your argument, the arbitrators should have followed the line of the height of the ground. Mr. McCarthy. — Yes. ,, Lord Aberdare.— That would have brought them down here [pointvaq on the map]. ^ Mr. McCarthy.— That would have brought them to the boundary between the States and Canada. Lord Aberdare— Then the whole of the Lake of the Woods would become a portion of the Hudson's Bay claim ? • i Mr. McCarthy,- Yes. * Lord Aberdare.— Then how is that consistent with the description given in the commissions ? Mr. McCarthy.— That I will point out when I come to them, more clearly. ^ _ Sir Robert Collier. — This map does determine the southern boundary, if it is necessary. Mr. McCarthy.— We do not admit the correctness of that map. Sir Robert Collier— But taking that map, this is the southern boundary. Mr. McCarthy —Yes, but then the arbitrators have gone far north of that. Sir Robert Collier.— That is another thing. I was only dealincr with the necessity of determining the southern boundary. ° The Lord Chancellor.— I find on this map which we have been furnished with— Mitchell's map— the line is laid down just to the south of that chain of water, and then it goes on eastward. Lord Aberdare.— Were the arbitrators instructed to find the historical fact as to this boundary, or entrusted Avith the power of laying out what they might think, having regard to the general historical facts, the most convenient boundary ? Mr. McCarthy.— There has always been a doubt on the construction of the Orders in Council. I suppose the proper construction* of the Orders in Council was that they were to find the true limit, but the Ontario government seems to have thought it was po.ssible that a different construction might be open, because the legislature of Ontario passed an Act saying whether it was the true limit or not, still they assented to it being made the boundary. Sir Robert Collier.— That is, they confirmed the award simply. Mr. McCaktey.— Whether it was the true line or not. Sir Robert Collier.— That is to say, it could not be questioned. Mr. McCarthy. — Now one other preliminary point before I go into the argument which we propose to advance, and that is as to the territory that my learned friend told you Ontario had if limited by the due north line, and which Ontario would have if the arbitration line was accepted as the correct one. My learned friend has been quite right in stating to your Lordships the territory in one way and the other, but the extent of territory has but very little to do iu a question of this kind, as between the different provinces of the Dominion. It is population by which, and properly so, the representation of the provinces in the Dominion Parliament is regulated, and already Ontario has, out of 211 members, 168 I '. a/jxae ii )UNDARY irbitrators should 9cription given in QUESTION OF EXTENSION OF FRENCH CANADA TO THE MISSISSIPPI. have to say frankly H is nX LcludTin^ Ih" v °"*''"°' ^^ '^ '^ ^^«' ^^'^h I iuipossible that the confedemSnn .in t t/^''^^^ °^ ^"^*"«' '^ ^o"'^ be betvveen Lake Superior an^^^^^^^ ^" u >'*^"u"- , ^'^ ^ '"^"^^ °f fact. north-west angle ff the Lake Str^Wnl''^^"""? the height of land and the land that can be' Useful forsettlementTh!: '' '" ""' arable land. This is not valuable to the pmvince I r/nr!rnM; ^ ^'' ""T^^' *^"'^«' ^^t it is chiefiv Ontario does no? rZire bTt wh^Jh T ^". TT "^ '^' '^™^«^ ^^^Hh, whicK roquireforitsTurpole 'ThatTs an ?^r'?^*' ^^V°^ f ?'''^^"^ P'-^^i"^^' ^oes su ,po.se that yourTordshios ti^^ h^ Jfl ?->^ tu"'^^ *^^^ ^«^^"«« ^ ^o not tions as to the^extent when^thT uest o! I^n • " ^^^ I'^f ^T'' ^^ considera- Do,ninion are anxious trascertai fsXhat l^ /rfr^ t" •."" P'^'T^^^ °*" *^« proper line, and accordinrf of v,Tr!ujTm^ u a *'V^ ^"»'t, according to the 'provinces conLnScfto comX'ether '^^ """"' ^""^^" ^^'' ^^^ ^^^^^^'^ -» *hese southtTso\ra^br ^^'."'°:h« geographical part of the southern country- ^1 TdeZ whol lyffaf C\\^,rr""n V^^'^^^ ' ^°>^« ^'^^ other consS^r- tl.at is, French Canada Stf wTn ' ?. T""'^' ^^'' "'T^^"'^''^ *« ^he Mississippi- and the Ess^t>pi th-re wa7 fhT ^^ '?'' P'T''^^ ^P^"'^'"^' ^^^'^^ Canada Mississippi mouth bv sea alsrandfwVif i '^^'^^'PP'- and discovered the c.«,,toboral"w ith-and™'^^^^^^^^ """.'iT °' .'J^''^-''*' '' O""""! Amherst, point out more in detai in a tlSZ ^^ntry bet«reen the lines which I will insisting that ?hat shouU be kSTi n^ f 'it ^T'^^^T ' ^""^ ^oth sides were self clearer than by say n. it wl preUv I'oit*^ Perhaps I cannot make my- — ^ ^ >= " ^^ P '^^'^y "^"ch as England and Russia are to-dav ♦ft ,.. » i..vi;_ !.__, , . . ^ ~. • •' bey:^^4.fV;\?„':'tplralS'^^^^^ ^'' -?-"! to"^i;7 ^iBsi.dppi. and indeed notet) A chain of forts, establisCdCTanadianoC™f/*^'^^^ (See ante, p.^142. ,„-.-! "*"" ^"'"' ■*"" "1 H8 triDutarie.s both wasf-nrlv n.nri io,.r i — , V ."» ""° "*<"^ "^om cne x linoig ud- iP™"« du Chea), at the junction of the VViSn w^tel SA*" • ''^°"?* ^PP' "^ -J.) Fort St. Nioolis of these (Ontario App. 39. 98) ; and Fort St Antofie Wh^r ^TZ'^^'-' ''"''•""^ "^ t^e most in.portant Nicolas Perrot datecf his recoVd of the taking (^TJa^ '^ ■ "Pu""* Mississippi, was the post from which Governor of Canada of all the coLtries o le°u'^p*L%rirooi''L7^«''^^ "U^' Marquis^de DeTonviut note). It IS among the Canadian posts and HfifTwfi^fVo^P?i"i,*'^'*- '■^^^ *hi8 record ante, v 147 who describes the settlement as "a le one" 7STnn*'Rnlf* '"Governor Fownall'a account?in iS was variously a dependency of Canada or of Louisiana Li^^Hin'Vi.^^*^ Country of the Illinois, so called PrPnJh" """' '•*'"""»'y f"^«fi«d, and garrsSbra lar^J^^^^^ ne e" deaLT'n"'" "^^T ^"^^'^'^ °^ konZ 1 (Jo^int lli Tlol XVil ''^ ^^ »«/'"P''aticalIy a ne.er denied, nor could deny, either in Mr. Pitc's or any other Mme ' ' ^^' ' ^'"^ '*''' Kntfland old S:,ruXlMk^ Rive^rlSK'^Aire^'il f^lttf • ''' ^"""^""^'^ ^^"^ - ™-^ of '^e ,^,^^;The proposed neutral belt did not at all embrace any porti'on of the territory in question on this 169 ^ r; ^!i it ; a< ARGUMENT OP MR. M'CARTHr, Q.C., re QUESTION OF BOUNDARY claiming that there should be a neutral belt as it were between the two empires m Asia. I will point out that correspondence, if it be at all disputed, in detail ihat went on to 1761, the capitulation of Montreal being in 1759. In 1763 the treaty was made by which tho Frenth ceded Canada, in the first place, and its dependences and hnally, for the purpose of establishing a boundary, not merely tor this north country, but, your Lordships will find, down to the Gulf of Mexico Ihey fixed the Mississippi as the limit between the British possessions, on the one side, and the French, on the other. It is not very difficult to understand why France, having now lost, by the capitulation of Montreal, what is properly called L/anada— that only being claimed— were willing to give up to the Mississippi because, by a secret treaty made in 1762. a year before the Treaty of Paris they ceded Louisiana to Spain, although that treaty was kept secret. So that it became unimportant for the French to con'-.end for having an intermediate territory which it would be utterly impossible for them to hold. Now. my Lords, we contend that this view is important, with reference to the construction which has to be placed upon the Quebec Act. and I will point out very briefly— because my learned friend. Mr. Robinson, who represents the dominion, will deal with it more in detail— what on that question our contention 18. Your Lordships have heard the Quebec Act of 1774 read, and your Lordships bear m mind that in 1763 a small province had been constituted, by Order in Council, or by Proclamation, speaking generally, to the east of Lake Ontario. In 1774 eleven years afterwards, it was proposed to enlarge that province, and we da not dispute on our side that the recitals in that Act make it abundantly plain that the object of the enlargement Was to take in French colonies and settle- ments ; but what we do say is, that the Act never intended to make it— and for obvious reasons— part of the Province of Quebec, as to which, your Lordships remember, the French were mainly interested, the Roman Catholic religion being made the religion of the country— they never proposed, we say, to include, any- thing beyond what was properly called Canada.* n .v-^v® ^?-^^ Chancellor.— What do you mean by saying that the Roman Catholic religion was made the religion of the country? The existing Roman uatholic estabhshments were supported and maintained. Mr. McCarthy.— It goes to this extent, that it permitted representation of the Roman Catholics, and Roman Catholics to be representatives. It acknow- ledged the legality of their religion, which at that time was not acknowledged in this country. ° The Lord Chancellor.— There being no rights established beyond what were found existing. Mr. McCarthy.— There was a good deul of feeling at the time, iudcring by contemporaneous literature, with reference to the extension of that favour to the Roman Catholic faith. Now, perhaps, I may prove to your Lordships what I have said by reference to the correspondence,t which shews what was the true limit of Canada. If * '^^^ claim that Quebec was limited on the west by the due north line, is an acknowledement that the +ThR VADDRKUIl-HAlDIMANn AfFAIB, RB8PE0TINO THE LIMITS OF CANADA 1769 M. de Yaudreuil to the Due de Ckoiseul. h-fJll¥""~-^ 7%' astoniehed to see by the historical account of the Memoriafofthe ^eStions Mirfs enlirX'f^sf fnd''tl'„'^^*^T 9*'W, OP MONTH,*,,. 1750. I traced no limits whatever and in all ?L " *"*'^ ^^'^^ ^'^«» ^ capitulated. general and me I made use 'of the^word ^^Zl^'X Hr^ 1"'"T '^•^' ^"^"-"^ ^^anacta, only. Jj^ig ht or ten days after the fcy' :i*^tu^ptalltr t» ^nXfr rr^SsTal'K'^' t?'^-himofth«extentofthe Qn«beo, m breach of the capitulation of that p°^e" a.?d th« ^ffl.f .T" 'S"""' """y '''"' °>y baTOage »t Deab Sir -I have been twenty times at the ooli.t of wriH„» f ^*"' ^°^^,' ^'^ November, 1762. consequence, I should be glad to know thfl RvaH- f^^niL/- .u"? *° >°'i' "" » ""b eot which, though of no to the Secretary of State, I transmitted a copv'ftren"\*^^^ T""" I """^^ * report of Canada and Louisiana were marked, which you delivered to ine''!'',°ih:^h T^ ^»'«r« th« limits between Canada were done by M. de Vaudreuil. Whether bv him LT' ■ u-^ ^ acquamted the Secretary of HUte .ame thing, and the thing itself is of no sort o^f ''rnse' ence'"as ^heT^^^^^^^ ^L^'' '^i'^^"""' o<>m«B to the I,f fh» h'* "?'•*" 'he officers commanding at SflSfnad, thl R^^ n'^ ■''f "'^erH he (Monsieur de out the boundaries and expressly include those dmL in PanaS. '= fu ??L°"'''''*'»"°"' Miamis, etc., mark yet as I see some altercation has pa.ssed1n fiKd and *W^^^^ »^ ''i^U^S'-? «« be no dispute about it ; boundaries, 1 should be gla.l to k^owwh "her C marked thrmanh" *^""«"«" de Vaudreuil's giving the I am, v.:ch great truth. Dear Sir, Your most obedient, humble servant, Colonel HaUiimand to General Amherst Jk*"!". Amhihst. I Translation from the French of the original.] T««KK RiVkrs, 10th December, 1762. Sir,— I have received with nleasure the Wf^or ».„„Ti' n _,iJe8patched 16th do. the.first oiDe"c;mW,';e7pec^brXrpre»wer M^^ °f writing to me on ^. .Several times I thougTof foreHalirnn" t^/l?!^'^"''/'"^ myself on the subject of the I intend to conform with all tllrexactnefsp^^^^^^ '^^'^^^ "^''^^-i t" "w*'' 'hese limits of Canada. jnerrsa^;ruoZ^*,^:pfe^oVee'rlrSd^ ^- <^1.Vaudrenil if he had no plans orward them't, your Excellency ZfepliedMmt he hid nnni°h" ^^ ^^« 'hem in ordertha? I mighi avoid hearing the enumeration he wished to make of hi« n^lr l/' T^'^ ^?' *''«"' ''" »* Quebec, and (to hiB reply; but having occasion to speak ofTtS'^medavrafL^^T^^ fj' the time with couple of maps, and passing into another room he had «?^L3 Vt!' .t ^^^^ ™« ^^^^ he had found a bv mnd and folded in the cover of an atlas. There were flsoHom"/ ?T"1 ^"^^'^f brought ; it was made Nothnding anything instructive on th iTman InH I.^»!ii? ?"'* .^"'"^ P>?« "^ f^''^ in a separate roll Lieutenant Herring of our battalion, who wa^V the SurTnT t"'''' I. ^^d .«een.it printed, I caUed which he took to ray house. Finally on the morning of the'dlvth f ^* " *''^'".'? ^^''^ "'e other papers, came under my notice, and reminded me of thrvafn attemn}^ J I h ** -Y°"»- d« Vaudreuil left, th^^p ^'''«« 'he extent of this country, and gave K to thTwl „f^^ "'^? *" .'^'''''°^«' f'°™ him and from Inrht'^ArA"!*"!?'?'. ^etting^BnsK^n'irt'o t:^,^^ll''''t7=^' ^^^^^'^^-^^ \ .mme^.ate,;- nt to hii^ "^^I'^ZSo^^i t^^'^ '' examining it^ithl^ member,, of hie household in the roomfhinJi,^^! \i^^ l**^ ""'i-. ^ ^""""^ M. de Vauc f ; j"," "'"' ""■• ue vauareuii. i I found M. de Vaudreuil, with several to be kind enough to shew me the irmitTof f-^Hr' '!i* ^f^et ;.l begged him, without anj end of the room? I openej the i,rnd after examinP^^^^^ ^'"^ towards. the table which wa7al the appeared very much surprised, and as LTd not an«w«r m" ^^ "^^"*'t ' reiterated my request. He »»y.ng : Here is the Illiiiois (iesfliZa). Then he repliS tha?Z1*il^^*'?F"'„^'°°? 'he ^Illinois River! pencil n,T ?''^«™°«'. but tAat it had b^ndeddedthiy should bero„i?o'? *''• •""^**) ^""^ ^T"" contested pencil out of my pocket, and resting my elbows orthn n.,f., wKii iCr^^" Louisiana, upon which I took a S'Setni^^frl^tsrc'^effilE^^^ Sg^ifl T^. \ 171 m ir AROUMENT OF MR. M'cARTHY, Q.C., re QUEHTCON OF BOUNDARV Rurroniler of the country he sent, an officer to mo for maps, to inform him of thw extent of tho colony. 1 ri'tiirned for ntmwin- thn' 1 had none, my ninpii having heen takun uwivy with my bnKga^o at Quuhi-c, in lireach of tli.) caiHtulation of that iilacu ; and tlio otticer then shewing me a map whicli liu liad in his lianil, I told him tho limits marked on it were not just, and verbally mentioned others, extending Louisiana on one side to the carrying placi' of the Miamis, which is the lioight of tho lands whoso rivers run into the Ouabachi', and on tho other to tiie head. waters of the Illinois. What I have the honor to tell you, my Lord, is strictly true," and 80 on. Then General Amherst writes to Colonel Haldimand, who i.s the officiT referred to a-^ liavinrcheen .sunt to the French General, and that lotter yoii will find on pape 519. It i.s simi)ly a.sking him to state in detail what did take place at this interview between the French officer and himself, as representing General Amherst: " About five or six days after I had entered Montreal. I asked M. do Vaudreuil if he had no plans, n)umoir.s, or instructive maps concerning Canada." I need not road it all down, but ho speaks about their being lost. Then, at line 40 : " I found M. de VaudreMil, with several memberd of his household, in the room that overlooks the street. I begged him, without any other preamble, to be kind enough side of the Illinoia, and not fanc>;.-.x that Loio couW even be contested, I said to him, Here we undoubtedly take the mouth of thi» Wabache ; and imttinfj my pencil uijon the confluence of the Loio and the MiBHJHsippi, I traced a line, a(?ain cominpr up this tii8t river and tlie Wabache, and ioiniuK 'he point where I had cum- mencfd at the Eource of the IllinoiH. .M. de Vaudreuil still stood beside me and looked at tho map with- out makini? any objection. Thi.1 lino through its different windinfro, thoufrh made off-hand, still gave him plenty of tmie. But whether, beinjr occupied *ith his departure, he said Yes, indifferently, and without givmg it the necenNary attention, or that in givinp a tacit approbation, he sought to give mo an erroneoui impression — the account which I have related to you, Sir, is none the less the most exact tiiith. M. de Vaudreuil, and all the French who remained at Mont Real, were to leave this day. The com- panies of militia having assembled to give up their arms, and to take the oath of allegiance, I had no time to examine this map, and as I thought I understood what was meant by the name of Canada, and that the line was well marked, I closed the map and sent it home by Knsign Monin. Finally, Sir, you may rest aspured that the map which you have in your hands is the same that was given to me by M. de Vaudreuil eight or ten days after the taking of Mont Rt'al, and that Lis-utenant Herring, who is, I believe, at New York, carried to my hou^e ; that it is the same map that wao brought back by Knsign Monin to M. de Vaudreuil on the morning of his departure ; and that when I opened it in his room, there were neither line?, nor markn, nor anything to designate the limits ; that the line which now marks them has been traced solely by myself under the eyes of M. de Vaudreuil. to whom alone I addressed myself ; and by all that he told ine, I never for a moment doubted that he gave me this line as the true limits of Canada ; and that from the moment I closed this maj) in his room untd I remitted it to your hands, there hat Ijeen no alteration of any kind whatsoever made in tliis line. This, Sir, is, on my word, the simple truth of this transaction. I must own to you, Sir, th.it being convinced that you would a-k for intelligence at an earlier date (of the extent of a country which. I believe, never had any fixed limits) of an authentic act made in virtue of the capitulation, I did not think it seemly to have the maj) signed by M. de Vaudreuil, which would have been as easy a matter as to make him Rive me the limits of Canada in writing, which he could not hsve refused to do in viitne of the cajjitulation, and which would have reuflered this act incontestable ; whilst having no signature to shew, he can always make his party believe that we tried to overreach him. If I have misunderstoo'l Your Excellency, I am very sorry, and make my apologies ; and when I sent th'i ma,) to Your Excellency, and told you that the limits hsui been drawn by M de Vaudreuil, I meant that they liad been driwu under his o'vn eyes and reaeived his approbation, which is true to the letter. I am further much pleased that t! .s ugly piece of chicanery of M. de Vaudreuil does not prejudice our affairs in the sligrhtest : but, im the other hand, it has given me a good lesson which I will remember, if st any future time I am fortunate enough to 1 e aljle to put it into practice. I have the Imnour to be, Sir, With profound respect, Your Excellency'^ most humble and most obedient servant, 10th Xbre. Frkd. Haldlmand. General Amherit to Colonel SaJdimand. Nrw York, 25th January, 17C3. Deah Sir,— * * • I am much obliged to you for the particular and exact detail you have sent to me of wliat passed between yourself and Monsieur de Vaudreuil. ■ It is almost precisely as I imagined. It is of no consequence whatever : but if it was, there could be none but good proceeding from what you did in that affair, which has my thorough apnrobition to every part of it. * * * I am, with great truth, Dear Sir, ' Your most obedient and humble servant, Jk»\^. Amherst. 172 )UNDARY : WESTEHLV LIMIT OF CANADA UNDER THE CAPITULATION OF MONTREAL. 17M. reiterated my re,, .est HranDearml ^«r; T k ' «"«""'"« it a tew moments, I me, 1 passed rnv'fiu^er Ing'^the I iao7 Zer rvr'^S?"'^ '^' '" ^"'' "°'- '*'»''-" he replied that the f.Haois h^d^ef Ztestd^'bVS'T^o ^n'ori '--"'°°'^- ^'•«° that was between the governor of Louisiana and himself as rrovernor pencil o^ufoftVUtt'lVrtutt'et"'' '^K^^ *° ^°"'«'*-' "P- ^^^^ ^ 'ooka Lide me, I asked him.' show^ hfm The norT; °„? S' T^' "''"? ^^'- ''^ ^*"'^'-«»'' «*ood and he having «aid Yes,' I ma/^eVt^e Sr^^^^^^^^ the MissiBSipp : and askinc him onPA «„»:„ .v t ^°"<=« «' the Illinois, returning up these words r%^«A«a«",Ko^T, 12 rr/L^^^^^^^ correctly, he answered mf ij which seemed to me the natural limit "!l ^*" ^ P°'"*"'* *° ^''^ R«d Lake, Mf M^CrC ~Y:f "^^ ''"^ "'•^^ ^^'^^ '^^^^^ ^h« --ce of the Mississippi , Lord Aheroare.— Are you sure of that ? . Sir Michael Hicks-Beach : ^ ^ ^^ ^°''*"S'' ^^ce. sent to us uy fancying that Loio could even be con ed''-thTt slhfoM:'^' ? 't ^"•'^^'«' ^"^^ '^''^ Here we undoubtedly take the mouth of the Wab^^^^^^^^ no doubt-" I said to him, confluence of the Loio and the Mississ^Lri tr»i? ' i P"*.'"'^ my pencil on the river and the Wabache. and 10^1^4^ St whT T K !f '" *«'"' '^°'"'"» »P *»»« «r^t the Illinois. M. de VaudreuTstll beS le Jd 1^^^ making any objection whatsoever. This iTne thru^ril Z \ " '^' ""^P' ^'''^°"' offhand, still gave him plenty of time But' wh3 f .^"^°'"^«t windings, thou<;h made he said Yes. indifferently, an? wiXut dvin^ t TL '"^ "°°"P'"^ '''"^ ^'' d«P"ture, giving a tacit approbation he sought to iielt necessary attention, or th.b in which I have reTated to you. Sir.tLn: rC:£::ZZ 3'?'^'^-^'"^ ^°°''"''* what'X':>ryo'irrote th-r^^ ''''' ^^^'^^ '''' --^ b^"- if you tell us for after^f iSS'^i^r T^lsh'^s ^^ P":!--;.*^/^^ '^^ 'ine. which is to the east of the Mississippi ThSch f'r'^'"' ,\'^}^ «* Canada, was far afterwards, contended that the lakes wp I fh . negotiations which took place Lake Michigan, and Lake SuDerior ""Thj !b ""'^•^•■^ "^ ^'f^''^-^'^^ Huron. Canada, an J the En^^rsh indf^ly r pucfedTh^^ boundary of unbecoming conduct, and that the traL^^Sf^ f ,b " ' , ■ ^'^t '*^'"° '^ ^^3 Haldimand and Vaudreuil shouTd be Te^ov rning^^ ^'^T' was altogether-as the description I havfread ?t^ vn? ,' r i v."^' S°^«™'ng line It, would shew-to the east of" the MisSpni ^ ^''"^'^'^' '"''^"^ *'°"«^ .et i^^Z^^^S'S:^:^;^^^ ""'-^-'^^^ "P *« *^« ^^^ I^akcyou whicfwe^'rvt'orthT sutiif Vr.; ^°7'''^P' ' '^''''' ^'•^^ ^h« Foreign Office areeordatthe Fore^To'ffi e Z lT2TjZr^-'''''Vl'' '^ ^ight.^ut itis n..ked down on that map^^tis^thtTeUlrir^^^^^^^^^ ^^ ^^ 173 AROUMENT OF MR. M'cARTHY, Q.C, re QUESTION OF BOUNDARY ; is the line we say was then traced, and your Lordships will see the difference [handing sketch to their Lordf>hij)»] . Sir RoHEUT CoLLiEH.— This goes as far as the Rod Lake apparency— as far v/est as they are now contending for. Mr. McCarthy.— Yes, hut your Lordships will see the difference. We .say it is limited to that. It starts at the Red Lake, then it goes south of Lake Superior, following the height of land between the Mississippi and the Lakes; Sir RoHERT CoLLiEit.— But it goes west as far as they contend for. The Lord Chanceli,or.— This cannot po.ssibly be what you are r...w referring to ; at least, when I say it cannot possibly be, I will not undertake to say that, but it seems to be so from the dates. This letter of Colonel Haldimand was dated Decepiber, 1702, and what ia written at the corner of this map is: " I hereby certify that this a true and faithful copy made by me of the map en- closed to Mr. Pitt bv General Amherst on the 4tli of October, 1760."'* That is apparently more than two years before the writing of this letter. Mr. McCarthy.— But General Amherst stated what had been coded as Canada in 1759. Lord \jJERnARE.— This refers to the negotiations of 1759 ? Mr. McCarthy.- Yes, the capitulation of Montreal, whereby Canada alone was conceded. It is curious to look at the Physical Atlas, because the line tract-d on that map fiom the Red Lake, as far as it goes, corresponds exactly with the watershed. I am referring now to John.>ton's Physifcal Atlas.showing the water systems of North America. That line from Red Lake is, as far as it goes to the south of Lake Michigan, identical with the watershed of the River Mississippi system and the St. Lawrence system, and therefore was, according to the French contention of those days, the true boundary of Canada or New France.f •This certificate is from the Foreign Office, and waa given for the purposei. of the arbitration, in 1878. tThe height of land between, the Missouri and the Mississippi formed, in that quarter, the true boundary between Canada and Louiaiana. The Country of the Illinois was, at this particular period, within the jiinsdiction ot the government of Louisiana, and therefore properly excluded fram the limits assigned to Canada, (bee a««', p. 142, note t, ami p. 109, note* ; Joint App. pp 603, G44). Haldimand eimply deoewert himself in delineating any other line in this quarter than that of the Missouri watershed as the boundary ; and Vaudreuil did not volunteer to correct an error which would have added so largely to the liimts of Louisiana. The language of Haldimand 's letter would seem to indicate that the line marked bv him, from the source of the Illinois to Red Lake, was not drawn along the watershed of the Mississippi and the lakse, a? clauued by counsel, but by or from the River IllinoiR to the Mississippi, and " up the Mississippi. . .to the Red Lake, ' '(depicted on many maps of the time— of course erroneously— as the source or one of the sources of that river), and that the sketch produced is, therefore, something quite different from that referred to by Haldimand. As to the other line, commencing at the junction of the Ohio and the Mississippi, and in regard to which there is no question, Haldimand's tracing passed up the Ohio to the Wabash, and up the ^yabash to or towards its source, and thence to the other point oi commencement, at the souree of the Illinois-the two separate lines thus forming one continuous line, with the effect ol excluding from Canada, to the east of the Mississippi, that tract of country only which lies between the Wabash and Illinois rivers. A more literal translation of this part of HaldimandV letter, together with the J rench original, aie appended :— '' Having found M. de Vaudreuil, with several members of his household, iu the room that overlooks the street, without otjier preamble I begged that he n f).u ,.il.p» oi,l.. „» *»,„ tiii__;_ ...j » 174 3UNDAKY : see the difference ipparenUy — as far ' tne of the map en- by Canada alone WESr.B.VUM,IO, CA NADA UNDEK THE OAPITO.AT.OS Or MONTREAL, 1759. thi,c?„°,i^Te WnXwthVoS HaSi«:f ]" al»„l„tely i„po,sMe that returning up the MisM^imi " vZ, 1 1 "^ °J' 'rom the source of the IllinoM, -vitl, tl,o°Mi«ia°ippl w3 it nJt ° ^^ ''°"'" "" """"'' '" "» J""<^«°« £a"Al';r™-^Ku^::i. ,?= '?,■;'' ? '.»■•'• '» *<» ">»"* of the nunoi,. Mr. McOAKraT-Yes """' " "°" ^''"' Michigan, point's: t""a,°tr?oX41„?TSa^:a'a^ iji' 'r "" '» "■^' """-'" .hecon,t™rirweV^:;„\Tr5^b"/;Tf:'7 '\^ P°'P»« of »h-i"S that tl», that it mv„r wa, cont° mnla Jd t„ ftf^S " '.?*= "T "^ argument i, the ,S-we't '^'"' ^°" ""■■'^ '^"'-'°'' Canada a, tar a, the Bed L.lce. on a,, th^ teS^d^i^ef :;the°rS.3rt '° "^ '° "'" '°°"' "' *" ^'"«' ^^^^^ Wd A»ER„AH.._North „f that ™ the^Hudson's Bay land, or the Indian B,^?hZ^l^t„-^^I-'^ commenced with at the sourcLf the Illinoi/" "^abaohe, wh.ch.went to 'meet the point that I hid dngt aur la rivifere den IllinJiB e.! u dinCt Voioy C^llnLt "T" "* ">« '''"'"'dait p^ini' je pSsay fe ete en contestation entre leg deux Gouverneur- mL. ^M'^ois alora il nm repondit que leV Illinois avafent ja Loui8.aane. sur q„oy «ortant un oraXde ma tfochi « *^?" '^'•^descide qu'ils dependroientTcdu de tenant debout auprfes de moy. je lui demTn^L „, ^ • ^ ®1 m'accoudant sar la Carte, M. de Vaudreiii «« la, et m'ayant repondu que oii je maMuav Z nn nl '"r'''*"* •« n<"-d du Mic^ssepy si la ligne pw^a t n« sepy, et lui^ayant demande enwre une fo^ sf rmirn.^S"'!'" '"T" '^«'' ^"inoisen remontant ^M^cTs! Wie Marquis deVaudreuilayanriesVuxLTs?,ri/r^^^^^^ "^ '■'^P""'^'* '^^^ propros pUle^ (lu objection de b% part, ensuitte revenant de l^ntrt^,./f !?i rir ^-"^ naturelle, sans qu'il y eut la moindre seulement etre inise en cont.B«t«TiI!; 5:„ *"_*!« °o"'' '1«« Illinois; et ne me figurant pL que lS,o put itte parl'ambouchuredu Wabaohe et jay une ligne en remontant cette ore I oonimencjS h la source des Illinois.] nectio,j w th th« :=a7yffi ies in^'t'he ^G^^lf^'^.l r ? " ^-""^^ 5 -t mTn^nrdr irex^ptTctn^ 175 VI 1 . 'II, ARGUMENT OP MR. m'cARTHY, Q.C, re QUESTION OF BOUNDARY : afterwards known as Indian territory ; but it is a striking confirmation of tli& tlieory that was then put forward, that this line is, as far as it goes to the south of Lake Michigan, the water limit of the St. Lawrence system. Now, your Lord- ships will see the line goes, if I remember correctly, along the Wabash to the Ohio, and then follows the Ohio down till it meets the Mississippi ; and it may be asked, and properly asked, what was the necessity of going as far south as the junction between these two rivers, and marking that out as Canada. The answer is this, and that is shewn upon 'the map before your Lordships, that south of tlio lakes. Lake Michigan and Lake Erie, there was a disputed territory between the French and the Englisli. They both churned that territory. The settlements at that time had not passed the height of land, the Alleghany range ; and beyond the height of land— between that and the Ohio— there was a disputed groutul, claimed both by the French and the English. Therefore, at this time it was insisted that they should give up all the parts north of the English settlements, including the portion claimed by the English north of the Ohio ; and it also explains the word " dependencies " which is afterwards mentioned in the treaty *. Lord Aberdare.— May not all this dispute have reference, not so much" to the discussion between Canada and the Hudson's Bay Company as between Canada and Louisiana ? Mr. McCarthy.— No, my Lord, I will point out further that it was not so, by the correspondence that took place, up to .a certain date. Your Lordships will see the point that was settled after the cession, was this : The French were claiming that the proper boundary was the lakes. The English were insisting that the line marked by Colonel HeJidimand was the line; and it was not until a year before the treaty was signed that this question was apparently settled. The Lord Chancellor. — That cannot possibly be the case. This is a con- troversy between the French and the English, and supposing that to signify tlie lirie of boundary at that time, the marquis, having his eyes fixed upon the map, said, "Take all the north," which must mean all to the north of that line would bring \ou to the wateis of the Mississippi. Mr. McCarthy.— Pardon me; if your Lord.ship reads what follow.s, that is not the meaning of the words : "Then I pointed to Red Lake, which seemed to me the natural limit, without his making the slightest objection ; " which would seem to include that in the expression, "Take all the north." The Lord Chancellor. — No, I think not. Mr. McCari hy.— Yes, my Lord. That having been said to Colonel Haldi- mand he puts his pencil on Red Lake, as if to say. May I go as far as that \ " Then I pointed to Red Lake, which seemed to me the natural limit, without his making the slightest objection." The Lord Chancellor.— We must understand what it is. The statement in the letter is that a certain tracing was made, and which I assume to have been that which you produce from the Foreign Office, and the Frenchman looking,' at it said: "Take all the north; take all the north," at which time nothing liad been said about Red Lake ; and can it mean anything but what is north of that line? Mr. McCarthy.— That line had not then been traced. The Lord Chancellor.— Yes, it had, up to the source of the Illinois, and returning up the Mississippi. I thought you explained that that meant that he pointed towards the source of the Illinois, and then he did not go back to the • This is not apparent on the evidence. A. reference to the treaty shews that the term occuts in that iustrument, in different connections, aeveral times, and is used in the sense of embracino' n.11 t.hn nipts nf or appertaining to tiie particular country : "Acadia . . with all its dependencies," " Canadaj with all ite dependencies," "Florida [etc.], and , , everything that depends on " it. 176 nap, and it 11 )UNDARY : I to Colonel Hakli- go as far as that ? 1 limit, without his JVmEHLV„M,TOr C.».D. „™,„ ™, CAPIT.L*T,ON 0. HON-TBK-,,,, 1760. main current of the Missisciinni h„i- i,„ * u , . '' ~ Mississippi, alon^ the w::Xd"oa/t^^^^^^^^^ ^'^'T' *^« ''^^^^ ^^ ^he the waters which fell into the St ? awinf . •'"/ ^" ^'^^ watershed dividing into the Mississippi system ^^- ^^"^'""'^ '^'^^^'^ ^^°"^ '^e waters which feff <]o not me!^^tharma7S' OntoHo*' LTT^ ''' """^ > ^°«''i"g ^t the map. I Ihe Loud Chanceitor r,,^ t '/-'"'usiiipb. To n.o it seo„.s that "'Se all tS north fni""'',^^'^"^ ^^'l ^« ""^^'^ y^^ refer. north of that line, beyond the imnob 'o tt^! ^"f ^'', "^-J^th." means all that is of it to France ; and it is eviden S tZ f J f to England, and all that is south Mr. McCAUTHv.-Quitrso Thpfi«f ^ '^''\''?* P'^°^^«'^ °" that footing nations. I am speaking now about CanS ^'^'' '''' °" "^"'^^ ''^^'''"' ''"^'^- at the map before you vou \^lf fin 1 u .1 ^'''''' '^ •>'""'* Lordships will look -the., ^art of lI^'Z^^'^^^lTt^]-;^:!'^^ It is£ the two^«orrnt.'^^;LtTf'LS^;S^ ^^"r^^'^ ^^- con'tested'by upon which I took a pencil out of ^7 nocke anH ^^ .• °"^'' ^''"'^^ *° Louisiana, whilo M. de Vaudreuil stood bes.de Te TmU' ''l^'"? ""y elbows on the map Mississippi, if the lino passed thlt And h« h ^™' '^.'"'^."^ ^'"^ 'he north of the fron. the source of the Illinois, r turning uo Jhe J"''^ "^"^-^ ^^"' ^ ""^'^'^ the points if 1 marked correctly, he answpr«H m^ • ^.v Mississippi, and asking him once aeain ^ftii.:;=:^;:;i^!^-?--^^^^^^^ Ked uk. which Jon, af;erirrtled o?th:thL'S:' oT^ilt" "^^'1 ^'^^ «"«^*-* °^j- traci,ps';rin';er''''°"-''''^^ '"^^'^'^ -^"-"^ to the west, because the ^f^^-otTeT^^^^ the Ohio, which he says Ilhnois, and not fancying that F nin 1 , f returned on the other side of the oou.e a long way ,o""h% I'^t^tZt of" te';i ^l^^hf ' "~ f'^ ^^'« ^^ ^^ to the south-east; then he says "I said to b?m ii ^ T' ''^' enormously mouth of the Wabache, and p^ttin' .rVenc? oA^bT """, ""^o^btedly take the the Mississippi,"- u.) to this tin.l iC. l^i^ i ^^ .confluence of the Loio and on the IlHnoi^. then on the Re.T L^k! 1?''^' "°, ''TT^ '* ^' ^ad put his pencH and where does he start from? --<^And put^tZ i' takes his pencil and tLes e Loio and the Mississippi, i traced a line !-> ■ , ^ ^ 12 ifcHi*(a*^i^^jfj^^,f^ ARGUMENT OF MR. M'cARTHY, Q.C, re QUESTION OF BOUNDARY : wimliiiv hough made oft-Jiand, still gave him plenty of time," and ho on. The rest I have read and. I need not repeat it. Then the sub-sequent correspondence, I think, plainly indicates that. If your Lordships will turn to page 521, you will find that that is the French view, at line 26 : " Thirdly, That the limits of Canada, with regard to Louisiana, shall be clearly and firmly established, aa well as those of Louisiana and Virginia, in such manner that after the execution of peice there may be no more diffioultiea between the two nations on the interpretation of tjie limits relative to Canada or the other possessions of England." . . . Then if you will follow that to the next pp.ge— at the foot of the next page— the British answer is given . "His Britannic Majesty will never recede from the entire and total cession, on the part of France, without any new limits, or any exception whatever, of all Canada, with its appurtenances, and His Majebty will never relax with regard to the full and complete cession on the part of France, of the Isle of Cape Breton," and 80 on. I need not follow that further. Then at page 523 : "With respect to fixing the limits of Louisiana with regard to Canada, or the English possessions situate on the Ohio, as also on the side of Virginia, it never can be allowed that whatever does not belong to Canada shall appertain to Louisiana, nor that the boundaries of the last province shall extend to Virginia, or to the British possessions on the borders of the Ohio ; the nations and countries which lie intermediate, and which form the true barriers between the aforesaid provinces, not being proper on any account to be directly or by necessary consequenf-e ceded to France, even admitting them to be included in the limits of T.ouisiana." To that statement the French replied in the next document, and if your Lordship will look at paragraph 1, you will see : ■ ' " The King consents to cede Canada to England in the most extensive form, as specified in the Memorial of Propo8itions,but His Majesty will not recede from the conditions which he has annexed to the said Memorial relative to the Catholic Religion, and to the power, facility and liberty of emigration for the ancient subjects of the King," and so on. That is all appertaining to this point. Then pju-agraph 2 is : " The King has in no part of his Memorial of Propositions affirmed that all which did not belong to Canada appertained to Louisiana ; it is even difficult to conceive such an assertion could be advanced. France on the contrary demands that the intermediate nations between Canada and Louisiana, as also between Virginia and Louisiana, shall be considered as neutral nations, independent of the sovereignty of the two crowns, and serve as a barrier between them. If the English Minister would have attended to the instructions of M. Bussy on this subject, he would have seen that France agreed with England as to this proposition." Then Mr. Pitt gave an indignant answer, about the interference between England and other nations, which need not be read witlt reference to this point. I go on then to page 524, where the British Minister delivers an ultinuituni to France ; " Article 1. — The King will not desert his claim to the entire and total cession of all Canada, and its dependencies, without any limits or exceptions whatever, and likewise insists on the complete cession of the Island of Cape Breton, and of other islands in the Gulf and River St. Lawrence. Canada, according to the lines of its limits traced by the Marquia de Vaudreuil biiuself, when that governor surrendered the said province, by capitulation, to the British general, Sir J. Amherat, comprehends, on one side, the Lukes 178 UNDARY : WESTKBLV LIMIT OK CANADA TNLER THE CAPITULATION OF MONTREAL, 1759. and HO on. The e next page— the if your Lordship Huron, Michigan an.l Superior, and the said Hue drawn fn V.^ t i, » ... . mthe watershed of those three lakes-'' takes inC fake "-that is, it take* ^^^^^Lord AB.nB,„e.-These are discussions ■„ 1761, three ^ears before the fln.1 Mr. McCABTHY.-Yes, my toi-d. : '■■.', " "■ look pL in" nwr"-"'"-'''"" ''''°"'"™"' «P--' 'o™ inferences whiob they tre^^n^^v^r^ t^SrSTreT '" ''''■ ""^ "■^" ^^ ''»» ^ >?«» Mr.Pifu'TtotrT7;rv';„™™f rr"';r ''"'>y «»--> ^■»'>«™' t* s;th:3re^ts:rs td^r-'- "'^' - s s^erd'.^^- Mr. McCarth.y.~So it does, my Lord exaotlv Thof ;„ iu marked on that map. -^ ' ^^^''"y- ^^at is the course which is The Lord Chancellor. — Yes I spp tJio Wok„ i ■ then the Ohio comes in. ^^^^.^'^' '■' * separate name, and Mr, McCarthy.— Yes. Then mv r n,.ri u f n i ' continence of the Ohio and the mLSd,^W,V1^°^%'^^^^^ ^^^ «^«. to the settle this question as to what it was wK H, ?! ",',*^' ""'^ '^^'J^^^ ^^ ^^at was to houndary Lap of mn ''TerritornaShv I 1."^?" ?' '"^P ^''^' ^^^^^^o the surrender of Canadi " ZS on ^ .^ ^^i"^, E°gl«"d and France prior to I in ouler to .settle that diVe TherA^^^^^^^^^^^^ I ™it; d\y S BusTo^ tt isTh^oulf Jonth'" ^^ ^^''^i'^"' ^--*--' - *'- note P::yjf Stl!!:^^^^'^ -,S^^^^ Of the French, Has as read ,,s given_at line 33 or^hereaboTts ' ''''''^'' ^ ^°' *^0"<^ ^o a!'" i}^;^'^T.-That is in your Case.' |««^er pa,.e, which I will read in aSent "^ '^ "^' ^''^^^ ^'^ "^^'^^ '" '^'^ M AUQUMENT OF MR. m'cAKTHY, Q.C , re QUESTION OF BOUNDARY : Pensacola, passing by Fort Toulouse in the Alibamous, and which, being prolonged bv the western point of Lake Brie, will eaclose the River of the Mian.is. and by the fasten extremity of Lake Huron will go and meet the high lands on the side of Hudson's lJay,"| This is the French proposition. • t. Sir Robert CoLUER.-That is the French proposition, to go 'and meet the high lands on the side of Hudson's Bay. Mr. McCarthy.— Yes: , f/ , 52+ ^'' ^^'"'"'^"^ Collier.— Then you will observe that is answered by us at pa^.e Mr. McCarthy.— Yes, I .im going to read the answer in a moment. The French were claiming that that should be the limit of Canada Tf'%^'^n^ ^'^^'"''^^^o^^—T^hk is the same passage which you readjust now Mr. McCarthy.-No, I have not read this before. It is not the same . Tiie Lord GHANCELLOR.-It follows it, I think, exactly. It seems to be the same passage which you read just now, on page .524. Sir Robert Colli kr.— It is a little further down : • v . > " Becuuse the s.id Iine"-thaL is the line now spoken of-" under colour of (ixin^the I hmits of Louisiana, annexes vast countries to that province, which, with the commanding posts and forts the Marquis de Vaudreuil has, by the most solemn capitulation, incontestabl yielded into the possession of His Britannic M-j-jsty, under the description of Canada."! We contended for all that came under the description of Canada , Mr. McCARTHY.-Ye.s, if I make myself clear to your Lordships, we were then contending for the line maVked on the sketch before your Lordships and they were contending for a line passing through the Lakes . ' The Lord Chancellor.— A great deal to the east Mr. McCARTHY.-Yes, niy Lord, between Lake Huron and Lake Superior.at what IS known as Sault Sta Mane, and then to the height of land. I ask vour Lordships to bear that m mind, because there the French themselves spoke of the height of land as the terminal point of the line which they desired at that date Sir Robert CoLLiER.-They say that they wanted Louisiana as large as it could be, and Canada as small as it could be, but we do not agree to their view Mr. McCARTHY.-But we agreed to its definitely ending at Red Lake* at that time no doubt. Then 1 will follow on the correspondence, which shews plainly that, up to a certain point. r j\ Lord AiitRDARE.— You argued for all these contentions as a proof of what! the actual li«nits wei-e, whereas are not they rather a proof of what they wished to secure, and what they wished not to cede ? Mr McCarthy.-No, my Lord. For my part, I am willing to concede that in this controversy the Lnghsh claim was right, and that the watershed line was the true limit of Canada What the French were trying to do, as it appears tome very clearly at that time, was exactly what the British ministry accused them of attempting to do, namely, unfairly to cut down what had been ceded at Montreal, The Lord Chancellor.— That was settled afterwards Mr. McCARTHY.-That was settled afterwards-after the cession to Spain. The Lord CHANCELLoa-Then it strikes me that these previous coinmuni-, nations can have but very little bearing upon the construction of the Quebec Ad ntorie, to tlfelTo.thward of th.t parallel or "/rhe'Se" n^rter\h\"d^,^X"MTB;ou&hte Jo" hS boundary ran westward couterminouslv with t.ho „,^,n,<.,„ i ^^^;|»^«^'»/'i^i"« J'tissouri-wtiOBe soiitnera MountaiM-waacia.mcd, and held, by J>ance ar* paVt;f'ih;'(7;';er«m;nt"orCanada: "'' ""' '"' "°"' ' - o — - i Canada ev( I southern bi Mr. Ml very celebr I Lordships. I these mattt Sir Ro The L( Mr. M than I can Oreffon i|ui [ pretty mucl have been t Lord i Mr. Mc Sir Roi Mr. Mc The Lo I to, because i Mr. Mc *See ante, j , tif EnKlatK Pwtioii to acquii I .L Ti^" "''*' ^"^ J the Province of i I under the Treats BOUNDARY : being prolonged by s, and by the eastern lo of Hudson's Bay," go and meet the rered by us at pa^e 1 a moment. The ^ou read just now. ot the same. , It seems to be the r colour of fixing the j ith the commanding j lation, incontestably ription of Canads," | la. ordsliips, we were I ur Lordships, and Lake Superior, at land. I ask your j elves spoke of the [ sired at that date. iana as large as it j free to their view, iled Lake* at that I ich shews plainly i a proof of what IV hat they wished seippi, wa9 treated u j Then, the vast tw- souri— whose southerii I > &3 tAi as Cti3 tiOZ^i j da. LIMITS OF FflEVCH CANADA ON THE WE^T AND NORTH. . ./A because that was passed after the Enflish rrnwn v,o,i „« • i x xi ... . -y learaed friends-Aal beyond CFrl7' thTp™'-''""'"';.''?.'* by either of It was to eontinue to the Sh peol thei?F^n.^ '"m "^1'"^'"= "°"'- ■""■^ttorsrs^i ""it'- -t™'^'-'^'- *-'-- - - *a' s' by tl map wouf^ha^^^^^^^^^ "'T T 5'^.°'"^'"^ ""' '^»"»''''. "^ defined Mr. McCabthy.— No, my Lord The Lord Chancellob -Red Lake is to the west. '' c4dK?™u?„-sj;h'ra„'i^?Sdi!re™'*' '-' -^^ - -^ '» "-^ UtioS.we?n''L™r,irI':id*S3:" "™' '° "'^^ ^'^" " '" *« "- "' «""- ,*.se„;Steria;'jvttSrorthS":;:;,ri!;,° ''"^''°'' ^«°°"-' '°-'° -* Sir Robert Collier.— I do not thinlt yon can read that usetnllv to n, . Lord ABERDARE.-But the .southern limits of what ? The K'chan^t^ n;^ discussion and opinion given on this question. to, bectseTtl^'oTa'n '^^^^^^^^^ "^' ^"" '''''' "^ ^"^'^^ ^° ^"- ^^ to be referred __Mr^IcCARTHY.— He gives his reasons for it. ' *See aiKe, p. 176, note*. "' ~ — 181 ^ ARQITMENT OF Mil. m'CARTHY. Q.C, re QUESTION OF UOUNDAUY ^rlnJ^'f ^""•\?"^^?'^'^^*^"r'y"" may give your reasons for any conclusions Tf sl^l^ t''-'^ *".''*'^'^'"'t- ^ I think on the whole we had better know noth ng 01 oir 1. iwisH opinions. » Mr KIk?h? ^T^l!'~lV'''-r •^'•^f "^' -^-^'^'^^nts, vou may use them. .»n,.« f ^5^A"TH\.-I thought perhap.s tlie argument would com3 with very much n ore force from a gontlnuan like Sir T. Twiss. who knows more about internal onal TnttZ I ' ^^- .^^^ '\^ '^"'' "^ t''« contention is this, that this was tt noithern boundary of New France, and the southern boundary of the Hudson' IS^li h'[n tS,' "V^"' T *r^/'^ "*^"- Certainly, the claim made by th Hmknn- R n ^^' '''"' *^ ^''^* ^''^^ comprised in the charter granted to th Hudson s Bay Company, and the effect of that would be to carPy it to a 1 ne wTw t" k-'^T' ^-"-^ ^'^'^'^ ^"'^ ^^^ St- ^^^'•«"«^« «J'«tem. Now follow ing that on, this discussion appears to have not ended in anything. When the IWhTr*^'' ""t^^ "'hJ".^ ^^^**h« E"^l'^l» obtained the consent of th thrFll •' f ''?T^°^ ^yi' ^^^^«; "^'■' «" the other hand, do we find tha lansf Zd f h. "''' •*';• ^°°^''^ *°. ^'^^"'^ ^^'''' «'*'™- Then there is a certa n ced' L ?i„l ^^^°-l**^'J'°' T"^> '^^ P''^^"''^'^- 1" t'»^ «"d- ^« fi°d the treaty ceding Canada and its dependencies, and, for the purpose of fixing a limitary line ntstSn^ W^'j """"f'^ Y It ^'^^ ^^^"'^ ^''"tinent, they take the line oth' toTXful: o?^^l v,"^*- ' -^ ^^ ^^^' "^'' "^'^ *^'-*"«« -^^y by that treaty, there- «avs t w! • ' ^^^^f ^'^PP^ if th? westerly limit of New France. All France SS-LZJJ^ "^- *"" '^T- ^^ri"^ ^'^"^^^y ^'^^^^ «" the west side to Spain, 2d£!. / ^l'"f "'* '•"'" 'f^t) which we might have made to the inter- mediate country which was in disj^ute between us ♦ lM,t ,5Zn''-r' *ii ^1 ^"'^'' '^''- -Jha* ^"t has been read already once or twice but erhaps It will be convenient if I give your Lordships the pa?e: pa^e 36G is where ,t is o be found. Now the contention which I advance is, foflowina to a ce Z W Siis O^rT.' 1 T '^^"^^^ f "^'^•^^ «° ^he other side that the inte Uon S Fritl^r p' ^?' *°^^' ^"^''^'^'^ had been the province or country of Sesld vonr tST?- ^:i'^,\,>'Sree also with my learned friend who last Thpbnnn/ .1 '^"P'; t'^at thosc wcro equivalent or interchangeable terms, ionfln^nl Zl n,^''' '^?1?- *? ^'^^ ^'^''^ P^^'^t marked upon this sketch : to the Bketch wbi.b T h ^ W"^ Mississippi River.. That very point marked on the £ it. , 1 handed up to your Lordships, is the south-western extremity of west m limi '1 'm^-^' '^l ""f The difficulty arises in finding out what^the pLrlt.ll ^^'^«- .% ^'^"tention is, that from that definite point the Act of but ^oXwaX ^ ' "' *° ^^' "'''^''"'' ^^'' territories-not due north Lord Al3ERDA«E.--.First of all it says: "along the bank of the .said river." Mr. McCARTHY.-Yes, first of all, " along the bank of the " Ohio Lord AUKUDAKE.— "To the banks of the Mississippi" Mr. McCarthy.—" To the banks of the Mississippi "' must take ^rbe'"'"" ^"' ""■''""''• ^^^°"^' *'" ^^""^ ^^ ^he Mississippi." we Mr. McCahthy.~No ; that is just where the difference comes in Ljord Abeuuaue.— xxiat is clear, I should think, beyond controversy in the ZTbTfh ^" ^"I ?^'^'''"' ^'^"^^^ i« a contemporaneous document, ami must anew how this was aoted upon. s!F-*"-"«-""'-"— 182 CONSTRUCTION OF TUE QUEBEC ACT, 1774. Mr. M.cCarth y.— Uudoubtedly settlements an/c^^lSsutrthafSff^^^^ J\ct of Parliament You are bmin<5 11 1 ' ^'"^ !"*'^^,'^ *^ ''"^^ ^^ ''^'^ding the the geographicaTpositlon of and where anThe'^V"-'"^' t^^ ^^^^"'^^"«« '^ Fraace referred to in the recital were Rf h« • T' ^"^ f t^leraents of New that we have got to look wTthin <^! v"., ^""'"Z ^"°'^" *^'**^' t'^^'^ ^ ^^ke it there i.s no aJb^^ityt T^^JS^^ ZTT ::^ thatlh^Ttrof 'p^- '' rnent must govern the question suomit tnat that Act of Parha- which you seell to imoose uDon it tL?" 'ff'<'™''ly bear more than the sense «.n thit possibly l,e ZnlaS ht » "'" ^''""''' "■"'' ""doubtedly, but lo.dJhIps*"'"'"'"'-'""" " """" I »"■ «■>!■>« t" -favour to argue before your .wo ^:^"^:tZ:;j7>]:^\^;^.^' ""' '« "•' -«-•- oUhe ..eUi^X7tl;^z^^^ ^. . Jlrilira^Ss^y™ uI;Vr t^ :e'° '"™-"' P"- ""^ P-^P' *»' ™cc, u''h"'°h?oTerlL'ri°nSlr '!" °'^'- ""y- ' »"'"""'• -* "" J"'-- «f the strear^we have here iheTS."'™ ""i? ""■?""'«'' " "> '°"'°» '1"= bank but wheu thercZetoThislS fr^'"'''''?"*.'"""'"'^''''''''''''' '■'^"g^'^lte. SX ™^P-- -^^^^ tt oonaie^""" CHANOE.L„„.-Yo„ road "the bank" a,° If U " l^'the point of banluliaftW Sis^hS '"'" '■"■*''''" "'" "" "' """ "'"' " "" "-'y one th. TVti?l' -'™'r'^-^^ ^""■■^^- ^^'"'•^'^^"'•^ ^^ -^'y '^^"-1-tin^ with r..ard to --Kt,.h ..c,x.ut wun regard to the other bank which is the French linT 183 -rH^^y- •■-. ARGUMENT OF MR. M'cARTHY, Q.C., re QUESTION OF BOUNDARY an That word "banks" is either a clerical error, or it can only be constpued being the bank • error^?' ^"^^"^""^ Smith.— You mean that the insertion of the word is a clerical Mr. McCarthy.— Yea, possibly. Sir MoNTAQUE Smith.- You construe " northward " to be " due north ? " Mr. McCarthy.— Yes. ^^^^j^^^^j*^ontaoueSmith.-Is it not capable of two meanings, due north or Sir Robert CoLLiER.-The Chief Justice declared that " northward " meant the same as " due north." doubf *^" '^'^^^"'^"^— ^^ ^he word was "due north " there would be no room for Sir Montague Smith — « Northward " may mean due north, or in a northerly direction. Ihen is theie not an ambiguity to be got over ? Mr McCARTHy.--Not an ambiguity with regard to the meaning of the word but with regard to the he of the ground. Sir Montaguk Smith.— There is a latent ambiguity. Sir Robert CoLUER.-Supposing it had said, "along the bank of the said river westward to the banks of the Mississippi, and following tho^e banks north- ward to the southern boundary of the territory "—you can hardly deny that it is capable oi being so read. , . X''- :J!Sp^R™^•T'''^^* '^ '"y contention ; and I will point out to your Lord- ship the difficulties which I see in applying the construction which your Lordship has just suggested. The sources of the Mississippi were not then known, but on this map ot Mitchells the source of the Mississij)pi is supposed to be in latitude 50, longitude 10b Now I will ask your Lordships to look at that on the map »i*'' !?^J^'^'^ Collier.— That would take it above the Lake of the Woods Mr. McCarthy.— Here is a note on the map which I will read : KA^i. '1'^^^ *'?'! °^ **1® Mississippi is not yet known. It is supposed to arise about the OUth decree of latitude, and western bounds of this map, beyond which North Ameri.^a extends mgb as far westward as it does to the eastward by all accounts." Sir Robert Collier.— It will take it to the Lake of the Woods. Mr. McCarthy.— That is where they are supposed to be. I am goin<' to point out that I doubt very much whether in those days that would be a reason- able construction. I am pointing out wliat appears to me to bo the difficulties ia following the Mississippi, because of course the legislature did not stop short in Its dehnition where the Mississippi was knowa. If that was the proper construc- tion, the Mississippi must be followed up to its soarce.s,and from those sources to the Hudson s Bay territory. On this map it is marked as on the line of 50^ a-id as far west as 106'^. Sir Robert Collier —What map are you on now ? Mr McCarthy.— I am on Mitchell's map. I have read that from Mitchell's map. It your Lordship will look on that, you will see where that point is. What it says upon Mitchell's map is this : " The head of the Mississippi is not yet known. It 18 supposed to arise about the 50th de gree of latitude, and western bounds of exteL?on'!!'f''thplTM *^**. *heword "banks " was,n the original bill, and had reference therd7t7tte note" Los/ D^Sfinn^H-R^"""^ "^ l^l^^"".^ westward to the banks of the Mississippi." S«e ante. p. 42, the wo^d '• hJkf" ™ fw h * ^"«° *.'y.'['°*f *h« tern, "westward " as.ppUoable to the prolongation of a line. alsoTthat fZ^lhlThl^^^ susceptible not only of the interpretation put upon it by Lord Aberdare, but also ot that (urnmhed by the fact, pointed out furtheron. that the n.iirrD-Ati.-.n nf thi ,;.,„, << j„ it- ..'hnU i'nt^^Jit ^°? '"P^"l^ *^"L"'' ""4«'' "'« Tieaty of 1763, inide free to the subjects of Great"Brit'ain, "theBritisb interest extending thm to botn the easterly and the westerly bink. ornain, wib oninu 184 BOUNDARY : Mitchell's map of 175.5, lat from Mitchell's reat Britain, the Briti^b That was in 17; o.-> Lanksof the Mississippi northward to ecXm^h^^ go.W alonij the perfectly accurate if the Mi..is.ippTrises w thi, t£ R . l"""^'",7' ^^''* ^°"'^ ^o Mr. McCAUTHY.-What strike me rnv 1 UM ".' '^""^ *".''"^•^'•^• .so, about that,iH this: If your I or dshin will ^yi /*l"''^ ''" permitted to say point, it is quite evident, I think that Lumt S ^A^^" '"? ^^ that particular could hardi; be known toextend so far Mit.h.ll'" ' ^?-^T^' ^'^^ '''''^^'7 to for other matters, would seem to show ^^f'^^'«'»ap which has been referred that territory under' the chX I th nk h Tn'^ o7 wf ^u-'"' "' '''' "^«^ "^^ that went to Split Lake, and if it wen to Sn Vr,l .k ^'^'^'" ' '"'^^^ '' ^'^° •!"» of Split Lake The he edit of Inn 1 k , ^ l^ake,this is several degrees west land^which goes to SpHtlaVe ""'^''^ *^" ^^'''^'^^'^ ""^P - theLeighTof head^ont^'Stipi^.TS^rnt^TSn^ ^'^ --^«"the must be on the othe'r^side 0^ the hei'hro^f Jnd ' '""''''' '^ '^"^ '^'^'''^^Wi xMr. McCarthy.— Yes ° e..pectd ? ^-"---Then. you tind it rather more to the south than you Lo'd^'^E^aZ'r^^^^^ '",' ' r' '^^^ '"''••« ^° ^he east. " ' degre.^^t'^ry'LVptrdt^r:^^^ '""^^ -^ ^^^« ^^ "P *o the 50th Mr. McCau THY.-I have not made myself dear actual,yl^r;:rt:7e^^^^^^^^ the watershed the A^t.' ^v';rust'looMn oidrtoTnd^t'hi"'"^ ^'^ ^' '' '^' construction of that day, and we nmst d'ea? ihb it in ?e.arcl to^lwt""' f f^' '^"""'^^^« ^^ the source of the Mississippi was unknown b,,M]t ''"^^ «^'g« At that day as far to the west as 106 "and aVSr 3'as 50^• "'PP^'^'^'^'^' ^^'^ ^hat it went Sir Montaquk Smith— Where is lOG*" ? ' * • would hardly i,,tend to cany tScoutrvofV;^^^ '^ ^^'""^ parliament follow that line, that is the co^iclusion 'or ^ 1 "'* "^""'i ^'^ ^^'^^ P^'"^. If we far west, as your Lords in wHi see ^fV^^^ ^^' first place, it is going limit of Canada. ^ ' ^^ ^'"^ ^^^^' ^^'ch is supposed to be the Sir Robert CoLLiER._Very little to the west. LouiHianft, contained in his History of the French Oonl"*-^^^^ "^ C!»nada ani th« No" h Parlof 185 ARnUMEST OF MR. MOARTHY, Q.C., re QVF.KnoS OF llOUNDARY ; I Thn Li ■Ij. iOiii) (..irANCET.LOH.— ^ou an- remling the Act of Parliament by that map. That map is very us«^ful for some purimsos. hut Imrdly lor that. Though thi« map may he vory iisoCnl for somo purposes, it hardly can ho read into tho Act of rarliamcnt. Mr. McCarthy.— What T mean is, if we want to find out what was meant at the time, we must see what the consequonco, in the eye of Parliament, would bo in followinj,^ that reading The Loiii) Chancellor.— If you were to follow the banks of the Mi^si8.sippi, the framers of the Act believed they would ho led along these banks till you reached the .southern boundary of tho Hudson's Bay territory.* More than that it seems to me, you cannot get from it. Mr. Mt'CAHTHY.— If that is so, it gives to the Hudson's Bay territory very great western extension according to the view of that dav. That was the diffi- culty which appeared to me in taking that construcUon. Your Lordship will .see, the Hudson's Bay Company had not penetrated to that extent westward at that time, and although it may have been known there was a M-atershed to the Hud- son's Bay, still the other side can hardly blow hot and cold. They can hardly say the Mississippi was to be followed, and yet the Hudson's Bay territory could not liave been reached by that north line.f Your Lordship will see where the height of land to Split Lake is. I do not know about the English knowledge, but in the French maps the height of land is marked down— and as far as Lake Superior- with marvellous correctness. The Lord Chancellor.— As far,as Lake Superior, likely enough. Mr. McCautmv. — And other maps, to which reference has been made also, shew that there was a height of land, which I have spoken of already, which went to Split Lake. It may be quite possible that was the height of land, at the time, which was supposed to bound the Hudson's Bay territory. If so, it would be absurd to follow the Mississijjpi up to its source.'and north to the Hudson's Bay territory.^ Sir RoiiERT CoLLrER.— Nothing at all is .said in the Act about north of the height of land. Mr. McCarthy.— Now, my Lord, I will point out very briefly what I have to say with regard to this question, which will be more fully dealt with by my learned friend. I will not go into it in great detail. The chief settlements— except three or four — wei-e east of the due north line. The French colonies and settlements were at Detriot, Michillimaekinac, Sault Sto. Marie, Fort Miamis, Vincennes and other places. N unbers and num- bers of them, which will bo pointed out more in detail, were'all east of this due north line, except three or four sottlements upon the Mississippi, planted there at the time Le Sueur ascended the Mississippi. The inhabitants of these, as the histori- *See, as to the iiitentio.i of the framers of the Act, ;>. 42 ante, text and note. tThe argim-.ent on behalf of Ontario, upon the Quebec Act, relative to this i li r > ' the word northward had reference, not to the prolongation of a line, which the gramr ... . ,.,1, , ion would not admit of, but to the extension, in that direction, of the whole territor)' dealt with, as shewn bv the historj; of the p.issage of the Bill throujch Parliament, as if th.> Act read : "All the territories, islaids and countries in North America, belonging to the Crown of (Jreat Britain, bwnde.i on the south bv a line . land extending] westward to the bmks of the Missiwsippi, and northward to the southern boundary of the territory granted to the Mercliants Adventurers of Euglaud trading to Hudson's Bay," (see ante p 42, note, and p. 34. note) ; that even if this view was not to prevail, the langurtRe of the Act did not neces- sarily require that the Hudson s Bay Compauys territory should be met with at the source of the Missis- sippi ; and that, in any event, the line from that ascertained point -whether drawn due north, northward by a natural boundary, or deflected to embrace the French posts of the North-West— must, since and by f jrce of, the orders in council, proclamation, and statute of 1701, and the subsequent commissions, bo so drawn as to reach the "boundary line "—that is "the shore "—of Hudson's Bay. ■ * "^'l*'.i"'" =••" ^'jy^^'-d fur a line drawn due north t.-..a the actual ouurce of the Mississippi would intersect this particular height of land at about the sources of the Severn and Berens rivers. 186 THK FRENCH P0.ST8 OK THE WEST AND NORTH-WEST. 3ut north of the went to tlie west bank of tl.o v!, ^e I*? formerly l.eon their country, and Lord Ai^ur)u?E -WiVk nn T T^"^ ^^' I"""'"^ ^'ty "f St- Louis* which had he^rrilLed'^i'UoTrrf tSi« nrr '^''"'' '° "'^^^ """'^'-^"^ '"'•*« not. in any'^eniriirwlJdf wo"I' "/ ^ '^^ '■''^''^"^•' *'^ ^"«*^»«'' P^'"^- '^h^^e were Kentlemen^ha" ar 'ion Ju £ rT'l'T^ ''V' *^'"'"- 1^'^'^'^ "'' ^^''^- Th««« r.ost.s. but there were m. set ernts'fi '^"^ ^° '^1^ ^"^ ^^^'^^''^''^ temporary ' ^"^^'^^^'^ '" h«'P »» thi here and there as steps on tL in, r-n \J ^''''*?- ^''^^ ^'"''^ J"^^« a fort will point that out and prote "'it f2 \h^ """"' "'''^J"« '^ *^'" ^^^t^"-" ««"*■ I friend has reforre.l b t irtlsense of the^V correspondence to which ,ny learned could not be used. TZ^Zenn^^Jr^ Sea. included under one nol ar« Tl T """" ?° *J^^ P"'*'^ "^ *''« Western from the Governor of the & ^fVew Yo?k "''" "' "" '^""^"^ "'^''^^'^ *«' Sir Robert CoLLiER.-Seven for how nianv posts ? |^T^--Ji^rr^i;^;Sfp«^ ab e em.grfttion to the other Bide of .ae MigJw uV.i contal^fn V'' ''"V"d. notwithstanding a oongider- „. K? '^^ '^"'^^'' ^"^ than sever.! of tho'e ^^^Id'^S th- 1%'"'^^^'^'-'*' P"P"l»tion at the time of inhabitant, were agitating for a Peoarate fnrm^ ^;, ?i ' '*"* combined, itlillg, p. 95., i„ 1773 %■ Secretary of SU^e.^rot "f.^^^rrm 0I LZr°n "V' «-ern.neni;' a^ to w^iTh Ud 1 artmc ven'turiT' " ""' «*''''^l«hmen1ZdopendentTa^nh rTf'Jlle'Kl"^''""^"^?*'*^ -""l 'hSugTl cannot venture to asBure yon that the intHrnat. «» Hi„ vr • . . ' '"® ^'"8 » colonies ou?ht to be adonterl vot T aHsiatarit judge or aoseMor, and the sheriff wm-„ ^.^ f^' '^ *''® s»'a"e3 of the local iudffe the fourth, nterest in it« trade, for » conaiderationnf .f^hl^t "^y* 't was farmed t., its cotmnnndant with « <«», ,„d,.p,..able a. „,,y p„°'. n"?e.'X,tl?' ,i!iSy:"?5',i„\"^^^^^^^^ f "»"•■ » ">»«" otffi ("«;",'" Vr.?"*^^'- .'^^he^'oo'ula noHa't';' teen"aba;rdVne7iri--r°*K*'^*?^°°"^ ''"' ^«^« »«ld by France Jet;^.'"'- ^^■'*'' ""'■> "^'*^' *''«" BougainviUe wrote (a?!? J. qi°*' J^^ *'"* *'«"*«'! «f by Gov. Oarleton! Jeffery. account of them was publishfd, (««)". pp 143.7)''' ^ ^^' "°'« ' *«^'-''> °°'« t), nor in 1761, wh»a 187 ARGUMENT OF MR. m'CARTHY, Q C, re QUESTION OF BOUNDARY; hvered up to the Kins, and, after the Treaty, the posts upon the Mississippi • but no one ever heard there was ever a siirx-ender of these so-called posts and forts in what we now call the Hudson's Bay territory. Therefore, if we want to crive a mepmncr to the Act, which of course the recital is entitled to, and we want to find what colonies and settlements were to be brought in, and to which a civil aovern- ment was to be -iven, and that a French one, we do find all the settlements be- longmg ptoperl, to France. The ether alternative, and of course it is not free trom doubt, IS to leave these posts upon the Mississippi, such as Caskaskias, Fort de Ohartres, Cahokias— these three posts and small settlements about them— withoiit any civil government. The answer which I make to that, vith a -rood deal of corifadence, is : Was it intended by the British Parliament that fron^the Wabash, where Vincenncs is, all that intermediate country, which now forms the great state of Illinois, and beyond the great state of Illinois, was to be brou^rht m under the l-rencii law and made a French settlement ? Of course, all these th'^ee or four small settlements which were there we.'e being deserted by the people goino- to the French side ot the river, becau.se although ceded to Spain ia 1762 that ce.st 8ion did not become known for three or four years afterwards. That is the proposi- tion on the facts.* Then if your Lordships will look at the map. I concede that what hir Montague Smith has said is perfectly true, namely, that " northward " may mean due north or in a northerly direction. We have to look at what had to be reached The Hud.son's Bay territory had to be reached, and, more especiallv looking at Mitchel s map. it would be more reasonable to take the Illinois as the north line than the Mississippi. To so by the Mississippi to the junction of the Illinois and follow the Illinois would be a far more reasonable construction m those days of the " northward " line, if the words du3 north do not apply to it That would have equally reached the Hudson's Bay territory. It would have reached it in a mu jh more natural course, and would be much less to the north-west than the Mississippi as then understood, or even as it exists, would bo Sir MONTAQUK Smith.— Do you contend now for the due north'line on this map ? * Mr McCauthy.— Yes. My argument is this. The more difficulty you have as to whether you are to bend to the east or the west in order to get to the Hud- son .s bay territory, the more certain it becomes that you must follow the due north line I .pay that the map. audits history, and the circumstances I have mentioned, indicate, as I venture to say (with some (;learne,ss to your Lord.ships I trust), that it wouM be more in accordance with wliat we can assume to have been in the contemplation of the British Parliament at that time, to have followed the course oUhe lUiniis than it would bo to bend to the north-west and follow the cour.se of the Mississippi. What then is left ? Is there any other left except the line .solemnly determined by the Court of the Queen's Bench, in 1818, as the proper boundary, that is. the due north line ? I suppose it would be hardly fair to commit the Lhiet Justice to the report of the case, which may not be full. This would be a reasonable construction to put upon the language. If it would be a shorter line to take the due north line to Hudson's Bay, that would be a proper reason for lojlowing it. Sir EOBEUT Collier.— The due north line would be the shortest Mr. McCarthy. -That is what I contend. It depends upon whether the Hudson s Bay is nearer that point than the other. You might rt..oli the Hudson's Bay on the west line quicker than upon the due north. But for the present 1 will leave that part ot the subject, and come to wKat I contend on the second point. *See ante, p. 187, mte' 188 OUNDARY ; "^' s' s?cir„rnr ^' ^'^ -^-'tr&s^^^^^^ -^^^ '« *^« -- in favour of it. ^ That ifn^ytnSTof""'^ ' '^^^ endeavoured to point out are already^eS toThrr„olLl^rsU: Jt actlruT' '^"^ '^^*^ ^«" ^-■« up to the height of Ld a^For WillSm 'Srf>r- "^^ rrr^'^ other/excep" that about 30 or 20 miles west of the litie * ' '"'' °* ^PP""" ^^"'^^'^ «^tend. will follow the course of the Ss slpn un ?'''FV.^^' *^" r}' ^°"«^^d up, we m apprehending what has alrSy burred itt^ ^'T\ ^'^'"' ^^ ^ ^"^ Wht thing to do would be to go direct north Jo fhi^^^^^ ^t,''" '""^^^^^^ the oSly The Lord Chancellor ^^Tlfe Act n^P ^- ' ^^ territory.f ^ Hupuosition that by following the banks of fhe Z' ' """""" '' ^' ^'^^" "" ^'^^ boundary hne, and probably%riLT This is n^'H''7^- ^^." ^°"^^ ^^^ *« ^^^ becomes a^'oTTIpTir,^^^^^^ that. Then it southern boundary of the HuLn's'Bay terr torf ""}!''' '' '^^ not know where to stop with the nortlf ]\Z 7' '} "^^ ^"^^ ^^^^' vve do ' charter has been referred to an^Tl ne d r^o reaJ",-^^''- '" n^"*^^""'^ ^^3^' the charter is, that the King, who had then w« ''^*'"- • ^"'' ^^^^^nS of the !.i;;tory, been the discovfrer of HudsS Bav ^^Z^"'? ''""^'^^' ^^^^^^ing to what IS known in international lawr^nW;! /^^- ^^J«>°^ng territory, had settlement.! To the di.coveJei of tTir.nn • '/'*^' "^^* *« P^'^^^rve that by •nent, the country accorLp to f ^1 ''^"tment, or part of it, followed by settle^ belonged. I wilfnrtrtbl yot Sg^'^thZ^ '/ '""^ E-opean L\tt. unnecessary. It is hardly neces«arv in Tn l^ r t^' ^'''*"'' ^ ^""""^ that it is counsel, to contend as to that point with ! f k"^ 't f ^"Z^' ""' f«'' *" English French did strenuously urge th^eotlrv^ew AfcTh '.'w ^'^r "•^' though%he Mon of the Crown ? it had discovered S itL^ t^\n\^^ ^^^ the posses- gave it the right to perfect ancrcompkte it t H^ T ''*"'*^-. '^^« ^^«^«^«ry _.. Ihere ig the furthpr im,^„.t-_i /._.., . . 7177 ^ ■ ^viaioa t See onic, p. 186, note t. " of Its trade and in friendly a liW« ^f»u ?'"'»?»"*«.. of the territory, were from thf fi,T ■ .u '^"wence Charter, «ome 40 or 50 velr* fe! The cVL^*"!" ?'"'>-'"«°t«- and". ToreovTil^iL'^'J!!? «-Joyment § The charter containM no auch words. 189 ARGUMENT OF MR. M'CARTHV, Q C, re QUESTION OF BOUXDARY 1 : and Eay, except such portion of that territory as was then actually possessed by any other Christian people ; and the question is, was there any actually possessed by any other Christian people at that time. Upon thut, also, the facts are hardly in dispute. The French claim that they had been there, but if they had been there they had been there as discoverers, and as their so-called discovery was subsequent to the English, they took nothing by that; tliey had not settled. Now, there is not a shred of pretence set up in any of the evidence and documents before your Lordships that, at that date, the French wer, in possession of any portion of territory which we say was granted by that charter to the Hudson's. Bay Company.* So that, prhna facie, and at all events as far as the Crown and people of England are concerned, that charter, of its own strength and force, although not binding upon foreign powers, did give to the Hudson's Bay Com- pany all which on its face it purp rts to grant. This, I understand, is the differ- ence between the international view and the municipal view, so to .speak. Muni- cipally speaking, that did give all it spoke of. It might be that as against a foreign country it only gave what it was in the power of the King to grant, but so far as the municipal law goes, so far as Great Britain is concerned, it did grant all which on its faue it purports to grantf Now. if I am right in that, that that was the effect of this grant— let r.s see- what followed ; and I propose to divide my statement into three or four di(ferent periods of time, and to trouble your Lordships as little as possible with references, though I have them all here. x\[y first period of time I have now brought to a close, and that is the date of the charter. The .second period of time is from 1671 to 1686 and during that time, but only* comniencing after 1680, the French were fighting (although peace at that time prevaded) with the English in Hudson's Bay, and in point of fact had captured all their forts but one. They had actually driven the English out of these forts, having come overland froui Canada. They had succeeded in driving the English out of their forts, out of their positions, out of their settlements, and they had occupied them, and were then, in pos.se.ssion of some of them. But I should have mentioned that during the early part of this period (and it has always been made a strong point in favour of the Hudson's Bay claim.s) the French acknowledged and acquiesced in the Hudson's Bay pos- sessions. They did not dispute it So the claim has been put forward on behalf of the Hudson's Bay Company on two grounds, first, discovery and settlement, and secondly, acquiescence by the French,+ who pretended to be equally * There is a mass of evidence in the several Appendices, whereun Ontario's contention in favour cf an adverse prior title and possession on the part of France is based. This is dealt with more f uUv voyt ■ but see appendix B hereto. ■' ' tOntario claimed that either there was no title that sould interfere with the paramount title of France • ,°/u„)i*u"Vi'*i„... i'ii'f'J.' *i'''^''^ !!?.'^J"^j" !i"''.*"f'.?^ 'i,"^' Of semblance of title, on the part of the company,' result of wars and treaties— the treaties of Utrecht and of Paris-could not be held to enure to tiie beneht of the company, and the Crown, or the Parliament, as the case might bo, was free to dispose of them in enlarging the limits of i^iebec, or of Upper Canada (as actually happened), or otherwise as it might deem ht, witliout regard to any claims of the company. Further, as a matter of argument even if the Crown liad chosen to still recognize in the company a title to the soil, it was competent for it— looking at the question as oue of boundary merely-to place the territory within the limits of the Province and to thus extend to it the provincial laws and government. In this connection it will be remembered that not- withstanding the charter, the Imperial Acts of 1803 and 1821 extended the jurisdiction of the Canadian + Ontario shewed that there was no valid claim on the ground of either discovery or settlement and that there was no evidence of such acriuiesoence. On the contrary, the evidence shewed a total denial of, and armeu resistance to, the c-umpany'a pretensions, by tiie Frencn. See appendix B hereto. 190 BOUXDARY TREATY OF RVSWICK, 1697, the time when Bailey wa Go ve^i,;^^^^^^^ delay your Lordship f will put L Zt aft r^aSf '°Zr!7 ^.'"P""^" .^'' *« French-a correspondence with the Governor^? HndJn'p "" document from the possession.* During that period fi-^m 1680 to ^«« T ' ^y-^c<)"iescing in his much disturbed, and'then, in 1686 weUvftheT. !f' ?{t*''' ^"=^''^^ ""''■' ^^'Y as It seems to me, the firsi proper line toTtop a^ TrT^n*''" ''j' ^^'"'^^^ ^"^'"^"'^^ page 544 of the Joint Appendix The fourth .h," rX T^^^ ?^ Neutrality is at Then, under that treaty commiss^ierswerj'^?^ made to ascertain what was thrpZeTline^ jr'"^'?' ^"^ ^" ^"«»^Pt ^as settlements in Canada and the HxXn^ Bav .nTfr*'"''. between the French .mtil 1697. or rather they did not o so far a^thn. 1. ^ '''^''''^l^* "'''' ^ P«"od that. I think I can give your LordshTnfhV If 'k''?u' '^^' ^^'^'^^ «"t before It was 1689-108G was th^ Treiy i? nL r^tT 'ffit' "^^^.^S ^^'^'^^ «"<^- declaration of war. Durino- this short neWnr^.f"?'^ "^^^ ^^« ^^^^ of the tary drained by Hudson's Bay." tS comesth^ TV^f^'^ *^ ^" ^^^^ ^rri- that. That was in 1697. ThW were le f to ,i J'tJ ^ '^ %swick§ following >^«:^ by the peace.'' ^^^^^^^ *See awif. p. l.'io, notej. - . . .V ..,.o uccii af(i(;eu cnat eactl of tllp snirl W.'r.™. u n 1 ".iJiRB 11. OK iiNGLVVn 1fi«R , - . . •» ■' -"J"^ 1.1ICU1 no present. '"■" "' 'i>fnc oeiongs . It 18 in evidence that no such claim lia.l than .,, f i Eiigli«li nffaira boked ifluumf ami tl.nM nf p """'^f^™, that ivfiether upon the Pi-afB ^f »„ - i to the 49th parallel. Oolonel Bk d:S^ro; e [, ™ 'e BH^t Ih^n ' '" ^''" '^"'P°'^^ ^^ich would have ^',':"" P»';'«. •" 1719 in reference theretT ' la lreaJf,t?oZ"dir"r^-'"^'f^'''« Treaty of Utrec-hr^roi; difference of two degrees between he r^ fc^.^'..'.^'^ exeoution^pf this affa ^.The'r^ S Printed an% p. 112, note. 191 ■ 'mmm--mmMmmmt- AHGUMENT OF MR. m'cARTHV, Q.C, re QUESTION OF BOUNDARY : fortable position. That went to this exent. It has already been raferred to by the other side. It specifically stated that the forts that had been taken by the French from the English, even although in time of peace, and were retaken by the English during the ensuing war, should be restored to the French. That part of it is at the top of page 48!) : "The Most Christian King shall restore to thesaid King of Great Britain all countries isLnds, forts and colonies, wheresoever situated, which the English did possess bpforo the dtclaration of this present war. And in like manner the King of Great Britain shall restoie to the most Christain King all countries, islands, forts and colonies, wheresoever situated, which the French did possess before the declaration of war, and this rfstitution shall h- made on both sides within the ppace of six months, or sooner if it can be done And to that end, immediately after the ratification of this treaty, each of the said Kings shall deliver, or cause to be delivered, to the other, or to ponimissioners authorized in his name for that purpose, all acts of concession, instruments and necessary orders duly made and in proper form, so that they may have their eflect. " Comuiissioiiers .shall be appointed on both sides to examine and determine the rights and pretensions which either of the said Kings hath to the places situated in Hudson's Bay ; but the possession of those places which were taken by the French during the peace that preceded this prt sent war, and were retaken by the English during this war, shall be left to the French by virtue of the foregoing articles." That, I think, is all. " The capitulation made by the English on the 5th September, 1695, shall be observed according to its form and tenor." That 1 do not think applies to this point. Then, the Hudson's Bay Company were exceed- ingly dissatisfied with this conditiqn of affairs, but fortunately for them, this treaty, I think, never was carried out. These forts never were actually delivered up.* They continued in that way, the Hudson's Bay Company representing to their government that all that was intended to be given up were the forts, tliat i^did not aflfectthe country ; f that if the country was theirs that drained' into Hudson's Bay,+ this article of the treaty, and the treaty itself, did not afliect it. That was the J]ngllsh contention, but that the most that was to be conceded were the identical parts and places which had been taken by the French durincr the preceding peace and had been recaptured by the English during the war. " Then follows the next war, which was in 1702, there being about five years between the two, and during the five years there was an opportunity for the Hudson's Bay people to state their claim, and there was also an opportunity for the English authorities to set forth the view that I have spoken of, whether rightly or wrongly I do not stop to consider, because I do not think it is of very much importance. Now, the Hudson's Bay Company reply to the French claims arising out of this Treaty of Ryswick. If your Lordships desire to look at it, you will find it at page 555 of the Joint Appen-Jix. I have stated, I think, the efliect of it, and it is not very important, at all events in the view that I contend for. i will not trouble your Lord.ships with it, except simply just giving you the reference to it. Then comes the war of 1702, followed by the peace and Treaty of Utrecht- the all important treaty, in the view that we contend for, as firmly establishing the Hudson's Bay Company's claims. And first, perhaps your Lordships will look at the negotiations which led up to that peace, at pages 490 to 494, so far as it concerns Hudson's Bay. '^The plan of peace, 1712," is at page 494. The pio- po.'^ition that commissioners should be appointed in order to settle the disputes is •One only of the forts remained in the company's hands. The others, together with the whole interior country, were in po 'session of the French. (See po«<, p. 197, note). t This contention was really that of the French, and in refereLce to ths Treaty of UtrRrht. t But no portion of the country, and but one isolated post, remained theirs. 192 BOUNDARY : CONSTRUCTION OF TREATY OP rrTRPPHT TTIQ JJi iKi!,ArY OF UTRECHT, 1713— NEOOTIATfONS PRIOR TO TREATY. ^ith the whole interior t^polt^^stii I'r ""■ ''*'" "" ""*'" O"' 0- 7. »<' - on. At the Then, upon that : Then the reply of France : ■ ' ' and so on. And then article O. 6 says : ' _ , the c^fofa ^'£:i:zn:;^onZ''T' T ''''' '''^'' '° -°-^-". -'^hin' Acadia ind the lln.is of Hudson's BaJ o^the „Th I'T'' ? ''"" «'^«' ^"^ ^'«°«« of all just and reasonable recompeTes," ' "■' '""'^ '"^ ''^'='" '" * f"««dly manner and so on. '^ It is not SueTdTfinTt ;U: i:^ . r dKlIVr^'V^^ .^r ^^.^^^' ^>' --^ ^y. be said on both sides, that is cert vi*^ T t.^ t ' J^'^lf '' ^ ^^'^^ ^^^-'^^ *« ■s .on. the report o. the ^ren^X:;i,o:^!::^r{:l ^Lf^.^^^ i^ J^^^ potentiaries) have protested a huad™ t ua^rthu h.^^ ^^'^,^'^' ^-^^'^^^ P'«ni- negotiations rather than to give way Tneitl.rn'f ^'^ '''^'''' f^^" *" '"'"'''^ «« *''« where they claim even the cannon wZiZfj^T' 7 T''.'^'' °^ ^'^'^^O"'^ "^^y. Sieur Gaultier had not confirmed whalthty said ' ' *''''" '^''' ^"''^ ^'' ">'^ ^^ '^- Hhuuld be used, and the FLcKath.L ■]''"'"-. >^ ^'^" ^^'"'''^ "restore" tbe name of .God Sir oidervon^. I ^* '^*''^^ ^^^^^'^ be used.f "In jns. Oars, who also il.i U^J' 7^^ of^I Itin" ^^" ^^""^■?^ ^^^"^-- Then" the <)th (10th) article of the nL,; ! Vf^'" «-^P''f.s^ions," and so on. the Queen of Great BHta n.l^fdso, %'lW T^i;'^^^ ^'"' '^^"S, '^^^^^^ ^-v« »P to sessed by the King and the French ' Si- th.V r '"?"'" '^y ''^''^ ""^ P^^" a.e .n. possessecfby the Kin, :!;, th^lt.S^^'Z^^Xlh :;r;.r "^'- ^'^^^ -toJntt^SraTh^ltkirf^^^^^^^ messed in that quarter. This new clI ,a dnlf«7 '' '"' t ^ "" '^'' ^"^'-^^'^ «-«"• Poa- perpotual difficulties, but to avofd Urn the Kin'h. P'-\-d would be a source of Bamen^apof North America as had bin fuSx ^bv fh . l" • ^''"'P"'''^'''^"^^ ^^^ Rntajn His Majesty has caused to be drawn UDonlhU .^ 1' en.potent.aries of Groat ;- '''^- ■" '=-c :iJ i.-tji. - ^ Oiiuiscui raaKes a deuiaration t .^ee enracts an., p. 113. See a„o M. de Gah■.o„„i^re on this subjec, a.U, p. 119. „ote. "• 193 Wi I ARGUMENT OF MR. M'cARTHY, Q.C, re QUESTION OF BOUNDARY point on both sides. If, howover, there should be any obstacle which the plenipotentiaries cannot remove, the decision must ba referred to commissaries to be named for the adjust- ment of the boundaries of America." Then, passinjj on to 504. we have the treaty; and the 10th article* of the treaty is the one in (juestion with regard to this : , . . ^. "The said Most Christian King shall restore to the Kingdom and Queen of Great Britain, to be possessed in full right forever, the Bay and Striits of Hudson, together with all lands and seas, sea coasts, rivers and places situate in the siid bav and straits and whioh belong thereunto " — ' ' Your Lordships will see, in the note, what the words were. It says : " There were two originals of this treaty, one in L^tin, and the other in French. This translation is that published by authority of the English government, at the time The expression here rendered ' and which belong thereunto," is. in the Litin copy, ' apedantibm ad eadem, and in the French copy, '«< Ueux qui en dependent.' " I render the expression " apectantibm ad eadem," as looking in that direction They first speak of all the lands ; then follows, looking in that direction— lookincr that way. In other words it would mean the height of land : ° —"no tracts of land or of sea being excepted which are at present possessed by the subjects of France. All which, as well as any buildings there mide, in the condition they now are, and likewise all fortresses there erected, either before or since the French seized the same, shall, within six montJis from the ratification of the present treaty or sooner if possible, be well and truly delivered to the British pubjects having cjmmisdon from the Queen of Great Britain to demand and receive the same, entire and undemolished together with all the cannon and cannon ball which are therein, as also with a quantity of powder, if it be there found, in proportion to the cannon-ball, and with the other rro- visions of war usually belonging to cannon, It is, however, provided that it may be entirely free for the Company of Quebec and all other the subjects of the Most Christian King whatsoever, to go, by land or by sea, whithersoever they please, out of the lands of the said bay — I call yojir Lordship's attention to that : — ■' out of the lands of the said bay ; together with all their goods, merchandizes, arm? and effects, of what nature and condition soever, except such things as are above referred to in this article. But it is agreed on both side.s, to determine, within a year by commissaries to be forthwith named by each party, the limits which are to be fixd between the said Bay of Hudson and the places appertaining to the French." Now, with deference, I beg to submit to your Lordships, that the proper construction of that article in the treaty is, that the true boundary was ascer- tained, that is the limits were fixed, not upon the ground, but that the rule tor hxing these lumts was fixed in the language of the treaty, and that what the commissaries were to do was to go upon the land, and, as it were, to mark out and settle where that particular point was, so that after the Treaty of Utfecht it was not left to the commissaries to say, " You shall have the height of land, " or "you shall have a point parallel," or "you shall have" anything else. I venture to say, with deference to your Lordships, that the duty of the commissaries was to i^ettle the height of land, and to fix it. The Lord Chancellor.— Which are the words you rely upon ? * Printed ante, p. 112. 194 CONSTRUCTION OF THE TRKATV OF UTRECHT, 1713. that direction. Mr. McCarthy : Brita^^trJpollJYnljl^S ^y^"'" ^"^ Q"- of Great that way? ^- ^^'' ""'^'^ ^'"^ '' '^'^'-'^^ ^ ™ay venture to putlit in oppoL'n\s'^arwer?dTt\"^^^^^^^^^^ '!"-"- ^- ^^ to answer. Your certain denomination, whiclXd been con. i^- 1 T- '''T''''^' '^'^^^'^ ^-^ * description. No one can poss b I ZthTf^^^ or claimed as falling in that that ran into HudTn's Bay ^ ^ '"^ "^ ""''"''^^^ ^^ included every stream the ,lH?Jn''o™7aTrs waf al^W t"' '^^ 1^'^"? •T^'^ ^^ ^'^^ ^^P' ^^at French should surrenE to thTEn Ash « I ^'l ^A T^*^^"'-^ ''^'^""'^^ "mt the The Lord ChaJce? lor -T Pf tl t I .t- ^^"^' '^"^ possessed on that bay. before us there is cXurX^nk o™ 1 ^"^u"" i""«tration : In the map north and east of Lake Su^^Hor tIZ '""^^^^'-'^^ountry immediately to the Lake Nepigon, a rfver whiK'„,aSeT"^^^^^^^^ ^^-l T "^^^^ J^^^ «ast of lake weir>^ithin that pink o roseSoured Suntfr^i In "f l'' ''"^=t '° ^ J^r contention is that the whole of th"Jt1are"ti w^tlt te ^Hudso^'^ ta^ Mr. McOarthy.— Yes Sn McSb™v -y"" ^~'''™" " <"•""'='' ■""> »"*<-»•» Bay ? sl,o,- "rstar.,?l;rSu°p:*Jt™ " ^^^ '^"*""'» ^^^^ ^^^'y -ftm a very Mr. .McCarthy.— Yes. The Loud CHASqELion.-Pmctically up to Fort Neni,r„„ t tl,i. ES'iRiv«":„Ter ™" "' ^"^' ^^P'«™' "■- ■- l«k= fro. which t. l.O;„'af '''™''-^" ''■"■" ■="»"»* •*'-- "- "-'h ..t what wa, conceded The Lord Chancellor. -There nrp fwn p,.™!;.!, 13 • E...lish River of which I have Wn speaS. ff to th;''''. '". ?1 '"'J^' ^^'^ t .seen..s to have taken its source close to Fo-fc N.nW '^'\?^ ^^^' ^'P'^^'^' that becau,se that ran into Hudson's IW if ; . .^^P'='"'i- , ^ «"i- argument is, Mr McCARTHY.-Yes. ^ ' '^^"" Hudson's Bay territory ? \I." v^l^r CHANCELLOR.-And not within Canada ? Mr. McCARTHY.-Not within Canada, ihe Loud Chancellor.— E^tendino- „« f^ fi,,^ ^i • or a Marrow i.thnm.s, I should rather sa^ "^ ^^'"'' ^^'''' '' ^ ""^'^^^ peninsula. land at'tlfat'pia7e"''~^''' '''^"^' '' '^'' P^^^^''^^' f«™'^ti«» of the height of 195 ARGUMENT OF MU. M'cARTHY, g.C, re QUESTION OF BOUNDAKY French, all of them, this treaty says, both French anC English, are to be reitoroJ to the English.* Fort Rupert, which is at the top of that blue line, at the .south- east corner, was .settled in 1GG7. That was then built. Then there is a fort called Moose Fort. I will not speak of tliat, because, perhaps, that was not built till afterwards. The Loitn Chancellor.— I did not before know that you claimed, as part of the Hudson's Bay territory, any part of that which is coloured rose. Mr. McCarthy.— Perhaps your Lordship will allow me to hand to you this map, as it shews the height of land more clearly marked upon it. In the map that your Lord.ship has, the height of land is coloured, but it is not .so clearly •defined as it is in this one [handing a copy of the Ontario boundary map of 1S84 to the Lord Chancellor']. The Loni) Chancellor.— The Argument is that the' rose-coloured part in the interior belonged to the Hudson's Bay Company ? What map is this / Mr. McCarthy.— That is the Ontario map," on which the height of land is more clearly marked. The Loud Chancellor— The height of land, and the watershed ? Mr. McCarthy.— Yes, it is more clearly marked, that is all. I will satisfy your Lordship that my claim in that respect is right. The Lord Chancellor.— You say so, but your opponent did not concede that. Mr. McCarthy.— I do not know that he did concede that. I do not know where exactly he put the Hudson's Bay tei'ritory. I listened to his argument, and I could not make out where he' put the line of the Hudson's Bay tei-iitory Lord AiiERDARE. — It appears to me that the Dominion, in their enlargement of this Manitoba province, violated their own original grant. Mr. McCarthy.— No. Lord Aberdare.— Did they not ? They gave you a certain portion of the south side of the height of land. The Lord President.— Yes, that south-eastern corner. Loi-d Aherdake. — Yes. Mr. _ McCarthy.— Your Lord.ship sees, inst-^ad of stopping short at the lieight of land, they took the Pigeon River and Long Lake,t and the other water ■communications, as being the more convenient boundary .:|: Lord AiJERDARE. — Then, starting from the Pigeon River, and extending up to the north, there is a portion of the territory assigned to Manitoba. Mr. McCarthy.— If the due north line prevails, between the height of land And the due north line. That is what I spoke of yesterday. The Lord Chancellor, — However, you have nothing to Ibund the argument upon, about the height of land, except this Treaty of Utrecht. Mr. McCarthy. — That is all ; and the claim, which was more clearly and ■distinctly made afterwards, I will come to in due course. Now, your Lordships will see, that at that time the Hudson's Bay Company had forts at Fort Rupert, at the mouth of tliis very Albany River, at the mouth of the Churchill River, much further to the noi-th, and on the Severn River, *The treaty providfd that the "Bay and Strait.^i of Hudson," together with the lands and ulacM pp. 119, note, and 159, note +) and of Lamothe-Cadillac (.Joint App. 613). + Long Lake, on the line of the international boundary. See anti , p. 78. V • 1 •"■ T- — 1. ...^.. ....» ..- .. pr. ..„„,.. n .,, ,.„,,,, _,,^tj-|priy uuunaary to meet the due north Iicf for which, in disregard of the height of land, both Manitoba and the Dominion contenJed JOUNDAKY are to be restore 1 line, at the south- heji there is a fort tliat was not built claimed, as part of rose. ) liaiul to you this )ii it. In the map it is not so clearly davy map of IHii^ jloured part in the p is this i heio-ht of land is erdhod ? all. I will satisfy t did not concede ,t. I do not know 1 to his argument, on's Bay teriitory. their enlargement in portion of the -ing short at the id the other water and extending up itoba. he height of land ind the argument morp clearly and n's Bay Company ver, at the mouth ihe Severn River, li the lands and placet ored, 'v,M that coinmis- rtaiuinif to the French " ds and placen should be ibre, respectively, [anti, meet the due north licf itenJed. CONSTRUCnON OF THE TREATY OF UTRECHT, 1713. V t^':^T^'^!z^c;'!t.T'''r ^^ ^^.^ '-« of forts ;«. with the east) this poin no th of [his hi ^r "'''^ °?^ .^^""ble your Lordships the Churchill or DaS Ce as it^ calLd 'l ""^''''•'•^ '^l'^^' *'«'''^ ^»P«'t' ^o stantially, they had the mouths of al f h! • ' '.' '? P"'"' "^ *^'^' ^ ^hink, sub- Hudson'f Bayf even It that t * ''a t 7Z^ yZ'I "'l^' '"'V"*" ^^^ Ne]son--at the niouth of the Nelson Tl. J • .^ Hourbon-or York, or one at the mouth of the Nelson a ^d ^^^ T^'!,"'^« ^*^ it"".?"'!"^ "^ '^'^^ ^'^'^'-^hill. Albany, and Fort Rupert all which fnrf? if l '" '"?"f^ ""^ "^" ^'^^^•^^"' '^"^ the tl>en occupied eithe7by 'the French or tl^F-'T "'"'^""^^ ''^^^'''' ^"'^ ^-'"^ according to this treat/ with ,TfKli 1 '^"«V^h. »"~*". *»« English govern- treaty.that the result is tlm that 3 „? i '""\^^' interpretation of the Hudson's Bay Company a 1 that wns^t-^ ^ * I 'iu'^t ^^ ^^'^^ ^^'ent, to the tories which were embrace wfhJ Tf '!'>>^" Hudson's Bay-the terri- by the same artTcIe o t 1 ti^eatv fo^^ttr ''""^^ ' .'^-' '^^' ^'^ ^hat was left. the limitary line-not to Lermn; h «P7'"'««anes to do was to mark out was to be h^xed, burto ma k oi ZfcYi,rr'P' upon which that limitary line appear that the French should nUn 7 '?"' '° ^^'""^ '^ '^'"""'^l afterwards- not go south of it What o 1 n.,^ °'''*' ?^ '^' ^"'* ^^^^ ^^e English should not be lost si.lt of What hev w.r ''j '"""% '^T^^'''^ ^«'' ''' <^^^^t ^ime should the English complained otwa7th^tthJ"p^^^"^K^"'■ ^""^ '''' ^"^"^" ''^^^- What part otlhe river , and the Indians whv'T^ T^^l ""',^^^ *^^^^' °° ^he upper factories at Hudsl^n" bI' are ^t ^ ^Pted b"^^^^^^^^ '"? '^"^T".*^ ^"^ ^"'^^'^^ ^"^ by that means got by [he French Thp I i^"'J'' l'"'^ """^ *'"^ ^''^^^ '"^ French, "You "et the I dians H t^ «^'"e sort ot thing was said by the tbink tins correspondence wS I will'i^fer t ^''""'^'f, "^^^ ^^^^^^•" ^^^ ^ duty of the conunissaries wis to 1 I hi/ i ' t'^T "^ly, proves, that the only French would not clT a iTd U trsout^nf -^Vr" ^^^\T'^' «t" that line the But the boundarv, I Tubm is to be ?o, ,1 . % ^7 ^"""•^'^ '^'''''^'^ ""*^ ^''^^P^^^"^ «".! we are not requirecl to go tWther. "'' *""' ^"'""^^''^ ^^' ^'^« treaty iLelf, [Adjourned till Saturday, July 19th.] • ' , . FOURTH DAY. Satukday, July 19th, 1884. Mr McCarthy._I now produce another map HudSR;^rm"pry?'' ""^ ^^ ^^^^^"^^^' ^ - ^« ^^e- ^he clai.s of the Mr. McCarthy.— Yes l^^^^^t^^^^^^-'^^- P"t colo„„cl da,k purple is th.t part »Mcb * This is a misapprehension ■11 po8s«s8ion of all ■ under article 8 .n^?hTo\r;7oVts'''oraT4""seri:s !:;'• six v., IT- " ."f ">« Treaty of Ryswick and it had Tn' '^, */''"''''■ *"? ^'«« ^^'itled to /ibany rnthpr''^°'"S^P'^«0)'»"d when it pSVrom them tU^^^^^^^^ ? ^^'T P°««e8sion for .omo mHior;;."??."?!* \-?!- ..The company^ in the?;^roUlTo*^t1^:'^nlL'^.^Tt^i-.^"?,■l-^y.^^ l-ort Nelson to the southward." (8ee also ^m^ZTs hlrel) ^ northward, as also from 197 ^-ff^i-mf ARGUMENT OF MR. M'cARTHY, QC, re QUESTION OF HOUNDARV : * -Von admit this [pointing] to be Ontario ? Mr. McCautmy.— Yes, The Lord Ckancellou.'- Mr. McCarthy.— Yes. h dV^^ ^^'^'^ Chancellor.— That .seems to depend on the theory of the water- Mr. McCarthy.— Yes. •■ * ^ Sir RojiKRT Collier.- you fay Canada has exercised jurisdiction up to what IS called the height of land ? Mr. McCarthy.— Yes. The Lord Chancellor.— We have 'nothing to do with anything that goes lurthor ea.st than the boundary of the yellow land claimed by Manitoba ? Mr. McCarthy.— No. The only object, of course, is to Hnd out the west line JNow, rriy Lords, when your Lofdships adjourned on Thursday afternoon 1 had reached the point ii\ the historical narrative that I was endeavouring to i)re. sent to you. of the Treaty of Utfecht, and the bearing that treaty had upon the question as to the limits of the Hudson's Bay lands, .so far at all events as that was determined by the dealings between thc"^ French and English. I had made some reterence to matters which I had not at the moment perhaps given your l^ordships proof of ; and 1 propose, in the first place, to give your Lordships the proot, as briefly as I possibly can, of the more important events up to that date 1 liad divided my statement, as 1 thought, in a manner which would make more easily understood what I desired vo say with reference to those periods of time In the hist place, up to the time of the charter, 1670, J think it h very evident and 1 was willing to take it for gradted at all events, that the English had been tfie discoverers of Hudson's Bay, and I would just now present to your Lordships amapcalledban.sonsmap— a very early map prepared by the French. It is dated l()o6. This is a photograph of the map [producing same]. It is important in tfii.s view. It shews that what wa.s regarded in those days as New France or Canada was in point of fact south of a line which, I take it for granted, and I think It appears fairly enough on the map, was assumed to be the watershed line.* The Lord CiiAXCELLoR.~The words "Canada ou Nouvelle France" are written almost up to Hudson's Bay. Jh^^*L'^!^'''^°'^"*^"~~'^^^^ ^'^^'^''^ ^^^ ^^^ '"^^^"^ *^° ^'^^^ "^*^o ^^^ ^t. Lawrence. Mr. McCarthy.— Except those going into Hudson's Bay. The copy I thinic IS much easier to follow, and I am told it is correct. It has been coloured sht-w- ing more distinctly the difference between the two. The colouring is mine. Sir Rorert Collier. — This map is obviously very incorrect. ° Mr. McCahthy.— At that time nothing was known west. All I am shewing is this, that at that date, 1656, the French acknowledged that the English owned or were possessed of all the nortli country, by Hudson's Bay.f P^^ f*K '^^ Chancellor.— What strikes me at present "is this, that they carry the dotted line, which seems to be the northern boundary to Canada as here laid down, close up to, if not in actual contact with the waters of Hudson's Bay. Mr. McCarthy.— Yes. I do not pretend to say that that accurately lavs down the line. Lord Abberdare.— It is intended to be a watershed line, up to the western extremity of Hudson's Bay. Further than that we know nothing Mr. McCarthy, — No. tu * ^" «'''»?" '"'''tjon "f the actual photogr.aph, and a oompRriaon with other maps of Sanson, fail to sustain these deductions of counsel. See post, p. 201, note*. .•■«"", t There waa uo such ackuowleugment. See post, p. 200, note *, and ai.pendix B hereto. 198 F BOUNDARY : I jurisdiction up to ivelle France" are up to the western ^^ ^FKENC»omciAr.H .>UNDAHV DESC.UPTmNS AJ^D ACTUAL POSSKSSIONS. ^.^ Sir ROBERT CoLUEn.-l)oe. it appear on the ^^T^o beT^i^at^l Mr. McOahthv.-I think so. on on":;l l^rrc^na:;^*;^^!!^ 1:;;;::;:'^ •"«- ^ -"^P ^^^^--g the nnutn of Labrador it is ilJ's.^w'thari^Ti;!;!;;^:'*;^:^^^ - - -ap. My objoct in citing or Canada to the waters) oth^ St r.'" *° ''rV«"«"^/l their New Franct your Lordships will loui< a he I.o n.k.'v '""'^ ^•' ?"»«'»'«ti«" of that, if date, from the French llC to th^ n 1' '^"'^^'f.'Pt'""^ "> the commissions of that much confirmed t " ' Governor ot New France, that view is very C.rcle ; „nd on the wo«t, th^ WH«ter7sea or the m"; du SuJ!""^'^ *''^°°"*' ""''' "^ The French ckim- he pole or the Arctic OfkIOIaL Dk8CR1PTI0N8 ok BoU.VDauIKS rv V.,L.v,.,. n •• On. Leutenant-Uenera. in t^r^:* f' '" F'^' /l^ ^ -'S' ^^ "^^ ^''■' ^'™- L.br.d„ ehe Rive";fXTrlarfc7R Sfde'l^^iS^^^^^ "^'i'^!.*^''' Newfoundland (Terre.neuveB> he ubile f.?""'";./""" r'-«r^. thes. being o1 greatVeS a,T\t!,u °7'"''^"''' ""^ '«"i'oHe« adjacent tne rtubifcts of any Clirwtian Prince." " «^ " '*"'' =^'''"'' °f country, and not inhabited by '*"■"■ *"""^' ''« C/^auj>lain, 15lh October, 1612. 199 AROUMENT OF Mil. M'caBTHY. Q.C, r« QUESTION OF BOUNDARY: i ' The Lour) Chancem.oii.— Tlmt is, they lai.l .lown their Caninhi an includinir the watf rshed of the St. Lawrence, ami they make all the streams within their hmits How into the St. Lawrence. Lord Adeudaiik.— They acquired n j,'reat deal of hmd with tliat Mr McCahthy.— 1 think, witli deference, they «^ K?'T ; "/"'- 'r, "f^*""" >■'■•"•'* ""'y- c-'iaencinKon the Ut day of Jamu>x »H.h Li 1 • T\ '"V'''"'^ !"r ""^ '""* "^'^y "'. '^''♦'"''^■•. l';^«. »11 -thHr comnieroo, whether I'y knd or J atthl ««1H "";''' ''^T*'' 'T'- '"'«""»""'•"'' <;""'•'< "". in «ny in inner what«M.ver. over the ext™t M« l^tW^ilh !'*'l "" '*■'/'" r 'n?" l*" ''.^'""'l*'!. r-Hervi.,K the cod and whale H.herie. only, which Jli, ahn . Lr^h ; "'" 'T *'7" ■'•, ^"*'J'^V' "■^".'i "P. "• 'h'» "nd. all other conc.H.ion. contrary to t m hi. ,'^ v?"■'^® »f",':','"'«"V""«^ artrcle* granted to Wulmni de Oado and his aH8..oiat«« ; and to these er h h B Hard Majesty will for the eaid time, interdict .ill the -aid con.nieree a« well to de Gaen as to hUothor ?h^^„i?' "»'^'"' I •"""'V.;'^ "'•."?','*"'?''*".'" ,"f ^""'"'''* ■»'"' "'«rchandi/.e, which con««cation shall belonc to the «aid company, and the said My Lord the Grand Master «hall grant no leave, paHsnort or )ermi«Zn t» th^B-^^Sacei" '" ' ^^''«"«''''"« f"' ">e above voyages and commerce to th'e'K or aiy I^S tl „,, . ,. Sktir HnauU de MoiUviannv, icur Vicomte d'ArucHaim,-Mh JitnuKiry, Wo7. i he description, in the comniisHion of HleurdeLauzon is repeated, and "in the same manner that t was held and exeroised by the said Sieur de Lauzon." manner tnat .t _, . Hieur dc Mtzji, ht Mm/, l(i(Jii. »V,af if 1 i"iV'""i'" "'e.ooinmission of the Vicomte d'Argenson is repeated, and "in the same manii-r that It was held and exercised by the preceding governors." , •!>'":'"• dv Voitrcelles, .iSrd March, IflHS, P„„nfril?^7'v,',?I! ""f I^'eut^-nnntlieneral in Canada, Acadie, and the island of Newfoutidland, and other o^thesaid SiW drMci^.V.''" * ^"^'^ " ""'•''■ ««"'"""«°»le). i« "'" pl'^ce, as^aforenientionecl. * Counsel was in error. The Charter of 1627, to " La Compagnie de la Nouvelle France dite Canada '- otherwise the Company of the Hundred As^ociates-wvers not only the lands watered by tlu .St Lawrence and tribucaiies, but also those on all other rivers in this region which How to the seal iLrti f . '""'"^'"^ "tj .'" ''«/^'-^,"'= '=•'?'<*= i' 'spliced the Montmorency (De Caen) company- charter of the same granted in 1(20. From that time-nay, from the time, 1(K)8, of the fouiu^ ng of Quebec- the whole trade was in the hands if the French, brought overland by the lakes and rivcrl to the posts of the height of land, the great lakes an^-' ^'-^'^t th,.y mean to reli,„,„ish their Hahn h, nnv, f . »"t ^aM on the other .side, that any river on this n.ap a lotin 'uo he't r "' »act. th.c they represented matter of fact, H.nv into the St. Uvv irice T^ s ^?"''"'?'^^' 7'''^'^ ''"^ "«*- «^ * Lord AHKHDAUE.-This man dZ n,^f\ It h correct as iar as that jjoes. west of Lake Superior. ^ ' "''^ '""'^'^ ^'^'^'^ l»°'-t''>n of Canada which i.H cunnn^lu^r'''"""'' " ^ho foundation of the claim_wo must start at the Hnd thecouunissioIsTlItC^;^^^^^^^^^^ "^'^'T' ^^PP-^''-^- you will mission to Montma.ny. TheUnd.o^^^^^^^ '^'"-: '^^ere is^. com- .l;H^st on i.s, wlmt luxd the Ej.khT^^^^^^^^^ '^'^^u" > ^^^'^^ T''«" the Vend, a right to clai.n ! I H d thaU. ^4^ ^« fi^"» ^^^heirs, and what had the French linnted their claim to So Jr. ; ' ^'^^^' ^^^^ '^"^' ^'o^^" to 1GG3 the Then the English tak ^ Lt bn "f K^ ""'^ "r ^™''^T* '^>' ^'"^ ^^^- ^^'^^'•enee taken po.sse.ssion ot thl Hu on^ B v "^^^^^^^^ They claua th.t having gave them the right to take al the wrter;hed n 'r ''I^' '\''T''''^ '' P"'''"' ^<^ t^at^ bo. tt on the one hand the French Itu ^ L°1"h'"*"\'^"T- J^"" ^"'^'^'^ ^^«"'^' rence. and the Encdish in I«7 h..? T ,^ ^^^'^ watershed of the St. Law- Bay, then, that ^vatth^/te'L'X^Untl 'u /,h '" T'^'t^' '' «-»-"« two countries would he deHned Vn^/^ ' '.''°P°' boundary batween the the 1-Vench in those day we'elahZ/vr^'^ ^« ^^^^^^ ^^at what La.Tence.t That brin^^s Tup to S' T L.? '''^V*'^'; ^^•atershe,l of the St. ^'uage of the charter. The H wt comm ," , • ^'T' ^^^'''^''ips recollect the Ian- one to Montmagny : commi.s.,on gives the words more fully. It is the — 'andin the provinces watered hv fho a* t !!^!_!i^^litl^placea^^ rivers which discharge Map No. 5. by this authr *>"""^. \" HolTand^che * B have the nameV" S t" a ,f ° P '''r"™*' ^*^«' '''« »'«- mip No.T'by th^X' ,"?f "l'",''"" ^"'- '^■rcle. or to the Poie • the fnlv "'^ *'"'?•'" °'?™^'l 'hat their Canada or New VrU ^^f^'^g'^e as fluggested nectio,Mvith the T^eijfoftr'ed."^^^^'"" "' '^ '"«« -'"^'ed vJtt wafthafort'LVfioth'ptlu^l'^i^;^""' «ee:,:i;ri^rn nor Bay as appertaining to itf and it^U to be honerhatit'wl r'^r ''>r°'^"*'"^ "^^ ^^^^''^^'^ ence of Canada, which would be a prelensfon not to h T °°T u' "'^'"''^ * ^«P«°<^- that entertain so good a corresoondenofi tnri?l a •'^.'V^vanced between two Crowns of the late Treat/of NeutTaHtrS^lnS^o"^ pl^^^^^^^^^^^ ^^^ -d be lookod upon as the occasion of the wor^t ^fT^llV " ^- 1 -^""^ °' '^*'' ^^ ^"^ notorious an invasion should remain unpulSed t saH, Jr '" *^ ^^T °^ P^*'^^' '*" «« have been sustained." unpunished, or satisfaction refused for the losses that That is in 1687, after the Treaty of Neutralitv * Th., papers here, between the French and F . .iLl ^' — '^ '''^ °'^**^ numbers of question as to the Hudson's Bay " commissioners, upon this disputed Engh'rltu.::;^^;;;^^^^^^^ -pression. "nor did the Bay as appertaining to if?' * itself esteem the country of Hudson's ut■te^wI;d'^^o■ W e;^^^^^^ ^l'^ '^] .tT^rers of Canada, and had not paid, and they were talS of revlvin?.' 7^",^ f'^ "^^'^'^^ '^' French Rart seems to me to^be 'ood a^^shewin 7Zf ^^^^ "'1 '^"'™-"'" .'^^'"'^ ^^''''''^^^' Earl of ^g::;^^^^:Z^!:::£''^ ^^^^^ ^-^ -^^^ ^y sir Wimam Alexander, re.re;^et^:i^tj;:i;L;^.^i[:rirt!^^^^^ -^-p-^r^ ^^^"^ negotiation, between the Encrjish anr F™K f 1 i^!. in this correspondence, or disapproved of what his C n£n^^^^^^ King had rather of Hudson's Bay. He professed :;tTl?rventoT^^ Tt ^fj^hbourhood ships will see stated at page 484 of the Tnint Ar.Jl • , ^ hat, your Lord- denied, that I have been able fo Hnd' ^PPendix, and not in any place M;. iTcZny'l"^:-^'^'' ^^ "^^ — " «^^'- Hudson's Bay Company. Christian Uailsty' ^SZTS^Z^'^'^i ^^^^ 'f^^l ?.- '^^ i-tice of His Most this all.ir, in so Jl'ain a case will not Lfrfn' the S'", 7^>,i«cts; proceedings in the two Crowns » minnge the good correspondence that is between : It was an unsupported allegation of ihe company, not needing denial See post, p. 201, note. t^^i ^3 JJi-ia*.' ARGUMENT OF MB. m'cARTHY, Q.O., re QUESTION OF BOUNDARY JS0U8 , . If U to the Hudison's Bay Conipj\ny to know what they are to say, and the Bay Company reply, and on6 thing is dovetailed into another. Sir RonEUT CoLl lEK.— What they represent to His Majesty is, " that in case the French be suffered to be sharers in the Bay and Straits of Hudson, or be permitted to trade therein, the Conipiiny cannot any longer subsist." What they protested against was the French claiming the trade, or to be possessed of land in the Bay or Straits of Hudson. The LoKi) Chancellor.— That would include Fort Nelson, a long way to the nortli. Mr. McCarthy.— At that time the French had captured many of the forts on the bay, and the English were claiming restitution for this outrage, as tliey called it, and the Frenc'i King in answor to the Engli.s-h stated that he did not en- dorse the conduct of his subjects* Now, at page 484, is a report of the En<;lisb commissioneis to the King, tinally, upon the result of all this : " Whereupon their Lordships agrte to reijort their opinions to His Majesty, as fellows : We your Majesty's Oouimissioners appointed to treat with the Ambassador nnd Envoy Extraordinary of His Most Christian Mfljesty, concerning the differences that have happened between Your Majesty and the French in America, have had frequent conferences with the said Ambassador and Envoy Extraordinary, in order to obtain satisfaction for the damages Your Majesty's subjects have lately sustained from the French in Hudson's Bay, with restitution of the three forts, which by surprise wersoellier.i' proceedings of 1682 weie pur- Buant to instruotiona from the authorities (Joint App, 468, 022), as were also the military and naval expedi- tions under De Troyes and D'lbervillu, in IGSl! ;iiu! subaetiuent years, resulting in the destruction or capture of l:he Hudson's B.iy Company's forts, ships and other property. {10., ()26, 630, 631, 630 ; Ontario App. 7). Then, the King, Louis XIV., in a communication to Govern'^r De La Barre, dated Fontainebleau, 6 August, 1683; instructs him "to prevent the English, as much as pos^ble, from establishing themselves in Hudson's Bay, possession whereof was taken in my name many years agsii!!sd for rei*~^9!c t"App."623'-4"). oerni^g'^dSitll'SicrbXlne't' Trrfl'- °' ^^ « *PP^'"*«^ '^ *--* -n- missioners a general memo al d cfarTn '' m^^^ delivered to the French corn- matters in difference, and that His Mafp^^fv hi/ ' ^ ' fT""'^ *°"°^^"K ^^^ "^^^^^l settling of limits in America wherPunnnS v "T"'"*"'"^. ''''™ *° *™»'^ concerning the an answer to such poYnTs Smin thev " « H "."^ commissioners do promise to return of the King their ma te coternin- tL „H?" '^ f"^ \'^'' ^'^'^ '^ ^'"=«'^« ^^e direction, of both Kfngs be restrlirdTom^lf VctsTf hot'Sy.''^"" ^"^°" '"^'^^ Now, we find the King's resolutions at line 20 : 0^rC^^n^tio::C:^:^:TZ:ttu rS 1'^*''^ .--i^-ners of the Most Ilia Majesty's mders to acruaint the said .n^-- ^^^^''f ^^ '" America, have received las own^rigL, and the riXThistb^lT tr^^^^^^^ rrTa^i;^ord;n1:Tn1eri;^\rf:rr'L^^r^f °^ ^^^^^^\^:!^ by the E„'glish.\nd'ikTo LI tint sTvSoTJrr ac'::;f StllT \ ^H '^^^ '""^ ^^ "^^ of the English company of Hudson's nlv S wf \ 1 lu^' ^^ *^''^ """'^ ^reat dam*g« conceive the said company we 1 founld i' .? • ^ •''"'^. ^°^\ "P^^' ^"« ^^°1« "^^^er. to insist upon hroTn St antth« W„h? f h'"' '^T'"^'' """^ ^""^ '^'^'^^^'^ '''^^^'^^ "« Hu.ison. an'd the sdr^rlt Vereo?:/!' up'u Th e'2a':l'o7f' 1 1^ ^^'r?^ ^'T'' '' « P'«°°h, .....; «.- .., .„.r;: z=^ x=: s izzr^::^^i-- L ' he Lord Chancellor — We have alrpn.i^r ^n.i; »^„^ n i. rjcite'it^'""'"' C0LL,BB.-N„, it only takes the very words of the charter, and *:^e,'f''">ds.Hhore8 lands, territories and places whatsoever within Hudson's Straiti and Hudson 8 Bay, and of the njfhts and property of the Hudson's Bay Company . . " (1699) Th» French answer to this document 18 at page 637, Joint App. v^u^o;. in© t Reply of the Hudson's Baj Company to the answer of the French commissaries, June, 1699. ..v„"'^''?t"^ the oompany'H memorials of 10 July, 1703, and 29 January, 1701, to the Lnrds Commis' Tnd bv ?L fil'm«l^^^?*?h« R ' P'Tfl '"^ '^' i^l!'\Y ^''^' r '*>« boundary on'the west side ot the B^^ ; ?Kr „Zf !i f J? T *'' A*",^ ^".P*'"' ^7^'"' "■"•* ^y *'•*' «<"=ond, the East Main Kiver, as the boundary on 25^™' i?ni ! ^t^\- ^^l? * '""n •> '''rTu*!'^ Secretary of the Lord. Commissioners, to the company! 22 January, 1701, suggesting the parallel of 52^^ as the line on the east side. They are as follows ._ '^*'''' TT ,,.. 1?^, tr ,, The Company's Claims aftkb the Trkaty of Rt,s\vick. [To the Jiipht Honorable thrLnr(h Oommimoncrs of Tnulc and Plantations 1 Wr^nT.h.i'^'fl"' Hudson's Bay Company conceive to be necessary as boundaries between the InT^ll^t^tT^^^^^^ ^"^^l^** the company ca/not obtain the whilst 1. That the French be limited not to trade, by wood-runners, or otherwise nor hnilH an,^- K«„=c t,M,.„r l^M^:.J^li' 'It ''■f ''"Fh '^'" li'jf "i^e limited not to trade, by wond-runners, or otherwise, nor 1 mild any house factory or ort beyond Rupert s River to the northward, on the east main or coast. ^ ' X On the contrary, the Lng lis li shall be obliged not to trade, by wood-runner.s, or otherwise nor bnild auy house, factory or tort beyond the aforesaid latitude of 53 degrees, or Albany River vul^^r^ca led ^o^th^e l^^^Z^^^^^-'- «'-' *" t'-o«t..ekst.^owards(^:„;-dat>7and'XKr " fr^v'.o'^f'h'' or'''"^'V'f* "f*!'"''' '"'^ ^"-"""".^ "■■ ^^"f^""'' "'"'" f^* ""y fin^e hereafter extend their bounds con- K-f Ji\v..t "'/'?"' u""""*'"?' 'f'"' ""^t'K'^ie the natives to make war, or join with either n anv act, of hostility to the disturbance or detriment of the trade nf either nation, which the French ma vverv reason *„, f^"*^ unlM'' the coinjiany can be secured according to these propositions, they think it will be imos^iblB for th™i to contmue long at York Fort («hou!d tliey exclmn«e with the French), n.,r" vi 1 t^ e trad" n w r their charge ; and therefore if your Lordships cannot obtain these so reasonable p .,.,sit" ^f om ?he V^A but that they insist to have the limits settled between York and Albany Fort is n the atitude o W degrees or tl„.rea(,out.s the company cm by no means agree thereto, for they by such ara«reement w^ be the instruments of their own ruin, never to be retrieved. »"i-" an agreement wm r"„.,«„.„,.i I ti n .. r.i -J > By order of the General Court, Conhrmfd by the C nirt of the said ) tv« p,^^™„ Comiiany, 10th July, 1700. / ^*'- ^"^"'^[.gt^ To the Oovernor o>- Dcputiz-Goirrnir of the Hudson's Ban Compan)/, ..r cither of them .„ 1 V;r71?'^'''''T'^ '"'" ^""'ideratioii of what was this day offered to the Lords Ooinmissioners for Trad» and Plantations by yourselves and other members of the iludson's Bav C,.nn.anv Xir Lords L 1 ave commanded me to acquiiint you with their desire that the resolution - f vour CourlmaX taken ad communicated to then., whether (in case the French cannot be prevailed «.th to consent to the sett "men t 1 r,j tj.ivciijw.! Lj LI!,, lac.taac ui oZ.i Qegiees, wiih whatever lur- 20G HUDSON'S BAY CO's PHOPOSALS F0« S.TTLI>.G LIMITS, 170^, 1701. nor 1 mild any house. Lord ABERDARE.-.Which k Rupoif.s River Hudson's River. ^ "^ *° *"'y P'^^*^ eastward of Rupert's or of fn.u/'i;stt'i™hi4:^^^^^^^^ those are the only docu.nents. Lord AHERDARE.ijust LTl me fch ?i tLTr' '* ^^V'^^'^tion for the award. is the Ontario map ? '' '^ ^^''^ '" ««• ^lie map we have here, Mr. McCarthy.— Yes on it. *°'- '"■>' ^"J- ■ <'» i but I do not accept all the statement, ..k yt"' H vo!;Toorto'the"n''Hr'"';r"' 'r ""'=■"-' - " *«* i »«„« t<> .^te^e^^t rK; •■ ^^^;„t/.'>tTatT f By Order of t|i« (^fnnera' Cn'ir'- -' 'L ' _ January 29th, 170£. ; said Compaay, 207 Wm. Pottkb. •Secretary. AKQUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY ; Albany and the East Main being the southern boundary— " ptonose.i by the Hud.sons Bay Company, 29th January, 1701," and another line, that of the Albany and Rupert, marked " Southern boundary proposed by Hudson's Bay Company, lOtli July, 1700. -^ r t ^ j V Mr. McCarthy.— Those are the very documents we are now at 1701 ? Chancellor. -You nre now rea lin.nr from documents in 1700 and Lord Aherdare.— But you proceeded to say that neither then nor al'terwanls was there anythmnr to uistify the award. Mr. McCarthy.— i say these are theoidv documents The Lord Phksident. -The.se documents carry the French up to the Albany Mr. McCarth v.-Al I south of that line the Hudson's Bay Company proposed for the French.. They said, wo do not want the Frencli to come n«>rth of it and list * " """ ''"' ^ ^^^ '•'' *'"'* ^'""'^ ^''*' ^^^ °"^^' documents, first to The Loud CHANCELLOR.-The.se may be the only documents, first or last, but we should like to understnnd what the.se documents are Mr. McCarthy —They are on pages oG2-:3 : "The Company's Claims ai-teh the Treaty of Ry.swick. h»f ^1?I"'^'^' ""u '"''i^.u ""^^""'-^ ^«3' Company conceive to be necessary as boundaries between the French and them, ,n case of an excl.ani;e of places, and that the Company cannot obtain the whole straits and bay, which of iii,dit belongs to them, viz : " It is a docimient wi^thout prejudice — " That the French be limited not to trade, by wood-runners or otherwise, nor build any Lhechewan, to the northward, ou the west main or coast." ' => J nf f J^' ^k'' M.^-''^.^'^.^]''^'^".r^ '"' \^ ^^" '"'^P "^"t *h^fc "'^"'e was also the name ot the tort built in 1684 at the mouth of the Albany River Mr. McCARTHY.-The first forts built there were by the English f then the French took them then the English retook them, then the Treaty of Ryswick was passed, which said tiiat notwithstanding the English had captured them nevertheless they ought to be returned to the French, although they had been taken from the English by the French during the peace, and therefore the Hudson s Bay Company said they were "the only mourners by the peace." J hen the second paragraph says : j i 1 -u" ^'"'u *''*" ^T"^ ^^ li^a^y'hB limiled not to trade, by wood-runners or otherwise, nor bmld any house, factory or fort beyond Rupert's River, to the northward, on the east main or coast. Oa the contrary, the English shall be obliged not to trade, by wood- "'""^''^ "'• ofx-'wise, nor bu.ld any hou8e,^,y or fort beyond the aforesaid latitude pany. nnd that title pa«Red not to the compIn-bi.ttrthfiPrnur.fr. "P^"- "^^ couceasion of the coin- tThe first forts north of the height of Innil ur.,ro K„;u i,„n,„ w v, c. _ . ., ^. i, Moone, Abbitibi. Albany and Nelson Mi.eT^lnti:^i^, 'ri.;^*. ' S^^falsoTappTndirB °heVto' ■■""' 208 HTOSON'S BAY CO'S PROPOSALS FOR SETTLING LIMITS. 1700, I7OI. irst or last, but also the name of 53 degrees, or Albaay River, vulgarly called PhonK^™ u on any land which beloJg« to the ffln's Bav CrlanT" ^ ''^"'^' ^''"*'^''> treating it still as their land : ' . • Mr. McCarthy. — Yes : to tl.:f:tnrlttVt:^^^^^^ -*!^ -ther. in any .ct, of hostility, nasonably coa,p!v with ^ thaV thev W / 'IT' "^"°"' "^^'"^ **'« ^''^"^^h may very soatheaatward/bLeen Arany For?7nd Cai ^'"'^ ^" ''^« *=""«try be.tand n.ost fertile part. bu[ Ti^ a n u^h lar^^^^^^ not only th^ to be to the northward." ^ ®* '*"'^ *"*" can be supposed Co.,II:r/erceS"ol^^^^^^^^^^^^^ the Hudson's Bay places. necessary as boundaries in case ot an exchange of Mr. McCautuy.— Yes : thin^if :nit h:po':ibTeT"irt.tnS::rf ''"^t"^, 'l '"^^^^ P-P-ltions, they with the French).Lr will thftrLe a^weAh " F"--* (should they exc'hang^ ship, cannot obtain these so reasrat,e1^:roBt';s tortlte" Prr^^^^^^ '' ^"^ ^-^■ Your Lordships see it was to the Lords Commissioners of Trade and Plantations • ~^^^:'^^u,:Z5Z^^^^^^ Albany Port as for they by such an ag^reelnt wi 1 be tl; instr^^^^^ "° means agrL thereto, retrieved." instrument of their own ruin never to be The Lord Chaxoellor.— I see it is Fnrf VnvL- «^ t? t tvt , L»,.ds Commissioner, of CltfdPkLatlt' '" " P™?""'-" ■"-de to the ot C7j^ i:i TJi^p^d t'ri r „'s:.rk:rebr • "--^ >- '-' tl»t^lc h w.. .l» .y. ihei, „„d„„bled righ, ■■ "• »»"P«ny deprived f 14 (B., 209 AHGUMKNT. OF MR. M'CAKtHy, Q.C., re QUESTION OF BOUNDAKY 1 . And they also say that they claim the whole Straits Now they speak of their right, and make a proposition for settlement to their own governniont, and not to the French, Sir i\I()XTA(iUK Smith.— Tlioy wanted their own government to get that boundary settled. Mr. McCAiniiY.— I say this never was communicated to the French.. The LoHU Chancellor.— What does that signify ? Mr. McCAnTHY.— Perliaps not; I only stated the fact. The Loud Chancelloi{. — There have been many documents which do not seem to have been communicated, which have been referred to as shewintr what the claims or pretensions of particular parties were at different times. Mr. McCahthv.— I thought I had read the part which made it very clear that they claimed all, but were willing to make concessions for the sake of peace. The Lord Chancellor.— You have read enough to shew that they do not necessarily admit by this that they are conceding something to which they made no claim. It docs not go further than that. Mr. McCarthy.— They do say, " and the company deprived of that which was always their undoubted right." They speak of their right, and make a pro- position for settlement to their own government, and not to the French. I do not know what stronger words could be used Sir Robert Collier. and Bay. The Lord Chancellor.— They seem to admit by this, that looking to the actual state of occupation and possession, that would be a limitation of boundaries in which they would acquiesce. ' Mr. McCarthy.— If that settlement had been carried out at that time, they would be willing to acquiesce. That came to nothing. It was a proposition made by them, not communicated to the French, or which, if it was communi- cated to the French, was never agreed to, and therefore it was like a proposition made without prejudice, and of course is not to be used against them in any sense. Then, if your Lordships care to follow this further, I may state I have gone carefully through it, and I think I can state the effect of it, that nothing came of all this correspondence. I merely referred to this because I thought if ought to be explained to your Loidships, and it would hardly have been candid to your Lordships if 1 had passed it over. The Treaty of Ryswick was followed rapidly by the outbreak of war between France and England, which ended in the Treaty of Utrecht. By that treaty the Treaty of Ryswick was wiped out, and the English and Hudson's Bay Company restored to all iheir rights,* The Lord Chancellor.— There is a paragraph at the bottom of page 564t * Ontario claimed that the Treaty of Utrecht could not enure to the benefit of the Hudson's B»v Company, for the reasons set out ante, p. 190, note f. tMR.MORIAL OF THE HuilSOS's BaY Co.MP.iNY TO THE LoRDS OoM.\nsslONKHS KOK TbADE ANU PlWTA- r_, ., , ,, TioNs, 19 January, 1702. [Extract.] [UieyJ shall prooee.l tn inform your Lordships of the prssedt melancholy prospect of their trade and settlement in Hudson a Bay, and that none of Hi-i Majesty's plantations are left, in auoh a deplorable state as those of this company, for by their e.-eat losses by the French, both in tinns of peace as well as durini? the late war, together with the hardships they lie under by the late Treaty of Ryswick, thay may be said to be the only mourners by the peace. They cannot but inform your Lordships thai the only settlement the-comp.iny have now left in Hudson'" Bay (ot seven they formerly possessed) is Alb.^ny Fort, vulgarly called Checheawan, in the bottom of th pany's factory, at the bottom of the Bay, so' that the company this year have not received above one fifth 210 JDAKY lement to their nt to get that French. , which do not i shewing what imes. e it very clear 3 sake of peace, lat they do not lich they made of that which d nmke a pro- French. I do ! whole Straits coking to the 1 of boundaries hat time, they a proposition was comrauni- ; a proposition n in any sense, te I have gone nothing came iught it ought candid to your »f war between bat treaty the Bay Company the Hudson's Bay ADE AND PlANTA- of their trade and a deplo;'ivble ativte i ai well as durinif thsy may be said iw left in Hudson's the bottom of tin ineiitB on the .'akei Sehon (Old Vork this yeir, rei;eiveJ few Severn, 'twixt t'aie ut ^iir Q"n\- ted above one fifth TlIK IWOSONs BiV CO'S |.Em„,» TO WEEK AME. :711. coZX'zi".. "■" »""■■ " ">'"s'. "shTT^'^nirTzz^ the 8H.d bay, where they are Hurrounded hv /L J Checheawan, in the bottom of settleiuentB on the lakes Ld nv3rJ^.rOanL to fhT m" ''^^ ''''^' "'^■' ^^^ '^eir Bay. us aI«o fr.m Port Nelson (Old 'E,;k''Frtt\:°thesor^^^^^^^^ '""^^''^ «"'^"-'« thev (Uie'^S'h-:/ a^^Jtlemortllhl aI^.v" R^^^^^^'T"l'^ ^'""'^^' ^^'^ settlement on Lake Abbitibi, which i ^.o the nofth o7r ^^ t' '"'' '^'^ ^^'^ ^^afc they say settlement if rl,ma ,Uf 'Osne north ot Lake remiscam ng. When |.»U at Uth t,,L pl.ee,, on tlTo l'lUv\'vt a^^attr A^bSL"' "'"^ ''^ no J;:^!S^^z sr^z'tt^ «. ' tl'.-'-^i™nhe. „„„,a entitle tl,e,„ to the land to the north »e"l«"ent to the north would Mr. " ' insisted words cession, the Frenclr would Im'e riX to wifh'.lrti'T'? ^^f' "'''^ '^ '^ ^'^^ been a property. If, on the other hind '?t tas "^1:^13" "^ V't^^' P"^'- property went to the conqueror. Then in view of ^ht Tr-fr f tt?'^ .'^' Public to Kroup themTrYi^ 'o^e WeV ?-^'"^" ^"°''' ^^"' ->»'- '^dn^issions are so important that it may be well „ ii.'„t i.- 1 1 arbitrarily leir interest not p ./^.i ^ n t i. • ^"fi"='»i, ucmues interest tor thf lamp * » » * ' ^•". o«. us -^ ~ , , * •■••*/ 't- t*ici.t^u your nioat rJxc leuce den,n,lin„ "„ fi:""?.._.'P.^!': "5'"'? •■i!>.d claims wore thea overwriijfhed by matters i' Alb.ny'^^^rr'.fnThe orechewa: "^rjhetX'" *'" "^"""^V '^ ^''"^ P-^« (of ^ttle,n»nts on 'the lake, .^nd nveVrfroTn Pa^nfl' surrounded by th, French on every dde 'vT;'"b^ th^d Port Xelson (alia, York Fort trtheouVh ward '''t-^i^^thward towards Hudson's B.y.aV also fr„,„ ^n Port Nelson and AlbaAV Fort wh« «h„* t P.^ J/«."=h.»)»X« I'^^wise made another seemeL* seven they formerly hady between Port Nelson and Alba^V t^rt" ^herebv tt r^":.- ^^''^^^h h*^ likewise „.»ue a. all question they will depriv^your Maiestv"^ H„hi,.7 »je «"ff«'^«d to fix and fortify American dominion, anS J^H-- ^•-' -■' -^ ■? ■""'''^ "^ "'*' "■*°' "f 'a^'d. whinh ii , That tiie said countV^ "dod; ihnn^H ^.'ui: "."L^'f^*"^! "^^ ^"'^^ Britain. ' " »'""»' •iL r^" — i;>'"'">v.ucri! nave noc with from the French), as with I'Ait of your -S^5:^sirJStSH^ESJ~ei;:-.,~^..~.>„.„,e 211 if.-4:2&^*..a*iL.i ^ &i <•# j'i.. ■- isUtmrniMmmm ARGUMENT OF MR. M'cARTHV, Q.C, re QUESTION OF BOUNDARY "That the Freuch, in a time of perfect amity between the two kingd)an, viz., ann3 1682, did arbitrarily invade the corapany'n territory at Fort Nelson, Imrn their houaes, and seize their effects. That in the years 1684 and IG85, they continued their depreda tions. That in the year 1686, they forcibly took from the company three factories, viz., Albany Fort, Rupert and Moose River Fort, which violent proceeding they continued the years 1687 and 1688, the whole damages done by the French to the company in times of peace amounting to £108,514 IQa. 8(1., as your petitioners are ready to make appeur, beiiides interentfor the same. That in the year 1685, they supplicated his then Majesty, King James the Second, to interpose on their behalf, and, by his ambanaadors ac the French Court, to demand leparatiun for the damages done to the company, and restitu- tion of the places unjustly taken from them by the French in time of peace." That is a repetition of what your liordships have heard. Then, they talk, on page 573, about the Peace of Ryswick : " But so it is, may it please Your Most Kxcellent Majesty, that the company found thrir intcjrest not coniprehenrled in the Treaty of Ryswick, which they are far from attributing to any want of c*re in that Uracious Prince [the late King William], of this kingdom's honour and trad", and rather think their rights and claims were then over- weighed V)y matters of higher conwequence depending in that juncture; for, by the said treaty, they found their condition much worse than it was before, by the 8th Article whereof the French were left in possession of fuch places situated in Hudson's Bay, as had been taken by them during the peace which had preceded that war. That at a meeting of Cosimissioners on both side) (as directed by the said treaty, to adjust these differences), the company did again set forth the undoubted right of tha down of England to the whole Bay and Straits of Hudson, against which nothing but sopliistry and cavils were ofTered on the French side, and the matter remained undetermined." Sir Montague 8mith.— The whole bay and straits ? Mr. McCauthv. — That is used, as I submit, shortly to indicate or imply their right to the whole country : " That the only settlement now remaining to the company in those parts (of seven they formerly had) is Albany Fort, on the Ohechewan, where they are surrounded by the French on every side, viz , by their settlements on the lakes and rivers from Oanada to the northward, towards Hudson's Bay, as also from Port Nelson (alia^ York Fort) to the southward." They then speak of the former treaty, and your Lordships have heard that. Then : "The premises considered, when Your Majesty in your high wisdom shill think fit to give peace to those enemies whom your victorious arms have so reduced and humbled, and when Your Majesty shall judge it for your people's good to enter into a treaty of peace with the French king, your petitioners pray that the said prince be obliged by such treaty to renounce all right and pretensions to the Bay and Straits of Hudson, to quit find surrender all posts and settlements erected by the French, or which are now in their possession, as likewise not to sail any ships or vessels within the limits of the whale-oil, whale-bone, (of which last your subjects now purchase from Holland and Germany, to the value of about £26,000 per annum, which may oe bad in your own dominions) besides many other valuable com- modities, which in time may be discovered. • * * • That if the French could pretend to any right to the paid territories by the peace of Eyswick, this right must needs be determined by their notorious infraction of the said treaty. The premises considered, when your Majesty, in your high wisdom, shall think fit to give peape to those enemies whom your victorious arms have so reduced and humbled, and when your Majesty shall judge it for your people s good to enter into a treaty of peace with the French King, your Petitioners pray that the Bald Prince be obliged by such treaty, to renounce all right and pretensinns to the Bay and Streights of Hudson, to quit and surrender all posts and settlements erected by the French, or which are now in their possessiiin, as likewise not to sail any ships or vessels within the limits of the company's charter, and to make restitution of the ti0»,bl4, las. »d., of which they robt)ed and despoiled your petitioners in timei oi perfect amity between the two Kingdoms. 212 NDARY ;d )ins, viz., ann3 urn tlioir houses, ed their depreda ■e(? faotories, viz., icy continued tiie ipAny in times o( to make appe,tr, Ills then Majesty, basaadors at thn aany, and roatitu- peaue." ley talk, on page e company found bey are far from William], of this wore then over- ; for, by the said the 8th Article tludson'a Bay, as war. That at a treaty, to adjust of the Grown of ing but sophistry idetermined." e or imply their 3 parts (of seven irrounded by the rers from Canada Ai York Fort) to ive heard that. am shill think fit :ed and humbled, into a treaty of ) obliged by such Hudson, to quit hich are now in he limits of the eniiany, to the value other valuable com- if Ryswick, this right to give peape to those lajesty shall judge it tioneid pray that the Bay and StreiRhts of hich are now in their any's charter, and to etitioners in timei of LfMITS PKCOSED HT H. B. 00, 1712. AND BV THK ENOfXSH COMMI.SSARIES. 1710 coanpany's charter, and to make restitutioa of kh« .£inR Sli lo qj . ,.. And virtually that prayer was acceded to. but it dotapp'ea 'f-lThe S^^wrcl't^e^tV wh ch" "''^ of the Charter in full, ago, that the/^neant the la'nd Cuse hey ^peak of ^CtuJllV ""'"^l' ot more valuable land being given to the I<^-enph hVX^ ' ^."'^ ^'^^ "^'^''^ propose to make than they we?e retaining ^ ^** proposition they then is the^tr^n^'o^rt^f ^^^^^ '""''^ '' " "^ P-P-'"on* in 1712. What .It is fpropt'trisTj itrts' '"°" ^'^^ '^^' -"- -y^hing that I have read. Sr'McSAHTHv'''T '?K~^'l''*' '^ Grimington's Island ? Mr. McCarthy— To the north-east, on the coast of Labrador .M.XI"" ""'""'"-'''''' "°""' '^ "«"« *« FlS'out of the Uy ..p. ■narked ..bstantially i„ LZZrwItrct^ft'S Ta'd ""' "'^'"" ""> Perd,;.^t\t]"u„r^^^jt.rth.'" "" '""■"' -"'"""".insW.I.l.a.,,., Cap. Sir RoBEKT Collier.— That is very far north, Mr. IklcOAKTav.-On the coast of Labrador. cidelah'ihrheishTolknr'*"'"'^™"" P"'*'^ -^ ">at that would coin- drawfwofr'""' """ "■""« '" '"^'"^ """ ■' =°"~Ponded : it is a line • i» not ai .11 i;; u',rsa';,?ji.t'llo" °' '""" '" ""' "'" '""" "? north-easterly. It Bay SmX^n mr"- Ab-'t'Sr *r,„"B™"Ja'y proposed by the Hudson's ™n^in« ,io^unyiiiy,ttrir ;„t* ?e',r;r^^^^ .source, of rRivrCanusr^"' """°' '" "™^ ""= ™'» "<>' '« ^o'" 'h- . .traigtli'Jf'"™'' -■"'"' '" "■■""'"^ *» "eight of land line; it is not a «>oj;ip^^e^:^Se water""' ""'^ ""' ' ''™'«'" «""• '"' ">» »" *« '- of mto two parts." Nothing is saM as tHtrfm-fLl f°«'.h westward, to Lake Mistassin, "dividing the ,lme upaUforts, sett,e.ne„tsf e^-^ -tt:ir;'tl^C?:aS-i.'r ^^^^.^^^^^l^f^/^^^ ..^tfl>e two hnes here discussed are those set down nno„ .b. n„.„.:. oL °^ ™°"- «f Utrecht, 1719." runnin, f^o. tlleLneTaft t^S c^ te^^rero^trL^tlo^r'^^coLT'^ ARdl'MENT OF MK. M'c'ARTHY, Q.C, r# QUESTION OF HOUNDAHY : Mr. McCJarthy.— If your Lordship looks at the heijjht of land, you will Hiid it is as near a straij^ht liru" aA can iw. Sir IloHKKT CnM.iKU— The heijtfht of laud would not bo straight. Mr. McCautiiv. — No, hut the lino proposed by the second document I mean. The Lord CriANcKLLOR.— That is exactly the' same line as the "Boundary proposed by the English ('oinmissaries under the Treaty of Utrecht, 171!)." Tlio general tendency of the line seems no doubt to be mucli in accordance with your view, but at that particular part of it I do not think it is, and that is not an unimportant thing. If this is relevant to the present controversy, it shews that they are not to take too little. Mr, McCahthv.— The answer to that is this, that they did not exactly know where the water line was. What I say to that, my Lord, whether rightly or wrongly, is this, that they did not pretend to survey the water line. Lord Aberdake.— They go to the Lake Miscosinke, which is pretty nearly the water line. Mr. McCarthy. — Of course, I do not mean to say that they found out exactly the line of the water line, but they adopt the general course of the water line in the subsequent correspondence, although not in this.* The Lord President.— I think in this memorandum, the Hudson's Bay Company call attention to the fact of their charter. Mr. McCarthy. — Yes, in the company's memorandum of 7th February. 1712 ; it commences at page 574 : "That the said limits begin fron» the island called Griinington'a Island, or Cipe Perdrix, in the latitude of 58J north, which th^y desire may be the boundary between the English and French, on the coast of Labrador, towards Rupert's Land, on the eaat main, and Nova Britannia on the French side, and that no Fi ench ohip, bark, boat, or vessel whatsoever, ahail pass to the northward of Cape Perdrix or GriiniDgton'g Island, towards or into the Straits or Bay of Hudson, on any pretence whatever. "That a line be supposed to pass" — •" Supposed to pass " is the way they put it. Lord Ahekdare. — From that point it goes down to Lake Miscoiinke. Sir Robert Collier. — It takes >ou down to that ? Mr. McCarthy. — Yes my Lord. Lord Aberdare. — And then it goes on further. Mr. McCarthy.— Yes : " dividing the same into two parts (as in the map now delivered)." The Lord Chancellor. — I suppose you have not got that map ? Mr. McCarthy.— No, my Lord. Afterwards, this becomes important. I think it is proper to refer to it, but afterwards the line is laid down on the i9t\i parallel. That is where we got the 49th parallel afterwards. Sir Robert Coixier.— Then, they say that the French boats shall not corao " to the north or north-westward of the said lake, or supposed line ; " that is to say, that the French ai-c not to go northward of tliis Lake Miscosinke. Mr. McCarthy.— That comes afterwards, after the treaty of Utrecht. Sir Robert Collier.— What they say. is, that the Fn^nch boats shall not come to the northward or north-westward of the said Lake Miscosinke. Mr. McCarthy.— That is th> proposition. That is the memorandum pre- pared by the company, and suggested to the Lords Commissioners of Trade and Plantations, Lord Aberdare. — The.se are intermediate negotiations ? *Neither of the two lints discus-ed is confined ty the waterslied of Hudson's Bay and Straits. They pass bsyond, through the lieight of land, and, by another water system, to tlie Atlantic coast of Labrador. 214 CONSTRUCTION OF THE TIIKATY OF irTllECHT, 1713. , you will tiiid Then they go on : claim. YourLord,hip,"ifimlthlt„L,,f "'"?'''' *" """ '>^" '« ""ii'- .ion,, and iZ.yT'^^tuZZZ^vZtZ'^rl^'?"' "'i"""" "•«"«''- o».ui„,.,L.pi/r„L^i'^H/JrT.::ir:„'i-^';/jrDL7ii?-arpi aiuSwrX„°„?h^E".ia?:,',ri;":it^.^''''' P^—JoP^ed aethat time .iJe-a, to 11m wXrXdTneln'.Tf'.Vr T" ""'^f^TJ. "»» "u the French resa,d'm!!^°esp™a;K;''to,L"'A''" "'"' '■''''"•■•"'°'' ">•><>" ""'" '""to", with «.|uired to be Sir "'°™" """"'"'"'• ""■» »«"!") : b««"»^ they ...ioSfla';"'"' '"'^'•^"'"'-That is a matter of history ratl,er than inter! * Report dated 19th February, 17|g| 215 ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY: i Mr. McCarthy, — These pretensions were advanced at one time by the Spaniards, in the cession of their territories ; they were advanced at another time in disputes between France and England, and between England and the United States ; and I would submit that there is now a rule of international law deri\ able from what was done on those occasions, and in that sense it is that I say that questions of international law are involved. The Lord Chancellor. — If you mean that every treaty and convention may be said to enter into international law, of course I follow what you mean. Lord Aberdare. — Will you go on to what was the result of all this ? Mr. McCarthy.— The result of all this was the Treaty of Utrecht, in which no lines were fixed; but your Lordships will remember my argument on the subject. Now then, coming to that point again, if your Lordships will pardon me for recurring to it, I .say, looking at what your Lordships now know more accurately than you could from my statement — what is the fair meaning of that treaty ? Two things are provad, as I say, first, a rule of division, a rule by which the commissioners were to divide the provinces, for I will so continue to call them, of Hudson's Bay* and French Canada. The rule provided for their division was, that the commissioners were not to meet and settle that great question, which no. doubt caused a good deal of trouble, but that that was already determined under the 10th article of the treaty. And how was it determined ? Now it requires a great deal of hardihood, after the way my argument was received by your Lord- ships the other day, to repeat it, but I ask your Lordships again, what is the fair meaning of the words, when you speak of land and territory looking to water ? Lord Aberdare. — "Looking tto" is your translation of the original words of the treaty, " spectantibus ad eadem f " Mr. McCarthy— That is what I say. Sir Robert Collier. —Then, in the French copy, the word is " dependent," or " appurtenant," The Lord Chancellor.— Everybody knows t^ t the Latin word is capable of that sense. Mr. McCarthy, — Is not that the fair meaning ,i that word, when you speak with regard to land looking towards the water ? What does it mean if you speak of the land looking to the Thames ? VVould not any one say that that was the part of the property that sloped towards the Thames ^ Loi-d Aberdare — What i.s the primary meaning of the word "apedantibun <" I suppose the ordinary meaning of " spectantibus " is " relating to ?" The Lord President. — The French version is the original one. Mr. McCarthy.— iSfo, my Lord. The Lord President.— Well, it is .stated that there were two originals. Mr. McCarthy. — But the English government directed their commissioners to be guided by the Latin, and not by the French version. The Lord Chancellor.— Where is the treaty to be found ? Mr. McCarthy.— At page 504 is the treaty. -f Sir Montague Smith, — The note+ says there were two originals. Mr. McCarthy. — Your Lord.ship is (juite right. Now what say the instruc- tions to the commissioners, at page 50!^ if your Lordships will turn to that for a moment. The Lord Chancellor. — Before we pass from that, let me say-* *It would, to say the least of it, be difficult to discover any grnundsupon which the uncertain territories of the Hudi>on'8 Bay Company could be held entitled to be rfignified with the title of Frovinoe. Even as receutly as in our own day, they were trarHferre Mr. McCARTHY.-Under the Treaty of Utrecht, in 1719. Your Lordships wil remember, that now there was a long peace, from 1713 up to 1746, and in 1719 com.iiissaries were appointed, under this treaty, to mark out this line pro- vided by the treaty. But, before I pa.ss from the treaty, I want iuat to draw your Lordships attention to this. I stated this as a fact," but I thought perhaps your Lordships might have thought it was my argument, and not the statement or the treaty itself. It says : " But it is agreed, on both sides, to determine within a year, Uy couiuiissaries to be tortbwUh namad by each party, the limits which are to be tixrd between the Raid Bay ot Hudson and the places appertaininjar to the French, which limits both the British and French bubjects shall be wholly fcibid to pass over, or thereby to go to each other by sea or by iand Ihe same commihsai ies shall also have orders to describe and settle, in like manner, the boundaries between the other British and French colonies in those parts." That appears to me to strengthen the argument that it was not intended to leave the commissioners to do more than just mark down some line, the principle on 218 BOUNDARY; nging to a river ; but V^ONSTRUCTro. OF THE TREATV OF UTRECHT. AKB OK THE H^B. CO's ,HARTER. t!:%^' Ft" tt'et In atl f -'^^, ^^^^--e^- And the object is" .^'hich the French were K to IriKf' wall-a sort of Chinese wall--over The Lord Chancellor.— They are ■ ..^ on the one side, and equX To Is K^-" ^^ ''"'"^ ^ ^^^ watershed other; that that principle which had t ^^ '' ^"^ ^^^ governments. was'pract^caIl7adopt:d by th Katy o^^rel't 'T.^^' ^}' '^^ be an impossible thin' ''""'■=y "'"'»lely setllocUhe liSe of t^r^^^^^^ *Se3a(ita*. ~ " ' . 219 "W ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY : The Lord President.— Do I understand that your contention, that the water line or height of land was the original boundary of the Hudson's Bay Company's territories, is entirely derived from the words of the charter, namely, "all the lands and territories upon the countries," etc. ? Mr. McCarthy. — Yes, my Lord. i The Lord President. — It all depends upon them ? ' Mr. McCarthy. — Yes. i , The LoKD President. — Absolutely, does it ? Mr. McCarthy.— I think so ; what I think is this, that all that the English owned, their Hudson's Bay Company Were entitled to, as I stated on Thursday, in my first observation. 1 he English being the first discoverers, were entitled to -Settle.* The Lord President. — But the whole contention that there was a water line boundary — a boundary depending upon the height of the land — rests upon the words of the charter, " the lands upon," etc. ? Mr. McCarthy. — Practically it does ;■}• but this ought to be added to qualify that — Sir Robert Collier. — At what page is the charter ? Mr. McCarthy. — Page 341, it commences.^ Now, then, what took place was this. Commissioners were appointed on both sides to fix this line. On the side of England, a line was put forward starting from Grimington's Island, or from Davis' Inlet, I am not sure which§ — perhaps Davis' Inlet, which mor& corresponds to the height of this lp,nd — down to the Lake Miscosinke, and from there down to the 49th parallel, and then westward along the 49th parallel. The Lord Chancellor. — That will not have any reference whatever to the watershed ? Mr. McCarthy. — Pardon me ; of course it is not the watershed, which is an irregular line, and, for the reason I have already advanced, would not be a line at all suitable to the state and condition of the country, but looking at that line on the map— Johnston's map — it would go and take all the watershed. || Lord Aberdare. — How far westward did that go i Mr. McCarthy. — I will point out afterwards that they went, as they claimed in those days, to the very sea. That was the claim advanced. The first terri- torial claim that the Hudson's Bay Company maile, before they knew where the height of land ended, was to the Pacific Ocean. The Lord Chancellor.— I only want to see the bearing of it. I should think it is as clear as the daylight, that it had nothing whatever to do with the watershed line. It takes in, as the Hudson's Bay Company's, all the western side of the Rocky Mountains. Mr. McCarthy. —The Rocky Mountains had not been discovered then. The Lord Chancellor.— That is very true, and therefore I say, that any such line, in the nature of things, could have nothing to do with the water-shed line. •Ontario shewed that there was no such discovery as entitled the English to an exclusive rifiht of •ettlement ; that on their part there was abandonment ; that the French were, as a matter of fact, the first discoverers of the country, and from the side of the St. Lawrence ; were the first to assert a title ; ami had prior and continuous possession. See atitc, pj). 189, note J, 200, note * ; also appendix B, hereto. + As to the height of land theory, see ante, p. 191, note i, and pp 2U5, .^17, text. t Printed ante, p., 51. §Th0 English commissaries were re(iuired by their in.struction8 to demand the line from Griming- ton's Island, in lat. 58^° north ; but the demand they actually made, in the document transmitted to the French commisBaries. was of the line from Davis' Inlet, in lat. 56*". (Joint App. 508, 511). !' Not at all : the 49th parallel, though at some points far to the south, is at others far to the north of the height of land. 220 UNDARY : THE LINE OF THE 49TH PARALLEL OF LATITUDE. added to qualify- far to the north of Mr. McCarthv.— What I water line was as the maoT'shew'^h J'^.-?'''^'"PP°''"^ *^^^ ^"^^ ^'^^^^ the Lord ABERDARE.-Was this 49th line ever accepted ? Mr. McCAHTHV.-There i,s a good deal to be said about that * l^l£Z!:^:^-:^i^ ''- '--'^ -^ UtreehttrLed . M^McSAimrf 't''^~y^'"" "'^ '^' P'^P'^^^l^ «f <^he company 1 aud the places appertaininc' to the Fr^noJ, anJ oi„ ^u . "•'^J^®° '"^ said Bay of Hudsou the comiLy for'a'udepred^tlVsconrttedSn t'^^^^^^^^^ ^^^ *<> according to aa estimate thereof to hTU^ Tlu ^- • . ^'^''°°*' *° * *""« ^^ P^ace, Now, mV it plea e your Lordships The I't nf 'th '"^"'"! T °*" ^'" '"''^^^ P*^'^««' ..Ytsand^a/afo.esJlidJ.stfn^lde'^L^orl^l^tt:^^^^^ rLrTthaflT ZeT.ertir:-/r"'^"-^ ^^ff^^^^Z^^ aud French territories, and th IS p;rat onrto' t? ' ''"' between the Eaglish dauuges. yet remain to be done wKpT t^ G3v^^^^^^^^^ '^''' ^"T' '""^ present to your Lordwhins that th«v rZ !"' •! ^'^®f"0^ a^'* Oompiuy mast humbly L.ee„ .hlt»« „.1X '.»', 5Ti ho° 'd:,:'y t° ffi^r/S h"" '"■' '''°if conclusion of peac^ viz in 1715 nrnHp a 1mi ^' . . !l V , ^'^6"°° ha^e. since the which very riv'er our prindpi/litrrjt IZteP-'"' '""^ '^"' ''' ^'^^^^^ ^'-••' "P°- Lord Aberdare.— You mean tho mouth ? Mr McCarthy.— No; the souue or head of the river- "At fb^ l.. i f A any River, upon Which very river our principal facto ;Ts settled " That t *ort bt. Ciermam. your Lords HD will tpp Tt Jc n/f .t ti, J ""^'''''^'^- inat is of by them a« being at tl,e 3 ""' "' "■" "">"*■ " «"« Vot™ in 1715." ^ '^'^^^ "^"^ conclusion of peace, viz., The evidence eatablished that the line of thn Mth .,.>.ii i """ ~ ' note :, p. 219, note + ; post, p. 222, note f. •""*"*' °*''"' ""»« accepted. See antt, p. 142, +3fean 'on? before 1715. poat on that lake was established in 1673 See appendix fiTeretl, ' ^^^■' ^^ ^°^^- ^^' °"»'°»' »''«»ok 221 it.3....f;.^lL. ..^ Llns. We liave al predecessors I Appendices, and litary line on the y of 1783 (ante p. national line was ., Lawrence River it the line was to only after it had " aeleoted as the ppendix 5S0). It H American nego- iit. (Greentiow't _ INSTRUCTIONS TO THE ENuuSHCOMMfSSAItlES. 1719. • psr:^L:':i:t ctf !CLr:rsr°^^-^°^^™^ fron, sea to sea, hut as the French would 'no Z^haSH T "^''^ ^^'^"«'^«- «^^«^^^'i"« only, and smce we have not hitherTo Cn able to ?. ^'''"^'^^<^ ^Y these authorities as .nay be depended on, or to obtain such Juthlr^rf? .•'"'^ '*"« ^"*'^ plantationg 3upfK,rt the right and title of His MaiestV or anVf .'"*''?"' "' ""'^''^ ^« ''^q'^i'-ed t.. the French possess, or preten.l to, eSrioJ'the bact f^ll' p^''.*' ''""«' '° l'"^^'^^ ^hich ward from New England down to the (^.If .r^J ^^^ ^"^'''' P'«"tation8, or west- out of Mr. Bladen's full powers that Part o thl .^'^''K''''.^f ''''^"^^^ '^ P'-^P-r to leave «.^t lament of the boundaries between the co'o.ies o? tV?'"' ^^^'^ ''^''■'' '° ^ g«-™l restrain his commission to the boundaries of Hudln' r' *^° i^'*^'""^ in America, and to ,;e_ha.,proofs and authorities ^. ^^^^ ^^'Z :^ ^'^^^^Ir:^^; a. page To ^! ^29: '' ''' ^'^^ ^'^ ^^« ^^^-etions were. The inscructions are a^. ^SS'^SlitL 'l^utilr^^^S^;^ t J--^ "^ ^-^^N ^'>- the limit. settled by commissarios on each part. whicUimitt £h ..'T'"'?'"'"^ to the French be shall be wholly forbid to pass over orflebvL *^« ^^7^'«'> «"d French subjects you are to endeavor to ge the sai nL,t«3. ? •^° t° '*"'' °^^«' ^^ ««» or by land say: That the same begin from the island 'n^p'" '^' ''^""^'"S ^^^^^r, tha^ a to in the latitude of 58* north which th "^ Grimington's Island, or Cape Perdrix the British and FrenJh iii^^crs t t^t 00:77^^". "'^ '^ *^« bounda'r^Sen he East Main, and Novi Britannia on tLF-.'*'^"!;' '°^*'''^« Rupert's Land, on barque, boat or vessel whatsoever? shaVpasst the^orth"^''.""^'''^* "° ^''^^^ «hip. Gnmmgton's Island, towards or into the StmUs or trTu^"^ ^"^ P^-"^"^. °^ whatsoever And further, that a line be drawr^ from H, ^ °^,,«"J«on, on any pretence of Grunmgton, or C.pe Perdrix ^so a^fn inT^ T ^ «outh-westward of the island ay), to the great lake Miscosfike alTas V is l^^^^^ '^V^^ ^^^^^i" '^^ Hmits o tSe as in the map to be delivered to y^u) and h^r T Tk'''"' '^^ '""'^ '*k« into part^ egreeo northern latitude. anotS line shaull'^niV"'* line shall cut the 49.h he s..d lake, upon the 49th decree of northern iSh ' 'f™>"^' '''''^^''^ ^^om described as above mentioned, Ihe French and all ;' ^'r "u'°'' ^*^^ '^'^^ «« to be Mr. McCarthy ^ "" "''^' Poragraph ? •ill >l» ISsZ^orHlXtoSi '" T""^ ""'' •"'«'«• « «I>«II b, .2r,,J „„,a •■■hm the .aid bou„J,rii, and that"" preV£„ ,?,T I"""'" ^'""""^ "" «»»>pri,ed »y .ract. .r,.,d i„ A,e.o., .ou.CKTorhtt'STTd 'bo^drS "^ '" "'"™ ,,^^^,r.oMA..a„.„._xhose„,.e..efe™ee, to .hat „, e„„ t„e Unitea States J-lc^ot the Hudson. Ba, Oo,.,l'y. J/i^tt E^ ' tkt^t^sTBttt:^^': •rfins'roSftenrever^^^^^ ,'J'tt ii'h ThS'i^ '"'""''"'' '° «'""'' "^'inrt 228 AROUMENT OF MR. M'cAUTHY,-Q.C., 7'3 QUESTION OF BOUNDARY ; Mr. McCarthy. — That is what I thouglit. The next i.s very important : " And whereas it Hath been repreKented by the &aid company that th** Fr«nch liave, since the Peace of Utrecht, viz., in 1715, luado a settlement at the heal of the Albany River, upon %<-hich rivtr the coinpany's prinoipil Victory is settled, whereljy thH French may intercept the Indian trad« from coming to the Haid factory, and may in time utterly ruin the trade of the company if not prevented, you are to insist that the said fort be given uj), or demolished, by the Pre nch, and their siilijects be withdrawn from that set I lenient." The Loun Chancellor.— You might possibly treat the Albany River as com- mencing at the foot of Lake St. Jo.seph. Mr. McCahthy.— That is the way it is spoken of now. That in what is called Albany River now — fi'oin Lake St. Joseph down. I do not know what it was in those days. Sir Robert Collier.— That is called Albany River, from Lake St. Joseph. The LoKD C'hancellor.— The Fort La Mauno was built before 1684, and therefore cannot lie the one which is here referred to. Mr. McCarthy. — I think that it may be taken for granted, that the fort spoken of is that one midway up the river. The Lord Chancellor. — You may think so ; but it is not the natural con- clusion to be drawn from this. Mr. McCarthy. — I think perhaps we can satisfy your Lordships upon that. Then, if your Lordships will come to page 511, we have the boundaries claimed by the English Commissaries, 171*4* ^, ' The Lord Chancellor. — That is the 49th parallel ? * Mr. McCarthy. — Yes; that is all I have been able to shew your Lordship. They never claimed anj'thing but the 49th. There is not a word in this corres- pondence about that. I have only said, looking at the map, and looking at the knowledge the French had, and I suppose the knowledge the English had, at that time, if a straight line were taken that would be a fair line. The Lord Chancellor. — You do not imagine that both the French and the English supposed that every river from the Pacific side flowed into Hudson's Bay. They may not have known the geography of the Rocky Mountains, oi- the country at the west side of them, but it would be a very extraordinary tiling to suppose they imagined there was no river between the two seas which did not flow into Hudson's Bay. Lord Aberdare. — I suppose they dealt practically with this 4f)th line as dealing with the countries they knew of. Mr. McCarthy. — That is what I was going to .say. If you look at page 511, there is something to support the English point of view about this contention regarding the rivers. That is, the latter part of the boundaries claimed by the English Commissaries : " The said Commissaries further demand that the subjects of His Most Christian Mrtjesty shall not build forts, or found settlements, upon any of the rivers which empty into Hudson's Bay, under any pretext whatsoever, and that the .stream and the entire navigation of all the said rivers, shall be left fr-'e to che company of English merchants trading into Hudson's Bay, and to smh Indians as shill wish to tritlic with them.'f The instructions to Mr. Bladen are that he is authorized to agree to that line, and your Lordship will see that had already been provided by the Treaty of Utrecht. That treaty provided that was to be the boundary line between the two sides, * Printed ante, p. 159, note *. fin making this demand the English Commissaries exceeded their instructiuns. sub-note '. 224 See ante, p. 159| y River ascoin- d not flow into lis 4f)th line as See ante, p. 169, T^^^^S^..SIOXS TO THK HK,OHT OP LAND AS A BOUKDA«V. Trntt^S hT^etrthe 'date ^^ r^d^ ^^^^^^^^^^^^^ tlmt up to this stage that was the clai n Jat^fT*' m t ^f' ^" ^ «^" «ay is ar as the evidence shews, was not acceded to ?hn^ ."-f f""^^''^- '^^''^ ^'^i'" «« date part cularly. that it Us not * ThaVe no t- » > '^"' ""'^ '^^' "^ ''^ *'^'« J|;.ps^that .t was. There is one -^^^^:^r:S;^'^:t^ S'^ ^\^^, Mn MccLSv.!!?.r L^S^^^ ^^^--1 statements, ment, shewing the diftereace between the Zl "''"^. ""' T'' ^here is one state- were ch^i.ning it should be 5l':iXd 0V49" ^'^ '""" ^'^''''' ^"^ '^' French Justice Draper's memorandum ^" ^^""^ statement. It is mentioned in Chief at this time on two degreerf^rL th Vha'. ^'"'"'^ commissioners insisted The Lord Chancellok -Let u" see "' '"^ ^««°"««tion of it. Mr. McCARTHY.-It is page 213. Ihe Lord Chancellob.— This is in 1857 " is put Lj's^Sy-^st tt::Lpt;Tf^er^^ "^'^^ '^"'^''^^ ^-p- ^^ M"MoSAR?H.'''TrA~^'"'^' isVe pTsage ? hand upon i^^tX mom'el t "^'' "^' ''''''' you? Lordship, as I cannot put my Lord ABERDAHE.-He says, at the bottom of page 215 • and to define the bounda'ry which theTc ^LL rnVtha^"*' °''*'"^ ""^«'- '^' '^^-rteJ, that period had they advanced the claim thl^ ■ , ^° ""^ '"^« occasion du-ins al gave them the owne^r.hip of tL landJJh'^ateJIrrwM hT' °'^'"«'^' ^'^^^ '»»« ^S^rcer or Strait., and therefore extending so far althp h!^ \^^ ^T' '"^^ '^« Hudson's Bay and west of that stream to the sornVsJu^t k ? '^*'^™ °^ *^« ^^^ River, and SS ' M^.M^xS'-^r'""^'^"'""^ *»^ claimed a g.a„t to Earl Selki.t _ t The DaHMnirB is of « 1 07 -i ii, » . . . ^P 15 (B) "W" AnnUMENT OF MR. m'CARTHY, Q.C, re QUESTION OF BOUNDARY ; I r and during the war, the next thing that we have with regard to the company is a claim by rival adventurer.-*, .sstting fortli [iretty much the same that has been set forth by my learned friends on the other side, namely, that the Hudson's Bay Company had not fulfilled their mission, and they prayed that a new charter be granted to them, tiiey undertaking to do what the Hud-ion's Bay Company, it was alleged, had undertaken by their charter to do, and in consideration of that, all the property not actually possessed l)y the Hudson's Bay Company should be granted. I refer your Lordship to that petition for the purpose of shewiug what followed upon it. Sir Montague Smith. — You are going back in date. \. Lord Abehdark. — I thought we had got to 541. ' Mr. McCahtuv. — The documents are all scattered, unfortunately. It has been impossible to keep them in any kind of sequence.* The Lord Chancellor.— Who did Chief Justice Draper represent ? Mr. McCarthy. — He represented the old Province of Canada, before Con- federation. Old Canada was Upper and Lower Canada, now Quebec and Ontario, two of the provinces of the Dominion. What I propose to refer to is the claim made at this date, on page 580 and 581. The Hudson's Bay Company were com- plained of in the sense I have put. It commences at the foot of page 581 : " Cap- tain Middleton to A. Dobbs, Esq.""!- It is more clearly shewn in the document contained at page 598. The result of it appears to have been this, that it was referred to the Attorney- General and the Solicitor- General for their joint opinion. They not only took the complaint into consideration, but they heard counsel, and I think they had deposition eviderice before them upon the question, and it seems to be a quasi-judicial determination of the very matters which, at this late day, are raised again by my learned friends. This is the report of the learned Attorney and Solicitor-General :+ " To the Right Honourable the Lords of Committee of His Majedif's Most Honourable Privy Council. " May it Please Your Lordships : " In humble obedience to your Lordship's Order in Council of the 4th of February last, representing that by an Order in Council bearing date the 26th of January last, there was referred to your Lordships the humble petition of Arthur Dobbs, Esq., and the rest of the commi'.tee appointed by the subscribers for finding out a passage to the Western and Southern Ocean of America, for themselves and the other adventurers, and tl at your Lordships, having taken the said petition into consideration, were pleased to refer the same to us to consider thereof, and to report our opinion thereupon to your Lordships. Which petition set forth, That the petitioners, in the year 1746, did, at their own costs and charges, fit out two ships upon an expedition in search of the north-west passage to the Western and Southein Ocean of America, in order to extend the trade and increase the wealth and power of great Britain, by finding out new countries and nations to trade with us, as well in the great northwestern continent of America, beyond Hudson's Bay, as in countries still further distant and hitherto unknown to the Europeans, and also to many large and populous islands in that great Western Ocean ; That the petitioners, by means of the said expedition, have made several discoveries of bays, inlets and coasts, * Pursuant to a well-considered plan, the documents were classified i» and Bailing through new seas. anJ^ot procS m?n 1 " '", r""""""" "'^''' ''"'' «'™'*«' to pursue it effectually • That thl ni iK« '^ « 1 u """f '"^'o». capacity and integrity Paflia^eut. i« not adequate toMe oCZZ aSventu' *'" "''r °' ^'^'*'«« ^iven hj covery. th«y having alLdy expendo^above tLt r • 'lu "T' ^^ "^ '° P^'''^^'^ "'" ^i/- petitioners find that upon I former a tte.nnt W. 7"^ '? .^'""J"*' expedition ; That the Second, as a suitable encourag Znt Sd a rS^^^^^^ predecessor, King Charles the pany of Adventurers of Englfnnradir^o Hudson? R^v' '1*° '^t ^''''"''''' *"*^ ^o.n. for ever, upon .heir petitio'n setting Sth tl^at thej ha5' ItZiTj^ " '°'^ °"P°^**'! charges, nmdo an expedition to discover a new passage into ?h« 5n ,f ^^ ^''^f ', °°"'' ^"^ some trade of furs, mines an 1 oth^r n^r^J Jr.- ^ V the South Sea, and for findintr the lands they ah;S disco ertLtherw/tHn^etr" ^7 .''^^ ^°'« P'°P«^^^ «^ ^^ within Hudson's Straits, not n posses ion Sf L^.fr 7 *'''^t '° "'^ the countries power, with the royalties of mines'^minZs ^e„.«lT ^' ?f k"' ^^^ "t'^^'" Christian out the passage, extend the trade and to nLTT '''^ • ' ^'u ' *° '^"^^''^ *'>^'° '« fi°J ing two elks^nd two black bt^^rfwVeLtr Ifd^roheTir Hfs t^'V^^'T^-' P*^' cessora should enter their territories irrantin.rT th.° ,u Majesty and his suc- prcprietor.. saving only their fS and aU ' if nfe iotl^cJ'"Tn ^''^'L'^'' ^« ^°'^ petitioners beg leave to observe that the S^^^ the Crown of flreat Britain ; The earnest, searched for the sS pas a«e but hav«Tr''^ 'T' "°' "''''' eff-ectually.'or in and to obstruct the discove y fheS bv other, n„r h? fr°""V° °''"'"'^ '^'""^'r either upon the coast, or in theTnland connt'r^ • '"'^ "^^^^ ^^^ ""^ discovery, grant of their charter nor have they taken „„l«/^''°'".'"« ^ ^"''^^"'^ ^ ay since the grnnted to them, or extended their trade into thT? , T ''fT'^ "°^ "^ '^' '^-^^s nor made any plantations t sett e^ts e^Lp " Z^^ house, in all which . hey have maintained ir^ t'me S X aboule h T T'\ '''^'''^ persons, servants of the company nor have thel .11 a °"^'>"°t'red and twenty subjects to plant, settle or trade in anv of^L ^ ^ i- ^"^ °^^'^'' °^ ^is Majesty's them by their charter, yet Jave onXel ^aTT""" irT^ *" '^' ^^^ granted to and trade within their limits on the south aide of th«T°" the French to^ncroach. settle^ of Great Britain." '^^ °* ^^^ ''*^> ^o the great detriment and loss S'Mcg'K^Hr'Th'^"-'?^,"^"' '' ^'^ incorporated, page 599. andTisIhl^y'^^ "'"' '^ '^ incorporated. Their prayer is set out at Con.panyhadnot?oX?dthtTh:r.tL^'Sr^ "^^^ ^'^^ «"^-"'« ^^Y decisions. «»onenevei undei stood that his decisions were judicial Tb"; f nfr^n "''-"^ '^^ ^ quasi-judicial decision. d.ct.on to determine this matter. It is a referenorbvThe Ciovvn "rf "'^ ^^'■'- t ^?P' -J ^^^ --^them in that advice thev hea^rthat M?" 4 "c^h'"^" •v. "i^u tnu parties employ counsel. " ~ r"'"-'G>= i^avc lw 227 km AROl'MENT OK MR. M'CARTHY, Q.C, re QUE8TI0X OF HOUNOARV : Mr. McCarthy. — I submit it i» different from the opinion of coinisel obtained by the company. The Lord Chancellor. — Yes, it is tlio opinion of two law oflScers of the Crown, men of great reputation, and I dare say quite aa valuable as a very larjre proportion of the documents in this book. Sir RoHEUT CoM.lEU. — It seems to me to have very little bearing upon the question. If you read the last paragraph you will see exactly what they did. Mr. McCarthy. — We must see what the claim wa'^: " The petitionerB inBisted on two general things, that the coaipany'd charter was either void of its original creation, or became forfeiteJ by the company's conduct under it." "The first part is not in question. Sir MoNTAGUK Smith.— What do you say it shews ? Mr. McCarthy. — I .say it shews, as to the question of the occupation by the company, propounded by my learned friend Mr. Mowat to your Lordships, the non-occupation by the company of all the territory did not work a forfeiture of any part of the land granted. Sir Robert Collier. — Nobody contends it did. Mr. McCarthy. — Oh, yes. • Sir Robert Collier. — You may as well read it : " But as the grant propdsed is not necesBary in order to prosecute any future attempt of the like kind, and the cbar.er of the Hudson's Bay Company does not prohibit the petitioners from the use of any of the iports, rivers, or seas included in their charter," they are inclined to think the charter of the Hud.son's Bay Company did not give them an exclusive right of trade. Lord Abeudare. — The whole question is about a grant of £20,000 to find the north-west passage to the Pacific. I think what was meant was, that the granting of the charter did not prohibit these men from passing to their dis- coveries that way. Mr. McCarthy. — I suppose that is one thing they mean Here is a distinct indictment against the company. It was followed then by an argument on behalf of the petitioners, which the company opp3sed by their counsel, and finally the law officers* say, with respect to both these, what ? What is the first ? The first is, that the company's charter was void. Sir Montague Smith. — They give no opinion. They say it is not expedient to advise the Crown to declai-e the charter void : " With respect to both these, considering how long the company have enjoyed and acted under this charter, without interruption or encroachment, we cannot think it advisable for His Majesty to make any express or implied declaration against the validity of it, till there has been some judgment of a court of justice to warrant it ; and the rather because if the charter is void in either respect, there is nothing to hinder the petitioners from exercising the same trade," and so on. Sir Robert Collier. — Yes, that is, they had not the exclusive right of using those rivers. This really has no bearing upon the question. Sir Montague Smith. — No ; I do not think it is of any use at all. Mr. McCarthy. — This, I think, is very important. I will state what it is ; your Lordships will see whether it is important or not. From a certain period during the war, the Hudson's Bay Company were giving directions to their to defend themselves. Then m ITt-S, is the Treaty of Ais !a 2l8 servants ' nOw LIMITS CLAIMED BY HUDSON'S HAY CO. IN 1750. nisei olttaiiieii w.r,i„'f.;"rurr'-''™-" """"' ""•'"'' ->■"' "*^ ^«- "ken i„ ., tl,!y wt';?S::~^''° °""' "' '' "'» '" "*" "» '«"^- I' lef thing. The L„„„ Chance>.,.or. -There i, nothing „h.tever .bout restoring : that is all. the T*.tfo?uS7Ld\°hat 'Uef^'.h' "".' b '"?■">'"? "" "»- *«'— Mr McCarthy T\Z ; ^^''^\^^^ question one way or the other. Wee7ttte,'t ata'thf Sirt^int tuf "t£e ttl tS?'"'"^' "' well klwnlVTtll' "'''^ 'r^Tr"'^ "'"'^'^ ""^^^"^'^ ^'r'^'ta and Bay, are now sa a» J the restita- ' which are to countries, and "r;iacert'haTThe7re8;ecti?elv Tnle^^eZ XZ"""' ''"^°/ ^'■"'^"^^ t°«^^'' 'o »" tKte"^: ".pulated of the states yieldedVZCi^enflnfant^Uon'p^^^^^^ "''"'*^' ^"^'"''^ *''« '"^'"i"" ^« J„r?':'^-'^f'?» *h« Hudson's Bay Company's Memorial Hlitirr';:; »'ir£«li?.- °/ .V?.^*.""; ""Ptt^i^Iy irom the App, editicnof the .ioi^- ^o;;^;5o 8=^1^^^^^^ 229 )f 3r.j Oetiber I'.in * ''ii! C-opy of this i^^^^•lt^^.*«*°^^^-''^'°'^--1^e^ ABGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY : If': your memorialists conceive, in the said S""*"*) ^^^ *^ follows, that is to say : all the land lying on the east side or coast of the said bay, and extending frum the bay eastward to the Atlantic Ocean and Davis' Straits, and the line hereinafter men- tioned as the east and southeastward boundaries of the said company's territories; and towards the north, all the lands that lie at the north end, or on the north side or coant of the said bay, and extending from the bay northward to the utmost limits of the land there, towards the north pole, but where or how those lands ter- minate is hitherto unknown ; and towards the west, all the lands that lie on the west side or coast of the said bay, and extending from the bay westward to the utmost limits of those lands, but where or how those lands terminate to the west- ward is alKO unknown, though, probably, it will be found they terminate on the great South Sea.'' The Loud Chancellor. — Then it is quite clear the watershed \s not regarded there. Mr. McCarthy. — No, they do not speak of the watershed at that date. The Lord Chancellor. — No ; they not only do not speak of it, but they make a claim which is absolutely inconsistent with it,"* because they claim the •waters which flow into the two oceans, and the waters which flow into the Arctic Ocean. They must have known by experience that there were waters which •went into the sea, and not into Hudson's Bay. Mr. McCarthy. — They must have gone far away to the west of that. The Lord Chancellor. — They have gone to the north, U e east, and the •west of that watershed. Mr. McCarthy. — There was no law of nature which absolutely precluded the waters from Howing into Hudson's Bay. The Lord Chancellor. — We cannot exclude all that which was known to geographers by experience. Mr. McCarthy. — However, I will read this. In the first place, it includes more than the Hudson's Bay included. Your Lordship remembers the language of the Rupert's Land Act, it is all they ever " claimed." The Lord Chancellor. — It is the whole of North America, north of the French possessions. That is the long and short of it. Sir Montague Smith. — And to " the great South Sea." Mr. McCarthy. — No doubt it is wide enough and large enough to cover all. The Lord Chancellor.— I see the southern boundary referred to is, exactly, the 49th degree. Mr. McCarthy. — Yes. Then, I will go to the correspondence which follows on that, between the governments.-f* which your Lordships will find * The deHciiption of the goutli "' bDundary, omittod supra, is also 'noon-istent with it, viz. ; " And towards the south, all the lands th le at the south end or south sida or coast of the said bay, the extent of which lands towards the south to b; limited :;nd divided from the places appartaining to the French in those parts, by a line to be drawn for that purpose, to be(?in from the Atlantic Ocean on the east side, at an island called GriminRton's Island, otiiorwise Cape Perdrix, in the latitude of 58^°, on the Labrador coast, and to be drawn from thence south-westward to tho great hike Miscosinke, otherwise called Alis- toseny, and through the name, dividing that lak^ into two parts, down to the 49th degree of north latitude, as doscribed in the said ma]) or plan delivered herewith, and from thense to be continued by a meridian line of the said latitude of 49" westwards." t On the 14th of May, 1755, a mcmoire wasdelivere 1 by the French Ambassador in London (the Duke do Mi.epoix) to the British Minister for Foreign Affairs, which, with regard to the limits of Canada, r*n as folic iwb: — ■' The Oimrt of France have deci»ively rejected, and will always reject, the propositin • which has been made by England, that the southern bank of the River St. Lawrence, and Lakes Ontario and Erie, shall serve as boundaries between the two n.-itions. " It is necessary to establishj^as n base of negotiation relative to this Article, that the River St. LaWj renoo Is the oeiitie jf OaimiJn. TliiH truth innftJ.'; '^a^'-enee, which Great Britain has hat are proposed to be drawn for it, ought to be reffJrdlH r r h ^ 'T° "*"""«• '" '^'^'"^ fo' the bordew ready to enter .nto a discussion in regard to this and to'«^,Vh f.^'V""'^. '.''« Court of Great Britain is savageii Cant must ' 4. It is true that thf IS h /.fT ') m '"3'' P«""» "' the inhabitants * » "" ."""«' of the French as'ln' ffvo of 'the'^J^'^Isi;' X^!^ f Utrecht contains the same stipulations in favour m 8e(| what l";;"tly this ,. a point to be no more disputed about " ' «'•""'""<« mperio suhJccUr,' and con ;?:j::f f "'-Ei^^'S^ -S'fS'^^ respect to the trade which will ),e lI;r.r:'^:'f.«.L*fJ to,apf.ropriate them, is not a;>rwill'^:o?;r";.i 'J!l'l^^f?/.'! 'h«'-«; - deprive them of 231 ARGUMENT OF MR. M'CARTIIY, Q.C, re QUESTION OF BOUNDARY: convenience of the two nations can exact aonie particular arrangement thereto in order to fix invaria\)ly the respective boundaries" Then the answer of the English to that is found at page 29, at the foot of the page: " In whatever manner one interprets the Treaty of Utrecht, with respect to the trade which will be permitted the French and English to carry on indiscriminately with the savage nations, it is nevertheless very certain that such a general trade is by no means forbidden by this treaty. It is an ordinary and natural right to transact busiiiess with one's own subjects, allies or friends ; but to come in force into the territories " — I draw your Lordships' particular attention to this— '' belonging to the subjects or allies of another Crown, to build forts there, to deprive them of their territories, and tj appropriate thena, is not and will not be nuthorized by any pretension, not even by the most uncertain of all, viz , convenience," Then it goes on to say : " However, such are the forts of Frederick, Niagara, Presqu'isle, Riviere aux Bceufs, and all those that have been built on the Oyo and in the adjacent countries. Whatever pretext France can allege for regarding these countries as dependeifcies of Canada, it is certainly true that they have belonged to, and (inasmuch as they have not been ceded or transferred to the English) belong still, to the same Indian nations that France has agreed by the 15th Article of the Treaty of Utrecht not to molest ? " The Lord Chancellor. — South of the great lakes ? Mr. McCarthy. — Yes. All I state it for, is for the purpose of shewing that that is the contention. The importance I attach to it is this. Your Lordship will remember that mj' friends have contended that the occupation of the French of this western country, which took place between 1719, or thereabouts, and the final cession in 1763, deprived the Crown of it, and of course also the Hudson's Bay Company. That has been the argument used. Now what I say is, that the English, from the Treaty of Utrecht, were endeavouring to get this line fixed. The line either was or was not fixed. If it was fixed, we contend it was placed at the 49th parallel.* If it was not fixed, then, at all events, the French were trespassing or poaching on the ground of the Hudson's Bay Company, without colour of right ;f and the English, in 1750, before the outbreak of the war, speak of it in that way : * " It is an ordinary and natural right to transact business with one's own subjects, allii s or friends, but to come in force into the territories belonging to the subjects or allifs of another Crown, to build forts there " — that is supposing ihey did build up forts ia this country — " to deprive them of their territories, and to appropriate them, is not, true that they have belonged to, and (inasmuch as they havH not been ceded or transferred to the Enulish} belong still to the same Indian nations that France has agreed by the 15th Article of the Treaty of Utieoht, not to molest, ' yullo in posterum mipedimenta aut iiinlesUa cfficiant.' " Article XV. of the Treaty of Utrecht, 1713, above referred to, is an follows :— XV._ The subjects of France inhabiting Canada, and others, sha'l hereafter give no liinderance or molestation to the Five Nations or Cantons of Indians subject to the dominion of Great Britain, nor to the other natives of America who are friends to the same. In like manner the subjects of Great Britain shall behave themselves peaceably towards the Americans who are subjects or friends to France ; and on both sides they shall enjoy full liberty of going and coming on account of trade. As also the natives of tlio>e countries shall with the same liberty, resort, as they please, to the British and French colonies, for pro- moting trade on one side and the other, without any molestation or hinderance, either on the part of the British subjects or cf the French. But it is to be exactly and distinctly settled by commissioners, who are, and who ought to he, accounted the subjecti and friends of Britain or of France. * The evidence shews that it was not fixed. See anti, pp. 142, note*, 219, note t, 222, notet. + To thus assume that the North- West was "ground of the Hudson's Bay Ctrnpany," is simply* begging of the questicn. + This uttv^^nce of the English had no refereice whatsoever to the North- West, but only to the region claimed by the Iroquois or their uliies, south of Lakes Erie &od Ontario. 232 CL.UM-J OF rUE HL'DO.VS BAY CJ. IN 1759. hereto in order e foot of the only to the region :;' Ji"ctv':ie;"e'.°""' '^ ^°^ P'-^^^^^^^^- -^ -- ^y the .ost uncertain of No doubt that is referring to other forts, speciBcally. the ifki;^^'^^^™^-^^" ' *^« ^''^•^^ <^h^y ^'^ ^ow speaking of are forts south of Mr McSAR^^^Te?"'"''^''' "''' "'" ^" ''^ '^"'^^'^ ^^ ^^^ United States ? UtreSr^^''''^ CHANCELLOR.-Are they treated as in Canada in the Treaty of ' Mr. McCakthy.— Yes. The LoKD CHANOELLOR.-Then I think I am riaht in what I said thaf th\. passage includes some districts which were part of Canada that ^!l;it? n?trf i~^.K ' ^^'^' ^^l ""^ «« '" '■^^''ty- Your Lordship remembers n heT^t of'p^^^^^ al/ between the tw^o countries in tne ireaty ot Fans they do not speaK of any boundary at all. Thev take tho Mi.s.s.ss.pp. as the dividing line and there is no attempt on the part of the French to .ay that anyUiing south of the lakes belonged to the French * ^'^^ ^^ench that treat v''w';,Sr''''''^''''T":;^''^'''"'y' ^^'^'' ""^'^ '^'^^^^ settlements before Int and ^re kkerti'.: " ^^'''''^ •" ^"^ ^^^ ^^ '^^^ ' ^"^ between the settle! luents ana the lakes there w re certain French territories posts but th^F^JiT^'""' ^"'i'^^P "^'^ '"^ «" ^^«™^P tl^^t there were French Hgtt and proper ?^ ''^' ^'" ^""'"^ ^'"'"''^^^ P°^'« '^'''' ^« n. All t-he f'»rtH fiftnied («ee e that_the Frencharej^tingUm^ which is a reductload ahsurZm, not as the ■ec«l..,l fro^ thHir original deinind ' ' Preseutation of the opposite case, might not hava T^^^'^U^e^^^^^^^^ Ontario cUnned that the company had. a, =h^trt,.r purported to confer, except in"o far a The S, miXt'ttwV« "^ ">,? 'r^'to i^l titfe which "the f Printed ante, p. 112. 236 ARGUMENT OF MR. M'CARTHY, Q.C , re QUESTION OF BOUNDARY : fuench ( actual claim. They say that they cannot say that, and then they cive a reason which I do not follow, I confess. The Lord President.— It seems to me that the French understood the company to claim all the rivers which entered into the bay. The Lord Chancellor.— I do not think so. The French say they cannot claim that as a matter of fact. In no single document that I have seen have they ever put forward that claim— a grea't deal more than they expeetecj to get. Mr. McCarthy.— It is hardly so, in this particular country, which they knew all about. What could be more natural than, not knowing where the height of land is, for them to say : " iVe aro a company ; we havft a charter," and knowing that in 17o0 there were people opposing their charter, that they should put for- ward their claim in the way in which I submit they did. At all events my argument is, that the Crown of England were, in good faith, as against this com. pany, precluded from contending, as against the company, that the line did not so so far south as 49". The Lord Chancellor.- That there had been an endeavour in France to fix that line, which failed is true ; but it did not bind the parties. Mr. McCarthy.— It is not contended that the English had any other land there than that belonging to the company, which went down to the 49th parallel The Lord Chancellor.— Do you put that by interpretation of the charter or by actual possession, that it would be a give and take line ? That would be your view ? • u^^i Robert Collier —If the English commissaries had been appointed, they might have taken some line inteririediate between 49 and 51. The Lord Chancellor. — Your argument is not prejudiced by your having been willing to accept that line. Mr. McCarthy.— At all events I am entitled to take this position. I suppose that nothing had happened to destroy the effect of the Hudson's Bay CompHnv's grant. W e have to go back to the Hudson's Bay Company's grant to .see what that was. If the Hudson's Bay Company's grant means anything, it must mean all the country drained into Hudson's Bay— that at all events of which thoy took pos.sessioD, Where else is the line to be drawn ? It is eitiier void, by reason of uncertainty, a.s not giving any limitary line, or it must go to the countries drained into Hudson's Bay. I submit that is the effect of the grant. From the treaty upwards, let us see what has been done. It has been urned before your Lordships, that there was no posses.sion actually taken by the Hudson's Bay Company in the interior of the country until after the cession. Well, there were posts on the mouths of the rivers some leagues up ; it is not very important how far up. These posts are set out on page 588 of the Joint Appendix,* but perhaps they are not .so clearly .set out there as at a subsequent place; but I will deal with those sepa- rately if your Lordships will per, nit me, as it is a matter that can be dealt with better separately, than it taken at this point of my argument. But, what I want to point out now is this. We now come to 1774. It is not denied, but rather admitted, that the Hudson's Bay Company did establish Cumberland post, or Cumberland House, the very year after the Act was passed. The Lord Chancellor.— W^heie is that ? Mr. McCarthy.— That is on the Saskatchewan. It is between 50 and 55 degrees, on the Saskatchewan.f It is spoken of in Mr. Herry's Travels, which is cited from the Ontario Appendix. He visi ted the countiy. He was a trader ^u *?*!* ''"'■'* there tet out are all on the njargin of the bay— not onelntbeToterior. And in facrduriDR the whole period of the French occupation, the Hudson's Bay Company had but one post away from the tJ^ was not on the baskatciieivan, but considerably north of that ri/or, on Sturgeon Lake, and in lat. bZ" 66', and lonj-. 102" 16 236 FRENCH OCCUPATIOXOFTHE N0RTH-WE8T-FIHST APPEARANCE THERFIN OF H B. CO. iake, and in lat. IlTa " T/r'' '"-» •-' »P»I<» °« 'Ws particular ton W„g there in 1774, It « c.™pa„yh„d",rr.rw\;''/ 5't"i.,'rtthf3J°pte"5rl'" *° «"''»"■» "^-^ .nd 102» longitude, w«t f,Co're™»i«h tJ °T '' '^i '" »''™' 54° north l.titude, ,.rmo„ed by Highlander, frr A^ kniy i.l'T''.'"';"^ of di.oovery. W. f„„„d il fl».^k.ng., by who., .bough nnwe,co.etu7titter. "tetiiSVulSt;'-' "'• :i'Lrtb^-[LT;irLl'tTB:^c:;;;;.!:;'''"i;ftS': *» '-^'-^^ --'■ wlueh 1: I^Ze °«*'"="-'-«-I Oo not ,,nite see th, bearing of thi, on the dispute ...J .0 on. French post" we;e*S5,,°she,l ^^ ^'V' 'ft-'*''' "^ *'^ ""'"""'s friend's contention was thrt Se eflict of ,C ^T ^"''if^'PS will recollect my charter, and to limit them-to dtife then, t»cW ", '° ™« ''"T.""' H"'*"'"'' ^'y Hudson's Bay. I am answerinfih^t bf L, • ~:E.° .™"''"* *""■ "'"i" «'»»«>• to very date, th^ En.liThTe^^e'nlav r^TSft fh^ l."L"fl'rd thtT' ''b"" *'^ trespas!iino, and the Hudson's Rnv nnm„o„ ^ p ^®^' '^'^^ French were the purpose of their ""curatiL^SraYteraU'irwt a"tr.:-" ""'"'""^ '" so lar as it was necessary the Hudw, R,,, n ° trading occupation— Fop»e to so on and si Jw whS ne'^hefdM """'"^ """ """Py'"? ^-^"dl .« wSL'ire liSronr ^omLwt^""'''^ *"' *" ^^''^''-d H-- '•'""W Mr. MoCakthy.-No, it waa not ' oir X3ARNE& li-EACOCK.— It IS not ID that territory. '. B.r Comma, in ,h, „,i„. ., £' Kh. wL.' ""ft l S,f "l*" ■»."". «■•• «h. . '■"" luijuuui, ig irom tones, between the years : SfoSuVo'mc "^"^""'^ ^"^ ^''™r"y -^'he -g"i:rnTf1he N^rth- We*r"tt -'.»bl«hed in^-rirwaVthe note *:;,;,;;:"=•-" =■ -''^ ^■°«-'P'^"> '-^^ -o forts and no po^Bession there during the French regime. S«, Ull this is contrary to the ev idence. See note •. supra. 237 ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY Mr. McCarthy.— The q,rcrumcnt i.s, that in 1719 tlie French sent an otficor there, to the We.steiu Sea. In 1780, that vvuh followed up by other officers of the French conmiission appointed by the King to find the Western Sea, and they were told by the Kinjf: We are not going to pay you anything; you will pay yourselves by the trade you will get in pa.ssing through the country. Then this gentleman, Verendrye, e.stablished posts from point to point, and my friend argued that that had the effect of taking away the territory from the Hudson's Bay Company. Mr. MowAT. — My argument was, that they never had it. Mr. McCarthy.— If they had not got it then, they got it afterwards. Now 1 meet that argument by saying that the Hudson's Bay Company were iiv possession of the mouths of the rivers, and as it Vjecarae necessary for the preser- vation of their trade, and as their strength permitted, they passed on, from time to time,* until eventually, in 1790, we find them down in Red Lake. The Lord President. — They claimed the Saskatchewan, 1 presume because *it was a river which drained into Hudson's B&y. Mr. McCarthy.— Yes, and they got to Red River, which by some accident was ceded to the United States, down to the very Red Lake which is spoken of by Colonel Haldimand and his correspondents. Lord AltERDARE. — Near the source of the Mii«sissippi ? Mr. McCarthy.— Near the source of the Missi.ssippi.f I do not know that I need weary your Lordships by going through all these forts and the details of them. That is the result of it, that in 1790 we find them down in Red Lake.f The Lord Chancellor.— Thfet was long after the cession. Mr. McCarthy — Yes. Lord Aberdahe.— I think it might be taken that the Mississippi went a little northward. Mr. McCakthy.— They took it, at that time, that the Pigeon River and all those rivers that went up, drained into the St. Lawrence, according to these maps; but as a matter of fact they all do not. Instead of taking the 49th parallel, thev followed that which was a convenient boundary, until they got to the Lake of the Woods. ^ 1 am coming to what the subsequent treaty aud correspondence demon- strate. They followed that which was a convenient boundary, and that is the reason why the boundary of the Lake of the Woods was assumed.+ And then the next couunission, that of Lord Dorchester, followed that, and sa. i the Mississippi went northward to the territories granted to the Hudson's Bay Company. You will find that the commissions neutralize one another.^ Lord AuERDARE — It is good so far as the Lake of the Woods goes, andcovei-s a very considerable territory. •The French contention was, that after the Tresty of Utrecht, the British were entitled to have restored to them only certain posts on the shores ol' j Bay, with a very limited dependent territory, and that the whole of the interior country with its fortw or settlements was left to the French. The company made no move mto the mterior until long after the cession of Canada, and then only in pursuance of their right in common with other British subjects. They found the country occupied by traders, British sub- jects, of Canadian or British origin, ultimately united as the North-West Company of Montreal, whose footsteps the Hudson s Bay Company were contented to follow, at .1 measurable distance. In 1821, the two companies, jointly, obtained a Royal License to trade, under which their operations were carried on until their fusion, in 1838, into one company. And see ante, p. 237, note * ; and appendix B, hereto. tThe Red Lake in question, as admitted by counsel at a subsequent stage of the argument, was not that near the sources of the Mississippi, referred to in the Haldimand correspondence, but was situate several degrees further nortn, to the north-eastward of Lake Winnipeg, and disoharijed its waters by a tributary of the English River. ISee ante pp. 107, note *, and 222, note t. §Thi8 contention does not appear to be supported on a comparison of the texts of the sevnral enmniis- 8ioutt (Joint Appendix 375, 384, 387, 400, 404-6, 428), any apparent ditterences being explainable. 238 LORD SELKIRK AND THE NORTH WEST, 1808-18U. ?sume because 31 went a little oes, and covei-s Now will your Lordships look at the limits of that ^rant ? 'iZ m„^ T kT /• t .SMnorning shews the limits of the grant to LoitldSk. 'umZI ttllh" land as the southern boundary, until it comes to the height of laTd uUu the of land ^''''''' ^^«^^>^«-How does it appear that it is bounded by the height proclfmaSe": iloliJ V ' '''''' " ^" ''' '''''' '^ '^^'' ^^'^'^^- ^^— "'« Mr' icSAR^y'" At'°tbT?f ' '-t '^ *he United States boundary ? 'Se Lo^rcrAi^iVoR F !k'.T' ^^"?^ '^-^ U"^'^'J States boundary. Treaty ? <^hancellor.-1s that the boundary settled by the Ashburton Sir Kut™oluIk'' T "^"''^''P ""i .^"^ ^^'^^ proclamation at page 589. Mr STrthv -rr ''^"^'""'^«««, ^" 52" 30' north latitude. ' ° Lord ARERDARr T^ ""' running due west to Lake Winipigashish." Mi- McS?iv ''"' *' ^"^ "^^' ^'^^"^^ ^^'^'^ WinSi^eg. shore' iItatitude%'rdtreL'\Ten"du.''™^f n" 'f' '^"l^' «° ^^ ''^ ^'^'^^ '^^ -«*«- north latitude t.:;ser re wlif^rn^^^^^ TbIVrwJ'''':: '''^ ^^"'^^^ °' '' ^"^'''^^ the Un,te.l 8t, te. anj Ca„»Ja, „„til it gets to the polr „°f „3'ac," between in exc usive possession of that territory lone Iwfore anv o/« n f U ■ I® Canadian traders, who had been in Selkirk had ..et foot within it, treated thel.retended «art Ji^h V""'^'' °^ either the company or Lord authcnty, and broke up his colony P-^^tended grant with contempt, repudiated his lordship'^ asiumed tP«0CLAMATi0N OK ^ILKS Macdoneli, I.AT.D AT FoRT Daeh [Pembina], 8 Januabt 1814 All that tronf t 1 J \-^*^r"'^(~DescripttonoftkcIimtndariesl "'^'^uaKr, loi*. atit„de; and thence running dT^st Vf Lak7 Win"nilaJh sT .til"'' ^"^'hirty. minutes^ nortg then ,„ a southerly direction through the said lake so as to strik«*it^ ^ T *" f"^"*- V"'« Winnipic ; decrees ; then due west to the place where the narellel of fiffv .. *? ^"'"" '"j"^® "> latitude fifty two wesUrn branch of Red River, otherwise called AL/nibo 1 .fhpnT <^«erees north latitude intersects the to he height of land which separiresthrwatersrunrnVintoH,;^^^^ that point of intersection and Mississippi Rivers; then in an easterljdirect o„"Xng theSht o'f^an^H^i'TK'^^^ the Missouri 239 >»A.»\.j*:,.i, ARnUMENT OK MR. m'cARTHY, Q.C, re QrESTION OF BOUNDARY ment, taking in, acicnowledging, and troatin ,*„t ^whe^hert'Lv'^^^^ f'"? '""^* ''T b-" co™'"'"«^ " *o7the IMt^ eral ln„ ,„i ; . ' 'j ![ i . ? " "^, "^ °' ""''" ^ declare I am at a loss to decide. Mr Attornev-Gen- ttri ; .ulut^and 1^^^^^^^^^^^ ^''^•"«' b"' he does not p^t in the evidence whe « on 90" to m° or 16o" form" h°"l^L'""'r '^^ boundaries of Upper Canada, and I do not know '•,*' 245 '.\ ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY ; may assume, I think — at leftst it is my impression, and I think the view of their Lot dships— ♦that we shall not carry it fui'ther to the west than the award ha» carried it. Whether we shall carry it so far must depend on the effect of the argument. Mr. McCarthy. — Peihaps your Lordship will allow me to state my position. If the height of land is not the true line, then I fail to see — and I state, on my part, that I fail to see — any evidence of where the true line is. The Lord Chancellor. — We have got — and your attention was called to this at the beginning — certain boundaries mentioned in the Quebec Act, and in the contemporaneous, or nearly contemporaneous, documents. We are in search of those boundaries. Mr. McCarthy. — If I may go back to the Quebec Act again, and assuming, in the view I am arguing for, that the true construction is to follow the Miss- issippi River, then it ends at the territory granted to the Hudson's Bay Company. The Lord Chancellor. — Very likely ; and I quite follow the argument, that having got to the head of the Mississippi River, striking north from that you reach the boundary which you call the height of land. I quite understand that argument, and will consider the weight to be attached to it ; but, any way, that would exclude the alleged site of this particular murder. Mr. McCarthy. — Between the place of the alleged murder, and the line of the north-west angle, there is nothing in all the papers — that is what I venture to assert — to shew any distinction, because the first commission does not speak of the north-west angle at all. I<; follows the construction which, for the present I am conceiving your Lordships are holding to be the proper wording of the Act, that is up to the Hudson's Bay territory. So that there is no difierence whether it happened east or west of that particular line.* The Lord Chancellor. — If it stopped there, then you might say that that is true. I do not follow it, because it is quite clear — at least it seems to me at present — that that would draw a line to the north, wherever that line stop?, which would be east of Manitoba. Mr. McCarthy.— What I mean to say is, that there is no suggestion of the southern boundary of the Hudson's Bay territory being at any point or place where a line from the north of the Mississippi would strike or make any differ- ence as to this particular offence, The Lord Chancellor. — I cannot agree with you. Whether the line drawn north from the head waters of the Mississippi strikes what you call the height of land, or whether it continues further north, any way it would cut off this par- ticular spot to the west. Mr. McCARTHf. — If it goes north, of course.* The Lord Chancellor. — Either way, this particular spot would be to the west. Mr. McCarthy. — But what I said, and I think your Lordship agreed in that contention, was, that it was the southern boundary of the Hudson's Bay land that we are endeavouring to find. I say there is no suggestion of any southern boundary of the Hudson's Bay land which makes any difference whether the offence was committed to the east or west of the north-west angle of the Lake of the Woods.* The T jRD Chancellor. — We are endeavouring to find the point whce the line mentioned in the Quebec Act would strike the southern boundary. • The commission of 1786 {ante p. 44) carried the southern boundary of Quebec, and therefore of Upixr Canada, through and bdyond the liei^ht of land, as far west at least as the most north-western point of the Lake of the Woods, and consequently tlie southern boundary of the company's territory would have, on ♦ Kn* •.«fl.^.:«-«F nl/^nr. *■ ^ U« l^^l.-..^ ««« . . U - *. t.^ 4.1,-, « *.! X _* i-\~ -. t- —--•-*. ,....,..,....._, ...,....., .... .« .,, .«.,.,,.„.. ^,. ,,„ ,,,,, ,,,,„f^,^ .,( ijJiBt J^VIUt, 246 THE IMPERfAL ACTS OF 1803 AND 1821. uld be to the to shfw tWp tW -^ ' ^^'- " ?"1 *^4*'i« ^^' "J>« P°5"t. There is nothing to shew that there is any point of the Hudson's Bay territory that could bf struck, If It be not the height of land, where it would make^any difference whether this offence ^yas committed ea^t, or west, of the north-west angle and therefore, I submit It IS an authority, where we find a court of Upper ^Canada Sei^th" ftoM80?^r1rV'^"; '* that date not upon their o^v^n lawTut uiiaei the Act ot 1803.* It did not require to be decided The Lord CHANCELLOR.-That is begging the whole question. Mr. McCarthy^-No my Lord. Perhaps I do not make myself clear. What I mean is this— is that in Upper Canada ? j ^^ ^a-i. wnat The Lord CHANCELLOR.-The thing is, that you assume that it was not Upper Canada! '' '° ^'"' favour-that whit was then Manitoba Ts not Mr. McCARTHY.-What I am endeavouring to point out to your Lordships is tuZfZ //ll^rt -^''^ 1^^ r distinction between the land adm tte^d o be Manitoba and the land immediately to the east of that The Lord Chancellor.- You cannot make out that because upon the Mani- toba territory a certain murder is committed it is held not to be within Ontario Mr. McCarthy.— It is only a further fact Ontario. fi, f Sf"^' ^^ ^1^-^^' ^ ^*''''^ ^"""^ °'''^^ ^^'^ ^^ol« history, and what I submit is ha there IS nothing, anywhere, which would enable a surveyor to draw a li^e that would strike the north-west angle of the Lake of the Woods and join that which IS the southern boundary of Hudson's Bay f wKnf • ' ^/"""-It^^ ^^V~Pt'' y°" ^^^" '^ °^"«h ^o'-^ than that the whole of what IS admitted to be Manitoba is admitted not to be Canada Mr. McCarthy -I only want it as the principle. It is" not the territory. The point I desired to make was this— ^-^iiii-ory. Sir Montague Smith. -^I quite understand you. You say it proves that this part was not Canada, and proving that that is out of CaLda^ wrshouM come to he conclusion that that north-west angle is not in Canada, because the ""' r'^^^""^" ^' *h^ watershed. It goes no further than that Mr. McCarthy.— I do not contend that it does .f J\^'^ \ "T^ ^''J^'' ^^^ °^ ^^^^' ^h^«h y^"'' Lordships will see at page 417^ If n'f I'SoQ ^PP"'^^^^- , That was an Act having a two-fold object When the Actot 1803 was passed. It was intended to give jurisdiction to the courts of Canada over all oftences outside the limits of either of the provinces; apparently also, to include the Hudson's Bay territory. Between 1803 and 1821 ?his dffi^ culty suggested Itself: By the charter to the Hudson's Bay Compan^ thev had S\^''iPr'' *'^,T'.^i^f ' '^"''^'' '^"^ "^^y '^^d constituted courts, and the iftculty that suggested itself was-had this Act of 1803 sufficiently and explicitly declared that the intention of Parliament was that the Canadia.i courts should have jurisdiction over offences arising in that territory ? For that purpose the doub was cured and then i " -oint of fact acknowledges-which I Seed not trouble your Lordships with aft.r -vhat your Lordship has said-the Hudson's Bay Company s rights m a certain sense, and finally it goes on to say that even though offences may be committed within the jurisdiction of the Hudson's Bay reml^n^^tti we -'':" So^Si*?!.^"'' T' doubtful of itB own power.. H;. ci;i;7^;«tice tSi'e ante, p. 246. note. 247 ARGUMENT OF MR. M'cARTHY, Q.C , re QUESTION OF BOUNDARY: Company's lands, that nevertheless they shall be triable under the Act of 1803 • and it also deals with the iur trade. The recital there ia not unimportant : "Whereas the competition in the fur trade betwoon the Governor and Company of Adventurers of England trading into Ifudson'u Bay, and certain associations of persons trading under the name of ' The North- West Company of Montreal,' has been found, for some years past, to be productive of great inconvenience and loss." and then it goes on to describe that, and the feuds that took place between them : "And whereas many breaches of the peace, and violence, extending to the loss of lives, and the destruction of considerable property, have continually occurred therein : And whereas, for remedy of such evils, it is expedient and necessary that some more effectual regulations should be established, for the apprehending, securing and bringing to justice all persons committing such offences," and so on. Then it recites the Act of 1803, and then the enacting clause is, that " It shall be lawful for His Majesty, his heirs or successors, to make grants, or give his Royal license, under the hand and seal of one of His Majesty's Principal Secretaries of State, to any body corporate, or company, or person, or persons, of or for the exclusive privilege of trading with the Indians in all such parts of North America as shall be specified in any such grants or licenses respectively, not being pait of the lands or terri- tories heretofore granted to the said Governor and Company of Adventurers of England trading to Hudson's Bay,* and not being part of uny of His Majesty's provinces in North America, or of any lands or territories belonging to the United States of America, and all such grants and licenses shall be good, valid and effectual," and so on. Then : "Provided always, and be it furtli r enacted, that no such grant or license, made or given by His Majesty, his heirs or successors, of any such exclusive privileges of tracing with the Indians in such parts of North America as aforesaid, shall be made or given for any longer period than twenty-one years, and no rent shall be required or demanded for or in respect of any such grant or license, or any privileges given thereby, under the pro- visions of this Act, for the first period of twenty-one years." And then there is something more, with reference to rents. Then the third section sa^'s ; " That from and after the passing of this Act, the Governor and Company of Adven- turers trading to Hudson's Bay, and every body corporate, and company, and person to whom every such grant or license shall be mads or given as aforesaid, shall respectively keep accurate registers of all persons in their employ in any part of North America, anl shall, once in each year, return to His Majesty's Secretary of State accurate duplicate., of such register, and shall also enter into such security as shall be required by Ilis Majesty, for the due execution of all processes, criminal and civil, us well within the territories included in any such grant as within those granted by charter to the Governor and Company of Adventurers trading to Hudson's Bay, and for the producing or deliver- ing into safe custody, for purposes of trial, of all persons in their employ, or acting under their authority, who shall be charged with any criminal offence." Then it speaks of the convention between His Majesty and the United States, which does not appear to me to be important, and of the other Acts with regard to that, which were passed for the trial of offenders. The first Act, of 1803, ^ave * It is snmevvhat ftrange that whilst the Act thus provides for oxceptinj? the Hudson's Bay Company's territories from the propoHed license, the license itself makes no such exception, and covers therefore aa well the Company's as the Indian territories. Was tliis done with the object of curing the suggested invalidity of the Company's monopoly of trade under the charter ? 248 ROYAL LICENSE OF EXCLUSIVE TRADE. TO THE N. W. CO. AND H. B. CO,, JOINTLY. tween them : lause ia, that en the third waTCd le^kiT Tir'' ^^^ ""^^r ^^^' ^'' °"« °^ *^he justices of the peace oT 80? for i« . 'I' ^^'^ ^u^ ^^""^^ *^ S''^"*^ commissions, under the Act ial under that aJ^^^^^^ ^^ «rd- to permit of theS n 1 an ;r • • , t^^« «o»'"ts of Canada, and under that Act Lord Selkirk defaJ'/jSrro'fZpface^ ''"*°"'' '^"^ Co„pany„e. app„i°„t'f ^l' parts of North America which had not been befor "expbri And wh/r«L fh ' ."".^''^ in the said trade has been found for some years oast S h« nl^ • ) °°™Pefc»tion H,,d»„.. Bay .„<, Willi™ McOm,„yyilJ„ttiTlZ'?r:li^"'irLZ^'ZZl the terms and conditions specified in the said redted l^t Now knowll W *°'* "P""^ Li„„,., under tie h.„d and «,al ot oneTo.r PrS, SecrSL oja^^ ?r,.''°'?,' Gov.rner.nd Oempany. and Willi.™ McGimv,.y/s „r MSH™5^td SfCd The Lord Chancellor.- What is it you rely upon there? Mr. McCarthy._I rely upon that as an adoption by Parliament and the Go ernment, of the agreement putting an end to competition between the Hud nsBay Company and the North- West Company, who were thTonly persons .sputmg the nght ot the Hudson's Bay Compan^ to the country whi?hthv la d under their charter,* and a license is ^gra^ted thereupon Uhe united lu one .stupendous aegroi^ation, the inLrests of all th^KHfi hT„^ S""l"^"y = "? the contrary it embraced, duals or corporations, (othr 1 an ?K, dlul C Co^^^^ 'H'"^''""^ ''^'^^'' '"•^'"'• te(finns in succession to the old French ew«nf^^^^^^ Oe Oaens; and, moreover, made public aaaettiona of her natives ; that Franc^ wartCa n^ot onlv 0^/^^ f ^^ presence and with t^e assent of the Indian thereforkinthepoSL^'exceptionVotetby^^^^^^^ possessed by or granted to any of our subSa or dos^LVpH hffhl^^^ ''already actually or State." The Hudson's Bav ^nm,vvn^S^. P08'«^J;'*'^ "y the subjects oT any other Christ an Prince charter, and usurped the rSsTraLe by l^e^tat o^^^ Zl'rlrXr'^.'^ '" '^'^ ?T'^^<^ ^^ '^'''^ ^^^ ■soktect posts on Its remotest confines These the Tench in .nn„1^^ erntory and the erection of some Troatie, of Neutrality and of Rt^wfnlr «nH fhT^ successes and acquisitions conserved to them by the ...spr.'jpoundru lor tnc nrst timo in juom Seikirks time, iSli-iSH. '«ee ante, p, liJl.noteiT"^ 251 SSiSI^S£iSi.» ARGUMENT OF MR. M'CARTHY, Q C, re QUESTION OF BOUNDARY: Mr. McCarthy. — It was not, at that time. Sir Mo.\TAUL'i': Smith. — I do not say it was, but if you find it was actually possessed, then the fact is doubtful. Tho Lord Chancellor — If you find that for years afterwards it was recoj^nized as a French possession, and so treated by the British Crown, would not legal principles justify the presumption that it was a French possession ? Mr. McCarthy. — No, my Lord, I submit not, and I will tell you my reasons for it. The grant at that time was of all that territory. I am assuming now, as I must assume something lor the sake of the argument, the limitation to which your Lordship has just referred, the grant was a grant of all the territory drained into Hudson's Bay. Then, what is the meaning of the grant in 1670, the day it was signed and sealed ? It says.all that territory except such as was then in the possession of any other Christian power — not such as might a hundred yea''s after pass into the possession of any other Christian power.* The Lord Chancellor. — Do not the courts of law draw such inferences, even when individual minds are satisfied that the fact was otiierwise ? Has it not been the practice for courts of law to draw, from a hundred years' or very long possession, an inference of earlier possession, even when the probability of fact was not so ? Mr. McCarthy. — Yes. I am endeavouring to shorten my argument as much as I can ; but, as a matter of fact, this is perfectly plain, and I will go on and prove it if your Lordships doubt it — that in 1670 the French were not in posses- sion of an inch of that territory.-)- , The Lord Chancellor. — You cannot prove a negative. Mr. McCarthy. — I can only prove it historically. I think there was no pretence that they had penetrated there at that date, or gone beyond the limits of the St. Lawrence watershed at that date. The Lord Chancellor. — No facts that I am aware of are in any way proved which exclude the legal presumption from long possession. Mr. McCarthy. — Unless the definite proof of when that possession com- menced. The Lord Chancellor. — There is no such proof. Mr. McCarthy.— With all deference to your Lordship, I think there is. The Lord Chancellor. — But you deny the fact of possession altogether. Mr. McCarthy. — Yes, my Loid, I say there is no proof that there was any possession of any country which was not drained by a part of the St. Lawrence, prior to 1670.| I start with that. Now, if it be necessary, I will go back and prove that to your Lordships, so far as we can trace it from the historical docu- ments which are left to us. What were the French pretensions ? The French pretension was, that they had discovered Hudson's Bay, and by virtue of that discovery they claimed that they had a better right than the English. The English said that they had discovered it, and I assumed on Thursday, and I think it was an expedient and a fair and proper assumption, that the English were right in that view. But whether they are right or wrong, the English un- * The English charters of the American colonies, ranging in date from 1609 to 1732, purported to gi'ant f raots extending acro8.s the continent to the Pacific, and in breadth from the 30th to the 48th degree, yet this did not deter the French from continuing, without protest, the pettlement of the valley of the St. Law- -ence, nor from taking pjssesaion of the valley of the Mississippi ; nor did Great Britain, on the settlement of 1763, put fo^^yard these eharti^rs as an objection to the reteution by France of the country beyond the Mississippi. t This is a misi prehension. See ante, p. 200, note " ; post, p. 263, note*, t See ante, p 200, note* ; post, p. 253, note*. 252 MllORITY OF THE FRENCH OCCUPATION OF THE REGIONS OF HUDSON'S BAY. doubtedly first took possession of it under their discovery,* and then it is a question of law to what extent of territory that gives the English a right inter^ nationally speaking as between them and the French, by virt.ie of tK prior discovery and their after occupation.f That question of law I propose to dis^cuss still later on. As I understand the result of the authoritiesispeaking in that sense of the recognized rules which govern all the treaties dealing with th^ part of the North American continent, and I submit they must be accented as the international law on the subject-it is this, that the discovery of a coast Le and the occupation of that coast line, give to the discoverer an entire right to aU the territory that is drained there. Now, the American ministers put forward a much wider claim. They put forward this claim. They said that the discoveiy of the mouth oi a river gave to the discoverer and occupier of that river or o^' the mouth that stream, a right to all the territory tLt was drained by the- stream, and that is discussed in Dr. Phillimore's work, and afterwards in Si? Travers Twiss's and settled now on this basis: that the American view put forward by Mr. Ga latm was too broad-that merely the discovery of the mouth a river did not give a right to all the territory which it drained ; but th^ the di.scovery of the coast line, and the occupation, of course, in either case, did give to hat discovei;er and occupier a right, internationally speaking, to all the countrv that was drained into the coast line. country Sir Robert Collier.— You must not assume that to be so to be the bT ^«^^^^^^°«-" Sir Travers Twiss said so-it cannot be taken discovery"? '^^"^^^^^^-You must shew that the occupation followed on the Mr. McCARTHY.-Of course, my Lord, that would be so. Mr M^SraY^ilYer^^"'" *^' ^"'^ occupation was under the charter. Lord Abeudari;.— And the discovery was in 1610 Mr. McCARTHY.-Yes, that is also dealt with. If the discoverv is not fol that they had gone into Hudson's Bav until aftpr fh«w,A^ l^^ pretensiorT * This was denied by the French, and on the part of Ontario ATtZTiZ i ' — 7 — leeanc, p. 200, note * ; appendix B.'hereto. Frlm theVime of " C^bob un tnTfiTrP*l^*'.''"° "^ ^^^ French, Bylot's voyage, many English ships visited the Bay or vic^ftv wi?h vir^n ,1 1615. the date of Baffin's and hi R ^"'t.een years, was that of Captain Fox. in 1631, at a thne whin the' Jh!^ f"/^ ^"•''J'^''' *'*«'' »" the Bay, was m the occupation of England by Kirk's conouesc of IfiM f! "''''''« 9^ Canada, including English visit to the Bay until 1668, when Gillam was conducted thither bv Kl? ^®'^ *''«'l '"^ «" "'he? Radisson and Des Grosselliers. There was thus a completrabanTnmeQt^for. ° r^-J^^racle Frenchmen. as if out of regard to the terms of the Treaty of St. Germaia ^uT^^^^k-o u " H?^"\'^ °^ thirty-six years to France ; and iu the meantime the French were in posSon of tCi^i "'^«" J=?4'«id restored Canada he same note.) Gillam's voyage was followed by tC?nco?porattn of ?h7 H,?h°^ '^^ l'"^'''^ '"d.. (See 1670, and by the erection of posts at the mouths of som^f of the riv«„ H"i«on« Bay Company, ia These the French looked upon as encroachments upon therterritort of cLaH '''''""8'n "^ the fe'ay. them, as soon as might be, by sea and land and eithpr ,lanfM!^L^ '^ a ^*"»<^?' and they moved against erected posts on the felf-same divers, within tnd! aS".««f r.^A ca^f wfth^n'^'"- ^^^ FrenXhad the company, and had so an actual, and not merely a coSuctite nrfn,'.!^'*'' °"^ exception, to those of SSdix B?h^:t:') •'^''^ ''^' -^-'^ ^""* - ^««'' '^^^^'^vi^z^-^;^^^^^ tThere was, on the part of the English, neither effectual prior discovery nor occupation. See supra. note „.t«^^.''""r.l°3!°'^'^.\"\«_fil'«'i,°«,««*».b"«hing the contrary state of facts. 2.53 ^m "", pp. Ic9, note t, aOO, AHOUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY ; Tlien they carae back and got their charter. A man of the nwne of Zachariah Gillam was sent from Bristol on behalf of the Hudson's Bay adventurers, and took possession, and then came back and represented it to the King and jjot the charter. Lord Abeudaue. — What was the earliest date of the claim of the French ? Mr. McCarthy. — They pretend that a man of the name of Bourdon — Lord Arehdare. — The attorney-general ? Mr. McCarthy. — Yes, Bourdon, the attorney-general of Canada. They pretend that he went there, and took possession in IGod The Lord Chancet.lok. — I see that various forts are said to have been built in 1G84. Mr. McCarthy. — Yes, my Lord, that we deny, and on the evidence, if it becomes necessary to go into the evidence, I shall be able to satisfy your Lordship that Bourdon did not go there. Bourdon was despatched from Quebec and directed to go there, and he is said to have gone there in 1G56 ; but as a matter of fact it appears that he started and went a distance, but did not succeed in getting there on account of the difficulties, and then returned.* Then, in 1667 the Hudson's Bay people are there, and they continue in occupation imtil 1672, and in 1672 Father Albanel is sent out from Quebec, and he goes through the form of putting up a pole and putting up the French arms, and takes possession in the name of the King of France, doing it all secretly.f But in 1673, the French Governor at Quebec corresponded on friendly terms with the Governor of Hud- son's Bay, and it has always been put forward as arnother claim that the French in the first place acquiesced in the possession of the Hudson's Bay Company.t But from that time to 1682 or 1683, the French were conspiring to drive out the Hudson's Bay adventurers, and in 1686 they sent out a military expedition, and did drive them out, and took possession of their forts — or six of seven forts — which they had erected. Your Lordships have heard the history of that which followed, in the subsequent treaties. Now, the proposition of international law I will state, and I do not think anything can be found to the contrary, and I submit it is in accordance with reason and law. If this continued, how was the country settled ? The English settled on the Atlantic coast ; they claimed, as the map shews, that that settle- ment gave them a right as far as the Pacific Ocean. They claimed that Virginia stretched to the Pacific Ocean. The English claim was wider than the French, because the French claimed the watershed of the system up to the height of land.§ If your Lordships remember — and I will give the reference to it — when La Salle * No fact of history seeing better established than that of Bourdon's voyage to the Bay. It was auth- orized by an arret of the Sovereign Council of New France, and its fultihneut proven oy entry in the Register of the Council, and testified to by (iovernors De Calliferes and De Uenonville. (Joint App., 625, 628). Moreover, the same fact appears by the Transactions of the Commisiioners under the Treaty of Neutrality. (Joint App., 466, 477). t Not secretly. The Intendant Talon, reporting to the King, 2nd November, 1671, says :_ "Three commissioned the said Sieur de St. Simon to take renewed poaseasion in His Majesty's name, with orders to set up the escutcheon of Erance, with which he is entrusted, and to draw up a proccs verbal in the fonn I have furnished him." The procfs verbal shews that the taking of possession was in presence and with the consent of the chiefs of the Indian nations. The instrument was witnessed by Albanel and St. Simon, and by Sebastian Provero, the notary, " and the chiefs of each Indian nation, to the number of eleven, made their hieroglyphioal marks." (J oint App. 620 ; Ontario App. 6. ) + There is no evidence whatever in support of this contention. See anie, pp. 190, noteij:, 253, note*; appendix B, hereto. §The French claimed northward to the Arctic Circle, or the Polar Sea, and westward indefinitely, or to La Mer de I'Oiieat, or La Mer du Sud. And, as to the English claim, see ante, pp. 262, note ", 253, notes * and t. 254 PHIORITY OF THE FRENCH OCCUPATION OF THE HEOIONS OF Ht'DSON's BAY. t, 253, note *; discovered the Mississippi * he came from the north. He started from Quebec and camo down by the Wisconsin, and penetrated down the MississTppi to the •nouth and it was not until he ^ot to the mouth of the Mississippi that he claimed to be the discoverer. Then he erected k pole, and made a proclamation In the name ot the King of France that the whole of the territory drained into the Mississippi was taken possession of in the name of the Crown of France Now everything m these matters relating to the continent was treated on that basU and the only dispute was, as between the American minister setting up that the more discovery of a river gave a right to the watershed of a river, fnd^he other claim, contended for by the British minister and the Spanish minister, hat tha was not so unless there was a discovery of the coast line as well 1 he Loud CHANCELLOR.-There see.ns to be about as much foun.lation for the one idea as f.- the other. If you say, that because you take no.vsessL of a tew miles of the coast of Africa, you take possession of all the c^ untry which is drained by a river which goes three thousand miles, it is so absurd that I cannot conceive It to be laid down by «ny writer on international law. However it hi very little bearing upon this question. owever, ic nas Sir RoBKUT Collier.- Whether it is so or not is of very little consequence The Lord PKKsiDENT.-What do you conceive to be the^bearing of all tlTs ? Mr McCARTHY.-The bear^ig of all this is that the charter did^give to the S"'V T certain definite 1. dts. If it did not give to Hudson's Bay certain Sit '' ' ^^" ^''' uncertainty. Now what wire those Sir Robert Collier.— Then we go back to the charter Mr. McCarthy.— I am speaking about that charter, under which was the only possession that the English had in all this north country. Xe Hudson's ^ve ?brT.rPrr*'l*'!f P'?^", ^.^ ^°^^""'^' ^"^ ^^^ ^^arter purported to give them all the lands which drained into the Bay.f Now, either it was void for uncertainty, and a piece of waste paper-and t am not required to admit thit -or It did give to the Hudson's Bay Company certain definite limits. WWe are those definite limits ? Can my learned friends on the other side suggest any definite limits to the Hudson's Bay grant ? "fefe^*" ^uy .1, ^j^ j^?fif iT Collier.— I thought you were trying to suggest some title that they had, independently of the charter. "° ^^^^ Mr. McCarthy.- No, my Lord. Sir Robert Collier -Then we come back to the charter, and we have heard your views on that subject. Lord Aberdare.— Would you argue that although the French may have possessed themselves ot the portion of the territory drainincr into Hudson's R«v mo.st discant from Hudson's Bay, and held possession of it ?or a consHerabZ time, that claim of the company would have availed as against En<.land itself when it once became possessed of Canada ? ° Mr. McCarthy. — Precisely. Lord Aberdare.— You argue that even although the evidence shewed for m stance-just as an example-that a portion of this t erritory awarded by 'the' ^„A '^-''^ ^?''"'* ^'ather Marquette, and Louis Joliet, commissioned by the Governor of Can»Hii ».,,» th^ « . and jomt discoverer of the Mississippi, which they reached from GrLn Rav hu th«, w„ i?- ' ^ t"® first, con.m, and explored from the Wiscons n to the ArkTinar This 3in l672^*Tl^tn?^^ J-« «»t.l aeveral years later, and then by the lUinois Tnd he'trlv^rs d t to ht mouth"* ul'TA^t' Mi, 044). Nicolet, in the service of the fur-tradinir Comoanv of the FTunrtpfirl ALj^«;oil. (loijit App., between Green Bay and the Mississippi as early as 16334lnd w^?hin easv diXn.« nf T^ "? ""* 't^'"^ ■8 not yet clear in evidence that he actually reached it ^ distance of the river ; but it +The charter contains no such words. And their Lordshica had alrnoHv Ha«,vi«^ tu.*. ^u- ^i. forward by counsel was not maintainable. i^orasmps naa already decided that this theory put 2oi) "0tm IMAGE EVALUATION TEST TARGET (MT-3) V A 4 &?/ 1.0 I.I 1.25 bi|2£ mi |io "•^" 11^9 ■U Kii 12.2 2.0 1.4 — 6" 1.6 V] ^ //, ^ f .0* 7W # Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.y. 14580 (716) 872-4503 /«V iL I AUGUMENT OF MR. M'CARTHY, Q.C., re QUESTION OF BOUNDARY : arbitrators within the watershed towards Hudson's Bay, had been occupied by the J^rench, that occupation for fifty, eighty or a hundred years, would not avail against the claim of the Hudson's Bay Company ? Mr. McCarthy.— Yes, my Lord, that is my proposition. _ The Lord Chancellor.— It is really a proposition which, if it is anything IS the most extraordinary imaginable. The French got access to this countrv which IS drained at a certain point by the St. Lawrence, they push their settle- ments into the interior, and do not meet there with any other settlements of any other nation whatever. According to your argument, they might organize these settlements in the most civilized way, and build towns and villages, and cultivate the land, but because King Charles II. had granted, a hundred or fifty years before a charter to some of his subjects, which in the terms of it, as you say, construed upon certain principles, would include part of the territory which the French had so settled, therefore, internationally, the adventurers, the grantees of Charles II., have a right to turn out the French settlers ? Mr. McCarthy, — Yes. The Lord Chancellor.— It is perfectly absurd. Mr. McCarthy.— May I put it in this way ? Assuming, for the moment, that It IS part of Hudson 8 Bay, and supposing that the Crown of England had sent there directly, not by the Merchants Adventurers, but directly taken possessioa ot this coast line on the Hudson's Bay ? ,^ .,- The Lord Chancellor.— That is exactly the same thing. ' " '^ Mr. McCarthy.— Then assuming that the French got into possession of the sources or the head waters of the rjvers, not by their consent or acquiescence ? The Lord Chancellor.— Assume that they push their settlements back from the point at which they had bona fide settled. Mr. McCamhy.— Yes, my Lord ; then, I say, the French claims would not have availed. That is what has been denied in all these matters. The Lord Chancellor.— Even though acquiesced in ? > .u . ^^''- ^cCarthy.— Of course that is a different thing. If it is acquiesced in that would be equivalent to abandonment, and there is no pretence of any acaui- escence at all. « Sir Robert Collier.— you mean by the Crown ? Mr. McCarthy. — Yes. The Lord President.— I understand that you admit that the boundaries Tnentioned in the Quebec Aci as the boundaries of Canada are conclusive for our purpose ? Mr. McCarthy.- Yes, my Lord. The Lord Chancellor.— And that what we have to. do is to ascertain what those boundaries mean ? Mr. McCarthy.— Yes, my Lord. ^ The Lord Chancellor.— You go on to say that the boundary of the Hud- son s Bay IS to be obtained by theory and not by fact ? Mr. McCarthy.— By both together. I am putting forward the theory first, and 1 come now to the fact. I say that even assuming what my friend said to be the tact— and your Lordship exaggerated the argument in order to put it to the test— there is no pretence that there was any settlement / Lord Aberdare.— That is the question of fact ? Mr. :icCARTHY.— Yes, my Lord. In the way that the Lord Chancellor put It, It was put as if' the French had built cities and towns. The LoKD Chancellor.— That was to try the principle. 856 INCIDENTS OF THE de foAito POSSESSION OF FRANCE. ms would not scertain what of the Hiid- when these forts were placed bv tL Fr«nl i ^"PP°^« ^'^^^.^n the early time but f had Uer gi,o;t./Lt£Lip*,'st 'e°vS:r „?,tiT;o"i„r '^™'— charter "NT„^t'^"'.™l'r°° ' °-<«™'and you to hold that tho words of tho Sr^.J^te'/'hadnreLT"""' "' *° ="'»"'" °« "^ other 0^."': Mr. MoCakthy.— Practically *• Sr°MoTjTH™'^I-4rrd*°"*°''°''°""*-'-«»S' ' ' ' ..ehothr^™d^a!rr.;-'irtht»<',,Ste*^^^^^^^ n dV„"o^"t t'T- evidence proves it, but supposing they had ? ^ "" ''°*^ '^^ *^** *^« time therhadTand S^Th«^^ ^^IJ ^"^ that for a long distance of infer, in Ve absence o a iS^^^^^^ f.-d you would they had a right to put them ? ^ '^ P"**'°° ^'^^'^ ^^"^^ ^h^'-e ■ limitfd%o''wL™s~p™V"c^^^^^^^^^^ ^ ^T.P^*-° «^ ^-^da was Lawrenccft P^^P^rly Canada, that is to say the watershed of the St. onte, p. 200, note* ; appendix B, hereto event-a number of forts beyond the height of land. See FrenT^eL'l^n^Tin'^c^^.^^^^^^^^^^^^ the contrary, eatabli.heB that the .on ,f not by the King iS person-as of couiBeirooi?d not L-warrhf ^''"*'^'' *°^ *^*' ^""h '^'=°"P^ authority as well of the King as of the Governor of OaMda ^ representatives, and by dir^t of land, the evidence to the contrary is simply over whelm"n^ Sela^^^ ^ "I '°" ''^^^'^ 'h« *>«iKht eThe first built north of thf height of land wasTnlfifil «„ i .k ^" ' °°'^ ' ''PPendix B, heretb. quently. Ibid. '*'"" "' ""''' ''** "» ^^^^l, several others in 1673, and a number subse ttSee the conclusive evidence to the contrary ante, p. 200. note • ; appendi. B. hereto ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY ; Sir Montague Smith. — But supposing they had put their posts or forts further — beyond the watershed ? Sir Robert Collier. — The company did not think of going to the south, to the extent to which you put their boundary; they wore quite satisfied, in 1700, to take a boundary different from the boundary of the watershed. This conten- tion, that they were entitled to all the lands of rivers flowing into Hudson's Bay, never occurred to them. Mr. McCJa uthy. — For the purpose of my argument, the 49th parallel is as good as the height of land. I do not suppose ray friend would like to accept for Ontario the 49fch parallel. Lord Aberdare. — Because that goes through a part of admitted Ontario. Sir RoBEiiT Collier. — They give up the water.ihed of this land. They did not claim that. There are a number of rivers which drain into James' Bay, which, according to their own shewing, on the system of the boundary being the water- shed, they ought to have claimed. Mr. McCarthy. — The only evidence that I have, and which has been referred to about the French possession is this — perhaps we had better have the facts first, and discuss the law afterwards. Your Lordships will find it at page 640 of the Joint Appendix,* and it is not unimportant to observe in reading this, that the French were not intending to take possession of this country, but were intending to find stepping-stones to get to the Western Sea.-f- All these they called, as your Lordships will remember. Post of ihe Western Sea. Lord Aberdare. — That would^ accord with the intention of keeping all the land that lay between Canada and the sea. Mr. McCarthy. — No, my Lord, as 1 understand they had to get stepping- stones or resting places on their journey. I thinK that will appear. They started at Fort William, and got to another point, and so on ; and not only that, but the French Government said, you must pay your expenses by the fur trade that you get in your journey. That is the way it was. Lord Aberdare. — When did this expenditure begin ? .-t Mr, McCarthy.— In 1717. Lord Aberdare. — Then that observation would not apply to forts built before 1717 ? Mr. McCarthy. — There are no forts except those in the neighbourhood of Hudson's Bay, which were given up by the Treaty of Utrecht. They were given up.j Sir Montague Smith. — That may be so, but then they existed. I do not see what is the effect of it. Lord Aberdare. — These forts given up by the Treaty of Utrecht were gen- erally along the coast. Mr. McCarthy. — There were no others. § •- , j • CoDseil de Marine, 7th December, 1717, as to M. de Vaudreuil haviog been authorized to estabh'ak three posts at Kaministiquoya, Rainy Lake, and Lake Winnipeg, respectively. +That sea was thn ultimate goal, and the limit they had set to their territorial dominion ; but the evi- dence is clear that their settled posBession kept pace with the actual exploration, and embraced, at th« period of the capitulation, the whole Winnipeg basin, guarded by a chain of forts stretching from Rainy Lake to the source of the Saskatchewan (ante, pp. 94, note, 143-4, 187, notes t and t, post, p. 2(i2, note X)- Th" further and full realization of their hopes was left to their Brito-Franco-Canadian successors, who, takirff up the work where the French officers had stopped, pushed the trade, and the forts, beyond the Mountaina, reached the Sea, and secured that eecti'in of the Pacific slope to the British— now the heir of the French- dominion. (Joint Appendix, 177-8, 186-7 ; Ontario Appendix, 65-6). % Only those on the shores of the Bay were given up. The French retained their interior posts, whether to the north of the height of land or in the North- West, until the cession of Canada, and their trading operations extendi i at some points even to the shores of the Bay. See appendix B, heieto. § There were many others. See ante, p. 200, note * ; and appendix B, hereto. 258 INCIDENTS OP THE de facto POSSESSION OF FRANCE. posts or forts forts built ized to establiak Lord ABERDARB._That is in French Canada. the eWdetf U Tou-ri" "• ""^ "°^ '* '■^°'''' ' "'3' I 8° back to aea what Lern angle of La^„ siVo'sfph 'r^tlS'ty th™ Ifh'' ""^ " '"'' ™ *» ..d n.«. „„„er I will con«ruct OM !a tbe oo"t,; 5 tt KuT °' ^'u' AI«""«Pi8»». •Jeclu.1 b«iTier " -. , „„^" '» '"« """""'J »' «i8 Kliitmoe, whiob will bean *.p„"d So™'-'^^ ^^""'"« of Lake Ataepigon is., Ontario, not in the LOBD ABEEDiEE—Where is that Fort A la Maune ? j4 YT'i^JZp'^jiJtsTtattti'ef/rr ????• ■'«">^»^« * par^raph which bcgins^.T^ remains t*^^?-"^* "' ""^ •'™' *PP™'«>=. '- *» Mr. McCarthy. — ,., ^Z^f^^rubiXs^Trr^S^^^^^^ .Kit'J '^«. Open... .tSt'';„!p™"-''°" I--'*-P-"fl"dit shewn on the map, near the Lake . Mr. MoCAETHy.-This is not evidence of that : ■• Have i.rnmi..H .„ i. Lord Aberdare.— Whei-0 is tlie River d la Maune ? .....d^t tKar^Se'lroffordiS z\^Z:iTz,\'::2%K,r,''- ^ oHand, except th e one I was about to mention. ^ '*''' ^^'^^^ B. hlretr "" '^'°" the.. Lordships ample evidence to the contrary. See an^e. p. 200. note"^p^;^ tThe Sieur Du L'Hut to aovernor de la Barre. 10th September, 1684. 259 ' ARGUMENT OF MR. M'cARTHY, Q.C., re QUESTION OF BOUNDARY; River k la Maune. We have not fort, near Lake St. Joseph, realljr Sir MONTAQUF. Smith.— Where is the list of forts given ? Mr. McCarthy.— At page 603, Joint Appendix.** My friends talk of Fort 8t. Joseph.t but Fort St. Joseph is on the River St. Ciair— quite a different place altogether. We can make that clear to your Lordships, although mv triends deny it. That fort is on the River St. Clair, near Detroit. There is another called St. Joseph at the head of the waters of the Wabash, at a different place, but there is no Fort St. Jo.seph on Lake St. Joseph, nor does the place my friend refers to speak of a fort, except near the river at the bottom of Lake Alemepigon. Lord Aberdake.— It says it is on this been supplied with any evidence that this existed. Mr McCarthy.— No, my Lord, except the statement that it is at the bottom ot this Lake Alemepigon. I perfectly understand that they had forts there and I do not attempt to investigate it, because I am confining my attention to forts withm the height of land, and not outside the height ot land. The Lord Chancellor.— And you say that of these forts marked 1684 on the map, there is no evidence. Mr. McCarthy.— Oh, yes, my Lord, you will find on their map, they have marked these on the south of Lake Nepigon. They have Fort Alemepigon built at that very time, put on their own map, between Lake Alemepigon and Laka Superior. ^ Mr. Mowat.— But there is Fort Lamaune. ' ' Mr. McCarthy —Where is thbt 1 Mr. M0W4T.— On Lake St. Joseph— the supposed site, as indicated on the map. Mr. McCarthy.— So you say, but where is the evidence of it ? Lord Aberdare.— Where is the evidence of it, other than what is written on that map ? Mr. Mowat.— There is the Sieur Du L'Hut's despatch ; as to anything further, I will have it looked up. j b > Mr. McCarthy.— Our attention was not drawn to it in my learned friend's opening nor was there anything to indicate that; and it is very important that we should know about it, if there h any evidence of it. The Lord Chancellor.— Very well, then, you say we are to discharge frozi. our mind everything relating to that. Mr. McCarthy.— Yes, my Lord. We rely on the evidence here in the Joint Appendix, which we have agreed to be evidence for what it is worth. * The list here referred to is Governor Pownall'g, of 1756. and is only a partial list, and very incompl^ • ■*■ ^°.k"^'' '■^f«''en°« J"*! >f «n "aade *" F*""* »*• Joseph. The one referred to in the list is that on th* river of the same name, which falls into Lake Michigan (south-easterly shore) This fort and Fo?t St ?;.■**«? by trade, and to send a detailed schedule of the cost of Julv ?«T i^J T «'^' }V^&' 't " '^""^^ **^" ^' d« Vaudreuil, in the month of July last, caused the S.eur de la Noiie. lieutenant, to set out with eight cannon to carry out this scheme of discovery. He «ave him instructions to establi«h the first Doat at the River Kamanistiquoya "-that i, Fort William to the north of Lake Superio^r-''1ft«r la e of\tl VooS:' '"'"'^'ri'^'^^^ "'' Indian name.§ which 1 take Kas either t^e the Indian." the ?, fnrLL Christineaux, to establish a second.and to acquire? through Z ^I"."*' *.7 ",^°'^»*'°'^ necessary for the establishment of the third at the Lake of winter: Sd rV'^'^r. 'T l'^ ^^^^^ "°*^'"«' ^— those engagedin it will be remunerated for their outlay by the trade which they will engage in • but to fol er«sVth'e nZn7; '' ," ^S^^^^.^f'^.-r-^ t^at His Maje'stysho^fdTear [he expend ; oecause the persons employed in it will have to give up all idea of trade." ZTe tZt ''rf' ^^timate of the cost of following up the establishment of these S^rDeceiSeTlTth ""."ilnf' T i^' ^'^""^^"^ ^^^'' ^^^' ^ ^^tter dated from Sjueoec, uecembei 11th, 1718,11 which is a report as to these posts : srrived^l^rv L^!'Jk ^'"'"" ^^ ^''° '"J°'"T'* ^^ **•" ^""«" °^ Sieur de la None, that having wy of the^clnoef t?^""' '^""^"'r^''"'" ^? ^""'V^ ^"* ^^^ I"«^^*'^«' ^^ ^'^ "-^"^ble to send Srn of thnriil ?^^'"''':^°^«" [Kamamioiien , and that he will send them after the return of those which he sent this spring to Michilimakinac. in search of provisions ; he discJJion'^hS^f^ porfeotly trustworthy, and in actual accord with the evidence t The dor-ment le. d»ted, Oonseil de Marine^ 7 Di^cembre, 1717. : The Governor and Intendant, respectively, of Canada. § "Takamanigen"—TakamamioUen— Rainy Lake. • . II Winnipeg, i; . 1i The Intendant Begon to the French Minister. • 261 On the point under the location of Fort ARGUMENT OF MR. M'cARTHY, Q.C, re QUESTION OF BOUNDAUY : adds that the Indians of hia post were well satisfied with thi^ ostAblishtn-mt, and pro- niised to bring there all those who have been accufttomed to trade at HudMon's Bay • that he wrote through a Frenchman who was at Point Chagouamigon, to a chief of the s'oioux nation, and he hopes to succeed in maki.ig peace between this nation and that of the Christineaux ; the accomplishment of which would put him in a condition to purRue with less risk the execution of his orders for the discovery of the Western Ocean." Then the next letter* is also bearing upon the same subject. It states that no letter had been received from these gentlemen, and at page 642 it is contmued • and there, I think the account of that expedition ends. ' ^^^^' "^^' ^^^^^ ^^ "*'*' * ^^'■^ ^^^^ ^^^^ ^^^^ ^^ ^^^^ "P o*" maintained t We have not a word about that fort again until we come to the history of the forts given at page 643. Mr. Bellin seems to have pursued the same ground, and le-estabhshed the posts which had been put here in 1717, an attempt to discover the Western Sea which was practically abandoned.J Then we will come to see what these gentlemen did. Then we come to Colonel de Bougainville's account, in 1757,§ upon which so much reliance was placed by my learned friends ; and while I do not in one sense dispute the general statements made by this officer, I am not at all prepared to accede to the proposition that they are to be taken with literal exactness because it was written after the war, after the cession, and purported to be a statement of the French occupation of the French forts during the cession, or prior to the cession ; but he speaks of them as " the Post of the Western Sea." He says: , • . " The Post of the Western Sea' is the most advanced towards the north. It is situated amidst many Indian tribes with whom we trade, and who have intercourse also with the English, towards Hudson's Bay. We have there seven forts, built of stockades, trusted generally to the care of one or two officers, seven or eight soldiers, and eighty engaget Canadiem. We can push further the discoveries we have made in that country, and communicate even with California." The language here is extraordinary, to say the least of it. It is written after the cession. Mr. MowAT.-^ In 1757. Mr. McCarthy.— It is an account of 1757, but it was not written in 1757, as I understand. Lord Aberdare.— Yes, it was published in 1757. ;' Mr. McCarthy.- Your Lordshi[) will find, at page 25 of the Ontario Appendix it was published in 1867. Mr. Mowat.— No. That is a French book giving an account of these things, and published in that year. *MM. de Vaudreuil and Begon to the Conseil de Marine, dated Quebec, 14th October, 1719. t It appears from Verendrye's narrative that this fort on Rainy Lake was re-established by him in 17SI as J *"'•''"■ °^ *•»" ^«'"°^' ""^ Canada, was one of the most distmRuiBhed Freach officers m the war which resulted ia the conquest of Canada. His Sid 7" ?"*"">*'«^ t° General de Montcalm at the tia.e it was written, and that office? testihed to the correctness of the information it contained. . The French original is given in Relations et Memoirea Inedils, etc., par Pierre Margry, Paris, 1867." So that your Lordships see they are first published in Paris, in 1867, and they consist of the statement given by this gentleman after the war was over.t nnfoisrl T °'''^' ll^\ y''"'' I-ord«hips' permission, the statement in the Untario Appendix, page 27. because it is stated to be given more fully than the other ; and the statement with regard to the Western Posts is treated of. Now V^A^^ I'Xt'' "i'^^''''® ^^^* "^^^^ ^his gentleman is speaking of was the expedition or Verendrye. Lord Aberdare— This must have been written about the year 1757, because It was submitted to General de Montcalm, who was killed in 1759 Mr. McCarthy.— Yes. if that is true, that must be so " ' - If your Lordship will look at the list of forts given, commencing at page 28 libertv to J^ amnn^r 'P"?''*"'"^ *>>« ^^noeR went first to the post of the district, fromSoetheThadfSil the"L ur'n° Tf°:^of:ei°e1l^tr;,aTed^'hrSl*iirH^'' *»|fir hunting .rounds'; they lik" wise ffl on 4eotinVW;:ncr;,sTs!*2^dt:^h7r6rJa^^^ ^^■^>"'" *° '^« ^"^ °f Shelbume. t Not after the war was over. See supra, note • ; and pp. 95, 97 ante. ADiJiit^n^l^k- ^^''■*'"^» "'»'«• .PP' 94-5 note) ootnmenoea, not at page 28, but at p 27 of the Ontario. &'strvi?° siTe'rre^r cS*'B'c^2n' *^^^ 'mmmr AROUMENT OF MR. M'cARTHY, Q.C, re QUESTION OF BOUNDARY : Michipicoten, which is on the other side of Lake Superior. Then Sault Ste. Marie, which is on the other side also ; and Terniscaraingue. Lord AnEUDARE.— Kamanistigoya is within this territory, on the south side of the height of land. . • Mr. AIcCauthy.— Yes, my Lord. Then he says: ''''*' •• There are posts where the fur trade goes on for the benefit of the King, anch as Toronto Frontenao, Niagara, Petit Portage, Prepqu'Isle, Riviere au Boeuf, Fort Maohault, Fort DuQuesne. The traffic in these Forts is not a profitable one for the King." And then it speaks of the trading posts. If your Lordships desire to have a more detailed account of how these posts were established, and why, I will give you the reference. I do not know whether you have heard that read, i, Jjord Aherdaue. — I think we have. Mr. McCarthy.— Then, beyond a general statement, I will not trou ble your Lordships by reading it. On page 11 of the Ontario Appendix, you will find the " Explorations and Discoveries of the Verendryes, 1728-1750." I think I am not incorrect in saying that purports to be this, and nothing more : that he was directed to find the Western Sea at his own expense ; and that he went, and did establish what he called forts in these different places ; that he went as far as the Rocky Mountains ; that he then returned to Quebec without having gob as far as the Pacific Ocean ; there being no pretence that these forts were kept up in any sense.* He returned to Quebec, and again, he was sent out later, and then the war broke out and it really came to nothing. It goes over several pages. I have summarized what I think yo«r Lordships will find (if it becomes necessary to read them) is the result of all that statement, and 1 think I have fairly stated it. Now, we have Lord Dorchester's statement upon this subject, which was referred to by the other side, and we will see how that agrees. It commences at page 609. . Lord Aberdare.— That is Carleton's official report. '^ ■" ' Mr. McCarthy.— Yes, in 1768. He is speaking, of course, of the past. The French had then gone, and he is .speaking of the method of the French in dealing with the Indians. There is no doubt the French had been able to obtain the sympathies of the Indians better than the English had, and Governor Carleton (Lord Dorchester, as he afterwards became) is drawing attention to that in this statement. The part I allude to is his statement, at page 611, of these Forts of the West. At line 40, he tells us about these forts. Your Lordship will recollect what he says about them is thip : " The annexed return of the French posts, of the troops for the protection of trade, •with the number of canoes sent up, in the year 1754, shews in some measure the extent of their trade, and the system pursued by the French Government in Indian affairs." When you cor ^e to Gamanastigouia and Michipicoten. there is one commandant and five canoes. These forts to the west, and all these different posts mentioned, going on to Lake Winnipeg, and even beyond that— I think, if I remember rightly, the farthest post was Fort des Prairies — these posts were said to have, officers one, sergeants two, soldiers four, canoes nine. Is not it manifestly absurd to speak of these as forts, in that sense ?t Then I need not refer again to what I called * These forto were piaintained until the cession of Canada. Bougainville mentions them in 1767, and Jefferys m 1761 (Ont. App., 27-29, 35) ; and see ante, p. 187, notes t and X. Verendrye's work in the North- west was continued by his succefesora in the command. (See ante, p. 262, n ite t ) +As to this misapprehension of counsel, see ante, pp. 187, notes t and t, 237, note *. Governor Carle- ton, who wrote m 1768, and after the period of the b'rench occupation, of events of 1754. does not eive * full view of the case. » b 264 THE FRENCH POSTS OF THE NOBTH-WKST, 1717-1768. position) was thafU "*_? ""'»^° y^v^emment (and it seems to me to be a proper occ^patio^^^^ »ny military officers. Those whom the GoCmnent aoueht^to r««.^^^^^^ ^^^ ^«*1«" ^"^^ »«"««•- edicts were from time to time i88ued,«eretKor~^Mfc^^^^^^ T'""' ^''°™ "^^ers and out the licenses prescribed by the ordinances" to ?3h nn„^ f hi i.^i? T.l''^^ '^ ''^T*« « history, extend-' trSl1e%or.le%7a;t^ d'Iberville 'he Sieur Simb,i„rr ^'Ifl^cTe^S^l^A^^r a^u?h^:SV'JL^^^^^^^^^^^ '^« ^^^^ height ofiand (as Kamanistiquia, Nepigtn, ScamiS e^\^^fu7L'^^^''^''T^' ^"^ ""''^"^ *h« pp. 187, notes + and t, 237. note *. appendix B^ereto)!' '' **'^ *="''"•" °^ *^'""«**- (^ee «»««, 266 ARGUMENT OF MR. M'cARTHY, Q.C., re QUESTION OP BOUNDARY: land belonged and pertained to the colony or province of Canada, and belonged to it as against the Crown of England ?• The Lord Chancellor. — There is a fort here which seems to me to be within the disputed territory. Mr. McCahtiiy. — That was on the Rainy Lake, I believe. The LOKD CllANOKLLOR — Yes. Mr. McCarthy. — There is no line taken at Rainy Lake in that sense.f Lord Aherdare.— One point which seems to me of weight is, that ap'vrt from Indian names, nearly all of the names of these places are French. Mr. McCarthy. — Where does your Lordship mean ? Lord Aberdahe. — Everywhere. *-■ Mr. McCarthy.--! do not understand that that is so. They named their own forts. Lord Aberdare. — For instance. Portage des Rats, River St. Pierre, Fort Rouge. You see, they either take the Indian name, or the French, which sub- sequently were altered to EnglLih. Mr. McCarthy. — The French, on their maps, call them by French names, but the English never adopted them. Sir Robert Collier. — On this map they are called by French names, just aa the forts are called by French names. Mr. McCarthy. — I daresay this is a correct transcript from French maps, but they are not so denominated by any English maps of the period. I will put them in. I do not understand thiey are so called on the English maps, even at the earliest period we have relating to the country.^ The Lord Chancellor. — What is the earliest map we have ? - Mr. McCarthy.— Mitchell's map of 1756: I mean of the English maps, Ther« are some French maps of an earlier date. I do not think Mitchell's map . goes practically farther than Lake Superior. It has the Christineaux on it. Lord Aberdare. — The Lake of the Woods is a translation of the French Lae des Bois, and Lac Seul must have been the name before it was called Lonely Lake. These names all appear to have been French, and then translated by the English. Mr. McCarthy. — Or else they were English, and translated by the French.§ Lord Aberdare. — It appears to me to be otherwise. Mr, McCarthy. — I do not remember for the moment how that is. I dare say I shall be able to find the data before the argument is closed. My learned friend has just reminded me of a fact which must not be lost sight of — that the North-West Company's people who traded from the time of the cession were all Frenchjl from Montreal, and many of the names may have been given at that time. We shall have to look at the map to see if anything turns upon that. * See on<«, pp. 187, notes + and +, 200, note *, 250, note J, 253, note * ; appendix B, hereto, + Fort St. Pierre, on Rainy Lake, established by La Verendrye in 17.''L La Nolte had established a post — Takamamiouen— there about 1717. +In the North-West, the names were, up to the period of the Cession, either French or Indian. In none of the numerous maps or bunks u»ed or consulted in the preparation of the case for the Arbitrators and for the Privy Council did any English names appear, other than —in some few instances— as the equivalents of the French originals ; and this for the sufficient reasons that no Englishman had ever set foot in the terri- the Red River before 1796 and 1799. (See appendix B, hereto). § The evidence to the contrary was quite clear, and must have been overlooked by counsel ; and see preceding note. II The enf/ages were largely French-Canadian, but the partners, factors and agents were largely British, or British Canadian, and ultimately, when in 1821 the license of exclusive trade was granted to the Hudson's Bay Company and the North-West Company jointly, the latter was represented by Messn. McGillivray, Fraser and EUice. 266 WHAT THE MAPS ADDUCED IN EVIDENCE SHEW. ounsel ; and see p.KliS cZit ^;l:;::?l^^^:^^t^;^r7^^ the,r land o^ . the been roforml to ajX". . tribJnil a "" ^^u'S'"' ' ^''" n»««'ion had then thing your Lordah^s ^^t:^s'c'ts^:/r^:^i^r^':^ -y- And ThTS obSvaUonVrni!;: wX "'"!' I "^.Y '"^-^ '^^ "«" ^^^ ^« --• refer to the map. purin bv fcr.fhr ^1 ^^''''^'' ^ ^^T '' *'"^- ^ '"« g^inj? to bearing upon tfis^o So3^ t wt ntld randta ? '"^' r^^^J'*^^'^ ^^ P*^''"' as my argument if I cannot rea.nnhv.K ^ ^ i*'"' l^""" Lordships to adopt it gations of this kind that th«rru nlVh^^ ^°'^ who have been concerned in invSsli- given rise to gr^aJer tro^b L in the sS^nf of'? '^T- ^ ^l' ^«^^>"« ^^ reliance being placed upon mL Of " Z« ^ • '"jflP^^'""*! boundaries than referred to inVtreatyS i^pora^ed n a t X^- A^^^^ ^ '' '' ^ "*' " document of that kind but man, nnhlJoi.! i * Y y> ^^ Act ot Parliament, or any rity.as many of these a"e3 ft t^alT^^^^ experience to be, the mo=.t decenHv« nntfKit'^l- . ^ "1^'''''' ^®®" P'^o^«d by so that whilst I put i^^JX^^^^^^ by^; vT]; Se' rrnci'rtoT ti^^'"' ^^"^^ i -gi'berr^v.;^Ss^a;:^^^^^^^ Lordships wi first Took ^f S. ^I" '"^P' • P"*^ '" ^^^ ^'^^er side.* If your derived^?rom it Your Lordshb^w ll%rU"V"?K^ 't^"^ ^' ^^' «^-*« -'"be (which is admitted a?terwards fte cinfined to thVt?- ^.^^P^^ ,^"t« Louisiana whole map, from west to east f Mississippi) right across the put i^by'lhe oXri^Id:: '' "" ^"^ ^"^ ^^ '^ "«^ before you. but it has been The Lord CHANCELLoa-The map of 1703 bein- one ? arst Sng^r'^yTbluTStS^th^tlt^ ""f^^'^^^ - ^^« — ^he the 49th line. That is the n^ v VkI ^- "^^? T *''^""'' °^" ^^^^ contention as to Theothermaps so far^thrHud«o^^^^^^^^^ ^ ^''''' ^" make upon that map.J ant as shewing these pTaces had Fn^.n ^ '' concerned, are principally import^ .« hon y a, to the extension of Canada Sward and LttwLTIlfH'l' ?." ,"'"'""* ""'^"^^^ conBen u' of p. 114, note. '^ It has on it tlie MS. iL" nuf thare^^17^^^^^^ '•«f«"«d ">. PP- US, 114. 117 SBelhn 8 (7awe rfe /« i;o«m««*. published 1744, and numbered 71 m the Note, on Maps. ARGUMENT OF MR. M'cAKTHT, Q.C., re QUESTION OF BOUNDARY: Lord Aberdare.— If that was not French, what was it ? The French did claim Louisiana on that side of the river. What was it, if not French ? Mr. McCarthy.— The English called it Virginia, Carolina, and so on, as the other maps will "shew- -going right through and ignoring the French.* Lord Aberdare- That was an extravagant claim, in tl.e same way as the French claim to what was east of English boundaries, as Lou: .ana. Mr McCarthy.— The maps aie not to be relied upon at all. You cannot take a map and say, because Canada is written across the head of it, that that was sub- stantially claimefl as French territory, any more thin you can take it that because the English wrote Virginia from the Atlantic to the Pacific, that was English territory, though I think the English did insist that was the proper measure of their title.* Then the last map, No. 76, is important as shewing the height of land.f The Lord Chancellor.— This is 1746 ? Mr. McCarthy.— Yes, my Lord. If your Lordship will look at the longi- tudinal line 45, you will see the commencement of what is marked as the height of land, shawing that evp.n in that early time the French geographers at all events pxetended to mark out the limits of the height of land. Lord Aberdare. — Is that map No. 76 ? ' Ml. McCarthy. — Yes. You will fina what I have said near meridian line 46. You will see a thin dotted lin . indicating the height of land. It is up at the north part of the map, very near the longitudinal line 45. Your Lordship will see it just above the lake. . . - ,'.i . The Lord Chancellor.— Wl^ich lake ? Mr. McCarthy.— A lake I cannot make out the name of. Near line 45, your Lordship will see the commencement of a thin dotted line, which I take it is the height of land. It is marked so, I think, my Lord. I mean at the very top of the map. The Lord Chancellor — Yes, T see it.| Mr. McCarthy.— That seems to run, if my sight serves me, as far as the south of Hudson's Bay. Lord Aberdare. — That is pretty near what you have been speaking of, and this is the great lake we heard of. Mr. McCarthy.— Then thcTe is another line to the west. I am not sure whether that is intended for a river or a height of land. It is not very easy to tell. I do not know whether there is a river there. It is a line north of what is known now as the Lake of the Woods latitudinal line. ■ s Lord Aberdare. — That is a river. *- Mr. McCarthy.— It may be a river. Lord Aberdare.— It is not marked as the other is. ■ Mr. McCarthy.— No, it is not marked as the other is.§ Sir Montague Smith.— It is difficult to follow. Mr. McCarthy.— It is very difficult to follow without a magnifying glass. I think it empties itself into Hudson's Bay. The Jesuits seem to have made very good maps. We hare very large maps made by the Jesuits, and afterwards copied, and now in the Library of Parlia- *It was a oase of the French ignoriug the extravagant extension of limits under the Bnglish charters. See ante, p. 252, note *, + D'Anville's Amcfique Stptcntrhnak, published 1746. t The dotted line referrsd to is meant to indicate a portion of a height of land to the north-eastwird of Lake MiBtassin, and is marked Hauteur den tcrrcs. § The map shews the line in question as a series of water communications stretching westward from the Hiouth of the Kamanistigoyau on Lake Superior, and passing somewhat to the northward of Lac des Bois. 268 WHAT T'!E MAPS ADDUCED IN EVIDENCE SHEW. Enf^lish charters. oitb-eaBtward of ment, at Ottawa, which have been sent over here for the p'.rposes of this case whioh are apparently marvellously correct. Then I refer to Mr. BowenWrS'r772 ♦ The Lord CHANCELLOR.-That is not one of the set. ^ Mr McCAUTHy.-No, that is not one of the set. We have got the original but we have also got copies of it. here. This, your Lordship wilf see ,naJS the southern boundaries of Hudson's Bay as bounded by the 49Th line * Perhan« sS^°TM^ """^ ^'? i"\?^«^°*^« portion, which is enla^e^that is vS small. It is a map made by Mr. Bowen.* ^ Lord Abkrdare.— It is after 1763 Mr. McCARTHY.-Yes, because it has the original Province of Quebec marW«H upon It. I can give your Lordship the exact date. We agree upon it of th? moT' """'"'' -HudsonVBay territory goes to"the n'orSi'of the Lake Mr. McCARTHY.-Yes; that is the 49th parallel* This is quite correct There was a mistake made on this map of Mitchell's, which has led ?o error [n a 1 ht c^e hLTatirwt '°"^T- Ji^PP^"^.^ '■'•^'^ ^^« thorough inebriation A T n l^. ^ T*^ ^ mistake. I have a dozen maps here in which it was madof One bit of this map is in the British Museum. I think bir Robert Collier.— Is it another map ? Mr. McCarthys-No. it is the same, only it is the centre of it The centre of It IS photographed to make it larger and plainer LordABERDARE.-What is this map you are putting, in ? v ^T , Mr. McCARTHY.-Mr. Bowen's map ^ ° ' . ' if ^l.^^™"^^"^— W'^at do you rely on it for ? Mr. McCARTHY.-Yes. it is after the cession. This says • IhlZZns 7ZSL "Se'i? pAT^°\^««"^i°g -d distinguishing th. British and Span" Mr%fSL?Hr'' v'-'^Vy^ '^i' the original Province of Quebec ? mation S kL J'nTjr' *^* ,^f .^he original Province of Quebec, by procla- bounds of thrHnUn.'R ^T,h«».yo"i- Lordship sees that it gives the southern Utrecht 8 aL fu f •. •^y/T-*'"'^' "''''^'"^ «^"d defined by the Treaty of Canada has no bounds assigned to it on the north •" A New r!,'„«,^ i& °^ the Known World," in which or New France has no limit on the north -and "'a N«^ 1? ^"' ?**P.°* America," wherein Canada Canada and Florida." in which Crn™extend8 to fh«nrrfh»?i„'^""-?*^r¥u*f' °^ I">""iana, with part of height of land. (Notes on Maps! Nos 77 78 79 OnSrin ^A.''"'^;?^**'V^ **"<=»' *» north of the rather Bowen and Gibson, put forward bveo,;n««l'«nH 7 ^*'?- ^"?-> ^^^ '»*««• "naP of Bowen. or *ace of these facts be locVd upl-nT'o'l tea"^^^^^^^^^^ ^4^^::t^::s;;v:o^^^^^^^^ the st Law. p. .107, note. The thorough invesiga^on referred to ^s' b^'cttL?"*'"' T.'" ^"^e ,Su,Sor. Se; a»^, evdence for the A.bitrati^n. (Bool of''rbte?onVcrm:Sts?iSVV6r SP °' ^"^""^ *»>« »longjhr4'^t^parlte m«&^^ CndS o? i*^ V"/"?' ^^^ ^^ ^ '* » «-■ P-«y Svl^nlil.'^^-J-r.- »fl- the Tr:atrof mre'or''?''li;is°Ut™f„^^^^^^^^ 1->V- to, tl'^fctTi^utcTr °* "" """"'^ "•-^°"'- N° »»-»<*« -««• -"-ked or defined by, or pursuant 269 ARGUMENT OF MB. M'CARTHy, Q.C., re QUESTION OF BOUNDARY : fii ' Where does it carry the dividing line — as far as as the map itself extends, that is, as far as the The Lord Chancellor — the map goes ? Mr. McCarthy. — As far meridian line .85°. The Lord Chancellor.— To two small points on the other part of the Lake of the Woods. Mr. McCarthy.— I should think in that respect it is not quite accurate. The 49th line goes to the south of the Lake of the Woods. The Lord Chancellor.— Yes, I should think so, nearly the whole of the Lake of the Woods would be above the 49th line. Mr. McCarthy.- Yes, but it is much more accurate than Mitchell's map, in 1755, which gives the Lake of the Woods hundreds of miles out of its place. Then Bell's map is the next map. That is 1772 ;* and the difFerence between that and the last map is that the height of land of the Hudson's Bay Company is given. It gives a wavy line here, in that respect according with Mitchell's map, that the true boundary was the height of land ; but both these mappers, so far, either place the line at the height of land or at 49°. Lord Aberdare. — No, it is north of Lake Nepiijon. -■ " Mr. McCarthy.— Yes, that is right ; the height''of land is north of the Lake Nepigon. Lord Aberdare. — Yes, but it does not come down. It rather passes to the north of the Lake of the Woods. Mr. McCarthy. — That is the way they assumed it to go : it was pretty much a straight line. I will shew when I come to the treaties, that that was the cause of the mistake between Great Britain and the United States, in taking this Pigeon River as the point of departure for the boundary line. It was on the assumption that all these lakes, as well as the Lake of the Woods.f drained into the St. Law- rence system. But as a matter of fact they do not. The Lord President.— I see by the p'etition of the Hudson's Bay Company, in 1819, page 413. that they even thought that Fort William was not in Upper Canada. Mr. McCarthy.— That was also said by Lord Selkirk in his petition. It was not, according to the due north line ; and it could not be according to the due north line. The due north line had been established as the governing point, and Lord Selkirk said, according to the decision of the Quebec court, you are trying in Sandwich as for an offence committed at Fort William, which is really outside your jurisdiction. The Lord Presideni. — "That your metuorialiat futher submits that Fort William, a trading post occupied by the said North- West Company, and the place where the alleged offences charged against hiuj are stated to have been committed, is not situated within the jurisdiction ot the courts of Upper Canada, as settled by the Act of 14 George III , cap. 83," Mr. McCarthy.— And it is so defined by the decision in De Reinhard's case. Lord Aberdare. — This map shews the course of the Mississippi more to the westward than it really was. Mr. McCarthy. — Yes, Mitchell's map also does the same thing ; the Mississ- ippi according to it, is supposed to rise between 105 and i06 degrees west. * No. 138 in Notes on Maps, Ontario Aj 122: Amap of the British Dominions in North . . App.. p. America. accordinR to the Treaty in 1763." By it Canada is shewn aa extending Hnnth-w»«t Mississippi, and northward beyond the Lake ot the Woods. t See ante, p. 107, note. 270 WHAT THE MAPS ADDUCED IN EVIDENCE SHEW. of the Lake asses to the that the S7rhlw!fI°L\K'Se7"'''°"'' "'* """''^"'^ "P. -=«Pt goe, «rh™Jbf„7Ll" -'"" '^ "■= """'■ ■" *» •->'= «f *« Wcod^, and •t th^'dal**"™'-^"' "■« '"^'8'>' »' '-" -- -0' "tended to go .o„„d there The Lord CBANOELLOR._It crosses streams. mr. MCUAinHV.— No, It IS m sections. the ifne: thrse^rr"-""-'' " *' ''"^'""'^ ^'^ C'-^P-y who 'ay down Mr. McCarthy. — No. The Lord Chancellor.-I thought it was so. d=avoteftf,TSl7he^:vid the Hudson's. Bay Company en- .ap... and th^ey sent fourl^a^^^^sr^^^^^^^^ '''''' ^ ^^^ -- Sir Mo.vTAGUE SMITH.-It was one of their maps ? map doeslf d^''wrti;;Ilht"of 1^^^^^^ V -^^-^.^^Piled by them at all. That is the heighLf land ^ * ^* '^°*^- ^"""^ ^""'^^^^P^ ^i» ««« distinctly that it mrkltnZrJ:r"""""~'^' "°"'' "'^^ ^^- ^^^^^P« ^^ -" ^ave it maps.] augondy. [i hexr Lordships referred to the !mth'o^%heTne';Hhra"i;:^^d"i:;tLot'ji '"r* '?;*"'.'?' «- ■» -'«-ir ! whom it was made ? ^^ ^'^ ^"^ *''^ ^*^' °* *^^^« "^^P [^i«cAeZr«J for Mr. McCARTHY.-That was made for the Board of Trade and Pianf..r Mr^MrAR^Tr^YT-^-^^ '- ''' «-^ of Trideterel '^^"^^^°"«- Mr. McCARTHY.-Yes, 1755 is the date. 1 he Lord Chancellor.— «ctual surveys of diSnt part of C M.i« f''^ 7"'?"°''' J"""" '*^^'^«'»*^' ^'^^'-'b. and great part of which have LtejfbeL^^^^^ plantations in America; 'i« office by the GovernVr:*:^tt^r/eTlolst^^^ Xf '' "'^" ^"' ^^^^^-^^^^^ *<> • P^ANXAxroN O.KrcK. February 13th. 1755." " Joe. Pow.a... Secretary " • I fJo you could not have a higher authoritv. whaf^var H- "«!„. • On the occasion of the Arbitration, in 1878. 271 ARGUMENT OF MR. m'CARTHY, Q.C, re QUESTION OF BOUNDARY I Mr. McCarthy. ' ust see how they mark Virginia — the two parallel lines of Virginia run right over the continent. On the other side of the Mississippi it is coloured in the same way. Your Lordship will see there is one straight lint) drawn there. The Lord Chancellor. — Oh. no Virginia does not extend this side of the Mississippi ; certainly not. There is North Carolina, South Carolina, Georgia, Mexico, Florida, Arkansas. Mr. McCarthy. — If your Lordship will roll up Mitchell's map, 1 think you will see it has written on it "The Land's Height." ^v . . , The Lord Chancellor. — Yes. • Sir Robert Collier.— Here it is, " Northern Mountains or Land's Height," —do you say that goes everywhere ? Mr. McCarthy. — Yes, I take that to be a statement of the land's height and the boundary of the Hudson's Bay Company by the Treaty of Utrecht. The Lord Chancellor. — "Bounds of Hudson's Bay, by the Treaty of Utrecht."* I see that, but you must not take it quite for granted that that relates to the whole of that red line. I do not see it niarked to the west of the red line. I should doubt extremely whether your extension of the land's height is beyond here [pointing on the map]. Mr. McCarthy." — Perhaps the other map would shew that. It did not occur to me that there was any difficulty about that thing — that it was a description of the whole of the line. The Lord Chancellor. — It is not at all evident to me on the face of the map. ' Mr. McCarthy. — Perhaps the other Mitchell's map will throw a light upon it. There is one there before the Lord President. Lord Aberdare. — The place ' f the land's height is written where mountains are figured. '", " ■ , , J Sir Montague Smith. — The " Northern Mountains." Lord Aberdare. — The " Northern Mountains or the Land's Height " go below this line. Sir Robert Collier. — There are no indications of mountains here at all. Mr. McCarthy. — This seems to be a better guess at the real land's height than any of them [referring to a map]. . ; [Adjowned till Monday morning, Slst July.] FIFTH DAY. Monday, 21st July, 1884. The Lord Chancellor. — Before the argument proceeds, their Lordships desire to say something with reference to the course which it has taken, and which hereafter is to be taken. Their Lordships of course feel it their duty to sit as long as necessary to hear arguments that may be relevant to the leal tjues- tion, but they wish to put it to learned counsel whether travelling over vague and indefinite ground does conduce at all to the settlement of the real question, wiiich is as to the actual boundaries to the west, and, if you please, to tlie north also. There have been a great many things referred to, which really have no note ' •No iuch bounds were ever settled by or in pursuance of the Treaty of Utrecht. See ante, p. 272 WHAT THE MAPS ADDUCEP IN EVIDENCE SHEW, irtV,! h!,^! on that question, but a vague and general bearing upon the claims ot the Hudson s Bay Company and so on. Their Lordships wi'sh that the argu- w^l t° 1 '''"'^ * ^'^*^' f ^ .''°'l' ^"'^'"^"'■'' ^"'^ ^^'l^t they must hear all detfils wh ch the learned counsel, in the exercise of their discretion, think really material for the determination of the true question, yet they sincerely hope that having heard those details, the learned counsel who have to follow^wiU at all events think it not necessary to repeat them Mr. McCARTHY.-May it please your Lordships : I will endeavour, my Lords as tar as I possibly can, to comply with the wishes of your Lordships, and I have not, willingly at all events, referred to that which is immaterial The Lord Chancellou.--No. we quite follow that. It is not very easy in a boundary case to draw the line, whicli nevertheless their Lordships are very desirous to have drawn, if possible. ' ^ ^ Mr McCartiiv._I will compr<3ss the few observations that have to be made about the maps, and the references which I propose to make upon the maps which have been put m on both sides. The maps that have been already referred to, and which have been put in by Ontario, shew these things so far as it is ZnarTnf ^h^P ' ^^''p n '^''- '"^\. '^^l contention, as I understand it, on the part of the Province of Ontario, is that the French had certain forts or posts in this disputed terntory ; and coming to close quarters on that particular point f.uJ% '\%\ understand they claim are, first, the fort upon the Albany River called i'ort St Uermain ; secondly, the series of forts that were built by La Verendrye m 1738, or thereabouts*; and. thirdly," the disputed fort they speak ot 7\cfl ;>«d been put up by a man whose name is now called Duluth, north of w\T^^ i?fJ^'V^-\^^^u"H\P,'°t*^^y' ^ «^*^«fi^d .your Lordships on Saturday that that old fort put up by Duluth was south of Lake Nepigon.+ Then, the fort on A^any Eiver I admit was there ; and your Lordships recollect the Hudson's Bay Company complained of it in 1715, and that the British Government after- waids insisted that the French should withdraw from thati) I sav that these maps put m by the other side shew that that fort wa.s not there 'earlier;! and that is the lirs point I draw from the maps. The maps they put in are, one of 1703, which s the first map on this point, which does not refer to that fort, though it does to the other forts and the French Mission houses. The map your Lordship has before you is the photograph which we rely upon ^ T 7^^ ^-f? CHANCKLLOR-Whether you rely upon it or not as of use to their Lordships, it 18 practically taken from Mitchell's map. Mr. McCarthy.— What I am speaking about now is forts, and I say that the absence of any statement on the map of 1703,f the three maps of 1744, and * Their erection extended over the period 17.S1-1749 a» ATr^^t »«t'?''"j>' .happened was that the EnTrlish CommisgarieB under the Treaty of Utrecht Dronosed (Joint*Al^*47^Trd"a»Tfhr* ^"""v"** " ^^'■'y*'' l«73,when it was knov.-n as Fort Tiscoutagany, M^Ju TewsK 8man°«iot1ornf°.h'/ATh **"'* **"' f^V" """^y °th«' detaiU otherwise woU-astab- the river whtrth^forViniLTtfonrJabcated""' "'" *'" ""''' *"^ "°* "* "'' ''''* ^"''«»'" P°'"- "^ 1« (B-) 273 ARGUMENT OF MR M CARTHY, Q.C., re QUESTION OF BOUNDARY : the map of 1746, that were put in about this part that they speak of, indicates the two things which I contend for.* Lord AnEUDAUE. — Before what date ? Mr. McCarthy. — Before 1703. Their contention is that this fort on the Albany River was put up in 1686 or thereabouts. Lord Aberdare. — 1 thought this Fort St. Anne was the same one. Mr. McCarthy. — But there is no fort mentioned on that map. Lord Aberdare. — I thought Fort St. Anne was mentioned, not exactly on the Albany River, but close to it. The r /er is called the St. Anne's River. Mr. McCarthy. — That is the Hudson's Bay post. -., ^-^- Lord Aberdare. — This is the French map. v.,' " ' Mr. McCarthy. — But it is the Hudson's Bay post. - ■"; ^ J The Lord Chancellor. — How does that appear ? ■' Mr. McCarthy. — That appears from the statement made of the namee of their posts. The Lord Chancellor. — Surely one may not lay too much stress upon names, buf^s it very likely that after the date of the Hudson's Bay Company the name of St. Anne would have been given by the English adventurers to one of their forts ? Mr. McCarthy. — That is on James' Bay — the bay itself, as I understand. That fort indicated there is on the bay, and not on the river. The Lord Chancellor. — That is a matter of r measurement ; but to me it seems that it is rather in the angle of land between fae estuary of the river, if I may use that expression, und the bay than upon either the one or the other. Mr. McCarthy. — There is no contention that there was any fort there. The claim is that there was a fort on what is called Perrai River, which is the Albany River. Then there was a fort upon the bay. The Lord Chancellor. — One wants really to see what the map represents. The name St. Anne I should have thought much more likely to be a French name than an English. Mr. McCarthy. — Perhaps it is a French fort, but we must remember the history of it at that date. The French between 1680 and the close of that cen- tury, had forts and other possessions upon the bay. There is no dispute about that. The Lord Chancellor. —There is an exceedingly important circumstance which we shall have to consider, which is this, that the Hudson's Bay Company themselves, in 1701 I think, proposed or assented to, as a boundary consistent •with the actual occupation, the line of the Albany River. That is one of the most important facts in the case. Mr. McCarthy. — Yes ; but what I ask your Lordship's attention to now is — and there is no dispute about it — that the French did occupy the bay, and captured six out of the seven forts erected there by the Hudson's Bay Company, and as a matter of fact gave their own names to them. The fort marked there James' Bay — and is not claimed to be a fort on Albany, Fort St. Anne, and Fort is a fort upon the bay itself the Albany River. Lord Aberdare. — On this map. Fort Chechouan are all thought to be identical. Mi-. McCarthy. — Yes, they are identical forts called by the French St. Anne and by us Fort Albany ; but on the bay, and not on the river. The claim set up is that there was a fort on the river before the commencement of 170U. * The map of 1744, "Carte de la_Baye de Hudson," and aUo the map of 1746, do, as a matter of fact, eauii shew IL6 toi'i iu quebtiou. 'iiie other maps of 1744 cto Uul at ail eiubiauo this pai t ci the terri tory— a circumstance overlooked by counsel. 274 • „ EXTENT OF THE FRENCH POSSESSION. he names of )n to now IS The Lord Qhancellor.— As marked on this map of 1703 it seems nearer to the river than to the bay, and I should say rather on the river than the bay Lord Aberdare -If you follow the words " Fort St. Anne ou Quichi- chouen, you will find that will be ou the bay rather than on the river. But the real question is whether these maps are sufficiently precise and whether it is likely there were two forts, one called Albany and this one , • ^.l ?^^^^"™I-~?^^ "''™« ^l^aoy 's not given to that fort. They do not claim that as Fort St. Anne on the Albany. Lord Aberdare.— So far as the French possession is concerned, surely it is indifferent whether it was a few miles below the entrance of the Albany or whether actually on the Albany itself. ' Mr. McCarthy.— I do not mean to say so ; but there are two or three forts there are disputes about, and two or three there are not disputes about It must be understood, my Lords, that I freely admit that after 1682, when the French invaded Hudson s Bay, and captured these forts, they had posts on Hudson's Bay which they continued to have until the English recaptured them after 1701 ■ and then that mr+.ter was brouf,'ht to a close by the Treaty of Utrecht in 1713 ' u .^^^ H"? Chancellor.~Is there any evidence of the subsequent possession by the English of those forts; Mr. McCarthy.— Yes, that is equally as clear as the statement I make All the correspondence I read with regard to the Tre^^y of Utrecht shews that the English recaptured those forts.* The Lord Chancellor.— There is a statement in 1755, at page 643,t that : "Albany River, when the French settled upon it, was nailed Quitchide Ohouen by the Indians, but we g^ve the name of Ste. Anna to the fort and river. That name lon^ existed, and it is to be found in old maps. The river flo^^s out of a lake of the same name, on the shores of which we had a post called St. Germain. The Endish built a factory there,J and called it Henley, but it amounted to very little." Mr McCarthy.-Now, to make m> self clear to your Lordships on that point about he forts I should like to say that at that time, about the commencement of the 18th century, the French and English were in possession of the Bay and shorUy before that the French had taken all but one of the seven posts which the Hudson s Bay Company had erected. Then the war broke out which ended m the Treaty of Utrecht During that war the English recaptured some of those posts, but not all. At the Treaty of Utrecht it was insisted that the French should withdraw from those, and leave their cannon, and that was agreed to There IS no doubt about that. Then, in the year 1715, following the Treaty of Utrecht, the Hudson 8 Bay Company were put in possession of those posts and An A*? T ^Z!'^''^^ ^^.'^"'''^^^'^-^'^ ^'^^'^ *^*<^ was done to their satisfactions All that I read to your Lordships on Saturday, and I need not refer to it a^aiu Ihe Lord Chancellor.— If you say that there is evidence that this fort Sfc" Anne de facte passed, I should like you to refer to it , Mr. McCarthy.— I will give you that evidence. Lord ABKRDARE.-I think what you stated was that that part of the arran^re ment was really completed, but what was not finally completed was the final ratification of the boundaries. * The Engrlish did not recapture those forts, but received those on the margin ^fh» no„ u x 7~ .nbsequent to the Treaty of Utrecht, and pursuant tolts ^ovisTonl Tho^^f the Ltfrior U'^'^'^r transferred ; they remained with the i-rench until the cession of 1763. (Appendix B, hereto" t From Benin's " Remarques sur la Carte de I'Amerique Septentrionale." t That h on the river, not on the lake. ' ' ..-. Lu""* y®^ the interior country, and the po^ts of the interior, remained in the Doasessinn «f m„ u until the cession of Canada. Appendix B, hereto. possession of the French 275 ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY: The Lord Chancellor. — I should like to see the specific statement as to these particular forts which are past the boundary line of the award. Mr. McCarthy. — In the first place^if your Lordships look at page 498* of the Joint Appendix, you will see what was insisted upon was not merely the forts but the cannon. That is before the treaty. Then if your Lordships will look at page 576 there is a letter from Lord Dartmouth.-f- I cannot give that fort separately because it was not dealt separately with. Lord Abeudare. — That is very important, because the French took a fort far to the north of that by a ship of war in 1706, during the war. The Lord IIhancellor. — If you can shew nothing specific, then the question will remain in this position, that forts were to be given up, and forts were given up. What forts ? Mr. McCarthy. — All the forts, t- The Lord Chancellor. — "AH" is a very large expression. There Iseing certain territories in dispute as to whether they were French or English property, and the boundaries never being settled, it would be very useful if we could have it shewn that on one of the sides south of the disputed boundary certain forts were taken. Lord Aiberdare.— :The order of the French King for the surrender of the forts on Hudson's Bay, which is at page 576, would seem to include all the forts " M. Jdr6mie, commAnder of the forts and straits of Hudson's Bay, is commanded to deliver up to the bearer of the Queen of Great Britain's order, the Bay and Straits, together with all buildings and forts t^here erected." Would they necessarily have included in the Bay of Hudson, James' Bay ? , Mr. McCarthy. — Yes. The Lord Chancellor. — At all events you must -not yet assume that, and if this is the fort upon the river rather than upon the bay, might it not have been retained ? Mr. McCarthy. — :It your Lordships desire me on that, I will go over it step by step, but I can prove it without that. All I say is that the correspondence proves it clearly and pointedly.^ Your Lordships will see the French line laid down on that very map before you, [viz : De V Isle's map of 1703 already referred to\. They never claimed north of that French line.§ The Lord Chanckllor. — There are two claims putdown here. You yourself have admitted in 1701 something a little to the north of that line. Mr. McCarthy. — No, my Lord, pardon me. The Lord Chancellor. — When I say, you yourself, I mean the Hudson's Bay Company. Mr. McCarthy.— No ; we never admitted it to be French. We denied it to be French, but said for the sake of peace We would accept it. The Lord Chancellor. — As a matter of fact, it was a boundary which the Hudson's Bay Company were willing to have accepted.]] * Report of the French plenipotentiaries to the Kingr, 18th April, 1712. t Lord Dartmouth to the Lords Oommiss'oners of Trade and Plantations, February 19th, 1713. + Counsel failed to specify the particular correspondence. § As a matter cf fact they did cUim, even after the Peace of Utrecht, thatthey were entitled not only to the whole of the interior, but also to such portions of the shores of the Bay as the English could not prove an incontrovertible prior title to. (Joint App. 518-16.) II By t leir memorial of 29th January, 1701, the company proposed as their southern boundary the Albany River on the westside of the Bay,j»nd the East Main Riv«r on the east side^ On a previous occasion, a.oc, cy incir rnciuonai cr lutn juiy, iVw^, tney n&d pvuposdii trie Ailit*uy \ liie l^ut^tjib Kiver boiu^' taca suggested by them as the limit on the east side. See these memorials, aivte, p. 206, note %. . m '^ ' -^--" lRY: CURTAILMBNT OF THE TERRITORIAL RIGHTS OF FRANCE BY THE TREATY OF UTRECHT. bement as to ) 498* of the merely the rdships will ive that fort took a fort the question were given rhere Iseing^ sh property, 3 could have certain forts ender of the all the forts s commanded 1 and Straits, Bay ? le that, and it not have over it step respondence Lch line laid udy rejerreti STou yourself .he Hudson's denied it to y which the Ith, 1718. mtitled not only I could not prove rn boundary the reviouB occasion, ^iver boing tnca 1701 fK 7r~^''"''^°'"'^'^^P" will see all that was changed between 1701--the war tollowing immediately-and the Treaty of Utrecht ^ f»,«f fK T ^H^^PEI'I^OR -It would be extremely important if we could see T.trlf '^•' b«'°ff F'l^n^h If you cannot shew that, but rely onV on The general words, we follow the argument, but it is not necessary i enlL^e it in Mr. McCARTHY.-The reference I gave your Lordships on Saturday does not make any distinction between one point and the other ^ «at«'^^ay. does not W0.2 • C?ANCELLOR.-If that is SO, we must consider the force of general words m connection with other thing« general Mr. McCAUTHY.--Yes. And then I would add to that, that your Lordshins will see on the map before you [De V Isle's map of 1703] that where the French f ^e^^ts^rble^^itTe: ^^^ ^^"^^ '' '^'"-' ^^^'' ^"^^ «^ ^^« ^^^ ^^ verypS^iJ^rS-St;^^^^^ Mr. McCarthy.- But far south of these posts at that date. ^ Lord Aberdare.— You mean the line of 49^ Mr. McCarthy.— No ; that is our claim. The Lord CHANCELLOR.-It would cut off the mouth of the Albany River and retain a considerable part of these forts Aioauy iiiver Mr. McCARTHY.-But I say all the forts were north of that point That is Z rt\-^ ^^^':'r? ^ ^}^ "'^^ '^'^^ <^here was any questionTbout it If your Lordships will look at the words used in 1744, at page ms : • .V." J''*''.*''^^ ^°!^ *b« o'-'lera given by the Hudson's Bay Company to their oh^ef factors in the bay m anticipation of an attack overland from Canada." ^ taeir chret factors ?\^°^^ CHANCELLOR— What is the material part of it. Alba^vF^rr'^^A'fK-~^V%*'^^Tf'^^ "H ^'''^^ ''^'^'^^^ ^^d ^^«»ncil. at leT{h?FLclfn:Z^"'""'' ^""^'^^'•*' ^"^"^^^^« English and the Lord Aberdare.— There was a fort on the Moose River River ^^^^^^"^-^«d they had put up a factory at Henley, on the Albany The Lord Chancellor.— Henley is on the north side Mr. McCarthy.— No, my Lord, on the south. The Lord Chancellor — Surely not '^!'^If*^ Chancellor— I want to know from the map where it is plain^^' ^''^^^™^:-If your Lordship looks at Mitchell's map, it shews it very • The Company, in their Memorial of 1750, »ay that Henley was 120 miles up the river. 277 ABOUMENT OF MR. m'CARTHY, Q.C., re QUESTION OP BOUNDARY: The Lord Chancellou. — There it is marked on the south side. This photograph which is taken from Mitchell's map shews it below, and the map we have been using marks it above the river and not below.* Mr. McCarthy. — Then it is incorrect, because all the early maps mark it below the liver.* Sir Robert Collier. — You say the original Mitchell's map shews it. Mr. McCarthy. — Yes, and I have another original map here which shews it — Henley Factory, on the Albany River. Lord Aberdare. — Would that be on the south side ? Mr. McCarthy. — Yes, and there are other maps where it is marked on the south side too.* Lord Aberdare. — Where do you suppose Fort St. Germain was ? Mr. McCarthy. — About the same place. In fact I have a statement that it was in the same place. The French say it was the same place, and that the Henley fort did not amount to much.-f But the fort we have been speaking of was at the mouth of the river, and sometimes called the Albany Fort and some- times Fort St. Anne. Now, my Lords, the result would appear to have been that though in 1701 the Hudson's Bay Company proposed limitations, at the Albany River on one side, and at the East Main on the other, as their southern boundary, nevertheless the changes made by the war that immediately followed, so completely altered the complexion of affairs that they insisted then on getting the whole of the Bay and Straits of Hudson. The French acceded to that and surrendered all the forts on the bay and straits, giving up even the cannon. J Sir Robert Collier. — " The Bay and Straits of Hudson " is exceedingly in- definite. Mr. McCarthy. — " The Bay and Straits" certainly meant all the forts on the bay and straits. How far back it went is another question. Sir Robert Collier. — On the bay and straits, would not take you far. Mr. McCarthy. — There were no inland forts there then at all. There is no pretence that there were any inland forts at all§. Now we come to the treaty of 1713-14, when the Hudson's Bay Company were put in possession, under the order of the King. The French King gave the order. The Queen transferred the order to the Hudson's Bay Company to take posses- sion, and they acknowledged the fact, and that is the last time the French ever •■- — » 1 _^_. * Henl»)y is represented on most maps as beinf< on the north bank of the Albany, its true position : but on Bome as situate on the south bank. On the maps attached to Mr. Montgomery Martin's works on the Oanadu and the Hudson's Bay Company's Territories respectively (the latter prepared at the instance of, and from materials furnished by, the Company), as well as on the map shewing the Company's territorial claims, pre- pared at the instance of the Company by their owu geographer, Arrowsmith, for the House of Cgramoas Committee of 1857, it is marked on the north side. These facts, with the strong probability that that position was the most favourable for purposes of defence against the French, determined its location on the map alluded to by the Lord Chancellor, viz., the Ontario Government Map, prepared for the Privy Council. I t The old maps place Fort St. Germain on the Albany, at its exit from Lake St. Anne, on the north bank, and considerably higher up the river than Henley. M. Bellia's statement (.Joint App., 643), here referred to by counsel, may be read in agreement with the maps : " The English built a factory there"— that is on the Albany. t Only the forts on on the margin of the Bay were surrendered, and not those inland. The surrender was not to the Company, but " to the Kingdom and Queen of Great Britain." (Treaty of Utrecht, art. 10), and, in view of all the circumstances enured, it was claimed by Ontario, to the benefit of the Crown, and not of the Company. And see ante, p. 190, note +, post, p. 331, note t. § On the contrary, the evidence shewed there were several, as Forts St. Germain, Abbitibi and Kemiscau, with others on the Moose and Abbitibi, and other rivers of the northern slope, and upon Lake Mistassini. (See appendix B. hereto.) 278 LIMITS OP THE FRENCH POSSESSION AFTER THE TREATY OP UTRECHT. larked on the TCTrt,'' °"i^' *'"':■!. '■'';'' ""■" """"P'"™ Hiat we hew of of the French h on nm^ftnfAfl I,ir f K-. n--4.- u n " ^ . '^- ^" ^'*^' that Complaint was re - resented by the British Conmiissaries to the French. And we do not hear anv tiling more about the French Fort whir-h th«v nail tj.^Jr "^^ ."" "^ "^a^ any- f)iRf tiPfinrl p.,* T ,"'"''" "^o" wnicn they call bt. Qermain, subsecruent to tiat period. But I rely on the maps which are put in of 1744 and I relv on Ae sta ements read of 1756, to shew that at the time of the cession this Fort St. Germain had been practically abandoned. It does not appear ^n'thelist of o wE" V ^"^''°°'" ^''^"*^^'' "^'^ i" '^^ »«fc given by the t^oFench officer* IXrdav 'lo'tW ""■' ""'^^ ^^*''^ ^'^'' «^^«' ani to which I referred on i' ESnce?: fEn:ii.:S'^5eZrf''^Ae^n°^h!t h""""^^". --.^^andoned :^tll.^l%^^J!::t^^^^^^^ '* ^^*P«"«' ^W state^iatinctly, ?T^%^°^^ Chancellor.— Where is it to be found ? na.«^S7 ^T-'''^-;::^ T'" ^*^' y^""^ Lordship the reference to that It is at nT ^nV"? '^tI ^^^^ ^ r^- ^^'^^ ^« *^ '**«r «°«- I «^"«t get the earl er one LI? P X^/o^"l.°f 1^^^ '"'^y be read. That is at pa^e 678' S The Lord cltl'c^^'n ' t^' "^ ^""^l *« ^'^^ ^^"^ ^^^s?.!?: in a moment anythj;]^ ^^^^^^^^^ :^^^ £^ ^ ^o not see with^efet^rtL-^J^^iir^ '' ^-^ ^-W ^— i^ ^of importance upto'mo^:rprt7hlt^ "^'^"^^ ^^ ^-^^^^-'^^ «*-^"^^-- *-«*« time. Mr. McCarthy.— No, my Lord. „n^ .^° -"^ ABERDARE.-They go on steadily claiming their right to possession and their legal possession, at one time or otLr. of part of HudSn's Ba? Mr. McCarthy.-No. my Lord, I think not. When Isav thev^do not I want to be correctly u^ derstood^_^ft^^ StaTrVdTir Bladen, operltfoSa exten'ded^' alf tVa°„* ptnte^'to tLret o^thrBa °' »»- .t-d« »' their inland pets, their iL^^:::l7Z iVf76T*y^f&eJ^ ^i^'^r,?r.l"'iT,°! -.--•= «ennaip ie depicted of the forts in Canada but he followinK is sufficientZ ^W J \M!*^* "°* ^•"" ''^'•' *° •?«' '"' exact list dependencies aa follows:- '■^*'"«^°° "« ">« principal post, and Pownall sets out the Nepigon and its (Two or three. One on the fliver Michipicoton. One other on the Lonj? River. And one other." D^LTJ;aS:SvTs^'LitlL'^Le''s''N^ J^ •^^ '"^r^. ^^ "•?« °' '^^ ^^^^^ °f t^e two last mentioned • (d) I^ Car^, wh ch desSion applPed a?^^^^^^ northward of Nepigo^and extendfn/to the shoris of HnH^nn '°R '^ °^ 'T^"'^ i "? '^ '""'*« "^ ''"« '''«* ''«'•" he French held thi trade ofthe inferior with Zne^^»«Zwh*^ "1'^ tl^^'A *° '* ""^ ^^ Nepigon ; (e) that to the shores of the bay, appears by thrse^eral^ml^^^^^^^ ^^^ Company confining themselves evidence. (Notes on Ma^. No« 56 70 76 99 108 Ifi ?9i f>, ^P*"^??.^" ^' ^^ ™*°y '"''e' P'ecea of pp. 580-6. 594-5, 602-3, ZIb"!' Ont ' ApV! V^ i'-aS^alSndb: B he^et)'!^ " ' "" P'"'*"""'- •^°'°* ^^P- , See ante, p. ii2, uofce }. 279 ARTiUMBNT OF MR. M'CARTHY, Q.C. re QUESTION OF BOUNDARY ; on behalf of the English, endeavoured to have this line fixed between the BVench and the English, nothing appears to have been Haid more than that Lord Stair was unable to get the Commissioners to meet. He spealtH of two meetings. At the first meeting, the commission was read, and then, at the second, the Hudson's Bay claims were preaentod. Then they never met again. Lord Stair writes to say that he had .seen the Regent, and the Regent promised that he would name a definite period for the commissioners to meet, but he never did so. Lord AnEUDARE. — What I refer to is this, that in 1720 — Mr. McCarthy. — That is the time when the negotiations were going on under the Treaty of Utrecht. At that time they were trying to settle this limiting line. - ;. •• v " - Lord Aberdare. — "The fact ig that at the time of the said Treaty of Utrecht, the French poasessed one part of the Straits and Bay of Hudson, and the £n|i;lish possesaed the other. It is very true tha the King of France had some time before conquered the English part, and it is of this, that it has been understood that restitution is to be made, that is to say, to trouble them no more in their enjoyment ; but with reg«rd to the said lands possessed by the French in the said Bay, if they have previously belonged to the English, the King will bind himself in the same manner to make restitution to them, But there must be a real and incontestible proof of proprietorship." That is at the top of page 514. Then you have extracts from M. de la Galis- soni^re's m,;,iai"". Lord Aberdare. — In the instructions to M. DeVaudreuil on tho u^^o page,t they say : " They (the English) have not yet explained themselves respecting the extent they propose giving their Hudson Bay boundaries. But it is to be expected that they will wish to stretch them to the centre of the colony of Oinada, in order to enclose it on al' aides." never we ' Joint App., p. 614. t nid., p. 515. 280 LIMITS or THE FKENCH POSSESSION APIER THE TREATY OF UTRECHT. Sir Robert Colmer.- 4' '• However that ,n.y be. HU Majesty is firmly reiolved to maintain hii right, and hiH possessions. * Mr. McCarthy.— Those were secret instructions and they do not appear to l.ave ever been communicated.- In point of fact, your Lordship will find that thev Dover were communicated.* They did not moet or present to the English com- nimsioners their claims at all.f These were secret instructions from the King to tlio otticers, but they were never communicated to them • The Lord Chancellor.- The probability is that they must have in some way or other transpired. Mr. McCarthy.— No ; I think not The Lord Chancellor.— Where do you get them from then ? " Mr. McCarthy -They were got from the French documents— the public records ot France, or some of them, and also from Quebec. We have got pos- session ot plenty of papers there. . s f The Lord Chancellor.— However, it does not seem to be of much impor- tanci-. . *^ Mr. McCarthy.— We put before your Lordships the statement of how it occurred. .u J^^ Lord CHANCELLOR.-These papers will be evidence to shew what view the J^rench took pending the negotiations for the settlement of the boundaries under the Treaty of Utrecht, but not of course any evidence that their views wore right. Mr. McCarthy -Then, my Lord, here is the Hudson's Bay statement of it at page 572. This is before the Treaty. The Lord Chancellor.— That is in 1711.J Mr. McCAHTHY.-Then, in 1714. at page 577, the representation of the Hud- son s Bay Company is : " That p,ir8uant to the 10th article of the Treaty of Utrecht they did, the beeinninir of June last, send a ship for Hudson's Bay, and therein a governor, one Captain KniKhtT and his deputy, one Mr. Kelsey, to take possession of the whole Bay and Straits of Hud- son, together with all other places relating thereto as mentioned in the said articles, they having not only Her late Majesty (of blessed memory) Her commission for the same pur- pose, together with one from the company, but likewise the Most Christian King's order under his hand and seal, with a power from the Canada Company, to deliver up the same according to the said treaty, which ship at the request of the said Canada Companv is not only to bring away the French settled in Hudson's Bay, but likewise their effects, pursuant to the aforesaid treaty, they paying freight for the same, which ship may be expected the latter end of September or the beginning of October next." . The Lord Chancellor.— It was not necessary to read this passage - McCarthy.— I thin k that is a passage which supports me. thlv T„l?nw?l*'^°* Z1!^ of course not communicated, norintended to be communicated, tothe Enuliali- . they are published m the authoritativn nonr™ fmm whiol, fho,, ho„„ u.,„ ;_...j1_ ^i!_ t V . . •'"°°» , -.»w..v.uo -D.D V.1 i;uuiso uoi. uummunicaiea, normte div *!:'.^r."X"]'i'lll\°il'l*A^''°/J*»«X« «>»■•<=« f-^*"? ^W^h they have been -reD.TnTed inThe"jointT^^"n-' BO., de Vaudreuil on the occasion of his ap- DomtoPnf f^ft ^''^*^"'="°°« "f the King, communicated to «x. u« vauareuu on trie occasion of his ap- pomtment to the Governor-Gcaerahhip. They provide for his course in various contincenci^s liablp to t h f h " T^'^^l r""^'' "•'«'' '* '"'«^* "o' be posBible or politic to await the "63^1 ofTnter^cummunS with the distant home government. (Paris tooouments, Ool. Hist.. N. Y. vol 10 dd 290 3 • wW« a!«r an extract frim the General Instructions to Vaudrem'l is given). ' ^^' ' "^* of Utr^hrfil 1?1Q °^nHTf R two quite different things-the action of the commissaries under the Treaty Frm,/^ ' '°.^'^^' *°? *il!>^oyal Inatiuotions to the Marquis de Vaudreuil, in 1755 It is true that thn bZ conS'^^f ""'h ^ • ^ •M°"'l" ?°-rP'y ^ '.^' propositions of the English comm ssaries because of the"^ Sucr^sof ^r^*"^""'"""' ''"* •* '^ "■"""''' '•"»' ">'" *>'«' ""^'''^K ^»>''t«v«' to do with the R^yri t Printed ante, p. 211. note. 281 ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY The Lord CHANCEr.LOR. — That shews nothinj^ whatever as to what particu- lar forts were delivered up. Mr. McCarthy.— Except that it says, all of them. - i-..y; v The Lord Chancellor.— It does not say all of them even. ' , Mr. McCarthy. — Doesn't it, my Lord ? -- • * ' The Lord Chancellor.— Well, which are the words that shew that ? I cannot see it. They >■ ant somebody to receive that which was to be delivered ; it does not shew anything whatever. The Loud President.— The French only intended to deliver up that which they [the English] had before. The Lord Chancellor. — It is clear that that was the principle that they went on, whether it was right or wrong. That was the principle which they meant to insist on in the settlement of the disputes. Mr. McCarthy. — Your Lordship wanted me to point out the statement of what took placo under the treaty, at the time of tl" e negotiations. The Lord Chanckllor.— Surely you went at length through those negotia- tions. Mr. McCarthy.— I thought I had gone through the whole of them. Sir Robert Collier. — 1 do not think we wish you to go over the same ground again. I do not think we want that. Mr. McCarthy. — Then, if your Lordships will look at page 510, you will find the statement I have made as to what took place with the negotiations, from ?dr. Bladen. It is dated the 7th of November, 1719, and it is at line 30, commencing with that paragraph. ' The Lord Chancellor.— What has that to do with it except that their time was wasted ? Mr. McCarthy.— \ little moro, my Lord, I think : " Our time was spent in preparatory discourses concerning; the intent of the 10th Article of the Treaty of Utrecht, relating to the boundaries of Hudson's Bay ; and at our next meeting, which will be to-morrow, at my Lord Stair's house, we design to give in the claim of the Hudson's Bay Company, in writing, with some few additions pretty material for their service,* in case the Abbe Dubois his health will allow him to be there, which I fear it will not, for he is confined at present to his bed. But I confess, [ cannot help thinking it will be to very little purpose to puzzle ourselves about settling bound- aries, by treaty, in the North of America, if the French have so concise a way of fixing theirs in the South, without askias; our concurrence ; it is to be hoped they will have the modesty to recede from this new acquisition." Then follows a further letter — The Lord Chancellor.— Now I really wish to remonstrate with you against redding letters so absolutely useless. It does not go to any point whatever. Mr. McCarthy. — Perhaps your Lordship will pardon me for referring to the next letter. There is a great mass of matter, and I will endeavour not to read more than is necessary. At the foot of page 511, your Lordship will see : " My Lord Stair has spoke to the Regent, who said immediately that the oonferenoe shall be renewed whenever we please : His Excellency then desired His Royal Highness would appoint a day, which ho promised to do. This is what the Regent has promiHed my Lord Stair once every week for four or five months past, without any effect, and His Excellency does not expect any more from the promise now, though possibly a conference may be appointed for form s»ke. I have been here near six months, and have seen only one conference, which was appointed by my Lord Stanhone'a desire ; I think there li-id * As to ^hese unauthorized udditiona, see ante, p. 169, sub-note 1, 282 LIMITS OF THE FRENCH POSSESSION AFTER THE TREATY OF UTRECHT. » that which t their time l..-7n two conferences before I came ; at the first of tliem tho commissions were read, and at the s.cnnd, my Lord Stair and Mr. Blad.n Rave i„ a momorial about the limits of tho M udson 8 Bay Oorupauy, to which no answer has hepi«. made "* 1 hat is what I desired to point out and that is tho reference we have to it which we w Srsr--''''* p""^''^ '^^""^ '^''''' "^°" '^y ^"-«- Mr McCarthy.- Your Lordships were urging a moment ago that it was im- portant to know what the statement of the French claim was The Lord Chancellor.— We have got it claim'^to i^J^EnXh"^ ""' '' ^""' '"' '^'"' '^" ^''"'^ ""'''' P^^""*«^ '^'' The Lord Chancellor.-You say so. and you are entitled to assume it but the document is before us in which the statement of the claims of the French is put out of question, and the principle upon which it is to be construed is expressed Z nnf t^ ^.^ f\T^"y terms. Whether that other document was presented or not can make not the slightest difference. Mr. McCarthy.-I think it does make a difference, and therefore I read that passage to your Lordship. " ^ »«au to tb; nni?""? CHANCELLOR.-If you could shew that any negotiations proceeded to the point at which they waived that and took up other ground, that might be important. ^ Mr McCarthy.-AU I can shew is, and I believe it to be the fact, that they did not make any pretensions of that kind to the English. Now, will your Lordships look at what I ha.e been trying to find for some time, namely, the Hudson's Bay Company s Memorial in ITSO.f It is in the Manitoba Appendix, page 24 ^ Sir Robert Collier.- We have had this before us. and I have marked it Mr McOarthy.-I am going to refer to the passage which your Lordshios seemed to require, at the foot of page 25 : ^ i^orasnips th. fZI' ^°"iJ- '°«'"°"*''«^ \»^« "se-l the best endeavours in their power to prevent ho trench making any encroachments on the British territory m those parts, and parti- cularly at the south end of the said bay. where, by the neighbourhood 'of the French hero ,s mos to be apprehended. Your u.emorialis.'a have made h settlement many years utinEtot. >f""°''''?V"''''l''''''' ""^^f ^°°«« ^'^'>'-' "^"■^'' runs at a great dXce outh into the bay and have also erected a post mounted with cannon for the defence of the settlement, and preventing the French entering the bay by any navigation down that river ; and your memorialists, on another principal river, called Albany River that like w.se falls mo the bay towards the southward thereof, and come, a gLt way So .he west, erected another fort called Henley, at the distance of 120 miles up that Hver your memorialists thereby endeavouring to guard their territories both to the south and west Sntained'a"^?"' "TIT Tu' "'^"'^ '"'''' '^"'^ ««"'^--*« '' ^our me?noriairstsTre maintained and supported by then, at considerable expense. And your memoriai.sts have in like manner for their further defence towards the wesi "— mcriaascs nave that I do not think I need read. mrrlt^ ^T^ CHANCELLOR.-Of courne, this is a document which is to the mpoBe, and it certainly refers to the posts on the Moose and Albany Rivers. and ImtTnue'^affollowr- '• I^^usf „wn-tjr:^''r'^ '" Mr Secretary CraggB, dated Pari«. 4th Ma;;:T^ for",;;iryS" ^^ '"'' '"'"'^ ^'^^^"^ "-^ '•"j'^' "" their demand,, and to make Ve'ryconBiderabW one. + See some exiracts ante, pp. 229, 230, text, and 229, note +, 230. note *. 283 ARGUMENT OP MR. m'CARTHY, Q.C, re QUESTION OF BOUNDARY : The words which you have just read seem to deserve attention : " Your memorial- ists thereby endeavouring to guard their territories both to the south and west against the French frontier." Mr. McCarthy. — Ves, tny Lord, it shews at all events that there was no acquiescense on the part of the Hudson's Bay Company, and also .shews that at this point Fort Henley, they had withdrawn from. Lord Aberdare. — It shews that the frontier must have come np uncommonly close to the Hudson's Bay. Mr. McCarthy.— So it did, my Lord. Lord Aberdare. — They were at Fort Abbitibi, which is immediately south of the bay, and you will see that there is very little distance between the fort which they erected at Moose River and Fort Abbitibi, which is immediately to the north of the height of land, and smth of James Bay. Mr. McCarthy. — The distance I will give your Lordship exactly, but that was the fort, that was the place they speak of, and that was the danger they apprehended of the French from the contiguity of (^'anada.* Lord Aberdare. — The French claim in the various papers which they put in that they have occupied all this countiy, coming from the south, that they have come up almost to the borders of Hudson's Bay, and that all that the Hudson's Bay Company could claim would be the borders of the bay. Mr. McCarthy. — That is what the French were claiming, and the EnglLsh claimed that the Hudson's Bay boundary went down to the 4yth line. That was the difference between them, and as a matter of fact the Hudson's Bay Company were in possession, and went intoithe interior as far as the Moose River, a dis- tance of 150 or 120 miles or whatever it is.f * Not from Fort Abbitibi alone was the danger to be apprehended : See the list of old posts retained, and new posts eatabliohed, by the French to the north of the height of land after the Treaty of Utrecht, in appendix B, hereto ; also a list of the posts of the North-West, established after the same treaty, and never objected to by the English Government or the Hudson's Bay Company (Ih ) ; also sec. If. of the same appendix ; and as to the position of the French and the Company, respectively, immediately before the treaty, see the Company's memorial of J 7 11, ante, p. 211,' note. t The real facts were different from this. It was in evidence, and in fact admitted by the Company, and also so found by the agents appointed in the interests of the Dominion and Mani- toba to make researches for the purposes hereof, that the Company never went into the interior in the region of the Moose, or, except so far as Henley was concerned, elsewhere, during the French regime, nor for a long time thereafter. Moose Fort was at the mouth of the river, and the very memorial of 1750 referred to by counsel sets out that the object of its erection was for "preventing the French entering the Bay by any navigation down that river . . . and to guard their boundaries to the south against the French frontier. " In a statement of the Company printed in 1857, and furn'shed by them for the purposes of the arbitration of 1878 as to these boiindaries, they say: "As long at Canada was held by the French, the opposition of wandering traders was insufficient to induce the Com- pany to give up their usual method of trading; Their servants waited at the forts built on the coast of the Bay, and there bought, by barter, the furs which the Indians brought from the interior. But after the cession of Canada to Great Britain in 1763, British traders, following in the track of the French, pene- trated into the countries lying to the north-west of the Company s territories, and by their building factories brought the market for furs nearer to the Indian seller. The Company finding their trade seriously affected, extended tht; field of their operations and sent parties to establish themselves in the interior. In process of time, all smaller opposing interests were absorbed, either by purchase or coBlition in the North- West Company of Montreal, which thus became the sole rival and competitor to the Had- son's Bay Company. During many successive years, a most disastrous contest was carried on between these two Companies." (.Joint apn. .594.) Mr. (ioschen, chairman of the Company at the time, in a letter of 12th December, 1876, to the Secretary of .State of Canada, conveying information for the purposes oi the same arbitration, says : "At the time of the passing of the Quebec Act, 1774, the Company nad not extended their posts and operations far from the shores of the Bay. Journals of the following trft time, in a letter the purposes oi 'ompany nad not ollowinff trft cannot seriously contend that Moose Fort is- AbSbf considerable distance at the extreme north of Fort riv.rtp™Ie-Jrrn,trarct AfSe'i^J; ^"' ' '»' "P"" *»' south and west against the French frontier" '^euitoues both to the Mr. McCarthy.— Yes ; my Lord forts?' '^"''^ CHANCELLOR.-Does not that imply that they were frontier Mr. McCarthy.-I do not think so, my Lord * clo.se';;1oTer''-'' ^"P"" ^^^^ they [the French] must have come very Mr. McCarthy.— It implies this, my Lord : We sav all th^ fro^. bythesenvers. and what they dreaded^was tharth7l?itt ^ pelttte |d'tire«rrttpi'^ti"ai!si:^K^ Hearne was sent down to establish a station up counrry whPch he L^ordiAf !f- ,**'*' ^^^ ^"4, one Mr In the same year, M»"hew OookinK started on a jSyTo the 4d/fv«r^^^^^ 1' Cumberland House made triere until some 15 years later. In his ionrnal nf fh?» f u^'^ district, but no settlement wai •!«.^.r«y.r-.'.. 'Aniold pedler- called C^' L^'^llfrjl^^.^ementb pedlers'Tarme^ V...O journey no mi ''ouner Deer residinff there;' that 'the was. pedlers swarmed natives were oor- rupted by the pedlers having so long resided there' and Brw>,rWV:rw """" ""' "at'ves were oor- aa.katchewau River These pedlers were both English and^Fr«ni K*v''^'^'y" settlements on the ^i'^.f^o We have not taken extracts fromTh„P„a?n-*'°'^^^ midence calculated to support counsel's theorfofprfor discover? brth'e'HrH^"''^ *?.^^« A"*" trace no d^^t foregoing [reflects the general impression produced unonn.^rmF^^u * Hudson's Bay Company, and the of muidry published histories of tl e districr^rtre ComnZ,', r ■k' ^^ P*""?*' °^ ^^"^ ^°«' OTarils, as also pubhshed 1752, 'Remarks upon Captain lMWdletonTD«fL. k'^^'^V !^^ Hudson's Bay ■ travels. „ North America' 1766." i'ioin. !'^v%%'.)''t^TA^^^^^^ l^^^^foj^^^f^^^^^^ of this question, by shewin. that the neighbourhood of the Kench, there isVoat to be aSeLn^^^^^^^ Vnt^""^ "^'l'-" ^mS h^y, where, by hi manv years since upon the principal river there SedMnn^^ w°"''°T.T*'"'* lia^e made a settW^ Zbi" *^ ^.T t^" ^''^« ''"^ ^'^'^ a fort, n'louitell wfth' camir For'^h 'h"? ^""" f ?reat d&': and prCTenting the French entering the Bay by any navigation Hn^rU. o- defence of tlie settlement tlrf"'f:J!:"-iP\' ■:--• -»«i< A'bany I?ivJr.'th^at"lik^:irfa'l^?„L'".L^\r«r.^-.!ly?"^'nemorialisTs! nu;es-u,rtha;;;H;e;:iy;::;rmeL^Sirta;':;d^ and west, against the French frontier " (Memorial nfirfio ^^^^^ .*.'''!"' territories, both to the south Council. ■') "lort Moose was on the Bay, at\he ZTth of tife VooL' Riv;r''"'*"° ^°""^«"«« before Parity 285 ARGUMENT OK MR. M'CARTnY, Q.C., re QUESTION OF BOUNDARY ; down by these streiims, and they erected these forts for the protection of their business on Hudson's Bay. That is how I understand it. In one of the papers put in by the other sidei there is a clear explanation of all that, and your Lordships will understand that readily on a moment's reflection. Those who were at the sources of the rivers could congregate their forces and prepare for an attack, because it was a very simple and easy thing to do to go down the stream and attack the people at the mouth of the stream, and that was one of the reasons why in early times they said that it was necessary to give the boundary limited by the watershed, because if an enemy or another power was allowed to come in at the source of the stream they could gather their forces together, before any preparations could be made to meet them, whereas if they had to come over the height of land, the time required for the preparation, and the time of the passage, would give notice of their approach and enable a defence to be made. That is stated by one of the French gentlemen whose memolres have been put in by my learned friends on the other side,* and it is a good and plain reason why the line of the height of land should be accepted as the line of limitation between powers in this savage wilderness. This fort at Lake Abbitibi I propose to say a word about bye and bye. All I think we have is this, that the French fort at Fort St. Germain was not there till 1714 or 1716. There is no evidence of its being there before that.f Then that fort seems to have been withdrawn, and in its place Fort Henley was sub- stituted by the Hudson's Bay people.f Then the only other fort to the north of the height of land was Fort Abbitibi,t and let me tell your Lordships when that was built. Sir Robert Collier. — Fort Henley was substituted for Fort St. Germain ?2 Mr. McCarthy. — Yes, my Lord, it is the same place, and consequently Fort St. Germain was withdrawn.-f- The French withdrew from that place and we find no mention of it,"! or any mention of their forts at a later place. Then the other fort which they had in the country north of the height of land was Fort Abbitibi. Now, that fort was erected at the time that the invasion of the Hudson's Bay was made in 1686 by a man of the name of Troyes^ He went there to attack the Hudson's Bay party, and his party erected Fort Abbitibbi, and that remained in the possession of the French until the time of the cession. That was the reason probably why the Hudson's Bay people suggested that the 49th parallel should be their boundary, because their Lordships will see it is immediately north of Fort Abbitibi. Lord Aberdare. — If this map is to be any guide at all, the country both in Lower Canada — the portion of Canada called Quebec — and, on the other side, the portions awarded to Ontario by the arbitrators is covered by French forts. •Dumas' mimoire on the boundaries of Canada, 1761, Joint App. , p. 526, whicli, on this particular point, had reference, not to the boundaries towards Hudson's Bay, but to those to the southward of the Grebii Lakes, and towards Louisiana. The Hudson's Bay Company never put forward a claim to anjr of the boundaries proposed by them on this particular grouDd, nor at all to the height of land until Lord Selkirk's time, and then on the pretence that the charter justified the claim, and invoking, later on (that is, upon the ijrcsent proceeding), the language of the Treaty of Utrecht in support This latter pretension was summarily disposed of by their Lordships as hereinbefore apiiears (pp. 216-218). fThe evidence as to all this is clearly to the contrary, as has been already set out. Ante, pp. 221, note J, 278, notes *, + and §, 279, note t ; appendix B, hereto. JThe Chevalier de Troyes, commissioned by the Governor-General to proceed overland against the English establishments on ihe shore of Hudson s Bay. The expedition consisted of one hundred men, offi- cered, under de "rroyes, by the Sieurs d' Iberville, de Sainte Hdlene and de Marincourt, and MM. Duchesml and Catalogue. Establishing a post at Abbitibi on the way, they captured, first, Fort Moose, and then Fort Rupert, and bringing with them the heavy guns from those jjlaces, they placed them in battery agaimt Furt Albany, which Was fofc-cd to capitulate. (Ont. App,, 7 ; Joint App,, &70-1, SSS-7.) 286 Ante, pp. 221, 'if* THE FRENCH OCCUPATION OF THE NORIH-WEST. I can find no reference except to these forts which I mention * r f ! in w k ti the reason why the Hudson^s Bay people proposed the ^J^ nnet^ilt^eli demarcation is because it gives to the French this Fort AhWHK-+ -ru ■?■: reference to Fort St GernTain, I have spokTof^tt'^^^d^h ve stid df^tW ^ wish to say about that; I need not weary your Lordships by reneatTntft Thin if your Lordships are satisfied about tlmt we will come to th^npff ^ i Spul't ''-' ^'^^'"^^-"^ *^- ^-^^ are^LTuVn ''V^TlS',:! ,„7'^he I^ORD 0HANCELLOR._What is Fort St. Louis mentioned in this map Mr. McCarthy.— Where is that ? m7 M^Sth?"^^.' ^' ^'"'^ f u^'T'^ ^" '^' south of James' Bay. "' InTirSmprnT""" "*"'"" '' ^^^ ^"^ ^' ^^^^" ^' the Vts of\hrHud! different na:S:s™--''^' ''^^ ^^^^ ^ "^^ "^'"^^'^^^^ -"^^ these forts by The Lord Chancellor.— It is the Moose Fort Lord Aberdare— It is called Fort St. Louis . ' Fnrf ^h ^«C™ir.-Everything they called by French names, for instance ^ork Fort they called Fort Bourbon, and Fort Albany thev called Fnrf qVAnt^ t not quite sure that they ch^ged the n^me of Lh Ruoert ^ but ^^^^^^^ "" ;Sl"ir"'^-*'"^^°^^4^^">^- ThesetltnZBj,aflt^eS over and over again, were undoubtedly in the possession of the French captured by them from the English, and were restored by the Treaty of Utrecht so Zt n tlT. /'" i-t^^' 7-^^ ^""^ '^"* I ^™ ««^^««* ^hen I^ay that all the forts on the Bay .which they did occupy were given up by the Treaty of Utrecht The other fort was built on the River Albany in 1714 and with S Jv.a^r c at fort and Fort Abbitibi, and the forts erited by VelSyetS InT fo that in 1738 there are no forts which have any bearing on the quesS whioh ym; Lordships have to decide.^ I am desirous of confining my SSsevations as much as possible to those matters which appear now to me to be importanT ~«n of ,h, .m.M, .( wi„™b .h, imguiifta of ,bi"^h{" zs'Tz 'z'if'sr'"' "' 1- They named it Fort St. .Tannnon ' ^^" "•• ''^°> ?87 ARGUMENT OF MB. m'CARTHY, Q.C., re QUESTION OF BOUNDARY: Lord Aberdare. — la this an English or a French map ? 4 i Mr. McCarthy. — A French map. Sir Robert Collier. — From whose custody does it come, the Hudson's Bay Company ? * ' Mr. McCarthy. — No, my Lord. i| , Lord Aberdare. — It is from the Depot de la Marine. Mr. McCarthy. — Yes ; from the Marin Department. Now, your Lordships will see on the right hand side is all that is .siiewn on the map of Lake Superior. Then following a chain of waters your Lordship will see the forts. The Lord Chancellor. — That is not what I have got. I have got one which is a chart of the new discoveries in the w^st of Canada. Mr. McCarthy. — That is the one, No. 84, my Lord.* The Lord Chancellor. — I do not see Lake Superior at that point. Mr. McCarthy. — I am pointing out what is Lake Superior ; but it is not marked. On the right hand side your Lordship will find Lake Superior. The Lord Chancellor. — Do you mean where the map ends ? ^ Mr. -McCarthy. — Yes. Lord Aberdare. — :For instance, it is called " Partie du Lac Superieur," Mr. McCarthy. — Yes ; it is, as a fact. The Lord Chancellor. — Then, that makes Lake Winnipeg discharge itself into Lake Superior ? Mr. McCarthy. — No, my Lord, the height of land is marked immediately afterwards. , The Lord President. — Tt does look as if the watercourse was continuous. The Lord Chancellor. — It looks as if these lakes met and discharged themselves into the Bay of Hudson and also into Lake Superior ? Lord Aberdare, — In all the maps, it is difficult to make out the different systems. Mr. McCarthy. — That is really the height of land there which is marked, but up to that time it was hardly known. I think this is the first map in which we find any mention of the height of land. All the other maps shew this water system draining into Lake Superior and being a part of the St. Lawrence system.f Now if your Lordship will follow that up to the lake called Rainy Lake. Lord Aberdare. — There is no doubt that the source of the river which flows into Lake Superior is vex-y close to the source of the river that flows into Lake Winnipeg. It is like the Severn and the Wye, which take their rise within a very few miles of each other. The Lord Chancellor, — Whether you can or cannot divide the waters at this point may be a question, but here on this map it is not of course very important. Lord Aberdare. — What is the map supposed to shew ? Mr. McCarthy. — It is supposed to shew the forts or posts which were founded or erected by Verendrye, and if your Lordship will follow it, you will find that it puts that down exactly. Your Lordship will see at Rainy Lake, Fort St. Pierre. •No. 84 in the Notes on Map?, Ont. App., p. 110: "Carte (lea nouvellea DiScouvertes dans I'Ouest du Canada, dresa^a sur les Memoires de Mr. de la Veranderie, et donntSe au Depdt de la Maiine par Mr. de la Galissonifere, 1760. " Galissoniere was Governor-General at the time. fSonie maps prior to this date shew the division of the waters properly, and some erroneously as here stated, but most of them are silent. After 1750, Mitchell's, of 1755, and other maps, perpetuate the errcir. Td this error in Mitchell's, which was the map by which the framers of the treaty regulated their procern- inKS. is ascribed the drawinir of tiie international boundary line of 1783 through the Long Ijake, so caliea, and cne intervening v.'atfira, to tiit* inuai. uui-tii-'.Ve3t.trrnuju3L jXjiiil ul tnr uan.r r-t titc t*.""*.-, t.,...^..^ ..- the head of the St. Lawrence system. (Documents relating to the Bouudaries of Ontario, 1878, p. l^ui'i notes * and J. ) The French explorers must have known the exact height of land from a very early date. 288 THE FRENCH OCCUPATION OF THE NOHTH-WEST. the different Ihat IS the farst fort. Then, if your Lordship will follow on to the next lakP which IS the Lake of the Woods, you will find south of that Fort St Charies' Then If you will go to Lake Winnipeg, you ^ill find another for on the east SK e of that ; and it you will still follow on to the west you wil find at what ia called the Lake of the Prairies, Fort Dauphin and also Port La Sle These is the southern boundary of the awaS terrS' " '" ^^' ^^'^ ^^"« ^^'''^ Mr^iCSAR^t'^'tnTl"^''"' of them are in the awarded territory ? north Fort irpferr^^ort'sf f^T?^^-' f^'V ""^ *^^ "'^^^ ^ne is to the nortn, rorc at i-ierre J^ort St. Charles is to the south. This line of fort<» i^ nn the line which is southward of the territory * °° The Loud Chancellor. -There is a Fort Caministiquia ? put ^l'JrnL?irn''iurtC„;,\h ''°«'*" "'™°"- '"^^ ^^^ Lake i» ce-ned- fSr™onThr " " -""'«' »™^h - '« as the forts are con- Mr ^rr!™ "??■■"" '' "" '"'^"'""y "hi* is material. Sir Robert Collier.— It is alto<^ether wrorur TJio r«;„ t i • , . the north but it is to the south, and the Hudson's' Bay i wrn^^"^'^' " ^^^ '^^ '" Mr. McCARTHY.-That is out of place. ^ ^' ?,'"■ ^^^^"^^ CoLLiER.-It is as wrong as possible i c..iS„™We-tad irwr-'^e^ler":.''"'' '''7 ''T" ™ "■« -'» J.„nu°nicatio„ in tlio^e days. Tliere h^o doubt l?*^' ""k ""V"'^ """""" "^ 5 ij,»KB .y mmpeflr, ana out ot this direct route, Lake Manitnlm wich ffT ""i'™'"' ™ tUfi northerly head of Saskatchewan also ,s shewn as discharging into Lake WinniW L!^ f i!!1".T1°!1°'^^ ^y Verejidrye. The ^ And yet uiaps of the greatest freoffraDhera of th.,;^ «»,n "i" "^•" 1^~ '"'" ""^son b Bay. were put in or referred to. (Notes on^XpsrO™t.App.%rm)'" *""«-E''gl'-sh, French. Italian, etc.- 11 See sunra. note +. 11 See su}wa, note f. 19 (B.) 289 ■■.ttaumMiim'Hkmmmmimt. AROUMENT OF MU. MCARTHV, QO., re QUESTION OF BOUNDARY POSTS OF I what I have said, so far as it appears to me, that there is not one fort that goes to justify in any sense the claim which is made iiere by the Province of Ontario after the Treaty of Utrecht. The only possible fort they could rely upon was the Fort St. Germain, and that fort was withdravn, as I think I have offered sufficient proof to shew.* The other forts are south of the line-f- and cannot justify the northern boundary assumed or taken by the arbitrators. :J: Here is a map which is the same as theirs only different in colour. Now as to the forts the Hudson's Bay Company occupied. That, I take it, is the next question which properly comes up. The Loud Chancellor. — There does not seem any evidence that there was any fort of the Hudson's Bay Company, before th6 Cession, further inland than this. Mr. McCarthy. — Ten years afterwards we have the Cumberland Fort. The Lord Chancellor. — That is in 1774. Mr. McCarthy. — Yes. The next fort we have is in 1790. That is called Red Lake. The Lord Chancellor. — Anything done at that lake cannot affect the limit between the provinces. Mr. McCarthy. — But it does affect the territory as between the Crown and the Hudson's Bay Cornpany.§ The Lord Chancellor. — There is no question as to that part of the territory. Mr. McCarthy. — Your Lordship will see that Red Lake was down — south of all. The Lord Chancellor. — Where is that ? Mr. McCarthy. — That is south — in the portion that was awarded afterwards to the United States. The LORD Chancellor. — I see Red Lake. I do not see the fort. Mr. McCarthy.— That is where it is put. Mr. Mow AT. — There are two or three Red Lakes. The fort was on the northern Red Lake. Mr. McCarthy. — I will give your Lordship the evidence about it. Lord Aberdare. — What is the date ? Mr. McCarthy.— 1790. Lord Aberdare. — That was included in the cession afterwards to Lord Selkirk ? Mr. McCarthy. — Yes. The Lord Chancellor. — It strikes me it may possibly be important. I should like to know where the references are. It is apparently just outside the western boundary. It may possibly be material ? Mr. McCarthy. — Yes. Mr. Mowat. — Before 1790, Red Lake was ceded to the United States. The Lord Chancellor. — It strikes me at present that this may be important. Mr. McCarthy. — Will your Lordship allow me to hand that in later. I cannot detain your Lordship for that. I cannot find the reference at the mon-dnt. The Lord Chancellor. — I am a little surprised, considering the position of Red Lake that you should not have it in the front of your artillery. Mr. McCarthy. ^I have it marked, but I have not the place where it is referred to. I know it is mentioned in two or three places, but I cannot lay ray hand upon it at the moment. • The evidence proved the very contrary. See ante, pp. 221, note J, 278, notes », + and §, 279, note t ; Appendix B, hereto. t See ante, p. 289, note *. j Dut this was only one oiemoat of the CGnsidoraiions which guided the arbitrators ia sheif Sliding. § The Company were not thereby put in any better position as towards the Crown than the other British bubjecte, whether corporations or individuals, who occupied or liad posts in the territory, and th»t antecedently to the Hudbon's Bay Company. 290 f^-i POSTS OF H.n. CO. AND N.W. CO.: LARGER NUMBER AND WIDER DIFFUSION OF THE LATTER. was on the it. The Lord Chancellor.— Then we will postpone it.* Mr. McCauthy.— If vour Lordship will kindly do that. I think I can find Ihen, there was another fort. Lord Aberdare.— Will you look at page 590. Mr. McCarthy.— It is at page 716 of the Joint Appendix, if your Lordship will pardon me. It is a letter from Messrs. Biachoff. Bompas & Bischoff agents for the Dominion: " The following are the dates, of the establishment o? the earlier posts of the Hudson's Bay Company in this district." It is a document from the agents of the Dominion, which is admitted to be correct. It is put in by both parties. It is from searches they made.f " The following are the dates of the establishment of the earlier posts of the Hudson's Bay Company in this district : Cumberland House, 1774. Red Lake, 1790." The Lord Chancellor.— And Lac la Pluie, 1790. Mr. McCarthy.— That is the next I am coming to. . ■ Mr. Mowat.— That is away in the north. . *' . Mr. McCarthy.— No. The Lord Chancellor.— Either that statement is^ admitted to be correct, or it IS not. If it is, we can take it on the admission of both sides, Mr. McCarthy.— I will state to your Lordship what we have agreed to. All in the Joint Appendix we submit to your Lordships. Sir Robert Collier.— For what it is worth ? Mr. McCarthy. — Yes. The Lord Chancellor.— You agree that whatever is stated in this letter from Messrs. Bischoff, Bompas & Bischoff is matter of fact ? Mr. McCarthy.— Yes ; I. understand it is agreed as a matter of fact it is correct. W hat value is to be attached to it iri another question. Is not that so Mr. Mowat ? ' '^.^^}^*^^^^^^^^^^^o^—^^youT opponent says so, we shall know where we are. Mr. Mowat.— We admit they are substantially correct. There are little errors of detail. The Lord Chancellor. — Do you admit it ? ' ' Mr. Mowat.— With regard to Red Lake, there are several Red Lakes My learned friend chooses to put this Red Lake away to the south, but that is not the Red Lake referred to here at all. Mr, McCarthy.— That is an arguable point, but it is a fact that a fort is established at a Red Lake. T3- J^-^tJ^^^^ Chancellor.— If that is in dispute, this statement of Messrs Bischoff, Bompas & Bischoff will not relieve you of the necessity of identifying it Mr. McCarthy.— No. All it says ia a fort was erected at Red Lake We have now to prove where that Red Lake is. We say it was in the south Mr. Mowat.— My learned friend overlooks that that Red Lake is in the United States. It is part of the ceded territories. Mr. McCarthy.— I do not overlook that at all. I perfectly well understand It 18 ceded territory, but as late as 1811 the Hudson's Bay Company granted that pany in^hUdiSt^ *'* '^* ^fttiei of the establishment of the earlier posts of the Hudson's Bay Com- Cumberland Ho , I774 M ^alw ■ .".".".'.'.".' 1790 0. Branch do ] 791 Lfto Ib Pluie , , I7'4i^ Swan River ." ' . 1790 La Crosae, Athabasca '. 1791 „„a xv.ver Woint App. 717.) Further extracts from this letter are given, antt, p. 284. note + 291 Brandon Ho 1794 Edmonton " .'".'_' 1795 Carlton " '.'.'... I797 L%o vV'innkipff '.".'.'.'.'.'.'.'.] 17i» ABsiniboils River 179Q Red River '.'.'.'.'. I799 ' . ARGUMENT OF Mil, M'CARTHV, Q.C , re QUESTION OP BOUNDARY: ceded territory tj Lord Selkirk and were treating it as their own. I perfectly understand it was ceded. Lord Selkirk's grant included this very territory in 1811. If The Lord Chancellor. — So we have understood. ' i . Sit Montague Smitu. — That is the date of the earlier posts ? ^' ■\:' Mr. McCarthy. — Yes. . v Sir Montague Smith. — And this is 1790. K The LoitD Chancellor.— Let us follow it if we can. Mr. McCarthy. — The proof we adduce is this : Will your Lordship look at page 590. That is a list in 1821 of the posts of the Hudson's Bay Company,* •STATIONS OF THE HUDSON'S BAY COMPANY, AND THE NORTH-WEST COMPANY, RESPECTIVELY, AT THE PERIOD OF THEIR COALITION, 1820-31. [Statement furniahed by the Hudson's Bay Company for the purpose* of the Arbitration.] Hodson'b Bat Company's Stations. Northern Department, 1. York. 2. Severn. 3. Churchill. 4. De Island. 6. Deers Lake. 6. Rock Depflt. 7. Island Lake. 8. Norway House. ' 1. Moose. 2. New Brunswick. 3. Kunoguniesee. 4. Michipicoton. 6, Albany. 9. Beren River. 10. Lake La Pluie. 11. Red River. 12. Upper Red River. 13. Manitouba. 14. Swan River. 16. Cumberland. Southern Department. 16. Carlton. 17. Edmonton. 18. Lesser Slave Lake. 19. lule h, la Crosse. 20. Athabasca. 21. Peace River. 22. Great Slave Lake. 6: Henley. 7. Martin's Falls. 8. Osnaburgh. 9. Red Lake. 10. East Main. North- West Company's Stations. 11. Neisquiscar. 12. Woswonappy. 13. Rupert's Store. 14. Whale River. 1. Fort William Depdt. 84. 2. Milles Lacs. 3. Fort George (Columbia). 86. 4. Williamette River. 36. 6. Ney Percys. 37. 6. Thomson's River. 88. 7. Okenanran. 39. 8. Spokan. 40. 9. Flat Heads. 41. 10. Koutunnais. 42. 11 . Rocky Mountain House. 43. 12. Fort Cliipewyan (Athabasca). 44. 13. Forks. Eraser River. 45. 14. Eraser's Lake. 46. 16. Stewart's Lake. 47. 16. McLeod's Lake. 48. 17. St. Johns. 49. 18. Dun vegan. 50. 19. Isle aux Sources. 61. 20. Fort Vermilion. 21. Fond du Lac. 52. 22. Moose Deer Island. 53. 23. Fort Providence. 64. 24. Rivifere au Liard. 65. 25. Fort Alexandria. 66. 20. Fort Good Hope. 67. 27. Lesser Slave Lake. 58. 28. Lac la Biohe. 69. 29. Isle a la Crosse (English River). 60. 30. Green Lake. 61. 31. Lac la Loche. 62. 32. Lac la Rouge. 63. a.3, Lac Oarribaux. 64. Fort Augustus (Fort Des Prairies). Rocky Mountain House. Pembina River. Moose Lake. Montee or Crossing Place. Cumberland House. Moose Lake House. Swan River. Fort Dauphin. Alexandria. Rivibre la Biche. Fala Perdrix. Beaver Creek (Red River). Rivibre la Souris. Grande Pointe. Riviere au Pembina. Forks. Fort Alexander (Lake Win- nipeg). Rivibre au Morts. T6te au Brochet. Lac du Bonnet. Grand Etifere. Lac la Pluio. Vermilion Lake. War Road. White Fish Lake. Lac des Isles. Lake Nipigon. Sturgeon Lake. Lake Lat. Scabitechewan. 66. Red Lake. 66. Lesser Sturgeon Lake. 67. Abimonde Lak*. 68. Pic. 69. Long Lake. 70. Black River. 71. Michipicoton. 72. Matagame. 73. New Brunswick. 74. Batchewanan Bay, 75. Petoubeau. 70. Sault Ste. Marie. 77. Mitsisague (Lake Huron). 78. La Cloche. 79. Island Post. 80 S. E. Lake. 81. Lake Temiscamingue, 82. Abitibi. 83. Waswauipi. 84. Grand Lac. 86. Matawacamingue. 86. Flying Post. 87. Fort Coulogne (Ottawa River). 88. Sandy Lake. 89. Round Lake. 90. Tadousac (King's Posts). 91. Chicoutimi. 92. Lake St. John. 93. Isle de J^r^mie (Mingan). 94. Seven Islands. 95. Mingan. 96. Lake of the Two Mountains, 97. OhatR. [It will be observed from this double statement, how much more extended the operations, and more numerous the posts, of the North-West Company.] 292 POSTS OF THE NOUTH-WEST CO. AND HUDSON'S BAY CO., RESPECTIVELY. MTMcSt/rit"'^ *h*-"^i\%^^'^^l River in the Northern Department. 1 .f^' "l^'^ARiHY.— There ih a Retl River in tho Northern Denartmonf Nn uTs'onf" we two forts at different times, but the onlj ^r^r one"^: „ «*„?'' ^^^" Chancellor.- Vou say the Hudson's Bay Company in 1820 had a station at Red Lake, in the United States Territory ^ ^' ' Mr McCARTHY,-Yes, my Lord.* And we also say that is evidence that mT McCrTr-~V^'^'''/J-^*^"^'n"^°'^^' *"^ ^*"°"« °ther places. Mr. MCCARTHY.— Your Lord.ship will see Michipicoton Lord Arerdare.-AH these places seem to be north. Mr McCarthy -My learned friend says that is north of Cumberland Hon<,fi Cumborknd House is reckoned in the Northern Department N^o™ 5 1? LcaTi the Northern Department. It cannot be that Red Lake ; i is the Red River Department"" P^^-^^^^-Cumberland House is reckoned in ttNiXem Mr' McCaiSh?'' v'^'^T.^-'^ ^'T '' ^" ^^« ^""'^^'^ Department, there^a^httga fori " ""' *" Cumberland Houserand is marked ment^?"'"' ABERDARE.-Why are Albany and Henley in the Southern Depart- Th?r^!rP '"'"'• ^^"''¥" ''""^ '^' «*hers went muJh furtte^r no th takelht "a^lS^yrgX p-^^i^ '' ' ^^^" '' "^^^ ^^P^*— ^^ ^ P0int1t%rt3ra\l5renttrr '^' '^'^- " '"'^ ^'^^"'^ ^^^^^^^ ^^ time?'' ^'''''' CHANCELLOR.-Have you any map shewing your forts about that Mr. McCarthy.-No ; we have no such map at all. The only rnan we had was a map ot an earlier date, and it has been mis^laid. I kiow of no o^hlr R^d kno Jth^^^t^l^^rrR^elLt^^ '"^^ ^'^^ "^^ '^ ^^"^^ --• I ^« -* borhJo^L^'"''' CHANCELLOR.-Can you shew us the position in the same nei^h- boil^od of any of these forts ? Can you identify any others ? I observe that the Rainy Lake is put into the Northern Department Mr McCarthy.— So it is. Your Lordship will see if you look at the m«n Ml-. McCARTHY.-f do not tliink there is any map to be found We can onlv tmc^it out from th e fort,. Henley U put in the Southern Depar tmeot. ^ * As to this misapprehension of counsel, see ante, p. 238, note t. 293 ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY : Tho Lord Chancellor. — Evurythinj^ we know is there. Everything wo really know is there, and then you ask us to take this word, which may very likely occur in several place.s, as referrinj^ to this particular position. Take another example to shew how very difficult it is to go by these names only. In the Southern Department I see Now Brunswick and Michipicoton. Michipicoton is put down on a part of Lake Suiwrior within the unquestionable territory of Canada. Mr. McCarthy — Yes ; but undoubtedly it was in the Southern Department of the Hudson's Bay Company all the same. They had forts north of Lake Superior. The Lord Chancellor.— If you admit the Hudson's Bay Company had forts not in their own territory, this does not go very far to shew this was in their own territory. Mr. McCarthy. — They had forts admittedly in what is now Ontario — Michi- picoton, for example. The Lord Chancellor. — This map does not help you then. It seems that as in the undisputed territory of Ontario, or Canada as it was, they had this fort at Michipicoton ; so in what is now the undisputed territory of the United State* they had this fort of the Red Lake. Sir Robert Collier. — I observe Red Lake and South Branch ditto. There are two forts — one the Red Lake, and the other the South Branch — at page 716. Mr. McCarthy. — I am told, my Lord, and shall be able to put in a document if it is denied, that the distinction between the Northern and Southern Depart- ments was that the forts supplied by one of the factories were in the Northern, and all supplied by Moose Factory were in the Southern. I shall put in a docu- ment of the Hudson's Bay Company to shew that. The Lord Chancellor. — That may be so, but the moment we see this includes Michipicoton we see it has not necessarily much bearing. Mr. McCarthy. — It has not as much force as if it had not included Michipi- coton, but I think it has some bearing, and I use it as it occurs. The next series of forts it is important to look at. The Lord Chancellor. — What is New Brunswick ? Mr. McCarthy. — It is marked on this map. It is in the awarded territory south of James' Bay. It is marked nearly at the head of the Moose River. Lord Aberdare. — That was the North-West Company's post. Mr. McCarthy. That is what they say. There were posts, I fancy, of both parties there. Lord Aberdare. -You will see New Brunswick in this map we have before us, Mr. McCarthy. — Both parties had forts at that place. The North-West Com- pany had a fort there as well. There were rival forts. The Lord Chancellor. — It being admitted that Michipicoton was in Ontario, this does not prove that Now Brunswick was not. Mr. McCarthy. — No, my Lord, of course not — not conclusively. Now, if your Lordships will come to page 590, your Lordships will find the forts the Hudson's Bay Company had at that date. It is at the time of the union between the companies. Your Lordships will find the Hudson's Bay Company's posts are in the Northern and Southern Departments — twenty-tw^o in one and fourteen in the other. Sir Robert Collier. — I observe among the North-West Company's stations, Lac la Rouge (32). Lord Aberdare. — Lac la Rouge is the Red Lake. 294 " DISTRICT OF A8HINIH0IA "—1839. irio — Michi- we see this Sir Robert Collier -No. It is called Lac la Rouge in the North- West Lompany 8 stations, and very probably it would be that station north of Cumber- land Mouse. Mr. McCarthy.-Now. I think I have done with the different posts on both sides, and I come now to the position in which the Company stood at a little ater date The next thing in point of time which I ought to refer to, I think, i» Uie formation of the Red River colony, of Assiniboia,a3 it was variously termed. There are two pieces ot evidence which I offer for that : first the evidence of Judge Johnson, who was the recorder there, as I said. The Lord Chancellou.— What is the date ? " Mr. McCarthy. -1838, 1 think it is, my Lord. Sir Montague Smith.-Ls that the date of the foundation of the Colony ? Mr. McCakthy.- Yes, my Lord. ^ The Lord CHANCELLOR.-That is the date of Lord Durham's cok .aission ? Mr. McCarthy.— Yes, about that. I propose to say a word about that. Mr. MowAT.-I do not admit the propriety of looking at Judge Johnson's evidence. It is m the Manitoba Appendix, and it is ea: parte evidence, given be- fore a Committee of the House of Commons of Canada quite recently The Lord Chancellor -Yes, but there is so much that would not, accord- ing to the strict rules of evidence, be admissible ; and the nature of the enquiry i» one which cannot be limited by strict rules of evidence Mr. Mowat.— No; I quite admit that. The Lord CHANCELLOR.-It would hardly be of equal importance with a. a public document, if one should be found, tending in the opposite direction Mr. McCarthy.— They do not— they quite aA-ee. The Lord Chancellor.— We shall see. ° Mr. McCarthy.-I will first point out this, if your Lordships will allow me. if nT^*^^^^"^"~ ® '^ "^"^^Se Johnson's evidence to be found ? A ) endix f ^^^*^^'~^^'' evidence commences at page 70 of the Mi^nitoba »?® i*^^" Chancellor.— What was Judge Johnson's position? Mr. McCARTHY.-He was Recorder,! but now is a Judge in Lower Canada. It your Lordships will look at page 73, you will see this : " It, waa in the year 1839, oa the 13ch of March, at a General Court held in the Hudson 8 Bay House, London, that the District of Assiniboia was erected, and was declared co-extensive with such portion of thn territory "-these are the words of the Order-'- granted to the late Thomas, Earl of Selkirk, on the i2th of January. 1811 as isnowwithm the domains of Her Britannic Majesty. That h what constituted 'the District or Assimboia, and it is constituted de facto. Whatever its precise extent, it has certainly been recognized by a series of acts by the British Government." The Loud Chancellor.-As far as the Hudson's Bay Company's claim i» concerned, it that is correct, they claim to be entitled to make this district in 1839.§ 1«'i7*>T,!' A*'"" "*'?lt''°"i'^«rf?!?'' *" ^ Ronge-Lac la Ronge. (Hudson's Bay Company's map« of 1850 and tin'I'H^dwX.y )' * ' """" '^" Company', territories accompanying £lr. Mo^?^omor7M*r .^.III'^'?*'/* .'"'?' A "•*'"?^°' °^ *^'* witness, cited in the following pages, in favour of the view that the so Sorlanimif ^?h°-^°l* ^''' * P'^P^^'J^ constituted colony of the Hu'lson's Bay CompInT with n the hp!f?^ ™»''* "{'.'''''' ''*5*"*^°'r«««'*'e'JI'nperialracog as such, is fallacious, not borne out bv Bearing upon the point, before the Board. And see ante, pp. 241, note +, 297, note *. : The Company had no authority to make such an appointment. See ante, p. 241, note +. V- J.^' I* noteworthy that the aBsumed power to erect such a district in this n.mrk«r wa- nof ..♦tain"*'-' Comnii^v"l?J°hI'J amaigauiaiiou oi tue Hudson^n Bay Company and the North- Wegt'Coiiipany ^'o company had been aocomphshed, and a license of exclusive trade granted to the united body. /6il 295 one ARGUMENT OF MR. m'cAUTHY, Q.C, re QUESTION OF HOUNDARY ; Mr. McCarthy. — Yes. Lord AnERDAUE. — That did not touch the territory that wa.s settled by the Award. Mr. McCarthy. — No ; but it goes up to the boundary line. It recognizes the Lord Selkirk grant. The Lord Chancellor. — Of course, as it came from the authority which made that grant, there is no wonder it recognized it. Mr. McCarthy. — Then we h'nd this colony was recogi'ized on several occasions by the British Government. They sent out troops, as Judge Johnson tells us, and he gives the history of this.* The Lord Chancellor. — You admit Assiniboia. whatever the authority that made it, is to the west of the disputed territory. Mr. McCarthy. — Yt , my Lord, because south of the disputed territory was then the United States. Lord Aherdare. — It is not the present District of Assiniboia ? Mr. McCarthy. — No ; it is south of the water communication which forms the boundary, and it takes in a little to the east of the line at the north-west angle. It does not take in all at the west. The line at the north-west angle is the arbitrator's award, and to the east of that there is some little portion which is part of Lord Selkirk's grant, which took the water communication up through the centre of the Lake of the Woods, so to that extent it did encroach and pass over the important point of departure, and I look at it as a document, with refer- ence to all that happened, of the very greatest consequence. Now I will go to question 303. The Lord Chancellor. — You say it included a small part of the Lake of the Woods ? Mr. McCarthy. — More than that ; where does your Lordship mean ? Lord Aberdaue. — Just at that little black line going through the upper part of the- Lake of the Woods. That is the eastern part of the c^ranc to Lord Selkirk, and therefore that does come within the district of Assiniboia. Mr. McCarthy. — It is an irregular piece of land, but at all events the im- portance of it is that it is to the east, and many miles to the east, of the line of the north-west angle of the Lake of the Woods. . The Lord Chancellor. — I suppose you do not ,say that anything took place about this Assiniboia which made it part of Canada. Mr. McCarthy.- -No, but I say it was not Canada. Your Lordship will see at that time Canada was making no pretensions.f Your Lordship will under- stand that ? The Lord Chancellor.— Oh, yes. Mr. McCarthy. — They recognized the colony of Assiniboia.| Now I will read question 303, page 72 : " Was the colony of Assiniboia recognized by the Imperial Government and in "what way 1 The existence d« facto of the colony of Assiniboia was certainly rejotfnized • There was no recognition. See ante p. 211, note +, poBt, p. 297, note *. + The pretensions of Upper Canada subsisted from the foundation of the Province, and had been publicly assorted from timi) to time, as— in addition to the Order in Council, and the proclamation of 17'Jl— by Lieutenant-HtvernorSiracoe, on several occasions ; by tiie Chief Justice of Up[jer Canacia in connection with the Lord Selkirk troubles ; on the occasion of the De Reinhard and other trials, etc., etc.; and the rights of the Province, and of British subjects generally, had been throughout successfully maintained by the North-West Comuaay of Montreal, as against the Hudson's Biy Company. The latter Company had never succeeded, nor had its gratitoe, Lord Selkirk, in giving effect to their pretensions to exclusive terci- torial rights iu tiiis region. t There is no evidence of any such recognition. See ante, p. 211, note t, post, p. 297, note *. 296 DISTRICT OF ASSINIBOIA •1839. in a variety of w*ys, and ia the moat authoritative manner, by the Crown of England, in a Herie8 of acts that admit of no doubt whatever. They sent the 6th Regiment there in 1846 or 1847 under Oolonel Crofton. They were sent by orders of the Duke of WelhuKton to occupy that place, so that in view of any trouble in respect of the Oregon xx .. r^ _ 1 I > . . . wiVi 299 AhauaiENT OF MR, M'cAHTHY, Q.C, re QUESTION OF BOUNDARY Mr. McCahthy.— That is at the head of Rainy Lake, he says. The particular portion which ho speak.s of, he says in answer to the next question [Questim 348], is at the head of Rainy Lake. The Lord Chancellar. — But there is nothing on this map to show that. You see the question is : " Were any settlements made on Rainy River or Lake of the Woods t" And the answer is : ' You cannot call them fettleiwents. I have known pccentric individuals who Hettled there, one of whom was a Mr. McLeod, but there were no settlements of any importance. About the Rat Portage and Fort Frances there were several half-breed families settled " Mr. McCarthy.— I am told there is only Rat Portage ; and it is not of much consequence whether it is at the Rainy Lake or the Lake of the Woods. The LoKD Chancellor.— This gentleman .speaks of several French half-breed families settled there almost on this part of Assiniboia.* Mr. McCarthy.— I will now go to the evidence before the House of Com- mons, in 1857. This is not printed among the documents before your Lordships and we shall either have to print it or perhaps your Lordships can refer to this copy. It is the evidence given before a Select Committee of the House of Commons, in the year 1857, on the Hudson's Bay Company's claims. It goes into the whole of the claims of the Hudson's Bay Company — in point of fact, into the whole of their claim, rights and privileges. Chief Justice Draper, the Chief Jus- tice of Canada, was present and Was examined as a witness. Sir Montague Smith. — What have you there, a manuscript ? Mr. McCarthy.— No ; the original document itself. It is the report of the Committee on the Hudson's Bay claims, with all the questions, answers, and appendices, and so on ; and it is in the year 1 857. I will refer your Lord.ships to the evidence of the Right Honourable Edward Ellice. I think he was then the chairman of the Hudson's Bay Company.f He speaks about the grant to Lord Selkirk, and describes it. Sir Montague Smith.— Was he not connected with the North-West Com- pany ? Mr. McCarthy. — I think that either he or some one of his name was con- nected with the North-West Company. Sir Montague Smith.— Was he the Chairman of the Hudson's Bay Com- pany ? Mr. McCarthy. — Yes. Mr. MowAT. — My friend referring to this places me at a great disadvantage. I have not had the opportunity of following this report. The Lord Chancellor. — Probably you will be able to follow it as we go on, Mr. McCarthy.— At page 340, or rather more strictly speaking, it is about page 341, question 5931, they speak of purchasing back from Lord Selkirk, and at question 5985, page 345, they speak of the price they paid. In the same state- ment which has been laid before this Committee, I o'bserve an item of £84,111 paid to Lord Selkirk for the Red River settlement. I stated just now it was £100,000. I thought it was £100,000, but I find it is £84,000 odd. The answer is " That is the money actually paid to Lord Selkirk with interest added to it. The honourable gentleman is awar.j that when merchants make a purchase they open an account ijotn rort rrances auj Ivnl I'oilitga w«ie ouUide the limitii of AaHiaiboi*. t Before the amalgamation of the two Companies, he had baen one of the partners of the NorthWest Company, of Montreal. 300 THE HUDSON'S BAY CO's. " STATEMENT OF RIGHTS." 1850. show that. i-West Com- the North-west L'^'theTo °i',":jr:"„f °' '^ ^ »'"""■»' f-° J"dge J9hn,„„ giving a report Mn McCart™ Nr^W^'"',' '"•'" "" t^"' "^""S "" *« question. pu Jin the''con*;fr""'""'-'""" °""^ ^""^ '" ''■'«' *.* thero were some di. Company\ Rilhta paSsSgill K9+ ''/ the statement of the Hudson's Bay lo be their rightr '^ """* "''"''' '"""narizes what they claim v' ^S"!,"""^ SMlm—That is in 1850 > . . ife details in this dZment addreted t^ the ZZ ll "* ""' P""-""*' """> "" my hands. It gives t^T Cdsnn-, R,„ p ' "1 Commons which I have in fitted to the attorned ItXitor^^Sr 'li^Z'tui ''t''' " ^"^ "l^^l^-^pwastU^^ fen^^'"'''* have been riffhtfully claimed b/thTFrlch a^'fe ifn^ ' u^i'- '=lt™t'^ ^^ "'« Hudson" Bay Ca r,?i determination.. But if the Hudson's B™,Bpanva«^et^ fh "?°'' ***? ^"^L ^^f^"* »« " ^Sg ^0 d it h f. **''' ?"^l'il°" °^ **■" boundaries should bSrrXo the Pr^vP 1° ^V^^- ^''*«* JuBtice of siootl by botli parties that the detBrminaf;..., „f n,„ n"..'-:" . ", . "^"^ ""^'Yy Council, it beini? fiirth«>„„^„. th7n!!i"""''',""'u^''''' *'"' Pf'ceeding would be the best ;m')drorHpf«^^f5'''''"^""''V''y'''^«o'«fato rl "'^ "-eal 8ub ect of controversy. • • • CounseT wm^Irl rt^J^""" "« i>^at which is, or ought to be Company. " ^- (counsel would be heard on behalf of CaAada, and of thi' 301 B#*sssiaai«*'fc»* ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY; the annexation of it to the Dominion. Here it is annexed to the statement, and it was referred to the attorney and solicitor-generals with that statement of claim, and they gave their opinion that the claim of the Hudson's Bay Company was well founded. Lord AuERDARE. — Yes; but that opinion also embodies some words which you cannot ignore. At page 618, line 20, tli^re is this : " In the case of grants of considerable age such as this Charter, when the words, as is often the case, are indefinite or arobiguoua, the rule is that they are construed by usage and enjoyment, including in these latter terms the assertion of ownership by the Company on important public occasions such as the Treaties of Ryswick and Utrecht and again in 1750." Sir Robert Collier.— The opinion they gave is that the important question of the boundaries might be the subject of a quasi judicial enquiry. . Mr. McCarthy. — Yes. The Lord Chancellor. — You conceded just now, did you not, that this map shewed that it was French territory ? Mr. McCarthy. — No. The Lord Chancellor. — You referred to it as the nearest post to Moose Mr. McCarthy. — Yes; but I never conceded that it, was French territory. What I endeavoured to state was that that was taken possession of as an act of The Lord Chancellor.— I thought that you conceded that it was French territory ? . <. . t « Mr. McCarthy. — No ; the French never lost possession of it. It was one or those which they ought to have given up, but they never gave it up. It waa taken possession of as an act of war. The Lord Chancellor.— Well, but with regard to this map at all events, whatever else appears about it, one thing is clear, that the coloured portion included the Hudson's Bay Company's territories. Mr. McCarthy. — All the awarded territory is in there. The Lord Chancellor.— Apparently all the awarded territory is in there. as you say, and a good deal more. , . , . ^ j- i j Mr. McCarthy. — Yes ; a good deal more to the west which is not disputed at all.* Will your Lordship kindly tell me whose opinion is attached to the House of Commons document that you have in your hand ? The Lord Chancellor. — There is an opinion of Sir John Jervis and Sir John Romilly. „ -r , . , ., • -^i. e Mr. McCarthy.— That is the one I am looking for. I thmk it is with refer- ence to the extent of the territory and the boundaries. It is on that map your Lordship sees that the opinion is given, and that is the extent of their claims. Lord Aberdare. — Is that opinion given in the Joint Appendix ? Mr. McCarthy.— It is, page 26. That is merely an extract. The Lord Chancellor has the opinion in full. The Lord Chancellor.— I do not see that this has any reference to the boundaries. , . , t i. n u Mr. McCarthy.— If your Lordship will hand it to me I think 1 shall be able to find it for you. _ ; ^^ j-^-.-f-j !._ ii,„ p.»..:«„„ «{ Ontario. ™hioh. b? virtue as well nf tlm French possesBion m of AoMorSe"lmMriar6rown and Parliament respectively,^^ to the northwesterly watershed and sources of the Saskatchewan. C02 RY: sment, and itement of ^ Company ords which le words, aa ed by usage le Oompany bnd agaia in it question it this map jt to Moose I territory, an act of iras French was one of ip. It was all events, 'ed portion is in there, ot disputed ;hed to the 'is and Sir with refer- ; map your ' claims. The Lord •ence to the k I shall be !h possesBion u erfy watershed THE HUDSON'S BAY CO's. " STATEMENT OF RIGHTS," 1860. ,f the this The Lord CHANCELLOR.-The only words that refer to the houndaries company s territones are these, which occur in their Statement of Rights : .K^Mrfy^*^^" •**1'' g>'«°t the company have always claimed and exercised dominion aa absolute proprietors of tlie soil in the territories understood to b. embraced by the term, of the grant, and which are more particularly deBned in the accompanying map Ind they have also claimed and enjoyed the exclusive right of trading in those tefriSes." That is all that is said. Mr JVIcCarthy.-No ; if your Lordship will look a little earlier you will see : •' We were honoured with your Lordship's commands " T. If^^ CHANCELLOR.-I was referring to the statement. ' • Mr. McCarthy.— 1 was referring to the opinion i\..I^l^Zl'^%lT'^''''K^^"'' ^^^^P^'^.r P^^^^^d^ ^'^ ^^^ statement and the papeis sent There was the passage which I mentioned just now, and there soothing whatever bearing on any question of boundaries after wr;dsrand? L it??' ^ obvious as anything can be that it did not refer to the attorney boundaries "^'°' ' ' ^"''*'''' °^ '^^ '^''''' ^^ ^^« "gh*« ^^^ «l^i™« a«d Mr. McCarthy.-I think I can point it out to your Lordship, with deference The Lord CHANCELLOR.-The real question was whether tC had or Sad ^LiorwatrkTd"^'"^' ^""^ '' '' "^^' ^^^'^'^^« '^ ^^^^ ^-«- u;iZ\t That is plain enough. A k" iJbisS'^"" t^°, ^1*'°* T^ °' * t"^""' ^"-^^^ ^^^ ^^"-^ September last, from Mr. A. K. Isbister —that is the gentleman who was opposinjrthe Hudson's R*v nnmna^^ enquiring in what mode Her Majesty's Governl'nt intend to geefft^^Zw lution of the House of Commons, and whether in the event of any" reference to a i uSl nbunal, it will be necessary for the patties interested to appear by couasror otherwTse to furnish evidence, and if so, of what nature. Mr. Hawes concluded by stainTtSmi our Lordship requested that we would take these papers into our Syco3ao^^^ I take it that it means the territories claimed. The Lord Chancellor.— No, it does not seeit^doea''^''''™'^""" ^''"' ^"""^"^^ ^"^ *""^ ""' *" ^^ °°' ^ ^^^""^ y«" will The Lord Chancellor : -. ; That is what the Law Officers gave their opinion upon Mr. McCarthy.— Your Lordship sees it says : II AT_ XT ^ I • • . . . t.„->.u"^'' ^'=^"-~ ^"^c'"«i°a ay siAtiu^ iimfc your Lordship requested that we wmilfl t«e these papers into our early consideration, knd inform you whether we are Tf oZ?oa that the rights claimed by the Company do properly belong to them " ^ .S0.3 Hi "^^Si>SB^^ ^ I^I W< B B>MKi Bte.iS^te^ ARGUMENT OF MB. M'cARTHY, Q.O., re QUESTION OF BOUNDARY ; Accompanying that was a statement of the territories claimed, read the following : Now let me " In the event of our entertaining a doubt on any point raised in these papers, Mr. Hawes was to rrquest that we would advise your Lordship in what manner the opinion of a competent tribunal can be obtained on the subject. " In obedience to your Lordship's command, we have taken these papers into our consideration." ,,| J-l„ Now, what are the papers ? The paper marking the territorial claim was one of them. " We have taken these papers into our consideration and have the honour to report that, having regard to the powers in respect to territory, trade, taxation and government claimed by the Hudson's Bay Company, in the statements furnished to your liOrdship by the chairman of that company, we are of opinion that the rights so claimed by the com- pany do properly belong to them." > r ' • : J . The' Lord Chancellor. — Did anybody ever hear that a court of justice waa taken to express an opinion on that which was not before it ? And in the opinion of the Law Officers there is not a trace that the question of the extent of the rights, claims and boundaries was before them. There is a large general question whether they have or h ive not their charter rights. Mr. McCarthy. — There is more than that. V , rr The Lord Chancellor. — The question of what the powers in respect of territory, trade, taxation and government were, the Attorney and Solicitor-Gen- erals could form an opinion upon, and they had the means of doing that ; but what means had they for judging of the extent of the boundaries ? There is nothing. Mr. McCarthy. — They had the map. They had the limits of the water- shed. At that date two questions were submitted to the Law Officers of the Crown for their opinion. 1st, Was the charter invalid ? Chief Justice Draper did not contend that, representing the people here.* And then, 2ndly, What were the limits up to a particular point ? Then the Law Officers' opinion was taken, and the company was asked to make a statement, and if your Lordships will pardon me for apparently persisting in this, it seems to mc! one of the ques- tions submitted to the Law Officers was, not as to the trade merely, but as to the extent of territory, and that it was considered by them well founded. The Loud Chancellor. — I have no idea of any such question being sub- mitted to the Law Officers. It seems to me perfectly clear that it was not. Sir Montague Smith. — Then, subsequently, the opinion of the Law Officers was taken as to whether these questions could be put into a separate enquiry, treating them entirely as in doubt, the Law Officers giving reasons for thinking they .should be construed into a question of boundaries, and the Law Officers snid that that question might be made the .subject of a ^wasi judicial enquiry. Mr. McCauthy. — Yes ; but Canada declined to do so. I began by saying that it was tlie oj)inion subsequently taken of the Law Officers. If it had been * Counce'i quite misapprehends the position of Chief Justice Draper on the question. This is made clear by the Chief Justice's communications, at the time, to the Secretary of State for the Colonies: " Jn the last interview with which you favoured me, I took occasion to advert to the question of boundary . . , as one wliich required to be settled as a necessary preliminary. Whether it would be desirable to sever this from the more general question of the legality and validity of the Charter, is a matter I Hhnuld desire to leave for your consideration." " A careful perusal of it [the Charter] will suggest many doubts whether it be not altogether void. But . ._ . for the moment conceding that the indt-finite deucrip- tiijii oi kilts Ltiiiituiy pui^oi'iiiig 10 Do giciiibC^ Qooo nob vici^tc cnu gr^iit," c^c. (Joiiib ^\pp. i^)5 j ^^pp. ^^' Report of Select Committee of the Imperial House of Commons on the H. B, Co., 1867, p. 374). 304 NE00TIATI0N8 WITH THE IMPERIAL GOVERNMENT. Zrroen'tnoZI*" "' ""^ '"" O*-- had settled the matter, that »„„,d .ea,ijt?r ?o™nr:^" rSefriU" :^i'rt '- ^^r " '^ the Crown had been agreed to bv tho Hni«! Af n ' ^ i^^- ^^''*' *" address tp into the legality of ceTtai^^l'L^latr ald^^^rrred^rtt^HuJ" ^^^f^ Company under their charter. Then he askrho^rfW 1 ^- • x"'*^^ ^^^ Mr. Hawes. the Under-Secretary, replies on tL^TndoltoE'^ '' '" '^ ^'^"'^• M,e;t?^So;^= ;^ -^j::^ tr£!^ ^^i^z^^rr- powers claimed and exercised by the Hudson's -i. r™,™.,. r "5?"'^ ",' "sftain Ore, to acquaint ,„u that the su^iec, is atlZnt uYder^a'tta '"""''' '' '^"' :S'iwf rr ttrs h^ufa^rtheJ^ * "l^"*^ °' -°'°«- there is not the least trace „fTt " """"^ " ''"P"" "" '» b™»*' mons by furriehing your Lordship with a stSeLnt of the rS s to ^hicfthT °' ^''"^ consider themselves entitled, and the extpnt tr, wl^vwi, • u. *^ *"® company recently been exercised in reiSn to the sLeraT hi« 7 "^^ ' "' at present or have lution, I have the honour to foiwa 3 to you a statement T t^T "Kf'^ ^" '^'^''°- trade, taxation and government claimed anTexerctedX the H?L"?^S *'/° *'"'*'"'y' the continent of North America, accompanied S a X of ^0^^ A ^^>°^ ""^ the territc.ies claimed by the Hudson's BavOomnan^ T^ l l!t ^?»«"°a. «« which them by King Charles tie Second;^ co o^ured Ireen the otlrttJsf t" ''•'; ^'•^'^*^? '° and those of Russia yellow." ^ ' ^"**^" territories pink, . .*^\LSJ!^Vj:l!^K2l7^ ^^■i^Pjf.'°b«'-> ffli>- (Papers relating to the l^^ t. ». ... .,„„r . to be printed, 12th July, ISSo/p. ,S.) ' The mao^referrad' tnln th^ i «' "''T^^ ^^ the House of CommonB 20 (B.) 305 ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY That was a pretty clear statement that they understood that they were to furnish a statement of their territory. Sir Montague Smith. — But the Law Officers were not considering the way in which that affected the boundary. The LoKD Chang ELLOii. — And the controversy as to whether they claimed the disputed land is another thing altogether. Mr. McCahthy. — Your Lordships will see I think that it comes pretty much to that. I will refer to the Joint Appendix as shortly as possible, just to trace the history of this subject, shewing what they were claiming at all events, and I want to shew that it was perfectly well understood by the Ministers of Canada. At the Joint Appendix, page 168.* Sir Barnes Peacock. — For what do you refer to page 168 ? Mr. McCarthy. — That was for the opinion as to the geographical question. They did not give any opinion as to the boundaries at all. Then at page 273 there is a letter from the Duke of Buckingham (who was then Colonial Secretary) to the Governor-General.f He says : " Her Maieaty's Government will be willing? to recommend a compliance with the prayer of the address so soon as they shall be empowered to do so with a just regard to the rights and interests of Her Majesty's subjects interested in those territories. They are advised, however, that the requisite powers of government and legislation cannot, con- sistently with the existing charter of the Hudson's Bay Company, be transferred to Can- ada, without an Act ot Psrliament. Before such an Act can be obtained, it is necessary to consider the position of the Hudsop's Bay Company. The Company have held their charter, and exercised privileges conferred by it, for 200 years, including rights of govern- ment and legislation, together with the property of all the lands and precious metals, and various eminent law officers consulted in succession have all declared that the validity of this charter cannot be justly disputed by the Crown." Then, at page 274, the Under-Secretary writes to the Deputy-Governor of the Hudson's Bay Company, under date 23rd April. 1868, that the Duke of Buck- ingham and Chandos — " has had under his consideration the address from the parliament of Canada to Her Majesty, praying that Rupert's Land and the North- West Territory may bo united with the Dominion of Canada and placed under the authority of the Canadian parliament, and the letter from the Governor of the Hudson's Bay Company, dated the 25th of January, on that subject. Her Majesty's government think that it will be right to comply under proper conditions with the wish expressed by the parliament of Canada, and they propose to introduce a Bill for the purpose into the Imperial parliament. They desire, however, to pay due regard to the interest of Her Majesty's subjects already concerned in the territory, and with that view they will be prepared to make provision for any reasonable terms which may be agreed upon with the Hudson'a Bay Company. I am directed to call your attention to the negotiations which took place in 1864, between the Secretary of State and the com- pany, as recorded in the correspondence referred to in the margin [setting out several letters], and I am to request that you will state what are the terms which the company would be prepared to accept, proceeding on the principles then adopted, namely, that the compensation should be derived from the future proceeds of the lands, and of any gold which may be discovered in Rupert's Land, coupled with reservations of defined portionB of land to the company." * The document appearing at that page is the Memorandum of the Canadian Commisaioner of Crown Lands, 1857. f It is dated 23rd April, 1868, and has reference to " a joint addresafromthe Senate and House of Com; mons of Oanuda, praying liie annexation to Canada of ituport's Land and the NorthWost Tcrniufj. (Coma. Journals, Can., 1867-8, p. 367.) 306 THE B. N. A. ACT, 1867.— THE RUPEKT's LAND ACT, 1868. oner of Crown StJ^^'lhSSJV'^^'Z'" ^ '^^t«'- i'^^"^ Mr. Goschen to the Secretary of fttate 1 have the honour to acknowledge your letters " Sir KonERT COLLIKR.— We have had this letter. Mr. McCarthy -I beg your Lordship's pardon, that was not the letter I rnif'i;! 1-*^ *" '""''• ?o"^' '^y''''' ^^'•^•'hip goes back to look at the Act of ?f *■ Sr"^!^"'^ CoLLiER.-That is the British Columbia Act Mr. McCarthy^-No; the British North America Act. It is the Act of Confederat.on I refer to the sixth section for this purpose. It may be important otherwise with reference to Lord Durham's commission : ^ important fnrn.r,i?^ ^"J^ ^^^^^ Province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the province, of Upper Canada and Lower Canada shall be deemed to be severed, and shall form two separate provinces." The question there is what weight is to be attached to the words "as it exists at the passing of this Act." Then, section 146 says : w„ "^'«^*" ^«'a^f"l for the Queen, by and with the advice of Her Maiestv's Most f^oTZ Rn "'^?r°"' "'^ Ad*^'-««««« 'rom the Houses of Parliament of Canada and rom the Houses of the respective Legislatures of the colonies or provinces of Newfound Ir .^v oiT Edward Island and British Columbia, to admit those colonLs or province* or any of them into the Union, and on Address from the Houses of the Parliament of ' Canada to admit Rupert's Land and the North- Western Territory, or eTther o^ hem n?o the Union, on such terms and conditions in each case as are in the Iddresses expSs ed ana as the Queen thinks fit to approve, subject to the provisions of this Act." ^^^'^"'^' Provision is thus made for the inclusion of Eupert's Land. Then we come to the Eupert's Land Act, which is at page 545. and which has a ^ery inXLH? bearing upon the question here. It says: ^ important «j.. '' ^.'^efeasby certain Letters Patent granted by His late Majesty King Charles the Second in the twenty-second year of his reign, certiin persons tLei named were in corporated by the name of 'The Governor and Company of Adventurers of SJ^Lh iBg into Hudson's Bay,; and certain lands and terrftorfes, ri^hH goTernm^^^^^^^^^ Ir V^^r^r'' ^'^''^'''' ^'•«'^°»»'«««. powers and authoritifs were^heX granted or rurportedtobe granted to the said Governor and Company in His Majest/JdoSn ons °n North America; And whereas by the British North America Act. 1867 it was /amonZ other things) enacted that it should be lawful for Her Maiestv bv and w,twV« H^ and consent of Her Majesty's Most Honourable PrivyToLn of address from Vh! Houses of the Parliament of Canada, to admit Rupert's l3 L° Ve n" h Z*e'° Territory, or either of them, into the Union, on such terms and conditions as are in the t SlSTcr An^d'wh" ""Z^T'y *»>-^fi* *o ^PP-ve. subject to the provisions 1;^ R */• 1. XT ' f-°.** whereas for the purpose of carrying into efiect the provisions of the sad British North America Act, 1867. and of admitting Rupert's Land iZ the said Doramion as aforesaid, upon such terms as Her Majesty thinks fit to approrf it is ex pedient that the said lands, territories, rights, privileges^ liberties franchises p^wer and urtntre'dTo R *'m ' T't?""! ''''^ '""^""^ S'-^"^^^ ^° '"^^ «-d Company should Se Zl ^ i^'' ^^Jf *^' ^^^ l>«i"and successors, upon such terms and conditions as vi.» "^A '^ ^^^'e^oje S'^acted by the Queen's Most Excellent Majesty, by and with the ad r,.!f„r_!!"ltl*^^?^^« .?P'"*-1 -d Temporal, and oLm^;ns! Tn thS^ .Jesent ;ii"'m J'.'""'" "'*""' """ "^ ^"° aucnonty ol the same as follows • 1. This Act may be cited as The Rupert's Land Act, 1868. I ill 307 i^S-'^:ES!^a?K?s AROUMENT OF MR. m'cARTHY. Q.C, re QUESTION OF BOUNDARY *' 2. For the purpoBes of this Act, the term • Rupert'n Land ' shall include tho whole of the lands and territorieH, held, or claimed to be held, by the said Governor aud Company." , Now, whether they were rightfully held or not, it is quite plain that having regard to the document which I produce, and which I will Hhew in a moment was communicated to Canada, they did claim to hold the watershed.* The Lord Chancellor. — I see the word " held " is included as well as the word " claimed." Mr. McCarthy. — Yea. , . ^ The Lord Chancellor — Do you say that that would imply the title you claim? Mr. McCarthy. — Yes : " for the purposes of the Act." The Lord Chancellor. — That raises an important question cf construction. You will certainly have something to do to satisfy us that the merely putting territory in a map of this kind was sufficient to shew that it was meant to be transferred, although it was de facto held by the province. Mr. McCarthy. — I would say, Hrst, it was not de facto held by the province; then, I say it was de facto held by the Company ; and, thirdly, I say, whether it was de facto held or not, it was claimed by the Company.* We must look and see what the object of it was. It was known when Canada was confederated, that so far as Ontario was concerned, it was taken in as it then was, and I will point out by and bye, that according to Lord Durham's commission it did not go farther than the height of land, if it went as far. The Lord Chancellor.- -Lord Durham's commission, if I remember right- ly, carried the Ontario Boundary beyond their blue land, [referring to the col- ouring of the territory claimed by the Hudson's Bay Company, on the map pro- duced by them, to tJie House of Commons Committee, J857]. Mr. McCarthy. — I was speaking of the western part. The Lord Chancellor. — But it is important to know that. Mr. McCarthy. — I understand that my friends, when addressing you on that point, contended that the true meaning of that was, not to the shore, but rather to the Hudson's Bay territory.-f The Lord Chancellor. — No, that was an earlier document, which, if it stood by itself, perhaps would suggest that view, but Lord Durham's commission is expressly to the shore. | That is an extremely important point, and no doubt you will not overlook it. * The position of Ontario in regard to this contention was, that the second section of the Act should be construed as if it road : "For the purposes of this Act, the term ' Rupert's Land ' shall include the whole of the lands and territories rightfully held, or rightfully claimed to be held, by the said Governor and Company." It is conceivable that the Company may have held some portions ot territory dt facto, but yet witliaut colour of right, and tliat, as to other portions, they might have been rightfully entitled, and yet never have come into possebsiun. t There was no such contention. The very contrary was claimed on behalf of Ontario aa well before the arbitrators as before their lordships. i^Boundary description in Imperial Commission to John George, Earl of Durham, Captain-General and 6overnor-in-Chief of the Province of Upper Canada, 30th March, 1838. " Our said Province of Upper Canada ; the said Province being bounded on the east by the line dividing that Province from Lower Can- ada, beginning at a stone boundary on the north bank of the Lake Ht. Francis, at the cove west of the Point au Baudet, in the limit between the Township of Lancaster and the Seigneurie of New Longueuil, running along the said limit in the direction of north thirty-four degrees west to the westerninost angle of the said Seigneurie of New Longueuil, thence along the north-western boundary of the Seigneurie of ' Vaudreuil, running north twenty five degrees east, until it strikes the Ottawas River, to ascend the said river into the Lake Temiscamin^ ; the said Province of Upper Canada being also bounded by a line drawn du« north from the head of the said lake until it reaches the shore of Hudson's Bay; the said Pruviuceof Upper Canada bemg bounded on the south, beginning at the said stone boundary between Lancaster and New Longueuil, by the Lake St. Francis, the River St. Lawrence, the Lake of the Thousand Islands, Lake Ontario, tut: n,:vcr --JiKyatn, vrurtju laiis ^trK-.i-^j jii-jt,' xjftrvr i::iir, kuu kivi:^ iiir lutuulc ur luat ian.r ; ■•:* -••• 308 LORD DURHAM'S COMMISSIONS, 1838.— THE RUPKRT's LAND ACT, 1808. o M well before I .l,i?L ^^Cf «"/;-N?;,'"y Lord, I shall not. Now, I nm going to contend, and i nfLr-r ^'"'^'"'"P -^'^ **^ ''"'=" '^'^«'^^« *^° ^^>" rea«onableL,s of my propose at RunVrVrTnVl'7 ""P^t'*"^ ""^fter in.leed fur the weUare of the confederacy Ire mSnr nnn^; M I, '' *^'^"!^ ^^^^ '^ ^^^ transferred. Nothing could be and I sIvTh^f n " ."f a question of this kind should be permittee! to arise, offhe Snster RuZV T '", '^'^^ W^"". ^r^''''' ^^ '^' ^'^' ^"'^ ^^' *he purposes hwh„ H I '. T 't;' ^'"'"^ "^^^ *'^^"^*^- I^ ^«« * well-known claim put forward by the Hu,l8on s Bay Comoany. They claimed to go the height of land Their claim w«^ disputed, but wW does parliament say ? Wo say that parliamen Z Do'*- ^"'^ '?/ P^'^T "V*''« ^'^ "^^''^^ ^^« to be the basfs of the? ansfer Jo the Dominion Ruperts Land must be defined. Now, how is it deHned ? For the TanraTl U at JL^'h' T'^'' n '' ""^ ^"P-t s Land, or' whether iJ be not liu^rt' iVny d^ii^ed,""^;^^^^^^^^^^ '-''■ ^' ^" ^^^^ *^« Hudson's^ Bay ?^"" ^.°!'7'^^^^ SMITH.-This was a purchase in fact. on it mv r'^^rrr-^K* ^l?"'^ ""'T' ^"* ^^r" '^'^^ t" hear my argument up- on It my Lord, I hope to be able to shew you that it has another bearing. Majefty in the S pi^ce "" """ '''" ^'^ ^""'"^ ' '' ^'' '^ ^"^^'"^^^^ '■■ ^- a separate colony"' ''"""-'^ "" ^ P""^"« ^^ *^« ^'-^ = ^^ -- -^ ™«de nf .P^™ w??'^^™^"~I*' "^^ T'l^ " separate province.* The Dominion is made up of several provinces. Amongst the new provinces was Rupert's Land.* ^ Ihe L.)UD OHANCELLOR.-Youare contending that the Act speaks of territory which was not at that time under the Dominion of Canada. terruory Mr. McCARTHY.-What I submit, with all deference to your Lordship is this t was important when this new colony was to be brought into the I?ominion inl^r'/^f''"''^ •.' "" ^T^P^^*" ^' *° boundaries. Canada at that time perfectly understood its position. Its attention was drawn to it. and alfhou-h thev have proceeded as though this Act had n ot been passed, still, upu.. ?he whole, thl^ deilZTnr"pr^a\^n?:rd7 w\"t^.?re^^^^^^^^^^ CanX" ^the s.„.e date, aleo p. 130 note) • ' ^ "*^ oommiBsione contain no boundary descriptione whatever. (SelarUe, fc : -^".^Tt ^^ t^'r^^'^'ZI"^'^^'^^ " "»?. North-Wesr Territo^L" ■' '"set 1 ^as 309 I AUOUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY : TEANSFEl accepted it. Are we to suppose that Parliament would throw this as a bone of contention into Canada without sayinjij : We will define the boundaries, and we will define them just as the Hudson's Bay Company has laid them down and claimed ; it will not hurt Canada, and they will go into Canada whichever way it is. Sir Barnes Peacock. — When you speak of Canada, do you speak of Ontario ? Mr. McCarthy. — No ; Ontario was bound by it. Lord Aberdare. — I was going to ask that. Had Canada then power to bind Ontario ? Mr. McCarthy. — Ves, we submit in fact they had. Canada was composed of representatives of the whole of the Dominion, including Ontario. There was not any protest on the part of Ontario ; they never objected to it ; they never entered a protest of any kind whatever. Sir Barnes Peacock. — This was addressed to the two Houses of Parlia- ment, not of Ontario, and therefore Ontario was not necessarily bound by it, except it was legislation and it takes away their rights. Mr. McCarthy. — Ifc has the force of legislation in this sense. The petition addressed to the two Houses asks that this colony shall be transferred. Now, what was the colony ? Surely it was for the British Imperial Parliament to say what the colony was, and they did declare what the colony was. It is a colony within the limits described by that map, about which there can be no dispute.* On page 445 your Lordship will see in the Rupert's Land Act this passage : "3. It ahall be competent for the said Governor and Company to surrender to Her Majesty, and for Her Majesty, by any instrument under her sign manual and signet, to accept a surrender of all or any of the lands, territories, rights, privileges, liberties, franchises, powers and authorities whatsoever granted or purported to be granted by the said Letters Patent to the said Governor an J Company within Rupert's Land, upon such terms and conditions as shall be agreed upon by and between Her Majesty and the said Grovernor and Company." Sir Barnes Peacock. — That says " Rupert's Land." Mr. McCarthy. — Yes, but Rupert's Land for the purposes of this Act means all that they claim, f And it goes on : " Provided, however, that such surrender shall not be accepted by Her Majesty until the terms and conditions upon which Rupert's Land shall be admitted into the said Dominion of Canada shall have been approved of by Her Majesty, and embodied in an address to Her Majesty from both the Houses of Parliament of Canada, in pursuance of the one hundred and forty-sixth section of the British North America Act, 1867 ; and that the said surrender and acceptance thereof shall be null and void, unless, within a month from the date of such acceptance, Her Majesty does, by Order in Council, under the provisions of the said last recited Act, admit Rupert's Land into the said Dominion. Provided further that no charge shall be imposed by such terms upon the consolidated fund of the United Kingdom. " 4. Upon the acceptance by Her Majesty of such surrender, all rights of govern- ment and proprietary rights, and all other privileges, liberties, franchises, powers, and authorities whatsoever, granted or purported to be granted by the said letters patent to the said Governor and Company within Rupert's Land, and which shall have been so surrendered, shall be absolutely extinguished ; provided that nothing herein shall prevent the said Governor and Company from continuing to carry on in Rupert's Lind or else- where trade and commerce. * It was disputed by Ontario. t All that they rightfully claim. See ante, p. aote 310 TRANSFER OF THE N. W. TERRITORY AND RUPERT'S LAND TO THE DOMINION, 1870. 5 It shall be competent to Her Majesty by any Order or Orders in Council as aforesaid on address from the Houses of the Parliament of Canada, to declare that Kupert 8 Land shall, from a date to be therein mentioned, be admitted into and become part of the Dominion of Canada, and thereupon it shall be lawful for the Parliament of Ganada, from the date aforesaid, to make, ordain and establish within the land and terri- tory so admitted as aforesaid all such laws, institutions and ordinances, and to constitute Buoh courts and officers as may be necessary for the peace, order and ?ood government of Her Majesty a subjects and others therein; provided that until otherwise enacted by the said Parliament of Canada all the powers, authorities and jurisdiction of the severaV courts of justice now established in Rupert's Land, and of the several officers thereof, and of all magistrates and justices now acting within the said limits, shall continue in full force and effect therein. Now if your Lordship will allow me, I will refer to the first address at this stage whickis to be found at page 266 of the Joint Appendix.* This is the one pasTed immediately after Confederation, and it is important upon this part of the case Mavmg recited the 146th section, to which I have referred, they say : 1 "j^u ^° *^e':e/*";e most humbly pray that Your Majesty will be most graislously pleased, by and with the advice of Your Most Honourable Privy Council, to unite Eupert'a Land and the North- Western Territory with this Dominion, and to grant to th. '>arlia- ment of Canada authority to legislate for their future welfare and good government ; and we most humbly beg to express to Your Majesty that we are willing to assume the duties and obligations of government and legislation as regards these territories." That was the aarlier address, that gave rise to the correspondence which passed between the governments at great length, and which culminated in the further legislation to which I am about to refer. Now at page 275 Sir Robert Collier.— We do not require that correspondence ' Mr. McCarthy.— No, my Lord. I am not going to give you more than ia absolutely necessary, at least so far as I can understand it. Sir Robert Collier.— What page are you now on ? Mr. McCarthy.— 275. Sir Robert Collier.— That is the second address ? Mr. McCarthy -No it is a « Memorandum of Sir George E. Cartier and the Honourable William McDougall, Canadian Delegates to England." It is dated the 1st October 1868 and the Rupert's Land Act (to which it refers apparently) had been passed just before. Sir Montague Smith.— The Act puts Rupert's Land, as regards gettine into the Dominion, on the same footing as the North-West Territory. It was first to torn part of the Dominion. On the pnt-P.hase, when Rupert's Land Act passed. It termed a part of the Dominion. Then subsequently it came to be entered as a province. Mr. McCarthy.— Oh, no, you will see that the Dominion is made up of piovmces. Then there is a provision made for taking in the organized provinces, such as British Columbia, and so on. a r . Sir Montague Smith.— What became of the North- Western Territory ? Mr. McCarthy. — That was also brougho in as a separate province Sir Montague Smith.— But still it was brouf^ht in O * (Jouruti'cw,f cw.StVpTe.y':) '''"'''* ""' """"^^ °* °°'"'"°"' "' ^■'"'"^'^ ^«" ^^--°-. ^«6r. 811 ARGUMENT OF MR. M'CARTHY, Q.C., re QUESTION OF BOUNDARY Mr. McCarthy. — Of course it belonged to the Imperial Government ; it was not a part of Canada.* Sir Montague Smith.— It was a part of the Dominion. Mr. McCarthy.— Oh, no, the Dominion was at first limited to the original five Provinces. Then all that great country up here [describing on the map] was either in Rupert's Land or the North- Western Territory. Then provision was made for bringing in Rupert's Land and the North-Western Territory, at a subsequent dato, upon petitions from both Houses, but when they were brought in they would come in as independent provinces.-f- Then they would have to be organized, of course under Dominion powers, and provision was made for that. What I draw your Lordships' attention to particularly now is this minute of Sir George Cartier and the Honourable William McDougall, saying : " We have the honour to acknowledge communication of a Minute of Council of this day's date, appointing us a delegation to England to arrange with the Imperial Government the terms upon which Canada may acquire Rupert's Land, and to state that we have much pleasure in accepting the mission. We would, however,, beg to call the attention of the Committee to the terms of the recent Act of the Imperial Parliament * to enable Her Majesty to accept a surrender, upon terms, of the lands, privileges and rights ' of the Hudson's Bay Company, which declares that Rupert's Lstud, for the pur- poses of that Act, ' shall include the whole of the lands and territories held or claimed to be held ' by the Company." Shewing that their attention was directed to it : " We would also call the attention of the Committee to the terms of the British North America Act, which provides for the admission of Rupert's Land and the North-West Territory, or either of them, into the Union. We respectfully recommend that we be authorized to arrange with the Imperial Government for the admission of the North- West Territory into union with Canada, either with or without Rupert's Land, as may be found practicable and expedient." Then, there is the Report of the Committee of the Council upon that. They recite the authority, they recite the very words of the Act, which is all important as your Lordship will see, because it was not done without their notice and know- ledge. Here they say : We are disputing what the Hudson's Bay Company claim, and the Imperial Parliament have stated that for the purposes of the Act the land which is transferred to it has been defined, and they draw special attention to that ; and the Report of the Committee of the Council quite comprehends the point. The Lord Chancellor. — I do not quite follow these documents. I see here no evidence of any dispute. Mr. McCarthy. — But it shews they understood that the Rupert's Land Act had this wide definition. The Lord Chancellor. — If it is to shew that these words were in the Act, I do not see how it is material, because that is beyond all question. Can you say more than that ? Mr. McCkRTHY. — But it shews that they knew their meaning and appre- hended their force. • Legally, the North- Western Territory was composed of such lands of British North America, out- side of the ooUinies or provinces of Newfoundland, Nova Scotia, Prince £dward Island and British Col- umbia, as formed no part of Canada or of the territories of the Hudson'^ Bay Company. Hut its limits had never been defined, and this gave occasion to the Dominion, after this territory and the territory of Rupert's Land had been brought into the Union, to wrongfully claim, as being comurehended in the one or tbs other, sxt^nsivs rejriciiH clsimsd b" Ontario to Havp btiRH within the tiTidounted liinit?. of Ui}*^-r Canada, and to bo now within Ontario. t They were to cume in, not as Provinces, but as unorganized territory. See ante, p. 309, note *. 812 LIMITS OF THE PROVINCE OF UPPER CANADA. The Lord CHANCELLOR.-That does not seem to advance you a step. We ^oTi ff . Tr? '''^ *^^^«' ^'^^ °f ^^"'•^e they must be presumed to know what the effect of them was. Mr. McCarthy.— I am sorry if your Lordship thinks it unnecessary, but it does appear to me important as shewing that Canada perfectly understood what she was doing. "^ The Lord Chancellor.— How could Canada be ignorant of it ? r.nn^l' ^^^^J ?it^'''V"^^" f""^ occupying our time then by shewing that Canada understood the effect of the words in the Act. Of course they must be taken to have done so. The Lord Chancellor.— I do not see how it is of the least importance Sir Montague SMITH.-The Act of 1871 makes provision for the Parlia- ment ot Canada establishing "new provinces in any territories forming for the J™reof'"° Dominion of Canada, but not included in any province Mr. McCARTHV—There may be territories not in the province. . . ^'': .™TAGUE SMiTH.-Territories within the Dominion, not in the chaotic state which has been mentioned. Mr. McCarthy.— That is so. Sir Montague SniTH.-That is what I was saying just now. I thought you corrected me and said that could not be, and that what was not in the Dominiou was to be formed into a province. Mr. McCarthy. ^No my Lord, not in the Dominion originally. " '■ f]..«« / ^ONTAGUE SMITIL-That I am quite aware of. They seem to have put these territories, the North-Western Territory and Rupert's Territory, into the (rown first, and then into the Dominion, and then it was afterwards carved into provinces. * Mr. McCarthy.— Portions of them sliced into provinces Sir Montague Smith.— That is what I meant. ' ^' Mr. McCarthy.— I thought your Lordship meant that Canada included that country at that time. was going on to refer your Lordship to page 221 of the Joint Then I Appendix. The Lord Chancellor.— Is there any authentic map which shews Upper unde^r Act'on798 ? * ^^^ ^'"'^' " ''"^^^ ''''' ''^'' '""^ ^^«*"«*« Mr. McCarthy.— Yes, there are numbers of them, but unfortunately, mv Lords, none of us have a copy with us. J' J n,„. '^1'% ^T° 9«A^CELL0R.-It is rather to be regretted, because if one saw a be useful '°"P*''*'" '""^ ^^^^ ^^^^''^ "^' ^"^ then a map of that kind, it would Socili We ;™ool\o'l "' '' "^''' '' '^"'^^ '' ^'^ ^'''' Geographical Lord ABERDARK-They have them all collected there for examination by any one who may wish to consult them. "^ The Lord Chancellor.— There is an Act passed in 1798 which diyided inKdivil^ wisf;il^fvP* P^''T'^''^7''^^^r"-* '°'" *^« ^«"«' diviBion of this Province. » The last preced- I 313 ~ ^tKKSSssSfiK^s^T*;^^?, , -^ ARGUMENT OF MR. m'cARTHY, Q.C, re QUESTION OF BOUNDARY. Upper Canada into a number of territories and districts, and attention has already been directed to the 40th section of the Act, which says : " That the Counties of Essex and Kent, together with so much of this Province as is not included within any other District thereof, do constitute and form the Western District." That would lead one to expect that the Counties of Essex and Kent were the last defined counties to the west, but that west of them there was an in- definite district which was not included in the counties, or in any other than the Western District, and it is hardly probable that that would have included the northern part adjoining Hudson's Bay.* Mr. McCarthy. — I think I am correct — my learned friend will say I am not, if he differs — that all the claim made under the Act was that it took in to the height of land. Mr. Mow AT. — I do not agree to that at all. The Lord Chancellor. — It is not to be assumed that your opponent would agree to that at all. But what we should like to see is some authentic map of some subsequent date showing what these counties are. Mr. McCarthy. — By to-morrow morning we will try and furnish your Lord- ships with that. The Lord Chancellor. — What is not within Upper Canada, you would say is not in Ontario ? Mr. McCarthy. — Yes. Your Lordship will remember the time of the Lord Selkirk trouble. He objected to b4 tried for offences committed at Fort William, claiming that the due north line was the boundary, and the answer made by the authorities was that up to that point Upper Canada had been in the habit of exercising criminal jurisdiction. The Lord Chancellor. — But that would be clearly within the Western Dis- trict under this Act, through not within any county. But what strikes me as of importance is to know whether those counties included anything north up to James' Bay. Mr. McCarthy. — I thinTc there is a map in existence in London which would shew that was not so. The Lord Chancellor. — One would like to see that. Mr. McCarthy.— Yes, mv Lord.f Then, as tothe question of boundary being an important one, I would direct your attention to page 221. Your Lordships will remember, in 1857, the claim of the Hudson's Bay Company was clearly defined, and put forward in the presence of Chief Justice Draper, who attended on behalf of Canada. This is a letter from the Under-Secretary to the Governor of the Hudson's Bay Company ,+ and I ask your Lordships' attention to the latter part of the 4th paragraph, at line 35 : * Ontario claimed that it unquestionably did, and, among a mags of other evidence in support, pointed to the proclamation of 1792, referred to in the precedinR note, which declares that the County of Kent is to comprehend all the country, not being territ >ries of the Indians, not already included in the several counties hereinbefore described, extending northward to the boundary line of Hudson's Bay, including all the territor- iei to the westward and southward of th-^ said line, to the utmoHt extent of the country commonly called or known by the name of Canada." By the Act, the County of Kent was confined within narrower limits, but the other larger territories, " extending northward to the boundary line of Hudson a Bay, which tormeriy formed part of it, were included in the unorganized part of the Western Uistnct. The expression "boundary line of Hudson's Bay "here used, has been judicially decided to be synonymous, for the put- poses of this case, with " shore of Hudson's Bay." t No such map was, at any time, produced to their Lordships. ;:: Dated, 20th Janimry, IPA".. Sf^as. Paps. Can., 1868, No. 8. 314 THE QUESTION OF BOUNDARY AS AFFECTED BY THE RUPERT'S LAND ACT, 1868. ascertain hv^S^"" •°''*** **""* ^'' Majesty's Government consider it very desirable to Ihen the Company acquiesce in that, by their letter at page 223 21st Januarv p.ny'ta vfrtue S°E *1^Z"" "'•'>»'"»» »' "■« "«''% »f *» cl.to. of the Com- fee?— SES??'^^^^^^^^^^ 8ibility."+ raised at all it muat be by other parties on their own respon- Sir Montague SsriTa-What do you cite that for ? ant ,u«tfof ^re'^n-l: *rtr.f«re '"''""" °'*' ^"""^'-^ ™ " <-P»'- ?f ^^^^^^"^ COLLIER—Nobody would deny that. "That the settlement of the boundary line is immediately required and that tl,«r«. Canada threw it back on the Imperial authorities and said we think the meSrS an" nd"ST'°"'' f^ '^i^' • ^'^^ ^"^"y' *° ^^^^ this parHf the state! ment to an end, the Imperial authorities said, no, if it is to be done at all it ninat be done by Canada and not England ; so that up to 1858 aU pait^ were agreed on this, that the boundary should be defined^nd I read that as conS! l^Ltt: bZ/aS '''^'''' '''' - P^^"^ ^' '-^ «- ^"P.-^'« ^-^ Actid ,,J}''^!'f^''''''^^'^''y^-^othmgc^nhemore vague tha.. what is "claimed to be and the expression " granted or purported to be granted." Mr, McCARTHY.-What is " claimed to be " is pretty plain because thev nut It on that map, and define it as the water li, ,its ^ ^ P th«t Sff^'"''''''" ^''^T'^Tn^^ "^*^ ^^'^^ ^'^ ^'""^ *he Hudson's Bay Company GotSme^I rSo wSl ^" ^'^^ ''''"''' '^ '^''^'' ^^ ^« P- *« '^^ ^-dia'^ Mr. McCARTHY.-Undoubtedly, there was the twofold object ; first, to get rid 1:" rRi^e^sTandt '''''''''''' ''''''' '^ ^^« P^P^- «^ '^^ -'pany. * Sess. Paps. Can., 1868, No. 3. "~~ ~~ " + The Secretary of State for the Colonies to the Governor-General Ibid dicated in the correspondence, if «,ch should 1^ tC" ^li'-'/cr'S": S '»'"^« "^ accomphshmBr which is fn- 1868! ^ ms." "^ '^' ^'*"'"^'''" Parliament to Her ^faje8ty. 13th August, 1858, Journals Leg. Ass. Cm.. 315 ARGUMENT OF MB. m'CAHTHY, Q.C, re QUESTION OF BOUNDARY ; Sir Montague Smith.— Whatever they "claim," rightfully or wrongfully. Sir Barnes Peacock.— They were to have no claim again, excepting what they reserved to themselves by their surrender. Mr. McCarthy. — That was one object of the Act, I admit. One was to empower the Queen to accept it ; the other was to define the boundary, because we will follow that up by the next Address. Sir Robert Collier. ^We have had the terms of the Act before us several times. The Lord Chancellor.— You say that the boundary is settled by saying everything they claim. Lord Aberdai!E. — Did they put in as part of their claim all the territory to the east of the line marked here that goes up to James' Bay ? Mr. McCarthy. — Yes, they disregarded that altogether. They put in all the watershed of Hudson's Bay eastward as well as westward, all that is coloured green [pointing to the map, shewing the company's claim, attached to the Report of the House of Gammons Com,mittee of 1857]. Now, my Lords, we come^to the deed, which is the next thing in point of order. The Lord Chancellor. — We really do not want anything in point of order to be gone through. The deed, if I remember right, simply transfers everything which the Hudson's Bay Company had to transfer. s Mr. McCarthy. — And is detined by metes and bounds. The Lord Chancellor.— Whejre is that deed ? If the metes and bounds are there, they may be worth looking at. Mr. McCarthy.— That is at page 315.* At page 316, line 20, they recite : " And whereas by the Rupert's Land Act, 1868, it is enacted (amongst other things) that for the purposes of that Act, the term " Rupert's Land " shall include the whole of the lands and territories held, or claimed to be held, by the said Governor and Company, and that it shall be competent for the said Governor and the Company to surrender," and so on. Then that — ► " The Canadian Government shall pay to the Company the im of £300,000 sterling." Then : . • " The Company to retain all the posts or stations now actually possessed and occupied by them, or their officers or agents."t Then the sizes of the blocks are given and so on. Then, at page 318 : " Now know ye, and these presents witness, that in pursuance of the powers and provisions of the Rupert's Land Act, 1868, and on the terms and conditions aforesaid, and also on condition of this surrender being accepted pursuant to the provisions of that Act, the said Governor and Company do hereby surrender to the Queen's Most Gracious Majesty, all the rights of government, and other rights, privileges, liberties, franchises, powers and authorities, granted, or purported to be granted, to the said Governor and Company by the said recited letters patent of His late Majesty King Charles the Second." The Lord Chancellor. — It is everything they had. There are no bounding words there. *Deed of surrender of Rupert's Land, I9th November, 1869, the Governor and Company of Adventurers of England trading into Hudson's Bay, to Her Majesty. Prefix to Stats., Can., 1873, p. Ixxvii. t The sentence oontiiiues : " whether iu Hupert^ Land or any sther part of British North Amcric-ft,' etc. 816 THE QUESTION OF BOUNDARY AS AFFECTED BY THE RUPERT'S LAND ACT, 1868. ngfully. ting what Qe was to y, because us several by saying ?rritory to put in all is coloured the Report n point of it of order everything ,nd bounds >y recite : )ther thinga) he whole of d Company, trrender," 00 sterling." and occupied powers and ioreaaid, and of that Act, ost Gracious , franchises, overnor and the Second." lo bounding of Adventurers xvii. orth Aajcricft, Mr. McCarthy gether, I submit: -Except by the recital. The whole deed must be read to- itself^'' ^"'"''^^^^ SMITH.-The recital does not carry it further than the Act Mr. McCARTHY.-Of course not. I do not say that it does ■ but I sav it does carry it to that extent. Then the reservations detine the deed in that rn^tL;^-^ tSglisI^Eiv'er^'^^^ -"' '^' '''^ ^^ ''' schedule :Jer?edt! The SmXTre^to^TaraS^t '''''''' ' of the surrender, at page 317. Mr. McCarthy -Yes that is referred to in the schedule, and on page 319 • several of these posts are in the Rainy Lake district ^^ ^ The Lord Chancellor.— We have already seen that there were costs withir*. the undoubted limits of Canada which belonged to them ^ ?t'' ^?^^^'^ Collier.— We have had all this before us. T Au""-' ^^c^ARTHi;.-Then at page 310, and from that up to page 312 your tbnstfK Hous ';''?P't «f/.he.Canadian Delegates.* Ld th'e foint lilu- fr+wLffL Zft ^^'^'''"'titis impossible to read these without seeing T«n/A.f T-P ? *^ke over was what was called Rupert's Land in the Rupert'?. Land Act. and ,f I am right in saying that that was all they claimed, and they did claim at that time all that was coloured green [referrdg to the same mal attached to the Report of 1857,] it does appear to me that the?e Ts an end^ of tTe question as far as the height of land is concerned. «, f ^^,2\\^E\PEACocK.-They could not claim against the Canadian Govern- ment after that had been sold anything included in that deed Mr. McCARTHY.-Undoubtedly, but I think it goes further. ' " Sir Barnes PEAC0CK.-But it did not bind Ontario that they claimed they srariotit;iti ^'' ''' *'^ ''-'' -'-''- ^^^* -« '-^"^«^ ^^^^ then^thfnf itXslJ^elL^TS ^'' ''''' bind Ontario, as I submit itdoes, anv n«rf nf^fK^' Peacock.-How does the Imperial Act bind 0»tario, supposing ^ ^M M n ^ ^'^^"^ 't '^\*^^'° *^« boundary of the Province of Ontario ? °- ^ Mr McCARTHY.-In the first place, that was disputed territory. Then the imperial Act enacts that, for the purpose of the Act. this disputed territory is to nclucle all that territory in the possession, or claimed to be in the possession of he Hudson s Bay Company. Then they authorize them to sell and dispose of or surrender that, in consideration of £300 000 ^ispuse oi. oi Mr. McCARTHY.-Yes. Then what I say is this, that this being disputed will fj; ^ *.h«^ti™e.ifc was competent for the Imperial Parliament to enactTwe ilu^ Rup^r 'sT^d."'^' ''' ^" '^^' '' "^'^'-^^ 'y ^^- H"d-'« ^^y coW Sir Bau.ves Peacock— Did they say that ? Mr. McCarthy.— They do say so. Sir Montague SaiitH.-They Jo not profess to settle a dispute. t Resolutions of the Senate and.Hous^ of CommonB of Canada. 23th May, 1869. Ibid. 317 ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY ; Sir Barnes Peacock. — They only say the terra " Rupert's Land " is not only to include Rupert's Land, but all the North-West Territories. Mr. McCarthy. — But what the Canadian Parliament ought to have trans- ferred to them as Rupert's Land is defined by this Act. 1 humbly submit that that is very clear. Here there is a dispute from 1850 upwards. Sir Montague Smith. — Whatever the government purchased under that Act is to become part oi the Dominion, and, upon an Address, may be formed into a province. Mr. McCarthy. — Yes. Your Lordships will allow me to repeat once more the dates and history of it. Sir Montague Smith. — There 's no intention recited to settle boundaries. Mr. McCarthy. — Your Lordships will see, in 1857 the Hudson's Bay Com- pany put forward this claim. • All parties agreed that it was most important to settle the boundaries. The Canadian people were asked to appeal to this Board to settle boundaries. They declined to do so * and then the Act of Parliament says it being important to settle it, we settle it for the purpose of this transfer of all the Hudson's Bay Company's claims. Sir Robert Collier. — I think we all understand that. Mr. McCarthy. — Then your Lordships find at page 312, the Resolutions of both Houses. Sir Robert Collier. — They are in the terms of the Act. V., Mr. McCarthy. — Yes. I will read the last part : " That the Senate will be ready td concur with the House of Oommons in an address to Her Majesty, that she will be graciously pleased, by and with the advice of Her Most Honourable Privy Council, under the 146th clause of the British North America Act, 1867, and the provisions of the Imperial Act, 81 and 32 Victoria, cap. 105, to unite Rupert's Land, on the terms and conditions expressed in the foregoing Resolutions, and also to unite the North- Western Territory, with the Dominion of Canada, as prayed for by, and on the terms and conditions contained in, the joint address of the Senate and the House of Oommuns of Canada adopted during the first session of the first parliament of Canada." That brings that part of my argument to a close, and my submission on that is that it is clear at all events that the Rupert's Land territory did go up to the height of land. Now, during the discussion, something was said by Lord Aberdare about the Commissions, and the importance of the North-West Angle-f- as bearing upon that point. I am not going to discuss — because my learned friend who follows me will do that — the effect of those commissions. I am merely going to trace their history, and see in what way they have any bearing upon the present question now in dispute. Now, the first commission, as your Lordships will remember, was to Sir Guy Carleton, and is to be found at page 375.J It is the commission that immediately followed the Quebec Act, and I am assuming, for the greater part of my argument, that that commission correctly represents — " northward • But they urged that the Imperial Government should do bo, and that the question of the validity of th« charter should be disposed of at the same time, with the right to Canada to appear by counsel upocthe proceedings. In the end, on the initiative of the Imperial Government, the whole question was settled on the basis of a cumprumise. t " The most north-western point " is the description used in the commission, as well as in the treaties of 1783 and 1842. It is marked on the official map of the Boundary Commissioners, and its latitude and longitude are fixed by the latter treaty. " The North-West Angle " is a different locality, well known aa a landing place on the old Dawson route, and as the place where the Indian Treaty No. 3 was nego- iiiission, on Printed ante, p. 40, note. 318 EFFECT OF THE TREATY OF 1783. ance more along the extern bank of the said river to the southern boundary of the territory granted to the Merchants Adventurers "—the purport of the Act Ir tl°^° Chancellor.— Along the bank of the Mississippi. Mr. McCarthy.-I say that that correctly represents for the purpose of my argument the purport of the Act. I am coming to the north-west anSe * to see how that became an important point. ^ The Lord Chancellor.— This is the commission of 1774 Mr. McCARTHY.-Yes ; then the next commission is 1786, and that is after the cession to the United States, and that is at page 387 f J?^ if^^ Chancellor.— That brings us to the Lake of the Woods Mr. McCARTHY.-Yes. for the first time. In the first place, if I may read the commission, your Lordships will see that in effect it follows the earlier com- nnssion, omitting the territory ceded to the United States. That is the effect of It It your Lordships will look at the Qiap. The earlier commission was based on the theory, and so was the Act. that the River Missis.sippi went further to the north than It does as a matter of fact. Then this commission traces up by the United States boundaries to the north-west angle,* and then goes westward to the Mis- sissippi and then northward to the Hudson's Bay territory, or the height of land t The only difference between the two is this, that whereas the first commission said along the eastern bank of the Mississippi to the terrifnrv granted to the Merchants Adventurers," this goes to the Mississippi, and then northward carrying out the exact language of the Act of 1774. Instekd of sav- ing : and then along the Mississippi to the height of land, I it goes to the Missis- sippi and then northward to the height of land. J That is the only differnce between the words of the two commissions, but it advances the argument no further than the one I have mentioned. ^ ,u . S® rr ^-^^ Chancellor.— I do not the least follow you. The difference is that the United Sta,tes having now had ceded to it some of the territory that was formerly Canada, this boundary is drawn through Lake Superior to Long Lake. That IS close to the south-eastern boundary of the disputed territory. Then It goes on : Thence through the middle of the Long Lake and the water communication betw-een It "-which seems to have been assumed erroneously if I rightly understand the fact-" and the Lake of the Woods to the said Lake of territor ^^^^ substantially along the presant boundary of the disputed Mr. McCarthy.— Yes, .,J^\^''''''P''^^^^''^^OR:~Andthen it goes on, "Thence through the said lake to the most north-western point thereof." Mr. McCarthy.— Now comes the difference. The Lord CHANCELLOR.-Then it was supposed that proceeding further on a due west course you would get to the River Mississippi, and then! having got territor ^''^ ^" northward to the southern boundary of the Hudson's Bay Mr. McCarthy.— May I point out the difference there. The first com- mission says, "northward along the eastern bank of the said river to the south- ern boundary of the territory granted to the Merchants Adventurers " whereas this says to the " Mississippi, and northward " ' ^'^^'^^^^ * See ante, page 318, note t. Th« f ^"5'®'^ ""'«' Pv?*> note. Governor Haldimand's commission of 18th September 1777 infBrv.n.,^ The boundary description was in the same terms as that contained in the CommE of 1774 ' '°*«"«"«'*- ; Tiiere is no mention of the height of land in either Commisaion. 319 ARGUMENT OF MR. m'cARTHY, Q.C, r« QUESTION OF BOUNDARY Lord Aberdare. — There is something before that. The Lord Chancellor.— The difference is this : the first description is intended to inchide, up to the banks of the Mississippi, territory which was afterwards ceded to the United States. Mr. McCarthy.— I have not made myself plain to your Lordship - It is only in the last few words that the difference occurs. I will point out on the map what I mean. The first descriptions goes to the banks of the Mississippi, and it follows that by express terms along the east bank of the Mississippi until the Hudson's Bay territory be reached. That is the first description,— that of 1774. The second description says : going from the north-west angle * to the Mississippi, but it does not say, " and then along the east bank of the Missis- sippi," but it says, "and northward," just introducing the words of the Quebec Act.f That is the only difference. The Lord Chancellor.— The difference relates to an imaginary prolonga- tion of the Mississippi. The other descrip'tion is capable of being followed up to its source, wherever that may be. Mr. McCarthy.— The one description says, in terms, " along the bank." The other description, although it says to the Mississippi, says to the Mississippi and then " northward." f • , • , , The Lord Chancellor.— The importance of this description is that it deals with the whole of the southern boundary of the now disputed territory. It takes you up to the north-west angle* of the Lake of the Woods— and so on, Mr. McCarthy.— Yes. Then the treaty is to be found at page 533. 1 It is the treaty of cession to the Uni^ted States, and an acknowledgment of their independence, and that is the next paper to be looked at to understand, if we can understand, why the north-west angle* was used. The Lord Chancellor.— I suppose you admit that this description takes in some part of the disputed territory, up to the Lake of the Woods ? Mr. McCarthy.— No, my Lord. I am going to explain what our contention is with reference to these words. Your Lordships see it follows the boundary given to the United States. That is page 533 : " His Britannic Majesty acknow- Tedges the said United States "—naming them—" to be free sovereign and inde- pendent states," and that he treats with them as such. Then the 2nd article is : " And that all disputes which might arise in future on the subject of the boundaries of the said United States may be prevented, it ia hereby agreed and declared that the foll6wing are and shall be the boundaries." Then I need not read the earlier part of it, but if your Lordships will look at page 534 : " Thence through Lake Superior, northward of the Isles Royal and Philipeaux to the Long Lake ; thence through the middle of said Long Lake, and the water commuriication * The north-west angle,"— see ante, p. 318, note f. tThe contention of Ontario aa to the word " northward " in the Quebec Apt, and, by analogy, in this commiBsion of 1786, was that it had reference, not to the prolongation of a line, but to the extenBion, n that direction, of the territory. See ante, pp. 184 .lote. 186, notet; also, p. « note. But Ontario a^so claimed that the commission conclusively disposed of the theory of the due north line from the junction of the Ohio and Mississippi, by shewing that, in the mind of the Crown-of the King in Council, and hs Law Officers-the territory of the Province of Quebec extended along, and abutted upon, the supposed Mia- sissippi of that day, to a point at least as far north as the latitude of the most north -westernmost point ot the Lake of the Woods, to which point the southerly boundary of Quebec was carried by the comraisBion m Question : "Through the midule of the said Long Lake and the water communication between it and tne Lake of the Vroods to the said Lake of the Woods ; thence through the said lake to the most northwestern point thereof ; and from thence, on a due west course, to the River Mississippi. X Printed ante, p. 43, note. 320 THE LINE OF THE 49TH PARALLEL. ion takes in will look at course to the Riv,,r MissisBippi." ' °™ *''®°°® °° » «^"e *^e«'t , The Lord Chancellor—I do not follow that. ^ The.;Sar4Er„'rwhTt^^^ La.er JZr 1;;^:^t r^Kltlf ;^.'So? --^— P"*" »' «>» Mr. McCarthy — But what I sav it thof of" *»,„* *• that that was as near^as they ctld r^e^^t 4Uh pi leT ^' "" ""'^"'°^^ Sir Montague 3MiTH.-Why did not they say so ? The Lord Chancellor.— Supposing it was ? ' "' was t'JkeJ'"^'"™"-' °" """'^ '" '^P'"'" "hy it wa, the north-we.t angle* ,ne2: i^r o'?r."^^CTs?b„Tla;ti?llt ^T " Y ."'t'"' ^^» """m? SS^Hner "" •' '° theToltf Uouna *; IfSa^r- *' . ^^®, ^°?^ Chancellor— The question how thev came to fiv fhnf k« ^ IS entirely different from the question that they did fiVft ^^oundary it bectse^tSrdVe^^^l^:ai^er?^r^^^^^^^ S^T^?^\r"^^' ^ ^^^ ""' Th: lZ? ^(^^ ^' ''' ""'^"'^ \^^ tSdto'rV^ls^tloUm^tta^^^^^^ f^ ^'^ The Lord Chancellor. -Not the least, I should think '^ you tl\^Uh"rgUe^UnVe^^^^^ td^^^ P-P-^ to shew that the Treaty of Utrecht had consi3 thr49th pax^l^a^r/'^^^/L'''*' boundary of their territory prior to the cession, and thaT o mid h ba^rof'S the Treaties between not merely the United States and Prl^T r •! • , ^^ between the United States and Spain t and so on Tf von. T a^^ ^."*f'" ^"^ last extract in thejianitoba Apprn^V^u'X^ee if pCly Se^l ^"°' ^' *'^ * See ante, p. 318, note +. . or in the pro ongation of the line, " from thence on a due west ^ouree t^lhl r- "^ at""*- " "»« '^''ods, the Convention of 1818, however, which settled the 49th n^!?I„l .= »k u "® J*'"®'' Mississippi." As to Lake of the Woods, thiitis, between Louisianrfshortlvtefore^^^^ '° *''« westward of the and the British possessions in that quarte?, see ff before come into the possession of the United States) SpailfSses^fer*"'" '" ''''^' °' *»»« "-'''-° b°-'J«y of Louisiana when that region was a § The extract here referred to is, "from the Ronort- nn Milito,™ Aites for makinjj a joint survey of the said river, from one degreo of latitude below the Falls of St Anthony, to the principal tource or sources of the snid river, and also the parts adjucent thereto, and that if, on the result of such survey, it should appear that tLe said river would noc be intersected by such a line as is above mentioned, the two parties will thereupon pro ceed by amicable negotiation to regulate the boundary line in that quarter, as well as all other points to be adjusted between the said parties, according to justice and mutual convenience, and in conformity to the intent of the said Treaty." Then follows the Treaty of 1814,* on the same page— the Treaty of Ghent. Then comes the Convention of 1818 on the next page, 550 : " Article If. It is agreed that a line drawn from the most north-western point of the Lake of the Woods, along the 49th parallel of north latitude, or, if the said point shall not be in the 49th parallel of north latitude, then that a line drawn from the said point due north or south, as the case may be, until the said line shall intersecc the said par- allel of north latitude, and from the point oC such intersection, due west, along and with the said parallel, shall bo the line of demarcation between the territories of the United States Hnd those of His Britannic Majfsty, and that the said line shall form the north em boundary of the said territories of the United States, and the southern boundary of the territories of His Britannic Majesty, from the Lake of the Woods to the Stony Mountains." •Treaty of Ghent, concluded the 24th of December, 1814, Article VI. Whereaa by the former Treaty of Peace, that portion of the boundary of the United States from the point where the forty-fifth defrree of north latitude strikes the River Iroquois or Gataraquy, to the Lake Superior, was declared to be " alongf the middle of said river into Lake Ontario ; through the middle of said lake until it etrik^n the comn>unication by water between that lake and Lake Erie ; therse alone the midale of said communication into Ijak* Erie ; through the middle of said lake until it arrives at the water communication between that lake and Lake Huron ; thence alon^ the middle •^f said water couimunicatinn into the Lake Huron ; thence through the middle of said lake to the water communication between that lake and Lake Superior ;" and whereas doubts have arisen what was the middle of the said river, lakes, and water communications, and whether certain islands lying in the same were within the dominions of His Britannic Majesty or of the United States : In order therefore finally to decide these doubts, they shall be referred to two Commissioners, to be appointed, sworn, and author- ized to act exactly in the manner directed with respect to those mentioned in the next preceding article, unless otherwise specified in this pre^Hnt article. The said Commissioners shall meet, in the first instance, at Albany, in the State of New York, and shall have power to adjourn to such other place or places as they shall think tit. The said Commissioners shall, by a report or declaration, under their hands and seals, designate the boundary through the said rirer, lakes, and water communications, and decide to which of tne two contracting parties the several islands iying within the said river, lakes, and water communi.iations, do respectively belong, in conformity with the true intent of the said Treaty of one thousand seven hundred and eighty-three. And both parties agree to consider such designation »nii decision as final and conclusive. And in the event of the said two Commissioners differing, or both or either of them refusing, declining, or wilfully omitting to act, such reports, declarations, or statements shall be made by them, or either of them, and such reference to a friendly Sovereign or State shall be made in all respects as in the latter part of the Fourth Article is contained, and in as full a manner as if the same was hersia repeated. 322 THE LINE OF THE 49TH PARALLEL. very point T..tie, indict. t,/m. intZr/i E^JL' ,"0 *.wa,t';„"t";f tt' & «t the WooJ., wa. Am, in the belief that it was .„utl, of the .0 ."rof the M^i, sippj. It It was »o„th of the souioe o( the Mi»,i»,ippi it ^^"0 W,e lWincr„f Quebeo and was not m the Hudson's Bav ten-itori... tL , J. rovmce of aonbt, came to arise a, to where the sourc? w^ ?hev „™, ?1 TT,"''''' "'l"" .hould h, surveyed and the source ascertanrd' ^lij^r^a I'r^ed thTtS X^Vt^rl e^rttee'^r^^^^ r^f^eMtt-di/^!xK^^^^^^^^ assumed by ttieir government, as the true boundary." Before that there ^." has been asaumed by their government, aa the true boundary 8ettl«d hlfhl ' ■ era agreeably to the treaty above meat oned ThLVe fia/'MliL u «'^'",'°'««'o«- aey at Madrid, in 1805. Writing to th Sp.ai/h .Minrater aslXl "^V" '"^*^"°''- w.th the tenth article of the first mentioned Tr^* rrrr.at/o uT ach 1 ^h r f''^ between Canada and Louisiana on the one side, and the Hudson's B^v and NnrM 1*'^ Companies on the other, was established by Commiss oLrs Jr* line to l^r„« ''^f ^ ♦K . Jif"! ^°^^ Chancellor.— We have hitherto been told by both sides I think that that never was established at all. " ^ ' ^ *°^°'^' A .• 7,^*, *?"*""" ^'^^ ®""''° ""* *''" ^"'*«'* ^***«"'> «<"'«'l»ded the 9th of Auguet 1842 Uboursfundir theVTlSTtt'^I^Tf GhB^i^'^r^T '^■^°''?* Cpm,ni«Bioners terninated their Muddy Lake, the line shall run "ntrand aTo4 the HhT„ '<,h"»n^«{ h ,* P"'"!.'" t*''" ^f^^^"^ Channel, new Islands, to the division of the channeUt or .Zr the he^ o^ St L:nh'K7.l!L*^?h P** * f"^ ^'- T-mmany »nd northwardly around the lower end of St George wlni^frri^.n^i i ^^''"?* '"T"""*? "astwardly channel which .livides St. George's from St Jos^nh'f Island •fhLi^'lv^'i? f°''''"""»f, 'he middle of the to St. George's Island, through theTddk of laL Gen„p^ ^^^^^^^^ Channel nearest . B.ver, to a point in the middle of that™! atoi tone S above St G^-^iw ^ ^"''*?*^ '".*" ^*- **"y'- propnate and ass gn the said island to the TTnite.l Hf «Io« . fh J «eorge a or Sugar Island, so as to ap- ■ the Commissioners, through the R°ver St Marv and Tai;„^?"°^ ^ *^? '•"« ^'^^ «■» the maps by wid lake, one hundred yards toXLrh Sast of lie PhZ""' h'\*,^.'"* ""^^^ "^ I'« ^°7^^' in the northeastern point of He Royale wher^the ?fn« millSi?;^^^^^ '^^'"^ "•* ™«n«oned island 'fes near the last mentioned point south-Seriy through thrmWdle^^^^ ""^ Comm.ss.onera terminates ; and from western main land, to the moXWgeon^River »nd un^t^^^^ South Fowl Lake8,'to the lakes of the hffiof Ind ^tZ ^„VJ"«l"J.!L*?_^""l*»''°"«h 'h'^.North and tl^^sever^Tiaip laker^S -orslrrmr^^^^^ fe^Ltrp^nt:',fhe*t"k^-f^^^^^^^^^ point, bemg in latitude 49" 23' 55" northVa^ in longftul gf- ?|''?a^^ tZ^? the said most north-western raVo?tl|!£relhdSSp^^^^ 're. and open to L use of the subjects and dS's 'of both c^Kes!*'"''' "' """^ "*=*"""y '''"'• «»"^> ^e III 323 ARGUMENT OF MR. m'CARTHY, Q.C, re QUESTION OF BOUNDARY Mr. McCarthy, — I know ; but I am just giving your Lordships the state- ment of this Committee on Military Affairs made in Congress : " Those extracts are taken from the memoir of Mr. Greenhow, who, it is proper to add, considers the opinion that these boundary lines were actually established by the Oommissioners ' at variance with the most accredited authorities.' In this opinion the Committee do not concur. So far from doing so, it is thought the presumption that the 49th parallel was adopted by the commissioners under the Treaty of Utrecht, is strength- ened by the line of demarcation subsequently agreed on by the Treaty of Versailles in 1763, between France and Great Britain, and also by the Treaty of Peace of 1783, between the TJ nited States and Great Britain. By the former the confines between th« British and French possessions were irrevocably fixed ' by a line drawn along' the middle of the Mississippi from its source to the Iberville,' etc. By the latter, that part of the northern boundary of the United States which is applicable to the subject is described to be through the Lake of the Woods ' to the most north-western point thereof, and from thence on a due west course to the River Mississippi,' The most north-western point of the Lake of the Woods is perhaps a few minutes north of the 49th parallel of latitude." Then it goes on to speak of the Convention of 1818 : " In the second Article it is agreed that a line drawn from the most north western point of the Lake of the Woods, along the 49th parallel of north latitude, or if the said point shall not lie in the 49th parallel of north latitude." Then it would lie in the line I have already read to your Lordships : " This line, it will be observed^ is a deviation from the boundary established in the Treaty of 1783 ; for that was to extend due west from the north-western point of the Lake of the Woods, without any reference to its latitude. By this, we are in the con- tingency named, to run by the shortest line, from the specified point on the Lake of the Woods, to the 49th parallel of latitude. Whence, it may be asked, the solicitude to adopt this particular parallel, except as it corresponded with pre existing arrangements which could have been made under the provisions of the Treaty of Utrecht alone ; for under no other had any reference, at that time, been made to the said 49th degree. Thia coincidence between the boundaries established by Great Britain and France in 1763, and between Great Britain and the United States, 1783 and 1818, can scarcely be accounted for on any other sui- position than that the said line had been previously estab- lished by the commissioners under the Treaty of Utrecht. This conclusion is strength- ened by a further coincidence in the boundaries fixed in the said Treaties of 1763 and 1783. In both the Mississippi is adopted as the boundary. One of the lines then (the Mississippi) previously established between Great Britain and France, being thus, beyond all cavii, adopted between the United States and Great Britain, may it not be fairly inftrred, in the absence of all proof to the contrary, and with strong corroborating proof in favor of the inference drawn from the stipulation of treaties, lines of demarcation on old maps, etc., that the other line (foty-ninth parallel), equally bej'ond cavil, established by the United States and Great i itain, was also the same one previously existing between Great Britain and France ? But such line had no existence unless under the stipulation of the Treaty of Utrecht. For these reasons ihe Committee have adopted the opinion that the forty-ninth parallel of latitude was actually established by the commis- sioners under that treaty. It may not be unimportant here to observe that this forty- ninth parallel is not a random line arbitrarily selected, but the one to which France wm entitled upon the well settled principle that the first discoverer of a river is entitled, by virtue of that discovery, to all the unoccupied territory watered by that river and its tributaries." So that I think I have been able to shew some authority for my proposition tuuL Lii.-iL was Lin; ruasuu htm ■iviii uiic wus ciiuscii. ~ The : Affairs re fixed, nan under the Mr. J my propoi Thel supposing was fixed Mr. a The] was done. Mr. A was fixed Thel United St determine ■ Mr. M passed, th the commi The I it falls to 1 Mr. M I mention not troubh Twiss' boo Oregon qu wrote fron point of vi dentally. TheL more impo; mittee ? Mr. M cuestions. TheL Mr. M TheL materials, ; can get am Mr. M mission anc is with me, which I do say is, that concerned, present, be pate what ] TheL( further. »ARY; THE LINE OF THE 49tH PARALLEL. ips the state- t is proper to bliahed by the is opinion the iption that the ht, is strength- f Versailles in 'eace of 1783, IS between thw ong'the middle lat part of the it is described it thereof, aad north-western 19 th parallel of north western ), or if the said kblished in the in point of the ire in the con- ,he Lake of the le solicitude to I arrangements cht alone ; for 1 degree. Thia rrance in 1763, lan scarcely be •eviously estab- on is strength- 8 of 1763 and lines then (the ig thus, beyond : not be fairly berating proof bmarcation on vil, establiehed iously existing nless under the ive adopted the ly the comrais- that this forty- ich France wm is entitled, by b river and ite y proposition rhe Lord Chancellor.— You have .shewn that a Committee of Military Attairs reported to Congres-s the motive why the actual boundary was really fixed, namely, that it was founded on the supposition that the commissionera under the treaty of Utrecht had fixed the 49th parallel. Mr. McCarthy.— Of course that is all, but it is some support I submit for my proposition. The Lord Chancellor.— 1 do not know what your proposition is, because, supposing it to be established ever so clearly that they imagined the boundary was faxed to coincide with the 49th parallel, when it did not what would follow ? Mr. McCarthy.— It explains at all events the action of the commission. The Lord Chancellor.- It explains nothing surely but a motive for what was done. If it is done and remains, it is just as efficacious. Mr. McCarthy.- But the commission could not enlarge the Province which was fixed by Act of Parliam.ent. • ''J® ^"^^ Chancellor.— The commission would not take away fro'n the United States what belonged to the United States, but it could most disi ctlv determine what the British Province of Quebec should be. Mr. McCarthy.— That we propose to argue. After the Act of 1749 was It was fixed by Act of Parliament, and passed, the commission could not do it. the commission could not determine it. u r ^^^ ^?^^ Chancellor.— But if you make out that the two are inconsistent it Tails to the ground. Mr. McCarthy.— Now, if your Lordships will allow me, I will refer to a book 1 mentioned the other day, merely tor the historical statement of facts. I need not trouble your Lordships with any other reference to it. I refer to Sir Travers Twiss book. I did not explain what the nature of the book was. When the Oregon question, which turned on this 49th parallel, was under discussion he wrote from the English point of view, as Mr. Greenhow wrote from the Ame"ican pomt of view. It has nothing to do with this question in the world, except inci- dentally. I mean it has no reference to the Canadian dispute. The Lord Chancellor.— How can hia opinion, or his view of the fact, be of more importance than your argument and the documents now before the' Com- mittee ? Mr. McCarthy.— Well, he is a gentleman who has devoted himself to these cuestions. The Lord Chancellor.— He is no expert as to questions of fact Mr. McCauthy.— No, my Lord, but he states the fact. The Lord Chancellor— We have got some large books her 3, with all the materials, and we have been at full length through them, and I do not think we can get any enlightenment from such a book. Mr. McCarthy.- Now, I will trouble your Lordships with one more com- mission and that is all I have to say of the commissions. My learned friend who IS with me. or those attending on behalf of the Dominion, will go into the point, which I do not, propose to discuss, as to the efficacy of this commission. What I say IS, that this commission to Lord Durham, so far as the western boundary is concerned, which is to be found at page 406,t and speaking simply of the west at present, because I will not say anything as to the oast, because that will antici- pate what my learned friend has to say. The Loud Chancellor.— The west takes you into Lake Superior and no further. ^ Que. 1774. t Printed, ante, p. 308, note § . iiil 325 ARGUMENT OF MR. MCARTHY, Q.C, re QUESTION OF BOUNDARY Mr. McCarthy.— No, my Lortl. The Lord Chancellor.— That is true ; but then you suppose that the whole of Canada stops at the point where Lake Superior di.scharges itself into Lake Huron. Mr. McCarthy. — No, my Lord ; what I say would ue the proper meaning to give to this cou. nission, with deference, is this : If we gave a liberal interpreta- tion to it, it would confine and describe no territory. One must therefore give some territory to it, and I submit it would follow, up the middle of Lake Superior, the line which bounded the British territory up to the height of land. And possibly the difficulty was about going beyond the height of land — which waa then becoming perfectly well known to be in dispute— in the event of the Govern- ment finding the territories more definitely marked. The Lord Chancellor. — You will say that, according to your' contention, if the western boundary had continued it ought to have so continued, but as a matter of fact it is not continued, and as you are only taken into Lake Superior, by this you are left to find out aliunde what there was to the west. Mr. McCarthy.— The argument I advance is this, that at that time doubts began to arise as to the validity of the other commissions going so far west.* The Lord Chancellor. — I should have thought that the true inference is, that the knowledge in the possession of those who drew up the other coramif - sions was not sufficient to enable them with accuracy to define anything further west.i Mr. McCarthy.— That is what I meant to say. The Lord Chancellor.— But that does not imply that there was any doubt as to the validity of the commission. Mr. McCarthy.— No ; I did not mean to put it in that way. The Lord Chancellor.— I thought you did. Mr. McCarthy.— No, my Lord, I did not. But I mean doubts began to be entertained as to where the west of Upper Canada was,* so that they did not pretend to determine it by the commission. The Lord Chancellor.— That is a well-founded observation, that the west- ern boundary is not detined,t but what seems of great importance is that the northern boundary is along the shore of Hudson's Bay. Mr, McCarthy.— Yes. I wish to observe your Lordship's rule, and there- fore do not go into the effect of the commissions. My learned friends who are to follow me will deal with that, and they would not be following vour Lordship's rule if they repeated what I had said. Therefore I leave thatl;o'my friends. Now, I have some observations to make, and they shall be very few, because my learned friend will have to deal with this in some measure. But I do not think I ought to close my statement without making some references as to the doctrine of law on which we rely as to the height of land. I suppose I may refer to Sir Traver.s Twiss' work on international law, as I suppose your Lord- ship will allow me to do to Mr. Halleck's works and other works on international law. The Lord Chancellor.— The thing which I am at a loss to understand is how the boundaries, between two different territories can possibly be determined by international law, unless you include in international law all conventions, acts and documents of title which have to define those boundaries. * There ia no fouudation in evidence for the»e BuprRestioni of counsel. Th« tnio explanation was, that the OommissioneH under the Treaty of Ghent had not defined the international boundary in this quarter farther than into Lake Superior. 8ee ante, p. 308, note §. t For the esplaaatioa, see Ibid, Mr. go on or agreed u this que? discovers adduced firmly es national continent say — was discoveri( was clairr rise to di upon a fa were not they wer( understan with rega inately th the mere i that rivei all cases) stated tha this, that of the coj country th ceeded fro claimed tl to claim b; saying the where the the commi referred tc Travers Ti Lord the tributa Mr. M claimed thi S:r R( either side any extent Lord . Mississippi lands on tl tributaries Mr. M when he er that west o States, and passage whi book, and ] 326 CERTAIN PRINCIPLES OF "INTERNATIONAL LAW" INVOKED. ■ beffan to be go on fo'r ^ot^-ZZZl r'^'i ^^f' T^ 1°"' t'^'^^^ ^"1 '^y whether I am to li 2l'l^ -^^^^u r''^""'*^"^ '^!'^''' ^h^^t ^''O'n «™e to time nations have agreed upon'certain well knowT^Jes-forikTlFi^Ta^^ this question as to the watershed, and as to the -rerritory which one nation that discovers becomes entitled to, has in that way-by conventions bvar^nmpnt« adduced at those conventions, by settlements ^mad^up^nS^ncesTe™^^ hrmly established that it may now be accepted as a well known rule ofLter- natonal law. Now that well known rule of international law so L as this 12 Zt 'ir''''''^ °1 r had to withdraw as the argument was against them, wks this • that he mere discovery of the mouth of a river gave to the discoverer the whole of d i^lir ^.Tr", ^"^r^ ^^ occupation, because I am assuming occupation i^n s Ited tl Irl?' ^°^*^** T ^y^?"^'^ ^^ ^*- '^^^^ ^^e British authorities tated that hat was stating the claim too widely, and that the true rule was this that not merely the discovery o. the river, but the discovery and settlement ^ ?K 'f J'""' ^/^^ *^ ^^^ discoverer and settlers of that coast line aluJe ra^^^M:*'"'^!-'"*" '■ ^"^ "P«" ^^'^^ basis the French seem to have pro- ceeded from the earliest times. The English at first took a wider view Thev claimed that the mere discovery of the coast line gave them all thalt^ey chose llTfW ^. ''''" ll '^' ^^l-y «««*»• The French%ook a more correct view by saying that it gave them a right to all the land that it watered, down to the sea where the discovery waB made ; and so I have read, once or twicneferences ?o the commissions of the French King and his officials and governors in wSTt is referred to as to the land drained by such a stream. nSw I wil read fiom S r Travers Twiss' work, the second edition, page 196 the triSatvfnTr-^^' • *•'' ^r'^ ?^^™ ^" *^« ^^"^ ^h^eh was watered by tributaries of the Mississippi from the east to the west ? ^r^^:^!::^-^:::^;: ^^^^ *^^^ '''> ' --^ ^^^ ^-— ^^ ^aiie pro. eithef ifpTfh C°^"f ^-According to that view, if a few miles of the coast on nv ir f f T""^^ ""^-^ "''"'* ^''" discovered and settled you might claim any extent of country you like to suppose b *^ »iiu Lord ABERDARE.--That is to say that the discoverer of the mouth of the M sissipp, or the land on either side of the Mississippi, could claim not only the ands on the line of the Mississippi, but all the lands watered by theenormous tributaries of the Mississippi on either side whpn1f« ^"^^^C^AHTHY.-That is what the French claimed and what La Salle claimed th^w ^ T/if '^ M-'' ^""-^ ^"'^ P"*' "^" ^^•^"^^ ^•''^^ "P«» it. Then the portion of SH T A it ^:r'''^P' }'^' '^eded to Spain, and tiien Spain gave that to the nastl*"^- w" *''' q"ef on arose, and it was with regard to that that th^s passage which I am yoing to refer to was dealt with. This is Sir Travers Twis? oooK, and 1 am reading at present at page 196. 327 Sir Barnes Peacock. — But what treatise is it— on International Law, I suppose ? Mr. McCarthy.— Yes. . ? „ ^/ . Sir Robert (Jollier. — You may read it valeat quantum. ^ . Mr. McCarthy. — ■ " The excluBive right of a nation to territory which it has acquired by occupation, has been universally recognized by the nations of Europe, and in respect of such right certain rules hav« become established by usage, whereby the condition of law constituting occupation may be placed beyond doubt. The natural right of an individual to ap- propriate — " i ■ ^ . Then he goes on to give the reasons for that, which I need not trouble your Lord- ships with reading. Then section 119 : " A nation is under an obligation towards other nations analogous to that under which an individual stands towards other individuals with regard to the discover/ of a thing. If it seeks to found an exclusive title to its possession upon the right of discovery, it must manifest in some way or other to other nations its intention to appropriate the territory to its own purjioses. The comity of nations then sanctions a presumption, that the execution of the intention will follbw within a reasonable lime the announcement of it. Bi/,i natural reason requires that the discovery should be notified to other nations, otherwise if actual possession has not ensued, the obvious inferen ;o would be that the discovery was a transient act and that the territory was never taken possession of animo €t facto." Then he says that the meaning of notification is, either by notifying it formally, or taking possession. Then we come to section 120, which I do not think I need read to your Lordships. Then section 122 : " When discovery has been followed by the settlement of a nation, other nations, in accordance with the law of nature, recognize a perfect title in the occupant. Where discovery has not been immediately followed by occupation, but the fact of discovery has been notified, other nations, by courtesy, pay respect to the notification, and the usage of nations has been to presume that settlement will take place within a reasonable time ; but unless discovery has been followed within a reasonable time by some sort of settle- ment, the presumption arising out of notification is rebutted by non-user, and lapse of time gives rise to the opposite presumption of abandonment." That point does not become important here because there was the occupation.* Now here is section 123, as to the extent of right which the discovery gives : " The two rules generally, perhaps universally, recognized and consecrated by the usage of nations, have followed from the nature of the subject." This is quoting now from Mr. Gallatin on the other side, the plenipotentiarj' of the United States, who thus states his view : " By virtue of the first, prior discovery gave a right to occupy, provided that occu- pancy took place within a reasonable time, and was ultimately followed by permanent settlement and by the cultivation of the soil. In conformity with the second, the right derived from prior discovery and settlement was not confined to the spot discovered or first settled. The extent of territory which would attach to such first discovery or settle- ment, might not, in every case, be precisely determined. But that the first discovery and subsequent sedtleuient, within a reasonable time, of the mouth of a river, particularly if none of its branches had been explored prior to such discovery, gave the right of 0r. • i ",„„_, '"?""'*''HP'*'"Oi8ot the irench, conserved tnkhom v...n— ft.r^'.vicit tin:;; : niir , -in «n.-i t.,. .^. ..,..;,,!. t ,.r -i ... -"--** i-„» «..t? treaties nf NeutralitvdfiS?' and r.r :--»- obtiined under the formei' oonditions iy^wie.-i •'iS9-; put an ena t.> »uy ligi.fc oi poatTimmium which "might 'have for the rule, in that view, is, th^t a place " ceded to the enemy by a 381 ARGUMENT OF MH. m'CARTHY, Q.C., rc QUESTtON OF BOUNDAUY: as a matter of fact, I submit that while it is trne that in 1 700, and after the Peace of Ryswick, there was a claim set up by the French to very nearly all the Hudooii's Bay— practically to mU the Hudson's Bay — which on the other hand was denied by the English, as your Lordships will remember, who stated that the effect of the treaty would be merely to cause the English to deliver to the French the actual posts mentioned in the treaty, and not the teVritory itself* — that whatever may have been the effect of that treaty, everything connected with that was swept away by the Treaty of Utrecht ;f that by the Treaty of Utrecht the country to which the Hudson's Bay reople were entitled was restored;!: — that a line was fixed — or rather a rule for ascertaining the line was fixed — which was, in point of fact the watershed ;§ that that can be as well defined to-day, in a dispute aris- inar, as this dispute does arise, as to the limits of the Hudson's Bay, as it could have been by the commissaries ; that the commissaries wer« only a method pointed out by the treaty oi" fixing that limit, but that the rule being laid dowa and established in the treaty, that all the Hudson's Bay and Straits, and the rivers and the lands oelonging thereunto, be restored to Great Britain, we are just as competent in this country as the commissaries were within a year after the treaty, to liave defined and marked down that limit. And that line would be the watershed ;§ or if it be not the watershed, after what has taken place it would be the 49th line. ' That 49th line was accepted by the British as the proper line which they were prepared to contend for, which they did contend for, and which is binding in honour upon the Crown. I cannot assume to the Crown dishonour. After its obtaining the property again from the French, the Crown was in this position. It contended on behalf of the Hudson's Bay Company that the true line was the 49th parallel. The Crown then got the territory, and dishonour cannot be imputed to the Crown — and it would be imputing dishonour to the Crown, to say that the Crown could turn round a: id say to the Hudson's Bay Company : " True, last year we said that was your territory — we have got it now but you have gci. to prove that it is your territory." I do not mean to say the Crown is estopped ; but I mean to say it would be imputing dishonour to the Crown to suggest any other course had been taken.|| The Crown never objected to the Hudson's Bay Company ; on the contrary, the Hudson's Bay Company remained in occupation,if and went down as far as Red Lake.** From time to time it occupied the whole treaty of peace has no longer any claim to the right of postliminmm," that the alienation " is valid and irrej ver8ible,"and such that no reclamation can be made, even "if, in the seqoel, some fortunate rc";)lution" should wrest it from the hands of the conqueror (Vattel, Book III, chap, iv.) Kent puts it very r ocinctly: " If the real property, as a town, or portion ot the territory, for instance, be ceded to the conqueror by the treaty of peace, the right of postliminy is gone for ever * * The right of postliminy no longer exists after the conclusion of the peace." (Ed. 1866, pp. 282-3-) It is to be remembered that at the time of the Treaty of Ryswick, France was in actual possession of all the posts which had been of the Hudson's Bay Oonipauy with one exception, and that this one also rightfully belonged to the French under the terms of the treaty. * This, in reality, was the contention of the French, after the Treaty of Utrecht, and has hete no application, for the English had never held the territory itself, or any portion of it, but only— for a time— thij po9t8 on the margin of the Bay. + This is a begging of the question. See the discussion, ante, pp. 279-80. X For the answer to this, see ante, pp. 190, note t, 331, note %• § This is the repetition of a contention already very emphatically disallowed by their Lordships, at an earlier stage of the argument, as not well-founded (ante, pp. 216-218.) II The evidence does not sustain the contention and inferences of counsel, in regard to the line of 49°, nor could dishonour be attributed to the Crown in the circumstances of this case. See ante, pp. 190, note t, 235, note *, 331, note J. IT Of the posts only on the shores of the Bay after 1713, with the sole exception of Henley. The French retained the posts and'the trade of the interior. Appendix B. hereto. ** Not until 1790 ; and this Red Lake was far north, on the north-eastward slope of Lake Winnipeg. 332 . VIEWS OF IMP. AUTHORITIES re THE VALIDITY AND THE BOUNDS OF THE CHARTER. [iordships, at an country.* In 1821 we find Lord Bathurst suggests this compromise between the two companies. We find then a license was granted.f and that that license was again renewed + recognizing it with a perfect knowledge of all that took place and we say the Crown has not only recognized it, but it has refused, when appealed to by Canada, to test the validity of the Hudson's Bav charter. Both Mr. Labouchere, in the letter I have read to your Lordships, and the Duke of Buckingham afterwards, state that it would not be within the principles recog- nized m Great Britain for us to object in any sense, but if you choose to do so you can.^ Afterwards it became necessary that this colony || should be taken in 1 repeated my argument so recently with regard to Rupert's Land that I need not trouble your Lordships by repeating it again. For these reasons, I submit sub- ject to what my learned friend has to say with regard to the due north line that either the due north line, from the confluence of the rivers is the proper western boundary, or if not that, the proper boundary is the height of land ; or, if j'our Lordships choose, the line which would be represented by the 49th line. ' Practi- cally the 49th line and the height of land are the same.lT I suppose the Province of Ontario would much rather have the height of land than the 49th line. i77i* '^i^^ Company did not move awfly from the shores of the Bay to set foot in the North-Vyest until 1774, when they esUb ,Bhed Fort Cumberland ; they establiahed no other until 1790; and the Red Ri^e" was not reached until 1799. It le needless to state that after 1763 the Oompany had in the North West th" jame riKhts as any other British subjects. On their advent they found the country already occupied by the Canadian traders, whose footsteps they endeavoured to follow But with only a partial success as 1^ evident on a conriparison of the number of posts held by them and the North-West Company of Montreal respectively as late even a. 1821 In that year the Hudson's Bay Company's posts nSrabered, all told 36. the North-West Company's, 97, n gh three times as many. It cannot therefore he rightly said that they then, or at any time theretofore "occupied the whole country." Their wbaequent ocSuoation was tn conjunction with the North-West Company, either as co-lessees or as oo-partner.. . ,° + To the two companies jointly. ■. ■ ' ^- ! . .. t To the two companies amalgamated as one. ' ; »oJ ^he Imperial authorities never pledged themselves to the validity of the charter, but, on the contrary ' were, at times, even disposed to take proceedings for testing its validity. Thus on 3rd November, 1858 Ear Carnarvon, by direction of the then Colonial Secretary, Sir &. B. Lytton, informed the Company 'that i they persisted in declining to be parties "in an appeal to, and a decision by, a judicial cmmittee of the Privv Oouncil, with the concurrence alike of Canada and the Hudson's Bay Company, and can suggest no other prw^ l.cable m,,de of agreement, Sir E. B. Lytton must hold himself acquitteS of further responsibility to the in- terests of the Hudson s Bay Conipany, and will take the necessary steps for closing a controversy too lonsr open, and for securing a dehnite decision. Again, on 9th March, 1859, Sir E. B. Lytton, through the Under- Secretary intimates that if Canada's " answer does not arrive by the 1st of May, Her Majesty's Government must feel themselves free to act," and that as to giving effect to the recommendation of " the 13th Resolu- tZ ?h«f !;??'%""" i A^^ """"f/ Commons * • * Her Majesty's Government could rot but see that the fairest and most direct method to accomplish it, was to test, not the limit but the validity of the charter itself ;" and in 1869, as a ready quoted, Earl Granville, the Colonial Secretary, intimated to the com pany his opinion that " at present the very foundations of the company's title are not undisputed " At other times however, the home authorities were averse to the taking of the initiative in testing the actual v.ilidity of the charter, leaving that to Canada or to private parties, if they should be so advised, and the law officers pointing out the mode of procedure in such owe. But on the question of the boundaries the authorities were very pronounced. The law officero, in 1867, say, in regard to these, that to other "elements of consideration upon this question, must be added the enquiry (as suggested by the following words of the charter ; viz.: not possessed by the subjects of any other Christian prince or state ') whether, at the time of the charter, any part of the territory now claimed by the Hudson's Bay Oompany could have been riifht- fully claimed by the French, as falling within the boundaries of Canada or Nouvelle France and also th« effect of the Acts of Parliament pass, -I in 1774 and 1791. Under these circumstances, we cannot but feel that the important question of the boundaries of the Hudson's Bay Company, might, with (treat utility as between the company and Canada, be made the subject of a quasi-judicial enquiry " etc. Mr Laboucherr in his very letter referred to by counsel, that of 22nd January, 1858, says: " With regard to the question of boundary, as distinguished from that of the validity jf the charter, Her Majesty's Government are anxious to afJord every facility towards its solution, "etc.; and Earl Granville, in his letter above-mentioned reminds the company that "the boundaries to its territory are open to questious of which it is imDossible to ignoie the importance.' ^ il It was treated and named not as a colony but as a territory. See ante, p. 309, note *. ,^. '^''^y "^ ^.ir .^'■"I" ^^l"^ *''® *"'"^- ^° f"lIowing the ever-varying sinuosities of the height of land tne line of 49" will be found not to be coterminous with it over any given space but to distinctly dififer from '. m.".p.". la degices 'uelow to 1 j degrees above. 333 ARGUMENT OF MR M CARTHY, Q.C , ve QUESTION OF BOUNDARY I havo one more word to add with regard to the Award. Your Lordships have ail the facts before you, and I submit with some contidence that there is not one tittle of evidence in support of the lino of the Award. I think it is proper that I should state this, and I will tell your Lordships the purport of it before 1 state it, as I do not want to do anything which your Lord- ships might not think proper. Be*''^v , ■ ' • i-d was signed, the Arbitrators an- nounced their decision, that is, their tv«, o (vinu, and it was by arrangement, which I have, I think, a perfect right tu n&ts, ? ii.jt ;t to what your Lordships think, that this particular line was then agreed to. Your Lordships will allow me to state it. Mr. Mowat is present, who heard it. My learned friend, Mr. MacMahonis pre- sent, who heard it on behalf of the Dominion, and it was stated by Sir Francis Hincks to be the fact. If 1 may state it, I will tell your Lordships how that was. The Lord Chancellor. — Is there not some document in which Sir Francis Hincks says it ? Mr. McCarthy. — Yes. Ixjrd Abeudare. — I thought he said each of the three Arbitrators arrived at the same decision independently of each other. Mr. McCarthy.— He does. The point I am going to refer to is not on that exactly. The Lord Chancellor.— Where is the document ? Sir Robert Collier. — It is at page 109.1 Mr. McCarthy. — That is where it commences but that is not where the passage is. Your Lordships will find the passage I refer to at page 124, line 30.* "The sole ground for the charge that they adopted a couveiicional or convenient boundary is, that the line connecting the north-eastern and south-westom 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 t'oand in the Procla- mation of 1791 that after reaching James' Bay the description proceeded thus : 'Includ- ing all the territory to the westward and southward of the said line, to the utmost extent of the country commonly called or known by the name of Canada.' " Then he goes on to give his argument : " If the critics of the Award believe such language susceptible of the construction that it lays down a precise spot on the north-west as a boundary, then their charge might have some foundation; but the fact is that the language would have justified the Arbi- trators in extending the boundaries of Ontario very considerably. They were strongly urged by Col. Dennis, one of the permanent staff of the Department of the Interior, after their decision as to the south-westerly and north-easterly boundaries became known, to connect the two points by o, natural boundary, and being aware of the fact that the Albany River had been formerly suggested by the Hudson's Bay Company as a satisfrtc- tory southern boundary, they accejited it." That, I believe, is perfectly correct. It was done by consent. Mr. Mowat. — Will you read the next paragraph ? Mr. McCarthy. — I will.f Lord Aberdare. — That they took that rather than what may be called a geographical line. * Printed ante, p. 13, notef. + The paragraph referred to is : "It U not a little singular that the Award was promptly accepted by Ontario, although the only ques- tions 01 douot wei-e uuciucd in favour of tho Dominion. Both on the west and north, tiie doubts were whether Ontario should not have had more territory." 334 THE AWARD OF T^E ARBITUATORS, 1878. Fr.nS'l}inck,?***'"-'"-'-'"'-«°" ""^ """ W-- f'™" 'W, letter of Sir ^^^ Mr. McOABT„v,_TI,ey assumed the nortl.-east angle. That was HudW, The Lord Chancei^or.-Do they or do they not say so > Mr. McCARTHV.-They do not say it in worcls. ' ' J he Lord Chasckllou.— It is yom- theory ' Sir RoHERT Colli KR.— That is not so Bay prl^lT^^^^^^^^^ ^' f -«-'«• there is no Hudson's Company had no territories between these two points and f urthe^^? Z' u^^a not been a conventional line, where would they W Ce toT^ T>^^ '^^ they could have drawn their line would have be^en northwards' Sunno^ln^ P? onel Dennis had not made that suggestion and tLZZiZ^.A ^"PP^^^^^ 9°^" that suggestion, where would the^Sftrntora havrSne to .r\a"^''°'^.^ .enes of Acts of the Parliament and the Crown-St^tuteforrfilln n'. .^ ^^e combined effect of » BionB-thel.mitB were drawn northward to the " toundarv " Hnl wWw!""'vJ^'"°f'r''*'''"''' Co-nmit- son a Bay. and embraced " all the territory to the we8twar7^ni .; ,1 ^^5 '^^ *'"""« " "ne of Hud- extent of the country commonly call.dTknown bTth?nlme of rHiTu " " ,*'> V^'d "?« ^ the utmoat no limit other than the shores of the Bay. On the west althon^h ^r ; .^? l^^ "'J"'' 'here was thu. .t.e have justified an extension of the bLndarierto theCmrces^of he Sa,w"h •'""^h Canada would of dently considered themselves restricted, on various KroumTs (as to whiohff'^^^^*",! '^^ a^bltratorH evi- dix A hereto) to the most north-western point of^h^L^e of th^Wno^^^^ Af'P«n- outhern boundary was established conclusively and teyond contr vpr^ ^n^.'' .*^ '^'''°*' *''« ""« "f the the shore of Hudson's Bay," it was open to the ^r^itvL^. t^^T \ ^' ^""^ *his point, northward to a line due north, through the wildrrnessfwhTch cou "'^icli .lay be supposed Aprn,18«4 (Joint App. 253-4); or (3) trafof tL E^r^h^ AfbaTRlveT';;" w."*" Oo^pany,":!} e^H the Company a^ a limit between themselves and the FrHnch (76 5624^ Alfh',, fvf- 'l*,*^"" """'' f^^oo^ed by the leas favourable to Ontario, it did not rest with eXr the Oominion^r uL •^l"'^ l>ne was, of the three, as a natural is preferable to an astronomical boundarv it i- al^"J,? Manitoba to obect to it. Then mjusticetoanyof the parties is involved The coiii^^hele^^v^^^^^^^^ ^" *?'',"P? "• » "^ »fOM troverey ; for when, in 1701, the Lords of Trade and PianfaH,!^i 'n^oked the principle m tli s very cun- line 6240 to the French on'th, east side of^he 8^,^ P op'sedT ^'^^ ^^"''ession ^f'the adding : " As to the company's namintr of rivers as bonnL^L.^oTn ,r?^J' J^»'" '^'^er in substitution and obvious, both to the natives as welf as EZp-'ans and thlcon^l^^- ''^'""^es, the same is more ceriaiA be «o well laid down in that wild country, Telndian; well kno^?n^ t'^ ■mpracticable ; nor can the latitude With the motives which may have actuated the Grown anrParlLm,t„??„^"-' "°^ '^e other." (lb. 5B3) the alleged rights of the Company within the limits of th.wirH^ . 'gnoring, or denying, any of But see ante, pp. 190, note +. 208, note ""28^^ no"e', 331 note ' '"^ ""t concerned : the fact suffices: the ncrtfeasTangr ■=' """'"P"''"' "'^ '»"« ^«*« "^ -">'ority aLady referred to carried the boundary to t Either due north, or by Lake Winnipeg and the Nelson Ri„«, t" '■^' Ra- /c - - ^ B„, the Quebec Act was only one of the instruments or Piece7of;;idenc:'«ovTr;::;;:V:;;e;ion. 335 ARGUMENT OF MB. m'cARTHY, Q.CT, re QUESTION OF BOUNDARY up to Churchill. That would have been the theory if there had not been that conuent given. The Lord Chancellor. — I do not see that at all. < . .. , Sir Montague Smith. — Was that by consent ? "-,/' Mr. McCarthy. — Yes. ' ^, » ;, . Sir Montague Smith. — Between whom? i Mr. McCarthy. — Counsel for the Doniinion on one side. Sir MoNTAauE Smith. — Why do the Doir.inion dispute it, then ? ■ Mr. McCarthy. — Fhey have to contend, on behalf of the Parliament, that the whole thing wa.s idtra virea* What I say is that there is not a single thino', so far a.s I can understand (I am speaking now of the we.st, my learned friend will address your Lordships on the other part), 'a favour of the Award upon the west.f and the theory of the Arbitrators would have carried them up to Churchill, or, at all events, to Nelson River, ignoring the whole of the Hudson's Bay terri- tory completely between the Bay and the height of land, whether it be 100 leagues or 20 leagues. The Lord Chancellor. — You argue that to the south of the Nelson River the Hudson's Bay territory does not extend ? Mr. McCarthy. — What I mean is this. If it had not been for the conven- tional arrangement made. Sir Robert Collier — There was no conventional arrangement made. Mr. McCarthy. — I am stating it in the presence of Mr. Mowat. Mr. MuWAT. — I know nothing more than is here. Sir Robert Collier. — Mr Mowat denies that there was any such conven- tional arrangement. The Lord Chancellor. — They lix the south-westerly and north-easterly boundaries, and having fixed th-e south-westerly and north-easterly boundaries, they were saved some trouble by a suggestion from the Dominion that a natural boundary would be desirable, and they take the Albany River — not entirely on that ground, but because also they were aware of the fact that it had been form- erly suggested. You may very fairly say upon that, that the only reasons stated for their taking the Albany River are those two. Mr. McCarthy. — Yes, my Lord, I will state that. Sir Montague Smith. — This is an informal lecture, and not at all official. Mr. McCarthy. — It is put in for what it is worth by both of us. Mr. Mowat. — You put it in. Sir Montague Smith. — But it is not official. Lord Aberdare. — As I understand, it is an explanation. Mr. McCarthy. — Yes, it is an explanation. • Only as any other or different decision which the board of arbitrators might have come to might have been ultra vires, in the absence of the legislation promised by the Dominion Government; for by formal Order in Council of the 12th November, 1874, the Dominion agrreed "that the determination of a majority of such three referees [meaning the arbitrators] be final and conclusive upon the limits to be taken as and for such boundaries," and further agreed to "concurrent action with the Province of Ontario, in obtaiaing such legislation as ro.ay be necessary for giving binding effect to the conclusions arrived at, and for estab- lishing the northern and western limits of the I'rovince of Ontario in accordance therewith ; " but in the end, and notwithstanding the repeated urgent solicitations of Ontario, the Dominion Government neither asked for, nor obtained, the legislation referred to, thus breaking faith with the Province, which, on its part procured the passage of an Act such as was called for by the agreement. Although, fiowever, the Award was not of legal binding effect in the absence of Dominion legislation, its findings were found to be practi- cally correct, and were so subsequently adopted by the Lords of the Privy Council and by the Dominion Parliament. t That the southern boundary cf Upper Canada extended at least as far to the westward as the most north-western point of the Lake of the Woods was conclusively established by a view of the combined effect of the Act and Royal Commission of 1774, the Commission of 1777, the Treaty of 1783, the Oominis- oi.i.t ". If.'..; «• *.— • * «.... . ....•tj rttn! vjitT- » "-tsiurirrsiviiB iruill l f rv tv ictx' inclusively. As to the limitary line northward fro-.n that point, see ante, p. 335, note *. 336 THE AWABD OF THK ARBITKATOHS, 1878. 3t been that !uch conven- Sir Montague Smith. -What is it, exactly ? It is called a lecture ^^^Mr.McCABTHV.-YeH; Sir Francis HincL gives a lect^ret^Splain hi. Mr. Mowat.— A popular lecture. - '• "i ;- Sir Montague Smith.— A written par i ^ ' ' ^ • Sir Montague Smith.— It was not Oinifi' ' Mr. McCarthy. — No. ' ' -v iur Mti^ARTHY.— Ihat 13 it, I was statins what was the eflfect anrl T uo,- u .8 a fair argument for me to use, that if you take the north Test arl oUhe Lake of the Woods as the point of departure and follow the QuTec Act* vou^o north to the Hudson's Bay Company's land. Following that Ihie whtre cin vm^ get north to the Hudson's Bay land ? I submit with |reat confidence tC tZ Lord ABERpARE.-Would not it be that there was sufficient evidence for lZ o^rOs r' P^^"^^ «^"^--^ 'y ^-^d^ of the countr^i to tt it mott^an^tliTr: is-nl:^' ' ''' ^'^^^ ^'' "^* ^ ^^"^'^^^ °^ «-^-- to warrant The Lord CHANCELLOR.-Not more than there is now, certainly Mr. McCarthy.- Your Lordship will see the only pretence for h wo. fv, settlement at Albany River,: and Fort St. Germain I haJeET^Uh Thither forts were south of the pomt. I say there is nothing to justify it, and I submit that the Award Itself, having been objected to by the Canadian peoX in ParHa ment assembled,^ ought not to be taken as of any weight or as Snce aiinst r w n' JT,^'-*?,'"™^?*^ «f <^h« true Ime. The Canadian Governmennontmry to the will of the Canadian people, managed this matter in a manner tW dW no? approve ot.|| I submit it is not to be treated as of the eftect of a Pdgment «Hmt iS."^ It IS of no validity on this question. It has no etfectTweighUn For these reasons, I Lordships. The Lord Chancellor-I should like to ask you, if it is not inconvenient to you, whether, supposi n g we did arrive at the two pouth-w esterly and nor'h- aparl frl'KS.tV^fth "^^^^ """"^ "''"^ p'^°«« °^ «"'^--' "<* '* ^^^^^^'^^^:^^z^^:^^;;:::r tSee ante, p. 836, note". tThe evidence is clearly to the contrary, as has been hereinbefore shewn; and aee appendix B. hereto § Parliament was not asked to deal with the auesHon hu ,l,Vo„f * , "" », nereio. ferred to it only incidentally, as in the Act Ts v., Tar-'VyhereL^^^^^^^ "'" """"'«• ""^ '«" H •,;^T^,Y-^^r'^"l! '^^ '"^^ Province, and whereas ucrdaim s di put'ed'^ .t; V^ = " ^'l™?"^ doubted that If, after the Award, the Government of the day had submitted it fnr'thf ' '\ °?'t,*" ^ ment, the same would not have been withheld. suomitted U tor the approval of Parlia- . This is not shewn to have been really the case: it is. on tho pnnt..„r., f„;. *„ . ., . .. or tli6 pec^plo i, uul i.ere ,uupdrly Kauged, as they 'sub^eqnentiy, by 'theiV re'DresertativL'^^'^D" r''^*"^"'" passed a measure formally approvmg and confirming the finding^of thisTery Award Pari'iment, 22 (B.) 337 submit the contentions I have made before your I ARGUMENT OF MR, ROBINSON. Q.C., re QUESTION OF BOUNDARY : easterly boundaries — the north-easterly at Hudson's JBay and the south-westerly at the Lake of the Woods — you have anything to suggest as to the way the line should be drawn instead of following the course of the Albany River. Mr. McCarthy. — No, my Lord, I am not authorized to make any suggestion. The Lord Chancellor.— I mean you have nothing to suggest as to what the true line should be if those two data are arrived at ? Mr. McCarthy. — No, my Lord. Mr. (.'hristopheh Kobinson. — I represent the Dominion here. The positio.i taken by the Dominion is substantially the same as that taken by the Province of Manitoba, and as far, therefore, as the facts are concerned, .<«> far as^ all these geographical questions are concerned which my learned friend has discussed in •detail, I do not propose to add anything to his argument. We have, of course, discussed the matter very much together, and what he has said embodies, I think, all we could find which we desire to represent to your Lordships upon these different questions. There is only one of them, therefore, and that a very short one, upon which it will be necessary, I think, to maki; any allusion to details. In the view of the Dominion Government, as I understand it, a good deal of what has been said here, and a good deal of what has entered into the argument, would be irrelevant, whether their view were right or wrong. Now, your Lordship will find at page 142* that when this question was first raised as between the Dominion and the Province of Ontario, the Dominion adopted the view that Liie boundaries of Ontario were the due north line and the height of land.f 1 , * The despatch appearing at thht place does not shew the fact mentioned in the text; that is shewn by the documents at pp. 329-331. t In 1871, as the result of negotiations originating with Ontario, Commissionerg were appointed on part of the Dominion and Province rebpectively, "to determine the boundary line between the Province of Ontario and the North- West Territories." The Province had proposed that joint instruc- tioD» should be prepared for their guidance, and asked that a draft of the instructions proposed to be given by the Dominion should be submitted for the consideration of the Provincial Government. On a report of the Minister of Justice, Sir John A. Macdonald, approved by Order in Council of I2th March, 1872, a copy of the draft instructions was transmitted accordingly, as follows : — Draft of Instructions to be given to the Commissioner appointed to act on behalf of the Do- minion of Canada in the survey and location of the boundary line between the North- West Territories and the Province of Ontario, in conjunction with a Commissioner to be appointed by the Government of Ontario. "The bound.Ty in question is clearly identical with the limits of the Province of Quebec, according to the 14th Geo. III., cap. rt3, known as the ' Quebec Act,' and is described in the said Act as follows, tiiat is to say : Havinj? set forth the westerly portion of the southern boundary of the Province as extending along the River Ohio ' westward to the banks of the Mississippi,' the description continues from thence ((.c, the junction of the two rivers) ' and northward to the southern boundary of the territory granted to tha Merchants Adventurers of En^laud trading to Hudson's Bay.' " "Having determined the precise longitude west of Greenwich of the extreme point of land marking the junction of tlie north and east banks respectively of the said rivers, you will proceed to ascertain and define the correpixandrng point of longitude of the intersection of tlie meridian passing through the said junction with tlie international boundary between Canada and the United States. Looking, however, at the tracing enclosed, marked A, intended to illustrate these instructions, it is evident such meridian would intersect the international boundary in Lake Superior. Presuming this to be the case, you will determine and locate the said meridian, the same being the westerly portion of the boundary in question, at such a point on the northerly shore of the said lake as may be nearest to the said international boundary, and from thence survey a lino duo south to deep water, n trking the same upon and across any and all points or islands which may intervene ; and from the point on the main shore, foand as aforesaid, draw and mark a line due north to the southern boundary of the Hudson's Bay Territory before mentioned. This will complete the survey of the westerly boundary line sought to be i'stablished. " You will then proceed to trace out, survey and mark, eastwardiy, the aforementioned ' southern boundary of the territory granted to the Merchants Adventurers of England trar!ing to Hudson's Bay." "This is well understood to be the height of land dividing the watefs which rtow into Hvidsou's 15ay from those emptying into the valley of the preat lakes, and forming the northern boundiiry of Ontarin ; and the same is to be traced and surveyed, following its various windings, till you arrive at the angle th'Tein between the Provinces of Ontario and Quebec, as the latter is at preseiit bounded ; having accomplished which, the service will have been completed." * * » » (Joint App., 330; Sess. Papers, Out., 1873, No, 44, p. IT),) Here was the first ofHcial statement of tlie claim of the Dominion in regard to the boundary, a view adopted also subsequently by Manitoba, and contended for by both to the end. By an Order in Council 838 THE CASE OF I>E REINHARD, 1818. Iiat is shewn bv Mr. Robinson.— Oh, yes. , Lord ABERDARE.-I have despatched a letter to the Geographical Society askirig them to send down any maps which they may have. ^ 1, * if '.r^^xf^^^'""-^ f" ^^""y ^""''^^^ that many of these maps may be found but whe her they may be had here I am not sure of course. Your Lo^sh in will hnd at the very outset, as soon as the question was raised as between The Dominion and the Province of Ontario, and when the question of settlTng^t by commissioners was hrst raised, the Dominion asserted as the boundaries of Ontario what may be shortly de.scribed as the due north line and the height of land Now r^^rrtU^i^LTr^^ ™"^^ ^^p^-^- ^^^- ^"' ^^^«^«^^- ^p-^i^« The Lord Chancellor. —Yes. Th«f^'if^,?''''''''T^''^"''' f'?^ ?f ^""^"« ^«* '^ ^^^ in 1774, so it is now That Act has never been repealed and has never been changed.* We have noth- mg therefore to do but to endeavour in the light of such ficts as are admissible' ILrtT' V"^ ^ are now known to your Lordship, to place a construction upon that Act ^ow, it ,s also the fact that really the only thing which it is necessary do IS to settle the construction of the two courses given in that map" that is to say. what IS the meaning of the words, "and northward to the^ southern boundary of the • Hudson's Bay territory. The boundaries go along the Ohb after getting to the Ohio. I need not at this moment read to your LofdshL the S'?V.''"S'' ^^ ""^'f^ ^r F^ ^ '^' ^^^«- ^^' the boundaries go ?o ho Ohio ; they then go westward, along the Ohio, to the junction of that river with the Mississippi, and "northward" to the southern boundary of the terri7nrv granted to the Hudson's Bay Company. Now, the first qSon is whit L S meaning of that term " northward " ? The Dominion Government have i er ed and have always maintained the view that "northward " there means due north ?n%J?S in fS n' y?".»-J^«rdshipswm remember that that point had been decided in 1818 in the De Reinhard case. That case, whether the decision of it was right or MTong, has never been judicially questioned, still less overruled. I do not M^'^^/Sr /'^'^T'^'" ^"^ *^^^ ^^'^ '^""'^ «^^«' *« ^^^''^h my learned friend Mr. Scoble referred, does m any way affect that case, because it related to the territory of Athabasca, which really has nothing to do with what we are now discussing.f We find therefore, by the decision of the Court, in a case of th! utmost importance in which life and death was concerned, that that point had been settled, and it was not for the Dominion government to concede that the decision was wrong. ^ of 25th March, 1872, Ontario deolares, for the information of the Government or Canada "thlTTTT' vmno of Ontario claims that the boundary linn i« vnrv Hiffo,,>„t f^>«, »k / z anaaa, that the Pro- tions, and cannot consent to the proHecuJfon of he cLmlgfon foThe .mrnn«« f'''"'^ l^ ""' ""l^ '"^*"«'- the hne so defined, and that th^ Commissioner aSS'°b/The oSment To^^^^^^ instructed to abstain from taking any further action under his CoiTimist^-nn » Tn.S „ ♦-'"tafo^sno'ild be cally rented until the initiation of the proceedings whLh led to t^ Award ^^^ ''""'*'°" "''"'**• * Ontario contended that it wag to be considered as nxnljinnH n.nH int-o.^,..,!...! j •. , tThe case referred to was that of Ciinollv « WonlnVh friorl in ihc7 ;„ tu o • .-• m which it was judicially decided that the reyjuis of the North West! as weu\1X"l^^^^^^^ ^'''> were excluded from the limits of the Hudmui's Bay Company and were in fhi n„.,7lf • ^ . l^"* '''•"""■7' 839 ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY : Lord Aberdare. — Was it settled by a court competent to settle it ? Mr. Robinson. — It wa.<* settled hy a court which had a right, just as every court has an incidental right, to try such question. The Lord Chancellor. — Was it settled by acquitting the accused ? Mr. Robinson. — No, it was settled by convicting him. Sir Barnes Peacock. — The petition had not got to the Crown within three years, and then they say, considering the time he has been kept in prison, and remembering all the circumstances, we release him. The Lord Chancellor. — Was it an Upper Canada or Lower Canada court ? Mr. Robinson. — A Lower Canada court. - ^ The Lord Chancellor. — What is the date ? Mr. Robinson. — 1818. He was tried under the statute. Sir Barnes Peacock. — Under the Act 43 Geo. Ill, chapter 138. I cannot very well understand it. The Commissioners were to try whether the offence was committed out of the boundaries of Upper or Lower Canada, or in the terri- tories of either. Lord Aberdare. — Therefore it was they convicted, I suppose. Is that at what is called the Dalles ? Mr. Robinson. — Yes. Sir Barnes Peacock.— I think the Chief Justice treated the boundaiy of Lower Canada as the boundary of Upper Canada. You will see what he says. He says : " A line drawn due north from the head of Lake Temiscaming till it strikes the boundary line of Hudson's Bay " is the boundary of Upper Canada. Lord Aberdare — The eastern boundary of Upper Canada. The Lord Chancellou. — Where is the judgment ? Sir Barnes Peacock.— At page 679 the Chief Justice says this. I think he makes a mistake. He was trying whether it was committed either in Upper Canada or Lower Canada. This was under a commission issued by Quebec. That was Lower Canada. Mr. Robinson. — If I understand and recollect the facts of that case rightly, the jurisdiction of that court to try only arose provided the crime was committed out of the Province. Sir Robert Collier. — Yes, in Indian territory. The Chief Justice says he is accused of committing a crime in Indian territory. Therefore, if he committed it in Canadian territory. I suppose he could not have been tried by that indict- ment. Mr. Robinson. — That was it. my Lord. The first words of the Act shew quite plainly what its purpose is (page 406) : " Whereas crimes and offences have been committed iu the Indiar teiritories, and other parts of America, not within the limits of the Provinces of Lower or Upper Canada, or either of them.' It was to try such cases that jurisdiction was given by this statute to this court in Lower Canada. It was therefore a condition precedent to the jurisdiction that they should say the place where this murder wtus committed was outside the limits of Upper Canada. Sir Montague Smith. — And I suppose there was an objection to the juris- diction. Mr. Robinson. — Yes, there was an objection to the jurisdiction, which they then discussed at length. The Lord Chancellor. — The Chief Justice says, at line 19 : "a line drawn due north from the head of Lake Temiscaming till it strikes the boundary line" — that, is the eastern boundary. Mr. Robinson. — Yes, that is the eastern boundary. 340 THE CASE OF DE REINHARD, 1818. Sir Barnes Peacock.— That is th'> boundary of Unper Canada. Mr. Robinson.— That is a mistake ; that should be" eastern. I noted that in my book as a mistake. It is printed western. That has confused your Lordship. I have no doubt it is clearly wrong. Sir Barnes Pkacock.— What he wanted to shew was that this offence was committed out of the jurisdiction of either Upper Canada or Lower Canada. Mr. Robinson. — Exactly Sir Barnes Peacock.— He did not shew that by laying down the eastern bounda»'y. He ought to have gone to the western boundary to shew it was com- mitted out of the jurisdiction of Upper Canada. The Act says : " to try offences not committed within the limits of either of the said provinces." The Lord Chancellor.— It is quite clear from that and the next page that the learned judge did decide that the line drawn due north from the confiuenco was the western boundary. Mr. Robinson. — Ye.s. The Lord Chancellor.— And that he wont upon that ground. Suppose we do not view it in that way. Mr. Robinson.— Then the decision will be the other way. The Lord Chancellor.— Of course, we shall give due weight to such opinion, but it is manifest that it does not rest upon any materials different from those which we have to deal with. Mr. Robinson. — In no way. The Lord Chancellor.— And that it cannot be a conclusive authority.* Mr. Robinson.— In no way. I am not here for a moment to contend for that position before your Lordships. That is not the view with which I pointed it out to your Lordships, or referred your Lordships to it, for a moment, I am only pointing out the position of the Dominion, and the grounds they had before them for the view they asserted. Those grounds will be decided by your Lord- ships of course on your own opinion to be either right or wrong. I am only pointing out that when the Dominion first came to consider this question, and saw th at the question of the western boundary of Ontario and the southern * In regard to the I)e Reinhard case, it is to be noted that Upper Canada was not represented upon the P,r!rv"h'iH*?h\*h''*'''\°'*'r J""*"" °f Upper Canada did not subsorioe to the decision, but on the contrary held tha,t the western limit of Upper Canada was oo-extensive with that of French Canada (ante, ;, f'l' I ■ ?«?>8ion was never recognized m Upper Canada before its union with Lower Canada, nor fnrfhl ..T^'"? of Canada afterwards ; that since that decision a mass of eWdenco has come to light which irther supports the contention of Ontario ; that the court itself which gave the decision appears to have had «; ""u f. ?-'"'TfK"f' "1 "■"'P'^' "^ *'"! bou.tidary, for Chief Justice Sewell, in delivering judgment, said .it IS a,lu)5ed that we have put a construction as to the boundaries of His Majesty's ancient Prov iuoe t ll'V'hf'ii'l^U f ^h^'p "^""'' «??,*'"*' r n»y« (oUowed up that misconstruction by misdirecting the jury ;illi,,^lTp, ^^*^n •'""^°^■''^^^^ • • V The Court have taken upon themselves to decide the limits of Canada. Original jurisdiction relative to the territories of the King^is in the King and his Umncil. in this dependent province, nevertheless, we have been compelled to give a decision upon the n/i^"^l?",' '■■"'" TJ '^'i-*' "2 •'",■! °?^° P"'. but because it was brought before us, and there was no evad 3 ; InU rt? I .d«P'flling finally 18 at home ; the question will be taken before the King and his Ciuncil. " ami m deciding the limits of Upper Canada they will either confirm or reverse our decision according as we , TpH'fhJv'^i^f.rh'^r^V ^u "1^°^ oonseque"3es that may result from our error, if error we have com- ■« Tria n^ «ofi rV-Vl'"^^ bv.the^superem,., >hority to whom the question is referred." (Report of ,,n^ It ' "^P" • *"-^-^ ^V '° "^^ S\'? °^ "'■'''' "^'■- '"ei as an accessory shortly after De Reinhard. n hi«oh«rT'"Tr'"''''""-'''^ -vT Ch-ef. Justice, U, ^ng down the boundary as in the other case, add^ in his charge : "This question will be submitted to the decision of His MajeHv in Council, as it is only by ■, with the assistance of his Council, that the boundaries or limits of His territories can be legiti- permanently dehned If uitim.ihfilv nnr iii.l<»m<.nf «» -nH>.^- ,i„„:„: „i u u?— ^ . if ultimately our judgment, or rather decision, should be set convenience which may result from oor erroneous decision will ■ that the execution of tlie sentence on De Reinh. -.1 was His Maj-isty, ..„ inately and permanently defined. . aside by the competent authority, an assuredly be obviated," etc. (Joint '. respitodoverfromtimeto time to ,,.v '.rt, a decision of tlirhome 'authorities •'in respect "to'S..o,iyrt"e sZrArfi^^f.^;h'V^;K"H"ff '^'- Administrator Monk to Earl Bathurst, lb. m ; Lord D^lhounie t^ tho SirH „ '' that the differsnce in point of law was referred to " the Home Department" (/6.) ; that De m£nAn,lRi\ ^hT'^^'- ";t ^J*^-"-^ i^fheen graciously pleased to grant to the prisoner a free p. won (/6. b84) ; that, anyway, the decision of the Court was, in terms, that the place of the murder, the Uailes, was situate " in the Indian Territorv." and therefow not with!" t^- i^.—i. -^e "k^ ii..". ™.- '«._ ^^uiiipany 8 territory. . "- h.-j., -u o u»jr 341 !, "■:^ ■ m sir jTI ARGUMENT OF MU. IIOBINSON, Q.C., re QUESTION OF BOUNDARY : boundary depended entiiely upon the construction of the Quebec Act * of course ifc was a most essential element in their consideration, that that statute had been construed by a Lower Canada court, on a tiial for murder, in 1818, and that that decision had never been judicially (juestioned. The Loud CHANCEiioR.— W"ere the commissions to Sir Guy Carleton before the Court at that time ? I don't see any reference to them. Mr. lloiiiNsoN.— J do not see that there were any. Sir Montague Smith.— The judge seems to have taken a decided view that northward must mean due north. Mr. RouiNSON.— Under the vircumstauces. Sir Montague Smith.— The judge thought it was so plain a construction that he need not go any further than the language of the Act itself. He said " northward " means due north, and he has a discussion with a surveyor who takes a different view. Mr. Robinson. — Yes. Sir Montague Smith.— But of course the judge had to construe the Act, and that was his construction. Mr. Robinson.- Yes, that was the construction. Sir Montague Smith.— He does not give any reason for it, other than that the words mean it. Mr. Robinson.— I cannot pretend to say any reasons were given beyond what we have in the report. Sir Montague Smith.— It must plainly mean that. Mr. Robinson.— Yes. At all events that was his opinion expressed in his judgment. ^ Sir Montague Smith.— That was the whole amount of it ? Of course you nave his authority in your favour. Mr. Robinson.— Yes. I can say nothing mo. -e. I cannot push a thing beyond Its legitimate strength ; but your Lordship of course will remember that report- ing in those days was a very different thing from what reporting now is, and although I cannot pretend to say there was more, when more does not appear 1 think it very likely. ' _ Sir Montague Smith.— This is very fully set out. It seems to be the fixed view from the beginning that " northward " meant due north. Mr. Robinson.— There is no doubt about that. Sir Montague Smith.— And that he had no discretion. Mr. Robinson.— He thought that was the proper construction to put upon the Act ; not because as a general rule " northward " always means due north but because " northward " as found there, taken togt^ther with the context, should be construed to mean due north. The Loud Chancellor.— Whether or not the words ought to be construed in any other way than the way in which tlie learned judge construed them, I cannot undertake to say, but surely you would not deny that the words are such as to admit of extrinsic facts ? Mr. Robinson.— No ; I should certainly not. Lord Abekdare.— And that one of those extrinsic facts was the Act of 1774,t which was to provide a proper method for the administration of civil government ? Mr, Ro binson.— Unquestionably, *8ee ante, p. 339, note *. t Printed ante, p. 84, note. 342 THE QUEBEC ACT, 1774— CONSTUUCTION. eton before -For this purpose it was just as necessary to go up to the Lord Arekdare.- Mississippi ? Mr RoBiNsoN.—That is a question of t&ct, upon which I propose to say a liiw words to your Lordships. ^ Lord Abeudare.— You are prepared to shew the limit between that line and tlie Mississippi itseli, was provided for otherwise ? Mr. Robinson.— No. I am prepared to shew the majority of the important settlements were taken in by the d-.ie noHh line.* I cannot ifo further than that. l.ord Aberdare.— Even down tror- she junction of. the Ohio for a consider- able way northward ? 1/ Mr. Robinson. — Yes. The Lord Chancellor— J ^ou take a due north line it will leave out a not inconsiderable part of Lake Superior ? Mr. Robinson^ Yes. Then, will your Lordship permit me to come to the settlements of the Illinois that are spoken of. I will come to that afterwards but 1 suppose my duty now is to endeavour to shew that position was correct. It seems to me that perhaps the fairest way to construe an Act of that sort is first to take the enacting part, to see what the enacting part taken by itself will tairly moan, and then to see whether there is anything in the preamble, taken m connection with the surrounding circumstances, which are properly admissible in evidence to effect that construction. r r j Now if we take the words of the enacting part first, at page 366 of the Joint Appendix they go, first, to the junction of the two rivers, then, " northward to the southern boundary of the territory granted to" the Hudson's Bay Company. The Lord Chancellor.— It is not quite to the junction of the two rivers. Mr. Robinson.— It I am wrong in that, I said it for the sake of shortness: init It IS at all events " westward to the banks of the Mississippi " Sir Robert Collier.— " And northward to the southern boundary" The Lord Chancellor.— It is not quite immaterial to notice that in several places before, they speak of following " the said bank " Mr. Robinson.— No, my Lord ; that is important. Lord Aberdare.— And that whereas when they are speaking of the other rivers you have the word " bank," when you come to the Mississippi, although we do not claim the further bank of the Misaissippi.f you have the word" ban'h-s" J he Lord Chancellor.— I see it says that the line is to go " to a point in torty-hve degrees northern latitude, on the eastern bank of the River Connecticut keeping the same latitude directly west." Mr. Robinson.— Yes ; it is so. I have not overlooked any of those things in iny consideration of this statute, and I only desire to point out to your Lord- ships my argument upon it, whatever weight may attach to it. Lord Abkrdare.— As long as we deal with this ground of the due north line tlie question ot the height of land is of very little consequence. Mr. Robinson.— No. If we get the due north line, we shall get it to the southern boundary of the territory, and then we shall have to consider where thot comes to Sir Montauue Smith.— Your construction ignores the height of land as a boundary. tlu. Mt'l*u^^,?"'®'"f°*' °" **"? Mitwi88ippi, and all thone ot the Illinois (with one exception), whether on ttif Mississippi or not, were excluded by the due north line. t See post, p. 344, tote *. fSi U^: ARGUMENT OF MR. ROBINSON, Q.O., re QUESTION OF BOUNDARY^ : Mr. Robinson. — No ; because we must follow the due north line until we get to the height of land. The due north line is marked on the map and the effect of it is very plain to be seen there. At all events, this course goos along the bank of the Ohio " westward, to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the Merchants Adventurers " of the Hudson's Bay Company. I can- not say myself what particular effect ought to be attributed to the use of the term " banks " instead of " bank," nor can I say whether it was intended to have any eflfoct or not. We do not claim both banks, as your Lordships know, and it is quite within the bounds of possibility that it is a misprint. But I an\ not pre- pared to say that it is so in any way, because I do not know. All I say is, I cannot myself found any definite argument upon it either pro or con.* If your Lord- ships were aware — as wo are unfortunately — how many volumes have been published upon this subject, and how very small a part of the literature and discussions upon this subject is the enormous mass of evidence we have placed before you, you would see that it is more difficult than in an ordinary case to endeavour to extract what is relevant. Our own impression, representing the Dominion, is, that a vast mass of what is here is wholly irrelevant to the settle- ment of the question. But it is neither our wish, nor is it in our power to exclude anything which on the part of Ontariof was thought to be relevant or right to be brought before your Lordships ; and what has been brought before you, together with the effect of it, has been discussed as fully and as strongly by my learned friend as it would be possible for me to put it before you, as far as relates to the details of these matters, and therefore I am not going to repeat one syllable of that. But now I will ask your Lordships, first, to consider what would that course, taken by itself, mean without any assistance. It goes to a certain point without saying what that point is, and that is " northward " to the Hudson's Bay territory. Supposing a surveyor were directed, the day after the Act was passed, to take that Act in his hands and draw that line — is there any doubt what that surveyor would do ? I do not contend that " northward " always must mean due north ; I do not contend that, of itself, it is identical with "due north," in mean- ing, in any way. It may mean somewhat to the north-east ; somewhat to the north-west ; but I do not think there can be any reasonable doubt rs to what a surveyor would have done, if, the day after the Act was passed, it had be^n placed in his hands, and he had been told to draw the line that that Act contem- plates. He would simply have placed himself at the junction of those rivers, on whichever bank it might be, and he would have said— Where is Hudson's Bay *The contention of Ontario respecting this point-that the word " northward " in the Act had reference! to the extension in that direction, along the river to its source, of the whole tract of territory dealt with, and that therefore "hanks" might be used with propriety— is noticed, ante, p. 186, notet; to which mfty here be added another reason for the use of the plural term "banks," viz., that the treaty of 1763 provided for the free navigation of the Mi>»8iasippi, in these terras : " Providad that the navigation of the Mississippi shall be equally free as well to the subjects of Great Britain as to those of France, in its whole breadth and length, from its source to the sea," etc., (ante, p. 3fi, note). Great Britain had, thuh, in the stream, a title or interest jointly with France, which extended to the far bank, and in transferriag to the Province of Quebec the territory which was within \U newiy settled limits, the use of the plural term ' banks ' seemed therefore necessary in so concise a description. If this be taken to be a true explanation of the use of the term, then every argument in support of the " due north " theory falls to the ground, for the absurdity of two separate and distinct due north lines ia presented to us— one starting from the eastern, the other from the western, bank of the Mississippi. t Not on the part of Ontario Jone, but on the part of Manitoba also, and of the Dominion. It was a Joint Appendix, agreed to as mch not only by each of the Provinces but also by the Domuiion. whose agtiits took an active interest in its arrangement, »nd in excluding such pipers (and published .annotations of papers) as were objectionable in their view. Such documents ai were so excluded from the Joint Appendix, were put in in the sepjirate appendices of Ont.ario and Manitoba respectively. But the Dominion had at that time submitted to be party to the reference, a position from which it nubaequently receded. 3-14. -/;-:. THE QUEBEC ACT, 1774 — CONSTRUCTION. territory ? Well, unquestionably, it ia — somewhere — to the north, and he would have drawn, I suppose, the shortest straight line to that territory. That, I suppose, is hardly capable of dispute. The Lord Chancellor. — I am not so sure of that. I can quite imagine two surveyors taking two different views upon such a si^bject as that. Lord A.BERDARE. — And I can quite understand a person not being a surveyor looking at the whole of the facts together. .. • Mr. Robinson. — Quite so. ^' ' - Sir Montague Smith.— Mr. Saxe took a different view and took it strongly. Mr. Robinson. — Not of the single proposition I have stated. And I am not stating that proposition as involving the whole case. I say if that stood alone, and without any extraneous considerations, there is no question of what a sur- veyor would do. I think it would be almost as simple as if your Lordship told me to draw a line from the point where I stand, northward to the bookcase, I should unquestionably draw the shortest line which would go from this spot to that bookcase. That I say then would be the first meaning of the Act. The next question is, is there anything in the statute, and in the circum- stances which have been brought to your Lordship's attention, to shew that con- struction ought not to be adopted ? My Lords, there is no want of American authority, at all events, for the proposition which is the only proposition of law for which I contend— that " northward," taken by itself, means the north, if there is nothing to alter or change that direction. I find in the case of Jackson, on the demise of Clarke v. Reeves (3 Kane's Reports, page 293), a case decided in 1805 in the court of which the late Chancellor Kent was then chief justice, a man whose name stands in that country as a very high authority. The Lord Chancellor. — And here also. Mr. Robinson.— He is called in some books I have seen, the Blackstone o£ America. He was the chief justice of the court, and Thompson, justice, in laying down the law there, as to the effect of a patent granted in 1688, convey- ing an enormous quantity of land, called the Catskill patent, said the courses aro " northward, southward, eastward and westward," and it is a settled rule of con- struction that when courses are thus given you must run due north, south, east and west. Sir Montague Smith.— What are the precise words of the patent ? Mr. Robinson. — The general features of the case were these. There was a patent called the Catskill patent, which conveyed five great plains by name, together with the woodland adjoining the same, extending for four English miles round the Said plains — that is to say four English miles from the said plains eastward ; four English miles from the said plain northward ; four from the said plain westward ; and four from the said plain southward. The Lord Chancellor.— Were the plains rectangular blocks ? Mr. Robinson. — 1 think not ; but I was going to refer your Lordship to another set of eases, which would clearly make out that northward would nut be held to mean due north in every case. Without reading it all to your Lordships in detail, I will refer your Lordships to an authority where the same proposition i^, adopted — the case of Brendt on the demise of Walter v. Hogdeii, 1 Johnson, page 1.56, where the same chief justice presided over the court. There it is said that the course was " thence eight miles more northerly." The word " northerly " there was construed as meaning due north. Tt was said there with regard to the course, " thence eight miles more northerly, there being no object to control it, it must be a due north line." And there are one or two other cases in which the same general doctrine is expressed. 345 III ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY ; There is a set of cases, in Kentucky chiefly, which, I think, furnish a very e:ood illustration of a different rule. There was a custom in early days in that State, apparently of making an entry of a claim, that is to say entering your claim for the pre-emption of certain territory, and claims were entered for certain territory of so many miles along a creek, and then saying " northward for quantity." There, it was held that the term northward must yield to the rule which required such blocks to be rectangular. They said " the term northward " is there used simply to decide the side of the creek from which the line runs ; because, if the creek is running east and west and you claim four miles along the creek, you must shew whether vou go northward or southward for quantity, because it is necessary to shew wliich side of the creek the land is lying upon, but tliey said that does not mean that you must go due north, because there is another rule, «?hich runs in conflict with that, which says that the blocks are to be rectangular, that is to say, that the blocks are to run at right angles to the stream upon which they lie. I will refer your Lordship to those cases, and to one or two more cases laying down the general rule for which I have contended — Oarwln v. Dean, 115 Massachusetts, page 577 ; and Howard v. The College of the Holy Cross, 116 Massachusetts, page 117 ; that case says " southerly is not necessarily due south." There, there were definite boundaries, and it was not construed to mean due south. Other cases to which I would refer your Lordship are, Seaman v. Hogoboom, 21 Barber, page 398 ; Craig v. Hawkins, 1 Bill, page 54 ; and Calk v. Sterling, in the same volume, at page 122. It is said, however, that looking at this description, taking it as a whole, and taking it in connection with all th^ circumstances, " northward " here should be construed " along the bank or banks of the Mississippi." Now the first thing to be remarked upon this, as your Lordships pointed out, and as it is made the basis of a great many of the opinions which have been expressed upon this, is this : When the Legislature wished to say that they went along the banks of a river they said so. Ln the very preceding sentence they say that the line shall be " from thence along the said northern and western 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 the 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." That is a familiar argument as applied to the construction of wills, that when you find an expres.-ion familiar to theperson writing, and when you find that that expression, although appropriate if the contention is such as is contended for, is omitted afterwards, it is a reasonable argument at all events that it was not intended to use it. At all events, just in the same line they do use the words " along the i)ank of the said river | that is the Ohio] westward," and there they furnish a good illustration of what the word " westward " must mean, because nobody would contend that it means due west, where the bank of the Ohio went otherwise than due west. Then, in several [ilaces they speak also of going along the ba-iVr of a lake, shewing that when they desired to go along the bank, either of a '.».e or of a river, they said so. It is perfectly fair to point out also, that in another place, where due west was meant, it was so stated. Wo hav-^ now to consider what were the circumstances under which this Act was passed. So far as t e can judge, I should think it probable that Mitchell's map was the one which was then referred to. I say that, because it is a map THE QUEBEC ACT, 1774— CIKCQMSTANCftS CONNJiCTJiD WITH ITS PASSAQK. f "t nnfhori ? K It '' ^ T^' "^^'^^ ^'■""' ^'^" Certificate upon it, I should infer hew what Ihof h^i W^'k" r"^^ ^'""^'^i'^y ^' ■'^"f^P^'^^^ ''^ 1^""^ ^««fc. '^^^i to iW 7*f,*'^«^ bnheved o be the j^eograph leal features of tho country at that tunc 1 mn not aware oi any other map between 1755 and 1774 which would iKive been at al ll.kely to be used by way of substit.ition for MitcheH im,,lSlf°;"' CHiNOELLOR.-Is it not too much to assume that there is any for any pu^poT '"^ ""'^ ' ^'" '""""^ '"^'^ ^^''^ ^"^'^ *^"« ^°«"™«"^ Sir Montague Smith.-No ; I do not think you can; The Lord CHANCELLOR.-Was that the best map that they knew ? Mr. KoBiNSON.-I say nothing? more than this, that those who drew the .statute-and we know that the statute was the subject of a good deal of delTate- copsulted the best mrps that they could, that were in existence artSette I cannot say any more than that. It is almost impossible to suppose thaT this boundary of the staute, involving the important consequences thTit did. would have been drawn without reference to the best maps thit could be found and so rrheZf T'' "^r '^'"? T"" T *^^ ""'''• ^«^' 'f Mitchell's map is 'referred 0. the first observation which strikes us is, that the source of the Mississippi was HL 1 °- It 't f^'"^ ^" ^''^'^'^^'' "^"^P *^hat it was unknown. It is s aled m the same map that the source was supposed to be in about latitude 50 and T liviff"^' ^TV.' "^"^'"°^ itwas'u'nknown, that was the best con'iecture they could form They pomt out where they supposed its source to be " tJ...f A^^'-^'f-^ '^'^ v'^^f ^'/"'T ^^'■t*^"- ^'^ <^he first place, with regard to that description, as applied to the then coarse of the Mississippi, it would be more ITl ° Tr?^"TV;'^\^""^^« "^ *^« Mississippi there would have been more accurately described by the term north-westward than by the term north ;:sf tha^LThw^rdT"' ""' ''^ ""^"'"'pp^' '-^ ^^^^^^'^'^ '"^P' --^ -°- "-^^- .nn ''r ^°' ? ^^^■I't^V^'^ '" ™*"y discussions in this case, that it wo-ild not go ISfl;."/ ^".^^^^'^^'l^ map-that it was supposed to be then Hudson'rBfy teiutoiy ; but one argument we certainly are entitled to have. If we lose strength 'ITTfl.ZV^^'^^-l^y^''''' '^ ^" ^"°<^^^r- " my Mends on the other side contend that the legislature intended to go to the source of the Mississipp I you got there, if the source did not go to the Hudson's Bay territory, would be cont^P^nrrftfTv; 'w"1 ^'' ^V^ ^' •'^°"" ^'^ ^^^ ^""^'^•t ^^^ ^^ is impossible to t K.d hv « f ":^'"r ^!{ ^'7'^'"'^ ""''' ^""^*^^<^' i'^ '^'^ ^'^y they had con- tended, by a few posts alo ng the shore, and th en that the legislature, when they 347 ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY ; drew this description, intended that they should got to the Hource of the Mississippi eight hundred miles from the shore. The Loud Chancellor. — The other side certainly mean that something more of the territory was granted to the Hudson's Bay Company than merely the forts along the shores. Mr. Robinson. — Yes, of course, it goes a little further. The addition of eight hundred miles would, however, be a very serious addition. I think the source a\)out eight hundred miles from the shore was the source as they understood it. Then the next and by far the most important {)oint is — does the preamble shew that in order to fulHl the intention of the Act, it was necessary to go along the Mississippi ? It is said to bo so, because in the preamble of the statute it is recited, that ' by the arrangements made by the said Royal Proclamation, a very large extent of country, within which there were several colonies and settle- ments of the subjects of France, who claimed to remain therein under the faith of the said Treaty, was left without any provision being made for the adminis- tration of civil government therein ; " and it is .said, and I think it is .said fairly, that the intention of this statute was to put an end to that ditHculty. I do not think that that can be fairly denied, but we have now to see what those settle- ments were. In the first place, your Lordships will remember that by the pro- clamation of October, 1763, the Province of Quebec had been formed with a boundary very, very far to the ea,stward of that given by the Quebec Act. That boundary I think, speaking generally, comes down to a line drawn from the easterly shore of Lake Nipissing to nearly the meridian of Prescott on the River St. Lawrence. It is marked on seVeral maps, and your Lordships will see that between that limit and the due north line, most of the important settlements beyond all question which were left and inhabited by the French were to be found. The Lord Chancellor. — There were a good many forts. [His Lordshi}) read out the names of several forts.] Mr. Robinson. — I am riot going into the smaller posts at length, but I am only desirous of pointing out to your Lordships, that within the line we contend for, or to the east of that line, you will find given the most important of these settlements, that is Detroit. Sir Montague Smith. — You say there are some settlements on the other side, but not so important. Mr. Robinson. — A few, but not so important. What I say is, that they would have thought of those settlements only which they desired for their government, and I am going to shew your Lordship that there were abundant settlements included within the line which we claim, to satisfy the objects of the Act. That is all I can do It is impossible to say there were none beyond. If your Lordship will refer to Governor Pownall's account of French Posts for instance, at page (502, that was an official account stating the settlements there in 175G.* I am stating the settlements in the country which would be east of the due north line, and between that and the line established by the proclamation of 1763. He says, " There is a fine settlement at Detroit, of near two hundred families, a better still at St. Joseph, of about two hundred." Now, that, no doubt, is the St. Joseph at Lake Michigan. The only other St. Joseph that I know of is on the St. Claire River. Those are the two most important settlements there. He says he cannot speak particularly about the Illinois forts. * Pownall's is an English account, and is ofticial only in the sense that he held an official position and made his report to the Duke of Cumberland. Hia statement is confessedly incomplete from lack of infor- mation : " I have not been able yet to get an exact list of the forts in Canada ; " "As to the posts in the 348 MAPS SHEWING THE KORTHWARD EXTENSION OF UPPER CANADA. The Lord Chancellor.— Those are what we are not concerned with I think • Mr RoniNSON.-Whak T proposed to shew your Lordship, shoitly, was firat he posts and settlements which would be included in the due north line, and next those which would be excluded, so far as I know. Governor Pownall's account I have referred to. In the Ontario Appendix, at page 25, your Lordship will find what is the French account,t which must have been written about 1767, 1 should say. The Lord Chancellor.— I am afraid we must interrupt you here. (Adjourned to to-morrow, SJnd July.] i SIXTH DAY. Tuesday, 22nd July, 1884. T u M''- MowAT.— Your Lordships asked for maps yesterday. One of the books brough here from Canada, by Hugh Gray, contains such a map, of the daJe of 1809 and shews Upper Canada as extending to the limits we claim to Ji' Wlp.'r'"^°""^;" ^^" '' "« ^«« ''^' ' t^'- ^V ^as handed „n,-V^- f^™-There are two or three maps in that book [meaning Gharle- voxx Hwt t ^u 77^ posts were, in 1752, Caskaskias, Fort de Chartres, Village de St. Ph%? piaWe de^„l **»"?? =.?»>« Village de Ste. Genevieve. . . Mr. Vaudreuil thinks Kiskaskias is the'princTn"! as i^ f, th' ^''•>°'"'«. inlet of the convoys of Louisiana, as also those of Canada, and of the trXs and hunt«r. nf ^^'^ *"** Detroit, and that of the ffreatest part of the savaire nations." After referrin^tnrholilV™/^ '^^ P°«' and St. Joseph as set out in the U, he informs'lis that?Lre k '-a ^ne^^^^^^^^ which was on the Upper Mississippi, was on y one of several in that nnarfor . ^^^fiT u ?' ^""* P'»oa Chien (Fort St. Nicilas). which iraVbeen a pLe of coSeribre imporZ *eTn th^t t" ofeofasT' *"." and had so remained continuously to our own day. All the places thus named were v™ st of th^ H? """^^ Imo, and had a very larije population Pownall says of the French forts generally ''Most of th«-«tf "u^^ hae se^ttlements around them, and they do entirely support themselves." Qu Jde of aH this it wm^in' '"''* that the commanding position of tiie Illinois, the agitat on there carried on orior to 1774 f«l ' . ?^*'"' of evil government and the representations of the inhabitants "oTe^mTautSer tZ^n'^^' '''•™ portant factors m the promotion of the Act o 1774, and the extension of tho hr.?,?:.! • ' ''^'^^ not unim- th. Mississippi. (3ee ante, p. 187, note- and for further l^ticalarT jlt A.t 3^^^^^^^^ ""'^ "^ the wel'e drCuSry""'' '''"' *'** ''^^ ""^ ■*" «'""^°* °' ^''' '^P-'-- - the determination of t De Bougainville's. 349 '-K'^-r-v. ".—-.-.' IMAGE EVALUATION TEST TARGET (MT-3) A/.. o ^ 4i 1.0 I.I ■tt lU 12.2 1.8 us ■u lit 1.25 1.4 1.6 : — ^ 6" — ► ^. V]

.^^ ? ''^ '' '^Si.. Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 # rO^ m '# 6^ >^ ^#>" ^ .»>y °° MiS's and some othe™ reion oi mi^Lo An fh J ru^^^^ Z^7t the river went to-every foot of its course, from the reKwn ot MiUes Laos to the Gulf ot Mexico, had been traversed by Frenchmen and Canadians manv of them commissioned by the Governors, a« Marquette, Joliet. La Salle. Du L'sSt? Perrot" lie Sue^r, etc ! AnJr, ?"**•>?''««'«'•« settlements, amon^ which a belt of settlements on the Mississippi from the Minnesota tended for by The^nltit' ^^T,Jv' T^Ji^^'i,'^' •"^'•'«".<'* 'f^''"^' between ^thedu^ north ine con Uke of the ^^nnrt« wT^ h^f a^ "'^J'"^- ''^ A*"* Mississippi and of the most north-western point of the lAke of the Woods, were by far less extensive than the like regions to the eastward of the due north line! 355 i: sae ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY which was provided in 1803 by stipendiary magistrates. There was really no necessity for extending government to the country.* I do nofc think I can say more upon that question, and 1 leave it therefore, simply saying that that is the contention, and has been from the beginning the contention, of the Dominion Government. Now the next question which we come to is, assuming that the northward line — because we are only considering one act of this whole Statute, and one line of it only is in question — " northward to the southern boundary of the " Hudson's Bay territory — assuming that goes along the Mississippi, the next question which we have to consider is, where does that go to ? Now our view of that matter has been this : It is the southern boundary of the territory granted to the Hudson's Bay Company. The Lord Chancellor. — It goes up to that. Mr. Robinson. — It goes up to that, wherever that may be. There is no question about that. The Act is at page 866, f The words are : " to the southern boundary of the territory granted to the Merchants Adventurers o*" England, trading to Hudson's Bay." Now, in the first place, we aay that that clearly means — and we hardly think that capable of dispute — the territory granted de facto, and that that can involve no question of the validity of the Hudson's Bay Company's charter. If A should grant land to B, and should then grant land to C, extending to or bounded by the land which he had previously granted to 6; the finding of the boundaries of C's laud would involve no investigation of B's title at all. • Th3 Imperial authorities thoujfht otherWise, and so acted. The following are extract* from the Roygl Instructions, of 3rd January, 1775, to Governor-General Carleton, of Quebec : " That besides the foregoine courts of criminal and civil jurisdiction for the province at large, there be also an inferior court of cirminal and civil jurisdiction in each of 'the Districts of the Illinois, St. Vinoenne, Detroit, Missilimakinac and Gsuipd, by the names of the Court of King's Bench for such dixtrict * • • and each ot the said courts shall consigt of one judge, being a natural born subject of Great Britain, Ireland, or our other plantations, and of one other person, being a Canadian, by the name of as istant or assessor, to give advico to the judge when it may be necessary,] etc ; " The extension of the limits of the Province of Quebec necessarily calls forth y«ur attention to a variety of new matter and new objects of consideration : the protection and control of the various settlements of Canadian subjects, and the regulation of the peltrv trade, in the upper or interior country, on the one hand, and the protection of the fisheries in the Gulph of St. Lawrence and on the Labrador coast, on the other hand., point to regulations that require deliberation and despatch. The institution of inferior judicatures with limited jurisdiction in criminal and civil matters for the Illinois, Poste Saint Vincenne, the Detroit, Missilimakinac and Gaspo has been already pointed out and the appointment of a Superintendent at each of those posts is all tnat is further necessary for their civil con- cerns," etc. " And whereas we are desirous that a proper provision should be made for the support of ou.- Government within our said Province of Quebec, we do, therefore, hereby declare it to bo our Royal inten- tion that the following annual salaries and allowances be discharged and paid out of any revenues arising to us within the same, or out of such other jmoneys as shall be granted or appropriated to the uses and services of our said Province of Quebec, that is to say : * * * To the Lieutenant-Qovernon or Superin- tendents at the Illinois ~| Poste St. Vinoenne.. I Detroit j-at £200 each £1.000 Missilimakinac Gaspd J To the Judge of the Inferior Courts of King's Bench and Common Pleas at each of the above five Posts, at £100 each Judge 600 To an assistant or assessor at each Post, at £60 per annum 250 •To a sheriff for eack District, at £20 per annum, etc .'.."." 100." (Joint App. 379-382.) The Royal Commissions to the several Lieutenant-Governors duly issued subsequently. That to the " Lieutenant-Governor and Superintendent of the Post and its Dependencies, established, or to be established, within the Illinois District, in our Province of Quebec," was dated the 7th of April, 1775. It is printed ante, p. 134. Ontario contended that these documents alone, with the Royal Commission of 1774, put beyond controversjf the queation of what interpretation the Crown, and its advisers and Law Officers, put upon the Quebec Act, «- ^ *'^ anticipating my •pWf^A. \ "fu"'' '.^'^ ^''^ *° ^'y^""^ settle the construction of the ttrFnT,). K^^V^1 ^^^^ ."granted ■■ meant; but what we do contend is that „nlr fl. ■ ^r"'^.-"" %"«.«tio«> had obtained Hudson's Bay and whatever goes under the construction of international law with that discovery. They had dis- ZT f "w^f ^^y'' ^^'^ ^""^ **k«" possession of u considerable portion of the coast. Whatever, according to the rule of international law they acquired by that discovery the English had.* ^ ^4""^" The Lord Chancellor— What was that ? Mr. Robinson.— I cannot say. bonni^^J ^T ^«J^NCELLOR.-Phen. when different nations are disputing about boundaries, they have recourse to abstract reasoning and certain principles and so on but to represent that v.h a rule uf international law-and especially as a rule ot international law which had any existence or was imagined by anybody mnnnVn'^% •''^*'' 9?n«ider ir^ this enquiry-is surely a proposition which Pon^w^! maintained You might just as well go back to the time at which the rope was supposed, by international law, to be able to give away whatever districts in the world he pleased. Those words "international law" are vl?y misleading. There are certain principles generally accepted amonpst nations ; there are particular reasons which have been constantly resorted to when dis- putes have taken place about boundaries or otherwise, between nations, as the ^!nLT- f f.eansof settling those disputes; but to say that there is any general international law that gives to the first discoverer of the mouth of a river and a certam line of coast, as against all other nations, whether he occupies it or not or without regard to what extent it is occupied or not, a right to all the country that is watered by any of the rivers that come in there, is a proposi- tion which no amount of modern books will prove. nnn^f^""' ^OBINSON.-Well, I am not desirous for one moment of arguing this ?h„f T 2 *i ■!''^^■^'^ «^Pr«l^'ng any opinion of my own. All that I can say is that 1 hnd It laid down m the clearest language in the book which my learned triend has referred to, and your Lordship will find that confirmed Ihe Lord Chancellor.— We really cannot have the laws of the World made by gentlemen, however learned, who have published books within the last twenty or thirty years. Mr. Robinson.— I do not desire to have the laws of the World made in that way. Kent'^?^^ ^^^° Chancellor.— Can you find any such proposition in Chancellor ject, Mr. Robinson.— No, I do not know that he has written a word on the sub- 8hew*e?the nrioritvnf iL*wl'^^"°if' """^ '*-^°'''°^ *?, '^/'i o.^noel'^ premises as their application, Ontario 358 QUESTIONS OF " INTERNATIONAL LAW." The Lord Chancellor.— Or Wheaton ? . , , • Mr. Robinson.— No, I do not think he has written upon it. The Lord Chancellor.— These writers merely generalize from the reason- ing which has been employed between particular nations and particular subjects. Lord Ahebdare.— It must be borne in mind that Charles II. was utterly unaware of the enormous bearing of such a proposition as yours. Mr. Robinson.— As all the persons were who took possession, or as all the powers were who took possession, of the new world at that time ; nevertheless the other grants were construed upon that footing. The Lord Chancellor, — It is quite certain that France never recognized any such idea, nor can I perceive that it was ever suggested on the part of the Hudson's Bay Company in the early stages. We first meet with it in the Selkirk grant of 1814. Mr. Robinson.— You will find some grants by France very much upon the same principle, granting rivers, and the lands upon rivers, which were held to mean the same thing ; but at all events, I have in Sir Robert Phillimore's work, the last edition, first volume, page 277, and the previous edition at page 338— Lord Aberdare.— Are those the pages which were substantially read yester- Mr. Robinson. — I am not going to read those passages to your Lordships. Those passages are substantially the same as were read yesterday ; but I was going to read another passage which was not read yesterday, which I think is at page 286, in which he speaks of the kind of possession that is requisite under certain circumstances. I am reading now from the second edition, page 286 : " The chief portion of the Oregon territory ao valuable solely for the fur-bearing animals which it produces. Various establishments in diflerent parts of this territory, organized a system for securing the preservation of these animals, and exercised for these purposes a control over the native population. This was rightly contended to be tha only exercise of proprietary right of which these particular regions at that time were susceptible; and to mark that a beneficial use was made of the whole territory by the occupants." That shews that the nature of the occupation by the Hudson's Bay Company here was efficient as being the only occupation which could be taken by them.* The Lord Chancellor. — But do not you see that the same argument tends to establish every French fort as a bona fide occupation ? Mr. Robinson.— I have not forgotten that. Sir Montague Smith.— The French had hunted there a great deal. Lord Aberdare.— Yes, to a far greater extent than the Hudson's Bay people. Mr. Robinson.— That will not affect the argument about the French if it is a sound argument. Sir Montague Smith.— You seem to have forgotten that this charter itself supposes that there may be rights on the part of the French. Mr. Robinson.— I was coming to that afterwards. Sir Montague Smith.— Whether there were or were not, is a matter in dis- pute. to. Mr. Robinson. — The only otlier authority I desire to refer your Lordships is the latest work of international law, that of Mr. Hall, at page 292, where But It has been shewn, and by the Company admitted, that they never, during the French' regime. Had any sort of occupation of the interior. The French, throughout, were in adverse possession and in the enjoyment of the trade. See atUe, p. 284, note t ; post, p. 366, note +. Appendix B, hereto. J J iir 359 ARGUMENT OF MR. ROllINSON, Q.C., re QUESTION OF BOUNDARY : tlirkw * "°'*' '^'"''^ '" '"^ ""'^"^ '' * valuable one, setting out the substance of The Lord Chancellor.-Do you think that the authority of such works is greater in proportion to their recency ? Mr. RoiuNsoN.— No, 1 cannot say that it is ; but it is, of course, greater or lass m proportion to the standing of the writers. The Lord Chancellor.— These writers repeat each other, and are constantly extending the notion of international law. ^ Mr. Robinson.— I am speaking of the proper construction of the Hudson's my charter. One thing is perfectly certain, that we have here printed the opinion ot SIX gentlemen of the very highest authority in the Law in England, two of them afterward.s distinguished upon the bench, and another of whose standing and reputat- .n I am not perfectly clear, who are unhesitatingly of opinion that herKland^^^ ^ Hudson's Bay Company all the territories up to the V^^i^^^ Chancellor.— What page are you now referring to ? A..« ^■- aT^~L'"^J'^'^''®^''''""« '° P^g«« *7 and 52 of the Manitoba Appendix. At page 47 x find : n ."^^iyy Queries and opinion of Mr. Justice Holroyd, Sir Samuel Romilly. Mr Cruise, Mr. Scarlett and Mr. Bell. •"/, lur. " Whether any objection can be made to the grant of the soil "— The Lord Chancellor.— Which of those names is unknown to you ? Mr. Robinson.— Dr. Stoddart, who is spoken of afterwards The Lord Chancellor.— None of these other names ? Mr. Robinson.— I ought not to be ignorant, but I may say that I do not know what reputation Mr. Bell had. j j The Lord Chancellor.— He had a very great reputation indeed , Mr. Robinson.— I was not familiar with it. Sir Robert Collier.— Is this a case stated by the Hudson's Bay Company ? Mr. Robinson.— I do not know, my Lord, but I think so. bir Montague Smith.— I should think so. Mr. Robinson.— Now, your Lordships will see it does not depend upon any case at all, or any facts, if you will simply look at the first passage. "Whether any objection can be made to the grant of the soil contained in the charter, and whether the grant will include all the ountry the waters of which run into Hadson'a -Kay, as ascertained by geographical observations." Now that depends upon no facts. The answer is : *u . .'!^.^,*." P^opinioii 'hat the grant of the soil contained in the charter is good, and that It will include all the country the waters of which run into Hudson's Bay, as asjer- tamed by geographical obeorvation." Now surely nothing can be clearer than that. Now, that was a second opinion of Mr. Cruise, because at page 39 there is an earlier one. The last opin- ion 1 read was given in 1813. At page 39 I find a similar opinion by Mr. Cruise. "That therefore the opinion of the geographers would be adopted, namely, that all the countries lyin? upon the waters which run into Hudson's B*y are included within the charter. ' I think there must be a misprint there, for it says, ineffectual." I think that must mean, " for otherwise That was also a second opinion of Mr. Justice Holroyds. 360 ^ , for therein it will be think that must mean, " for otherwise it will be ineffectual." LEGAL OPINIONS ON THE HUDSON'S BAT OO.'I CHARTBR. The Lord Chancellor -Mr. CruiHe is a gr at English lawyer, whose digest 18 a very useful book, but I do not know that on 8uch a subject as this his autJiority is very great. j,;a«I!^'"-*^^!"^^r^- ^'^°"°'^!''?°'^"'y Lord, but T am perfectly satisfied that his opinion has far greater weight than my own. and that is the reason I desire to reter to it. Ihat was a second opinion of Mr. Justice Holroyd's which I read because as appears at page 34.. he had expressed the same opinion in the previous ^?-\ T ,"^ ^^^ "P',"'""" ''' ^^ P^^^ ^-^ ' *'^» ««contl opinion is the joint one to which I have already referred your Lordships. The gentleman whose name I was not familiar with, and whose reputation I did not k-now, was Dr. Stoddart. aTs? ^ ^ ^'^^ ^""^ ^''^ opinion at the beginning of page 50, and in full at Lord AnERnARE.--Yes ; he goes into it fully. ' Mr. ROFUNSON -Yes. my Lord. All that I wish to say about it is that if your Lordships will read that opinion I am quite content to adopt it as my artru- ment. I can ada nothing to it I am perfectly certain ; nor can I state the con- siderations which we think should prevail in the construction of this grant more clearly, or as clearly, or as strongly as he has stated them there. If they do not tr"i^'°To do"^ ^""^'Iships. I am sure l should be wasting your Lordships' time in The Loud Chancellor.— May I ask. with regard to these several opinions, what was the precise matter which the learned counsel were as', d upon ? You see some opinions are to be construed with reference to the cases upon which they are given ? Was it stated that there was a question of boundaries between Canada and the Hudson's Bay Company, or were the opinions given with reference to any such question ? Mr. Robinson.— They were given with reference to the disputes existine. If 1 remember rightly, about the North- West Company. The Lord Chanckllor.— I supposed that, but then, you see, if the minds ot counsel are directed solely to disputes turning upon the validity of the charter and not suggesting counter claims upon another kind of a title, they might give the go-by to what is the question we have to consider entirely, and the tact that It was not brought before them is a thing to be considered. Lord Abehdaue— As a fact, between the North-West Company and the Hudson 8 Bay Company— the Hudson's Bay Company might think the North- West Company intruders ? ^u ? J ^^.'^^^^HANCELLOR.- Supposing this was an unoccupied territory which the Hudson s Bay Company had the right to occupy and possess, and make themselves masters of, under their charter, and that the only question was between them and certain traders who denied the validity of the charter the can quite understand opinions of this sort being given upon differences between such parties and upon such a question, but would they really have much bearing It the question were between France and England for instance. France insisting that she had occupied a certain territory which came within the theoretical limits. Mr. Robinson.— 1 am not presuming to say what value they have, my Lord. Ihe Lord Chancellor.— No; but have they any bearing? It is not a ay Company, this charter granted to that Company the land up to watershed.* i r j t Then we come to what is the effect of any subsequent proceedings Our view has always been, and your Lordships will remember that I am not pressing all these views strenuously upon your Lordships, we are not directly parties here we represent the Dominion, and the Province is a part of the Dominion but it is our duty to place before your Lordships the grounds upon which the Dominion came to the conclusion which they adopted, and it was impossible for us to dis- regard those opinions which we find there, and the view of international law which we hnd stated in what we take to be works of the best authority Our view has always been, with regard to the other portion of the case, that the trench occupation, that the French doings, the French position in that country, the French habitations in that country, or whatever you choose to call It, have no uearmg whatever upon this case.f Whethei we are right or wroncr m that that is the view which has always been adopted by the Dominion and which has been presented to them many years ago by those who were consulted. JNowitmustbe remembered that both parties here claim as it were under a a cominon grantor-, that is to say, the same authority which granted the charter to the Hudson s Bay Company, fixed the limits of the Province of Ontario The charter was granted by the Crown of England, the limits were fixed by the tl,n«Anwi^''vf"""*®'^*i°°P'°.'™'' °^ n*^"!' ''."*'^''''' '"8^*' authorities, which were quite at variance with dear ITtfthl Witl'- T^ '^'Pf'^f^y "'? ^T^. "'"'"rV^'"PT/T^"'^'''^*^ ^'"^"»' «»• this charter secured to C bu. what the Crown of England or rather the Government of England, or Eng- Til W*J '^^ R°'"l' T'^"" 'I''"'" ^' ^"^^ ^^*''»' considered to be the limi 1 ^"t"*"^ *y ''^?!"*^'''' *''''' recognized as being the extent of their grant f Lord ABERDAHE.-po you, as representing the Dominion, claim as part of Lower Canada all that is east of this line, that is described in Lord Du?W8 commission, which ran up to the shore of Hudson's Bav ? Mr. Robinson.— All to the east of that line. Lord Aberdare. — You claim it ? '• . ' . thnn^f n??fT''''-~^-f-PPT-*^^*^ ^'.P*'*^ °^ ^"''^'^ <='^°'^da; but I have not thought of it, because it is not in question here. Lord Aberdare.— If so, you are claiming lands which, according to vour S wtt'of lat line' *" '^' ^"^'''''' ^'^ ^""P""^ J"^' "^ ^""^ ^' '^''' ''^ hpic^T^lf nf ?°"!f "tT?^ ".''' "^^r ^^""^ U^^^^*" ^^°*^d* ^oes not claim beyond the height of and.t Tlie limits of Lower Canada's boundary, if I recollect right for I am speaking from recollection only, are the height of land. I think it begins ts^n!b?cr:fh^at :ouiirpen^ ^'^ '''' ''''''■ ' '^"^^ ^-^ ^' ^^^* *' ^ Lord ABERDARE.-Then what is the meaning of that boundary line, which CanaJr'^''^^ ^ ^"^ *^' Commissions, between Upper and Lower north^ar?^'^^^^^^""^^*^ ^''' ^^^ boundary line running through Lake Abbitibbi Lord Aberdare.- Ye s, to the shores of Hudson's Bay *® W 1 ?°"'"?*'^y °" 't« ^»";'"s oouraes to that point of the 52nd degree of north latitude which is intereected by a hne drawn duo north from Anoeau Blanc Sablon, and tiilnco south by tClastmention^^^^^ ^Hn!^''''^^ ^fi'^'l^?_b£*^L«».!i"«^« and, the. Newfoundland Bection of YabrXrTuW need to be fhem^nd theFre"nch; on th;';;sni»The"B4r 17"oi.'"" " ""'' ^'"'"^'"'^' «" '""^ ''"""•^"^ ''«*^-«° i \ I J. I 11 363 -":<.-.», •1=., ARGUMENT OF MR. ROBINSON, QC, re QUESTION OF BOUNDARY through Lake The Lord Chancellor.— It goes from the River Ottawa Temiscamingue up to the River Nottaway. Lord Aberdare.— They take no notice of the height of land ; thev go riaht through it all, and they seem to throw into Upper Canada everything that is'to the west of that. Mr. Robinson.— Where are these limits to be found ? The Lord Chancellor.— In Lord Durham's Commission; I do not know whether that is the earliest place where they are, but they are clearly to be lound there. -' j Lord Aberdare.— They are mentioned before, but they are mentioned with the words " boundary line of Hudson's Bay," and then it was argued that that meant the boundary of the territory claimed by the Hudson's Bay Company. But tlien you have in a subsequent Commission the words, " to the .shore of Hud- son's Bay." Mr. RobIxVSON.— If your Lordships will permit me to say so, that is the branch of my argument founded on the Commissions ; and I was going to take it afterwards. That is entirely a separate matter. Lord Aberdare.— But I wanted to know as a matter of fact ; and surely the Dominion must know whether it claims as a part of Lower Canada all this territory which apparently is marked off as belonging to Lower Canada. Mr Robinson.— I cannot say what the claim of the Dominion would be as regards Lower Canada, because I have not addressed myself to that, not thinkint^ that It was in question. I cannot speak authoritatively as to that. I should have to go back to the Quebec Act. Wq have always regarded that Act as defining the boundaries whatever they m&y be. Sir Montague Smith.— That is common ground, and if so, the question is whether the Province of Quebec does not indisputably go up to the north' independent of the watershed ? ' Mr. Robinson.— I think I understand his Lordship's question. As I under- stand his Lordship, he is referring to its being carried up by a commission. jSrlLord Aberdare.— No ; the commission explains more clearly, in indisputable language, that which before was described in language more open to doubt. Mr. Robinson.— What was previously described in another commission. Lord Aberdare.- I do not want you to anticipate your argument Mr. Robinson.— I will pass on. Sir Montague Smith.— You were just saying that what the French did had no bearing on this case. Mr. Robinson.— Yes. That has been always in our view a most important question. We are both here, claiming under England,' your Lordships must remember ; and we say that the rights which might exist internationally as between France and England cannot affect this question which is one as between the Province of Ontario and the Eludson's Bay Company, both claiming under England.* Now, there is no question that the Crown of England assumed to grant to us- - "The Lord Chancellor— Is there a copy here of Lord Durham's commission m full. Mr. Robinson.— There is a copy. The Lord Chancellor.— This seems to be only extracts from it. Mr. RoBiNSON.~They probably would not give the whole commission. X, « , ^^i"° Chancellor.— I should like to see it. It is the commission of note*+^°'""° Bhewed that this was, in the oiroumstances, a wholly fallaoioua contention. (See ante, p. 363, 364 ROYAL COMMISSIONS TO THE GOVERNORS ARE FORMAL ACTS OF STATE. ig that is to iommission will proceed with the commissions, if your Lordship thinks Mr. Robinson. it the best order. The Lord Chancellor.— It is not merely the commission to Lord Durham • but the same description is repeated in the commission of the same year to Sir John Colborne, as Governor of Upper Canada. The same thing is repeated in the commission t. Sir John Colborne, of December, 1838, as Governor of Lower Canada, and the commission of 1839. Mr. Robinson. — Yes. • ., The Lord Chancellor.— In truth in those two years, 1838 and 1839 there was no less than hve commissions, all containing that description. There were the commission to Lord Durham for the whole of Canada, apparently both Upper and Lower, a commission to Sir John Colborne, also for Upper and Lower Canaaa and another during the same period ; and in each commission the description is the same. ^ Mr. Robinson.— There is no question as to the meaning of the terms of the commissions. The question as to their effect I propose to discuss The Lord Chancellor.— Reputation is of great importance, and what reputation can be higher than that which is expressed in these commissions * Mr Robinson.— Of course I am very ready and very desirous to go to that part of the argument, if your Lordships prefer it, but I am trying to point out what we think a very important branch of the case— the eff^ect of the French possession and the French acts within the country. Sir Montague Smith.-You say that has always been regarded by the Dominion as being irrelevant. Mr. Robinson. — Yes. ' .:,^ , -;. . . ; Sir Montague Smith.— What is your argument then upon that V .1, . «7 I^^'^iNSON.- My argument I was about to address to vour Lordships upon that. We say that the question being solely as between Ontano and the Hudson's 15ay Company, the question of what was granted to the Hudson's Bay Company must be what the Crown of England treated as the Hudson's Bay territory : that when Canada is directed by the Act of Parliament to goto the southern boundary ot the territory granted, m order to ascertain that, we must ascertain (all French claims being removed by the cession of 1763) how and in what light the Crown of England regarded their grant Anything that the French obtained after the grant by the Croivn of England to the Hudson's Bay Company- anything the french obtained by possession, or whatever it may be, was practically obtained as an act of war. It was obtained as an act of trespass, or a hostile act against the British Government.f ° * The passing of such a commission is a very formal Act of Statn inHnaH T.u.-J ^ I T"' of 27th December. 1774 to Sir Guy Carleton, L C^X^Gel^TjfZyeZff:^c"Tol'"llT:^^^^^ Province of guebeo:(l) the King, through the Earl of Dartmouth, Secretary orstatedirLI^thn?^^'* Commissioners for Trade and pFantations to prepare the draft ; (2) the draft so nrnnurfi f k 'feJ'"'^' Oouncil referred to the Lords of the Committee of Council for Pantation Affairs • %Uhf^ I ' ^/ 0"'«.' "> ^''"f "IV f."*^ ''^rJ^>? *?« ^."°^"«y ^""^ Solicitor-General for their opinion wheiher ts nrovlfon^"'"^" pond with those of the Quebec Act. and are Drooer in noint nf Uw ■ (i\ fh»^„:„;"U „.!u_ f ''* P'"''"'??* P.»"e8- B ante, p. 363, dr^ftVf a cSmmiS^which-is -he^eu'^^^^^^^^^^^^ Srti'l^.^n.f^"'"^ «'^*' Britain ,?,7)Tire a<^^^rortrSrSeX^^SSn°o?af fiaS 'I'hepassingof the Royallnstriictions was attended by very much the 8amf.fnrm„iin«>., .. xi. . xl Great Seal wasjiot affixed,^ They were always approved byjhe Weign f^CouS f/' TtV trespassers, from the isolated place* thoy hlidir a short space occupieSM the^Z^ef '^'f theTy' • 'th* 365 llh ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY : The Lord Chancellor.— You do not pretend it was occupied in any other sense t' an that there were forts at the mouth of the rivers and upon Hudson's Bay ? Mr. Robinson.— Yes, there is that unquestionably. Sir Montague Smith.— In what respect did your occupation differ from that of the French ? Lord Aberdare. — In being les» complete. Mr. Robinson.— No, we discovered the bay and the rivers,* and we settled upon the coast.f I am either right or wrong in saying that gave us the right according to the rules at that time prevailing. Sir Montague Smith.— Thalt is discovery ; but as far as occupation Vsrent ? Lord Aberdare.— Did you occupy them within reasonable time ? Mr. Robinson.— We think we did. Considering the nature of the territory and the purpose for which it could be occupied, we think we occupied within a reasonable titne,+ and we say the French came in there simply as trespassers 8 endeavouring to take from us what the Crown of England had asserted a right to,|| what she had established her right to by discovery* and what she had granted her subjects.! Then we say whatever rights could be founded upon the occu- pation by the French at all events vanished when the French ceded the whole country, in 1763, to England,** and afterwards, when England subsequently to that recognized the rights of the Hudson's Bay Company under the charter granted by the Crown,tt the Crown never for a moment adopted the rights acquired by the French as entitling the Crown to any portion of this land.tt " Lord Aberdare.— Then comes the question, why on earth did they appear to take all east of this line. Mr. Robinson. — That I will come to. Lord Aberdake. — That at once breaks enormously upon your argument The Lord CHANr ellor.— The Commissions were Acts of State, and of great authority and importance, begin ning contemporaneously almost with the Con- J^f h" r"'''"' °^ ^■^■^^ P'*°u? *" ?!5u*'"=® ^y the Treaties of Neutrality and of Utrecht ; the oonBequent loss to the Company, irrevocably, of these places under any past titles, whether by charter occupation or other :r.,':^Z7Z-'r^^^:ofh'^,:!^r:Xi''^Jt'^ ^"^^^^y^^^ O--. - itaownrigh,^andto itsol Wol P^® so-called discovery by the English from the sea was merely incidental to the search for a North- west Passage, and was followed by no sort of possession or attempt at possession, and there was a com- plete abandonment even of the voyages. T^e French discovery of this region was overland, followed by an actual and ever continuous possession of the lands and of the trade, and supplemented bv occasional voyages by sea. (Ante, pp. 200, note •, 253, note • ; appendix B, hereto.) "PP'«"»«n"y occasional . t Their settlement was of a few isolated spots only on the shore, and but temporary, the French quickly ousting them as trespassers on the territory of Canada. F""»fy. ^"e rrenon « .^ "^^f evidence is quite contradictory of this position. The Company never occupied any oart ?774finHTl*f'"Tl' Henley, and that not until 1740) nor even sent any of their servants therefore 1774 ;^and they frankly so admit {ante, p 284, note f). nor before the Treaty of Utrecht could they be said to ivyn of the snore of the bay, {ante, p. 253, note *. ) The French possession have had any settled possession evyn,,. i,..o ouu,dui kuo uay, \(ini.e, p. zoa, note'.) on the other hand was actual and continuous down to the very close of their regime. (Appendix B,' hereta) § That is exactly what Ontario contended was the position of the company ; as regarded the French it had no application, {ante, p. 253. note * ; appendix B, hereto). "B-^ou wie xrencn, it H This assertion was by the charter of 1670 ; but even the charter reserved the rights of France. Then the French Imd assertwi their right nearly half a century earlier, by including these rejtions in their charter of 1627 to the Hundred Associates, {ante, p. 200, note * ; appendix B, hereto.) ^ IT The grant was by the charter, as to which see ifote ||, supra. •• Ontario denied this. See ante, p. 363, note f. -H- There never was recognition of any defined territorial limits. And in fact the Crown assigned to the Prmrinces immense regions which had been claimed by the Company as comprehended in tbe charter. tt And yet it dealt with this land without regard to any supposed rights of the Company. 36G EVENTS FOLLOWING, AND CONSEQUENT ON, THE TREATY OF UTBECHT. Fer from that ry, the French quest of Quebec, and coming down to the years 1838 and 1839. and probably the case depends upon them more than upon anything else.* Mr Robinson —Then my Lord, i will go to them, and say what I wish to say. to try and establish the argument which I was advancing, because that r^tCDomin?oV whether right or wrong, has been the one always adopted Sir Robert Collier^You have something to add to your present argument betore you go to that. You may as well finish that perhaps. Mr. ROBINSON.--It is just as your Lordships desire. I am only anxious to place myself in the hands oi the Court, and conduct my argument as far as I am able as they desire If I am to conclude that argument, we say that the question B~T^' d'd England regard as the territory she had granted to the Hudson's Bay Company ? Because, beyond all doubt, by the Act of Parliament we were entitled to go to the limit of that territory. Now the claims which the Hudson's Bay Company made have a double aspect in th«s case They bear in so far as they were known to, and sanctioned by, or adopted by the Crown, upon the construction placed by the Crown upon .heir own charter,just as an executive act of the same nature in the commissions would be an act shewing the construction placed by the Crown upon their <^rant Ihev also bear upon that expression in the Rupert's Land Act "the territorj held or claimed. I am not again going into that in detail (my learned friend has done that) as to what it was they did claim ; but I want to point out to your Lordships one or two points which seem to me at all events to be worthv of a specia notice. After the Treaty of Utrecht, by which the Hudson's Bay territory substantially was ceded to England by France (the treaty having been concluded in April, 1713), in May, 1713, the company demand delivery of possession to thei- nominees. Your Lordship will find, at page 576, what I take to be the plainest recognition by the Crown of the rights of the Hudson's Bay Company. As I un- derstand it, the Treaty of Utrecht at all events ceded all that territory to Eng- land.! Now at page 576, Lord Dartmouth writes to the Lords of Trade Her Majesty having been asked (on the previous page) by the Hudson's Bay Company that she would be graciously pleased to direct the said Act of cession miaht be transmitted to the petitioners as also Her Majesty's commission, to certain gentle- men named to take possession. In answer to that Lord Dartmouth says : X T> "•} ?" to acquaint you that the places and countries therein named beloncinff of rijrht to British subjects Her Majesty did not think fit to receive any Act of cession from the French King, and has therefore insisted only upon an Order from that court for deliver- ing possession to such persons as should be authorized by Her Majesty to take it ; by this means the title of the Company is acknowledged and they will come into the immediate en ]oyment of their property without further trouble." Now that, we say, is the strongest conceivable acknowledgment and affirm- ance, and assertion of the title of the Hudson's Bay Company by the Crown • We have nothing to do with this territory. France has been obliged to yield it to us, but wo decline to take a delivery of it to ourselves. We simply "require that the French Crown shall deliver it to the Hudson's Bay Company, whose territory it is."t Now in pursuance of that, possession was given. J * See as to thia, ante, p. 366, note *. of thL^riftf^n l"***}. '''' ^''*.".?''' *"'' 1? this prooeedins: by Ontario, that the cession wag restricted to certain LoXs hr ateXde'a^t'w'ith'tS^ *'''"' ''^P^"'^^"* '^'"'" ^''°^- ««« »""'• ^^- ^'■''- -'^^ »»»-' Bv ti J^«i°m*"*^ '?''^ different from this. France knew nothing of the company in the transaction. By the treaty, the restoration was to be " to the Kingdom and Queen of Great Britain " and the actual 3C7 ARGUMENT OF MB. ROBINSON, Q C, re QUESTION OF BOUNDARY. Sir Robert Collier.— The delivery was of the Bay and Straits of Hudson and the buildings thereon erected. Mr. Robinson.— Yes, there is no question what they claimed. Now we shall see what construction the Crown put upon the extent of the claims of the Hudson's iiay Company. Will your Lordships refer to pages 511 and 512. You will remember that commi.ssioners were appointed after the Treaty of Utrecht with the view of settling these territories, but whether they ever did settle them or not is a disputed question, but upon which the weight of evidence, I think is against their having settled them. At page 511, your Lordship will find the document.* ^ Sir Robert Collier.— We have had this document. ^? - • ^ • •II ^''- ^^^BINSON,— Yes, that document has been referred to. Your Lordship will hnd that this was a memoir on the limits of Hudson's Bay, sent by the ^nghsh commissaries appointed by England, through Lord Stair, Ambassador in tana, to the Mar^chal d Estrees. one of the French commissaries. We there have the demand made by th(i Crown on behalf of the Hudson's Bay Company. What can possibly be stronger than the demand made there as including the watershed ?t In the hrst place " the commissaries named by His Britannic Majesty demand that the said limits may be defined " to " commence from the north cape of Davis' Bay " ^ -I he Lord Chanpkllor.— That is the 49th parallel? Mr. Robinson.— IMo, not what I am on at this moment The Lord Chancellor.— That is fptther to the north-east ? ' ■^'-• Mr. Robinson. — Yes. .1, 7}.l ^"^^^, Chancellor.— All, that we have to deal with as to this, is surely the 49th parallel. ■^ Mr. Robinson.- Yes ; but your Lordship will see when I point out the rest how completely their demand includes the height of land. Their demand was : " That no French vessel, boat, or ship whatsoever, shall be allowed to pass to the north or the west side of the north cape of Davis' Bay, towards or into the Strait or Bay of Hud- son, under any pretext whatsoever ; and furthermore that ... the 49th parallel I shall bo their hnut J . . . The said commissaries further demand that the subjects of His Most Christian Majesty shall not build forts, or found settlements, upon any of the rivers which empty into Hudson s Bay, under any pretext whatsoever.''^ delivery was to be "to the British subjects having commission from the Queen of Great Britain to demand and receive the same." The Queen's demand upon the French Court was ''for In order for dehvermg poase.a.on to such persons as should be Iiithorized by Her Mrjesty ;" and the French Snt Zp'^Mt ^75 6 ^^'aZVI '" ^f"'' "? t''}^^ ^^'^^ "^ '*>« ^""^n of Great%'rita.Vs ordef," etc accordingly. %. .^Tsf 578 ) '"^'°*' appomted to receive possession bore the Queen's comm'ission af thi^t? **>*«'^«° '^^?, British Crown and the company, the contention of Ontario was that the company c^e to U (a,ufD"363"noteV^. V"hrf h"'" '^"•" '"""K^ '^' "°^° ""'^h* °^ ''« P"'« grace choose to 'ion^ owasion was Kubseau^nt^l inVh^ » f 1 concession as the crown appeared disposed to make on the present occasion was, subsequently in the actual practice - whether because of the ntention having been orieinallv to make it merely provisional, or because and as a consequence of the company's utter failure to ocouov the inter or country, or, in act, anything beyond the few posts on the shores of the Bay- n arge partlgnored or at all events, greatly restricted, and extensive regions claimed to be within the clianerHmits dealt with and assigned to other purposes, without regard to any supposed rightlof the company * Boundaries claimed by the British Commissaries, printed ante, p. 159, t This was unauthorized by the Crown. See the next following note. contiin'no relefenci\o'ir"J Tv h*h T'-^'.^''* English commisHaries exceeded their instructions, which coniain no reterence to it ; as they did also in demanding that the ne should commence in lat fifii' or thn a^f pTg^fc ht'U'dVn"eh"?l"?' reqiiiring lat^ 684° or GrimingtonHsTand "jointlWs Bkden • ■• A t our nlir m.„t?n> '^^^'«^'^°<^ ^itTiout autHority, appears also by the letter of Commi.sar; wS 'with some few adZtn/.,' W "^^ ^^V^l *°^8'y« >n the claim of the Hudson's Bay Company in pSten^eV wrUes '' -rLftlp r«^'h"/ ""*'*'i:'?' '"' '^.'i''' ««'v'<=e." (Joint App. 510.) Later, Commissary .^ Zl"\Zh.J^.ll'l:i^^^^^ t° «"*«''"!" "« now and then with a oonferenc^ their i-'8 contention, see anc« exclusive right of trading in the e , territories. Ihat thoy had exercised such domin on, or enjoyed the exclusive trade of th« in .n^ I^?,f.rVZ'°»h"? '"y^here away from the shores of' the bay, Is so notorious y at variance wih the Tdo ument uLil"Lord""s*.re?'"\'*r '""^^ •",«-*»'«"'«'>* "anie t., fin^d place Tn so forrn^ such dSon and nntfl ^3' "^o'tive undertaking, there was no attempt even to exercise sucn aomimon, and until the issue of the license of 1821, to this Comoanv and the North Wo^ C:ZZ Exce "al'&ev'rh^ r'I''^'?*"^ "' ^'''''''^^^ '«'^«' and thenTnfylLuy with tKnS i^Cd p«ts durteh« npiEl *''f%?"ir" \^'*r Company never left the shore, or set foot in any of the App* WsVwherefn U ur^ed ^^Z f ^"T"" "' V'^ ^T^'^y^' W (S^'"' P^P"- C*"- 1857, No. 17 ; Joint tlr^r^i'ory ov^r whTch the Sudson^i R^^'^rj;'^'"'^ °^ ascertaining the limits of Canada in the direction of the thit the westerTh mnd^r^^f n . ^ Company claims jurisdiction. The general feeling here is strongly Ke noTthern bordary! ^ "'"^^ ""*'""' '" "*" ^"='«'' O"^*""" ^^' »h«'« " ""'^iSg said in regard mart "ss^** 'T«'?t''fBZ?>^rhi^f «=""*" ■''' .^"i^* ««''«"'•• ^hey are under Order in Council of 16th Feb- S'n thaV«av be arr Kt hv th^^^^^ ".t*"'* °' '^'^ •'u'^«'"=« **>"* '""7 ^e taken, or the con- ment may thTnk Droner to aSoK f h ^""'".^^VTu^'^r?"""? ^'>*''^ P"«an>ent or faer Majesty's Govern- f;ntTt!}tt =nVa\^^L^°uUt/r L' ptcte ""or,^^.:' ^ULZ '" "'' ^Ts^rn^'^sTyVr UkTs"tS^forXt'g\°o\trd"alr*f''' *he Hudson's Bay Company'or" territory is constuS?ed yo'u ^i You win consider it fs a ^r/.f i , ^hT^V"" *? T"' ^T' ''^^"^'"^ *" ^^e interests or claims o Canada, xou will consiaer It as a part of your duty to watch over those interests bv correctini? anv prro-inniiH im S^Tcort°of'^te teSr "alT^Iti" ^ "'"'T "' %''^"' "' ^.^^''^b'^ •''"d wilic^'this P^ovi°ny m^fposs " on^ account of its territorial position, or its past history." (Joint App. 165-7 ; Sess. Paps. Can., 1857, Sir E b' Lv\tru«ld"th?0^™v^t °ll^^ ''^"^'' *" '^?^ '"''* 1»^9 *•>« I-^P^"*! Government, througlv that in default theTovPr—^"^ ^M°.^ consenting parties to proceedings for testing it. notifying them GranWUe thev intLatld Tlh» P "''' themeslves take the necessary steps ; and in 1869, through Karl were not unZnuted ." and on .1 their opinion " that the very foundations of the Company's title revshouWbeeubmi'ttedfnr iM^itj^f'''"" ° the.boundar es, their opinion was always pronounced, that itiey snouia tie submitted for judicial, or quasi-judicial, decision. (See ante, p. 333, note §.) thev^ •'^oa^nnot but ^e*JtW?h «';!!!.*!''' T '^"'S^ "" }°^^l 1"««''°" "^ **>« ^a»« ^"^J««' "^ ^ quasi-judicial e/quir^y," but c Jn''sider"d \^hIt^r™rlv^*™^P°^'''T,: Canada emphatically questioned the validity of the charter, tute?hrneceLarv Dr^e^ed,^^^^^^^ ^«[°'^efi rather upon the Imperial Government than upon Canada to insti! tute the necessary proceedings. The joint address of the Canadian Pariiament ';o Hw Majesty, of 13tH Wl etc And in the joint address of the same Parliamen*- nf 9qfh A^;ii~iaKQ~ tt. — "•""."' Y'"" "»"°°"" j"<..i. .. Canada oiiffh mot fo ho ,.»iio,) „„ ,„ * iraniament, ot .ijtti April, 1859, the opinion is expressed "that Compannnasmuch as such nL the question of the validity of the charter claimed by the Wer be'invTd snW? t. ?^1,^ i '!,""°'X *" .*h« ^'""'" ^o/ers is not part of Canada, and is, if the °!\_ Sn,. v'°H i:- ^- "P*"*^'*"'^"-°*^ control." etc. (Joint Ann.. 22R. 240 . a^H mp. meot'on tbeb'siroVa oo'^nrnmufiV*' "■ "iT^i'^^l *5«' ^^^^^d, on the initiative of the Imperial Goveru- sarfs'teps under protest!™^ ''''"°°*''''^°"^'*^ have taken the neces- 372 prayer of the 1 SUHUENDER OF RUPERT'S LAND TO HER MAJESTY-TRANSFER TO THE DOMINION. recognized by numerous Acts of Parliament, and they xvoul.l Hub.nit no question w nch implied any doubt as to Uh validity. Canada would not question it her- vn„ n ,xll rt" ■'^"^f •'!**^^ *« ^^".a'^a : Do you not wish to take part, or had you not better take part, m neKotiatious with the Hudson's Bay Company for the cession of its territory Canada declined. She said the Imperial Government granted the charter, and had better negotiate with the Company t<; whom they granted it and our arrangements can be made subse.iuently. They then sent four delegates from Canada to assist in those negotiations, though not directly, but to be there as a board representing Canada as I understand it. Then Orders in Council were passed, and so on.f There was an address to Her Majesty from the Dominion Parliament. There were arguments strongly «rged by the Dominion Parliament that th3 cessi^on should be made without any reference to the Hudson's nnnn n TT' .f'^^^'^A '^^c'^^ ^"i. ''°°"^°' ^"^ anything of that sort and insisted upon protecting the rights of the Company.j Your Lordship will find, at page 276. in 1868 the Colonial Secretary writes to the Governor-General, refusing to transier,§ and saying : ., • e "I purpoae to introduce a Bill into the Imperial Parliament with the view of auth- orizing any arrangement which may be effected on the baeis thus indicated : of defining the territory over which it extends," ' * * See ante, p. 372, note ||. *k1 vl » ? onthig Jieaa . We arrived at the oonolusion that the qu ckest solution of the Question woi Id Ha the best for Canada. We accordingly proposed to the Imperial liinisters that the whoirRrirsh terrtorJ e»st of the Rocky Mountains, and north of the American and Canadian lines should be made ov«rtnr^^^^ neKotiafons w.th the Hudson's Baj; Comnany for the extinction of VheToUmJ h^ it not teen for the ?r ^?.M°^ ^- "T^^ absorption into t^e proposed Union of the British North American Colonies ill "»';? obviously have been improper for the Canadian Government to commence negotiation; which they could not hope to complete, or to enter into engagement, the fu^^fiCent of wW?h S""*,n*>" S,°u «•'« whole Confederated Provinces." (Joint AppT 259- Se« PaWrCan iSws t The Parlia,ment of Canada, in their address to Her Majesty, of December, 1867 asked for the transfer W S?I I'sfv-^P*""^ "'" North-western Territory to the Dominion, and rde took '••''ffi ^Vhe event ^ Your Maiesty s Government agreeing to transfer to Canada the jurisdiction and control over the said redon Pn^^ ^^'"'"*"*^?"^ Parliament of Canada will be ready to provide that the le^al rights of LrCoTSoS' onTnT^; ■■■ •"^■•\'^"''.'^!V"'""\^'''«"' ''^»" ^^ respected, and placed under the protec^on of Ss of competent jurisdiction." (Joint App. 266; .Tournals. Corns. Can., 1867-8, pp. .56-7.) It cannot therefore be truly said that it was propcsed to ignore the Hudson's Bay Company's r'iglfts, or refuse ?hem prot^tion the praver'of^Ve^A!HreT 1' '.on?'« ?J''^'l^n «<'^«'-'""«"t T"' ^^ ^"""8'" recommend a compliance with interests nfH„rM^^.i»«fv"' k" / • *'^^^ '.'"'i"-'"' ^mpo^ered to do so with a just regard to the rights and interests of Her Majesty s subjects interested in those territories. They are advised however that the eqmsite powers of government and legislation cannot, consistently with the eSg chaS of 'the Hud! son 8 Bay Company, be transferred to Canada without an Act of Parliament. Before such an Act can be obtained it is necessary to consider the position of the Hudson's Bay Comparer. ""*' I hive caHed X%Jht?Zvhlvr''''''''w?.rr-T'^'°^'^^ r"''^ ''« P^^P*""* to^urrender-totheCrow^what «verngnts they have, . . • with the intimation that no present payment in money will be made to them t on' o? and'fr l""™'^' "* "V"" "''''' t" ^T "1*' '""^h^' »"^- * reservaUon^^adelo'them of defin^ Sor^^inl „^ ^ -^ • • .• K- P"''P"'« t° introduce a Bill into the Imperial Parliament with the view of ovHP wWh^> '^.'^ '^''*^""?' 'r^'"- ""y ^ "^^"^^ °° *'"' l'^" ^^"^^ indicated ; of defining the territory ar/n:!LLll'K^*?i':.Li'}1.".'l'.'>°^^^'"« *•>.« Bubsequent transfer to the Canadian 'Government of thl riXts prayer •of\h;AddT;s'8:''"iio'urn;is:0om'8:C^^ ^''^ prupeHy. m accordance with the 373 I ABOUMENT OK MR. HOBIN80N, (^.C, rc QUKhTION OF liOUNDAHY and so oti. So that the intention of the government ht- re to pass a Bill defininir this territory was also then expressed. Then the next thing we And is, that in 1868, Messrs. Cartier and McDougall, two of the; then Ministers of the Crown in Cannda, were sent to England. That was after tlio passing of the Rupert's Land Act. Your Ixirdship will find, at page 275, that before going to Eugianci they 8j)ecially called the attention of the Government " to the terms of the recent Act ot the Imperial Parliamcint to ' enable Her Majesty to accent a surrender, upon terms, of the lands, privileges, and rights ' of the Hudson's Bay Company, which declares that Rupert's Land, for the purposes of that Act, ' shall include the whole of the lands and territories held .or claimed to be held' by the Company.'" And they recommend that they be authorized to arrange for the admission of the North- West Territory into union with Canada, either with or without Rupert's Land, and the Committee of the Privy Council of Canada report upon that, and it IS approved by the Governor-(}eneral. Then the Rupert's Land Act is passed, which is to bo found at page 445. Now what we say with regard to that Act is that it practically puts an end to the whole of this controversy, and that it was intended to put an end to it. The way in which it was arranged was this : Her Majesty accepted from the Company a transfer of their whole property, a-.-t. for the purpose of the transfer, the property was defined, and it was surrendered to the Crown as all the lands the Hudson's Bay Company had claimed. The Lord Chancellor.— Held or claimed. Mr. Robinson.— Yes, " held or claimed to be held by the said Qovemor and Company." Then the Imperial Parliament, or rather the Crown of England, hav- ing the property in themselves, granted that property to the Dominion. The Dominion acquired that property from the Crown ; the Dominion paid for that property the ivam of £300,000, the money coming from the joint purse of the con- federated Provinces. The Lor» Chancellor.— Supposing any part belonged to Canada. Nothing was paid to Canada, I suppose — was it ? Mr. Robinson.— No, it was not ; but for the purposes of getting that Act, and for the. purposes of getting the territory, it was vested in the Crown ; it was acquired from the Crown by Canada, not by Ontario. The Lord Chancellor— But is your proposition, that if under those words a considerable slice of Upper Canada was taken, that that was taken without any consideration by the Imperial Government from Upper Canada ? Mr. Robinson. — Yes, that is so ; it is acknowedged by Canada, for that pur- po.se, to be part of Rupert's Land. Sir Montague Smith.— How does Canada's claim a !rect Ontario ? Mr. Robinson. — Simply because Canada now derives her title to that pro- perty from the Imperial Government. Let us just test it. Sir Barnes Peacock. — It was to be surrendered to the Crown on condition that the Crown was to put it back again into Canf.. "la*: was the Act of Parliament. Mr. Robinson. — Yes. Sir Barnes Peacock.— It was not to be the Crown s property. Mr. Robinson. — No. Sir Barnes Peacock. — But it was conveyed to the Crown on condition that the Crown would within a certain time reconvey it. Mr. Robinson.— Yes, after a time. The Lord Chancellor.— It is an extraordinary thing to say, that the Im- perial Government took, without consideration, from Canada, or Ontario, part of 374 OPERATIONS OK THK HUDHON'h BAV CO. WITHIN THE LIMITS Of CANADA. =fcr: its territory, and included it in Rupert's Land, to be by some future Act made a .Iistinct property. 01: course, if such a thinj? was part of the Imperial Act, it will receive its propf,r construction, but it >umm to be an extraordinary thintr. Ot course, that a^sum^s that it wa,M pju t of Upper Canada. If it was part of Upr.er Canada, and it was intended to pass under the Act, then it clearly falls within the words. "^ Mr. RoHiNSON.— Are not the words plain ? Is not the property which Canada thereby receives, the property which the Hudson's Hay C(>mpany hold or claim to hold / Is it not quite clear what property they did claim to hold ? If .so, just look at \/hat the etiect of a contrary construction would be. Is it possible to hold, that after the united Provinces have paid a sum of XSOO.OOO for this property, which, as I say, comes from a joint rate levied on all the provinces — comes from their joint purse — ' The Lord Chancellor.— Property taken from Upper Canada without notice. Mr. Robinson.— Not without notice. The Loud Chancellor.— And a rate levied upon them to pay for what belonged, not to them but to somebody else. But there is not the slightest trace that I can see in the controversy, that anything was to be taken from Upper <-;a»ada. ^^ Mr. Robinson.— All I desire is, to present to your Lordships what we con- ceive to be the meaning, and see what the practical result is. Supposing after this money was paid for this territory, derived from the source I have already indicated, somebody were to come in and say, " Why, three-fourths of this property belonged to us before." The Lord Chancellor.— But they are not .so claiming. Mr. Robinson.— They are now claiming. The Lord Chancellor.— That claim is set aside as manifestly unfounded and you are not called upon to answer it. ' iu T^^'j ^OB'NSON.— But they are now claiming that part of the property which the Hudson s Bay Company claim aa having belonged to them before this trans- fer. That 18 what I mean. The Lord Chancellor.— There is nothing in these words to shew it. Mr. Robinson.— Apart from the controversy. Upper Canada did claim a great deal of this property as being theirs before the transfer. Lord Aberdare.— Who is the Honourable Joseph Cauchon ? Mr. Robinson.— He was the Commissioner ol" the whole Province Lord Aberdare.— Of the whole Provihce of Canada ? He was Commissioner of Crown Lands of the Pro- 185'r, when he was Commissioner, what did he Mr. Robinson. — Yes. vince of Canada, in 1857. Lord Aberdare. — In represent ? Mr. Robinson.— He represented Upper and Lower Canada. Lord Aberdare.— When you turn to page 169, you will see what the claims ot Canada are. I do not see Upper Canada. Mr. Robinson.— There is no doubt what their claims were. They made the 8tronge.st claims, and asserted that the Hudson's Bay Company had no territorial right at all. Lord Abehdare.— No. Look at page 169. You will see that the Hudson's iJay Company were allowed to establish themselves on the C^inadian territory ] axr n acir »<. 4-U„ 1?. ._». ^'j «r30Ui u vtiu X'XCUUII ViUVV. 375 ii^mjmmm6imm»,.:ft ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY Lord Aberdare.— Look at page 169, at about l-'ne 12 .♦ The Commissioner says, that the Company " have had every facility they could possibly enjoy in their own territories, if such exist ; "—of that there is no doubt—" whether on the coasts of Labrador, Lakes Huron, Superior, or Winnipeg, whether on the baguenay,"— which I suppose is wholly Canadian,— " the St. Maurice,"— which I suppose also is wholly Canadian,— " the Ottawa, the Eed River the Assiniboine, or the Saskatchewan." You will see that they couple together lu ^li^ j^ ' ^^""^^ *'"® undoubtedly and indisputably Canadian, with those which the Hudson s Bay Company claim, as having been permitted to establish posts there : *^ "Wherever they have operated within the boundaries of Canada they have had precisely the same scope as within their own territories on the shores of Hudson's Bay." Mr. ROiiiNSON.— Yes, and you will see that the wording of that passage clearly corroborates what I said, that they emphatically denied all rights of territory to the Hudson's Bay Company. Lord Aberdare.— Yes. They say— you have had our territory, and you have carried on your operations on our territory, and you have had the same facility and precisely the .same scope on our territories as you have had within your own territories on the shores of Hudson's Bay. Mr. Robinson.— Yes. They said— we simply allowed you to trade in 8ur territories just as you would within your own. Lord Aberdare.— Yes. The Lord President.— In page 170 you will see he says this : "In the first place then, with respect to the territory affected by the Charter of the Hudson 8 Bay Company, it may be admitted that it would not only be difficult, but abso- lutely impossible, to define it. It is therefore fortunate that its limited extent renders the -question o' lutle importance, further than that it becomes necessary to consider and rebut the very large pretensions of the Company." The Lord Chancellor. — However, any extravagant view taken by the representative of Canada could not diminish the right that they had. But to say that the use of the word " claim " is to take away part of Upper Canada, and annex it to Rupert's Land, is a proposition which is really beyond all argument. Sir Barnes Peacock.— This is an Act rea'ly which authorizes the Hudson's Bay C. ompany's surrender of all that they claim. It is not because it authorized the Hudson's B ay Company's surrender that it would be binding upon any other * EXTKAOT FROJ. THB MEMORANDUM OF THK HON. JOSEPH CaUCHON, COMMI88IONKB OF ObOWH Lands, Oanada, 1857:— !,• i! "^a^ second point to be taken into conBideration, and which is of a more important nature, is that wliich attects the operations of the Company within the boundaries of Canada, and on this head, it must De aamittea that they have had every facility they could possibly enjoy in their own territories, if such exist; whether on the coasts of Labrador, Lakes Huron, Superior, or Winnipeg; whether on the Sague- nay, tlie Ht. Maurice, the Ottawa, the Red River, the Assiniboine, or the Saskatchewan— wherever they nave operated within the boundaries of Oanada, they have had precisely the same scope as within their own tenitories on the shores of Hudson's Bay ; not indeed but what if opposition had sprung up, the same tacilitiesimist necessarily have been afforded to any rival traders, had they not been effectually protected trom such rivalry by their unlimited means, their extensive ramifications and coipplete organization, with wliich no rival traders were able to compete, unless indeed to a very limited extent in the immediate vicinity of the settlements. "There are indeed parts of the Province so remote from established settlements, and having so little airect intercourse with them, that in former years it might have been to some extent a tax upon the country to have established tribunals sufficient to enforce the laws over rp^ions inhabited only, with one exception, by the servants of the Comi)iiuy and the Indians, though it raav now be reasonably questioned Whether correspcmding benefits would not have accrued from such a course, while it must be admitted that the Oomnaiiv have at all Hvnnf.n rtxAimd n. np^^ttf f.oL-inr* fr.rv..fi..... fV... „^^^r, ^1..... !.....« v — *. *^ c ™ *-i... from till Is has , i~, ' .R "1...C..I-0 niu.»m iiiJi, uavB uuuruou iruiii Hucii a course, wane ic must oe aamiicea the Oompauy have at all events reaped a profit, taking together the costs they have beea put to, fron ^*»"f" II '^u r"" '^® '"?,""l'"'y "^ "'^ '''"'^'' which the non-organization of such tribuuali pr.ietif|!i..y .— -r, tu- ri!»aii3 of pii:iblitiif thum to enjoy. The exception referred to, where a considerable settlement exists, besidei the employees of the <^ompany and the Indians, is the Red River Country." (Sess. Papers, Can., 1857, No. 17.) .S76 WHAT TERriTORIES COMPREHENDED IN THE H. B. CO.'S SURRENDER. ade in 8ur B OP OBOWlf persons Ontario or any other Colony, not to claim that which belonged to them £'iZma aV^" ^"i*^'""" ^^^ Company, saying. "When you feceive this J,iOO,000 and have made a surrender you will have no claim to Rupert's Land Inen section 4 enacts : j^ „ u. ..ncl 'iyj°^,^^^ acceptance by Her Majesty of such surrender, all rights of government, aJtho?^.?" h'^ "'^^^"' """^ /" °'^'' privileges, liberties, franchises, powers and fh! «.7h o ^^^^'^^^^^T' g-^a-^ted, or purported to be granted, by the said le ters patent, to l^rri rTn'r^^r^r^' "^ '^"^ ^"P^'*'« ^*°«*' and which shall have been so surrendered, shall be absolutely extinguished " , . It does not say that it shall extinguish the rights of any other Colonies-of Upper Canada, or Ontario. The Lord CHANCELioR.-The question is whether this territorv did belong Ru ert's Land '^^ ^"^ Gm&da, then no doubt it was no part of ■ .?'; ?JOB/NSON.-Substantially, Canada treated for this territory on the foot- ing that it did not belong to them, and the Confederation paid for it on that footing. Now let me refer your Lordship to section 5 of the Rupert's Land Act. What can be the meaning of that? And remember this is an Imperial Act over-ndmg everything : F"""' ^^^, " It shall be competent to Her Majesty, by any such order or orders in council as R„n«^'. r°°/ K ,?'* ™°' ?' ^T^" °* *^« Parliament of Canada, to declare that S.TIS .J"k • •' Trf ^^^^ ,^° ^^ ^^^'^''' mentioned, be admitted into and become pnjt 01 the Dominion of Canada." The Lord CHANCELLOR.— That shews that it was not so before Mr. Robinson. — Yes. «n,.f?^^ IC^^ CHANCELLOR.-That is a strong argument against supposing that anything that was so before is included in the designation of "Rupert's Land " Mr. W BINSON. — *^ " And thereupon it shall be lawful for the Parliament of Canada, from the date aforesaid, to make, ordam and establish, withi-. the land and territory so admitted as aforesaid, all such laws, institutions, and ordinances, and to constitute such courts and otticers as may be necessary for the peace, order and good government of Her Majesty's subjects and others therein ; provided that luitil otherwise enacted by the said Parliament ot Canada all the powers, authorities and jurisdiction of the several courts of justice now established m Rupert's Land, and of the several officers thereof, and of all magistrates and justices now acting within the said limits, shall continue in full force and effect therein. Now, remember that that was authorizing the Dominion to make laws " for the peace, order aad good government " of that country ; .a other words that the f the Province of Quebec was limited, on the west, to the due north line, by the Act ..f 1774, its i^l! "'^''^ ^fiu^ir- *° '^® Mississippi by the commissions of 1774 and 1777, and to the meridian of the true source of the MiBsissippi by the commission of 1786. In the same way Ontario claimed that if, north of the sources of the Mississippi, the Province of Quebeo-and the Province of Upper Canada-did not already extend, westward and northward, to the limits of the French occupation, thev were so extended bv tnc •ururrs lii i^uuncii ana rrociamatiuii oi 1791. ... .'J78 EFFECT AND SCOPE OF THE ROYAL COMMISSIONS TO THE GOVERNORS. Fore a part of The commissions themselves ai3 inconsistent with one another* Thev are con- sistent with one view and inconsistent with another view. In the first place, the commission of 1774t requires no more explanation, because it has been given fully already. The commission goes northward along the eastern bank of the Miss,ssii.p, and I have said all I have to say about'th^t. Our contention is tha? the commission is clear and that the Act is inconsistent with it.J That is mv argument about that. Now the next is the commission of 1786.« That was the commission to Sir Guy Carleton. ^ inH.n?'/T''/r'"'^Yr^^' boundary laid down in this commission is entirely independent of the north line and the junction of the two rivers Lord Aberdare.— Remember, this is after tlie separation. The Lord PRESIDENT.-Yes ; it has nothing to do with the due north line Mr. RoBlNSON^No. Of course it had tS start from a different point because all the southern territory had been conceded. Then the first distinction between the commission of 1786 and the commission of 1774 is this The first STr°°^'^l'?^ Tr '\^''' ^^"^"^ '" '^' Mississippi and then going along its eastern bank.J The next commission goes back to the wording of the Act Zr'^Ti' ^'r.'°, '^' Mississippi and then goes northward without saying fh nS ''Z^''^'^ ^^°"^ t^« .T*«™ bajik of the" Mississippi. It is a curbus thing. We may say on our side, that that shews that the framers of the com- mission did not intend to depart from the wording of the Act in their first com- The Lord Chancellor.-As a matter of fact, the whole course of the l!'!Tr\^i ^r^ '!•''* *" ^^' ^""'^"^ ^^^^''- ^^ '^'^ «^id«^t> tbat that was not understood at the time. Mr. Robinson.— Downwards,ir my Lord. The Lord Chancellor.— But that was so in point of fact ? Mr. Robinson.— Yes, that was so in point of fact— downwards IT The com- rnission of 1786 goes back to the wording of the Act, so far as the Mississippi is concerned-It says, if I recollect rightly, that the boundary goes "on a due west course to the River Mississippi, and northward to the southern boundary of the" Hudson s Bay Company's territory.** -^ Sir Robert Collier.-" To the Lake of the Woods, thence through the said lake to the most north-western point thereof." The Lord President - Whatever it is, it carries the limits of "our Province ot Quebec as far as the Lake of th e Woods, and further westward. t Printed ante, p. 40. The \ ^^ s:^^^r^ir^^^:±:!'^^^}}^^^^ ^^ *»« -d - „orth ward •. in the ^^^.^'^^^^^^'^^^^nj^^^ T^^:^^ ^^r^;^f^t^i---^ri— {^^^^ Uak^-StaS!" "" "' '"""''' "*" '""^ ''^" °-thernli:.dt;51u^aa,"not yet c;;^iXp^So;:^tbe *• See supra, note II. 879 ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY : Lord Aheedare.— We have been told that the supposition was that the Mississippi was west of the Lake of the Woods, but would not this seem to extend the boundary from the Lake of the Woods to the point where the Mississippi goes. Mr. Robinson.— Nothing could be plainer. The Lord Chancellor.— Then it turns out that that was an error— you can- not find any vyestern point in that way— and that tho arbitrators were therefore right in stopping at the extreme point as a correct description. Lord Aberdare.— Yes ; at the same time it shews that in the minds of those who were putting the construction, that there was something west of the Lake of the Woods. The Lord Chancellor. — Yes. ' ^ Sir Robert Collier.— After indicating the due west course to the Missis- sippi, it then goes on " northward to the southern boundary of the territory granted to " the Hudson's Bay Company. The Lord Chancellor.— I should read it as if expressed thus : " thence through the said lake to the most north-western point thereof, and if the river Mississippi runs to the west thereof, then on a due west course to the said river, and northward, by the said River Mississippi, to the southern boundary of the territory granted to " the Hudson's Bay Company. Sir Robert Collier.— It assumes the Mississippi to be northward of the southern boundary of the Hudson's Bay Company's territory.* Mr. Robinson. — Both the commission and the treaty were founded upon a geographical mistake. The Lord Chancellor. — It is ^o, no doubt. Mr. Robinson. — We all know that if you were to go due west from the angle of the Lake of the Woods you would not touch it ; therefore we point to a commission which is plainly founded on an error. It they had recognized the height of land then, they never would hare drawn this coramisaioo in these terms. Nobody in the world can question that. Then, what weight is to be attached to a commission which is founded on an error ? f What we say under the cir- cumstances is, that that commission cannot affect the Act ; that is what we say. The Lord President.— It is quite accurate as to the southern boundary, from Lake Superior to Long Lake and the Lake of the Woods. Mr. Robinson.— You cannot get at that without interfering with the rights of the Hudson's Bay Company. If their rights are what I have said, if the Hudson's Bay Company are entitled to the height of landj (I do not want to go back to that)— the Crown could not take it from them by a coraraission.§ * Bub that would bring the boundary of such territories to the southward of the heieht of land : and even the company never claimed that. t Counsel might as well ask, What weight is to be attached to a treaty which is founded on an error ? For, m this respect, this commission of 1786, which was the first commission issued after the treaty of 1783, simply follows the dencription of the internatioual boundary laid down in that treaty. Tuat error in the Jl^t'JL*'*"??' •' " ''??^"'. ''rom'its framers having for their guidance Mitchell's map of 1755, which indicated that the Mississippi had its sources in about lat. 50^ and long. 105". {Ante, p. 107 ; Notes on Maps, Ontario App 114). As the treaty description was held good, and remained undisturbed, as far westward as the most northwestern point of the Lake of the Wouds, so the description in the commission remained good up to the same point. ° ^ ;. Ontario opposed this theory of the height of land as unsupported by any tittle of evidence, and it had already-when put fonvard by the counsel for Manitoba at an earlier stage of the argument-been emphatically disposed of by their Lordships us untenable. S Ontario pointed to the commissions as very solemn acts of state, guarded by extraordinary formalities, (see Kome partieulara thereof, ante, p. SH5, note •) and to this particular commission as evidencing that in the mind of the Crown the comt.any were not juntly entitled to so extensive a territory. And as ^o counsel's ^ contention, that the Crown could not take it from them by a commission, " Ontario claimed that the sup- ■ Z- 'u'Tru""1~ ■»".."; ■-■':■• ..,.:. .|.p.. J. - .■,,t,i..r-! riKrit= iiau nuc r.TCcnaca to tnc corntory la ques- ^ tion, but that, if they had, it ^vould liaye been competent for the Crown, in the circumstances of the case, ■ to take away by commission what had been granted, or purported to be granted, bv charter. POSITION OF THE ILLINOIS AS AFFECTING THE QUESTION OF THE LIMITS { laad ; and reL?the SSf .?p'°''"7^' ^^^ '-''T^ ^^^^^"'^^ ^^^' *^« Crown did not regard the territory of Ruperts Land as including this district, and that it was not acted upon as including this district than?hp^tn''''''\~^^.F ^^^"^ ''''^ "^"f^ ^'^«^« *^^^ '^^ishfc of land was. anymore than they knew where the source of the Mississippi Was • J' " « sav ,oT ^i'^T^^UE SMITH.-If they meant the height of land, why did they not say so ? Because it was capable of being clearly ascertained ^ fl. T I ABERDARE-Your contention I suppose would be, that they supposed the Lake of the Woods went in a southerly direction ^ supposea of thf;vat"wTTl:^J'gS^X^^^ altogether as to where the line hundle^V^erow"""""'''"--^'"^ ^^'""^'^^^^^ ''' ^ ^^^^ ^ P--ble, one Mr. Robinson.— I cannot strengthen my argument by a repetition and as long as my argument is understood. I will not say anything more^ ward abouJ'Z?!^'''''^?''""^^!' ^T^'""' "^ ^^' '''''^'^'' y«" have put for- warclabout that, seems to me to be wholly beside the question thBort\.^7hTl^'''~^LrZ^''' -^^ commission in question was issued on the Srb^no^fJistXX^^^^ There Sir Robert Collier.— Yes. Mr Robinson.— And if the construction of the Hudson's Bay Comnanv's commlssS,nV Th'r '''", *';^'"^"'' '' ''^'* ^'^^ ^^^^ ^^^^^ it fUTem^ commission.f That is what I say upon that, the subject being the most imnor- fth's'ufecT i'n" ^h'' '•'' rt ^P-i-t branches at 'all events'of ^hrdfscus^n said to Sn .«f tyVT ^^^^u^^ ^^A ^^^''^''<^^- I think it has been always S ttLn that ntl • P'"°P°«^t^«" °i 1^^' that it is impossible to question the Sf iTclear r ™'''''" ^^" '""^^'^^'^ ^^^h an Act of Parliament which, by and ^t '^"•"''•''^ *''•*^' '''^ ^i ^^^^- ^ ^^^^^ d«^l has been said about that, daLei o? SnHin ^" '"'''°'' "^. *'^' inconsistency of these commissions, and the Tn^I tounding any argument upon them, because they vary from each other 8 Lord Aberdare.-You come to another class of questions ^ tutioJfal Art"''''''' ~^' "^'^ ^^ ^^^^ '' ^^^* ^^ g«"^^^"^ t«r«^«d "the Consti- Sir Montague Smith.— Pago 393, is it not ? - .- ^ Lords^iip.s^'S'thrilrco^^^^^ *« ^hose,. remind your of the territory of Illinois, which was referred to bv mv ?'"'''/ *^^"^ '"^ '''^''' their construction of the Quebec Acf "hltt o tZnllS'lZ Ss'^Ttt^ first place there is a singular circumstance connected with thatfL i". -^^f" they are all commissions to Lieutenant-Governors tL nt ' . iv5^*V'^ *^** your Lordships have already had. That has bee a referred ?o bt' m 'f ^"^"'"" strengthening their construction of the Quebec Act and th^S ^ I *'''nv' *' was included.lf ^u«P«1 '» to the Me^hant, Adve„t„rist/E™gtn! tfadi^g^"„'SKt:S!■;C'^'°■■y «"°'°'' you will HndafterwardSt "'thefl'tCdJtthr °^ ?"*»">■ ''"y-" ""-i invariably adopted, till voii come down t„ .K. ,• "j VT^' '"""■■■tiont that is .hat MmeVwLd it i. ara^tht W' S'thHaf '°"'' '''"■"""' ^^ "■"• '"- Mr. Robinson.— Quite so. ^' Bay in this description—granted to them andTtSl- ^ "^•^''^'^'^^ *° Hudson's with the line drawn at Hudso^s Lv C. /^ ''\PT''''^" not coincide Lord ABERBARE.--YOU will a/d in all rh "n^^' be perfectly consistent, that the definition in the secondf is not adopted \f"l "" ^^f !' ^^^erwards, them, but they did not adopt it ^ ^ '^^''' ^^^* ^t ^as before ,amet,!:^re:nfrhrw;;l"\::„s.!;rin7r^ ""- «-«'■' '°^» *^ Lord Aberdare.— I do rot knnw fhaf AX7k " -.^^,.e„t document, the .J "^Tr^t JZdTC^CX^^t: ^Z, in the c'ommETnd rthe'^'roolfSoriaU on79l^'''"'*°"°'' ''"d in the tw^ Orders"^^^;;;^,;;^ /» ^ '^M® reference is to the followinir paper whirh ia ^r« ^k « t^ Quebec," ordered by the Hoi.se of Commons t^ be nrlnV^ oV ?T"^, f ''P^" relating to the Province of to m the Order in Council of 1791 as Eg been present^' to Part^"'' ^?K ^*. '« ""'">« pa^r rXted and the Bigmficance of it lies in this, that tL auth^oritles reiect^d hu!?'- •^."' '' ""t? ^f°'« Parliament, provincial hne "to the boundary of the territorv .'*iT^"^ that m,ght be, and deliberately adopted the Sptin^ofcert^Vnfv" "Hudson's Bay Company, wherever and Proclamation and was intended to BherthaUhriimits of h™^'' "^ OvAern'in CouncU 8on s Bay, and to the utmost bounds of the Canada of the Prnnnh Pf^Pce extended to the shore of Hud the boundary line of Hudson's Bay, including all thp ^r J^^.^ :-" A line drawn due north until it strikes irlst^orw?: -*«- °^ '"^---^ -^^^^^^^^^^^^ CIS, in a cove cf the rivor Snint I.o,„,L » '/.""eoounaaryjixed on the north bank of the lake Sainf ^uHiaiiu Lruuing 10 iiuaBon'ei tSay/' -^ ©'""-^^^ bu mo iviercnants Adventurers of f-^^'^'tt:^^:AX%r^'^X tl^ssi^'^z^ r^^^^^^s:^^ "^^ Act of i79u Lower Canada, as adopted by the Order in Connnn »T„m- ».• ^ vi. i'"® ^ division between Upper anrJ ante, pp. 46-48. The r^eferenL to it in the text L thl fi^stfinit^V^n J'." 1"'=*^- '^'?'^ Paper i^^'pTint^d the second definition, is explained by the papers iMiin/nurnhflrB^M?' 2°/l*" "'^ Paperin note §. infra, as m the Joint Appendix, pp. 393-4. ^ "^ *^ numbered (1) and (2) respeoti vely where they appear § l-ord Durham's commission is piinteil, ante, p. 808, note §. 25 (B.) 385 ARGUMENT OF MH. ROBINSON, Q.C., re QUESTION OF BOUNDARY The Lord Chancellor. — It seems to be possible that the legisluture de- liberately adopted the words " boundary line of Hudson's Bay," rathe*- than the others, because, regarding them as practically coincident, the one phrase was more expressive than the other, and more geographically correct. Mr. Robinson. — Then, my Lord, if no argument is founded on the Act of 1791, 1 pass it by ; but if not upon the Act, I understood that some argument was founded upon the Orders in Council issued under the Act.* The Lord Chancellor. — Where is that ? Mr. Robinson. — There are two Orders in Council. They are at pages 397 and 399. The Act gives no boundaries at all ; it professes only to divide the Province of Quebec ;f the Orders in Council specify the line of division. There are two Orders in Council. One of them speaks of "the line of division described in the paper, a copy of which is hereunto annexed." That description is this : " To ascend the said [Ottawas] Elver into the Lake Temiscaming, and from the head of the said lake by a line drawn due north until it strikes the boundary line of Hudson's Bay, including all the territory to the westward and southward of the said line to the utmost extent of the country commonly called or known by the name of Canada." Then your Lordships will find, at page 400 — Sir Robert Collier.— First of all take the bottom of page 399 : " The pro- posed line of division " Mr. Robinson. — Yes, my Lord, the words that are of any importance there are these : " Including all the territory to the westward and southward of the said line to the utmost extent of the country commonly called or known by the name of Canada." They refer to " the name of Canada." Sir Robert Collier. — "A line drawn due north until it strikes the boundary line of Hudson's Bay." Mr. Robinson. — Quite so, that is the phrase used in the Order in Council. The Lord Chancellor. — You have passed over page 398, but there is some- thing there which seems deserving of attention. It appears the Eight Honourable Henry Dundas had addressed a letter:|: to the Lord President, enclosing copy of a Paper§ presented to Parliament previous to the passing of the Act, describing the line proposed, that being tlie Paper in which the words " until it strikes the boundary line of Hudson's "Bay" occur. Then that Order foUow.s — "from the head of Lake Temiscaming by a line drawn due north until it strikes the boundary line of Hudson's Bay " — taking the language of that paper and not of the other. Then comes the Order in Council at page 398 : " The Lords of the Committee, in obedience to your Majesty's said Order of Iteference, this day took the said letter into their consideration, together with the Act of Parlia- ment therein referred to, and likewise copy of the said Paper describing the line proposed to be drawn for separating the Province of Upper Canada and the Province of Lower Canada ; and their Lordships do thereupon agree humV)ly to report us their opinion to your Majesty, that it may be advisable for your Majesty, by your Order in Council, to divide ante. * The Attorney General's argument upon these, together with tho Orders in Council, at pp. 45-fiO, t The Act does not profess to do even this. It recites that " Whereas His Majesty has been pleased to signify, by his Message to both Houses of Parliament, his Royal intention to divide his Province of md. mnod upon it bou„dades^.,rrenHrod." Wh"a 'Ztiy' i, tlTat in'f /" ""T'' boundaries differ, if they do differ at all frnm fvll ? ■ . ^" ^^ ^*'" «« these they cannot affect that Act^ Sse wordsTn 1 nT'^'^'^'n''^ '^'^ Q"«^'«« Act, the Act of legislature * ^ "^^ '" ^"^ ^'^«'' ^» Council cannot affect wha^o'^„^rwTtro'',:u!;tioro?tto";^^^^^^^^ -' »-= -">,„, vin.5',&rsr/tEit^\'rtt':iiiS-i--"*- *« p.. Qoef f^rroraS.otr;L:„tkr'-''^ '^"-«'-' ^-'-e o^ portion"'. Ihe'SrnV"'""™'^ "' '^™'" ^^ '' ""-'^ »»«»' - '» *» Bay "rritrThe-icnfTu'efei*^^^^^^^^^ '"« Hudson's Lord A„ERBARE._At thi"7rticuL X'° '""^'■■^••'" Th'; r'ifif ?''-'^"' ■ "' ''"«' I "''o >' altogether. ine Lord Chancellor.— The Ouphfo \„t a ^ , boundary of that which is regarded as the Hue on'.R "%'^""^ '^' ^^^^h^''" not shew exactly what that southern imit is and surelT th7"'"T ^"* '' ^««« go a loner way to shew what, in point of Sn^ wl ^* , ^^^ subsequent Acts being that southern limit ^ *'*'' ""*' '^^P"*^'^ ^"d acted upon as ...sr -= £s^7.-t:^rSroa t«o- «- The Lord PRESIDENT.-This is a new expression here " in ih. , . of the country commonly called or known by the name of r„n« i ' "*'°'''^ ^^^^"* «Id'„^'e^™ie^?^t^er"-^™ ^^^ *- -«■-« wtr^rward, passed Mr. Robinson. — Yej Sir Montague SMixH.-That underlies all your argument. )il, at pp. 45-50, I Thea Ontario claimed that even if it wer. conceded fnr ■ '" could not, circumscribe, so as to reduce to wTrower HmitrfhoU*'^"j!,*''''.''V»*^e, that an Order in Conn.il I of Koval nnmrniaainna onrl Fvoi. a: •.■•louimib ciie Act and ifroclsiTnutinr, „f ITn, . . .•' '""Ue t That is counael'8 theory merely, for the Act gives no definition.? 387 ARGUMENT OF MR. ROIUNSON, Q.C., rc (/lESTION OF BOUNDARY Mr RoHlNHON. — That undorlies all my arguineiit.* The Loun Chanoellok. — In considering that, we must look to possession, and occupation, and enjoyment, and (/r. fado umo of the land. Mr. Robinson.— Yes. Then, my Lords, I could not do more than repeat my argument, and I do not winh to do that. I have spoken as regards occupation and enjoyment, and as regards the construction of the Hudson's Bay charter. If I am wrong in that, I fail. Sir Robert Collier.— I think your argument is very clear. Mr. Robinson.— I cannot put the thing otherwise in any way at all. If I am right in what I have put to your Lordships with regard to the Hqdson's Bay Company's charter, and the strong, explicit and clear recognition by the Crown not only of the charter but of the limits which the Hudson's Bay Company were entitled to claim under the charter, I have established sufficient for my purpose. The Hudson's Bay Company in the year 1719 had clearly been recognized by the Crown as entitled to the country to the height of land.f Then, if 1 am right in saving that, no subsequent Orders in Council, no subsequent Commissions, can take away from that Company any portion of their rights.:): If I am wrong in that, of course my argument fails. I cannot strengthen it any way that I know of. It has always seemed to us in that respect to be clear, that nothing could be stronger than the recognition by the Crown of their charter, and the assertion by the Crown of the boundary of the country which they had granted. Sir Montague Smith.— You say it is perfectly clear what the grant was, and that therefore these, so far as they depart from or are inconsistent with it, are of no avail. ^ Mr. Robinson.— Yes, my Lord, we say not only that it is clear what the Crown asserted it did grant ; and we say, it having been granted, and the con- struction having been placed upon it by the Crown, it is impossible by subsequent commissions or executive acts, to take away from them any portion of their rights ;| and that inasmuch as Ontario's rights by the Quebec Act are dependent on their rights, Ontario goes to the boundary of the territory granted to them, wherever that territory be. I should pause for a moment at the Act of 1791, merely to point out to your Lordships that there is there again the same curious inconsistency. A great deal has been said upon the fact that that boundary, as fixed by the Order of Council is " including all the territory to the westward and southward of the said line, to the utmost extent of the country commonly called or known by the name of Canada." Now, we have always thought that that meant Canada defined as founded and as established by the Quebec Act.J) because the Quebec Act, according • See ante, p. 387, note *. t It has been already shewn that the British commissaries exceeded their instruotions in making this demand (ante, p. 368, note t). And see ante, p. 380, note J. X As to Ontario's position in regard to this contention, see ante, p. 363, note + ; in addition to which Ontaiio claimed that it was competent for the Crown, in the circumHtances of this case, to make other disposition, by commission, or otherwise, of what it had already granted, or purported to grant, by charter. Commissions, as already pointed out, were solemn Acts of State, under the Great Seal, foundad on, and approved by, Orders in Council. Ontario also pointed out that the Crown had frequently re-granted, by new charter, what it had purported to grant by earlier charters. § The documents printed in the Joint Appendix in connection with the establishment of the boundar- ies of Upper and Lower Canada, in 1791, shew that the Canada referred to was the Canada of the French in its full extent, except such portions of it, to the west of the Mississippi, as under the Treaty of 1763 wag left to Louisiana. Moreover, it is made perfectly clear that the intention was to include all the unor- ganized British territory in this part of America. Mr. Grenville, in writing to Governor Lord Oorcliester puts the idea in these words : "All the territories, etc., etc., possessed by and subject to His Majesty, and being to the west or south-west of the boundary of Lower Canada." Lord Dorcheiter, in his despatch 388 ACTS OP 1791 IN RELATION TO THE TERMS OF THE ROYAL COMMISSION OF 1838. to possession, ins in making this wl^' Pr construction, took in evorything that was known by the name of i n nf r ?n "TV'''"' **"^* altogether, you will fln.I that when the con mis- h'rllq^"? ^^"r^'' 'i' ""'"T *° ^^^ '•'^■'*""^ "»'•«•• ^^•'^t Act. on the 12th Ztem- mr, 1791. they depart from the term Canada a«ain a.:d they say ' inciudin/such terntones as were part of our said Province of Quebec." Then you wH find that itlaVn^wtn thTr'^'r-T";"' "^'T' ?'''^' '^ ''''• '--« ^Ts File W on £1 ?.??! Constitutional Act of 1791 was to come into effect, ho goes ack to the expreHsion'' commonly called or known by the name of Canada" Ihenyoii find when that is transmitted to the Secretary of the Co onies the Right Honourable Henry Dundas, it is pointed out to hi.n that the commhsion ot Lord Dorchester and the Order of Council difier.f commission S';'RoZsoM^''T"'''"'r^"' 'I T' ^-^'.^ '^^^ '' ""^*^«"'^» t'> this enquiry, .k i; f/^"'^80N.— I cannot say whether it is material or not. We have never thought that It IS material ; I am only pointing out ^o you that Siese commis- sions differ from each other constantly. The answer is that i is not thoS hat the differences are material.t Then we find that after that, (and some Sharer '''*"' ' '" ''^' ''' ^'^'' '^' ^^"^•^^ion is issued to lZ The "Lord Chancellor.-! think this is of some importance and perhaos you would hke to deal with it. The Proclamation of Governor SiLoroM 7 92 S "^"S e'nttetth'o^ ' -^ '^-^.^'^^^V'- ^i^^^ you will obserrthlt it Ty ' Countv of Kpnr-lK l'^'"^ counties IS hereafter to be called by the name of the StweeVLka Pril ^ T^l^'^T^*'^" ^'^"^^i^^ ^^' ">*?' «««'"^ *° be at the angle between Lake Er e and Lake Huron, right down to the south but it is verv little n .'v^'^n.*;'^ *i^? "'^^ '^''^^- ^"'^ ^" the other counties are dther in between ? and the Ottawa River, or to the eastward of this dividing line. Then it g^s on : ^o„nf?nf*V„*'^^"'°K•T'** °* the said counties be hereafter called by the name of the .ounty of Kent, which county is to comprehend all the country, not being territorLs of the Indians, not already included in the several counties hereinabove drcribeTexten^^ ing northward to the boundary line of Hudson's Bay, including airthrterritory to the :^:^^^zii:^s:^:r^ ^° ^'^ utmost e.tent«of the :.:zz:::x Couni^et^'f fT.v ''"^A* 'f ^'^f' *^ '^''^'''' ^^^^rict is said to consist of the Uunties^Esse ^and Kent, and what is to the west of them. Now, speaking to cipre&;a^^^^JJ^^ MajestWo the westward anZruthward of the 8^^^^^^ °? P""'-"^'*^ ^' "" is to be taken as read into the Commisln^ "^^^^^ of the Order in Council governg and r..ect,y i..ate?ial..- iiye.^^'^YI^^Z::^^.:^!.^ I.^:^^^^ the., and is Wore mision. •" '"'' """'"P*"^ *" ''' ^''^"^^ **"'* '»»'* commission of 1791 is at variance with any earlier com- i It is printed ante, p. 308. noteS. I Printed ante, p. 128. 389 AUGUMEIT OF MU. ROBINSON, Q.C., re QUKSTION OF BOUNDARY broadly, the whole of the disputed territory, from that point to the west, and up Erif" ■^' '■'' ^" ^^"^ west of the angle between Lake Huron and Lake Lord Aberdare.— And it is partly to the northward ? f *v, ^u^^ Chancellor.— Yes. Although the County of Kent lies so much to the south, yet, as would be expected, it is thrown into connection wit-, it. Mr. KOBINSON.— That touches the West side, and not the north-east angle tnat 1 am now upon. ° The Lord Chancellor.— Ye.s, it d, -s, because the line drawn from the L-ounty ot Kent, although as it was drawn due north from the County of Kent It would not accurately coincide with this, yet would come very near it, if you understand the whole of the Western District to be thrown together, whatever Its extent was, and not divided into counties. Sir Montague Smith.— The curious thing is that the County of Kent is not the westernmost part of this District. Essex is west of Kent. Mr Robinson.— Yes ; Essex runs down the River Detroit, if your Lordship will look at the map.* ^ Passing then from the Act of 1791, and from the Order in Council and the l^ommission issued under it, I will endeavour to point out the inconsistency in those and to argue that it is impossible to rely upon this Commission for any definite description. , "^ ^ ^ Now, the next thing we find is, that in 1838 a commission is issued to Lord Uurham Your Lordships will see that these commissions differ, and differ very materially^ from the other comlnissions, because they go " until it strikes the shore ot Hudson's Bay." The commission for Upper Canada gives its eastern Jimit as ' a line drawn due north from the head of the said lake until it reaches the shore ot Hudson's Bay." Now it has been said that commissions, whatever may have been the rights of the Hudson's Bay Company, practically took nwav from them their rights. f J> f J j The Lord Chancellor.— Still they are strong evidence of what those rights were. Mr. Robinson.— Then they are constructive. The Lord Chancellor.— And they are also strong evidence of what was the true construction of the words, " until it strikes the boundary line of Hud- ^on^B&y,' in the earlier Commissions, and in previous Orders. Mr. Robinson.— At all events, what I mean is this, it is said that the eflfect ot tJiem IS to confine the Hudson's Bay territory to the shore at that point. Ihe Lord Chancellor.— It is strong evidence that they were, in point of practice, so confined, according to the descriptions which are contained in those documents, and that the de facto boundary was consistent with that being the north-east boundary of Upper Canada. It is a question of evidence. It is not a question of taking away. It is a question of evidence as to the status quo of rights depending really upon possession and documents. Mr. Robinson.— Yes. Now, in the first place we say that the Hudson's Bay Company s rights under their chartei- were settled long before that. The Lord Chancellor.— You say they did not depend upon possession or occupation under the charter ? *,„i»* ^T^u "^^'T "/. fact, Kent was as far to the westward in that (juarter as Essex : they both faced the De- rL^u^Ai^^ i>^-^°"^X^°° shews that the southerly boundary of Kent was a line starting from Maisonville's I^o;ilTi f fi "^^ ^^^i;"'*' »nV^U ■" *"■ " »""■" "»' ^ incon,i,,te„t with 3 AbbrdaS An f M,ch,,,,coton is admitted to be in Oa„ad.. :xtllTtoVe1oXTrd''^^ -consistent at all, because w! knowXt fhey Tre^JirCHAN^^ooR^ 'r ^.f ' ^" '^' ''''' ^^ *^^ ^-«r ^'- I^^wrence. Canada said that no nSfn^T^" the paper recently read, the Government of j^anada said that no obstacle had ever been thrown in their way within the lim Its of Canada, to act exactly as they did elsewhere f ^' laras licnow that fort has been occuped since + Then 9nrl " Vr^U m^ • • looK these torts they changed their names and gave them French namp<.— " f«tp». b^y delroyes and diberville about the 20th June, 1686; retaken 169? Trd For? t?e"ESXkt"L"deT'^^ "-^i^ ^^r ^--'"^ Fr'ench'namlt dlv, M 2 }J ^^ Troyes and d'Iberville in 1686 • retaken in IfiQq 4th, New Severn, or Nieue Savanne, taken by d'Iberville in 1690 5th Fnrf 1696 and again by the French in 1fiQ7 Tf ^J,v,„; a . ^^" ^'J "if i^-ngnsn, French until 171 Siv .V^h"* '''' '''* encroachments of the French o any_^contest , the seventh^ preLmeloUSE' The\?v Xr!!".'!!^ ^'r^^t^''^" K'X*".^'"' ■n 1700 .11 tl,, I„,i, with one e,o4?'oi to. '„ffi Ch? T^h?? "». ''«S£ "K'*" "''>"'' "l>"" ">•• Ui7X ARGUMENT OF ME. ROBINSON, Q.C., re QUESTION OK BOUNDARY ; The Lord Chancellor.— It is a little worthy of notice that certain forts are mentioned as being taken and retaken ; and then, this fourth one, New Severn is taken in 1690, but there is nothing about its being retaken. And then Fort Nelson is taken, and given up in 1714 under the Treaty of Utrecht. So that with regard to the other forts nothing is said about their being given up under the Treaty of Uti-echt. Some are said to have been retaken by the English «fter their capture l)y the French. Mr. Robinson.— Yes. Your Lordship is aware that the French at a certain period did capture all the forts but one. I think that was Fort Albany. And that was the foundation of the complaint of the Hudson's Bay Company after the Treaty of Ryswick, that the French had in time of peace invaded their terri- tory, and taken their forts, and they petitioned for redress. But as I understand it, if the assertion is that the commission issued to Lord Durham goes at that angle up to the shores of Hudson's Bay, it plainly takes from the Hudson's Bay Company the territory which they, beyond all question, had occupied, because they were there with these very forts. Surely they occupy the territory there by means of those forts; and surely they have acquired a title by occupation, which no commission could take from them. If occupation is necessary to give them rights under that charter, then they had occupation, and then they liad ■acquired the rights, and no commission could take those rights from them.* Then with regard to the distinction in those commissions, between " the shore ■of Hudson's Bay " and " the territory " of the Hudson's Bay Company, we have always believe' that there was never any intention ^ difference in those words. Any person would say, naturally, ithe boundary of the bay is the shore of the bay Any person not knowing or caring— as very possibly whoever it was who dre these commissions did not know or care— about the rights of the Hudson's Bay Company, seeing them go in one place to the boundary line of Hudson's Bay, would naturally say, " The boundary of the bay is the shore of the Bay, and it makes no difference." To say that simply by that change of phrase in a com- mission, territorial rights granted by charter are taken away,t seems to us to be saying that which can have no foundation in law. Then, my Lords, if these commissions are in the one respect to aflFect the q uestion, they mus t affect it in another respect. If these commissions are to be mv««te rfn''^"°f"".t'^ \l^^ ^T"'''* «?» every side viz. : by their settlements on the Lakes and Kiyers from Canada to the northward towards Hudson's Bay, w also from Fort Nelson (alias York Fort) to he southward The Irencli have hkewisfi made another ». ttlement between Port Nelson and \lbany 'il^'fe whereby the Indians are hindered fro.n coming to trade with the English factory at the bottom of theBay, etc. ton Albany which is here stated to be the only place in their possession, the French were entit^d to under the terras of the Treaty of Ryswick. Fort Rupert was really founded by the two renegade frenchmen Radisson and Des Grosselliers accompanied by Uillam ; then abandoned, but re- established by Baily in 1670. The French paralyzed its trade, and the Company's headquarters on the 'im„ n!i^„'l?.'i?f '^"f ^P- tf^n^fw^ t" Albany. Fort Rupert was, subsequently, again abandoned ; this ume permanently. At Fort Nelson there was no attempt at any eRtablishment of the English until 1682 : tlie attempt was an abortive one, the Company's servants and goods being seized by the French, who had been in prior possession. See appendix B, hereto. *K «^' the time of the Treaty of Utrecht they liad a de faeto possession of only one spot on the shore of the Bay, and that illegally, and it is shewn by themselves, (see ante, p. 391. note §) how precarious and barren the possession. After the 'Treaty of Utrecht, they confined themselves, as they frankly admit (note t. P. 284 ^rif H?i,"^ T spots on the shore, not only during the French ocoupution of Canada, but also for a long period thereafter. Then, it was claimed by Ontario, that the acquisitions ..f the Crown under the Treaties i r u 1'''3 could not, in the circumstances, enure to the benefit of the Company, (ante, p. 190. note t) ; and, further that a commission was greatly more far-reaching in its effect than is suggested by counsel {ante, pp. .578, note ^, .380, note ^). But granting, for argument's sake only, that the company were properly in possessnm of any place on the coast under their charter, and not merely in the enjoyment of a right in common with the other subjects of the Crown, counsel has not shewn in evidence that the lines of the Award would embrace atiy place ho actu<*lly occupied. Henlny was on the north bank of the Albany; th 'm '*** °" *" ' "'^ '° ^^^ estuary ; Fort Moose also on an island, on the Bay, at the mouth of tThe Lord Chancellor had already remarked upnn this contention ; «way, it IS a question of evidence as to the status quo of rights," etc. 392 ' It is not a question of taking RESTING OF BOUNDARY LINE . LAKE SUPERIOR UNDEk'xHE COMMISSION OF J838. tion of taking if' WH n, ^r''^^^ '"^"'^- ^^^y '^^- ^^^ ^'^ be held all of them to be intentional The Lord CHiNCELLOE.-The other coinmi.,8iona are the ssma! Mr. ROBINSOK-From 183S to 1846 they run in the sameTeZ, descriW the protin'ce ^^.d ^t^l ItdS.^™ "" '»»"^-- ^W simply atai,yo^rx?or„s;.^^i^Kts?i^^ Mr E0BENS0N._Up to 1846, 1 do not remember that there was ^^^^Lord ABBUPA»E._Wa, the country east of Ja,ne,' Bay d«riW a, Ruperf. upon^My^reTweld'^Zmel' '""""'■''■'r ^""^ '-"'^MP' i"'"™*"- Arf TsfiVfl,™ tlHANCELloE._.you will Jbserve that in the Briti.h North America Act, 1867, these words occur, in the 6lh paragraph ■ America .orJrj':„Suirr^p::r,f£rr:'vL"„;\f{,rr*c^^^^^^ .hdl be decked to be .evSred, Ji .baU ^^^,0 Lp"»., p^'vTnt »"'' '"'" '""^'■ ."ie'^'LTg^ftr «rsitT.sr;ofj£;cltrir '" "">- "" p- The Lord Chancellor.-You may say it ends there Mr. Robinson.— It does not go farther Mr. RoBiNSON.-Yes ; it does not go further. pe.JS;--.-tTiK-ii£-ir^^^^^ Mr. Robinson. — Yes «reat''d3o tS°ar,Td^?e''r^'4«°- " '" " ''"'"*" " "™"' «''° '» "» ^ . of S.'rrrs'! irr »?xs 22r,if sr;i,r' «""-■'■ «- >'•• »< •"-. or restrict thVTr^vinoe'cm die weJt'bra'lini dr^Tnorthward fmm *>°'""""««*'»' «'' attempt to enclose aoever ; wherea. on the eastthe line f«draw;1,V":.",tr^l;r^:^u'„TJtl?e^te^^ "- -»"»■ llThe map prepared by Ontario for their Lordshij^ shewed DuhUh. at the head of Lake Superior. » i^j£ s^ji^^tMit is K^.. ^3J^ is ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY : Mr. Robinson.— Yes. Our belief has always been that those commissions really were not drawn witli any view of accurately limiting or binding the pro- vinces, or of describing any fixed boundaries which had been fixed by Statute before, but were drawn simply to define the authority of the Governor over particular territory. They could be renewed or changed from time to time, and they were never intended to have the foice given to them here.* Lord Aberdaue.— Is not a reasonable view of the question this : that they were sufficiently specific in describing the boundaries between Upper and Lower Canada, but that they were not competent to go into the question of the western boundary. Mr. Robinson.— I think one may say that, and I also say generally that these commissions were drawn for a totally different purpose. The Lord President.— But the earlier commissions did that and treat themselves of doing it— in the years 1774 and 1786. Mr. Robinson.— They would not trouble themselves about the western boundary after that. They were simply drawn under the Statute dividing the provinces— and so long as they preserved the boundary it did not matter. The original boundaries on each side were fixed by the Quebec Act, and they were never intended to interfere with them. That has been the view at all events we have taken of the different commissions.t We .say that that commission by going to the shores of Hudson's Bay, practically took away a large portion of ^u^VT^ believe to have been granted to the Hudson's Bay Company+— a claim 'Which has been recognized by the. crown.^ Then we say we have an equal right to insist on the fact that that commission does not take them to the west end of Lake Superior— that all it does is to take the boundary into Lake Superior.|l The Lord Chancellor.— I suppose no one controverts the fact that the northern shore of Lake Superior, up to the territory now in controversy, belongs to Upper Canada. -^ ' i ^ Mr. Robinson.— I do not know that they do. The Lord Chancellor.— There is all the difference in the world between controverting an uncontrovertible state of facts, and one which is in controversy If you were fighting and contending for that boundary of Upper Canada which is bounded by Lake Superior, then the words " and thence into Lake Superior " would be worth attention ; but you are not, and there is no room for any such controversy. I cannot perceive the bearing of the argument. If the words as to the north line were equally indefinite, then I could well understand that you would be very fairly entitled to say it is inconsistent with its being or not being a prolongation. But they are perfectly different—" until it strikes the shore of Hudson s Bay." bv 0*rd«r«'frp,Tnn?!!"'^'^ Tk tHe CommisBions wore Bolemn Acts of State, under the Great Seal, and adopted Dy Urders in Council ; and their issue surrounded with jfreat formalities. Ante, p. .S65, note *. A„f tT''i7^i'*'*'°" "^ Ontario, already set forth, was, either that the enlarsred I'rovince of Quebec under the Act of 1774 was co-extensive with the Canada of the French ceded by the Treaty of 1763 ; or if not. then !f ft wZVr.l^Z'^f fh^'r ""'""' "V*^" the Orders in Council, and b/virtue of the Act, of' 1791 ; ?hat even P«i;rZtf™f \^ Crown could not diminish the territorial extent given to a province by Act of of such provinor' competence, m the exercise of its prerogative, to enlarge the boundaries +8ee ante, p. 392, note *. ^,i<.<.l^fA".!!!f: ^" ^^^' "'J.'f *• .Moreover the Crown might, as against France, put forward in support of its -fr-fi^^S rfr """y "^I"*" "^ '**'*' c'a-ms.M might be attributed to the Company, and yet not feel con- strained, in the circumstances, to a recognition of a like claim by the Company as against the Crown. II The cases are not at all parallel, and the equal right does not follow. See ante, p. 39.S, notea + m6 S, 394 THE CARRYING OF THE BOUNDARY TO HUDSON'S BAY EVIDENCED BY R. C. 1791-1846. Mr. Robinson.— Then, is it not a reasonable argument to suppose that that 7Zt^T "^ '" '^^"^' '^' boundaries or the'-limit of the^Hudson^s Bay fKof l^^ \''^'' CHANCELLOR.-But the question is whether it is evidence of what Sv char?er'«T T i"'^ "".^'^?^ charter-because the charter was not a bound- Mr R0B,Nsn7 Th"'''^^"^' "^^'^ ^^'^^^ ^*"« ^^^^^^^^ f''"'" possession. Sri^nsi;^-- -^-- :^,-^^ ^Sores^f HudL^S: thin/withrfh V«^^^¥'^'^«-What evidence of possession since 1791 of any- S;;^C1"^^^^^^ '^ P--- by the Hudsorfs Mr. KoBiNSON.-If I understand rightly, they had the Moose Fort there Mr' RoZscfN ''"f 'T--'^^ ^!f '\^ P^™°" °f ^ f«^* -•^ know is ^sible. Mr. ROBINSON.— Surely, my Lords, the possession, under the circumstances of he country and company, of a fort on the shore, from which they raded into the tr; caTtSpres^sioTf"'^ ^^ '''' "PP^^ ^^""^"^ - ^^« -^' -y ^'^ "hie? The Lord CHANCELL0R.-If they had nothing but their forts it is auite consistent that they should have those forts, though within Canada ^ everv view fh!;fT"~ t^ it is inconsistent, as I submit with confidence, with inZrZntZ^Z'r ^''" ^^^^^^ ^V^^ nghtsof the Hudson's Bay Company liTr ^tl'n ^^^y were confined to the limits of the coast of that point of Acts of St«f?''^''''''°fr-^' \^'' '' ^'^^ ^^"^ "«^^ly -^^ i^^^dred years mist'o^ pfStjte carrying the boundary up to Hudson's Bay, if the earlier com- mission IS to be construed in the same way as the later ones The TnlTZ'::^^^ "^^ ^''^"''T *^'*^i''^ ^^^^ '^^ ^«<^ «^' commission of 1838. of 1791 Chancellor -Yes, but that follows on the earlier commission Mr. Robinson.— But the commission of 1774. if I recollect rightly.— The Lord CHANCELLOR.-The provinces were not divided th?n Mr. Robinson.-No, my Lord ; they were not divided at that time. that Ihit J;Of;^CHANCELLCm.-It is only when the provinces came to be divided that this boundary comes into existence and becomes important Mr. KOBINSON.— Well, my Lord, our contention has always been that there Zre'coutrEfn"".^' " the Province of Quebec by the co'mmSn of 791 nr w Th if """l^^T^^ ™^t,i" '} ^y ^""y «om'«ission I It either was settled ornofc settled byrth 3 Act of 1774.§ The subsequent commissions!! contain no limitations of boundaries, and therefore they cannot assist us to vouTr;/wh'iot'';'^K'^'P' ""i" ""'^^''"h^d the argument which I have addressed co/teml fhr Th. t b^ve endeavoured to put just in those two points. We first contend for the due north line, and we have pointed out to vour Lordships the authoriti es on which we argue for that. We next con tend_thatat all events we * See supra, p. 392, note *. ' ~ nevet had ^poUK "^h^lL:^" Jf\^\^rTitrZ''T^ 1 France and the Hudson's Bay Company occupation ^ot Can,«,a. ^d tV:^ ^lyTn .Zl:i%l^Z ^^^I'^.'l^^il 'oTfhJ'^'.otr'"" °^ ^"^ ^''""^ ^^riZr^^^^^^^^X^^Tc^i^^ in mi 5 /6ttt. Aad =cc; ante, p. SSi, Uote f. II That is, the commiBsicns subsequent to Lord Elgin's, of 1846. 395 ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY : go to the southern limits of the Hudson's Bay territory— I mean of the territory granted ; that that territory is defined by the terms of the grant, and liy the con- struction which should be put upon tha't grant at the time it was given, at all events coupled with the acts of occupation which followed it, which are questions of fact.* We say that beyond all doubt or question, founded on our own asser- tion, or our own assertion confirmed by the Crown, our limits long after that were limits only confined by the watershed. We say that that being the case, it was impossible to take away from us territory which we had thus acquired b} our occupation.* We had not occupied as individuals, because a distinction must always be drawn between an occupation by individuals, which may give individuals proprietary rights.and occupation by a country, which gives international rights. Of course, we have always conceded that the French subjects living on our territory may acquire such rights as individuals can acquire by prescription or by occupa- tion ; but what we have always denied is that the French rights, and the French occupation, ended as it was by the cession, in 1763, can have any effect upon our grant as between us and the Province of Ontario— we both claiming under the same power, namely, the Crown of England, and the legislature of England. Whatever rights the French might or could have asserted they have lost by the cession, and they are out of the way. Ihe whole question now is between British subjects, and between parties claiming under the Crown of England.f Then my Lords, we say with regard to these commissions they are incon- sistent one with the other.| They are not intended for the purpose and were not drawn with the object of defining the limits of the territory as a matter of boundary. They were simply drawq with the intention of giving authority to the governors, so that it would be within the limits of executive authority, as I understand the law, and as laid down in Penn v. Lord Baltimore, whatever might be the legal boundaries of the province, to give to the governor of it, by his commission, more extended jurisdiction. In other words, the Crown can give to the governor of any territory, the limits of which are fixed by statute, a juris- diction over an additional territory, and we say that at most these commissions could have no other efFect.§ Then my Lords I only wish to add a few words with reference to this Award, with reference to the position of the Dominion with reference to the Award, and with .reference to the whole subject generally. With i-egard to this Award, we do not know precisely what was the intention of the reference to arbitration — whether it was intended as a reference, or whether it was accepted, or acted upon, •It has been already abundantly shewn that of no part of the interior was there any occupation by or on behalf of this company ; that on the contrary it was in the adverse possession of France ; that the so-called occupation of the shore was, up to 1713, temporary and precarious, and of certain inolated spots only, from which the French ousted them as trespassers ; that the benefits of the Treaties of 1713 and 1763 ^°?u u ""°®.'' '°.^ circumstances, not to the company but to the Crown, and the Crown could, and did, deal with the territories accordmff to its discretion, the company beinsr left on an etiual footinir with the other subjects. Ante, p. 190, note t ; appendix B, hereto. t All this has been already answered by Ontario ; and see ante, p. 190, note t. t This has not been shewn ; on the contrary, Ontario claimed and shewed that they were in har- moy, any apparent differences being explainable. 8 Ontario had already shewn that these commissions, instead of having the limited effect contended for here, were in fact orders of the Sovereign in Council, and jiassed under the Great Heal, and were the subject of other formalities -the whole constituting them very solemn and authoritative acts of State, competent to accomplish all that Ontario claimed for them. The commissions, in terms purported to describe the boundaries of the province, and not r)f any outside territories. Chief Justic-i Smith, of l^ueboc, in a com- munication to Governor Lord Dorchester, lu 1790, discussing the prop-ised boundaries of Upper and Lower Canada, says : — " All this is upon the supposition that it is necessary to parcel out His Majesty's domin- ions by Act of Parliament. If not, then Mr. Orenville's first clause for the repeal will stand unaltered, and the two provinces take such limits as the Royal Commissions to their Governors shall assign." (Joint App. 381.) 396 THE CJUESTION REKEttRED TO THE ARBITRATORS. THAT OF THE true BOUNDARIES. ^hir^ZZTlu" :C^^" '^' ''"' ^'^^^ boundaries, or was a reference to ascertain What would bo ihe most convenient and best boundaries * There is no dnnhf about one thm^., that the Act which Ontario passed after the Award bv whicMf was enacted that the boundaries L'iven bv the arbitrator. ^h«ll k1 f^' 7 "^T . arbitration, namely, that they regarded the Award as b^nrcoSsivrwhether It hxed the true boundaries or not.f Now the GovPriHt.f.nf nf H,! i Tu fi minion Government and the Parliament cl^ tht da;!!! W afway sald^^^^^^^ never was intended to be the reference, and if it ever wa inlende o be he eference, it never was an authorized reference, and never sZidhrve been made tor there never was any autliority to make it ^n the part of le exicutive " the diiput'e?poSi:r^""^-^^'^^ '' ^'^^ -« «^ any'^bitratioVerp^Yo^settle s^e^'l^^t^ - -'^at principle you thuB : in that of 1874 : " The .(uestion conoeS Z nnrtl^lrn anH ll f k "'^^'^ '" ^°""«" "^ Ontario Ontario should be determined " etc. ; and in t^of 1878- " ThlTff ° boundaries of the Province of boundarien of the Province of Ontario in relatinn f„ fV. J c /["« '"*^*^'' °^ *''e n.-rtherly and westerly cil of the Oominion. thus : in that of 1874 "To determf'* V^^ Dommion" ; and in the Orders in Coun^ province relatively to the rest of the Dominion"- 3^n that" of m« ^""'r'l:*''''^'"" boundaries of th.t boundaries of the Province of Ontario." The yeutenant ."nv„rn., f^?I^= 'The northern and western mg of the Legislatr.re on 12th November, 1874 said on thi« J,h?«nf °^.. m"**?!"' '" ^'* ^P*^"'' "»* »•>« °Pen- ment of the l5ominion have agreed on a provisional C^t^Mo^ ' 1 ^^ (i"vemment and the Govern- grants by each Government, until the trSSZrmanent bo^^^^ ^'"- ^^S P"'P"«« °f I*""! and have agreed to ler.ve to arbitration the quesUo^of the nerml«Tf h " ^ a«oertained and determined ; graph or sentence, to the -. provisional » or..^'rnSKouXlS^4^^eXTn'To'"^^^^^^^^^^ " tyl^CiL'^^Z^on'^T^^^^^X'oi suih tZeVrefT"' '"^^ PT'^T ^^^ O"'""" respectively agree taken as and for such boundarie ," Ld Xo K^^^^^ the limits^ K may be necessary for giving bindinir efFerftn th« i? J! i ■ "^"'."''*'°° '" obtaining such legislation as and western lim/s of ?he KoWnt" ^f'o^tLr^ n^Tc^^^^an^ "tt -^^^iLing th^nortTer^ legislation would bs necessary to give legal effect toX concl..»fnnrnf ."h P°"» Pa^t'es then considered that out to be, and the question arose how this could h««flH^fffi, °^u^^ Award, whatever they might turn Parliament would, in the ordinarrcl«Tofthin«h^^^^^^ came to the conclusion that the e„ab?^g ImperfaT Act 34^nd Tvinf' ^"' ^ilf Government of Ontario. Book, placed sufficent authority in the Prnvinnili o^^ ii • " , • V"*' ""^P- 28. already on the Statute "The krliament of Canada m7y "from 5me"t"o"&:t?tnire'conrtt"?h/r **'? r'p'%« '« ^'"^ "^e^e* of the said Dominion, increase, diminish or otherv^se Titer the ^118 of L.h '*•''*'"»* °^ ""-^ province K "'.l^^'/- ^' *!^"1'*'' '•"« «*'"« language : '' WhTeas it was i^^J^H °^ Province. "etc. The Ontario should be determined by reference to arbitration and wh„, * \u « "'"J *^« "^"« boundsriei give to this province less territorj than hadZen "clainiVd 'on behalf o?Th«p''^'!'* °^ *^".''"'* »*"d » *» than the Government of Canada had contended to C with"n the limL nf K'^''v'"°«.' "nti ""ore territory Legislature of the Province of Ontario consents thTfVKo Si- ^* "' i.**® province • ... The boundaries which by the Award of thTa^bita^rs aforesaid wfrtl^^^^^^^^ ."S^"?."'^'^ ""^ '^.'^'='"« that thi boundaries respectively of this province, shall be andTre theTnrSt, ^°}^ *^* northerly and westerly whether the fame increase, diminish, or otherwiL Xr the trn/i^*^^^^^^^ westerly boundaries thereo?^ vince ' The Dominion Government failed to TwiZ its soleZ enJ^i Lr '^f^'''^^ """'*« "^ ^^^ Pr"' and th outcome was the present reference of th."mifi«JLn i!^ T "^**S '-"^^^? *» to concurrent legislation Writing at.thislati^date. it mT;rot'b^rt"oTpirVo"dr;w^ Vward by the Privy Council in r.Ja,^ ffJ^^'i^^" *•?_.*''« ""J^y '"volved in the adoption-of the hnes oflhe AwarTb"; he Pri^y Cou'^1 in^retard ^^TT '? '^^ "'^^ i-Xed in Government and Parliament of Canada in regard to the rest of tCawlJ^H ^^^n^ob* section, and bv the ^^^l^nlZ^^^^^^^^ Andastolegis- It have been requ red had the prouosal of ''VL T?J!!,- • n '"'®® "bitrators, how much more would tin.„i«hed [ Eng;}«h] legal funTio^/aTn^oull, AftT^'Z.^Z'^T.7} ?1 ^^^^ " *hat 7Zl ^"dt J... ,,1^ p,ir-in^v oi licanng tne evuiruce and deciding un„n tliehoirnHarT'A'.V^LV- ""'.'.",■' "^"°'^° °r eisewiiere, Secretary of State (Canada) to the Lieutenant.Gove''rnTo"f Ontario".tslTaJsr"d„t''m2! N^ 2^ ^^■' 397 ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF BOUNDARY The L(jKi) Chancellor. — Supposing the arbitrators did settle as well as they could the true boundary, it is very difficult to say that the award is always to depend for its validity on the question of whether it is right or wrong ; and when it concerns matters of this sort, surely it is a reasonable thing for a competent Legislative Authority to give it effect whether it is righ- or wrong. Mr. Robinson. — Whether it may be a reasonable thing or not, one thing is certain, that it was utterly impossible for them [the Legislature of Ontario] to do it. The Lord Chancellor. — I am not going into the motive which led the Dominion to recede from its engagement. That is not our affair. Mr. Robinson. — What I mean is, that that arbitration has been looked upon as an arbitration, not to settle the actual legal boundary according to legal rights, but an arbitration intended to give the arbitrators power (and so interpreted by the arbitrators), to settle what was, under all the circumstances, the beat and most convenient boundary.* The Lord Chancellor.— What we gathered from Sir Francis Hincks' docu- ment is this : that the arbitrators having settled certain points on the strictest principle, according to the best of their judgment, then the person who repre- sented the Dominion said it would be convenient that those points should be connected by a good geographical boundary, and the arbitrators thought the Albany River line was proper for that purpose. Then, finding some indications in previous documents that that view of the Albany River line had been at one time entertained by the Hudson's Bay Company, it was adopted. I do not think it is for the Dominion, I must say, to complain of that. I do not mean that they are bound by it. Of course they 'are not ; but inasmuch as it was at their instance that that amount of .deviation, if it was a deviation, from the ascertain- ment of the exact line took place, they can only blame the agent who then represented them, who asked for it, [namely, Mr. J. Stoughton Dennis, Deputy Minister of the Interior]. Mr. Robinson.— However that may be, your Lordships will find that the whole question was referred to a Committee of the House of Commons. Sir iVloNTAGUE Smith. — What are you now addressing us upon ? We have held that the award was not binding.^ Mr. Robinson. — Then, the award not being binding, I am only desirous to call to your Lordships' attention just these considerations. The Dominion, as I have said, is not the direct litigant party here, claiming any territory. They are not very much concerned as to whether this territory belongs to Manitoba or Ontario. The only way in which it could bo said they have any direct claim is that they have the management and the control of the Crown Lands in Manitoba, and they have not the management or control of the Ci'own Lands in Ontario. That is the only sense in which the Dominion have any interest in Manitoba difi'ering from their interest in Ontario.^ * It is pointed out, aitte, p. 397, notes * and t, that the evidence emphatically disproves this sugges- tion of counsel. t Because of the failure of the Dominion Government to abide by its agreement to procure confirma- tory legislation. {Ante, p. 397, notes.) X These statements scarcely represent the real situation. On the occasion of the arbitration, and before Manitoba was imported into the controversy, the Dominion represented all the interests antagonistic to those of Ontario, and the Award of the arbitrators was a finding on the whole case, and in respect of the whole territory, in favour of Ontario, and against the Dominion. Before the Privy Council, the same questions arose, the same class of evidence was adduced, and the same principles exactly were involved. These were to apply, as between Ontario and Manitoba, to that portion of the disputed territory in which alone Mani- toba was interested, but the decision of the Privy Council, whatever irmight chance to be, as to that por- tion, would also inevitably govern their deoisiuu, wheuever it might be iuvolied, in regard to tiie larger por. 398 BOVAL COMMISSIOKS vmu. THE POPUliR VIEW AS SHElVINa WUEBE BOTODAEY WAS. li; d,, but this is'of g™rf„;„'z t't""Kr,irrvTht r'h""r; endeavour to hold an even hand a, between the ditferentToTS.er ^if^^A <,ueBtion which we eome before thi. tribunal t^hLve decided IttnTt to^ " this i, . .nore important t^o^-^Y^l ^r^^L^ ZZl^"^ ^^iC^ esced in for fifhy years, stating what was the li/e oLivhlm^ntwhTw^r^.h; nn.t^i_OnUno^Onta^^ - what Upper Canada was. Sy had that Ici^it for the Dominion/is therefore not 8urprWn| ' '"■^"'°* *''K"™ent by the counsel was ll^lhX'^ZU^nZ:^^^^^ ?roSe3"ttt tt'^Tor f"H°L*'?^ ^"-^"^ "^ ^an.toba one diatinguiBhed " legal functionary ! " ^T^eZte, S 397 note' " * '" '*■" ''*'"»*°'' °* '<"«« that^oFThfltn^^f-ten^iira^ 1C;V^^^^^^^^ ItrsTeit^rfteit-o''^ °°""\^' *''^-^*'-'. - north-western point of the Lake of the Wood« Z the i^nt?. departure tL \."'^ ^u"} ^'^^'' '^^ «'"«* available for conrieotinR it with the sh..re of HujHon's Barad nted the n^^^^ f 7""^ ^^^! ""* "^ '^e lines ion and to Manitoba, and that therefore neither the one nor the othp^ h"^ '^ favourable to the Do.nin- on this score (see a„<.p 335 note «); nor could QuXc Lte fo ft is to beUml^^'^'^T'* °1'=°^ appears to have overlooked-that the acts of autiiority which carri.^d the lim't«n^Of"''^T'^^u*' 1°'">''«' Hudson's Bay, carried to the same shore the limits of CJ^iebec and"Lt«hli«hiTi. «/. Ontario to the shore of of territory to the north of the height of land to which her limit,^^^^^^^^^^^ restricted : " And which said Province of Lower Oanar Is also brndeH ,1 ^?° •^°P"'a''y,8upposed to be the head of the said lake [Temiscamingl until it stHkes the Hh^re of fioj'f Ba^v """ToJ"' ^"'■"' ^'T ■ Lower Canada:" Joint App.loB^aj" "" -tnomson, lespectiveiy, as Goveruora-in-Chief o^ 399 ARGUMENT OF MR. HOIUNSON, Q.O., re «JUE8T10N OF HOUNDARY : and for that reason I called it to vour Lordships' attention, and endeavoured to do 80 very plainly; a decision which had stood uniiuestioned f(jr fifty years snecifv ing what were the limits of Ontario. Upon that understandini?. existing in thdr nunds, they entered Confederation. ' * ^5 n^^r"*? Chancelloh— Is it possible to seriously represent that they entered Confederation on the faith of the De lleinhard judLmient ? Mr. RoHiN.soN.-No ; not on the faith of tlie De Roinhard judgment'. I say it was on the taith of the definition of the British North America Act that Ontario should be wh^t Upper Canada had been. I si.nply point to your Lord- ships attention, that there was in Lower Canada at that time a decision recoir- nized for fafty years which had decided the limits of Upper Canada, and which therefore may be held to be the law of Canada. The Loud Chancellor.— What do you mean by recognized for fifty years ? Mr. Robinson.— I mean never questioned. J J ■ The Lord Cuancellok.— How could it bo ? Mr Robinson.— There was the decision at all events, and it had never been judicially questioned. The Lord Chancellor.— A man was convicted of murder and was after- ward pardoned, as 1 understand. That is the long and short of it Sir Montague SMiTH.-Quebec must have been perfectly aware of these Commissions [viz the coimnissions to the Governors, naming the most north- western point of the Lake of the Woods, on the west, and the commissions carry- ing the eastern boundary to the shore of Hudson's Bay 1 Mr. Robinson.- I suppose so. -' J . Sir Montague Smith.— You aire now taking a popular view of it. and these commissions t-.re much stronger than the popular view to shew where the bound- nry of Upper Canada was. Sir Barnes PsAcocK.-Did not that case decide that the place where the murder was committed was beyond the western boundary of Canada ? Mr. Robinson.— Yes. The Lord Chancellor.-I thought that was the opinion of the judae, and the grounds on which it was decided. They distinctly adopted the due° north line from the confluence of the rivers. j f Mr. Robinson. — Yes. The Lord Chancellor.-A11 that was done was to convict a man of murder who was afterwards pardoned, and there was no possibility of raising the ques- tion, m any way, whether tlie decision was right or wrong Mr. Robinson -I am only stating that there was a decision, known and supposed to be right.* All I desire to press on your Lordships, that there may be no misunderstanding on that point, is simply this, that what we desire to have settled is not what is a convenient or satisfactory boundary, but what is the true egal boundary, according to the construction of the statutes Tl at we conceived we were bound to obtain for the different provinces. When we have obtained that, we have n ot the slightest doubt they will all cheerfully submit to • Ontario claimed that the facts as now known not onlv did nnf innfir.? m„ „ „. .. ~, 7T • regard to this decision, but that on the contrar^tl.ey°^?K^ th°e* iSn of Tyl^Jre" hlte°vTta factor in favour of the Dominion content on. For the DurnoBfia nf tv.o f-iol fi. ^ t c 7"?'^''*'" »" * declare the bouncUry, and in doing so construertL' t:rr 'Shtard'' * n 'the^QuXc it IT^^anln';; SBt"on'ofSurt'dcJ?on""% ''"LXa^ '""^ question of the. true bo;ndiTy."nd the'rewTth" h! r; wm eithe"1"nfir°m orTeve se^our^declsuTn' '" ""r'to^anv^conseoZica's^h"?'*' °' Upper Canada error if error wn havp r-nrnmittod *},o,, ^iii k» u "• 1. jl ^° ^"y consequences that may result from our tlo"7s reTerr^d"" ( FrVrnTh^'Smt"^. ^ Ch ef Ju'e t!ce's''.S authority to whom the ques- and the urisoner was ultin,at«Iv ««t fr"» rsl L. "- L°l?^*fiy .^l'"* ^»! * '•««P»te f'""> t™e to time, ■ ' " • I'^'oi'-'""", a«tc, p. o'li, note.) 400 PRINCIPLES BY WHICH THE BOARD WILL BE GOVERNED IN ARRIVINO AT CONCLUSIONS. Empire »„ that it mi^y be J 1«1 on wh° t r'lll »" •", ''t'^^ '"'"'"•I '" ">• "poi. the be.,i, which the province" !» -t J, tl' 7.'" P.^P" '»»«■ ""d JsL'i:!t;'tt„""^* - •»^'-" -^^-n-; '^"i^"lt:it':„?Stnj snppIJi;,'^r.„fprrt!,yxi;„™ ?;■; ^Tho^h, ^ -' y"" -» <.-'-. mean to »ay that we are not to eS« th„t W^J f '"^ uncertainty, do you "°"'i!Vot-™_vi:.'n':rk7Eir »"- "p-nA^^^^^^ ■ ""-^ wouM ,lo. " ""' '"' "" f"' » '"o"™' 'o »ay what your Lord.hipa ho„nSr;^°red?„rsv;;rir„\':;Ki^?'.r ™"'"'' «-" «■« come to any conclusion ? ^ ^'"^^^ f'°*"*^' ^^^ a^e not desired to becaul^ttarSroIi^tertH^^^^^ never presented itself to my mind undoubtedly, buti marSle^haH ,Tt "'^' ?.T'"'° approaches to ifc by demonstrative e^den^ that he nrJv '1,''"^'''^'''" ^''' "'^ '« ^« ««"fidenfc assert, or which anybody ehe could W?> • ^°" '''''^''*' «•" y^"^ opponents at certain points, cLrl^,ter?'rn it ^^3"' ''f'^'T* "" *" P"^"**^' We may! west boundary is clearly ascerfcr^d andlT 7 ^^u '"°'"^"^' ^J^*^* ^^e south- east boundar^ is clear]/ ascertained hIT'"' ?' *h« .^^'n'^nt that the north- mr. KOiJiNSON.— It IS not for me to say. ^ were not to exercise any power of RrbT3- ^ ^?. *^^ *™« boundary, and provtaeeT^rttt^tr^l^^^^^ *- «.--« di-Terent ,hon„£«r„rhf,i;r^o^ri±^/^i-*r^^^ ^°" p-™eth.tthe be, the courts of law might have decided it ' ''PP*'"^"* *^** '^ ^^""^^ Mr. RoBiNSON.-I do not know that. " linef?om'trco'nrenSToMhr?)K^^^^ ^-^^^ ^^-^ -*^ satisfied that the watershU line is not r°^hf 1?^'^ k' "°* "«^*' ^« "^^^ be 49th degree is not ri^ht • we mav hi Sff 'fl 1 .f'^ ''' ^"'^'^ '^^''^^^ that the found 4e true bounda';. L Tits bSnf ^onnH^h'S'^^^^^ points we have along the whole northern course that nnvC ll ^ demonstrative evidence arrive at. Do you say we are to do ZL^t ^ . ^^ ^ "^'^""^^ conclusion to ^^'^XtlSr.f f dit^citTSn^t^^LTL^^^^^^^^^^^ ''' ^°-^-^ whata^^'^tre wl;t""^^ ^^' ^"^ ^^ - -*-ded to be, to ascevtaiu some'^exlnHsc^S^^^^^^ state of things, that we can, to ^^^l^^-darie^ond^!;^^^ ^h^e a^^ r ^oSSt r^^^ ^" *^^ 399 1. "^^ '° ''" """' '^^ ""^ ^•"■'^ chanceiior'sT^;^;;^;;;;;;; ~ Hi. IK 26(B) 401 ^jirf!.JSv«u& 1^,:. ARGUMENT OK MR. ROIIINSON, Q.C., r« QUESTION OF BOUNDARY; evidonco is much less conclusive, and I wanted to know what your proposition is an to the position we had to discharge. I suppose a jury would do the best they could under such circumstances. Are we to do the same ? Mr. RouiNSON. — I .should have thou» cmo he w.« not bound byU ^ " "" """"I™™ *»"" ~mo and say The£rS;7cLtr f'tr,^"" ■" "'"' »"apa. one of the sources of the MUi..ippi."tL^t'er;^ ^^''^^^l^^^^^^lV^to^'"' m 403 THE ATTORNEY-GENERAL OF ONTARIO IN REPLY : Mr. Mow AT.— Yes, my Lord. Then I understand that I am not required to say anything with regard to the height of land ? The Lord Chancellor.— No, nothing. Their Lordships do Tiot adopt that view, nor do they adopt the 49th parallel. Mr. Mow AT. — Nor with regard to the due north line from the confluence of the Ohio and the Mississippi ? The Lord Chancellor. — Nor that. Mr. MowAT. — Then, it being established that we are entitled to a northern boundary somewhere north of the Lake of the Woods, the question is, what point north of the Lake of the Woods that westerly boundary should touch, what line should be our northerly boundary. There are some grounds on which to found an argument in favour of extending the westerly line, as in the case of the east- erly, due north to the shore of the Bay, but being satisfied with the line of the Award, and favouring the natural water boundary, we do not press for the due north extension of the westerly line. And of this circumscription of our claim neither Manitoba nor the Dominion can in any way complain, as it leaves a larger territory at the disposal of one or the other of them. Lord Aberdare.— There is the line on Mitchell's map. What do you say to that ? Mr. MowAT.— That line is an uncertain line. All that Mitchell's map in fact indicates is that the line is north of the Lake of the Woods, but it does not help to ascertain where. My learned friends have not suggested, and nobody can suggest, any possible line if you once pass the Lake of the Woods until you reach the English River. Something might be said for a more northerly bound- ary ; and if I was claiming a more northerly boundary I think I might find some- thing to say in favour of it ; but since I do not claim anything more than that of the Award, every argument which I might be entitled to use in favour of a more northerly boundary is sufiicient to make a case for the English River. I do not know that 1 can do anything more than make he single observation, and take the position, that having reachod a point nor )f the Lake of the Woods, and no other line being suggested except the Engli. . River, the English River should be adopted ; that if Manitoba and the Dominion desire to limit us still further, the burden ought to be upon them to shew that we are not entitled to go so far. In one of the documents which I think have been read by your Lordships— one of the early documents emanating from the Hudson's Bay Company— they object to anything but a river boundary, and they speak of anything other than that as being impracticable. The Lord Chancellor. — Where is that ? Mr. MowAT.— That is at page .563, my Lord— at the foot of the page.* That is in one of the communications in 1701. The last sentence is : " As to the Company's naming of rivers as boundaries, and not latitudes, tke same is more certain and obvious both to the natives as well as Europeans, and the contrary impracticable." And the immense advantage of a natural boundary must he obvious to every one. The Lord Chancellor.- That is in the year 1701, when they were begin- ning to accept the Albany River— the same line which we have in the Award. Mr. MowAT.— Yes, my Lord, the same year. That affords another ground ; as not only is it a usual thing to adopt a natural bour.dary, and not only is it in accordance with settlements made between nations when questions of this kind rnntsd ante, pi>. 208-207. Aud ses an», p. 335, bocc ", 404 sir :ai!: ADVANTAGES OF A NATURAL BOUNDARY, \:l have arisen between them but we have here one of the parties, famihar with the country, declaring that any other line would be impract cabk Thit 1 submit. IS a sufficient reason for adopting that line - nv-ticaoie. inac, i Sir Robert Collier.— Who says that ? ' "' Mr. MowAT— The Hudson's Bay Company, through whom the nresent fiiifotf an? olw "a?e ''^7 ''' '' '' -P^-tLble. ^elS^ntages of tWs Slv The c«"t w>,?.l. T f ^ eno/nious. It is impossible to stati them too linT would be vivS ''f"^7^*« ^" my opening, of running an astronomical line, would be very la.ge and out of proportion to the value of the territorv and when done, would be an extremely inconvenient line. Now convenSnce is of course an important element of decision, when there is nothing else to go by It us not to over-ride more important elements, but we have nothing else to To bv to whaUsl'" • "?.*"" '^^'' \"^ ''^'^ ^° ^^^' I propose asTeinganalV^^^ bvThe Courts in'ihe^b' ^"^^%^\^^« ^^^ ^^^"'^1 boundary is taken fnto accoun ute. ^&;r iTtfa^^^^^^ ^ ^^"^^ '' ^--^ ^^-'^ ^-^i'^ ^0 ^l^er. .1, • V"^ i^u?^ CHANCELLOR.-Ccunsel are probably aware chat the practice of ndir.^'^-S '" ''^''T' '^ '^^' '^^'^'''' has always been not to^deUver a majesty will act, or not, as she may be advised; and that course will be followed upon the present occasion. Their Lordships see no reason why they should dX t'orso 1; — 1^'7'"^^^ '^'''' -«"1^ h« consSt wfth thir consyeMt to bP fhl•"?,^^/^'°'"*''" *° 1°^^^^^^ *h^* ^^'^ I^^^^dships will not bZlrv bPtw.L*f Ji'/"*^ *°.'^5^ ^"y*h"^g ^^0"<^ ^°y boundary except the boundary between the two provinces of Ontario and Manitoba. to Her Majisty!' ^^ *^** ""'" ""^^ '"'*'" '""^ '^" ''^""'^ ^^^^^ ^^^^ ^"^ '"^^^^ 406 APPENDIX. A.— Award of the Arbitrators. [Note, as to the limitation of the Western Boundary to the line of the Lake of the Woods.] "iesSiv"" "'"'"' °^ '•'^ ^"^'°"'* ^^y ^""P'"'^ "»<1 *♦>« ^'^o^h ^'xi EnRlish Orown» O. -Imperial Order in Council, 11th AuguBt, 1884. ^■"'^"'ment^thereol*''' ^'°'""' """^ ^'""""'"'' °^ °*"*'^'' '° ^^ ^^''^^''^y' ^'*»> '^e proceedings in P.rlia- E,— Imperial Act, 52 and 53 Vict., chap. 28. A. AWARD OF THE ARBITRATORS. To all to tohom these presents shall come : The undersigned, having been appointed by the Governments of Canada and Ontario as arbitrators to determine the northerly and westerly boundaries of the Province of Untano, do hereby determine and decide the following are and shall be such boundaries • that IS to say : — »*uuv»omco , Commencing at a point on the southern shore of Hudson Bay. commonly called iXtfi"^' Z .t ^1°^ P'"°l"°^'^ ^r """'^^ ^'""^ ^^« ^^""^ «>* ^''^^ Temiscaming would fh« Alt «'''^.«°«*»» ^li^'-e; thence aJong the said south shore westerly to the mouth of thertn ;j fhl"'' '""* i^ the jniddle of the said Albany River and of the lakes ivZ ;i *f^.'°"T °* *^« «"'* "^«'- «t the head of Lake St. Joseph; thence, ^Ch!i, P- 1' *° ^^^ '"',^'''^y ^""^ °^ ^""^ ^«">. heing the head waters of the ±.ngl.Bh River; thonoe westerly, through the middle of Lac Seul and the said Eng- i„„ li. ,* Z"'"* "^^V ^^^ ^*"^ "^'^^ he intersected by a true meridional line drawn northerly from the International Monument placed to mark the most north- Z s'o'MS °^*'^^^^« °i *^« ^.°°d8 by the recent Boundary Commission ; and thence tZZr^' '°!'°^'°S *^« '^'^ meridional line, to the said International Monument ; thence southerly and easterly, following upon the international boundary line between the British possessions and the United States of America, into Lake Superior «f th i'l * *T '°«':'' "^ ^o-P-y-^h"* ". Ontario contended. " all the lands . 406 APPENDIX. ings in Parlia- Wester'n TeZr J. rt'U'oV^h': iS '^Jt ^ ^IrjlT^'rV''-''^' "^ *h« -•^"'^ °f the North- Ztrr ■° ^S*"*' ""If' *'»«h conclusively esUblished that the Nor^h'w *V°1' 't? T" demonstrated by the f'^«"cn Canada, and as such had been ceded »« an in-!^. li '^'"^''1- West had been an integral pwt of by the Treaty of 1763. ^^'^' ^ *° inseparable parcel of the whole, to the British Grown, im^XmlnTmi: t^e Z^K^J's^'^J^JX^oL'''' Tr '^"'f '•'^ Crown and Parliament, of Council, as being within the truSte^fthrP^oWnce ' ""* *'"' Arbitrators, and before the Privy the a otl^'fel/L^S^rtL^LTou^^^^^^^^ '^^ ''- « againiw&ote mtL'Sifch^ Krcy orLiviifr^'" "^*"'?.'' ^''^"•"^u*" ^-''l*' ^^e case of doubt in the Confederation which could not ffieuTt/romthf wsfi'^^^^^^^^^ f'TT '^^ ?■•«?"'' "" " '^e most north-western reality the river was to be found, Sot on a due west ^^T^^^T'"^ JS *^' ^"'' Miasissippi," when iS considered that the erection, in 1870, of the orf^ina? Prnvi„.» nf M Tl^ """^T ' '"'•^ ^"''her, may have Ontario, and its confirmation byImMrialAet''^nlfi7i I^ f^^^""'*°^"iWith the part of a more westward extension ^"P*"*' ^°*'' »° l«71, operated by way of estoppel to Ontario's claim to awari"d^o"ontaZL1wnfa"S^^^^^ I'^Tf'^? *h* *he extent of territory mg upon the consideration of any arKumS' in fav^ r ! f T ^f '"T^'* pnncip es of law, and not enter- strenghten the case in favour ofX m™estricted irmits In -."^l^^'.^i"/"' *?*^P* '1 "» ^" "' '^ese went to as against the one party and theS^ thB^nn!?,,J ^^^'^^J^'*^,®*^™'"**'™ ^"'"^ the first to uphold. Award. Theready apKtionby theAttornev^ by the Arbitrators and embodied in thehr' in.which a ready conformatiortoTt on the ar™nrwm^ °^ **"' 'f.*v,""^ "^ ^^^ ^^'^'^ position mination-acquiesced in by all the associate fru^sel f^lVLff n .*''? ?*"? ?^ *he Province, led to the deter- to marshal in support the whole weiX of tCevJIi^^^"'^^'l^ '"'he lines of the Award, and narrower as the wider claim ThrSm of thf«nn,fr«t »'''°- "l-fi been designed to fortify as well the the mere instrument by wlWc^h the ArtitratoL madr^nn J^\^ • '*^^ ^^ *ho result. The Award itself - legally valid, because of the breach of faith of th^lloJ^nirr^'''" determination-could not be held to be ment to procure confimatory Sation • h„f Lpln °,™'°'"° ^"r"'?""*"^ "^ '"'''ng to carry out their agree- The Lords of the Jndiciar^oSttrof t^ ftvTctriVe!.^5ref rH^eTM^S^^^^^ .. 9 Th 1 ■ '^'1!'' ** °° '""*' •^8''''»''°'> has taken place, the Award is not binding. aa relate To ?LTrTi^ty"n"iwYn' di^ftw^' ?heTrt,t ""f ^^ ^'^ 'r^ '"i* '"^^^ ^7 *hat Award he substantially oorrectf and in Sdanoe 3, tha P,fnT«^^^ ^^hll^^^r'* the Province of Manitoba to evidence laid Ittefore them." *°°'""*"'=^ with the conclusions which their Lordships have drawn from the 407 •siZ /..'Sjl^^'^^i^H _ APPENDIX. ■■ ^- ' --. ., " -B. ,. „ ■'J® numerous references, by the counsel for Manitoba and for the Dominion, to the respective rights and positions of the French and of the Hudson's Bay Company, in regard to the territory to the northward and westward of the watershed of the St Lawrince system which the counsel for Ontario, by the course pre-determined upon for the con- •" APPENDIX. tak. pM.e8.i<,M467^?? 6^ l^"" "'""•''"'' " "<' '■>»• »' J'""'' Bay and 1664-Th, Oompanv of N™ F™„™ I, T' " *"*' """"^ P""""'"" l'^''): H.d.„n.f Bay aJ EStteTS drok (w'lm'"' °°'°^°«' '"" "" '»""«• 66.,-Th. |j::7»J,'f4-o, ;«^ A^^^^^^^ „ ... „ ., .,, ..^ ,^ .,, 566). ovemnd to Hudson s Bay, returning the same way (463-4, aee ..M, (ili 0° Albllta S,olIl:°S ' '"•°" "*" '■•"°« '-' 1667— Treaty ot Breda— .e. 1666 myri. Majesty's name " •' as th™l^«;, f • u ^^® renewed possession in His origU; dro^^redl^yferS'Tei'^^^^^ '"« "«' (--nn^^en.) ""-•"•'i^ro^Txr :^;r.j ^^^ --- <"»™. -a. .» 1673-Several forts and factories established by the French on the Hn,l««n'= b , VIZ., one on the Moase Rivn^ /fiR7\ ^renon on tne Hudson s Bay slope, , «7a T "^ P°'' established on the Bourbon (Nelson) River (626) 1682— The French re-establish Fort Bourbon on the Nekon Th« t? i- u • • and oppose (he English (623). '' " P""*"' 'n« trade ^r* rt"-"" ? "" »™''l'™«»''« [' SavanoeJ established by Do L'flot (624) ' 16845-Port on Uke S.e. Anne (Albany^Ri.er, reestablished (624, see Br!'643). APPENDIX. 1686— Chevalier de Troyea and D'Ibervilie, with a military force, march overland and capture three English forts on the Bay (570-1, 627). 1686— Fort Abbitibi built by De Troyes (Ontario, App. 7, 101). 1687 — Treaty of Neutrality, confirming the treaty of Breda, and to each party the terri- tories held by them (454-5). 1687 — Indians accustomed to trade at Hudson's Bay, to the number of 1,500, trade at the French forts on " the rivers above the Lake of the Allenimipigons " I the branches of the Albany] (629). 1687-1697— During this period the posts on the margin of the Bay were in the Hands of both parties alternately, Fort Albany only remaining ultimately to the Hud- son's Bay Company ; and even this, under Art. 8 of the Treaty of Eyswick, the French were entitled to (489). Ante 1688— Mftison Fran§oi8, on Lake Abbitibi, established (Ont App., 98). 1695— Posts of Abbitibi and Nemiscau granted by letters patent to La Oompagnie du Nord (Ont. App,, 7). k 1697— Treaty of Ryswick, whereby there was to be a mutual restoration of places pos- sessed before the war ; but commissioners were to determine the right " to the places situated in Hudson's Bay," and " the possession of those places which were taken by the French during the peace that preceded this present war, and were re-taken by the English during this war, shall be left to the French " (489). 1702 — The Hudson's Bay Company complain of being left in possession of only one fort "out of seven they formerly possessed," that " they are surrounded by the French on every side, viz., by their settlements on the lakes and rivers from Canada to the northward, as also from Port Nelson (old York Fort) to the southward," and that " they may be said to be the only mourners by the peace" (564). 1702— The Hudson's Bay Company inform the Lords of Trade of the erection of a French fort at New Severn on the Bay, " whereby they have hindered the Indians from coming to trade at the Company's factory at the bottom of the Bay, [viz., Albany] so that the Company this year have not received above one-fifth part of the returns they usually had from t^ nee, insomuch that the same does not answer the expense of their expedition (564-5). Ante 1703 — A French post on Lake Mistassin founded (Ont. App., p. 101). 1711 — The Hudson's Bay Company still in possession of only one fort (573), the other forts of the Bay being in possession of the French. They complain that " they are surrounded by the French on every side, viz., by their settlements on the lakes and rivers from Canada to the northward towards Hudson's Bay, as also from Port Nelson to the southward " (573). 1713 — The Treaty of Utrecht, whereby the French were to " restore to the Kingdom and Queen of Great Britain the Bay and Straits of Hudson, together with all lands, seas, sea coasts, rivers and places situate in the said Bay and Straits, and which belong thereunto ; " and cotamissaries were to determine, within a year, " the limits which are to be fixed between the said Bay of Hudson and the places appertaining to the French " (504). ^Vhat the French actually " restored " under the Treaty does not fully apppar, but they claimed that they were bound to restore only such places as the English could prove an incontrovertible title to (5 1 2, 51 5). That they did not consider themselves bound to give up any part of the interior country is evident as well from tViPir rofnininof Hioii- '' . .1 • ... ones. 410 i-iiM . p i i i wftm i i i pjfcw aia wi) APPENDIX. N AND UP TO THB Cession OP Canada : 1713-1763. ' Old Posts Retained : IZ^CZ ^"t ''''°'"»". R"P'" Riv-, (Ont. App., 33, 1,7, '"' ^*'1-6r.t ^-.t ?'.»':';?.f- «-'■ <^»'" ^^p'. =«> ^ One. App., ,„..e, :o», pr/rz;c lorcsr' '"'■ ^- '""• '^•'• For. S.. Ge™.i„, » L.,. st. An.e, Albany W, (Ont. App, ,05, ,08, ,0., „3. "°'''°''°°tl?S;ri^^«3"3\"""°*''« -""^ '» «*-■' «'^. <«»' App, 58,, 645, ''•''"'''-T.lX'^^j^Viro'nlXri;'" 0„pe. „.„.n, „ „„.... B.,. iV^ew />og;« Established : [And8eethePo8tBoftheNorth-Wes(,,sub.8eo.{3)tn/raJ. '■ ''''~'*"*pTn;'?1^^58j)''^^^"'-«-"- ^' -""P'--^ «f ^y t»>e Hudson's Bay Co.- 1731-Maison des Dorvals, on Lake Mistassiu (Ont. App.. 105, 108). 3 "SsronT : P """^"'^ ^^"P*°^ ^'^ *^« "^--^ °^ ^^t« MUtassin (75) 1739-Po8t on Seal River, north of the Churchill (582) ' ^' of venturing inland (580-1). ^ay t^ompany's servants are incapable 1747-Po.t on ^e^Moo^ W(»uth Weh), ,k.„,, tk, ,,.„„i ,^„, ^^ ^ ^^ ""-^""Z t.?E^' f/^' "' ""* "• ^'-l' 1-" -nop.H„ th, .„do o, ;^^^&-L^roTA^j---5-i^^^^^^^^^^ -p- n'^>^ 1751-Post alaOarpe. northwa-,, of Nepigon. and whose limits extend to Hudson's Bay- ' grant of (645, 647). 411 APPENDIX. (3; Frfkoh forts op thb North-Wbst, established after the Treaty of Utrkoht, retained until thb Cession op Canada, and never complained of by either the English Government or the Hudson's Bay Company. r '■ ^ 1717 — La Noiie is commissioned to re-establish Cainanistiguoya ; and to erect forts on Rainy Lake and Lake Winnipeg (640). He re-establishes Oamanistiguoya (Ont. App., 16) and founds a post (Takamamiovien) on Rainy Lake (640-2). 1727 — Post of the Sioux established by Boucher de Montbrun and Father Ghiignas (Ont. App., 12). {[Operations of MM. de la Verendrye and thetr »ueceuor» in the command] ; 1731— Fort St. Pierre, at the outlet of Rainy Lake, erected [(Joint App., 183, 644-5 ; Ont. App., 16, 35). fi" ' > 1732— Fort St. Charles, on the Lake of the "Woods {lb.) 1733 — Fort Rouge, on Red River, Port cTV" V/' ^o'^"^ -'^'b^^^^^^ wa« inc.d'ed in the chttTrreel T^S^J^^^^J^ J^-J:^-^ t;-?3-- ^^^^ B.ert, ■ ^ '''--''^&anT5?M60rKrdrr^^^^^^ a fort and settlement at seize hio,. wilh hi^ people and efl^ttt^(5?9 eSir^"'^'^ '^ *'« ^'«-^' -*><» 1683— Storehouses established at Charlton Island (570) 1683-5-The Company's servants refuse to visit the inland parts (5R^\ tk ^ . th^^contrary occupied, and wer^ in possession^ffhVSe o?\\rLtri:r and they captured ^Fort Alban^ in 1686 i;i:r ''"' "'""'"''''^ ^'''^'''^ ' 1684-Fort Bourbon (in Port Nelson) taken from the French Th!« .u . occupancy by the Company of Port Nelson /Mo -fu . ^^^ *^® fi"' App , 570) The French, on the other hand hi^f^ ^. ^^^■' ^^^ ' ^^^''^ here in 1676 ; and re-established 17^1682 (ia) "'^ establishment 1685-Moose Fort, at the mouth of the River Moose, erected i570^ TK v . . built a fort on this river twelve veara nr«vi«.! i \ ■'' ^^^ ^'^^'^"^ ^^ Moose Fort in 1G86 («Mpm)T ^ Previously (oupra). They captured 1686-New Severn fort, erected (570) ; captured by the French in IfiQn .^ 125). and anew fort erected by the French there 1^1702 LulrJ^'''- ^PP- 413 ' ".i&.fhMi. APPKNDIX. 1688— 1713- 1713 1740 1743- 1747 1748 1749 1763 ■Fort Churchill (or Prince of Wales), stated to have been erected this year, and to have been taken by the French the year following (Man. App. 125, 126). The period 16861713 was ono of conflict on the Bay, the forts at the mouths of the rivers being for a time alternately in the hands of each of the rival powers, with the ultimate result that Albany alone remained to the Company ; but even Albany should have been surrendered to the French by virtue of the Treaty of Ryswick. The trade of Albany was crippled by the operations of the French at New Severn and at their establishments upon the lakes and rivers to the southward of James' Bay. (564-5). —Treaty of Utrecht (see supra). 1740— The Company hold certain posts on the margin of the Bay ; but Ao post inland, before the erection of Henley House. —Henley House, an inland post on the Albany River, erected (194). 1749 — The trade of the interior largely monopolized by the French (Joint App., 581-2, 716 ; Ont. App , 33), the Company's servants not proceedina: inland (681-2, 716). ■ y » —The Company have a small establishment on East Main River (Ont. App.! 33. 110). fi-' > I— The Company's posts at this date :— York, Albany, Moose, Henley Factory (Ont. App., 110), East Main River (Ont. App., 33, 110). -Fort Rupert had been before this time abandoned by the Company (Joint Ann 582; Ont. App., 115). ^ ' ^ ^^' -Treaty of Paris, whereby Canada was ceded to England, Thenceforward the Company had the same rights of entry upon the newly acquired territories as any other British subjects. Pursuant to this right they entered the North- West (which had been in the sole occupation of the French prior to the Treaty, and of the British and Canadian Traders subsequent to the Treaty) in 1774, when their first post there was built. The Company admit that " as long as Canada was held by the French .... their servants waited at the forts built on the coast of the bay, and there bought, by barter, the furs which the Indiana brought from the interior " (594) ; the same appears from the Company's Journals : " From a perusal of the Company's Journals, we find that it was not the practice of the Company's servants to go up country to purchase peltry from the Indians, but the Indians came down," etc., (716) ; but the Company admit, in 1719, " that the French, in 1715, made a settlement at the head of Albany River, . . . whereby they intercept the Indian trade from coming to the Company's factories," (579), and, in 1750, that " the French, since the said Treaty [of Utrecht], have at different times made some settlements in different parts inland, and have also carried on some trade within the said Company's limits," and they pray for a settlement of the limits, " and that the French should be obliged to remove all encroachments they have made within the said limits, by breaking up their settlementa and restraining the wood-runners [coureurs dea bois] from enter- ing the same," etc., (Ontario App,, 34, 35) ; it is shewn, 1742-9, that the French "intercept the English trade," that they "intercept the Indiana coming down with their trade," that they " have out-factoriea, which the Com- pany have not," that they " actually do winter among the natives, which the Company have not lately attempted," that they " went there first and are better beloved," that they secure " the valuable furs," " the light furs," " the choice skins," leaving only •' the heavy goods " and " the refuse for the Com- pany" (580, 581, Ont. App,, 32-3). The -^-on-panj* also adisit that -' after the Ccsaion ur Canada in i 763, British traders, following in the track of the French, ... by building factories, brought 414 APPENDIX. the market for furs nearer to the Indian hpIIbi. " th^^ .. *u r, their trade seriously affected lent TrZl I' *'"**. ."th« Company, finding interior," that "at theHm« Tft ^ ■ *° «atabh«h themselves in the Company had iot :xt:^nder he" ^IZ^'I^.T'T'' ^l*' 'V*' ^''^ the Bay," Henley being the onlv inUnH «fl- "^ 1 *f ' '''°" *•*« '^°'^» <>' preserved bearin/thatJate '' (?/4 sSS? '**''" "^"'^ "^"""^'^ "»>*-« been 1774-Port OumWland ^^^^^^^^^^ ^^ ^^^ ^ 1790. Someof\heir'^:;^Zt:l^irer^^^^^ '>«^- l/yu— Lac La Pluie and Swan iliver (716). 1796— Assiniboine Riyer (76). % 1799 -Red River (76). • III. Provfnrof o\S :-'• ''' '''"''""« P^°P°""°"« ^^ ^^^duced in the interest of tho gradJX^uThtd ttfSS tTd?ngXL^or:nT ''^ r'' u ^^ *^« «-' *W beyond, and drew the Indians STe noErHronl 1°' "xJ".*^^ ^"'S'*' °^ ^''^^ and establish posts on the shores of the Bay (lb) ""''^^^n «'« not find it necessary to mrecht, the E„,Ii.h „re " stored " to Jle oAhL'iJLT.™ if "" '^'"'' "' shed of Lake Superior to th. goT lioontS .Yd /t^l .T^'l?'""-'''' r"""" "■««'- to tie northern herder, of the ^../.trr^lYof t!.:wtir.riZrd''ri';:l'""'°- o^.i'rc^SuV'rhoVd'hfLit.i'''" ir:? °' rr"'' •°'' "" ^ *• «»'»■> °f norther. ., op., .nd the .'r^t't a'oT ^rparT tt I'^t^TllZr" °' "" the eSf STrS'd:f,:rLru, i\tht:«: cj^JarS'Sri' °"""^""r ^•.':/.''"L«!"r^'^' "■= ™«" »J'fe"«';;"o« ?f.^»°'to,b* <=lw«»8 that the bonndarj between that Provinrand the Provmoe of Ontario is (1 the meridian of the confluence of the Ohio and Eh^innt Hud^"k't'£lL^'h'^''T°K' '''' ^'''?''' '' '•'^'^ ^'-•^''^ '»»« water, :;?chfl"S£^ tr:::t^?r^d*rtd^antn^^*^ '-^^ ''^ ^""^^ °^ '•^^ ^™*' ^*^-' -^ '^-« *« Priv^n^^ln^fi ^A "^'T^ ^I^^^l '•'^ "**^'*' ^ *•>« J'xJici*! Committee of Her Maiestv'a fSiS^:L^tL"r^.!rt ^*' ^.^'" prepared containing the material, agre JTo be .atteri^n^^^^^^^^ igu'm^^l*"'""* ''' "'"^' *''•* ^''P'^^ "« *« ^« ^"'"'•^d «'* lea7ten da^lKr^th^ " ' The book kno«ra as the Book of Arbitration Documents may be referrnd tn ,n fh. ai^ument for thepurpose of ,he,.iug in part what material, wl before tKbUratort "It 18 agreed that m the discuwion before the Judicial Committee of thePrrv Council reference may be made to any evidence of which judicial nSe may be take "7r ±"^h?nr"*/'T^ ? '^' "**"'^ "^ '^' «'^-« ^"^^ *he iartie, toTt thTprly OourioU !! ! n*!^ rir.'l.'"'".u"''f '"^ '^ ^'^^ ^"^ C°«°°'l »f« the following :- " « 2 J^ 1«'!^K 4 "J'^^u"':." ''^^ '"'^'' *" ''^^ circumstances, binding ? (2 In case the Award is held not to settle the boundary in question th«n urh.^ on the evidence, is the true boundary between the said ProvinciJ^ ' '» " ' (3) Whether, in case legislation is needed to make the decision on fhi« oaa. Kr/ Jo^r'"*'' T^^"""^ ^r *»>« Parliament of Canada and the Provincial LeT latures of Ontario and Manitoba in connection with the Imperial Act 84 and 35 vTfc '"O. MOWAT, " ' Attorney-General of Ontario. " ' Jamks a. Millbb, " ' Attorney-General of Manitoba.' " "And humbly praying that Your Majesty in Council will be oleaaed m f«t«. fi,» -j Special Case into consideration, and that the said Special Case ly be referr^J t i V ** Majesty to the Lords of the Judicial Committee of the Privy Council to report fh to Your Majesty at the Board, and that such Order may be LSe SreuponTs to yTu? Majesty shall seem meet. The Lords of the Committee; iu obedience toTour Majelty'I ' said Order of Keferenoe, have taken the said humble Petition and Special Case inltl Sria*!'- T^H^r' TT' ?■" '^' ^'°^'"^«°^ 0'^*«"°. and alsoLr the Prov nJe opinfon :- ^ ^ ^' ^^ '*^'"'' ^""""^^^ *° '^P°'* *° Your Majesty i their "1. That legislation by the Dominion of Canada, as well as by the Province of Ontario, was necessary to give binding effect as against the Dominion ftnrfh»pi^ the conclusions which their Lordships have drawn from the evidence laid before them. I 27 (B.) 417 APPENDIX. westernJrtlfTp • ?n' *•>?>■• -^'dahips find the true boundary between the western part of the Province of Ontario and the south-eastern part of the Province of f r / V'.k' '? T'^ f " "°" ^'•^^'^ *° **»« ^'^^^ of the Woods, through the waters eastward of that lake and west of Long Lake, which divide British North AmoricrXom the territory of the United States, and thence through the Lake of the Woods to th" Z? f^ J.""''*'? P°^°u* °^ '^"^ ^''^^' " ^""« northward from the United States boundary and from the most north-western point of the Lake of the Woods a line drawn due nor'h catd L "e'S oi'tt f' 1 1 r'l ''{'''' ^^^ '^'«^''-«-« the wateZrthe lat strrmflowinffrnrfhiT r'^^^^^ *'•■ ^'^'''^i*^ confluence with the stream flowing from the Lake of the Woods towards Lake Winnipe/r. and their Lordfihin« S *^«, ''"/^""•ir-y between the same two Provinces to the n^orK Ontart a^^^^^ ite str kef the'mSr' ^'it' '"'"*^? 1"" '''' P"''^* ^' ^""'^'^ ^^« beTore Tentled ln« nf7h!l fit ^'""^ °* *^^ '°""^ °' ^^^ "^«'" >^«* aforesaid, to be along the middle il to th«r^T^ °* 5' '*".' "'"'■ (whether called by the name o the English Ri^er or Tr the I of«W r t "^ '^A r^"'T' ^^ '^^ "•""« °f *^« »>^«r Winnipeg) up^o ifke Seul' to 5e tln^f .t !',*?^ thence along the middle line of Lake Seul. or the^ Lonely Lake fnl nf r .^^* l^T^; * o^ **''°°" ''y " «^'*'«'»'^ "°« *o the nearest point of the midd'e me of the waters of Lake St. Joseph, and thence along that middle line until it r^che« watorofTakelt' jS'^'il-'' T' '""T' ^'T' *^^ "^'"''^ "- of the river by wh S Zlfj. fl ^T\^ discharge themselves, until it roaches a line drawn due north o^tl^rvLtrMliitr^^^ '''''''''''' '^' ^'^^^ -'^^' ^-- *^« boundarytst^ S r««f il"^- w-*' without expressing an opinion as to the sufficiency or otherwise of concur- ^ff «. of 1 -T . '•^^P^/r^T °* °"*^"° ^""^ Manitoba, and of^he Jomin'on of Canada (if such legislation should take place), their Lordships think it desirable and most atraU'effectua!."^^"^^ ^°' "^ "*^'^^°^-' should^'be passed to mmi:tei"S;' vi,?!.''* ,^y«STY, having taken the said Report into consideration, was pleased bv and with the advice of Her Privy Council to approve thereof, and to ordTr as U is herebv WhTenf t^'n'^' '"'"n^" P^fr^y °^^^^^«'^' «beyei'and carried into exeout^ot^ Whereof the Governor-General of the Dominion of Canada, the Lieutenant^overnor of the Provmce of Ontario, the Lieutenant-Governor of the Province of Manitobland aU other persons whom it may concern, are to take nouce and govern themsd^es accor^rngly C. L. Pkel. D. JOINT ADDRESS OP THE SENATE AND HOUSE OF COMMONS OF CAN ADA, AND THE PROCEEDINGS IN PARLIAMENT THEREON. In thk House of Commons of Canada. 29th April, 1889. nrnnS ^""'1' ^^"'"'^'"g *« Pfder. resolved itself into a Committee to consider a certain wSv ^^f "f'«"' «° T*'»f\*° f«»°d an Address to Her Majesty, respecting the westerly, northerly and easteriy boundaries of the Province of Ontario * * * Mr. Colby reported that the Committee had come to a Resolution. Ordered, that the report be now received. Mr. Colby reported the Resolution accordingly, and the samr, was read, * * * llie said Resolution, being read a second time, was agreed to. 418 APPENDIX. '""r f"-'"! "I?^'*,"' f°"«*^ *' bl^a^'iScn'""''' " """"""^ *» """ » .« Addict He"M^.t;:;Z"r.V'rd *« ^"-»««".-»;ttee»-P'""'«' *» 1..- "P same wm rwd x folloieth • r™ "f.'" ^'^'^"^ aooordingly, .nd the The mid Addr«,, being read . „ooad time, w„ ,gr<»d to. let May, 1889. i SenaJf:W'£VeS:troW^ '"'"' ' ^^^e'had been brought from the the w^td^rfh^^^^^^^^^^^^ Her M^-esty the Qaeen, on the subject of it desirable that an Act of trSLlnf 7.^^ ^/°^^°°^ °* <^'^«^"°' *"d declaring Ireland should be patedlefining the same ^" ^°'*'*^ ^"«^°" "* «™** ^"'^'"^ -d GenefaJ.Vr';U'thlX t::n^^^^^^^^ ^,**^T /° ^'^ ^ ^"-°y '^^ ^--nor both Houses%o Her M^ eatron tl lubiect S^^^^^^^^ *' transoait the Joint Address of boundaries of the Province of Ontario *nH ^ i ^ ^^ westerly, northerly and easterly ment of the United Kingl^ of St Bri^^^^^^^^ '^'^^'^^■ dom of Great Britain and Ireland shmildhTnta^Vfi .^*'"1'*'"«'^* "^ the United King- .^Hie^E,.,,e., m.,.eem ari'^J^LTltTf/t-rS^tS^^^ [THE JOINT ADDRESS, AS PASSED.] ^'o r^°x 7^«''e»8 such boundaries, so far as the Province of Ontario adjoins the Province ot Manitoba are identical with those found to be the correct boundaries by a report of the Judicial Committee of the Privy Council, which Her Majesty the Qaeen in Council, on the eleventh day of August, one thousand eight hundred aad eighty-four, ordered to be carried into execution ; o j > ALnd whereas it is expedient that the boundaries of the Province of Ontario should be declared by authority of Parliament in accordanco with the said Address • Be It therefore enacted by the Queen's Most Excellent Majesty, b^ and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 420 APPENDIX. 9, from the 1. This Act may be cited as the Canada (Ontario Boundary) Act, 1889. SCHEDULE. 1,1 ADDRESS TO THE QUEEN FROM THE SENATE AND HOUSE OF COMMONS OP CANADA. OanaIX^SS?lrbl'!rf"'Kf'^ '°^*^ ^'j^''*^' '^' Senate and Commons of Your M^esfy ma'bf «^^^^^^^ ^^^ ^^j-^^ -th the request that ment of the United kCIT? V ^ .°*"'^ * rneasnre to be submitted to the Parlia- discharging the waters of th« lalr« ^-lu^ r i □ "^»"«ie ane ot tne course of the river Tdilr« «Sf Tr.„„ • X i.1. i^ongueuil to a stone boundary on the north bank of tJiA 4S1