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Les diegremmes suivents illustrant la mithoda. 1 2 3 32 X 1 2 3 4 8 6 u B THK PROCEKDINQS BKrOKI Tilt II I, I. HI , iiMHIITKIC (iK HKB >l*.lKsTV i IMPERIAL PRIVY COUNCIL OS IHK -1'Kil (I. , A»e mt-. 70 FRONT STREET WEST > Gl'P'4 '^G^/9fi T H E P R o c E E D J N ( j s BKKOiu: HEll M.UrarvV IMPKHIAI. I-HIVV C.C.NVII. OK TMK SPECIAL CASE IlKM.'KCTIVa THE WESTHkLY BOUNDARY OF THE PROVINCE OF ONTARIO. IN THE PRIVY COUNCML. IN- THK IHHIlNlM.v OF .'ANADA. «< > A.. 1 MAMloHA, Behvekn TirE PROVIXCK OF ONTARIO, ok thk -nk paut, AND THE PROVTN(^E OF MA\ITOR.^ o, ,uv ^« SPECIAL CASE ^leferred to the Judicial GoM.ut.tr. of Her Majesty's In^peHul Prl.y Council is J^^^:^l^::^\^:t'!^'' ^r'f' bnun.lary of that province Chief Justice Harrison Sir K w ^M^h ^^'t' ''^"'^' '^>' ^'"^ «lononrablo line west of that poln"' '*'"'"'"" ''"^ ^^"' *'-^^"^''* ^i">«'^^' «'• (2) is a and Mississippi RiveiV o /'. I. Vl L "'■'•'^•'^" "^ the confluence of the Ohio waters whici^ow ^ m^i^.'s^ B '1', ^;;; il *'" r'l'^ '^^ ^^"^' '''^•'l'"^ *'- Of th.^ireatUke«.andlyin;;:tt:^^':;/;j^ *^« -"^y tl.e dec«.o„ ot th« Ji.J.cian:onm.?Ue:c ■' (S A ;r^ '""•^'"'^*^ "»''^'^ "'»'""-^' t.'b^b'.und by 1 (n.) THE SPECIAL CASE. It lias litH'n agreed to roiVr tht> iiiattor to the Juilicial OuTniiiittfo of Her Majesty's Privy Council, and an A[i|)en boon j)n'|iaroil containiny the inatorials agrood to he sulmiittod witlv this C'aso for th«) adjudication of the dispute. Each and every of tho particulars in the .said Appendix is sulmiitted ijiKinhnn i-iilmt and not otherwise. Ill addition to tlie jmrtieulars sot turth in the Aiijioudix, any histoiical or otlier matter may he adduced vdiich in the opinion of either party niuy lu- of iiiipurtaneo to the contention of such party ; and (suliject to any rule or direction of the Judicial Connniitet.' in tli.it iiehalf) such additional matter is to ite printed as a Separate Appoiuiix hy the parly .iddueing the same ; and copies arc to be ftirni.shod at least ten days hefore the arN TENTS. Maj>, luBforical ami Kiocranlncal ilinHtr.rW-, t .u '*''"• «.Kmm.nt J" ^« ''''"^'- """"'•■"'^" "f th., „„.tter« n. controvorsy. a,..l „f ,l,e 'PI,- u 1/-. , . (To face p.'iL't! n The Spmml Ca«,. refem,! r., tl,f Ju-iicial tV,u,„.iit«o Arguiiieut on the .,u..sii<.n ..f the vali.lity .,f thi: Aunrd :- Mr. McCarthy, Q.C. . of C..un«ol f„r Manitoba Tlu, AttorneyOenonU of Ontario, of ('„„„a..l for M,.rPrcvi Mr, ScoblK, (,».C., of Counsel forOi.Urio nco 3 18 26 Artfuiueut -n tlif .|Ue8tioii of the Houndaiies : - The Attorney-General of Ontario Mr, Scoble, Q.C ^-' """^ Mr. McCarthy, Q.C. Mr. Robinson, Q.C. of Counsel for the Dominion . Appendix .— A. -A ward of the Arbitrators, 3rd August, 1878. [XotB, no to the limitation of the Westerly Bo- ot the Lake of the VVoodni 12.5 'Mm iury of Ontario to the lim- 1 and B. -Deduction of the claims of the Hudson « Hay Company and the Frencl B..i«1.8h Oro«rn8, respectively, to the regions in dispute '■''Tiiiin'::'^:'' .':":':;'. ^^:''.^":':''^- '''*' --'^^-^ n- ^r^esty; D.-.T..at Address of tlie Senate and Hou.o of Commons' of "canad«' to'nlr Majesty, asking f„r Imperial legislation in contirmation of t" boun "i as determined by the Arbitrators and by Her Majesty in Council E. — Finperial Act, 52 and 53 Vict chan 28 MHSO* r ■ accordingly . ^ ' ^^^^^^' «'"^"-""»? "U-^l' boundaries 40U 406 408 41C 418 420 i ¥ I i I no' r,* J|()0_ HO "k.. Tx ^ ^AMMUfM V<5 <0 /\ \ «?«.. ha'_ ,„to a.ui^: ,y-^ > C £l mii ^ t^ rli %' "■-f-^ ^ w \ tn Vor* <"-*/, «:' -^ (^ H /f /' k- ^ ;'■ ■ii/Z'-i/ •>?«■/ ir«w* ■t> ■^■■L «^ Lai^ l^ ^*i»- 7 V r J*'S .V^II>«/j.,-^«Aji*{^ I ! il '■^- • »• v d ^ '" ■'^. p E L S\ \% f.nt'^i V J /» '< (/'. ii ay rJ»f M-iKla.r "X'O ■"Tis^^ \ ?*^^ r 4 Ip »Si»1 ,/.«/>" - 4r^ VJ.: "i"^ .^■K- :5:5^ s: sj»>'" l/>C ou I ^G't IAS «f V J ««/<*••"* |. fsAurfuRS i'.) .ClAiOUA'^KOtlft^ik »«*•• ^ ^ i: ^V % V uii<^!(if_ ofbV ^^ritV \flhe lxifnu>r\ of'%; Jl y' ; V ^o i ^ u y / ■ — -t-t-M — ^s — yy~~~^ V' A> SJA X ' J o it / ; / i h\ '• "','^'.1," ""iSAHi' " ^.C V^ \ /> \/» ' -*'"' t^.,^ Iff- " , ,< ^fji NX JMt *9 l^^vif «^,CH1»*CW"'« ■wf' i ««;«*<»"* 0*1 y^ ^^*» \ 1 I ■v"*^ «>Al. - II A -^ h < \ ■'«>" F /r^nltf «./.■■■.■-<'< S ' Hi A /. i.i ' •''''* (i'/jp. r/m-A- ro Ji„f 'U ,y-t;ra,l';^ 'r^ ■'"'• ^i"*' 1^ ij^ '^. iH-Ji^' ,«t li .3— — -i,,.!-""" '^' ^^'•^t/on/ »* of\(Notoom- BoMtolUml r pnted.) AfM of Ibnitoba. Moordlng ' tottMboomtarleawUohwwo ctataMdbyJbat ProTtnoo ItS.no " ATss SI nsv snssgwi>£ 27,174 ■' AtmoI Nmrafhiotta , to.tOT " Mm of Pilaoo Mmud Mud 1,188 " nnttoilM iaH.iH •• SttUt ofKnglah S((Uuie MU*s. Mfanated mm of Mruded (enltoiy otelmed from On- KTSted-^^i-i-ibki-^rtii "•*"*»•»"'- •warded territory whioh la Wett of the meridian of the confluence of the Ohio and Miadalppi Bivera, and waa claimed by Manitoba from Ontario 30,000 " Getimated area of that part of the lait-mentioned territoir whiob iia* Souiii ami Gaiii of the Height of Und .... 7,000 ■< *||^mat«d area of diaputed ter.Htnry claimed tor Onta- rio JMonAwMd Mi,oeo " ^ l.oni^iMidp Weal of (iit-cirvvrich <: Mr. S' C Midi it C •and M tlie Pro w u ' Wffl.l l H " !?«nnmn»r^fn**#ij iillUttm Till-: AlKiCMKNT. COUXC'II, <'MAMIli;U, WlllTDII \|,|., TlKSDAV. Jvllv ],",lli. |«S| The m^lit Jluiiouialilc Tin- Lul;i) (.Ju A.vcKl.l.ai;i:, Tho Ri-lK. Ilonour.Vnlo Sir HAitNKs Peacock, Tlie liiglit IfoiujnniM,. Sir MnvrAdCi-j E. Smith The Ri^'ht Honourable Sir Romkkt P. C(ji.mi.;i! ' Counsel for Ontario :— Mr Mowat oc )// /■' / ■ Mr. SroM.,;. .^.C, Mr. .M„,,,s, „,„1 Jl, |[,„ ,?,V,:- ■'""'■■'-'•'■•■«-"' .'■"■■ ""'■"■■», lU -who has lzi^"i i^M i' : : ''';tz''r!ri:^'''' '^^-^ ^^''"^^-'--^ A^hotheracertainAu-anllsorisnoV.rirall'th^^^^^ hi,.s think ri^ht .l,„f M?'' CHANCKf.i.oK.-Of course, if botl, „f vou agreed it that woubi be a ddlerejit thino' • -i-h ed u Mr. McCarthy.— May in 01 ' can, suppose you would say if, pri ma Juci.', is the person who was not bind in:.; , ti... history „,■ ti,e ea'^inu tt^f™ ,a4r;:;^;Lr''SSf;i; n .f '"'"■'• "" ■' made to arbitrat on, and the awar.J w... „,.,.','' '^'^^''■•'"'=" ^^"^ In 1867. tho Confe:i.,aJi, T Vt ■• IT '^ ''"'',"■ '"'''''' ^^' *^^*^ arbitrators. Canada was brought into t le D , n nion '^nd I'Ll '"" 'h 'Y'' ^"''"''^' "f the Province of Ontario as to mT Z and the P ' -^"'^ f tl^o L)ominion, as other. The Provinces of Now S^:,'^ t.^^X^LSl- a^,!!^ AWilJMEXT OK MU. m'cAKTHV, (^C. : ..f tho Dominion, an.l provision was made by the British North Ain.inca Act, for biin«tit^oii ot both Houses of the (Canadian Parliament, and subject to th^sanction ot Her Majesty in Council, [mmediately after 1807, an a-itation s^mv^ up in Canada--m point of fact it is wrong to say it sprunj? up in Canada, because it had been initiated before confederation— with a view of dointr away wilh tbe ri'dit of the Hudson's Bay l^ompany, who claimed to be tlie owners— and I su[)i>ose in'point of fact were the owners— of what 's known as Ruperts Land. A con- troversy was entered into on liehalf of the Canadian government, continuing tlie controversy that had been initiateuting the geographical limit which the Hudson's Bay Company claimed for the territory -rante.! to th.nn by that cliarttr. Then tiie Ruperts Land Act was passed in LS()S. P.y that Act provision was made for settling the dispute between the Hudson's Bay Company and Canada, so to speak. An arrangement, was piovided bv which the Hudson's Bay Comimny's claims could be .sett e.l, and on their settlenient it was arr.mged and provided that Rupert's Land slHmld,apo» th(> joint address of both Houses, of the Clanadian Parliament, be added to the Dominion That was done in the year 1S70. Shortly after that, the P^o^■lnce ot Ontario set up— or de.sired at all events, that the boundary upon the west which had been in dispute I may .say since 1818, if not earlier— that the boundary o\ Ontario extended to the point, and perhaps b^'ond the point, which the arbitra- tors have since determined as being the limit of Ontario on the west. 1 ht Dominion denied that. The Dominion asserted that the Rupert ,s Land Act settled the question, and defined the boundaries of Rupert's Land tor the purposes of confederation; and that whether that Act did or did not .settle and determine that (luestior, at all events it was determined by the (^lebec Act ot 1774, by which the limits of the Province of Quebec were fixed. That province afterwards was divided into two provinces, called Upper and Lower Canada, in 1/91 In iSiO these two Provinc-s of Upper and Lower (Canada were again united and became the Province of (Canada, to be disunited at the time of confederation, ai^d to be the Provinces of Ontario an.I Quebec. Thereupon, by certain Or.iers m Council of the Dominion of Canada on tlie one side, and of the Province of Ontario on the other, it was proposed to refer the question of the dispute : . ti> the boundaries to the award of two gentlemen, who were named, and who werv- to have power to .select a third. ,,,,.,, , . , • ^ *! . SiK RoHEHT COLMKR.— At this time had Manitoba been taken mto t\v confederation? , ,. ,, . •* Mr M('C.\RTHY.— Manitoba was carved out of the new territory. Sir'RoiJKRT ("oLi.lEii.— You .said it was provided tliat it should be taken into the confederation on tlie address of the two Houses— had the address ot tt«; two Houses been presented i ,, .. , r- .• t .i Mr. McCarthy.— It was to be taken in, but not as Manitoba. Lupert s Lar<..l is a much larger country than Manitoba. Sir Robert Collier.— That is my question, whether the address hao K'en actually i"i!'i'-;ented '. Mr MoCautiiy.— Yes ; that was in 1870, and it was in 1874, atter thm<: ditt'erences had arisen between tlie Dominion and tho Provin.'c of Ontario, tbm Orders were inadt; referring the point. What the 13oininion contends for isthif^- tho Dominion .says the award is not binding. .4 VLTKSTION (IK THK VALIIJITV OK THK ARKITKATORS' AWAH1>. th Amtsrica Act Edward Island. ort's Land and J he V»ro\i^'ht in, petition of both i)t' Her Majesty in ('anada — in l)ecause it liad I way with the — and I sii[t)>ose i Land. A con- continuing the t was atteinptp<] sh wfis made, as valid, and at all oinpany claimetJ pert's Land Act ing the dispute An arrangement 1 be settled, and ind sliould,upoii bo added to the , tlie Piovince of the west, which the boundary oi i(,'h the arbitra- the west. Tht pert's Land Act for the purposes e and determine Act of 1774, by vince afterwards la, in 179L In ;ain united an<3 infederation, awi irtaiii Onters in the Province of ;he dispute ; . to id, and who werv- taken into th»' itory. should be taken \e address of tb.t; tiu pert's LaR I'l address had \'0^i\ 1874, after thea<: of Ontario, that tends for is thif^.- Th(^ LoHl,' (UfANOKi.i.oK. — I thouirlit you said you aj^ieared l"r Manitoba :* Mr. .M<.'l 'AfiTHV. — I siionld have i'X()lained. .Manitol)a, as originuliy foi-nifd, did not CDini* as far ea-st as it does now. It did not touch the Province of Ontiiyo, as the Dominion claims the Province of Ontario is. There was a con- siderable spai'c, .sijiiie 200 or ;U)0 luiles, between the western part of Ontario ami the easti'in part of Manitoba, a.s Manitoba was i'orm.-d. Jn 1880, Manitoba wiis Kuilargcii .s() that the eastern boundary of .Manit-ba j^'oes to the western iioundaiy ■of Ontario. Sir HoHKUT CoiJ.lKU.— When was it first ealleii Manitoba in Acts of Parlia- ment ' Mr. McOakthv.— When it was created, in 1.S70. Sir RoiuoitT ('i)i,LiKK.--You saiil it was called llupcrt's Land in the Act of 1S70 ? Ml. .Vb.'CAitTHV.—The whole territory belonging to the Hud.sons' Bay Com- pany was called llupeil's Land. Sir .MoxTAfJUK S.MiTif.— First of all, Kupert'.s Land annexed to the Dominion, 4ind then Manitoba carved out of it.* Mr. .MoCaki'HV. — Ye.s. Manitoba, as oritjinally constructed, was west uf the TODst north-westerly aiigle of the f.^ak(! of the Woods, which is the determining point. It was wi.'st of that as originally constructed, and did not approach on the eastward what Manitoba now claims to be tin; western boundary of Ontario. In ISSO Manitoba w.is enlaru'ed, and the boundary given to Manitoba by the enlarging «tatuto WHS that Manitoba upon the east .should meet Ontario." Therefore the question now becomes between these two provinces, Ontario and Manitoba, although the question, as it was originally fought, was lietwcen the Dominion and Ontario. Sir MoNTA ;UK Smuu.— When Ordeis in Council were made referring it, had Manitoba been enlarged ? Mr. McCakthy. — No. it was after the award was made that Manitoba was «nlar'jr('d and came to the western limit of Ontario. The LoiU) (JilANCKr.Loit.- -Which boundary line does the question relate to f : Mr. .McCakthv.— The boumlary line between Manitoba and Ontario— that is ihe westein limit of Ontario and the ea.stern limit of Manitoba. The LoiU) CiiAXCELi.oK. -^--Then at the time the award was made, Manitoba had no interest in that (juestion ? .Mr. .MctJARiHY. — No. The Lord Ciianckllok.— But the Dominion had ' Mr. McCakthv.— The Dominion had. Perhajis ifyour Lordships will look at ,one of these maps it will assist you [producihif map\.f All this that is marked iji blue is vv hat is claimed as Rupert's Land. This is Hudson's Bay, and this is what is clalmiMl as being Rupert's Land. The boundary on this side is the Hudson's Bay, ami it was l.tounded on the south by the Province of Ontario. Lonl AiiKKDATii:-— That is, in fact, "what was English territory at the time 'that the French held Canada? , , *'■"*• Rupert s Land and tlie North- Western Territory, m.-oalled, admitted into th.,> Dominion, with- out apecifacation of boundaries of either, and named theNorthWcst TorritorieB, and then Manitoba carved ..out of the same, ii''t_(>ut of Rupert 8 Land alone. (See Imii. Order in Council of iJ3rd June, 1870, t>reti.M.d niie(l Act describes the Houthern boundary of the new Province as ninniBsr from 90" - ^ cKc. '? "'« !""■« ell of 4!)", " d.ie west along the said parallel of 4!!'' north latitude (which forms a por- «*. '■' ' -^^ ftp' ''"^"*^«:''*^» thr Uinlcd Stute-s of America .^nd the .ia.d North- 'Ve«ter.i Territory) to "4lie meridian of !)!)« west lonffitude." Thm is, in efTect, a legislative declaration of the Dominion that j^Kupert's Land did not extend to the international boundary. I- Namely the map shewinff the territories claimed by the Hudson's Bay Company, under their charter, appended to the Report of the Committee of the Imp. House r.f C.numons on the H. 15. Co,, 1857. AIUJITMFNT OK MU. Ml AllTHY, y.C. McCarthv.— Yos, to the uioHt noith-westorly angle of the Lake of thi Mr. MrCAiiTHY.— Thnt will be a goole tract of country bisyond that which was given by th(( award of the arbitrators. Mr. .McC'AUTHv.— That is to say, if the Dominion view was ri'rht. They dirl not actual y .set it out by metes and bounds ; they merely .sai.l, Manitoba on the ea.st shall be where ( )ntario on the west ends. They left that point to be deter- mineii. ' Lord Ahkrdaue. — The Dominion drew no line as to the oast ? Mr Mc(J.\Rniy — No. Tboy had originally drawn a line as to the east, but they di.l not draw a line to tlu; east as regards that. TheLoRDCHAN-cT.r.i.OR.— I understand you to admit that the disputed dis- trict was not within the limit of Manitoba until the year LSSO ? Mr. McCarthy— Yes. The Lord C'haxckli.ok.— That at that time, according to your view, it wa- withni the Dominion and not within Ontario '< Mr. McCauthv.— That is .so. Sir Rohert Collier.— Where was the line of the award >. 17'/ 7 ■ ■^^'^'•^"TH^'-— The most north-westerly angle of the Lake of the Woods. \_lhe Uni,'H.e.il cimnxel explained upon thr map.] Sir MoxTAGi'E S.\rrTii.— What does this boundary mean [pointivn to a line on, the nmp] ? w ./ Air. McCauthv.— -That is the original Manitoba. We claim now U> this, and he arbitrators hav.> given this line. [He shews these ow the viapl They have taken the most north-westerly angle of the Lake of the Woods, and then followe.t down here [pointing]. Sir MoxTAorK" S.MITII.— What do yon claim as belonging to Manitoba ? Mr. McCautuy.— We olaiiu this line here lpoi7Uinff]. r,f JiJh ^^^^t"" *-'o^«''""'''";5 •"'*'> prepared for thJH reference, by Stanford7l884ra'nd~thi^Tin feature^, of whicli liave been re-produced in the map accompanying this volume. , u i. ■ .«ii ieaiur..F. t Johnston's map of the Dominion. * '■ihould i:j;AL'.;,1?,-iit3f,:vfljAiA-i ..tA:awih«?;j.ii«!*i\;ia ,'. (il.'E.STtON OF THK VALIDITY OK TFIK AniilTRATORS' AWAKI). My loanieil ; we are con- 'tween Fiunce ho aj'bitrators I. it porlmps be •A yellow, and lioh Manitoba lock. 1 two lakt'3 in )f that which p ;f it (shewH litoba. nitoba siicwn ince up to th(- e Lake of the fi- of rc-opcn- intry beyomJ it. They di.l nitoba on the t to be detei- the ea.st, Ijut disputed dis- ■ view, it was >f the Woods. liv(j to a lint- V to tills, and They have hen followeil mitoba ? f| Sir MoNTAOi-E Smith.— This bit which is coloured. I ^^I'-. McCAHTiiY.—This wotihl be the Di'^trict of Keewatin : it was ori-nnally i^ h-eewatin t would new be Manituba. The tract in dispute really jroes from .: r/(anine to thi>. That part Ontario i.s not claiming and did not chnm bv the award. A ^l' ^','>^;''A^<-'K Smith.— Then this .lotted line is the award line, is it ^ :^ Mv. MrCAUTMV.-No. It is tlie water line— the English River and Albany ,;l{iverhne— that IS the award line. g^ Now it may bo as well perhaps at this moment to point out the heiifhts of ipand because these wdl have a p)od deal to do with the'discu.ssion which we are abu.it eoteiing upon. This is the northern height of land, which forms the line ot the watershed between Hudson's Bay an.l tlie St. Lawrence system. It goes round Lake Superior. This map* shows all the heights of land. And this IS another so-calle.l height of land in this direction,t which was at one time dauiied to be the liunt o the Hudson's Bay territory. This then is the other watershed Inu. which marks the limits of the basin that drains into Hudson's Bay. The basin ot Hudson s Bav was drained by the Albany River, the Churchill River ^i nf fl' T :-''n ^''^"•.^'^'-''^r" "^ '''''^^ «'■ t'^^t, the Mackenzie River jots no the Arctie Ocean; nnd then the St.Lawrenco .system takes its ri.se here, an.l fal^ into those large lakes-Lake Superior and so on-and rolls awav to the Gulf theV:T— '■ ^'^«t,s the St. Lawrence .system. Then, below that, there is tlie JlissLSsipp. sy,^- om. 7 ho.se are important natural landmarks to be borne in ihTYMl^? "'T ?lr''^ r* '^'^"^'""^"y i" 'li«P"tes which arose between .xne itiiiglisli and Iicnch at the earliest times. Now 3'our Lordships will see the effect of tlie award was to completelv Ignore the right o the Hudson's Bay Company to ai.v territory whatev^ ^ ^ Jir Roi'.EUT C0.,i.iEU.-\Ve had better .see' what Uie award is. award was mid ;tT'l''';'ir^^'' La.] better first see under what authority the swam was mad.;, and what the award i.s. ♦nt),,?!.!';? ''*^•'^'^'^"^•~^'^''^ J'"* I"'"'*^ ^^^^ »"^' *" ^■«"'- I-onlships before i come ,to he contentions we make upon it. In the Joint Appendix, pa-e 7 your Lordshim tt cTv :.r '\' Tn": ""^ ''^'''''^- ^^'- ^''-^oks, who wL-then a m m er S tlieGovtTnment of Ontario, reports to the ..xecutive nf that Province in the doemnent^wluch is set out on page 7,: reciting the Acts of Parliame^ t Tml io t on down to about hne 20, where the important matter comes in : ^ " " In view of these objects the unders:,i^ne-ntleinaii 21st Novoiii- s} iiiforiniiit;- ill ^('0 wliat t the iustancf! f tlie northern »ion, be deter- rnnient ot the irity to agree with the Pro t etfeot to the the determiiia- as and fur hucIi 1 ^nci";rS;.Z;'i'! r* ""^ '"•■ :r**'""'r5 **•« ""'^hom and western limiU of the Pro- 4 '"*'•' "' UntHrio la accordance therewith. '■ will « ^i*!'.""'*' ^'''"''' !".'1'P''"« now until at the foot of the paL'e your Lordsliins , will find the Aol paH.scl in (.)ntario in l,S7t.' It vocitcx : i^onisiiips • KinJdZ'lTT \ u '"P-'"' ^7'."^y"*«ht r,f the Aetg of the Parliament of the United fn7 t. ;1if^h 'TarJ :;■ K "'' r'":''' ^^^'^^ ■" '^^ "''^^'''" ^"'" - ^^e thirty folh tt Idishne nf> • ""'^^.'^^^r^)"'. ""'-'K". '»nd intituled 'An Act respecting the Ond^L /."''■'' .'" * '" '^••""'"'"" ^^^ <''*'"»'l'^.' 't is enacted that the Pari iamet J W,d r* °"' •""■ '° "T- *'"' "'" '^^°"«*^^"^' "^ ""' L'';;i«!ature of an v Pro "nee " And whereas the northerly and we.sterlv boundari.w nf H... P,^„- « /^ l»orninionof Can.tia alrtI/pr?:in;rof'', l^ '^^ ^'^^ (iovernnienta of the "S^loL-SHft^A^lls"'' '''^ a,reonicnt. which I need not read. •ny two of the ar.,itrator. aforelid n t de id^d to b: .h 'n::;,"",'""^''' '' f ♦oundanes respectively of this Province shall T, 1 I '"'''" "O'-th'-'^Iy and westerly •estarly boundarie.s thereof or in case the llLl h n '\ '"' *" 'f '''^ northerly and gone, the .uae .nay bo S^'Z:^ l^W^ Pa.?Ll,:^"or?'*^'"Y '"""^^^^ ■fcid, and that the Parliament nf <'„„o<]., .„„ ^i . -*. *""»"'«n*^ oi Canada as afore- ♦Iter the northerly o. westerJv ilit 75.0 Knv'''^^^'?r'*'^ ^'"'''^'«''' °'' °^l>"'--i«« ie in accordance with the awari " '"' "^ *"''*"*'■''' ^'^ ""^* t»'« «»»'« "'^y Then, the 4Ui'''' "^ ^'^'-^ Oil should issue his procIanVatU? „^. if the L,^ute,j^„t-Governor in Coun- *h.. other parliaiienrhadot^^^^^^ •gwed to. ^""'"'^ *''^ concurrent legi.slation which had been ^^^^^X^^'C^^^^:' ?"-^'^T^ ^0 ^e an effective * ;'!< Vict., cnj). (i, niftrio. '■ 'An Act re.specti..K the Northerly and Westerly Bouudari ies of the Province of AU liavo Imcm done, hut in July, 1.S7N, hi; Order in (.'oiiin'il ix p'ls.scd |>y ()iitaiici+ which yniii Ijoidships will Hiid at thr t'iMit of itnu't' H'. wliich r<'(>itt.'s, ii|Min tln' rc|init (if tho Attorncy-i i-'ucral, that L'liii i' .lustico llaiii»t)ii had iH'eiiajipointi.-d in Ikmi <>f Chii'f .lii.sti'fi' [viehai'd-i, Cliici liir-tict Ricliards had bcconio thi' Chict" .)u' Siij)ri!nie (.'onit of t.'anaila, and tlion he resi^^'nt-d his po.sition of ailiitratnr fir Ontario, and Chiif .Justice Hanison liei-aiuti aihitiatm- in his jdarM'. It also rioitoil tln! fact tliat Mi Wilrnot had died in tin- intorini, and siiMrji/,.stc.l thfit Sir FraniM.s Hincks shniild hi appointtfl as urbitiator for th.- (lovornnicnt of tlie Dominion, and Sir Edward Thornton, the anihassador at Wa.shin^'ton, as the third arbitrator -to that extent departin;!,' from the ori^final teri.is oi the a<,'reetnent, wliich were that the two arliitrators apiK.inted by th(> respective provinci > .should theinselvos have selected the third ; l-iit nothinn turns upon that. Then, it further rH, and for estaMisliing the northern and western limits of tho Province of Oiitiirio in connection thorewitli." 'i'liat, your Lordships will see, is dated the IJbst day of July. Sir IbuiKiiT CoLl.iKK. — The ( Jonunitteo of Council adVi.sed tho foregoing'. Mr. M«('authv.— Yes : that is on the 31st .inly, 1S7.S. On the -anio ilay.ut Ottawa, the Privy Council of Canada adojit a corresponding Order, wliich i> set out on pajjo 11. :|: The arbitrators tin leupon |))'oue(h'd to hear the matter and on the yrd Aui-'ust the award was made. * riiiii.Act. Si anil ".") Virf., cap 28. h OuiiEU IN Cdincii, (ONT.Mtint, Appkovkh iiv lilt- IjIkctkn.vm (.ovKitNDit, Tin ;n.sT inv OK .Iti.v, \i^7H. UlHin consiilfrntinn of the n-prnt of ihc l[oiiinirai)le tin' Attonn-y (icnerul, iJuti-il :(Otli tlay of .luly. ISTH, recoiniuHniluiK tliat tlii- HnnnmiihU' Kn))erl A. HarriHon, <|iiMf .luHtiof of Ontario, bo "appniutt'ii •rliitratoi- in tlif mattii-' -r" the northerly ami woHtfi'ly bonnihirifn of the I'rovincc of Ontaiio in relation ti the rehtof the Jioniinion, in tlic m.oiu ami steiul of the Monoin'alilo Williaiii Bnell Kicharils wiio, Huice hi.- apiJointinent »•< such aibilrator, was ai'poiuteil Chief .lustioe of the .SupriMiie Court, ami s ilweiiuentlv reHif;neil hi" apiMinrnient a^ arbitrator, tlie ( ojvernment of th- Dominion havinif nauictl Sir Francis Hnieks one of the arbit.ratnr:> in the room anil st.ead of the Honoiirabie Lenni'-l Allan Wiimot. ileceaaeii and the Right H(ino\Mal)lc Sir KdwarJ Tliornton liaviiiK been named on belnilf of the (buernnientf. of th' Dominion anil Ontario ; ami also recmnmendini; that the determination ol ihn award of snch three arbi tratorn, or H. majority of them, in the matter of the naid IxnuidiirieH rcBpectively, be taken an final ami conehi.sive; and al.so that tiie I'rox inee of Ontario apree to concurrent ai.-tion with the tioveniment of tin Diinnnion m obtaining such Ie,iitant Clerk, Executive Council, Ontario. t Rei'OHT nr .\ CiXMvirrrKK ok tiik Phivy Chinh'h. (Ca.swdu, .VrriiovEu nv tmk IIoveknuh- Gk.nkh.m, on liiK ;Usr Jii.v, 1878. The Committee if Council have had under consideration tlie subject of the northern nnil westeri. boundancH of the Province of Ontario, which, under previou.s Ordern in (/onncil, liad been referred to tl" Honourable \V. B. Richards, then Chief .fustice of Ontari.,, named as referee on liehalf of that I'rovince. but who was subsequently rei.lace.l by the present Chief .Justice, the Jfonourable li. A. Harri-on. and th- Honourable Sir Francis Hincks, who has been named on behalf of the Dominion; and wlnioas stib~- cuently to the action taken iinder Order of Council of 12th Noveir:b<-i, 1,S74, it \.as mutuallv agree.l between the (Joverninents of the D..niinion and ( Intario, that the Right Honourable Sir Edward thorntoi should be selected as third referee, the Connintlee recommend that siich .selection be confirmed by Minuti of Council, and that the determination of siich tliree referees be final and conclubive n|X)n the limits to bi taken as and tot each boundary respectively. Certified, .\i folio wij t.:'ttfr ahoiild Tl, .Ml Uw, H\l ©fl'i CtiXi 1 ^< passa-o' those to case f'.M' Itlnnk awai'il sessimi ( '• \v not (l< 'or provision ware a:,'rt; [ m, might he parties, .s of Oiitai' nuuiH-x'd " Am tlM Provii aibitiMtidii Ofttaiio, i.'l llieii it ; il Bays : > •■And than liail i Mitt of c, OOiltiu lied v T|en iD £ fliaiuen lisiaturo Sir l{. ^ "And «»p(ed anc Mr. M " Tlie padii iDjiv decidec ■Wl iie and ditoiiiish ore intf W. A. HtM.swORTH, Clerk, I'nvy Council, Canada. 10 The Pa -__ :'! refei s|i|!ikini,' no • 42 Vic •.•'•E.STION oy IKK v.vi.fDIlV <)l TIIK .\UIIITI!.\T<»Rs' AWAKh. jf l><71 * Tlici. July, 1S7H, at> kvill Hiiil at thi- iii'ral, that ( Mii. I' ichanl^. Chi.'i )Hit I'i" (.'anaila, 1 ( 'liii f .lustit'f ) t'aci that Mr incks sli'i\il(l hi nd Sir Kdward -to that extent ; tliat the two es have solecte'l I at the t'nut of action with tlu 1)0 neif'.inary for r eHtalilishirif; the horewitli." le f'"«rof;;oin^f. lie ^aiiio day, at < )i'liT, which i^ ear tlie matter r ;UsT I'AV OK I ,'iOtli day of ./uly, itrtii". 1)« uppiiilitfil )iitaiio III I'i'liUiiin t> mr(l.<, win), since U\f t, anil silweiiueiitly naim il Sir ^■l■an';|^ II Wihii'it, ill cnnscij (ici\i'rniin'Mti« uf tfji of .iiicli (liiec aiin luki'ii iLH final atiil (Jmcriuiieiit of tin :oni'lii^loM iiirivi'ii ;ii l'ro\ iiK-e i)i Untai'ii n\ and approved o! I'liKni., 'imncil, • •ntaiio, IK liOVKKNOH- irtlii'in mill wratrn liceii rnfcrvMil to tb" .If of tliiit rrovincr, I, Harri-on. and l\,> and wliiToiis mib-' art luutiiallv agrci'il ir lOilwanl I'honitni, infiinieil by Miimti i^Hin tliu liniitB to U Viineil, Canada. •hould I,. 1.1,,, i,,; o -.'rec , ,n r' "' '*V'"';'" :"^'"^'-'"'""l <»"tt the award ^^..' ;-;.. o,.;x.'!:,i'::j^t:;r^!;:i;!,:"> ••""' '••«'^'"^'- '•-"- .-• Uw.a.^i ..;.',:;;: ;;;\-)^;;.:;!'>;„";;;.^ .)^-ay 't was not p..siMe as a.na.te,. of p^^a^l^jcns ':!KMM;'x'f;;'';^- '"""ri^'';"' ^^'^'"^ -^ ^''" •""•-'* tho.e to wl.ieh I hav euhva V ern^^ T^ <->■ whu.h I cmtend, i,. addition to CMC for the res,M.olive ,a ti s ,„ Vl „. ""-' "'V'"'^''"^'^ P'W- '.hmvIv state the •wanl The IVovinc on' ta," h v I ! a V"'"" V'-''"'^' '"'^ '-"-vin;r the •essi.inof J^u•liau,ent~-nei^es ^ '^ '''"'''' '" l^'f>*-tl.<- s.K.x-edin^f provisMuul lines, wluch foT^;.^ J^^™ ^ "^";'^ '''« •"'■•^rjnination thrreo,; certain m%h[;;;:%s:rj:;;:;'U';^;:j:;;'t%^;T'!;^^^^ '» -'- ^'"^tthe ti.nbor P^;i-^ r^'n-atui.the.iiCp , ';."X :: .^ ^7\a-n.eed to hotwein the Of OMtarii, „,ana,;^od the i„l.er and ^ th 1 ' /''I " "?•' ""^' ^'"^ '^'"^■'"^'^ BMUiH-eii it: '' ^""^ ^" ^^^^^ ^^^'^t of the h^ne the Dondnion «*'r,.t.,a; A.ul where.. ITouJZi^Z^ '^ -. d.tora.ined hy .vtV-rence to Ottmo, ,.|,apf,r J, .h-e,i.- • t nt Cuutiia had contended to h^wihut.-'i ''''*■*; '7''T^' ""^" ^''^' ^'^^^"'•n S;L;;.;;^?^\:S!;;;r, %:':;. ;-p^^^^ i^n, which ,ives )(Btfi"'"'' -" • ' aiioi tile Ijoninlnpuo^ ■,„u\. .i. _ thi houndancs witli t!,e oon-^.'iu of the P^lmment'of Ou.ada "pim'or to'aU^ islatnre of anv province Sir I{o,u;kt C<.r.i.n:ii.-Itrocitf.s: Mopi^^itiS..;;,;" ^"•"'^"" ^''^^ ^'- --»•-- '•^ternuned hy the .aid aw.,.! ,., -Vk'^U^"]"' ■ ""' ^'"•" ^''^ ^'-^^'"^ Hans., is : ^^'^\^ '"^yp^^^"Z^l\u!lou^^^ ">"«cnts that thn Parliament of ..».. .„i,.,.i„ .,.„ .i. .„„ :rit;i;t:;-:t;ri^«t? SLT;:r ;■- — IZl ' P'li-l'ament did confirm the • 42 Vict., cap. 2, .'An Act r.Hp.ctin^ the Nonhc.^'^^nd W..t.^l7 1^7"^ 7 J .inii u . :,tuly 13.Mi„daiies of Ontario " n AH(;|-MK\T OF MH. M'caIMIIV, (/.(•.: h.)iin'laiips, tilt" , - iiwnnl sliDuld not be op..'rativ(.', The folIowiiiLT cument, at page lOIJ, is a loctiire delivered liy Sir Francis Hinclts, ('xi)l.uiat,oiv of the award.* The Loud Cuancelkou.— J thiuk that, can lianllv h.- evidence of anvthincr can it ' . , ,-,. Ml' MiCAKTHV'.-Therr is u ltooiI deal, 1 am afruid, in this Joint Appendix which is Tiot evidence of anytiiiiif,'. _ The Loud < 'llANC;i;i,i.(.'i!.--.The opirdon of an individual, th()U^dl he was cne ol the arl)itnit..rs, can neither interpret the award n.-r settle' the (luestioii indepenih'ntiy. Mr. .M,'islation at Ottawa and here ; ai;d th.T*^7■!'^,i^;.'^^:l'■■, ■;■''' Yr^'-'-]y 'i'"V/l."i- "l tl,.. rr„vi,K>. ..f 0„tari.,, ami th. .A war.) relating i.rr,,., ,isdiM:,,s,Mlu.r]..-x|^.iii,M,i liv t|,r Hn„. .Sir Fraii.is Hiiick.s, K.r;..\I.(;., i„ his I'ubho Lectinvi- ims l.'Ltijif niiiy also be f.airiil in ,Sc.,k. I'ivijms, Unt., 1,S82, NO. fill, p. 4M. t The r.tVr.neo is ro th ■ f.,ll,»viM-,' r'.>i-.«K'r:i|.h of Sir Kraiicis Hiiicks' iTOtiiiv : "Charhr ok .Aimiptino .\ Convkniknt Li.nk Hki-itki). Mm,. \'Zt. "r-L^/l'l'"'' o" '''"' "''*'"^''. ""»S^''».V ."l"!)'-.! a ocnvrnti.m.l „r cnveuient boan.lary is, thai tl,.. 'n . A 1 ^ *■ "^"••l'.-;'-^';'-" ;""t s,,„',h.,vestcn. b.,u,utaries v.as adopted for the sake .,f eonve i '„, ,, I / '"J , " " aiit.bonty of Act-^ of IVu'liaiiieiit, and riteriifi.Uoniil Treaties Th.^v fouii,! in M l.rH TJ'^'o''^''''" '-''f ''','<'■- n.arbinK. lames' Uav. the deseri,,tio„ proceeded t, is: M ud, Z a lii,. ■'M'ork,;, u'i, W ie'';:.;:;''^ -uth^ard or.t;,e said li„e to th' uUuU extent of U,.: colna^v'lnm on , XI. fl or knou n by the name ol Canada. Ii the enties ot the award lieheve such la.eniaL'e sn'seentibi lie eonstn.etion that ,t K.y. down a preei.e s,„,t on the north-west as a boundary t e f h e r Jhwe Ld Day (..nnpa-iy as a satistantory southern bonndarv, they adopted it." ' ^ .„hi:,!r'"'''n .'xx!'J '■'"' •■^'■«",""'"f' "■■ will apnear farther on, the Lord Chancellor alhided to il hSs ,/r. ''"''i '.'What we gathered, from Sir FVancis Hincks' doonnient is this. tL le ar it ilo - th„ i. , , " '."S" "," ";•* '*"'".''"^f principle. accordinK' to the best of their iudVm™ , en th« person wle. represented the Dominion .said it would be convenient th.at those ritsHholdd uT^lrll:^,:,^. ferni ;^:i! """"'"^^ ^r' *»-.-'-''-'"- V""^''^ '^•^ Au-ny i^veni:™' s; lor r.n»t puipose. it„;n. hndiiiff Home indications in previous < ocunients that that view of the Alb,.Mv Kiver Ime had been at one time entertained by th. Hudson's Bay Company, it wa.s a opied I do not t ;L /;^^.'v*V"n-.?'"?', b"'''''"^' '".?""!'''"" "f ^'"'t- I 'i<"«>t mean that they'arebonnd bv it' ,^ | J T"". J *renot, bat masnmcn .i,s it was at tbeir in.Unce that that am .nut ot deviation if it wis a tXz.l'z,S':^^-!:i::^z^?f "•« --' "- -"•< i-'-. ^'-y - -y ^>a„;it;;:^^„;^;Lx: ; Sess. Papprs, Out., IS'lt, No. SO. 12 that the within tl His Hor he nece.sii I'arliarne as possib Sir Mr. of Oniai Act. Tl having 1: IVuvince At th(> ei merely a " Th. of Caiia.la the delay i eHbct otiie Then tin; [ merits of was a pn at pagi? l; " fn V riient of Ca intention t( l>y thearbil the influeip; to l.y His 1 That 1 made by tl advice prof Sir Re .Mr. M Sir Kn Mr. Ml date. Sir Ro ^[r. M( The L( I'arliainent h.'gislate, of Mr. Mt; further. \'ou hy the Legii. tions are g oi the Parliaim will tin.l the " That til the renpeotive VI-KSTION OF T.lf VALIDITV Of TllK AKHITRATOHs' AW.AHI). tlociiment, at if tlu! awjud.* b' of anything, int Appendix h he was (.nc tlie (juo.stioii his way : Sir illow tlu! true not evidenco s never con- At page 12.), le I-'rovincial la.', At lino inada that the I westerly aiih' the confluence the heiglit of this territory stice will con the matter of ,iul here ; and Awari relatiiii; nl)lio Lecture a' tiMbiiison, ISSl ■ li-M-y is, that tin' of coivi'iiicnci i» uutlii)ri/c(l In i''y foiiTi>l in tl, iiiliiiling- ail t.li" inti'v (.MiiitiioiiK :<• Sll^i|■e|)ti^)ll■ I.I ir i;liarge luiKlil irs ill extcndiii;.' onp of tlie pt'i '(.'isi.iii as t,i. till.' :« by a natiir.i' .^nU.Jnia::::Z^'^^^::'^ri''r''''t ""' "rr'"F P"'-"^***'""- be necessary to -ive etfeef tn f h . . ,'".,''' 8'^ ^° '""''" '^^^ *"'-*' h'^ialation as niav as possible, Himuita'ltSt.Ta^ld hSS'' ' " ''"' -^1-^^^'^""^ suh.uitted, be, as nearly A>'t; Then wo oon,o Z S^^ 127 wh n 'on t!\ "^^'T'lJ'n '^ ^'^ '' '^^'"^"^'■'^"^ leaving b,.cu tlone in the mea ft mt 1 v " ■'•' •^"P^'"^f' 1«7!». .lothing hovinee again hrin-rs the . a tn fl ' J^';."";"o.i. the Uovernnietit nf the Attln^end'of thepa=Je S \d^ "' ^' p.--«'''H"ont at Ottaw^a.* -^ndyarepet.ti,,^^;H.^^;;;ili;,^;;:;ita^^^^ : f Ca..ad:;S''::i";:;r.:'t!;Kri'^;tt"'" rr/*"' -^—-'t and Parliament ;. the delay in -..nouncn,. th. acc.u e«, ^ri';-;;^ ^ !'^^« respectfully to represent that eliecc otherwi^e to the award, hksn":„:;in:Lii:rr in^is ''"' ^"' "^ ^'"'^ ^"" 5 -;ts:;it,^::^':nrLd'^:jr thS'ufs: -^^ ^"-^ 'r-^^- - ^^'-- ^i- I was a prope,- cnncln.sion. Tha 1 vev 7'V^'";^';'';f •"^•^''1 ^t l,y the arbitrators 2 at page 130, in a part of ti.e s^Ll'dr^S. j'^al^ " ^""""^ 'l^"^'^""' ''''-" n.o„t;f cS;^ln:.;-5|:X*^ «f Ontara3 tr.st. that ... .overn- intent.on to Hubn.it to Parlia.neut, Jex . « i ° aTl/''^''?^'' '"^'?"' ^''"■^'^^'- ^'"'^y- their . i.y thearl,itrators t,. be the true northerly ZwlVi ?''"';» ■''"" ''°'""'«''y established I the uitluen.^e of the go^^ernraent tohuriL ''^ ''ound.ries of Ontario, and to use I to by m. Excellene? the ./ovlor^^neial "'""' "'"P^'^^ ''^' '""^ "-'"^^ ^"^ -^e"iS I n.adJi;y\;nM;:^,;;;;i!r:? ou::::':t^:T ^" ^^"'^""^"^ ^^^ ^'-^ *-« -- ^'Iviee proposed to be otfered o t io PaHi . /'''i';''" ^'V^^'^^'^ ^'' '"^^^kf^" Sir RoiiKRT (JOLUKH --VVL did I A ;''^;1^'''''^'^*- Mr. McCAKTHV.--At once "^'^ '^ ^^"^'^'•'" ^•'^"'^' i"^- ^'^vo ! Sir KoiiEUT Coi.MEii,— At what d'lt.^ / f^ i Mr, McCAKTMv.-Tt n.erij;gh .s'tvei 'rZf'^" fl" ^'"*^ '^^'••^'- date. " " •^"t-Ntai. i tinnk nothuiy- turns . Sir Ror.Kirr Olmei; -It was before this ' Mr. McCAin-t.v.-Yes, the early part of 187<» f l..isIate.ofco,.rsethoAerw.^:h^tt>th^:::;^':tt. or th on tht \>y the Act, except that the ir the I'arluinient never did the r:S^t;^:i:?n^;tzrst-J" r;;;! -.rrr- *T1 iiiiiinnnous award oft h action of IP Assiatant Provincial ,S e .irbitrators. Ont.. 1880, No. 4«, p. ;) iecretary (Ontario) to the Sec tilth Mareh, lh79. r«tary of Stato (CaiiadaK «ms. 1 aporg 'Journals I. I^eg. As... 18h0, v.,1. 13, ,,, 160. 13 AKiiLMKNT OK MU. M'CARTllY, C^C. : the Covcinnieiit of Canada has liithorto failed to recoi^niz^. the validity of thu said award, and ihiit 110 U!;,'islatiim has lioeii suhiiiiltcd lo parliament liv tlift Govemnieiit of Canada for the purpose of (.•oii1iiiiiin£!; the Haiil award." Tlion tliore is a Kvn'islative dorlaiation pass. si in KSSd l>v the iJ.iminion iiarlia- ment tliat the award is .iisputed. Your [.(ndsliijis will' find it in tVia Act, 4:{ \ic., ca]\ ••Jfj, page 1 :);} : " Whoreas certain territory on tlie we^aein and mirtliern boundary of Ontario is elaimedliytlie (Jovorninent of Ontario as being within the said province; and whereas such claim is disputed ; and whereas the Piirliament r)f Canada is desirous of makintc suit- able jirovision for tlie administration of criminal justice within the said territory until the dispute is determined.'' The award was made in l.S7>S. The.ie numerous appeals had Leon made to the Goveriiinent utTanaihi on the part of tho (iovernmont of Ontario; and in l-SSii an Act is passed declariiit,^ tliat the award is di.sputiHl in point of I'aot. The 1.1)1(1) (.'HAN( KM.oK.— Is there any reference to the award in that Act ' Mr. M<('authy.— No, except in the part 1 have read. The Loud CuANCELLOR.—That does not refer to the award at all. :Mi-. M(;C.\ktiiv.— Not in terms. But that was the matter then in dispute ; it was to provide for the administration of criminal Justice in this di.sjmted terri- tory peiidini;' tlie s^ttlenu-nt of that .lispute. Then! on the l.st February, 1881, page I;J4, tlie Attorney-General of the province again a])peals to the Dominion ;' " 1 hope that the present session of the Dominion ])arliament will not be allowed te oomo to an end witli,.ut the neces-sary Act being passed adopting and contirming the boundary award. If, liowever, we are again to be disajipointed some additional legisla tion is ab.solutely required." Then comes 4 1 Vict, cap, l,f providing,' for the extension of tlie houndario of the Province of Manitoba, and giving for the boundary of ^!anitol)a on the east the western limit of tlie Province of Ontario. •Sess. Papers, Ont,, 1.S8L', Nj. •_>:(. t ACI OK THE I'HOVINCK OK M.WUOII.A. 44 VlCT., 0.\1'. 1, SKC. 1. (18S1). An Act In Proriile fur tht KHenxiun of thr Jicnndariix of Uu Provitict. WhiTc.i'* by chapter twentyeight of the .\cte of the Parliament r.f tho l^nitnl KinKilmn of flrpfC liiitftiii and Inland, jiaaseil in the se.ssiim lieM in the thirty fourth and thirty-fiftli years of Her Afaicsty - reip;i), iiitituled "An Act rfS))ectinK tlie cMtaljIi-shnient of I'rovinoes in the iXiinini.m of Canada." it is ei; acied that " the I'arlianient of Canada may, from time to time, with the consent of the liepihlatun- of nnv Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province upon .such terniH and conditions as may be agree.! to by the said Le^irmlature, and may. with thn like co'nseML, make provision respectinj,' the effect and operation of any siu'h increase or diminution or alteration <•'. territory in relation to the province affected thereby ;" And whnrea.'i it is expedient and desirable that t!ir boundaries of tht- Provincf of .Manitoba shouM bfi increased on terms and conditions of a just charactei • Thereforn the liefrislative .\ssembly of Manitoba enacts as follows : 1. The Legislative .\ssembly of ifanitoba con^^ents that the Parliament of f^anuda may increnoe i •■ otherwise alter thi> liniits of the Piovince of Manitoba upon tlie terms and conditions set on't in this \c, and may make provisions respecting the effect anri operation of any such increase or alterativ)n of tern tory ; the increase or alteration of the limits of the Province' to be so that the boundari.-s thereof shall bi- as follows : Commencing at the intersection of the interriati.)n;«l boundary dividing Canada from tli- Cnitwi States of America, by the centrn line of the ro!id allowance between the twenty-ninth and tliirtieil ranjfes of townships lying west of the first principal ir.eridian in the system of Dominic n land survey-; thence northerly, following upon the said centre line of the said road allowance as the iiame is or may hen- after be li!C.ited, defining the .said ramre line on the ground across townships one ti) forty-si.x,' boi,-, inclusive, to the intersection of the said centre line of the s lid road allowance by the centre line of the n.;i.'' allowance ori the twelfth base line in the said system ..f Dominion laml surveys ; thence easterly along tl. said centre line of the road allowance on the twelfth base line, following tho same to its intersection bv tli' easterly limit of the District of Keewatin as defined by the Act IW Victoria, chaiitcr 21, that is to say," to a point where the said centre lino of the road allowance on the twolftli b.ise line would be intersected by i line drawn due north from where tho westerly boundary of the Province of (Ontario intoraects the aforesiii^! international boundary line dividing Canada from the Onited States of America ; thence due south, follow inp ntym the s..-i!d Ime to th" ii(f,«r.!Hti-m»! b-.undwy afofessid ; and Ih-nce westerly, following upon ::,; said intirnatioual boundary line dividing Canada from tho United Statss of Ain'eric», to the place ' beginning. ■ In the 1) ini ,\.-t, 44 V, u. U infra, this line ia dcjurilieJ as beiiiif drawn • across townships one %<> fortv-four " 14 1 .^ Man it '>omii tho !>,• .s .\! ever O Si >\ ? ', o Ontario United Those ,1 Th "Tl •would b( Afr from w You lia\ about. The one viev .Mr. ■Whether line, or t point wh I'liited 8 Sir ^ I Mr. . Whercis Jneld in the pi ,:*hi- Uniindarii lilicrease of th hereinafter f\ ^Jtouse of Con 1. The Pr larles therHoi lividing (J.iua- nth-ninth .i 'iiiininii |,»ni 111' sinii- is or rty-foiir,* bol ' road allow , ierly along t iection by the i ' ipter twenty ise line would ince of Oiitari »te.s of .\mer I thiince westi ■-■'-- Oi .Africri itiiin the Provi li lie shall, Iron III this .-iotol I <..LrESTrON OH' THE VALir)ITV OF THE ARIJITKATdUs' AWAUl). till! sjiid award, neiit of < aiiadiv liinion pai'liu- ri thci Act, 4:! of Ontario is ; and wheroan of inakin!:; ■miit- ritory until the n made to tho lui in lS8(t ail in that Act ' ill. n ill dispute ; lisjiutod terri- bruary, 1S81, L> Dominion :' t be allowed to continiung tlif litional li'gisla boundaries Manitoba on jnjjdiim of Orpfi' (if Her Majesty - I'aiiada." it is ei: Lepislature of nr.v li l^rovinoe, upoii tliH like con.veiu. 1 or alteration . f desirable that Ui' a just charactei' : may iiicroane dv >t out in this Ac. teration of tern thereof -ihall U- Canada from tli>- inlh and thirtii-ii c II land survey- ; ne is or may lurr- ) forty-six,' b'H;. re line of the rotii' easterly alon^ tl.>- ilersection l)y tli" hat is to say, to :i intersected by a ects tlie aforesui': due south, folli'U lloiving upon :.. , to the place ' ! to tortvfour " I lie Lord ( 'ii wpc'r I nij tm i. • ? ^, M.'. ^''•avRTf,v''^';r h; t;:i" ^r^;'!^'' : ^' '^ ^^'^^ ^''^^'"'^'' «^ ^^-'toba." Mar,u,nl,a ailowin. the prov'ir e ■' to b. 1 " ^kon togethor-that is the Act of ^''" '^'-vinoo of Manifcl.ba. tZ fwo ,, • T ''{ ''t'^"^'7' "^ ^^'"^ hnnwlan., of ^■ver 0,,t.ri,, ends Manitoba n>mn' I „«? ' ''"^ ''^^I'"^'^'' I^'"'^'^ = ^' J"^^ ^^ys, wi.;^,- r ly b Huidaiy of Manitoba !s Sulla''! ''"' ^'"'" '^'' ''""^""- '^ '^ I"-^P"«ed onu-o^ ■;;!Ltzl;;:;s^,:[::;;;S ^°r-^ «^ *•- p-vin. of I n.ted states of America." ""'a^'on-il boundary h„o dividing Canada from the Tho.0 are th,. last th.eo liu.s, pai^e llUi. -o,dd,3ei„te,.ec,:edbyali„:d,.:;;;;'^;:f,;^;^,;-'' ^"^"'*"^" °" ^'-^ ^-el/th ha.e line ^on/wi.t^''Z' w;;:fcj;^i:^S^^^ !;;; '[fp;:'"' " ^^;^ "- ''^--n due north Vo;; l,ave . ..d out .here that po^t 'i.^Nir^- ^J^ J^ t ^rSd^i 111" Loud Chancic(.i...r._0,i,. u,,,,,., , i ■ . <""' v'^'^v ^"''''"^" "f that provhuv L ^' .!'^. ■^>";"«i"" "^ 'V^ thereof .hall be Tf ^^ ,^'^^^^^^^ th.t ;« . -l.ng Canada from the J 'ed .Swte^' 'T'"^""^ 'V' "'" "'t-rsect , ', "t,'' ':',',r''y' "" ""»* t'^. bonn- ■"thninth .and thirtieth ranges ^f^'.?LA"l'V^^ ^'y the centre of fl.l '.' ?■ " "'•""t.onal bo, tivid.ng Canada from the J 'ed .Swte^' 'T'"^""^ 'V' "'" "'t-rsect , ', "t,'' ':',',r''y' "" ""»* t'^. bonn- «'enth.„inth .and thirtieth r: J^es of t 1 s lo'^",'''-''-'^ ^'■'^ "'" •-■""tre of tl e roid — '""'"'""I l.ound..ry nth-ninth .and thirtieth ranges of towMsl,;"."'-"-'^ ^''^ ""' •-■-mre ,.l the roiH ..11 "ouno..rv , ""n.ou l.M.d .Hurvey. : thencf norther ^ .11 *''"'' *'"^' '''' t'''' 'i^-^t pr < ip 1 me i'"'''"''" '"'"-■•'» the lie sani.. IS or may hereafter be loeil, T i^'e •'''''^,''''? "1"^"' the said ce itre f ''l*" '" "'" «y»tem ' 1" road allowance ..n the twelfth b>« kJ tie said centre of the said r,.n I Vii ^"^"'''''iw one to J^ .>rly aloii^ the said cei.treTf • ;^; i ".'w'^, "'" '""i'^ ■^>'^""" "f the , 2,^ 'T'^'r ''>' ^^e oentni ^ ■ ■...0 .o„id b« in.:;;;::;^;^ ,:;^ ^:^^;-^\ where ti^ said- e,,;;^;;;';;^ |lK-e of O.itario intersects the af,,reai,? I, .;''';' "'''',"', '""•' w'"""'' the: we^t^rTv 7'"'"! "" "'« '"-"Iftii »a'..Hof America; thence due ...uth.iir '''''"*'■ ''^'""'I'^-'V' 'i.e. divid , ^ pL .""'i*'"^ "^ "'" I'rj . I h,mce westerly, follo.in, u;';;^':;h^'i: IT'/I^^Hit iT''' '7' *" 'h^' -tenl^t^St.'!:';!" ^'"^ '^"^t^ld ^«.U„,dra«„ '-re.u,»v,„„„,,,<,„a»o forty-si,,. AROUMEXT OK MH. M I'AHTflV, l^'- Mr. McCauthy.— -Then, my Lonls, tlievo urc. two inoiv di'spatclies to which I think. T ought to draw your Lonlships' iitteution. Thu first is dati'il 31.st Doceni- her, l^<8].* and it is a very lon;^; docmneiit, from the Attorney -(Jeneral, or ratlier from the Lieatenanl-tlovt'rnor of the province, to tlie Dominion authorities ooing over tlie whole subject again. It commcncos on page l.'iT, and at page 141 the Lieutenant-Governor says : " I have callpil the Oiitorio l-iogialatiire to meet for the despatch of l)Ufiine3.s on tht 12th January, f perceive that the hirliaiuent of ('aniida is to meet in the following month, and 1 would respectfu'ly urge the gre'it iniportaneeof my being oliicially inlbnned. before the meeting of our lef;islatare, wheihf-r tlie Dominion (jovornnient is now willing, with the toncurrenc(! of tlie LegiKlatiire of Manitoba, so far as such concurrence in necessary, to agree to the arrangements which hav(^ been sutjgested, .ind to ol)taiu from Parliament, at its approaching session, tiie Dominion legislation necessary to give effect to 8\ich arrangements." There is ne.xt a desi)atch of the 27th January, I88il,+ which your L(>rd,shi| will tiinl at page 142. Here we have the ft r>, com- mencing with paragraph N :' " Th(t proposal of 187 t. referred to in your despatch, that the iiucstion in disputr should be referred to arbitration, does npt seem to have l;ceu treated hy either Govern ment as a inode of seeking an authoritative decision upon the question involved as a mattet- of hiw, but nvther as a means of establishing a conventional line without lirM ascertaining tlie true boundary. In corroboralion of this vii'w, it is to be noted that of tie- three gentlemen who made the award referred to in your despatch under the ret'erence of 1872, two weve 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 tran.scended the power of the government of the day, to refer to arl.>itration tie question of the extent of the North- West Territories aciiuired 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 (juestion 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 obtained, if it had t)een found tliat it ptomised to be to the convenience of Ontario and the adjoininji province that a conventional boundary should be establislied in lien of the legal boundary, authority might have been sought from the Jjfigislatures of those Provinces and from tht; Parliament of the l)ominion for the adoption uf such a conventional line That tlio 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 lo increase, diminish or otherwise alter the limits of a province, wich 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 bo. The pas-sage of such an A^t shews that it was not sought that the true boundary line should be ascertained, but th it a conventional one should be laid down." The Lord Chasceli.oh. — V^erv bad reasoiung. * The Lieiitenant-(iov«rnor of Ontario to the Seoretar.. of State (Caiiada>, Sesi. Papers, Ont., W'. No. 23. ■tTlie Secretary of State to the Lieiiteiiant-Ciovfrnor, Scsb. I'aperH, Out., 188'J, \o. fill, p. 4(18. .; Thf elabcirftt« ausw fi- at the i'luviuco U> th..- dffiiiiitoh ill 10 oitei, is coiitaiiif d i.i til.) (io^p-atcli frniii t'r; Lieu'tenant-Govt'rnor to tlie St'crctiiry of State, 18tli Kebruary, 1882, priiiti'il in .Joint -Vjip., p. 14ti, a"' ill «ess. PapetH, Ont., 188'J, No. '_'.<, 16 QfKSTIOM OK THE VALIDITY OK THE ARIUTUATOKS' AWAKD. 2he.s to which I L<1 3l.st ])ocein- lunul, Of rather on authorities Aid at page 141 f business on tht in the following' Hcinlly int'onned. is now willing, 1 ooucuirence \f (1 to ohtiiiu from iry to i,'ivf efFHot your LcrdHhii Dominion, nml wild were still ^nant-Governiii mp' 14."?, com stioii in disput' r either (Joverii n involved as ii ne without first noted that of tin- th(^ re tV re nee of illeney'ii advisers hly inexpedient, arl.'itration tin ominion hy puf •ed on behalf ot, nd the extent of inly could hav'; fitive detennina- once obtained, if lid the adjoininii ^ legal boundaiy, ;e3 and i'rom thu line That tlit> is further shewn vision containoil it of Canada to sent of its legis- eing changed l>.v Df such an A't -tained, but thit I'ajHjrti, Ont., tHSL', fill, p. 4r.8. Bflo.spatch frnii, t\:- ; .Vjip., p. 14(1, aiiit Mr. McCarthy . the ti-,,e ii\,„ i,,, u,„ „. jVd^K or„f t ,r : ■' ? "r,!^^^^^^^^^^ I)a|iei-. " »aj— btin^' treuttil as so much n-asto The Lou.) CH^xrELLK-l^^nvvarLZ^^" m '" ''"^ •^*^^'^'- ■'*^^^•^'■ clanns to be heard on the question as Do/^i.^^l;;"'""^^ ^^^' ^^'^"^'"^O" qmte, as Huich as tlie provinces Bv th A.V • i '"^'-''"^'^"«'l ahnost, if „ot odly nmde already, no^^^UeSi^n iX imfts oVI nnn'inr"''^ '''''' ^-''I^-'- the consent of the Dominion Parliaraen In Unt f a t'*'? ^' T'^'''''^oni which makes it, with the consent of the proviS an vo '. n" ^i""''^ion how the enlarrrement of one province nii.rht khS; fi >'«»'-■*" /veil understand ^^ration. The different provinces came into PonS l """i"'". '''^^''"^ ^^ ^onfed- that 1 &7£;';':'h;/e *;t 'hrtSf ■ .?r j^'n r ' •"- §1 same side. ' ""'' ^ s'^PPo'^« they are practically on the Sir Barnes Peacock.— As I undpiNtnr.,1 +1, i Manitoba and Ontario and I think^^ ! •:. i^" ''"'^^ question is as betw^. AHUCMENT (.K THE ATTOKXIV-.iENERAI, OF ONTARIO; The LoKi,P«K,si(.K.NT.--That is provided in the agree.nonC. They reserve their n^'hts. '^ •' ^->civc h,„„i ;.v " ^•■■\ *i ""*, '" ""'"'■'-^tan.l it, Jf your Lord.shi ,s fix the bouiKa.> it .loew hx the Loundaiy ul (Jut.-irio For the ,.urp,)ses of tlie Don.inion as well as tor the piupo.ses ot the Province unmnun Sir i\I.,MA(;i'E Smith.— I did not understand that \ !"' {^nlJtf "l-ir ^■^''' ''''' "'^' ^'""' '"*' '^'■^" '^'' '^^'••^^'i '^^'""t that r thiuk. Jir. AiouAi. — L'li, yes. Sir Bai;nks Peacock -1 think it is .stated someuher.. xhat n.. question between Ontario and tlie Dondmon shall be artl-eted by our -lecision here Mn Mc( AKTiiv.-lhati.s in the agreement between the two provinoen 1 he two provinee.s cam,, to a certain arrangement, and in order t.. prevent there l.e,ng-any que.stion about it, we put in a elan.se stating that it was .lot to be pre^ MUKHltluit the agreement between us was to affect any .pustion.s between the DonunioM and (ntano, and reserving the rights of Ontario as to the same iheLoKi. CHA.NCK..L0H.-Then is it agreed between yon both, that both UJe tu be bound by our deci.sion ? whether '""''*''"'*•' ^''■^'' *'"'"* ^ ■^''^^"'*' ""^^ '^'''l^''^^'^ "\v.^>^-ll' to' the point Sir Barnes Pl.AC.XK.-The point whether the award is eoneh.sive Mr. MOWAT.— If your Lordship pleases. The Lord (;„ANcr:i,toi!.-l!ut is it convenient at this point t» hear tl,. learned counsel ioj' the Dominion ? valid"^'"' '^''"^••^'■•— ^*"'' 'in^'^tion put to your Lord.ships is whether the award is The I.OKI. r.rANCEM.OR.-Quite .so: but if the cmnsel fur the Dominion ZZ J\ l-l'^^^'T- "' "'"";'" "''" '^ ^^'' "8''^ ^''"''-- ^^''^ I'^'V'i intimated how- ever, that until we hear .something on the other side, there is a prima >„.{,• case n.ane out to shew that legislation was neees.sary in order lo make the award bJiidiiiy, Mr, lloniNsoN.-I do not know that 1 have anvthing to add I think it will he waste ol time after ihe intimation your Lord.ships hav^. giviii. Mr MowAT.. - It .se.nis to me, my Lords, that there is a good deal to b.> sni-i in favour of an ofiposite view. The Lord Chancellor,— Then w( will now hear it _ Mr. MoWAT.-Very well, my Lord. 1 think I can ' ,sat i.sfv you r Lordship, mdependently oi anv statutory enactment, that provinces" sftuated a tl£ provinces are have a right to enter into an agreement for settling, boundar e< between them, and timt such an agreement is binding without an^ legillS^ive Tin- LoRi.CMANCELLOR.-~-Buthere. first of all, the question is not indepen- dent of any statutory enactment, and, .secon- ^'''^'■'^^^ ™y««If to ^''^ E :iT^ ,' . ^^I'ft the agreement really was-- whether it was that the award 18 Addn to the tei in thi Do I Now. whai the two jj the legal j thing subst power. A that tliat i; as it is exp Order in t'l The L Mr, M( always dra and by the Lord 2 page S. Sir Mo Mr. Mc report, and theref'(jre w th« reeoaiin .. What i -'Sf "Thcu, sooh I'lMorees boondirips a; I aay that language, ti " oelermina The Lu " -Ml, Mo "Tlio unc DoOnnioii in ( ^iM^he con el u fi#terii boiuu t What tl II agreeil | be final be ucees languagi was tile let'ing. and < lovernm ifc this Ordei Sslation wi jucil of th acurrent le^ The LoR 4^ file conclu! i PliB Orders < Irder in C( ( iiibwr, 1874, ( (.lively, datei QUESTION OK THE \ AI.IDITV OF THE AUMITRATORS' AVVARI). They reserve i.s of Ontario two provinces, (i.sliips fix the tlie Doiiiinion ;liat [ tliiuk. III.) question a liero. vo provinces, pnivenfc there lot to lie pre- betvvten tla- ? same. Ui, that hoili liips' decision. :o the [loiiit ■iive. to hear tlio the awnni is 10 Dominion imtitod h()\\- i/l. fii.ir cilsi' Cf the awanl J think it i) to !>> .s'fxii! ■ Lordwhip.s ;ed as the.sc boundaries ' legislative at indepen- hether the 'ilS. lyself to the t the award ithoiit h^gis- m had this ing was to Addressuig myself to the former point, I ask your Lordships' attention, to the terms ot th.,- two Or.icrs in Council, The Order in Council passed mthr Dominion and the Order in Council jiassed in tiie Province are identical. Now, what is it tJiat these Orders in Council at,n'ee to > 1 assume at present that the two :,'ovfrnnii>nts had the power of referring the matter to arbitration the lei^ai power of refeirini,' it if they chose to do so, and I will say some-' thing subseijuentlj, if yt)i:r Lordships peiinit me, to nrove that they had the Ic^al power Assuming now that they had power to bind 'both governments and I say thatthatjs the effect of what they did, what is th.^ agreement between them as It i.s_e.Kpres.sed in the>.e Orders in Coun(;il ;* as it is exj.res.sed, first of all, in the Order in Council at page 7, and expressed also in the .subsequent Orders ? Ihe LoitDPifEsiDicNT.— -The one at page 7 i.s a report. Mr. MowAT.— Yes, but that is the form in which our Orders in (Vmneil are always drawn— a report to the Conned, approved by the (Jominittee of Council and by the (.iovernor. Lord Abku1).\ HE.— There are Onlers in Council given on the next paw, page n, Ira Sir Mo.VTAoiTE .Smith.- That at page 7 is th.> report, Mr. Mowat.— Vour Lordships may take it in this wav. First there is the report, and then tliei'e is the Order in Council adopting the report In efTect therefore wh-n a report of this kind is made and it is adopted by an .mJer then the recommendation so ad<)|)ted becomes the Oi-der in Council. ' " ' What IS it then that the Province and the Dominion agree to ' It is that— u„nh '' V'" ''«'': '•"V"f'«» ' 7-tl'at is the word used-" the deterniinatiou of a majority of such rctereps .should bo final and cuuclusivc upon the limits to be taken as and or such bwrndant^s as aforeaaid respectively,'' " I-iay that by the interpretation which my learned friends place upon this anguage, the award is not "anal an,l eonelusive f the awar.l is to be no ^elennination ; it is not a "determination " in the slightest de-nve i he Lnnu Cn,^Ncrai/:)K.-nut yoL. must read that with the next'sentence ■Mr. .MOWAT.- I .(uite agree, my Loi'd, ami I was coming to that- ;'Tlie under.sia„ed recommends that the Province agrc to ooucurrent action with tha D«mn,ouu,ohtauun,s„eh legislation as may be necessary for givin, bind iU etltet to the .onchmon winch may bo arrived at. and for estallH.shiu;^'' the' northern nc westrrr, baundanes ot the Province of Ontario in accordance therewith." What that sentence was intended t.i provhh. was in addition to what had ^^. agreed to by the previous s.ntene.. By the previous sentence the awar ^lo behnal and eonclu.sive, and by the following sentence any legislation 7ha JM-y . .e ucce.ssary for g.vmg to the award binding effect is to t.ke pface. (Jbserve tj0 language: "The undersigned reccmmends that the Province ac'ree" It, was tlie Government--the Lieutenant-Governor in (^ouncil --that" was lee.ng, and the Province inean.s t he whole people through its representatlerh I Oovernment J he agreement I submit to your Lordships to lave been thit |tusOrder there was a bimling obligation on the Province to concunen Rslation with the Dominion, as on the other hand, according to the o"deri n incilot he Dominion there was a binding obligation on "the Domink>n to ^current legislation with the Province. ■'^ununion to The Lord CiiAXOKi.j.oR.—But what of the words " for ^ Ithe conclusion," •giving liinding elTect kmter 1874 cited ««/.. p. 8 , and tl.o Hub^eque^ oX„ rc. n'noil of ^^^^^^^ Actively, dated 31st July. 1878. urintod anf^ n in n„f„„ I " .'-l'"'"^" »' ^tie J ro; ince and Dommior actively, dated Slst July, 1878, printed antt, p. 10, notos t and ::. 19 12th linioq AHUVMESr r),.- TllK ATTOUNKV-raCXKRAL OK ONTA FUO : ^]^'^^^^^^^n^^!:t(t^:^^^ - -- '-ttor of .lis,. wislatiun ; wl.othor tlu" a war 1 ForV, n ' '-"•."""^' ^'^r all purposes with, the DMainion ana Ontari,. Pa lia moX 0?^''' r'"'"' ''?V''*''"''''^'^^^^'''*'''^ ^ There ha.| l„.,.n a cor.trov m ^s ;, *r 1 ' ^',"^'"'"'' ^ "-•'i«'""nt. Can,Hhv and the IVovince N w' B u ;fe '';'''"''''''^' '"■^^--' ^J.o Provinc , an I,npe,.ial Aet had heen pas.e 1 1 v' e tt "' •^■"''^'\^^'^' • '^'"l '" that .v- by the two |.n)vi,uMaU'nve-nM.er,ts Tll/l 1,*" ^'''^"^ ""^^'^^ '^" ^ ivfen-,: in the present case did^ali C uthi h th m'"'' ^''-'^^'i'-^^f'"". '-^h ..uvernm, , It would have hoon a pertW-tK id him. i a 5'?''"; '" ""^'^"'^ '^^' '»^'«'''' "'■. «ie -luestion to arlntraturs if tlu aw , • w ,^ '''' controversy like this, to le,v, "•~^'" "''^■^-•'^'I'l'' 'ntention of this clause al, Everybody must at legislation ..sthaUheie,i.!ation'shouid£ 'laco hefore the award was knou, ai. was it not I -ail^fo^^^ttat;^i;i:;; :.t:^^ '^^ tl. better course, a legj.slat,.re in advance of the awar I hut'th f ^ ^^' • l'''"'"^'^ '^>' ^''^-^ Provino get Je^Mslation when it rni..],t ha^^ beei „ a 't ?' f ""^ ''^'''''^'^' "^'^'^ '""'''^ ' Mr. MowAT.-No sucli exi en. '"^"^ J^f connaon consent ? then in question ^ns\^ ^^^''''^^^i'SZj^'^'iT '^^ ^-"tory which .. Ontario, before the settlement w.thtL'HS^^JS"^^ '"^" ''"""\"^ "« P-^''' squan. miles instead uf the IOO,Oo;> whierth nrhS.oV f "'"' "'^'''-^^ ^"« '^^"1" ' The Lord CuANCMiuoir- Roth l.f- ^''^^^'■■■' ^'^^'« g'^''-" "s. their chance, and when t irLnp^n i Ts t';;'"? ''\ ^''^ ^^'^^^ ^'"^"? »« ,ak afterwards to use his power to USde f 'r ^. "'"''^ that each should be will.n Mr. MowAT.-That I hot e is n^f VhTi /'^T^''"""* '^ ^« ^'""J'l- for it certainly wa« not what^was intoned '^''tfi?' '' "" ^^"'"""^^''^ ^'"P'-- There has since been a change of Government n . n'^" ^'"^^^'^"^•^nts at the tun. •are entertained by the prerent gCr.re'" " „ tL"''""V""v^ by the government in power wlfen the a^e^^lnf '' "^^'"^ '^«"« entertain, suppose that the effect of the reference g Cf"^ was made. We did not at a than to make it as oblicratorA' as h^^ future legi.slation was anythin<' mo- the award should be co fflve '^ ^^67^2'' T^'' P'^^'^*'''^' ^^^^^ "^ tl , that it shall be final and conclusive /L,'i ^^""T "'">; ^^''^^ '" «» '"any wo,„ be necessary, and there is no provis oTfo? ^^'Y '^'I'V'''^'''''^^^ ^•'" absolutely "necessary." Whatevcn-coddho h ^ ^ legislation beyond what ■ The language is this: " The p rovincra ee to . ^'' ^^'r'''?^^T "'as to be don. legistion as nxay he n.:re..ary, foT<.ivK ndinT.ff '?"^^ '" ^^^'^'^'"i"^' ■^"•' necessary for giving binding eti'cl^Sherrn^/fK* " '."^'^ "« '^^^''^l^ti^" ^^•"■ eg s at on. It was^onlv if Tt si ou d ^p ea^ that i. ', ^^'pulation, could ask for ^gislation should be had. Bythefcems tbl-^ ''^JJ'-^tion was necessary tha, Dominion " were agreeing to be bo J iot 1 ?'" 1 '^^ P^''^^''"^« " a"d " tli. Ontario Order in Cmindl,''so far as tl tov.r , f^ th^.^overnments. By tl,.. to be bound; by the ^^<>min^^i^\^E^1:.^^^ '""' ' "''^ ^--"e^-^ to be bound. What I urge upon vo ir Ln .d.h:^ IJominion government w.. •legislation is - additional sti^lC^a^dtt T;nL!^:.g^SS;S:2-^"* ^^-" Sir Mc Mr. M The L. what they Qovcriior ii Mr. M Thr Lc Ml. .M( in one of th The I.( legislature :- Mr. M( Lordship wi ment of bou territory b}' ^ into an agree of that agree it is the Cro; The Um Mr. Mov The Low goprietors, u <■>' made a Unglish Court 1 Mr. Mou ,||harters umlei pitered into t ^ The LoRi 16 whole of 1 Mr. Mow fas a (|uesti(»r The Lord ly jnrisdictio >t (jnite clej kirisdiction ? Mr. Mowj •vernment, ai The Lord le court did ; I (Old Hard wick reated the agt h'.- Court of Ch the fultilmen \ersonam and 1 Mr. iVJowAi [ive effect to th( ider whether th The Loud ( Mr. MowAT, ;rong analogy t Lord Aberi in settle their ov Mr. MowAT. .^-FSTION Oy THK VALIDITV O,- TUK Ani'.MUATou.s' AWAFJD. 'Arr/^^yTO;'^lt!!H!!,u^Sl^ ""'^'"^ ^^"^ legislation u-as not necessary . what >l.ey^;,t„„.:i"fl?;,';;:;t7i^lvIl!l!;:'!;"M"V'"'■"v■ ""■ '"•• -•.""'■cnt.s, », ,« . ' ■ ■ ", 'I. •-! llfll. IS IfU,' m one of the printed despatclus tne printed despatclus b">-..u.,f.ii, aryues against us logiit^n':"" ^^"^-^'^--H-And without even an Aet of the provincial mentof boundaries betwL^n Yr, JinJ ' i ^ t to' I ''"'''' r'f''<'"ty that a scittJe- territory by the one to the o he tha \wo T,'''^"''''" "^ '^" «li«'nating of . into an agreen.e.,t fur settlin.. bounda ii i i. . '"^'^■'»^'^' ^'overnn.ents enter cou'rt did ? lS;ir;?,u'e,lrth hraii: S/^'-t *^^* '^-^^ ^»- eonse,,uence of what lord Ha.-d wicke as Loi-d Chance loi of i^?,hT*^' '^'"^ ."^"'^^ ^'^l^^' ^^ as you find it U.d the agreement us aToSlct &«' ;^' ^ |i.' Court of Chancery on the nrincln l nf 7 " "'^*'' P'=''^«"'^ ^o l^e enforced bv b the fulfilment of tieir contLc Jl pl^Z^ nH'^f^^rP.'^^ *'^ ^^ conscientiou^^ lersonawi and not in rem. ^ '^ pnnciple that the court acted in lye efilt rtte'^Ielmen^^^^^^^^ Thti%b'f .''?/¥ ''''''' ^^« ^'^'e to, r'^I^e^Ir^SSS -^ ^'^"Sill^agl^etSt t^l^.^^ ^-« -« - - Mr. MowAT.4Sase oTplSar"'^ ^^'^^ *^"^ '''' ^ P"^^'i« authority ^rong analogy to the present P'^P^'^^^^''^' g^^^rnments I submit bears a Very I Lord Abkroare Yon -rt- , ■ an settle their ovvn disputes wthoutthelnJr^ to prove that two provinces Mr. MowAT.-Yes^ my lord *''' interference of the Dominion parliament ?' 21 AUfaMKNT Ol- THK ATTOllNKY-dKNKU.M. OF (iNTARIo Lonl AuKiiDAHK.— Hut is tliat tin- (|u.'slir.n lioiv ' Is not tlic .|Ui'ition hf-n •wliotluT tlioso t\^'.) provinces can ap|MO|.riiitr i-ortaiii tmi torv that bolonsrs to t', Dominifm, nnitratoi-s. Lord Ani:i(.v\i!i;,-~Tlie ItouiinioM olfums that it is its own. How can v^ (leal witli (..rntory chiini.'d l.y the I)n,„iiiion on tli.' ph.-a that two provineos w:t re(;o;^tiizr,l l.tundarics, ami r-jcognizci eAistonocs, ui'e .lealinu- nitii each oth. territory ' Mr. MowAT.— 1 spoke of •' provinces" in a ^'en-ral wav. The cpiesti-m hef. ttie arbitrators was not hetwcn Manitoba and Ontario, Init hetween tliu J>orni' ion and Ontario. Sir MoxTAcri: Snini.- That makes it still more ditficnit supposin- it is , alienation. i i e Mr. Mo\VAT.~i!iit, my Lord, 1 claim it is not alienation. What theprovin, IS seekini; is not to alienate from the Dominion. It is as to wlio shall have pi , vineiaijnnsdiction— whether tlie territorv shall heloiiir to Ontario or to anotli. province; and it is tlie Crown in l.ocli cas,..s Rnt the' Dominion mav itself a.ssi' thi^' territory away lof that purpose. The Loud riiA.v. Ei,Loi!.--Miit it sceiu.s to me that vou are an immense m . liom your point, That ease of Lord lialtii.>, ore's I have always understood to i- upon private ri^^hts, and it is plfinly inapidicahle to anythin;^' of this kind Tl .onrt ot Chancery of Kn-land would never have dreaiut of assuinini,' jiirisdicti to entorce an award of this kind, whether it bo properly made or ndt and vn have to press not merely that the provinces could .settle ainon>,' themsJlves th boundaries and so on, but that the e.vecutive government of aparticiihir Provn^ and the cxeculiv.' ^'overnment of the Dominion could do it. Mr MowAT.— I have to press that no doubt, and I certainly think that in. that point / eun v. Lord lialtlmore croes a great wav as an authority for it Ibe Lord Ciiaxckllou.— And you have to do that in the taceof an Impm ■Act e.xpresslv saying that they had to do this thing by legislation. T •' . *"'^i;^''' '^^^^^ '"^ "''^'^^ *" another point, my [,,;rd. I thought that tl,;, Imperial Act* made no dilticulty in my way, for thi.s reason. It piovides t' * Imp. Act, 84 .t 3,5 Virr., cap. 28. -The British North Amkhica Act, 1871. An Act rc-iprctingthf eHablishmcnl of Prorincm in thr /hmininii of Canada. l'rov^nt"trter\'?/nrll!«'Va!^-';r «'«'""''?«'' respecting ll.o powers of the Parlia.nent of Canada to establ:- to nr S f , o ^idmittwl, or whu^h may hereafter U- admitted, into the Dominion of Canada, .r 'ucrZhtH.nrr'''"f "''',''''" "^ '*"!■'' V''"'-"f';': '" ""' '"'^ Parliament, and it is expedient to r "n bucnaoiibtH, and to ve..f '';"-\''f the Dommion of Canada, but not included m any Province thereof, and n^ Province L'.f"^''''"^^^^ make provmion fur the constitution and administration of any . it:"^;rern'^.^t[:;,!:;\rr^^ -^-' -J^cood government of such Province, ali i Pro,;inc^''/.fthe'lTl7->V.!'?*"*'-'''"'*^''7'".*'^u '" *'.""'• y''^^ tn.. consent of the Legislature of .•. t«™l J ,'**"^ 'J'^n>'"i<"". increase, diminish, or otherw sea ter the limits of .such Province um.n i^i, P^isiZ r~trMre"';\''''"?^''^ "l-"' '^''"''^ L'-gislature, and may, with "t like 'con's nr« ?eTatio'rt.rZri'r;fv,-it"atc\ed tS "' *"^ ""''' "''"""'' °' QUESTION OF THE VAMDITV 01 TflK AUIHTItATOHs' AWAKI). lie <|ut'^fcion liii. lit belongs to t', ,' was iiiirs — w;, Hotv can V' ^i) provinces w;t willi oacli otli' >.' iHU'sti )n het'i. I'ct'U the JXniii' miposing it is ,, hat tlieproviiii I) shall havo pr, •io or to anotl]. nay itself assi; -II immense v n(h.'rstoo(l tu r this kind. Tl ling jurisdicri )r not, and \i\ -liemselves tii- ticiiliir Provii:' tliink that up rity for it. !eof an Impc n n. ought that tlis It piovides f ;t, 1871. \ada. Canada to eatnbli' ion of Canada, :ir xpedient to rem' tonsont of the Lor: he authority of i 1." tny ter^itori^^ Mre. :e thereof, and inin Iration of any si. 1 Province, and ! Legislature of r.. Province, upon tu like consent, rii3> ation of territory ;: [minstration, |>ea« ivinoe. tively, "An Act r lited with Canad- ipter three, and i ohln.'^ f r,. 'T'^ i "•'.';;'"<='; ^^'"'ts to chanjTf- its houn-larios, or is wiliin- to Sn. fi^ "•'''''^■'''!"^'>'''''''''''^^*^'"^'^^ incrc-asu, ami tho Domini.", i.v • I V^i^JTr l"''^"'"'" '"'■ ^'"^* l""l'o^o is made, h„t it do.-s r.-.t provide ThV A,.f 1 " ;''^*^«f ''"'""t ''etwvn. th..|M as t., when. th. le-al ho.mdaries an An '■;:'' '' '"• '^'""•^'-i.'";'l ■' Mh. Donunion is wiilinK too. then l.y the urs I , f '''•^' '•^'"•'^"•y Mmt uut. I sn'.n.it, n,v Lonl, that whatever ■ai 1 V 1 T\^?7'"""''^''^'', ^'i '"•'■•"•^ ^'- ^'-^ t- -^tl.3 this .natter .anno, two CIS s V i '^ '^''t..^"-™"- the Ac, do...s not eov^n- that ;;>o,md. The.-e a.e an ,';ru . ■ If V; •'"'"■ ""'• "^'T ^''^" J^'"-^'"'^ «•■" "^'ned, and on. wh.re thoy or on r- V ,';'?''[■' '.i^'-'!"""'"^ '"'• f 1"-' Pmpos. of .nm>^ et^l.et to any change dtlcj ^ : ''//'"^ '* '\''y rr. ""^ '^•^'•"•^''' *'"^t Aet does not rn.et tf.e J)o uS^^ .vour Lonlsh,ps,hat,t may be properly .said that the powr.x s i„ ,J"f" "T;^ ^'^ be treute.l as havi.i.- this'power;. fort,.ori, if tho s that all c^^^^^^^ There,:oj,mi/eddu,:;rin..now comi /t tlf n e'!;! |V■^■•''''"^ ''-^".V --^^ '•^'' a" po,s.sib!o, without with"^,fcrcm . 1 dni """".'• ?'^ ' • "'? '"•'"'•'•^'^' '^'" "" ^^'^'^"t le^'islatio,, express llXa on f ""'' T ^'''''' '" *'''' '•'■'^'^•' ^"'•t'' ••^'"^•"<-''^ ^-^ an are to be hri^, o t IH , i ^■'" ''! f \"^'"'»"''t' '^n^l t'"-' P'incii.le of .ov, ,nnent pro.inn.sWdnanivicki •';'"''' ''-'''T- ^^"1"-^^'"" <><' this kind between Kin^ri.HVn V.u V^^^^^ J -ferment, is a c,ue.stion whieh the You do not M,ea /to sat Wif H ■' T ''"' "" P^rhamenta.y ,^overnn>ent. of 1807 ind S, . in l.T ''"!'' ,^'"."^':''^''' ''"^t there is nothinj. in the Act boun.la i s b t r;\ "i^^P^f ?y't'''*"'-'^^ '' '^ settlement of disputed wirinnauy of ^pow Xtn to th Dn ^•''■' '"T^- '^'"^'^ '^ ''^"^^^ '^"^'^ »''^ '■'^" Amer.ea Act. If it Imd done l? t ^he Donu.uon Parliament by the British North the matter shoudtdi^^^^^^^^^^ '""^'"'''^ '^''' '^ ''^' intended that that should be piiv ded u we do n\f l^^'^''^"'""^ "/ <-''^"^^l^^. or in any other way ion Parliament.'^ II w;;".;t:,lt"l^'\'^''y«"<='P'^^''>'- f?iven to the Domin- that as a general ..ule m-ov^nce ^^fv f^ ^ , ir ■ '''''" ^" ^'^^''^^^ ^''^^^ Lordships this kind in a bind m. waV t'^ ^' ""f *'''"' «-^^«"tive, settle a matter of British North AuTviorAct nTj^^'V^^ '"' *« ^''^ anything in the I>onunionofCannr:Ll:.!;.prio.uJtKr"''^'^^ ^'"^* -"''' "^^e the fouad^\TaU s^ist:"^^^^^^^^^ ^^"''"^--r ^'^ ^^'^ ^'^^ one I have the first objection for tie SefendLt wa^'""''^' ^''"" '''' '' ''' ^'^'^'^ ''^^'^ '^^' ^^^J^^is^iotu?:-^^^^^^ -g'^tto take cognisance of it; for that i;;^t ai;^^;^pi;:f^l^- /tctt^tT^-rK^ ^--"-^^ the^id'Dj=;,r'sX provisionsofanylftwrespectinRtL Sbltionsof 2^^^^ Manitoba to alter from tim« to tin e the andtomakelawHrespectWelSofcioni^rthellidp/ovinco """^ "'"'"''""' "' *'''" Legislative As^mblJ? 23 AIIOinrBNT or THE VTTOHXKY-dKNEHAr, OK ONTAIUO fotiLclittoinrntionli.n, tJ.atth.Mv wa.sa l..j,aslativ.. bo.Iv Loth in Pennsvl- vatuaun.l Ma.ylan, I. ,,„st as tluT.- is i,i tho Do.nini.m an.l tl... pn.vimvs fhe ox.MH.t.vj. was l.on. .fan In MHr.vlan.l tU. oxeoutiv,. a,.tl,o.itv Li i.oen' .^iv.a to L.r.l naltinmiv, lu. linrs u.hi assi;.Ms; ami in I'.nn.sylvania'to William Ponn ns iMiLsan, assigns; n„.l 14. tAVorxocutivs that lui.l .:ntoml into th. a^,Mee.n..nt we.c not tl.o onjr.nal -rantoes but tl.oir h.-irs. T!,eso oi.r.inistanc." s-ouuhI o HI. to l.nn;.^ tl.c ,-u... svry closely as u pn.,..,|ont for thr |.,vs.nt case Ka.-h of l.M ht.^ra,, partu's th.u-o was a colm.y wifrl, both an execiitiv. an.l a l.-rislature S orTth" '"'■''''■'' i^r^ '^"'■" ''^' "" ^'■^f"-'-'-^" P"-'^^'-'^'''" '" ♦ho ..•hart' of eitho A thorn un.U.rwh,..h a .,uost,on of hnun.laii.s could ho sai.l to ho dot,-r.- 31!! ; ""'^ '.''l^'«:t;"-« v,n.lorstan,l honl Uanhvicko as docidinfe. that in .such a caso the powor is incident to the otKc of the executive. pul.nlMyrat*^'n'r''''''"' "^''' ^'" '''''^' '^ "P"" '^"^ "'"""^^ connected with Mr. MowAT.— I refer to the second objection, which was: nrnnr-T'"**'* ''""■"'" ""^ "'' •^'>«"'"t'' '>^^«ct of juris.liction in this court, yot >.eina » rr or^i'^n-r^'f '""' ''"''^' '*"^"*°'->' '«■'• "^ ^''" ''™-"' ^^•^^^ '>- ^^^^ «-o;e?ga o.^ Zh : ^ /? ''"''","'; P^^''""" *" "''••y °'' ■''«''^'« *'"• ''0U»<'arie8 by th.-ir own act : ab"; on'XT'; ' rf ^^°">\'i-ies un,l to convoy i„ conHe.,uenc.s amount, to an a.rmation Nvh oh iIicho lord, propnctern camiot do ; but suppoaing they may alien entirely they cannot alien a parcel, a.s that is dismen.berinK. ' ^ ^ entirely, e^eeuSn.fi'r'^'r was that the ajr.een.ent ought not to be carried into twt ^ tl'^;. court. .And this i.s the way in which Lord Hardwicke dealt w itn tliose objections .: ihou'>hltf~^7'''i'^^''' point of jurisdiction ou«ht, in onler, to I... considered ; and on n , t h ^r /'■ T ""^ ".'^^■■"'"« t« '^''"«i''«'- "■• To be sure a plea to the jurisdic t.on must beotTored in the hr.sc instance, and put in pri>,o die.; and answering, submits wol ff't "" ' "r"' ""'■" "^" '♦"^« '' ^ P-«"-''"« t > ''-""«-' tl- merits whd liberal , J . ? """'"°^ '''^ ' ^"' '^ ''°"''* ^^ •"l'"*^' ^»^'«1' '■''» '"^*''-ciso ^ more earin. wi 1 nTn ^" '"l""'", '■"' ^"."''''' '\ "" P''^'"^ ^''^"'"^'^ °^ jurisdiction appear at tl e cortShTf f. '"'.^ke a deer.... than where a plain want of equity appears. It is provinoL h V''^'"^' J""«,''"^*'«" '» ^*««« «f this ki,.d, relating to l.oundaWes between ftTrl t'l '^'""'"'°". =""l Propn.fary governmo.a, is in the Kin^ and council ■ and orti|l« hlf If m''''" r '' *'"'^r" private r^^rtioH, it m.ist be tried in the Co,n,notes be t S vVh. ^C T '^''P"V' ""i"'? ""'*''■' ''"'^ .i^ri.sdiotion ov.r the other, it must re t„ed by the King and council, and the King is to judgo, though he mit-ht be a oartv- this question often arising between the Crown and onl lord-propHotor o a province fn America: .so in the ca.se of the Marches, it must be determiL in the KiEgWourts who 18 never considered as partial in these cases." ^ He seems to treat the matter as coniinon to provinces .'cnerallv H,. i!*" i^^^^V.Tr-Will your Lordship allow me to read a sentence or two to shew the way m which Lord Hardwicke d^-als with tlie second objection • fhof / ""^ ^?, '* '""""'^ ''^ """'y '^"<"rtunate, for suits and controversies mieht be fos ?it/r'°"'/u'"r'''"'^ '^'^ ^-^ "'''^'^^^d »bove seventy years. ThL object is insisted on at the bar and not by th answer. The subordinate propr^etoV^mav agree KiLinV ?!"''* ^i''' "^^•f •^^*^«''" themselves; and if a prope^suit s Sore^tlie fcnwiZu; r. '*' °"^'"!i "^^* '^*' ^'^'^^^ boundaries, the proprietors mfgS p oce d tnerein without making any other parties except themselves." K F «« This was the pa.s.sage that I spoke «bont. a moment 5^^ .on t^- sub""-* -- sai'd?'" '* "'' *e'^'"^°' *' amountiag to a possible alien^tioa His^ Lo'rdsVp 24 " To true tdna boundarie The than the of th.. f;. Miro i,f tl of the Cv fldenee o Oovenior •ybteni of in questii entero.l ii •nd I. ^'i.s! William ground th ment.s in .. Sir J America . «nd tho ( provinoe < Mr, \ latiun we Acts Were to 1(0 the 1 either tho; true boun. its .'Xfire.s.' ohunge, no The L ■ot authuri Wliieli the.y •ny inquir .4 ^^^ ^f' mardwieke m)\i\ iaries tile re was « The L( •lieriate tlu Mr. M( '■; The Lc Ml. Mr iBems precif jrou are not agreement b ^id ; but h ttent havinc be pre.su n lated the tr lie very difl •^r'HSTrr.V OK Tlir- \ U.lniTY ok the AIMtlTRATOnf" AWARD. ri Pennsvl- iiK'i'.H. I'lie lliiini I'enn, • n^'iooiiniit Crs si-eilU'll Kufh of l(';,'islaturo, I'liurttT of ) lie clftcr- t iu .such a ected with yet fifing a e aovoreign ir own act ; junts to lin on entirely, .iTiecl icke into •iealt idernd ; and he juiisdic- iig, Hubniits jrits, which is<' a inort^ pear at the ■ai-H. It iH ea between uncil ; and archers in Commolea ler, it must je a party; rovince in ig's courts sre if you' to shew ?ht be, fos yection i.s may agree before the it proceed USJJCCv ul Lordship •rue J°;*^ ''''/'^•'.''''.•'"''■'''••';f''',''oundarieH amount, to an uli.-nalion, is not th.» SJ>ul IrL 1 .Wi 1 ?"'/ '°"'" ^''''^''' .oiluHion, (which cannot be presumed), the Dounaaru-g ho ,Ktl .1 are to be preHun.ml to be the true and ancient limit*. '' S tl ''row :; !" ; > T:, ^/."'"^ ^''" ""^'•■'•""•-'i'-ural. the n-prenentative S th (' «M. ", «y tf"; y-'t*"'' now provailin^. h. has th-Telore, the cu,.ti.i'ncc. L , !• ; nit" <"'/ 'V;r''» "f th. ropresentativ-.s of tl,. po..pI..-the cou- mln ?f .. V ' ;"^, ^'"P^' ', ^'^I^V 't •'•; ^''"nted, will tak.. cof,ni.ance of tho iTn , n" 1 ' p-ova.ling.n tho Don.inion and Province. The a-reenu>nt Wm .7. P ' ^-T- , ^* P'-'jp'»t'tor.s .tuated as Lord Baltinioro and Sir KTounu tut powot ought to be cnsidered .us not pos.se.ss.-.l by evocutive .rov..rn ments m such a case as the on.- bcfor. your Lo.d.ships now ' ''"''"''^^ -'^^^•°- Ann-Hca M^'^^'i^'T-frV' ""' ''^" •^^" '^'•^'•>' ^'' ^1>^' I^"ti^>> North eh«r.g. no iol "ni -i^^a-Mol ^^;^ T" '^" ''"^ l^oundari.., and involved no The Lok7>('h ", ,,?^ "^ '^"■' "♦^C'-'-^^aiy to -naintain them. «ot autLdt; to p ,x wi h arTa " of^r""?' ""^" '^ ''"■ ^'"^ '"^'•^«- ^^o have Which they LvJiohZonT^^^^ ncv..rthcle,s,s make an award tar,l^d .^h •iF'^':::^:;:;;"^.,^^ that c%hav. that power. As Lord Idu, arius,soaMll uno were fb.f "T' fa.th, ,t wdl be assumed that the fcere was any alienation "' boundanes, and he would not assume .lionaJTthnmall'rpart "'•"""'^ "''' " ''" ^"^•"' '""'^^ ^^^''--' ^^ ^^ --^^ J:;p;^JSlS!:i^ J^^.«-^^^ <", •■ where two parties-- pen. preSy'ti;\::;.e'%Sl^:i.b^^ but the principle f ou are not to a,ssume in such a cat tLfJl ' J^^^^^P*^ "P<>" the ground that Areement between the mrtie^ffn i ' -f '^^'^ '',^" alienation, and that if the> ^id : but hrsTiTthatrnnnM ."'''''^"^-^.'"^"^ alienation itwould be- bent having be „entLed^oir.r:?i"'.^ Theafeiee! M>e resumed) his^Sionwi: Zt ^t rle'tsumSat r''' ^'' "1 lated the true boundaries and invf.lve.l nn IWl *• *^'^^"'"<^'^ that the agreement bo very difficulty your LordshipLggest" ''^°"- ""^ '"^^*^^^^ ^" ^^^^ ^*>'- " i I * Printed at page 22, ante, note. 25 AHOUMENT OK MK. SCOULE, een acti-g beyond the limit, of the reference, and any order that they might have given on that point woul.i nave been ultra vires. ' r f J^^l^'''"' ^"•\'^<^'^"-OR--rJ^o yo" »'ean it would be ultra rives if in point of fact they made the admission :* ' 5,nrl if'f ff'^;~;^''.' ^'^"","'° ^'""'^.^ pray in aid the dictum of Lord Hardwick,. and contend that it a boundary is reton-ed to arbitration an.i the limits are fixci by the arbitrators that boundary becomes by the action of the arbitrators th. old and true limit. *o dJ!r ^.?;^«^^"\^7E";««---It depends on whether the arbitrator has authoritv to do It. Ihat IS at the bottom of the (juestion. ^f ft,*\'- ^•^'p'f,""^ '"^'""^ ^^'** ^"^ * ™'^"'-'»' of f'lct there might be an alteration the award of the arbitrators would fix the legal boundary Sir MovT..GL-r- S.MrrH.-The difficulty is, has the government any power ,■,! ts to^renahrtirem '"""" ' ''" '^""'"'^^ ^'^ '''' '^«'"-''^- ' ^'- d'^-'^)' Mr. ScoiiLE. — Ve.s. a.nt.lr/f?'"'!^'''"' SMiTH.-Courts of law might ascertain them perhaps inc!- Act nt ^' • ^ fef'?n arose ; but could any extraneous authority short o ai, truebounkrvsom /*■ ."^ °«'^^,^« the whole dispute assumes t;hat therein true boundary somewhere between these two. It is to be neither incrcesed nor diminished as regards either, but it is to be ascertained increased nor Mr. bcouLE.— In the view I take of the point which this discussion ha. reached, legislation is not yet necessary according to the terra of rea^mn between the province and the Dominion. Legislation was nTcon emprated f the purpose of enabling the arbitrators to act. Legislation was only c nternnlat 1 ooint of L?r '' giving effect to the award the arbitrators might makr " point of fact It was an agreement that if legislation was necessarv- Sir Montague Smith. -Then the diiliculty is, until legislation how is the award authoritative so as to have the force of law ? '^g'^'-^^o"- *»ow is tHe Mr. ScoBLE.— It is binding in conscience. 26 t^CKSTION OF THE VALIDITY OK THE ARHITRATORS' AWAKP. ore to legislate ooiiM fchey sav u.'ike tlioir acts lands, hut it i,- 1 tt) administer )i'lixiiifr it; aiiii \y boundaiy is uld bo rcforr.'.! . tlic agroeirioiit settled ? I d(. ; parti OS agrcr- ), and I desire- ressed to your sing myself tr now, as to the I. My Lonl.s oase the terii- ond the liniit,- t point woulii res if in point rd Flardwiokr inits are fix(>(i rbitrator.s th^ hasauthoritv an alteration none, becausi' my power ii' the difficult} perhaps inci- , short of ail lat there in a icroased nor iscuysion has le agreement smplated for 5ontemplat(;d fc make. In 1, how is the li I The Loiti) CnANOELLOU.-I should like to ask you whether it does not necessarily result Iron, your [)roposition that if the Council* for the Dominion and the Council* for Ontario had themselves drawn a lin^ uj)on the map, it would liave been witliin their power to do so without any reference to arbitration or any other imieeediug whatever ? JMr. ScoiiLK. — I apprehend it would. It would have been an act of the executive authority of the Dominion, concurred in by the province affecte(^ by it. The LoiiD Chanceli.ou.— Concurred in by tiie province 'i You seem to me in this argument to confound the council with the province. Su- R(UiEHT CoLr.iEK.— You see it is a province with representative institu- tions. That makes all the ditierence. Mr. ScOHLK,— True, but tht; executive? power of the government is I'eserved by the Act which constitutes the Dominion and the provinci;. Sir BAitNKs Pkacook.— Suppose this award included a part of Rupert's Land M-hicli was not formeily 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 say that i( should be binding, because the 6th section of the British North America Act, 1SG7, says that the part which formerlv constituted the Province of L-pper (.anada shall constitute the Province of Ontaiio. Well, if they put any- thuirr Ml hy the^ award which was not ]iart of what constituted Upper (Canada 'it would l)e mvalid ;ind contrary to this Act. Mr ,Sc(.|!i.K.._Tlint may be so, my Lord, bnt the contention before the arbi- trators vvas, and the contention liere today i,s, that no portion of country which was not tormerly Canada, has been dealt with by the award Ihe Loud Chavcellok.— That is what will hereafter have to be considered It we do not adnnt that this award is to be a binding rule. Of cour.se then we shall have to consider to the best of our power what the real boundary is Mr. .ScoHi.E.— Yes, my Lord, but the Rupert's Land Act,t if I remember Til n;rfl: r%T'* ^"■-m" t ^?"'V'r'.«^ fo'- the territory of Rupert's Land, which at all conflict either with the legi.slation establishing the Province of Quebec, or with ?nnl?f' Ir r^' ''Y'\ '^' ^'"V'''' "^ Ujper Canada, now'onta io. vvas anchLf .>'"'* ' ''T' ^'^'^'•^f^'-^' 'f the arbitrators ),ad as a matter of fact s^Zh hi ' ut "^"i"'*' "''' ^'^''' ^'''' '" contravention of a.iy Imperial enactmen ^ proceeding entirely unfettered by parliamentary of hiv Barnes PEACOCK.-My view is that if the award included in it any part Kuperts Land, that part not being part of original Canada, then i? VZ^Sl part wh.ch formed part of Upper Canada. It would be adding to OntaTi^ soma! thing w„ch did not belong to Upper Canada, and that would lave l^nTontmy to the fath section of the British North America Act. ^^n^.v&^^, „=c- i f '^"I'K-— y,es, my Lord, no doubt Ontario is restricted to the limits ^ss gned to Upper Canada by the various acts of authority on that poin ™i leced in the evidence before you. The Rupert's Land Act. TsGS islf pa^e 445, and there is no reference there to boundaries whatever^ ^^ - - "" ^-"v-v. ./.nil, tu uuuuuaries wnatever. :^Hur^:B';^Snp-;;;.^^^^^^^ ^-^ ^-'^^^^ ^^^-^ belong """ tJi^i'^T; hI n "'^ ^''''^' ^^Jf"^' ^''^"^^ ""^«'' *^« «^'^^ter. or purported ited, to the Governor and Company of Hudson's Bay. But my argu! to th Mr. S to be grante tb u. Governor and Con.,any of Merchan't, Ad^m^'o* E^ia^ridtadui'^^^^^^^^^^ Con,pany-v».. .' ;'l AROtTMENT Ol" MR. SCOHLE, (?.(■ nient upon this quostion of tln! power to rofoi- rfm- T thu,u ;* ; e n i thecor>!espondenc., and upon t LT^rdersTn Coundl * ''^;, f P^^^^^^^'y «1««'- »P^« iWovince but 1 1^ t '3'''' "''^ *'. ''".^'"e-nl^e' in^. or alienation of any exist- Lro'^thwa ';ri'MMh:'''''"^ "''™' "^ 'o^-*' l»-'"-°S««vo m rosam to mat- Gc-Lral i "alcn ' '°^'"' '•™'-°S"""' '» I* «>"--ci««l by 117= Oovemor- Mr. ScoBLE.— Xo. give a„j th,„g wh,c), W.U. „„t co„tain„d within the li,„its of the proviice't it Ml°ScTr.^"'r''"'"'T'"-;'^l"" '""y,'"' "'='" ">■ ™"S. l"t i» it an answer ; The lA^uu ('HANX'ELLOii.-Tlns is the h^aslative enactn.ent : and so on. It say.s " at the passing of this Act " The LOKD CHANCELLOR._The words, •' as it exists at the. passing of this Act " 'Cin:::r^:,t':„rir„"trt:/ '"""""■^' »°" "^'" -'--- - "i- -^ ma„if,'It?iT'';'" •'^"""•-SupPMing the arbitrators had talten another view and mamfestly straitened the boundarv ,r, that it -.o,,!,' ^m V, »),•,. i i c .? Iro?PariiU^eSr f r:^'irTtiis, ^-™ ^^^^ 28 and i^ki^. cleai- upon legislative Act after m referi-ed e goverii- tliis kind, um, in the any exist- terininoua 'ides that Y declared d to mat- jrovernor- thing to ' to settle !e? wliole of possibly ince as it iiiswer ? artectiiig of the If there dniit the ince con- r of the lion not Jiis Act) § r Canada. M rovince* m ys that I Quebec. is Act," 1 lat th& m a ; and m hat the ■m I>ower» M Bw, and M of th& am of this m ^ <^L£.STION OK THE NALIDITV 01' THE AKWTKATORS' AWARD. to ca ttnS Ha^^S • ^ '" ^^'^''^^^^'^^^''^ ^'^<^i^ion: I perhaps only ought nuntion fV V- /?^'''"?'''''-''^"«'^ 't wa« not necessary to the det'r- tiKu ,;.a, :::n::TZT^LZ;'''''''''''' ''^' ^"^'*""^>'' "-^ «"^ -"^^^ --t a c.u.am'ls'occ^^Ji'" ;^;^';ri ^ ^^^^'•^ '^ '"-t ^- somewhere. Wherever ' - -tlon of ejectment in an . .. iti!" compeu"^;:^;;;^;:;''' """'^ '''' '^--^'^^-'^ -» -'^ -ythm., so ion. ^^^'•^^^^^^ -'"> -- the only parties Th,. Tnr,n n ^ ""''' ''°"""'' ''"' '^''"S is to judge." whe.JS.^^L^™r ;;:!:t: -:;:^ S^ - ^^- — «^oniL ^ eonr.. *our>; w^rbf;r,;.ffi:!!'^^ i;;.^;sj n' 'T''?r" '^'^^"^'"' ^^^*-- t^e proper »-> a reference to a.^bilr ion w^ . nf « ft all events, a legal course woSld f will gi^o. you.. LordsirrecelSr " ""^ ""^'^t'^ '^ P-^ament. British North America The m,V«H ? l/T ^'■'.'"" '" this very district of to the E.uperor o Gerimnv' to Z f?r """'^ k'^ '^'' *''^^ty of Washington ^J)luna,ia aid VancouvT iXd an tb^^ ^^tween Brftish the question of the ri-hi 'f^- ' '' ^^'"^"'^ ^^''^tcs of America, in which -o.l!:n.^'Q2i:^^:::^'!::^ There is . mined by international compact. '"^*'P'"'^""t states. It can therefore be deter- ^'^'^'^^g^^Ston^ ^«t-«^n independent ^nd legislatures? independen^-oTy^coSXb e bt'f"' T'^-''"^' *^^«'^ "^^ts respects, but otherwise perfectly free amf n ? fl T-*''^ Dominion in certain <>wn domestic governnlt S orgLS ion'^'^rjitr^.""'' ^f *'"^' *° *^>«- taken to exist between two largf pn v n,es LlZ ^' ""T^^^y '""^t be the case of two independent stati rathrr th«n 17 ^ independent rights, and UKhviduals. In the case which is no doubt W.T ! "^'' ^'^^""" ^^^ P^^ate "wasnot a .pieation of boundary-the case of 7??^ ""'; ^^^^^^ Th' Enst India CV.m^)an^y-«l though the fL? ? A-'^'^n ^^ ^^' ^<'rmri^ v. private company and subj4t to the Crown ^"^'^./"^^^^"jnpany was then a »n ndia, it was entitled to enter ino a^Znonfl '\,'^''\^^^^ that in its position and it, i. put upon that gru.ind I I ttn ", p'" '-'^''■"P^"'^?"* ^t.ates iiVlndia. judgment, that in a matter of tlu-skind . n!^H ''.T"'r^""''*^^'-« »" giving hi. It was not atreaty.because it w^ n ore"^LT„t.'' *'?V^ f u*^^ '^'^"'^ it although *reaty-in a matter of treaty ^^^^^^^^l^SZ^^}^^ ARGUMENT OP MH. SCOHI.E, (^C. : .sitleied in tho light of an independentstate ti eatinc? with another independent state. So I apprehend here. Of course it may be that an action of ejectment may be tried to atttle this question, but surely this is a more convenient way of settling the (|U0Hti \ once for all, by some inter-provincial a<,'reenient, which will prevent harra,v .ng and troublesome litigation of this kind, and I submit, my Lords, that unless it can be shewn that it was ultra rlrct of the executive governmeiits to refer this matter to arbitration, the whole question fails. I submit that as a inatter of convenience, and as a matter of right, it was Inlni vires of the execu- tive to refer this matter to arbitration, amr that in the prelinunary airreemont which occurred before the reference, nothing more wa.s done in the wa\~ of oon- templatiug legislation than the contemplation of a declaratory Act which .should gjve eflfect to the award of the arbitrators, thoi'ebv making' it perfectly certain to all persons interested that the award had become law. It is only since tho award that the objection lias \mm taken, that there was no power to refer, and I submit that the executive authority being in the Governor in Council of Canada, the (Governor in Council of Canada having agreed to I'efpr. the Pro\ incc- of Ontario through its constituted authorities having also agreed to refer, and the arliitrators having proceeded — Sir M():vTA.;rE Smith.— Your argument goes to this, that it has the effect of law before it is continued hy the legislatures. Mr. ScoiiLK.--! say it is binding on the two governments. Sir MoNi-Aiit'i-; SMriH. — It is binding on tlje two governments ; but the people are ni>t bound, and the courts of justice are not l)ound bv it. Sir RoBKHT Coi.LiEK.— You may .say it is binding on evcrybodv. Mr. SooBi.i;.— It is In'ndiiig on everybody. The government 'merely repiv- sented the people for that purpose. Sir Montague Smith. — What you say amounts to thi.s, that the courts of justice must be bound wIh^u it came incidtintally before them. Mr. .^cour.E.-- -The Ontario Legislature passed an Act and carried out the contract on their part. SjriiuHKUT Cnf.i.iEif.— I'.ut subject to legislation by the Dominion. Sir Kahnes I'KACdCK.— That would not make tlie awanl bindiui; on tin courts of justice of Ontario. '^ Tlie LiiKi) CiiAMEi.i.oi: — -It is rather the reverse, becau.se it shews that the Legislature of Ontario did not take your view of the matter. :\Ir. ScoiiLK.— Then -^urely there is something to br gathered from this, that the Dominion of Canada, which has tli.e power to disallow Ontario Acts ilid not disallow this Act. ' The L(»i;i> CiiANCEi.LOK.-Why .shouM it have disallowed it, .seein.-' that it had no operation whatever unless the Dominion Parliament should think''lit so to legislate ^ Mr. ScoHi.E.— Then, my Lord, I submit that the duty of the government of the Dominion was— this award having been made, and, according to the orirocure JteV ' n 1 r ''''''^'^'•" '"y ^^f=ts, and the Dominion not ha^■ing taken any such step up to this t.ine, and the awar.l not having been rejected by the le^dslature of submirth'irH' ! .""'""^/r T' '\f ''''>' '"^-^ ^^-i-l out their agreement, and ture 1 ad b ;? ';'"": ' '';''"•'' ^Vy'^'^^^ ^'^« '^^■'^'•<1. if the J.)uminion legisla- leZlJli^'^^^T^^^^ "' '^ "'^■'^ sulunitted to the Ontario legalaure. by an Act brought forward by the e.xeeutiw goverum.nt then theV mifljht have passed an Act which probably would hnv. p^'evei.te this or no/ jibly f may s,y ,„, ,i„ „„e ,^.„„,,, ^^.,,^ • ^^^^ I part es n ha't part of the world is .sufheieutly to say what the chances of passim' > Do ini.n h^ i.la award now thev no b.r^^'" T^. S'"^' '^'"^ '^''""^ ^•' ^''^''^ '^ '"'P^a'^J' the thV vfJ^^ . ;i t o^. " It " 'i""YvlKi they consented to do under the terms of Mr. .Scoiii.K. -No, niv Loid. ' ManiS'>a'di!;'!t;. !;''"'"' "~'^"' ^^^' ^''^ ^--"-" — t dispute it-cannot ."'...,• the l,ound ' o ' i o., bt" , ^''"; '^" legislature whic. purport ^.•e,lings under the Hn,^l:f; N.^ h ImSf^t^'l^r; "''•^' P"""'""^ 'h^' is r..a,soii. that the oreli.nin...^. "'.' . V t. °.^' ^^^VV "^ ""t operative, foi- Th to !)lt St: h::::nev'rt';rjbS;;;;r"mnh^ ^r^'?- r'"^'- ^^"^^^-^-^' -"^-^'"^ « ^^anitol>a and Ontai o ^^ c ,u «m d T^ ^^-''"'^'i'^-t-" ^^ ''t large as far Doiniuion, binds Manitola vv del u i'<- award, .so far as it binds the «l.d,.,. the Iniperia A :fm.e . wa'^a I'l l"^ '^1 North-West Territories. for. does not touch As fa • is anv I ,', U "'^^'l«..and whieli the award there- COn.-n.ed, either I up.^Lri r'^Sid^ h!'"'' '"''*;''^ the disputed territorv is the Dominion iec^i'd ati. , iVi'J, Z ' e 1 ' ''\»'>.I'>'PeriaI legislation at all,'and mu> hovince ot^Onl!;,!;,; '"^^'"'l''^'^^^' ^^''^''^^^ »t ,s n..t fouud,.! on the consent •ia'lm '::'V :!:;;s^ :;;;;!:;tf '^^ ^;r '^ "^''^"^^ ^ ''--^''- -hich must be io„ked ^,.thatvh.^[ldnkyour.o,;i;5"::^i^ linary consent of the letnslatnres riifl.u.- ,>V *v il ' ■ "" "-"-^•■^^">n. i^o pre- 31 AROUMENT OK ATTORNKY-OENBKAI, OK ONTAHIO re, QUESTION' OF liOUNDARY tlif I'rovince of Ontario, because it admits it to bo binding, and because it has tak.-n Hie steps which it was n-ciuired to take, under the submission, to make it legally effective throughout the country assigned to it ; and binding on tli. Doiiiiuion as yet, because it was one of the conditions that a declaratory Act should be obtained. The Dominion is in default in never having submitted to its logislatur.) any proposition that a declaratory Act of that nature should be passod; and this Board is therefore in the position of not knowing whether or not such an Act, if submitted, would not bo passed and the whole question set at rest. Ml'. MowAT.— As the ciise is a very important one, I wish to ask whether your Lordshi{)s w(.uld allow Mr. Haldane, who is w'.h me, to make a few obsor vations upon this point ? 'fhe Loiu> Chancellor.— Three counsel ? Mr. Mowat. — Of coui-se it would be a matter of grace and favour if he in heard. Tlie Loud Chancellor.— We cannot make a precedent of hearing thieo counsel. 1 have no doubt Mr Haldane would give us u.seful and great assistance but it would be a dangerous precedent. [The room was clearrd, and their LordMps deliberated. After sometime counsel and parties were v -admitted.] The Lord Chancellor. — Their Lordships are of opinion that the argumer; must proceed upon the footing that ohis award has not in itself :he force of law Mr. Mowat.— That being so, should I go n now on behalf of the Province of Ontario ? The Lord Chancellor.— Of course it is very difficult ii deed to lay do^\n Any principle which should give priority. I think if you couk arrange it amonj; yourselves, that would be a good thlag'; if you cannot, we must do so. Mr. Mowat.— The Province of Ontario is first on the record. The Lord Chancellor. — Then that gives you a 2>riina facie right, if you wish to go on. Mr. McCarthv.— To that I may just say, my Lord, that the Province of Ontario^ claims that they have been in possession of a large portion of this terri- tory before the British North America Act; and undoubtedly they were, up to what is called the height of land. The Lord Chancellor.— The Provincf; of Ontario ? Mr. McCarthy.— Yes ; the Province of Ontario. The Lord Chancellor. —Then, there may be several reasons why they should wish to be heard in defence of their possession. Lord Aberdare. — Are you going to contend that the Province of Ontario, or Upper Canada, consisted of that which the arbitration gave them, or do yon contend for more ? Mr. Mowat. — Of course I am now to contend for as large an area as I can «stablish. Lord Aberdare. — That opens the whole question t Mr. Mowat. — Yes, my Lord. Lord Aberdare.— You do not limit it to the question whether or not tlit; finding of the arbitrators was a correct one ? Mr. Mowat.— No, my Lord. We have a stronger case perhaps on one side a more conclusive case with regard to the west than with regard to the north; and if we are not to havs just the very area that the arbitrators gave us, and do not succeed in getting the northern boundary that they gave ns, we want a larger area in another direction. Lord Aberdare.— You wish to swallow up the whole of this territory ? 32 ONTARIO CO-E\TEX.SIVE WITH THK 0|,I) PUOVIXCE OK UPPEK CANADA. /f^. ^^ V^T.-I do not say tli. whole, but a further portion. I submit, my rlil much larger area thun the arbitrators cjave uh ; but the area that ! ciS ov'n..r rr^' r' '•Y'"''"'^^^^ convenient om-. Their decision gave u,s a cou.pact piov.nce. Ihey lound, as our northern boundary, Jan.es' Bay. En-lish :rfpVnl^tffih ''''■• ^^' ."^r M^ite content, ar.d, orV the whole'kre 'ion- iTn t '^^^ ^'-f /^^f/-*lcd to us. It n.ay be a .luestion whether a larger area would be.expedient for the province to have : with regard to that, there m'ay be a diiferonce of opmion. If the award is not to be regarded as final Tiu^t ?^et':X"s 't'^''^^ "'t *';r- '^^•^ '" '"'' - ^^^^^^^^^^^ ,r fom^Tn, ■^> ih' wV'' r"->' ■" ''rP"^*^ "•^^--^'>" '^''^^^ ^^hich the arbitra- es thZ OOOOol ^ t l^o»»n>on disputes our right-consists of something U.S, than 100 000 squa:'^ miles; but the [wtion ot that area in which Manitoba .s nuerested is only :i9 000 square miles, being the western por L The ten or^ r:^f;iM7 •'^Tn'^''%^^*"'f' ''' I^'"-^ of Ontario, and had been clamed by the old Province ot L^per Canada, and then claimed, as part of Upper Canada o^n?Lf(^"""'' ^f'^^'-ft-T'^ again, before the 'settlment wSthe Hud .on s Bay Company claimed by the Dominion itself as part of Upper CWiada embraces v^My nearly 1. 000.000 square miles, viz., 902.000 square ml? It may m)t be tor the interest of the Province to have so large a territory as that /brit" the legal boundaries ai-e to be insisted upon, your Lordships have to find, and wi tad, how much that, as matter of law, must be considm.l as part of Ontario :?negoll:^;Std^^^^^ ^"^^-^^-^-^ '^-''-'-' ^^ -^ ^--L the necessity boundaV^'*"'""' ^°^"^« -Y«» ^ould hardly wish to obtain an inconvenient Mr. MowAT.— We do not want to obtain inconvenient boundaries, but we must be conten with such boundaries as your Lord.ships hold to be the le-^1 boundaries, and it these happen to be inconvenient we nlust subsequently ty°?o negotiate terms for the purpose of compromising the matter. The whole area of the province, as limited by the contention of Manitoba, is a little over 100000 square miles ; making the province the smallest of all the lar-e provinces Our area would be 101,000 square miles, while that of Quebec is 188,00^0^6 mUes or very nearly double, without taking into account any territory to which Quebec Sno' * ''^ ^^ ^^' T'^ "V^^ ''^'-^'^ '^'' l*""'- ^'"tish CoIumWa condins 340,000 square miles, making it between three and four times the area of Ontario Even Manitoba, as now ccmstituted under the Dominion Act, <-ontains 123 000 quare miles so that Ontario would be considerably smaller than even Manitoba n the other hand.it we succeed in establishing some such boundaries as the arbt trators gave us we shall still not have much more than half the area of the fCEffQiS. """•"' ^^"'^'^'"^ "*''^ ^""'•^ '''''' '^' *'•- «f ^- Sir Robert Collier.— What will it be ? Mr. MowAT.-If we succeed in getting the arbitration boundaries Ontario ^voulcl contain about 196,000 square miles. In that case, however, Quebec wouW have far more than 188.000.square miles, because if we m^ke out a itle as iThrnk we can, to territory north of the height of land. Quebec would also be entitled to lZr;T''\'V^'' )''^^^ of land,. o that their 188,000 miles wouW be en t^^ll^^:^ '''^^ ■""^•'- ' '^^^ "" ^•^"-^^ - ^« ^hat. but it wouTd Then what "-rft rtuv i.fnit Vtniinfi'!."''^" ' '"^n'-a^- i ii_ t ^ - iv,^ ij n • ; .r.r ! f.o.inua, ■-■- -..rQiario has the .same boundaries as the old Province of Upper Canada had. Upon that point there is no 3i putT Ihe British North America Act, 1867. united the Provinces of Canada, Nova I 'I !: I ' h 3 (a) 33 \ w '! J AlUiUMENT OF ATTORNEY-OENKRAL OK ON'TAIilO re QVVSTWH Of B0U!:DARV ; hcot... an.l New Brunswick. By the Union Act of 1840, the two old Provinco. ot Lpper t.anu(la and Lower (Canada were constituted into thf new Province of Canada, .s(, that whatever territory the Province of ( 'ana,i to the Irovince ot Quebec. I shall have to refer to the lanoua.re i,, which "t!ru Act is expre.s.sed. The recital is : => => • ■ '• Whereas His Majesty, by his royal proclamation bearing date the seventh dav of October, m the thud year of his reign, (bonght tit to declare the provisions which "l,:.,i ♦ Imp, Act, 14 Oro. 3., cap. 8,3, seoh. 1 asu 2— Thk ".Jckhkc Act. 1774. ~ An AH for making Hore cffrctual pr.„i,ion for (hr -r,c<, Whiiivas His Maj-sty, l.y liis royal i.roclamation, beariiifr date thp seventh ,J.iv of October in rl„ thini year .,f h.s re.gn, UHmght t.t to il.c are the provision, which had been ,„aUe ,n re»„ect to c m ■ cmmtn.v., terntonos and ,. UvmIh u. Ani-.ru.a, ch.i U, His Majesty by th,. deHnif".. T 4t m^N W I dueled at I'ar.H on th. tenth day of February, one thousand neve,, Inmdre.l and ..xty-three • nd "l^, 1 by the arraugen.euts made by the .sa.d royal proclamation, a very large ext.„t of countv w"thi « , h here »^re several colonies and nettlements of the subjects of France, who claimed to re mai u thLre u 1 , the faith of the .said treaty, wa.s left w,tl.mt «ny provision being ma.h. for the adnuni fra ion of ' government therein; and certain parts of the territory of Canada, where ^ed.'ntarv Hsheies haJ b ii, established and carried on Dy the subjects of France, inhabitants of tlie .said Province of Cana.H , , grants and oucessions trom the government thereof, were nnexed to the (lovernment of \eXmd , ,1 arid thereby H„b, ^ed to regulations .iiconsistent with the ature of sucii hsherie«; May , therVfore i.t i ' YourM..stK-.oelicnt.Ma]esty, that It may be enacted, ami be it enacted bv the Kings Mo"t Fxce ,,' Majesty l.^ .ud with the advice and consent of the Lor„: , i • i i . Majesty by the definitive lUaty of S-acT In iX Tl ' '" ^'"'V"'' ""''r'^ '° ^^'' February, 176;$—" ' '^''"^'"'•e^i >^^ lans on tlie tenth day of Your Lordships will observe that tlu, proclamation only reJorr.-l to a v-rv small portion of the ceded territory, as I will sluw directly * large'luentl^r^t;;^ wIlliinErn.tt '^ ^' i ''f '^^'" proclamation, a very sugectsof France, wh'^ elainu.d t r ml ^ e hl'^ .T'trflith^ '""^ wa. left without any proviHion being n.ad. fur r "iS, is rlt 1 f ^^ i """^ '''^'y^ therein; and certain parts of the territory of CaLa--' "'"'' guvernnu nt That is not material, I think, for our nresent nm n,w.. w . i xi_ ,. the recital of the Act why i was^asEd A'w s^ms^„ ' know, theretoro, from Canada to the British Crown, and for tt rnirm; o f.f r, i '"^ "^ *^" ''''"'" °^ a .nuch more extensive territ ., i^ll ^ll^ ;roE.;^i.Si;";jj;S;:j^r^"Tf:;i da'aUon!' '" '' """'^'"^ '"^"■^''' "'^^"'^^ ^'"" ^-'''^-T enlhracedin' the prS setti:m;r7t;::rf:» ■:r:f%rr'^h:e!:im^ r^^^^«^^^ ^°'°-- -^- the said treaty, was left without unTproJi't.Xlor u'" "'"^^ '''' ''''^ ^^ government therein." ^ ^ "'''' ^""^ "" "d'""iistration of civil This demonstrates that tlio purpus.j of the Act was in Innl,, i ■ .i Provinceof Quebec su.h a./ext'ent of ^on.^ ::tX::^::,^,,^l^^^ withm which there were colonies ami HettleMu.nts of the ^h^.o F anc "'^ 1 he Lou.) Chancellor. -Settletnents in the I'rovinc. 1 Canada Mr^MowAT.-Yes; ,t is called there "the I'rovinoe of CaZl ' nhl u really there was no Province of Canada [ sui.i.oso t ,.7. ^-^"""^''f' ^.'though to French Canada, which this Act ^117' a ,>■ • c^' 1 on 'T'l '^''''^'^ ^^'^^ had that name under France, inoxince, although I do not think it Lord AnERDAUi..— The French themselves reserved i i,n,.fin„ f i . anciently called Canada, and threw it into Louisiana ^ "* '^'"'''^ ^^'^'^ Mr. MOWAT.-Yes my Lord ; [ shall have to refer to that in a moment R he treaty, the M.ssiss,f)pi was made the line of division bet^ee . | b khl. .^ I-reiieh possessions, and that part of Canada whiel, „.^ ,;-'-''/'"' ^"t''^'' '^kI Mississippi, Great Britain diJ not ac!;,^ ' 1 vs t "ftm'^ i^r' "'■')' Lomsianna. and was thenceforth, so 'long as Fran./ go^t^d '^ll^^^r^^? establisi, bej^ond any sort of doubt, by Jhe pa^ ^^ whS/ ';« Zt'd'^' i'l^ maps-that there were those colonies and settlements a la lo , tl a' t bl ? I ^l'w""'}V' ^"^' ^"^ther colonies and settlements coverin / t d , h „''* North-West Territories to the base of the Roekv \Im,nf»;,. ° i ., ^ *^* '^"'^ Saskatchewan, besides the posts tly had beyond 1^ I^ "or h ward to the Hudson's Bay. All througi this terHtory iZ he e we f 'he e l^"l ' '"'''^^ settlements of the French. They had take'^n posVe.lsion of the o" t y tiie^ TI traded there, and were n exc usive Dosscssion nn.l l.n.^ h^..,! ^'^"""3" t"«y had of time. The Hudson's Bay CompaK S slmU^ to "'" l^'"/, P^""^ bye, but I say here that neither the Hudsoi!? I ay ' Wn r. n- •,?'" H "^ '^^ -^""^ of Great Britain, had gone into that territor^ iSil a teM?7r w Zl ^ife^ tion perhaps of one. p-oinfc not very far from Hudson's Rrv It, \ ?'? .^^' and up to some time\fterwards, the company conHnecMiself t^o ^ P'""^i the Bay, and traded with the Indians found JherewhU L F "'"l"^? f po.sses8ion and spread themselves all oyer the country ^''"''' ^^'^^'• 3a f Al,.;..:Mi;.Nr .... ATTORNKv ckskHAI. ok ontaU.O vr giTEsTION OF BOUNDARY Then, is tn 1,0 placed on tlio A.-t, a construction wl.ich will inciudo /ill fh . Canada that lay norti, of tlieTon, oo ,hl M" • "'^' °"' m' *" ^""'■^"*'' *" "^ and the river conimonirilled nL a^^^^^ .astern hank of Lake irie foil Jin^Z *'^ *'"/ *^'*«*''"' *"'! ««"'h the northern boundarV^ra^ted W ^ho chX Jt, ""p' "i" "*''";' 1^'^" '"' i"t«'-«ected l,y the same shall be so intersected -.nS f,^n> T Province of Pennsylvania, in cas. bounc^^Hes of the 3* ;:^::l'u:^^ t;:;^^^ini^'lt;rtc; •' rr-- the^esternangl^^^:^ * The Tkkatt or Paris, 1763. '^' i^tfinxtivt Trtatii of Frxin'lahinarul Peace l,rtii,,r, Ui. B -4 ■ ., ■ dependencies to the Kin^ of G, eat Britiln moreoter'^HU Mont ?^^^^^^^ ^'''''^.''f **• "'^^ """» toliiHSaid Britannic Majesty, in full right, OanadrWith aUiL .ill '7 '^'■"^'''''y '=*''*'" '*"'' gTiarantn- Cape Breton and all the other islands and coastThi^he O If l^T"'^"!?"""/ "* *"" "» t^" '-land of everything that depends on the said ie said oountr^s UlknH. iJ^ ^,°"' Christian King and theirowi, Wh^e^said cession and guaranty under^any X::^.^^^:^^:^ ^^^:Z Si^nstC subj^ji- oT'iis;ur'^'th^:pt'"t''^^ftrof^;t ^j'^'tKi X^n'i,*!"''?"'? '° --i!- f- -^ «" Ainerica, it is agreed that, for the future, the confines ^t^tn^}^^"^ t^nxUtnea on the continent of •nd those of His Most Christian Maje^y, in that pTrt of rhTwnrlH ri!"^'.:"^ P " B"'*"''!" Maje.tv drawn along the middle of the River Nlirsissipf, from its so^^^^^^ fc^ irrevocably by » line by ahnedrawnalon.? the middle of this river and ^hrLakesM*"^^^^^^ l^^^'i'^' ""^ f'""' '^ence »nd for this purpose the Most Christian King c«de8 in full H^hf .T,?^ '^"' "V^ Pontehartrain, to the sea ; the river ancfiwrt of the Mobile, and ev.^i?^ing whKi po*lse^^^^^^ Britan.ic Maie»ty the Mississippi, except the town ,.f New OrleanS. and tb7islanH^ Jhi^K^I^ to possew, on the left side or to France ; provided, that the navigation of the MrssissinniH ,1 h°'',i* '? «"»»'«>, which shall remain Great Britain as to those of France, in °ta whole I r3th inH ^LTl,""*^ ^"""f^ *«^' *" '*>« ""bjects ol ■MpresHly that part which is between the i^id Island of New olZ^^ jts s„uroe to the sia, and well as the passage both in and out o.' it« mouth '•^'*"'' ""'^ '''• "tf*"* '"">>' "f thatrirer, as • To which the Kin? of rortii(rftl»<-c<>d»tl on (he lamc day 36 (-■ONSTKITCTION ,„. ,„K ,^,.E„Ee ,vrr, 1774. line, to the said north-wfistern anclp of tlifi anl.i ,sr„„:.. . j lu i ,i boundary of the said province 3 "t A fw" P^*'.^""'^ ' .""^ thence along he weHter.i said river, we«t*var.l, to the Lank .t tl e M '■•■ "V° • "".'* ""'"r^ '*'\^"'"'^' '^^ *''* ^..^ ^ the .rrlto, ^-nSrlh:! M^^H;,:- .^^ ::?^n^:!! tr^Jli^ t^ aro::^;^;^i:ts:=;j;!r:;;l\;:i;T-7,t^- A^e... i.ion«ing to th. ?i>itUTvL"'P|^^^^^^^^ ^'"^-- which the Gov- tnuntnt ha 1 n view. Iho only hne wh.oh is .lescribo.l i.s tho su.itli line. vVhatI eonteiKl iH-and I contend this upon the lani/ua-.o of tlu- statute and statutory description does not le/cr to a line at ul I 1„.« t.Al """nwaiu in tn. , , ,. f ^»""> ^">- >\<»iu west not a.s ueamn" rue west lint- in n westerly , ,111(1 It you assume that it means d.enoith this construction cuts away a very larjr..' te.ritorv, an.l a cnsider- able trench popuation in a number of French culonie.s au-l French .settlements along the Miss,s,sippi, as well as the whole of the Fn.,u.h eln e and FW^ settlements ,n the country north of the Mississippi There is no ne"essitv f^n at, even without any extrinsic evideuce ii, favour of our contention nerhaos but certainly without any evidence beyond rvidence that tee weiflS ^ c^nLrs-ivTh^t";r"'^ '"t- P'^?r ^V.^'' ' •"^^^ '-"^-"-' ^^-mmii '%! once more : ^ northward refers to a line. Look at the language Crow^of Gr'eat*Irrif!!'"*r'°''.'!l''"''\'"'^ '*'""*'''^^' '" ^'«''*'' Amevioa, belonging to the trown 01 Great Britain, bounded on the south l.y a line from the Bay "of Chaleurs-" and so on. Now, what are the words which precede "northward" Ig it caZt bf " 't"'? r> ^^*1-"^ '^ P"*"'^^« --'^ "bounded- the ev Tha nmtbtnl ^ "^'*^ ^^•'^ ^'"' no'-^l>ward." you would i.ave to say. Even the b tt descHplT' ""^"^ '" ''"^ construction by the other side.'is not found MississiDnl^'^'TbPr^-'''^''^'! ~'^^* boundary carries you to the banks of the wSwrnf to ?be It- " f,r.t^'" »^"»"dary " along the bank of the said river, s^the^ boundarv nf fv. \^ Mississippi." and then it strikes " northward to the ETgtnd\^^dTn^^^^ ^^''''^' ^« *h« ^-''-*- Adventurers of Mr. MowAT.—I may put the point in this way. You may sav that the language admit., pHma facie, of two constructioas ; tLt irmeLt a Une. 37 I ! u XHUVSimr o. ATTOKNKVM,ENBil.u. oK O.NTVUro ,v c.rKSTION OF BOL-NPARV »'Uriiiinj,' northwar.l IVota that noint f.o thc> IT,,}. .• n i .. boniularv of the tern ton m.u.t.^i f w V"7 " ""''^^^'ar^l to the «onther„ an.l >Vm. hav« nntl.i .. in ?'"^ 7, '^'/'-'"'^'^'''Vv <^ th.- Hu,l..>ns 1^ Company, froni that point. " '^ ^" ''"""' '^"^' "'"• ""'-f'^'^'" »^oun,lary i. ti ru,. northTHW^'"''"^''^ SMr..„._J>o you say the lino Wlows the Minsissippi bank Mr. VlmvAT.-Yos, that i.s ot.i- con.strtictiou. gaveC''""''^'*'--'''''"^^-"''' >'?■•- yo" the territory which the arhitrator. tirn.s^piJ^Z^'^^'^Ci.^;^^^ "^- 'f'''' construction in verv Act) -nil f , f ""iLI'\\anl would ombracc (to ine th.- lan-MiaL'o of this whol. of the Krii si Vni ... ? ^""S**^ th. sourco of the Mrssissippi, the ^lorth lino fror? sou ^yt:;.\n •'■'""' ^Tu ?^ '^''''"' ^^ >'°'> ''raw a due order to sustain tl'e a ,trato«wT^^'^ '-"''^'^ ^'^« "' '^" ^ "''^-^ i" would leave out th " I.vl ] i *"• ' •"' V"' '"''"t'^- '^"t by .such a line vou andtlJXu 'licfnotrartfCtZ' 'T'T'' "''''' North-WeVt them in. That was 1< 'ry o . oct oh.'" 7' "'""l^t '^^P'"*^^'^'^ *" ^^^^^ tion between the FrenH. -olon es nrl Iff l . '*''*"^''- ^^^''^ '" "" '^'^tinc- French colonies and set em X in Iff I'*^ ''"'J"'''^ '^^' ^'^"'^^^'^ «"'» the it was intende^^ ^^^^^^^-^^^ Adventurers of England trading to ZdlrBay 5' ''"'""'y ^'^^''^ to the Merchants area ^s\;lris'thTlrWtr:tor?Sl^^^^^^^ ^« '^"^^^r^ *»giv« Ontario an even inten^ the P^win^rto be HmS in that wa^^'"" ''''' ^^^'''^'"^"^ ^"^ ""^ Iro^lt^rj^^-^XV^^^^^^^^^^ «^^ territory extended ^issit'ppL ''^''■"~^''' ^'"^ ""'"^ P"^"* ^^ ^'^« northward of the source of the The Lord Chancellor._Is that contended ? Mf. Mowat.— \es. that is contended. 38 CONSTBl (TlOJf OK TJIE (^1 EHEi; ACT. 1774. 1 lu' f,(>lii) LHANCEU,()U.-So this woul.l be intelli^Ml.lo if voti follow the baiiks ot the Mississi,,iu until you come to its h..uic»., ar..i then, accordinir to tho ar;,..- i.ient on the ..thor si.le, there you meet with the southern boundary of t '.. Hudson '.h Bay terntoiy. '' Mr, MoWAT- -They at <• not .(.ntent , ny LopI, with that construction, judL'ini; from the ohs, , vation.s of my triend Mr McCurthv in M,,enin-. What he s'lid was that wo are limited bv a north line from the jnnetiou of the Ohio and the Missis- sii^pi eavin-aspace between the meridian nf the junction und the Mississippi. I If l^'/Hi' ( HAN( Ki.i..,u -Thr smnc (,f the Sli-^sissippi seems to be on a line wuch ... nearly rl„e north to, and nearly eoineides with, the yellow [ri/rrrhuj mi" i ''"' "^«';'*'^^« ortion of the ?;:vfnr ^ ;;• l^S^^^^ «* '-^-''-, in the western Lord Aberdare—Is that nmrkod here / CcornVC'/^ ^'^ "-^^^'-^ ^'^^-'^ tl^Kten^Sed ^t^S^Z^ Mr. McCARTHY.-Part was, and part was not Oompy!,X,-l|r„ rlL^tLT "" "^"'"^ *" tho'H/d^on', Bay these nirJm'i^rof'jifoStntrtlur'r "',/^""'^' *^'« ^^'^"k of -aleonj.^0 ^la^^ee^ S;^!:'?^- ; Ij;':!^:^:^:^-^-^;^^^^ !na|«l''verourPruvinceof Quebec', m AmeL-a iomnVl? V"' S^ »"d Governor in-Chie m North Atneaica bounded 4 th^'« tlfby " 1i„rfZm the ll"^ n rT ,"^"'''^r«. i'>»nd8 and ciunt? e. divide the rivers that empty theinselvcH into the rPvpriV t ^ "f Cl'a'purs, along the hi^hlandn whicli a point in forty.fi ve degreJof northV,^ a t„de on th^ ^^Z'f^t '^ "\ \^ .**''<^'' f"» '"*» "'« "^a, to the same latitude drectly west throu/h tim 1 fbl. i°? *"«, «'.»8t«"-n bank of the river Connecticut keenini, river St. Lawrence ; from U e„ce upX ettern^^^^^^^ " ? ' ' " *''" *""* '"fitifi*"^' nmetswhif h! tlt^'Pl'^"^ '^ ^''« rive^rconnnonlyTaXd NiSarl'amUhen.'r.l" '^t ^^?ke Ontario, thence Th'iSugh ^^LJ^^^u ^v""' f""°*in» the said bLk untn tTsX HhlnTf ti?^ ^^/'ir""'.*^'" »^^ strikes the river Oh,o, and bn? the httnt «f t».^^ -j ■ '"" boundary of the sad pr.vince until if northward, alon^ theVasteru ba^k of tl^s^id ritrTo^hriouTerr^^' '"h''" ''T\' "' ^i-iSS an' to the M.-.hants Adventurer, of Enirland tVadiA<,f^W.^5. «'"'"''"'? "' "" territory granted islands anu oountries which hav.. .J. 1 th„ " „.f«^. '<' Hudson's Bay. and also all such t»ni»-";". 'J^^'i^i""*' i*"*" "'*^"' P""-' "f tte'GoTernment of New"fm.ndIa?H''i;?t7' ""? th^u'-nd seven hundr;;*! mcJ members and appurtenances whatsoever thereunto belonS "foresaid, together with all the rights, 40 BOUNDARY DESflill'TION IN' IM|> '■"MMlSSir.N T.) IIOVERNOH CARLETOX, 1774. '::y -=ri^^?'ii:;-iti;i';x:r ,«1^^^ Act. th: laT^.^: .:: (afterwards Lor.l Loughbon.u-.h, wT ^ M ' '•n'^'''^ '^"'^ ^^' Wedderbun. tl.at Sir Ouy Carleton was appoint..! ^''"^'^''^' '''^^ *i»'I tl'^^t tho language is. " G'overnor-in-Chi(.f in and over our ProvinP^ .f n v • . all our terntorie,s, islands and countrio, in ^n^tU T ^"^ .' '" America, comTu-ehending ami so on. Then follows a .).. • V "'"■""' '^°""^"** °" *^« «°»'h-" ^ with this diffe/^nL the .^ngSgJ'J.^'r ^^^^''^^^'^^' ^'^'^ --' '- that in the Act. northward, along the'e JernVnk 7(^177^1111^'' V^"" ^"""^^ '^^ Mississippi, and terruory granted to the Merchants AdveituersoF;<,r ^ T^^'"' boundary of the So the commission is e.xpresslv ,w ? "f'^'' ^"--W to Hudson's Bay." easterQbankoftheriver;amli't was to ilri ''■'' 'T'^'^'">' ^^*« ^^««^g tl'B an, under it the Province of Quebec is tin ^r^'.^^^'^'l^P^ ^^^" 'observe, "all our territories, islands and S,untrL in ('Sb^'A^^ .*" comprehend, way described. There is no e-xcention nf America," bounded in the islands and countries ; the comndssS was t . T^^ '^^"'iu^" ^^ *^^««« territories, to be found. ommission xvas to incluae them, wherever they were the '^"d'of^Je g^nrtr^aSL^r ^''V' ^^^- ^^^^^-s s ruction which the other side enrav^t^tf nkc Ir'ir^A""^^"*/"^'^ ^''« «°^- there is no ground whatever for suc,o.est n r that ?1,p^ ^'^■- ^ '^'"''''"'"'^ ^^^ evidence for this purpose. FurthertSs bdn. an oh l'"';'''''"" '' ,""* admissible old-I submit that it wouhl be in accoS / '^V"''^^'" * ^^""'^red ye -xauiple, the debates in parll^ni nt whi "::e";ot T^'TT ,*° .^^"'^ '^^' '^^ Si. ^Y ^^cSf::^ri;;^:^.^i:L£ ;^^ 'if ^ ^ - ^^- ^- ^t the Act received the royal assent, but I see the'i^J^ V ^^""^ ^^"o^^' ^vhen 1 was passed ended upon the 13th of Januarv ITrf .f i If.'l'ament in which .sated It so. the Act must have been ms^^^i• 'vS^?^'' ■'^ ■''^'*^™« ^o be so .s.on It is very possible that the Ac m^t'ite as'id T /"^' ' ^'''^''""'^ ^'^"""'- Mr. MowAT.~It was before I'assed before. The Loud Chancellor.— Yes T spp if ;. ^ i . , Mr. M0WAT._The exact date of thV , "'^'^^ ^T'? '"«"*»'« '^^io-'e. .lanuary, 1774. ''*' "* "'*' 1"^^«"'S «t the Act was the ]3tli [Adjourned for a short time]. f^^f^^^^ of the Act to be. rged this upon several grounds. I hZ-ruil t IV ^''''^^^^ "»«• ^ have he anguage of the Acfct without a,^^ ex fniu ' J h'"*^''^ further appears from the fact that anvotherMT '''/?'"■ '^"'""d'y. that it French colonies and settlements autU^ !i f^"«truction would exclude the the North-West territory ri:vrurg:dX7h't'' ''? "^'^^^^^^Wl and aSo ,! hrmed by the terms of the commlsYon i 1 ^ construction is further con- Governor-General ; and I was gor^tT efer thertol'"'''^ '^''^^"^'^'^ '^ *!'- Bl. contending, in the case of so old an Act L ?b- .i . '?5''''''^'"'?« "!'«« tho an. consistent with the authoritie.s. to ,4f to thj^^ V '*^ ''.^^' Proper enough . ^i!l be a very short one and thn n....«J„ i- m^ P'oceedings, My reference conduction i„te„« w./;;,t It isi'^sr^Tut^i'/"^"''" «-™'« 41 I > HI .■ ! ■ ARCiUAIENT OF ATTOUNEY-tJKXEaAL OF ONTAUIO re (.lUESTION OK HOUNDARY The Lord Chanceixob.— We must pause before we allow vou to travel into that line of argunient. What authority have you for the proposition that what was saul by any gentleman in parliament is to be admissible as con.struintr an Act of Parliament ' 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 ))e admissible to construe the Act? Mr MowAT.— What I was going to shew was the terms of the Bill as it oriffinally stood mentioning the changes that had occuned which create the mthculty 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 (,'iiAN'CELLOK.— You mu-t give us some authoritv for the use of such matters as evidence. At least they can only express the vielvs of particular members as to what they supposoil was in controversy. Mr. MowAT.— My object is rather to ])oiiit to the changes made in the matter of the Bill, in its progress through the House and through committee, in lihistration and support of my contention. But, for the present, I will pass that point. ' I have pointed out that no other prmision was made for any other part of M-ench Canada north of that line by means of this Act. 1 mav further mention in connection with that observation, that before 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 the same course would have been ff>llowed b\' the hnghsh. No reason has u]) to this moment been suggested, from any sourc'i' whatever, why any portion of French Canada should not' have been included in the Province of Quebec, Whatever reason there was for putting ami portion in applies beyond any sort of doul)t to the whole of French (^anao westward to the banks of the Mississippi, and northward to the s<,fuher.Xmndary of the ter to v (jranted to the Merchants Advsnturers of England trading to Hudson'- Bay. and whiX sa d territor es' lands and countries are not within the limits of some other British c..lonv! i s allow-M confirined bv foundTand'-'' ^'"'^ ^^'"' """' '**" ^^'^ "^ T^hrn^vy, 17.i3, been made par't :,f thrgove"mne„t of New- »i, ?^''ii ^^"'""'^ ^^^rVe, then a member, objected in the interest of the Province of New York whose British Agent he was, that this was not a boundary of certainty as between that nrov 1; fh ^f^:?- ""J''r''? "'n\^ the one which he had pn>i>osed, as follows, viz. :--'VlineSn frZ aSt on le.t?^V^"'R°'H^%^''"""'''*'"' " ^'Idesr^es north latitude, and by a liirdrawri n that 'naral d Tnd f^m NklJara a^ro^rT^'r '• ' V'' '.'?"' ''''"l '" ^"^^ 0"*"'°. «" 1 ^^-^ that lake to the River C: fh^i^Tht^^, 7T^*'"''>"'* '," f'B north-west point of the boundary of Pennsylvania, and down th. west boundary of that province by a line drawn from thenoe, till it strikes the Ohio " Ohin^ H T^' 'in '", *".'* 'n'=l"'"v<' of " thence " were inserted ; and the words-"' until it strike the Ohio; and along the bank of the said river, westward to the banki of the Mississippi and northwa^ I5av Vnrf .1"°!^""^?' "K ^^^ ^'■'i^'^'y °f *'■« M^erchants Adventurers of England tr^linrtoHudrnl he?n\^l1 ""i" rfu t^''"*""^*. '«I»nd» and countries which have, tince the 10th T Feb ua^rma «ll.„T*^" '•"*."/ the government of Newfoundland, be, and they are hereby. durnVHuSKiostv-^ pleasure, annexed to and made part and parcel of the Province of Onlben "lZ"^'^°^trid '^^'""^^ ' .he I^ i^:^ii:z:^^i^^^,rATt::if^iT]:^ p^S^r? *"' *'^ ^'^^'^ ""''' '*"«'' *° '^ 42 'J'Jcfinitirc Treatu THK THEATV 01- VEHSAILrES, 1783. States. The treaty is to l)p rni.1,,1 „i ' This treaty ''h:c^^a::i^t!:T^'''ir'^ ''''* "^ '^'' Joint Appendix.' torntoryi„thi.s.,uarter. It describe J\' ' southern Ixrnndary of Briti.sh Lake Erie and Lake Hnron, and then t om r'T^l'^'^V''"' ^'''"' ^"^^ ^"^ario to " Thenco alonir the iniddle of " 1 " '=" ^'^'^^ Huron : throuql, the nuddlo of .said ],tke to 'S!, ^^or ZT''-"T'' !"**' '^' ^-^^e Huron ; thence Superior,; th(mce through Lake Superior ,'rH?"''u°" ^"''^"'''' ^^''^ '*l^« »"« Wocla ; thence west course to the RiverMissi.s,sippi." " "''*'-'^" P°'nt thereof , and from thence on a due Tliat was the treaty. A difficnitv j , discovered that a due west line fron. the^nioTnorM. u- f"'' '* 'T «ul..sequently A\ ood,s wouh.l not strike the Missi.ssipn _. ,.? f • '•'" V<""^ ''^ ^^'"^ ^^^^^ «f thr- Mr. MowAT.--Ni hut tlu ^n^'"' \'''' ^''^'^ '^^^ ^'^ '-^ar it. Mississipid^ or rather ^f tl.e mL L ? StVluoH'^'^ T ^^^^"^"^ '^^ ^he .s.ppi--\V ute Earth Jliver. for instance-whi -h , '-^ /''^'utary of the Missis- would strike. The White Earth Rh"il nix , ri"'. ''".'; ^^''^'^^ ^^''^"^ ^^^^ P^^'^t Lord AitEiiDARE,— May not th,. Mil. i ?'^''-^' ^lou'itaias. larger? "^ ""^ "^^ M'^^^»«n Iiave been in their mind.s as the .viden;.''^^^;i£^t^-j;^-;:f^-aiter, which we put forward in the The Lord CruNCP:rj.,R -wLT K^t "" ^ '^ ^^'' lon-itu'- «'• -rlier ? that doubts had arisen, and provided for jo if ^ur e u^ '^' ' ^''^'^^ '''^^'^ ■ . ^^ joiiiL ,sui\e> Hith u view to the ascer- AHr,o,.K ir.-A„dthatan ^''^ "' f'''"^''^^^'^^^^^ "' ''"'"" «<"-/^---. muMcation into the Lak" Hnn?,! Vl^ '"^e and Lake Hiin^n ; thence a r.no.Vh '*'.'i'a''e until it arrives at between that lake and Lake Ceior'^'h ""■'"',*^'' ""^ "'i i'-ll- of "aM iSfo to hL '"\°^ "*''' ^''t«' ^"»- Plnhppeau.v, to the Long like tlenn«ff""" u",'""**' ^^»'**' Su,H,ri. r nortt.warH J m*"" .^mmunicition cation J>«twee„itandthVLake\3fthTwiT^^^ °f «»W L^nn il^^ and /h ' "'r I^^al and lake to the most north. wwot^H., • *"« Woods, to the .sad Luke of th. tt' i ' . ^"^ water coram iini- thence bya line to l^'' rramrarn'J'Vh"^'''''?^^^'!^'''" th«„cem, a due westo'; f-rL't'lJ^ ^^'"''§^ «'- «aid northernmost part of the thitvfi^*^/.^'' "''^^J" "^ *he said KiverMisri^H,,.' *.'?•'''' ^^'^^''^tissiasippi • ho determination of th« line iL? ■lnf«^''^^'''-"°[''' 'a^itude. Sm'th bv a f,^; f ""J*"^ J' "'"*" intersect the he middle of the River ApaUch cola 0^?';?^'"'^" '*"^"'1<' "'' th rt^m^ deZ; nor?h''T*K^"" *»«' f^"" &.1 "'I «'^«r ; thence «tKt' ^'trAl"^'??!!.^:^^! thence along t'l.e rlXZrZ't'''^^..!''i3''^<''' . to the middiroflh^XrClichlX^'Tf \'" '^? from ,t. ™..„M. :.. .. ,,'ant.c Ocean. La,t. bv .. I.n» .„ ,.. ^TawnalonBthfmilHl" !:'/''.'? *^«. '""^^'^ °f St. vf r •r'"""^; I'lence straight to lands which divide the rfverg tharLn in* 'TZ' ?"'' f'"'" 't« source ZactlJ^n.rh f VL* ^7^'" ^'- C'-"'*. T " — """v.'! uiviae tDe rivers thaf fall ;«♦„ »i V^, ." '" '"' source di Lawrence; comprehendinir all (.fi.,!?: ".*u-"'^ ^"antio <^ *'*'''' •''"''«*'''' '«"'*" "f t'ebruary, one thousand seven hundrwi "l^ a^pSrSoenhL^^^vrthlrtntreLTgllir' ^«"'^"""'^'*"'^' '^^'«''- ^^'^ »» »»'« "«»>*•. "-«-"■ 44 I.WEUIVL A(TOK 179). -■<'N-ST,TUTiuX KOK CP.M.R .VNu LOWER CANADA. 81S that ! as thi' 'lien, till! 142: and Lord AnEiiiMRE.— The clesp.-;.*- ■ , ~ " = " Thencf! throu^'li tlie iniijdic of >* 'H r line f.Hati;rOM; and mS^^ it e.i«ted, as to the due north '- given to the expression ' d,, wo "''' t:,^, '^ -"-'--1 whJtifiect had to ;™^ f'^f '■'^■^'^■^iPI'i i.^ not to bo oundC:; :* 7^""'^''' P'^^^^. since wha? reason wiiy the description should ceas<- , V'^^ f*^'"*' ^hat there is no The oh,ect evidently wa,s to inclu.h S t /Zrir"'''./'"' '^«^'^>' ^lo"ntai,^^ I he Lord CHANCEi.iOR.-Oae «•.,. I 1 *'-""ory there, comin.ssion to Sir Guy Carletou xvhl^h L^, T''''''''' ^^''^' ^^th the original ..orthward ft-on. the .i^netion*S 't ' M s5 ;;t'^. ^T^- '''^' '' ^^ "^^ probably hoy supposed to lie to the west , ft r 11 *'f P^'" ^"^ ^ PO'"* which wrong m their notion of the point vou hav . t*"^ ?^ '^'^« ^^'"o^ls. They were bable that they meant as rnu^i o tC okl bo.nlSv ^' ''■'''' "^ '^"^^tance pro! ' Vi"*',*.' '^^**^-^ ■ f oundaiy us remained after the cession to after^the .ssionY"^^"-''^''-^^-'' '^'^^^^^ry, bounded in the old way. as remained Mv IT/^'r'^ ''^ '^^ ""^««"'« b"; ft>fn;,nv '''■"'''■•"^ ■ ^•■^'^ *'^« exception ^^3^ Lords I come now to the Act of ™"^^ ,. occurred immediately afterwards and .?ffor 1 f' .f '"^ ^o certain matters which of he construction fo^- which J cmt:,"'. Iv "alre'L/"'^' t''"» ^onfirnration eil n T? "'* ^'^'''^ ^i' ^'o^n^laries of the proVince T?' "mentioned that the Act inent in Upner an.i r.m..-or n.,..„j. • P'oymce. it provided for • iMPKRiA,, A«t extent of iho country ooniinonly called or known h\ the name of Canada." We find several docuniARK.— It if) due south of the easternmost point of James* Bay. The I.,OiU;- (.. HAKCEi.r.ot' — That description would ineludo the greater part if not the w>u)leof Canada, west of the dividing line. It will not help vou as to the wester 't « urulai'y. .Mr. Mon.vr. -I am referring to it here for the purpose of calling attention to the terricf.iy the Crown intended to be inchided in th' Province of Quebec : " Including,' all the territory to the westward and souti. vaid of the said line to tiie utmost extent of the country commonly called or known hy 'he name of Canada." _ The Lord Cuancki.i.or.— That means the whole of Canada, west of the line of division, whatever " Canada '' means. The particular boundary divides Upper from Lower Canada, does it not ' Mr. MowAT. — Ves, my Loid. We have the same expression in rhe Order in Council afterwards nuvde. I desire to prove to your Lordships that the territory that I want to include was part of Canada, and that being jiart of Canada, this expression shews it was to be included in ljf>per Canada. Then tliis paper wai- the .subject ol' correspondence ,ilsu between the officials in this country, after tht; passing of the Act. Your Lordships will find that at jiage :]!)7 there is a letter of the Right Honoinuble Henry Duiidas to the Lord Tivsident of the Council.+ In the seconrl paragraph, your Lordsiiips will see this language: * P.VI'KK I'HK,«KKTKI) TO I'Altl.I.VSlKNT PHKVIOUS TO THE I'ASSINO OK THE Ac'T OK 1791, CONT\INI\.; Tlil l-liOI'DSKD 11K>.CH1I'TI(1N (IK TDK I, INK OK DIVISION HKT'.VKKN TlIK I'liOVINCKS OK I'lTKIl .WO V,nv Kil (,'.VN.\I).\. ITlu' following' 18 llie Cop.v "i' the Knpur in ■un.'ation, as fiiriiisliwi liy the I'ulilic Ueconl oiltce, London, ami sot i.ui m otficiul (liKiinieMts. i Til oiiiuiiciir.' at a st.iiif liouudiirv i.ii tin; iiiirlli liaiik of tli.' I.akt; .St.. Ki-iiiiciM. :it the cnve wr.st i)f I'mm nil Baiuti't, in tlir limit lictwi'in the T'uviisliiii (if l,iiii(.Mst.n' mu\ tlic Scigucuric of Ni-w Ldni^iiiniil, niiiniiii; along the said limit lu tlic ilircLaiun .if m.itli tliirt,\ fmii- dcgivcK wvst, t(i tli(.> wcstfrnnuist, angle of tlic sci! .SiMgricuric (if X( w lidiigii.'iiil, tlicncc almig tlic iKutlrwcstciM liouiulaiv (if the Scigncuric of Vandrcuil vuniiing iiortli twcnt\-tivc dcgrcos east, until it strikes rijc Ottawas' liivei', to ascend the said river, int.. i,,^ Ijake Tdniiseauning. and from the head of tiie said lake le, .1 line drawn dm north nntil it strikes th(( Ikhim dary line of Hudson s Jiay, inoUidnig all tlie territory to the westward a'. ! s-utlnvard of the said liu(! t'l tlv iilnvjst extent of the country ooiiniionly (.ulled or known hy the name of ' . da. tT)IK RlOUT HONOURABLK HKNUY DuNOAS TO THK (j ",). ''HKan)KNT. (Being the i<'.ti, refernd to in the Imperial Orden Loan PuK8n)BNT. Mt IjOKI), — .\n Act liaving passed in the last seHsion oi certain parts of an Act passed in the fourteenth year of His Maje more etTeotual provision for the Government of the Province of • ' do {urt'..i!r provision for the (jovernment of the said Province," and a buii. tliesuid Act, that by reason of the distance of the siiiid Provinces frou be made by this Act in the government thereof, it may be necessary -■ of time between th(3 notification of thi.s Act to the said provinc ■ •; •)/ t4th August, 1791.) ..iTBHALt, 17th August, 1791. 'i.%ment, entitled "An Act to reiw.il v\^, intituled ' An Act for making North America,' and to malic ' i;i()ed hy the 48th Jieetiiino! country, and of the chanjce tn '.here should be some interval t iCtively, and the day (if it< commencement within the said provinces respectively, it shall and mij oo lawful for His Majesty, with 46 KOHMATIOV AXD ..TMrPS OF TnE PROV.N.E OK UPPER CA.VADA. Of thi' u^:^:i:^s::is^:!';:j;;T^' «•« ^^t^^'« -~^. ^ printed Top^ passing of the said Act. dcscri .^nj 1 Hn?n?'"''':<""'' *.° !>'■''»•»«"'> Previous t. ohe Vroviuc. of Upper Canada and P^ovinee of i!;, J:::;^^^^ ' ^'""" '°'" "P"''"*'"« **"« Then the enclosure follows; and we li.iv.. th.. .» C.mada was to include. " "^'"^ expression as to what Upper The Lord Chaxcemou Tt i"u oii r^ i Mr. MowAT.-Yes so that T .n ^'T'^'''^ ^'^'^ of a certain line. include, [t is i.Mportant'for me tla vourt-^d^r " ^"'•^f'/'P^ ^'^at Canada did. entitled to all of CW.a.la west of t Im li. A flT ^ ^'°"H ^^^coo-ni^e that we are Act, and the interpretation wh ch was mt ) ^^'V^^'f P^' > ^nd the previous f think I am entitled to ns./what Tii V'';^ '/l '^*^" -"^P'^'"'*' ««vernment, country is to includo-as evnlainin.r J 1 fi V ''e«c'''P<->»n as to wbit the under the Act of 1774 ; and^ f Td ?.Ti f.t! ^r''''". "* '•<'"«^^° ^^'^ ""'l"'<^ecl for that purpose, then t s",ews 1 i t 1 ir7 ^i^' f"^^ F '* '' ""^ ^^'^ ^o use it be included. There is nothin An tl e L .n. ?! t^ "''f ^'^'''"^^'"rward all should on it that construction. So that i ut d .i ' '•* ""'''"''' P'''^^'^"^' »« *"'•"•" P'-^^^i^S already en.brace all „f Canal iL of irr''":,'" "''^ year, 1791, did nol other docu.-^ents referred to-the O.de s i P "'' • ''' '^"^"''^ '" ^^""^i^ ''^«^« .^nve such an increase to the count, vns " ^']""'' , J't''"^»'^^''ly-ope'''tted to- Canada. The Orders in Counci 1 f^. fou .^1 „"/ '^ "'' ^1^' ''^'''^' ^*« ^"""^"-ly and the Proclamation referrim t 'th. m a 1. '^'^-^".f ' '"^'^ '^'^^ respectively: the respective Provinces, is alpage Ji^i '"^''"^' ^^' '^'' ^"^o effect within W C„„b„,.,„. ■'"' """''' """'f ""•■" M..,..„. Lord Freilsrick Campbell. Lord D.,vPr, I^ortl Grenville. Mr. Seciet.iry Dundas p„„ Whereas there was this day read at thp R.mrrf » p . . , ''" ^''""'ct'"'>r of tho Exchequer. V voiir ( trrlu» ;„ n _...•! . ,"8._n/;. . ' instant. ' kjesty's Act the .MliilMEX'J' or ATT()1!XE\ -(!KXKt(A(, OK riXTMtlo fi' )uebec includes all that is " commonly cnlled or known by the nume of ( 'anada." 1 do not think there is anv room for doubt, with all the proofs we have hero, that all north of the prescrib.-i] J"i T^ '•ovmoc ; and al,su copy .,1 a l'..per prewmted to Parli^iinenl previou.- tu the pawsiiiR of tl„ said Act, de^cribirnr the line proposed to be drawn for dividinpr th.; Province of Vn^be.; into two iei.arit province^ agreeable to Yonr Ma.ie.«ty 8 royal intention, HigniHed by M.ssaste to both Ilonses r,t I'arli. nM-ni to be called the Province of I pper Canada and the Pn.vinc. of Lower Canada, and stating, tl," Iv section 48 of the said Act, it ih provided, that by reason of the distance of the said Provinces from tlii- country, and of the change to be made by the said Act in the tfoverntnent thereof, it may be necessary tl^.t there should be some interval of time between the notification of the said Act to the taid ProviiiL.., regtx'ctively, and the day of its commencement within the said Provinces respectively, and thot ic .shoul.' be lawful for Your Majesty, with the advice of your Privy Council, to fi.x and declare, .,r to au*h riz e " (governor or Lieutenant Governor of the Pr..vinceof (Quebec, or the person administering the governmHni ■there, to fi.x and declare the day of the commencement of the said Act within the said Provinces resi)ectively, provided that such day shall not be later than the 3lBt of December 1791 • ..1 • J 1 .r"""!^ VL*'-" Committee, in obedience to Your Majesty's said Order of Reference, this day i,«k the said letter into their consideration, tojfetherwith the Act of Parliament therein referred to, and likewise copy of the said Paper describing the line proposed tote drawn for ceparating the Province of Vvr«' Canada and the Province of Lower Canacti : and their Lordships do thereu)" o agree humbly to reno t m their opinioii to Your Majesty, that it may be advisable for Your Majesty, jv your Order in Council t* divide the Province of Uuobec into two distinct provinces, by separating the'Province of Upper Ciiii,i.la and the Province of Lower Canada, according to the said line of division described in tiie said Paur copy of which is hereunto annexed : ' " And the Lords of the Committee are further of opinion that it mav be advisable for Your Maiestv by warrant under your Royal Sign M.'vnual, to authorize the Governo'r or Lieutenant-Gavernor of".' Province of <2uehec, or the person administering the government there, to fix and declare such dav fcr the commencement of the said before-mentioned Act within the said two Provinces of Upper and Lower Canada respectively, ag the said Governor or Lieutenant-Governor of the Province of (Mebec. or th.. oersoi. ailrainistering the goverame^nt there, shall judge moat advisable, provided that such day shall not li lat.>r than the Slat day of December in the present year, 1791 : '' ' Thf Proposed Cine of Division to oom'mence at a stone bfjundarv on the north bank of the Lake ht. * rancis, at the cove west of Pointe au Bodet, in the limit between tfie Township of I.*ncaster and th>- Seigneurieof New Longueuil, running along the f.iid Hinit in the direction of north thirty-four decrees west to the westermost angle of the said Seigneurie of New Longueuil, thence, along the north-western boundary <.f the Seigneurie of Vaudreuil, running north twenty-five degre.o east, until it strikes th.' Uttawag Kiver, to ascond the naid river into the Lake Tomiscanning, and from the head of the said lakr by a hue drawn due n.irth until it strikes »he boundary line of Hudson's Bay, including all the t<'rritorv 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. His Majesty this day took the said report into His royal consideration, and approving of what i« ItT.T P'OPO'^.^'I' '8 pleased, by and with the advice of His Privy Council, to order, as it is hereby ordered that the 1 rovince of Quebec be divided into two distinct provinces, to be called the Province of UiiOer Canada and the Province of Lower Canada, by separating the laid two provinces according to the follow ing line of division, vi/.. : " , " To commence at a stone boundary on the north bank of the Lake St. Francis, at the cove west of Pointe au Bodet, m the limit between the Township of Lancaster and the Seigneurie of New Un gueuU, runnmp along the said limit, in the direction of north thirty-four degrees west, to the weaterniost angle of the said Seigneurie of >ew Longueuil, thence along the north-western boundary of the Sei(rii<.iiri« of Vaudreuil, running north twenty-five decrees east, until it strikes th« ()tt«wii« River ♦o ."-,..,-1.1.. «aid river inUj tiie Lake Toiniscannmg, and from the head of the sftid lake by a iine drawn due m/rth until 48 luie which ( kiiMVvn by t Loni A .Mr. Mn ciii.'d or ki The r.o M.it lia.l .uiy sli.'W tliat ( ' 'oiniiany. ti'iii is to be ciinti^'uratioi Mr Mo' The Loi w.nild have whatever tha it strikes the bou til.- «nid line, to t Wheicol the all other His Ma \ield due<.bedieri ImI'KHI.W. OlihKII COMMENeKMK.'' KKSI'W.IIVKI.V At the Court WliereHH ther. C.iiiiniitlee ..f Oou ■' Your Alajpsl Ti> refer unto tliia ( Princip.U Secretari p.i.^sed in th(^ last « fourteenth year of eniment of the I'r. ef the suif) Provinc siiid Act, :lescribiii( province.s, agreeabl. to lie called the P; section 4S of th.' sai cuuntrv, and of th-; th.'re should b«. ho r.'S|)ectively, and tl, be lawful for Your I .'ly, pn.vid " The Lords of the said letter into t copy of the sai.l 1' Catia.la and the Pro their opinion to You divide tho Provin.'e. imd the Provir,.,H .,f Hi.- Majesty (hi, tncieiii jirop. ..• i v. a ol '.''lebecbe , iv'id,., ri'.'ViMOH of Lower C "i-:u.lOrd..r: And t 'I'.'hs. „„o „f {|i^ Ml.- .Maj,'.stv'8 Koynl '■ilii.'heo, orth.' p.-rso. :ni..^l.u.lviHal. f„r tl *. aiiiuU resp.x, vely c.-rt;ii.| jiarts o; ..,n A. Ill, .re etfectual provisi 4 (H.) K)i!\(\n...v \\i) i.i.Mir.s „|.- |.„^, , 'HuM.Nci: or ri'i'Ku canada III k tiovvn by Hi, nan.,. „f ( 'arin-la, ^ ^-oi.ipnny was comii.otily callod or Lunl AnKUDAHK. — All n<>rtli ' Mr. iVfoWAT. — V,.s all n,)rth „f fj,,, i .1 , ,. o..l!,',l^orkno\vM l>y tlicnaiM,i.,fCa,„i.|;r "^" '"'' ''"''; 't wa,s all '^conniiurily Th,' LoHl* ClIWCKI. 1,(11! ( sllniil,)' I If- M.'t l.a.l anything at pn.ent lea.'hJlo h" f' ! ."r,;; '""^^•";,,?" ^'''■'.' '^"'' ^^'''' ''*^" •^hew that (Janu.la exton-l.vi fiirtl^.r nor h /'"'".'• ,""^''" '' "'^^'''"^' f" tiunis to be.lenve.l from tl.,' physi.vil (.,„«,„ .n!!' ""^ ,^".^^^<'"*f'"^' that informa- oonliguration on these points wa,-,'r,.>rMlN; >. ' .'^."''"' ^■''*^" r'"^^i'''y tlio physical y nnknown. oonligu ration on these points was'tofi M;.nMhav.. lu..n convv,ni.,nt As i^ wi n .t w'r'"' "if' '^"I^ ^'"''' '"'"ndarie. vvhatev,.r that the l)oun..larie.s wore fix.j.l with ivftr,' up"' ! " ■"" I"'! •^"'"Pti"n > any such con.^i.ierations IMPKUIM. (),i„KH /N Council, 2(r,. Au.asr I7..I . VOMMKN.KMKNT OK THK Art OK TKAT Vk\»'u T V ■^•T"0«>/IN,> THK I'l.UN,, ,, ,, ,. ^''""y "■""• "'" ''"•'"'•• 'i"^-l < )tlic., London, 1 At the Conrt at St. Jan.esH, the 24th of August, 1791. I'lflKKt Thk K..n«« M,,,,. KxcKi.,.KNr M.A.,K,srv ,y Cor OK AM \ "AT KOK THK 'vermn«nt"f the said Provincp." provided that s,.ch d»y. ho to b« Hx.d .u,.| k-cla ,.d for th.. f th. L.k St. Francis, at the cove xs,st of P.into .u. Xt , V im.t between the TowMsh.po, Unca '-r an l the Seip.eurie of .Vow Lon,M,Hui! rmimnK aloi T ^^^^^^ .nthed.recionof uon.. thirty four .h/rees w..»t to the w-.ternnioKt auRlo of ;„ .aid SeiR '1,^^ \; Lonffueuil, thonc<. al..w the north-western boundary o| thr Heign.urieof Vau.lr-uii. running north tw.'n\ fived,xree-ea.tunt.i it.tnkcst uOtta^aM River. r,o aHcend the naid river into .ho Uke*^r"aiVi*L.an ii- ajH from the leu .,f th.- h,-,k1 l„k'. by :. hno dr,avn due m.rth until it Htr.k.H the Ixmnd y li , Ti H.ldMOM, I.v, includintr .ill th,' torntorv t„ the westward and Houthvvnn I of the --aid li.o, to the „, extent of the cr.ntry conmionly called or ki-own by ti,o namo of Canada.' And whcrea. by , , \ irr^'J? ^"f '"^t*" ■^"'l' "', ''rovisi. ,, ,ir the icovermnfnf .if tt> Pr.mnce shall conimenco w,thin the sa d Provinces of I 'ppcr Canada and J, uer Can J a re le^ u v' on Monday, the said twenty-sixth day of Dccemlx-r, in this present year one th, asand seven hm r, . i mnety-one. oi which all our loving subjects, and all others concerned, are to take nXe an 1 ^L thiniselvcs accordingly. uonco anii goii In testimony wliei-e.,f we have caused these our Letters to be made Patent, and the Great Seal nf ,„ .sa,d Province of (7;,eb,e ., be hereunto atlixed. \VitnesP. onr trusty and welU^loved Uur-^IC'l rk P*(,u.re, our Lieutonant-l .overnor and Commander-in-Chief of our%.ud Pr.ivince or .m ."^j' m'', . General commanding our f.nces ,n North America, &c., kc, at our castle of St. Lewis in Th,'. Ci'r ■ (Juebcc this eight. ..nth day ot XovH„d«.r „, the year of our Lord one thousand seven bun ir'd and lii i-u one, and in tlie tl ty second y ar of our reiKii. mii-.» Hl'OH Fl.NLAY, Actitvj Sifntcrii, ■"■ "■ 50 NIURV nifntiui.i i|, \j;o f'lirtlicr ii's m'ave (i> It is M"\V b« Hxi'd ,111,1 y, Hliall '.. r i„ DoTTBKLl., Act III TH M THE (irnsoNS MAY OO.'h CHAKTKI! KMKNT OK VUE <■(..•« TERRITOHV. sfende •I,.. ov in Ccniiiiii, ili.'il inlii lA ■ ,-r r'aiiiult, hy Diiiniomf .it 11 Hodet, in thr iii^rsai.l 1; , •Miric i.t .Ni lortli t\V( ir;. ciiMisi.'uniili _•. I'imy liiii- ■! to tllH lltlll'. ' by uii A.I Ut p^Bgl'ii 111 vi,-i()i! f ji th" tor tie j;,n •o\ inces iidm lie (.orpsHiir; ml |piii\iii(.- liHt it ,1, , li,) lilUl'ITi-l- M- lll't'llt (llMI- riiMpoi'tiv' :> (I sevfii lull tiotlicr Oiili ■, or, ill i 1. Priivino m . of the -ii,| and to thw tiiiii-Cicnciai liifUtiM.aiit ; mid lii.yal and plH.-K-nn itHnant-(;n. Scd it must t of thr -ail) ;hat till' sair] entli yciir n' meni of tl. tof th.'»;ii.! ■e«))i-oti\('ly, mn(lre'> not oxton.l to the tenitoiy now Lord AliKKDAKE. — That i«4 n..f «,. u .inn of old Canada, and not a portion ;fZ7;i^w'',>' ''•>"" ''''" ""'^^ « P'"- ■md IS now H portion ot ()„tann. ft is ..t ' ' ' '^*3^ ^-"'Panys territory, Moininion has not cor.ou.red in anvthinl'Mh'!! aTl'\ '"'""'^^«'^ *''«' P"int. Tn. l-Mindary, and therelor.j, thoujrh imrt ofth p .L '""'' ^'^'^'T* """• wosfn. not to be deci.K.d now. " ^ * ''" •"•^.'"•"'•"t -oos b.yon.l that, that ha" Lord Ahehpake.. .-A oiipsifmr. ., * ^\ ,. .■xt.n.l.. ^ ''"^^^•"" -^'^ ^'' t''« ^v..to,.„ l.„und.ry is l,ou- iar north •Mr MowAT.— Ye.s, and ...roion. 1 l)„v. t t.;mtondid not (..mc down to the most otV'r. ^''■''? ,"'■'* '''" "^"'^''"'^ i^ay .Manitoba and Ontario. ^ notth.-rn part that is in rlispute )h^Uv,Z Til- L<)Rj)CnAv,.pi,LOH._Until wi ivp i;.. . •, , ^ Sir Hc,.EH. c.^l:;l;i,!^^^^^^ b-'tueen the two ProvincoH : wheth, r n Jl ., •'^'''■"nine ,s the boundary .;etween the two Pnninces. Tlw t you \' i ft' '''' T'S'^ '^ "'*^ '-•"-•'"•y -.-V tlu. western line. That i,s vv.a w 'L v -t 1 w" ' '""H" ^ ""^^'-'-V to territory did not extend";;; thl- oldt;n;;;i,.^'HL/''" {''V'r"'^ ^^^^y < '.'.npany s want to call your Lonlshins' altentio t h. C-f'V ^ "V,' "^^ '""'^" ""t- 1 ''"''■ '"n (he Bay, .so tl ,it .mless .1, ^■"'f' "•^^ ^'^ all, that this i.s 700 "" i;ny <:on.p..nys territo.'re ," l^wnL'?:!^;: /^^"'"^ '"' ^^^^ ^'- ' '^i^'-:in>AHE.-OI::g;rAc't'wjT:^ «. ^nH ,tj. Die LoKo (JHANr'KiioF'— Of ""i "alle,fTi.sIation 3;;,xsK^^-— i..K,i::;z,! .„.,.„„, „_,„,„ „ .,„„^^,_ T.. .dl o whon, theHH preHe„t« «hall com.-, gre^tin^ • wiit'i-cjis our driir cntirelv hr] i r* ■ ■■wn great cost and chaws 1 • Vt ' • 7 J',!'"""' ^'"'""" '"'^1 'Jold.niltl ,fj ''""^'■"". W,IHam ' ■ 'tf'oier s\,i., all the land», |! li AHOf.VIEXT (-!•• ATTORNKV-(iKVi:H\l oh (jn-taKI'i ir i.tllESTIoN ok IIUINDAUV "K Your Lonlships kii. w lliiit tlit> vulidity of t.liat cliarter has been very oftcr i|iii'.stioii('il, Imt, it lias ru-vcr liccn ndjuiliciil. <1 upon. Tlic l;niin (^iiANCKi.i.oH. -I tliiiik oil this occas^joii \ 'II can Imve iiotl. to 'lo with any '.; ajstiun an to its valiility. Mr. MowAT. — I will assuino it is valid, and tlmt liit'onls ijin'stion i.s, how f.i' iic.vteiids. Tim- olijcct of the i-li;irtiM' vva^ trade Tlic ;.,'rant of the Innds a{»p.,iiN fiDiii till- faro of tlic iiislruiiu'ii.t to hiivo lii',.;n tnun-ly ineidfiit to the intcinl.,. 0|)'Maliuns of thf (Jonipany in th" way of trade (tproviden however for tow u and vdla^'cs, and colonics, ;md so on, on the lands that wrr.- }.'i anted to tluiii Till- lan.i,'uai;o of the f,'iantis very larot!; it is to !»■ found at p.i^n 'AH. •' And to tlii> (Mill llie said (io\wiior iind t'oinpiuiy ot Adv.aiturers of En^'lm,; tiadina; into lin Ison's M.iy amy l>o inicoura!,'!' I to uniifrtakw and etlccLually to prosc.ui.- til" hai, ._'rant and oonHrni. untn thti siiii Cloveiiior and Company, and their sueoi'ssors, the Hoie (rade and conniierce of nil tjje seas, sliaits, hays, rivers, lakes, creeks, and sound-, in whatsoever latitude they shall Ir that lie within the entrance of the straits coninionly called Hudson 8 Htr;»ita " - ociniitrici iiiid trrritories u|ii)ri thu (ii.aMti ivtiiJ coiiCnies nf the Ht-a-i, Htraits, bayn. liikeH, rivers, crtHikii, ,ini HoundH af.iri'HHi.I. wliicli ar.' not in)w iietimlly iKwrn-cidd hy any nf ,,iir stibject*, er by the mibjcctH nf m other <;liiisli;in i'niinc (ir State. • • » . . .Ami ti) thp tiiii till- «ai(H)iiv(-rii"r ami ( '■'tiipnny of AdventurerH of Kiik'iiind trading into Hii.I*ji l>ay m:vv bi? ir-udiiraxi'd touiidort.ik>! and »-(fi'ctimlly to (n.xiKjute thr .•- KoU^ tr;id(' and (-■oinrii"roH of ;iil tho soas, >tiaitH, bav-i, rivcre, lakiw, itbcI>> and rtoinnl-i " whatso.'vur latitiid.' tlity MJiall bo, tliat lie witliin the fntranpe of the Htraits ooininonly tall-d )fu.|ihi . .StraitB, togetlier with jdl thi' Iniul.-i and t.^rritorii"* upon tli« countrie.s notstn, and i-onHncs of ftr „ i, bays, laki'H, rivir.^, uroi li« and Mounds aformaid, that aro not already Bcttially pohhchshcI by or (jranirtl u any of our Hiil)j.'<:t«, nr possoj-Hod by the fiinjwtH of any other Cliri.Hian I'rince or Stati', with tlie Mnin of all HortKof tish, MhaleH, stiirtfeoni and all other n.yal tishert, in the nrnx, bayn, inlets and rivnr-i Altln, the preiiiiHes, and till! ti.tli therein t liven, lojfothor with the royalty of the HPa upon the coa iroMi hi-ncefcirth reokoned and reputed as one of our [ilantatiouH or colonies in Amurioa, calltf • Hnpert s Land." ,\nd f'irtlier weilo, by Ih-se pr.'.sents, for ih, oiir heirs and succfiKiiors, make, create, and constitii'- the .said (i' \ ernor and (.'onipmy for the time beinif, and their successors, the true and absolute proi>ri«tnr~ .if the same territory, iiniits and places, and ..f all other the premises, s.wiN faith, allt'^'i.ince ami sovereij^n dominion due t,< us, our lieirc and sucessors, lur the same, to havk, ii lord, .\1 U MS ■ |)OH3esKaud enjnv the said territory, limits and places, and all and sinKular other the promises h.r. g-ranted as aforesaid, with their and every of their rights, members, jurisdictionH, preroifalives, roy;, and appurtenances wliits.M'ver. to them the Baid (Jovernor and Company, and their successors hir t v i. liK Hoi.DKX of IIS, i.iir heirs and s,. oeiiHoiv, as of our manor of l-.ast tireenwicli, in our county of Kem free and c(;;nmHn socca^e, anil nor, in capite or by Knight's service, \ iKI.oiNii .\NI) I'A-, l.sn yearly t" ii-, heir.s and successors, for the same, two elk.s and tuo blrick beavers, \vliens(»'ver and as ofiten our heirs and >necesHors, shall hapiien to ent tfrantid. ♦ ♦ . » . •Villi furthermore into the Maid countries, territorieb and regions lie \", IhTI-l.' if our ample and abund uit ffrace, certain knowledi^e and mere motion, wi ii.v g'ranted, and by these presents, for ns, our heirs and suciie.sHors, no grant unto the said rjinerin'r ,;ii (>inipaiiy, and their siu.'C'ssoi-s. tint they and their sue •e^.■,ors, and their faclois, servant- ami agi-uts, - : them ami on fhi-ir bi-half, and nor otherwiie. s|i;ill fnr ever hereafter have, use and eiijuy, nut mi i.'i whole, .oitire, and only trade and tramc, and the whole, entire, a.iid ' nlv liberty, use and priM,-'- tradiuK aiel tiatHekm,' to and from tin- te.rritMry, limits and (daces aforesaid, but also the whole and n. ; - ti-ado and tralHc to and from all haven.s, bays, ci-uka, rivers, Ukes and seas, into which they sh.ill :■' eiitrvnoeo.- pas-a«e by water iir land out of the territories, limits ami places aforesaid: and to .and M)!!: ;ill the natives aiel p.-nple inliabitinK*, or which shall inhabit within tiie territories, limit-i and places afnii- said ; and to and with all oihi 1 nations iuhaliitinff any the co.ast.s adj.-icent to the said terriiuries iin, ■ and places wh'cli are iMt already powsrsied a-, af.nvsaid, o/- whereof tlie sole liberty or iirivilei;e ,t t' and tr.itKo IS not (?riiiited to aiiy oth-r of our subjects. . . t ■« , And moreover, our will and pleasure is, and by the- presents, b.rus, our heirs and successurs, ftt: i.jVK and er.int unto the Slid iJuveni'ir and (Jompauy, a iheir suocessm-s, ' * * Ihut it sii.Ll and may be lawful to and tor the said (ievernor aiid'C"i: ..ly, and their successors, from time to time, J at all times from henceforth, to erect and build such castl--.-, fi.itilica'ions, fort.s, trarrisons, coiuiiic, plantati'Mis, towns or villaffes, in any jiarts or |daces within the limit.s ami luiunds ^'ranted before in tin presents untt the .aiil Onverrior and O.iiiiievnv. as t'iev in their discretion think fit :ind requiuitia ' In Witness where.if we have caused tiie-^e our Letters to be made I'atent. Witness oiirsfif at Winchester, the 2nd day of May, in the two-and-twentieth year of our reiKii. By Writ of Privy Seal. PiijiiiTT, il'NDAUV EXTKNT OP ruE inrn.sox'.S ,UV COMfANV's TK UltlTORrAI, (JHANT. So far tho jjjrant, is of f)„. s,,],. f,.„,i„ „,. i n.ro,nuzo,l that to that extent tl>e dm' ..?"'!''''''"'''•• ?".'' ' ^«'^"^*' "* '« "'>^v well followM; '■'"^"'•' W'l" voi.l, hut n„t it. re-arcl to what " Together with ail th,- lan.ls and teriitoiif « of th«8«a8 bays, lakes, rivorn. .nrlcH, au.Uou IT'' "'V'"." """'«"•• «"'♦»*''• an^i confinei possP8,se.l l.y or grai.t..! to any ,>fou; HuhiS 1 ''/*''" ''•"'' ""t ulna.ly ucluaily OhriHtiaii Princo or Htat,.," ' "U'll^et,, or pos8..8m.,| „y the ..uhjtets of any other with the rii^'ht of Kshin^', rikI so on Lo«r) .\HK«..AUE.--A,..| the ritrht of mines Mr. Mow'AT.— Yes. "•■ues. The hmn Chancellok.— " And that t ho said land ho fniin }i,Mi.f.f ,i plantations or colonins in America, called ' li^prtVTanr''' '""' '"^"^''^ "' °"^ "^ "'"' Mr M(,WAT.-ye,s ,muI then it goes on : And turthor we do, hy th.'se i,7«w..n». r oreat«and constitute the said Ciuv...,W and V/^L'!!"''; ^'T '•"'' «"''«««-^orH, n,ake, siiccessors the true and abH,dute]ord.s and pro.UX'o.,'^' *""" ''«'"«• ^"^ ^^-ir placP,,andof nil other tho prenn.ses, SHvniXaJll f''".,''"',^ '."''••"''^.V, limits and domm.on due to uh, our heirs and mccemn. Zrlt ^'"^1.. allegiance and sovereign -loy the said territory, lindt.am J 1, ^ ^ , r ^^^'^ /'^^^^ herehy Rranted as aforesaid, v.ithth.ir and el-ev of ,.^ •","«"'*''• ""'••- t'"' I'^Mnises prero,ar,ves. royaltie.,. and appurt-nanc s > h lU •« ' ^ "f '%""""'""• .!"-''-'-"«, Company, an.l their successors forever, to Ik. hdr of. "'^'!" .''"' "''i'l • l^'"^'"''^ t« the on.struction which has been nir^d "''''*'''"' ^'"^ charter is ; and .'rantees to whatever land,: thyslKSri:;;:;^^^^^^^^ '■^' **"^^' ^'-3' ontithKl the I ^^'cf' a-., recognised in internationa h w as ^nX '^T^'^f' ^'^ '^'^'^'^ '"<^*»« ca.se of a de.sert country It is no? ,. t r '"^'"■'^"t' ^""' that purpose, in the territoty of this kind, i!ut t s ^^Zt^tr^'' .r''!'^' ^ivei pt^peHy in a ■•e.i-..;;Hl,--po,sse.s,sion, occupation. S U "],;'':, '^^ '""" *'"'" •'^''^--'T i" , . 1 he L. .Ki) Chance/,U)u -That - « v .J " ' *' '«C'-''^«a'y as well. ' fonal question, but is it .na ;. rial for ^r Z """^ ""* '" '""^'''•'■^' '» '^^ "^^^'^a- Nhat s to be .settled between l.ene two ^"' ''"%n' ' ^^ ^'^"^ ^o know ' ■ ' ^-^^'"'^^'^"'^'^"^ i;^b:t:l!y-7-^^'auInotIeavetho.hore« |con.si - "".y I can shew your Lordshm ),«,.,.. i ^' '* "oneave tl ileral • time aftor fh ^or.i.miip i,e3„„,i any sort of doubt that cession of I7ti;>, wiien th a<^e.ued to them m connnon w o ho BHH f * . • ''f ^'^ '"'^^''^ "^ *''^^ I'aay never did that. ^''*^''*' ^''^'J^-cts, the Hudson'.s B; until a en or ■ay Com- 53 .[> \i AROUMKNT OF ATTURNEY-GKNERAI, OK ONTARIO TV (ilESTION OK H0UN1>ARY ust passed which Lord AiiERDAiiE.— They did not occupy all at once. Mr, MowAT. —They occupied no part of it. They erected what were called fort.s, tliat Ks, trading po.sts, made sufficiently .strong to resist attacks by the Indians of Hudson s Bay. Tiiey had a few such posts on Hudson's Bay, and they traded on,v with those fndian,s who cani<' there. They did not go into the country at all. _ The Lord Chancellor.— But your proposition is that the words of the Act, winch speaks of " territoiy granted to the Merchants Adventurers of P:nglaii(| trading to Hudson's Bay,' really relate to nothing except a few forts upon tli., Hudson's Bay--is that it '. What is th(» subject which these words, according t" tlie ordinary pi'inciples of construction, are intended to describe i Mr. Mowat.— What I .say is, that under these words no interes did not belong to the (,'rowii. The Lditi) Cmancei.i.ur.— But the words are, from the conHu.x of the Missis.sippi and Ohio rivers " to the souther/i boundary of the territory granted — wliere do you claim that southern boun-\ may have appropriated under the powers which the charter gave to them. Ihe Lord Ciiancem.ou.— How it is po.ssible that such construction can l.e put upon it, I cannot conceive. Lord Ar.KRDARE.— That would be liiuitinir them as much too much, as the other construction would perhaps too little. Air. Mowat. -Li any case, there is a difficulty in ileiermining where that boundary is. • , •^''*-' .^^^'^V <^''»AN(.'KI.L0U,— But you must point out .something definite that IS there, tlescribing it. Supposinu' you can a,scertain the boundary which ha.l been^granted, tliat would be i)ne thing. _ The Lord President. — Do vou mean that thev lost their ., I do mean that; or rather that the grant v»'as to be com- mensurate only with their actual ajipropriation or possession. The Lord CfiA\cEt.L<»R — But, then, if that were sound in law it would not have anything to do with us here. This is a boundary dispute. Lord AiiKRDARE.— Surely when they leave off at this point of the Mis.sissippi, and then speak of going nortli t.J the Hudson's Bay territory, they mean souk- thing witnin reasonable limits, not traversing over hundreds o"f miles. Mr. Mowat. —Which are the words your Lordship refers to ? Lord Aherdare,— r moan the various detinitions which you have given to us, in order to make out that your western boundary under the Act went we.-^terly of a line drawn north of the confluence of the Missis.sippi and the Ohio ami to a certain point west of tlie Lake of the Woods, and from thence to the point of intersection with the southern boundary of the Hudson's Bay territory. Now the southern boundary of the Fiud.son's Bay territory would be close to the Hudson's Bay itself probably. Mr. Mowat.— Quite so] my Lord. Lord Aherdare.— Well, surely, they must iiave had in their contemplation some otlicr territory than that. ^'■•^^■'^^■'^'[•—8*1^ f'>'it expression was used because it was not known liow for tli.3 Hudson's Bay territory e.Kten.led. It was always a matter of question, ihe Hudson's Bay Company nad never taken possession there. Sir MontA(;i;e SMrm.— This is a.s indefinite as it can be. Mr. Mowat.— It is extremely indefinite ; and, my Lord, it must be made dehnite, I submit, by knowint: to what extent the Hud.son's Bay Compan\ entitled to that territory. 54 Wff' KXTEXr OK THE HUDSON'S ,,vv COM^ANv's Tr.UUTonrA. ORAXT. The Lord Chanckllor Hnf if u heen ceded to or was not in tl.o ..c',n naf i.Tnf ^™"*' '•^^^«''.>'tl'"'g ^vhicl. l.ad not it material whether it was disputed l,v F, ''"'";; "ther European countries, is Is that question mat.'riariiere? "^"'^'^ "'' ^'"'tugal or any other nation ? France l.ca.ne the a;t;i;;;Wner .if 7\h::C:illZ ''""'^'' ""' ' ^^" ^'^"^^ ^'^^^ Lord Arerdare.— The TT'P-ifv- ,.f t-^ ^^-'J't'>iv. "restored" to the Kn,di 1 G ve ■„ Lr^ ^nd' '^'^^''- ] l'"""'^' '>^' ^''""gs being K,,,Wish C^nernnient ckin.ed al the n< , Tr ""'r^'" ^'^^^'"^' ^^at the Mr. MowAT.-The despatc e on hT f''""^ '^^'' ^'"^" cl'-ii'^ing. any special n.eanin,. to th.'^use of the t '', '^'"Y '^''' *'"^>^ '^''^ ""* ^"aeh was rather a m.ute? ot s.ntiu l^t an dp o d ." "-'^''^ '^'^"^ *'"' '^^^^'^'•' ^"'1 i* .Ise. The correspondence sliewTtlmt JeaX i '" •"^'''"'"""S '^ than anything There are several consi.lcrations whirl, T fi • i take, i think I can shew vcm, f r UM , thV aU H " '''"'*'"*^ "'' '" ''"' ^''«^ ^^ territory around Hudson's'Hay d h ., r '""",''-^'' ""'^^I'*^ «°'»'^ "t" ^^'e and .lid possess it, an.l did owr^it a J ; l"^, , ': ^-^'"1' /''"' ^''^'^ '''^^ '"^'^"in' it, not .natter of dispute hetvn>cn J n.^T d , ' ' r,\'^^' ^''''■'' ''-^^' ^^ ^l^"^^'a« th.. words to which vour L.U, ship n' ?""•; ^ ''"' ^ ^ould subn.it that mtende.1 hy parlia.nent to ).,. eoXe ,%.'•' '■'.^'f'r^'' •'''^''^'>' ^'^'"^ Co.upai.y owned. <^o-innt.l to te.ritory which the Hu.Lson's Bay H.Z!"b:;\,!^,:::^^:7^,^^-1;J'/'--. Quebec ^ It was because the >'elon...,l to itl.e..., ^a... .1 fZ thet "Tv^'"'"""* '''".^'" the territo.y which terntory i., Quebec. l?ut if the tr nis of t ir"' "''T' V ^''■'' '"«''"'^"^' -«^^' terr.to.-y than thov ha.I app,-on,-iate o. li " "' '""' '''''" them a larger grant were such that it nd.d ^ov;^^^^ owners of~if the terms of the w!d, 1, was ce.led to Kngla. d n iVes v F ^ ' "l?' ^''"''S'"^ ^'^ '^^'•■'^'»'«. ^i"'! E.i^la,.dtl.>.oHghF.vmce--t Uen-kmv u^ l^mnce, the title to which came to from Quebec, ami the nason t; "th ,^" Toui?''' Tl '"^" '-en exclu.led was a lyason for exclu.ling ter.-itorv in wriehSr '^ have applied. There H.ulson's Bay Compar.v, b,Tt the e uL m? « T '''^\^''''^rnnmM under the th.Hudson^sBay Con.w,yuruL Xe c ;rr^^ ^'"' f"''' '"^"'^ ^^^''torv which and therefore f say that thrwonlssho, ?''"'''.''''' "" J"ri^"i''tion over; owned by the H.,dson's Bav (\'. pan e.. hT ""T'V ^ '"^'«"'"S- territory' f!i""r title: te.nto.-y which wa^E^ J V K^^^"■''''^ they h,.,d perfected within the cessi<,n ..nerrito 3. nTade'^W'S I.^f' '''T^'^' """^"^ "^>^ ««'"« VHs ce.led by Fra..ce to Engl xn ud.a ev /r L ' il '^"T '" ^"^^^"^^- Whatever to It ar,.)se f.^o.n that cession was not to b^,. . '"''' ^ '"'"^'"» ^''^^ the title ex.%de.l unde.. those wo.'d^V.Mn t e new 1> ' ' ''^ as t,rritory which was to be Lord ABERDARE.--Y0, cm" e hTf ™^''"ff ."' '^r'^*^^'' occupied, in the se..se in Xch y u i„ ,fc thr"'^"' """ '''"* ''^' ""*^ ^^tually ai>plicab!;to"ud.casesZ.^^gJt!:dt^ur""''^' ""occupied, a,.d by the laws V my nation. The .liscCe^'r. is StifH^^ of making his title go.>d by oration S " '1'" "™^t ^"''' *"^' t'^^' P>""««' Bay Ooa.p.nv we.'e n.,t ^the iC ir^f "'' °"' '"^' '" ^^''^ ^'^'^^^ <^''^ Hudsou',s Manitoba ,.ow co.npri.ses. The c^l^: T,, ''^'^T "^ '^"■>' ''''^'''•y ^^ich i-^ted this terriU whichi n^^^^isp "^'i^r^:!;:;;^ ^'"i'; ^^^"*^ ^'1 * Th T — ~P ■ ~ J- II' _1_ '■ '^""trary entered 55 AKOl'MENT OF ATTORVEY-GBNERAL OF ONTARIO rr (H'KSTiOX OK norNDAUV into the country, erected forts and po.sls, and in this way, and hy its traders au(i trading coiiipanit^s, had as effectual an occupation as the circnnistnnccs permitted. Lord Aherdake.— Up to what time do you go on to say the Hudson's Bay Company never penetrated ? Mr. MowAT.—They never penetrated until long after 1774. What toolv place was this :— After the cession of 1763 the French abandoned the country. It had been ceded to England. The French posts were under the com- mand of French officers genernlly, and they gave uj* those posts, some of them wheu they^ were demanded, and others they abandoned without ;* demand. Their Canadian engages, however, with many French and (Janadiau gentlemen of good family, remained behind in the settlements that had been formed, and continued, in a certain degree, to prosecute the fur trade. Then the English people from Canada and the other Provinces went into this territory, and began tra('ing with the Indians, and re-established some of the J-rench forts, built others, and occupied the territorv even in a fuller way than the 1- rench themselves had done ; and it was not until the efJect of all this was verv much felt l)y the Hudson's Bay Company, that they entered into this territoiT at all, f)r sent any of their servants or employees into it The English traders began to form companies, and there was also trading by individuals; but ultimately they were all united into a coujpany called the North-West Company, whose operations vyere very extensive. Tlien the Hurf-t«'mlt'i nresent century. So that For iVo v .'i- thev'T T'' ''.""'^ >^^cently-.durinfer the joMhep.,ose of settlement, an.l^,n,r .JIT ;j;:L"£,:irof J^^^^^H::: autho;5;ie!;;'S r w^,hlt^'[;;:;ria;::f,;;;i tvr s^t^^^'"^- ' ^'=^"''^' "-^- *^- ..ot to betreate.1 now as helon n-' to t^^^^^^^ ''"'- '" ^^''"- ^"'^ ^'^'^^ ^f^''^ '^>"1 *« Ihe LOKD CHANCKLl,()|{-_,Sim>lvfh«f 1 .1 Huestion we have to consi-ha- 1 e . ^s whai T'^r "'"' "'^'^" ,^he ,,uestion. The Cana-la, as defined bv the Acts f Varlilm n. ^' ^, '"'■;' ""'J,^ '^t the boundary of Mr. Mow.^T.-What I sub mi/i Vf , """'^ .*'"' ^ "'^'^^>' "^ ^788. the boundarv of Q..cZ- is o "xt;,;! M T ''? '^' '^'' °^' I^^'-li'^'"ent .s.ys that Hay (Company, that means effectualy.rLted o'VlV';"''^.'' */' *'"^ f^"''^""'« territory which the charter .mder tl e ^ ,n V '^ """1^"" '^ ^^'^V T'onipanv- the Hudson's Bay fornpanv cannot e^ 'T:' ''^^^ '''^' ^'^'^'^^ <^*' ^-^^'^'''g i" the statute is possible.' t'l; not wha loo '""' ^''f •■"'>', '^^^^'^ ^^^^^ of construing ."ore va,ue thin are to bo fo d fanv T""?' ^^^''I'Vay have been usedi those wonls is Was the ^r^" «• "tu P 'IS f-''^''-'-^ what the effect of territory the title to whielf pal'^ i u'- ^J th . "f ?o ^T' ' ^^'^'^^ '« ^^e bear upon the point. L^nd^^tliTs charier n f P' ' '^" ^''^'■^t' C""^i'^^''ations o.)m,..,ny chose to ap,,,-om ate ami u ,'. .r'"^'"'^'' '-'^"^'"^ ^'^^^1'^ what the There his been no cali t fat I have Iw^ M ^ /^ sovereignty of for the nation, case-in which to any of rese cS: ch- er ■ 'l,' ' , f' ^'''^^"^^'.--^ J'^v« heard of no which the grantees then^seivJs ^1 ' i't^i '.^f ''}''' ''^' r'"" ^'^^'°"'^ ^^^'•'•'^•"7 |n dealing with the territor y .'n .^^ViV h:m''ThT, , ' ^^-- "f-'' «>nsidere' territory, territory, the general effe k \ ' Hh 1 ■rr''"^'[,'^-""''' ^''^''^'"'^ ««^-^''-i"y the .sanle generafwords '.^^nedl't^r'S^,;*; !!';;, ^-"^ that, .u.twithstanding the veying anythin<' beyond ul,^^f n, "^ we.e not to be considered as really eon- •^ttectually grant certamtenSy' f m , e n n 'iM '";'•" ""^' ^'''^ charter'did not of ii-nitinglhe territory of t^^Hf ud ^V aV' ' " '" T'^'T' ^"^ ^'"^ P"'P««- granted. "^ "it. nu(tson s l^y <- ompany to what w,.s etilMtually Mr. MowAT.— Hut nvp wo fM 1 < 1 II Hudson s Hay charter. at the instance of L "onu a.v / .'""'^ '" '^^ •'""'.• ^ '^ ''^ ^ "'"P prepared ipH't's Land.* f"^^'^"'Pany,to .shew the territories elain.ed by them a,s Rupert's Land.* 67 AROKMK.VTOF AmmNKV-.^EXEKAL Oh" r.XTARIO r. grESTIOX OF HoUNDAKY : thJ'hnnl' l"'"^ i'lea you are mg' ''""^^'.^^^'•'"^^ ''■^>}^ '"i^^ht or ,.u.ht not have been the legal lights ui the Hudson s Bay (^mpany if they had been contested. treat th';. tl'^H^^rrrr r"'' ^'''t^^ find a great many more maps which treat the temtory which is now Manitoba, as being Canada You will find oer- .ar-t.nmHpsde.enbingitinthatway for one in which it is eallell r";;Ss SOP It ''""? (>H/N'<'Ei;'-OR._If we have aTiy ma), of ar.y antiquitv, I do not ee why we should not look at it. I ' '"'^l*'^ ^^'^"'^^ «''*^^^ sr.,nething wl-ioh'was ahM;::i'\>ni^h^fa::ont"'""''"" '^' *^" ^"'^^^"'^ ^^^>^ ''-"p-^- - ^^^--' ...r.^n^'f" ^,^^^"'-^''' -f '•«l''''^'.y tl>at may be stating the ease too stron.>-ly. What I ;;;;;3,*;;ij;:::?:.r,!'o,!S;:t;;:,'£,^r- '" ' -■" '- - '^" ll.e 1 OKI. ( HANOKLLOR.- -TlKit is another proposition. .„ili u) ' *"'''V' ->''''"■ '"■'■ ^^'''■•^■"' ^ ^■'''"'^ it ^^'i'l ^*e convenient if vour Ix)rdshins tZ "1 1 *V ''r"' ^""'^' P''''^^'"^*'^ ^^'^^^^^ t^'^ «^'i'>^"«- i'^ a« f"' thin natter ^ -hat trdonf uml'r 7 "'"' 'V^ ""?'""'' ' ^^P^''^^^"''" ^^^ *'- -n-l«-tion of VnT,-;!^ 11 , ^''■■"'- "'^ charters referring to the newlv discovere.l Ame.ica narticularly re.pnre a construction of that kind, but I ur.ders amTt In hat ,.s tf.e general rule in regard to all the old grants-hat wlmt was p I !^ a^e!;;:!^;" '"'"""•'^' '"'^*^'''^' '" ''^tennining what they are to bre^lSlSe;! '^esJZl^lA!!':^:!::':^"''^^'''^'^''^ ^^^y Con.pany pos- the i.? nf ^'VCr ; ' *"!'• *^''? •'■''"' L'^'-fJ^hiP'^ ^vill consider how far they Ld tion 5^ro ' L'"''' '"- ^''^^ "t »"■ ^'"i" to sar that the land and territories m, tion were effectually oranted or not und.'r tliose words I tliinlc vnn. T. i on co„side,atited by snch ^ettlemeTs ^nd to ,S'- '" r?"T °^ ""^^' -'"<='' --« "«ve.- aforesaid English adventurers undertook Hull '" '- '"''ospitable country, before the Aii*Mi, inv Lords at n^d-p ^kn i *i • to Mr. Dobbs,' of Janua.v UilX' h, T- ".'""■""'"™ti<'-'n fro>n Captain Middleton trade, and^'^ttnug thl^rurt!t"rii^ru'. 'r^ "^ ''^>''"" °P«» the Hudson's Bav and though I urn; agree witi y^ tt e^'J ,C those greut rivers which run into the bay, such a settlement (could k be nmdJbotlf'o^^^^^^^^ ?"^''^ ^'''"'^ ^«^"^« ^'"^ cation with the Mississippi, vet I must deiw ''•''" ^^^ the cutting olF communi- jabhs upon many account^ for I ca ot t ^ who'"-' '''"" n i''",' '^ '' altogether impracti- be willing or able to undergo the fati^u l of tr l"" '■" n' '^'"' P*'°P'« «no"gh that would encouragement would be nutfirient to'^nakn ,1 In ?" ''V • '^^'''''"" '^'i'nates, or what on every side ; no Europeans ciu i un e't sth hTT "' "'^^ "'^'' ^''^"^'^'•«"« ^"'^■"•^^ the English trade, who are inured o it am . 'l "/" '''' ^^"'^ ^''■""'^'' ^^^^t intercept desLoh), for they endure fatigue jus ^he 1" ''"^' "'•'"' r"^l--"nners (or courevr, have been mixed and internmSd for two or H ""'*'' ^"*"'^"^' "'^^ "'>«'" they rivers you mention, none of them are nw.V.1,1 T "'' /""''" «''"«r'^tions. As to the they carry but t«o men, a, d h y arfo3 \ ""'^ "" ''"* ^^"""''^' ^» ^""^" ^^nt fourth part of the way, by relj ^'watll s T "?, "^''^"'' ^^^••"''g''^ "^^'-'y the Out of 120 n.en and olhcers thelrp ^l^'h^ve [n1,> 'T ''"'" '"""^ '^'^ ''•"'■>'' venturmg in one of those canoes they ar s^, ..n. b"y, not live are c.tpable of our people have been .'0 vears and upwards tlX Ld'v ^'^ ""^ '^T" ''''""■ ^^"^ °'" manage a canoe ; so ther^ would be Tll^sp^^^ing ^to^e'tirat'tv- " ^'"'^"^ '^"''"■^*' '^ .Sir MONTAGUK SMITH.-But after all what is this ^ 'fhe L ''"'^^r"^ ''^ ^" historical kate'uient. ia which tJi^^'HuS^B^^^nf ;::S;!rf."tr' '" ^''^P-^^'t^-^the manner to get furs into the interior "dh" 'ce -t ^in n '"'• ^^'^^ ""'''' *^ '''''^ »'t,nter.s «hili saggS ^ '"' ""' ■"""'^ '"™ '""' "■« """i"'- i" the way your L„rd- i.. thliLerir "T"'™-'''' ■'"'" I""""' «" ""J- 'i-"Sl.t »„ve„ient, whe.he,. Mr. Mi)w.\ V — ;V.'.',. erect^'b./theufS:; m2.'"' "' ^'"^ '^"^'''"^^ ""'^ f^'^^- "P I -e a fort >.a.if tut'!H:i;e;:Irt£l&i:!:;^'^^.:ri:^r 'T ''"'^ r^ ""r ^^- Hway from the .shores of the Bay *'"''^' ''"•' ^h*'^' *h«» had pn^;\,i;:''p::l^r -*- to the b.V this charte,- to .n-ant L e n arv t^ ri nr' 'v^-^f ""% ,^' ^^^ "^'^ "^tended ii'iri.m^. ^^ '-^ teuitory which would interfere with other The Lou. CHA^CEL^OK.-^Vhat was already settled is expressly excluded/ 59 i i ARGUMENT OF ArrOKNKV-OENEKAL OK ONTARIO ,v yUESTION OF BOUNDARY. w .« !f.' MowAT.-Am I limika to tl.at view ..f the rnutt-r, that it was only what w IS then pos,s.^s.so' '-^----'^ ^'-t ^^ ^-nted what it The LoKi, Chanc Ki,LOH.-What is an etik-tual j^rant ? Mr. AfouAT.— A grant so as to convey a title witi>in 1^;"*" <^HANCEr,M,u.-'rbere is nothing, about title. It is a grant of land itn.n certain bounds, f thmk you are travelling into a ..uestion which has httle relevai.cy to the matter in hand, nau.ely, whtthcr or not th eyelid hose grftnt^.i: *^''''''' -^^'^ ^^*^« ^^"^ considering those words as meaning effectually wordr''4?t'w^uld'Tr''-~'^^^' ?"rf "'*^"" ^^^* ^'^''^ "'^'^'^ *« ^^™"^^ary terri'!;y !^S;:i!^"'''"' *'' "'^'^ '""' '' '^ ^"^^^"^"^'^ ""'^-t-" how far the The Lord CHANri.:i,i,oR.~The .,ue.stion of fact, investigate by all means- Let bv ?.;■;; " '"f "'■ '" -'"^ '••J"'^'"^^- -^ *•-- investigation^ of the q estion of ac by entering into questions of law, and whether they were c.„iltv of defauU Mr'iwr'-NoJr^"' which would be necessary to ciinplete'their tittle _ Mr. MowAl.— ^othlng could be more uncertain than to say that all territory' IS conveyed " upon the confines ' of a country. What does tlmt mean ^ Do s?t mean ten miles, fifty m les, or a hundred mil^s, or what does it mean " " fh.^.h ^^'^''''■7^ '"'T"' '"' ''^ter days the Hudson's Bay Company entered HrirSv^r'/ ^"""''•= ^"^' ' ^V^ *'^«y «"tered it throJgh Hudson's Hay, but afterwards tiom various parts of Canada Mr MowAT.— Yes They always entered it from the north at the time of the v««,. ^^"In ^."^:''f'^ '''•-■:-[« tJ'ere any reason to suppose that that which they in later years occupied as their Hudson's Bay territory, and which extended t^tiirsruth much farther than vou would admit, ought not to be considered as Hudson'. Bay territory now tor the purpose of this ar.niment ? nuuson s m} of m3 ITVm T i"'"^- ' Tr"'^'"..*' '^''^''''- "'y Lord. After the cession llhJ ^ , ^ "''P^'. S^"'"^' ^^'^'^ ''■"™ tJi« Province of Canada and the erri or^Tr"'' T'-'^^'t' t''T^ ,*^ ''^' *« «^* ^'^^''^ ^^ ^o ungrante ' En d 'h the i.aaon wh), after a time, there was no dispute, was that the Hudson's Bav Company took u. as partners, all other person.s who were en 60 they did they ha( 18:21, tlu posts wli l-.r( matle gvn of Canad Mr. Lord Mr. any clain: The I Mr. ; Lord taking ph Mr. A Sir R Mr. 1 actively, Tlie I of Canada Mr. M dian compt ested. An the Imperii Bay Compj The L( Mr. M( Joint Appe C^uobec, I7t the Earl of (Toveriunenl shew that c "Sin,-' *^'ott)l)l|ll|fiilir; luade iijioii iji about to utuh ship a iiiilitai is to rnnsist o placiHi under ' liiliitioii of ili ♦'i.'iplovnifiit o ofSHkirk. 1 coiiiiuaiid in ar mpto;/h and r which Miay in-!,' " |{y sueli tioiis, t)ut actii tlie countenanc The North- VV Crown for tht Cuinpauy iiad that they wer EXTKNT OK TIIK MUDSOx's luv (-'OMIMNYS TEHRITOm.U, (iHANT. tliey (lid liuvv at a late Dcrinil i they had these at tlu. in.e il!';!!;; ;::'■;;^''"•■^'^ ^^'"-"".^'I'ont that territory, and 1821, tlje two eompanie. unit u » T,:"'^^'^'' «">-"• •^ub.se,uonfly, in posts wh.oh hefure had l>ek,ni.o,l to cVc" Sn' "''^ '"^ *''" ^'"'^' '^"'i held the niade grants to Lord"selkirk. anTdaimS'thil"' '''''''" ^^"^ ^'^'P^'^Y would have of (Janada extended to the L^ke '.f the Woo^ ' "•' "' '^'''' '^^^'"- '^ ^^e li.nitH Mr Mou'AT.-Itvvasindisp.^te. I^ord AliEitUAliK.— Was the disnn*.. f ii i Mr. MowAT.-:yes ■ so f^Irthat f i J ,r-''. "'' ^'^"^ ^'"'■'^'•'-'*'^' ■ any claim he had nn.ler his -n-ant ^ Ho eoui 1 m L '' *"" ""'f'" *^' ^'^'^ cu.pany Mr. M,>WAT._Ye,s. " ^'''^ ''''''i'""y ^ "t" t^'e Hndson's Bay Company / taki,^"l^:^ti;!:t tl!^ tl^t state of things was Mr. MowAT.— I think T ,.».. 1 '''i"'ioa ai. tliat tune ' Sir RoBKUT C.u,u;"^^T mt^I 7""' ^'"■''^'^''' '^ ^^■'^^ -■ . Mr. MowAT..-.Yes; disp ted ..^thf ?'" ""^'^^''l'^'''^'^^^" i" hut disputed ' actively. ' ^""" ^he mon.ent jt wft..s known; di.Sputed '' 'r£irr"""~"''' ^'''" ^ '''^ ' '"'"'^' ''" ''' ^^^^^"'"^-^ diar. companTranifLdt.s?^^^^^^ '-^'^'I hy Che Cana- ested. And the claim of the udson's fk O-'." '""'"'" ^^^""''^'^'^ ^^•'^•'' ""^^ inter- th« Imperial Govern.nent : they treatel tS cC 'l'"'^ T^V'"^ acqniesced in hy Bay Con,pany as stan.ling there . n e u a) v a B HtT'; "T '"" '"'"^ ^^'^ ""''^-'"'^ Mr. Mo WAT. — For evnrmilo 1 ^ "-"f^' Joita Appendix, ThLr^j'n" ^Hd" Snf ("n/'^'f 'H;. *" '^^"'^ ^^>^ "^ ^1- guebec 17th April, 1S16. It is on^ cAan^^^ff'' ^''^^''- '^"'i i^^ ''"ted at the Earl <,f Selkirk's chin, was aryim/Z «•,',:''",'"'''''' ^"''''^^^ -^''^'^^ ^''^t Oovernment. Some of them .m fnS ' 'fl """'i'''''^''^'^ >" on the part of the shew that clearly enough ''' "'" """' '^^"^''■^ '^'> ^''^' •^u'lject. but they al^ r'omnm.!din;; '^^nl^^^t'onile' w'^'lllll^'?'*''""'"^^ ^" ^'"' Administrator in Chief and ";ade upon lu.s life i„ u.e oour ^ iot;;: uH" ^' h' ^"V"/."' ^"^' ^'^ten.pt.s n.a/^e about to undertake, Hin Excll-nov as T'^ L ' " \'"' '"^'"'^ '••"""^" ^'^'ioh L il •ship a ualita.y ^-uanl for his ,.. rsoi p '„ L", .' T'"? ^"™. ^'^''«-' '" «rant lu« J,ord .s to .onsust of two ser,eant.s 'and tw fv e J^ S'tllf '"^ ."" p "'■'• ^'"-^ P^'^^ -^'S' >laml u.uler your conmian-l, and I an. <.n !, 1 ? '"' ^"'«"»w'^ !>« M.-uron i, .mployn.ent of thi.s for.. L any oHu' ™ " t^^^ ^'^ fo,-... against \h„ of SHk.rk. You a.e parti,Mdarly ordered ,H?,t„„. ^' "'T' P'-^^^ction of the E.. 1 comnmndinanydi,.p„tes which n.ayto. JeL^-.r f^^^^ •^T'^t^,,'"' /'" '"^••*^- "-'«»• vou emplour, and those of th. NnrthWisI (Jo „nr„? "^'^ of ,S.,lk.rk and hi.s «a,y,n//./and which n.Bv arise out or .such ,lisputes ^ ^' °' '" '"'"' ''">' 1"^^' °'- «''"re in any affly the countenan..e, Hupport anii protection ^11,^ I '" •"^^'""'^ «f ^''^ "over-.-nent, to The xNorth-Wcst Con,pany was insi til th ,/" ' '" '" '"''"' ^'"'"■" Crown for the general bel^ef^r o" i^itKv'^"!.^te.''''''''rV''"r'^ ^'^ *^^ B'-'ti^I^ tur-w had no partieuJar rights in' it '" ' ' ' that they were exclusive ownens. flmiD,, V *l -""'P""y was ULSISting J^'ow], tortheneneral benefit „f HritU, .....^,.... , , v. f" ". - "-"'^r I he harl of Mk.rk was contending 61 AnniTMENT OK ATTORNEV-fiENEHAL OK ONTAiaO /v (..UKSTION OK Hol N1>AHV T may also refer your f.or.lsliips to the (•(.rrespondenee botwci-n the IinporinI and Uumdian authorities, cominoncinj,' at p. 142 ot tla- Ontario Appendix.* llio Lord Ci(AN-CELi.ou.— What we xvant to know is whetlier when this arose, and those disputes existed, tlie Oovernn.ent of Canada alle good evidence of what was originally granted to them by the charter, and understood to be crranttd to tiiem by the charter. Mr. MowAT.— Anyone might go in in that way after 1774. All Her Maiest\'s subjects did go m. •' ■ Lord AiiKRDARK.— That is no proof they had a right to go in. Mr. Mow AT. —Your Lordship is referring to the mere fact of possession and what it might shew [t was not by virtue of the charier the Company went in. _i hey, having gone there, in common with others of Her Majesty's subjects, without inte.rireiice by anybody, ami exercising no more riohts'than the other subject^ 01 1-ier Majesty exercised, would not be lield— Lord .\KERDARR.-lt Was the exercise of a riglit, and a very strong exercise, whem riglity or wrongly, they granted the large territory to the Earl of Selkirk HI l»i4. Ihey were generally presided over by men of 'high position. 2 9 pp 1 4 ; M n .^'Vi "^^ 1H1.V1«19, fr-.m rarliam..nury l.,,perH, Imp, Ho. CoL 181^ No iiv, pp. 1, 4, 4.. oh, M, bJ, a, ,2 ; Ki-turn, Imp. Ho. Coins. Jun« 24, IHli), pp. 179, 280, 284, 285, 286. 62 Mr. Mo was, that th other gi'ounc uf internatio banks and t( Lord A occupied onl Mr. Mo\' know of on v in the charte Iiiit the comp taking that g of ilo How, af ( 'barters anil against tl iiuii'Hnite Will suspicion, and ( "on)j)any we: wlii'.'li they h were occupyi: e-xchided froni Sir MoVT other Christia argument. Mr. .Mow; tlie whole tfrr toiy for half a have got any s "lidtever. It uf u|tvt''"Ki beg) terriur 'Soi, for tlie SI Biiy ('oni{ stiniony now. Lord A I! Eli to the (iovernoi in dealing with hhuA must be ^ sarily to imply thinks it nece.ssj oxeniuted from i .Mr. MoAVAT not want to com well as the nortl the north, becau.'- •^"v Company it an a,stronomical too. Alaska is d "lb) the hands ot Had it was fouji. ''H'OHITV <,K THE KUKNcH l-O.SSESMON OL THE NOKTII-WKST. WH ot V bank lieir banks were other ''niund f were ncciipyin.y for half a ee,Aury an.l nj ll, ' t f H. I^.l^^'^ 'c ' "' '"' ^^■'"^''' ^^■'■- S: .""r::^."te---' - ^^ '-e ,0,,; •. ? he' .i; i:?;';;^ i;-';;; ;;^ ^- not occupvin.. ther;:'n!' v 'l '''"'^'^''.^^^ '^"?^' ^''^t l.»'"^, uRi, ,„,.|\ lie .soiHethitiiT in that. notwant to contenrl for anvthin" iiioro ,-f «... . ■ x- "--««. x uo ^vell as the north, [t i.s v/r 1 tu/t 1 7 f ^^''^ ''^ -^varde<^ on the west a,^ tlH^ north, because an ust,x.no\n ea o il e ' -emelv "'^ ''^^'" ""^ ^^•"^'-'•- 'i»^' <^'' Bay ( ou.pany itself, iu ,so,„e discu.. ns dee am •.?•;"'"-"''"', , ^l^' ^^^^'^^'^^''^ anastrononHcallineons,,ehlar,eton.i;o.:'^'f;';:rvo;;^::^^ 63 Hu< pjonce Kay Company, AIUJIJMKNT l)K AlTOCNKV-flESEHAI 'I '>M'\Ulii vi'KsriDN III nofxDAin LICENSES OF t Kif a t.Mi.jMjrury urmiigeiiient liml to l.o iiiado. Il is imporbaMf w,. slioul.l h th.' nutuml 1. 01 1 II. I i.ry wliioli tl,e awani i/ives iis. i^' w can .-si.il.lisl, to thu s.u tii'tion ot your Lminliips Mint we arc .-niitlod to tlmt or umiv, VVith r.t(Mvii<'.. to your Lonlsliip's ol..s line UrosoN's h.w (.Jumi-a.w loiNii.v, '.Til Ukik.miiku, IH:,'!. AMI) I UK .N'..|trH\VK.ST C ;<1.>II'AM, (JKOHl.K H. (iKOIlMC THK KC IJffollllfl (■ T. Faith. I KxtiiK'ts. I II' iJnicf of IJofl, (.f till, iriiit,.,! Kiiiif,),,,,! ■f <;i-.i.l liiitii ;incl Ir.'laiii), Kin,-, iim-, irreiaiiiK : iciiiid y.'.ir of our rc'^ii, intituled, • all til wh -.: !A:!.;.,- |,fe:ients hIiuII Tiadi S' -?'■'*'''• ''*^^^ "•"' ■■•■'«•'• '"titule'l, "An Act fur munlatinif th- K-n i.r;i:;;;;:;,::;::i ™;,i;;';,::*,;;i;,;:-i'S;.riK.';St.i» "•"" ^ - - ••■''■«'^"'-»:: Irwe ■riLMf,''lTl''''.""" ^^■;'.- .'"'"'^V^'V'r"'V'^ «M«'>||I■a^'in^,• tho naid trade and .mnndyini; thi. evils wliiW, audWjlli.,nM'.;,,l,vray.Si,,K,„Nr;i^;::;irand^K^ th ■ 111 lia'iH in !ill -iioh |.:irt-i of Xoith Vmerioa t . th- imrthwur.! kiid w--^t„.aH of A,, 1 , ,a * ' V'*'-""^ "'"" h«h.,,m, t. tl,. IJnitoi St.U.sof Air-rica a. nhall not for,,Mi:;[ o '1 Vo hC ^t, ^i N (.'C;"" or of .uiy Ian J. or ti.rnt^.n,.a,.l,„u,„i, to th- said CFuiti-d Statin of ,\.„«fic-a, or t. ain K iro . .an J, v^m i, ,''' tl, fM I, .r I .1 V. ? ^ ';'"'r'"^' ?"''.'': '^■•••'-•'1 Kllic.., jointly, thasol,. and excUniv,. privdiL-. r t;^^!'^:::;^::[:i^;;:::^Pi:^:^^^^^^ --'-'^ -.. the mdians m an l,u „!;.«„; . .v,'^"'' ^^''^ '•" .''«'•';''>' 1 •<•'»••'' fl'iit nothing; in thi. imr Cr.mt cmtuinHd sh.all Im derni-d ,„• cn.HuH f^ authonz. thf Htil (,ov,..r„ ,r and Oon.pany, or William M'lJdliv.ay, ,Si,non ^I^ iiU.vray d C Iw' d I I .,■ u"k:j suit':;f A^-nea wiL^I vT :^^r t;r: aid';r..ir";i;;;vid:nl;±'\,':!. "'V'^'^r'^ ';' '■' nr-n at ....ir Coijcl at Carh.ui Ho;,.-,o, th. .Ml. day of De^ceinber, l«il, in the .second year of our re.gn. By Hi.s Majesty's command, 64 Bathuiwi tlivs- |.r<'«eiitK jfive, exclusive privilege, IndiaiH in all .such LICENSES OF EXOl.USiVE TRAD^ To fr H rn AVn v w ■ • "• ^^^ N. W CO. OF MOXTRKAI., 1821, 1838. trraiite I uu thi; 5fch of Dfoeiiibor 1S'>1 «.i,„„ „ii' *v. wn! body, it beinj? a powerful n'ne ni il , o " , "r' ^°"'I'*""'-^, '"»tt"J i« a ;: n- ai. .xclusiv.. right L. trade ov... tWo w , f "P! "^'*'"» ^V^' """"^^ *° "'^i"" K^lfn^' -nsidcrable time utt-rwanl. Tho "w cc ,1. ' "^ juns.hction arose for a will ,ee an answer t,. M^^SCvd 'f ^ ^ ^"/Hf b'T 'V^T^ '''' ^''^^^ >''>" give ui,, and it i.s givi„g up nc.t a lie.'nso but a .tu. •? ""^".^ ^''"^ '"■^' '■•'^^•'>' *« "I, communicating thi, a„ent on th« 'V'"'^''^^ ^-mtovy, because it says f l.owovei. right to notic, that tho tr rritor" , „? T ""J«on'« Bay Company, it is, hrst denired by the Governuiont of ( anada n,u , ', p i ^"^ *^'*' ""^^ P'obably be (hstriots, are not only valuable to the Hurlaon'- H. .-.», '' ' """^ Snakatchewan the fur trade, hut thnt they are also of peculiar vll^t?;!"^ "" "'*'''""' ^'^•' ''^''•y"'^^ "" source from -vhich the company's annual'«toc"of;ro;•iio;^•s^T;rn ^- '" ''""« '''' °"'^ All that shewH they claimed a territoiiftl ri I f i" in.poi-tance to tlieir surre.uler. The Re ufvl 'T\ ^ f '"'i"'""'''' '^"'^ attached both tar beyond tha n.^gion. '' ■""' ^ask.tehewan districts are Mr. MowAT.-My oX.servation referred to Vineom-r.,'. r i . Lord AHERDAHE.-! ad.oit that I was .ur. ^3 i' IT^' nred not b..- n.-ntioned ; but we cu n^ iiow o fl ^ ^r"^^"^*^'"''' ^''^''^n'J 8a.skatchowandistricts, which are far w of A1 . . ' '^f i^ner, and to the M.rivale one sees the Hudson^ Bay auallv t .'a t H "/ '"' ' ^''""' ^''" '«"'•'■ "^ ^^^ ' Mr. Mow AT.— Yes. ^ '-onipany treat tliut as part of th...Jr territory. *Tlln new Liu. nw, ciii.rl 30th ATiv ISM i i • , " ^— '.' ' ^I'cw, know XTiod, atiil ■ -Villi whurean Hie> said i, "f the s.iid William the sai'l Governor in -oMsidoration tt.,.,„, an.| f.,r the liko ,.xd.,si^ - ..rivilege'ort'r'^dinKwiti NorthAm«-ica,orofanvlan.; r Irir ''''\^ America, as shall n„t form 1, t of v f^ "'" '^""'^ »»J th.'Si. |,r<«.;„tK Kive, j?rknt i"id Je r- t' , „ ^.^J' nevurtheless as hereinafter m iiti „ ,1 r'. '"^ '" ""y ;.vch„iv,. privilege ?:>. U.o ull^ J' ;f''f,rv .„rrf:"'''Vi'''* Company, and t ei 'tu ' ,,„-^';; «'« ,'1'- by In'liaMinall -^noh partH of ^^,rtV V eiL" ,.^1? fn-m the date of this .„ir ?ran ,,f ."r' ''' ""''-' '"'d ,ButWHdoh,.re{,ydeclaretUnr)frfJ •/;'•'•'''*''' '""">" ''■" '"n.inafter me Uonl)*''''^ "''''' ^''e »uth. ri.e the said '-'vernor' id o'^"^ ,^ '^,;;' "I"- *f^«"t ™nlained, shall 1 ..":',,, • , • ■ ; • f'cerfisfi any trade with the r^.L^T 'A' '"'^'"^ '"'•<=«*"*<"'«, or anv uersoiK In ,i, ; , ' ''"'i8tr\i.id to Mountains, to the prLce or vcL?"^ *^f" ""r'!'-^'"'' ^"ast of aLtVc^ . ?h w- '. ';'''''':iy'/'' «'^'"' 'r ^forfRaid territories to any exi.tfns , ohm^ ^''T^!"' province or province, or for anne^ini " '''"itories or constituting any mlT^l^^tT"'"'^^^^^^ •>• right of our' Imperial C^^^'Vy j"^'r"f '»'« ■^''loni^s, provmceor prounce« ; ' P'sernm..nt as to us maysetm n.eet. wkhin any 's ch""'^'"*^' "'' ,, .' ', ">-» "1 I'loMncex ; "J ■""■"' meet, within anv sii/,1, „ i "' ^ And wt! do hereby renHrvB f,. .,„ i, • ^ "'' Colony or 5 (b.) -_ •'• "'*''• is^'s". IMAGE EVALUATION TEST TARGET (MT-3) 4 ^/ ^\^ i< 1.0 I.I 11.25 ■ti|21 125 |«lii |22 !!■■ •luu U il.6 Photograpiiic Sciences Corporation 23 WeST MAIN STMIT WIBSTER.N.Y. 14SS0 (716)872-4503 '^ AUfJUMKNT OK ATTOUNEY-dKNKUAL t)V ONTAHIO ri> QL'ESTloN MF li»)(NI>Aln Lord Abekdahk. — That is enough for me; that goes far beyoml the teriit.,iv granti'fl to Lord Si ilk irk. Sir RonEUT (.'oi,LIEn — It ijoes further to thi- west. Lord AUKRDARE. Thorefon- the Colonial Office at that time must liav, admitted that they had territorial riglits in this countiy. Ml. Mow AT.— but this i,9 a hitter from the Comiiany to the Colonial Sec- retary. Lord Abeiuuke. — To the Colonial Secretar}' in an.swer to hi.s letter, in wliir'L he HU^'gests that there should he certain surrenders. The TjOIU) (.."hanoei.i,o]{. — What is of tnore importance is Mr. Mei-ivale's iwii letter, to which this i.s a reply, at page 222, in which he says, in the sevontL paragraph : " It is stated in the report" — the report that is referred to is that of a select com mittee of the House of ( 'ommons — " that the districtH likely to he required for early ocou|ia tiou are tliose on the lied River and Saskatchewan. If that should be the case, the por tion of territory thuf generally indicated should be rendered free for annexation \i, Canada." Lord Aherdxke. — Canada i.s there being treated as external to this counti\ The Lord CuANtElJAJR. -That is a report of a committee of the Hous,- i,r Commons, specially appointed to inipiire into this niattei-, and certainly not in the speeial interi.'sts of the Hud.son's Hay Company. Mr. Mow AT. — But, my Lords, would that mean anything more than that that was part of what was chiimed by the Hudson's Hay Company'! The Lord Chancellor. — It was certainly not at that time part of < 'anada Lord Arehdark, — It is treated as being external to Canada altogether. Mr. Mow AT.— It would seem to be treated as being external to Canada but it is an observal on 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 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 thr 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 Aberdaue. — Over the whole territory? Mr. Mow AT. — Yes: " Her Majesty's Government have come to the conclusion that it would be impossible for them tb institute proceedings with a view to raise this question hefore a legal tribunal. without departing from those principles of equity by which their conduct ought to '» 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" as^uni^ that a very large portion of the territory at any rate was their due. It won -i be very difficult to hold that that was to restrict them to a very small portiin indeed — the immediate neighbourhood of their own trading forts. Mr. Mow AT.- -At all events, it seems clear., takiru' the whole of the crirrps- pondence, that the territorial rights of the company did not go down to wha' is in dispute betwe^ Manitoba and ourselves, which is 700 miles from the R\v 66 gUESTIOX OF TITLE OK VVVKR CANADA To TMK NOIl TH-WEST. The l.oun Cha vcei lor.-U is very important, Locanso the ReJ RIvor actu- ally tlowH throu^rh Manitoba nito Lake Wiiuiip..., ,l,,e^ not it? Mr. MowAT. — Yes. '^' Lor.1 ABE.u.AKE.--An.l the Saskatchewan run. still further west, f 2 ? fr' < f^^; ^•'r''«"-^^«- If at that tin.e the Reu River territory was ^M M,w !'•.!'• '"^'^'■•"'"'•l «f V'' '" ?"''"^" ^'"■"' ^'"^^ Manitoba was not. Mr. MoWAi.-l think vour Lord.sh.p will iind that lookin-at the whole of the correspondenoe---wh.oh wa.s not mt-nde.l on the part of the British (;o^ern- uient to a.lmit \he n^ht uf the Hu.lson'.s Bay t^on.pnnv. altho.iirh so.aetini.s expressions may be found to imply such admis..io„ ,f you look at the^e ex-.re.ssions alone--lookmg at the wHole of the correspondence, 1 tliink your Lord aiips will come to a diHerent conclusion. ' Canadlr^^'""* ^'"*'^''^''^^'*— ^^^'^'^ ^^ not shew that they were not parts of Mr MowAT.-No. I do not think that it doe.s. I think, my Lord, that it 15 pretty clear-ami I think I omi .satisfy your Lord.ship of that before I close my argument~that wliatever was not Hudson's Ba\- territory was Canada 1 he Lord CjH VKCEX.LOu^If this part was not occupied by the Company, and therefore not to be deemed Hudson's Bay territory, still it seenis j.retty clear that even so late as 18.)8 they were not parts of Canada. Mr. MowAT.—There are expressions which imply that, but there are also other e.Kpre.ssions in the correspondence against that .ssumptioii Lord AHEHixutE.— K.xpressions which imply it, which were made after the whole controv-ersy had been fully raiseti, and with the view of proourincr the ce.ssion of lands not required by the Hudson's Bay Company froin Kngland to Canada Therefore they were expressions made with the wh^le view of the case tully before them. I think you may use the time between this an.l 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 C0LLIER.--It would save a good deal of time, and a good deal of trouble to yourself, if you did that. Mr MowAT.-I will read a sentence or two more from that very same despatch from the Colonial Secretary to the Governor-General : " With regard to the ([uestion of boundary, as distinguish- d fiom that of the validity of the charter. Her Majesty's Government are anxious to afford every facility towards its solution, a mode of accomplishing which is indicated in the correspondence, if such should be the desire of Canada. And so on. At that time Canada was claiming all this territory Lord Amrdare.— No. no ; I do not understand Canada as claimin'^ these territories. The Canadian settlers wished to go into the country, which w'as said to be very rich, and from which they were excluded by the Hudson's Bay (oinpany. 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 right 'that Canadian subjects should colonize. r s , f Mr. MowAT.—It was claimed on that ground I agree, but it was also claimed on tJie ground ot right at the same time. Both grounds are put forward The Tu^'^trl ^?^^''^ *^ ^^® position of Canada in the matter were .shortly" these • I he Hudson s Bay Company desired a renewal of its exclusive right of Vadinsr' Iheir existing license would expire in about a couple of years, and they wishS to know beforehand whether there was likely to be a renewal of this license which was over territory which did not belong to them under their charter So that having an exclusive right to territory which was theirs, and a right of exclusive 67 m| AROUMENTOK ArfOH.VEY-OKN'ElUL OK ONTVUIO ,v QUESTION OF ROUNDARV i.v trncl.> m the territory which was not theirs, prevented any di-spute ari.sin«, Lecaii the only vahic of either territory at that time was the trade. About two yar. hcforo thi- expiration ot tlio licmsu they apj.lied for its renewal. Then tho (loyernment h«re sent a despatch to tlie Uovernor-Ooncral infonnin« him of thi. and statinj^ that the government here intende.l to brin^r the who!.- question bef..r. a committee of the House ut Commons, in order that tlie position of the comi.am and all matters connecte.l with it. mi^dit be investijjated at the same timJ an,] mvitini,' the (.overnm..nt ot Canada t.) t^ike such cour.se as they iniuht tliirk propi^r. riien, what position .lid the Government of Canada take upon that 1 will refer your Lordships to a report of the Executive Council, dated 17tl, Januavy. l8o7, approved of by the Governor-General, in which tli^ claim is stat-,1 in this form : to the Pacific Oeein"^''"^ ^'^""^ '' '*'''"^'^ ^^"^ ^^^ ''^'**'"' ^"""''^"^y °^ <-'»"»'!'» "*'-"' '^ This is at page lt]5.* Th..n_ in the address of the Canadian Parliament to Her Majesty, IStl, August, I808, which will be found at page 22ot it is represented: . "7,hat the approaching termination of the License of Trade granted by your Majesty 8 Imperial Government to the Hudson's Lay Company over the Indian terri- tories a portion of which, ,n our humble opinion, Canada ha.s a Hght to claim as formin. a part of her territory, renders imperative the adoption of such measureB as may Kp mH^essary to give eSec-t to the rights of the Pravince, and presents a favourable opportu nity for ol^taining a final decision on the validity of the charter of the Company an,l the boundary of Canada on tho north and west." ^ ^ Then, in another Order in Council, dated 18th February, 18G4, printed at page 24b,,. it was declared that they claimed as part of Canada all the territory that was in the po.ssession of the Fivnch at the period of the cession in nCo" Lord AiiERDARP:.--That duos not mean that they were entitled to' claim alJ tliat to be n pare ot Canada whi(di was ceded to Englan ' " ]7Q',i Ml- MOW..VT.— Tile whole tenor of the corresponde: think .sliews -^hnt 1 contend for. Now, among.st other things, the Commis... ..n- of Cvown Lands .,f Canada, in whose Department the matter was, as long ago as l«57 mad. . report treating this territory us part of C^anada, and therefore us part of Gntarm His rejjort is at page KJS.iij ' Lord AHEUIJ.VUE.— Here again is this expression on page 1'2S, with referenc to the cession of the Red Kiver and Saskarehewan districts? ■ r.,.. "l*"''"^' ''^'-^. th«'-eady acquiescence of the Hudson's Bay Company in the pl.in proposed for meeting the requirements of the Cana.lian govornineut will be accepted .s fn Canada ° ''' '"'' °" ^"""^ "^ ^'''■"""'^' *"^ ^"«"^«''ip ^i^l^ their countryne.n That does not look like giving up Canadian territory .so much as giving up Inn.l which was not wanted for other purposes. >^ n i .Mr. AIowAT.— That is the way they chose to put it. The Hudson^s l!av Company chose to put it in that way. The Loud Cha vcei.lok.— In the long report which begins at pa^e 2 1.3 *» tlin e IS a recital, at page 21ti of a minute from the Governor in (Council, 'that no immediate charge should bo taken by Ca n.- ia o f any territory, in a form involvuiu * Order in Council, Canada, 17th January, 1857. Seas. Paj-ers, Can,. 1857 No 17 t JcurnaU, Leg. A,h., Can., 1868. ,,. 1028. . Sen,. Pa'p.r.,' Can.. 1804. No. 02 S Memorandum .f the Hon. Joseph Cauchon, Sess. Papers, Can., 1857 Vo) 15 N„ 17 Pa,K.r?Can:;T858:v:.l.' 10, Nas"''' "*' ^'""^'"'' *° *''*' ^'°'"""" ^''^^'^y- 21«t Jam.ary, 1858, ' Final report of Chief Justice l)i 'er, 1857. Sesg. Papers, Can., 1858, Vol. Ki, No. 3. 08 AKSEHTION- OF TITLK OF IIM-KIl CVNADA TO TIIK NOUTU-WE.ST. 1 iZu, '^"•■"'•"i't'-at'V" 'i'''> ,at.on from Canada as ,n.ay provo .su.li.^ient to allow thoir fut„r,. unioi wUh t ho I'rovu.cc L'nd Thai nnmediat. stops shoul.l .,„ tak.u l.y H.t Af.iestv'.. (;„von numt to prevent the aksorp. on of th. territory wrn, „f Luk. Superior by unauthorized enngration from the 1 tutcd States :M. That every facility should t>e snn.red lor enahlinL Mcllmtains ^ '' '"'"^^ t<^rritory between Lake .Superior and the Jtocky ,'''l''"4n\/'l''1/'f 'r '■*^'i^^;'i'"'- '^t the hottuni of pa.e 21!), and at the top of pa-e 220, as to the hnding of the [Imponal] Pariiunu.ntarv ( 'o.nnutteo thi.^- "The recommendation of the Report was in effect : Ist, That the Province should he free to annex to her erntory, such portion, of the land in h.T neighborhood as ,nay he available to her for the purposes of settlement, with which land.s she is willing to open and •.iiainlain oonununication. and for which sho will provide the means of local a>'n.ini8 Sed Ji^./^'^^"^'" °" '^^ ''^ «'-'^ -^'i *he siskatchewan are tLe l.aru'ul^^^^^^^^ and so on It looks very mnch a.s if this chiim wa.s an afterthought, in.steml of this territory beini: already part of Caiia ia " Mr. Mo'.y.^T.-I think I can prove the reverse of that I can .b so to «orae extent now m the correspondence whieli wo liave l.een .speakin- about. Lookinc at the Jmnt Appendix, page 2.50, and some following- pa-es, which I have n.arked for another purpose, there is there the report of the Hon. (ieortre Brown Presi- dent of the Executive O. ancil at the time : that is, in ISOo.* The first paragraph i., • Y.Jv.^T **!«*?™^^° report that while recently in England, in compliance with lour Excellency a instructions, F placed myself in communication with Iler Majesty's S^'elnT^^rtVes.'^^"^""'^^'""''^^ "'^^^^ °^ '^P^^""^ "P '^ -^^^--^' ^'« Wouldyour Lordships allow me to mention that there were two thintrs con- stantly kept inmind. It was thought that it wa,s a desirable thing that this t.'rntory, or portions of it, .should be ad Order in Council ot 1/th January, 1857, and the appointment of Chief Justice Draper as special agent to guard Canadian interests in connection with thepro|«)sed renewal of the Company s license, was Mr. Cauchon s report as Commissioner of Crown Land.s and lu' argued the matter fr..m l)eginTdng to end; and as to the point that tlie Hudson s liav Company owned no part of thi.s territory, he takes as .strong groundas anybody could take, as your Lordships will find. Lord AUERDARE. -Hut first look at what occurs after that which you just now .pjoted. 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 (jovernor-(Jeneral. It refers to a conference which took place between your Canadian Ministers, deputed to proceed to England to confer with Her Maje.'^tv h Government on the part of Canada, and the Duke of Somerset, EarlDe 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-We.st 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, should 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 tlie rights of Canada It looks rather like an admission of the rights, qualified perhaps, of the Hudson s J3ay Company, under which they were to make over to Canada a country external to Canada. Mr MowAT.— But if your Lordship finds at the very start, and as the founda- tion otthe whole thing, that the Government of Canada had a report prepared bv their t ommissioner-which is set forth at page 168,and is a very lon^ document — maintaining the very "ontrarv ? " Lord Ahkrdare.— Look again at this, the report of the Canadian delegates to England on the same page, 257.t These delegates, that is to say. Sir John Macdonald, Sir George Cartier, Mr. George Brown, and Mr. Gait (I think he was atterwards knighted) say : "Th^i 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 whic.i can be shewn to have been in the possession of the French at the period of the cession, in 1763." The Lord Chancellor.— That is another matter quite ; at the present we have not that before us. It is not even evidence which you can oflfer on that subject If It wa.s so in the possession of the French a.s to be part of the terri- tory admitted to be theirs, and ceded to the Crown after the war, then a strong argument could be founded. But that is not the ground, and I observe that in this same report of the Canadian delegates the minute of the Ccuncil approved • Journals, Leff. Ass., Can., 1865, p. 13. 70 + lb, p. 9. ASSERTION OF TITLE OF CPPKU CANAIU To THE XOHTH-WEST. nev by th- Go vernorwaH referred to uhch .peaks of the Oovern.nent of Canada U-,ng ready to co-oj.erate w.ththo luiperial Oovern.nent for the annexation to T^M thnfon '^.V""-^ '^^ ^''"^ territory as ,„i.ht be available for settlement. Unit 18 the tone ot the corrospondencc at tliat tinx' Mr ^^lo^AT ---VVoll it is the tone of a portion of it. my Lord, but siuiul- f'rrfcn^ . "•' "*'' 1 " *'^' "J"'"' ^" -vn..rship. An.l as to the evidence of th.. trench possession and ownership, the Appendices put in before vour Lord- ships are largely taken up with it. i ' ^' > *J"' The Loud CHA.vrELLOR -Claim to ownershi,, of that which was in the c3nTn I7^6"i^ I>ossess,on of the French I suppose at the time of the Mr. MowAT.-Yes ; and I hope to satisfy your Lordship thai we are entitled to all that was in the possession of tlie Ficiieh in 176.S The Lord Chancellor -There are various sorts of po.sses.,ion. If the French posse.s.sed it as part of that territory which was uckuowledjjed to be theirs. uo .rthat buf i? H ''^K* /" '' ^'' '''? ^ ^'^'•"'^ >'^'"- '"•^""-"'^ ^«"^<' be strong upon that , but It they had gone merely ass.p.atters int.. a territorv not occupie bv the Company, that would be quite a diHerent thin^r ^ ^ Mr. MowAT^-The Company s territories, whatevt'r tloy may have been, were lerdehned; the charteritself is silent as to their e.xtent ; the adverse t tie of France to these districts is asserted by Charter, and by actual and sole possession and by reason of contiguity ; the Company did not s.'t foot there until 1790, and then not by virtue of their charter, but of their right in common with all othe- J'tbp W-Tw' f?; *"' *" '""""T" "/ \'' ^^'y ^^'""'^ 't ''^''^^y 5" the occupation of the x\orth-\\est Company and of other such subjects, Canadian an.l En-dish bince your Lordships are looking at expressions on one side, will you allow me to point out some on the other : at page 2.'^9 for instance, which is the report of the Committee of Council* The paragraph commences • " [u the first place the committee do not admit that the company hav*> a letral titln to that portion th« North-Westeru territory which is «t for cultKonand settTelnent l-„it.A'fL!«? M 1 '■' *\ '"' u°^'*",'l «t'-«*«»>i°K '^lon« the northern frontier of the tiufolttSrpa'ny t^ U."' ''" ^"'^ ''°""*^'"^' ^"'^ "^^'""'^ '^^ ^'^^^ ^>«P"*«^ *•- Then your Lordship will observe the other expressions connected with that Lord Aberdare. — Tust so: "Even if it he admitted that the charter of 1670, recoc,mized as it has been by llnTn^^f . . !'u^.'T ^ \^^ °°"'P*"^ " ^^"^^"'^ '-igf^t '^ the soil in Rupert's Land, Canada contends that the cultivable tract in question forms no part of that land " Does iK)t It carry the company's claim far beyond what you have limited it to ^ Lvcjn if you take it as excluding the right of the Hudson's Bay Company to the Saskatchewan and the Red River districts, it leaves their claim far greater than this which you have been arguing about. T,...!!^"' ^^^'^^''-P^/haps I am arguing for a larger extent of territorv than I need have presented to your Lordships; but this exception which is referred to cid'tivlbre option- ''' '"P^""^*"*^ ^^'^ '"^ P'^«^"* pnTpo>i,^, because the .Sir Robert CoLLiER.-We had better confine ourselves to what is important for your present purpose I think. ^ Mr. MowAT.— I propose doing so— I will not go beyond that. Sask^t^h Aberdare -The cultivable portion goes to the Red River and the ba8katchev.dn; and they would both be outside that portion of the country whicn was givau to Ontario by the arbitrators. " ^ ! 11 !■ ■ il • Order in Council. Canada, dat«d 22 June. 1866, Sew. Papers, Can., 1867-8 No 71 19. r AROTJMENT OF .\TTOR\EY-nBNKn.\L OF (.NTAItlO rfi (^'ESTIDV (.K ROUNDAUV Mr. MowAT.— \eH, l.oyon.l it. Your Lonl.ship n-atl the narairrnpli criu. mencing— ■' hvon if it l)e a.Jmitted that the cliarter ..f I«7()— " Lord A.HKRi)AUK. -I tliiiik that ;,'o.',s stronjrly urrainst you. Mr. M()\VAT.- It nu'ots tlic su.jrtrestion tliat tho claim was admitted, becauv the contrary is asserted, so far as re<,rar«ls that portion. Lord AniitDARE.— No, it only .say.s that thoy ; "'' *!'« I»onur.i,m Tl„.v IS .1 L.-Jutenant-Uovernor .,f tl.c \,,,.n \ ■ / t''''''''V'^'"'' ''^ I''^*^'»<*f'S: thor; limite.1 powers. ;vI,o,so jurisdioti.,., ext ., l'' '"''''^''''e^ '""1 a Council, uiti. cmvon.ent to set apart ..ortain po i. n ';,;,:^; '/• "" '"^^T*-^- '^ -»>^ f-u«.| which yonr Lonlship. have- wj inf.,,", e „f ' '"''''"'y '^"•' ^o give the nan,e. Lord Ahkudaue. -f s..(« th..i,. fi V ■ ., j;;a s,. ..h. wer.. tho. ^<>n.uu.J%^:^Z ^^ award of th. arbitrators was ca vo as .' wr"' |'"? ,"'^^ ^^^'^ "^^t within th. w ..le ot .tn.ay he suppased to he car ■. o f" K " ''"^^''''''inion. Indeed th- made he ProvHK-e of Manitoba. \Va th^', ,','':: ^^"'"'","'».-'^"-l part of it was Mr MoWAT._No, that wa.s .lone n ', A ofTh rP"'- '• '" V"""^" ' '^ir Mo.VTAoiE S.MiTH— Und..r H.i I •.• v '" ^^'"""'lon I'ar iament* Anionca Act. pursuance of a power glv..„ by the British North Sir Haunes pEAcork- Tl„ i i a" Act of the I)j;:i:;ir-;[^ h'tnist' ^^ndtoba was .i.st lai.l down by y^jecfon to that Aot,an.lthmld itwaf;; t .f^T''"' ''""-^'^ ^''-« ^^-''n I ar anient, an.l he recoinnionn Act had P- ian.ent to pa.ss an Ar^to I n , nffltrri- ^"''' lir'^' ^'' ^'-' ^"'P-^ British North America Act, 1871 ""'"' ' ""'' ^I'^t was done by the Mr. M^IwAT IveV Tl? if ""* "^''r?^'^'''^"^ ^ ff-rnce to existing province ''"Tl.TntSf '""'"' ^'^ "'^ J""^'"'' '^"-^'■-i- with Bonimu.n Parliament power also to Pnn r V''''"'' ^"'P'^''"^' '^«t gave to the not yet formed into pCh e ^ Therete Zur I"""'"? "'^ «^ ^''" ^--i^' ' not j^et formed into provinces ^^""^ *''*' ""'''O"'^ of square mile; .„„pj:;1 ^--— A.K, e„„ed out fo„. ai,.He., wMch a.o awaU.V, *33 Vict., cap. 3, (1870). 73 AUUITMENTOK ArroimKV-iiKVEHAI, OK oVTAIUO »«• (jHESTIoN OK HOUNDAKV Sir MoNTAfiiK Smith. — When you gvi northwfird to tho English River, then (lot's the award hoiindary foMow that river t'a«twiird ' Mr. MoWAT. — Ves. What we .suy i.s that tlif awardod territory wa.s always part of our province. 1 liad liopud (tlieri- is no harm perhaps in my saying so) thiit the wholf ([uestion of thu northi-rn huundary might b»' presented m;w, but wi' couhl not arrange that witli tho Dominion Ooverument, and it WHS arranged merely that tlie westi'rn boundary sliouUl come before your Lordships. Sir KoiiKiiT CoLr.iER. — That is the boundiiry between the two provinces whirh I suppose is only the western houmlary. Mr. MuWAT. — Our western boundary. Sir IlOMKUT ( 'oLLIER. — By the Act of iHHl, by which Manitoba was finally constitvitcd, their i-asteni boundary is your western boundary { Mr. McnvAT. -That is so, Lonl AiiKiUJAUE. — There is nothing about this limitation to the we.stern 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?" Mr. Mow AT. — That means of course between Ontario and \ranitoba. Sir RouEKT OoLi.iEK. — Hut, as they only i ome in contact on the w^esterii side, it only involves the western boundary of Ontario. Lord Akekdaue. — Manitoba woidd extend northward beyond the limits of tlie award of the arbitrators. Mr. MowAT. — The Domiiuon Act has given a territory to Manitoba beyond the awarded westerly boundary. Lelongs to Ontario, must be traced here [pointinj houndary which runs along the English Ri>er, fitc] Mr. Mowat. — At some time. The LoKD Chancellor. — But on the face of this present reference, what is there to shew that that part of the b.oundary is not now to be determined ? Mr. Mowat. — IT your Lordship takes that view of it, I am quite willing. The Lord Chancellor — I do not see what limitation there is. Mr. Mowat. — 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 moat north-westerly angle of the Lake of the Woods, m described in a certain award made on the 3rd August, 1878, by the Honourable Chief Justice Harrison., Sir Edward Thornton and 8ir Francis Hincks, or (2) is a line west of that point." 74 N'OI-E or TMB AKUUMKNT ON „k„.VI.K "K ONTAHIO. TliHt para;jiHi,h, therefor.,, ref-rs i,„.r..lv. ♦ . . "^ ^"^^ '■ n>e I'rovii.oe of Manit.)l.H olai,,,. tliat th« . i , th. Province o. Ontario 1.(1) the .„,.ri,l..„ of tt Z '^ ^TT*"" '*•« '''■°'''»^« ""^ R.v.n,. .r (2) u that portion of the h. J of tS "T "[ ''"' ^''''" *" ^ Mi-.«i«ipp. to the Kn^lish Itiver , "'"-^•'" «>""" the l.ne fro.n the Lake of the Wo«.Jh up .ntitf.^T olaino:;^!^ ^^ L^!:!:;;!!: tl^tSat^^S' -^"^^ "«'"-"^ -"W corm^nt. ^■U.o«.-We cannot hnut you to that, except by your own ^voulK atShe'cS!'"" '''"' "'■^'""'^"* l^'«^'^''«- the whole Province of Manitoba Mr MowAT.-Xo, my Lorrl. Sir Hob :t:T Cou ^««^ -«"''» Mr Mow"t--N h~~ o'"'ff"»iJ Pa'fc also. A.t, ^ieh would over;.id::u;el2:;;?ttd Inv" '"'^ ^"'^"^ ^' ^° ^'"P^^^ U ioC'^1.^-^'^ J" 5^^ >-'it.-t that time ? Lord CroTk',"!^^^^^ «^ fi-t li-its of Manitoba. ^o./.^apjr '"'• ^^^•''^ '« «-"P"«^^ within the orange line [r./.rrir,. Mr.MowAT.-Ye,s,n,yLord. p ,^'^^^h;:^:r 'i^^^^^ -?T"^ T^~ -,oured yelW . Parliament couM add it to ManL^r„ I, 11 v "'^'^^'^' '^ ^*'' ^'^ the Dominion ;;ord ABEKDAHK. JyouI nofquesVon\£"^"" ^'' '' *^'« Dominion ° Mr. MowAT.-There i^ one Wew of fK« that_or do you question that ? , Lord Aberdare -Then if vn.7. ^ ™''"^'' '° ^^hich it i.s questioned of Sranitoba would be 1 mUed toTat t:^"'"^"* entirely prevailed, the Province wthrn the orange line ? *^** "^"'^ '^'"*" P«'-tion of it which is contaS ">y assocfa'Jf Y^^^^^^^^ allow me a minute to consult with S"'''^' ^""^ ^ should like to"coS8u liMrf^'"'"' ^ T *^*t /. have not confine ourselves to the awarded line ^'"^ *' ^ ^^^ther we should 75 be aljolished. I I vrifilTMKNT f)F ATTi»UNEY-(iEVKIl\l. iiF ONTVUIO /•/ gl^KSTtON OK HOirND.MIV Sir RoHKUT f'otJ.TFK •V'liy wt'll. You lia Cii \N' Ki.i,oit.--Mr. Attonii-y (!t,>!it nil, wliat ynu lia\i' latoly Huiri liiw iliriM'tdl u») attfiiti'iu to tli« huuiiuioii Ai-t of 1^70, \vliirh 's cannot take uw.v the ri^dit of a province, or tHtahlish the rie;ht. The Loiti) Cii.wrKi.i.mt.— I do not follow you What stfonjjur eviilenct .f the fact can theie he than two .\cts one of the Dominion, and the other of tin Ini])erial I'arlianu'nt, that this territory was Kuport's Land and not Canada. I am only .speakini; of tlio small Manitoha. Mr. Mt»w.\r. -Hy the Dominion Act* it i.s enacted that thi.s province shall he formed out of " l{upert'.s liand and tlie North -We.stern Territory," not out uf " Ruperts Land " alono. Rupert'.s Land wa.s claimed by the company iindcr their charter, hut to the North-Western Territory the compfiny made no pretoune of claim whatever. Tlie one ami the other liad heen tran.iferred liy }|.i Majesty to the Dominiim witliout .si)ecilication of the boundarie.s of either. Moreover, tJie Act .shews that whatevt^r tlie Bouthcrly limit of Rupert's Land niny he, it did not extend as far .southward as the international })Ouniiary, for the Act declares that the parallel of 4!) " forni.s a portion if the houndary line ht twten the I'nited States of America and the said North-Western Territory " — not between the United States and Ruperts Land The Imperial Act+ coiitiniis, in terms, tlio Dominion Act, hut does not use the name Itupert's Land in tlmt connection. The Lord Chancej.i.ok. — Plainly on the very face of it, it .shews that in the view of the Iefj;islature which pa.ssed that statute, it was previously territory formintf part of the Union or Dominion of Canada, but not included in any Province thereof. The Loud Puf.hidknt.-— The ])ominion Act, .section 95, rfoes on : " With respect to such portion of Rupert's Ijind and the North Western Territory as is not included in tho Proviiicn of Manitoba." The Lord CHANCiKt.i.OR. — Surely to argue against that Act, confirmed by an Imperial Act, is a bold undertaking. * Dominion \ct, 3:! Vict., ( ap. 3, skc. I, ^l.S'O). 1. On, from nnd aftfr the (lay u|>oii wliirli ilie l^uei'ti, hy mi'l with tlie advice iind conHciil nf Her M»je«ty's Most H iiiniir.itili' I'nvy Council, undiT tiirf .lutlinrity nf tlio 1 Kith section nf the " Hriti»li N rtli A«f'ricft .\ct, 1S()7," shall, by Oril'T in Council in tliiit helialf, admit KuiMTtH Land and the North W'l -tern Territory into the Union .ir Dominion 'if Caniula, there Hhall lie formed out of the name a I'nivince, ". Im.li shall l>e one of the I'riivineen if the Dominion of CJan.ida, and whii^h shall be ralle nay, commencing at the point where the meriilian of ninetv m\ degraeH west lenifitiuie from (iroenwich interHectH the parallel of forty-nine dejifreeH nortli latittide ; tluiicc duo weHt alon({ the Haid parallel of forty-nine de^jreeH north latitude (which form» a (Mrtionof the boiiinLiry line bMtween the I'niMid States of America and the said North-WeBterii Territory) to the meridian of iiiii> ty nine deffrtes of west longitude ; thence due north alonjf the gaid meridian of ninety-nine deftni'M weat lonjfitude, to the interBection of the same with the |>arallel of fifty de^reeR and thirty minutes north !r\ti tude •. thence due east along the Baid (larallel of fifty degreeH and thirty minutes north latitude to its inter- section with the before-mentioneii meridian of ninety-six detrreeB west longitude: thence due south ."il'iiif the said meridian of nrnety-six degrees west longitude to tho place of beginning. t For the Imperial Act, see ante, p. 22, note. 76 ONTAKIO KEMTIUCTN ITH CLAIM TO TliK i ,vr .. ^° "'*• '•'•^*^ "" THK AWARDED MOt'NDAUIEa I I. h thi l--l-l„p. r.U. ,1,.. two ;u '".' °T,, V r: "'7"f -r "f»" 'k«t to j.o„r i„i.„„„„o.l. I H„l„„it ,l„.i if t|,„ „,„,t,.p I," 1 'r.i'"'""">' ,'" "'" "».'■ I !'«'• .■"::w,;":,S',*:s'''"-'^" '^^j- " -um i. .„„ ,.«,.„ ,„.„ „ Mr. MowAT.-.-Thati, it,m,. f^,,,l ....iol!::r':rit'i':',r,'; •':;;-'''•' '>-.;-.ir..,o,i ,„.„ , „,«, a^ ,o„ „„ .la.,. Aotj ..f Parlia, U. a^U.ti^L .:;«;■;■"';''''- «>■' '!■"« b" M,.„ Sir iMoNTAoUK Smith rr„... "l'*«^''i''on ot cvKk-nce ^ til- .,m.stion s„,,..st...l to >~u ? '"" '"'"" '" *">■ '■«'""^"^'"" ^^itl' r^feronoe to H.Ml..;lHH;^s!'^Vu^]\l;;;„y7a(iT n.al irorZ r" t '""^""^ "''"> ^^^^ '^^«'-'ied n.t.tl.;| to ,„oro I claiu, no mo.I ' ^^' arj^.uinent would shew we are ^^^^^^^:^lS:!^!:^'i^:^^ S-t that yo.. a,-,.,. .ro.., ; a.,u..jont a. ,^ a, it is ioo^.^^hi^Ir ^t'l^Lir'' '^ "'• "-'" '^^ >...nt s ha,l aIto...thor l>ooau.s. it i^^ t^l^.w " '" ^"^ "''J*'^*''^' '" '^'>^' ^ho argu- Mr MowAT. -VcN, my Lord. ^ >1";.- li «;a,so, whi.h is th,. authority mler wh h ^t'^'; J'''^""'^ ^^'",'"«ntion...| in tho :;ent -o... to it, an,! thon you sav it s J ^V' y-' nou- actin^r. as far as con- J.uhoia! Con.niittee. The on v matte m!^^ i^ ^^^ '''^' ""^»t«'- to tho" ^hal w.. took the san.e viow that't^^i S mul^,:'^^ '^ •^''^>-'''I turn out »/;/ -< /A. .,<,,^. to th. tract .^v-m/ rS X / '") •'^"•^"^'•'■J this [;..!,i(. and Mi.ssi.ssippi rivers, or, as an alternative, that portion of the height of land lying to the west of the said meridian line. That is all it claims. It does not say any- thing about the northe n l)oundary. It claims that that is the boundary, ami that that is is where the province is to be taken to end. Lord Arerdare.— And Manitoba claims to go down to the internntiimal boundary. Sir Montague Smith. — They are two (juite di.stinct claims, and they are both intelligible on the map. It looks as if it wns intended we should decide between tho.se two claims. Mr. Mowat. — Well, mj' Lord, I am quite content with that construction ; we want to know what our boundaries are. Lord Aberdare.— If we decide that this is the line [pointing on the map to the awarded line] we do not hand this [poiritivrj to the tract with yellow stripa] over to Ontario Mr. Mowat. — Yes that would be the effect cf it. Then, bearing upon that poini, I wouM remind your Lordships of the commission to Sir Guy Carleton, which describes our southerly line up to the most north-western point of the Lake of the Woods. It goes through the height of land and reaches the iiii)3t north-western point of the Lake of the Woods. Lord Aberdare. — What is the pagt; you are on ? Mr. Mowat. — It is page 387, my Lord.* Lord Aberdare. — This is the first commission after the settlement with tin- United States. Mr. Mowat. — Yes, my Lord. It describes the province then as comprehending "all our territories, islands and countries in North America bounded on the south" and so on. One need not read the beginning of that until we get to bake Superior, which is at line 10 : " Thence through Lake Superior, northward of the Isles Eoyal and Phillipeaux, to the Long I..ake ; thence through the middle of said Long Lake and the waKr communication between it and the Lake of the Woods, to the said Lake of the Woods ; thence through the said lake to the most north-western point thereof, and frotii thence on a due west course to the River Missisaippi." Lord Aberdare. — The Long Lake is a series of lakes. Mr. Mowat. — Yes, it is a series of lake.s.f The height of land has to be crossed in reaching Lake Superior from the Lake of the Woods. The height of land runs between them. Then by the express terms of that conmiission we get to the most north- ^.gst-prn point of the Lake of the Wood.s, which is north of the height of lami. • The commission of 1786, printwi antt, p. 44, note. + Vftriously represented on the old maps as connected with Lake Superior by an inlet corregpondiiitj in DOfition to the estuary of the Pigeon or of tht- Kamanisti()uia river. V^ 78 SOUTHKHN IJOL'NDARY OK ri'l'KH ■ ''" those noatters whi.h n.ust be thrsul^^ cct .1 X- vh l" ' ^'""f'^'"" • "P'^" ' ""^" ^^ by a higher authority than the nr vi ,eos .1 o ''^''^'^'y 'I'^termination. either will assume that it can be mad' ^ wl at f > ''' I'f' "'", '''' «'''^^tration. But 1 present a few oon.sideration U r Lonl 'f , '"""""'■^^'■^' ^"'^ ^ ^^ish to The great difficulty in th cas is a hat is to V '"' '\'' T'" granted to the " Hudson's Hay ( lonn any I 1 , L v x ^"'^f ''"'^^ ^s " territory much difficulty in con.ing to the ZcZion tl df ^i/T '^"^".^""'^' "'' «"J southerlv- line wluch is describe.l in the Act of YttI f ^fT^''- ""''"^ ^'<' tl'e Quebec, if it were not for tlmt .^ rence to I e tJrt'it ' "'*"!"'';' '"^ ^'' '"^'"'^^^1 '" Bay Co„.pany. But we have tha express on ere' &f. •:"'''' '" '^" ""''^^«"'« ward to the territory of the Hudson'^ R«? P terr tory is only to go north- out what that territcny was Now St is T,f b?' '" '^ ^'''f''' ^' '^^^ ^ *« «"d expression, "the territ^y granted t.') th ' Huds^^n 'S^/l! '' '"^'"^^^'J '^ ^^^' purpose 1 wis!, to limit Jhe construction of Ze wor s'as nnJ^'^^'-'^'^'.:','' '^'•^^ wish to make as limite^ Con.panytd'po;e"''r,ot''""'"'"-'^^^^ 1 , had anoe, Vench i».;»l «nd.r E„,.li,l, law and bfan E,tM fL™°'l f„ ''T.f"'.' '°'' '"""'"•"- ' s woulj hol.l thai it was inton,!.?! »;! I .? ^ " ""' """'' .™'"' ''""i- Aiaerica, north „f ti.e sontSvtnf ?m,n rj.v ""^''-jS ?' '*""'''' ^orth -f c„n.e it „„ that ^^'i'^Z' l^z^ r's:^^^^^^^:^;:^:^ 79 AROUMENT OK ATTOUxVEV-OENERAL OF ONTARIO ir QTJESTION OF BOUNDARY : ll shoultl be governed, namely, by the company, so also it was reasonable, right and necessary That the rest oi the territory should be governed. I submit therefore that thiit single consideration, if there was reasonable doubt about the point, shews that the words ought to be construed as " effectually granted;" that they ou'^ht to be construed as^neaning the territory belonging to the Hudson's Bav Comi)any, the lands which they had tiio power of disposing of, and in which they had tht' jurisdiction to govern, and legislate, and so on, in accordance with the terras of the charter. Then, what territory of the iludson's }3ay Company stood in that p(jsition ? ' The charter, I have said, is extremely vague and indefinite, anil what I submit is, that upon the reasonableness of the thing, upon the prac- 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 tu the Iludson's Bay Company, we are to look at wliat 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 ihan was so appropnate^l. There is a difficulty in saying exactly what was appropriated; a difficulty m point of law. There is no difficulty with regard to the facts. There is no difH- culty in ascertaining how mucli territory the company actually occupied, or how umch territory they exercised control over as proprietors, but then how mucli 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 tlie same principle. The Loud Chancellor.— I 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 (luestion wliich we hove to determine. Mr. MowAT. — I do not mean that the words ot the other charters would have any bearing, but would not the view that was taken of those other charters, so far as tliev^are analogous to this one, be material t The LoRii Chancelloh.— If you shew that upon any bounding words ol' description, like those we have to\leal with, applical)le to other charters, a par- ticular construction has been put, I do not say that may not be in point. If you provi' 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 Je facto granteil so as to introduce an intiuiry as to how far it was a valid grant or not, perhaj.s it mav have some bearing upon the case. If you merely want to shew thiit in a question as to the validity of a charter something may have depended \ipon what was done under it, J think that has notliing to do with the ])resent question. Mr. MowAT. — I am not arguing as to the validity of the charter. I am a.ssuming that it was perfectly valid, a-'d merely inquiring how far it extended, and how much it can be said to have included. The Lord CHANCELLOii.—That is a cpiestion of parcels upon the construction of the charter. , r , , . . • , , Mr. Mow AT. —Yes, my Lord, it is ; but it seems, my Lord, to be material Ihiv to know what the parcels' were that can be considered to have passed under tho The Lord CriANCELLoa— But how you can shew that by shewing that the parcels were under another charter I do not know. Mr. MowAT.— I will not urge this point further againf»t your T/>r '•«*'••>■ to thoM, The Lord CHANCEl.um. — For the nrpscnt mnn.n,,. 'rrant to tho Hn.knn'. F'.,„ n . P't>uit moment y..u may as.snme that the had nothing whateve,- .-iri^ui nin" I tl'^^S^i^ 7 ' """ "'f ""-■ ,t ,„.o s„m„ „|„r«li.„, l.y „ccupyi,,; H,,, count," a";ii,"„ ' '" ""^J" ""''■■'"I such .natter, ; an,l te,ritl„y'„f that H„rt\ S bel ™ t "' ,tr "l'"";™";" can be no assistance whatever in ascertaining, the boundary > suppose we shoud ditter about it-as to liow far the chaiie .^uil'^r^ t.^t in- t grants all the lands and territories on the confines of the Bav nmH r?n^ „1 ". ^. U.jt n.an ^ There would be great doubt then, l:''^:^.::^^^:'::^ hv aJtt^om^"\?'''''''V p"T-^"" have got the Donunion Act of KS70, cnfir.ned Imk i f tl! P'""' ^^"'"""^^^fc. ^-hich seen.s to n.e entirely to relieve a an oil in """■' '"'y- ''^''''''"^'' *^'^^ ^"P«'-t'« I^^'"-' i"f^l'"i-l the pre en l^.it /h..v!'T'''T'^*' ^TT ""^'?"" '^«''>'^'»P'^ I'ol-i that I nuist bow to that view h 1 ave already pointed out that the statement in the Dominion Act is h t nitoba was formed out of " Rupert's L.n.l and tl,e North-Western TerHtor " •-t Ruperts Land ahme, and that there liad been no definition nf tV t!o, ."':. -;; tSps hS:f itzr^^'^'l '-^^r- '7'^"'^ ^">' ^'""'^^ '^ think"!:;:; ^(«) 81 AlUiUMENT OK ATTOKNEY-UENKIlAf, OK ONTAiUo rr (^LKSTION OK HOUMJAftV tllf shew that a large territory beyond that, and therefore necessarily includinf,' tliai - was French territoiy. Sir MoNTAcUK Smith. — It wonld be an as.sistanco if you shewed that that would be excluded from tlie ijrjint, ber/iuse that is another matter altogether. Mr. MowAT. — Very well, my Lord, I can shew that. I do not say thai it i- clear that \.\w whole of tlds was French territory, at the momejit of the chaiter being granted in 1(570. l>ut it wa.s French territory at the time it was ceded to EnLdand. The Lord 0HANCELLOK,--lf you pr(Ae it wa.s French territory cede' e have no jurisdiction ai)Out taking the censas. Un>l.'r the British North .America Act, fie' provision is made that amongst the exclusive powers of the Dominion is the power of taking the census. Sir BvRNES Peacock. — But have your judicial othcers ever exerci.sed inns- diction for this part of the territoiy before the surreiuh'r by the Hudson's Bay Company '. • ' Mr. Mowat.— Yes, 1 can shew that. liord Abeudakk, — There was a decision of a criminal ease, T think, b\ tliern :' Sir IfOHERT (JoLi.iKii— We .shall come to that. We are now on w'hether it was Fren(;h territory in 170."}. 'J'hat is the pie.-;etit ((uestion. Mr. Mowat. --'J'here is a great deal of historical matter bearing upon that, i will not trouble your Lordships with more than a portion of it, but suthcient. I think, for the present purpose. Perhaps I had better first refer to what Governor Carleton savs on thesuliject. in one of his despatches, dated at Quebec, 2nd March, 17fiS. It i.s at page "(»09, my Lords, of the Joint Appendix. I \\ill read a little from that despatcli, conuneti^cing at the beginning. Your Lordsliips will observe that it is addresse^l to the Earl of Sht.'lbuine : " r have received yonr Lordship's letter of the Uth NovemVter, and one since, wrote from the otiicu by your directions, dated the 8th of October last. " The flrnwjng heri'to annexed is taken from difrerent m.ip.s and tho h<^nt memoir.^ an-^ relations 1 have hitherto been able to procure. 'Tis intended chiefly to shew the westtrn posts which the French formerly occupied, and how far they extend beyond Michiliniakinm . .S2 THE KRKXrn 'l»()S«p««ir,v. K.SSESSION-,;oVK.uN.)R ,;AHLETON\s ACCOl'M. This end I behev., it answers tolonihlv woll tho th ■ l.e erroneous, as I liave not. met with'anv'oi-' -fL " .'i''*''"' P'^'"f'°"s o" tho »lohe must any mathematical instrument, but thev all «„!•! *^"',"^'"';'"" ^^ho understHn.l the use of forts on the Saskatchewan-!" is two an 1 TT ' "'"^^'yat ''-that is one of the Michiljmakinae, and reckon the distance ahont ni '">" IT'' "'•^"'hs' journey hevond irMtr^V -''['''•■? .''^ ^nelnli„,aki„ac ' "' Mr. MOW AT, — lour l.,()ril.sliii) uiji \ Huron and Lake Michigan. ' ^'''' "'^'''^"'^ on the map, between Lake Loni Ai.ERDAKE.-^It is the fort 'it th,, , .1 which runs botw-.t'ii Luke Huron and Ijik \r, i" ''"" ''"''''"" "^' ^^'^^ territory M r. MOW A I . — 1 he . le.spatcli proceeds • " 'I'l'^'river on which Fascoyat stands is .aid fn I « . . fort was erectpd one hundred lenirues bevo„fl P„ ' , '' '^""'•'••■fl leagues ionL-. A- enough to put either the fort or thXlI eX of trrh' 'r " m' '^^'',. "°^' in.orn^ation He writes therefore of two French forts there on the S.','- VT'"'' "The annexed return of the tVench v>oJ 'T ""^^'^^tehewan : with the number of canoes sent up in the year -Yi' '^l'^^■'•"• ^^^ P''^t'>ctinn of trade, of their trade, and the system pursued by the Frpl^M '"'" '" """'^^ "leasure th.; extent Vour Lordships will oUserv. ,... that ti7e' """'"' '" '"''^" ^'''"■" these matters, that thev are not matters of n /^"''"''"""^nt who n,ana So there was government ; there were troon.- to «■),,. necessary ; an.l then the otHeers at each n.v^ u . " '"^^>'^''f extent was found as niacristrates, and so on : ' '*' auti>ori.e.| to act, and rlid act. ig,.r:.'^s.,ra;:;5 !^:^:z^x:%^£''^ ^-^^ ^^'-r" ^'^ --^-io-^s of .. and revenge, with an uneonqueralde love ''V degrees The next para^^raph is : • -M.dnlnnak.nae without K.ving ofil-^ee.'- trade::::r::Sf r t^^b^iSj ritSS^ ri- r- -fy -^-'"- '^^^O on the -passes, that is, from the ( Wnor of S/ ''r'"'' '''''y '''^'^'^ •spirituous liquors than was necessZ ?,*^ ^^"^'^^'-' '^nd, secondly, not to ...rry more rmlians; the Iving's posts, or rXr the rn, ""7 "''' "?*" ^^" ^^''^ °^ "''-^t to the this general rule." * ' """'^^ ^^"^ Intendants, were the only ones excepted from i5-iru:,SVr!rt?:te"ner'"^ ^'^^ ^''^ '-"'-^ -^ ^hev brought -«^^ at the Kin^^pSt^t s;:x;^s pi:;!U:r' ^"^^ ^'^--^^^^^^ w.,enc:^&^f;a:^^nm:n:xtv" '-r^^ '- ••^^"•'-•^- •"-ntmg grounds ; they likewise calld Z hei rc^ T' 7^ ^^''•-"'P'".- then, to their 'ompiamed to tho commandant, w^ as em led t i ■ . ""/ ^"' '"tmited they savages also made their complaints and r.1 r; . • ?''""'• ""'' P'-^«=">'^-d redress; the of all which was sent .0 .hJ^Jl""'' :", PJ;''.^"""' '"""^d'ate satisfaction^ an exact report 83 !l 11 Vrt<;i'MKNT OK ATIOUNEVfiKNEHAl, ol UNTAHIO 7V (^LfESTION OV IIOUNDAIIV " Your Lordsliip will be pleaao.l to olnerve that tho great inlets to tho north-oa^f from the Missisijii, aro by the Ohio, and t'roni thcnort up the l)uat)aoh, which leads towards th.' sources of tlie River Miamis and l^ik*. Hlrie , hy the Illinois, that l(;a fih'af, and periiaps it is not wurtli while tronMiii;,' your Lonlships with that,* Tho fjoun (JhanoeI-I.OH. -'I'he only oli>iM\ation which occurs to me on that next passaj^fo is, that th-' Kreueli or Spaniunls were there, but 1 sui)pose noboijv (•oiiteiuls that the Spaniiinis hmi any territorial dominion tlioiv. It plainly siu". that the .settlements or p.osts spoken of arc tiot necessarily sticli as to irnp'lv tiir Mssuinption of territorial I'lUed generally l-ouisjami and this district, rather than a connection between (Janada ami this district Mr. MowAT,— J shall trouble your Lord,ship.s with a shoi-t selection only fi-om the voluminou.s evidence about the settlement of the French there, and' about Canada extending to the JMi.ssi.ssippi, Lord AiiEHDAUE. — If you are not going to insist on this part of it, I Sllpno^e you ndglit pass very lightly iiuieed over it. Mr. MowAT.— It was merely with tho singU.' purpo.se which I have spoken of already, to shew that the territory which may be excepted from our claim ought at all events to lie considered as not extending so far as to exclude us from tlia points which the arbitrators thought we were entitled to. Die t^o [Kiragraph.^ of the. despatch nn-xt .siiccetvlin^' tliH paragrraph her.^ rpfurred to arf a« foil. «- " I Hluill easily tiiift in thf tr.i.ipf Ii't.' niiiny o(Hefr>. and iiniii very ready to uudertiilve to exi.lon my part of thi»cout!iir>it, \vli(>re(pMr.'ii(i fuither eiicouraKrment tliaii to !«■ tol(l -.ucli service will lie anvpt able to the KiiiK, anil it prep rl\ exeeuted will reeoiiiiiieiid them to his favour: but as tliey are luiL (primteil with tlie country, the Indian lanii:uaKe-< and manners, 'ti,-i tiece-ssary to join with 'them -m^ Oanadian- lo serve as jruidos and iiilerpreter.,, Th. gentlefseii her.- are m..,4tly i)oor, and hav,- faiiiiliei- hi order to ludiiea theni t.. attach theii.^elv.-.s thoroii<;lilv to th" Km^'a iiiter.sts, "li,'. iiecwarv ihev Bhmild be assuri'd of their lieiiif? tak.'U uilo his service for life, an.l iu ease tlii-y perish on these expeilitinn' that their wid..ws will enjoy th.-ir pay, to sui)|i,,rt anil .■dnea!.' their childr.'U. "Should his majesty think propter to allow the tr.-.d.rs to uo up to th,- western lakes, ivs foniieilv 1 think a party might wint.-r in one of the ' '•^^ "^''"r.iin- to tho inj: Hs far north as Pascov.t Mo"' Cl "'■•;"l:"''/''- '''■^■"'^l' I'^^i pusts^xt.,..!- Those were posts appaiei.tiv for (he , ,, [■ P"^ •"■^*"' fc"^> "«o to shew, factors, an,l tlu.ir fact nies ml a eertai, '"''•. " '™''"' '"^'''" *''^^- »'«"• tln'ir Mr Mow.T.-I do not know or,;;'r "' •""'^■i'^'^'"" ""<' authoritv. over such territmy. That is the only vv'av in whichlt' w.l "';'''"'"'"P^ -sovereignty The LoKl) OHANCEi.r.oif- That state /'tl ^"^ ;t\^^;7;;"it!!:;'th:l^^''"S^' '^ r"^' ^^^-^ ^^ --^-- posts. It appears fron, the evir I-nc" tint el? '""'";'' ''^'^''' ^"^ '•^••"^•h that the licenses to trade were I- ranted h the ^ ' ''f'\ ''"'' ^'^-^^'^^ry^ and king also sent troops to these v^rt^rnMs "d n?'"''Vl ' ''"^''"- '^''^« ^^'"^"^''^ The LoHl. CMAyc'tLlOH-rf tr : ^I'POHited Mia-istrafes there. placed over anythin.r hut Uu^fnctories and sagine that he treated the Indians a.s his Mdjeo't':'" "'" '^ "^' ''^'''•'*"" "* to tbe;e«>«;;t^^i;;n t:;. i^J;, Ji^^Sf ^ll't^i^ ^ l;-;?^ ;- to ..n yo„r attention ^^^^,S.r^Mo.....SMt.H,-V..,yon ... ^oin^:;.^:? understand, with vour of it'^ ^.^iJ^e:;"';.:?^^:;'^:::;;^''^ ^^-'^'^"^"^ ^'^'•"" -^ ^-- -- ^.•alof timetogiv; ,. y.HulZrshinstru i T^^^^ ".^^■"»''"' '''^^' '^ ^''^'at in m.ly necessary to confir, in u . ^c^^ I Ir l' 1,"" T"^'"''"' '""' ' "'"''^ '^ will read from the roucn-t oToTJ:^. i '''11 ""-^^^^ I Page«Ol.» It is his acc-o nt o- wh t Jh .^^^'T"' .^'i'-'' >'-' will rind at b'^g your Lordships' per.nis^ont, " t^rve'ti^'^f 1 ''"^ ? ^'''^ territon . and I l^*>n,.. tlu.re, or of the Hudson's 1 av^o.nLV- "'/"'^ '"■ '•'''^" «^' *''« English being there. The H.idson '^ B u O .■ n a "e. '°^' '^■•'"■ ""' ^'^''^ ^'encirnot -'-til long aft..r the cession;wSSX-^.r^ ^'^ .'•^■•^''^" '^^ ^" crown to it. This is what Governor Powlml I si vs "" '"'^'^^^ "' ^'" ^"^'''^^ top;;>JtL'\Ttc:o'f"™l'.^^ ^^'"•^ ^''--'-- - ^i- parts endeavoured favour oh 'fuT.,; t'li'^on'^'^ the cession There was no change in French were inc;-eL..;Ah^.h^e^ZS ^'^" "'^''""'' ^^^'^ *'-* is' tie tory which they had taken osesC' o J ^•'"'■, "l"'' ""^ '"'^'■^' ^^ ^^e terri- raonarch. Gove.ru.r R.^mdl s> ACCOUNT. the French constuntlv (lurinfT nil fl.ic .> •• i H(,n'8 Bay Company L f^ hs".o a dorZ"" "'"" °^' '^'''''^ "^ ^>' '^^ ""^- objeoted to by L.^in.l either 1 h d^ 'a.S IV/'""''"" ' ""^ '' ""? "'^* .lent., the ..^^. .....ee to o.up. .;;t'^^,zl t. ^i^iis^s^:;::!;:;^ .....St betake hin,self to .o.i.e new trac or hnnf . v ; '. ' ^'V' "P'"'"'" *°'' * ""«"«« ''>' ^^"^'^ "'^*"«- «^8taMiHh,.J a .hes. n,eans, acquired a kno'le ij Tall t^ wat^^ "' ''"' "•^''■'' '^"'' '"»-' ''^ 1m)1.1 the oonimHnd of that ccm rv in sL;/ T ,'!' ^ r'' '""''^«"' """^ ?»«*« *'"*' "'^y -"' '-y locating and fixing those r..n.-e k.kI Missi.ssip fan of he W nn," '^'l ^'7''"u '" '^' *''« "'*'^''-« f°*' t»»' ^^- Law- tl.e whole, thev ^vl heZL—ZTZ^? V") ^^""' '"""^"^'^ '"''^"''^ throughout country" ^ "et'o.ne possessed of a r,,al interest ,n, and real co.nmand over, the MrMow' ^'"f ^•^^^.^•V-;^"'^ you ^ay that is annexation? b. ..nes f ::S^:L'^a^o^ratr:^^^ ^^- -"-^ ^^ this Uind r..u„.l .,bou1 vva^o s:;^?n ' 1 : t the'"!''' -vpre.ssion if it is annexation, an-l a very -leroditapoion^Ty;S,ct;^r&^ '■^•""^'■>'' -' *'^"^ ^»^"-V con^ to timt ^"""^ ^"A.vcEr,LOR._Yon might say we had annexed Borneo according ^^^^^.Mr. MowAT.-AlI America wa.s acjuired in this way; it belonged to the ceedi2'nd"ht^^^^ST~^' r' '"P^^^^ ^ -de of pro- itself if rSrent'ihrng.' '""'''' " annexation ; bt.t that it is annexatioL in posef^haUrtheTSvileaite'"?' '! .'^'' ^'T '^''' '^^^ -'^^^'' ^^^ ^hat pur- is free from anv doubt or sulie on /'^- ' ^'""'' ^^^''^^^^^M'- A report of this kind Etiglish governor and it^nZn ^ -V'''"?^^^^ '* ''^ "»^<^1« V the Sn. Mo™..: SMIXH.-Line .So'seeL to beT'.'Snarv of it all : Ihey have thus througout the eountry sixty or.ev.nty foris ' -Mr. MowAT.— Ye.s: «ettle'25 tYi^ch't^kf thTt"' I'^ihe""*'' '\'H t^ ^^'""*y ^-'«' -^^ "^'--t as a,any fort« witho;^ the a4^ true sn?ri^i'''','l°^^^^^ «^«" ^"^ «? ^hieh force of Canada ;"-! was froE P J 17 ."V^^^ '^'^ '"''"°'"*^ ^'^'^ «" **»« «^!'e»«e and Franeecould ; -tis the Cif^^^Sst al^ t^ ^ -..S^^-; ^ ^^ ^^ P-- of 87 1 M AROt-MENT i>K ATTORNEV (iKNKKAI. <»K (iNTAlUO /'' (/UEHTION oK MorNDARY It is in eonsi'(|\ienco of always rcspcf-tinjr these Indian custoniH that \.h> Kni,'Iish j,'ov<'rniiu'nt has hieii mi succcHsfni with thf Inrlians, and contrast-i s(i t'avouralily in that nvspcct, with tho Pniti'd States, wliere th< y are always at wn- with the Indians and terriVilb disastcrn and atrocities iiro Dccurrintf lietwoen thfm " Having thuH nut possoHsion in any certain tract, ami hiivinff one principal fort, th^-y get leave to liuild other tnnlinj,; houseH and entrep^^ts, at length to litreiigtlien such, and Ui fine to take poHweHaion of more advanced posts, and to fortify and sjarrison thi-ni, !..< iitil. HuViordinale J'orfcH under the connnantl of the principal one." Lord Ahkudakk-— Suppose tl»e HudHon's Bay Company had pushed ffuwan! and came into collision with these forts, ami there had been H;j;hting, tliero pndialijy would have been what would have been consitlered a case of war — do vuu >av that the french would have considered it a violation of their territory? Mr. ScoHl.K. — It was one j^a-ound of the wai- thr.t led to the I'euce of Kyswick that the setthMiients of Hudson's Bay were attacked by the French. r,ord Ahkrd.vui:. — Tliai is (juite ani is nientioneil, that is north of the heij,ditof lam), near Jaiues' Bay. The Lord Cha.vcem.or, — That I suppose is within the undisputed limits ''il. 1 ,nav of the h..Lht of lan.l uif .,K .^ .■""'.'.'" ^ "\t''T.tory to th. north or wo.st of the h..i-ht of lan.l uith which w! .v i .'•■'■','^'"'>' ''' ^'"' "'"■th or wo. of the po.s"t.s ih.pen.h.nt n V^^^Z ^T^^ul;ir" '\'' ''"'"''• '"-^ Alihi. cortai Sioux and iS. Al.toinc-tlu. k Kr " t ! ,^^':";';:'^*'^'!'- : -^'l the posts of th iin lie lar eh Sioux at^ 8t. Ai^oinc-the latter o^ 'l^i^ Up^ "m ^ ^ Sir HoBKUT ( VM.r.rEK.- -Are there any of then, > .'i-st ^ Lord Ai.ERD.M^t"'n'i« 'm.e there : and it is an histc. S '^^I't nt!;^i I ^^ " ^''" '1"^ """'t'-'- the .lependencies there e.xten.led , on a, r^^.V f l"''! " ," "i 'i''''^ ^"'"^'' ^''^^ the fort itself was south. And of tl s . forfs i"/^''" '^^ '"'"'' "^'^''^'-Kh Nopi^n, some were situated h'v::!ridU.:'he!"McJ'Er '"" ^^ 'l^I-^'-'ces c.f Mr. M. .WAT.- 1 here is a fort at Lake 8t. Josei .h was i;;;'t: (i;;;;^:"'-"'-'^"^^ ---^ ^^ ^^ --tiy withm th. H.uits ., .hat ?;:; Ua^i'cH vv'nor'^;^'' ^'.^''^ ";"'*^ ^'-" ''y the award, of the Lako^t. J ;Lph '■"'' '^ "•*'"' *''"^« ''""t- 't is Uy the south hank t7T^ through the territoit'tfl^^h t, itl^ ■ '^t ""'ti' 7i ^''^^ ..Iso tort kan.amsti(,uia, near Lake Superior " ' ' ^"" ^^^""^ "» tl.at time as being what w.^ u'^.i fco^ if Can', u"' '1 T^^^'^^ ''"^^"^^«'' ^^ says Ju,st before he ha.s not been ah e to Id xw^'exaJri . "",^ ","''?^'' ^'^ .0 to^otlje. J^ti^ii^lo .' fKhtf '" "^^ '"^'^^•"" '^"^^- "^'-^ • ^■'^^" '-ve to the li^^^ri^ssice^i^^^Kin^^^ ^,1:;;^;-':' ^- -^: i^^^ 89 AROVv'f^Nt or ATToRNlr-OK.Vfi^M. oy (iNTAIIIO /'«• gCKSTION OK |li»IM»AllV THE KKKi tlnTiloie I lupito.-if tluit to l)c in your favour, nt ••xrhitliti^; tlifir bounduiv. whioli in till! line (rm\ tlu' Ohio to tlic .Mis,si.ssip|ii. Sir M.,\ I Adi'E Shitu, 'noit would i-iirrv you to the west of thiiii Imundnrv Mr. Mow AT. - Thcr.' is <|iiif h nnniiifr of forts hetwet'ii the MlH^iMHippi »iriti<|nin wouM he. It also is west of that dn.- north line Von will si-r i-'ort William there, and then the Indian name urid. j it The present name i.s Kurt William. Sir l.'oiiKitr ( oiJ.iKi;. - Yes, that is nut in this list. The Lout) I'HA.NCKl.ou. The value of this is that thoy art; all forts in Canada. .Mr .MovvAT. — Ves. my Lord. There is another in this list which is on tiie I'pper .Mississippi ami west of the due noith line Post Siou.x. Sii RfiiiKltr « oi. I. IKK -Where, is that ' .Mr. MoWAl. — Tiiey are not marked with tliat name, hut that is the ),renerMl name whieh they received. Kort St. Croix, Imiit hefon- ItiH.S your Loidship will .Ste ther<' ii>iii iitl III/ nil /III' iiiitji^. Sir lloiiKitr (,'ou.lKK.— -Is that in this list ■- Mr. MoWAT. — It is included in the word Sioux The word endtraees n numher ol whieli that is one. Tilt- Loiui CnA.scEi.i.oK. -No doubt that was, I suppose, in Canada until th.- cession to the I'nited States. .' Mr. MoWAT. — Yes, my honl. Sir HoiiKur < OM.lEit.— To the west of Lake Superior, no douht. Sir MoNTAiiiK Smith. -Theie is a fort just to the north of l'i<,'eon River- there is a number of tlxy.se forts which you say came within the gem^rai deseriptimi of the Siou.x. Mr. MowAT. — Yes, my Lord, and Canada at tliat time was considered in extend over the Missi,ssip])i to the wcat bank of it, and ,some of tlie forts included under this name were on the west side of the Mi.s.si8.sippi, and they were all con sidered as part of Canaila— but of course that portion we.yt of the Missi.ssippj was not ceded to the Kngli.'jh. The Loud Chance:. i.or. — Where is Miamis ' Mr. iMow AT.- -There were two of the name: one t" ';he ;^outh-west of Lake Erie— a little below the most southerly |)artof it ; the ouier vi t' e south-ea-teriv shore of Lake Michigan. The Loud Chanckm.ok.— Then it .seems clear tli,t\ J. whoie of those foib are within the district which it is not in controveisy was ('anadian, or only in controversy in the view ot tho.se who draw the line up from the Ohio. Mr. MoWAT — Y'our Lordshij) will lind .several named on the Upper Mississippi. I i.stance, St. Antoine is mentioned ; it is .spoken of as beini,' a tine one. That is erion of which we have been speakina^. 1 shall give your Lordships more '. '• " forr<(> tion about these posts in the further evidence Lotio. t.'HAXCKM.oR. -It .seems to be e,stablished that there were these ;•■ 'pU t.) be in C-^.vada winch we have at page 60-3, and that in the terri- ii. '' were treati'; as Indian territories, for some purposes at all (events, ' ' " ■ he "ti F in p.; for: tori __^ __ _ the Krench lia.i nther forts ae.pnred in the manner which is described in documents. Mr M(Hv\T — Then, I may a.ssume for the pre.-:ent— Sir MuNTAOt^K Smith.— '^ou hnd better go on with any further evidence. 90 THK ynVS H l'..,S.S|t.s.SION K\ l|»EN(K iu>nHK II. >t;.SK OK COMMONS COMMIITKR, 17*H. l-fnr,. which eviJonc.. was tHkVr«,I. T i '''f """^^' .'n„,n,„on, ... mn* Hay Company «,i>. .HproHent.-l. u...') ( ..r-f,,,'' wuT. "'"? '.'"'''',"'" '''*' Hu.lson'n "Think, that th,. leaver, which an. T . h ' ^'^"'■••"'*'* "^^ th.. Fr..n,-h, fro,., th.ir h.,n« a hmvv co>n„.',„|'i, ' .'7,/" '*"' ^'""P?"^ ar« refuged hj with the compai.y HiMp«M.M.r Mm ir ..nail valnaMofurH t . I" i-''*^'T ' ""'*"'" '** *"^« luiftvy goo.JH to tl... .oMipaiiv in Huinin.., *|„.„ ' ;"^''/"^'"" drench, ai»i Lringdown ih.'ir Srr«Curi".;'!' '•"'"'" "■"" "-^■'^'""'""■z::!^'"''' '"" •""■ *"" w,.vJ!t'i;;:;t ;';:u!:^;t^,,;';:l;;7^-^ .h.nrt,.,d..aa th.. witn^.-r ... ...Imn to ,1 bi.n th.-r.. van a Fr'nc " I n"^ ;\ '''""'•'l/"- soutl.w.ir.i of th.. w..st, at th- diMtunc,. .. t) « T/ ' "? ''"'*'■' """'-""thiiiK to th.. Th.. Kr.,a.h deal iu l.«ht furs. a„.l uk ^J u " ; V^ ^Pl'-*"'-'- -f "l-ut .if?, .nil..,. Tho Fronoh M.lti.n.n.t nn Moo.,, fliv/r V n l!t r''?''« ''"*» •♦''X 'iRl't furn tl..' 0-,.any h.vo not hUdy ^.^mptld ll^vTrh^arrK do " ""'■'■^' '''''''^- ''^-«'' '- just now ' ^^ '"' ^^'''" ^'•tH'"i..nf that y „ w.-re referring Ur.i AnKHi.Ai,K,--Ves, 1 thiniv .so. .....M^riJiv.::'''^^,^;,!:;:^;;:,;.^^^^ or rntuT int.. Junn-s' Day. ai the to. tf Hudson' u'^' "r^'" '"'<' "■"'-'"'^ l^ay, that this fort wa.s l.uiit. "'''"' ' ^'^•>' '^ «'«« "P'-n that riv,',,' f'- ^^^^^'^'^'s,;:!ti!'^^^^ the F..nch didclain. - in hich it The LoHD ( !iiAV('Pi I nu 'vu .vi,lH,tIj- ""'■'.'■'•"K^-lhe.,. w,t„cs»o» are certainly ,,i,e.ki„g ,„■ t„,,,^ 91 ARfilTMENT <»F ATTORNEY-OKN'E'UL OF ONTAIUO r<' giKSTION OF TlOrNDARV French went there lirHt and are better beloved, but, if we would go up into the country, the French Indians would trade with ua." Alexander Brown sayo : "The French intercepting the .Souti)ern Indians, and by that mean.s obtaining the valualjje furs. Has been informed by the Indians that the French Canadcse Indians come within sixsooro miles of the Englisli factories. The French Indians come to Albany to trade for their heavy goods. Ha.s ht^ard Mr. Norton (the governor) say 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 separate traders must have out- factories in the same manner the French have, which thf company have not ; " itnd being asked, " In case these out-settlements were erected, whether the same trade could be carried on at the present settlements," he 8i«id : " 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 wore near the French, they must have garrisons to secure them against the French, and the Indians who trade with an-l are in friendship with them (whom he distinguished by the name of French Indians). He heard the Indians tell (Governor Norton, in the year 1 739, 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, and contained sixty men with small arms," I think eighty was tlie number that was u.sual at the fbrt^,, according to tlie evidence. The LoHi) CHANCi;r.[,OK.— Where is Churchill ? Ui. MowAT. — It iis at the mouth of the Churchill River, on the north- westerly .sliore of the bay. Then there is a general account of the proceeding.s. ] now beg to refer your Loid.ships to some historical evidence of that distant period, which you will h'nd at pjtge t)4 of the Appendix of Ontario. The Lout) Chancellor. — That is a .separate book of documents, is it not :' Mr. MuwAT. — "^'es ; a separate book of documents — the smaller liook. I will read a little from the beginning of this paper It is from Sir Alexander A[h.-- kenzie,* and shews tht- cour,se of proceeding, and confirms what f have said as to the P'rench 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 procure the necessary supply, were encouraged to pene- trate into the country, and were generally accompanied by some of thi' Canadians "— thi> is telling the proceedings of the French-not of the Hudson's Bay Company -in tlie North-West territory, " who found means to induce the remotest tribes to bring the skiii.H which were most in demand to their settlements in the way of trade. At length, niili tary posts were established,"— that means by the French— "at tlie confluence of the dillerent large lakes of Canada, which in a great measure checked the evil consequenees that followed from the improper conduct of these foresters [cotirtntrs ilea bois], and at the same time protected the trade. Besides, a number of able and respectable men, retired from the army, prosecuted the trade in person, under their re.spective lioeuses. with great order and regularity, and extended it to such a distance as in those days was considered to be an astonishing effort of commercial enterprise.'' Then, speaking of missionaries: " They were during their mission of great service to the commanders who engaged in those distant expeditions, and spread the fur trade as far west .cis the banks of the Saskatchiwine River, in 5H north latitude, and longitude 102 west.'' Lord AitEHluuE.- From that, would it not seem that all these expeilitions were undertaken by the courcurs des boh, from the basis of forts erected on the A (Kiiifiiii History of the Fur Trade, from (.Janada to tlie North- West, ' prmted with, and forming »ii introdiiotion to the work : " Voyages from Montreal, on the River St. Lawrence, through the Continent of North America, to the trozen and Pacific Oceans, in the years 1789 and 1793. . . . London ■ 1801." 02 THE lUli.Nc H I'OSSESSION SIH AI,K\ANni;|{ MA( KEXZIE'S ACCOU.NT. <.'iviiD lakes ' All this shews thnf- tl,<.,. i ■ ' these torts, „n,l tluit the forts were 'LT ,'"'"'"/"'■ '^"'^ «« on, from the basis of "At. length, .nilitary posts we e e uL . if^' I '"' "' '''^''' ^''^^ ^^'^ "'^"^^^'^'^ ^ ing into this open country. I ,]o nnt think if i ''"''' '^'"'''^'"^ ' ^'"T ^'^^re hunt Mr. MowAT.-I shall sh.vv ' e i f'T '"•" """''^ ^han^that. nun.her of forts south of tlw i^rea lake tl 1!%^ ''''"■ '"'"'*'••' ''^ 'l'"^« '^ l"'-^'^" th.. great lake.s, an.l in this North -W.stt.ri ^^"'"-'/r f ""'"'^^'i' also north of |'Urpo.se- '^'"^ te.Mt.ny, which T allu.l.> to for the Sir MoN-TAGL-E SM:Tu.-Tho,so on the mvat l.k.s .. iieJv. fe"at lakes are most important for us Mr. MowAT. — But it is not merely tl The very next para^rraph sliews it : """^' '^' '^^' '^'^''*^''''' '^"^ >'«i' »'^'''t«-l alon^r. "They [the nii.ssionariesi wprp rhi,.;,,™ n ■ • • mauclers who engaged in thidisC e4JH;L'r''r' "'' f '^^'^t ^^^vice to the .om- as the banks of S.uskatchewine River in S'on/rV/'r'' "'' ^"'^ ^'''^^'''^^ f-^'" -*'«« llegiye,sthe latitude there, which;i .^ h ow 1 ' ""' '""^"■"'^' "^" -«*'' " Notwith.standini. all the res St^or , w' ^ u ^'"'^' ""'""f "P • French governn.nt, the fu. ^rade wa^^^ n, ef to' th""""'"" ^'''^ '^P"---' ""'^-^ *»- l.«en already stated, and unmounted many mo ,,i, -^ """"^'1" '"'^''"'' ^'''^^'^ ^''^^ hereafter noticed ; while at thesan.e tiuJ no ^vt^T^^"" f ""'^"^'^ "'^'^'' ^i" »- oLain even a share of the traJe of the count vwh,! T'^'' ^™™ H.ud.son's Day to Oompany, belonged to it, and fron" ts proxhn ^v t' T"^']'' '" "" '-'''^•■^''^ «*' ^hat mercantile adventurer." P'oxnnity, is so nnu-h more access! hh. to the «n.!'';„\Tuin'r"°'' ^'"■'■"■■'.•a.l-v...«tl„.,„„, ,,,,, ,.„„„,,,.„ „^ .!» '^,X: ''""■"'^^'•"" -^Tl"'- - nothi,,, ,,,«.i,dlv ,„,„„t „„ „„,,,„„i„,„ „,. i'l, i", r' *" ""■ ""''■*"■" ""y """'1»1'.) ''■""■""■■' ''■"'■'■ "*" "' "f tliat Oomiiany bciongsT'to it.'"'''' Ti'm c™r,tl'!."'l''''' '"""-'I"'*; >"' tlie cliHrter km 1 .i«r c, rt.,iiilv 'li"'s assum.. tli,i i,, aaonse, it al,';',*!^''""'"""-"^"'' '•"'"■» ''■•»■"" r.ot.. it „s „„ „„H„„.it,, ^,,„ ,„„^, ^^^^; I lici„ <,.,.„i,, no ,,,u.sti„n ,,l,„i,i ,K. i .... i l>nrp"« of tra.lc e.jr(aiii foil, 1 1. t ■ : t i AR(ilTMEXT OF ATTOHNEY-GKNERAl, OK oNTAUIo *V vUESTlON OK HOINDARN in that country, or at least till fclie frost shouM stop him. For this purpose he procimrf guides and interpreters who weni acquiintwl with the country, and with four cano.js arrived at Fort Uourhon, which was oup of thuir posts, at the west nml of Cedar Li\k>' on the waters of the Saskatchiwine.'' That is a trood way to the west I supjiose :* Ml- MowAT - Yes, a <4Toat distaiii-e (o tlio west. Sir MonKBT (JoLf,iEii. -J aw, several fWrts are marked. Mr. Muw.AT. -Yo.s, all the iuiportant une.s are marked. The Fort f-Jourboii here mentioned is marked near the i)oint of di.scharf:re of the (Saskatchewan int.> Litke Wmnipecr. There is .(uite a nnmlyer of forts; J have not mentioned ^li.ni all yet. Lord AiiKRiURE.— Is your contention that all these e.vistinj,' plaees r.,iind IVIanitoba t'ormod a portion of the distriet of L'pper Canada. Mr. MoWAT. Yes, my Lord. 1 am not claiming them now, bnt the\ furiii.i! a portion of it. They helontred to [:^pper Canada, because they were ceded 1.^ France Ut Kntrljuid. The Lord Cuancem.ou. It Is quite clear that that is what Sir Alexan.l.i Mackenzie speaks of, because he says in the passage just referred to: " For this purpose he procuriul guides and interpreters who were ac(|UHinted with the country, and with four canoes arriveil at Fori Bourhon, which was oae of their post.s. at the west end of Cedar J.ake on the waters of the Saskatchiwine. His risk an,i toil were well reeonipensed, for he came hack the followins gprin;'with his canoes (illMl with fine furs, with which he procee.led to Canada, and was satisfied nev..-r a-'aiu to return to the Indian country." '^ Ml-. MowAT. Of cour.se lie referred there to the better settled and I .'tt^M known parts . d' Canada. If your Loi-dshi{*s woubl permit me, I should now like r- call your Lordships' attention to a few more passages bearing on this questi(;ii, m.- It IS very important. Sir Alexander Mackenzie goes on, at page Go, in this wa\ " For some time after the conquest of Oanaila this trade was suspended The trade by degrees began to spread over the difTe-ent parts to which it had been carri.'d l.v 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 hosti'.^ feelings towards the English, from their having been in alliance with their uatuifil enemies the IrO(|uois Hence it arose that it was so late as the ye-ir 1760 befoi- which the trade I mean to consider commenced at Michilirnakinac. The first wli,> attempted it were .satisfied to go the length of the River Camenistitiuia. " Sir RoREKT Collier.— We have read the whole of that passage already Mr. Mow AT. I beg your Lordship's pardon.—Then there is a report bv Colonel de Hougamville on the French Posts of Canada, 17.-)7, which is at pii.'t- 25 of the Ontario Appendi.x.* Ife deals with some posts that are not nuUrrial * From his "Mminir on fh- State „f New France M the tinu- of the S..ven Yt^^rH-VV..,- ,1707' in Aw" , n^?!"V ; / ""t'r"^' 't ''■?■:' ■"";"' ^^ "1"1 ;'.i'/■ r/'l. /■"'! ";"''f.^" ""''^«'" t "" '•"';"*'■>,' ""'' >"-,.nomicato even with Calitnrnia. Th, a He l'. if ";'/•"•";■'";'"' '*l*' f'/:'".-^.'' ^'r"-; ^' ^^'"*''"«- H'^'-rbon, He la Kerne, Kauphm, l'„sk,„a. l^rrSt liliV '-l /? A"'T(''''l''^"''rV'^ '■«" K'^'' V'r"U'<.'U,m only against the Indians. tZ:.^ f lerre ij, «,t,|ate- on Uie lett Hhn,-e of Lake Tekamannouen, or La- ,le l.a I'lni • ( Rainy Lak,' |, at m nTTll. i'"" ;^' '■='""!""'•<'•'»><■, «";l ••(OOfrom KamaniHtiKoya or /« Tm„ li,v,.rel to the n.,> h «..t of f,ake hupenor tort St Charh.a is situated bixty leagne.s fron. Fort .St. Vierre. en a peninsula llmt goes far into Lac dps Horn [Lake of the Woods). Fort Bonrhon is at npe h„n.ir..d a-i !if"v v.,"!e' of X l/ivT'^'f o!'^ T"' "I"' f '■'T ""'■■"■''■•' J"' ^^•'^'^ ! »>'ini|>p^r. l-ort la Heine is situated on the ri'^ht 4,nre nLi^ l^'vprof the Assiniboels at seven y leagnen from Fort Bourlnm : this country is composed of vast praii les ; ,t is the route t.. ko thn.ugh to the upper part of the Missouri. Fort Dauphin i« at eighty leaKtie,. 94 )i NDAin THE FRENCH TOSSKSSIOX aces I'oiiMi -i>E h'^- refe, to " Post of the \V^,sU.rn Sm (La Mer dp Vf tb. most advanced towards the north. It sS ;,7 V"'' "^ """ ^^''•«^«'-» ^"'^ i« whom w„ trade and who have int.rcoursra ^ S , T '1!^'"^^ ^"''''^ "■•*^«'' ^"h Bay. W,. have there seven fort«, l.uik ostooka '^»^- ^ Sir RoiiKKT Coi.LiKii -But it ,•?,. f '">tant p^iiod whonn His nuuie on what occasion' •^^"^^■""'"^ ''3- ' •oh.nel ,le Bougainville, to Mr. Mo.-AT.-The h^k w': , inS^fn '" ''^"^" ^— ""-'t, or what ' The Unw ('HANCEM.OU -Howeve I ''"'""'' ^'"■''^"'^^i<>». imrticular post, which I suppose is Co tMvZrT'!!^27 '''' '''"^ ""^''"^"^ "^" ^^ for whom .' it is the oniv "•eaiis all th.j North- W.-.t Mr. MoWAT. "The Post nC th . \v \l' -7;^? territo.y^ What follows Jlirt^l^r ''•^^^^••" ^- ' if;. ';i^;;^rit^"[hr;i:;;: -!"^^'v call., .. u M.. ae ruucst ^ ■ l.eriodl69o-17G;i, to :::.^Lr^,^T::^, tal'lJ'"-^ .eogrupher. or the ropresente-i as connected with the ocea at hVs • , ^'"f '''? ''^'''^ "^ America, passages or straits, its position corres on^^^ ;;»'' /^"^l ■snhs,.,iucntly by two f.ulfot (feorgua,(Straitsof Vancouverram he/ "' "'"^"- ^" ^''"^' '^^ ^l^e two entrances to the latter, r s^ 'cUvl nr. H? ''"T"'^ -'n-e.spon.ling to the Wa,Kl. At^l it was supposo.l I a Sm t Lk T' T^\ "^' ^'""^o-'v.rs We.stern Sea n.ight he aceompHsE o '^ In ,V «''.."''■'''•? '^^''•3- <'^' tl'i'< Ocean) he reached. ' ')\Lii,ni,| and the .South .Sea (Pacific ri,,. (.0,., cw,,,,,,,, _,, „.^, ,, p,;^, ^__^^,_^^. ^^ __^ ^^^^^^^ ^^_^^ _ ';' t)"' riv.T „f that n " i tL .J st h 'si, ?'f ''''' '■%''^ ^'«'"y '"««>'«" f m F .rt '. KLr.n "■" ^l'-^'" f''""' ""« ; e .■.stakhnu.nt; o ' tC E S Ii'^'h';.'.'?' ""^'i,'*"" ^"'' ^"•■' »-""- the first that ,> i .. yg 'U.ii.antas, also conipoRir.jf tJiree \(«ir.MKM OV ATI'OHXKV-IJINEUAL UK ( NTAlilO re (/IK.STION OK lidUNDAIiV Mr. MowAT. —Yes, my Lur.l, you will sec tliaL hy tin- paiaijidph liegiiininsj; . "The post of La Mer d' Quest includes the Forts of St. Pierre, St. Charles, Bourl.on !>(■ It Rcine, iJanphiu, Ponkoiu, itul DeH Prairien, ' Tlic LoKi) Chaxcki.i,ou. - I wantcfi, it i.o.^sji.i,., to si'n t\u;u\ on thr iiia|.. Mr. MowAT.— Th(!\- are all on this map \IIh' ()nf(i.ni> (rceni ,i>"t)f man] Lord .\liEKl)AKE.-Thi'< ootnitry is oiII.mI • La Mor (V Oiiest." Ml'. M()\v,\T. - All tlicso forts an; con.sidorc.l to be included in it, aii of the Riv-r Wal.iek, or to tli.' Cnnuille tWHiitythrnH villages of Panis. ' ' To thf .^ontli-west ..f tliirt river, and on tliR two shor.w of Onona.-adeba, or h la Grains.., are the Hactanuos. or ( .ens du herpfiit. Tluy i-xtcnd from the foot of a chain of verv high niountains jtlie I'wky Mountains] which rim north, cast, and Hoiith, and to the south <.f which is the River Karo.skiou or Ceris/- fel<;e, which is .suppo^ifd to reach California. He continued his journey, and found in those vast territories, where the Missouri has its souichv, opposite to, and about forty leaKue^. from th.- .Vliiliantas. the Owilmioek or Hean.x-Hommes, four villaRffl: opposite the Urochet-. the .\tacateouala-itfs or I'ieds-Noirs [Blankfei't], three villages of about 10(1 i-abin- each; oppi's'te the Mandanes are the Ospekakaerenousques or (lens du Plat CHr, four villages: opixisit. tlie Panis are the (..ens de 1 Arc, n.inied the Atchapciviniociues by the Christinaux, and Utasibaontc'haotiis by the AtsiniU. els. three villages ; alter thes^ are found the Make^ch or Petita Renards, two villages: the » riva,ssa or (.rands-Parleurs, tliree villages: the Kakakoschona <,r tJens de la Pie five viliaws the Kiskipisounouinini or (Jens de la Jarretiere, seven villages. He could not go further on account of the war which was then being wage>, p. :>f) : "(^ut of 120 men and ..fficer* the company have in the Pay, etc. 9H OUXDAKV THE KHKNCII I'ossKSMov ,„.: l»""AI\Vl|,|.K's AOCOIJNI. 17.n en and dfficer^ their movements can ije rt-atcliml • th > i u Western 8oa,nuyUa...on,plishe;i; hu~ ' t^.f''''!' '''*' P"'' "'« *^'«^'"^«'-3' «'" ^he th. ro//«^««r* give up all views of pergonal inlor, ^t ' ' ''"""^'''•^ '' ^'" '"' necessary that Tlien he govs on t,. «av. arnon.'st othiT H.i.u-. , • . purpose of di.sc.ov.My. Tlu- Fm.ch nlv . vs I Pi " . "^ ''"''" ""''-''' <^'^«" *■"•• t»"-' stantly .waking Jiscoverios and ^Ken ]in .. i ' '""^''-''" '" '''^''■' '^"•' ^'^^^e cou- havo tlu" lUt" f Tal.itihi. ^-^^'^"'""^^ - I'en ]H..,s.,,sK>ns. Then at page 2», we "Tabitihi is a p.wr, doneii(i.-nt nn,.,. t,.. • preceding fort, towards fludson's iZ FrhToT,' "''"''• '""'""' "' '"^^ '"'^^'"'■'^ f''"'" t^'^ subsist oti game and tJ8hin- ^-'f 1 have collected the evidenep liom ;„ . i posts. Some of it I h^ve h1 ■ t d "m^f^' n '''''>' ^"^ "^ ^^^^ '^^''t^ and know whether my learned friends on 't other J ^'' ""^-^'^'^ ''*^'"'' ^' ^ ^o not, these things, """ "" "^'^^'^ «»^« a^-e going to dispute any of French writer, and as you sav^OujdTdative^^,^ ^'•^"- ''•>• '"^ ^^'^''^ ^"<>wn "lent of Quebec. I should tl^ink' h t^inhl^li^l :ff''"'''^. \'>' '^'' '''''^-^- ....crr^r:;::;^:^.,:\s::;tJt.:''"tli/'r r^ '-^--- ^'- be disputed. The question is, as' re Lr^(1n^ 1 ^^ ^n-'nrhnien would not Mr. McwAT.--.-Well, for the nrese t sW h' ''^ r^"'' ^''^' ^'^■^■^^*' *'*' tl'"t. putting together the va,;t anu n ^ t JeL t erfi h"''"' ^'""- ^^^',7''^'^'P'^ -*"' , Then, as your Lordships have asked l ^''^Y "I"'"^ •"-•farthisten-itoiy wascliiiun.;^ :^r^^ '7t''-? "-" - - to reter your Lord.shij.s to what anneals u or /hi'- J"^^ ^" '*' ^ ^^'iJl .•orisiderahle e.xtent in historical Kn..nt nt"S;^'^ '-'r^t t is necessarily, to a ■ r!^T ^-V H ajK:titior^:efSZ"u ^i:::^J J'!:!' T-^'-:,- -t page C'lp- l'U1818),whichisentitled 'A Ae r M • ^'•''■^'^"'^''^^ '^'^ <^^«''- •>. Crimes .nd Offences, c,.nuned\yitlnl-Pr "''''' '^'' "'''"''•>' ^""' ^'i"' « -ned Township or County, ^^ 1^1,^". 'rr'^^I'S^'l^.^'- 1.-'^^^,?^ any ---..^ .,..>, v_.m::iii;e.S, COinnUttea within ih',^ V>.. • ■ 1 ■ \""J """ I'll*!! Ul described Township or Count' 7 b.d ''" n'"'-'"'''^ ^''•' '''''i*'^ ^>t" any * Hec. 1 nf thu A„t ;_ ... , . . .. ■ '^ All.iL'.MKNT OK .VTTOltNKV-fiKNEUAI. OK ONTAIUO re (/irKSTION OK HOCXDaKV i: one unil the passa.sres that \ am ^voin-r u, road to your Lor.l.ships ar.. tl orrly ono. pn>hably that arc matorial (br ot.r present purpLs.* Tl e K ul" f 4 ^ k,rk coM,|.la,n... lot th.s Act, an.l h. wishcl ti hnv. it diLllowe.l 410 M .';. i""r. <-"f .'•^;''''^"!— / '1'^ »"t «ee that ho co,„pIains of the Act. Ar rm .. Ml. Mo\\M._i,,s ).„t |)roco,Ml,n-s in coni.oction with this Act; ani I Iriv. a statornont hero wlu,.], .hows tiiat l^,,per Canada was clain.in.. jurisd," ioV 1 IS one piece of evidence to sliew that Upper Canada actively in eu,^ diction beyond the due north line «.«.'.nLiy ti.uniui jui. ■ Lord Ahekdark.-'' Westward to an indefinite distance," he says, whie^';^;:h;:^•~^,:rv:^e;;;;:'•^iJ^lSini' ''''"- -'- ''-" - '''- -''-- .lunction of the Kivei.s Ohio and MissiHsippi,"— ^ "' Of course that was his point, that that'was our limit, and he savs that tin. Tti;;; : ^•-•■l'-'»<^nt saying so, and that the Chief .lustice actJ^ in t,S:;;i f. vv'T"'^ ill apposition to th.' unanitnoas decision of the court at Quebec aas.ru ti>u That i" tlTo ev ?' °' ^''P^",^^'^-'^^^ -^-t ^^^^^--'^ *" -^ indefinite cUstun- '"" l^-^^^l .t^^ Ikl.L^ ?T ^'^^Sy'^"'- i^ovd.hlp read just now. So that there rh, Karl ot Selkirk poine.,mt what It was which in his view the Chief Justic. i Upper (.anada asserted on that subject : ' " rinit in onsequenco of this extraordinary doctrine, your memorialist is apprehensive that under the provis.ons of this new Provincial Act the Chief Justice will not hi , SeS^i-iJ^i^^iti::;;™?^^^ ''" ^-^'-^ -^ ^--^^"« ---^ p--- -w residi'.' ";: rL^t-UsUnlfSLf'" ^^ ^" ''^^^"^^' ^^'^^^-"^ '^^ -'-* ^^ -id in r. vour^v-m'!" '^"■^"•'^'''^''-You cite it as an historicol statement, but is .r „. Mr. XloWAP. -I cannot press it beyond what it says Ihe LuKD C»A.NY;Eij,(,R,-_lJecausc it says : ,:ani aiithorityof tl.^.sa„u., That al rim'. 1 Z^^^^^^ nf the 8akt Pr.viMoe,' " ami U tl,f of this prnvinc.., not l».i„« wi( .i„ X' limtV f a^^^^^^^ '" ""^ "^ i^'"' ^»,'^' t^«<='« "f '"'""try o, i.art. tried willuu any l),,st-,ct ,f this ., inc" ^i mw tr/^^^^^^^^^^^ townHh.p, may be m.pnre.l ,.f and within th« iurisdicti*"■» "'"'unttecJ to trial, .i,ul,Mne..t, and ..x.^outu.n r , he I nni j,me t f^r « ".nh :.l.o'''' ""V ""'y'*"'i "'''''" ''^'"=<^<"' 'h'T'-n «uoh crime or offence had been rtallv e urn Uef,Wtl in he nL, ,'"'' 7 '"^*'"'-'u' '" ^l"" "'""'' ""^n"" "^ 'f UHaKo, orcuHton., to the contrary noUv t Ita nd „» '"^^'''' ''"■ ' '""'" '"" '""'• '"'•' '""' *Pktitio.v ok thk Eaui, of SKLKniK, 80tli Jilt, I8l!) ''" "" f!r',J'^nu^!:J^' '""-'" "^"'' ^ov.,nUtu,f Prir, Oou.u., for th. (iffnirt nf Trii'tr unj The Memorial of ThoniaK, Karl of Selkirk — Hhkwkth : That, in the month of SoptamUer. .me thouMnd eigiit hundred and fi.Vhfoen , u\u ^t re. . preferred against your memorialist at ,Sand^^■ich in the \V,Mter nLrfnf ^'^tt "• a Kdl of Indictment »as to destroy tiie trade of certain furtrad.-r^ cillimr f he 1 1. If m .7°^.'-^ '' P''**'' t''*"'*'i». f"r a cnspiri.cv That: as they could not succeed h, ih.'rZle™^^ (-'ompany of Montreal, ' • District a true bill a^^^;nst your en riaiVtfo^ '^'^"' ^"■""' '■^'' 'i"-*"'! -r^'ry in thr West, rn your memorialist .and nineteen other ?r^o„; m J of wl?; ':'',f ';"*'"', , ^^'- ^''" '"'' '"''^" f<"""l «^-»i'"^' evidently for noot,,erpurpo,eth.ut.^pL;;"^tr^:1.;?^--,;^r^;i;^.^^';rmli;!rH:j^^ 98 ASSEKTION OK i^'IMt CANADA TO IJIK NOKTII-WEST. e sentt'iv.'es I'ru'lr una "That the Chief Justice of UnDerf'nno 1 • j • ' ~~ .lecUrns the western i.oun.lary of 0.r.H,|a to 1 ^ Tifnt l'"' °^ '^'\^'' °^ Parliament, which lumt.onof the Rivern Ohio and Mis^issipp 'm n ' ""'■'^'^^''^'■^' ^'•'^'" ^''« Point of of tl;e court at yuehec, asserts that the wSorn ,i . -'r'Tv" "* ''"' -"'^'"-nous decision wf.r.l to an indodnite distance. " "'"-*■ "^^ ' i>P«r Canada extends we.si Alr^MowAT-Ves, l/ut yot.r Lord.hip will not t«l- i • Act of Parliament. ^ "" "o* f-Hl-ri' 'us coiiHtruction of ^lic The Loud CHAXci.jLi.oK.-[f yo,, „sp if „. . , , must u.se it for all. How cun it ho ■. .f„. . statement for anv purpose voir Mr. M0WAT.-N0, not u-th rll^ard tr i;:i:l T^i' '" ^^^^' ' |)urpasp. '^ '" "i^^ I'g'its. I do not rito it foi' tliat Sir i^ARNEs Pi.:AcorK.~7ou eit^. if . 1 • as,sertion ..f t]>e Chief Justice ""' ^"''''J'-'chI stateiuent only of the iVIr. Mou'AT.— Yei, my Lord Lord Aheudauk.— Wore th..«M onfu „ • x , . ,. ,Mr, MovvAT.--Onthe^t;y ,r^^';'^^^'''» '{l:!-" ^ -Wda ^ ion wa« therefore in tlj courts of t^^^p;^ :;;;;.::" ti;'""'' f/"' ^''"^ *''•'•!•"- '" ' - ' ' ■ • ^"^ "" tl'.e part or Lor.l c , ;.K fP '""'"^'"" '» tne courts of that piovin,.,-" 1 ' T; ' ^"»^ t'.ejuri..- ^.'Iku-k, they were claimed to have lieeri co mmi f V- . "" ,^'''^ l'^''^ '>f Lord and to he therefore, under the In.perialS 43 "Vl-^'' • '^''*"" ^^'-'ntories." only ot the courts of Lovver Can/ula, unle^ Se ated' f. '^' ''•''"' ^''^ ^'-^^'"i^auce m^nt imder the ^reat seal of Lower Cm^l^Vf^^ .!'^ T^^l^ .^^"^^ ■ ''V h.stru- it j?i »«.t -.'lor tl,» ..„.at seal „f L .;, ?'Sr '?.''''' *■'"■ »'"■'■■'■'" westerly ,m,t wa.s a due north line tro ?lij l' « V?- *'•" '""" ''^^'■' t'^^t our heen held belore. a.ul never acted upon I. L f -Miss,ss,pp,, This !,ad never pnnt before your Lordship that , ,? ' '^"'';' ^"^'^'"''^ '"'""i th.'se pai-ixTn t^at ..onstruction of the C^ R 1 ^ : t w^^i:; "'■"' '' ^'"^'""''' ^ ^'^ -'-^>" ;leal o corresponimr>/.K;..K. 4. C. .i . . o i ( MJOUMKNT OK ATT()KNF.Y-fip;NKHAI, OK ONTAUIO re QUESTION OK »0;'NI)AUV ciwe-the oiiiv caso- in wliicli a decision of that kind was niado. Tiiere isa if.vat rnasH of «!vidotico which wo havt; now, ami was not l.ffore the court then, ti/shew what till' trui" onxtrnction of the statute is ; for instance, a vast nuniher uf coin missions, and the Judges had not the advantage of those coniniissions ; and t]„. ^Creat ari,nnncnt-- tlic conclusive ar;,runicnt - that the Act of 177+ recites'; that its object was to t,'ive a [,'ov.-rntnciitto those colnnjos and settlements, namely tli- ^'ovc^nIru!nt of the Hritish (Jrown, was not l.rou<,'lit hefore the court at all; nor was ;i ^neat variety of other matter, [f reliance was jiliiced on that decision [ could shew how very little material for jud-incnt upon this point the court ha'i the judfjrtuent was nc^ver acted iipiHi ; it was not acted upon in that case, find it has nut liecn acted upon by any court since. The Loiir> PiiKsiDKNT. -Was it not acted upon in McLellan's case C Mr. MoWAT No, he was aci|iiittei] ; and on the occasion lain mentiunim. tj,. Quebec court char^^ed the jury, and the jury came to a conclusion on whiit.'vcri.v; dence was brou;,r],t before them. No doubt there is that judt,Mnent, but your \.m\. ships will not take tlie jiid,i,'!nent as being correct uuless'it was right, and f ar^'ue that it was wrong. " The Loiii) ('HANCKLLOR.— r do not think you can make very much out of , statement of that kind.* Mr. MowAT.— I put it in as one piece of evidence. I am ivsked by yom Lordship.s what is thei)osition taken in Ui-per Canada with regard to this terirtoi\ and that is one of the |)ie(;es of evidence that I put forward, and it is only one > f many. Sir Baknes Pkacock. -The prayer of the memorial is, that their Lordshi) , : " Will take the Provincial Act into consideration as early as possible, and will advL^,. the Pnnce Regent in council to disallow the same." The LoKi) Chan( ELT.OR.-What was done— was it disallowed ? Mr. M0WAT.--N0, it was allowed. 8ir Bahnes Pkacock. -What was the Act? Mr. MoWAT.— It is at page 409.t TheLoHi) Chancellok.— However, that seems to add very little light !>• cause that .seems to provide for a jurisdiction in parts of the province " whicli as. not within the limits of any township or county therein," but what the. tjoiiiK^ ot the ]irovince are it does not .say. Mr. MowAT. -No, my Lord. Sir AroNTAGUE Smith. What does it say— that under these Acts thev mi.-lt go into the.se Districts ? '" Mr. MoWAT.— That they claimed tin- right to go, uml would ijo. Sir Barnes PEAOorK._Had they ever done .so, before the Hud.soiM IIm^ Company .s«!ttled there > Mr. M()WAT.--Yes. I will tell your L.n-.iship what evidence of this tlinv i- J he Hudson s l>ay C^ompany also .send in a petiti(m, date.l 8rd AufKS PEAcnrK— Df. you shew tlint iin.lor that Act tluiio was ovor .ii,v trial I. y till! Ontario jinlici.il otlicTs. in that part which is now inchi(i..(| ir, tin award, l.otore the Hn.lson's Hay Company's setthsiniint ? Mr. Mow AT. - Ye.M, th.-ro i.s somo evidence of that, as I think I shall 1... al.v to show }-our l.onlship; I d,, „ot know wliether under tliat Actor not, but at ail ev.-iit8, whether it was under this Act or not, there were trials. Sir Baknks Pka<'ock. -Vou say there were trials ? ^Ir, MowAT.— Yes, my Lord. Sir Baknks Pkacock.— In the part included in the award, before the Hil! aons JJay Company's sottliuiient ? Mr. .Mow.vr.— Yes. [ shall be a})le to shew your Lordship that. Will your Lordships allow me to rea.l what Chief Justice Powell ,savs, in tht nara .iiraph commencing "The outra-fes," at pigo 410. This is the statement tliu lu makes : ^ "The outiasjes at Fort William wore proHPnted in the Wnster.i District of rDiici -aimtla that Post "-that n.eans Fort William--" imvinj? I.een f,v,,r ennsidered part of tluit l)i8tri(t l,y th.^ proprietoiH of tho post, the sovcrninents, And the courts, y.'t th- huprcine Court ,.f Lower Canada had adjuuged that it was without the Provinc .f Upper Canada." ' He complains there of the adju.lication in Lower Canada beinr; ccmtnirv f, what It had always been considered— that it was always considered to iv j,, tpper Canada. The Loud Chanckllou.— Tho Supreme Court of Lower Canada had adiud.'ed that it wa.s without the Province of Cpj)er Car.ula r " Mr. MoWAT. — Yes, my Lord. _ Sir KoiiKUT Cor.LiEH.— What became of all chis / Chief Justice Powell mn- plains that " the Supreme Court of Lower Canada had adjudfjed that it was witli. out the Provinc of Upper (Canada." What finally became " of that ? Wa^i hnally treated as beinLj within or without the province f Mr. Mow AT. — In that particular case in which the judgment was pronouncud and in which tho prisoner was found j^'uilty, it was dispose.! of in this way Th,- Government sent to tho Imperial Government the papers, tho notes of the tii»i and the points, in orde*- that an opinion of the Law OtHcers might be obtain^N as to whether the locality was or was not in Upper Canada -whether the iiuh'- ment ot the court on that point was correct. The matter seems to have rc^tn' there for about two years. There was a correspondence about wantin'-' the opiUK^n, but if any opinion was given there is no record of it ; at all events «>■ cannot tind 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 Ahekdare,— Are you speaking of De Reinhard's case ? Mr Mow.vT.— Yes, my Lord. The question was whether the spot was situ- ated in Upper tJanaila, or in the Indian territories, which would brin^r it within the jurisdiction of the courts of Lower Canada. My friend has not cfted a cuse or suggested that there was ever a case, in which that view which the Lower Canadian court held in the Do Keinhard case was ever acted upon by anybodv As I have already said, it was acted upon bv no government afterwards "it \u> acted upon by no court afterwards, either in Upper or Lower Canada, and what- ever lavv there was required to be acted upon or put in force in this territory was the law ot Upper ('aiiada. The Province of Manitoba has printed an Appendix in which is set forth a report ot iMr. Ramsay, Q.C. afterwards Judge R.°.,ir.s.ay, discugsin^^ thi.=* question ■of boundaries, and the report so printed has a memorandum added to it ; and it 102 VIKSTION OK TIIK Tlir.K ok i.,.,,,..,( 'ANADA -JLJJUK UAMSAY's loVrF>sro\, may shurten the mutter a littli- if i .. i • ■ done, ami what was w.-Il known t.. I «! i ' "''!""•' '^ really 8h.iWs what was tho ,liu. north line in rrn„er ('a,,, i. t •"•''" ''"'"'■ '" ^'^''^ territory, w.-st of a-lmit, as 1 oujrht to a.hnit. a. a in t. f'l . 7.!''"; '^ "''*;''^ '^""■*^'" ^^'- ^'""^ if ^ is l.twe.n Lali.«P...... • • Mr. Mo>VAT,-Ye», ^,,t m,t „eo4t /^ T^^^ c-Ntra-torritorial .i„,i,„lieti„„. ™a..f[,,a;'™r '''''■'■'"'•--''"" ''°""' -J' ''■-islH t„ tl.„,a„„ w„, e.„rci.,e.l of l»5: tllnt'^H^pLJIit c™Ctco'"„f'' "'"r' "'"> '"'""^ '<• *" Act 103 T. K. R. AlUJirMENT «IK ATTl>IIN«V-(iKXKKAl. OK ONTAKH) re. yi'EHTION OK HOUNDARY : rhat part west of the due north lim; up to the height of land m territory in which upp.T Caniida always exorciMed JuriHdiction, I have nothing more to s>iy. That iH hI! that, on this jioint. is needful for nir.' to make out I/)rd A»KIU)AHE.— <»h,no ; it is a very Hmall part indeed which wais admitted by liiiji. Mr. Mf»\VAT.-~But 8o far as re<,'ardN that which i.s weHt of the due north lim and up to the hri^dit of UikI, ! must atsk my friend to give me some admission liord Ahkkdakk. — Yon made some case as to Foit William and so forth ami he says " Vch. as to Fort William that i,s all very well :" hut beyond Fort William he doe.s not admit anything. Sir M()NTA(;lt; Smith.— He udnuts that which i.s beyond the due north lim- Mr. MowAT.-Ves. that we exerci8e':7i;;;i";.;-p.-..i.^ r soon' ' "" '"'"ii.larv ..t tlio jiiiis.liction hihI Mr. M('( 'autuv Vi.M i fi,;i,L- i* : i i" the treaty. whi,.|. ,„y hirn.iVlua^luP"'^''" "' '" '^''-''"'^ I'''«^- ' f""' i-'^tanee calloWthenljehd^-htorhu^r-in^^^^^^^^^^^ f'aHm.nent i„ which what is thatirentVtook'ill'all tl7la,Jl'.'''''' '"'^ '^ ^''■'^^^ ^''tl' th., Indian. i„ 18S0, an-l n"lati,;« to';he'c;l,ni,^d'j'||:i,^J^tio,f or tl'l^^ '^''. *'"' •l-'CUMUMit. Mr McCakthv. -N. ..ut in an . , ' V I '.'^''"'"'^'"t.it "s .nc.nti..no.l ^ I a„. speaking of an oflinal ! l. ".' a d I l^lr''^^'"^,^'! <;'?'""' .i">i-'i-tion. Sir MoNTA.a;K S.M,rM. -That irlu^.tho. matt""' """•'"' ''""""•^"^' t-ritory of (rp.l,. Tanad'-a which has „ ye't k.; ul^:. '"l' ''"/'"; ";""^''"^.'"' juri.d;:^i:!;;"^;;;:;;;'in;.r';;: f;;:::;:^ !i;t:'"" , r-'l' /'- = ^"" •-- ««^ ^"« ad.„it that th/h..i,ht'nf lari^l Ls IL bo.m.l? y "^ '' '""' '"•"""' •^' ^•'" J« "o^ Mr. M(jvvAT. Oh, no. ^ «: '^u:^:"J'^'l;l;''^"' ''''•«" ^ow fa.- hack do vou L'of Sir 1 th,. .a,la was to he inchdcl in Uuehee as /n ' ? .1 ' '"'' ''''"'"""' ^^''t all and then all the c-on.,Hpondencrwhiori. , S . I 1 ^''" ^''^-''^^^h of the division ; always our contention '""*^'' ''"'•' '^hews that to have heen '^^'^y'T'^'l^ '^■'^''''''^''''^'^^^^^-'■ i^ of some X. 2'p^:: m oJ ';;'"' '^^'"V^''^'- ?'-i"ion itself which I think i« printed the materill^;: t'of ^ tdnli'^ sZ'.f t'''^^^'".'''-^ ■"'/'"^"•■''^' ^•-- ■on .n the Hon.se of C.'.n.nons. and W oth pi. ^e T repres.nta- two parts. "' piiipo^e.s.t I liat appendix is in Mr K'"™V~^^'^" ^''"'''■- "«t ---en that. at any p^p^ ^^i;;r!:ix^r^ T^::-:!:;fir , '^'^^ ' :r'f -" > -i>p..se look be pnnted. This i.s a statu eu^Hlewldr^t^i,'''" '^ ""' ^"'l'^'' ^^^^"''1 »ot toryare made part of the oLrrio ) s I \'y '''''1^^ the awarded terri- sentation. ^ "^""'^ ^^'"^"•^ '>* ^^^''^'''a for the purpose of r.'pre- ^Mo^^^^'''""--'''^'^'^-^«^"f^««2. __Tl^Uuu^^ d^^^ ,,,^^ ^^^^. ^^ ^1^^ ^^^^^^^.^_^ ^ * Printed ante, p. 44, notft. ' ~ ctherpurp;U.'"P'''*^««^>' "A" ■^<=' '« '•^•dJ-t th- representation in tl,. Hou.e of Co,.„non«, and .„r \ I ' lOi ARGUMENT .IF ATTOKyilY-OKXEnAL OF ONTARIO re QUESTION OF BOUNDAUV .1 » ?!''■ ^'^^y-^'''— It is an ndniission by tlie Dominion— an adniissiuu in effect that the territory in 4ue,stion is part of Ontario, because it is given as a part ui The Lord CHANCELLOU.-Wher.! does that appear ? Is it in tlie Act > Mr Mo\VAT.--\es. it is in tlie Act. The recital refers to the census \vhicl, has just bren taken, and declares tliat the Province of Ontario -ecnnres to elect additiona n.e.nbcrs m conse.juenco of it ; and so on. There is nothino- more i, the recital winch is niaterial for either of us. Then the first clause Tleclares o' how many members the House of Commons should consist, and the second clause " The said Provinces respectively shall, for the purposes of the election of members to serve in the Hou.se of Commons, he divided into the electoral districts osUblS ? the Ent.sh .\ortli America Act, 1807, and the Act above cited, readjusting the rl sentation and the addresses of the t^vo Houses of the Legislature of Prince E.hva d Island hi! ';'>rr/^'i'-''T'^^"''°^ ^^''' ^''°^""'^^ i'^t^^''" Dominion of Canada ad constituted and represented as ,t now is, except in so far as it may be alter..! by . " following provLsions of this Act." » .-i-'.. i ).>.i)( Then there are some provisions which are not material, but the material one U " Ontario. * * » • ♦ t .u" S" f^"!'^"'^"*? westward of the Provisional District of Thunder Bay, and eastward of he Electoral Districts of Manitoba, shall, pending the adjustment of the boundar,..s be and the same are hereby made part of the Electoral District of Algoma." * * ♦' * Sir Robert Cou.ier.— It is merely an adjustment of the territories Mr. MowAT.— les ; but wny should it be annexed to Ontario, if it is not i.art or (-)ntario ? ' The Lord CuAXCEi.r.OR. -What was the .late of the awar.l we had before u< > Mr. M0WAT.-1878. We ask, why, if the Dominion asserted that the awa'r.l was xyrong, and that this territory was no part of Ontario, why should they stat,^ tnat It was < •> j ■ Sir M()N-TAOUE SMfTH.-Pending the .lispute, they rather adopt the award in tne interval tor this purpo,se. Whafist^iat^''''^ PKACOCK.-Jt says, ' part of the electoral district of Algoma. Mr. MowAT.— -That is an Ontario electoral district . Loi-'l ABERDARE.-It is not down in the map. What is the name by which this district principally went— Keewatin ? ^ Mr MowAT. -Yes. Nothing turns ujx.n it I suppose, but there is a tract ca led_ Keewatin 1,1 the xNorth-West Territories. A strip between Manitoba and Ontario was at hrst inc ude.l in keewatin ; a very narrow strip, assuming the a\\ardto be correct and the original boundaries of Manitoba to ixuiiain what thev were. •' Further, as bearing upon the point of the English River not being territorv ot the Hu.lsons Bay (. ompany. and being within the bounds of Upper Cana.ln 'l may refer for a moment to the maps. My learned friends rely upon the maiis \V hatever intorniati.jn e.v.sted at the time in England about this territory was r.-allv obtainable only from the Hudson's Bay Company, and the maps give such informa- tion as IS understood to have been conveye.l to the mapmakers by whom iii,|uirie,s w.--re iiia.le, by the Hu.lson's Bay Company, who al.me had information on the suqiect When the matter was before the arbitrators, the Dominion api.lied to the Hudson s Bay Company for any maps which would throw light up.m the lOG UMfTor THE HUDSON'S H.VV GO'S TEK IlITORV— WFIAT THE ANCIENT MAPS SHKVV. oueHtion of boundaries nn,] thr way on the question in La :'^' 7 ,,';.'' ^;"'l-» /o throw any li.ht in any to be nmsing ; but here is th^e othe wh h '' > ''^,^\,""^, <'^" '^'''' ^^^'^ ■^'^'^■"« map stated in the evidence to have 1,1, /^ '''V ^^'^'^'^^^''^ ""^P-* and is the Treaty of 178.'^ was nia.le. This lua, it V "'" \''" «^^»""i"^-^i«Hers when the been very much used. It comes as f lav.. snTT J," "'^'' '''"'"" a"^' appears to have liav Company, an.i in this n.a,. tl, , , n^ r " *^' '''''*°''>' ^^ t^'"^' H'''i«0"'« Lake of the Woo-ls. ' ' '"'"'"''ary hue is laid down north of the Mr Mow"-' *^\"/'^""V—^^''"'^l' line > the HudsU-rBavl^mpr/''^''^' '' '''"'"" ''^ °" ^'>^ >"ap as being the bounds of S; S;:;:.!^^;::'-^"--^^''^^ '^ ^'- --hem ..undary of Canada . Lake of the Woods a, ff^ n;i n^thar;r'\""^"''''';; ^"^ P-nt north of the ''Canada or New France," as the s t h n " ! ' v' 7'' ^''^' "'^'•^'^^•■" 1""'^ of Moreover, although the l^n^ stons ^. ^ . ': ,^"'^^'^ '^^^ ''o.npany's territory. Moreover,althoughthei;n;sr.nsnthr ''■''• ,'■'''' "^ "'" ''^"npany's territory westward extens,^,n of ; mada t N . w F.""""'"" 'l* ^'^^^ '^^^^^^ ^'i' t'>^ ^Vood tl e twde 103^ is indicated; bTl only^^e^' i^^"! ^'/^ ""? "^ ^'"^ '^P' '" '""^ ^h^Tiir^ftri^^r- '''''- -''--^^"as^uu"::;s;r.J;;:^^^^^^ 'i»d explained to their LordZX H Thev" -fif" '"7' ^^^''^'''"'^' "'"^ «/'«^^ Lake ofthe Woods it is in vour favour ' ^ " " ^"'' ^^ ^^' ""-'^ as the in, ^.^''-''^^^'■•^ '^ ^'^^ »'--• -I there is the Lake of the Wooda [point. to f^e^:;' ^'^:^^^^ that Canada would go on here [pointing the Hudson's Bay, lies ? *^ "'■ ^^ ''"''"^ '-^" ^^^-'y '^'^y their own territory and followed l.vtile'lin7in" ""."""'* -^ '"-til- West ' _ L^a-ps.., and English liia] ..ynry .t..p nf f.f,. £,,,^7,. I' ii 107 AHOUMENl OF ATTORNEY-GKNERAL OK ONTARIO re QUESTION OK HOUNDARY : If' Mr. MowAT.— That is the line which marks it on the map. It i.s differently coloured. Then there is 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 tho.se 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 CJomjer.— This is the boundary of Canada, an J there is the Lake of the Woods. The Loud Chanckllor. — It seems exactly so far to correspond with tlie boundary which has been laid down, unless the 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 J.Ake of the Wood.s— perhaps farther. Then they claim to come down near to the Lake of 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.— Thi, 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 Robrrt Collier.— This [pointing] w^ould 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 bo^mdary map]. Mr. McCarthy.— But the Lake of the Woods is too far north on that map. Sir Robert Colijer. — As far as I can understand, that would represent, the Lake of St. Joseph. I suppose this would represent the; English River. The Lord Chancellor.— Which do you say is the Lake of the Woods ? [The lake wan puinted out]. Then it is very inaccurately laid down. But there is no doubt this would correspond e.xactly with the awarded boundary. Sir Robert Collier. — Thereabouts, T 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 t'^at all this pink as theirs. Then they treat the brown as Canada's. The Lord Chancelior. — That chain of lakes exactly corresponds with the northern boundary of tiie award. There can be no doubt of the extreme inaccuracy of the proportions and distances. Lord Aberdare. — Was tliat map before the arbitrators ? Mr. Mowat. — Yes, my Lord. The Loud Chancellor. -Pro^- co,npa„y put th^msdves as ahov.. the Lake of The Lord C'hancem.eh.— u tln\ ■, ri, i • ., this Jine, and because'cf its anti.ni;; "" Therri'^' '''"• ^''t^'^^'"'" "' '^^^pe'-fc of map'ofahoutsameperiod.andalsisheuin.Th r '''W""" ^" ''' "'X'tJ^^'' ''Id Wocls. "^ *"'" -^'"^^^ •"^' the l.ne to he north of the Lake of tlie the sa,..e thin,/ Thj;'^;;^'^;;l:":;i;;:j:;,;|i;|;-''t ,u.tho.. hat it .ealiy .hows ^vay. I have referred particularly to i tc , ,'? ^'^ '''^'''^\ '^'^ ^'''' ''"-^ '» tl'^t value wlnei, the Hudson's Bav ( V..npanv fW w rl rT'' 11 '' ^'"'' ""'•^- ""^P "^ »^"y for the purpose of illustratin, the ' pSio,; ^"'^ ""^"^ ^'"^>' "^''^ ^«ked for nuips ^^^ff"^^^ V"".pany .hioh has hee„ riot disputed at the time, and no doubt wi . r "^ '^- '^'"'^ statement was dated 1748.f The staten.ent, 'o L a^ hi Im 'nT'f ^''''- ^' ^^'^^ '^ ""^P Appendix : -^ i^"i,i,hip u,^ hnd at pa,-e (JG „f the Joint " ^l/^ears the Hoyal Anns and the Arms of fl,» n prepared by the Co,np,iny in view of the iCl. tonipa.iy, and see.ns to have heen ti.e in^rpose of shewi^ I Hants ^?hiS^i:S;;^;r>,.rl52.«f -"''** '-'-'' ^'^ ^- ai-biti;;L^r^' Co.UEK.-You ai-e now readi,^ from ^he proceedings befbi-e the i^h ^I""'"^' :-;Yes. the map being mislaid lor the moment • f-renchraan'a Kiver " °" *''''* "^'^P- ^^^ the luie is therein made to cut Sir Ronmr (^OLUEu.-_Whosays this ? thej^eseiil^l^en^:/^ my statement ..r the arbif.to.., and printed now fW tnely som 1 rivers are coneerLd. Iheir o 1 erh- 1 , '"''' T' '' ''"' '" '^"^" ^"'"P'^ra- ioreofalake called Mmigon ; thence t^ ad no ^^-^ '""'' '"'" *'^ ^''^ ^^^^tern ^ ...n.^. : and thence norSerly to Sir T;;;.^ Sn S^^S.II^:;; ^^.^^ ..^'^^ «' oo::p^.;an;rr::;;:L;; ;^„^^^^^^^ ^f the"H;ion-s Bay j,Mvon to U.S. We have the me naif (Mi hr "'" ''^i •":'''''' ''"' ^^^^'it'-ators have and here is the of her one "-13 1 1 m , ^ T'\ 7'"i''' ^ ^^'^^■^' ^''-'''' commenting and must be presuu.ed to h ve l^ n 'nal^^f' %^'"""" '' '^ "^ -anuscri,^; "lentione,! here that it lias the oommnv'. '« ^^- '^••"'P«"y itself. I have tbat it is the map which Z p ffiv .renar > T'?" ''' ""f '}"' '^-"''^ "'^^'^^t- Committee iu 1748. P'oba01> piepaied for use by the Parliamentary 109 ARaUMENT OF ATTOUNEY-fiE.VERAI, OF OXTAIilO re OUESTldX OF HOUNDAUY are a niiinbcr the torritoiv .f Some of thesf Tlie Lord Chancellor.— It is unfortunate that it Ih not pnocl need. Cm we draw safe coiiclusion.s from n reported argument ? Mr. Mowat. — Tliere i.s.souii' dithculty tliere ; but in addition to the stateroeni in my nrfrument, we liave in evi(h)nce the doHcription of wliat this map contain.'^. It is in the " Notes on Maps," map No. 80, at page ISGo (109 of ro-print) of tlie Boole of Arbitration Documents, and at page 109 of tlie Ontario Appendix, botii before your Lordships ; and I cannot do anything better. Botl\ sides ma(h; searcli for tliese maps, and Mitcliell's map was found, but this map has not yet Ijeen discovered. It was hift, after the arbitration, in the charge of the Dominior> (Jovernment for re-transmission to the Company. Tlien there other ijiaps which .sliew boundaries that would not inchide question. Sir Montague Smith.— Boundaries of what.' Mr. Mowat. -Boun(iaries of the Hudson's Bay Company, are in Alltany, and I have not bieeii able to produce them. Sir KoiiKKT CoLLlEH. — Wliere do tliey come from :' Ur. .M()\vat.--I will tell your Lord.ship what they are. We made a ILst of the Maps ami Notes which wc had before tlie arbiti'atoi's. and which your Lordship will find in the separate Appendix of Ontario.'' Page ll(i is what'l am goino- to refer to ; uiaf) No. 1 lO.f The Lord Chanx'ELLOR. — There seems to have been an immense number of map.s. Ml. MowAT. — Yes. my Lord, an immense number. The turn the thing lia^ taken has been a little ditlercnt from wliat we expected oi- peihaps some of tho-c map.s miglit hare been procured. All 1 can do now is to refer to the Notes in regard to them. Tliis is a contirniation of the inffience one would draw frotu Mitcheir,s map, namely, that the territory in the award was not claimed by th',- Hudson's Bay Conipuny at that time. 1'he note is that the map "Shews a line exactly the same a.s that of Mitchell's map of 1755, already mentioiiefl it is engraved and coloured, l)ut has no Inscription. The map extends farther to tlie 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 Chanx'Ellor. — Mitchell's is the one we saw. Mr. j\Iow.\T. — Yes, my Lord. The Lord Chanx'ELLOR.— Which seems to make the chain of lakes t\w boundary to the north. Mr. Mowat. — Yes, ray Lord. Map 120 is also a map which is at Albany. It ahso, follows Mitchell's, and therefore perhaps it is not worth while to' refer to it particularly. Then 132, on page 121, is another.:^. Loi-d AiSERDARK.— Were all these maps Viefore the arbitrators ? littl Mr. Mon'AT.— ^These Notes were before the arbitrators, and some of the maps. Sir Robert Collikr,— Here you state " The western limit of the map i-. ii i west of the Lake of the Woods," Mr. Mowat " A line, engraved and coloured, and marked 'Bounds of Hud.son's Bay by the Treaty of Utrecht,' commences at the point in tlie western limit Adiere the line on Mitchell's map of 175.') (hereinl.efore mentioned), produced westerly, would end— " so that it con- 135 ^ The Noten on Mftpa, as printed for the arbJtratoM, are reprinted in Sess. Paporf, Ont., 1879. No. .11, + "C»rte dim PoisossionH AiiKloises I't FrancoiBes du Continent de I'Ami^rique Septeot'.iona'.e \'!& Se Vend a L^adrei chez. . . Millar, R-irajue et autren. ..." * "A rew map of North America. . . , 1763. J. SpiUburg, »culpt." Passii: firms .Mite thf same f Th(;n tlio "A J Eiiffland b ' " ilus tioned), as westerly to name Caiw soinceH of t feeder,')." Then No. ' "Conff It follows SI north of La Like of tJie Sir M( Mr. M Sir Hi p, lake. Mr. M(i wiiiething n Lord A Mr. M(. The Lo: Mr. Mo I'lv Lord. ■southern paj' maps to whi( as the line of 'Split Liiko, w Lord Ai •Mr. .Mov awai-ded terri Kivcr. Your Lord Ah '^entiirv. Mr Mow. '"iips. It is I nv'fr would Ih "'' tliat line to 'luMi anot tioiis ill respeci *90. At page; t'liiii,!. Your '^h)n.sie(ii' I)e T upon th.'se neg f^iKlson's r,ay i ^*' •"' apj-.uiiited 110 THE •iKEATrES OK IJV.SUICK, IC') I. .\N-i> OK i-rnECHT, 1713. firms Mitchell's ; only it carries tliP H, f .l ------- "--^ ^-^ th. .U.K, position „« that of Mitchel!"' eo'u;':a:;::::;H: •;"V;^^^ '''■'''■' '•''^'-'y -" ""'-t "A new „,ap of North Wri '"' '^'"'^''"'•^ the .sunu- view : Engla,„l by th. P.Le. '^""^'^•^' •^'"'-■S ^1,. advantag.^ obtained there.-n to llasa hue corrospondinff tn fl,.+ ^,■ , tior^d). as far west ^ tTf^.^ ^^.^^^fy^;^?, of 17.5 (hereinbefore ..en wester y to the western linn-t of the map n n! 1 , '"'"' ""^^ "'""'"K thon«. sou '•'''*' "f the \\oo.ls has no ihon No. 144 :* "onn ''I i-HKe Nepi^ron ^orossini,' howver a rivJ\ i ^ '^'^'^'- W'stassin to a point laic -Mr. Mow AT. ■soinetliing more. -So it would o-ivo to Canada tl mv "■•nW territory in tW,, ,rto!'''s;ii;''r^ '"'"= "»''"' "' "'^ P«rt of the „„,,,,,. ^^ _^^^^ ---™« <- apr-aH.,« o„ t„e E„,,i„. ,„„,, „, ,,„„ ,^,„.^,^^,^^ ■"P». It i, north Ts' tlu' E'n.'.n"h Kivl"'""""! """ """ ''"» « "" ~.iu,. of the,e ■n« "lotit;;"' :f,tv'v"r,''';' » "•■■-^^^ °" '^^ "■■-"•"■■'■ «»' 9. At,,„.,,o„„,i ,,,,,i^,y„^,,; « 1^ «^ '• -VVouited iuv the purnoso of ,h.oi,l '..,.. .. .'^'""''^'••.and con.missa purpose of decidin.. I tho were i. i li AHOIMKNT Ol' ATTOKNEVMiKNERAL OK ONTAIUO r" OIKSTIOX OK ltOI,'Nl>AllY cogmzoii ii, Hv tlir previous Treaty of Hyswick/ tlie ii>,'lit ..f Fniiiee was i-. vyiiat was praetuMlly all tli" forts of the bay, vvitli .>tn; singli' oxecption. Tin ti, HiiL:laii(l liaviti- refni,'niztHl tlio ni<;\:l <>[' France to all tliose lorts, whatever tiiii toiy should ho considered as accoinpanyiiij,' the forts of course went to Fron- • likewise. Then, in oonsc(juenc(! of tlic siicet'ss of the Hiitisli arms, tiie Troatv of I'tifcht was nnicli more favoiiral>li' to KiiLflund, and Filmland insisU'd upon j^'ctim.' till- wholr hay and straits, and insisted also upon France surrenderini; all ih.' posts and forts tliat wi^re on thu hay, and. as 1 have .said, coinniisuariesvveiv i., he appi>inted for the pin-pose of deterniinin;: exactly wliere the line should hc + The Fnglish (Jovernnient ;,'a\e t-; tlie HuiImju's Bay ('.'onipany authority to ree.-ive ])oss'ssion froth F' ranee of tliese posts and forts on the bay. "They weie deliver..] aceordingly, and there is a uieuiorial from the Hudson's Bay Company^ declar- *TiiK TiiK.\TV or Rv,s\M('K, 1(197. Vir. Tlie Most ChriBtiuii Kinp mIiuII ri'ston U> thf sair) King of (irtat IJiitain all >'oiintri('8, inkniin f(.rt- iind oul.mirs, whcreH(.ev»!r Mitiriti'ij, wliicti the Kn(rhsti did poKsess licfcirethn dHclaiatiou nf this i>r-»i-nl war. .AikI in like iiiuiiiiev tlii' Kin(( nf (irciit Uritain shull reeit'irn tn thi- Mimt Chri.stian King all cn'mirin* islands, forts and c(ili)iii.'n, wlicn'siifvcr situated, which tht Krenrh did i.oshcm* before the declaration cf war ; and this renitiuion shall be made .in both ni the same force and vigour as if they were inserted word for word in the present treaty. t Thk Tkk.my Ob' l?rRF.<'HT. 1713. X. The said Most Christian King shall restore to the kingdom and t/ueeii of Great Britain, to I.. poH.^essed in full right forever, the Bay and Straits of Hudson, together with all lands, sea.s, sea c(pa.s'>. livers and places situate in the said l$ay anoveder, if it be there found, in proportion to \\v- cannonbali; and with tlie other urovision of war usually belonging to cannon. It is, however, pnivirliij that it may be entirely free for the Company of Quebec," and all other the subjects of the Most Christuiii King whatsoever, to go, by land or by sea, whithersoever they please, out of the landM of the slid H.iy. together with all their goods, merohandi/ea, arms and effects of what nature or condition soever, exctt! such thing- as are above reserved in this article, liut it is agreed on botli sides, to determine within a year, by c(.mniissarie.s to tie forthwith named by each party, the limits which are to lie fixed lietiierr th' said Bay of Hnd-on and the places appertiiiiiing to the French ; » liich limits both the British and Kn-n;i. HUtijects shall lie wholly forbid to ji.'iss over, or theieby to g.. to eiw^h other by sea or by land. The s;uiiv commissaries shall .ils.i have orders to describe and settle, in like manner, the boundaries betweni ti'.r otjierjlritish anct French colonies in those parts. ' There wore two oridiiials of this triHt.y, one in Latin, the otlier in French. This translation is that piililished by authoril.v .,f t!ic EntfHsli O'>vcrniiiont at tlie time. The evpressioii here rerulei-eii " ami which leloiit,' thereunti.,' i». in the Ln'Ai: copy. " .'jovfiui^V/iis cnl 'ml, ni." anil In the Kretiih copy " I'f lifux i/iii i-ii rtepfitilrnt." OhalnierH' Trwitin, v..i. 1; Le eiei-c), Kecueil, tnui. 1 : ProceeJings of the Coiiiniissiirics, ITlit'JO |Note, ,Ioint Ajip., p. 604 | :; Memorial of 17]!t, addressed to the Lords Commissioners for Trade and Plantations (Joint App, p. o79). It deals with (1) " the !, nia(!e « sertiement at the head ot AHiany River . . . whereby they intercept the Indian trade from comiDf to the company's factories, and will. In time, utterly ruin the trade, if not prevented; ' (.S) " m.iliiiik- reparations to the company for their losses and damages," as to which it is set forth "that the Kri'i!;ii took from the company, in full peace, viz., lietween the years '82 and '88, seven ships with their cargw*. and six forts and factories, in which they had carried away great stores of goods, laid up for trading with in;jf — ni satisfiei wliieh I territor It i-i very to Kno- Kraiict; i reded t( Utrecht claimed claimed actually larly the hiit ct'di! ''I'liipany piu'tion o in IT'Jl, 1 JVow Kiiffland ] Tlie pa pel i'li'^r, t.f ; "The ahull rest or has ('V('r po tt .Source of tentiiiries tJ offireat Bt deacrilio.s th agiee upon \ picnipotentii naiiied for tl The L( Mr. M( "I'l'ii the nil •^i'le.s, eiidea the Indians 112 >UNI»AHV WHATTKn,WXOUVP.ssKM,.,.,,,,,,^,^ :atv ok rTRFcHT, 1713. in;,'— my learned IViond.s 1 > i.. — =^^^-.^_;^;^ — _^^ satisfied with roH-ai-d tn'rl, ''I.''"!""-' ,'"" ""t "liNpwt.— tl.af fV, > „ u..-n,on; ,h,,„M , ,, '■ ""' -I.-:- «■»» „„ „,,„„.,„„„i ,;,;';„'t', H ™' 1^;: J- ^-f---... n. ,«,..,. ,..,,„„„, f" Kn-land inid,. the Tn ■ ', "'.!'^' '•'•'i"- whHt,.v..r t..mt,„.v- li i' . '^ -'-'-liv ceded hvT;.n. n K , "^ ''"^ ^ ^''^''" "m wh^; 7' ' ■?"""' ^'' M;^VI,»",':!.',?vl'f "-"r y"' ".at map - "l;-. ".-Y..HP that wo l,a4"°T,^„,:"f, '"»!'■ '?'" """- "'" J™"-", howove,. .iJ-s ..„.k.avou,,.d to got. ■ "'"P "■"" "■■■ !'»« '■.■■■>■ ,lilif;«,tlv, .„" Mh J ;■ Not... pa,,, ,„j of th. ;;„u; ;',^;;r™; if 'li'""*.' ■-■ •^" s^ .io«ni„,, i„ wliidi i *n r I'l w I'o th ''•• f on. ,,ur Plnninotentiaries marlLi * ?u^ ' have an.s«,^,.e,|, tlmt si,, 1 Lf r'" '"-•'^«'"'"' to ■V he Frentli witli what thev dJl^Vh '*' ""' "•"'''"* ^'f ^^hat \vas th n ^i,r'-"''''".''f '" ">-> o^rr. ; i:tiM.- wh,. detHrmine-1 that difflrm?^ '*"•' ? ""^ "f 'heir., tlieiewl, n, '^ ""'' ''"'"'"""", und Alif.r.MKNT OK ATTORNEY-UENERAL OK ONTARIO re QUESTION OF UOUNDARY . iiiamiscrijit liiu;s inscrihuil tiiori'un in 17H'-20, deposited in tiio Department uf Marine and tho Colonies at Paris* I shall bo able to shew to your LonUhips published maps of that period, but Hubse(iuent to this date, on which there is printed allotted line which aceonls with that npon the map which we brin;^ here. Sir. IvDUKKT CoLLiEn.— Are you speakinj^ of this map now ? Mr. .MdWAT.- -Yes, my Lord. The L()Ui> Chancellor. — I ,see upon the map in my hands a lino, coloured, which is marked as the line alleged by the Kni^lish. and that seems to go between Lake Nepigon and Lake Superior. It is impossible to make an exact compari'^cn between these. It certainly would pass thnjugh the territory now given by the award to ( >ntario. Mr. MowA T. —That is one of the English maps. Lord AiiEKDARE. — I see you have on the map with which you have furnished us [the Ontario Honnihirii raiiji of 1SS4\ a dotted line -hewing the "Bounds of Hudson's Bay by the Treaty of (Ttr».clit." On what is that founded ^ Mr. MoWAT. -I put that on as shewing that .some of the maps have that statement ufion them. There is no doubt the Treaty of Utrecht was never followed by any agreement. I obse ve 'iiy learned (riends have put in a memoranduia declaring that it is dispute. 1 that ihe bounds were never settled under that treaty ; and a sentence is copied from Dr. Phillimore's book on inter- national law for the puq-oso of shewing it. But I can shew beyond any .sort of d<3ubt 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 PEACOf;K. — I think that the old n)ap you produce [Mitch' 11 s] ha,s not any date upon it. Mr. McCarthy. —Yes, my Lord. It is dated the LSth of i'ebruary, 17.30. Mr. Mow AT.- -In several of these maps which have been looked "at, an'l in a number of other maps, the stiteiaent is r; ade that the boundaries were setlJud under the Treaty of Utrecht. It is rather curious in coinioction with those state- ments that the lines laid down as the Ixnindaries settled by the Treaty of l^trec'it do not agree at (ill. On .some of the maps it is the line of 49 ; in others it seems l> follow the height of land ; and in another set of maps, the line so described runs away north to Split Lidce. That fact alone indicates that there must be sonic mistake in saying that the boundaries were setth'd by the Treaty of Utrecht. .Mv 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 v, 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 po.ssea.sed in full riyht for ever, the Bay and Straits of Hudson, togethpr •with all lands, .seas, sea coasts, rivers and places situate in the said Bay and vStraits, and which belong thereunto, no tracts of land or of sea being exoe[)ted which are at pre.sent *" Carte (lu Canailft ou dc la Nouvelle France, par Ouillamm" .le I'Isle, de TAcademie Rovale Soinnces, Pt proinier GcDgraphe du Hoy. A Paris, ehez I'liuteur, 1703." At page 101 of the Ontario App. it ia stated of thfsr lines : suited in the Bvir hiis brother, a line ni . - _ .. - On an original proof copy of thi.s mvp, lion dep m IT''"' •;""•'"• "t'^ ''' '^'"^•^ ne.y, or sooner if pos.h.e. ,. w.,. a,.,, .u,y ;i:;;:!;;J;';: 2 B -^S'S^L ■' " ''"""' Is thfi-e aiiytliiii-,' alioiit liomKlarius there ' Mr. •;^f'"HLE.--In the same artid.-, a little furtl.or on .,Jlir^':^Zr'' '''" '''' ''' ^"'"""-'•- «''-'^' -- for the pn-pose The LOIU, CH.VNCEl.L'.It. I s„,,pov., thev ,li,| ti.at ':so'::y-;.'ti:sL':;:p;i.^'s:r:t^^ /^ is ve^, c..ious a stateruent that we cannct , dnut. In th olo "on , 1h ' >' '•^""^''"••^■' ^'f 't is the cnrn.ni.s,sa,ies had .net, and had .setU I ,.n tS: i, T ,.'. iT. 7."'"'"Vr* oertan. that the faet i.s otf.erwise. If that ne ha 1.- ' A. '''^ '^ '" Pr*""^'^ i.nportant elen.ent in deciding the presen . te. I '' 1 T "• ' ", ''""''^ ''" ?" (locunent.s that nothin- of the kind l.as oec -e ' , '^"'^- '"'T "P'^" *'^« that .nakes thi.s clear; and that i hat we 1 tuT "V"'*'""-' ""''' tl'ing dirterent n.aps. Another thing is that it is not >/ I ';";!"''"''"" '^''y °" ^^'"^ such agrecnint, and it is nowlu-re ' ,k.^ .t hat aru ho Iv'^ T "''l/'".^ ""^' s'sLe^'::L-i-s^trin-:?-^ .ad^ ^^anu.„g.t the papers. It is at page .OS.* '^C tA::t:.^:^^t'i Trea^'^ofuSt^'''""-'''" ^^^'^''^ ^^'^*'"^ ^^' ^'"^- P— ^'i-'^^ ""^er the prin^lrin thMwS Ap^di^^t^l:;:;'^^ ^^Sk'n'"";-' '"""^^^''''^'' '^ "- The title of it is -late is there. the W.ls of Tr^o ^nd VSn^i^n^ .JlroSLr* /^Sr "''""'^ ''^^ ^'^'"^^^"^^ *^ I he Loud Ch.\ncei.lor.~A long time after'^ was not .settled in 17.50 inasmuch ns tl . l f ""PV^'^f ' '".'KV be a-^sumed if it haveheeu settled at alUni'fi: if oid ■ a .n^v^l^Ster h f th^.^T "1 ff '' tory IS ceded to England. At th. top of ^.^^^I^^if^y^'^' '^•'' '^'' ^^''"^'^ **^^'"- .hen ia possession of the French, we.t^ei/e J u, to'et .n'l "^ ■ ""•' '''"''^' appointed to settle the said limits and Lu^^T i ' ' ' "'' f°»""i««aries were had by the said conmn-ssaries owanlt S i V the tunri T^ ""' P-eeedings were bnng the settlement of the said linnts to f Seoucluln' ' "' "''' '''''"' '''' *« Mrr,b«,,17iy, thoy wereenipowWeiltoactiSnH^lnH" ^'^"O"' "^r;^, ^^X. H'*- inxtructions, dated 3rd Seo' anri thence south-westward, by a lino naZno^ tw'^r^d t i \'.' S*** north latitude, on the Labrador coast '^v-tward from the said lake^^prthTSft^Kthe^^^^^^^ I>arallelof 4i.. and tK; 115 - '"'"!!!!!^ ATTORXEV-UEN«,tA,. OK O.vrAU..) re .QUESTION- OK HOUKDAUV : k"!rha;i 't.!.^;; ;i;;:r"' '"^^-^ ^'■''^ «^«t.u.ent, that ,,. to i7M>,no,iu„, of ,;,., ^vluJllu.v?I''^'"'''^7'■'''''•-'^''' ^''" '•"■"'■^•"•-^'^ to Ih. drawn, se..n,i„.lv is tl at I.a.sa,... at pa.o oOO,* that thnv was Ini a ,na , " '""' "'"""• "'""' "'" ^^^_^MnMowAT,-Vos,itis-.l<.a..; hut unf-.tunately u. hav. not ho.n ahlo to M.e FrLc r f, :, 'u, 'u'V ' f "'' ""' -nsidoro.l to have heen taken hy reason to think thev JSv Zi t ™ houndar.cs m such a manner an he ha. should be any ohsta, hirt it sh.- regarded by France as being to an ip beyond the end of Hudson's Hay eastn Mr. ArouAT.— Mr. Chief Justic' l ) dix, and which was sul)mitted on i. mons Committee, pointed out the v Bay Company took from time to mentioning the line your Lordshi,, another line. 11. • .*wv,-i ■ll.-J|.Hltl in.', which runs between Lake Superior ••• A great many things laid down wiili ■ . .lud in matters of detail it would he ■f the then English pretensions wi-iv ' nraight line, parallel and running' iper, which is printed in the appeii- ■•> • Province to the House ol 'Coiu- '1 tdie fKisition which the Hudson's ' fhat while there are some maps o, there are other maps wliieh give ' See tht paperi, M. d. Torcy to Prior, iwid 1 1 ' or 1 Uolinjf broke, ante, p»gs U3, text and note. MM.UN,sOFl71f),OM,«,-,,s,.E',MA,0, 1703. nnjoverni.,..nt .survy .,f F,H„ce, an.l is sf«f.. I'T' i' "•'? '^■''''''' '=''"'«'' ♦■'•^"" t'>o l<"iii"'"' fhe niiip sh.wa what the Afr. M.nvAT.-But. my J.H 'u i . :':;' ^" I',", ^''? '''"^''i^'' -I'vi.n. y..u will see this when vou e . si io tCt ,. '1?''",' ''' "'"^ ^■"" ^'" t^^" ^"'-' ^ "^'"l lm,l all the posts on the W-, wiU u t ' i 'r ^^'^ "^ '^>'-^'"^ 'ho French the l-ln^rlinh claim. '^' ^"t ^ xr.pr.oi. „f ,.ne. In 1 70,'}, that was not The Loud ('hanckli i>u 'J'his i vellow line on it, which i.s har.llv likeK'"!.'"."''' 1''''"' """ I""'^'*^'' ^"^•J P"t this !an.n,„.e, ••.iKJ are printe.1. it certainlvr.mVr f'*S' • ''''''''' "'■" '» the French ;toud .. h. the EniiHh ciain/ofu:'i,zs' ;;:;:'' ';; ';"^^-^'"^ '•'--'' -^j-- f .say, hut oorrespon.ls with an i,r,.,n,|,,r J r . '"? «"""t"'^«. and, as P-'-feetly re.r„Iar and strai^du. line 7 aw, f," "" •'""''^' '"'f it was a Su...rior to a point at t.ho^-nd of I X / "f r*' 'j'^'^r ^^''''"''"■^"" »'"' '-"ke Lake Mistassin to a plae.; .south o lAvi s ,v,i " ' ","1. 5"',' '■"""'"i^' ">" ^•"'ot'^d. Mr, MowAT.-Th ori,dnal I nes with . ^ ^•'"' •*'".^"''' '^"^>- c;.py o. th.. nmp of ITO.'i^vldcl h deru it 1 in''';."''','?'^ "f^"" ^'''« anno and the ( 'olonies at Pr.ris a -e 1^ i f ' '''^''"'■^' "' ^''« -^^i^i^t'T "f We have the un.lo,.ht..d evide, ^n^ ' 1 /'' '''-""'"'} ''>' >''^""- '-'-''^f''"!'- put on in 17]f»,and in niariu^crint * ^ 'l-f'Hn.ut.s, that tho,se lines wero MrMoIv;!'' 'n ''''''-^^ ^""^^ f-'" ^•"'"' o-n client, are tl^re"'"^^^-^^- -P -^ l>"t n. for tl. p.rpose of s;:;;.ing the forts that J'he LoKD Chan !K| lou - For u-1 nt jmte.^ion .Is Anuhi." part of it If irMr'^r" '' ''^ '"" '"■ ''^ '" ''^ ""t " /.a this ease we .nust entirelv disrcranl it l,m fuT',' '"'^ ^'" '">' tl^e purpo,se of ^^ the Treaty of (Jtreciu; hemus tl : FmS/a.^^ /'"^^''^'-^^ withreference •escrilH'd in verv general words und .r fh ^ ? ' .""■'' "1' ^=''''t'^'" things, tl.inkitwas yolu^^Kscrva ion tC f .0 "'"' V^ f^^-^titution-not cession. " I preceded the peace of UtrS.Ue Jit r to 'r'"^ ,'' ''"' ^^^' '" ^'"^ ^^•^•- tha Mr. MowAT.- \'es. UI na -Iv t t ^1 " ^'"''\''^''^'"7^t of their clain.. wa sso successful. ^'tnnatth the whole territory hn.| to he ceded, Kn-dand ^^^^|^.eLo.,CHA.c..M.H.-You mean after the great war in Lord Chatham, no -3^''- ^ .as renoh, appears, by an ac..unt^ttH„te' yea" l?rf:.1 f'V: ^'^T''"-^ '^^^ V the t-n).n.H,sioner8 of Trade and Planfufmrl ^ f / ' *''"' ^''^''^•^''•«d to the then Lords ;unaKe« the .on.pany .suird'^^^^^^^^^^^^ at Charlton Isian.l, Moose River inT^^Tn ■ '^ -'"'*'" "^^ their fortH and factories — . L-I_I.J'Z!!"" proceedings were had by the * See, M to fchene lines, ante, ,,. mi^^^p.lTTjT^^f;; ~ 117 m AUtfUME.VT OK \Tr«)UNKY-;it tli.'y were never able, to liiin^ the settln liifiit of th., said liiniU to a (irial coiuluaion, nor did tl.». said HudHonn Hay Cotni.aiu- ev«r receive any HatiNfactioii for their Hnid dumaKf-a. ' That is wlmt tlio Coiupniiy itself sai.l : "That the papers winch wore laid h.-for.- th.- said comiiiissRries ntid iIk^ iiiiiuitoH of their proceedniKs, as also a ineniorial rcladv.. to tliis matter which, in the year I'lO Rfter th,. conclusion of th« Imt war, was presented to your f,ord«hip«, reniHininif, h« v,',ur n.on.onalistH l)elieve, in your Lordships' otfice. it is conceived from thenc« will appear ih.. hi'st state of the rights of both Crowns, and of the territories and claims „f the sad compaivy that can ho laid hefore you Loi'dshij.s, whereto your inenioriali.sts he^r leave to r. rv'i " Your memorialists therefore humi.ly hope, in case any treaty of peace shall he set on foot hetween this nation and Fra-ioe, that your Lordships will' intercedo with Hi, A ft| for tlio Uuloni.'s • lattMl the «tli ol Ffhiuaiy, IsO!),* whioli is to Is- fomwl at pa.^'C 2.^7 of the Joint Appen.li.K, uiaUe this stati'ineiit (the particular statement 1 am guiiiL' to read is H pa^'o i:;i4, and it is a n a decision arrived at by the ( 'ominissioner.s appointed to fix this boundar'y matter and other disputed questions " That in up to ls77. The LoHii Chancellor— Those are recent documents ? Mr xMowAf.— Yes ; they are the recent investigations as to whether there had been a .settlement or not. We have carried them up to a verv late date indeed, and we have all been .searching in every pos.sible wav : *. that'there i. im doubt whatever that the boundaiies were never .settled. Mr.'chief Justie, Drap.T m hi,s paper put m on behalf of Canada before the committee of the House of Commons makes the same statement on pages 1{)G to 1})8 of the Joint Appendix.T •8e«B Paptrs. Can, 1869, No. 2r.. ColonST,?.I'-rvihMp'"i1r -'■''''! ^'"Kl' ' r^'"'^ ^"' "'" ^'"''"^^'^ "f Canada, submitted to the !:l!TJ"*,V'^':"'^*''',»7,' "tJiMay, 185y, p.r.ted with tie- lleport of the Select Conunittee, Imp. Ho. of Coins,, on the Hudaon'g liay Ouiupauy, 1857, p. 374, 118 THE LIMITS NKVEH SUTU ., ,,;ns.;ANT TO THB Ti.EATV oK .TI.K. HT. ossession I'V If^n f,,„„ tli.i,,,,. u., V, ,";'"■ '".T'''-^ TIml ,«■.„. to l,«v„ iu,,t!;i,|';^,::;n,^;;:;;;;r';i;^-,l^- ""■ - H.y co,„p.„,; . „..d rilf LoilK ClIAMKI.I.oa TIicv \i- .» fl » *• because they say : P''^ ♦-««'""» ot tl.r l-fu-ls,,,, s Hay Company are vory large, Hay '7^S:te;Jl^^^^^ - ^("'^HuaWs :-n..,..l .,.i.. was:;!;;^|;,i:;;^J';;:>';^.;-|,-'- •■■^''t-.f tnuim, under Mr M^!;; vl^ ^'^i!;;';'^ ffi-It.^^^!'- to apply to l^.p..,,-, La,„l. paueol^^ ^^- '"" ''^ <^ahssunni;.re, in the Joint Appendix, that S;^^;;::^;^^;",;;;:;^;::;:;:;,;,;';^ - vi-y '-^ -^t"^'^ '^-^ -^ ^'"^ '^«^^t -- It . t £^fo."r &;;:rt^j'r/i'r'^r- ^:'>' • '-Any );,;^;Sod to it . Hudson's Ba^Cn^nplfnrtrhavlu^^^^ '"" ^^' ""^ ="^'^^'-'- ^^ing fur the and tS, t;i%lZ "Je kTlir ^"•'' ^''^ '^'"^^'"" ^^^^'^^ ^^-"«« a|.^..int.rd for that pu pose and a L.f rrir '■' '""^ ""' '^^ ^^ commissaries _^__ The Treat^^f Utr^ch^ of oon.uissioue.. to regu- •.-.. .0. M. ,. ... o.u.o..^« .^.^^^. ;^?^^^^7^:i^^;^^.„ ..^ it« <^Py:p^^:::^^ ''— • ... e-U.^ .„to .o„.. ..eUil. respecting the trt^aty conveys the idea oleariy, that the Fn^l^nh -l"; 7'" """,' ''estitut,,.,., wTiich ha« been use,i i,. ^P' V\^'^ '»" " f*^"- establishments o„ the sea co,. ^H- m'" ^"J^' .'''I."' •''"'>' •'■•'^•'^' Pc«-S8e.l. and as *idered as W.niging to France. ''' " " "^^''dent tliat the interior. .f theoomitty is con- 119 ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO ve QUESTION OF BOUNDARY tenn^'^'re'tSon" t^^^'T'^ ^'' ' ''"' ""^^'-^ »>" ^^^^ ^one in that matter. Th. The Lord CnANCELLOH,-That is a French argument fl,«f fil M<>WAT-We have French testimony, in addition to English testimonv oecaust M de la Gahs,sonnu!re was one of those at that time authorized h.' Wl have'\n oT" iT 'Tr''' ^^ "'^'^ ^''^-^^ -« "^ tb^on™ b L." Tn«f,.n ^ o«^c'al ti-ench document a little later than that too naraelv the present hlms. 1 hV; ^^^^."f 'S^'''r« convino.d, on inspe,tu>,v the ,„ap which th.y presents theuibelves that thos« uslaiuls were, on the co.itrarv, included in tho reser-.i expn..sse(l m the art.cl,. of the Treaty of IJtr.cht containing {l e cession of Acadia md that consequently France had retain..! the property thereof. They will drersu'n of nZtAZ. c. " •'"'""""' "" ''"^"■'^"^ "•"^^^°"^ *''^^^''"-' P--"ted th?,n"u. ■ k un i Uu 1 w"""''''rr '^'^^''?»">" ".^ the treaty, the English had ahvays elude ;,n,l ! .^ vvar ; and Meur de Vaudreuil is better informed than any person how they am ed the n,o,l.rat.on,".-l,ere he invei«hs against the En-dish a Ttt e a :;; s "o U.::? in?:^"^'"" "'^ 'l!^'''^'' "^^^^-"4b and views, ^nS h^ l!^:^^ Tlien a little lower down there is this statement : ''As yet tho commissioners have not entered upon thn limits of Canada." The Lord Cu.wuKLi.uR: nrnJ"^''-'^-^^''!.^"^!i'''] ''•'"'' ""* y^'t explained themselves respectin-r the extent tl.fv .,».! ' » i;;rtr;;;;:;ifS"e^S" "" """ """"^ '" ""«" '"" "» -'"p '-^ '■"" Mr. MowAT.—Yes, my Lord. .sir MoNTAcaiK Smith.-You have shewn that in various other documents I do not know whether the other side deny it aocuments. a sot^cnJenr'''' ^'•*'^'''^"-^'»" '^'^'^ ^etteV wait till the other side shew there was estaWili;^^'*''''"''' •^•^"'^" -^-^^^''^^ that is what you have been endeavouring to f.. fVl" ^^'^^'^■■^'•-•I founJ amon-st their papers indications of their intention .niM.ly »l,„t I l,avo omitted. I „„„t to ,hew u, your Lordships the ,.o,S 120 I'lAMTS CLAIMED FOR UPPER fuvAr . ^^^^^^ ^'' "^^-^^^'^ '^^' ''HE DOMINION, 1869. Ontano ,s netting up. OntLio m 'rdv LnH "' " ''''''" ^'"'^ *''«' Province of aJvance. for a considerable poriocriSe OonJ^r^" "'"^"^ ^^^'''^h had been the arbitrators gave us was Veally on ?■? s„l^ '''T'r' '^''^^ territory which on in the strongest pos.sible language a' "f" ^-"'^ °^ ^'^^^^ had been insisted that in some despatches fxpres.sions Z '> /" T. ""'«'»■ ^ fX^l 4 -nr.nt "'■"'' r^'^ ^'^^ ^<^^ ^^ .lepartn.a>nts, may not have been alive othi,;"' 'I' /.■'^''■"''' "^ '^''' particular scope of the position occupie.l before ooX'?^ -'^ ^ ''''"■' ''^- ''"t the oeneral in i^'n M'T'' '^?'-i''^'''p'^'-^'-tion to^ fti ^t:;" ':^"'''" !,•''''" f^-- -'•- F^Ltai^ iSr ' ^^ ''' ^'-^^*- clelegat." t:;Z' K •i^^s?^:::,^^^^^ ^[f .totir ^3^;^— -^- ^« again r .„p,.e,., of .he Controversy Mr. AIowAT.— Yo.s • r w«..f f i a ,1 event, not to ll.at ,,art «-l,i,.h Mani 4. ,?l r'""'"" ''»■» f-iv„ „'; That ,, all that I am roajln,- tWs fo^ Tl, V 1 i f ,' ''■■' ''?rf, * 'l'«l""« »l«'>.t «l.i.« its claim „,, ; ■ ■ '"^ '"'"'■ " " ™ '«<"" •" that It i, „,„ |,„,„i„i„„ i^,,,,^ ""^ liS£&iH"i^^" *^-'' """ """•"" '" • -- I'm a ond. ihe report of tli» in... .r . "^^ ^^"^ '^'e aware geogn.ph.ca extent of the territory ."ante , n , f"T "' ^''' ''"'""^^ '»'«' th ouutry that ■ ooul.l have \mm rlrhtfJlTT J I ''^ ''''fnuinwl by PvchuHn-r th^ Act. of 1774 and 1791 ' ThTnJi ' con.,derec! ; and also M.he .ffect of Si whid. we have seen (.rtnuaJy "ct s'^Sr^ls'TS" "' f'" 'r^' ^^-"'^^ ^^ ' -w^ pany. does not, even by implicat m, f ''\^°/''^ ''"-''"« of the Hudson s Hav Com nenrly one-third of the A,ne"'rrtine7°1)''H'' P''^-"*^ ^^'-^i"' to the f^ si^upt of h-B colleague ...nclude their repor S\,i '"' /^'"''■'''••^•' •^'> ''o''" Ka,«lakr and necessary, before any u„ion of Rupert^ r.n T'^\'''' Ht-.t.n.ent that it is 'v^rv mnt^ Of the territory and possess" ^ruddunr'tt^'f^ " ''T''''' ^'^'^^ ^'^ ^ dehnd. An assnn.ption, therefore wl.i! h nv". ^" u'""'''''" ^^-^ul^' ^>" accurately Jyany competent K.al authoritvwS .''''"?"'""'' W-'O""^!. an 1 is unsupp rTed Cana a. and seek, to ..pply a L.^' .I'^'h •/'" "T"';' '"■^''^^^^^ ^''^ ^^ o^ S l"'"r''=' '■'' ^*-^'''« least, aroVftjr'''''''"^''':^'^'"'^'''''^'°"«i^'-'-«tioa Northcotes reply, to prevent the possU, „ i^J^r^ 'th^ 7 ,'-'""*''^'"? °" «'•■ «t,l^l Then thov pr.--nt thi.- ■ ''^ **'■'! "'«''«"i in them - aJopt, ami read to vourLS'in'nt /"• ^^''' "'^"^^ W^'', at page m, Nvhich f the statement of the Dol^nlon ^^/l^l^.^ "V^r "'' ^''^ '"f ^^^''^ ^'^^ ^ - ' "I. The charter of Charles 11 iTf Z ^"'^^ '"^'•"^'''''Pl"^ '• 2. -^nuU : ir. (and for the present we raise no ,u.stion as to its AROUMKN'T OF ATTOKNEY-(!ENEI!AL OK OXTARIO Ve (QUESTION* OK HOUNDAnY : valiilitv) 1,'oiilrl not and did not grant to the Hudson's liay Company any territory in Aniprica wliioh was not then (I'iTO) suljjt'ct to tlie Crown of England. "2. Till! ohartor expressly oxeluded all lands, etc., then 'possessed by the siilijocts of any other C'hristiim prince or istate.' "3. By the Treaty of St. Cermain-en-Laye ( 10152) the King of Enyland vesigntd to the King of Frand' the sov<'reignty of Acadia, New France and Canada, generally, and witln ut, limits. "4. 'La Nouvellc France.' was then nndin-.stood to include the whole I'egi.n of Hudson's liny, as the maps and liistori-'s of the time, English and French, abuudantiy prove." The LoiU) CllANcEM.ou. - -Tliat is not an alloLfationtliat tknadahadolaiineil it. Mr. MowA'l'. — Tiiat partii'iilar sentence is not, but tlie extract presents con- cisely tlie ar^'UMicnt against tjje company liaving any territory tKat could come down to wliere sve ni'e now. Tiie J.oitK ( 'iiAM KM.oit. — No, it goes very njuch fartlier than that, ft s|)eaks of the whole tenitoiy of tiie Hmlson's Bay Company. It seems to me v* luivc very little henring indeed on the particidar qnestinn hi'fore us. Mr. Mdwat. - In \7*>'-\ my l.oid, in all the niaps ot that early date, the v.liolc region of Hudson's Bay is marked as if it belonged to New France or Canada, hut of course when England got part of it that pjirt ceased to belong to New France. The delegat(\s continue, in jiiu'agra]>h o ; " •>. At the Treaty of Jlyswii k (It)'.* 7), tui'iityseven years after the date of the cluiitin- the right ot tin- French to places situated in Hudson's Bay ' was distinctly adiuiLted ; aiil all hough connni.ssioners were appointed (hut never came to any agreement) to 'e\;iiniiii' and deternune the pietensinns which either of the .sai.i kings liath to the places situao iij Hudi-on's Bay/ and with 'uuthoiily for .settling the lindts and confines of the laniU; t j In- restored on either sid(," the piacts taken from the Fnglinh (i e. from tlie Ilud.soK s l'>;iy Company) liy the French previous to the wur, and • r( taken l)y the F^nglish during this war, shall he left to the French liy virme of the foregoing (the 7ih) article.' In o'lier words, the forts find I'lictories of the Hudson's Hay Company, established in Hudson's \'a\ under pretence of their cliarter,and taken possession of by the Frencli in time of pe.ice oa the ground that (hey were an invasion 'if French territory, were restored liy tlni Treaty of Ryswiok to the French, ami ni?t to the company." The LoHU CnAN<'Ei,i.(iii. —Does this addanvthiug whatever to what you have pointed out ali-eady ? Mr. MdW.vr. — Well, my Lord, I have been asked sovonil times what position liad lieen taken with reference to this territoV}', and I shewed that the old Province of Canada took this ground, and 1 shew that the Dominion of C.anada has taken it since. Toe Lniti) CuAXCKM.OK. — I Cannot .see in the pa,ssnges here any suggestion that this was part of the Province of Canada. Mr. Mow,\T.- -iiut that was the oltjeet of this .statement. The LoHD ("HA.Nt't:iJ.()l!.--No, it was rather that the Hudson's Bay Coiiipatiy hiid no right to it. Mr. MoWAT. — I quite agree ; but the inference to bi; diawn from that is that Canada had the right to it. The Loun ("HAMEi.LoU. — 1 do jiot see that iuiy such inference is to be drawn Mr. MfiWAT, — Well, I thouglit so, my Lord. Another view of tiie matter occurred to me, which may be stated in a word or two. Thee were territories in di.sputc from time to time betweeu Fiaiu'c and Engl'ind, \-ut France .-tt the time of the Treaty of llyswick wa.s recngniiw!! b}' England as the ownei' of all the territory about Hudson's Bay, with perliap^ the exception of one fort, and whatever territory might be considered as conncctcil with that fort which England reserved and the company possessed. N 122 l)\V, AJ.PLlOATro.V OK THK P.UNCIPLE.S OK PAUTITION. It \o\\ Imvc ^vilat is tli'* eflfct udom Iik^iI ..i........ i • p li.-ats have not ble:?:; tl^StZ ^t^S^lLrTrH '"" '' '''''' """''' "'"" '''' notice when we c^LVll^l^'^J^SZ/;?^:!^^^^^^^^ i-l-tant to much more territory was to ..,, to K n " , I ^T^^ ""^ ^ '^''''^''*' *''^^ ^'^^''^ Treaty or Ry^v^kk ^ },,,>u^^ .^^^^^ Zt^t^'^Z ^''^^^^-'^ty than under the tli. territory went to France wl e n ,1 . ? ' T '^^^'^^^''^.k n.-ariy the whole of Htrait«, an.l whatever ten iSorv af w n ' ^''"'"'•^ "'^ '^^'•''^'^'t- <^'^« '^^^^ ^nd Cnunissaries were to '"^:^ i.^^ .^H *,:;^";-- ; -- ?iven to Engh.nd. w. re appointed. ^"''-t '"■e divided in of partition w^>uhl app-H^ttr to r'f'"; ' "''""'' *''"^ *'"^ P""'''!''*^^ UponallthouTown.h I i^orrt^,„, V '>, Ontario n.ight fairly claim linesof the Award ' ^ ' ^nnUlnps w,ll see your way to nphold the areanl;eii^r:rthr(Sln7Sncn^^^^^^^ l"^".""- ^^ -^ « which not the schedules ' '^'^ ^'''' '"•''''■ '" ^'"""cil is here, but S.r Bahnks Peacock.- What is the pa..e ' the Hud^ns B^y cini,^;;;;:: to'be'dS'" "■""" ^'"^ ''^'^'^ ^"■•'•-^-^^ b^ was in pies' km r^ ,'^^ that if the Hudson's ]3av Company lany to C^lada ^"'^' ^^'" '""' "^ ^''"^ ''"'""''^'' ''>' ^'^^ ""^^^^t.'s Bay Com- NovJTbe'' 18fiS,^'page 3I?'' "' '^'' '''"'^ '^ ''^'^ ^^"^ *^^ ^'^^•--1^'' -f tl^« 1^^^ ! i 128 AlNit/MKNT OF ATTOHNKY-GENIfH.U, OK ONTARIO re QUESTION OK HOrSI'ARV Mr. MowAT.-Tliey had poat.s tlieie, but no exclusive po^isession. Tlu-y vi cr thfiT only in coturnon with the other sulijecLs of Her Majest}'. They had als(. sariio posts in tlie undisputed jiart of Ontarin. Sir "i viiNKs Peacock.— If they were then in po.>ssession df fdcto, was not it v. portion : ' tile knd-< for which the*£:WO,ilOO were paid liy the Dominion (• Ml'. MoWAT. - Not if it already lielonc;ed to Ontario. Sir BAi{\Es l.'i:.VfocK.— The Rupert's Land Act is thi.s: " For the purpo.ses of thi.s Act ' — that is tlu" Rupert'.s Land Act, ISCs,— '• th<> term • Rupert's Land ' .^liidl include the whole of the lands and territorins held, or claiiMcl to he liekl, l)y the said Qovernor and Company,' and then it authoiizes this to lie suriendered. The I.DKij <.'iiAN(.'i:i.r,oR.- -Whiit i.s tlie paf^e > Sir Harn'ES Peacock.— Pago 44.5 ; and tlien tliere is- a eondition: " Provided, however, that such surrender shall not he acci.'pted hy Her IMajesty until the terras iind conditions upon which Hupert's Land shall he admitted into the .sai'l Dominion of Canada shall have been ajjproved of hy Her Majesty, and eniliodied in a:\ addrtss to ller ^Lijrsty fi'oni both Houses of the Parliaraonl of Canada." Air. MowAT.-Well, my Lord, the view that I lake of that i.s thi.s— Sir liAiiNKS Pkac^ock.- I want to see those addresse.s if I can. Mr. MeCAin-ifV.— The first joint address of both Houses of Parliament i> at page 2(;(1.* The Loitl) t:ilA.sei;i.LOH.- -'i'hat was in LSG7. That also seems to me t, be a document very .strong to shew that the notion of Rupert's (.and arel the Nortli- Western Territory being ])art of Canada was absolutely rejected b\- the Senate and the House of (Commons of Canada in Deceml^er, LS(i7. Sir Bahxks Peaoo( k. - The Act ,says, ic page 440,+ tliat Rupert's Uivl sliali include all lands "held, or claimed to be held" by the Hnd.son's Hay (\m- pany; the lands M'hieh m fact tiiey were selling for the t;:JOO,OUO. Mr Mmwat.- \es, my Lord. " Sir BAHNt> Pkvcock.— Then you tin( Canada. Lord Ahehdaue. F)Ut the claim was that Canada extended indetiniteiy i.s the west. Mr. MowAT.— Ye.s, absolutely indelitiitely. i do not thitdx that anyrhiii;.' will 1)0 inferred from that expre.ssion, the land.s "claimed to be held" bv t!i" company, Sir Hakne.s Peaiock. If they wore de Jucto in po.sses.sion, and Ontario was not in (/'.' ficto possession, then were they not the lands which were sold f a £300,(100 ? Mr. MowAT.— The land that was .sold was just the interest of the Hudson's- Bay Company in the lands before they were .surrendered. During the corres- pondence, there was a dispute as to how much belonged to the Hudson's Hay Company, and the Province on the whole was willing to give t;.SOO,000 for a surrender— a .piit claim in fact. Jt was only a iraction of the value of the land. Sir KijiiEHT Coi.MK.u,— It wav whatever tliev had. * AifHren8 of Itfccmber, ISf?;, in prefix to Vmu. Stats., 1S72. t Imp. Act, 31 una ;tL' Vict., cap, lOtt-Ilurirt's Liif|.,l Act, 1S()8. 124 ^VHAT I'A.SSKD ISimi THl- Iiitk HT'S iJ -J ACT, 1808. Mr. MowAT.— Wiiat.'ver tliov l,„,i i . • , - • - -^ t.rf'.ct of this Act was to take fro ,.;.•", '' .^"^»'d «over .Jo to hold that tho because it ha.l Ikmmi claimed at some (i L ' m""' ."^'"^^ ''''^''•>' ^^^'^^^S^d to it, ,«nv^ V.n.rLoraship.wilinn-C^i !:^: ,:^^'-,^V'r ''f'"^: ''"^ ^^«'"- at 'lirierent times. ^'^'^^ ^'".^ '"i<> '"ade .iifleront claims 17.i:)'to see wlut' wti^a'p^ll^ 'S^Gu^'iT'!;' ti!''^ v" ^'•;'^""' *" ^^^ '^^'^'^ ^« 'V.M:|nmy at recent dates ha,l been i.i " IsJ f.,. M "', " f''" ""^'-^^^"'^ «»y nut exercised any dominion uwv tliom ' "■ ^"''^' '^"'^ ^''^rmiln had Mr. .Mow.vT. -Yes but I do no/ ' , •''"'" l'<'««'^'^^'oii. -.naion Mith others oftler Ma^ yl^^; l,bs"''n '"^'/^^^-^ ^^^ t'^^^^'ecentdate in Mr McTA.u. SM.nr -J darc^^^^fc ^,,.1^^; ^^' 'I" '^-^'"-ve possession. >in- Bak.n-es Pe.v, .k. k. - There is no m m ?';. ''f ' 'r''"' ^'"-''•^' '^^ that date. >es.ion of this company at the ti me of U. n r.^ ''''' '" f'"^^' ''^'^^ ^'^^ i" P'«- of Kuperfs Land Act, IS.iN. ' ■^'^'"-''^'-'^■'•- u'' nt the tim,.. of tlie pas.5ing po ssesM^n'^^ls'^mt In^xdn^ivi^'oir'"''''^ '"'' ''^"•' ''^''^ ^^'^^ •^-P"t^'<'- Their nothing further. Ti/e Hf t^t/ i^'^ k;! '"'T 'T'' ""' *'-" ' -"^ -7 was m that inspect, namely, th^it' ^^ nolt^:.:;!!!^ ^ '; -^-^-' ^^ ^he Xcl province anytlnn:- that wouhl I,eh>n.r to tim or v n f • *" T">' ^'■""' «»y '.'•canso the fifth section provides this- '"'''' l"^"''"^'^' '^ ^'us Art had not passed "Itsliallbe coiiiiieleut to Her ArHi>.«tv. v,„ i aforesaid, on ad,l,...s from tt Houses '^.f^./Ci; ""' '' "' ^'" <"• "'''l'^" inc.. unci ag Kupm's Wl shall. f,.om a date uri" U '. ' ^ i 'l!?^ "^ ^^nad. U, a.dare that part of the Do.ninion of Ca.u.da, nud th-ieruo u «1 ' ' ','"'''"'' ""'^^ '^'"' '''-"■^'"^ Canada from th. date aforesaid to make ord in • nd ":.'r"'.V"' *'- l''rl.a„u.,t of rory .so admitted as .foresaid all .su..h laws ""'' ^^■"'""■'x' l^-id and terri- stiof;'L::l:^;::;:i;;^r;,r;:;:':,,'^^ v'-^- <•> whicnthe merely for provincial. b„t t r r,>un> . ""^"^-''^ the !,..■. absolutely -not Actasmeanin, to take awafC 'rj^ov nJ Tu^ t'hi.r" .^"'"S^^^'^ ^'- Fovmce, even .>upo ,sin>r the Hnd-on's H«V r. '' '"'''>".^"''l »'> that Uufario with re-ard to which there ni . 1 ' ' "/ ^'"' ^'''t'^^' l>'"-ts of -oh Indians asUeyoould^ett'tadJll.e;^"'''' '^"' "'""'^ "'^^ ^■•^''-l ^vith "■"fi'io my.selfas much as poss e t !i, I , '■"'"'' ^ ■''"^" ""•'"•avour to ^ii-Kmnent which from the Te v i ' •' s'lppIen.eniinK thos. portions of lus '- peHmps ablet" l^r^,,;;£;ns;i:;T'''', "'V*^'^ .W'-. he Isnol arp.ncnt which 1 shall offer naii /.it L 7 " '"'^- '^' '^"'^ ^" ^''^''t the "'•'"tmtors, which of course n y be .niv> f I ^"^'^T'"-^ ^'"^ a^^ard of the f ater line which mav have bin 'Ln'^s,Tt .?;'"' ■^'"^^^'"^ ^''^^ there .., a Audas the learned Attornev-OeneP mL wr ^ ? •' ""■"' ""^'" ^"^ct^iven to us. t''i..k must strike xZl^^^ ^'l^Z'^^T ^'"^ ''^"'^^:"' ^'^ '^'''' ''"^'' ^^inh -" ;- point to ar;othei Ciiz^th^^^^i::^^ :si':'^'r '"" '^ ""^''''''^^ '"'•'»" .V"U!- Lordships' attention to thoTfo / i • , ""'^' »ece.ssary f ,• nie ^'"p^ .'^ supporting their cikim ;:^r.^w;;o;;:;f 'u^s^ ^^ '"^'^" ^^"^ ^^-^- 125 . ARrUMENT OK MU. SCOULK, V C, re (^l^KSTION 01" HOUNDAKY: Now, my liords, I tnko it to In- perfectly cloar that tl;e Province of Ontn "ii/ Bticct'(3tkM], hy tilt! Hriti-ili North Ann'ricii Act, ISGT, to whatever formerly con- stituteil the Province nf l'p|Mr ( 'iinu'la. 1 tai limit of the Province of Upper Cnnada was tixed to be your Lordships will fin.l the rcd'erence at the foot of pitgi- Ji9() of the Joint Appeiidixj : " T) coiDiiieucrt at a stoiio bonndary on the north bank of the Lake St. Francis, it the cove west of Poiute au Bonclet,'' and so forth. " running along the said limit in the direction of north thirty four dfijrees west to the we.iterinost angle of the said SHi^neuiie of New Longueuil ; thence along the north-weBterr. boundary of the Seigneurio at Vaudreuil," And so on'to the last few wonls at the end of the page: " And from the bead of the said lake by a line drawn due north until it strikes the bonudaiy linf of lluflson'.s I'ay, ineluding all the territory to the westward and south ward of the said line to the utmost extent of the country coiunioidy called or known ),y the name of (Janada " Now, uiy Lords, upon that the>e arc two points. In the .irst place, thi' northern termination of this eastern division li;,, of Upper Canada was tixed to be the bouniiai'v line of Hudson's Hay. It was not the bour.dary line of tin- Hudson's Pay Company. It was not the boundary line of tl e Hu tin' coast line of Hudson's P>ay; an(.KI{ < ANA DA. ant's 111 I "The Province of Udixt ('ann.li ^,^ ,.«. i islan.l.lyin«t.,tl.eweHtwaSo «.^^;o riw^^^^ '^" '""'' 1*"'«' *'^'-"^«'-« *"'l Vu.-l-v, a,ui the Province of Lown- C.Vuui: to :,:,?''", ''"'"'/' ""r •''^*'' '''""^'"'-•^ "^ isl.M.ls lying to the eastward of the ..i^tu,fS:' ''' ^'•'•••'^■'''•*'- "^"d ot(,>u.=l.ec.' "^ '•'' '^">" "*' ^v-"-'' P-i't of our said Province *,. ■■ iv„vi,„.. „t ,,,,K,i„.. ■■ ar., ;,', .w'::: ','„" ™ ;:.'.;■;■;';, r'l'-" ■ 7t'' r;' wrmv: ,in.ly.^ui- Lur,l,l,i|,,s will li„a thai in .,11 ,1 . .'.V ■ ' ' '"'■.i''''"'""""''''" :.se,l .n theOrcK... in Council i^l^O.; wo^ul^sM i^L^^ 'ly^Jir^^yr'^" *"^ ^^^^ ciMniunicatcs witli Mr. Dimdas then See.vf ,rv- , f iV '^•*"''*'^ '■■'■* '-;«»"ni^«'on, " f think it ?ny duty U) remark to von ^ir fl...f h, . * ' r , ^ mission doscn..i,„ Sn- '.onndaries of U^^li L^J;!'^^^ ^T ^'''"^'-^^-'^ f'"" used in the Order in Council, of the ikh of Ansust" ' ''""' "' *^'°'« Mr. Dumlas, in reply to tluit. writes „n tlie 10th r,f Anril 17')o Af +1 top of pa,e 4U.,onr l..,.dship uill tind the passa,. lo wLt'l ain '.l.tSri.^' ''" (>nei!.q::oin:^;:r;;;:d!;;-:^^£rpS^^^^^ as the difference lies only i„ whet is exnl-initnlu^ u \ r ^^''"'''^y '^'•^ '^an.e ; hnt a variance between the,.^ and tl^^^^^t^ il::::::^^ ' "'"'^■'^' '""""'^^ '^^ *" ^^ iaentica, with tl,e country illed oVt^l^rCih^ n!^ ;^\.;:;:,;;"^''''^'-' ^'" '- ' h'^ ':';;;:, p"^v:'^'';;"'p'^"' '^^'^^ ^'- 1^— -'-i. ^1^;^ divided. r';^"''"''^, \«^i the Province of (,)„obec was prociselv the ^^-ime ^is th,. J h'r^;::^ CHAycKi.i.<).v.--It is, in poi.it of fact, far to the east. Sir KoBEKT Coi.r.iEH.— It IS this one fpnhuinnl Mr. .'M.'ORr.E. -Yes, that blue line ¥r 5?v'«?y '^'^'',i-";^''-\'^" have all that is west of tliat to be seen 'rt ~ f T '""I ""'^ ^''"^ !' '""'^^ ^^^ ^'''^^' ^"^ '"'«• '"""h it is remain.s to be been. The point I make upon tluxt is, that that boundary line iixed in 170 ^uhof^Lr^''^ bounclatyof ilncWs Huy, and ga^"t ^tU ui ^^ wiS a^Tll e4nt ' ""'"'' '" " '""'""' "^ ""'^^^^"'^ '^^>' ^^^^ ^o «p to James Bay * Printe.l .inti, p. fiO, note. 127 .AU»;f.MKNT OF \IK Si'OIil.K, (/. ('„ ,'c (.HESTIOV OK llitrN'OAUY : Thori inoidor t<* asc.MMiiin wliMf thr Prnvimv of (^nohoc wliidi wn. i .. Wividen in 17:i| was vv iiuist go hack t.) tht- t.tiiobec Act of 1774 The Loui. ruAN.'KLl...|i.-We inii>t l.r.ak off heiv. It niav ho ron\. ,„,.,. t to oonnsol to know tliut tli_' Cnunfiil will not sit on Friday. [Adjii'i ,1)1 il t,i lo'iiivi'ri>tr,'\ TfllRl) DAV. TiirtfSDAY, July 17th, 1.h,S4. Mr. Si uhle. — Wlicn your Lonlships i-o.se yo.stt'r operation of the Constitutional Act of 17!>l,"as continuin;^ i\\v Piovinco of I'pi.T C'aufiila, constituted \)\ that Act, wiJi the .sioiu' airiountof territory as wa.s l':\ci. to the western [>ortion of the I'rovinee of (,)uehec umier the old description uiid-' the <^)uebee Act. And hefore I leave that part of the cas.'. there is one .ulier document to wliieh I wish to refer your Lord.sldps, and that is tla- proclauiarinn of Liovernor Sinieou', which was puhlisht d in 17l.»2, conseiiuent upon the pioimil gat ion of the ('onstitutional Act. Your Lordships will find that proclamation ai pu.-e 40,3 of the Joint Aj)pfndix,* and in that ju-oclaniation, after recitiu;,' rlu ' r'ii')Ci..\M.xTio.N (IK Lu:rTKN.\.NT liin KUNor. fr^iMc.iK, i/ivri):s(i Ui')>kk Ca.\ai)..\ into Coimii;.-, 17:1::, .1. (JU.-WK.S Si.MroK. GKom.K iiiK Thihi,, hy the ( irac- -l" (Jnd. .,f Coat, 15ritniii. Vvmsw aiiil [ix'taml Kinj<, Ti.fMi.lH f th- i-aith. etc., etc. Tn dll nur loving h>il)ji>ctK ulmiii llie.sr' prcNfiits iiiiiy cDrioeni : \\ mkii|.;a'<, ni puf.^iiiUK-f (Il an Act iit I'.irlianniit liitelv iiwule am) \nm'\r\,<\, \,.\nn(ii\ in tli" thirtv first year ot .lur i-fign, .111,1 ,,frtiitli..iiiy liyussfiv^n for tluit inupuH,-, oui late IVovince inces ot Upiier ( ■aiiuda ami Lower Canada, ami our Lientenaut-tiovrriiu- .( til- ; and welM,..l„v,.d John (lra\e.s .Sinicoe, K^l^nire, our Licnt.n ,iit l,.,vornor..f our said I r..viiic.. -if L ppei C.in.ela, m the absence of the said G.ivernor-in-Chief, haM, a-"^ by tins Onr 1 r.jclai„a,ti..n .h.lh divi.le tli" wiid I'rovince ,.f I'pp.^r Caii,i,ia int.. countie.s, .'Viid hat , ■.;., doth appoint and declare th- i.omber of ri'iiresenLitivs „i them and each of them t.) be .is li,.reiii„ftri limited named declared, am! .•.i-point,.d ; that i- t.i say: That the hr8t of the said coiinti.'s he l.,,v eicalJei by tliynair.eoi the county of tJlen^arry, which cour.ty is to be bounded on the ea.^t h- tl... Mtl.atdivi.lel pper fr,.i„ Lower Canada, ..n th.- south by the HivrSt. Lawrence, and west-rl'v by ! easternmost b.,,i,idary .,f th.', late township of Cornwall, runiiin!? north twenty-four detrr.es we.t til It internectsthe Ottawa ..r liraiel Kiver, thence duH.,-ndiiif,' the said river until it meets the , I, vi after called by thu name lilies tihe unti sional line.s aforesaid : th.- sai.i cunty i.s to compreh.-ud ;.^' the i-laads in ihe said Fiiver .St Lawn' nearest t.i ttie san ■iiiiity. .uid in the whole or fjreater pari r..iitinc the .same " That the seventeenth .if the said cnnti-s be h^-reatUT called by the name of the county of S.if rolk ; which unty is to be bounde.i ..ii the .^a,st by the county of X.irP.lk, on the south by Lak- K-. until It me.-, me carryint,'-|ihu.;e from IViint au Pins unto the Thames, ,.,i the wtst by the said cnrrv •ng^plBce, *ianceiip the said Kivr Thames until it nie.-tfl the uorth-westernm.wt bound'arv ot ll .(f Norfolk That 1.- e.uiily ighteenthof^the said counties be hereafter calle.l by the name ot the ounty of Es^cx. jntlie several counties h«r«inbef.,re deseribe.l, extending n.u-thward t.. the boundary line of Hi..l-„is Bay. in.' udiiiK all the territory t.i ttie wastward and southward of the said line, to the utnio-t evt«i.v of the country commonly called or ku.iwn bv the name of Canada. « • ' . f, we have caused these our letters to be made patent, and tlie great s-.-al .jf our .aid Proymce of Up,«;r Canada to be hereiint.. afTi.iced. Witness cnr trusty and well-belov«d .lohii Grares Simcoe, K8.^ull•e, ,iur LieuteiiantCvernor of our gaid Province of tTpper Canada, and C.loii.'l commanding our forces in Upper Canada, etc., etc. ak our flov^rnment Hou"" -n th- '^vvr -f K n-s*'- this sixteenth day of .fuly in tile yaar of Our Lord on.i thousand seven hundred and ninety tw.)'' \n\ in the thirty second year of our reign. irty second year i Wm. Jakvu. Sccretiiry. 128 J. G. S. KXTENT OK UP. CA.\.--HEAUI.V(i OK I i.ri . ,. r ami Lower ♦'ttnct of tho Act in iliviJiiiL' Hm Pi,,»;. • ,. Canada, it prot-eeds ^ """"^^ '"*" •^^•" P'^^s. f^ppe —"to divide the said Pmvinof. of I'nM.r Cm, , • . ■• t.)«imaMd townships for the inirooH.- .,f h ».. ., ''"•"'"'''"•''^"'"•ts. counties, circles or imM.ent. and U> declar.. and api'ant d.e „u,'l,;.r'o '"."', """•" '''' '*"' '''"' '^'^ «^ t''^'- to^nrvf. in the AsH'in.bly of th., said Prou,ic«." " i"''''"t'*t»v-e« to be cho«en by each dtsoiibr-l: '^'^ 'Stalled tlie.-m.titv <•( Kent, nndis thus ■'Tliiit the iiiiietetnth of the siid mnntin. i i county of Kent, ,vhi..h county 1 to 1.^ n 1^ " — aft,-- called by the nan.e of the th. Indians, not already Llud.^l Tn ,| " ^'r ""''"'''^^ extendi>,g northwar.i to the bour.da.v 'in., of Hn I'lr' '""""•''', li"'-.Mnl..fore described, the .-estsvard and sonrliward of i7hu b.e t h ' . '' ""■''"''"" "'' ^''" '^'''•'^"'•V ^^ m ,nly called or known by the nHntof (Ln^ '' "' "'"'"' ''^ ^'"' ''^""''•y "-i'"" Now, my Lords, that constitution oF tl.o conutr nf r , nnportant m tw:> u-ays. In the dr.st place Le S-a, t 1 "T"'' '" ^^ territories of the Indians -Indian reserv .s-ul,;!^ "^ ' '"•'" ''"^" ^^''^^^'" included in this countv for elect .1 mn , ''^ ""^ 'nt<>>'e nuaost extent of the eountr y coi 'Z.^ \:y' ,:^::;;: ^l' ^"^'-'-^ Canada. -^ <- mt i ui Knonn \>y the name ot .» ../a,te,.c,ay. „n,i , «';:^'ti,„'rt,!,''t™r .^''-r,';'?,,: ;;:„':;:°7ir,.h', "■'"■'■"' important words indeed : ^uttn.int uuvt,inoi bmieoe, tJiere are very '• To comprehend all the country, not bein^r territories of fb. r r included la the several counties hBVeinbr.fnrl ,1 i i Vidians, not ah'eadv boundary line of lIudsoarBay'' ""'"^'^°'" described, exte.d.ng northwanl to the You say that ' the boundary line of Hudson's Uay " nuans the sea Mr. So,mE._Means the bax- itself-the ooa,^ of t be . v llie Lord Chakokixor —'J'hat anneav^ fn m^ ♦, i / '■ ' the words " boundary line." ^^ " '^'■""^' piopo.sition from lino cf tiS W ■"' '^''"''"'^ ''^^ '"""'"•^' '^"'^ ^^' ^'"^ '-^^' «- '-1 V 1- the coast t-i;:;txi^;;:^s:;ri^i;^— ^^ -,~M^SSt::a^iJtiH;"nknor '' "'^"^•^"^■'^^ '^ ^-^-p^^-^ 9(B.) 129 ARtJUMENT OF MU. SCORI.E, Q.C., VP, QUESTION OF HOITNDARY : Tlie Lord CnANCEi.l.OH— Hudson's Bay territory offioinse : the wonlnaropt^r fcotly siMi-^iMe as applioil to it* Sir lioHKHT ('iti.l.tKlt. — Ynii hardly rfMiuin,' to take it so hij^h as that. Mr. St'diu.K. — I reijuire to tako it «>> hi>,'h at Hudson's Bay on tho eaHt. Sir RniiKiir < 'omiek — .luinfs Hay Mr. vScoiu.K. — Tliat is a portiim of Hiidrton's Bay. The Loud Chantem.ok.- That would havo no jthicc in the C()unty of Kcint The counties of Kent and E.s,st!.Tare the westernmost part of Canada.! Mr. S( oiit.E — I'nder thi3 proclamation, the eoiinty oi Kent was to inchidi ill the hinds of Upper Canada n^t being territories of the Indians) outside tin^ limits of the other roiintios, and "Xtending to the mo,st northerly and most west- erly bounds of the province. But it is (piite jiuHicient for my jturpose if } our Lordships sho\iid take it in that way. Lord AliEiiDAUE.— You stil! leave undefined wliat is the limit of Hudson's Bay. Mr, S<'Oiu.E. — Ves. Cf course, what I ani most concerned about now is the western and southern portion of the district. Sir RnnKRT Colli Ell. — In one respect it does :,o up to Hudson's Buy; it reaches James' Bay, wliich is part of it. Mr. ScoiiLE— Yes, of course. Then, my Lords, thot l.sall I think I need trouble your Lordships with, witli regard to the atran preamble goes on to state : " And whereas liy the arrangements made by the s'liil royal proclatnation, a very largf- extent of country, within which there were several ijoionies and settlements of the suh jects of Prance, who claimed to remain therein under the faitli of the said treaty, wa' left without uny provision beiui^ made for the administration of civil government thun-in.' I shall presently have to call your Lordships' attention lo the districts nhii'l were there referred to. Then comes a recit.al as to seiientary fisheries whicli i- unnecessary to be dwelt U[)on, and then the enacting part goes on to declare- " That :ill the territories, islands and countries in North America, belonging to the Crowa of Great Britain, bounded on the south by a line from the Bay of Chaleurs. al'Mi^ d.>- high lands which divide the rivers that empty themselves into the River St. Lavreinf from those which fall into the sea, to a point in forty-tive degrees of northern liiti' ul', on the eastern bank of the River Connecticut, keepins; the same latitude directly wcM thioufih the Lake Champlain, until, in the same latitude, it meets the River St. Lawrenci : from thence up the eastern l)ank of the said river to the Lake Ontario; thence through the Lake Ontario and the river connnonly called Niagara ; and thence along by the e,i..t ern and south-eastern bank oi Lake Erie, following the said bank until the same .shaii li intorsected by the northern boundary granted by the charter of the Province of Pemisyi * The words " bimndary lint; >f Hudiioii's Bay," appearing in the 'rders in council, and coiimii^ciyii. of 17!il, and in the i)rotlanmtion» of 171*1 and 1792^ and coutinning in tlu' Governors' commissi. kis up to 1HS5, were chanKed in the subsequent comniiaMionn to the (.iovernors— from 1838 to 1846— to the words. " ."hf.-iMii Hud?'jr;V Ra3-," thii-i ir,.iicAting th- true int^srprHtatir.r, .-^f th*' e\j.ruF-s)i;n ;r.»d in tl;:- :':ir!it-; docmuents. The arbitrators in their award gavf effect to this view, and their lordships in the end tt'ii>i»ti'd ii. + The easterly boundary line of the counties of Essex and Kent, or either of tliem, as tlien oor.sti- tuted, produced northerly, would inter.>ect the shore line of the Bay, 130 TIM. WKSTKUV UOUNPAKV-HKAUIN.; nV tuk A. T "y 1774 AXOTHK TRK\TV OF 1703. vrtuift, ill case the sume flhall be so iiit(.rse,.f,.H .„ i * OI„.. I.ur in .aso ti... HHid „a„k o. L said laU i, IrTl .*'r''''. '7"'"'^ ''""^'^ **'" th.M fol|.>«MnK the said l.ank until .t shui k r. . : f i '""";' .'" '" '" '•'t^'-«^'^'«". Khvl >H. nearest to the n.,rth.w,.«,ern a 'I o- ) , ' * "\'.f""."'' -^ ]»"> ""iti bank which tlHWo. >,,, a ri«ht line, to th.. sa.l norlT. J Mt.'.r, T I'V""'" "^ ''**""«ylvanm. a,.d «!o..- the weHterr, Lonndarv of the said province nnlilil of th.- said i-mvint-r, and thence t...' i.ank of .he H.id n..r.\^t.j;VZZr:l Zt:^^Jlr'' ^"^'^ ' ''"^ ^'-« boundary t.f the pr.Tvir.ee ^'H o „^ o,, i; ,",'""'• "'*"" ""'^^ ^' ^^' -'"^horn fn>,n the „...nt ./which the '^.:i::^;: IZ'lt^^^^ S "'^1'!,:;.;^ "'^^^"^-' Adv..„tnrerH of England tmding to S^n'/Bay''' ""■'"""' '" ^*"^ Merchants will ^;;r^hlt^z'eo;;:;:^';j:;:::;; ;;i ohi^s thJin^^'" >"^-- ^'^^"^ ^-^ ^- guiar spae., which appears to hav. J»..n l- M'-sis.-ip,,, ,. a ,,,,t of trian- k Country of th.Uh^VlMnJ^Zt^r'"\!^"'''' '^"7' ''^ tluMmme of taken to he .lealt with hv th s Ac Thl "' *'"\ '-^''^^V "^'aris, it'^ust he the haoks uf the Ohio aid on ^,e othe . 7 / 'T " '' TI' '"' ^'" t''^' ">'^' >^i'i^-. .•xte„, e.l, u.-til they n-aehed the soSeer.,! that v ? """^ '' ^'' '^^ ^'""^ the tern, of the T^;:; f \> if ^^'^^^ ''T'/v T''^''' •'"^••^"- ^-«" mrryout. ' ' "^'^ ^^'^ ^'^ I'ailianieot is intended to I will refer your Lordships now to the 'Cvafv of P.u-i n 1 . Mii:- ;^.^:^;;:';::ti;;,!i;: '^ ^"^^' ^ ^^'"^- ^^-^ ^'^ ^i,. tSL. the souree. of the with all its dependenoie., to the Kn. of ', ■ t U^'"''' '*"'' «"''^'^"t^^«« tJ.e w!,oJe of it ^^l^^sty cedes arid guarantees t.^,is Si P.^u''''" ' ".'^^••"^■•"' ''i^ -Most Ohrisrian coasts in the Gnli and liiver St Wnee a^> Tn ' T"'' "*" ."^' '^'^'^^ '''"'^"^'^ *"^i tl.Psaul .ountrie;OandH, islands and ™swilHp'^'^^^ everything that depends on a 1 ri.hts. acquired l.y tr^atv ot t wi ; '.ri t heToT/^h' '^ " •f""^-^'''^' P°«-^"'^'^">» ^-^^ ot France have had till now ov '^- «aid Tiction, and wuhout any Hbertv to Sart r<^^^. t "h "•°"' ^"f' ^''"''' "'^^'"'^^ ^'^ pretence, or to disturb.Lt B^.^fl^Z'Z:!:::'^.^:^^^^^'^'''''' ""^^^^ ^dd^t;:^;';^ think, ^.eotne. very in.portunt o,: the point I am •Articles 4 and 7 of this TF^alfarTT^hUed^, ; ,;,T,i ", "^^ — tThe comnnsHion to Sir (iuy Carleton, ..f 1774 131 - .' . AKOL'MENT OP MR. H( OIU.K, (;.('., re (^t'KSTIOV OK HoUVDAUV: " III ordtT to n- f'nUMiMli pfH.c on Holi.l nnil duroJilfi fouii(iatioim, and to rptiidvc t'or ever all Kul'jfrts of liiwputi- with rcKiird to th« litnits iil' tdf liritish iiiul the Fnneh (••rritories on ihn r ontmcnt of Auhtk'u, it \% wm^w.h'A that U\x iIim futur« tlie (?or:tiii,, lictwH'n the doiniiiionrt of Hi* Hritaimic Majesty aiul tlio.-.o of His Most Ctiri>ii,iii Majr.sty in that part of ilu' world. HJiall lut lixi-d irrevoiM^ly hy a line lirawi. al iic the ini.lilif of the iiivcr MisHissippi fiom il-^ souioe to iln' fiiver UMirvillo" — Tlif LnijM Oii,v\( f.lj.ou. WluT.! ia tin Uimt Jh.Tvillof Mr. tSfOHLK.- Jt is down south, lu-ar New Dileans ; — "anil from tlieni'. hy a lin»» dnwn alon}; the middle of thi< river, and tlio l,il<»» MftunpaH and Poutcliartrain Id thn sea." Now, my lionls, the fixing of tliis line <.f iKxiridurv K'twcen the I'reiuli aiMJ F'huTinIi j)i)sse,>sioiis in Aiiieriwi, from the siiuni.' of the Mississij.|ii soiifli, extendf(| 1 siiLmil, tlie Hiitisli possossions eedcd liy thi' tivaty Jo fchi^ uliok' of tlie i'rencli pos,sf.ssioiis which were on tho east .-ide of the Kiver Mi,<.xi.ssin[)i, from its some., soutlinards, iind included therefoiv, as y..iir I^ordships 1 tliink will not he •.^^\^[.\ to doubt l>y my learneil iViend.s, thin Count ly of the Illinois— iliis triaiij:ular l,jt of country lietween the two rivers, the Ohio and Mi, isMippi. .Sir RoiiKU'r < umikh.—Is it ctilleil Illinois in the map ' Lord AiiKHDUUv— There is a hit railed illinoi.s, l.ut the fatt is that tiie Illinois is a vi-ry larLfe district. Mr. MiCAiiiiiy. — I think it is uuiikod i>n the map. Mr, 8c(»itLK.- f will shew your Lordships presently, tiie boundarv of tli« Illinois as .\Hi;--])oes anythinj,' turn up^n it :" Mr. ISooiu.K. — J do not thiid< much turns upon it. I do not think it \\\\ •contested lliat the JUijiois conntiy was part of the country ceded to Cheat I'.i i liy the Treaty of I'aris. Mr. Mct.'AKTilv. — There is no doubt about that. The Loud CuA.NCiM.i.oit. -Your arj^ninient is this, that the houndary Canada, under ihe Quelx'c Act. runs up the Mississippi, othei'vvise there wouM have heen part of the Hritish possessionn omitted, and not included eitli- 1,'anada or in any of the States '. Mr. ScoHLE.— Yes, a part would luive iieen left entirely out. The Loud ("hancem,oh. — And that argument is ,supported bv tl terms ot Sir (Juy (larleton's commission \ Mr. Sl'(iHI-e, -It is. The LoiiD ChantelloI!.— And as you .say, it is perfectly consistent witli a reasonable interpretation ol the (i)uebec Act itself i* Mr, SCdiiLE. — Quite .so ; that is my whole ar<,nnnent on the point. The proitlamation," us your Lord.shi))s may remember, that is printed at page \\h\ •RoV.vr, rKOtLAM.VTION Of 1703, K8TAm.I«HlNll <.^;RI)KI. ANI. OTHRK riiOVINCKS. Gkohoi; H, WlicrcaH we havf taken iiitu mir rnyiil CdUhiil. 'ration the fxten.-iiv.' foid v.iluable ao.uiisitii.n- ii^ AiiKTicn, H.Tiired to w\t Crown by the 1,U« dftiniti' .. trnaty of peace, cnncliulnd at I'arii tli-' 10th d.iv of I'V-brUiiry lact ; and beinf< (Icfirous that all oni- li.viuK Kiii)jicts as woU (pf 'jiir kiiiKdiini>- as (i( ,,ii'r coionifs in Aincricii, may mail tlii'mwheH, wim all convenient sjiec'd, ,'alion. we have tli..|.^.l,t ht, with the adviee of o.ir J'rivy Onnncil, to issue this oin' Royal Proclamation, hereby to |iiibli>h ami declare to all our lovin^r Hiibjects that we have, with the advice of our said I'rivy Council, trranted <.ui letters patent under our preat .seal of (.iieal Bi-itaiu, to erect within the countri>;s and islaii I 'in iivf (Icyrifs north Intitule, pivsses alone l.,> liiL'h l«r.,l> winch , l.v,,!,. th« nv.MH that ,.n>pty th...M.sHv,.s into the saill River St Lawre,... fron. ,hnse wln-h all int,. ihe ... ; Ji .f|«„ ,|„„ „.,. north coant of "r Have d..H ( hulourM, .n. theco«stof ,l,e(iulf of .St Lawr-nc... to . 'a,,.- I.osi.rs. an.l f.o,„ rh.-i cros-n>« the n.outh ot the R.vor St. Uwren... I,y the we.s, ..,„ of I,., hhu.l of \nti 'osti terrinnates at the aforenaid T{.,. -n, John." Antuosii, Ml. .S,,. ,a.K.--No. : . f . I!m u.s . ,tl„n,tr al,ont the western l,„nn.lmT, ami it was hemuso he territory ccn i.M.e.l m Ihe prodanuaiun. or axTihe,! I,v tl,.- nruciania- tion t.. the government o. <...„.},«, , ,.inith ,1 a ^r-at .i,ai „f ,. rriturv foJ which it !;!!!J1'2:':'J'^'Z*::.I'!::'1:':L:\j^^ tim (^,K.i„,c Act was pa,s.e.i, an'l Flint Kncr. m,..-!. tn tl .• s mr.. ,, S? N t vCk i ^ \'' ri',' "^ "'" '"" ',""'' "'" '-^t'"' ' '«>^h«uoh^^ .ii,:c:i'!'i,£:.i:,;;r;:iti™^^^^^^ wnni l.v the mu\ lakr, the Uki- M uu>.i w L I r „ ■;? •M"l"«;hio.,l.t to I.ak.. runr.-liartraii. : to the weHt A,„.lacl,ic.k ,^Cat,.L.,.u.|...e -. „„,] f. ,l' !■ irHtwunl iV "lie HHiVn:;' "^ '^ "'"'^' '""^'"''■- '" ""' ^'""• G.neriKirdf N.,wf,.iiii.llaii(l ".iM loa^t, mi.lei tlip oare .■iiid oHpeotKiii of our ..)^^^H;^:;;:r;^i^KS:^tl^[h:'a-lr^^ tiu.S^;S^t:^t':t';i^v:^;l;;^j;!:L!:^T^^^^^ ':"■"• '''•'-- " <^-^*^-»" t.,.tth:i^.:e:x:,^:;;^rui;!.:T;"iits':!th «:;:''"' " '"" i"'--^"'"' tt.« ".cuity of .,.. clonic.. tion, .h„»H n.,t 1^ M Vh el orii n ; n tTJ ,^^ ""f"" r"""r"^ ^'>';' "l"'!*^'- ""'Ier„„r ,..otec net ruiiiK h-'en mle 1 t< ,h re^JJl eMs.,.,„uii ,.f s,„.h part" ..t oMr .lo„„„iuns ai„I terntone» a«, oo„,man,1er in chief in an^. ' :;,;r c:;S«onS;o Kast Fhin:!^: /we^r'KrH'V''':^ *'"" '" ^""■""" '"■ pretence whatever to ijraiit > ^i .••mia ..f u,,.., ,.,. rjoruiaor \VeH Mnrnla, rio ,>res-,iiiie, ujMm any re.mctiveBovenune tfa , r,l,.H , .h ■^' "Mr-^'i-V I'^itent.. tor lan• v^'tlun the linuts of the territory *.urre. „f the rUe s^ whiel fMl fnt t e I, . fr t" ".'h "'" ''"'' i*""' '"''t'""-' lV'"« t" H'- westward <.f the "tnctly forlnrlTn pah^ f o, r d sr eas re n 1 ■ ''''"'\ *'"' ""^"' ^^"^^ »« afor.said ; and we do he.ebv whats,'iever, o takinrp sess. .„ 7'?' "f "Zr7^ '"''"'''' '■-'"'."'■'kmK any purchases or settlementH that purp,,;. «'^. "^J/;'"-;^'^'"'''''-'' ""7 "f '>' '"L"'« "l""-" reserved, without our esp,.cial le Lve or tin-n-e for '^l^ '7?7:l''' '^.l' ■^^"'''''' '^" '"■ '''•^ "f '^'='°'''^' '"63. in th.Mhird year of our rei^u. .Jr^lae to^tslirIVH•irZ•,?^^ «rst day „f May'^nrthuu^^'/d-^e'veu iluldrl-d^aSd sJv^Srt:"'!"""'- "'' ""'''' ^'"'^'' f^'"" ^"^ ^'''' ''- I I ^ ARGUMENT OF MR, SCOBLE, Q.C., re QUESTION OF BOUNDAKY : .xteni.ng those boundanes and supplying the civil government for all the m.1.. jccbot the trench who l>ad become ..ur subjects in consequonee of the trtatv and who were residing ,n the district which is there <]e.scribed as " a very luri extentof country, w.thm which ti)ere were several coh-nies and settIo.n"er,t. of countr ' ' ' ^"""^ that district then unquestionably included the lllin m'I ^_^^ Sir Robert Coij,iER.-And part of the Illinois country is to the west of tli. ih., ^u' ^^•''^'-^•--^'^^w, my Lords, if the contention of the other side be true that the western boundary is a line drawn due north from the confluence of th-' Ohio and Mississippi, you have the Illinois country cut in two. Those who were to the east got civil government ; those to the w^st got no civil government at rL rl\T\u^'''''^''''''' ^^^ ''""'y '"i^chief the Act intended to remove perpetuated by this construction of it, which I submit is neither a necessary construction. n()r a reasonable construction, nor one which is consistent in anV way with tiie circumstances under which the Act was passed. Now, my Lords, if I am right in this contention ...s to the western boundary It carries me this tar at least, that on the west at any rate, the provin^'e of Quebec extended up to the source of the Mississippi. 'As far as the source of the llLssissipp, at all events, y<.u have, tixe.l by the Treaty, and by the Act of Parliament a boundary which was the natural boundary furnished by that -nat river; and Governor Carleton's commission, us the Lord Chancellor 'has alrmdv pointe^ out, gives that effect to the Act. In fact, .^very contemporary documeut gives that effect to the Act. Amongst the subsidiary commissions (vhieh were issued by the King to th... Lieutenant-Governors of certain outlying posts .,f tli. 1 rovince of Quebec, we have a eommission given to the Lieutenant-Governor of the 1 linoi.s country, at page :m* It is the third commission on that paa^ It IS dated the seventh April, 1775, and is addressed u Matthew Johnson, Esquire' Lrieutenant-Governor and Superintendent at the Illinois : " We, reposing especial trust and confidence in your loyalty, integrity and abilitv ,lo of the Post, and Its Dependences, established, or to be established, within the Illinois District, in our Province of Quebec." "i. lumois I do notknow whether it will be neces.sary for me to trouble your Lordships with any evidence as to the position of the posts in the Illinoi.s district whiih were placed under the government of Mr. John.son by this commission: In.t if neces.sary, I can shew to your Lord.ships that many of these posts were' on the Tontenl' "' ^'''' ""'""^ '"^ '""''""^^ f^'«"'' "^"^ ^^''' o^her side Sir Robert Collier.— There are some marked here I see Vv .n!^'"' '"''^OBLE.-Therc i- no doubt about it-I do not think it will be contested IVS •;i'P;^'f .nts-that there were posts and settlements iii the Illinois countr\- to the west of this due north line contende.l for on the other side, and, ther.foi-e I dojiot^think I nee d trouble your Lord .ships further with that. *(;koh(;ethk T'Miin, ktc. To our tniH., and wellbeioved Matthew Johns.in, Esquire, trreptini? • !n-i_ i.i?r .If (Hir B!Ud Fro'. . xi; lor tht tune bem^; • im - ji v.oi..ii..ii].ii. (;.v,T, at Onr Court at St. J^m.B\ the seveuth da^ 'tAl'li'vL^l"'.'/"" fif^^^nth year of Our R.ign. By His Majesty's command, 134 Dahtmoith. TBE MISSIHSU'PI-ITS KEMOTtST SOUHCES-EKKOKS OF THE OLD GEOGRAPHERS. Here we have it perfectly clear, a. ] suUmit, oi. tho Tv^ht construction of the .statute and having regard to tho uholo of the oircu,u..tanee.s which attended the con.st.tution of this Province o (^uehec, the line of the Mis«i,ssippi e.stabli.slied a.s the m-.stern boundary ot the Province of C^K-buc, so far &s it went i\ow, my Lords, with regard to tlu' point as to what knowiedm- at that time wan posseRsed with rebTence to th. .sources of the Mississippi, j"inr Lordships, yesterday, noted upon Mitchell's map, when it was produced- Sir Robert Coj.lier.— Do you remember the date ..f it ' Mr. Scoule. — 1755. The Lord CHAN.Ei.i.oR.-That is a date which is different from the date which I have got on mv notes '. Mr. Scoiu.E.— My friend Mr. Hobin.son .sav ■ it is 17 jo Mr. Ro]{lN,S()X.~Yes, my Lord, that is cornet Mr SCOHLE.-I am sorry to say, my Lord, I have not seen that map, and tlieiefore I am speaking only from my recollection of the imi-ression whicll your Lordship.s seemed to derive from it, that the source of the Mis.sissippi as shewn on that map IS to be the north of the n.:rth-we,stern angle of the Lake of the The Lout.. Chancellor,- -J do not remember that. What I do remember h tl.at tiie northern boumlary is shewn to be the whole of the lakos and river which seem.s to me to be though it may not be laid down iu exactly the same way, to the north ot the Lake ot the Woods Sir Robert (.V>LUER.-It lays down (,'anada, wliidi is coloured brown, as going as far as the I-ake of the Woods i* Mr. ScoHLE.— Yes, my Lord. The Lord Uhancellor. --There is a point which at present w have heard nothing about, and that is the drawing of the western line, which the award .seems to have done from Lake Itasca, which seems to be one of the sources of the Mississippi, though not apparently the northernmost sourc; > Mr. Scoiu.E.— That is a point to which I. am coming, but I wish Hrst of all to give your Lordships authority for the statement which I ma-le just now in answer to Lord Aberdare, that at that time, in the then condition of gco'^mphical knowledge, the source ot the Mississippi was unknown, an.l that it was'uppo,sed to be very far more north than where it actually is. Now, in the Ontario Appendix, page 56. there i.s a report of Mr. Thompson, who was astronomer and .surveyor to the North- West Company, and who seems to have travelled over this country with a view of settling the boundary, in the vear 1796, at the tune when the^ cpiestioii ot the boundary between the British dominions in America and the United States was under discussion. At line 20, the report fK. 1 ^^l ""/'rr XT ^^!i J'^orapson wore very acceptable to these gentlemen, that is, to the Agen 8 of the North- West Company in those parts. They desired to learn the position of their trading houses with respect to one another and also to tiie bound- ary line between Canada and the United States. . . Th.. source of the Mississippi Z^h fwr" ?u'^r*? *'*r .^"'^'*"' and a few fur traders, and was supposed to be further north than the Lake of the Woods." Lord Arerdare. -And it was supposed to be westward from it apparently, from the description of it given in one of these documents which we have had ' Mr. SCOBLE— Yes. my Lord, f have lieard-I do not know of mv own knowledge whether ,t ,, so, but I hav. heard, and I think nn. of vour Loi-dships made the ob.servation-,that in that map of Mitchell's, which is reallv a verv important map historically, because it was the only map before the English and 136 ARGUMENT OF MR. SCOBLE, Q.C., re (QUESTION OF BOUNDARV: American plenipotentiaries when the Treaty oC Versailles was negotiated lIlkroTSifwoofl^''"''''^'^' '' *'"''''" ^ ''*' "°'^'' °^ *^'' north-west angfe of the The Loud Chavoellor.— How does the map appear to be dated 1755 ? It wa-^mcortein ?^" '''^"^ 17.S3, or earlier, from which I inferred that the date the n^ '^''^^»LE.~My learned friend, Mr. Robinson, tells me that the date is on Mr. KOBINSON. -Ye.s, the tlate is on the map. Sir KoHKHT Collier.— It is said to be 1755. Mr, McCARTHY.-[4/y.,. rep'rrhx'j h th' map] It is dated 1755. The Lord CHAycEM.ou.-Then that becouics a very important man. .K,v ^^^'■.fy.^^^J-E. -Yes my Lord. Then at pa^ro 62 of the same report, your Lor,l- shap wdl hnd, m th. U.t paragraph on that page, a statement of the ori' n of the Mississippi River, in Turtle Lake :* ^mnin''^'"'*'''- ^^.'^'''/''^'"''I'J of the Mississippi River, is nbout four miles square Irs noith than the north-w.vst corner of the L.keof the Woods, and this sup^osit.ou le to the vZ "\ '^^*'■^"^^ «' '^■'' y"^^- '^^- "^rror arose from the fur traders who a^ce^de, rtakerre^/'"'A7^rr"''"''^ V''\ '^T -"^ '"''-"'^' '^^ '^'^' *'"'' °f ^'■''^'^ '* '"-^^ the habit smoke it JlT.n/n f^^""'P«'?n fou"d these p.pe distances to be as unsubstantial as the smoke Itself, and that each, instead of three, only measured two miles And the error was, not to make due allowance fur the sinuosities of the river. By this fa'se method of reckoning, the notion ha,! ari.sen that the head waters of the MissLippi were 128 lo- graphical miles iarther north than Mr. Thompson's survey proved them to be. The north liank of the lake is in latitude 47^' SS' 20"," and so on. Lord AnEHDARE.~Where is Turtle Lake ? Mr. Scoiu.E.— It is shewn on the map. The Lord Ciianc ellor.— It is a vorv small lake «. Tt^^*''''•^'l""*^1f ~^^'"-^'"' ^"''''' '' ^'^^ noi-thernmost source of the Mississippi as Ita.sea is the turthest point from which it draws its supplies ^ Mr. ScoHLE.— I think so, mv Lord. The Lord President. —It is the point furthest north. *. nV ••''^^^'"^'!•.T'^'''^ ^'"'='^ ^* *^''^' ij,'"0'Hnce which prevailed as f.. the extent of the Mississippi River is, I think, .somewhat iitiportan; with regar.l u, hi,s ennu ry because, as the King of France ceded to Kngland all the country east o t J MLssKssippi, 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, an.l'at like Ttbl vv' S" "', ^^\^T '"PP"'"*^ ^'' ^'^ ^''-''^ considerably norlh of the l^ke ot the U ood^, and that when you got to the source of the Mi.ssissipi)i River To nZ'^wtt "■'''"'" ^ri^'^V ^^'^." ^'^"'^ ^^'^^^ ^" ^^^^' ^ '^'-^' 5«ontinued' renia u ; ' t. H F '"^l ^'" l''^'"'"^'?, *"-' ™ ^^^ "O'-th between Louisiana, which trcT w. . ''l t''''l'^ TY '\' ?''""V ''^ ^^>^-^ Canada, which by the ti c y was ceded to England, and that therefore the trim western boundary of Canada, as dehned by the treaty and the Act of Parliament, w;.s a line which fniwi'l '''^"f? *^'^^ V"l''' ^*' ^''^ ^^'i-^si^-^il'Pi to the source of that river, and then folio sed westerly whatever was at that time the dividing line between Canada HIHl J-iwUlSlcinil. of tb^'vV' — ■' ' '"'"Y^.'^'V^ P'''"t, of the duo north line taken from the confluence ot the Missi.ssippi and Ohio rivers up across the American boundary into Canada X llmik J mav here convenientU'^ n.fur QltK,>.,.a> i ..i..,ii ., i i •' . e conveniently refer, although I shall not do so at any 1 any Jeng th. *t5eo nntc, p. 39, note. 136 EXTENT OF TflH KRENfll POSSFS^.,.. WOOLRICH. to the state of tlie iii.^i/.ioi i • • ~ — ~~: have «,n.^y S"f [hLll^ T;::-';;,,??^^. ? ^^-^^ ^our Lordships m-cessarytor^me to go over the tu'.J" R"'»l'ard'.s case, that it is nSt tnends are entitle,! to whatever the a L"T;r'', "^'"'"- ^ t^"""^ my learncv case may be; but I think I oiu t !'f '^ ^'/''''*'^'^^" '^^ tJie jud/e in that been tolOwed even by the cour ' f Lovv'rp'" ^'' '^'^' '^'^' cLe^as not Mr. Justice Monk in a case of C, J\'' ^-"^^'J- There is a jud^nnent of the Jomt Ar.pendix.* Mr. Justice Jouk Z '"^ "■^""•' '^ ^^ page .1^7 of was a Justice of the Superior C\ mt o t P '• ^'"'"' ^''"'a^Ia jutl.e. He para ively recent jud,r„,ent. andwa , dV if''''^'''^ "*' '^"^'*'««- ^t i^ a con> question was as to the l,H^.,H*^wf.l '"^'y^'*^'' 'm the 9th of Julv (S(!7 t in the Athabasc. 'li' H^r ^5 t ^'^^^Illi^fV;: ,^ |-;--' C.nLSt R ( Ri 1!^ he pomts u. the .ase was whether thn'r;. ^ • T '""^"^"''^'^- One of HudsonsKay(>.nqwiny.u,.dtl.elearnSi, I f/'' '".*'^"' ^^'^ territory of tl,e .nvest,^at.on of the authorities ..,S tt "'" fc' f f l'^^"^ ""•""^'' « very car-d^ was not included in the limits of tk H ^li^s i. ''r-''''^^ ^'''^ Athabasca eountrv Oro... of Prance, because, he say 'it ™ ?' ^ '"IP'^y. ^-'t »u.|onged to tlVo b.r MoNT.vr.L-E Sm.th.-\a1 ,,, ir 'vCn ' . 1 ' '" "^'^ '"'>'"^'' ^'^"trov.rsy' _ 'i-ot propose to ^.•c;;;^!^^;.: t,^^); ;'^^';;' Pf-^^^ wluel, [ an, readin, f nn^elyt^ give vour Lord^hi^ u'ti'STjf 'u "''"'^' ;'^ ^'h' J-l.-nen^bu part ot this m)rM,.w.of. ^.. l-^^^^^ *'» 't. He says that this Atliaba.sca is part of this nort .-wes^ni 3 '' f''' "^ ''■ »<^ Mr. ScoHLE.— Vos "'laoasea is a g„od deal to the uorth-west iS'^or^^-^;;:^/^-<^^^---e-y«tem. within the limits of VwK'id":;;;^'';^;; ^^« J-^^-ent, it was included Hnd.s()ns Bay Company '^ '^'^^"' *'>« territories granted to the the limits of Canada .' ' '''~^^'^^t do you say-that Athal>asca is within the Mr.Sro«,E,.-Ye.s,myLord. ine LoHD CHANCKrioH — T) f "-t whicl. you M-e;.e goi^ir^^ti 'r;.:;'^!^!,:^^ ^^^-^'f'^^^' *■> the minor ai^nment which vou were "oi^. f 7f r ' ''"' T' ^^'" '^* --sarily withb the te!-':^ ^ ^ ^f!,' ran^ Y,;;^"'''^;''^- '^V'"^ ^^^■""--= -^ ^'''""''•"«^<^''^»ada,o„tof which AhaLtri^t " "" >'"' ^'^'"t^^'y of the Mr Seoiu.E.— Witf,;., ^i,,. . ".^^•"'"■^ascd Jias been carved as a District > 1 he Lord CilANCE,.L„i,,-H-l„;r.. i, tK|„ce ( '■'liaU,,,! „ n»,ch «i:","\"' ';:;''. *', "■;■'"-' l'"«il'l»«.-.'u.nc„. , ,,.iV,. *He|H)rted in Lower Canada Jurist, vol. xu, p lyj 137 i I ARGUMENT Or MR. SCOBLF, y.C, re (/lESTION OF BOUNDAKY shewinr; that there is no consensus of judicial opinion in Canada in favoiir of tliis duo north lin«^ hut tluit tliere is a good doal of authority on the other sj.te, giving tlie whole (if this cijuntiy to Canada, under the Treaty of Faiis, and iindci the Quehec Act. The Loud CHANCi:r.i,(iK. — What strikes me at present, ahont this particnhir decision, is that AthaliascM would' not fall witliiu the line in any coneeiva^hle ciii- struction of the limit in the Quebec Act. Jf you take the line from the conjunc- tion of the Ohid and Mississippi, of course Athabasca would be a great dcul furthei- to the west :* Mr. SronLE. — Ves, my Lord. The liORj> Chanceli.oi;. — If you take the line of tlie award, that also wouM strike Hudson's Bay nuu;h to the east of the Athaljasca country <' Mr. Sroiufc:.— Yes, ni\' J.ord. The LdRl) ( 'HANCKI.I.OK. — And the con.sequence is, that on no pc-^-sible hypothesis ciin such a notion lie reconciled with the boundaries in the Queluc Act^ Mr. Seoul. E. — E:;(:'ppt on the assumption that the intention of the Quehee Act was to inchide in the Province of 'kiimv ledBenient to your p/xcellency for the coninuiuication. On the suhjeci, of the hill passed in the la«t sca.^inii of tne Trovinoial Legislature", liin Lordship has not only handed unfounded sii'''iii»e», but has advani ed ;i< fact that which is not true. Hh is i)h'.ised to say that the Act of the 31sL "t ic King, cap. 31, dnidi'd tin Province of (Quebec, and makes no alteration in the western Imi' ■ estr.hlisiied by the 14th Geo. III., ciip. S3. The Canida bill does not divide the Province of (Quebec ; it preii 'Ses that it was His Majesty '■■< intPii tion to divide that i)roviiiee into two pruvinces to bo called Up] er and f ;OW ;r (Jaiiada, and makes priivijii' ii for their guvernment whei. .<<• divided. His Maje.-tty, by his Order in Cmincil. subsequent to the I'assiiw the Act, did accoiiiingly .separate the Province oi' Quebec into Uoper and Lower Canada, and does niaki' a great alteration in the western limits from those e.stablished by the 14th of the King, extending them \ve.4 ward without reference to th.^ limits of Quebec, in such termsaa plainly indicate the intention to cninpre hend all the country con(|uered rrom Franci'. under the uaii.e of Canada, which liad nut been lelinnni'iliHi to the United St.%tes of America, or secured to the Hudson's Hay (.'ompaiiy, or designated as Lowir Canada. . , Earl .Selkirk is pleased to sav that the Chief Justice of Upper Canada declared that his lurisdietmri extended ti the Pacific Ocean ; his Lordshiii mu.st liave l>eeii misinformed ; T never did pretend t'l [hm- 138 EXTENT OK UPPKR '^''"'' ^"'^'^"'•'^' «^- <-"IEF ..rSTICE POWELL, 1819. inwliich, in reference to tliocotitroviNv )-i ^ between Lon I Selkirk's partiza.is and th,' f^.n'fr ''*' Pt"'^'»^' '» the year ISVJ, ..pmion m a letter to Lieutenant-Oovern,,.- V .; i . ''""^«"^''-«. he expresses his The L()R|> CHAVPFr rni, m, r\'""" J^'iitNin.l. Selkirk in a letter to U^e En jiri^i:^ i, ;;; „^V'" ''^"'^'^ '" — »* ^^^ Lord Ouef Justice Powell was allV-ed \, tm -e > ■ 1 '" T'^'" /'■^I^'"^'^^'*'"^ ^^'^ieh explain and he doe. explain, Ko savs t nf f ,?• f"'^'''^'" '»e was required to find .t about line 15-of the «o '.2 n t \;;"':'''''"':~>'""'- l-"-'i>'hip^ will wa. to extend the western lirnils of L^pi^!; c^;;!;;;;;!!:"^ ^'"^ P'-'^^i'"^'^ of Quebec —"without reference to the limits of On,/ •' mtent.on to comprehond all the country coZmlld^!^" l!:''"' ""' ^'^'"'"^^^ CW.Ia wh,chhaduotbeenreli„c^uishedto^T^J,Vs?' ^'T: "'''"'"' '^' "'^•°'' oi tne Hudson's Bay .Jomp.ny, or de.s.gnated as Lowir C'an i -- '^ '^'"''"'"' °'- ^^'^"^d *<> fill r ^~^ - ' Vy U, II d( Ul, ine Lord CirAxrErioR — Do v in thi« letU.r of C;.ief Justice Powdr^';;^ wel'h'^r'^ *''''' ?^ '^'""''^'^ ^^P''-^^^^^ the gniunds of it ? *^ ''"'"'' ^^'^1' ^Js without our considering fiH to that contention. " ' ''" "" K^'^^^'^nt of judicial authorities I he Lord (,]lHA\('ELroi! Wh f <• •] is a reference to a parti;uiar Orirt o!u.Si;";d.t'^'''' ^''^ ^r^'^' '" *»"^ l'^^*'^'- indicate a certain intention f suniosP w 1 ' *'",'" '** "''''^^^ he says plainly Mr. Seon,.E.-Yes. my' Lon? ThavT '""' ''"' ^'"- •-^'•<''"- ^" Counc'il f ^ Ihe Loud Chancelloh—I think «7, ' in °'" ' h' s;t"^'™T?,^t '/ '"r"" ^"f ™'*t -' :t^ '"■"" '" " ""- The Lord Chancei roi' •— W i contains the declaration that the'eusLrbou'nlri'^^- ;v<^^tern boundary, but it northward "to the boun.lary line of Hud wl p ^ > V'^''*"' ^'^"'^^''^ ^a« t'^ ••>^n tomclude-alltheterritor/totLsoi hZ ,^^^^^ '^"I^ ^'^f that Province was he utmost extent of the cou t^ iomm^^^^ ,7'T*^^'^"' ''^ ^^e said line, to Canada." '""^ commonly called or known by the name of -otY;^f^i^^j-pi^->:-^or^ ,,i,,,,^^^, ^,^^ ^ ^^ there has been no consensus of iudirLl ^—^ -^ ^'"^ P'^^P'^^^ of shevin that ottheju.Vs hav.takerronrv'i^wTndTm;^^^^ '^"^ P^''^^ "^"^o^ a^u^bcial^thorit^isconcernerilru^e^^ ' by Parlm,„ent, ua.s s .t It Slubv a IV '''""'f ??* 'i^ ^'"'■■^*°» op.mo„j of the Hrst authoritv f , 'm; , ? ' ;' '.''f '?' -y.-'f '«"•.«*<>. iriCnunoi) contemt.latwj and retVrr.'.il* to hv VarU " -"^^'""'^ '■■• I'tu.so, 1 Th.. F':arl of S.. kirk T.lliiHnrl f i i ^ ar'iameiit, ua.s set at noiish the Hudson's Bav ( W,^ iv >t ^l'"^"' "l""i">"< of the Hrst a,rtl., r tv f, m' ' -.-,.■">■■" -»K.«raio. Hi« Excellency Sir Peregrine Maitland ^ ''""^ "''' ''"""'' '" '"'- ^-t^'- W11.I.I.VM Dl'mmek Powkll. 139 AKOUMEKT OF MR. SL'OBI.E, Q.C, fC QUKSTION OF BOUNDARY: jn'1s,'rnent in the Reinhani case is entirely done avvny wilii !>v a vof* ^ence to ll,.. words of the Act, and t<» the words of treaty upon w'licij tJie Ac^ 'vas |i,) jsud, anil that the Mississippi, t s far !is it goes, must he taken to b,; the line whlcli fixe* tlie wi-stern boundary of r.he Province of [J[)|)er Oanad i. Well, my LohIs, I think that that would ho enouf,') to siJpport the * vim'. If it is presunieil, and it \wis presumed tliat th' ri.se ol du^ Mississiiipl wn-, ciin- Hideifilily nortli of the {luiiit at which it jirtually does takf its rise — con.-iileralily nort!), that is, of the Turtle and Itasr'a livkes, anri consiilertxhly north also of the Lake of the Woods — th;i,t word'! carry 'm, ..s far as t':j first natui-a' houndiiiy a all events is concerned, to thv iCnglish iiivr, which is the boundary given l.iy tin; award. The Loud Cha.vcku.ok. --At present he ouiy evlilence as to that i, tumlary — the north(!rii lioiindary of the award — which .ve hiv»! iieard is MitcheU's luap. Mr. Sf'OiiLK. — There is other evidence, my L trd. There is r. des).aii:h uf Lord Sheiiurne to Lieutenant-(ilovernor Carlefcon of Quebec in the supi-li'tiKii- tary apj tivSix of the Province of Ontario, printed at page 1, dated on the Uili Novembei-, Mi,',-. " fnstr'ictions nf the Imperial Government as to exploratioih of tile teiT'ioiif > (v> the westward of Lake Superior, and of certain northern territories, as ..!i.-?iing\n.shed from the territories ccriprised in the Hud.son's iiay L'oir.pfiny's •hi.-; or," wliich I think is of importance m this view of the west.'iii bdiuiiliuy. !j.he last paragraph is : "As an aocurato knowledge of tlie interior parts of Nix h America wouM contribute nnich towards enaldhij,' liia Alaje.sty'a ministers to judi(e so'radly of tlie true interest.^ of the dit^rent |)i()\iiiceH, I cannot too strongly recoiniiiend ii you the en(!Ourrt!.'inf,' .'^iuh au'. cnturers as are wilUii!.' to explore those partH which hu.e not liitherto heen iimcii fiecjuentod, and consequently are scarcely, it nt all, known, particularly towards tin terriiories comprised in the charter | of the IJ udsun's I!ay Company north*] of the TIudson'& Bay Coaipany, northward, and the country beyond the Lake Superior, westward." The LoiiD ( Jhanckllou.— What is the meaning of that i Mr. S(;oiiLK. — I do not know whether it is a misprint or not. The Loud CfiANC'Ki,LOii. — '• North of the Hudson's Bay Company "—it can- not mean that. Mr. ScoBiE. — 1 cannot understand it. If it is cori-eetly printed, I cannot understand what it means — — "the territories comprised in the charter of the Hudson's Ray Company north of the Hudson's Bay Company, nortiiward," — The Loud CnANCEi.T.oii.--Whnt do you refer to the pa.s.sage for '. Mr. ScoBLE.— I refer to it to shew that as far as the Engli.sh authorities were concerned it was terra inrofjnita, though certainly not so far as the French wete concerned. Then the words to wliich I particularly refer are, " and the country beyond tiie Lake Supr'ridr, westward." Now, my Lord, that country "beyond tlie Lake Superior, westward," would certainly not be included within the territory granted to the Hudson's Bay Company h\^- charter. It was in the contemplation of the government at that time, four - : s after the treaty, that there was territory beyond Lake Superior, westward '.ch passed to Knglaml under that treatv. and which was not included v 'triin the territory of the Hud.son's Bay C'-n.^any. The Lord C = i .: cellor.— How does that . wa. irom the context ? It raav *The wiirds whicli we have put within linicket" are in *^V e .■ >!>y furnished bv the T'ul'Uo Hi.'nni Ottice, but are iiiuiiite.-itly insertwi in error, proljiihly in copying i^ t. , , h.> Register Honk. It wunlrl -t-ern in b.' i, c»-p iif inailvertent repetitiiiii. and that tlie true rending is : '\.\- i , -ly towards the territuriis com- piised in the charter of ihe JJuiIhoii's Bay Company, nortliward, and "■:;•> ntry lievond the Lake ^•lll)l■ril'^, westward. "—/'it?/i'tc Hcconl Officf -'Juki-ial Curnspunicnce, Canada :(..;i,/.^,.\, l}i;7, IVo. 4. 140 .XPENT or H.aCO-.S.TEUUrrO«,..L..MNT-VORT„EUN UMrr OP PUEVCH LOUrS.VXA. was not I).s H*Hi, between that ipaiu'. lie Lake Tl>e LoiiDCUAMKM.oli. — Jf the wm-,k l,.,,l I .. .• . . f.rrit.rifs c.npris,.,! i„ the H, lo . P ,' < - '' ^''^'^'''''^r'y towards the heyona th. Lake Snpe io wos va J '• voi^ w '>u?l T'^' ^ chart,,.,. an,l tho country tlu. .li.tinetion was -nnvn hut Zn.' o,^n ' I ^^'' l-h,uu.ied in sayin- that stan,I, which look n. i not all t ' to i^' . " ^-"7, ^^'"'''V^" '•""""'' ^'^ ""''"^- chart,..- were intended to be dc:;!^!;'] ' ''"" "" '''' ""'^^"'^^ «Vv ':on.pany'3 heuvccn the Hiiihous tlav euii.Tm„v f ', ', '"Km .list.jictK.n ciraivn here Suporinr, >vi.,„varV ' * "'"I>»".v > ter,«ory a.,.1 tl,„ o«nnli-y b.iyo„.l Lake .h,.ro i„,t ti,e,.„ „..„„ to J,™' Ir it ; f i ;; ;r:.v;irn ;r"' ;r''" "i acticm tiikon npn„ tir ' ^-^'"Pa"y- Ihere appears to have been some Mr. h.M)m K --Then I would ask your Lordships to consi.ler what evirlene* "^^^^r,,^i;,J;;'::^•" "■- "'- "■"- °' «-«■'«-> «i-V'.y'iL ^r;, The L..hi> (.,'HAN-CEr.t.ou.~Wore those convertible terms ? .... |.Sifi^u:;^7?;!x^!:';i?;-r::i,r'?;-;,;.'^-^ - -" «"» -p- lie LoKD i.4rANVEi.ioK,--There was a document yesterday, I think in which there seemed to be a distinction drawn between tliem' ^ ' ^ known ' ^^'"'""^""^—I ^"PP"^^'^ 'h^' n>>'-thern limits of Louisiana were v.rj little Mr. SuOBiE.—I ai.prehend very little known. The way in which th« .otmlary is define,! in the otdy book that 1 have co«e to on the subTect is he very vague description " bounded on the north by (Canada ' ^ Sir RoBER r Collier.-. What was br>unded on tlie north ? T ;■• , ?'f ':^;--^^"'r"*- ^ ""'^^ ^'"^ >'"^"" l-o' Jship the reference in a n-nmont which FinehT'T"^ .i-portance is this, that it mi.ht be shewn that "th.t wnicii IS trench was Louisiana, but not Canada. It might be French It mirrht be sliewn Louisiana extended in a north-west direction. ^^' 141 AKfJUMENT OF MU. SCOHLK, Q.C, re QUESTION OP HOUNDAUY : Mr. ScoBi.E.— I do not tliink that can be contended at all. I think that what is historically true is, that whatever the houndary between Louisiana and ('anula ■was, whatever was north of that boundary went to Enj^laiid under the Treatv ..t Paris , whatev.T wn,s south of that line Veinaineil to France imder tlu' nain.^ of Louiaiana. The Loud PuksiOENT.— Thert- is a partial iKunidary line on this map. Mr. ScoiiLK. — There is. Thi.s de.scription of Louisiana, to which I iiroruised to refer, is at page 47 of the Ontario Ai)pendi.\. Thomas Jelfervs, who i.s lev cribeda.-; " Qeogragher to His Majesty," in a book published in 176*1, " History of the French Dominion.s in North and South America," ^'ives the boumlarie.s in thu way : "The Province of Louisiana, or the souihwrn part of New France, extends, accordiiiL' to the French geoj^rapiier^, from the (iulf of Mexico, in tvhout 20 degreeH, to near 4,=) deama of north latitude, on the westorn side, and to near 39 degrt^ea on the eastern. . . '^ItVs bounded on the north by Canada." The Loiiu Ch.anoei.lok. — That at once proves you were too hasty in sayini' that New France was equivalent to Canada. " Mr. Soom.E.-- Von will find that in another b.jok, published in the year 1671, which is (juoted at page 40 :* "Canada, a.s it is taken for one and thr 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. But with regard to this limit of Louisiana, your Lordship will see, at pa^c 45,_Vai.sette, another geograph.-r, whose book was published in 17.5.5, f after giving tho d(>orees of Intitude and longtitude, goes on to say that it " is bounded ©n the north liy (.Canada.' ':J: The Loud Chancellor.- What was Acadia ^ Mr. ScoBLE. — Acadia is now Nova Scotia. I'ho Loan CnAN-CELLou.— It has been since we had it. It was not calh'd Nova .Scotia by the French. Wa.s not it a part of New France at the time it \va,* a French possession ? Mr. ScoiiLE.— 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 yfurwill find in the old geographers a distinction taken between Acadia and Canada. Ogilby! EHqM?;e^''rlnLriH7f '' "^ "' "'" ^"^ World-with maps and sculptures, liy .loli.:. ■^ (Uoy rajihU /ii.st,rrii,af.; etc., par iJc.m .Tdat-ph Vanettf. Paris, 1755. Vol. IV., pp. 21)0, 302. (a« fLTIifrfVa 'Ih"" "^ ']"' ^YT\^v officially set imt'in the charter t.. Crozat, comprised the Mis..,,.,,,,,, r.InHln^ th m'"'""""'^'w "'^!""'T^• '''I"' "" "•''J>'ta'-y streams, on «ither side, to tlieir sources, ZIa^J , f ^^■'«"»"- lt« northern boundary, to the west of the Mississippi, would ihus be aLm^ tl,'. Mr-,;r.h,nf.fni'fr"''"'^'*"'l''\'''"''r5 '"'"■t"r "f '•'« Missouri, fr.,m the Hocld and taken posses.^ion nt bv Canadian < thcers, under commission of the (iovernor of Canada, proceeding from their establishments ni, fhL f"" "■"*' "'"y-m* ^';';h?'' "f"'? ?•" ''*y'"K' '^f'*"'' »'"** <'»':«' belonged perhaps more p.o.^.rly to ( 'ana.ia IMnot mJ t't" O w 1 ' "'^ '"'" '"f'J5" ^^■''^''•- T^ ""^ ^^'''"'"'•y "* tl'^' Illinois- extending fnm, H,. i r. nitL nf fj, ^Wa«'K-was within the jurisdiction at times of Canada and at times of Louisisna • at the date of the capitulation it was attached to the latter, and had been for some time. Tlie portim, ,^. POVTVALL, 1756. in saviiii: The LoitD CllANCEM.OK. of on an.i still is U,at New FVanc;;' w^T a'^!:^u:;;.'C''',;;^,;:i,'''>' i'"^""'''''" ^'^ Lord AHERDAHK.-T1US mat. is an nl vl i * '^ /''*""''' l"^^^''"'^'""'*' ''lWmclaoulaNr,uvolloF.we"^ "'"•'■ «"'' v^" «""! it there- Mr. ScoHLK. — There aDDeurs hi Iiq,., i , ■ .l..cription about this ^nXh^lK' ,7?; X^ '"^F /'"'. "' ''";rr the boiin.iaries of ( 'auaok pub]i«he-^^'-yf^-" I-ke "ft^^^'V^°''^^\°^^^J^<>i^'R^yihres, or the Three R.v.,., i.s a little Frenoh fort called (amen.stagouia; and twenty-tive leagues to the west of the .aid fo,t the land begin.s to slope and thi. river to run towards the west." prob^M^^'^"'"''^''''-"^'^"' *^"'^ Camenistagouiu is what we call Fort William. Mr. ScobLE.~Yes. One gets embarra,ssed with th.se V (^CESTION OF ilf)UNT)ARV OOV. POW Nt (-h .rl.N, (iirlity l.Hgui's fnrtjior, on thw I.iIch des JJois. The fourth is Fort .Mau-ppin a hun.ire.l Irajiu.^s HiV- ■ , ,)„, |,is,,_ „ear 't,P h«a.| of fhr Ukf of nuinipif,'oii " -i Mipposi- wo niuHt l8 . > i ak»' \Vin„ir.'!^ •■ Fort, l.a Uein.-. whi.l. is tl-o Hftli lu'« a huiidiv,! lua,' t.h i,)..„,.r, on th- River of the AHHiuil.oila." 'I'iio U>lti> Chancki.t.ok.- T think nil tliCM<' were the Mcven forts whirl .,u. iTUiiui'med n- t]w " Post of tlie Wt.-st Sra " in one place.* Mr. Si t»ur,K,— Yes, I think the}' nmy l>e taken to b« the .same ; " AnothiT fort had been l)uilt on the River 11 iUi»e. hut wax deserted on Hecouiu. of its vicinity to the two lust. Thesixih. Fo-t ^.m^ihiii, .stin.ls on the w.-^i Hide of hu des Prairias, or of the Me.idows ; o.;i ■ _•■. . „.., «-hu:'h is eaH'-d Fort IJaurhoa, -.tiind.s .,ii the short' of the ^'reat liike Ilouri.fU. The chai'i ends wit'i F >n P(i,kovit..', at t)u' lii,'toin of a ri»< r of tiiat nuiue, whi?h I'lils inti) Lako f'xirhoii. The Kivt-i' Foskoyac is nmc!'- i>\ De hi^leatid lluiiche to rise within twcn'.y-HvH lea^'U^s of their Went Si-ii, whioh they .s:iv C'jiiiiiiuuieHtt*a with tlie Paciiie Ooeaii. .\11 thtw) forts are under the Governor of Canada.'' Lord AliERDAUT':. — Lake Bourhon 1 sijppo.se was the French name for Lu^e Wintiipei^ ? Mr. Sf'OHi.E. — The ump y;ives it as one of the names for [jake Winnipei; 1 he J,ake of the Meadows, or I'niirios, i> the hike I iinderstaiiJ which is now k) own as Lake Manitoba. Loni Ahkhdauk, — Tlie Sleaduws Lake is the upper portion of Lake Mani- toba on U>.is map, near Fort Dauphin, and Swan's L-ike is tin.' lower part. The I/Olil) Cmancki.i.ok.--- It is clear one of the lakes was fiake Bourbon Mr. Srobi.F. — Now, my Lord, ihis book I s'lppo.se may be taken as shewiii.' the popular knowledge, or, in fact, I may say xlievvintr the • .vjntitic know.t.'do of the geoffrapiiy of this part of the world po.s.ses^ed in Kni;-lan(l at the time of tJir aH'airs of 17bl, two or three yeJtrs liefore the Treaty of Paris ; and the Mriti-ii government, I think, may be taken to have known of the eKi.steuce oft' ose forts, and that they were, as the writer says, under the Governor of Canada, tliat is unc|(;rthe French !;t)vernnnMit. Now, m\' Lord, in connection with that, I wouid ask to refer vour liOrdships to a passatje in (Jo, nor I'ownall'- report. Sir KoUKRT CoLLIKR. — The Conunissioner of (,'ro\vn Lands goes on to sav : "The above, it will be observed, is iie lin,i;Lsh account of what was still FreiiVli Canada, in 1760" Mr. ScoHLi That vas the .■ mnent of the Commi.ssioner of Crown Uiids. but I do not ask .. .mr Lord.ships to consider th.it. I only ask your ' irdships t- consider the authority which is cited. Then 1 would ask, in connection with tluu your Lord-hips' atten^-'in to a part of ( it)vernor Pownall'.s report, in IToti.-t* Ti !• report is at pagi' 'uoi ui the Joint Aj pemlix.. ■Sir MoNT/UiUK :-..MITH. — What i> the date ? Mr. Scorn, K. — 17.-)0. I am V( ry xony lo have to refer your Lordships in tliis way from book to b^ok, but I am ai, ;d it is ini'vitai)le. S^iw, the report be.L'-ins at page (JOI, ami is describ as " 'Ixtracts from Covernor Pownall's ofhciul Hceount of the French posts iu he reneh doininic. in North ,\meric a, 17.")G.' It appears to havi iH>en drawt ip 1 .nler of, and pi -euted to, bis Royal High- ness the Duke of tJumberlanii Sir MoXTAOtJK S.MiTH, — It ha.s been nd'erred to. The LoKD Chantkllor. — I do not know whether the title In iu any way pLUt of the document— is it f Whoever drew up the title seems to have di.s"tingaishe'l between French posts and French dominion,s. Mr. ScOBLE.— The term u.sed is French dominion, my Lord. I have notso' the bvok, and cannot give your Lordship any delmite information about it, butiii' Ante, p. 94, noto. f Quoted ante, pp. 86-8. 144 ar. ruawun UDMINION, 1756— THK COITNTRY OK THK ITiLINOIi. original title apparently would ht> tl.at at f„„t of the phl'.> It ia " A Meniori*! ^tntingtho nature ot the service- in NoHh A,,,., in, ' , »^"'^- .'' " ^ Mcimnial .Y e 1 I ii . ^"" "'^"■' *'i'' proi>'),-»iiuf aceneral 1) an of iiporationM (IS fouiir e "'K'^"*'™' I'""' "J H,„hnPHuke ot Liiiiiber an( , 17 )U ' 'l"hi. DnL,. ,.»• n... i i j • n.«ii>l..r i.i <.lii..f 5., i7r,« . ir .i- ^ '"^ ^"ko ot Lurulx'riand was com- iiiaiiuer-in-c'iiiei in l/oo, aiio 1 suiinnNi> t.li « luno ;»...,- j ^ -i-, frirn,! read ovtrnr^f* ..„, , „ ^"1 f"^' '''";\wn-s in teo;ai d to inilitar\ actMti. My iri' iiii reau exiiacts, atul ijuve vour Lord.sh nx » ,rr,at i „i i- • r ' ^- iT .gnrd to the forts u. uia dich an. s ;;EH:i^ ^ g^l,; i: ['T': uid ^l y m her cal your Lordships" attention t- the Illinois llrt, « th iTe fo L as iu. eJ to tliem, winch are mentioned there later on : a.ssii,iieu " '!'"« '•''-"'O"' • . • . six companieH "The Posts were, in 17/52 300 I(^a8ivaHkia8. Fort (le (.'hartrPH. Villa^,. .Ic Hi. Philip, I Prairie de lioeher. |('aiioki;iK ru^.^ ™,.. 11 . ■ . ,,,. '.Village deSte. Genevieve." Those were all posts in the Illinois conturv whieh vv«. „. i i i .i 'p of Paris, and some of thorn 1 have already n'nUonolv ,11 ^ I'V '^^ ^''V open.tinn >f the Qael.ec Act by the ' n th "^^^^Ki i' '^^ learned friends. 15ut your Loilhips wdl rtnd. a I't.,;: ni.iher T ''"'"' '^ "•^' .N^to 1752) the «e.era. i.e. upo. lid,.,. Ui. .1;^;,;-- ^1;„ l:::^-\;,::^:Zi:7^ TiK-n he gives the history of the forts ; and afc page .J(M li„e <) [ think th«r« H a very important paragraph, Ho says' -■*. "iit .>, i tnink there * Thus the Fniuoh do not only nelf/e the countrv /■,// nt . , l I'.v .i,.. lorm. Hite and police of nuch ^o.^.I^lZZl 11^^^ !^lu ^7"^: '^ 'h '^"'^ of, . I in alliance with the waters;, a^.at,, Jll; KUo ,*^ ' - stahh.he] by he guidance y these means. I repeat it, have they eroaN'J iin alMu,, .i. , • . IrniuH. on thecontinent; by these means h/v tL lu e ^^ "'^'' "" '^« throughout the country." ^ '^quirea .m mtineac), a comiuaud Lord ABEUDARE.-That may be a moral c^omand Mr. hcoBLE, — Yea. The Lord Chanckf i,nn.-It means a prerlon , power, which undoubtedly may lead to possession. Sir Robert Collier.-"^ na«o..^an.,.- he goes on t. .y. .ith the Indians porta'i'r'^"" CHAKCKL,.oR._Yes. the words which follow are certainly iu." ">e-;:^tJ;^r:^i:^:jX;rStr'a;:T^ ^ «up.ior.ty.agovern- ence, an aWan.,, in!dl the'eounoilsV.l'tt tdil^s'in^elHnJrnt^^^ ^"^ ^'^'^"- Mr. Scoble ; excepTed.'"^ ''""^ '°^ ^'""' their measures, not even our own allies, the Five Nations, posselsbn"^''^ CHAN.ELL0R._It is obvious he distinguishes that from territorial Indi^;.^]rS,^;^-;;^S/« * ^-^-^^ «^^be di«ereat tribe, of Mr. ScoBLE.—Yea 10 (M.) 1^5 intiuence, a practical m ji AROUMENT Olf Mil. StOIILE, ^i-C, re QUI-aTION OK BOUNDARY: Tho Loud Ohanceij-or. — I Net a number of triUos brackftoiJ and i)irk,| " S!npjK)ses, .•■ .shewin are other reports, ;i liul- Bubaeciiient to the treaty, which do not add very inueh to tin iiifciniiation .slijih in contained in JeH'erys and in Ciovernor Pownall. aw for instance a ivport l.y Governor Cnileton at pa;^e liO!), as to the Freneli pust.H of tiie interior, nil's ' The Loud Chanckli.oii. --That was rrad Mr. ScoiiLK — That was reaes to shew the original ProvincH.it' Manitolia was wroiiijflv constituted. Mr Scuiii.K. — Wi'il, ni3' Lord, if it were necessary to contend that, no c that mi,dit be contended upon these facts. At [la^e Gfl), there is a report of tho Sieiir de St. riUss:in, who was delegate of tlie Intenlant Talon, in ll!7f,+ in which he gives an account ol way in which he jiroceeded, Ife says : Ml ill th.» * K.'ilractB iirinted antt, pp. 82-4. t FibiooHri or thk T.vkinc. Posskssion, in tkk Kinc's n.\mk, ok ihk Codntuikh ok ihk Wksp A.sn .N'>i ti\ TflK SlKlll UK ,Sr. r.l'«HON, Sllt|)EHillAIT, 0^' rUK I.SrK.NIUNT T.UOM, Iti'l. Simon Ku.\N('ois l)..\i'MONr, liHiiuire, Sicir df! St. Lm.^h(iii. C'lrnini-fioner Sutvlflejtatu i>f my L>r 1 i;:i Intfiicl.iiit (if N'tw Ki-aiiuf. to mi iiuh for thn cciii;*r mine:, in tins .• miitrii-n uf the OntaiMial-i. .NopMi. ', Illiiioiw, and iiLliHr [ndniti nations, discoveri'd and tci bii discovfred, in North Amorici. iii'ur .'.aiv .Snpcnor, or the Fresh Sea. On the orders lij- lis received, on thi third of SeptemVier lait, from my Lord the Intendanr o! \Vh France, Ki^^iitid and par.vpheil Tm.on, »nd underneath by my Lord V.\iiNlKii, witli paiapli.. t" pp-jH-^i forthwith to the countries ol tho I )nta'>iiai». Nenp.irce/., Illinoi.H, and other nu,i(inn cliscovf>red and to U- ,1.- covered, in Nortli Anieriia, near I.alu Superior, or the Kre.-ih Sea, to make searcli and di^cove^v ihen t.r ail HOrtH of ininew, particnlarly l,li:it of eoppei' ; coniinandimf n-- niore-iVev to Like l»M»e'sion, in the luiiKt name, of all the country, inliabited and uiiinlialiiled, wheiever we hlionJdpasH. plantingin tlie fiml v ill.ii,'!' i; which we laud the crois. in order to produce there the friiit.s ot ("hristianity, and the escutcheon I'/'i ■ ' Friu'M, to c )iilirin Ifi" vl,k,ie•{ the Kalli, the p ace where the Kc i erend .leiiuit Fattiera are making their mi-«ion, an 1 tin) Indian iiaiioi's called Cliepoei, .Malaineehs. Nonuets and olio r< f!o actually re.iide ; w cau.sed tlw Kri.'ate.-it port on ii.'.-si!j:i; of the oth.n- ueighbonriiiK tribe>< to be a-"Kenibleil there, wlio altanded to the numlie.r of fourteen natlnll^ To wit ; the ICtehipoes, the Malaintch« and the Niupiets, inliabitiiifr the said place of St. Mmv of llif 8ault ; and thu Banabeoniks and Makainitek!* ; the Foulxteatteiniw, Ouuabonini.i. .Sartsas*aoua (.""ttoib inhabitintr the bay callod ilia I'ltatiti), and who have undertaken to makc> it known to their neiKhboiirH, whv arc the Illinois, MascoutinH, OuttouKainiH and other tribes; the ChristinoK, A8»inipiiuls, AunkUissiiiiiirK>. Outatmais, Boiisco itton.s, Nigcaks find Masquikoukioeks. all inhabi'aiits of the northern country ami mui neighb'iurs of the sea, who undertook to tell and Communicate it to their nei«hlj<'urs, who are very iiiimeMib. inhabitinpr even the sea coaat ; To whom, in the (iresencf of the Reverend Kathura of the Company of Jesus and of all the French liereaft<'r mentioiu-d, we have caUHe Most Kk IKIl.MTABI.K MONAIiCH, I.OI'IS, the XIVTH. OK THK CHUlSriAN NaMK, KINO OK FuANCK AND NaV.UUIK. «• take (lossession of the said place of St. Mary of the Falls, as well as of Lakes Huron and Sii|ierii;r the Island of Caientolon, and of other countries, river-, lakes and tributaries, contiguous and ajjm'ni thereunto, as well discovered as to be discovered, whi are lioun led on the one side by the Northtira ana Western Seas, and on the other side by the South Se», hiding all its length or breadth -.^ raisini; at eucr oi iiir. siid throe times a »txi of earth, wjiiist crying Vivi u iioi, and making the v.-hole o? tht- ai-i-Mni'v a well French as Indians, repeat the same; declaring to the aforesaid nations that henceforward as Imh this moment they were dependent on His Mikjesty, subject to be oontrolled by his laws, and to follow bii cuttoio*, promiiing them all prot«ctioti and succour on his part agaioit tb« incursioa or invasion of tti«ii 146 .KENCU POSSESSION OF COUNTH.Ks ok ,;,.. M,„,,s.S,n.,, AND N. .NT, VV.. lC7l. 168;^. "On the oriJerg >iy uirpcHvfH on tli.t fi.i, i «u iMt.nciant of New Fran.., -.JJi Zl 1 T;^ '''^^- '-"O... ,uy lord th. V.KViKB.withp»raplK,toprocSl or /wiU. ' 1 "'''! •"'^' ""'''•"»«""' !'> my lord lllmom, a,.l oth r nations, Siscov rS 1 ,' " '" '"""'V".^ ^* "'^' * •"'"""'''-. N'-HJ-frcez. ,,artirular)ythatof,.opper, oon.n.andinK 1 or ' ,^ S""' '" '"•''"' ^^ ."."'"'''. "-• "' "11 tl'" country inhal-if,! and 'm.d.X w!. v. r t T'Tr" '" 1'"' ''^"'«'* tlu, (.rsivill.Re at which w. land ,he .t 1 T^ 7 .'" ■'•"'"'' '''''''''''« '" (niriBtianity, and th.. escutcheon of France to ' ., .• u • »'""'"'"'-"'' '''"'■" '*'" ^'""'t'* "' Fren.!. do.ninion over it." """""*"'*•'■ ^ «'"""•". Hh MajeMy'H authority an.l the 11,) goes on to say that he lias caused n iinn.h,.,. „♦• ,,.\ . nu>nl.er of fourtoe.i nation., ,uv\ he Ji^es tl" i, n!;;;.! "'"' '" '^^^"'""^''^' *^' ^^'« "To whom, in the presiMice o( the Kever.>i.,l I'.fi. f ., ., ail the french h.reaftr u.entiJne, . h've a , t'Vl 'T^''''- f •'^•""•' '"'^ and had it interprHed in their lauKuage hy Nie n- Z L '. ot iT ';';'•.-' V'«'7"'-i^". ,1, that p..rt, s., that thev umv not l.o ienorant Ip 'V ' ''"^•, "'■» -^''M'-^ty s ,..terprei«r prrpand ir. or'''' '"'' ^'"-''">- '""' '"^I""* '^"doubl. Mn SaHui:":^"'""- ■'''^^ ^°"' P"^^"-- ^'^ ^1- -'^'-'e continent. Lord AuKKluUK.-Discoveiev,!^t%l"!^Zrl^:^l!:T''' ^T^ """' '^.l""'"'-. t-. t th.. ?<«,.! ple^Hurn of hi« Kti.l Most Cl)r s ,V Mries,V ' K f l', ''"•V''^'"'r, '" ^^"' '-"""tO-. except with ■«. t(> tlmni niid Canaija, R«oord (.f the taking pos8t.8«ion. in His Majpstv's namp nf »!,« P. j n • , '^^T nE8 I'l anw. of the Outa^amiB,, and AtH8ksion, I may call your Lonlships atten- tion to page C>'2'A, line 20. where the pretension to Hud.soii's Bay is set up in a letter from Louis XIV. himself to M. de la Barre. It is dated Fontaint^Mi'Hii 5th August, 168:5: " I recommend you to prevent tiie English as niuoli as possible from ostalilishing themselves in Hudson's I'ay, possession whereof was taken in my name several ycar.sajrj " Lord Aiu;iiD.\HK. — That was in the evil days of Charles 11. Mr. Scoiu.fc;. — Yes. Then again, at page 02 1, writing again to M. dc la JJhitc, on the lOth of April, 1G84, as to the atfairs of the Nelson River, he says, at line 1 1 : " As I think it important, nevertheless, to prevent the En<^lish from eslallishing themselves on that river, it would b'? well tor you to have a proposut made to the cuu; maudant at Hudson's Bay that neither the French nor the Kui,'lish should have power tj make uny ii(.w (>staiili.>imit>iits, to which [ am perHU.xd^d he will t;i\c his consent, tlin ni. p rf'adily liS ho is not in a position to pri'vent tiioso which my sui)jeccs would wish in t'lrin in the .said Nelson's River." And tlien, in regard to that .same Nelson River, at pa^e (J2o, on an ajjplieati'n: for a grant of the Ni:d.~.on River, by Gaultierde Couiporte. in 1G84, it is recited that this * " Gaidtier de Gonniorto', Prcvot(i of Canada, has heretofore presented a momoir, hv which he rcipii.'sts the ;Tiant, unto himself and Ids associates, of the ownership ..f thr Hhm- de Boufbon---cle \elson — in Hudson's Bay, of which po.ssi'ssion had been taken in the iianic of the Kiiiff, for as long a time as it should please, with permission to establish three postj ir. tiie river which Ji^soends into the said bay, at seventy leagues from the place where thf fartn»»rs are settled." Then in a report made in 1G85 by the 'Jovernor of Montreal,* to the ,Mai\)u,s do Seignelay, the origin of the French claim by .settlement is stated to be. " As regards Huflson's Uny, the French settled there in 165(>, \>y virtue of hii o of the Sovereign ( 'ouncil of Quebec, authorizing Sieur Bourdon, its Attoriiey-Gcuoral, w, make 'he discovery thereof, who went to the north of said l)ay, and took possession thtreof in His Majesty's rianie." aninng all the Indian inhcs and peoples of thi' Hav dca Pnants, Nadouesioux, Maacout ins, aiul dtln'i western iiatiouH of tlie Ijjiper MiKsissippi, mid to take po8si>8Kion, in the King's name, of all the places wherK he \:m hitherto hevv,, and vhither he will go. We, this day, the eighth of May, one thoUHand si.v Imndred and eighty-nine, do, in presence uf thf Reverend Father Marest, of the Society of .lesns, iniaaionary among the NadoiieaioiLx ; of Mann. iJe Unrif •Debatk in thk Wou.sb ok Loriw, o.v a proi'os.vl to rki>k.\'. thk gi-Kiiue Act uk 1774. {Parliamentary HcjjtHcr, Vol. i', m/i, pp. !34, m, I3.\ ISJ, ip, If'j), 17tli May, 1776. lord Cairuien.-HiH Lordship arranged his objectioiiH to the Act under the three folh.win,? hoads — let. The extension of the limits of l^uchec. i>^»". 2iid, The estiililiohment, etc. 3rd. The eiviJ desiMiti«ni, etc. eterMUrrier was intended to he j.hu-ed, like theChine.e wall, asnin.< the fnrther e.UenHio'„ of rivi ani.itlu' Frotest-int riihffion. His Lordship then i • • ■ " ■ noii.n] liberty toaffirni-Th ^'^ \ Shell ume]. -The peltry or .skin t.ade, my Lord., is a niiitter which I presu.na M,Uh . "^'u'"' '"^»'"t"''''- »'"' "f tl'^' I'wt iinp.jrtan<.-e to the tra.Ie and eonnneire of the colon ies jiKl this country. The arrangement and regulation of Ihi.n hi.sines.^ has, irive colonies Majestysmmistersmore tiiiio and trouble uhiiii any one matter f know of iinei-ce mo leave to .say, cost His The noble Karl behind me I^VI.^f^fill , -" , v.- r-"-— •^' i'"^'V, """■" "".»' """ "lattwr I Know ot. i lie nob e Karl be i nd me hftlr "''.'t^'r""?''!'. " '" true, differed from me amonK "Mier of His Majesty '.s ..servants on the reiru latins ^ • B^vTo^^he F r"i''^?Hl. u''.^''^' ''"T "^^''^ "' ''^"■^T'"' "^^ ""'' »''« ^''"••* «ki" trade! from S r't i^^l' '7f "^v / r- '^^"^"'^'rn'i, should be at once t.-vken from tho several Americ^M eolonie., .and ii,« J'T "'!.'^"" V.''"^i" \-'""^ia:;'i ; ..r, whiuli is subafcaiitialiy the same thin?, that bv a roval instruction ^e ole dirmjtion of ,t should be vested in the governor of Quebec. For I will ij bi.ld to co end tha? wlatover colourable ooristruction may he put upon it, it will operate as a complete excl 1810,°^^ tota monopoly to far ax the Protestant British colonies can possibly be interested. '^""''""'' «'"^'>"""n a'"" «»»»' 149 ARGUMENT OF MR. SCORLE, Q.C., re QUESTION OF BOUNDARY : Mr. ScoBLE. — 1 do not suppose he knew as much, or at all events did not know as much as your Lordships will know wlien you come to the end of this case ; but it shews that accoiding to the means of knowledge lie possessed ,\t that time, and according :o his construction of the Quebec Act, the Proviu.-e .jf Quebec was made to include all the territory France purported to cede, and Emr- land assumed to take. The Lord Chanckm.or. — What are the words in the Quebec .\ct . It is an Act containing the boimdaries. What are the liounds which shew it extends to the Pacific I You do not make much progress by shewing what Lord Camden said. Lord Abkrdark. — You seem in this argument to throw away all the instructions given io Governor Carleton and others to define these bounduritj. You are going far beyond that found by the award. Mr. iScoBLE. — I think Governor Carleton went far beyond that. Sir Robert Com.ier. — If he went as far as that, it is quite enough for yo,i. The Lord Chancfoli.or. — What strikes \w at present is, that the Actspindis for itself, and shews distinctly that whether the ])oint is that for wlucli 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 tlie 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 off an enormous extent of territory, taking into consideration Lord Camden's view. Mr. Scobi.E. — If your Lordships construe the w^^rd " northward " as ref(;iTini; to territory, and not to boundary, that would give all that Lord Camden seemed to think it did. The Loud Chancellor. — 1 do not follow you. This Act states ^-hat territories are included, and it gives you, first of all, the line of boundary as far a.s the junction of the Ohio and the Mississippi. Then you either take north from that point, or from some point arrived at hy going northward along thf Mississippi, and the further boundary is struck northward until it meets thf southern boundary of the Hudson's Bay Company. How can that be >. The thini; is simply impossible. Mr. Scoble. — I'he westward boundary does not carry it further than thi' 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 Adventurers of England trading to Hudson's Bay." Mr. Scoble. — I subndt the Act may V)e read in this way : " All the territories, i^!a^ld8 and countritss in North Aiuorica belonging totlin Orown of Great Firitain hound"d on th(i south by ii line, etc., and extendini; northward to thr southern boundary of the territory granted to the Merchants Adventurers of Eii^dand trading to Hudson's Bay." The Lord ' N'CKLLOH.--It is to give a southern boundary, an eastorn boundary, a western boun.hiry, and a northern boundary, and how it can include anytliing which is not within any po.ssible limits .so described seems to be beyond the power of imagination to conceive. Lord Aberdare. — And it seems wholly unneces.sary for what is your substantial contention. Mr. Scoble. — Well then, my Lords, I will leave that part of the case, and in obedience to youi' Lordships' view just expressed I will address myself now to what is the northern boundary established by the Quebec Act. That is stated to l>^ " the southern boundary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay." Now no southern boundary of those 150 SOUTHERN LIMIT OF THE TERRITORIES HKLD BV II. U. CO. UNDER THEIR CHARTER. territ.orics had at that tune, or luis to this day, been ascortained, Tt is a hi.s- tonoal error to suppose that any boundary was ..ettled by or after tlie Treaty of (Ttrecht At page 58. of the Joint Appendix, vour Lordship will tind the meinonnl of the Hudson s Bay C\3mpany, .iated the Oth December, 17o9, in which, ^^ in prospect of an approaching treaty .;f peacr beUveen this nation and ha:ice -that us m prospect ol the Treaty of Paris of 17Ga-tl>ey make certain representations Ihey state what the French had been doing in Hudson'. Bad betore the Treaty of Ltrecht. they recite articles 10 and 11 of that treaty, any then, at hue 22, they go on to say this : ^ - ^ "That in pursunnce of the said treaty, and an especial oomi>,is8ion of her said late Majesty, t^ueen Anne, dated the 20th of July, 171.3, tho ..aid Bay an.i lands, then in possoss.on of the French, were .ieliverod up to Governor Knight, an^i Kels..y, who took poss.>.s«ion thereof for the Rnglish Hu.lsonV Bay Compaay. and OommiLries were appointed to settle the said .n„ts and adjust the dan.a^vs the cmp^ny had .sustained, whioh for the slops and goods of the company tak^n by thn French appo/rs by an account stated m the year 17 3, and delivered to th^ the,, Lords Co,u.ui.-si„ner.s cff Trade and Plantations. a,mounted to upwards of £100,000, besides the damages the c m.pany sustained by the enemy 3 burning three of their forts and factories at: Charlton Lsland, Moose River, and .New Severn, and proceedings were had by the said Cocciuissaries towards settling the same, but they were never able to bring the settlement of the said huuts to a final conclusion, nor did the baid Hud.sou's B:iy Con.panv ever receive any satistaction tor their said damages." ' It is perfectly clear then that these lii.es upon the various maps which point outthelmiita 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 o( the Treaty of Utrecht, or from the date of the Treaty of Paris or since. If that is so, your Lordships have now to determine wliat oiK^ht to be coasidered the .southern boundary of the territory granted to the Hudson's Ray Loinpany, at the time of the Treaty of Paris, and of the Quel,ec Act of 1774 I think the best evidence as to the condition of the Hudson's Bay Company's .settlements at the time of the treaty is to be found in a letter from the Ri Chancellor. — What arc the words which appear to you to indicatt that— the woids whereby whatever is actually possessed by the King's sul jects m the subjects of any other State is excluded ? Mr. SCOULI'.— Yes, and I say that excludes also any claim by right of pi-ior discovery. He purports to grant whatever he has, that is, all the lands, countries and territories. Lord Aberdare. — He assumes all to be his. Mr. acoBLE. — Then, I apprehend, if he were claiming by right of iwt disetivery. he would claim to have the whole of it. Lord Abehdahe. — Then surely we come back to what is subsequeu'iy admitted to be Rupert's Laml '' Mr. Scoblh --I do not think anything was subsequently adnutted to be Rupert's Land, because in the Rupert's Land Act,t in which the phrase " Rupert's Laud " for the first time received legislative sanction, there i.s an express reserva- tion of all rights in regard to it. The Lord Chancellor. — There are some words vvhich indicate what is meant— are not there ? Mr. ScoBLE. — I will give your Lordship the exact words. They are at pa>je 445: " For the purpo-sea ct tliis Act, the term ' Rupert's Land ' shall iiu'lude the whole of tlit lands and territoriea held, or olaiiued to lie held, l.y the said Governor and Cjinp.i!\y.' The Lord Ch.vncellor. — " Or claimed to be held." You see the whole of the present relations of Canada and Rupert's Land are foumlefl upon this. Mr. SconLE. — But the surrender which was to be made was only of — "the lands, territories, rights, privileges, liberties, franchises, powers and autiiorities, so far as the sim ! have been lawfully granteJ to the said company." The Lord Chancellor. -Where is that? Mr. ScoBLi; — In the .Srd 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 lo be left undeiined, but they wished to take a surrender of whatever they had, and whatever they might claim. Sir lUaNES Peacock. — The Act speaks of "Rupert's Land and the North- western Territory," and tlieu it defines what Rupert's Land means. Mr. ScoBLE. — For the purposes of the Act, and not otherwise. Extracts printed ante. p. 51 + Imp. Act, 31 and 32 Vict., cap. lOfl. 152 SOUTHEHN LIMIT OF THE TKUUITOUIES „.,.D nv H. B. CO. UNDER THEIB CHARTER. Diiiei cn.m max, oi exclusive trado nn( Ci' am nnlv +',.,. *i, * c ii • i- the purposes of the Aet are, that thisUr ; ' t,, , ntt''7r'n - ^'S ....K^atl^wholeonheleplatio^^ Ml. .Vojn,K -I pon the tootinj,^ oi a coinpn.ini.se. The LoudChancellou. — As to tlieaptnil limW i ..^ ti » •. i their .settlements m Hudsons Bay, an.l they n.uy have claiu.e.l ui.lerthedch denv-ed from long occupation in rc^rard to ..ther portions of that tenitorv ^ bir Baunks rr:ACOCK.-Is not that what' wa.s intended to Ik wmexet was not part ot Ontario, the boundary there marked by the hngl h R.ver Unc y Lake, and Lake St. Joseph, is in it. Of course, if it i, admitted on both sides beyon.l all question, then it will save trouble Sir RoHEUT COLLIKU [to Mr. McCarth.,].-.\)., y„u .say it is necessary to consider the nortlierii boundary ? ■> J o » jr „u Mr. McCAUTHV.-Yes. we sky it is necessary to consider it Lord AiiERUARK [to Mv. Mo.nl].-li y,nx\.\\\ pardon nie, it seems to me TsUn^ll '"ace up your innul whether you are going to insist on the portion r tl^ W T'\'\ "'%*r^f ^'"^'^ ^^''^•^ ^^'■''''^'^ ^y ^^'^ arbitrators. Ml'. MOWAT. — We do not claim that. [p,^^n^''''''^''~^''' ''"* *^"''' ''■"''■^'''•'^^'' ''^tt'«« part-the yellowish lines 8ir MoNTAOUK Smith,-I understood the Attorney-General of Ontario to limit his argument to what was within the red. nJn. ^f AIOWAT.-Yes. Perhaps, in a word or two 1 could explain about that piece of boundary as to which an observation has been made j, s. now. By the terms of the Dominion Act extending the limits of Manitoba, its extern boundary IS made to depend upon our western boundary, not merely fur the distance between the two piwinces. but for a further considerable distance, so that whether Manitoba gets that from tlie Dominion or not depends on the pre eat question ; but we have no concern with it. Sir Robert Coli ier.~You are satisfied with barred lines [refurrhvj to the map] ? Mr. Mow AT — Yes. The LoRo President. —With the award line ^ Mr. Scoble. — Yes. Lord Aberdare.— Then vour argument may as well be addressed to that? Mr ScoBLE.-Q.nteso: I will not trouble your L.)rdships with the other Now. with regard to the territory which lies between the due north line from the conflux of the Ohio and Mississippi, which is shewn on th. map here, and the wes ern boundary which the award has given us, in that portion which is north t the Hudson s Bay Company, or of the N..rth-West Company, to be found tiiere. Buc there were some posts within the portion of the l.-rritory which the Z r\ r "' ' '" '/'' Ti ^^"^u P"^*"' ""^'^ ''"'• ^' ^ ^'" in^^truct/d, Hudson's Bay Company s posts at all. They were the North-West Company's posts. At all events they did not become in any way Hudson's Bay Company's posts until after the fusion of the North-West Company and the Hudson's Bay Company in or about the year 1819^ They were ol.l French posts, and would be included witn.n the tern ory which, under the Quebec Act. was intended to be afforded a civil government. They were not very important posts apparently. Lord Aberdare.— P'ort St. Pierre is one. Mr. Scor:.e.- -Yes. Fort St. Pierre is one', and Fort St. Charles another Lord .\berdare.— There is a fort cited. La Mauoe. Mr. ScoBLE.— -There is a River a la Maune mentioned in one of the Fr.-nch documents, at, pn n-?! n*-' +l.„ T„;„i. x _j:._ _ i t ,, . , . ^ul cis,utn ^^ • -- r-a- -^-^ •'•-.nt. ^:Li-p cnu:A, mm i ininK r.nat is the fort 155 AROl'MENT OF MR. SCOBLE, Q.C., re QUESTION OF BOHNUAUY : referred to. There is a letter from the Sieur Du L'Hut to M. de hi liarre* in relation to operations in tho iicifrhliourhood of Hudson's Bay. He says, in pait of his letter, at lino 38, page G24, after pointing out the siieeoss he has had ui interfering with the operations of tlie English at Hudson's Hay : "The Klistiiioa, the ABsenepolacs, tho people from the Sapiniere, the Oiieueiiii Dachiling, the Outoubouhy«, and TiiV)itihi8, which comprise all the nations which are co the wcHt of the Northern Sea, liave |)rouii8e(l to he, next .-iprinfr, at the fort which I liavt- con-structed near the River k la Maune, at the bottom of Lake Alemepigon, and next su.ii mer I will construct one in the country of the Kliatinos, which will btt an efl'eelual barrier Now the country of the Klistinos, as it is called here, would he to the north. The Lake Alemepigon is the same as Nepigon, which your Lordship will see Vu'< within the duo north line, but the tort Lamaune is north of this liiike Alemepigon, and it is within tho extended boundary which the award has given us. Then Rainy Lake, your Lonl.ships will see, is within that same contested district, and a post was established there by the French also. Lord ABERDARa— Fort St. Pierre, in 173L Mr. ScoBLE.— Yes, in J73L Sir RoBEin' Collier. — Is it on the map ? Mr. ScoBLK. — I will give your Lordship the reference in a moment Sir Robert (.'oilier. — It is not mentioned in page ()03. Mr. BCOBLE. — This one, on Rainy Lake, is oi. the nuip, and is one of those mentioned in Jeffery.s' book, which 1 have already referred your Lordships to, at page 183. It is in that extract wdiich I read fiom the uiemorandum of the Com- missioner of Crown Lands, Canada, 18.57: "At ninety-live leagues from this greatest height lies the second efttablishraent of the French that way. called Fort St. Pierre, in the Lake dea Pluies. The third is Fort St. Charles, eighty leagues further, on the Lakedes Bois. The fourth is Fort Maur^pas, a hundred hagues 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 ahoui 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 1 Lord Aberoare. — Yes, it is oJi 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. Scoble. — As a matter of fact, Fort St. Charles was within the territory assigned to the I'nited State.s.f I'he order for the erection of these posts in the territory in question, you will tind at page 640 of the Joint Appendix. It anpears to be a report of the Conseil de Marine, datetl 7th December, 1717. It says : " Messieurs de Vaudreuil and Begon having written last year that the discovery of the Western Sea would bo advantageous to thi> eolony, it was approved that, to reach it, M. de Vaudreuil should ostablish three i)0st8 which he had proposed, and he was instructed nt the same time to have the same established without any exfiense accruiuij to tho Kin^, aa the person establishing them would be remunerated by trade, and to Rend a detailed schedule of the cost of continuing the discovery. In reply, it is stated that M. de Vaudreuil, in the month of July last, caused the Sieur de la Noiie, lieutenant, to set out with eight cannon to carry out, this scheme of discovery. He gave him instruc- tions to establish the first post at the River ivamanistiquoya " — That is just at the iTOundary\ * UatwT iOih «e(jterul)er, 1684, .... ,t •. j c . u j i- + It WM on the shore of the Lake of the Wooda, but within the present United 8Ut«» boundary Ims. 156 CONDITIONS OF THK SUURKNDER OF BI:HERT's LAND. Lord Ahkuda"- -Fort William ' Mr. ScuHLE. - , :. Fort William : " He Ravo him inslruotions to establish th.* fimt nn.f .♦ ♦!,« n- ir to the north of Lakn Superior afu-r whi, ,L If /^ , *^«.^^^?'' Kamani«t.quoy», which i«. as I un.l.rstand R^l^y ak -'. ne r T£^ a second, an.l to acquiro hrou/h tho ndian. U, f ? '^ <^'»>ri«tinnaux to e.tabliah mpnt of thn t).iivl uf fl,^ T L.^ / .? 'I'dians the information necessary for the OBUhlish. mmi 01 tno thud, at the Luke of the As.siiupuolics f W innipe^l " the Lake of the Assin.l.oeir^fJei^ille "lj::;ni;:! ^n,. ' ''^ '"^'^ ^''' ''^ '' '« -"«^ colo.^'?i^r'Jn"'t^'So''MVf'r'" '"; '">''*"^'' ^"^'"^ north-west of the cuiDiirui parr,, and to tho ond of the uiicolouiv 1 part Bav^mplJnf is'wSn T^f'T-'^ "^ -''"^^ "^ ''^"^^ ^•^^^''^^^ '" ^^e Hudson's Dftv v.oinpnn_y i,s witlun the iJainv Lake d str pt \f i>n,v,vvh..th.M. rilht y or wrS,dv thev ha^^daimed to oxtond their territory over a portion of tlj IJ"""^-''^'^ ntano. They ela.tu ,t as part of the land of whi,;h tliev wuro in the time the Act passed. ■ "'''^ '" Sir Baknk.s Peacock.— Ye.s. Sir KoiiERT CoLMKH.-VVhat tlx'y claim t section ot tlio deed of .snirenderf i.s this : wa,s awar(ieii to po.Hsession at be entitle'! to under tha second " The Company to retain all tho po.sts or stiitior.s now .aotually possesstd and o,v.,ini«H hy them, or their of h/ers or agents whether in RMr.„.t'a i i l'.a«««S'»»-t» ana occupied iL-.ti I yr ^\ ^ ■ '■"•»,,< "IS, wnetner in ituporta Ijand or in unv other nart nf ir t sh Varh\ . adjominn; .ach ot their posts or stationn, within any part mm f.,rV " u / t ^^"'''' ^♦''•"tory, with a list made o.it l.y the Company and com inunicated to the (Janad.au ministers, being th<, list in the annexed schedule "^ Ihereforeit becomes a question whether some of the territory set out schedule IS compri.sed in Canada. "^<^iiitory set out Sir KARNES Peacock.- Tliev .specify that. Sir RoHEUT Collier, _B„i it does not entitled to what ti.ey .specitv. Then they Av, Lord Ahehdahe.-— That is at pa^e SVJ rende^r'in wS ^i^'''-''^''--^^-" '^Z^" '^'"^ '' *^''" '"'^^'^^''^^ ^o their ,Jeed of sur- reiuiei, in which they state their claim it t3'Jhff, P':f*'*^^'^-'^,^^« B'-iti'^h Crown were to take it, and then transfer It to Canada alter tlie surrender "ouoiur follow tw'Zl'^'*''"''r\-rw'''ff*^'' ^^^ ^^''^ '^'^'™' '^"^ i^ '^oe^ not necessarily cla m^ Mdee n^ . ■'■' ''"^ ^"^ ': '-^'''''^ ^^'y ''^•'"- They make very extensive bu I t Ink hi^ ' ?• n'!''/'".' ^^ ""^ belon,nng to the Dominion of Canada! out i think that IS a subject to be inquired into Dient wouldVf '-"^ Smith. -They agreed upon vj.qo.OOO, and then the govern- th L wis t ^e HudsTn^R ^' n"^' ^''"^'^!'' ^""^'^"^ ""' "''^^ '' ^^'^ ^^' ^^L that nis was tuo Hudson s Bay Company s territory at the time that, ih« crov«rn„je«* tuuk une surrender. " "' — „-'■— ^-^w^v in the follow necessarily that they are s a list of what they claim. • Chmtineaux-Kris-Crees-the Indian .V lb* of that name. 157 fCM.,187a, p.Uxvu. ARfiUMENT OF MR. SCOBLK, Q C, re QUESTION OK HOITNDARV Sir RoHKUT COLMKK.-— Where is the Act enabling the government to acc.;.A the Burn-'ntlcr / Mr. S<.'t>iii,K. — Page 44.^r' Sir R-JUKiiT Coi.MEU -1 think thi.s Act ways ; "Whereas a .Hialt surrender has been .-.iibinitted to the Government of Canada." T am iu.[ quite sure whether we have ha«l before m the draft surrender which wa- 80 Biihitiitted. Here is the Order of ('(jmii'il, and I do not nev that the C>rdor ii. Council gives them all that they claim in their schedule, ii" fU present advised " 'J'he size of the blocks which the Company are to select iidjoining each of their forts in the Red River limits shall l>e as follows : — Acn^s. Upper Fort Garry niiiJ Town cf Winnipeg, including the (Micio^'id park arciiitio bhop, ai'd ground at the eiitnvnce of tli'i town i>f'0 Lower Fort Ciarry, (including the farm the Company now have under cultivation) , ■'*"" White Horse Plain ''^"^' But I do not see that this Order of Council gives them U that thi-y claim in their .schedule. Mr. ScoiiLE.— In se-tion 2, on page 4-t8, the next page : " The Company are to retain the posts they actuilly occupy in the North-Western Territory, and may, within twoUo mouths of tho surrender, select a hlook of land iidjoiu- hig each of its posts within any part of British North Ain.Tica, not u:ompri3ud in Canada and British ■' '.naubia'" — • The '.OHV. OHAXCKLI.oR. — It goes on: —"in •.•.■r hail V'storday, ma, at « .iat. ...^li.i^nu'iv T;!: . !, ^h;!''':;:;;?; "i;," t" ^"'* t '•" l-trau^o althou.h the n,„f. is .lat.-! 7' • lino SW / ' /""^- 'T' existence till 1710. Tho linos on this , , l^l,: '"^ j'"' '"" /■'""" "'*" puir.o 1.0 lin.vs on th« original Z In ..... Ir.u. *'h" ""'"' "'"^' '^". ""^ "f" oriu.l, I an, toKl thoy .h. n' t oa oi f t?r i^^J '" '"'^'' ,^' '^ «!'l-<^.l.n'nt I think it M.ust bo so fur this vaso , 1, i J * . "" "'■'-""\' ""^'' "^"'"' """' .f which thon. is no evi- ' oJ Xh^ t u t 'l V " l;:'"*'»^>"",''- •^"^''>i« " v'onr LmlshM, will tin,l it a; na , Tl 1 .^ , I ^ ""'I'. 'n.t in 171!), u.Hh ,!„. Tu.aty of Poaco set tn.th tho K r.^ ...i 1 ^^ 1 '"''I'^l^'^'''!' find (1,0 Me,.u>i.- of d'AutoniH- co /iJ t no .: ' ? ' T'' K'^^^^^ forward by the comn,i,ssario.s. ''^"''">t"'« *'"-' /'''■''-'.^"■h .I,,,//.,." p,u 'fcpHI' 1)1 '''•' His Mr. 1 * Bo,NI)AH,E8 C..AIMK>. BV T„K KnoUKH CoMM.SMlMKS, HI'. ' cl'iilefl at ("trfciit, t: avi'irliiiii to thtrii, ^l iMiiied on t-aili »i()t' ti i"H^!d:'^i'^*;;ii^^;!r^-^;^:'il;'';';rf;^>' ^^^^-'<- •»"f th.. Tr.a,:y ..^ r..ac.c,.n- ^ I'l'rniuwtli.-liuiiU.'f MP, ,,,. •""*''•"'" '''"' '•'"' < """.li.huii,,. .hall I* orinf.th. Strotor lUv ol llu i ,, u d, a / r^^^^^^^^^ "I"-"' ^'l-*' "^ "■'V'^' H«,v. toward* dmu. fivm th.. said imrth n,,.. „f | . ,.,"' iVu t v! 1 ' ''"*^""^''V /""I '".thi.nnurp. th.at a lim- shnll be the .Ida l.ke;„t.. t.v,. partH, and tha I th. plac^^he " . saM lu ^'7'^'"'<" ■-■ ^I'^tnv.i.v. dividing north ^atltud.., annthi^r line shrill c-M,ii,„.n(' > ,1 . i . V .1 ' ■ ""^'" """^«"<-t' tli- -I'.lth paralhd u1 the4!H!, paralh-l of n..rth lat„n,l,. ; 1-3;^^^^^ ^" - '•'"" ^1"- "aid h.k.alonp P"™.!,, 'l.'yHdliytlii,. ,,hMll pais towards th-io,.r """ I'T '/" '''■'"'' ""' ^'"'^ "'''« thp north fori tlio tiortli , ...t ..f 1 o said hk, or i , '"' ^' V' ''!"'' "' "^ '""■"' '•"'^'"l*'' '"• ''"«''"<1» ary rivw, l,,k.. or cou.itr^-, for t le p n- , ■ ,f J :", ,'"''"', '"'""■' ''>' '?'' '","• ''>■ ^^■•'"-'•- ""^ ^■•''verBe And forasnii.rh a. thr M,l,,octK , f m, M< t ( ' , vi "">■/'"''■ ""•■ '"'""1 "'.V xettloin-nt. Fieiicli >hall quit the naid .e, ...ne .t'an hai ,V r^f';w',"'", "' ^'"' '",'''■ '^'i"'.'' ^'"J'."^^' '"•^''' *''** "'« thui^.inp..nv .,f Kn.,l,,sh ,n.>rc:hant« tn.dins hft!, H,,;,':!,Vl' l;";^r i'.^i,?'"''' '""'•'"'«' '•''^'" ''^' «'^'^" '"^ '<> «oev,.r, and that the ntream, and th,"- >u,t • ins^^it , f V ,V "'*""•"'»"" ," '■•\v, i.nd.;r any prntevt what- ofK^^^^n^^h^ i,,.. Hndton-n^:^'^;;^ t ^l^l^UK^.ir^h^^u^l^ilih t!'t:^;^j;i:i:S;r?"'' >l.e tVr. Irix, in lat. Ifif. (Joh.t A,,,., .108 ?:" f '-, u 'il I^. i-r» '."' V'"'"'^ >•■">''>"«.« at t;rn„ii,«tonH l»lanU. ir ,.\l.iu.iri»l jt n.'iO.in "Ontario nouiUaries befoVprivyOoundl ") ' '-''"'l'»">' ''^'" '""'t""' to this latUr claim. + .»rm«.>e 0,. M. DAtrrKt'iL, .i.-.sPK.T.No t„e L,„ns ok Hiohok's Bat 1719-20 ?:}!;.„,.Jl':.*^?.;^':<'«»«-v-%«>f "io" With th"r.'r„ui" 159 I I IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I IK lU w Li 12.0 11:25 nil 1.4 m 1.6 lU Sciences Corporation 23 WEST MAIN STMH WIBSTIR,N.Y. MStO (716)t7a-4903 ) A :- inciiitH to which I have jml ipf.'rml yoiu- Lordships; but as noth:ii{j wliat;\(.'r oanie of the reference, I imiif^ane neither [larty i.s IxHind. The Loud (Jhanceji.loh. - The line there laid down is a -itraight lino; ili« boundaries as aetually a.seertaiiied are irregular. Mr, Scoui.K -The French l)oundarv, your Lordships will perhaps renienilicr, runs dose round the shore of lliidsons" Hay ; M, d'Anteuirs meuH.ir locales ! •• houiulary there. . The liOiil) CHANCET.i.dU.— The Hritish pretension brings it to the soutli ol the lakts. . , .. , Sir RoREUT Col.l-lEK.— It does not claim nny territory .>outh o\ the .iw The F^OKD (lHANfEI.L0l4.--The lakes now called Winnipeg Lake and Manl toha Imko are treated as one large lake, and they also are to the north of the lui.> marked as the boundary. , r r .1 Mr Sconi K— The line appears to have been drawn upon the tace ol thr iiuiii bv mmo one in the Fivi.ch Miiii.stry of Marine, or whatever public otlice it is ii,at the map proceeds from. 'J'hey were n..t part of the ma]) as originally diuwn by the geo.riaiihcr They ■must have been drawn in or after 1719 The LoKl) CUAN..'KLL()U.--They doiibth^ss were drawn for the purpose ol that question. u.^"t^«ar7"i» v'i7t"iii^7ti.ri0t'lVArti"« ^l""; """ thflv have oe u . M.l, have alwavs .t-pped at the t,„rder of the sea, carry.nK on traae with the .saxa«.^ ,M, - le7t e to tt 1 t , u . whUit the Vrench, fr,.n. the feundatien of the oolonv o ( .nnada l,ave no ,.««..i ', tracer"; all the land, knd r.ve.. !,„..lering on the said Ha.v, tak.UK i.o.«e.s,on of all the |.laees, and .uunM ""^ 2nr'Ti;evV:;mut "aVrii"t''ry land, o, rtver. or lake M.ug. to Hud«o„VUay ; beoauso if all thenv, r, wbiJrenter'i.^oXba'^ or whJ eonnnunicate with it, ^-'-'^f ^"j.^;, '',"''[ f^L'^.^'tf.,:"' ^'-•" ''""" liMlonaed to thoiti the tianifenav and St. Lawrence eoniniunieatniK with the hay hy the l.Uvis. ■^hat tld" le irin<>mtH.taUU-, it is for F.a„ee to regolat- the limits in t ub particular ;'""> ^1}; '^> ^ |,M been coded to them, but stretching toward the west in every hmgitude ? The Ti ''-^y "f I; v w,l r tor oulyof rest.tut.on-letthe English shew that winch the French have taken from them, and tl>ey will r- "t to them hat all that they demand beyond this, ihey demand without any ap,».arance "t right, A k,1» 10 of the Treaty of Utrocht restores Hudson's Strait ; why then wish that the boundary on thw m'^ ■ ^i' " f Ij.r,nrm.« ^t the north cane of Pavis' Bay, m 5(ii d,.groes of latitude, since this cape is more than 120 W;rf'r:,m\h':ap;;of'wi Beaton! at the 'out decree 'or thereabouts, which '« „^'« -^XXr™:'!:.: Hudson •» Straits? This excessive claim would carry away a large portion of the ! -nd of Lab.ador, wliici. '"'*The'ir««"of* selmratiou should then comnwnce at tJape Boutou, pass through the middle of th^ torritor, which., b tweei For? Rupert and Lake N.uniskau, of which Kro Albanel, Jesuit and Mr. X h S ^ Iv bv i'^r V""" cesses, estaMishe,! trade ri::ht., an.f th.ir vUi t?W n t h V ' . '''""" business and settling thon^sel ves down in "k . , ^^ Us r ^ ' tSntu;;! vtf "' tra.lers fornuMl U.en.selves ii.to a coM.panv. ealie 1 e \ tl. W f r ' which for a seiies of years carried on nraetie. I n .;!- ' ^"'^\)^f^ t..Mipany. the servants of the H^ Ison s .,;/ 'Ci.K whl^ 1^ a ^'IJh^, ? Jfh^n;]!:!; this mr. s Iky Company and tlie North-West Company, and a proclamation is issued com.muid. inrth West and Hud,on> Bay Companies, I have received intelligence from different quartern, of thn con- tinuanc^.Ttr^erVroceedinKH which hav involved the whole Ii lian country in disturbance, and whiUi, il ach^rb^no eX nut t thorn. thre,-.ten V be utterly destructive of the intercourHeH sub.istmp between U.<»t^ountry and rtii Ma jesty '« don.inio.m. To prevent conKeye8t Ccmpan.e . Hut a. much D^ me nrtnecetirilyelapBB before their report can be received and properly <,onB.dere<. I am cm- mand.' ro"iBrifv to vou His ftoyal Highness* pleasure that nie.isure8.Htiould be immediately taken tot mttmK an oid those violent proceeding,, which' have latterly marb • '-..e contest ul these two companies ; and wfth this view, th.'t each si ould be restored to the possewfon. ' them previous t . the co.nn.eiice ment < f the r reemt imputes. You will therefore, upon th. reof 'i ^a .'.espatch, wsue « proclaniat on, Tuie name ..f the Prince KeRent, calling upon the agents of eac. , .y, au.l upon all those jvlmm either mav have enlisted or engaKed in their service, to d-eist from every fiost.e aggression or attack whatever and in order to prevent the further employment of an unMithorized military force, y-u will L..,|u.re »' officer" and men cmnprsing such force to leave within a limited time the service in wh.oh fhey are en,ege to which their former employment in Hia Majesty's service would otherwise have entitled them. You wil a oTeouirerunder similar penalties, the restitution of all forts, buddings or trading station, (with the property w\iich they contain) which mpy have been seized or taken possession of by either party, trtlemrrv who originally established or constructed the same, and who were possessed of their, preuous to he KdspS between the two c.mpanies. You will also require the removal of any blockade or im<;ediment bv viltich any party mav have attempted to prevent or interrupt the free passage of traders, ., oTl ^rs f His ^I^je ty-s°TbK <'r the natives of the country, with their merchandise. f«". l.''--'^'^'™' »f; Xer effect^ throughout the lakes, rivers, roadd and every other unial route or communicalion herototore used forthe p n "^^^^^ the fur trade in the interior of Nor'h America: and the full and free permiMio,, for all person's io pu'r.ue their u.ual and accustomexl tratle. -ifhout hindrance or molestauon;<^^^^^^^^ the same time tliat nothing done in conseMuence of such procUmation shall in an> degree «''»"^' --r^^ '' atfect the rights which n.ay ultimately be adjudged to belorig to either party "l'"'\^,f"'/^;^ '"'f/J *^','',7' a the circumstances of 'heir several claims. 1 trust that the parties themselves will understand their nwn interests tmiwer not to vd^^^^ readv ob..dience to the commnnds of His Royal Higli.iess, but in ..rder to ensure UyT/uw not hesitate to arm the commissioners with such additional authority as you may con «drr..qiusrte to enforce the pr.xlamatio„. anS to take ejery other measure >n.y""'; P;'*«' [J'^^^^.l^, : obipcta which His Royal Highness has in v ew, namely, the cessation of all hostility both in Canada .ml ttw In^an rointrrand tVe mutual restoration of all pro,)erty captured during these disputes, and the region. of ta k and rnVromirs^ with the Indians, until tliL trials now pending can be brought to a J"J'=!^.l 'l';;;"'"". ind'the .rent question at issue with respect to t. . rights of the -•'- -,X'hoVot''to bi'err:'' "'' "' Bathcilst. Lieut.-General Sir John C. Sherbrooke, G. C. B., etc., etc. Ifi THE AWAHDED LINE IN CONSONANCK WITH LAW AND WITH THE FACTS. Mr. ScoiiLE.— No proof that tl>e territory helon-^od to i Lord Abekdark.— You are directing y.n.r ar-imreiit tal them. Mr Seoul E —Y e./ •"' 'li^uiiiciii, uthiit particular point ? r .iMl'' ""^^'''°'' **''^*,,'^.*'^''« ■•'* ""y <>tl'"'- ">atter that I have to bring to vour Lo dsh.ps notice upon his case. 1 think the evidence n.nplv shew, that the ^'. lin"o wl vrfl ^""^f r^' r?t''' ';^' «'"-'''--<^t'""^ of !aw and fact, in ad.,pti«g he line wh ch hoy did. which has been admitUvd to be a convenient lino an! I aik your Lordships to conHrni their Award. [Their LoriMipH cowuffed.] The Lord CllAXCELLOR.-Their Lonlships desire it to be undor.stoo.l that th.y wdl only hear two counsel, an< it counsel for th.. Dominion of Canada and the Province ot Manitoba w.sh each to be heard, they ^vill settle a.noug themselves who are to be h.^an among the various counsel retained ; but it is one case, and here will be on y two counsel heard. Then, s.condlv, then Lordshios do nJt desire that you should travel into the (,uestion of any Indehnito extension of the limits of Canada, nort , or vvest. They consi.ler the tru. rjuestion to be the pre- sent identification ot the boundarie.s hud (i..vvn in the Quebec Act Mr. McCauthy -The point, m3 '.ord, up.,., which th. P.'ovince of Onta.-io .iiust .satisfy your Lordsh.ps in older to sustain the claim to which they have uowhmited the demand ot the province, is, finst. that the due no,-th lino is not the proper line on the west ; that proposition we deny, 8ec..nd)y, if it be not he .hie north line, but that the line taken by my learned f.'ien.l is the proper ii..e to tollow 0.1 tne west, along the bank of the Mis.sissippi, then, in order to getthedeteiniiningpo.nt, itaj.pearsto me that the province is bound to shew where the southern boundary (,f the Hudson's iJay teirito.y wus a.,d is, because until you get to the ^ souther.. bouuda.-y. the line is not ti.xed. If, for instance" you to low up the ea.slern ba.ik of the Mississippi, and you c.n..e to the height of land, and that height ..f land was the south..'rn boundarv of the Hudson'.s Hav te.T.to.y, then the c^mrse, in order to find the weste.-ii boun.larv, would be to yiow that height ot land. It that be not taken as the .outhe.-n boundary of the Hu.l.^ons Bay territory mentioned in the grant, then I am at a loss to know where my learned h^^nd would ask your Lordships to .stop. The award of the d.b.t.-ators assumed tl.at there was no Hudson's Hay territory • they penetrated thiough this height of land of which T a.u now speaking , they went to the north- west angle of the Lake of the \\ood.s; and then they went n<,rth for a certain distance to that poi.it of the English River—due no'ith The Lord ClIA^'CI■LLOl^-They adopted apparently the li.ie really laid down on iVlitchell.s map. •' M.. MoCARTirv.-I think I shall be able to shew your i-oidship.s that t,.dt ms not h-eated at any time as being properly or carefully not-d. In point of hict, as to this part ot the country, the geographers of that day we.x- in .^reat !i(noi'ance. " The Lord CHAXCKLI.OR.-Are you going to shew u.s what took place before tne award ^ '■ Mr M(.'Caiituv.--I am going to shew your Lordships that the onlv theory !.i....i-,vi ,!;. nU-lu or the ijake ot the Wood.-,. The Lord CjiANOELLou.- We have not anything V^dore us at present which points to that height of land at all. p -^.ni wnicn 103 ABlil-'MKNT OK M«. M'i'\HT11V, g.l'., re V'*KSTION OK HOUNlUnY : J Mr Ml'Cakthy.— My buijgostion, if your Lordshii) will allow me, is, if iliii h(.'ij,'lit of land lio not takoii, wlituv is iho line to .stup ^ 'I'liat iK one of tlio (litil cultit'M thai lias iihvays oi cu.tciI to nie. Tlif f.oui^ ('HASrE[,L(tK.— At prt'sent, U|n)ii tiie evidenco, you have mil certain Hunts laiil down in certain duciuatMUs, in tlie '^lUibt'c Act.a most autlioriu- tivi', docnincnt, and, t(» idi-ntify thoni, a nmp is jaodurod giving the line of those laki's and tlio Knglish Puver as tlii' soiithiM'ti hmndary of the Hudson's Hav territory, '{'huse s«.:cin ut all events to lead to the eonchision which ihe awari has arrived at, and they have to be answered. Mr, Mt.'t 'ahtmy. — Vos, my liord. Vour Lonlsliip will see the award first follnw- En^^lish River, then up to Lac Seul and Lake St. Joseph ; it then takes th.- Albany Kivor, and ;i;oes to Hudson's Hay. TliK LoKl> C'MANCELLOK. -You will observe, if the rest of the tcrritmy fartlur east, is assumed to be correctly hiid down, it i.-. a con-sistent water bouni. ary. The water boundary starts Inmi Hudson's Bay, goiriLC up the Albany River to I^ake St. Joseph, then on to the Kn^dish River, antl so out on Manitoba terri- tory. If any natural liouudary is to be regarded at all, that beems to be a very fea.sible natural boundary, Mr. M(CAt!TiiY.— It entirely ignores any rights of the Hudsons Kay Com- panv. The line by the award is from Fort I.'upert on the (last, sLretfhing to the Albany River on the .west. Supposing]; there be, any pari that tl»e Hudson's Rny Couipany were clearly entitled to betwei u these two points, it is where they lii>,i fettled anil where t]\ey continuo\isly . ccu|)icil, and yet the .award takes froin tlic company that part of their territory to which beyond all ijuestion they are [i,i,st clearly entitled. Lord AliKUDAHK. The award did not deal with this (juestion C)f the iddi- tion to Outario, Mr. Mr(.'AiM"llv.— Oh, yes, my l^ord, the award started on the rast at Kort Rupert, a)id then went along James' Bay untd it struck the Albany River. The L(»Kf) CilAXCEM.oit. — It is not that the arl)itrators ponsidered that to be ti.e l)(.uii l,Y I.OMlMoN ANO ONTAIMo ttESJ'KOTI VELV, 1871-2. Unnii apuiM to U> say wfij.t homi.lmv tl,uv wanted. Kxed the limit which will ho touu.l at pajr,. :Uo\ thv .U,\ui A,,,,.n indicMfini;- rhat the Hudson's Bay (,?om- jKiny s rights wont to tho hoi^dit of land • Pigeon'^KTvor''"^"'^ ""^ °'^ ^"**"° '" ^^^ '"^•"•"»ti«n'*l boundary from the month of The r,oui.riiANCKr i.ou. -What was tlir o,i:rin of thi.s document ' n.mS; ^'y^'^«V';'7;V*."'- ^"I't-rt's Land Imd 1,....,, added t. the Dominion, the Dounnu n forniulated then- contention, which was, n^ 1 have .said, the du.- north "■ h\l(^ ''"^ V'f^';,"^ calKxl upon to nun.o the boundary it wanted.and tliat 1!S72? IS done by the Order m Council of lOth April l,s72 m, p.i.r,. ^'r' The I om, (.:MAX(ELr.oK._Thi.s in the Ontario claim stated by them in Mr McCakthv. — \es : "^ ,<... i' J'Ik^pT-'*^'' °^^.?''?^ ^"^^ '""^ "'"^'"" '='J">-'''l<>rHtion Ihedespatch from the Hecre- tar for th. I rov.uce., of the 10 h instant, on the subject of the boundary line of Ontario, ami the copy of an approved Minute ot the Privy Councd of Canada enclosed, in this Almute the Pnvy Councd r.Rrets ' that the Kovernment of Ontario, wbilo expressing their lt;T! °i7l'"'°" '"'" 't*' °! the Dominion, omit.ed to give their own viewH on the subject and did not btate what their claim as to the location of Uie boundary was ' The conmuttee would observe that the despatch on which the.r minute was founded did not rontain any invitation to the «overnment of Ontario to .xpress its views, or state its tl^;h«i3n''*°'^°p^°' ^^^T I', r^. T"''*^^* '^ '^^ ^°' ^^^ ^^^ ■omuna.o. advise that the government of Canada should be informed that this government proposes the boundary contamed in the anntxed description. "1 lut^otuo Now we come to the description : ■ " The boundary line of Ontario is the international boundary from the mouth of the i.igeon Liver on Lake Superior, to a point west of the Lake of the Woods, where the mternational bounda.y line would be intersected by a line drawn north from the source of the Mississippi River ; thence the boundary line of Ontario runs north to the point of mtersection of the southern boundary of the l{u(^9on'H Bay territori.s ; thence the boundary line of Ontario is the southern boundary of those territori... to the point where that boundary would be intersected by a line drawn north from the head of Lake Temis- earning. The Lord Chancelloh.— I.s that the one actually a-lopted by tlie award ? ^vi,f„!!ri!''" P">''""'>' ''"' Kovernmcnt of Ontario, even at thia early period, befi^e^>me"orth.'7i^iiortant e n rth of the^'wa?!^^^^^^^^^ '" ''"'''■ '"!'^'«'K^- -"-mtain^l "thai U.^rrthm, ffla?y MPS norm ol toe watorahed of the St. Lawrence flyKtum. ■ Heo note t, itifr,. "uuo.j, • The two remaining paragraphs of the Order in Council are as f,)lIow^ : Um\t\ the orifnion "fV\T '"^''"'' "'"' '''|- K'>vernment of Canada 8ho,.Kl he informed, that an V . the western ,t;V^ f •Ll'^^» f hi/ this guverninent„there are grounds for maintaining the contention of f..rmer Kovern ^i^::^^^';^:^^^:^^'^:^::;:^-"'''''''' "^ ^''"'-^^- "- «■'— ^ <•- t?t c's:? .v>.l»^" '" 'he "'.'ftbern limit it will be observed, from the description, that this govemnieut in.iintaino the K?en"l '*■'"'.'' '" T''»'"r'"'^ ^^' '''^ -^''nfntionsof all former governmei Is, and by U e i n,h" , tVl e "ac^^^r^ U e r irh".'"';""'''7 ''^r "r',*" "' '"^ «ater«hed .,f the St!* I.awrem.e s v«t,..,n,the 1 me o which wat.Tsh^d «nver. Into'r^^H^l^^ h """f ''^' ^^ govern.oent of Cana.Ia ; and th; committee adv se that he 16.5 ARGUMENT OF MI?. M'CAllTHV, i).C., re yi ESTION OK IIOnXDAfiy Mr. McCarthy. — No. They adopted the western limit at the Lake of il.o Woods. Instead of treating the Hudsons Way territory as existing in fact, if at ail. thoy ignored the Hudson's Bay C'onijiaiiy having any claim. The Lord ('iian'ci;i,i/>u. — I am afraid I do not see the topograpiiy ox»utI} The Had.son'.s Bay claim, in 1755, appears, so far a.s the question now in dispute, to have heen liuiite the water lino — the water line of English Rivoraml 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 i.s different in your view from what is here claimed. Mr. McCakth V. — Oil, yes, my Lord. The claim, according to that map, woulil have been to the height of tht? lantl. The Loui) C'haxoeli.ou. — There is not a word about it Mr. McCarthv. -It .says the Hud.son's Bay territories. The L0Hl» t'HAN<'Ei,l,ou. — We have Mitchell's map laying down the southern limit of the Hudson's Iky territory Mr. McCartmv. — Perhaps I may as well state that we propose to .satisfy y. hi i Lordships that tlio Hudson's Bay territories were either bounded by the +ilili parallel or by the height of lajul. The Loiti) Chancelloii. — At present w«' know nothing about either the one or the other. Sir MoxTAGi.'E Smith. — The pro])osed I«)undary, mentioned at page 834, i.s what the hominioii propo?:ed ? .Mr. M<:(.,'ahtuv. — No, that is what Ontario proposed. The Dominion pro- {)0.sed tlie due north line. Your Lordships will sei- by the next sentence of the etter. It uuiy perhaps be as well, my Lords, to look at this map of Mitchell's,* which your Lordships think aliords some evidence in favour of the view taken by the arbitrators [producini/ MitckeU's viap to ificir Lordships]. Now this map, be3'oud a certain point, may be .said to be, I think, so wholly wrong as to form no guide whatever, Thc^ liist thing which I tind in the map is, that the height i)f land is laid down and stated to be the boundary of the Hud.son's Kay territory. That is the first thing I point out to your Lordships. You .see it says " by the Treaty of I'trecht." The liORD Cha\cei,i.oi(. — Tlie height of land does not seem to be conni cti^d with the words Treaty of Utrecht — " Bounds of Hudson's Bay by the Treaty of IHrecht" Then you may sa^' that the thing is continued, no doubt. Mr. McCarthv. — That is what I mean. Lord Aberdaue. — That is not the land's height. Mr. McCarthy. — Yes, at that particular part, that is the land's height. But what this geographer, or mapper, diil not know, or did not mark down, was that this land's height came down here [indiGatim) the position of the height of land to the wcH of Lake Supi.rior']. Lord Auerdare. — Perhaps that is because the land's height at tliat particular part ceased to be the boundary, and that is perfectly consistent with the descrip- tions constantly given by the English commi.ssions to go to the north-west ])oint of the Lake of the Woods. Now the north-west point of the Lake of the Woods is certainly on the northern side of tlie 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 tlien another height of land, so to speak, not jiroperly speaking what the Americans term, very expressively, " a divide, " l)Ut a height of land that runs to Split Lake.i" These rivers here all drain round Split Lake into Hud.son's Bay, hut this is the .•-->'pa)'ating range of hills ' Soe niUe, p. 107, note. lt)6 tSee ante, p. 7, notef. THE AWAMDEI) ItorNDAKIES, 1878. The Lorn, Chancellor -Tl. is also HKUTCOLLIER.-Accordin«to this map, it so., farther west than the Lake of tho V\ oods, and a little to the north uf it is.«^[,S- ;"on^/.!t;?'"'^^'"^'^"^ '^«^''^- '^-' '- ^^^^ *'>i tir-it Hinl this IfMmiiiliiiy, thai, is the suuthfi'ti lioiuidary of the lliulsoiis Bay l.i'rritoi'v, in nnlfr to thtcr mint,' the wost.Tu limit, tli' 11 tlit; mhitraton wltc nil wroii;^. Lord AiiKitDAiiK— TluMi, ;u'c(»i(liiii4 to your nrjLjuiiiont, the arl/itraturs should l)ii\c fiillowt'd till' lino of tht' iu'ight ot the yroinid. Mr. Ml ("\||Tll^.— Vt>s. Lord AhKHDAUK. — Tlint would liavc liroUj^^ht thoin down horo [pohitin;) mi thi' mnp], Mr. Mrl'.MiTHV. — That woulii Iimvi- hroiiyht tliem to tlic boiinilary be .vei'ii tlio States aini Ciinaes determine th.- sourliern boundary, if it is necessary .Mr. McCauthy. — We do not admit the correctnes.s of tliat map. Sir HoiiKKT ('(>M lf;Jt — I'.ut tnkiii^' that map this is the southern boundary. Mr, .Mf'CAin'HV - -Yes, but then the miiitrators have; fjone far north of tiiit. Sir UuHEUr O0M.IEK, — That is another thini?. I was only denlinj< with tlu nece.ssity of determining,' tlie southern boundary. The LoKK ( irANCKl.I.olt — 1 find on this map which we have been fu 'shi'd with Mit hell's map — the line is laid down just to the south of that chain if water, and then it ijoes on eastward. Lord AiiKiiiiAHE, — Were the arbitrators insfructed to find the liistorical fact as to this boundary, or entrusted witli the power of layini; out what they Mii;;iit think. Iiaving regard to the genera! historical facts, the most convenient boundary i* Mr. Ml '.'AnTHV. — There has always been a doubt on the construction of tin Orders in Council. I suppose tlie proper construction of the Orders in Couneil was tli.it they were to lind the true limit, but the <.)ntario government seems to have thought it was possible that a different con.struction might be open, because tlie legislature of Ontario passed rn Act saying whether it was the true limit or not, still they a.ssente I to it Ining made the boundary. Sill llonERT Coi;i.iEU. — That is, they confirmed tho award simply. Mr. MoCai!THY. — Whether it was tho true line or not. Sir lloitEKT CoLl,iEl(. — That is to .say, it eould not lie questioned. Mr. McCahthv.— Now one other preliminary point before I go into tlie argument whicli we propose to advance, and that is as to the territory that my learned friend told you Ontario liad 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 cpiite right in stating to your Lordshijis the territory in one way and the other, but the extent of territory ha.s but very lit le to do in m fjUe-stion of this kind, as between the difl'erent provinces ot the J)oiniiiion. It i." population bv whicli. and tn'operlv sn. tlv; representation of the priu'inces in t\\c Dominion Parliament is regulated, and already Ontario has, out of '211 memlier.'-, 168 (/rKHTK.N <)!■ KXTKSsios uF» UKNcll ral tW()utrtri(» r '*•""> '"'t' ^^1'' ""'C'' •''**« i" 1 and Ihf riiN is not hftwHon Lnl<.< Sui).ri.iPftnd Fort Willi.n.i. or \>i'X\s^',.n the lioi.rht oflan-l nortli-west an^'l,' of tho Lake of tho W Is. it i- not i.ial.Ir land Thi^ .. land that ran lu- useful for flettlo.nciit. Their are ininonds thnv, but it is chietiv vhIiihI>Ic to the provuMo 1 repi-CM'nt hoiv on mrouiit of its timher wealth, which doo,s not Ontario doe,- not ro^iuire, hut whieh Manitoha, l.cin^r a prairie |.rovince c r.M|Mire lor its |.urpr.soH, That is all I n.-ed ,s,iv ahont tl,„t hecausc I -lo suppose that vour Lordships will he irilliioniaMl in the l..,ist d(M'ieo hv considera- tions as to thr extent, when the ,pK-sti<..n reall,\ is-and wiiatth.: provinr-cs of Mio Do.Minion are anxious to ascertain is- what is the trno limit, aecordiu" to tho prop^'r Jnii', and aecordin-; to the Mritish North Aineiica Act. by which all tliese provinces consented to come to"eth(rr. Now a wor.1 more aliout'^the j,'eo<,'ra[)hical pi.rt (,f the southern country — southern , so far as this .piestion is eoneerned—hofure 1 _ where practically tlie Mis.sissippi rises.f to the nortii-west. Then, thn : ft that ^'reat country, between the lines which I will point out more in detail in a moment and the Mi.ssissippi ; and both sides were insistino: ihat that should be kept as a neutral belt.; Perhaps J cannot make my- self clearer than by saying it was pretty much as England and Russia are to-day lv.v.',!5 "/."Jht'^ltn""^""* )'istorical. f.ct that Fronch Canada dt.l ,,xten.l tu'the'^^s,,•s,7^,ZT.7l ind^l ft»ter« that fall into the M«8i«-.im„ prop.^r from those that fall into .he Missouri. iSe., anU p 142 w?ni:Li;l "i f"""- '■'*'» ''"-l'«.'l by Canadian otticers, extended alon^ the river fro... th« Illinois up' ward., with sorne also on Uh tnt.utari... I,,th we:.t«rly and eaHterly. (.Joint Ap,,. 613 4., Fort St. Nico L ^(ZZ M!'„/ir""^' "^'^oLr^'''^" '^ '''S Wi-couHin wUh the MiH«i,s„.,.i. wiioue of Uu :Lt ■ m^orta^ flivHrlr.^f pJ .1 f n^l."^ "' 'h«.**'''°/[ '«';'"*• PossBBHion, by order of tli.: Mar.,u.H de Denonville, Co»wn or of Canada of all the countries of tho llp|>er Mi^aiasippi. in ir.Hi). i.Spp thi.< rneord anle v 147 nnte) Tt i« among the Canadian post*, and aettlemontsenoineratHl in (iov.rnor I'ov nail V account, in i7fWi', wi vt;^'";; iI^'h'' """'■"'«"* ■»*, '» «"e one." . (.1.,int App. mi The Country of tho IIIinoi«, so oal ed m f i T^ dependency of Canada or of Louisiana according as th. King vxercied his pleaHuri in regard to It: ,t was strongly for ihed, and garrisoned by a large 'ore- of regular. : n.id w,.> a. emidiatically a „"" "^T""" '*',r5* ^^'""'T "■: '^;""t>-«a' (-'"iot App. pp. mi, riU, km, r,.-,1.2) ; and this England n«ver denied, nor coul.l deny, either in Mr. Pitt's or any other time. i , i j u. s r,ui;ianu old nlal"^;,:;^" tlll',!^ue RW^IJT'l'hf rI^^I^:.*"^ ^t^^' "' «— '-'y "''-" "" "'-y "f ^"^ refereJw^ P'oi^^ed neutral belt did not at all embrace any portion of the territory in c,ue.,tion on this 169 AH'.L'ME.Vr or MK. MCARTHY, ^.C, r« qUEHTlON uF HOl'NUABY -*.T— ! PS clafminj,' that there HhoiiKI Ihj a ncutml holt a«i it wuro betwcoii thi; two empirr ill Asia. I will jjoiiii, out thut coirosponilence, if it he at all .lisputad, in detail That wont on to 17(51, the capitulation of Montreal hoinj,' in 1769. In 170S th« treaty was ma.le hy which the Frenth eeded Canada, in the (int jtlaco, un ! its dept'nd..'ncies, .uid Hmilly, for the purooso of ."stahlishinjj n boundary, not merely for this north country, but, your Ljrdships will lind, dowti to the Gulf of Mexico They fixed the Mississijipi as the limit between th.' Britiih po.sso.ssious, on the one side, and the French, on the other it' is not very ditfieult t<> uinier.stand why Frauominion, will d.al with it more in iletail— what on that (|uesti(»u our contention is. Your Lordships have heard the Quebec Act of 177 »• re ad, and your Lord^ihip. bear in n)ind that in I703 a smoll province hod been constituted, by Oid.jr in Council, or by IVockmution, speaking generally, to the east of Lake < )ntario. In 1774, eltveii years afterwards, it was proposed to enlarge that province, and w»- do not dispute on our side ttiat the recitals in that Act make it abundantly plain that th" object of tin- enlargement was to take in French colonies andst'tlle ments ; but what we do say is, that the Act never intended to make it— and for obvious reasons— part of the Province or (Quebec, as to which, your Ijordships remember, the Frencli were mainly interested, the Roman (^:!atholic religion beiiiij made the religion of the country— they never proposed, we say, t(. include, anv^- thing beyond wdmt was properly called Canada.* The Lo\u> (Jhanckllor.— What do you mean by .saying that the Roman Catholic religion was made the religion of the country? The existing Roman Catholic establishments were supported and maintained. Mr. MoCUkthy.— 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 countiy. The LoRP C}t VN'CEI.LOR.— There being no rights established beyond what were found existing. Mr. McCarthy.— There was a good deal of feeling at the time, judging by contemporaneous literature, with reference to the extension of £hat favour to the Roman Catholic faith. Now, perhaps, I may prove to your Lordships what I have said by reference to the correspoudence,t which shews what wa.s the true limit of Canada. If • The claim that Uuebeo wag limited on the west l)y the due north line, is an acknowledgment thTtHrc greater part ol the lU.noiB country, and therefore something that was nut Canada, wa« einbraced in that Jrroviuce. OBejKiat, p. 175, note . +ThK VaUURKCU. HAI.DIMAN1) AkkAIII, RKSPFCTING THg LiMITS OF CANADA, 1769. -tf. de Vaudrtuil to the Due de Ckoitcul. My Lord, October 30. 1761. h., — - ^ ' JS- Mtoniehed to see, by the historical account of the Memorial of the negotiations between France and Lngland. what I am charged with by the English, with regai-d to the limits of Canada, fts It 18 entirely false and groundless. I shall give your Grace a true ftccount of what massed between Mr! Amherst and me on that head. When I oapitnUted, I traced no limits •.vhat.-vf-r ard in sM th" iiir"K=e= that ijassed between the Knglish general and me, I made use ofthe viord ""Canadft ' only. Eight'^orTeu 170 VVKSTKKI.Y MMir Ot • AMADA IM.Ml THK •AIITlfl. \ riON oK MONTKBAL. 1759. yn„: (.oHshtpa will look at piij».. MH, yo«. I .)r.l-,lu|H will >.-,. ji.nv tho .lifficMilly anne If iH a cimiiunioition I'loi.i Vtiiidivuil to il„. .Miiii«t.>r. cumplairiinif of a puMication that I.h.I l.eeu maWe in E..-laiul with LlVn-nce to what hn ha.1 ce.l.-i in Canada ; '•r«r..iMt..ni.h«rlt...oo, »,ytl,olHalori<-«l ..•CMun, ,,f ,|k M.......ml of the ii...+ .fmtinn« Mw-.n hniuceaml KiinUn.l. what I iim .h*rt(...l «,th l.y th.- Kn!.,>1 :.r..,..„l!. ,., | ,),„M .iv,, v,.iir ,i-.hi'il l)«j( wi'Hti Ml- Ainhniit liiui I Taced no liimta ^hatovcr un.l ••. nil ih.. „u.,. .„.» ,1, a ,,a.He>l ht-lwoei. thi, KngUili K«n.Tnl nml m« I nwulu uio of the «„r.l ' Cann.U," only. KigJ.t or ten d.iy» »ftor the What I h»vH thp hon.mr t,. toll y.,v,, ,ny L..rJ, ,• -Inctlv tru- ; I an. n..t afr.vi.l th.it the KukIiMi can ,,r. ,luc. »ny |.r,K)f to the c„ntr»rv for noth.iiR ,,u,h^,1 „, writiim. ,.„ t(,i« l,^«.|, „„r w., .ny lin.. of tlu- j.art of tl,. nu.p wh. i- th. !;iiuts btltwe-n Cana.la ,11,1 LoiuHiana were iimrknl, which vou JeliverHd t., n.-, and uhch I ar,|„aint. i tt,.- S.Tieur, of State were .lone by M. d« Vau.lre.al Whelh.r by hwo, or in'r.il A>i'nr.it. ITranelation from the French of theori(jii.al.| Thkrr Riv f '(H. lOih Decemtier, 1703. a Ti . , .. . . DeHpatched Ifiih d... ^IH. -I liave received with pleaonie the letl. r yom- Kvcellency di.l me the I, i,.mr of writinK to me on he hr»t of Deceniben re»i)ectinK what passed between Monx. ,le Vaudr.ui! a-id m- .elf on the nubj-ut of tlie hmits of ( aiiaJa. Sev.ial tim«f I tho-.inht of fore»tallinK it. but r deemed mvsell ooli^.d t.. *wait tli>"«B otaeiK, to which f intond to conform with all the e.\aotne^< |K) your Kxcellency. He replied that he had none, hav ii.sr lost them all ai i ineheo and (to iv.ijd h»arin(?the enumeration he wnhed to make of liib other los.^e.■| I . nitent. 1 mymdi tcr the time with tilt* r. ply; but havniK occasion to ..peak of it a«ain s iine diivn after, lie toM me that he had fcmn.f » C'iupieoi maps, and pasauiK into another room he had a larffe map of North V'.ierlc a br .uirht : it wj-t m»de hv haul and foldeeared very ninchHurprised, and, as he did not answer me, I passed mv hnpir alonj? the Illinois River •»yinR : Here ih the Illinois (/,,v Jlluwh). Tfien, he replied that the Illinois I't.s lll,u,.,s) had lieen contested By the two Uoveruoi-s, 1 ut that it had been decided thev should belong to Louisiana, un.m which I took a pt-Mciloutof my pocket, and resting my elbows on the map, while M. de Vaudre.iil kI-kxI be.side me, 1 asked hiPi, shewing him the north of the Mississippi, if the line passed that ; and hr hiving said Ye-. I msrkel toe (wnts from the s.wrce of the Illinois, returning up the Mi3.«ir.>ipj,i ; ami ankiiig him once uirain It I marked correctly, he answered mo in these wor.ls, (lu, .\I. le Marquis de V.iudreuil. h'^wng his eyes bxed u;;on the map), " Takfall. the mrih, take nil the m.rthr Then I pointed to R*^d Lake, which seemed ti ine the natural hinit, without his making the slightest obiectiou : after which, T rf-turn-d on the other 171 ARfUTMEXT OF MI! M'CAnTHY, Q.r., rfl QUESTION OF HOUxnAHV suirendei nf the .Muiiitry he Miit an "(licw t.i me (nr iimijs, to inf./nii him of tht- cxti-nt ,1 th>- cwlnnv. 1 ivtuiTieil fi'i' ainwer tli;r J had none, niy maps hii\ m^r been tAk.'ii m;,y with m\ bau^ajie at (,»iie)xc, m lireaeh of tho caintiilatinn (,f that place ; and th.' oiticH' rhen Hliewiii^' me a map wliich In- had in hit hand, ] told him the liinin marked on it were iiot jiiBt, and veibaily nientionod oiheis, extenditi!.' Loiiisiiiiia (jii one side to ti,o lanyiiiL' place of the Miamis, wliieh is the height of the hinds whoBe riverH run into I'.i, Oualiaclie. and t.n the otlier ti. the head waters of the IlliiioiH. What 1 |)uve the h.. ,,',,, to tell you, my Lord, is strictly true," and 80 Oil. Then Gcueiul Ainlierst writes to Colonol Haldiniarid, \\ lio i.s ilu- otfieer referred to as li}ivini(1>e«n .sent to tht French (Jeneral, and tliat letter yon will find on pa.tje 510. It i.s .simply asking him to state in detail what did tiik, jilact; at this interview lietweeii the Frencli officer and himself, as repiesentu ' General Amherst: " " About five or six days after I had entered Montreal, I asked M. de Yaudrenil If h, had no plans, memoirs, or instructive maps ci>nceininii; Canada." I need not read it ull down. Imt ho speaks about their beint^ lost Tlien at line 40 : 0,1 " I found M. de ^' \udteuil, with several memherd of hi.s household, in the room thHt overlooks the street. I begged him, without any other preamble, to be kind euouyh .^ide of tlie Illinois, and not fancying that Loio could even hr contested, I Haid to him. Here we un haintedS takH the mouth of the Wabaclie ; and [inttinK ipy pencil upon the ronlhience of the Loio and the Misni traced a line, ajfam cominp up this first river and tlie Wab.iehe, and joining the point where I iiad c'mi inenced at the fonrce of the Illinois. U. de Vaudreuil Mtill «tood beside me and looKed at the niaii witf out makiaif any objection. Thi..< line through its different windings, though made off-hand, still r.-In,. 1, pleiitv- of tim.'. But whether, being occupied with his de|>artare, he said Yes, indifferently, and withe (?!ving it tlie necessary attention, or that m grimfj » tacit approbation, he sought to give nie an em.n,.. impresBion-the account which I have related to you, Sir, is none the less the most exact truth M. de Vaudreuil, and all the French who remained at Mont Rial, wer^ to leave tliis day. The to les of niilitia having assembled to give up their arms, and to take the oath of allegiance, I had uo 11 «111N mi p with 'lim out 1.111.- panies oiu nil !; C.B111- ui i.-u uivjo aiit-r uie uvAing or mom, lu'ai, and mat l.iputenant Herring, who is, 1 believe ai Niw York, earned to my liouce ; that it is the same map that was brought back by Kiisign Mimin to M d,. Vaudreuil on the morning of his departure ; and that when I oixned it in his room, there were neither liusj nor marks, nor anything to designatn the limits : that the line which now marks them has be.n traced s(ilii\ by myself under the eyes of M. de Vaudreuil. to whom alone I addressed myself ; and by all that he toM nie, I never for a moment doubted that he gave me this line as the true limits of Canada : and that fion the moment I closed this map in his room until I remitted it to your hands, there hai been no aheration 1,' any kiii'i wdLatmever made in this line. This, Sir, is. on my word, the simple truth of this transact! m, 1 must own to you, .Sir. that being cimvinced that ymi would a>k for intelligence at an e.arlier date 1 ,1 the e.xtent of a country which. I believe, never had any fixod limits) of an authentic act made in viniic o' the capitul.ation, I did not think it setmly to have the map signed bv M. de Vaudreuil, which would iiave been as easy a matter as to make him give nie the limits of Canada in writing, which he couM not havi refused to do in virtue of tin- capitulation, and wliich would have rendered this act ineimtestobl. • whilst having no sigrature to shew, he can always make his party believe that we tried to overreach him If I hav^e .insunderstooil Your Kxcellency, I am very sorry, and make inv a[)ologies ; .and when 1 mit th« map to \ our hxcellencv, and told yon that the limits had been drawn liy M de Vaudreuil, 1 nn'iiiil that they had be'-n driwn under his own eyes and roceived his aiiprobation, which is true to the letter I am fiutlier much pleased that this ugly piece of chicanery of M. de Vaudreuil does not preiudice our attairs in the slightest ; but, on the other hand, it has given me a gnad lesson which I will remeiiiij r, if 6l any future time I am fortunate enough to I e able to imt it into practice, I have the hnnnur to b-'. Sir, With piofound respect, ,„ , ... Your K.Kcellency'd most humble and most obedient servant, 10th Xbre. FuBi,. HAi,ni.MAM.. w oiomenta I re.terated my re,i,u,at. He appearod very ,nueh surprised, aal\ he did noTaller h':'r XrfhTIh.'fl."' '-"'r^^r ^"•""'^^ ^^'^"^- ^'^^'"^^ "-« - the Ulino, Then iio replied that the Illinois had been contested by the two ijovernors -— that was between the -ovornor of Louisiana aiul huaselt' hs crovernor ;• But that it had been decided they should belon„. to Louisiana, upon which I took a pencil out of my pocket, and resting a.y elb.w. on the .nap, while M. cl Vandreuil stood beside me, 1 asked lum, showing hin. the north of the M ississippi, if the line pal'd thaf and he havn.ssaid Yes, 1 marked the points from the sour.e of rho Illiris retrn.nl m, the Mississippi ; and asking him once a«ain if I marked correct v he ^Swe d ne n these words : 'Tak. all tl. north, take, all the north.' Then I po t;d ^^^"^7 ed Lake which seemed to mo the natural limit"— ' Lortl Abkrdare. — Is th Mr. Mc( 'akth v, — Yes. Lord AiiEUD.VRE.—Are yon sure of that ' Mr. MrCAUTi.Y.-Ves, 1 think it is perfectly plain. 1 svill show your Lord- fancying that f.o o conld even be contested," -that i.s the Ohio, no doul --' f "i;^^^^^^^^^ Here we undoubtedly take the mouth of the Wabiche ; and puuin,. mv penci on he conduence ot the Loio and the Mississippi, 1 traced a line, again ^JS^^IaS^ ^Z nver and the Wabache and joining the point where 1 had commenced, al^h^. oiro of the Illinois, M. de V audreuil still beside me and lookm, n, the map °Xu mkin,K any objection whatsoever. This line, through its dilferent win lin^s tlL-di ade tfhand, stiU gav^ him p enty of time. But whether, beini? oecupie.l with his d<.pirture ho said Y.8 mdiderently, and without giving it the necessary attention, or Trfn giving a tacit approbation he sought to give me an erroneous im,.ression-the I ^ount which I have related to yon. Sir, is none the less the mo.st exact truth." Tlie L..HI, CHANCi;i.Ln:j.-.\Ve .sluill follow thi. nuich better if vou tell us for what purpose you ipiotc this. • Mr. M(.;CAitT.iY.-I am -luoting it for this purpose, thai tliis line, which is. afterwards insi.sted upon l.y the English as the western limit of Canada was fa. to the east oi the M,.s,s.,ssipp . The Kre.ieh. in the negotiations which took dace aiterwards. contended that the lakes were the boundary of (/ana. la- Lalce I-hn-on Lak. Michigan, and Lake Superior. That, they said," was the true boundary of Un.ida. and the hnghsh indignantly repudiated that A[r. Pitt .sayin.r it was unbecom.ng com.h.ct, and that the tracing mach- at this interview between Colonel Hald.mand and Vaudreu.l should be the governing li.u,; but that governimr ne was altogethei-as the description I have read, if your Lordship.^ could follow It, would shew— to the east of the Mississippi. * The Loiin (Chancellor. -FolLnving the Mississippi up to the Red Lake vou get to the head waters of the Mississippi ? * i^aive.you .„.,;,l^';;.:^\';':^'"*"";i~'^ "!'•" f ^^ V"'"' ^"''^^^hips a sketch from the Foreign Office ...uci ve .lavb ou the. subject. We caiui-.t «hv positively this is ricrht "but it is a record at the Foreign Office, and it shews thi line which we say ; the 1, e .narked down on that map. That is the sketch from th<, Foreign Office, and that 173 lin ARGUMENT OF ME;. m'cARTHV. Q.C, Ve (QUESTION OF B01:NDAKY is the lino we say wa> tho.. tmced and yovir Lordships will see the diffen,„.« [hcndinfj skdcit ia the, r lordships]. ' Sir KoiiEHT Coujhu.-This goes as far as the Red L:ike appareutlv-a. i',r west a.s they are now contending for. Mr. McCaiuhy —Yes, hnt your Lordships will see the ditference. We sav It IS hunted to tluit. It starts, at the Red Lake, then it goes south of LukJ Superior following the height of land between the Mississippi and the L.kes Sir RoiiEiiT COLI.IKU. -But it goes west as far as they contend for The LOKD C„Ax,.K,.,.ou.-This cannot possibly be what von ' are n,nv leteiring to; at least, when I .say it cannot possibly be. I will not 'undeitak.. to say that but ,t seems to be so Iron, the dates. This letter of Colonel Haldi.n:,n,i was dated December, 17,„o was conceded. *^ It is curious to look at the Physical Atlas, because the line trac.-d on thai imm tr..)ni the Ked Lake, as tar as it goes, corresponds exactly with the watcrshe I J an, referring now to dohn^ton's Physical Atlas.showingthe water systems of N.nth America. That line from Ke.l Lake is, as far as it goes to the south of Lake Michigan, identical with the watershed of the River Mississippi sy.^-tem and M„ St. Lawrence .system and therefore was, according to the French contention of tliose days , the true boundary of Canada or New France.f *TM8 c-rtiHcate ,s from tl.e For, igu Ottice, and wa« guen f'^thei^^.'e. of the""a7bitT^,T>n^8 mmmmmmm i.i« ..along the ...glu-.t o^^.aioi^ AU.r^.rCU^l;^.,;;::^^^^^^^ 174 WESTERLY LIMIT OF CANADA UXDEn THE CAVITULATIOX OK MONTHEAL. 1759. tration, in l!;78 this Jan^,^X Win''T''^"rw.T'"^, .^'^"'^ t" ^" '^^-'l»tel^- hnpossible that W-l^^lo u^~ Tl ' '""^ '^""' . .^^" S?;;"^ '^ ^"'•" *" ^'- '"-^'th of the IlHnoia. Mr McSu^^^^^^^^ '"''''' ""' ^''^ ^"-- ^^ "'-• I^^^l^" -^Jiehigau. noi.Jso t'-I<^^^f f M "~'^''''^ "P'T^I '" "^^^ ^^'^ ^'"'^ "P ^<> that particular point, so tai as this southern portion of Canada which is now in tic United Mr McLAfUHY.— No; I am only usin- it ibr the purp.^s^ of shpwin<^ that he construction we place on the (^;obec Act is the tru'o one My nmm" n t hw, that It never was contemplated to take any mo>v than what had een French Canada to make a French province of it by the (Jneb-.c Act* the north-tesr''"''~'^'^'"" ^'' '^''' ^''"'"''^ ^'^""•^' '^^ ^'^ ''^ ^^e Red Lake, on Mr McCauthy -Frencli Canada appears to me to have been at that dat« all the territory drained by the Sc. Laurence f ' ^^^^Lord AHERDAHE.--North of that was the Hudson's Bay land, or the Indian f^^- ,^^'2t^J^^\~^^.^ } "''^ «ay that draining into Hu.lson s Bay was Hudson's ?!l.^l_J_'!!i^i^!!!!!^!'!^' into Hiulson's Bay was undiscover Jlat'd.and was sippi, I traced a line, goinp uvthi^ hrTlx^er^nd t\li i^TLf "'"•.9""«^«"^^« of tlip Oluo witli the Missia- commenced with at iho sourcl of t|,e Illinors " Wabaohe, wh.ch.weut to-met-t the point that I had maiiS"VSl':,:^?"am&rv^^i^:;;^Sr^Zr''' ^'?r'T" '^"?'''T^ «>"— "'^ - ot le conduisaut vers la tabl.. rmiTtait au f ,ml Hn pi Jn!^ • '^''^^^ ''''''^^ '^'^ I.miitt.-.du Canada amhK.e, je reiteray „.a demande i\ ,ne paru rt unn et ''oo n« 'n 'n ^"'' "' "'^'-^ ''"^"'^ "" f"" «"• doigt sur la riviJ.ro den llhuois en lui dii^t Voi'v h i I ino^, a r, '■^'Pl'ndait p„mt, jo pasay le ('u en contestation entre lea deux GouvWneurB mL-^m' n? ,iV i ".';', '•'■"?"J't 'I'le es IlhnoiH avaient ;a Loui.iaune, sur .juov Hurtant un crav?/nXma no^^^^^^ ' iL"",'^T"^" ''," '^ depemhoient de celui de tenant debout aupris de mov, je lui defrndL en^ h.i mn^.v^nfi "'*'^^^ aar a Cane, M, de Vaudreuil »e la, et m'ayant repondn que o u, je mar XZ »o n « wlu l^ "'*"^ 1" M.cAs8,-py si la lign« pasaait par JW, et lui ayant demand,°encore une ".'^ li ' mlro.TB bien 'll'. ^"^ ^"' rT "° ^«'"°""'n' I" Mic-S"- Mon.r. le SIar,,ui8 de Vaudreuil avantlesVi/fiv^fZ^^^^ "'" ''''""""i' ce.-. propria p.iroleg, (lui allure je point.iy jus.meB au 1 ac Ee aui^me ,mr,,! 1 h Ca'-te)-pr«,f« ^,„« /c nonZ, ,„v,.nc.s l,ut I, JrU, objecfon de e^^part enau tteTe"na„tri'aut^rrcott. d^H^^^^^^^^^ naturell. hvus <,a,i y eut la moindre eeulrment etre inise en conteste ie Ini diV, .V^ ^^., IHinom ; et tie me hKiiraut pas <|up Loio put the « Imle of the country of the U^^oiafg thrown i^n n "*""'"^. '•';;" *'! "*' ■?"^^"' "« ''a"""'! ^v Ontario, t.'»i"tApp.,p|Jj67r(/tv) '" ^"■'''*"'*'"' ''^"•'"^f "'»' J*"^"*" o" the Bill. I The constant (^I'lim of ihe '•- rh v—- n. t n ; n i i . .rca UUe .up:^?!! ^ ba^!;/ U^hX'I^^J::!^^-;^^,;::^^-], ^^^^^^ p..L-exteud4 175 ARfiUMENT OF MR. M'oARTHV, it.C, W C,)UESTI0N OF BOCNDAHY : aHe.war.lsk.iowr. asInrtiMntorritoiy; but it is a striking conti.-...atio.i .,f tl, theoiy U.at was then put forward, that t).i^ line is, aa far as it -n.o.s to \hv s„uih oi Lake M.ch.gan, the water limit of the St. Lawrence system. Now„voui- Lom si.pH wil see th., line goes, if T ro.iu-mbe.' cor.-ectlv. alon- the Wabash t-ul . Ohio and then tollows the Ohio down till it n.eets the Mississippi ; an,l it ..hv I.e asked a.id p.'(>per]y ask.-d. what was the nece9,sitv of ^.oi.iir as far .south as tim .jn.ictKm between these tsvo rivers, and .i.arking that out as ( 'anada The aiisuvr IS this and that is shewn upon the map befoio vour Lo.-dships. that south uf li.,. la,ves, bake Michiiran and bake Erie, there was n disputed territory between il.J tre.ich and the Knghsh. They both claimed that territory. The settle.nents .x that tinie had not passed the hei,y:ht of la.id, the Allculiany range ; and b.^-oud the be.ghtot land-between that and the Ohio-the.x- was a dLsp.it..d .rr;„„„i claune. both by the F.'ench and the English. Therefoi-e, at this tim "it was insisted that they snould give up all the parts north of the English settlem, ,,ts inelu.h.ig the portion claimed by the English north of the Ohio ; and it ak',, explains the woid" dependencies "which is afterwards mentioned in the treat v^ Loi'd Aiu:Ri.AUK.--May not all this dispute have ref.,.rence, not so much' to -he discussion between Oanaila and the Hudson's Bay (.'onipany as betwr^i < anada and Louisiana ? Mr. M'.-CAirrnv.--Xo, my Lord, J will point out further that it was not ^„ by the correspnmh^nce that took j.lace, up to a ceitain date. Your Lordships will see the point that was settled after the cession, was this; The French ueiv c aiming t.hat the projier boundary was the lakes. The English were in-isti,,.' that the line marked by Colonel Haldimand was tlie line; and it was not until I year heb.re the t.-eaty was sig.uul that this fpiestiuu was appa.-ently settl.d Ihe LoiiD CHANOi^i.i/ R.— That ca.mot possibly bo the case. This is a' con- troversy between the F.'encli and the English, and supposing that to shniifV tl. line ot boundary at that tin.o, the .na.-quis, having his ev.s H.xets lus pr^iicl o.i Red Lake, as if to say. May I go as far as that ■ lien 1 pn.nted to Red Lake, which seemed to me the natural limit, without his making the sligntest <.b|ection." The Loud Chancejj,(>r.— We must understan.l what it is. The statemmt in the letter is that a ce.tain tracing was made, and which I assume to have Invn tliat which you produce from the Foreign Otfice. and the Frenchman lookin-r at It said : lake all the north : take all the north," at which time nothin^/liud been said about Red Lak..> ; and can it mean anything but what is north of that Mr. Mi'Carthv.- That line had not then been traced The Lord CfiANrFXLnK..- 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 towa.'d^the source of the Illinois, and then he did not go back to the * This it not apparent on the evidence. 4. reffirpn'^n '.'. th» '--'M' ah s »ha» th- Term ^ nr in lh«t m.lruu.«.t, ,.. djlferen. rona.ctionB, several times, Hnd i« u,s„d in'ur«" enBe'of ^mbr^^K lu the'DlrtJ o o appertjimmg p he part.ov>Ur country ; " Acadia . . with all its dependenoies,'-' (^auada ^th al "u dependenoieH," "Florida [etc. J, and , . everythinR that depends on " jt"*^""'^'' *-'»«>««'». ^'"i »!' '«» 17G WESTKUr.l- LIMIT OF (AXAlM (.Xl.Ea THE CAI'ITLLATIUS Of MONTI.EAI., 1750. mm current ..r Ih,, Mi„i„irpi, l,„t hv f„ll„„.„l ,„ „ ,|i,i„„e„ the course of the no,;;!, oUh„c lin,., I,,,,n,| ti;„ .lUnoi,? e'„'^;, io'E^la .iu'lflha;' ',' ^ th " '';•■' '""" '«'":■'; .^-vy^u ,vi,i ,i,„i „,,.r. u,« ' ,:. o ! , i * f u tS .>iiill„.ni pail „l Lake. Jl,d,i},„„. That is tho first thin.- He say' EiK/vS:ir-^,z^l-jtt,-S™Sr"|^^^ if I iiiirkf.f) ,. ..•r.w.fi,. i.„ 1 f /^' "'" •'^"*^"^'^''^P^'^'^''K< <^f the Ohio, which hesavs u a not evon be contestetl. "Aft.,- which I rotimied on tiio o her si e of Se lllui,.,.s,andnottancy.ntc that Loio couhl ovon be corUfste-l "- the Ohio is of r;n ; ;'.'- T'.T "V' «^''^tl'-"'^^tof the pt.int that he was a teno o, slv . '?"n'V * "" •"^ ^'^y--*' " 1 '^^'^l t« J""b Here we undoul^t^ll tX tii "0.1 h ot the \ abnche, and puttin, my pencil on the conrinence oit e Lot and he Mi,s.is,sipp, up to this time lie had made no tracinjr .* he hud put his^i^ncU on he HhnoLs. then on tlie Red Lake, and now he takes his penoi'^ an traces- nd where does he start fron. ? -"And putting my pencil on Ihe oonXe cfof 1 Lo,o and the Mis.sisHippi. I trace,] a line again coming up this tirst river "- ha IS the Ohio--" and the Wabache."-lie goes up the OhiJ until he str?ke' th^ H nS '- ~T V"^ JO>n.ng the point where I'had commenced, at the soui" S he V 1 '^^ ^ •■/''''' ^°''*^^«'^'I«, M-e follow up the Ohio an.l Wabaohe then t le ^abache o its .source, tlien joining the point at the Illinois, you will hav "that I Lrr. f' "'/'"' r '^^^■^''':i- '^^'^^'^ ^^'^*t f""«^'« aitemards .1 ewrouiL oUily, a.s iventimUo subin.t. th at that is so : "This line through its dittbient Rfr..mthBmc.ulh ,.f the Ohio, ud the WalLll and7r„r.t"^^ tracing extend- 177 s^:2.r^t.:l^^^^^^^^^^^^^^ 12 (B.) AIU.T.MI'NT OK Ml{. MCAHTIIY <{.C.. n: QIESTION «.K llor.\i»AUY J V wiiiiiiiiu;'<, thoiitjli maili- otMm id. still u'avo liiiii i)|iiity of time," and .so o.-i, Tl,,. rost I have read and I nei.'d iidt ivptat it. 'I'liou tlie !siil)st'(|UL'ut coriv^pondonre, I think, plainly iiidiontcs that. It" vur Lfirdsliips will turn to piij:c ri2l.yoii will tind tliat that i.s the French vifw ,i line '2l^ : " Thirdly, Thnl tlio limits of Canada, with ro^^aid to LouiM^na, hIiiII 1)3 rl, nl, and firmly PstahlishKl, as well m those of ij-)tii8iviii:i and Vir„'iiiia. in such iniiimr that aft«ir the exei^utioii of yoxd- there may bt no niortS ditliou'.tiea IjHtwtieu tiio Iwd nations on the interpretation of tha limits rela'.ive to Canada or the other poiat;asions ol Enj,'laiid."' Then it' you will tnllow that to the next paire — at the foot of the next \nx'^ British answer is yiven . -tlie "His niitannic Majesty will never recede from the entire and total cession, on the prirt of France, witliout any new limits, or any f xception whiitover, of all Canada, vnHi its appurtenances, and His Majesty will never relax with regard to the full and ccMupiete cession on the i>art of France, of the Isle of Cape Breton," and so on. I need not follow that f lu-ther. Then at page 523 : "With respect to fixing the limits' of Louisiana with r-'gard to Canada, or the Kiu,'lisl» possessions situate on the Ohio, as also on the sidn of Virginia, it never can be allowed that whatever does not helong to (.'anada shall appertain to Louisiana, nor th>t the boundaries of the last province shall extend to Virginia, or to the British jiossesbions on the borders of the Ohio : the nations and countries which lie intermediate, an said Mtiiiorial relative to tic Catholic Religion, and to the [lowyr, facility and libi-rty of emigration for the ancient subjects of tlie King," and so on. That is all appertaitdng to this [)oint. Ththi piu'a,i:fraph 2 is: " The King has in no part of his Memorial of Propositions athrmed that all which did not belong to Canada aj^pertaiiied to LouiRi\na ; it is even ditlicult 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, s'lal! lis considered as neutral nations, indeiieinlent ot the sovereignty of the two crown.-s, and servo as a barrier between them If the English Minister would have attended to th" instructions of M. Biissy on this subject, he would have seen that France agreed with P]ngland as to this proposition." Then Mr. Pitt gave an indignant an.swer, about the interference between England and other nations, which need not be read with reference to this point. I goon then to page .''2-i, where the British Minister delivers an ultimatum 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 whatotrer, and likewise in.-'isid on the complete cession of the Island of Cape Breton, and of other islands in the Cull' and Kiver .St. Lawrence, Canada, according to the lines of its limits traced by the Marquis de Vaudrenil himself, when that governor surrendered the said province, hy capitulation, to the British general, Sir J. Amher^t, comprehends, on one sidd, the Likw 178 WKSTI-.m.V f.lMIT (.1' A INhlK •III r . .\nT! I,AT10N or MoNTHKAr., 17.')0 Huron, MiohiRaii ami Superior, and tho anvl iiiic .Inuvii to Kfd '.ak- ''— that is, it t.ikes in tilt' watiTHhcd of those tli ice lak.-ii-- •' lakfs in, bv a i-crppntiru' pro^'n-SB, the lliver OualaoLi, as tar as itH junction with the Ohio, nrul from thencp PXlendH itsdt alon:; theiattfr river, ab far, iiu'hisively, as its inllnx into the Mississippi." Tho LoiiL) ClIANi'EI.LOli.— Hut thi'n that <;;iiiii(.t he the line here, l.ecriuse this lino is prolonged to tlie oouthionco itotweoii the Oiiin and jri-sissipiii. Mr. McCAiiTMV,— S(. it is, my Lonl, . Lord Ar.i'.iMiAHK. — These iife discusaions in JTtJl, tine.; years luifore the final treaty. Mr. M< Uaiituy.— Ve.s, my Lord. The LoKii CliAXCKr.r.ou. — These documents n.pre-ient ^onie cod t'e fences which took ])lace in 17')ii ' Mr. M('(.Ai!THV.-- Ves, or ratlier sul>sei|Uent to 17.')9. The LoitD CllANrKLLOK.— I thought you said they were in 17.")9, Mr. M(('AKTHV.--The eupitnhition was in 17o!t, and tlien from 1750 to ]7()8 they were endeavoiirine- to make the treaty. The Loitit (.'iiAN( Ei.UJit.— Thi.s duciimenc was se!Jt hy deneral Aiidierst to Mr. I'itt ill Octoher, 17G0. You were, I thou,!,dit, su^vjestiirif that it originated in conversations which wore held in 17."!*. That may lie pos^il-ly ii:;'lic. Mr. Mc(!arthy.--So I do, my F/jnl. " " '"" . The Loud (;ilAN-('Kt.Lou.—'I'h.:n, that I'eing so, I point out that the tracing- referred to in this letter to Mr. Stanley, at page 524, cannot he the same, hecan.se that rejire.sent.-- the IJiver Waliash as taken into what was t') he ceded to tJreat Britain, as far ns its junction with the Ohio. Mr. McCarthy.— So it doe.s, my Lord, exactly. That is tiie eourse which is mai'ki.'d on that map. The Lord CuAXCET.LOii — Yes, I see. The Wahash is a separate name, and thim the ( )liio eoines in. Mr. McCaiithy.-— Ye.s. Then, my Lord, it follows down, you see, to the confluence of tlie Ohio and the Mississipjii. ^Vell, the only ohjoct of that was to setlle this ijuestion as to what it was which is cUed n|jon '..he map [fJir Oitlario kiunhriij ii,(ij> of /.v.v^J "Territipry elaimed hy both P]iig!and and l''ranco prior to the surrender of Canada." marked on the map hefore your Lordships. It was in oder to settle that dispute. Then, Article 2 is; " As to what i08p(>,;r.,s the iin.^ to b; drawn from Hio Peidiio, as eontaiiiL'd in thu not(? rtniitti'd by M. Bussy, ot the llSth of this month, with regard to the iiaiit.s of Lnii.niiana, His Mrtie.sty i;? obliged to reject so unexpected a proposition as by no means adiiiissii)le, in two ri.'ii|iocts." Now 1 should liKe to point out that that jir^position of the l-'nMieli. has a» many of these things lieve, a two-fold hearing. Tlie .LoH!) CHAXCEiJ.olt. — At this time, as I nnder.stan 1 it. it was not proposed to i.xKh ad 'medium rihi/ni — to the Mi.s.sissippi, Mr. McCauthy.— No. If your Lord,slii|is will look at page 4;} of the Joint , Appi ndix, you will see the projiosition made, to which the answer 1 am about to read is given — at line 38 or thereabouts. Mr. MowAT— That is in your Case. Mr. McCautiit. — Yes it is, but it is a correct (juotation. We have copied it into the Case in full. This is the proposition to which the rejdy was made on the iith'jr page; whieh I will read in a tnonient : " To fix the limits of Louisiana towards the English colonies and Canada, a line should be drawn which will extend from Kio Perdido, between the Bay of Mobile and that of 170 AU(;I'MKNr cK MI! MCAUTHY, ij V , Vi' (^lESTIOX (iK Hol'SDARY ''I'.'f ll'iW. Poiifiacola, passing Ky Fort TouIouhc in thf Alil»ftiiiou:<. anil wliidi lieing piolongci l,y th'- western puiiit of Lake Krit.', will i-.icIosh the Kivrr of ihr Mi.iiuis, ami hy th' cisti in <*xtreniity of Lake Huron will go and meet ilio ln\'h landa on llie side of Hudsoit's i;:\\. This is tlin l''ri'nrh |iro|i',)sitini). SiK lloiiKUi (Ji'f.i.iKK. — That is tho Kit-ncli pi'opDsitioii. iu <^f of what they wished to secure, and what thej- wished not to cede (* Mr. McCauthv.— No, my Lord. For my part, I am willing to eonct.Hl.' tliat in this controversy the Knglish claim was right, and that the watershed line wa^ thf true limit of Canada. What the French were trying to do, as it appears to me very clearly, at that time, was exactly what the British ministry accused thi'in uf attempting to do, namely, unfairly to cut down what had been ceded at Montreal. The Loan Chanokllok— That was settled afterwards. Mr. McCAHTHY.--That was .settled afterwards— after the cession to Spain. The Lord Cuaxcellor. — Then it strikes me that these previous oonnnimi- cation.s can have Ijut very little bearing upon the construction of the Quebec Act, TakinB the Halflimand letter, Red Lake, as the suiiposed source of the MissiasipiH, wm treateil as the northerly point of the assumed line of division between Cunada and Louisiana. Then, thf vas' ti^- ritorif-H to tho noithward of thnt paniUel, or of the uoitiiri'U wateiaiieil >'f tii>- Miaiuuri— whuw «i>miif-iu boundary ran westward conterininuiialy with the northern timndary of Louifiana ai far aa the K'xky Mountains— wag claimed, and held, by Friuce an a part of the Government of Canada. 180 LIMITS OF FREV(MI CANADA <)N IIIK WIM' XSU N(»R'rH. UVl Illc 't ill.- bewuise that was pas<;eil after tli-' En^^livli Cmwn liiul acMuiivd up ti» tho Missis- sipiti * wliicli at tht! timoof those coiuinnnicatioiis it was not couteuiplated tliat it wiiiil'l lU'.f , , . ^1 i. Mr. MrCAUTHY.— There is im <\U!,'!,'est themselves as to that jwint. The Loitii Chancei.lcu. — It woulil seem pretty clear that Canada, as «letine tlie .>outh by the present United States territory. Mr. McCautiiy.— No, my Lr to Sir Travels Twiss, who has had a gooil deal to do with these matters, and wlio speaks of that question. Sir Ror.ir.Ki' Collikk. — I do not think you can read that usefully to us. The LoiU) Chancellor.— You can only read it as a part of your argument. Mr McCaiithy.— Yes, that is all I propose to do. I'Ut hi; jiuts it far Vietter than lean hope to do. It is at pnges 210 and iW of his br.uk on the Oregon question. " This last lake," he is .speaking of Lake^ Travers ^wtiich is prellv much in tlie hanio neighliourhood as the Red Lake, ' have'been the extreme .southern limit, in about 4.V 40'. Lord Aijeri>ARE.— But the southern linuts of what ' Mr. McCarthy.— He is now speaking of this particular Sir Rohert ColLIEU.— Is this an opinion ! Mr. McCarthy.— Yes, a discussion and opinion given on this (luestion. The Lord Chancellor.— I am not sure that we ought u> allow it to be referred to, because it is only an argument. Mr. McCarthy. — He gives his reasons for it. this last lake would nirt of Hudson's Bay. *See aiiU, p. 175. note*. +If EnBlaiid adhered to the Haldimand vifiw of the capitulation, it appears ti .latiun U, saq-me up t > the Miw.KW- 'roa: the W.iaoi^ n-rthwards. h.* nntf. ii t appears tn have Wen in confonv 174, notet". : In this counsel is under a mi8.. ..ension, i.,r the oon- ".on on behalf of Ontario «;''«' «'^»«^y'*^'^ territories excluded I. oni the capitulation of Montreal, but cedea the Province of tiuelwc embraced certain under the Treaty of 1763. See ante, p. 176, note * 181 AIMMMKVT ....• Ml., mVaUT.IV. (..,,•„ ,v ,^r'KSTI..N (,K V.nVSUXU\ : 1^ ....i!S?,Si:£Snf-TF-^ New FracV ,'../.] t "'"''"", ''"'^ ''^■«'" the province ul- country of ccnSl n^ S^tl ' Sii:;" ; r M^ ' • '•" ^-^ I---^^ --'-^l "P-.^ this sketch : to t sketch which .an in to vr nr T' 'l ■'" • ^ 1'^^ "'^''•1' ''"'"' "^^''^'^^' «'^ '''^' Ml. HLL^xmrn . -\ es first of all, " niono. the l„i„k of the " Oliio Mrvinr "'""'■ ~;^\''^" '"'"'^•^ ^'^ ti'^^ Mis,si.ssi,.pi." Mr. McCahtiiv.-"To the l«nks of the Mississip .i " r^J^e ^rf ~~" ^"^ ""•^^^^^"^•^'- '^'^"" '^- ' '-'- "f ^'^^ Mississippi: .0 Mr. Mo( "AHTHv.-No ; that is j„st where the .litference co.ncs in touch Jd^":tTao^"he^e:n?he"dut"il;;^h'H^ "1?"'=' .^-'^^*'«'' "'«■" -i'ich in ui^w^y jreferencp. " ' """'' ""* ""^ '■he line of the Mississippi, in controversy op. the presiat 182 coNsiitrcriiiN- <.r thi .jt-iuKr A'T, 1774. ississippi, we Mr, Ml (.'autiiv.— Umluulitiilly. The •.-iKi) CiiAMEi i.oit,.— And siuvly ifili.'iv w.to suHirifiit iiin1)ii,'nity iiLout It toiidiuit ol' tlwit ponstriutiuii, ynii cannul cse.iii. *'''""' tliu cojicliisioii timt >hcy wore ri;.jlitly ciiiistriicil. Loitl Auh;uitAiU';.-.--H()\v w,i» tlli^ i-nnst'iiL'il im liiitfly ufLTwanls in tho (ii|)ti()ns ^ivcn in the cnniiiii-isiont, wluin t-vcryt' in ■• was t'n^h ' Mr. ;\I(:('Al!Tiiv." I will say u word JiKiint that pn-i ntly. My {.n-sent t'on- tirition is tliis, tImt if tiir Act of I'arlifihi.'nl is pliiia iin aiv entitled to know in readini; tlio Act of I'aiiiaiiient. You are bound to know and to tiki' judicial cognizance of the yeoi^mphieal jiosition of, and where all fho olonies anil s.-ttleinents of New Fnuiee refori-ed to in the recital were. Hut haviiis; known tliat, then \ take it tluit wo have j,'ot to look within the four corners of tin- Act of i'arlianient, and if there is no nnihiguity in the expression then I suhtmt that thai Act of Parlia- iiient must govern tin (iuestin it. That is the general rule un,ippi, but "banksof the Mississippi," as if it meant the whole of tho entire banks of tht- river. The Loud Cuancei.lou.— You read "the bank" as if it was the point of confluence. Mr. McOautiiy.—Yos, your Lonlships will see at that time it was only one lank that the English h.id. Lord AltEUn.VKE. — It is only one bank of the Mississippi that they claimed. They had only talked about the i)ank hitherto, but when tlioy speak about the Mis- sissippi they speak of tho banks. Mr. McCarthy. — They eouhl not have meant the banks, because that would hiive involved crossing the stieam, and they have no right to cross the stream. Lord AuKHUAiu:.— -No, they cantiot have meant that, auil theiefore there niust be another interpretatiim, and the other interpretation is that it mean.s the coutinoous bank of the whole river. Mr. McCarthy. — The British legislature is only legislating with regard to the British line, not with regard to the other bank wliich is tho French line. 18'i AKlll-MENT OK M«, M( 41UHY, y.C, r« yi.'KSTloN OK HoUNhAKY is citht'i' a clerical error, or it can only he construe I You iiiottii tlmttln- insertion uf tlie wonl is a clin( lui' nortli ' ' it not ciipalile of two nn'aiiiii^js, iliio null Chief .lustieo (leehudl that " north wtinl " inc.,;. That woni links bein;,' the bunlv *. .Sir MOXTAOIK S.Mllh t'rror ! Mr. M<{'AUrnv.- Yes, pos.sjlily. Sir MosTAorK Smith.—You construe "norlliwiinl" to lie Mr. Mo lianks north- ward to the .southern boundary of the territory" — you can hardly deny that it is capable of liein<,' so read. Mr. McCakthy. — That is roy contention ; and I will point out to your Lmd- ship the dirticulties which I :ico in iipplying the con.struction which "ouV LoriJNhip has Just suggesteil. Tho .sources of the Mi.ssis.sippi were not then known, but <>it this map of Mitohell's the .source of the Mississippi is .suppu.sed to be in latitml. 50, longitude i()(J. Now I will a.sk your Lordships to look at that on the map. Sir l.'oifKUT CNjLMEH.— That would take it above the Lake of the Woods. Mr. McCakthy. — Here is a note on the map which 1 will read : "The liead of the Mississippi h not yet ktiown. [t is supposed to arise about, tho 50th decree of Ifttilude, and western I ounda of thJH map, l.fyoud which North Aiiifri a extends nigii as far westward as it does to the eastwiird l)y all accounts " Sir llo'tEUT Coi.LiKU.— It will take it to the Lake of the Wood.s. Mr. McCahthy. — That is whorf they are supposed to be. I urn goiiii,' t> point out that I doubt very much whethei' in tlios' '..ly- that would bo a reason- able construction. I am poin-ing out wliuL appear.s to' me to bo the ditiiculties ia following the Mi.ssi.ssippi, b-causo of ccairse the lv,;i'?lR: u lid not .sti.; .siiorf in itsdeHnition whore the Mississippi was kiiov/u. li that was the proper constni;- tion, the Mi.ssissippi nuist tw followed up to its sources, and from tho.se sources l,> the Hudson's Bay territory. On this map it is marked as on the line of 50^', and as far west as lOtJ*^. Sir RoHKKT UoLLiKR.— What map are y(nj on now '! Mr. >fc(JAllTHY.— [ am on Mittdiell's map. I have read that from Mitche'i'-< * ', . If yrv Lordship will look on that, you will see where that point is. What 't ., -'H j»-..iu Mitcholl s map is this : " The head of the Mi.ssissippi is not yet known. 't r ',U;;po.sed to a'-rf about the .lOth degree of latitude, and western boiuids of Oiiiari.) RliHwed that tlie word " bankn " wax in tlm ontfiiial bill, and had referenca therein t>i the extension of the whole territory of <,)iipbec " wi'stward to the banks of the MiHsissipiii." S»onn«(, p. 4.', note ; post^ p. 18(;, notet. But even t iking the term "westward " najpplicaWe to the prolongation of a line, the word^" banks " would be susceptible, not only of th« interpretat'on put upon it by Lord Abeitlare, but a!sr. .-;. t,.stfiif!ii-hcd by the ia-Si, puiritird out furthcron, that tn.3 navig.ition ol tiio liver, " lU its vv'ii.iif breadth and length," wa^. under the Tienty of 1763, m^de free to the subjects of Great Britain, the British interest extending thiu to both the easterly and the westerly b»nk. 184 MIT' IIKt.l.'s M\l oi I7.V,, tliis map," Tlio weotriii I. .iiiiN of tliis ii,„|) ^f„ to »••*"• iDi!^. Thiit mix in IT-V'? ; tlir Art of I'lirliiiiiu'nt was in 177 V. Tlu' Loiii. rHAMKt.l.f)li.~-V( ly ]'f..l.»il.l\ -(.11... sn.'l, i.lea WU.H in the iriituU ,,I tli.w,> will, .iivw this Act nf P.irliiiin.tit, lM.i-rtu>.., if voii ar.> v'li"'.,' 'li"'^' the liuiksuf til.) .Mi-,,si.ssi,.i,i iiurdiwdcls to tlic -..niHi.in iM.uri.h.rv, tK>rt wouT.l !..■ |Mif.'ctIy iif.iir.it.' if til.- Mississi|ij)i ris.'s within tli.> H'l.ison , May Icrritorv. Mr. MtCMtiilv.— Wliat.strilhi|. will "lo-A ,it tho nm.. at tiiut |.,i.ttculwr puint. it H .|nitt' .■vi.l.nt, I think, tint at that .hit.- ih.- Hn,|v>ns Ij.iv tt^rritorv i-oiiKl hanlly ho known t.M-\t,.-n.l .s,» far. Mitcli- II',- 111^. which h.n h.-".-n refc^irc'.i 1 1 tor oth.-r niatt<-rs, wouM s,..«in to .sh.iw llii.l.soti's Bav .lit not i{.. iw far wont a-* that territory uii.h-r tho chartor. I think th.- lin- on' Mitc-hi'M's nmp i^ tlit- 1 i- that went to Splint l-ak<', aii.l if it w.iit t.. Split l.ivk.-. this iv s.-v.-rnl .lej,'r,-i-s w .1.. of Split Lak.-. Th.- hoi^'ht ..f Inn. I h.ain.lary ..11 Mitch. M'n map is the h.-iL'ht of laii'l whi.-h i^ocs to Siilit Lake. Lor.l AiiKKiMUK.— You wonl.l ari,'ni> that wh.-n th> us.-.l tin- wm|-..1s " th» li.-a.l of th.- Mississipiii,"tht-y kn.-w at any rat..- tint th.- s. aureus of the Mississippi iiiiwt li' on till- .ttht.-r si.lo of th..- height of lan.l. Mr. McCAinilv. — Yes. L'ir.1 AliKliD.vUK.— Tlien, you fin. I it rather nioiv i„ the .south than you expecte.1 ' Mr. .Mel '.vi;rnv. — Yes, and a jifood .l.-al more t. the .ast Lur.l AiiKKDAltK - Ac onling to you, yuu must not tak. it up to the nOtPi (le^'fee, where they supposed it to go- Mr. McC'aiithy.— 1 have not nia.l.- my.s'-lf cleiii. Lord A UK 1; DA UK. -But you must take it to th.- wat..-rsheil. uid the watershed actually turns .nit to be very much to thf. south. Mr. .McCakthv.— Yes. I am now speakin-- only as tot e construction .)f the Act. \Ye must look, in order to tiiid th.- C(.n>tru"ction, at -he knowledge of that day. and we naist .leal with it in regard to that knowlei ro At that" day the source of the Mississippi -was unknown, hut th.- supp )siti-)i; vas that, it went as far to the west as 100' , and as far north as oO*-'.* Sir MoxTAOiM-; S.mith.— When- is lOii^' ' Mi: McCaktuv. — It is west of th.- wh.)le thing ultug,-ther. It is within a very slort distance of the Rocky Mt)unLains. My argument is 1 at parliament would hardly inteml to cany the country of Canada west tj tha point. If \vc follow t'.iat line, that is the conehnion, t'oi two reas..:is : in th.' first 1 ie\ it is f 17fl5 correctly reiu-pgented th- -tate of the ireo- (?rii|ilneiil knowl. ,|?t. of 1774, as renpi-ct^ the point under .firtcu.ision. The Carlo de 1', iieririue Septen- trinnal.-. 1743, \>y tlin atiindar.l geixjruplier IJHllin. in Charlevoix' Histoire do la NouvhUhI ancH shews the »oiir.e ot the Mm.'isiippi in about latitude 47J", duo south of Lie des Hois. In the Mou.u -os dt-g Commis- sairesdii Ko\ et de ceux de Sa Majeatc Britauuiipie, t'ai-i-, 1755-7, is a map, Citt,- d-s !'retentions de» AngIoi-dan»l .Amenound the Hudson's Bay territory. If so, it would be absurd to follow the Mississippi up to its source.'and north to the Hudson's I'ay territory.^ Sir liOHF.iiT CoLMER.— Nothing at all is said in the Act about north of the height of land. Mr. Ml'( '.viiTHY. — Now, my Lord, I will point out very brietly 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^ — exce[it three or four — were east of the due north lino. The French colonies and settlements were at Detriot, Miohillimackinao, Sault Ste. Marie, Fort Mianiis, Viiicennes and other places. Numbers and num- bers of them, which will be pointed out more in detail, were all east (if this due north line, except three oi' four settlements upon the Missi.-sippi, planted tlu'n.' al the time Le Sueur ascended the Mississi( pi. The inhabitants of these, as the histori- *tiee, as to the intention of the framers of the Act, p. 42 anft, text and note. +The .i"-i?nii.(.'iit on belialf of Ontario, y\\mn the Qiiebee Act, relative to this (joint, wn* that the worii " iiorthvya, i " lia'i n-ferenuR, not to the prolungaiim of a line, which tlif tfratnmatical constriietioii w.uM not admit of, but to thr extension, in that diiection, of the whole territory drtalt witli, a-s shewn by the hiHtory of the^e-^'saKe of the Bill throii;;;!) I'arliariient, as if thu Act ri-ad : "All the territories, \A\-vU and countries in North America, belonging to the Crown mi)any'H territory should be met with at the souro' of the Missis- sippi ; and that, in any event, the line fro..i that ascertained point -whether drawn due nortli, northward by a natural boundary, or dtHected to embrace the French posts of the NorthVVi-t -must, »inc», and liy f irceof, the orders in council, proclamation, and sUtute of 17!tl, and tlie subaequertt commissions, be so drawn as to reach the "boundary line'— that is "the shore'— of ITodaon's Bay. :;: Not at all abjurd, for a line drawn due north from the actual oource of the Mississijipi would intersect this particular lieight of Ian ! at about the sourcej of the Severn and Berens rivers. 186 TlIK FUENcn POSTS ny THE WEST AVI) NOKTM-U-KST. pusts of the Western 'locuinent referred to, •cal accounts of the thiv M-ovo vi-.r%. .,..+., n ,i puhiishe,!, .i.nndo,,;;ai ^H^;, ;?, f S^-;;" '"' -';-r" "^*':^^ ^'-'y '-"^ whicM;:;i-t;;';;;;;;;;^;^\;;';^j'S':nE;^H.r;" ""^^'' " ^"^ -"--•'•- '■-■^^ nut in a,?!'^ w'in ■v^^i,!!!!'^ ""T '',' ,'''^'' '•^■'■^''■'■"^" ^^ '^"''^l'"'- P«i»t- Those were ix^sts, l)ut tluMv were no ..(tl r Til ' "i'," :'"'' ''^■:''^,'''''^'' t^''"F"''^'y (iiscoverv of the Wo^f ..■ . t; 'i ■ .'^-^ ''•^'■' "''^"y '"tendod t.. h.-Ip in the SX\\^. em Sea TI^? f ^^' "Tr ' J''^'^^' ""■"• ^^"^ '^ ■^'■anee, was to bea, inehided under one post, are stated as seven in the trom the Governor ot the State of Ni^w York S'' u' n"'" <-'^>LUKR.-Seven for lu>vv nianv posts ? Mr. McCARTnY._l.or all these .seven or .i^ht po.stsf bn- Robert Collier. -One man at each post Mr. McCARTHV.-They had been abandoned ; thev were not Dosts ^ When tlK, cesMon_tl<^ M iilu;ii:::ad^:t:re a^^ M" eniigratiun to the other side of the MislsVu./ r,,nh n . i '' ''"V"''\""*""*"^'""Ji»*f » ^-'isider- P»«.m.g tlie :iuebec / .-t than ><^^ec^\litZTn^^^^^^^^ "' 'he time of .nhabitants wen, agitating for a mL ate form 7i „ ' ",n,l«ne.l. (Mills. ,,. >jc,,, j,, 1773, the Secretary of 8tate, wrote : " Some finn of LXrnnentHe''.?. ■""''';'' .!'" '" "'''"*' '^"^" "anmoulh the t!>.nk that a civil establishment inde,^™ .3. tTryrth'rXhe'Khlt'"' ^"'-^ ""^^ "^""K'' ^ ^'^"""^ venture to ansure you tl;iitthe interests of His M„iBr.v', ''"^.^'''P « 'polonies ,,„(,l,t to be adopted, yet I A,;,,, 3(i3.) This promise was "it ^7,^;'^,;^,^;^,^?; there will not be neglected." Joint a IweutenantCr.vernornf the " Illim, V 1 L t^t in o t r, ™"y"*-'";»cled in the Act of K74 ; i,i 1775, C.nnuiMioo ; an,l n„der the Koya I Itrnc on^t^( m^n or "'^ ofl^.ebec ' « .s appointed by I,„per>a cuurt of juHtice, of inferior oivil ;u, 1 cr ninaro ri^di, t?, .^^^^^ '""'*" '^^""*' V'^^r. a local the province at large. The l.iet. enant (jr/lno; f o 1 ' ■** ™'^'''"''"'' '"•'"■'«* '■'""'• t\m Po,t of the Western H^.v as tlfe forts otX V rf^, vv ? ''1^ hnndn-d at that d;ite. He shews that ivel>- called, was held in t".sHess on and f ^ , ./^fo c^^.'^^f' ^ L n':|.e.ident territory, were collect- <.ther reasons, vi/.,, th.it from it the Engkh f I loHsn, '. «! ' ' i"'*' " ^^■"'f "'iP'irtance also for two Western Sea might be acconipli.shed T)f Fo ce pTa , e 'n'th I uV^'l^'K^ T^ ^'"^ f ^'^'""y "^ *'>« ot the seven forts of the North-Weat enumerated bvhb,L"„,lf''"/'*"''f''''^*^ """ '"'^'«' ■''"»'''« fourth mtereH in its trade, for a considei t on of eL 1. ,1 ' f "'" '"'.'"T'' '" "" '^""""i^ndant with a It had a considerable traffic in sTav 1-Hou^^^^^^ francs atid that besides a large fur trade, Canada, many of these forts remained in u'ssession .Tf H L r ' ' '*• ""'''■' ^f'" ">e cession of .mited as the North- West Company! a id T, ong 1 en I rt de l'^^^^ subsequently became "Mially trom fifty to eighty n en for its dX nee - / 1 1,,; ■ T ' ' ' "''"'*', '■' ''•'"'■ibed in lT7(i as having 'I he mi.«pprehensiou^,f ^.ounse Iwa up ,V ife de , S,f Tw:'"' 'TV,'" ''"^^--ioApp, p. 52.) ^ ^\ o,k-of 17(18. quoted nntr, pp. S2.-^.wlicK reference ;?f?'' T'-V"' ".i'l;', "' "'^' «"v«rnor of ie French Posts, of the troops for the „rotrct„n of tmdtvvir.. 1* ' ''V '"'i •■ ^'"= annexed return ..f .04, shew.s," etc. The return- -relainn.dmfes iL to e . « " ""'",'"'; "^ '"""7 '''"' "''• "' '^e year two sergeants, and four soldiers for ead; fort treX\,>h We fl f '''''[ "■""'" '^'v-tfives one ottioer, "W/c, indisp,.nsable at every post in.t ev el .sivllv ind^^ar a •- ^^ "' ""''''"' "" ""'"^'«" ">< 'he .+./.,, .. " ly i-iiui..ir, , ). I. .,,,:; A(jp. till, ; .V until '■""', pp. c<2-4)' norinYTf.- whlV, '«",""' "' ■')",''"' '»'""'a<"'w> ■" '^Jl, th 187 tune treated of by (Joy. Carluton, supra, note t), nor in 1761, wluii AROUMENT OK MR. m'cAKTHY, Q C, re QUESTION OF HOUNDAUY : livori'd up to the Kinj^, and, al'ttM- the Treaty, the ])r)st.s upon the Mississippi ; hut no one ever heard theie was ever a surrender of these so-called posts and forts in what we now call the Hudson's Bay territory. Therefore, if we want to tjivc a nii'anini; to the Act, which of course the recital is entitled to, and we want to tiu'l what colonies and settlements were to he brought in, and to wliich a civil govern- nient was to lie given and that a Fn-ncli one, we do iind all the settlements he- louging pro])erlv to Fiance. The other alternative, and of course it is not fiue from doubt, !■. to leave these posts upon the Mississippi, such as Caskaskias, Fml de Chartres, t'ahokias — these three posts and small settlements alMUit them — without any civil governunait. The answer which I make to that, vith a goo I deal of confidence, is: Was it intended by the British Pnrlian)ent that from tin- Wabash, where Vincennes is. all that intermediate country, which now forms tlii' •Treat state of Illinois, and beyond the great state o!" Illinois, was to be brought m under the French law and made a French settlement ! Of course, all these three or four small settlements whicli were there were being deserted by the peo]»le goiii^ to the French side of the river, because although ceded to Spain in 1762, ;'iu ces- sion 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 c not apply to it. That would have equally reached the Hudson's Bay territory. It would have reached it in a much more natural course, and would be much less to the north-wost than the Mississippi as then understood, or even as it exists, would be Sir MoxTAOUK Smith. — Do you contend now for the due north line on this map ' Mr. McCauthy.— Ye.s. My ai'gument is this. The more difficulty you hav,- as to whether you are to bend to the east or the west in order to get to the Huil- son's Bjiy teiritor\-, the more certain it becomes that you nnist follow the dur north line. I say that the map, and its history, and the circumstances 1 Imve nn-ntioned, indieati\ as I venture to say (with some clearness to your Lordships I trust), that it would be more in accordance with what we cm as.sume to have boeii in the contemplation of the British Parliament at that time, to have followi d the cour-e of the lllimis than it would l)e to bend to the north-west and follow the course of the .Mississi])].i. • What then is left i' Is there any other left except tbr line solemnly determined by the Court of the Queen's Bench, in lH18,as thepiuper boundary, that is, the due .iorth line ^ I suppose it would be hardly fair to coiuniit tiie Chief Justice to tlie report of the case, which may not be full. This would lie 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 i)roper reason for followijig it. SirKoHKRT CoLMKU. — The due north line would bo the shortest. Mr. McCAltTHY. — That is what I contend. It depends upon whether Hudson's Bay is nearer that ]ioint than the other. Vou might reach the Hudson s Bay on the west line (piicker than ujiou the due north. But for the present, I will leave that part of the subject, and come to what 1 contend on the secomr point. tiu: •See ante, p. 187, note* 188 M TO f .RST EirECTUAL UISCOVEBV AND SBril.EMEST OF IIUDSOSS BAY lEKKllOilV. .lr,»n'!LvoTu.?W ™l;',h,"''" Vr,' "'"""' t""l"--M°n " 'hat this line. »l,ich i, alKHit ,'JO or 20 n.il,..s wost of tlir line.* '^ ' ^'^^'^'^'^'^ extends Now my second point is. assuming the coi.stna>ti.,n conu-ude,l \'ov on fcl... Mr. Mo('AUTMV.-I luulerstund th.ro is no dispute upon vlutt Then it U'comen a most Hiiportant que.stion in this view ti dot.M- nin. wtre s the sonthern boundary of the Undson s Bay territory. Until wi> i< n w at 1 ^1 not know where to stop with the north line, l^n regard Hu Z.' Ba the ns. who had then, we .ay. nnquestionahlv Sdhur to lustory, been the d.scoverer of Hudson's Bay. and thJ adjoinh.; tc rHtor had Mhatis known ,n m er.iational law as an inchoate riKht' to pre e tint bv settlement.: To the .liscoverers of this continent, or par^l of it, followed bv^ttle^ .nent, the country, according, to the arranos.session of ii.\ portion of territiMy wliich we say was ;j,ranted by that charter to th.' liudsoii^ Hay Company* So that, prim (( /Wc/c, and at all events as far as the Crown and people of England are concerned, that charter, of its own streni^'tli and force. altliout,di not binding upon foreign powers, did give to the Hutlson's Bay Com- pany all wliieh on its fact^ it piu-ports to grant. Tiiis, I understand, is the ditier- ence between the international view and the miiidcipal view, so to speak, Muni cipaliy s})eaking, that did give all it spoke of. It might be tiuit a.s against a foieign country it only gave wliat it was in the power of the King to grant, but so far as the municipal law goes, so far as Gteat Britain is concerned, it did grant all which on its fa^e it purports to grant.f Now, if I am right in that, that that was the etfect of this grant— let us see what followed ; and 1 propose to divitle my .statement into three or fom- ditierent periods of time, and to trouble your bord.ships as little as po.ssibte with reference^, though I have them all here. My first period of time J have now brought to a close, and that is the date of tlie cliarter. Tlie .second period of time is from 1(171 to 1680 and daring, that time, but only commencing after 1080, the French were fighting (although peace at that tiuu' prevailed) with the English in Hudson's Bay, and in point of fact had captured all their forts but one. They had actuall\ driven the English out of these forts, having come overland from Canada. Thev had succeeded in driving the English out of their forts, out of their positions, oiit of their settlements, ami they liad occupied them, and were then in po^se.s.sion of some of them. iUu I should have mentioned tliat during the early part of thi- period (and it has always been made a strong point in favour of the Hudson's Biy claims) the Frencli acknowledged and acquiesced in the Hudson's Bay pos- .sessions. They (lid not dispute it. .So the claim has lieen put forward on l>e!ia!f of the Hudsosi's Bay Company on two grounds, tir.st, discoveiy an.l .settlemon*, and sectmdly, ac(|uiescence by the French,:^; who pretended to be equally * There in n iiiaa^ of evidencn in the sevHral Appendices, wherenn Oatario'.s cintention in f.ivoui- i;f an adveiiie ])ii(jr title ;mil puKfeasion (in the p.irt iif France \i l)»9e held t) enure to tlif- benefit ol the ooinp.any, and the Crown, or the I'arliament, a^i the case ini«ht bo, was free to dispose of them in enlarjfiniT the lini;t«i of i,lUBbac, or of Upper (^'inada (as actually happened), or otherwise, as it mi)fht deem fit, without rei;ard to any claims of the conijMny. Further. a« a matter of argument, even it thi.' Clown had choien to still recogni/.e in the company a title to the soil, it was competent for it— lonkim; at the question as one of buunda;i-y merely —to place tht territory ivitliin th.' limits of tlie Province, and to thus extend to it the jirovincial laws and g ivernuieut. In this connection it will be remomburod tlinl ii.it- withstanding tha charter, the Imperial Acts of 1803 ami IK21 extended th« jurisdiction of tlie Canadi.in courts to the admitted territonea of the company, the latter Act also providing for the appointment Ip ..'u Croitn of jmtices of th3 pear;e within the same territories, and for emiMiweriiig any sucli justices, by com mission under the (iroat Seal, " to sit and hold Courts ot Keaord for the trial of criminal offences and niis demeanours, and also for civil causes." + Ontisrio shewe I thut there waa no valid claim on the ground of either discover}" or settlement, and that there was no evidence of such aciiuiescence. On the contrary, the evidence shewed a total denial .f, and armed resistaace to, the company's pretensionB, by the French. See appendix B hereto. 190 TliK.M V OF tlVsWK K. i{\{)'i y ir..o.l terms witl, tl,. Ku^^l sh-tluT.. i^ . 1. , 1 V^ "'V'"'' '''f' ■" ih.' tin,.. wlH.n Hail.-v was Go^lvZ 7C h:\ 7 ^V^'^^^ ,k.lay your J.o.J.hip 1 uill p« n , t ft ! , "^1" '■' ^ ""f""^'- .^'^ ^' lH.sossk„>.' I)nri:..,H.Ht peri-.,!, fron. 1( S( o s U I. f f 1" 'i'T'"'" "' '"' -n-eh distiulv.i, an.l tlien. i„ ].;s ;. w have tl oTr^ ; .^V 7 ^"^''''^ ^'''^ ^'''''^ It was 1..8c..-l.i^,i was U.e Treaty c^ Ne, Si v-^6v \^;i' rV:"'"^^ .l..,-laratiou o^ war. Darin, this sl.ort period In aln. t^v.:: .?;:^t ^^^^^ p.ulence whicli is put lu as part of tlie case shew-, to setfl. K^'i 1 . • 1' then existed l.etween the two countries. I vi irac it 1 .f'\T'" ""''''^ Lordsldp. I clo not know that very n.neh rIdh'Zelle t 1^ ""•' " ^""'" Ah' Mr(^ui^?v''ltT^t" 15 'T^^'r^-- the southern boundary. •Ml. .MCLARTtn. — It shews the Hudsons Bav necnlo iv.>r.. ,,i,- • i ^ they have all alon,. clain.ed, narnelv^ tiuu th -y w. r •utitl d o t 1''';^^^ T -^ tory .h-ained by H,idson-s Hav.^ Tiumi coui-s the Tr.^K f R 1 i ■ n *''!''"'" that. That .as m 1..7. fl^W wer^ leaf^'^^'i^^^ . f^i;;;;;! ^5^ ^^l mourners by the peace. 'Tlmt did to a certain extent leave thlm in an unc!"!;' 'Sep ciH/f, p. ItK), notet. tTHCVrY OrNKlTKU.ITV, IIKTWKKX r.(H is XIV (if Vi, i v. •■ . v,, r rr IV. It h«« been agre.-d that fa.l. ..f , l said Kmgs si i 1 aw n ; m''m I' "', ^-^■'^'-^^■". ^^^<>- '•minPncc. in the ..eas. .straitR a„d otl.er w.UerN o Amerl' a , in the '^ ' I' >lo,m,nM, nV'ht. a-i.l pre- t- the.,., a.iJ ... the .<:v.u.- way they e.ijoy thetn at present ' '''''"*" '^'"-'' "^ "«''' ''8'''''«« : It i» in evi.ience :hat i.j such claim h;ul the., o.' for a lnn-■ ''^'"■*'«'' «.ahw,.Htob.the .vsultof nei Hiid,,on-.s i2av. * - ' 'sertin.^ a . i^ht to all the co:intr.e.s the w.iteij of which .ti;:^!;d.S*l^^^■^='^i^:f^x^r;j;:!13^i;^^ frmn l'ar,8, in 17l!l. in refer-.nne ther to ■ ' I a ret «c ■ ^'.m at?^^^^^ """,''' ^'"'' ^"'^''y "^ ^^''-'-''t, wrote te.nt; at U:ut th , d.lferonce of two de;. ee. b' twel ^he C S '" ""' «''^,""''t""' "[ tl'i« alTai;, there deh.ered ,...• No nettlemmt of the U.ndarv Wal be '.u.-fved -it '" """' '^'' '^'''"-■" ""' ^^""''«''°y Komilly. Mes.sr«, Cr.,ise, lloln.y I, .ic'arl tt'anrl ellfn^ v^^vTthiSt^rvaiid^nPt^:^;^;;;^:^ ^^^i^'i^ ;:^Ki.^t^ i^fi^i/^r"'""vH '^'^^^''^'^ -^^--^ in ether i.ni,ortantpiirtic..lar,s." "'^"^"'^^ 'fie inrteho.to nature of the territorial grant, as § PiiDted an'(, p, 112, note. 191 AlKilMKNT OV MU. MCAUTIIV, Q.C., IT QUESTION OF HOl'NIURY : fort a.le position. Tlw.t ^vent tr. tl.is oxent. It has already hj hi r.ten-nl to l,y tl o c.tl.er sido It spoeificaily stato.l ti.at tl.e fnrts that bad !»■.,„ tivkeii .y l ho F.rncl, fro.u tl.e Kn-lish. even althouoh in *.inie of r^aw. a->l wero ivtakcM. by M... Ei.illisb durinj,' tlu- onsiiin^' w.vr, sbonkl be roHtoriMl t.. the hvDch. Ihat imit <.t it is at the to]i of pa;^e 4^!> : "Tho Most Christian King Hl.all restore to thosaid iving of Great Britain all (.•o,.i,tiu.B, islands, forts un.l colonies, wherosoevor situated, wliich the English did possess 1., fore tl,. d'cl. tion of this present war. And in like nmnner the Kn>« of Great Brn.n, ..hail reMo-e to the ,nost Ohrislain King d11 countrieH, ish>nds, forts and colon.e. wheresoeyw fiiumted which the Fren'h did lumsfss, hefore the declaration of war, and this r>M,itution shall h' made on Loth .idr,. within tlie >^pace of six months, or Hoonc^r .f .t ean Ik. .1;.,,.. And to that end, inune.liately after the ratification of thm treaty, each of the s*k1 K.n., shttll deliver o, eauso to he delivered, to tho other, or to commissioners authorized in In. name f.r that purpose, all acts of concession, instruments and nece.Msary ord.. duly made and in proper form, so that they may have their eflect. _ ^ . 'ocmudssionerB shall he appointed on both .ides to examine and determine the ngn . and pretension, which either of the said Kin.s hath to the places situated m Hudson . Bay^ butthe possession of those places which w..e taken by the hreuoh during the p.|:v.. that preceded rhi8pr.,.ent war, and were retaken by the English during this war, .Indl .,- left to the French by virtue of the foregoing articles." That I think, is all. "The capitulation mad., by the Kn-lish .m the .Ith S.-pteinber, 1095, shall be observed accordii.e: to its form and tenor. 1 Imt, 1 d^ not think /tv.plies to this point. Then, the Hudson's Bay Com,. any were eNcec,b h .! - dissatiUed with this condition of atiairs, but iortunately tor the,.,. tln,< treah- I think, never was carried ont. These forts neve,- w(,.,e actually ilelive.v,] up' Tliey contintied in that way, tlte Hudson's Bay Co.npany representin, to their .'ovjrnment that all tl,at was intended to be given up were the forts, that itdnfnot atrectthecountvy; f that if tho country wa.s the,,- that .Iraine.) u,b) Hu.lson's Bay,: this article of ^^'^ treaty, and the treaty itself did not atkvi, ,t. That was the English contention, but that the most that was to be conceded uciv the identical parts and places which had been taken by the I'reuch durin^ahc preceding peace and Inui been recaptured by the English dunn.o; the war ^ Then follows the next war, which was in 1702, thei'e hem- about five years between the two, and during the live years there was an opj)ortun,ty tor the Hudson's Bay l)eople to state their claim, and the-re was also an opportunit> fo, the Enc^bsh authorities to set forth the view that I have sT,oken ut, wluthc riuhtly",r wrongly I do not stop to consider, because 1 do not think it ,s ot vcv ""''S'thXdsons Bay Company reply to tho Fivnch clai.ns arisbig o,it of this Treaty of Ryswick. U your Lordships desire to look at it you will hnd ,t at page 5 o^tlieloint Appendix. I have Uated, 1 think, the effect of it aj. , J .s Lt ve.y important, at all events in the view that I contend for. I wil n h trouble yo,ir Lord.ships with it. except simply just giving you the reference to it. Then comes the war of 1702, followed by the peace and Trc.tty ot J reel t- the all imi^ortant treaty, in the view that we contend tor, '^^^'''"'y.^^'^^;^; '^^ the Hudson's Bay Company s claims. And first, perhaps yoin- Lordslnps will look tt the negotiations whld/led up to that peace at pages 490 to ^94 «o far a. d concerns Hudson's Bay. 'The plan of peace, 1712," is at page 494. The p:o- ^"[Srthai clmission ers shoukl be ap^ited in order to settle the disputes is '~^.'.;;;i7;rthe fort, remained in the comp»«,'8"hanJ.. ThVothers, together with the whole interior country, were in pofsesaion of the French. (See po8(, p. 19<, note,. , „. , , t This conte.u.oD was really that of the French, and in reference to the Treaty of Utrecht. t But no portion of the country, and but one isolated pn.st, remained theirs. 192 CONSTlU'l'TION OK TREATY OK i;tHK< iiT, 17I.S — SKOOTIATION.S PRIOR TO TUEAl V. the whole inteiiur found at page 49"), where the articles aiv niavked (J. ♦!, U . 7, and so on. At the top of paj;e 49"', it says : "The King will jjjive up the provitv.'O of Aai'lia, with the town of Port Rojal, and its di'penilbiioies, to Great liritaiii, as also the Straits of HuiUon's Bay." TIk-'II, upon tliat : " England demands that tlip town of Piacentia rem-un in its present state. That the cannon and warlike stores in Iludson'ti Biy romaiii for Eiiijland." Tlicn tlie reply of France : " flis Majesty offers to lot the fortifications of Plaoeutii rfiuun as they are, upon giving up that jdaj" to England; to u )risi.'nt to tliedeuiinl iiudtt of tii» cannon in Hudson's I?ay ; and, besidfs, to cede the Island of St. l.'.artholoniow," ami so on. And then iulicli' O. says : " After the pfu:i\ commiaaioners .shall he appointed oa both sides, to a.scertain, within the compass of a year, the inuiidaries of Umadaor Xew France, on one side, and tliose of Aoadia and the lands of Hudson's Liav, on the otlicr, and to sittie in a friendly manner all just and re.isonahle reconipensfs, " and so on. SlU RouKKT Coi.MKR. — That, I understand, they never did. Mr. MrCARTMY. — That 1 sliall lmvi> to say a word ov two ahont, hy and hye. It is not settleil detinitely whether tliey did or die] not. Tiiere i'.^ a <,fooi.l deal to lie said on hoiii sides, that is certain.* 'I'lien, at page 4!t>s, theru is this, which is from the report of the French pienipotentiiii it s to the King, April l.Sth, 1712 ; " We have made every possible itl'ort to regain Acadia, or atleist to retain Newfound- land, but it ha.s been impossible for us to conclude the matter They (the English j)leni- potentiaries) have protested a hundred tim-es that they had express orders to brnak otf the negotiations rather than to give way on eith^^r point, or upon tlut of Hudson's Bay, where they claim even the cannon. We should mt luve taken their word foi thi.i if the Sieur Gaultier had not contiruied what they said." Then, at page .'jOU, comes the corresponilence with rc'i^ard to the nse of the words "restore" and ''cede." The Entjiish were claiming that the word "restore" .should he used, and the Frencli that the word • cede" slioiild he used.f " In the name of God, Sir, order your pleuifiotentiaries to he less excellent gTammar- ians. Ours, who also nmlerstand the fijree of Latin expressions," and m) on. Then "the IHh (lOth) article of tlie plan imports that the King- slialj give up to the Queen of (Jreat Britain, Hudson's Day, etc , in the manner tl.ey are now pos- sessed hy the King atid the French. " Mark that, my Lords, " in tlie manner tliey are now po.ssessed by the King and thi; French," that is hy botli parties : "The plenipotentiariesofGreat Britain insist that it shall bn expressed that France shall restore not only what has been taken from the English, but alsj all that England ever pos- sessed in that quarter. This new clause dillers from the plm, and would be a source of perpetual ditficulties, but to avoid them the King has seat 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 may easily agree upon this ' The evidence iJUt i: beyond coiurovtiiy that tin- limits wcio never settled. This is aciiiiilted by the Hudson's Bay Company in their iiiemoriala of 1730 and 1"5U, and the Uuc de Ch(.iseul makes a declaration to the aaire effect aa late as 1701. t !^ee extracts ante, p. 113. See also M. de Galissonniire on thia subject, ntitc, p. 119, note. 13 b. 193 ARQl-MKNT OK MR. MCAUTHV, (.).C,n' <..rESTIOX of liOCM.AUY point on both siIps. If, howover, thero shoiil.l be anv ob.Btucle which th.' plenipotontiari. s cannot r.-movo, the (iecision must be- rtferreil to ..oiuraidsaiifM lo be niiai.Hl for the iidkut rannt of tlic bountl.irips of Aniorica.'' ' TIi.'ii, passiiiM; on to o04. uv liav.' the treaty; iv.u\ tliu lOlh article' of tin- tivaty is tho one in uiu'stioii wiili lei'urd to tiiis: 7. .. '.' ■^''" T Christian King shall restore to the Kingdom and (,)aeen of Great Knain to ba paKs-ssed in fail ri-ht forever. th>' I'.ay and Struts of Hudson, to-ther with Hi lands and seas, ses coasts, riverH and pkees situate in the stid bav and slraits and which belong thereunto " — " ' Your Lonlsliips will see, in the note, wlnu tlio won' wori\ It says " Thetf^ were two originals of this treaty, one in Luin, and the oth ^r i'l French Tiii. translationiH that published by authority of the Enjrlish government, at the time Th<' expression here rendered ' and which belong thereunto,' is, in the Luin copy, ' Hpectanfdm ad eadem, and m the French copy, ' «< llm:v >/ai en depvident.' " ■■' *- v I render the expression " spectantihus ad ,'aUem:' as iojkin- in that .liropti.in Ihey first speak ot all the lands ; then follows, looking in that'direction-lookin - 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 posse.ssed hv the subjects of France. All which, as well as any buildings there mvde, in the condition they now are, and likewise all fbrtresses there ore.:tod, either befo-e or since the French seized the same, shall, within six months from the ratification of the present trcatv or eooutr if possible be well and truly deliverad to the British 8ubje:ts hiving c.mmisdou from the Queen of Great Britain to demand and receive the same, entire and undemolishcd togetbeT with all the cannon and cannon ball which are therein, as also with a (iiiautitv Of powder, if It be there found, in proportion to the cannon-ball, and with the other pro visions ot war usuaUy belonging to cannon ft is, however, provided that it may 1,. entuely iree for the Company of Quebec and all other the subjects of tho Most Christian King whatsoever, to go, by land or by sea, whithersoever they pleas ^ out of the lauds of tlu- nfllCl t)ftiY — — I call youi Lordship's attention to that: — " o.jt of the lands of the said bay ; together with all the ir goods, merchandizes, an... and ellects, ot what nature and comiition soever, except such things as are above r.'ferred to in this article. But it is agreed on loth sides, to deter, oinn, within a year I v commissarifs to be forthwith named by each party, the limits which are to be tix^d between the said Biy of Hudson and the places appertaining to thi French." Now, with deference, I beg to submit to your L >r to Fort Neni-on Vom- Mv.nn 1 nf ^^' MnicCA^rnv'^Jve:"'''^"'" '''' '' '^ ""'''^^ H-i-- B:;: t^lSl',;;;"^ "' The Lorn, CilAN-rKiJ.ou -And not witiiin Canada ^ Mr. McCauthv.— Not within Canada. ora^ n'^w";^t5;;nrf''l''r7 ''m"''''''^ "'^ '' ''"^^' ^''^'•" '^ ' '^^>-- 1---"'-- era.iaiiow HtJuuus, 1 shoiiM I'ather .siav ' landatl'tluItplaS!''-''"' """^ ^'^ ^''^ l-""-" ^"'-^^■-' "^ "'>^ '-^^''t of The L..im Cl.A.N-cEi.i.ou.-That is your ar-un., ,it ' Mr. McCAiu-iiY.— That is my aro-ument. by the HuT.n'^''H''''HV'''' •''^^' *'^'^^*'^" f^^'''^ ^'•'-'^•^ l^'^'l '^'^'^n actually settled b>Jh e Hudson s Bay Company , ^sonWjvhich ha'ii built. Thf-n tli.Ttt is a fun fallcil Mouse Fort. I will not sj.eak of tliut, bfcansi), |MTliups, that was not luuli till afterwards. The Loiil) (..'HANi'Kl.I.ou. — 1 did net btd'nr.> know liwit yoii oliiinicd, a^ iiait jt the Hudson's Buy territory, any part of tliat »viiich is culdured rosr. Mr. MiCautiiy — IVihiips your f-ordsliip will allow nio to hand to you this map, iis it slicws thi' hei^dit of "land more dearly marked upon it. In tin iiia]. tliat'your liordshiii has, the height of laml is coloured, l>ut, it i> not so cK-ju-Iv detined as it is in this one [hanU'ouf ti c.opn ofilie Oithir'in hiHiixdir;/ iioip af i.V.v; to flic. Lord Chnnrdlor], The fiOKi) Cham'KI.i.ok.— The arj:runicnt is that the ro.se-colourfd part in tiic interior belonged to the Hudson's Hay Company' What »imp is this ' Mr. ^^'CART!lY.— That is th.' Ontario map, on which t'n- hei-ht of land is more clearly marked. The LoliD ClIAXfKl.I.OK — The heij^ht of land, and tle^ wateis.ieil ? Mr. McC'AHTllV. — Yes, it is more clearly marked, that is all. 1 will satisfy your Lordshi[» tliat my claim in that res))ect is rij;iil. Th.' Loud CliAN'CKI.LOR. — You say so, but yiair opp.mont did not concjik- that. Mr. McCAUTfiY. — I ilo not know that h.; not know ^vliere exactly he ptit the Hudson'^ Hay territory. 1 list.-ned to his ar^uin.nt, an.l I could not make out where he put' the tine of the Hudson's Bay territory. Lord AiiKKhAUK. — It appears to me tliat t'^e Dominion, in their .'nlargenicnt of this Manitobii prf)vince, violated thciv own original grant. Mr. Mct.'AKTHY.— No. Lord AuKHiiAKE.— Did they not? They gave yon a certain portion of iho south side of the height of lan.l. Thf Loni) PuEsiOEXT. — Yes, that south-eastern corner. Lord AMKiiDAiiE. — Yes. Mr. McCarthy.-- Vour Lordship sees, in.st-^ad of stopping short at the height of lan.i, they took the Pigeon River and Long Lake,t and the other wat.'r communicationi, a.s lieing the nior.' convenient b;)undary.:^ Lord Akerdare --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 lin.' jn-evails, between the height of land and the -lue north line. That is what I spoke of y*.'.ster.lay. The Lord Chanckllor. — However, you have nothing to found the arguiii.'iit upon, about the height of land, except this Treaty of Utrecht. Mr. McCarthy. — That is all ; and the claim, which was move clearly and distinctly made afterwards, I will come to in due course. Now, your Lordship.s will see, that at that time the Hudson's Bay Company had forts at Fort Rupert, at the mouth of this very Albany River, at the luouth of the Churchill River, much further to the north, and on the Severn River, * Tho treaty provided that the "Bay and Straits of Hudson," together with the lands and placa "fitu.atein the said bay and straits, and which belong thereunto," should be restored, but that wiiimis- saiios should fix the limits " between the said Bay ..f Hudson and the places ai>pertaminK t.. the Wen.h u,nU u 112) It dei.ended, therefore, on tho decision of the commisxanes what land* and places slionlil \» "restored" • and the French view is set out in the papers of d'Auteuil and Galissonniere, respectively, Uinte, pp. 119, note, and 169, note +) and of Lamcthe-Cadillac (Joint App. D13). t Long Lake, on the line of the internationai boundary. See anlr, [j. 7S. 'Not for convenience, but as a prolonRation of their southerly boundary to meet the due noith liii' for which, in disregard of the height of land, both Manitoba and the Doininimi contended. COXSTItlciIoX OK TtfK IKKATY Ml' rrUKCIIT. 1713. t of Idini is rtiun of tlio which is between tho ('l.iinhill >uu\ th. Alhany, so that the line of forts iinJ pnstM f'xtenilcil oil HiKlsoii's Bay from (I iicfd imt trouble your Lonisliips with th.' east) this ixMiit iiortli of tills l.hii' lino, whicli is ciilhitl Kort Rupert, t.) the Churchill -t Danish Uivt-r as it is oillfd, iiikI in point of fuct I think, sni - Htantiiilly, they had the nioutlis of all tlie iinpnitaat livirs, which dniin into thr Hudson's Iky, <;ven at llmt dab' • Also a fort at Kurt ilnurhon — or York, or Nelson- at th.' iiioutli of the Nelson. There i.s one at the month of the < 'hurdiill, one at the mouth of the Nelson, and ono at tho moutli of the Sovern, ami the Albany, and Fort Rupert, all which forts had Imvu taken arid retaken, and were then occupied eitiier by the French or the Kn^lisii, and were to he reHtoie.l according' to this treaty, with nil tlie lands .ippertaiiiin;,' therolo— " which bolon.;,' thereunto," to use the Fnijlisli translation ,d' the treaty— to the Kni,dish !»overn- ment. 1 sulnnit, upon these facts beinj: stated, with" the interpretation of tlio treaty, that the result is that that •,fave, at all e\ents to that extent, to the Hudson's Bay Conn any 'dl that wa.-, drained into the Hudson's Ba} — the terri- tories which were embraced by those j.articular limits; and that all that was left, by tlie same articlt> of the treaty, for the commissaries t) do was to mark oat the limitary line — not to di'termine the prim iple upon which tiiat limitary lino was to be fixed, but to mark out that limitary line, ,so that it .should afterwards appear that the French .should not come iiortii of it, and that the Knf,dish .should not po south of it. What both parties were strnj,'j,diiig for at that time shouhi not be lost si<,'ht of. What they were strufr>,dinf; for was the Indian trade. What the Fngli.sh complinned of was, that the French came north lu:re, on the upper part of the rivers, and the Indians who hrou^jjlit the furs down to our forts and factories at Hudson's Bay are interceptctl by the Frencli, and that the trade is by that means got by the French. The .same stnt of thing was said by the French, " You get the Indians that come to Montreal and (Quebec." And I think this correspondence, which J will refer to [ireseiitly, proves, that the oidy duty of the commissaries wns to mark that line, so that north of that line the French would not come, and on the .south of it the English should not tiesi)a.s.'*. But the boundary, I submit, is to be found in the four corners of the Treaty itself, and we are not reiiuired to go further. [Adjoarncd till Sadtrday, July f'Hh.] FOURTH DAY. SATiiiiDAY, July 19th, 1884. Mr. McCAnTiiv. — 1 now produce another maj). Lord AuKHDARK. — That map is coloured so as to shew the claims of the Hudson's Bay Company ? Mr. McCarthv.— Yes. The Lord Chancellor. — The part coloured dark purple is that part which I suppose is disputed :' • Tliirt in a misaiiprehension, The cniiiiiany tlien hold only one furt, Albany, the Fiviich having been ill possession (if all the other furts for a long series (f years : the French were also entitled to Albany under article 8 nf the Treaty of Ryswick, and it liu 1 in fact been in tlnir possession for tonie 8i.\ years (.foint App. 680), and when it passed from tlieiii they p.iralyzsd its trnue, leaving it only a burden on the company's hands. The conip.iny, in their memorial ro thH fiords of Trade, in 170J, and in their petition to Vueen Anne, in 1711, set out these facts, adding that they are " surrounded by the Freooli on every side, viz., l>y their settlements on the lakes and rivers from Canada to the northward, as also from Port Nelson t) the southward. " (See also appendix B, hereto). W7 AlHilMKNT up MH MrAHIIIV, t^MV / c (^IKMTloX ur llorShAHV Mllt'fl Ml- .NUrAiiTiiv — •Yo'« 'I'lic l,'ii!ii ('iiAX( Kl,i.(tl<. — \'mi lultiiit (liiy \iiui)ifiiifi\ to Ipo Oritftriw' Mr. .Mr("AHTllV.--Vt"<. Till' L()l;l) < 'llANCEI.I.nli. — Tlint >,i't him to tK'|iiIl'l mm tlir tlicniy lit" the svatci- Mr. Ml f 'Ainiiv. — .Yi'S >Mr lvi'l)l.i;i' I iii.i.iKii. — Y(i\i n\y I'jiruula has oncitim'iI jiin-'ilictinii up (., wliat isenll.'il tin- licitrlit nf liiuil ! Mr. .\1< CAimiv. — VoH, Till' Loiiii ' 'ii \N('Ki.lj)li. — We Imvf notliiii;.i to tlu witli unytliiiii.' that j,mos I'mtliiT tiiNt than tluf boiiniliiiy of the yellow liiml claimed tiy Maiiitoha ' Mr. McCahi'IIV. — No, The oiilv ohjict, of course, i>< to Hiul out th" wtst lim' Now. u»y l.orils, when your LoriiNlii|is ailjouiiied on Thin.silay afti'inoun I liail reached the point in the histoiical narrative that I was euileavouiini,' to |mv- hent to vou, of tin- 'J'reaty of Utre "lit, iind the be.uinj; that treaty had upon the t|»estion AN to tlh' limits of the Hudson's Hay lauds, .so far at all eveivts as that i\ the dealin^'s Ixtween tlu' I'reneh and KiiLi'Iish. I had Tiiadc WHS deteinunei .some reference to niatti'rs whieh 1 had not at the moment perhaps j.^iveti \i-iir Lordships proof of; and I ifropose, in the first jilaco, to ji;ivo your Lordships ihr proof, as lirietly as I possihly can, of the more important events tip to that datr. I had divided my statement, ns I tliou;iht, in a manner which would make moic easily undeistood what J ired to'say with referencf to those perioiLs of time In the tirst jilnee, up to the time of the charter, 1070, J think it is very «videii!. and I was willin;^' to take it fi'r granted at all events, that the Enj^dish had been W(,u!d ju-tnow present to your Lordsliip> I is the discoverers of Hudson's I5av. and 1 a maj) called Sanson's map — a very early map jaejiared Ity the Frtnch J dated l(»o6. This is a photOLrriph of the map [proiluclv;/ sitmi']. It is important in th is view. It sli(!ws that what was reiirardeil in those days as Now France or Canudft was in point of fact south of a li think it appi^ars fairly enough on the lie whieii, I take it fo\- granted, ami I man, N\as as-uimd to be the wiiteish. d line. The LuKi) CiiAN( Ki.i.oU. — The woi'ds "Canada ou Nouvelle Franci art' to tlow into the St. Lawrence. •written alnuist up to Hud*on'.> Hay Lord .VKKHltAltF. — 'I'll'' rivers are all made ^Ir. McCaiitiiy. — Except those going into Hud>oii'.s Bay. The copy 1 think is mueh easier to follow, and i am told it is correct. Jt has been coloured, slnw- ing nuae distint'ilv the ilitlerence brtwtfii the t wo. Tl le colouring !.■> nune. Sir lloiu'iil ('ru.LiKi! Th Us map is oliviouslv very incoirect. Mr. McCakthv. — At that time nothing was known west. All lam shewing is this, that at that date, lOoti, the French acknowledged that the English owned or were jios d of Jill the nortl coi intiv, bv liudson's B w. Tl le J)!!n (,"HANri..Ll.uK -\Vhat strikes me at present is this, that tliej- cany the dotted line, which seeu.s to be tin- northern boundary to ( anada as here laid jown. cli.se up to, if nut in actual contact with the waters of Hud son . Bi IV. -Mr. McL'AliTliY. — Yes. I do not pretend to say that that accurately :ivs down the line. Lord AnitEltiJAUK. — It is intended to be a waterslied line, up to the western •extremity of Hudson's Bay. Further than that we know notliing. Mr.'McCAUTUY. — No. iht'iie dtducti(in» ot cnuniiel. See poiil, i>. 201, note*. tri>!i>:) '.vitli ntlii'r inuns of S;;!;anr., fail ir. Jij-tiiin + There was no eutli acknowledKimnt. Set' jiost, p. 200, note *, and appendix B liercitu. 19S niKSt.lI i>\ > ,. U[, I, .INDAHV DKsrHII'TKlNS ANI> ACfl AL MSSKSSInNH. •aiict" lui' 10 western fail t.r. -Jiuta.;!! ^ir fJnnniTCw!,i.ii:ii.- I),,,,, j,. „,,|,ear ,,i, il,.. (,,(.> uf if to l^c a wut.Tsl.fd lin< Mr .\l« ('Aitriiv. I think >... I.onlAHKiM.AiM.:. ltr.-nllyi^ini>HMiH)ivania|..lolii.ii,i4tl,,:.|i,,,its,.n/il.ni.i..i- on oni" side, iviid ( 'iiimija oii th" dtii.T. MrMd'viMHV- I .1m ,„,t s,iy it is arcMiiMtc a, .1 mar.. .M \ nLjocf in citin-,' It IS tn .s ...w thiit.at Unit ,|af.., fh,. Fivncl. vo-.m to I„ivu .ontiiir.l tiicir Ni-w Kn.ntv or ( .uuKliv to thr WHt..jNln..I uf tlif St. Lavv,f..c...» |„ nmlini,.iti..ti ..f tluit. if yn«r Lonis nps will .M,k at Mu- l.onii.Iary .I.m riptinus in the CMMnn.issions of that .latr fron, tin. M..nrl, Km.; to tiu; Uuvorn..!' of Nrw hamjo, that view is very mud) conhniiwl f "^ rlT''''..''.'''?'!''''''"^'''''.'.'' ^l'.-' thfir ( Hi;,, rlalwul nn „tl,^r liiiiiUou th.nortli ll.an tl.o im.Ih or th- Arctic CirW nii'l on thf wi'Hf, the WVntfin Hhu or thi- Mtc .In Hwt. tliMcimti'titii 11. W mL hot Ll, ^■• V/^ c. .„, m,-.HU,n, u. ,,.'• -"o,, van .i-ly -M.l.r.,...! ,H,t ,,nlv tl,.. vall.v ot ll,. St. pimlWof 62' ■ ' "'' '"'"""•"' '" >'l"'^'««:»lly .lr,..Til,.,l a, .xt,.M,l,n.t northward to thi' tlytUAM Dw.KUT.ONs OK Bo, N|,M,IKN IV VhkX( !1 ('OMMI^HIONs .\M, Cl. VRTRMM. L.b-Jlir l,rKiv'"o, r:r.' '"/'"■■'*;.'■"■""•,'''? "•; ^-•".'*1;'' ""<'''-!^«*. N'-«»vfoun,llan1 (T..rr.,.neuveM. i tlu Ml rov, <-7 1 I ,i r" ' ;""''"f ''" '"."■""'« »">•'•'. "f N"rHul..:/UH, arul tfrritori.. »diac«nt ,,, , . Si.„r ^„m>i,l ,lr (>.Li„tfl, .^lo.i nt d ..!„ dim.,,v, all t.h.' i.hoi.Ih ;irroiiiidiii,s{ c>iuntn.<, and hy thi-. iiri 1 III; oHi..|' li.wnil ' (if llif duid territory and tit »nd h^M! till nilh.uHti.Mii instrn-fd, inc;tr.diindMtured n;. to th- knoulrdK'- and u,- o; Col »nd to t'l.. Unht of li..(;.itholic,A|H«t..'.Mu.dUoMninriith,mdr.'liKi,n, thereto «tal"' ■ • to t.i. I,(?H of ;vn«, to 'iivitt- thera .»nd ihIi it. and 111 it.< pr.^ietici'and iiroloHs- DeTmittin^?!!!' inV^ri' ''''' -"J"": ''^ ""■ '"'"' -^^^"?'""'^ whH..ever h, will jndKe it |,ro,„.r to c.tHbU«h .my ; permitting the Mid .AssociateB, to caH cannon mid cmiuon ball, forge all iiumn. v of otf.nrtive and defensive 199 ARfiCMENT OF Ml!. M'CARTHY, Q.C, rc (QUESTION OK BOUNDARY The LdlU) C'UAXCEi.i.DK. — Tlmt is, tht-y laid down their Canadji as inclndin.' tlie watcrshoil of the St. Lawrenee, and they make all the sti'cam.-5 within thtu' limits How into the St. Lawrence. Li)rd Aheuoaiu;. — Tliey iic(|uired a great deal of land with that. Mr. McCauthy. — I think, with deference, they did not, beyond Louisiana. In this country, I do not think they ;ici|uired anything. Lord AliKUDAUE. — Not in the hundred years '. Mr. MoCautfiy. — No, not beyond the watershed.* In point of fact, tlie country between the watershed of the St. Lawrence and the north was the arm?, manufacture Runpowdfr, liiilii and fortify [.laces, ;in(l ilo i!;f>i,erally, in the said places, all thiDgs ueceH^iary either fcr the seourity of the (country or for the iireservatioii of cjiniiierce. VII. I'urthetiiiore, His Maje.^rj will ^ran; to the said Associates, for oyer, tlie trade of all leathers, skinh and !ur,-f of tlie said New France ; and, for fifteen years only, commencing on the 1st day "f Januarv, of tile year 1028, and ending on the lutt day of Decenifjer, KJ4H, all other commerce, whether ly land orhea, which can be created, derived from, negotiated and carried on, in any iiunner whataoeyer, over the extent of the said country, or ai far as it can be extended, reservink,' the cod and whale fisheries only, which lli< Majesty wishes to' leave free to all his subjects, revoking, to" this end, all other couces-sions contrary to thr above, even the afore mentioned articles granted to William de Caea and his associates; and to these eiidi' his said Slajesty will, for the said time, interdict all the said commerce as well to de Cai^n as to his othn subjects, under venaltj of the confiscation of vessels and merchandize, which confiscation shall belong t:) the said company, and the said My Lord the Grand Master shall grant no leave, passport or permission t" any others than to the said Associates for the above voyages and commerce to the whole or any portion ot the said places. i'lMir Huaitlt tit Montmd'jnij, 'Uh Juiir, I'l.'f'i. "Governor and our Lieutenant-Ueneral representing oar person at Quebec, and in the provinces wat- ered by the River St. Lawrence, and the rivers whicli discharge into it, and the places tha*, depend thereon, in New France.'' ' Siiur f{( Iaiuzcii, I7lk Januari/, !H5I. "Governor and our LieuteiiantGeneral over the whole extent of the River St. Lawrence, in New France, the isles and lands adjacent, on both sides of the river and the other rivers that discharge therein, as far as its iiiouth, taking ten leagues near to Miscou on the south, and on the north as far as the lands of the said ei)untry extend (on'H Biy ouncry, tlie country on tin.' west was the Mississippi country, winch they calleJ Illin)is an I Lonisiani, an 1 -,'rantoil that th-y had Louisiana and Illinois, which unaoubtcUy thoy luul up to thit line shewn on tlu; copy prodiiwjd on Thursday, still thero was I^)alin^• to the north hut C mada nnd the Hudson's Bay. Sir HoMEirr Colli kk— They ^,) xeiy near indeed to HudsoVs 13 xy. Mr. McCarthy.— Ves. That was intei\d.Ml to be the water line. It' that was ini'orrectly laid down, we have to Had whic'i the true water line is; and about that there is no dispute. The Loitii (-•HA.vrr.LLuH— That is an ini;-enious way ul' [.tttin!:,' it— you treat a.s the canl.inal point here, the water line. It is not said (.;i the other side, that they mean to ivlincpiisli their claim to any territory here put down as French. Mr. McCakthy— 1 do n )t know, as a matter e-f fact, tliac thev represented any river on this map as Mowini,' into the St. Lawrence, which "does not, as a matter of fact, tlow into the St. Lawrence. It is correct as tar as that i^oe.s.' Lord AliKRDARE.— Tliis map does iDt touch that porrion of Canada which it* west of Lake Superior. Mr. McCarthy.-- -It is the foundation of the claim— we nnist start at the commencement. Lord Ameruark.— I think this may be assuine 1 to be a map shewing the limits between La Noiwelle Bretagne and La Nouvelle France.* Mr. McCarthy.— If you look at pa,ge ()4!) of the Joint Appendix, you will Hod the connni^sion.s that wei-e granted by the French King. There is a corn- mission to Montmagny. The Hudson's "l5ay rights liegan^in 1G70. Then the .picstion is, what had the Engli.sh a right thJn to claim as theirs, and what had the French a right to claim ! V find that in 1045, I6ol, 1G57 and down to 1663, the French limited their claim to tlu> territory watered ov drain jd bv the St. Lawrence. Then the English take possession of the Hudson's Hay. They claim that having taken possession ot the Hudson's Bay, and having' discovered it prior to that^ gave them the right to take all the watershed of Hu Ison's Bav. The eifict svould be, if on the one haml the Fi'ench had a riglit (o the watershed of ti».' St. Law- rence, and the English in 1670 became entitled t) the water-hed of Hudson's Bay, then, that watershed being ascertained, the proper boundary between the two countries would be defined Now these commissions go to sli'ew tluit what the French in those days were claiming, was. as I say, the watoished of the St. Lawrence.f That brings it up to 1670. Then your L')rdships reeollect the lan- guage of tlie charter, The first commission give's the words more fully. It is the one to Montmagny : —"and in the provinces watered by the St. L-*wrenee, and the rivers which diHcharge into it, and the places thai depend thereon in New France." This map of banson a would apiiear to be the same, »t at all I'veiits to luve t]w same distinctive features, as No. (> in the Notes on iMaps (Out. App. p. OB), and is, in its northeily portions, not a French original, but evidently a reproduction, in part, of an English map. Moreover tiuNi.portime ;ire confe«edlv based on hn^lish, Danish and other relations : " Oe cpii est le pliis advance veis le .Septeiilrion est tire d'e diversesrelitionsde^Anglois U,'inoiP,''e,tc; and English, Dutch and Dani-h nuiiie. abiund, as "Janws his Bay, Lland of Good Fortune,^' " Hollandsche Biy," "Sidel Evi." "Ssvarte Hoeck," etc. etc. mv .-So. 5n, by this author, of about the same date, as a'so m-»p \o. 4, by the same. p,iblish-d in 1650. have the names -Oanada" and "Oantda on Nouvdle b'rance," respejtivelv, prbite 1 acro-s Hudson's Bay, and that country has no limit on the north. (Ih.) It is, tluref.ire, clear tint the line upon t.he map in Mueition could not have been intended as a northerly boundary of Caii.via. It was pn .bably copibd from he same hnglish nap East of the Bay, it forms the southerly limit of La Nouvelle bret.iirne"^ as 8UKireBtei;. — I taiu- it tlie words, " in tlio |iiovinco.-, nali-red by the St. Lawrence, and tlie rivers which di>cliaige into it," do prrum f(ir'i>: K.huV to the district so watered ; but then, the words "and the places tlia! d.j'il thereon," mean the pla.'cs that depen,ion uf 1651 on the same page r)4(». It .says : '■ Over the whole extent ot'tlie River St.Lawrenco, in Xew France, the isles and lands adjacent on both sides of the river, and the other rivers that discliargii therein, as laras its mouth, talcing tt^i le.vgues near tj .Miscou, on tht- .south, and oa th.? north as far as tip lands of the said ooantry e.xtond," Mr, .McCarthy,— It says : "In the same manner that it was held and exer- cised by Sieur Dailleboiit." It is limited, but 1 do not think we have tin limi- tation. Then, your Lordships will see that in KiTO, when the French hv^AW to be pre.-sed with the encroachments upon thidi- trade, .so to speak, of diu Hudson's Bay Adventurers, they put forward claims to the whole of the continent, and that gave rise to di.sputes which they attempted to settle by the Treaty of Neutrality. Now, one important document, as it seems to me, as showiii'^ the There is no eiidonceof any such command. 202 lUVAI. CLAIMS TO lll'D.SOXs !!AV AKIEI! THKXTY nf .\KI;TU.V1.ITY, ItiSU- view then ontertainr.l ,y th. iMi-lish (JuvcnuLont, is t., be found at pa-es 480 ft,„14Sl ot the .01.11 Appc'iidix. Thi> \v..s ill the corresi.on.ience between the trei\chan(l Lnohsh alter tlie Treaty ,.f Neiunilitv, a.ul uitl. a view of ^ettlin.' their _.lis|)Ute.s ..pon tins part <.f the eontiiieiit. clie Ku-lish in pcint ..f fact elainnno'all that the Hudson's l!ay (.'omi.anv were entitled to, and the French ead-avuuniig to cnuhne tiie Hud^on'.s Bay a.mpanv to the 15 iv. and to the iorts they liad— 111 point ot tact to drive them from tlie i'.av The l.oi!i) <'iiA.\ci;i,U)ii.— This M-enis to W. in 1(187/' ' Mr, McCAliTUV,— Yes.al about line MG it Miys : '• And it will he sutlioient ansvrer to the greatest part of ihe French p;»n.'r to assert that thf> count.y of Canada and that of Hudson's B,,y, a.e two ditferent provinces, and have no relation hut that ot neighbourliood, as .nay appear by ancient an.l modern niaps, nor did the hngli».li, when they were p^ssensed of (Jaimda itself, enee.i. the country of Hudson's Bay as appertauung to it, and it is to be hoped that it will not now he reputed a depend- ence ot Ldua.la, which would he a pretension not to I. > advanc-d l)etween two Crowns that entertaui so good a corros|.ondence together, ,uid which wouhl ipiite d^stny th" end of the late Treaty of Neutrality, since instead of p.esorviu^/ p,.,i'c in time ot war it will be looked upon as the oocnsion of the wor.^t etl.>cts of war iu the time of peace if so notori )us an invasion should remain unpunished, or saiisfaotion refused for the losses that have bee;, sustained. ' That is in 1GS7, after tlie Treaty of Neutralitv.- Tiiere are rd- ships will see stated at page 484 of the Joint Appendix, and not in any place denied, that I have been able to find'' Sir Roman' Collier.— That, isUe answer of the Hudson's Bay Company Mr. AlcCAHTifY.— Yes : j f j "But the said English company canrot but liop * better from the justice of His Most Chnstmn .Majesty, who having decLired his disapproval of his subiects' proceedings in this athir, in so plain a ease will not infringe the good correspondence th>it is between the two Crowns." All tiirough, your Lord.ships will find the Hud.son's Bay Company and the Engli.sh government are interchanging corre.spondence. The English government applie.s ^ Th,. Kreiidi inemoriiil, to wliicih this is tlin r.'i>Iy. i- at p. !75 of the J"i!it"w^tiv,~^.T^T^h^^ «bniiute riKiit t(. the IrikIs and eliorea ot Jludson's lia.y, uiiou grninds .st't out ul length. 1 'The actual fact« were, tliat tlie Endlisli, under Kirk, had con.iuered and ..ccupied Canaia, in Ui2i> sub- wT'jI.sr'"'"'''"*^ '^' "*""'""' '"""'• '" ^•''•a"c^ 'J.V the Treaty of 8t, tiermaiu en Laye, 1632 (.Toint App. : It was an unsupforted allegation of the company, uot needing denial. See post, p. '.iOl, note 208 AWiUMK.VT or MR. m'CAHTHY, <}.C., re l^UKSTlON 01' llOUNDAUY : to the Hudson's Bay Company to know \vli:it they arc to say, and the Hudson- Bay Company reply, ami one tiling is dovetailed into another. Sir RoJiEin' tJoi.LiKit. — What they represent to His Maj-.'sty is, " that iii ciw; the French he suH'ered to lie sharers in the Bay and Straits of Hudson, 'or },, permitted to trade therein, the (.'omjtany cannot any lonfrer sulisist," What tln'v protest(!d a;;Minst was the French elaiming the trade, or to be po.sses,sed of land in the .l'>ay or Straits of HiuLson. The Loud CiiAXcKtJ.oft. — That would include Fort Nelson, a long way t.t the north. Mr. M(.'CaI!THY.— At that time tlie FreiU'h had captured many of the forts on the bay, and the English were claiming restitution for this outrage, a* tlx'y called it, and tlio French King in answer to the English stated that he did not in- dorse the conduct of his subjects* Now, at page 4S4., is a report of the Eni:li>h commissioneis to the King, finally, upon the result of all this: " Whereupon their Lordships agrte to report th^ir opinions to His Majesty, as frUows ; We your Majesty's Oonimissioners appointed to treat with the Ambassador and Envoy Extraordinary of His Most Christian Majesty, concerning the differences that have happened between Your Majesty and the French in America, have had frequent conferf nets 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 were seized on by them, as also touching several other differences depending between the two Crowns, and as to the business of the Hudson's Bay, having already acquainted your Majesty with our pro ceedings therein — " now here is the opinion — "we do further add our humble opinion, that, as it plainly appears, Your Majesty and your subjects have a right to the whole lUy and Straits of Hudson, and to the sole trade thereof, so it may be tit for Your Majesty to support the Company of Hudson's Bay in the recovery and maintenance of their right, since otherwise that trade will be totally lost, and fall into the hands of the Fnn^h if they be permitted to continue in the possession of those forts, or of any fort or jlaee of trade within the said bay or straits." Sir KoBKiiT CoLMEU. — " Within the said bays or straits," that seemed to be their pi'ctensiou at the time. Mr. McCarthy. — It goes further : " the whole bay and straits of Hudson. ' Of course the important thing was the tiade. That is to -^ay the trad.; of the Indians, which was brought down by the diti'erent rivers ti^ Hudson's Bay. The Loud Cha.vCELI.OK. — Then, there is a proposal for settlement of the boundary. The' Lord President, — Those words there are given more fully at page 4s+, and in the same terms as those found in the Hudson's Bay Company's charts r: " with the rivers, lakes and creeks therein, and the lands and territories thereto adjoining." That is at line 9. Those are nearly identical with the terms in the charter. Mr. McCarthy.— Yes. Sir, Robert Collier.— They say it " comprehended Fort Nelson." * We h.ive only the allegation of the company for thi.-i BtRteinent no proof wiiatsoever Icinsf a(Mui.e«l, and there ia specitic evidence to the contrary. Radieson and tJe< Grus.-elliers' ppoct-^dinjjg of 1662 wpio iMir- suant to instructions from the authorities (.Joint App, 4B8, 622). as were alno tlie military and naval t^vpedi- tions under De Troyes and l)'lt)t)rville, in 1686 ami subsequen -ears, resultinff in the de.ittuction or o.iituri- of the Hudson's Bay Company's forts, ships and other property. (/'/., 626, 6;<0, 634, 636 ; Ontaiiip Ap|j. 7i. Then, the Kinff, Louis XIV., in a communicatinn to Governor De La Barre, dated Fontaineblean, B Augii.-t, 1683, instructs him "to prt^vent the En^'linh, as much as possible, from cstabliclrnff tne'rmelves in Hmlsimf Bav' posscHsion whereof was taken in uiy name liiaoy year.-t ngij ; ' and in a despatch from ihr. Mniislei of State, De .Seiffnelay, to De La Barre, dated 10 April, 1684, the latter is severely censured for reloisins; an English vessel which had been captured by the French in Hudaon'n Biy. (Joint App. 623-4). 204 ASSERTION OF EXOUSH TITLE TO HUDSON'S HAY AFTER TRKAtV OF NEUTRALITY, 1086. I l(Jii>;- way U) seemeil to be Mr. McCARTHY.—Yes, "a^ part ot tins whole." Now we have his English Mrtj(;sty's satictioii for that. Sir RoBKUT Collier,— ji is a lunt; way to tlio north. Mr. McCarthy.— There is no douht part of this that has been iiwar.led, was HiKJson'.s Hay. That part whieli. Vioyoml uU douht, tlie Hudson's Bay Crtmp;iny had a right to claim, is the part ceded hy tlie award as not being Htid-sun's Bay territory.* Now, the meiaorandiini is at paj,'e tS.j : " His MaJMBty'a co^nmissionor.s and the conjmisMoiicrs of Franoe apjiointed to treat con- cernios diilerences in Atnorica bpinu; nun, thcif Lordships deliverod to the French oam- missioner-s a Kenera) memorial declarlTis; His MaiH.?ty's pleasure touching the several matters in ditlerence, and that His .Miijedty hud empowered them to treat concerning the settling of limit.s in America, whcr^^up'.n the French coUiiuissioners do promise to return Hn answer to auch points wherein they are en^liled so to dj, and ^.o receive the direotionn of till' Iviiis: their maf.ter concerning tlie others, and do likf^wise propose thii" the subjects of lioih Kings be I'cstrained from all acts o( hostility." Now, we liiid the King's resolutions at line 20 : " His Majesty's commissioners appointed to treat with the commissioners of the Most Christian Kinsj, for the execution of the Treaty of Neutrality in America, have received His Majesty's orders to itci|uaint the said commissioners, thi.t havinsj; maturely considered his own right, and tha right of liis subjects, to the whole Biy nn 1 Straits of Hudson, and having also been informed of the reasons alleged oa the p\rl of the French to justify their late proceedings, in seizing three forts which for ni my years pist have baen pjssossed by the English, and in committing several other acts of hostility, to the very great dam*gH of the English company of Hudson's Bay : His Majesty doth, upon tiie whole matter, conceive the said company well-tbunded in their demands, and has therefore ordered us to insibt upon his own right, and the right of his subjeota, to the whole lUy and Straits of HuilsoD, and the sole trade thereof, as also upon the demand of full satisfaction for the damages they have received, and restitution of the three forts surprized by the French. We are also ordered to declare to the French commissioaers, that His Mijesty had given us powers and directions to enter into a treaty with the said commissioners for the adjusting of limits between the dominions of both crowns in America, and doing every- thing else that may conduce to the removing all occasion of diilerences between the two nations." The Lord Chanoellou. — Wliich, I sui)po.se, they never did settle. Mr. McCarthy. — No my Lord. Noihin^f came of this attempt to settle these boundaries. This was before the Treaty of Utrecht, and still earlier, before the Treaty of Ryswick. Now, the next matter, and it is not unimportant, as I understand your Lordships' view of this question, is the Act of 2nd William and Mary, 1690, page 348 of the Joint Appendrx. It is only iniportan- as shewing the recognition of the Hudson's Bay claim by the Act of l^irliament.f I do not know that your Lordships require me to address you upon that. The Lord Chancellor — We have already indicated that j'ou may conduct your argument on tlie supijosition that you need not go into any question as to the validity of the Hudson's Ba}* charter. Mr. McCarthy. — The Act does confirm, in the clearest way, for a limited time, the charter of the Hudson's Bay Com])any in every respect. That is in the year 1G90. Sir Robert Collier. — No, it only takes the very words of the charter, and recites it. *Se6 ante, p. 190, notet. timp. Act, 2 W. & M., cap. IB, segs. 1 (Private Acta), was limited to a psriod of seven years. 205 The confirmation of the Charter by this Act ARGUMENT or Ml!. M < Al.THV, (J.V.. re QUESTION' OF liOfNnAUV It .' i .\Fiv M<('.\irniY. — Thon. at pa^e (wio, f rofor to tlio st.'itcini'iit ns to K :> Nol.soa lu'in^' one of tlui nmst imimrtunt I'urts. Fort Ni-lson is to the iiovtli. Uik of tho early discoverers dimi tlicro in the winter, and it was called Port Nei.<(.ii. It is a littU' I'uldw tin; Churchill IJivtM', vmir liOrdsliips will Hudson's Bay Cunipanj wiiich i wiiich is very juvcise as to dates, jtlaces and events. I do not jiropose to trouble your Lord.-«hi|>s with readin>^ tlioiii, but I will tirst j,'ive you the references. 'I'iuit is in 1700. Then cotne the papers at pages 5(i2 and o^'i, which I ought to rotVi- to., *" A deduction of the Ri«ht mil Title of thn Crnwn of Great Britain . . to all the Htraits, I.ivn. ^eai, rivers, lakes, creeks, i»iian(i<, shores. laiuU, tcrritorifi and places wh»t'e obligfd not to ♦,rodc, by woid-runners, or ctlier\.ii-e, nor bnilii »ii •* house, fiictorv or fort heycuid Rupert's River, to the soiuh-east, towards Canada, on any land which belin to tlio Hudson's B;iy (.'ompaiiy. o. As likewise, that 'iciiher the French or I'liiglirli shall at any time hereafter extend their bounds mn trary to tlie fitor".said limitations, nor instigate the natives to nuike war, or join with either, m any acts if hostility to the disturbance or detrimont of to-' trade of either nation, wdiich the Krenidi may verv re'i.son. ably eonip'y w ith, for that they by »iich liniitationo will have all the country itouth-eastwatd bttwi.tt Albany l- answi-r their charge: and therefore if your Lordships cannot oldain thc.>:e so reason,«ble propositions from ti,o h'-i.cli. but that th-y insist to have the limits settled between Voik and Albany I'ort, is m the Jatitmli of 'o degrees ir thereabout.--, the company can by no means cgree thereto, for they by such an agreement will be the in.-truments of tlieir own ruin, ne\er to be retrieved. By order of the Genoral Court, Confirmrd by the C mrt of the said )^ Wm. Pottbb, Company, 10th .(uly, 1700. ) Secretaty To the llmeri) ir or rk/mtii-h'n,; riiir of tlit //ud.srjii's Jiau ('(niipiini/, or either of them, (.iKNTl.KMRN,— I'pon Consideration of what was this day otfered to the Lords Coinmiasiouers for Tradu and Blatitatioiis, by yourselves and other members of the HudBoii's Bay Coinpany, their Lordfliips h.-us commanded me to acquaint you with their desire that the resoluticn of your (Conrl) may be taken ar.d cnmmunicat.e.rl to them, whetlier i-.-n ciite tlu- Freii-, h cannot be pri-,v(vi|;:f! w-itli to c-.-jisent to'fhe settlenif-nt of the b.-innd.'iries jiroposed in your Court of the 10th .hdy last), the said Court will not think fit to consent, that the liiiiitt- en the east side of the Bay be extended to the latitude of 52^ degrees, with whatever fur- 200 Hl'DSON's H\Y Go's IM<)p,).SA(.S Koll Si-.rr. IN.. LIMITS, 17(1.). 1701. bill 111 ai.y lioufp, Lonl AiiKiiii.vai:.— Which i.s Rupert'.-: Ui\,y. Mr. MctJ.vinilv. — It i-, tn tlio onsf. It is jusf riortli i.f tlu:! Mm lino. It is tho north -wist convr tif the awiir.loil toiTitory. iD'iictiealiv, Lord AF;ri!iiAHK.— I .sc,' that it w.i-' th.'ir contontio-i, at'tor tlio Treaty of Kyswick. that tlie Kiviich luvl no ri-ht to any po^ts eastwarl of iluport's or of Huil.-^on'n River. Mr. Mf'CAFnilv.— [ am comiii-' to that. U'cvui.st; tins, urc th.i uulv .kji'mueiils, t'rn'.ii fir-it to ia.st. thati,nve even tlif .■^li:,'iUl^^t colnw of tniuiilatioti i'ov thu aw.ir.h Lml Ai'.Kiui.ujK.-.Ju.st t.'li uv. tlii>, il tiiu is .so. The map we have hero, is the ' Mitario map ;■ .Mr. M''C.\KTHV. — Yis. honl AiiEito.MtK.— .A.11.1 tliorof.ire you ih) not aceept it, of cour.sc / .Mr. .\lc( ".viMUV.— Yes, iiiy L')rLl, l"clo ; hut 1 do not accept all the s stat.nnent.'* oil it. Lonl AliEHD.vui;. — It is with reference to a statoiiient mi it thit 1 watite.I ta ask you. If you look to the north portion, alouj; the line .it thf Alhany, you will .see written there, and acro.ss James' Bay : " S iuth.'rn Ixjun Jai-y "'—that is, the ther tl.at C.urt la.iy tiimk luivis.'vble to pr.iiK.sc, in reffrenct^ U< their own a!f lirs, for the unre easy settle- ment .if nil dispiitHs betwepn the Comp.»ny and the French in Hudson's Bav Whitehall, J.»nu»ry 22nd, 170J. W. ?[OPPLB]. Til (hf Rvihl Hon'iiinihh- thi Lordx dmmhaioncrs I't Trade and I'lantatinnn. The Huilaon's Bay Company have lately e.\hibiteii to vimr Lir.l-thi|H their rei. .luti.m of their C mrt. the 10:h -It ,luly last, conoerninglinrti between them and th" Fren. 'i in Hiids in - Bjy, and though the CJinp.inv ,.3„ac,t but still insist ,ip m their und.mbte,! rii?ht t.. tha whui-; B.iy and Straits of Hiidsoj, an has been oieirly made out by them : \et in obedience to y..'ir U.rd.^hip .i letter of the L'.'nd iiwt., and to sh-w how d-.ir..iH they are t.. )!y tliei-»with a-i muoh a< in them lies, and i-i u .n-^ntent with their future aaf-ty th»v d ) f>irth-r i^Sc your L(ii'dslii|i* t'U' InWuv/mg prop wUs cf limits b 'twee'i them and th> French in Halsoni lUy vi^--- 1. Tha-; til.' trench b" linit'il not t.. tride, by w,) > i ranii.'.-s ..- otherwise n ir biiild any k; •!fer to to thi northward of Alb.ny R'ver, viiljf.trly ctUed Cha-Jiieiwaa, o:i the west "main or norbiild any Irmse, 11 tin ea-il m.»io or taonry, (ir lor. toast. 2. That the French be likewise limited nottotrade, bv wwdrnnoers or .ith.rwi- factory, or f(.;'t to the northward of Hudson's River, viiliiarly cvilad Oiruni R ver coast. i. On the onntrary, the Kn^lish, upon such .-m ajjirtenvnt, dn en?a^.> not f, i tr:i i-. iiy w.nd-nnii.-rs for otlierw!.sp|, nor bmld any Ir.use, factory, or fort t. the so'ithward ..f AU.a'iy River, viilKarlv called tliei'lieawaii, ..n the ue!<'. coau. .m any Kiound belun«ing to the Hudson'.- B.iy Com lany. i. Xt also, the Kn^lish be likewi.se linrteil not I) trii<|.., bv w,i >,! ninirT.s or oth-r.vi.s;, nor build any house, ffti't.iry nr tort tu itia s.nithward ..f H.ids m's River, Milgarly tMlled Ca'une River, on the east ciast. on any irrouu 1 bolonsfinff to the Hudson's Bay Company. 5. That all the islands iu the said B.iy and Stra'iti ot Ho Isin, lyiiitr te th.; northward of Albany Kiver. .in the west e.iast, and. )f Hudson's River, vulf,'arly cilled Cannse River, on th- east coast, .shall b»; and rem.un to the KnjjrhBh. ' ' "^ .). Likewise that all the islands in the sai.l Bay of Hu Is.m, 1\ iajf ti. th« sn ithward of Alo.uiy River on the we-too.a.sr. an 1 of Hudson's River, viilg.irly calle i Ciuuse River, cpu til's ej^t co.ast, shall be anf» temim l.i the Kri-iich. ■• ■^.';*' '.'■■ither toe Fniuli or Buxlish sliill a', any tim ■ her^fter extend tlrir lioonds c mtrary to tli- a.orPMid liiiiitations, or instigate tho native.s t.. make war, or j .in with eitiie: in anv acts of hoUiiitv. to the .listiirhanc" or dtftiiinent of ttie trade of either nafon. ' pi';«e term- the i: . npany are willing to a^'ree to, upon condition th-^y may bi seaured from any claim tint lias lie -n, or may ba in.i 1e on them by virtue of the Stli .Vrtic'.e of the Tr.'.Tty of Ryswick, nr 'bv .any otliin' iiutt.'. orthiii« relating to tli- siid tieitv. A-id it t,h'> Kre.i.-h think fit to acoept thereof, the c.^ni- )anyare v.ilhnjrto ."(nhaii-M'lajes with tliem, but not with mt settlint; ..t Imits; for that th" said 8th .•Uticle winch aaith tli.Te shall be an exchange of places, doth also s:iy, that In lits slnll bu likewise setHed anil It woihd seom verv unr-Msonalile that one Hho;il.l be p irform id without lli - ..ther. As to th» comptny'.s naming dt nvers .as b jiiridaries, and not latitii les, th.' s im • is more certain an 1 obvi lus, li.itli to th > native* »« well ai lviiM|i-ans, md the ontrary rn.nr.ieticab'o ; Doi- can the I ititiei- be so well lai 1 .1 iw.i ia th kt wild country, the Indians well kii iwini; the one, but not tha other. Hut should the French refuse the Imrts now (u-op i.se.l bv the coinoa'iy, th ' com lanv think flnmselves muomml liy this or any lormer c lUjeisi ms of the like n.vtura, bit mist, ai th^yhav.- alwivsd >.ie, insist up mth-ir prior and undoubted ritcht to the whole Bay and Straits of Hulson', which the' Frencii uevor yet wiul.l strictly dispute, nor sulf ir to b.- eximm'd into (as knowing the Wd.vkiiHss of their clainil, thousrli the tir-t steo m the «»:d Arti.-le ..f R.yswiek directs the d^nuK of it, By Order of th' General Csiirt of the said Compaoy. January 29th, 170?. '^^'''- ^"'''''"'' 207 Soritari/. AlUil-MENT Ol' MU. M CAllTHY, ().(., ve (QUESTION OK liOUNDAUY l.tv ll'l' in: ;u,v ail' Alliany and tlio Kast Main ha'mcr the southern Imunilary — '' proposeii Lv Hudfson's Viiiy Gonipimy, i'.hh Jiumaiy, 1701 " luid aiKither liiu\ tlint n\ Albany (iml Rii|M"it, nuirki'd " Southi'rn honndary proposed by Hudson's Compatiy, lOtli July, 1700." Mr. McCahtmv. — 'Hioso aro the very doi-unn'tits we urn now at. The Loiu) ('liANCKl.r,(ii{, —You -uv now rcudiuL,' from dncunionts in 17()() 1701 ' Lonl Ai'.KHDAWE. — But you piocofditd to .say that luiithfi' tlu.^n noi al'tirw was tliero anyihinLf to justify the award. Mr, Mct.'.AUTny. — 1 .say tiuvse an- the -es .")(j2-:i : "The Comi'axv's Claims akteu the Tue.vtv ok Ry.swuk, "The limits which the Hudson's Bay Company conceive to be necessaiy usbouiKiafiis Iwtween the French and them, in ca.se of an exchange of places, and that the Ooiiiprtiiy cannot obtain the whoh:^ straits and bay, which of light belongs to them, viz : " It i.s a document withoufprejudice — *' That tiio French be limited not to trade, by wood-runners or otherwise, nor build any house, factory or fort beyond the bounds of 53 degrees, or AP any River, vulgarly ( tllea Chechewan, to the northwarJ, on the west main or coast." The Lord Chancellor.— I .see by the map that that name was also the nuine of the fort built in 1(;S4 at the mouth of the Albany River. Mr. McCAHTiiY.— Tlie iirst forts built there were by the English.f thiMi the Frencli took them, then the Engli.sh retook them, then the Treaty of Rxswick was passed, whieli .said that notwithstandinjf the English had captured theia nevertheless they ought to be returned to the French, ' ahhougli they had lieen taken from the English by the French during the peace, and therefore tin Hudson's Bay Company said they were " the only mourners by the peace' Then the seconil paragraph says : " That the Fiench be Hkewise limiled not to trade, by wood-runners or otherwise, nor bnild any house, factory or fort beyond Rupert's River, to the northward, on the east main or coast. On the contrary, the English shall be obliged not to trade, by nooii- runners or otherwise, nor build any house, factory or fort beyond the aforesaid latitude 'These documents'. euiaiiatiuK from the oomiiaiiy itself, coiicaini to the French the line of the Albanv and Eust Main riverH, ))Ut that they were the only documents that gave "colour of f,)undati(m " tn the award of the arbitr^vtors, was so little the case, that they may looked upon as not having termed ivon an element in the evidence upon which the decision of what was Ontario's right was arrived at ; at best they served but to Kugyest the actual tay, which might be conveniently followed, of a line already detiTmiiieli upon 12 ni)te+ ;; V.*0. notet.) , \ .1 , .1 + The first forts north of the height of land were built by the French. See, as to those on the Ku|)Hrt, Moose, Abbitibi, Albany and Nelson tlivers, ante, p. 200, note *. See, also, appendix 13, hereto. 208 HUDSON'S BA.Y co's I'HOPOSALS KOR SETTUNO LIMITS, 1700, 1701. to the AliiJiiA first 01 last, I'Ut IS also the name 0? 53 degroes. or Albaay Rivr, vul««rly cill-d Uh.^ch.wan. south east towarda Canada, on any li»iid which hHongn to the Hu ison's \Vw (.'ornpany " trvatliijf it still as thoir land : " A» also the English bo Hk^wigH ,)hlig..rl not to tradH, hy wood runners or other -vise, nr.r l.u.ld any houM> fa, tor y or tort hr,yond lt„p,rr;.s Kivnr. to thn Noiitheant towards Cmada, on any land which bclont-i to thf Hnd.son's Bay Cjmitxay." It is only n';rulatiM;j; trade, after all ; thfn- is no surrondor of territory Sir RoMKiiT C< II, I, IKK : "As likewiao that neither th.- I'rench or F.nalish shall at, any time hereafter extend th.'ir houndn contrary to the at'ore.s.iid liniitiition?.' Mr. McC'akthv.- -Yes : " Nor in8ti«Hl.' the native« to niake war, or join with -ither, in anv a<;t« of hostility, to tbn iiistiirh,uu;r or .hitiunent of thf trado of citli.'r nation, wl.iuL tli"' French may very r.aHonul.ly ooii.ply with, for that they by such liiniiations will have all the country Bou!h.-aHtwar(l, b..tween Ali.any Fort and Canada, to llu-aiselvcs, whioh is not only the be«t,Bnd most forl.k, part, hut also a much larger tract of land than can be supposed to be to the northward." The Lord ruEsii.ENT,— 1 .st-o tiif.se are the limit.s whicli tho Hiid.son's Bay Oomitany conceived to be necos.sary as hjundaries in case .,t an exchange of places. ° Mr McC A KTU Y. — Y e.s : ... .".'"^"'l ""'T ^•"' company can be s-cured accordinj; to these propisitions, they think It will be impo.s.ible for them to coatinne long at York Fort fshould they exchange with the French), nor will the trade answer their chirge, and therefore if your J.ord- ships cannot obtain these so reasonable propositions from the French— " Your Lordships see it was to the Lords CoHiinissioners of Trade and Plantations : — " l>ut that they insist to have the limits settled betwwa York and Albany Fort as in the latitude of '^5 degrees or thereabouts, the company can by no means agr.'e thereto for tliey by such an agreement will be the instrument of their own ruin m^ver to be retrieved. ' The Lord Chaxi-km.or.— I see it i.s Fort York, or Fort Nelson. Mr. McCaktuy.— Ye.s. I omitted to read the last part of naiar/ranh 5 Your Lordships will observe, in the first vlacii that this is a proposition made to the Lords Commissioners of Trade and Plantations. Sir RoUERT (JoM.iKR.— Tliere we have the precise boundary which they claimed at this particular time, 10th July, 170(). Mr. McCarthy.— Not what they were claiming, but what they were willing tor the .sake ot peace and settlement, to accept. Sir Robert Collier [rejerrin;, to the Ontario boundary vmp] -It is called • Southern boundary proposed by H. B. Co., 10th Julv, 1700." Then later they ;ro a little higher and there is " Southern boundary proposed by H B Co' 29th January, 1701." ■> r r j ■ • •, Mr. McCarthy.— I find no authority for that line on the map.* If you look at p iragraph 5, you will see what the company say further, line 31 : " Which is not only the best and most fertile part, but also a much larger tract 01 land than can be supposed to be to the northward, and tho companv deprived cf that which was always their undoubted r!"h'." ' note ^ There is authority for the line, viz., the company's memorial of the particular date, ante, p. 207, ! I 14 (B.) 209 AKVIL'MKNT OV MIt. Ml'AUTUY, (^<'., re (^JtSTIoS oK IViI.'NDAUY if Noss' tln'V .Hpi'iik of tlu-ir ii:,flit, and iiinU.- a pro|>i.sitina ityi settlement to th. n own ;;d\'irniii(;iit, unit nut to tin- ri't'ticli. Sir .M(tNTA»Ji;K Smith —TIu'V wanteil tlicir own <,'ovi'riiMiiTit to fi:<.'t tlmr liniiiiiinry ^i ttlfil. .Mr.' Ml (.'ai{1II\. — [ say tlii-' Ufver was fuiaiiinnicatfd to tlio Fri'iidi. The l-filil) tlflANCKI.f.DIl — Wlmt (ItH's thilt si;^'Ilit\ ;• Mr. M(('aI('!I(V. — PiMlta|is nit : I only .ntattMl tlic fact. The F.diil) (.'llANCKl i.o){. -Thfro liavf Fii'cn many ilominu-iits wliii'li dn n t scfin to liavo bftii eotniiiUMifati'd, vliicli liavc ln'cii rd'orri'il to ii.'< sluwiii;; wli,;' tlie claims or pretensions of particular paitif wont at ditiorcnt times Mr. McCAltTlIV. — I thoujxht I liad read the part \vhic)i made it \ t ry i li ;ir tliiit tlio\' cliiiiiicd all, hut \Vf;re wiHin-- to iiiaUi' I'oiu'essioiis for ttu' -^ ikc if jn ire. Tin; LulU) (..'HANCKM.oH. — Viui liave read t'nouj,di t(/ shew that th'V do iinf nects.sHrily admit hy this that they are conceding sometliini,' to which they iiia'li no claim. It does not j;'o furthei than that. Mr. MfCAinnY, — 'I'hey ill) say, "and the company deprived of that which was always their midonhted rii^ht." 'I'hey .<[)i'ak of their ri^dit and m.ike a pio- position for settlement to their own ^ovcrnmuit, and nut to the Kreiich. I do not know wliat stron;:;er words oonki he us. 1. Sir RoitKUT CoLLlEH. — .\nd they also say tliat they claim the whole Strait.s and Bay. The I/ORi) CtiAN(;Ei,i.on. — They seem to aclmit )>y this, that lo.)kin;Lr to tlu' actual state of occupation and possession, that would he a lin)ila,tion of honndaiies in which they would acquiesce. Mr. MctjAHTilY. — It that settlement had b"eu cariii^d out at that linn', tie \ would be willing to acquiesce. That cante to notliiutj. It wa.s a proposition made hy them, nut commnnicat.-d to the French or which, if it was couiniiiiii- cated to the French, was never ai.;rei'd to, and therefore it, was li ce a |)ropusitioii made without prejuilice, and of course is not to lie used against them in any .seiiM-. Then, if your Lordships care to follow this further, i may state I have yoiie carel'uUy throui^h it, and I think f can state the effect of it, tliat ncthinu' ciiiie of all this correspondence. I mei-ely referred to this because 1 thoui;-ht it oii-lif to he explained to your Lordships, and it would hardly have been candid to ymir Lord.ships if 1 had pas.sed it over. The Trtiaty of Rysvvick was followed rapidly by the outbreak of war hetwe^'ii France and En'jifland, which ended in the Treaty of Ttrocht. By that- treaty thr Treaty >)f Ryswick was wiped out, and the English and Hudson's Bay Company resloi'ed to all iheir rights.* The Loud CuANClxl.Olt. — There is a paragraph at the bottom of pa^'o o(U+ setU ' Ontariii claimed tliat ilu' Treaty »f Utrfoht could not onure to ttie benefit of the Hnison's Kiy Cotupiitiy, for till' nasoiis set out uiiti, p. 1!.'0, noi« +. +\1k>iokim. ok thk Huiison'h U.xy Comp.\ny to iiiK liOKns Comsussiomkhs ton Tkauk \\[> I'unh- no.Ns, lU J.x.MAHV, 1702 lExtriiL't. I (riiey|.slinll proBoe.l t) inform your Inr iilii|)< of the preheat, in?l»no'i')!y |>r.j<;H'ot i.>f tlviir tra'lu anl enieat in Huiinon's Kay, mil tint none of Hl-^ .\I'ije'l.y'-i p'a'.ir^.ti.ni are lofr, in ^neh a .l^p'.oi-.ib'.e hMIm aa tliortt! of thin company, for by tln'ir i^reat lo.t Port XeUon and Albany Fort, whereby they have hindered the Indians from coming to trade at the o 'Ui- pany'a factory, at the bottom of the Bay, so that the company this year have not received above one hfth 210 iiiK iiiDsoNs i)\v ( MS I'iTirioN i(. 1^1 i;kn asm;. 1711 ,vhnIo Sfniits lie Hnlson's H»>' UK AMi I'l. \NIA- show ill;,' oxiu'tly fill! >tati' of i,luii_fs. li^rht, nr wronj,', wIum.) tlir lliitlson's Huy Oompnuy statu : " Tliat tho only Hcttleint'rif flic Co ,,pany h.i\>« now lift in lIu'lion'H Bay (ofsevcu they formerly posncHSf'd) in AUiauy Fort, vuluiirly uallfd Clu'cliPuWiin, in the 'ottoni of the said buy, wh( re tlmy urn ttunautidKil by ilie Freuoli nn eveiv *ide, viz., by tlieir neltleiueiitH on tlu) irtk.^H tvnil rivi'i-s (ro n O.inndi to the iiorthwiirdo, towardR Kud80i\'H Bay, an also frjin Port Nelson (Old N'oik Kort; to the southward." Mr. Mft'AHTllv. — I fl) not know to vvliiit i.'xtcnt tlmt stati'iin-nt is ri^lit, l>iiL they (the Fiendi) hii'l a st'ttli'iin'iit on the Alhmiy Jliver, find tlioy had ihut settlement nn l.iike AhMtilii, vvliii h i,s to tlii- north of l.,iike 'reniiscMOiinLj. Wlien tiiey say settli'iuent, it 'ut there would no more entitlo them to the teriitory than their .H«ttlehi"iit to the north would entitle them to the land to the north. Ml', .M('< 'AHrilV.--In the. ne;jfotiiil.inn.s for the peace (d' I'trecht, the Knj^lish insisted on luiving the cannon, and a ^ood deal of diseu-sinn took plaee as t<> the word.s " restitution " and '' cede," and ont) n\' the points was, that if it had been a wssion, the Krenc-h would have ri;,fht to withdraw their ordnance and their puVdic priiperty. Ft" on the other hand, it was restitution, tiie catnion and the pul»lic roperty W(!nt to the eon(|Ueror. Then, in view of the Treaty of I'lrocht. tlie war havmo; itecurred in 1702, a.nd iiaviii;^ ooiitiniiod to ITlIJ, I think, if your Lordships will look at pa,i;'e oTri, in view of the neor,tjations tlun pendin'^- for peace, tlio Hudson's Bay ('ompany presented their claim in the 'j>ueen,* and that states — part of the rHturnt) they u-iually h»d from theneK, iiiiomucli that thn s.mio d >tli not iwiiwor the tixpaiHt! of their Hxi"'illtiuti, T][>f. coiniKiiiy, lifiiiK ''y thest' und vither their mi. yet (> is^osnc i "t in Hiil^ui's l!iy. li it iiuiy jiHlly I'-ir in a ..irt<, which it* .■' )lely iii'^itiatid I'y uin iniuiuf;i,of,iiivr>< ut I'li.- kiiij,Mr.ui. ' The CorapMiy'ij [M-titlim to i^ui-eii Anne, 1711, uhose ii'liiiiHrfinns are .io imnirtiiit th.it, it iiny In! well to Kron|i them here in one view : — I Kxtracts. | TlMt the Krivn.-h, ui u titn" of perfect amity b 'lW''f:i th- two kintfdoiiM, vi/., Auuo liiS!, did arbitrarily invaih' the eoinpiny'-* territoniw at fort, Nel+in, burn their lion-ii'j and «ei/{- their otfects. 'l'ii:it m the ye\rx lii'^l and Iti'^j, they oontiiived their d"pi-edatiiins. Th.it in the V'mv I'iS'l, they forciljly tjok froui the c;jnip:iiiy three fa'.'tori>M, vi/. : .\ll.iny Fort, Rupert and Moow K. ver b'ort, whiuh violent proL'.iHdin« th 'v cuntmiied thfycir.- liW" an 1 l>\'*\ tlie who'.e damajfOB done by tilt' hVench to the crimpany in times of pmoe amoiiiitinir to t'l08,,il4 1%. 8d. as your petitioners are ready to make up|>ear, besides intere.it for tin; :i.ime. ' '' * * Hilt so it is, may It plea --e vol u- in i.-il K any want of care in that gracious Priuc of this Ki'ijrl'ea'.s h m >wr and trade, a'vl ratluT think timir rikfhts a'ld olairns were then overweikfhud iiy nutter* of hij^lr'r co!is('i|U"a-:e dep!ndin^ in that j'lnijtnre : for (ly th<> said treaty they found their c m lition niich w..rse thin it \i,is Inf ir,', — by the S'„h article whoreof, tin French were left in p^messiun .if sneh places »it'iated ill Hudson's B.ay, am hid been t.iken by the.n dutiii,< the peace w,iich hiwl preceded that war. That at a iiicetinj; of Coinniissioner.* on b.ith sidw («'< directed bv the said treaty, 1 1 adjust the>e differ- encc-l tlie company did again set forth the uud lubl" I r!:,'ht ot the (!.'r.nvn of Kn,»liin 1 to th'i whole B»y and Streijjlit'* ot tluds 111, ai,M Mdt wtiich n.ithaii? but s'lphistry and ca^'ils were olfered on tlie Kr inch aide, and the matter remained uiideter.nined. ThiC the only setch'ine.it now rem lining to Uis OJ.npmy in th')se p.vrtj (of Rovea they form irly had> is Alb.iny l''')rt. on ch.' Cii"('he(van, where they are surroun t-il by tin French on every sido, viz ; By their .sett 'ftaents oil the lakes .iid river.s from t'aiia.U to the n irthw.ird towards tfu'lsim's l?iy, as also from P'irt Nelson 'alia.i Vi'rk FortI, tr. the southward. The Fren -h have liki^wise mate another settlenien* betwcnn I'ort N'elsoii and .'Vlbany Fort, whereliy the Indians Mve hiiiderel from coming to trade with tli«.' Kiixlish factory .it the bottom of th- I5ay, and i!" they are siitfered to h< and f.irtify in those parts, beyond all question they will deprive your JIaie.sty's Bubiei;t.s of that tract of land, which is .s,, large a part of your American dominions, and rightly belongs to the LJr'iwn of tireat Britain. ' - - ■ That the aaid country d 'ti. abound with several other commodities (of which your petitionersi have not been able to begin a tr.ade. by reason of the interruptions they have met with from the French), as with 211 AHf.t.'MENT OV MH. 'M'OAHTHY, l}V.,re QUESTION of' llOfNDARV : "That the bViitch, ia a tiiiif of pt>rfe.'t amity bHtwmm thw two kin;4J nm, vi/., ttim j 108:2, did arhitr.irily iiiv»(iti thn conipftiiy'.i tt-nitory at Fort N'nlgon, Uurn thfir housiN, and Hei/.o th»ir etliHts. That in thf yp»ri) IGlSJ and |tiH5, they ooiitiim"d thuir dopredii tionw. That in rhi" yar jtlxt), thoy fonilily took from tlit' company thrn.- faotori»'«, viz, Alliany Kort, Ilupfrt imd .Mcoh« Uivoi Koit, wliuh vioU'nl proiiM'.liiijj they continued tin VfHra il)S7 and IGH,'^, thp wliote (iamui,(«w doni- hy llm Fr»iiich to the coiaiuny in tiiin-H nf peaoo umouiiting to £;|oy,51l I'J.h. Sd., m your pt'titionort. aiv n-iuiy to make appe ir, henidfiH intfresifor thn game. That in ilic yivir l()fi"», th«v Kupplioatcd liis then M«)'Htv, King .JuriM s ih<' Hecond, to intHrpoHt? on their l)ehiilf, and, by Ins amhassAdor'i ai th" Frenidi Couit, to demand icparatinn for the daina^PH dori(> to the company, and r-'.^titu- tion of the places unjnatiy tukon from them by the Frennh in time of pfiiee." Tli;it is n rvntHitioii of what your l.orilsliips linvo liennl. 'J'hcii, tliey talk,un [hil''' .'i7:i, iiliniJt the IVncf ol Ilyswick : " Hut 80 it in, may it please Yonr MoKt Kxicllfint Majegty, that tho coiiip,»nv fouud th if intere.-t not, conipreli< n led in the Treuty of Ilywick, whi'li they arc far from iittriliutinK to any want of '■*ri' in thvt ( Jr,ici)U-< Priine [th" lat'* Kin^ WilluunJ, of tin-, kin^dom'a honour and trade, and rather think their riiy the Haid trtMly, to aljust these differences), the company did again set forth the undoubted right of the Crown of England to the whole Hay and Straitn of Hudton, aj^'iinst wliich nothing but > anv right to the »aid territoneu by the peace of Ryswick, thiariglit roust neetls be dt'terinined tiy their njtori< im infraction of the s»id treaty. Thr j.ii'mineficonnidt'ied, when your Ma)e«ty, in your hiph wisdom, shall think tit to Rive peace to thosr entiinies whom your victorious ariun have ho reduced and humbled, and when your Majesty .shall judgi it for y ur people's Kood to enter iaio a treaty .f peace with the French King, your I'etitioneri pray that the •aid I'rince be obliged by Huoh treaty, to renounce all right and pretensions to the Bay and .Stnights of DC -■.n, ::■ ■■■•■" and surrrirjrr -■• .'ur-t- t»t,-^ _. , .^nii-i..- -•- ni .i.. . .. ncn, l.. _ i~ i pnmeKii' n if likewise not to lil any Rhipf or vessel* within the liniitK of the couipany a charter, aiiJ to niake restitution of the fl08,,')l 1, 198. 8d., of which they robbed and despoiled your petitioners in times of perfect aniit- between tt>- two Kingdoms. 212 LIMITS I'UOPOHKI) MY H. It. i n 1712, ASM) IIV Till. KNe"aii>e they speak of their land, and tlmy speak ol'inoro valuable land beinj,' >,'ivun to the Krenoh liy that proposition they then propose to make than they were rt.'taininy. The Loiio I'llANCKM.dit. — Then, there is a ;ie\v proi»osition* in 1711. What is the Ijeariny; ol that '' Mr. MtllAlil'llv. — 1 do iiot know that that varies anythini,' lliat I have read. It is a proposition as to limits. The LoKU CllANCKI.I.dK. Wlnre is (.iriiiun;;ton's Island ! Mr. McC^AUTHY — To the Tiortli-ea-^l, on the coast of I-alirador. The LoKI) PllESl DENT.— That would l.e taking the French out of the bay altogether. Mr. McCaktuy. — They proposed, hefons the Treaty of L'trecht, a lino of demarcation between the two provinces, and your Lonlships will Hn ' tliaton the map, marked substantially in accordance with the height uf land : "Thtt the siiid limits l)H£;in fioiu the island crtlltd liriiiiiagton'u Island, or Cape Perdrix, in the lutilude of 58J north." Sir lloUKur Co!,i.ikk. — That is very far north. Mr. Mnt reap "f 1*?S4 fi- \\f " Boundary priiposed by the Hudson's Bay Company in 1712,' runninff from Lake Mintawin to Grirninsf- ton's Island or Cape Perdri.x, and (2) " Boundary prijposwi by the Kngli.fh Commissaries under the Treaty of Utrecht, 1719," lunning from the same lake to the north capu of Davis' Inlet, on the Labrador coast. 213 ARGUMENT OK MI{. mVaRTHY, H.C, rr (^UESTIOX OK liOCNUAltY : S,r ROHKKT VnuAKH -The hoioht ol laud wo,.l.l not he strai rht M,. .]<'( AKTHV.-.-NC,, l>ut the lino proposed bv the second doelunent I n .„. the .il\r.t'reH°iruhL':C'r^,:;':, *l'^^^ tlio sutaequent comspondonc,., althouRl, „„t in thi, • '"" '" it c„,mL;l'«t™a -"^'t? '" "" "'"^""^■' "'•""o'-an.lum otTth l-ebruary, 1712 ; "That a line be supposed Tpass^l' " ""'■'°"' '^^ '^">' ''^^^''"'^'^ ^'-*--' "Supposed to pass " is the way thev put it Lord AHEHDAHK.-From that point it o-c.es down to Lake Miscoiinke Sir RoHKHT CoM.iKH.-It takes you down to tliat ^ ^^''^^O'^^l^e. Mr. McOAirrHY.— Yes my Lord. Lord AnEiiDARE,— And then it j/oes on further now Ji:iistdV-™'~^^^ ^ "dividing the same into two parts (as in the map Air" i^^l,n'^'''N'''''•~^'"lT'^•'^'.^■''" '"'^'^ "«^ ^^"^ ^^at n,ap ^ fhinW ; ? •~.^*'' 'V>' •'O'-d' Afterwards, this hecomos nnn.rtant I J^^^^J^^^^^^^^l^-Thf^^^ are intermediate ne^rotiations 214 CONsTUn-riON-OF ihk TIIKATV ok T'TUF.rHT, 1713. you will tiiuJ retty nearly Mr. McCautiiv — TlifSf nro Ix'fore ili.; peace. Tiiese are not nej^ofciations at all, strictly so called. Wliile iieo;,)tiutioi)«i for tlie ponce were the line that th.v claimed at that time > Mr. Mi'Cakthy.— That is the line they eli.iined on tliat side: " These limits heing first aettkiil and adiustod, the company are willing to refer their losses and daiiiages f rnieily sustaimd liy ttie French in time of peace, to the considera- tion of commissioners to be appointed for that purpose." Tlien they go on : " 'Ihe said company are by their cliarter, constituted lord.s proprietors of all those lands, territories, neas. straits, bays, rivers, jak^s Hnd sounds, within the entrance of the Straits; to hold the same as of Hei Majesty's manor of Ea,st Greenwich, in the County of Kent." That mean-i, I take it, that they take the wliok- from tlie entrance of the Straits of llud.son, and all the lands drained hy the trihntaries to that. That is their claim. Yonr Lordships will find that pretty phdn wlien we go on, step by step. Of course, the land was not of so much importance then as the trade. The Loud Chanckllob. — You are going through the detail of these negotia- tions, and it may be that it is neces.sary that you should do so, but as far as I can make out, the result ol: it seems to he this, that fi'om time to time various boundaries were proposed, none of which exactly I'efer to or coincide with the watershed, and that no boundary was tinally settfe^«». i" ^he French copy, the word is " dependent," or of thlt'^sens';;''' ('HAXCELhou.-Eve,7body knows that the Latin word is cai)Hble with*re;.a^d?ol^nJr\'-"''^*^''* ^ht'' '""'^"'"^ ^^ '^^' ^''i'^^' when you speak with regard to land looking towards the water ? What does it mean if you s >eak par of the T''^'"? '?y!^' i'^^T'" ' '^^''^ "^^ ->" ^^^ -y ^'-^ thafwas' t t pait ot the property that sloped towards the Thames ' I suDonse .^''^"',':^«E -What is the primary meaning of the word •'spectantihm V' 1 suppose the ordinary meaning of " spedantihm " is " relating to ?' At h^'f^ PHESii.ENT.-The French version is the original one. Mr. MoCarthy.— No, my Lord. l^! M?n' P'^E,siDENT.-Well, it is stated that there were two originals. to b« ir-f ^^^^^,"^~.^'' ^^? ^^"°"^'^ government directed their commLssiuners to be guKled by the Latin, and not by the French version i. It'^? CMANCEi.i.oR.-Where is the treaty to be found ? Mr. McCarthy.— At page 504 is the treaty.f Sir MoNTACiUE SMITH.-The note: says there were two originals, fion^^'^.i ''""•''•■~^^"' Lordship is quite right. Now what say the inst.uc- a momeift °''"'""''""'*''^' '''^ P*g« ''>^^^' i*' y«»'' Lordships will turn tK) that for Jhji^LoRnCHA,NCEj,LOR.~Before we pa.ss from that, let me say- after, w^hout s.,.arAte id'el^tt/ :Z:Z^::::^ ::: :ft^]^^^!^^^: -d wer« thore- t Printed mile, p. 112. ;,.f,, the sub-note*, atvte, p. 112. 21G CONSTRUCTION OK THE TREATY OK UTKECHT, 1713. '■ctantibnyi't" nmissioners Bla.lenin 1719, alont this Vnaty' ^''' '°'^^'-"ct>on.s to co.a.nksioner ,n.i.t upon it that the L uf/ ttatyt o K - ' '" '- ''" ^''" °"'' ^"^ *'"*'* Prencht..^ .he, .n h.e no tii'L'Lr a^.H;!:; ■ Ai;^;; iJ^^?^ jeT;';^^^'^ aneous translation, both of th^E His ;'?>,?"■' T^ T'''::'\'" "'^ contempor- n.enc, was not oiv^u to it " ^'ONem.a.nt an.l ,.f the French govera- «ndue';eJ!l2S"Mi:;;;'ti" p"r^' '' ^""'' ^'^■•'•^'"•^ ^^'" P--^- »- f- perhaps sens:^v^;^:h:i^^o::j^n:;fs;;^,:^^^sr""« ^'^'■^'- ^«-^' *« ^^ ^-^•^^ accept ' by the governn.ent, ana Ld^bf th^a^^hr y 'K^Z 'T''^'''^''' at the time. ^ "ui-noruy ot the hnglish govern- .•^^t!flli:^-^:^S^^ ^1- ^-anin, of these words as will see what he says /<' toSther with aVi kn h "" """'V ' ""■" ^^'''''^^^'P^ situate in the said bay and°s m its •'-look n f' V'fi '"^'''; ''/^^'"^ ^'^^ l'^'^^"^'^ Now what can that mean ' ^^'''" *'^^'"^' ^'^'^ «"^' t^'^y and straits. iiteJlo;;r2r^:sr*Jr*rcr;:ir '"p^^'"^ ^^ ^'^ --^^ ^-* Vlr M.C.BTMv Ti V ">' , ^n'rac'iiis P»i ties at tie time iciecled mont at the time." i- lu isueu uj aiuiioiity ot the Enghsh govern- helon^i£^"''\^:"l'^, '"^^ the words of the treaty: "and which never^said to b ?oMg ot earns or H-e^ ' rp^*^^''^^'''"^ ^\ ^ understand, land is ing to a country, it\s becru"e tl"e rive; Hni IT ""'l "^""'^'''" ^^ '^ '''''' '^"''^"fe^ owned by that s ato Vm, I n f/ ? xu'""°'h >^ country, a.id the land is a river, or bdom fn..' to a Hvt R "' * "^""^^ ^^'"g- ^P^-^'^k <"? ^^nd appertaining to ahigh authoritv^)"^ nokrnf ,^'"^'"^' '\" the contrary, (and I an .noting tfo.u so that when yJu av ' lich Lt .T Jej.eudent on the owner.slu,! of the soil, greaUifterc^ hAlle' n "ai^ng '"' ""'*^"'"'^' ' ^^'^ ""^' ^"'^" ^'^'^^ ^'^^•'*^ i'^ --y rep^Sl-Lrp.Tl^: ^^Tbilte*"..-^"-"'" -^- °' *»•« -r-'y. •' p. 604 of the Joint Appendix, 217 It ii Alsni'MKNT or MR. MCARTHy, Q.C re QT'ESTION OF BOUNDARY; Tho Loitl) PHKSiitRNT. — Thoro is no ([urstion ahout l)elnnf,Mnof to n river: Init it is bc'loiioinof to " the said Jkiy itiul Straits." Mr. McCarthy. — l>ut the samo tliiny aupiies. How wduUl you detiiie tliat ! wliith l)e!oiios to 8r.,)i>o.-^ing a iii!r.s()n callod upon you to iix tlio limits ol land the Hudson's Kay" — how can you detine it r And should you go ten 'inles, or tifty miles, or two hundred miles hack, or should vou go back to a deliiiiHi line, or what are you to do ! f )oes not the Latin supply the answer, that you arc to go to that line which is looking, or sloping, towards this l)ay or river ! ' Lord Ahkhoakk. — That is not the ordinary use of tlie word speeldnt'ibus. Ml'. McCarihv. — No; hut " looking toward " would be one use. Sir Montague SMiTH.~But rivers wind, and the laud looks towards rivers in all sorts of ways, and that, therefoie, can hardly be the })roper meaning of s/Hctiintibiis. The Loifi) Prksident.— My impression is that the English words convey the meaning, and that there is no need to aigue about the meaning of spednniihufi. Mr. McCarthy. — Very well, my Lord. Mr. Mowat.— It would be convenient, perhaps, to mention that the meaiiintr of this word tipectantihiu^, as given in Rolls Abridgement, 9.5 E., is identical with " appurtenant " or " appertaining." That is in a grant to the Duchy of Cornwall. Mr. McCarthy. — The Latin dictionary I have looked at gave the meaniin/ of the word, when used with regard to land, as being " looking to." Mr. ScoMLE. — The primary meaning of the word is to "appertaiti to" or " relate to." The Lord Chancellor.— Every schoolboy knows that. Mr. McCarthy.— Then if we go '., page 575, your Lord,ship •vill find the company's petition for an act of cession. My learned friend advanced an argument the other (Jay, that although this land was restored by the Treaty of Utrecht, and this ter'-itory was the same that was restored to the crown, that it did not enure to the benefit of the company. The Lord Chaxcelloh— You need not trouble yourself about that. "Mr. McCarthy.— That is all that that shews ; that it was so, and the following pages inake that out. They pray that the land be restored to them. Now, we come to the negotiations under the treaty, and I may state brietlv to your Lordships what I think those shew, so far "as it is necessary for thV purposes of this case. Lord AiiEJiDARE. — What treaty do you mean ? Mr. McCarthy.— Under the Treaty of Utrecht, in 1719. Your Lordships will remember, that now there was a long peace, from 1713 up to 1746, and in 1719 conunissaries were appointed, under this treaty, to mark out this line \n\>- vided by tlie ti'eaty. But, before I pass from the treaty, I want just to draw your Lonlship.s' attention to this. 1 stated this as a fad, but I thought perluip> your Lordships might have thought it was my argument, and not the .'statement of the treaty itself. It says: "But it is afjreed, on both sides, to determine within a year, by oomini.ssarifls to Im forthwith named by each party, the limits which are to be fix- d ijelwecn the saii! Uiy ot Hudson and the places appertairiinsf to the French, which limns both the British mul French subjects shall he wholly forbid to pass over, ortheieby to go to each odur by !"*''7\thin a year, by r.omiukmne^ to be forthwith named by each Dartv Yu.r ar^'ument i« that nature had determined tiiat, and that they were only to Mr. McL.\Kun.-No. my Lord, that is not quite so: I have not made my.self underHtuod. My argument wa.s that a.s a matter of pul>lie law, even as Se stood m those days the Hudson's Bay province* was bounded b^ that wate shed on the one side, and equally so was the Freneli province bounded by it on the other; that that principle which had been disputed up to that time by the two governments, was practicaly adopted by the Treaty of Utrecht, and then t would be an impossible th.ng-when I say impossible, I moan relatively, with reference othe expense-to hax-e gone and traced the line of this watershed all tmS this great continent, which was a savage wilderness, and therefore they were to determine some con vement hne, which was to be the line of demaroatioa between them. That is what I think the treaty says ueiv^eta Sir Montague SMrTif.-Which line need not be the water.shed > Mr. McCauthv,— It need not be the watershed Lord ABERi,AHE.-Then to avoid all the trouble and exp.-nse, what really was proposed as_ the exact line of demarcation, was that tl' ey should .ake a straight line beginning at one point and ending at the other, in 'its place ^ Mr. kcCARTHY.— Yes, my Lord. ' The Lord CHAXCELLOR.-Then, that mny have been a perfectly rational proceeding, but at pre.sent I .see no words whicli indicate one thing or the other ! Sir. McCarthy.- I need not repeat the argument, if your Lordship under- stand.s ine ; I cannot put it better than I have done " ^ .n 1 1^" ^*T <^>^f ^f''''>R--That would seem to be somewhat important, if vou ould make it out ; because, although these people did not do that which according t^Z u\l ^''' ^--ou.tempiaced that they might do, yet, in the absence of I 'rrsa!nLS.r'"'""""' ^'^^ ^'""^ ""-^^^ havepracticaHy settled itself Mr. McCARTHV.-Yes ami I thirk it di.l. I think your Lordship will find tnat It was practically settled on the line of the 49th parallel at n.."''is 'ln'?7?j.''T'^"^ proposition they put forward in 17 1 2 is again renewed. pardlel f ' •^'""' """'^ ^ ^^ ultimately settled the line of the 49th Mr. McOahthy -Yes.f May I state brieHy what I mean, because it will make tj^ie^rrespondence a good deal easier to understand i 'fiedantr p. 316, note*. "•"■~'^--Hi?;S'r^*^^ Britannic MajfHty :^ll;i . J.^± ^:}"1 V:!"?^^!':^""'"*' : .«•*•; •'»«* ^^ H2. note ; ; 219 AUOUMKNT OF }IR. M'CAUTHY, Q.C, le gUESTIO>f OF IIOUNDARY hi The L(»HD Phksidknt. — Dn I lUnU'istaiul that your contention, thac the water line or hei^^'lit of land was the tirijrinal lioiuuiary of the Hutlson's Bay Coiii|.)tii\'> territories, is entirely ileri veil from the words of the charter, namely, "all tin- lands and territories upon the countries," etc. ? Ml'. Mi'Cahthy. — Yes, my Lord. The \a)M) Phesident.— It all depends upon them ? Mr. Mi'C.'authv. — Yes. The Loud Puesident. — Absolutely, does it? Mr. McC'HTiiY. — 1 think so ; what I think is this, that all that the En^ilisji owned, their Hudson's l>ay Company were entiL.ed to, as 1 stated on Thursday, in my Hrst ohservatiur,. The English 1 einii the aide of England, a line was pnt forward starting from Grimington's Lsland, or from Davi.s' Inlet, I am not sure which-' '—perhaps Davit' Inlet, which more corresponds to the height of this land — 'io vn to the Lake Miscosinke, and from there down to the 49th parallel, and then westward along ihe 49th parallel The Lord Chancellor. — That will not have any reference whatever to the watershed ? Mr. McCarthy. — Pardon nje ; of course it is not the watershed, which is an irregular line, anel, for the reason I have already advanced, would not be a line at all suitable to the state and 'ondition of the country, but looking at, thai line on the inap— dohnston's map — ;. would go and take all the watershed. jl Lui'd Auebdare. — How far westward did that go ( Mr. McCakthy. — 1 wWl point out afterwards that they went, as they eliiinied in those days, to the vi-ry sea. That was the claim advanced. The fir.sL terri- torial claim that the Hudson's Bav Conr,mny made, before they knew where the height of land endcl, was to the Pacitir Ocean. The Lord Chancelloii. — 1 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 hide 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.ih..' line. •'Jntario shewed that there was no such discovery as entitled the Englieh to an exclusive "Dht oi •ett'.ement ; that on their part there was abandonment ; that the French were, as a matter of fact, tlie hrst difJovererB of the country, and from the aide of the St. Lawrence ; were the first to assert a title ; anil had p.ior and continuous possenaion. See antt, pv- 1S9, "<'te X, 200, note *' ; also apjwndix B, hereto. t As to the height of land theory, nee and; p. 191, note t, and pp 216, :!17, text. X Printed ante, p. 51. §The English commicparies wore required by their instructions to demand the line from (iriiumg toii'a Is!arr5, ;r. lat. 58i" north : but th>= ^IfriiRn-l thpy *rt,nslly mivdn, in the de.esiisiRnt transmu'.*! to tlie French coininiesarieft, was of the line from Davis' Inlet, in lat. 66^°. (.Joint App. 608, 511). . i I^ot at all ; the Oth parallel, though at some points far to the south, is at others far to the north ol the height of land. 220 THE LINE OK THE 49tH PARALLEL OF LATITUDE. added to qualify Mr. McC'\RTHY.— What T say ih tliis— suj.posini,' thev knew wl»ere the water line was, as the maps show tli.n' did, and iissninin;,' still further, a« another factor of the ar^jument, that they agreed it would l>e impossible to follow that i,n>_'uiar water line— that tlie 49ih parallel is a fixed line, ami I think as fair a line ,us could ho assumed. That is all I mean t.) say. Not that it was the water line by any means, but lookiriL,' at that 4!>th line, and lookiu'T at what we know to have hecu the. suppo.sed height of land in those days— becaiise thev did know there was ;i l,.'ioht of land, and they ilid mark it 04.+ The LoRlJ (JUANCELLOJI. — Where are tlie proposals of the company ? Mr. McCahthv.— T am just coudng to them, my Lord. That oi'llld is J 'j7U: "That at the treaty concluded at Utrecht it was agreed between i ivns of (Jreav Britain" — Sir RoR'-'UT ('OLLIKR — Tiiis is the memorial of the company ? Mr. McCai'.hv. — The memorial of the companv to the Lords Com at Trade and Plantations : niissioners " That at the treaty concluded at Utrecht it was ajjectH, aad that the limits should he settled Ijotween the said Bay of Hudsou and dio places appertaining to the French, and also that satisfMctioa should bo given to the company for all depredations committed against them by the Fr.mch in a time of peace, according to an estimate thereof to be made at the requisition of the several parties. Now, may it please your Lordships : The tirst of these articles, the surrender of the straits and bay aforesaid, has been made according to the tenor of the treaty, at least in such manner that the company acquiesce therein, and have nothing to objector desire further on that head. The other two, viz, the running of a line betiveeu the English and French territories, and the making reparations to the cjtnpany for their lo«es and damages, yet remain to be done. Whereupon, the GDvemor and Conpiny mast humbly present to your LordshipH, that they conceive it .tbsolutely necessary that the limits between the two nations be settled without delay, for that the French have, since the conclusion of peac^*, vi/., in 1715, made a srttleuiHnt at the head of Albany River, upoa which vtry river our principal factory is settled" — Lord Ajjehdabe. — You mean tlu; mouth ^ Mr. McCarthy.— No; the .source or head of the river; "At the head of Albany River, upon which very river our principal factory is .settled." That is Fort St. Germain, your Lordslup will .see. It is not at the mouth. It was spoken of by them as being at the head. Lord Aberdare— Do you think that is what they meant, Fort St. Germain ? Mr. McCarthy. — Yes.:;: Sir RoiiERT Collier.— Where is that ? That is not the head of the river. The Lord Chancellor.— This says " since the conclusion of peace, viz., in 17L5." *rhe evidence esublished that the Iin« of the 49tli parallel never was accepted. See ante, p. 142, note :, p. 219, note t : post, p. 222, note t. »- • f . tSee ante, p. 112. . +J'y St. Germain waa built on Lalte St. Anns, on the A.lbany, and was in existence lonir before 1716. U i< depicted by that name on the maps ev.>n a■>■'' » 221 AlKiUMKNT OK MR. m'cARTHY, (^C, '/V QUKSTION 01' liOlINDAKV : that thr Lfinl Ai;ki{|>ai!K. -It may Iiavo been pulled down mid relmilt. iVlr McCautiiv. Itmay have bt't'ii. I do not rmifmbor niiv evidence it WHS built in l()S4. It is not at tho nioutli nt' the river. Sir RoHKur ('oi.liek.— Nor is it at the .source. It is neither the one n.,i other. Mr. MciCahtiiv. — I thouj,'ht I'or the nmment it was at the litad, Sir RoiiKKT C()l-LIKH-It is not at the hend. Mr. M('(/AUTHV. — What I meant was, it was n<.c at the mouth. Lonl Alii' KDAHK. — What is the head ' Mr. McC'authv.- One cannot .say where the head is properly. Itistlie lieu) of Albany River : — " whereby they intercept the Indian trade from coming to the company's fa. -.li,. and will in time utterly ruin the trade, if not prevented. It i« therpforo p'roposed i.-i desired, that a boundary or dividend may be drawn, ho as to exeUule the French fnn, comina; anywhere to the northward of the latitude of 4'.t, excopt on the c-mat of Labradore. Unlets this be done, the company's factories at the bottom of IIu.Imou; Bay cannot be secure, nor their trade preserved." The 4l)th litie would bo practically the line we arc contending,' for here. That was, as I pointed out to your Lonhhips, found within the last Twenty years A Committee of the United T^^tes Senate, or House, said, notwithstandiiio all that has been alle<;ed against the adoption of the 49th parallel, they are stid ot opinion It was adopted by the coinmi.s.sioners.* However, I will not antiripntr my arorument upon that point. But it is the basis of everything that has liai.- pened on the continent; it is the b.asis of the north-westi;rIy angle of the uL of the Wood,s;t it is the basis of all the treaties between Knghuufand the Uuitiu States. Of course J am only sjealcing of that part of the country. Xow we come to page 507 ; - liepresentation of the Lords of Trade res|..e itiii- the powers and instructions of the Knglish commis.sarie.s." Your L.rdshii.s will see the date of the last document I read, from the Hudson's Hay Comi)any, was 171iJ. I am not quite sure the exact date of it is gi\en. We have the exact datf of this, vi/, 2(ith Augu.st, 1719. This i,s a " Representation of the Lords of Tuvk respecting the power.s and instructions of the English eommissjiries, 2Hth An 'usi 1719: To their Excellencies the Lonls Ju.stices "'— then they speak ot'tl.i' instruclions : "Ii vas not ill our power tj give more despitch to this matter, by r-ason of the multiplicity of books and papers which were necessary to be read and well cjtiaidi'red upon this hubjeut, b> sides that we were obliged to oonsidt; with several pei-.>ioas, aad u: wait for such bgbts as the company of British merchants trading to H addon's Bay, ihc Al'ricau coiDiiiiny, and several other paitits concerned in the success of this neootiadon, eould giv(! us touching their respective interet^ts and demands, tor which we huvn mule the most effectual provision we could think of in Mr. Bladen's instructions. We h,m perused and considered the several charters granted by His Majoity's Royal predecessow * Their opinion wa*i clearly wronR, it appeal iiij? by amass of evidence piiniecTin the AiipenduH^ i.nd largely quoted by the Attorney-Utneral, lu hm ^uniuent {ant (, pp. n.'J.120), that no limitary liiir ,1, the north Was ever rigree, ot which in.mv art. very exU'nsive, atretchii.K from sen (o sua, but as tho l-V.'n.-h would not pcrhups 1,.^ rl-.tormimd hy tli.so authoriti. a oniy, ar,.l since w« have not hitli.rlo b.fn al,l.' to «<-t siu.h inapR of th« Kaid i.lan'ations ■i« limy be depeniitd on, or toootnin suri, furilier inf.,riiiatio.i3 hh uiiijlit br miuircd t„ support tho light and tul<' of Mih M,.j,.Hty, or any of )ii8 siibifcts have, to places wUch lh« French poasess, or pretend to, either on the b.ick o; the Hriti.sh pbmtationH, or west- ward fiom New hnjjlaiid down t tlie (Julf of Mexico, we thoujjfit it proper to leave oat of Mr. Hladen s full powers th.tt part of the t.'nth article which relates to a gei.er.il s.ittleraent of tlie boundaries between the co'onie^ of the two nations in Amerija ard to restrain hiH comniisaion to t,h<' bonndarieH of Hudson's l^ay and Nova Scotia only, wheie wo have proofri and authontiei. agiiust which we think no exception can reasonably lie made.' Then it j,'oe.s on to .siiy wluit else the instructions were. The instrnctiuiis ar^^ at pHj,fo 508, line 29 : " It being provided by the tenth Article of the Treaty nf Utre.-ht, that the limita ami boundaries betwc en lludHon's Biy and tho plaae.s appertaining to the French b© settled by comrniHwri-B on each part, which limits l))tli tho Jiniish and French subjects shall be wholly forbid to pass over, or thereby to go to each other hy sea or by land, you are to endeavor to sjet tho said limits settled in the loUowitig manner, that, ia to say: That the same begin from the island called Grirnington's Island, or C^pe Perdrix, in tho latitude of fiSi north, which the company desire may be the iioimdary between the British and French subi"cl8 on the coast of' Labrador, towards Kupert's Land, on Ihe East Main, and Nr.va Britannia on the French side, and that no French h'hip, barque, boat or vessel whatsoever, shall pas.s to the north westward of Oai)e Perdrix, or tirimirigton's Island, towards or into the Straits or Hay of Hudson, on any pretence whatsoever. And further, that a line be drawn from the south westward of the island of Grimington, or Cape Perdrix, (so a,s to include the same within the limits of tho bay), to the great lake Miscosinke, alias Mistoveny, dividing the siid lake into parts (as in the map t.i be delivered to you) ; and that where the said line ^hall cut tho 49th degree of northern latitude, another lihe shall begin, and be extended westward from the said lake, upon the 49th decree of norchorn lititude, oi'er whi.h -i ud line sj to bo described as ab.>ve mentioned, the French, and all perioua b. them employed, shall bo prohibited to pass to the northward of the said 'Hitli decree of latitude, and to tiie north or north-westward of tho said lake or supposed line, by land or water, on or through any rivers, lakes or countries to trade or erect any t'irts' or settlemintj"— and su on. Then follow the iitstructions abjiit the Latin trcnty. Mr. 8C01U.E.— Will you read the next para^i^raph < Mr. McCauthy: " But you are to take especial care, in wording such articlu,s as shall be agr.ed up)n with the commissary ot His Most Christian Majjsty upon this head, that the sUd bmil- aries be under.stoo 1 to regard tho trade of the Hudson's Bjy Comp;iuy only ; that His Majesty does not thereby recede fro.n the right to any lands in Aoierics, not cjmpri.sei within the Hai thereby given to the French to claim any tracts of land in A-nerica, soutbwanl or south-west of the said bound tries." Lord AuKRDAUK— Those are references to what we call the United States now. Mr. McCAitTJiY.— I thought it was perfectly tiniteistooJ that this was only detcrminiiij,' the limits on the north. My friend's point is, that it sf.eaks of the trade of the Hudson's Bay Company, but I do not think that was the intention of it. The Lord Chancellor.— I think it is i>rol>.ibly intended to guard against, ceding to the French everything to the south of this line. 223 olt (.•on- at, AKM MKNT (»K }\\i. MOAllTMY, Q.C, r' lil'KSTlON OK HOl'NttAKY Mr. McC.'AUTliY.— 'J'hat is wlnit 1 thoiifilit. Tlie next is very im|» •itatit " And whcrcuH ic hath \m-i\ rcpreNnntci by tliH Haid loijipany iliic tli-* Frenoh have iinw.' the I'nact- of Uln-cht, viz , in 171 >. made a MHitlcnient at iho h<;»l of th- All.anv liiver, upon vhUh rivir th»' ooiiifinny'i* principU t'-ictory U hettli-J, whereby thti Kr.i,.i, may intorcept ^he ImJian trai1«^ Ironi ciiinini^ to the nai I f.u:tory, mid mny in tiiii" atn rlv ruin ihf trade of the coiupuny if nit provt-nted, you arc 'o iiisi.st that the said foi' bV g.ven uj', or demolished, by tin- French, and their sii'ijects lie withdrawn frou, diat fletcleinent," '1 he Loud Chanceli.ok. — You might possibly tieat tlie Albany Kiv.r d^,,,,,,. iiifiieini,' at tlio foot of f.iike St. Joscpli. Mr. MtCAiiTHV — 'I'liat is the wiiy it iiit spoken of now. Tliat is wluif i.^ calk'].h The LoKD ("HANCK.i.l.dll.— The Koit La Manin' was built before 111S+, .i,,,! tlieiefnre cannot be tlie one which is here referred lO. Mr. McCakihv. — I thiidv that it may be taken for ,disli Conimi.ssarie.s, 17 J 9.* The Loiti> CliANCEIXOH.-That is the 49th ])ara]lel ' Mr. McC'AHTirv. — Yes; that i.s all 1 liave been able to shew y(mr Lordship, They never claimed anything but the 49th. There is not a word in this eorrts- pcndence about that. I have only .said, looking at the map, and lookin^ at tlie knowledge the French had, and I .suppose the knowledge the English had%tthiit time, if a straight litie were taken that woukl 1h* a fair line. The LoKi) ('iiANX'Ei.i.ou. — You do not imagine tiiat both the French and tlip Engli.sh supfio.sed tliat every river i'rjm the Pacific side tloweii into Hudson s liny. They may not have known the geography of the Rocky Mountains, or the conritrv at the west side of them, but it would be a very extraordinary thing to supiidsi' they imagined there was no river between the two seas which tlid not flow into Hudson's Bay. Lord AUEHDARic — I suppose tney dealt practically with this 49tli line a-. dealing with the eountiies they knew of. Mr. McjCartiiy. — That is what I was going to say. If you lookatjiage oil 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 tin English Commissaries: "The said ('omnii88ari*s further demand that the subjects of His Moat (Christian Mrtjesty shall not build fortw, or found settlements, upon .tny of the rivers which eruptv into Hudson's B*y, under any pietext whatsoever, and that the stream and the entire navigation of all the said rivers, shall Jib le!t fr-e to the companv of English mcrohanls trading into Hudson's Biy, and to su-jh ladiana as shiil wish to tritilc with theiu,' f The instructions to Mr. Bladen are that he is authorized to agree to that line, ami your Lordship will see that had already been provided by the Treaty of I'tncht That trsaty provided that was to be the boundary line between the two siJes. ■ Printed ante, p. 159, note '. +Id making this demand the EDglish Commissarieii exceeded their instructions. See inte, p. 159, «ub-note '. 224 THE II.H. (.O's rUETKN-SIoNS TO THK HEKiMT OF I.AND^S A HOUNDAIIV, hiti i'Kh line as I. See ante, p. 153, It is iiu'ntioiied in Chief which neither was to cross^ Ih.-n w. cuue to the aola.ation of war : 1740 or 1741 MiHns to have heui. the .late of the declaration of war. All I can say is. ihut up to this stajje that wan the cl^iin uia-l- l.v the Kn-lish. That .rlaini, ho far as the evidence shews, uas not acce.led to, thou-h it does not say, up to this dftte particularly, that ,t ^yas not.- I hav.- not he.n al.le to prove to y(^,r f.-rd- >lnps that It was I here is one statement which has iM-en cited by my learned friend. "^ •' Tlu. Loud t'...\N<-Kr.r/.i.. -More than om-s.-vral statements. Mr. Mr« AltTKV.--Vour Lord.ship ha. , .,t lu,-anl nio out. There is one state- ni8nt,shewin. the .1,1 ..ronee hetween the tvv.. was two d.,.j,'reos, aiul the French were clainun'j^ it sli.)ul CHANCELLoa- Which i.s'^the pas.sa<,'e " Mr. M.:CAimi v.-I had hotter not detain yom" Lordship, as I cannot put my hanil upon it at this moment.T ^ "^ Lord AitEHi)AHE.~He says, at the bottom of page 215 : ''That at various periods 8ub.se,iuontly to 1 r,70 an.l to 17.50, th,> Hudson's Hay Company had been c«llevia2e.-(t'act fr„ n Chief Ju.tioe l»r«per » memorandum BubmUte.l to the Secretary „f State for the Colonies on the Oth „f May im ,"' -! toth«I.^fh^r?^l""?^T'"?^',",''''f'''*"'r'("''^ "'" »«'•«« "' 'he proposal which would have'liu^^d hem tothewth parallel. Colonel Bladen, one of the British C.mmissionerH under the Treaty of tUreclit wrot^ hrora Paris, in 1719, m reference thereto ; • I already n.-e some ditficulty i' the exertion of thin Xi; Ih^ll — .....,,,j-nt r„ »,tr '."January •.■::T!id fat; Rmvwi at. ■ poX.^p^lsJ'note?.'^'"'^ description of the a.,anmed grant of the H.idbon. Bay Oo npany to Lord Selkirk, 15(B) 2:5 AHOI'MKNT OF Mil. mV VHTHY, '.>.<;., re c^tT.STrON OF Hoi;XI)AUV } vl ari.I .luring tlio war, Hie iioxt tliinj,' flmr wv lmv.> with r.-jfartl to tliu! C()in|taii> , claim liy livui a.lvotituivi-i. sotting' f..rt!i |»ivtty iiiuoli th.' saiiir that has Ikvm .,[ forth by iii\' leaiiu'd fricji.ls on tho i.thor '.i.^^ jiaiiiely, thai tin- Hii,I'^..m\ |;,,\ ComimtiN' lia.l not fultiHoil tlicir iiii-hi|) to that petition for tho pnr|Misr of sin/wiii),' what i^>!l.,w,..l upon it. Sjii Mo.NTAca/i; ^mitii.— Von un? j,'oing hack in date. Lord AHKliDAKK.-- I tlionyht wo had ;,'ot to .'^U. y\v. McCaktiiv. — Tho dociinu nt.< arc all xoattor.'d, untortunatolv. it Ii,k bofu irnpo,>-iblo to koop llieni in any kiml nt scijuenco.* Tho Loito ('mancki.i.ou.— Who did (liiof .Tustioo Draper repre.sent. / Mr. AlcCAirrilv. He repro.sentrd the old Provin. .; of (.'ana la, b.. for- Con- federation. Old Canada was ['ppemnd bower Canada, now <,»uob«;c and Oiuann two of tho proviiiecH of tho Doniinion. What I propo.so to refer to i.s the ciaim made at thi.s date, on pa;,'e .>S0 and oHl. Tht; Hudsun's Bay Company w.-ro com- plained of in tho sense I have put. It ootnmonces at tho foot of pa,!.,'e ."SI : "Cap. tain Middleton to A. Dobb.s fc:s.i."+ It i.s more oloarlv shewn in ""the docuinini ccritaintMl at pa^'e 'I'JH. Tho result (»f it appoars to have been this, that it wu- referred to the Attorney-General and the Solicitor-General for their joint opiniM, They not only took the complaint into con.sideration, but they heard couns,!, arul I think they had depo.sition evidence before them upon the .luestion, and it s.-ems to be a iiuaHi-judicial deten'iunation of the very matters whicli, at this late dav are raised again l)y my learned friends. This is the report of th.> leariwd AttoriiA- and Solicitor-(}eneral :j '■ To the hlijht Honourable l/ie Lords of Cvmmilten of His MojeHi/'n Most IJowncrdU Privi/ Council. "May it Pf.K.\si; Yolk Lord.'-hii's : " Tn humble obe.iience to your Lordship'n Order in Council of the tth of IVhruarv last, roj.rosentins that by im Order in Council bearing dato tho i!6th of J:inuarv iw thfre was reforrod to your Lordshif s the humMe pedtion of Arthur Dohbs, Es(i., and tlm rest of the C(. ..rni'tee appointed \>y the suliscrihors for tiudinj; out a passuse to tho WVstein and f5oiuht?rii Ootan of Auirrioa, lur themselves and the other adventurers, and limt your Lordships, having taktn tho said petition into consideration, wore pleased to r.'fertiic satne to u« to consider thoreof. and to report our opinion thereupon to your Lcnl,H!ii]i<, Which petition set forth, That the petitioners, in tho year 17t(3, did, at their own tostb and charges, tit out two shipi upon an expedition in search of the north-west pas-siigc to tho Western and Southern Ocean of America, in order to extend the trade and imreaai- tho wealth and power of great Britain, hy hnding out now countries and nations to tnui- with us, as well in tho great northwestern eontinent of America, h.-yond Hudson's 11 iv, as in counuiea still further distant and hitherto unknown to tho Europeans, and alsD i > many large and populous islands in that great Western Ocean ; That tho po'titioners, by nieans of tho said expedition, have made several discoveries of b.iys, inlets and coasts, . P'usuant to a wel -coiii^idprpd plan, tlie d.pcunients wpie classified in ttie Apppndioes acc.irlinjf l. their kin.l, and asak;ned to tluMr proper place.- in the varioiH Sectioim, as for instanci', Impeiial Statu!-» • iid Acta of State, Tre.^tlca and Conventi .ri«. Judicial Proceeding*, MudHon'H Bay Company's KiKhtsaal \^Ii«l JlJCf '^vC** t (,;uoted cin^-, p. 59. : Joint opiDion of the Attorney-tJentral and Solidtor-General, Sir Dudley Ryder and Sir William iUurray, August JOtn, i7o4. 226 OriXloN f,K ,.,,|.. , ^^y OFKrOKKH, I7,S|., tunatclv. It Ii„ /'i Mont Iluii')ur ^'"^P"''"*" .o„,e t,.l.. of furn, LL m\ he olX rTV'"''' "T '^""V' '^"*- "'^' ^"^ ^'"'''"« the lau.iH they .hm.!. dis.c vfT o... U 'r* i'"' """" "'*^ ""'" P''^P'"'-'y "^ ■^" within lludJn'. B.rJtJ\ri^;X:sir f^ traf any other Chmtian ing two Hll<« and two "i. l^^^T^luL ^'^ ' "l" ''''""' '""^'^ ^'"'^ ^"'»'"'' "^i^^ov -t, pay- .eLrn should enter thrteHt^. ;r,.r:' .f "''^ " '^'^ '^"J'*^'^' ''"•' ^'« »"- prpri,.to.. saving only their fS "nd ^Sn ^'^.^T\' "''V U^"- " ^T'' l.et.t.onerH Leg have to obs.rve that th. naM c"n ny ha H.ot in' . • ."'1'" ' ^^' e«rn.8t, searched for the said puasac.., hut have rZt L ? '' ^"•^'-•^"*1 y- O"" "> and to ob.st.uct th. disoove.y fheroof hy . tl " nor Inv" Zv '! , '° *•""""' f-*"' '*""' cither upon the coasc or in the inland lo m^r'i,? • ^ 'i!'''" *"^ ""^ discm-ry. grant of their charter nor have ,hnvtal.r ".''.)''"""g to Hudson'. Bay ninoe the «.nred to then, or e;'tr,ed"t;:i''tid;r .uo 'r'^^iz::;zt,T- "' '"■ '^"^^ nor-uHde any plantationH or Hettlcnients exc.i. fm r " ! fn , ■'° "'"'' 7"^'"*''''^' house, in all whioh .h< v have nmintaiS in . mw^^ • f "'' *"^' ""«' ^"'a" "-ading pernon., servants „f thrj^DanTn r 1 . P«'"-""*^o"i one hundred and twenty subjfict^to plant, /e tie or SH; anv o 1 ^'^ .'""''?. "">' ■"^''' °^ "^^ ^I'y««»y'« an,! tr/de within their lin.its on tl,^Z?h .i 1 i Jt H t'''> l^Vonch to encroach, settle of (ireat Britain." Houthn^e of the bay, to the >-reat de-.riuumt ..nd lo8» IV L.,ui, ( ■„.vxcEbLr>H._TlH.y want to be ir.cnrporate.l, othe;:r;.ii^^^^^Si::"::lt^hfS"i^s^::^::^n as ,h.y shall en.H^e in tlu/s.id under akinr,rnd th .fclZ^'t "'^7 ^"""^ then, the pro,,erty of all the landn which IhTy Tall d"?"'"" ^"" ' •■"• "'''' ^"'^"^ ^° "Il'^n ^S;,:^.'!:'! ;;;S'VT^^^^^ "^"' '^"^"*'^^' »>• cour.«ei on both Mr. McC.xuTHv.-I say a .inasi-juaicial tlecisiou. ct.on to deternnne thLs matter. It, i. a rcfmnee bv Vh. V^^ t!' " -^r"-'" t e Crojv., and to assi.t then in that a^wSJul^T^eith. t b^^ p^ U^T ,,^1^: •3; , aiid the partifs employ counsel. ' ^ '^^° *^ set out at 227 ARGUMENT OF MR. M'cAUTHY, Q.C, Ve QUESTION OF HOUNIUHY : -I submit it is ditierent from tiie opinion of counsel obtaiiuM Mr. McCauthy. by the company. The Lord Chancellou.— Yes, it is the opinion of two law officers of the Crown, men of yreat reputation, and I dare .say quite as valuable'as a very hir^j proportion of the documents in this book. Sir RoiiKKT (,!oi.i,iEK. — It .seems to me to hjive very little bearirir,' upon tin; questiim. if you read the last paragrajih you will see exactly what they dj.] Mr. McCarthy.— We must .see what tlie claim was-. " The petitioners inaistetl on two general things, that the conipany'a charter was mthtr void of its original creation, or became forfeiteJ by the company's conduct under it." The fiist part is not in question. Sir MoxTAfiUK Smith.— What do you say it shews ? Mr. McCarthy. — T say it shews, as to the question of the occupation by tiic company, j)roponnded Viy my learned friend Mr. Mowat to your Lordsliipi, tli- non-occupation by tlie company of all the territory did not woi'k a forfeiture- uf any part of the land granted. Sir Robert Collier. — Nobody contends it did. Mr. McCarthy. — Oh, yes. Sir Robert Collier.— Vou may as well read it : " But as the grant proposed is not necessary in order to prosecute any future atteniut of the bke kind, and ibe char.er of the Hudson's Bay Company does not prohibit the petitioners from the use of any of the ports, rivers, or seas included in their ciiarter, ' they are inclined to think the charter of the Hu:'«on's Bay Company did not "ive them an exclusive right of trade. ^ Lord Areudare. — The whole question is about a grant of £20,000 to fiii,l 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 the=r (lis- coverie.s that way. Mr. McCarthy.— I suppose that is one thing thoy naean. Here is a distinct indictment against the company. It was followed then by an argument on behalf of the petitioners, which the company opposed by their counsel, and tinallv 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 declare the charter void : " With respect tr> both these, considering how long the company have enjoyed and acted under this charter, without interruption or encroachment;, we cannot tliink 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 juatici^ to warrant it ; and the rather because if the charter is void in either respect, there is nothing to hinder the petitioners from ercising the same trade," And so on. Sir Robert Collier.— Yes, that is, they had not tlie exclusive right of using chose rivers. This really has no bearing upon the (juestion. Sir Montague Smith.— No ; I do not think it is of any u.se at all. Mr. McC\rthy.— 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 servants how to dofond themselves. Then m IT+M, is the Treaty of Ai.vla 218 JNDARV : )f counsel obtaiueil ipany did not ^ive t is not expedient LIMITS CLAIMED liY HL'DSON's HAV CO. IN 1750. *?*?i*. nMT*; '^L? ^ n '* ""1 ^'^ ''^'^'''"' ^« ^^' "^^ t'^'^ q"^«tion is concerned, the Ireaty of Utrecht. It is spoken of in the docnnient.s u"" ^T^'n""' <^'""-''"':« -It '-^'ally .e.torod the Treaty of Utrecht ? Mr. McUAiiTHY. — \es. "^ The Loud C'liANCELLoa-rt me.vly .cstore.l what had been taken ir> war, so tar as 1 can see. Mr. McCAirrHY.-The effect of it sva.s to restore the treaty. It left things as they were before. -^ * The Lord Chancel lor. -There Is nothi.„. whatever about restoring: "All tho corquestB that have been nmd« since thecotD„,encenu..nt of the present wnr, or ^hx.h, Hince the conclusion of the prdhninary art.icles. signed the .30th of April last Z Sf the wo-ld 1 ""'k'- ''l'^": '" '^"'■'^P*' °^ '''« ^ "'*'"* ^^^"^t indies, or in an; part ot the world whatsover, being to be restored," that is all. . i^'/^''?VT?"''i7^ ^''\H '*• *^.' ^"■'^'* "^ t''*^<^ '«- there being no war between the Treaty of Utrecht and that, if everything taken d,.rin» the war wa. to be restored, it leaves matters as they were at the Treaty of Utrecht Ihe Lord OHANCELLOU.-If something of which the British had been in possession under tlie Treaty of Utrecht had been taken by conquest from them by the French during the war, that is to be restored. If nothing had been taken by conque.st, it does not seem to affect the question one way or the other Mr. McbARTHV.--That is what I mean. It does not seem to affect the question one way or the other, except, that the parties upon that immediately proceeded to appoint commissaries to fix these limits. The Hudson's Bay Com- pany were called upon then to put in their claim. That you will find in the Manitoba Appendix, page 24.t This is the memorial, just continuing the narra- tive, and that sets out : a ^ '"■ "The said goveruor and company in obedience to your Lordships' orders of the 25th July last, requiring theoj to lay before your Lordships an accent of the limits and boundaries of the territory granted to them, repr.-spnt to your Lordships " — This contains the first claim made by the Hudson's Bay Company, as between themselves and, the Crown, .lefining limits. Before that, they iere pro- }>o.s.n8 to the Crown that, between France and England, tin- 4!)tli parallel should be the Iinnt under the Treaty of Utrecht. Now they set out what they clahu the charter means : j- v. a'i« w.II l'^^'' '!\'^ /^?!^' *"•* ':*y' commonly calLJ Hudson's Straits and B^y, are no* so funh. tZn 1 I '' •^['P'^ebend..l they stand in no need of any particular description, in / "" i^'^i' °'' ™*P li^rewith deliNered to your Lordships ; and the Imiita or boundaries^f jhejamls ^r^ countries lymg round the same, comprised. h» riWArfi„l TTT t *TheTKgATV OP Al.X lA CHArKU.E, ir-IS. I'onfiZd '] ' '""^ '""*■■ *'^**'*''' 'n«'"'i'"K the treaty of p.ace of Utrecht, were "renewed and tint! .inn.. <.i™»lj Ii, u" I. L •* -".""'•'' w,v«»i,ij.um[ea uy tne saul [jrelimmary artic es. and bv the deoUrft- on ^ ^fr,^; fh^ h' "■'^*' »'*'« "' I^o'""'^'' '"'ever, to all the 8ta?e", .ti.n.ia:;1hl^':?a^:';fel&:re=^^^^^^ "— • '^^ --r^ion mpm^nfiaf'^tf "* ^''V''" ■'u" V,"'^*"" * ^*y ^'^'"l'*"y'* M,EST Of Ml,. MCAinHY, .,..C., « OBBTION OP ,»,;n„j„v there The Loud CHANCE.LOK.-Then it is ^uite clear the watershed is not regard A Thei^'KrCHlv^EnoK'^Vo' If '^^"^^ '''!'' r'^'--''^'' '' that date. The L™,r™„A^J,'',?;.'""nh'''''K *'°'"' '■'"■ """'y '" ""= »«' of '!'«' the vfaL *;t''Z:;;J5r: ZZ,^B^' """" ^"'"" »''»"""^- p-'-i«^ Ver " nlnnnp.l " '" " tlie ot tho Hupcrt » LniKl Act, it i, allthey eve, „,„,„«, Sir MoNTAOUE S.MiTH.-And to ■' the great South Sea Mr. Mf(]AnTiiv.~Yps 'I'lion 1 win ,y^ * ^i tlios<. parts, by a iin.. to be ;.„. ;.. • ' " ""-'l . '■♦• 'Article 15 of the Treaty of Utre,-.|it eontam. ft, Jrance has not ceased ,ince that tiin^ o a,, rp'. fn^'t d '^;'''""''^''*'?''''>"'''»i<*ft"t>Te P^^^^^^^^ ADd allian uierce auth a, north of tht Vr».„""V '■"'}^lV-'y 'la' l""*'!' dpiiKm'-itt'iteJ rvaiUlf^f.nH-r,"'' "T ''Vi' •"r''" "ons'Hored us, a part. tiir person of the he Five Natione or position of all treaties mtentioii of that Article. sav Cant '.m.tlKu reference to' tll'^Lun • a '„?.!. '"t' t I'; er ' "'r/l' ''' ."V- "'^^^l''-' -■- 1; It IS true that the l.^)tli A rticV , H.^ T '*'*";'V':f "'V "iluU.ituiitH. •■"^ .'''.",.'_".'* '"»"' to be no nu'Ire disputed abof""' ''^"■'"■' '''•'""""'f "H/>f.r,V> .l,/,>rt,..' and oon »e.,ue,,tlj th.s .. a po.nt to be no n.ure disputed abou't"""" '""■'"" '^'•"'"'""f ''m'-h .uhJecUv,' and oon- -vSi^r^h^t f ?-'"^^^ - -- ''"^ Ti;^' ^--' *° ^"^ '-^'' -"'eh win be lut I,..,! -■ \ . "^" " Keneral trade 231 ARGUMENT 01' MK. M'OAUTUY, y.C„ re QUESTION OF BOUNDARY conyeiiipneeof the two nations can exact hoiuc purticalar arrangement thereto in order to fix invariaVily the respective boundarioH " Then the answer of the Eno;lish to that is found at page 29, at the foot of tlu- page : " In whatever manner oue interprets the Treaty of FJCrecht, with respect to the trade which will be permitted the French and English to carry on indiacrimiuateiy with tli» savage nations, it is nevertiieless very certain that such a general trade is by no mmm forbidden oy this treaty. It is an ordinary and natur.il right to transact busiueiis wiH, one's own subjects, allies or friends ; but to come in force into the territories "~I draw your Lurdshipa' particular attention to this— " belonging to the subjects or allies cf another Crown, to build fori.s there, to deprive them of their territories, and to approprinte them, is not and will not bo authorized by any pretension, not even by the most uncertnii, of all, viz, convenience." Then it goes on to say : " However, such are the forts of Frederick, Niagara, Presqu'isle, Riviere aux Hd-ufg, and all those that have been bqilt on the Oyo ami in the adjacent countries. Whatever pretext France can allege for regarding these countries as dependencies of Canada, it is certainly true that they have belonged to, and (inasmuch as they have not been ceded or t-nsferred to the English) belong still, to the same Indian nations that France ba» agreed by the 15th Article of the Treaty of Utrecht not to molest ? " The Lord Chancellor.— South af the great lakea ? 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 tliat my 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 Hudsons Bay Company. That lias been the argument used. Now what I say is, that the English, from the Treaty of Utrecht, were endeavouring to get this line ti.xod. The line either was or was not tixed. If it was fixed, we contend it was piaceil at the 49th parallel.* If it was not fixed, then, at all events, the French were trespassing or poaching on t\w. ground of the Hudson's Bay Company, without colour of right ;t and the English, in 1750, before the outbreak of the war, s|u>uk of it in that way : j " It is an ordinary and natural right to transact business with one's own subjects, allim or friends, but to come in force into the territories belonging to the suhjects or ulii.s of another Crown, to build forts there "—that is supposing they did build np forls ii this country—" to deprive them of their territories, and to approi)riate them, is not. true that ttiey have belonged to. and (inaimuch as they liave mt been coded or traniferred to the Eiii'li»li) btIon« still to the eatne Indian nations that France has aRreed \v Hie 15th Article of the Treaty of Uiipcht, not to molest, ' NhHo in posterum hnpcilimmta aut m.ileHia efficiant,' " Article XV. of the Treaty of Utrecht, 1713, above referr'-d to, is a.' ilows :— XV. The subjects of France inhabiting Canada, and thers snail hereafter give no hiiiderancf (ir molestation to the Five Nations or Cantona of Indiana subj ot to thj dominion of Great Britain, u<'r to tlie other natives of America who are friends to the same. In like manner the subjects of Great Britain aball behave tiieinaelvcH pe;',ceably towards the Americans who are subject-, or friends to France ; and oti boih sides they shill enjoy full liberty of going and coming on account of trade. As also the natives of those coMiitriea sliall with the same liberty, resort, as they please, to the British and Frencli colonies, f ir pro. moting trade on one side and the other, without any molestation or hluderance, either on the part of tui" British subjects or of the French. But it is to bo e.xactly und distinctly settled by oomraissiuaers, wlii are, and who ought to be, accounted the subject* and friends of Britain or of France. * The evidence shews that it was not fixed. See aii/f, |)|). 142, note J, 219, note +, 222, notet. tTo thus assume that the liTorth-West was "ground of the Hudson's Bay Cunpany," is simply* begging of the question. + This utterance of the PInglish had no reference whatsoever to the North- West, but onlv to tlie reeion clftiiueU oy the Iroquois or tlieir allies, south of Lake.^ Erie and Uotario. 232 )UNDARY : cj.viMs OF rjE ,i;'y<).v.s hw >■ IN 1759. but only to the region and will not he, authorized by anv nrt't,.n^{nr, „-» i l • „ all, viz, conviMiien^^" ; the tons they ..re now speaking of are forts south of '^ Ik^^'^i^"""^^'' '•" '"" "^ ^'"^ '^••'•'^-•y "f tl^'^ United States ? Utrec^llr^"''" CHANCELLu..-Are they tre.te.i as in Canada in the Treaty of Mr. McCarthy— Yes. v^.I^i!M^^i;^?:i\'^f'\^'^''''^ ' ^"' 'ii^l't in what I said, that this passage incliuiea some districts \vh h were part of Canada thatJouthof'riJl-lH;*''''^'T VourLord.shipremeu.be.. that south of the lakfs there is no boundary at all between the tw^ countries In the Ireaty of Pans they do not speak of .ny boundary at all. Thev takeE Mississippi as tie dividing hne and there is no attempt on the part o t^ie t^-ench to say that anything south of the lakes belonged to the French * The Lord CiUNCEr.LOR.-Certainly. there were certain settlements before It "n f thf l^keTthtr ' '^"■"'"! ^" r ^'^>' '>• ''''' ' -^i ^eZZte set J ! meats anci the lakes there were certain French tt;rritorie8 rmsts but the^'^^n^Ji^h^'"'"' ^^"'t'"J' ''"^ ''' "" ^*^^'""^P ""^t there were French Stand projc^:^"' ^'' ^'" ''""^' ""^*^"' ^"^^^ '''''''' ^^ '^" "^^ t»""k it is "It is an ordinary and natural right to transact business with one', own subjects allies or frienclH, but to conje m force into the territories belonging to th. sub.ects or allies of another Crown, to build forts there, to deprive then, of thai? territorie.rand t. aporo I say timt not only applies to those forts south of tiiese lakes, but it applies to our^Ltirvt^ •''""'' ^^'i'^^''"'^^^'" '''^" ""-^P ■"-•^' immediately beLo your L'jKlsnips on this di.-;cussion.+ dun. om''7 v>'^ ^^'> ^"^ '^'" ^"'"^ Appen.lix. page .5.S(). It is headed '^ Memoran- dum ot 17..2, and It is a mere repetition of what has alrea.ly ocurred claimin.r the -same limitary ]me,| and still the .ame amount of damages Then, inind- territo^e^frrned' b>" tt^fe;^^^^ refereaci'^n the i^.tPto'^y^Ztir^'^b^^^^^^ ''"'• ">"^^ ^^ "" "<^=--" '- ™«ki„K westward. " • ' • • '' *"'' *^''°"* continut-d bya meridian line of the said latitude of 49 decrees. 233 AliWlMtNT OF Mrc MOAin-HV, Q.C., ve QI:e,STI >V 'JF JlfM.NDAaY: end of page .'C;! f- * "cciiiatelv de(u„d la (Ji,. couunk^;. n at thr Mr McCAUnn-.-It is long nft.r tlmt. Ihe Loiii) CHA.\ei;ijx)i{— 1 ,],> nof ^o,- n • (lie cession. I want to k now wh. tV^ if Lih f ' ,'=«V^'"'l'.'";a»eous exactly with these pI,.cos which are soXo7 tli !• k! s ' '"* ''■'^''*" ^''«^« '''"'^^ '^'^ the commission of 1774 / » """i r.-el-.. /mco -f Queoec, as, constituted nridur Mr. MiCaithy.— Ye.s.undoul.tedlv.f '."he.i mi l7'-,a fi. > n i ., pany a-ain men.r,rialize. This is ai m. r« -,S7 , • • '^.^r^''" ^^i;^««" '^ 'Kv ^'oui- tiie I-.:,.: Commissioners <,f Tr^e a S' p.f ^^ ,•' '='^,^^ /^' ^he Right Konom-ahle M^e:rt"^fr;;:'i^^;i;:S^s;';^;T "^-^ -'^ --^ 8!r.n of tie K- ., ch. we,.> delivered up to Go^Sno'r K«V ■ T ^ t^ T^ '*"^'' '*•«» '" P"«-^"«- thereof for the English FIudson^BL CW^nv ? "*^ '^''''■^' ^^° *^^ sotile (he .aid li„n4 and adjust the dlag^Te'co:^ TCrr^^T ?P"'"*^'^ ^« ships aud fe ,od8 of the corapany takoh W the Fr^n^h' ^ ^ sustamed. which, for the the year 17 13, and delivered to^thetSaLrdH Ooi:'' P'"'' X^^ '"='=°""* "^^^'''^ >" amounted to upwards of £100,000 Sdes the Z?;T' °^ Trade and Plantations, enemies' burning three of their'Z; and fao oris tf't^r *=^P^"^r''^*'"^'* ^>- "'<^ IS^>w Severn. And proceedings were Imd b^uVe s'aW 1;1 " ^•'''"^' '^°''^« ^'^«'- -^"^J «an.;.. bat tliey were never aide to bring the setl'uenoTthr"'? l^^-"'^' '"'"''"8 '^' clumon, nor did the said Hud8on's Bay Oomrnv ^r " ..! '""' • """' ^"^ "^ ''"«' ^°'^ damagea That the papers whichCre 11"^ beforf r ''^;*''''"'*^^^^ nnnutes of their proceedings, as al.so a r^emorial r la ive . "^it '=°™'°'^«*"««. <*"d the year 1750, after the conclusion of the lasTwTwL ^ *'"' "*""•■' ^^^'^'^ '" the ing as your memorialists believe in your } ordsl ns^ oT""'> *° ^""'" ^^^^'«'^'P«' '•«"'^•'^- wdl appear the best state of the riehtroT both . W !; '\ 'l '^""'^'"•^^^ from th.nce of the s,id company that can be al3 LL'^l'u/Ti^f'i^^^ £*»« '^-'^--b -.d clam.s beg leave to refer." ^"""^ i^^rdships, whereto your memorialists Then the pi-ayer is : that;o;:;^^^;;];r:n[i:^eS:S^:MT?n'fr? ^^^-^ -^'°" -^ ^--. consideration, and that he .' be <"ut" v JlS T ""^^ '''" ^'"""'^'^^ '"^'^ "'« R-y'^' full satisfaction made them nar^urn f, .V 1- ^ '*T >'°"'' "^e^aorialists to have depredations they are thrb/aXoJjedld In h '*^ of Utrecht, for th. aforesai, of peace, and for^which sa st' bn is 1 y f e aidt^e !"^^^'»^V™'." '^"^ ^'•«"^'' '" ^i- pany, and that the limits of theTJd 7on?ninv> Jr.: ^ ^'^"""\ '" ^'^ '"^^^ *" *''« «°™- treaty is also agreed." comp.iny s territory may be settled, as by the s tid There is no doubt at all that that is verr strong evi ,-. . a -, sive one would .say (althou-^h I do uninL?%s ' ^"'''^'ed, if not conchi- defined. But mA "^^^f^l^^^ "^"^"T' '^)' ^ ' ^''-^ Hmits had not h...,. ' Commi3,sion to Governor-G,.neral Sir Guv Carleton of 27 n«« , i^r"""^ '" „ tThis is a misapprehension All th. f .J , T ' ' ^"^' P""'*"^ """• I'- ^O. Province of ()uebe/Lr"n^. 4 ••* ""'"'^'^ (^'^^ P ""' 'ote *' wsr^ - - < -f 234 Kf^'H CONTfZNTION.S UK,SI'ECTi\(i Till.' .1,Qtii p , ., .... V!hiit follows after that. Notl.iii.r coiih.^ iff^r f)v,t T n • i .-i Tli.n, the vvhol,. cuntrv. the no tht> n.f.P if p "'• J' '^' ""' '^''" ^'''''^•^' ,.liat i.thoeffoct? If h^49h r 1 f ^ Hnt.sh_ terntory. Now, sons Bay C..:,.,>any is no fectly -C F^H^ th. position of tho llu.]- fixo:l hetw....n th„ llj sL u V iositi, i " W th'' F l' T ""' ''''"" '^^ f ''^^'^ a,lopte.l that us th. ii„.. a.rl 1*4^ , . „ h , ''"^^^ bound by tho 49th para "l h* v n^-v ''' ^''■•' '''""^'■>'- ^'"-•>' ^^'^''•^ t^'«" waschutLdas FruH idL v^^ ^S ^s long as that iaiKl. Then they hoc ,, e t iui, t^^^^^^^ . " ^^'' ^^'^i^'m'^^ Bay Company « been dLsclain^ed/in >^yd,Z^{^TiZuh>:^"^ P-'ssesson of all, and it has never and conceded a.s betweln tl n 1 h fl J ,•:".! p'/'^"' "f '^,*^ '''"'^ "^"^^ is, that they said the 4<»th parallel uas H in i " C^'ni'any.* My contention for the purpose of the U rec t t^ ,, ' T i l''^"^"''.,^''^'>' ''''' ^^-'"i"^' t« •^c<-'«Pt they hetievSd generally if was the liei.iro/ ]a"T ""'"^' ^^ ^"'''P* '''"'■ ''''''''' The LoRi. CiiAN-CEi.LOH.-That is^your theorv view™ S,f ;i;r.^,;'';,r,\:r;t:7.re„'"'*"'''"' '-^ -^ ""°^>'' -' "-' " «- Mr Mf^fAHTuv \vT 1 : " inconsistent with any such theory. '" "'« ts of Hn,l,on» Bay u.uler Ac Treal/ol' u[™|,; 'f'' '''»■-»■ ■■«I'"»K .0 it, i. nnght be ..iS'th:!":,',' svr^tfeS'.o'S ■■'''"'""":''' ""■ "• "■^'-^ I suppose that was the French answer ' Mr. McCAUTHV.-Yes, that was the French answer. to uJalf '"" ^ ""^^'''^^^-I' «'>-vs what the French understand the company tion m-K ,t luvrt been, n„r even whether the Brit - IfJr nl ^ "^"^ ^''r l'/e-M'^Z^^l^'^:,^l;^''^^ T'^ ""^ '^^^'r-'y- ""'"'» '^''"■>"-' tl'<« the company haJ a, t Printed ««^c, p. 112, 235 ARGUMENT OF MR. M'CARTHV. Q.C , re (QUESTION OF IlOl'NDARY : K- actual claim. Tliey say that they cannot say that, and tlien they .'ive a reason which J do not follow, I confess. The LuHi) Pke.mdknt.— it .seems t.) me that the French understood the company to chum all tin- rivers which mtered into the bay The Loiu)CnANCEi.i.ou.-I do ni,t think so. The French say they cannot claim tint as a matter of fact In no sin>rle document that 1 have seen have th»'v ever put forward that chum—a ^reat deal mure than they expected to get. Mr. McCarthy.— It is hardly ,so, in tliis particular countrv, which they knew all atiout. W liat could be more natural than, not knowing wliere the hei-dit of and IS, for them to ,say : " IVe are a company ; we have a charter," and km.wi,,,' that in 17o0 there were people opposing tiicir charter, that they .should put for"! ward their claim in the way in which I submit they di't. 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 notL'o 80 far south as 49^. ^ The Loud 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 liad any other land there .than that belonging to the company, which went down to the 49th parallel Ihe LoRi> Chan-cellor.- Do you put that by interpretation of the charter or by actual possession, that it would be a give and take line > That would he your view ? Sir Robert Collier— If the English commissaries had been appointed they might have taken some line intermediate between 49 and 51. The Lord Chancellor,— Your argument is not prejudiced by your haviru' 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 Companv's grant. W e have to go back to the Hudson's Bay Comp.iny's grant to see wlmt that was. If the Hudson's Bay Company's grant means anything, it must mean all the country draine.l into Hudson's Bay— that at all events of which thev took po.ssession. Where else is the line to be drawn ? It is either void, by rea.son of uncertainty, as not giving any limitary line, or it must go to the countries draiiu-d into Hud.son s Bay. I submit that is the effect of the grant. From the tr.utv upwards, let us see what has been done, ft has been ur-;ed before your Lordsliips that there was no jiossession 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. Tiiese posts are set out on page 5S8 of the Joint Appendix,* but perhaps they are not .so clearly set out there as at a subsecjuent place ; but I will deal with those sepa- rately if your Lordships will per.uit me, as it is a matter that can be dealt with better separately, than if taken at this point of niv argument. But, what I want t(; point out now is this. We now come to 1774. it is not denied, but rather admitted, that the Hudson's l'.ay Company did establish Cumberland po.st, or Cumberland House, the very year after the Act was passed. The Lord Chancellor.— Where is that ? Mr. McCarthy.— That is on the Saskatchewan. It is between 50 and ,")5 degrees, on the Saskatchewan.f It is spoken of in Mr. Henry's Travels, which is cited from the Oritarjo Appen.^lLx^_He_vi3itej the_c^^^ He was a trader f».« * J*!* posts there hct out are all ■ <-"> '^' CS' ery! and1o°n^ "j" 2'i'^5^*«'^**«l'e^^'«n> but considerably north of that river, on Sturgeon Lake, and in lat. 236 >TRK-:!CH OCCUPATION OF THE NOUIH-WKST -FIKST APl-EARANCE THERKIV OF H B. CO. n France to Hx ppoiutcd, they from Montreal, an.l he speak, of tlu. particular fort hoiiig there in 1774. It is at piif^e 01. " the F?enchZ/f';.f M 'Tr^'"' ' b"" ''^''''^''^ '" t''"^' ^-> ^»'^'^ ^'^'^t wherever the French 1 a.l forts the Hu(ls..n s Bay ('oinpauy had forts also. Mr. AIctAinnv --\o9 I an. loadin- ,ip to shew what the Hudson'.s Bay Company had, in that way f It is at tl.. foit -f page 'A : * • "*^J u'!i^ "•'^'t ^r^°''"'' f^'^'-^l- ^^■'^ '■•■«^''«' Cumberland House, one of the fac ones o Hudson s Bav Oo-ui-Huy ..-aced on Star,.,.,. L.k., inahaut .14- north 1 titude, Mr hI. ^ h '' """' ^'T ^'--^^"T'^''' ''''''^ ''^"-' f'^J l"-'en lunlt the year lu,fore. b; Mr Heane, who wa. now absent on his well known , ,arn.y .,f ai.oo very. W,- found il rZ; btU;!!. h"''") ^'•-"l^'^'O-'i-Tl^land. and under the connnand of a Mr. Cookings, by whom, though unw^lnrme guest,., wr were treated with niuch oiviiity." ThisMr Henry wa.soneoftho.se who vvtretradinf,. throui,d. the territory much a;,'ainst tho will o1 the Hudson's Hay Company at this time: " The design in building this house was to prevent the Indians dealing with the Oiaadian Merchants, and to induce them to g > to Hudson's Ijay." '-'^uAu.an whicri: i^re u""''"'"''"^ ''""'' ''"'' "" "'" '"'^'"'"^"^ ^^'^ -^ *^« •"«?"*« Mr. MrCAilTUV._It is not on the land now iu dispute before your Lordships butmyfner»dsar-nnnentwas,that betw.-en I7U) ami the tuoe of the cession the trench occupie, mt oouutry, and he «oes to this very point as o„e of then. eo.nmenc.ng at tort W.ll.am. goinj^ to the Rainy Lake, the Lake ,' '.e WoS and so on. irench po.sts we.-e established, an.l yoiu Lordship.s wii! .collect .ny fnends content.on was, that the effect of that was to cut down the Hudson's Bay H,l' n'^'^R r' them-to drive then back-to conHne their li.nits closer tJ IrvTJ. n^' V r. '^"'"^'''■■"'f ^^^'^ ^\y '^y'^^'^' that is not so, becau.se, f.-om this xeiy date, the English were endeavouring to get the line lixed, the French were re.pass.ng, and the Hudson's Bay Co...pany were, as far as it was necessary fo? the purpose of their oocup;.|,ion-becanse after all it was a trading occupation- so tar a.s It was necessary, the Hudson's Bay Co.npany were occupying too,tandl piopose to go on and shew what next thev did i . s h "^ i. ^K I;9;'^^.CH*NCELi.OR._It is i,npo.s;ible that the Cumberland House should be within the If . ot the commission. Mr. McCakthy.— No, it was not. The LciU) CHANCELLOH—Then, that being so, it is outside this altogether. Mr. McCahthy.— H- your Lordship so rules it The Lord Chaxckllor-U is not a .piestiun of ruling; it must be so. Mr. McOahthv.— I am contented to take it that it must be .so o»r B arne.s Peacock.— It is not in that territory. Lake, and in lat. — "" """"• ■"'" v^"'p»iiy iiau never (iccupiea, nor at portion of the North- West during the period of the French dominion. ■•■The Hudaon'8 Bav Cnmiianw had n" fnrta in-l nn nn-sa--: •« ^h-..^ ?....• lu t7 l i ', lupi-a. ■"" ' pn,.i5»„.i..n ihere during the French regim(, J:A11 this is contrary t.) the evidence. Sc >nte *, jiu^jm. 237 Sm AHOIMKNT OK MU. MVaKTHV. t;.t ., I'e gUKSTIoN OF tioCVDAnV ; Mr. },l ^ u,i i'liour-umont is, that in 1710 Hi., honeh weret-.l!l,vtl,.. Kn.r. \\\. « J' n' • i. / ^V estern • Sou, ami th.y y«ui.oiv.s bv the^Li.. ;..,?'.;,:;• "^^:'1!">' ^;'^» '-yti.in, ; you will ..^ IllV t'r your,soU-s bv the tmd.. v„ vi V; ' * ^ 'V'" '^"y^'""^ ■ you frie„.l ,.rKUe.l that that hVi h.^'of '';:•,, ''''''' ^'""^ ^" 1.'""'^ "'"' Hudson's Hay('..,„|,a.,y. ^ '"'''^ *'"' ^^''-'t-'y tVon. pos..vssion ,t'th:MHK,,lrs,;,th.r/uvrs an. i J^l^^^^^^^^ ^''^ ^"'T">; ^^^'" *" vation of th..ir trade. ,rul as the st vn | e n tf H ""■'''^"'^> ^"' 'I'' J^'"^"'- was ceded '^:^:r;j;ij^^;-:' t^.i;f r'i;VS"'r^l;'^'^ l"^ r-^ '-''•- by Colon.l Huldin.and and his corr™»dents ' ''" ""'''"^^ '•' '''I'"'^*'" " Lord AnEiu>.M,i;..-jN..ar ,ho .source ot the Mississippi . Mi. M(;( Airrln- - Yes '°"" ''^'"^ *^^' •^^•'^''''«"- nortln;:;!j;'''"'""'~' '''""^ '^ '-«^^ ^- taken that the Mississippi went a lit,! Mr. M.C'Ainiiv of tllOj but •They took it, at that ..„..., that the Pigeon Rive. :.se ns:.. that went up /dr^ :a l.tu t rsr ^V *' ''" ' '?"" ^^^'^"' ='"'' ^ t a.s a n.atter uf fact they a lo ot is ".^ TVT' ^^'^A"'''"'" ''' '''^'•'^'-' '"'^1'^ ^ followed that which was a co .el l ""^ 'm'","^' *^''-' '^'^tli parallel, tluv Wood.s. 1„ •■oni, ' X ,'"^'"t ^'^'""'''^•y. until they j-ot to the Lake of the strate. TJu. . 'Eed In I ij;;™.;''^''''"' ""'^^'^ ">"^ correspondence den,,.,,. roason why 'the hi, la,''":- t" Uket'f h"T'?"' ^"""^'"'■>'' '^'"' tl'at , .,„ next .'onuni.ssion. tha ot" Lord bo^'che . f . " '■ r/'^r^'V""^' ^ ^^"^^ then ii. wont,,, , hwar i u> he te or . ? '^^ t"!'owed that, and said the Missis..i,,p, will had that the oonnnl^^r LuS;;:^^l^±t.^^^" ^ "^^^ ^^'^"'P-^' ^•'" a ve,y :;l^Sr;^ilJ;r' ^^' '-' ^ ''- ^^^^-^^"^'- ^-^^ .oe.ande,.v.. The inach contention was reetore.) to tli..ni otilv c-ortain pos. that tli« wIk.Io of tl interior cou. nude ni movo into ih t. »f( ht- wit .r«/,.f^tTLv ^>f *"■ ^^r B"H»h w-ro entitle,rto h.^:. :See anlc pp. 107, note *. and 222. note + 238 t-OUl. SKI.K1UK AM. T.IK N,.IMM ^v,,;s^, |S(,,S-18I+. ppi Wont ii liti s'Otvs, and cMVU's wi ceiitiiiv '"' - 't' apjM'ar tliat it U l>oun.lu.l hy tin' hui^rht ^o in the -nuu to L.,/.] Sdkirk. Ma>.loneil'.s Kl';,'!;;'i;;r;,i™i :'i!.^;;;i.:,„:ri;' ^2:^" k"?"- "'''■ 'n,' *"'^ ■' InOO ,.,,. ,.v ri .• L ,,""","> H.-r I, 1""° ';'">""g .Im. «v.- ,,„ |,,k, Wi„ipi,.a»l,Hl,. Mr. MrUAKTMV '"'"" '""" "='■' """"«'' '■«''" ^Vi„l,i|,eg. Selkirk hu ! net foot uithiu it treati-H tt,t.„rZl„A.'Ji^^ \ '"^ mtt'rest of , .„,„.rtlie oomiuuv or L..i,l auth„nty. and l.roKo mX colony l'f^'«nrt<-'d grant witi, contempt, .vpu,li.t«a hm lord»hip'i aJ.un.oa tPBoa.AMATU)N OK M.LK« MAc.,c,.N.tL, nAT.,, vr Four O.kk [Pembina], 8 Jam .bt 1814 All that trm.f .f , . ^'■'^lr"'-'~^'t>er-iptw„ aft/ic lioamlarifU ' "'""J' ° •'*•'' ^-^R^ 1*^ K- lH.t,t,.le ; and th n'« , n n ng dm' Zt 'to Lu'"' Wil? ^\'T '^t^""' "'^ 'h"''.^- minutes'^ n"g then in a souther! dir, vtw ■ throm,h fhLa I , ^^ 'D'P'Kash.Hh, otherwi^j called Lutle Winn „ c • de^crees; then due wen to he JCf Uerc the narwfeK,.- lif^t'l^' ''I «e«tem ,hore in latitude «T;'^.; «e.u.,.n branch of fJ-d R'ver, mCrl^JZlMnZti^^^ degree, north latitude infrseet, tho to i,e height of land which separates thrutterlruin^rinlVJT ""'."h from that point of intersection nnddie of the uk; wi„;-pl!^';^\^-^SI'b;.,!^;;- - -^^ 239 AIUII-MKNT OF .Mil >'V-»'.iHy, y.c. ,. y,-E8TI.)N OK MoUNLAUV ; rii'Tif, tnkiri),' in. acl.ii<)\vl(.(L'iii" ami ti.atii.cr H,.> In. I . ., Jul. M^'poiS i";":,?.!" '"""' •'■ •'"• •"'' »' -'"■'' 1. .'.« u„d.,.i,„„,, liWl, t,.l|-.l A I1IC,1„A|,K. I, , Ihe Ji,„ict „f rx,„i4i„„. ..ot y*''v!i';.,r,'o";,7M:i'i ",':! •" "" "-^ -'^" •'« '- -i'l"- 1 , betoit" us all tlie tiino "^ ^ ^ ^■'■^/J. tliat it has |.,,„ jMr. MoWAT.— ThLs mai. slu-ws what we nay was the treatv r.f ITi-j c«oe,„.,u, a„„pti„, the water linet-hjrt.it^^h'r^'S;;;;:!;^!;!.!;:; will ,e« it v..ry cleaH.v 'ir. K^i^rZ L , t^fe aZ''! , J"'",,'":'-'';'" of lan.l nrnl uatoi- systems veiy plainly ^ ' " *'"'» "» heisl.t, Th„cto^rai^r;LTX';,S:;,-ihl:iv^^ :;'"'/'«»•■■' '» " ■■' '«^ the Piovinc,. o! ifLxi "^ '""'' '" "" '^'"-■''« ''« '» ^"lino'l 1" Wr. Met Aiiriiv.— We submit not. ^nrci'rtthrMis^ilflf'dS.r,,^!-":.'' "".1"«""'" A line drawn tVon, .1,, -. ^■». oi.-,.^.p{H woui.i cut OH a part of that. of tile U o„d.. The Selkirk ^rant PMrported t , ?nL .r", '/" """ "'""' '""-th-weHern point of the u" then M territory of the United Statelnm'lv he tr Jt 1.^ '"h ".""' *?*"" ^'"'" '<""^^° to the part eVe e„ e»t.on., on the south by the height of^a^./und ^, th^?;"''± , w'/'^H ""''^''y ^''" ""''J ^"'"^ ^"'n" n, to the Hource of the Mw.i«ippi. then suffleientiv k own ami dLr, n 1T" ^7""u"'* ^''''« ">< t''" Wood. ThompiK.n, astronomer and nurvtyor to the Xortl W^J r ''*'*""""^.<' ''"•""«»• the labonrs .)f Mi, U..vi,| ««r y m 1798. It i« rather siKniticant that thi« n.it„n l ^ '""P^ny. who had hjcate.l it at Turtle Lake a •warned I.U)ntano by the arlitratorVawad.K'^^^r^^^^^^ between the main channel of the Lake of the Woods a tVn?ne ^f II <'"""=" ~«^«ept i.n insi^nifieant Zel bejin excluded also if the mo»t north-we^tern poS of that like t»H."r'''''-'^'''^.'*"«f'«' '♦'""h would h.t,. •iderably to the southward of the ulace fRirVJ„! „,. u . v ' l*^ "?'* ""' ^^^ the Lake of the WoJ,. by \Vr?ne of ^h" aid Crm,sTi'on"an,"', Ylf"'' ' "' ^^I^''" C^'nadVA eS The^.j^cus.o„ of Uni.ed States territory i„ the ^tJ'Z^'^:^:'^^^^:^ C^^r:^J^ "^^ -d 1774. . M«..„« .h. .,..a.y .„., ,h.w„ on the .a. .„nin, ,„„ .., ,,„„. ,,, ^^^ of the Mi.i.ippi. OUNDAUV . Tlie^e lirii- ai- 'ftlii' country iir<; rawn from the of the Miisissii I'HKTK.V.SloXs.iF ,„,.; ,uus„s\v.\\ '.<>. IN KKSl-Kcr OK ASSIMHolA. mission of 1774, 8HVif..J|,,wirLr'tl?'M!,'*/'' \'"' f''^'"Paiiy's tenitory. TJie C.,.,, B,jy jHntory. That, as wo confen-K " . ' t I d-Tt^'T,'"";''' ^'^ ^''« ^'"'W .H s ..vni.,Mce. that in 1M4 this „■ s t at hy fh S'i "'"'; /"^'"^ ^^« ""I'-'e "1- 't wa.s up to that height of Iu„,] U.a •„.('"'■ , ^ '""' '''"''•^''ip vilN^'o ( 1-,.^ .a..a.la never eiain,.,! to .•^.Mvi I „ j i,^''!""'" "f- i-"l inlindicfir \I>. MK AiiTHv. -My I,Hrn,Mi hi..,,.! \| ^r ' ' ''"^'■"^^' ^vl,at.n<.r of this Jt-ms -hysical Atlas s-cns to „.« to l" w U ..fe' 7f't"' '''"' ^'"'t- ' '^ mi It. it hIk^ws til., r vor .sv.stoi.is Afv "'''^ '** '"'"' vvrv nicolv ..t r i tj,T .»ne.i it, wa, that",-,,,; „;";::'•,;; :2- ■•;"' ';..n>- t1:;;.„,, ;;' » •'^••e.iisafgiimont, «>«,, tTliC Hudson * ]),iy and NiiiHi W t n " --. "-..c, the diarl.T. TIip licrrnt. c..v«r,.,l a« Wf. i ?' ^ . "^''''f*"-"''! ''y th<. lirc.se .1 ,l' ^^ ""'"l*uy o„lv, thus h»vinghn.n defined, wliHth.T rV Vv . " .'-''»'■'«'' tPrnturieis a-, th r,„ !' I"'"''"-" and priMlVi,™ ,;. either w,tl.in th.m^kveH r™;!^^^ '*'« 1"''""' -■ tl FMn, '"'"i',' "■J','tori..» .• buf u Umitg then fiumnK it actually ne^^ry ,! .'xe'c i"! t^rWt""' ","'•'' '^".'■*'^ " »'"» 'p "rVZu ''t'i.'"'"r' '-•""-i" - a.XrKt:^Xif;;^;i^^^^ i^fi" c-lm,„H,i. w.o.?. .,."■'■•:" I^r'Uin, mm^^m^mmmBs--!^^ th.re ■» u„ aUu,i„„ ^^ , ^'^ j '".''*"^ 'hen Mr. Johnson had noauth.,r"tv wh .7." '" ""4 ^<"'«»'- bocause the others had become sharelioldersh. t! ""•' f^' Con.puny aloue,* ..uu.d ..til 1S.7, ... th,„ it was ^!:j:.;:;:^\JS:u.;:^^e:!:;Sy J^s purposes of that Act, and of that trunstV-r" all tl../H\li •-,, thea^po_od,or claimed, for the very i^pj^^^itt^- i;:'^.^"^^^^^^^ most solemn documents recogn.ed by the' JS "1^ :^d ffSe T^ 7/" hamont was passed saying that Kupo^t's Land ^h^ill 'fn + '^'^*' "^ ^"'■- ..ean all that the cm pany - hold i^r t^S" ' it anf i m^ ^TS^?'^ ^^V are as lorjje as possi . e ; and tire coin],!- r,f P.r.. ,.it r , "'* ""^ "''"■''* take with roi-anl to th,.t, I Iin ic«Oi,,"l!;; ■,'''','''',?*'''<■•!'"'•"«'" "« S»ing to refeAo w„, the Act o pSa " St if iS 1 f'S ,",""•':;., "''"' ' "'« i. to |,c found at pag.. 406 „f tho Joi, ,, W,;;" '' "'"' '""■ "■« A''"* '»'» l>^"Z^^T:^''t:^X t"" '"■'?' ""'?■" "f "■'" ^ L.lu, Winniptg. ' "'"=""» »'» P»"" <>■> the wcston, »hore „t Do v*l^fot"Srih7t''ti*'!;:;;rtLTord sS! r""" "',''■"' "■ > *" *■■ *<"-i : lhol,„ightotlaod,pastIVc™ Rivo,r "^ go- down to Pige„„ Ri^erl oloa/ttM'rr '"ot''""-""-"'""""'"* "'^ """"•'"^ - "'- ■i-'i'-d, it.see,„,, what*4'f *"■"-" 8°- ahe.— The Kiver Winnipeg Hows into Lake W^innipeg, irnnicili- ately above the Red Jtiver, and come.s our, of the Lake of the Wood.«, which lak» itself is connecte.l, liy wlint How-i through a series of lakes, with Lake .Sa<'iiia''as The Loitp CHAN-rjELi.oii— You are brought to the source of the Ri"'ver Winnipeg, which means, as I understand, in sub.stanco, the easterly branch of tlie Red lliver. Mr. McCahthv. -No. Sir UoiiEKT C'oi.i.iEU.-— Till- River Winnipeg seems to ri.se in a very small lake. [Theif Lonlships referred to tLe raapfi.] The LoiU) PuKi-lDENT.— It would look as if the whole of that water con;- niunication, from Saginagas, was included under that head. It all runs into it, Tlie Lord CHA.\cEi.Lou.~It wa.s suggested that certain waters did unite in that lake, Saginagas, and the [irincipal branch of it is close to Pigeon River. Mr. McCAKTflY. — The Ontario map marks it down. The lino we put is only to shew it more distinctly. Mr. Mov ' -We have marked it correctly on our map. Lord Ai;i,= iivuE.-The.se rivers often have a variety of names. Mr. McCarthy. —It is not open to controversy, so far as the other sirle concerned. Tliey have maiked it on their own map. Then, my Lord, I will recur again to the position of the Hudson's Company; but T now wish to draw your Lordships' attention to the Acts, wl appear to me to have .some little bearing with reference to the disputes at that time. The Lord Chancellor.— What Acts ? Mr. McCarthy.— First, the Act of LSOil* The Loud Chancellor.— You referred to that before. Bav * Imp. Act, 43 C.e ■. 3, ea!>. 1.38 (18031. An Act fi.r cxtondin.t? Ih.^ iiirmciictio!! ut t!:f> Courts r.' r ■<;■•- in ih(! l*r.)vlnLm oi L.nvt^r »iiiJ TTppor Ciiiarin, to tho trial and pu'iiislnnent of p,Brsoni Kui'.tv of onme^ .iiid utTt-iiccs witKiu -trtmii pirts of Xorili America adjoining to the said Provinces 2H CASE OF HUOWN AND HOrcHKK,, 1818, AS BEAUING OX THE LIMITS. westward, oiii,- a in a very Kiual! Mr. McCAKTHy.-It was un,]or that Act that tl.o D. Reinhard trial took place and tl.eque..t>o.i m the Do ll.hih.rd triul, your Lordships will see, was nierelv as ^to the due north line. ' nFtlJirnH-v' ^"^^••--^''/,'"«-'''l>f f'^'n. on tin. adoption, hy the learned jud,a>, ottlie Imerom the continence ot the Ri-ans .MisM.siopi and Ohio, It that is not riofht, that decision ceases to be any authority f .f/l' 'Yj'*fVT''.'i'-~'^' *''"■ ''•'.",''■:' ''?"'■■*. il>^-^ «"ly ^vav it becomes important 1? An ;• ■ "■'. ''^' * ^'J"^ "^ ^'^"'-^^•^^^ "* ♦^'^i^ °«^'"«^' committe,! under ■t,t'ni"'^'nr''r '/'''"* '^' r-^"i'tside the jurisdiction of Upper 1 Tn iMn r '^"^ '^\V'"' '"^* ^'^^f ^ there. It is .ither Upper Canadi or the Indian lerr.ory and it was on the assun.ption that it was not in Upper (,anada, A snu, ar trial took place in Upper Canada, whi.h .exulted in a veniict t "nif nf ''' Tr\^'^'';fr'",t^"'r ^^"'^^ "'* l^"'""^ '» ^^ beyond the one I am ooinc. to speak of. That will be tound at pa.^n- (>,S,-, of the doint Appendix I he Loud CHAN(;Ki.LOR.-\Vas this a trial under the Act of 180;? ? Mr. McbAHTHY.-Yes ; this was the case of Broiun and lioiu-her, in 1818. It commences at the toot of page G8o, and the only importance of that case-and It IS important in that view-is, that if this was Upper Canada then the Crown otticer stiould not ha\e prosecuted the case under the Act of 18().S * li.xed?'^ '''^'''''''"'''''*'"'~^^'''' ^^"^ P'''^''' '1""^ ''^"^''" that" question arose Mr. MrCAUTiiY.-It was a trial for the murder of Governor Seraple, which took place at the battle of Frog Piains. ^ The Loud Chancici.lor.-- Was the spot decided where the murder took place? Mr. McCakthv.— It IS close to what is now Winnipeg The Lord Cimncellor.— That would not affect it ° , Mr. McCARTHY.-Not if the award is taken as being anything, but your ..0 dships. It I may say so, were dealing with it as if the award were of ^ome Vriiiuity, f J^*!" ^'°'u' CHANCELLOR._-Not the least in the world. The question is, what IS the true boundary ? It is immaterial, but we get any assistance from the award we can. o ^ Mr. McCARTHV.-What I am pointing out is that if not, it makes no differ- ence in our contention whether the statutable offence took place east or west of ttie awarded line. fl, fr)!''i^''"'^^'"^^'T''°"""'^^'''t ^' *« say, if you have established the fact that the boundary is what you allege, whatever that may be, then it may be per- tectly indifferent; but the question we have to dete.mino here is. whether or no the boundary is onewhich gives to Ontario the whole or only imrt of what has been given to Ontario. Then the place where this alleged murder took place is, as 1 understnna it, \n wliat is admitted to be Manitoba. Mr. McCarthy —Your Lordship will pardon me. The question, as I uuder- stand It now, is it the award be invalid, what is the true boundary? fl.a i ?f ' CHANCEr.LOK.-True. We hive practically decided "in your favour the^attemptj^^ of Canada indetiniteiy to the west, and you ; But Chief Justice Powell, in his Chftrge, expressed Tuwirtli^^TJII th«m uLer rhe Zt u,,n„''lh.>h°*T'''^^'" "''^ J"""''"'*}"" '1^^^'^ci^A mth locality. To give us a right to try o^h.8 Province whe her w^nVJ^^^ f""f '"""^ ''^"" been committed out of%he limits era! hnl Zi^'^l . -1 * '^"^'" *"■ ""t" ' declare I am at a oss to decide. Mr AttornevGen- whether frtn' W' \tm' 'oX'^^^ '.'L't^f "-^'"-'.'.^ '^^ '?""tV'"'f ^^^ ^'i*^" ^^"'?'^»^ ''-^ ' ''" T !=""" oXond i^Cffi:;.'^"' havi.g-49"-or 49i^^orti;' laiitud^'irwi«ib^;i;e'P^:;-;^eV^?^e;^^u:d.C 245 AllGUMENT OF MR. MCAKTHV, y.C, re QLESTION OF BOUNDARY; may assunie, I think— at lea,st it is mv impression anfl T fhint fK • x- . aigoimnt. °""-' " "" '""■ '"""' ''^ronJ on the effect o( Ihe part, U,at I fail t,,»eo--anyevi,lc,,ce.>r where the trtlineir ■ °" "''' thuat^L'-w'i-^^'^ri';;--^;^^*^^^^^^^^^ ar,.ument, and will consider tL weight to ^^^^^^^^ to T^ T"^'"''^"^^ ^^1'^^ would exclude the alleged site of th?s pax^icular m«rde^ ''' '"'' '"^ "^^' *'''^^ Mr McCARTHY.-Between the place of the ailec^ed mnrder and th« lin. f the north-west angle, there is nothing in all the imners-Xf i. wUf T f "^ Sfw-^S.fbe'trrf'LS.a" "°° '° '-' -«>. wherever that ,i„e'"tZ' Mr. Mo('AnTiiv._ir it g„e, north, of cou.-se." ^^^^rheLo,ii>(«iNCEUx>B.-Either way, this particular spot would be t,, th. Lake of the VVnoda. and conseuurtjf th„ S-r/v"-^-'-!^' l"^* *" '»>« moBt north.we8t,«rn ,K,int .f the «»J-irvIionty»ioue, tuboiookedtor8omewhortoVhe'northw."rd'oft^^^ lerntor.v woufd h»v«. on 240 HuVDARY ; ould be to the THE IMPEKIAL ACTS OF 1803 AM) lS-21. Tlure is nothing ]<1 be Mr. Al<;CAnTHY.--We have to tin-l that, to ^.c^t the .K.int to shew that there is any Doint of fli.. H,, i "• r, ' ,'" "' "" struck, if it be not the Li doMa "h ''''•! Bay territory that cou]<, ..,e whether this otfence wa. c^ u nit .,1 .« t '/ Tl^'^ '^*'''' ''"•>' Ji 'n I80rand 'lo/Trrffl^ culty suggested itself : By the charter to'the H .!'so 's Bay cLpany they l^d SnCV;:^7, ^o constitute courts, and they had consJLiS Ss S tSe tlKn^>^rKX^u^^ W jurikjtC^^ Sls^ ^^ in ™ngeqm«co, to find, in tho ovenTof t^e tuiit rf th^ ,t; ."'"'" ^'i''^.''^ '*'''' ^''^ J'^'^ "«« directed. o tl,e l^.undarieB. to this etfe^t : ■• We cann^^^^^^^ «tabl.Hhed, ,. ^pecml verdict in respect ypm Canada." The trial resulted in t -'^Tcl J^^^Z^^'^^^^ ^^l^^^l^ J^^^^! farfi require. pursued any further, noto. tSeeajiCf, p. 246, numm and (,ivil JuriBdiction within certain parts of Nortl 24^ ^^•^mer^. ^^^ ^"'' '''"''*' ""'^ estabU.hing AlUiUMENT OF >rK. MCAHTHY, (,».(.', n> QUESTION OP liOU.VDAHY : Company's lan.ls, that neverfcheloss thoy shall be triallo under the Act of iSOJi ■ and it also deals with the lur trade. The recital there in not unimportant : ' ' " WhereuH the competition in the fur trade between the Govern-ir and Ooriipanv „f Adventuffrs of Kn.land trading into Hudsou's Bay, and certain HsnociationH of persons trading under the nam. of ' The North- W..st Company of Montreal,' has been foan.l, fo; some years past, to be productive of gnat inconvenience and loss." and then it goe.s on tode.scribe that, and the fend.s that took place between them ''And wh-^reas many breaches of the peace, and violence, extending to the los.s of lives and the destruction of considerable property, hive continually occurred ther^-in ■ Vu.i' whereas, for remedy of such evils, it is expedient and u^cessary that some more eH'.ctual regulations should be established, for the a,.prdieuding, securing and bringing to juxt.cP all persons committing such offences," ■ "^ ^ ' and .so on. Then it recites the Act of ISO-S, and then th, ■ nacting clause is, that " It shull f,e lawful for His Majesty, his heirs or succpssors, to make grants, or give his Koyal licence, under the hand and seal of one of His Majesty's Principal Sec.etflries cf htate, tc any body corporate, or company, or per.son, or persons, of or for the exclusive privilege of trading with the In-lians in all such parts of North America as shall be specihed in any such grants or licenses respectively, not being pait of the hinds o- terri- tones heretofore granted to the sai^l Governor and Company of Adventurers of England trading to Hudson's Bay,* and not being part of any of His Majesty's provinces in North America, or of aay lands or territories belonging to the United States of America and all such grants and licenses shall be good, valid and efi. otual," and so on. Then : ■" ^''°^'^'^'^ always, and be it further enacted, that no such grant or license, made or given by His Majesty, his heirs or successors, of any such exclusive privileges of tradin{-•••;, , ""'■ r,'"''-"V. <"'^^-^' ii'--!ii;«i3f ilr,ii the Company 8 ai the In>iian temtone.4. Wa« this done witli the object of curing the fiii• clause is, that rheu the tliiid power to issue coiu.m.ssion,s, and under that Act one of the justices of the peace 7^ Jao .• ii" '• '.' '^'"'^ '""^ P"""^'''' ^" ^"'1"^ fonuiiissionH. under the Act „i 1803, tor the purpose ot apprehending ort^nd-rs, in order to permit of their trial under that Act in the courts of (,'aiiada, and under that Act Lord Selkirk, au. all the principal men ot tlie Hudson's Bay Co.apanv, ^vere appointed niagis- tmtes and justices ot the peace. ' Now follows the license at page 421. an-l it recites the Act which I have just [partly read to your Lordships, and the powers of the Act At imce 422 line 22, it says : t e • ''And whereas thn «aid Governor and Company of Adventuror.. of England trading intoHudsonsBay, and certain associations of perHons, trading- und.r the name of the North- Weet Company, of Montreal, have respectively exteiukd the fur trade over many parts of North Amenci which had not been before explored : And whereas the con.p,3tition m the said trade has been found for acne years past to be productive of ijreat incon- venience and loss, not only to the said compauy and aPaociations, but to the said trade ia genera! and also of gre^t injury to the native [ndianh and of other ,,eivson8 our sul.jncts • And whereas the said Governor and Company of Adventurers of Enirland trading into Hadsons Bay and William McGilhvray, of Montreal, in the Province of Lower Canada Esquire, -and 80 on, naming them-" have represented to ua that they have entered into an agreement, on the :26th day of March last, for putting an end to the said com- petition, and carrying on the said trade for twenty-one years, commencing with the outfit of 1821, and ending with the returns of 1841, to be carried on in the name ot the said Governor and Company exclusively : And whereas the said Goveraor and Company and Wilham McGilhvray, Simon McGilhvray and Edward Ellice, have humbly besought ua to wake a grant, and give our Royal License to them jointly, of and for the exclusive privilege of trading with the Indians in North America, under the restrictions and upon the terms and conditions spocitied in the said recited Act, Now, know ye, that we being desirous of encouraging the said trade and remedying the evils which have arisek from the competition which has heretofore existed therein, do grant and give our Royal License, under the hand and seal of one of our Principal Secretaries of State, to the said Ooyernor and Company, and William McGillivrav, Simon McGillivray and Edward Ellice, for the exclusive privilege of trading with the Indians in all such parts of North America to the northward and westward of the lands and territories belonging to the United States of America as shall not form part of any of our provinces in North America, or of any lands or territories belonging to the said United States of America or to any European government, state or power ; and we do by r.hese presents give grant and secure to the said Governor and Company, Wiliiani McGillivray, Simon Mc(4illivray and Edward Ellice, jointly, the sole and exclusive privilege, for the full period of twenty- one years from the date of this our grant, of trading with the Indians in all such parts of Morth America as aforesaid." The LouiJ Ghancellou.— What is it you relv upon there? Mr. McCauthy.— I rely upon that as an adoption by Parliament and the Crovernnient, of the agreement putting an end to competition between the Hud- sons Bay Company and the North- West Company, who were the only persons disputing the right of the Hudson's Bay Company tu the couatry which they claimed under their charter,* and a license is trranted thereupon to the united botlies. , f J^i"r "**'«'"«°'« '»•'«!» by .'tse'f. miRht prove mialeaainjf. Eor tlie North-West Companv, at the timp n one ir«T ""' *''*' ?• "'"'"""'y ..nderHood by the term "company ^' : ,m the i!^^ntl!J\tlX^Z, lualK » ^f '"►' '''fK'y^f^'"^"' the nitere.ts of all the Uritinh and l''r«>ich.Oauttdmn traders, whether , ndivi- rri:'i.''":'r'' I''"": 'l\'^".i''.'^" ''l'' HV^"""'" ^^^y Compny.iwh.. had been doinR buginesa in those ■•■ "••'^- ---••" <••• •;■>'- ••'-■ rfeii;;i! ■^r.pir.r^.Tn, many r.t whiSfc p,.olo they coiitimiea lo kee|). Tne Com- UDiler the name i ,,„„,, :^,i 1 J ..I , - • --•"-",'-'i"'"> ">. "'-"J '" "uinc ^i.oto i.ney uoiimiuea 111 Keel), int* (Jom- liany h de>c„bed ,u the lmp»f.al Act of 1821, .,u<.ted in the lext, an " ceitain a-HooiationH of persona, trading 3 ot ihe JNorth-VVest Company of Montreal.' " It obtainee Lord Chan'cellor.— Tliat is : "For the exclusive privilege of trading with the IndianH in all such parts of North America to the northward and westward of the lands and torritorios belonging to tl„. United Htates of America aa shall not form part of any of our provinces in North America." How that tends to determine whether the particular part in dispute does or does not form part, I do not, see. Mr. McCarthy.— It goes perhaps more to the other point, as to the rights of the Hudson's Bay Company. That was renewed in 1838, as your Lordships will find on the next page, 423, to the Hud.son's Bay Company alone, for twentv-otie years. •' Sir Robert Colli er.- tc read it. Mr. McCarthv.— I am not going to read it. It is to the company, instead of to the company and others.* Then the covenant by the Hudson's Bay Company to perform their part is on the following page. Now, my Lords, pausing here for a moment in the history of the Hudson's Bay Company, I come back to endeavor to answer the arguments advanced by my learned friend. Your Lordships being mtistied aa to the legality of the Hudson's Bay Company's charter, as to which I have several authorities, and the recognition of the charter in Acts of Parliament and by the British Government m one case even in a treaty between them and the United States- Sir Robert Collier.— You may assume that for the purpose of the argu- ment. ^ Mr. McCarthy.— Then, the only point that it appears to me I have to answer is this, up to this stage ; and that is the contention advanced by my learned friend, Mr. Mowat, and repeated by the learned counsel who followed him, that the trespassing, as we call it— the going upon this intermediate country, from' Fort Wilham westward, by the French, from I7l9t upwards— had the effect of limiting and contracting what otherwise would be the measure of the lands granted to the Hudson's Bay Company. I deny, as a proposition of law, tliat that would be the proper conclusion to draw. There was the grant, in 1670, which, for the purpose of the British territory, so far as the Crown of Great Britain and the subjects of Great Britain are concerned, is, of its own strength, sufficient to grant all that is therein contained.^ Although it may not have been of bindinj:; from the Crown, and with them, access to Hudson's Bay. Its operations extended from the Atlantic co^t of i,abrador to the Pacific Ocean and the confines of Alaska ; frtta the United States boundary to the Arctic. Its ramifications covered the whole territory, and its settled (Kists numbered three times as muny M those of the Hudson s Bay Compary (See p,»i, p. 292. ) The " disputinpr the right of the Hudson's Bay Company to the oouutry, by tho North-M est Company, is therefore to be taken as a disputinsr it by every interest outside the Hudson's Lay Company itself. The British Government also disputed it by dis,-;!!. ro/- ing the exclusive pretensions unless they were ewtablished before the lecal tribunals. (See nnU,v- H-l and p. U.i, note.) -The people of the Ked River disputed it, and urged their views upon the Imperial autliorl- ties. The Province of Canada disputed it and was largely instrumental in inducing the final and permanent settlement of the whole question. * But it is recited that the company had " acquired to themselves all the rights and interests " of the gentlemen who represented the North-West Cjmpany. See extracts ante, p. 05, note* ; and see p 241, notet. In raality, the representatives of the two oompinies amalgamated, and agreed to carry on the iuint bu8ine.«s in the name of the Hudson's Bay Company alone. / T • '*'?*" ^^.c^'', H®^^." *®''' '" *''^ '■•''?'°° °* "^^ North-West as early as fifty years before this date. (Joint App., 463-1, 566.) :;:Ontarm shewed that the French, from their first occupation of Canada, claimed and treated the regions of Hudson s Bay as comprehended within its limits ; and oocupietl and utiliied them in the only way and to the extent that such sparsely inhabited and inhospitable retnons Brnre HuannpfiWo of licinff oocupieU or utiii/.eii— thai is by visiting the native Indians in their haunts, and drawing them, with their luwi, for purposes of trade, to the marts of the St. Lawrence, or the posts established at or near -or eveo 260 NDARY : LIMITATION OF THE TEIIUITOIUAI. (iUANT UNDEIl THK U. II. CHAIlTEU. lie does or does is not necessary 9 before thia date, ethc'Mjy its far as foreign powers are concfrned, f.jr thcj inirposos of the subjocts of Great Britain it is of binding offset, an.l therefore, when the Act of J 774 spoaks of going to the territories grantf.l to the Hudsoiis Bay Company- Sir M0NTA(;UK SMiril,— The way th.; ar-umont was i)ut is this, that it does not hunt the grant, but the grant its.'lf puts that as a liinit—ctountries not pos- sensed by the suljects r.f a foreign pow.T. It is not put as a iiitiitation of the •j'l-ant, but as a part of T,he exception in the grant itself. Mr. MoCAnTHV.— Tliat is not the way I un8t. and captured or destn .yed. In striotaess, then, tlie t-^rrit jrial grant was ab initio of non-etfoct, as having no sutjeot matter to operate on. Hi./'fll*"*" shewed that the charter did not a. all purport to grant to the heights of land ; and claimed inat It the territorial grant waa not void for MnoLrtainty, or of non-effect for want of subject matter, or had noiwnoiiy lapsed as a consequence of the Vi-fiuN successes and acquiKitions conserved to them by the ireatie;i of Neutrality and of Ryftwick, and t 't ioes to the Oomoanv thorehv of all ri. of m.^tliminv. iiffo ''" °^'"°'^" WiM lui.itoJ by tlio de factn , Msesaion ot France and the o'ther incidients of the French wi.;.1'ir ""^"J"/' ^R: ^1°' ""'* ^' '^^^' ""'•'*• ^'"" theory that the grant extended to the heights of land was propounded for the first tune in Lord Selkirk's time, 18U.1814. iSee ante, p. 191, notej. 251 AHiUME.NT OK Mil. M'CARI H V, Q,C , Tf (iUESTIOX OF HOITNDAHY hi Mr. McCAKTliv.-It, wa-. not, at that time Sir MoNTAci'K Smith —I .lo not. say it was, hiit if yi.u find it wns actuaiiv pos.s<'>,s<-(i, tlien the fact is .loulitt'ui. " Tl.o LoiU) CllAXrK.i.Luu— If you tin. I tliat f ,r vears aft.Twar.ls it wa.s n'coi,mi7,e.l as a Breiicli possession, an. 1 so treatod l.v the liiitisli Crown \y , It says.all that territory except nieh as was rlu-n in the possession of any other ( Christian power~n(jt such as misht u hundred "eu's after pass into the possession of any other Christian powci-.* '' 'I'he LoHD Cmancklloi!.— Do not the courts of law draw such inferences even when individual minds are satisfied that the fact as otherwise ? Has it not been the practice for courts of law to draw, from a ..undred years' or very Jong poss.'.ssion, an inference of earlier possession, even when the prohahilitv of tact was not so !* r j Mr. MoCauthy.— Yes. I am endeavouring to shorten my argument as much as 1 can ; but, as a matter of fact,' this is perfectly plain, and I will go ou ;in,l prove It if I'our Lordships doubt it— that in 1670 the French were not in pos.se8- .sion of &!i. :..! h of that territory.f Tht. l.o'.jo Chancellor.— You cannot prove a negative. Mr. .'UcCvRTHY.— I can only prove it historically. I think there was no ^^^^ "''."'' ^^'^y ^""^ penetrated there at that date, or gone beyond the limits ot the bi/. !.,. vjrrence watershed at that date. The Lord Chancellor.— No facta 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 coin- inenced. ' The Lord Chancellor.— There is no such proof. Mr. McCarthy.— With all deference to your Lordship, I think there is. M M ^^ Chancellor.— But you deny the fact of possession altogether Mr. McCarthy.- Yes, my Lord, 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 Trench pretensions ? The French pretension was, that they had discovered Hudson's Bay. and by virtue of that dhscovery they claimed that they had a better right than the English. The J^ng ish 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 Encrjish were right in that view. But whether they are right or wrong, the English un- tr.^J.'^^^ Englisti barters of the American colonies, ranging in date from 1609 to 1732, purported to grant thi^did.^t&Mi""^*^'' IT''''"'' f"^" P'^'^ific. «n'l in breadth from the 30tl/to Ihe 4Sth degrTye ;«lt„ f ° ' / 1 ■' ^ ""*"'' ^''"" C"?''"'""?. without iirotest, the settlement of the valley of the St. Law- Tf W63 ™ rf"?rl\rH ?h'' """h'"? "' *''" ^""ry°f .the MUsissippi ; nor did Great Britain, on theseUlemBnt Missbsippi forward these .;hart.>ra as an objection to the retention by France of the country beyond the t This is a raisapprehension. See aiite, p. 200, note * ; poit, p. 253, note*. J See ante, p 200, note* : post, p. 253, note*. 252 rUlOUITY Of TUL KIIENOU OCCri'ATION OK TV. i. KEOIONS OK HUDSON'S HAY. it wiiH actual !v iloubtcilly tirst took possesHion of it uticlor tlu.-ii- discovery,* and then t, is a iliii'stion of law to what extmit of territory tliat jriv.'s the Enirlish n right, inter- imtionaliy speal ween them and the Frcncli. hy virtuo of their prior discovery and th.dr after 'Hicupation.f That .luestioii of law I propoHo to discuss still later on. As I understand the result of the nut hori ties —.speaking,' in that }it to ail the to.ritory that is drained there. Now, iuerican ministers put forward a iimch wider clann. '['hey put forward i uiini. Thev sai.l that the di.scoveiy of the mouth of a river gave to the disei.verer and occupier of that river, or of thf mouth of that stream, a right to all ih,; territory that was drained hy the stream, and that is di.scus.sed in Dr, Phillimore's work, and afterwards in Sir Travers Twiss's, and settled now on this basis: that tln^ American view put forward by Mr. Gallatin wa" too broad —that uKn-ely tlic discovery of the mouth of a river did not give a right to all tiie territory which it drained ; but that tiie di.s( any of the coast line, and the oceujiation. of coiu'se, in eitiier ciuse. did T«q «„» + o.., : t ; ':ui>ra, note * ; appendix B, liereto. "''^' P*'' ■'°9' "o'e t, 200, 253 IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 11.25 ■tt|21 121 HUu in 1.4 llllii.6 Phutpgnapmc Sciences Corporation ^ {•B' ^ z. ^ 23 WEST MAIN STREIT WEBSTER, N.Y. 14S80 (716) •72-4903 ARGUMENT OF MR. M'cARTHY, Q.C, re QUE8TI0H OF BOUNDARY Tlicn they came back and got their charter. A man of the name of Zachariah OilJara wfts sent from Bristol on behalf of the Hudson's Bay adventurers, und look possciBJon, and then came back and represented it to the King and j:;ot the charter. Lord AiiEUDARE. — What wn,s the earliest date of the claim of the French i Mr. McCarthy. — They pretend that a man of the name of Bourdon — Lord AiiEUDARE.— The attorney-general ? Mr. McCauthy. — Yes, Bourdon, the attorney-general of Canada. They pretend that he wont there, and took pos.se.s.sion in 1656. The Loud Chancei.i.ou. — I see tliat various forts are said to have been built in 1G84. Mr. McCarthy. — Yes, my Lord, that wo 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 Quel>eo and directed to go there, and he is said to have gone there in 1656 ; 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 peoi)le are there, and they continue in occupation until 1072, and in 1672 Fatiier 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, <^oing it all secretly .f But in 1673, tne French Governor at Quebec corresponded on friendly term.s with the Governor of Hml- son's Bay, and it has always been put forward as another claim that the French in the tirst place acquiesced in the possession of the Hudson's Bay Company.^ But from that time to 1682 or 1688, the Freach were conspiring to drive out the Hudson's Bay adventurers, and in 1686 they sent out a military expedition, ami 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. Tney 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 lan(l.§ If your Lordships remember — and I will give the reference to it — when La Salle * No fkot of history aeeniR better establiihed than that of liourdon'g voya^ to the BaT. It wi!« auth- orized by an arret of the Sovereign Council of New France, and its fulnlmont proven by entry in the Register of the Council, and testified to by (iovernore De Calli^re* and L)e Umiunville. (Joint App., 626, 628). Moreover, the same fact appears by the Transactions ot the Commissioners under the Treaty of Neutrality. (Joint App., 466, 477). tNot secretly. The Intendant TValon, reporting to the King, 2nd November, 1B71, says: "Throe months ago I despatched, with Father Albanel, a Jesuit, the Sienr de St. Simon, a young Canadian get tleman recently honoured bv His MajeHty with that title. They are to penetrate as far as Hudson's H»>, . . . As those eountrieii nave been long ago (artdienmrment) originally discovered by the French, I h»ve commissionod the said Sieurde St. Simon to take renewed posseiision in His IVIaj est y's name, with orders to set up the escutcheon of France, with which he ii entru*t«d, and to draw up a pro< i verbal in the form I have furnished him." The procea vertml shews that the taking ot possession was in presence and with the consent of the chiefa of the Indian nations. The instrument was witnessed by Albanel and St. Simon, and by Sebastian Frovero, the notary, " and the chiefs of each Indian nation, to the number of elcten, made their hieroglyphical marks." (Joint App. 020 : Ontario Apit. 6.) T There is no evidence whatever in support of this contention. See ant<, pp. 190, noteti 263, not« *; appendix B, hereto. jTho French claimed nOrihwafd ia thr Arctic Girolc, cr ths Polar Soa, and wastward icdefiuitsiv, or to La Mer de I'OUMt, or L* M<)» du Sud. And, m to the Engliah claim, see antt, pp. 2S2, note *, %S, note* * and t. S54 J'MIOBITY OF THE PBBNCH OCCUPATION OF THK REOIONS OF HUDSON'S HAY. note{, 363, note discovered the Mississippi,"^ ho came from the north. He started from Quebec aud came down by the Wisconsin, and penetrated down the Mississippi to the mouth, and it was not until lie ^ot to the mouth of the Miwissippi that he claimed to be the discoverer. Thca he enjcted a pole, antl made a proclamation in the name of the Kinj^ of France that the whole of the territory drained into the Mis-sissippi was taken possession of in the name of the ('rown of France. Now, everything in these matters relating to the coritineiit was treated on that basis, and the The Lord Chancellor.- Assume that thev push their settlements back from the point at which they had buna fide settled. Mr. McCAUTliv.— Yes, my Lord ; then, I say, the French claims would iKit have availed. That is what has been denied in all the.se matters. The Lord Chanckllor.— Even though ac<|uiesr > [n? Mr. McCarthy.— Of course that is a different r. If it is acq'iiesced iii that would be etjuivalent to abandonment, and the.. no pr.'tence of any iiciiui- escence at all. j i Sir Robert Collier.— y ou mean by the Crown ? Mr. McCarthy. — ,Yes. The LoRi. I'KEsiDENT.— I understand that you admit that the boundarios mentioned m the Quebec Act as the baaudaries of Canada are conclusive Cor oui- purpose ? Mr. McCartjiy.— Yes, my Lord. The Lord Chancellor.— And that what we have to do is to ascertain wliai those boundaries mean ? Mr. McCarthy.— Yes, my Lord. The Lord Chancellor,— You go on to say that the boundary of the HiiJ- son s Bay is to be obtained by theory and not by fact ? Mr. McCarthy.- By both together. I am putting forward the theory Hist, and I come now to the fact. 1 say that even assuming what my friend sai.l to be the fact— and your LoivJship exaggerated the argument in order to put it to the test— there i,s no pretence that th»ro was any settlement. Lord Ahkkdare.— That is the quesiion of f, ct ? Mr. McCarthy.— Yes, my Lord. In the way that the Lord Chancellor put U, it was put as if the French had built cities and towns. The Lord Chancellor— That was to try the principle 2oG )U.NDARY : INCIDENTS OF TBE de fncto POSSKSSTON OP FRANCE. [aims wuulj not ascertain what .ry of the liiiiJ Chancellor put M.. Mc( AUTHV.-T understand that, ,ny Lord; but all that thov did was to go and take possession ot forts against the will of th. Hu.lson's Bay Con.nanv and a^'Hinst the wdl of the Crown of Kngland * ^ ^-onipany. U.rd ABERi)ARE.-VVhen tliey Hrst put up these forts the Hudson's Rav E tlTwrre'loinr"' '"'"'''" '"" ''""' ''''' '''' ^^^^^^^^^^^^^^ Mr. McCAHTHy.-I think they soon became alive to it Lc,rd Aberi.are -They probably could have ,nado v. 'ry little ,,ro-ress for a long t me towards the n.cenor. and you ,lo not supj.use that in the ea Iv t me wb^. these orts were placed by the French alcn/the i.nn.e.l Ue no thcfn ne atoutir^ " ' ^ ^^'""'^''^^^'"'''^"^^^ ^""''1 ^"^^-^ known 'mything Mr McCarthv -No. 1 think, my Ix,rd. they were ephemeral. They wore not put there permanently.f The tirst fort is .sptken of in 1719^ That mvs no doubt. m,me.hately abandoned; it was not a ..ermrnent fort, it was nS but I had better give your Lordships the evidence m, that point rMcSK?Hv'~T[^' fi'-^t *^'-«"?'? *-t« seem to have\.een" built in 1G84.§ Mi. MCOAKTHV--TI ere is no evidence of that. The first evi.Ience which has been cted from the Appendix-bccause the .state.nents on the map werTnot accepted -the hrst evidence that we hav. of the occupation consists of the bui"d- iDg of a tort by a man of the name of La Noiie IT u 7*'l mT l'«'^«'^F.Nr -Do I understand you to hold that the word,s of the Mr. McCauthy.— "radically.** The Lord Pkesident.-I mean from the state of facts csistina? Mr. McCarthy.— Yes, my Lord. ^ ' Sir MoKTAGiiE SMiTH.-If you find that there was a subsequent time although a very distan. time, when they had occupied ? 1 do not say that The evidence proves it, but supposing they had ? ^ The Lord PRE.siDENT.-The words are, "not now actually possessed." iiJlL^T^'^T wi";T.^"^ '""PP'^^'^^ y^"'' "'^^l '^'^ f^-^- 1""^' distance of tirao they had It, and that they were in Canada at an early period you would iSe;\rdfrigttirpV;\Cf ^"^^' ''''''-' were putting Ihelrfo^rts whe^e limif!'r/^'''w''""''-~'^''''"'', is evidence that the occupation of Canada was quX' S"" ""'''• "' *'"' •>«""" "' '''"^ -" - »««•■ — ' others in 1673. J [ IZLZZ • rW,'r^ IZ" ""'' "'l*"'* *^' f f ^'"'*' '»'«'•«'" '" ''"o' accordance with, the facta in evidence. This » ft total mi8apprehengi,.n:of the facts. See a.Ur. p. 200. nnt« • • apn-nd.v b 'sr-tn ate (injf, p, aSO, note J. r , . . , ttSee the conclusive evidence to the contrary ante, p. 200, note - ; appendix B, hereto. 17 (»•) 2:.7 ARGUMENT OF MR, m'< ARTHY, Q.C., re QrESTIOK OF HOUNDARY: 1^ j - Sir Montague Smitii.— But supposing they ha« contrary. Se« ante, ,,, 200. note * ; appendix tThe Sieur Du L'Hut to Governor de la B»rre, 10th September, 1684. 259 ■li 1 AROUMENT or MR. MCARTHY, S».C., re QUESTION OF BOUNDAHY Sir MoNTAOUR Smith.— Where is the list of forts givon ? Mr. Md'AUTHY. -At pHgo H03, Joint Aj)i>fii(iix"' My friends talk of Fort St Josenh.t hut Fort St. Josc'ph is on the Rivtr St. (.!lair— quiti' a clitf.Tcnt dacft altogether. We can make that clear to your Lordship-s, although my friends- deny it. That fort is on the River St. (JUiir, near Detroit. Theri^ is another called St. Joseph at the head of the waters of the VVaba.sh, at a diHerent place, hut there is no Fort St. Jo.-seph on Lake St. Jo.seph, nor does the place my friend refers to speak of a fort, except near the river at the bottom of Uke Alemepigou. , . r.. > , nr mt i Lord Aherdake.— It says it is on this River a la Maune. We have not been supplied with any evidence that this fort, near Lake St. Joseph, really 6X191 C(l Mr. McCarthy.- -No, my Lord, except the statement that it is at the bottom of this Lake Alemepigon. I'perfectly understand that they had forts there, and I do not attempt to inve.stigale it, because I am confining my attention to forte within the height of land, and not outside the height ot land. The LoKD 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 ou 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 Tiake Alemepigon and Lake Superior. ■ Mr. Mow AT.— But tliere is Fort Lamamie. Mr. McCarthy — Where is that? Mr. M(JWAT.— On Lake St. Joseph — the supposed site, as indicated on the Mr. McCarthy.— So you say, but where is the evidence of it? Lord Ahkrdare. — Where is' the evidence of it, other than what is written on that maj) ( i • r n Mr. Mow at. — Tliere is the Sieur Du L'Hut's despatch ; as to anything further, I will have it looked up. , j ,. • r Mr. McCarthy. — Our attention was not drawn to it in my learned friends opening, nor was there anything to indicate that ; and it is very important that we should know about it, if there is any evidence of it. The Lord Chancellor.— Very well, then, you say we are to discharge from our mind everything relating to that. . , r • . 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'a, of 1750, anil is only a partiivl list, and vory incoroiilete, + No puch reference had l)een made to Fort St. .Toseph. The one referral to in the list is that on th* river of the same name, which falls into Lake Michigan (south easterly shore). This fort, and fortSt. Jo»euh on the St. Claire, are set down on the Ontario nia|<. The aaaie map has the inscriptioo at the foot of Jbake St Jofteph, near the Riv.r Savanne: "Supposed site of Kort Lamaune, built by UuL Hut, before 1684 " In preparing the draft of tho map, this site was selected as the one, under all the wrcumHtauces, best aiiBwerinK the description, but the element of uncertainty was indicated by the words "Supposed site" The object Du L'Hut had in view -to prevent the nplaud savages from descending to Hiirisons Bay • the absence on all the maps, ancient and modern, of any river so named falliufr into Lake Nepigm, wh'se ireoBraphy was perfectly well known to the French from u period long anterior to 1084 ; the fact that Lake NepiKon was the channel through which the French reached their most northerly posti-, and that the .Savanne might nut inaptly be referred to as at tho foot, the French expression here rendered • »t the bottom of" not nec^wsarily meaning any point on the shore, but rather a locality at or beyond the sources of : the actual existence, at this jieriod, of two other forts-one at the head of the lake, Dort Latourette, and the other. Fort Nepigon, at the mouth of the River Nepigon— with neither of which caa Fort Lamaune be identified ; the similarity of the names Lamaune and Savanne, the change in spelling of .'1 - -- u-.-- I ,*. ,1...,*^ ..»...«•.;.> t.pinfc .>p fraMQ/.rinti"" • *"d th« fap.t ulfto f.liAt. lint, the fort but the river wbk stated to be at the foot of Lake Alemepigon— were circumstances (amongst others) which pointed io the site chosen as the approximately correct one. 260 THE FRENCH POSTS OF THE »NORTH-WE.ST, 1717-1763. ked 1684 on cated on the lat is written '^thing further, Then there is evidence at pai^t; 6+0, and it is witli rt';,'ard to the phmtinj* of posts. The LoKD Chancixloh. — It i.s mthor to lie rejjrettcd that this imip should be in our hands all this time it" it is not to In; trusted* Wlio puts it in ? Mr. McCarthy. —Ontario puts it in. It lias been engraved specially for this hearing. Sir MoKTAOUE Smith. — 1 understood that you agreed that it might be used, subject to proot of disputed facts. Mr. McCakthy. — Subject to not relying on tho.se dates, unle-is proved from the general \ppendix. I admit that the coa.st line, and the general configuration of the country, are correctly laid down. Sir Montague S.mith. — But you say the .statements upon it are di.sputiible. Mr. McCakthy -Oh, yes. they have to be proved from the Joint Appendix. That map has been preparetl within the last week, and wo did not see it even, until the first day of the hearing ; and then, in order to prevent confusion, we put lines upon it so a.s to enable your Lord.ships to understaml our arguments, and have used it in that sense throughout. You will* find, at page 640,+ directions were given by the French Government with regard to the planting of posts : " Mi'SsrH de Vaudreuil and BogonJ having written la.st year that the discovery of the Western Se* would he advantageous to the colony, it was approved that to reach it, M. de Vaudreuil " — I do not know whether that in the governor or some officer — " should establish three posts, which he had proposed, nnd lie was instructed, at the same tims, to have the same established without any exp-nse accruing to the Kiujy;, as the person estab- lishing them would be remunerated by trade, and to seed a detailed schedule of the cost of continuing the discovery. In reply, it is stated that M. de Vaudreuil, in the month of July last, caused the Sieur de la Noiie, lieutenant, to set out wiih eight cannon to carry out this scheme of discovery. He gave him instructions to estalilich the tiist post at the River Kamanistiquoya " — that is Fort William to the north ot Lake Superior—" after which he ir, to goto," — another lake with an Indian n.ime,.^ which 1 take it was either thd Lake of the Woods, or one of the Wiunipegs— WinnipR^' was at that time thought to be two lakes- -"near the lake of the Chriatineaux, to establish a secfnl, and to acquire, through the Indians, the information necessary for the ostahiishmf^nS ;>o third at the LaWti of the Assenipoijlles.li This journey costs the King nothing, betf, me those enj;aged in it will be remunerated for their outlay by the trade which they will engage in ; but to fol- low up the discovery, it is absolutely necpssary that His Majesty should bear iho expense, because the persons employed in it will have to give u[i all idea of trade." Then there is the estimate of the cost of following up the establishment of those throe po.sts. Then you will find, on the following page, 641, a letter dated from Quebec, December 11th, 1718,^ which is a report as to these posts : "Le Sieur de Vaudreuil has been informed by the letters of Sieur do la Noiie, that having arrived very late at Kaministiquoya, where he found but few Indiana, he was unable to send any of the canoes to Kamanionen [Kamarniouen], and that he will sond them after the return of those which he sent this spring to Michilimakinac, in search of provisions ; he •The map waa perfectly truHtworthy, and in actual accord with the evidence. On the poiot under disouasion, the map fairly drew attention to the element of uncertainty respecting the location of lort Lamauue : it aaj's "Si'ppoaed site," etc. See ante, p. liOO, note t. + The document ie dated, Confieil de Marine, 7 Dt-oembre, 1717. , X The Governor and Intendant, respectively, of Canada. § "Takamanigen"—Tak»mamiouen— Rainy Lake. i; Wtnnipcif, f The Intendant Begron to the French Minister. 26' AKtiL'MEVT OF MK. M CAllTIIY, Q.C, re (^UKSTION OF UOUNDARY : adds that tli«( ln(ii«n9 of his poat, werf» well gatisliod with thi« Hir-aMiithni -rit, anil pro- iuiHi«-t tu bring there all tlioH>^ who hav(< l>e«n liccUHtotQed to truilo at Hud-tou'i Hay ; that be wrote through a Frnnchinan wlio waa at Point Chagouanugon, to a chief of the Heioiix iKition, and he hopoH to auconfd in making peaco between thin nation and that of the (/'hristineaux ; the accomplishment of which would put him in a condition to purauu witb ItiH risk the pxeoution of hia ordcra for the dlHCOvory of the Western Oceau.' Then the noxt letter* is &\hq bearing upon the siiine .subject It states that no letter liaJ boon received from tliese j,"'ntleinnn, and at page (}4t2 it is continued . and there, I think the account of that expedition ends. Well, now, there is not a word that that fort was kept up or inaintain(id.+ We have not a word aliout that fort again until we come to the history of the forts given at page (iiS. Mr. Bellin .seems to have pursued the same ground, and re-established the posts which had been put here in 1717, an atten)pt to discover the Western Sea which was practically abandoned.^ Then we will come to see what tliese gentlemen did. Then we come to Colonel de Bougainville's account, in 1767,§ 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 olhcer, I am not at all prepare d 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 piior to the cession ; but ho speaks of then) as " the Post of the Western Sea." He says: " The Post of the Western Sea is the most advanced towards the north. Tt ia 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 engayet Canadiens. 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 ])ublished in 1757. Mr. McCarthy. — YourLordship will tind, at page 25 of the Ontario Appendix it was published in 18tJ7. Mr. Mow at. — No. That is a French book giving an account of these things, and publislied in that year. *MM. de Vaudreuil and Begon to the Conaeil de Marine, dated liuebec, 14th October, 1719. + Tt appears from Verendrye's narrative that thiH fort on Kainy Lake was re-entabliiihed by him in 1731 aa B'ort St. Pierre (Unt. Ap|i., p. 16). It wivh thereafter coutinuouidy maintained during the period of the French occupation. (Bougainville, l?.*)?, ante, p. 94, note ; Jetferys, 1761, ante, pp. 143-1). +N. Bellin, who was a geographer, and " Irgenieiirde la Marine" — that is, of the Department of Marine and the Colonies— had iH-rsonally nothing to do with the e«tablii>hment of these posts, but, in his " Romarquo* sur la Carte de I'Anierique Septentrionale," published in 1755, makes reference to tham, and to "the memoirs of MM. de la Veranderie, fbther and son. sent to establish various forts for the protection of the newly discovered territory, and the journal of M. Le Gardeur de St. Pierre, an officer of the troops in Cantidft, who visited the forts in 1760, with instructions to extend his discoveries to the utmost practicable extent, make treaties, and establish trading relations with the most distant Indian nations." (Joint App. 643). St. Pierre's party reached the Rocky Mountains, where they established Fort ' > Jonquii're, in 1762. In 1768, he was replaced in the command of the Posts of the West by M. de la Come. (Ontario App, 22). The statement that there was any abandonment, is wholly at variance with the evidence. § Printed ante, p. 94, note. 262 THE FRKXCII K)8TH OF THE NoRTII-WESI, 1717-1763. vritten after m in 1757, as Ix'cn cstablishod for other tlian seuiii to have bo«ii eitHblisliud Lord AliKHDAliK. — It Joes not say it \va.s pul.Ii-ihetl tlK'n, it say* it was given ill this particiihir hoult. Mr. McC'AUriiY. — \V- th.' territory, hiit to trade with the Indians. The governors of the forts iiad powor to <^ivi) licensosf to people will) chose to trade witli tlio Indians, for which certain loyalties were exacted, and it was upon these licenses that some of tlio.>e iiiatUMs took place — not lici-nses to discover and takt) possession, but licenses to trade with the Indians. What they were doing was attempting; to tap the lIudsor\'s Hay trade, by getting at the Indians at the sources of the rivers, instead of letting tluiu' come down to Hudson's Bay. But I think I can point that out more fully in the Ontario Appendix. Your Lordship will find this .set out at pages 25 to MO, and the note is : •' Memoir on the State o! New France at the time of the .Soveo Y«ar«' War (I7.'i7). Louia Antoine de Bougainville, authar of thii Memoir on Canad>i, was one of the most diBtinKui>li(id French officers in the war which resulted in th« oomiut^gt of Canada. His nemoire was submitted to General de> Montcalm at the time it was written, and that othcer testided to the oorreotness of the information it contained. The Frtmch original is given in Relaliotis et Afemoirea Iitedits, etr., par Pinrre Maryrij, 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.| I will follow now, with your Lcrdships' permission, the statement in the Ontario Appendix, page 27, because it is stated to bo given more fully than the other ; and the statement with regard to the Western Posts is treated of. Now, it is important to observe that what this gentleman is speaking of was the expedition of Verendrye. Lord Aberdare. — This must have been written about the year 1757, because it was submitted to General de Montcalm, who was killed in 17'>!^*. 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, that have any bearing upo-^ tliis question,}:) the first is Kamanistigoya, which is Fort William. That was ?v *'med out to a French gentleman. Then comes * The work wm pr«paied as in the nature of a report, in 1757, and remainwi in the French archive* of th« Dflpurtment of Marine and the Colonies until 1 8fi7, when Mr, Mar({ry, the kee;p«r i>f those archives, pub- liahed th« French original, from which this translation has been made. t Thii flower wa« really in the Uovarnor-Ueneral : '" We call congif the licenses or permiti tliat are granted by the (jovfrnor-Ueneral," etc. (Ue BouKainvilfe, Dnt. App., 29.) " No Canadian is suffered to trsde with the Indians but by license from the Government, and under such regulations as that license ordains. The ninin iiolice of which is this : the Government divides the Indian countries into so many W\nU, Bccordini; as tney are divided by tha Indiana themselves. To these several hunts there are lioenMts respectively adapted, with rexulatiuns rH8)Mf how these posts were established, and why, 1 will yive you the n fereiice. I do nnt know whether you have heard that read. Lord AitKiiiiAUE. — I think we have. Mr. MdlAiiTHY. — Then, beyond a general statement I will not trou ble your Lord.sliips bv riiading it. On pa<wU will tiiid i]w " E.xploratioris and Discoveries of the Verendrves, 172S-1750." 1 think i iiin aot incorrect in saying that purports to be this, and nothinj.? more : that he w.is directey th.oth(;r side, and we will see how that agrees. It commences at page 601). Lord ABKiiDAUfc:. — That is Carleton's otfieial report. Mr. McCauthv.—Yos, 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 dealinf; with the Indians. There is no doubt the French had been able to (dtoin the sympathies of the Indians better than the English had, and Governor Carlcton (Lord Dorchester, as he afterwards became) is drawing attention to that in this statement. The part 1 allude to is his statement, at page 611, of those Forts of the West. At line 4(1, ho tells us about these forts. Your Lordship will recollect what he says about them is this : " 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 oxtent of their trade, and the system pursued by the French Government in Indian atfairs." When you come to Gamanastigouia and Michipiroten, there is one commandant and tive 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, oflicers one, sergeants two, soldiers four, canoes nine. Is not it manifestly absurd to speak of the'se as forts, in that sen.se >f Then I need not refer again to what I called • These fort* were maintained until the cession of C»nftda. Bougftinyille inentionii them in 1757, and Jefferys in 1761 (Ont. App.. 27 29, 35) ; and see ante, u. 187, notes f and t Verendrye's work in the ^orli Went was continued by liis Hucce^Hor.H in the coniniand. (See ante, p. 262, n ite ,..) +A« to this miswprehensiou of counsel, see ante, pp. 187, notes t and ;, 2iJ7, note -. Governor C»rlr ton. who wrote in 1768, and after the period of the French occupation, of events of 1764, does not give * full view of the case. 264 THE KKKNCH POSTS OK THK NORTH-WEMT. 1717-1763. attention to tluH iiiornin^, that the Hu.lsonH Buy ptiople coinphiinwl of this* and the pjHitiori tnken hy the r.iiti»*h (iovi'rniiient (nnil itHCPiiis Ut me to \>e aprojwr position), was, that it was hh UMfriemllv act, which c(nil.1 not be jiHtiHed, for the French to bo j,'oin!,' into tli.^ T.rritory of tho En<;lish, Chancellor. — There is a fort here whioh seems to me to be within the disputed territory. Mr. McCarthy.— That was on the Rainy Lake, I believe. The Loud Chanckllor — Yes. Mr. McCarthy. — There is no line taken at Rainy I^ke in that sense.f Ijord AuERDARE. — One point which seems to me of weight is, that apart from Indian names, nearly all of the names of these places are French. Mr. McCarthy. — Where does your Lordship mean ? Lord Aberdare. — Everywhere. Mr. McCarthy.— I 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 su!i- sequently were altered to English. Mr. McCarthy. — The French, on their maps, call them by French names, but the English never adopt-^d them. Sir Robert Collier. — On this map they are called by French names, just as 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 a,ny English maps of the period. I will put them in. I do not understand they 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 1755 : 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 Lac des Bois, and Lac Seul must have been the name before it was called Lonely Lake. These names all appear to have been B'rench, 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 French|| 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 antt, pp. 187, notes + and t, 200, nott' *, 250, note J, 253, note * ; appendix B, hereto. t Fort St. Pierre, on Rainy Lake, established by La Verendrye in 1731. La Nolle hod established a post— Takamarnioucn— there about 1717. Jin the North-Weat, the names were, up to the period of the Cesaion, either French or Indian. In none of the numerous maps or Iwoks used or consulted in the preparation of the case for the Arbitrators and for upon the French maps and memoirs, and that the Hudson 's Bay Co-npany's first entrance into it was as late as 1774. This was to the north of the Saskatchewan, and they did not roach the Aseiniboine and the Rea River before I79tj and 1799. (See appendix B, hereto). § The evidence to the contrary viras quite clear, and must have been overlooked by counsel ; and see precedinfir note. II The tmiagei were largely Frencii -Canadian, but the partners, factors and agents were larKeJy Dritish, or British Canadian, and ultimately, when in 1821 the license of exclusive trade was granted to the Hudson's Bay Company and the NorthWest Company jointly, the latter was represented by Mesem. McQillivray, Fraser and Ellice. 266 WHAT THE MAPS AliDUCEI) IN EVIDENCE SHEW. y named their nch names, but y oounael ; ftnd see Now are tlio Hudson's Bay Cumpaiiy to bo deprived of their land, or is the En;:;lisli Crown to be deprived of it, by this occupation ! It may be hwked upon, I suppo.se, as the English Crown more tlian the lludsoii's Bay Company. Can it be lusserted, as a proposition of inteiiiatioiml law, that if the (pu-stion had then been referred to a judicial tribunal, as between -the French and the Ent,dish, any- thing your Lordships have heard here would have deprived the Kngllsh Crown of its property in that country ? Because that is really what my learned friends have to contend. Now, my Lgrd, I come to the maps, which I may just as well refer to now. And the first observation I make with regard to thein is this. I airi going to refer to the maps put in by the other side, and also to deal witli those we put in, bearing upon this question. It was stated (and I ask yuur Lordships to adopt it as my argument if I cannot read it) by those whohave'been concerned in investi- gltions of this kind, that there is nothing more deceptive than a map. Nothing has given rise to greater trouble in the settlement of international boundaries than reliance being placed upon maps. Of course it is a different thing if a map is referred to in a treaty, and incorporated in a treaty or Act ot Parliament, or any document of that kind, but mapap ' Mshed independently, or under Royal autho- riry, as many of these are said t. d, are apt to be, and have been proved by experience to be, the most deceptive possible kind of evidence to be guided by ; so that whilst I put in maps which may or may not be useful, I disclaim relying very much upon them, and at the same time I argue before your Lordships that very little reliance is to be placed upon maps put in l>y either side.* If your Lordships will first look at the maps they put in, one thing at all events can be derived from it. Your Lordships will Knd that the French write Louisiana (which is admitted afterwards to be confined to the Mississippi) right across the whole map, from west to east.f The Lord Chancellor. — Which maps ai-e you referring to now ? Mr. McCarthy. — These which are done up in brown [referving to the collection of maps boutui up in brown folio cover, put in by Ontario\ Sir Robert Colliek. — Is that before \\s> Mr. McCarthy. — Yes, it was put in. It is not before you, but it has been put in by the Ontario side. The Lord Chancellor. — The map of 1703 being one ? Mr. McCarthy. — Yes, my I^ord, the map numbered :?3 in the corner. The first thing I say about that is, that it is strongly in favour of the contention as to the 49th line. That is the only observation I have to make upon that map.| The other maps, so far as the Hudson's Bay is concerned, are princir^ally import- ant as shewing these i)laces had English nauies, as Fort Rupert, Rupert Bay, New South Wales, and so on. Will your Lordship look at the map No. 71 ?ij The Lord Chancellor. — Is the date of the map 17:1:4 ? Mr. McCarthy. — Yes. Your Lordship wiil see there Louisiana is placed as crossing the Mississippi, just as in other maps referred to Canada is placed by them as stretching across the northern part of the continent. •Ontario put in baforw the Arbitrators, and beforo tlie Privy Council, a m\iltitude of Maps -or Notss of the purticulars shewn by thetn — ranginff from WiAi to 1815, as Hhewing (1 ) an almost univorsal consensua of authority as to tlie extension of Canada northward and westward, indefinitely; and (2) the wide ditfiision ot the French forts and posts, and the time of their establishment. This evidence was fortified by the worki of reputable writers and historians, and by official documents. tOonfined to the Mississippi after, and only as a result of, the Treaty of 17(53. See ante, p. 142, note t. +Th!- map rfifarr.-5.i U> is Rp I'Tsle's map r.f 170?-, hrr;-ir,h*>fr,rP alre».1y rifpr-pd to, pi^. U.H, 114, !17. |i. 114, note. It has on it the MS. line, put there in 1719, " Ligne stlon la prt^tension des Anglois," aloriK the 49th parallel, but c^ particular that can b<) said to favour counsel's contention. IBellin's '^artedt laLouitiane, published 17 il, and numbered 71 in the Notes on Maps. 267 ARGUMENT OF MR. M'CAHTHY, Q.C., re QUESTION OF liOUNDARY ; aid th: Lord AuKRHAKE.— If that was not Freiioh, what was it ? The Freno! claim Louisiana on that side of tlie river. What was it, if not French ' Mr. McCarthy.— The English "called it Vir p irposes Mr McCarthy.— The original speaks for itself; I see it is dated 1763. Lord Aberoare. — It is after the cession. Mr. McCarthy.— Yes, it is after the cession. This says ; " An accurate map of North America describing and distinguishing the British and Span' ish Doiiiiuions on thi^ grftat Continent, accorJing to the definitive treaty concluded at Paris, 10th February, 1763:"! The Loiii) Chancellor. — Was this the original Province of Quel»ec ? Mr. McCarthy. — Yes ; that was the original Province of Quebec, by procla- mation. The King proclaimed that into a province. It defines the linos of the original Province of Quebec. iTheii your Lordship sees that it gives the southern bounds of the Hudson's Bay territory, marked and defined l)y the Treaty of Utrecht,);} And that it is stated in tlie Notes on Maps to be published as late as 1775-6, or somewhere about that. Ill tho work Complete System of Geography . . . illustrated with seventy muiw, by Emanuel UowBU, Geographer to IIiB Majesty . . . London, 1747," are three maps, each by Boweii, which deal with thii question of the northerly limits of Canada. They are, " .Map of tho Known World," in which Canada has no bounds assigned to it on the north ; " A New (Jeneral Map of America,"' wherein Canada ot New B ranee has no limit on the north ; and "A New and accurate Map of LouUiana, with part of Canada and Horida, ' in which Canada extends to the northerly limit of the map, which is^orth of th height of land. (Notes on Maps, Nos. 77, 78, 79, Ontario App., 10!).) The later map of Bowen, o rathi-r Bowoii and Uibson, put forward by counael, and referred to infra, note:;:, can scarcely, then, i face of these facts, be looked upon as of much authority in aid of the 49tli degree theory. tThe error referred to by counsel is the sliewiiig, on Mitchell's and various other maps, the St, Law- rence Kiver as having its source in the Lake of the Woods, which it drains into Lake Superior. See ante, p.lOi, note. 1 he thorough investigation referred to was by Ontario, on the occasion of prei)aring the evidence for the Aibitration. (Book of Arbitration Uocuinents, Ui7S, pp. VAGt, ISliu.) t This is No. 148 in the Notes on Maps. It is published by Sayer in 1775, and has on it a line, partly alonp the 4«th parallel, marked "The southern boundary of the Hudson's Bay Company's t'.'rntories setttal by commigsioners after the Treaty of Utrecht," This statement is erroneous, no such boundary ..av.r.fr =v=r berii set! led. (Sfs; ante, pp. ii2, note i, 222, note j.) The iiiit' of the Upp.;. MiissisHipi.i, as taras Ked Lake is shewn as the south-western boundary of Canada— north of Red Lake no western limit n assigned to that country. § The map in this respect was who'Iy erroneous. No bjunds were marked or defined by, or pursuant to, the Treaty of Utrecht. ■" r 269 ARGUMENT OF MR. M CARTHV, Q.C., Tfi QUESTION OP nOUNDARY ; The Lord Chancellor -—Where does it carry the dividing line — a,i far a,s the map goes i Mr. McCabthy. — As far as the map itself extends, that is, as far as the meridian line 85°. ' The Loud Chancellor. — To two small points on the other part of Ihe Lake of the Woods. Mr. McCarthy. — I should think in that respect it is not quite accuiiito. Tiie 4!)th line goes to the south of the Lake of the Woods. The Loud Chancellou.— Yes, I should think .so, nearly the whole of the Ldke of the Woods would be above the 49th line. Mr. McCarthy. — Yes, but it i.s much luore accurate than Mitchell'.s inap, in 1755, which gives the Lake of the Woods hundred.y of miles out of its place. "hen Bell's map is the next map. That is 1772;* and the ditference between that and the last map is that the height of land of tlie Hudson's Bay (.'()iiip,<\iiy is given. It gives a wavy line here, in that respect according with Mitcheir.s n,ap, that the true boundary was the height of land ; but both these mappers, .so fai\ either place the line at the height of land or at 49°. Lord Aberdake. — No, it is north of Lake Nepigon. 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 wa.s pretty much a straight line. I will shew when I come to the treaties, that that was the cau,se of the mistake between Great Britain and the United States, in taking this Pii^eon 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 petition 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 trvin" in Sandwich as for an offence committed at Fort William, which is really outside your jurisdiction. the Lord President.— " That your memorialist father submits that Fort William, a trading post occupied bv the said North- West Company, and the place where the alleged offences charged against him are stated to have been committed, is not situated within the jurisdiction ot ths courts of Upper Canada, as settled by the Act of 14 George III , cap. 83." Mr. McCar'IHY. — And it is so defined by the decision in De lleinhard's case. Lord AuERDARE. — 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 Mai'.s, Oi^tario App., p^ 122: "A map of the British Domioions in North Amuriua, uctiorcting to the Treaty in 1703." By it CaD&iia ia shewu a« uxteiiUiug auuih- westward to the MiBsisBippi, and northward beyond the Lake of the Woods. + See ante, p. 107, note. 270 )UND.\Ry : WHAT THE MAI'S ADDUCED IN EVIDENCE SHEW. -Is it the HudNon's Bay Company who lay dowa The Lord CHANCErxoK.— I do not think it is possible that it can be contended that this map was intended (o lay down iho. htiuht of land. Mr. McCATtTHY.— It docs praotially cnn-espoml with Mitchpll's map, except that the Lake of th(^ Woons ia better placed. Sir Montague S.mith — It <.oeH to tin- north of the Lake of the Woods, and goes across the height of land. Mr. McCakthy.— Ye.s, the heiglit of land was not intended to go round there at that date. The Lord Chancellor. — It crosses streams, Mr. McCa'-THY.— The scale is so small that it is difficult to follow it. Sir MoNTAOUE Smith.-— There is " Canada" written just at the south of it. .Mr. McCarthy.— There is another copy of Mitcheli'.s "map [handing it In]. The Lord Chancellor.---A reduced copy or a full copy ! .Mr. McCUkthy.— No, it is in sections. The Lord Chancellor.- the lines themselves ? Mr. McCarthy. — No. The Lord Chancellor.—I thought it was so. Mr. McCarthy.— No. After the cession, the Hudson's Bay Company en- deavoured to get all the evidence they could ; and they were asked to send some maps,* and they sent four maps, amongst them Mitchell's. Sir Montague Smith. — It was one of their maps '. Mr. McCarthy.— Yes, but I mean it was not compiled by them at all. That map does lay down the height of land. Your Lordships will see distinctly that it is the height of land. The Lord Chancellor.— We cannot find it. Perhaps you will have it marked on the map. Mr, McCarthy. — I will do that, ray Lord. There is also a map there, very shortly after, of the Sieur Robert de Vaugondy. [Their Lordships referred to the The Lord Chancellor. — The material thing is, that the line is certainly south of the line of the award —not so very far from it ; and I suppose it may be taken to be roughly laid down here, because it is north of the Lake of the Woods. Then the ne.xt thing is, does it appear on the face of this map [Mitchell's] for whom it was made ? Mr. McCarthy.— That was made for the Board of Trade and Plantations. The Lord Chancellor.— Made for the Board of Trade here i Mr. McCarthy. — Yes. The Lord Chancellor.—I see it is described by Mitchell to be for the Board of Trade and Plantations. The date is 1755 ? Mr, McCarthy. — Yes, 1755 is the date. The Lord Chancellor. — " This map is undertaken with the approbation and at the rf quest of the Lords Com- missioners of Trade and Plantations, and is chiefly coruposed from draughts, charts, and actual surveys of different parts of His Majesty's colonies and plantutions in America ; great part ot which have lately been taken by their Lordships' orders and transmitted to this office by the Governors of the said colonies and others. "Plantation Officb, February 13th, 1755." "John Pownall, Secretary." So you could not have a higher authority, whatever its value. * On the occaaion of the Arbitration, in 1878, 271 AROUMEXT OV MR. M'CARTHY, Q.C., re QUESTION OF BoUNUAUV : Air. McCarthy.— Just ,se6 how they imirk Virginia— the two parallel liius of Vi"<'inia 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 straiglit lino drawn there. The L()Rl> Chancei.i.ou.— Oh, no Virginia does not e\tend this sule ot tlie Mississippi; certainly not. There is North Carolina, South Carolina^ «.ii;(.r^'ia Mexico, Florida, Arkansas. , .1 ■ , Mr. McCakthy. — If your Lordship will roll up Mitchells map, I think you will see it ha.'* written on it " The Land's Height." The L()Ki> CuANX'ELLoR.— Yes. Sir RoRKUT Cui.LiER.— Here it is, " Northern Mountains or Land s Height,,'" —do you say tliat goes everywhere ! ,. , , ,, , . , Mr, McCarthy.— Yes, I take that to ho a statement ot the lands height and the boundary of the Hudson's J'ay Company by the Treaty of T'trecbt. The Lord CuANCELi.tiR.—" Bounds of Hudson's Bay, by the Treaty of Utrecht."* I see that, but you must not take it (|uite for granted that that roi.uos to the whole of that red line. 1 do not see it marked to the vilest of the rod line. I should doubt extremely whether your extension of the land's height is beyond here [pointing on the viap]. Mr. McCarthy. — Perhaps the other map would shew that. It did not occur to me that there was any ditliculty about that thing— that it was a description of tho whole of the line. The Lord Chancellor.— It is not at all evident to me on the face of tho Mr. McCarthy.— Perhaps the other Mitchell's map will throw a light upon it. "There is one tliere before the Lord President. Lord Arerdare. — The place of the land's height is written where mouutuiiis are figured. . „ Sir MoKTAUUE Smith.— The " Northern Mountains. Lord Arerdare.— The " Northern Mountains or the Land's Height " go below this line. , Sir Rorert Coi ' lER. — There are no indications or mountains here at all. Mr. McCarthy. — This seems to be a better gue.ss at the real land's height than any of them {rfferrlng to a map]. [AJjouiTied till Monday morning, J let July.] FIFTH DAY. Monday, 21st July, 1S84. 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 10 sit as lono- as necessary to hear arguments that may be relevant to the leal ijiu's- tion, but "they wish to put it to learned counsel whether travelling over va^ue and indefinite ground does conduce at all to the settlement of the real ([uestion, which is as to the actual boundaries to the west, and, if you please, to llie north also. There have been a great n.any tilings referred to, which really have no ♦No such bounds were ever settled by or in pursuance of the Treaty of Utrecht. See ante, p. 222, note*. 2^2 WHAT THE MAI'S ADDLChD IN EVIDENCE SHEW. lap, I think you Land's HeiLrht," Height " go Vr'Iow recht. See ante, p. 222, bearmjj at nil on that question, but a vaguo an.l general hearing npon the claims ot the Hudson s Bay Lornpany and so on. Th,.ir Lordships wfsh tluit the argu- ments should come a little to closer -niurters, and whilst they must h^-ar all details which he learned counsel, in the exenis,. r,f their discretion, think really mat.rial for the deterniination ot the true question, yet they sincerely hope that havn.g heard tho.se details, the learned counsel who have to follow will at all events think it not necessary to repeat them. Mr. McC'AHTHV.-May it please your Lordships : I will endeavour, my Lords, as tar as I possiV.ly can, to coinply with the wishes of your Lordships, and I have n.it, willingly at all events, i-.ierred to tluit which is immaterial The LoHl) CIIANCELLOU.-No, w,. quite fdlow that. It is not very easy in a boundary case to draw the hne, which nevertheless their Lordships " are very .Itsirous to have drawn, if possible. "^ Mr. McCAinnv-I will compress th.i few ol),servations that have to be made about the maps, and 'the references which I propose to make upon the map.s which have been put m on both sides. The maps that have been already referreil to, and which have been put in by Ontario, shew these things so far as it is important to consider them in this ca.se. Tlie contention, as l\indeistand it, on the part ot the Province of Ontario, is that the French had certain forts or posts in this disputed territory ; and coming to close cpiarters on that particular point the torts that I un-lerstand they claim are, first, the fort, upon the Albany River called tort St. Germain; secondly, the serh-s of forts that were built by La Vereudrye in 1738, or thereabouts*; and, thirdly, the disputed fort they speak ot which had been put up by a man whose name is now called Duluth liorth of iheheight of land.t I think, probably, I sati-sfied your Lordships on Saturday that that old fo; t put up by Duluth was .south of Lake Nepigon.^ Then the fort ...1 Albany Kiver I admit was there ; and your Lordships rcfoollect the Hudson's Bay Company complained of it in 17L5, and that the British Government after- wards insisted that the French should withdraw from that.j^ J sav that these maps put in by the other side shew that that fort was not there'earlierJ' and that is the t.rst point 1 draw from the maps. The maps they put in are. one of 170.3 which IS the hrst map on this point, which does not refer to that fort, thou-'h 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. The Lord Chanckxi.ou.— Whether you rely upon it or not as of use to their Lordships, it is practically taken from Mitchelis map. Mr. McCarthy.— What I am speaking about now is forta, and I say that th.' absence oi any st atement on the map of 1703,1f the three maps of 1744, and ' Their erection extended over the period 17311749. ,v, ■t.'i^'?"? u"'*"!l'.u"u -^l' «V?®"?^ established, that besides tliese the French had feveral other See ap'^nd'ix B jfe°eto ^'^ ' """"^ '""'^"'^ ^^°"'' """^ *''""''' "^'"' '*'" '^'^"y "^ ^'^^^h" of ti UwJ'mnf' ^^t^ 'm 'im °i ,'L?'u""'r'J'°V*.';,°' ■"'" Nepigon River, and another on tlie nnrtherly shore tmcttm ti'ise: ^(Zin^Aip!: 62? S "" '"' "'"' "' "" '"'•^'' "" '"'' """' ""''''''" ^"'^ '''^■ k, a Im nf ^h^Xl^^IT^ ";''^ \H?' ,'!'* ^^^"ri*^ Commissaries >inder the Treaty of Utrecht proi.osed, tt?l™ i? .ll»tL It '^•''r"^"^ ^'' ^he French Comm.ssarieH m 1719. that the French .hould evaciate a Tr,lv T?; ^^ 'i''*''^^**"""*^? ^y *''^'" *' ">" "'""•'=•' of *•>» Albany in 1715, 8ubse,|UHUt to the th» „!f:f i^ / f." ?*'.** °" ?"ention, nor made answer, to the demand, bnt continued in occupation of tSe post, and of the whole region of the upper Albany, until the cession of 1763. iIni!!t*Y,L^'".i7*iT"'*i" was first founded as early as 1673, when it was known as Fort riscoutagany, r Uilln.l' ;, l?'tf"j^*^," .**'" ■"'*t"'' " aPl-ea" on one of them as early at least as the year 1700, that is on Jaillot s, published in that year. (See Notes on Maps, Ont. App., 101). li,hp!) ^ u T'' "I ^^."^ '" '?,"'''">? not only in this but also m many other details ..tlierwise well-sstab- herLrwhlTi,/;^ "•'"*" T""° "' *,*•*' A'^jany, near the bay, and not at all that particular portion of me rner where the fort in tiuestion was located. lb (13.) £73 AROl'MENT OF MH. M'cAHTHY, Q.C, re (iUE.sTION OF KOUNDARY the map of 1740, that were put in about this part thiit they speak of, imlicak's till- two tliinfjs which I contend for.* Lord AiEltl'AKK.— Before what date ? Mr. McCahthy. — Before 1703. Thoir contention is that this fort on the Alliany River was put up in IGSti or therealiouts. Lord AiUHDAiiK — 1 tliou^'ht this I'oit St. Anne was the same one. Mr. McCAinilV. — But there i.s no fort mentioned on tliat map. Lord Ahkrdare.— I thouj;ht Fort St. Anne, wo.s mentioned, not e.Kactly or. the Albany Hiver, but clo.se to it. The river is called the St. Anno's River, Mr. Mct'AiiTHY.— That is the Hudson's Bay post. liord AliKUDAUK. — This is the French maji. Mr. Mc<;akthy.— r>ut it is the Hudson's Bay post. The Loud Oiiancei.t.ou. — How does that appem- > Mr. McCauthy. — That appear.s from the statement made of the niiuu* ol their posts. The LoiiU Chanckllur. — Surely one may not lay too much stress upon names, but is it very likely that after the date of tlie Hudson's Bay Com])iuij the name of St. Anne would have been given by the English adventurers to on,. of their forts ? Mr. McCapthy — That is on James' Bay— the bay itself, as I understaml That fort indicated there is on the bay, and not on the river. The Lord Chancellor. — That is a matter of measurement; but to me it seems that it is rather in the angle of land between the estuary of the river, if I may use that expression, and 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 othei possessions upon the bay. There is no dispute about thut. The Lord Chancellor. —There is an exceedingly important circumstance which we shall have to consider, which is this, that the Hudson's Bay Conipany themselves, in 1701 1 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 f)wn names to them. The fort marked there is a fort upon the bay itself— James' Bay— and is not claimed to be a fort on the Albany River. Lord Abeudare.— On this map. Fort Albany, Fort St. Anne, and tort Chechouan are all thought to be identical. Mr. 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 "''^"" L70U. • The ni»p of 1744, "Oarte de la Baye de Hudson," and also the map of 1746, do, as a matter of fact, each shew the fort in (lueufcion. The other inftpb of 1744 do not at ali embrace this part li thr trrn- tory—a circumstance overlooked by counsel. 274 EXTENT OF THK FRENCH POSSESSION. )eiik of, iiiiHtiiii'^ this fort (in tlio uao one. i of the ntuiu* ol as I understaii'l Anne, and Fort The LoRP Chancellor. — As nmrkcd on this map of 170:i it seems nearer to the river tiian to the hay, ami I shouM say rather on the river than llie hay. Lord AnKROARE.— If yon follow the words " F(jrt St. Anne on <^iiichi- ohouen,' yo'i will find that will be on the bay rather than on the river. Hut the real tjue.stion is whether these nuip^ are sutlieieritly |)reench, but .said for the sake of peace we would accept it. The Lord Chancellor.— As a matter of fact, it was a ' Hudson's Boy Company were willing to have accepted.| * Report of the French plenipotentiarits to the King, 18th April, 1712. + Lord Dartmouth to the LordH Oomniissionors of Trade and Plantations, February 19th, 1718. t CounBol failed to specify the particular corregpondence. ^ .1? ■^\a,'na"e'- c.f fact they did oUim, even after the Peace of Utrecht, thatthey weie entitled not only to the whole of the interior, but alno to such i^ortiona of the shores of the Bay as the English could not prove .an incontrovertible prior title to. ;Joint App. 513-16.) ' By their memorial of 29th January, 1701, the company proposed as their southern boundary the Albany Kiver on the we^tside of the Bay, and the East Main River on the east side. On a nreviotiR occasiou. aiso, oy tneir mouunml ol iOUi Jul>, 1700, they had proposed tho Albany ; the Hupert'Kiver being then suggested by them as the. limit on tho east side. See these memorials, aiUe, p. 206, note X. 276 boundary which the CUnTAir-MKNT OF THE TEllUITOUIAL UKJUTS OF FUANCE HY TIlKTBEATVOr I'TUEfHT. itjitornent an to ch took H I'l: ^^^}^[^'^^''^^^^Jf\^'--'*'o»rhorMni,s will see nil timt vva« chanL'.-cl between 1701— thi> war tnlK.winjr iimn.;.liiit.>lv- -and tlio Treaty of Utrecht. The L)Ui,(;uANCKLi/>it.-.-It w„(.1,!Ik, extreinelv important if we coiil'l see that the particular places which are now in .|i>.,utr vvere treuto.l as l,„in" English an.l not a* hein- Froneh If yuu amnot shew that, hut rely onfy on the ;,'eneml words, we follow the ar^ru„„.„t, l,ut it is not necessary "to enlarge it in detail. ' " Mr. McCarthv.— The reference f i,Mve your [.ordships on Saturday does not make any distinction lutween one point and the other. The LoKi) CiiANCEi.i.oit. -If that is so, we must consider the force of ireneral words in connection with other thiiij,'s. Mr. MeOAKTHV.-Yes. And th.Mi J would add to that, that your Lordships will see on the map ))efore you [A- IhlrS moj> of llo.!] timt whore the French (lesmHl the line to he drawn was south of Janie.s' Jjny, south of the wat.'r lino by a very considerable distance. The Loiii) t^HANCi;r,i.(»u.— Not a very considerable '. i\[r. McCakthv.— No ; that is our claim. The Lord Chancei.lou.— It would cut off the mouth of the Albany River and retain a considerable part of these forts. Mr. Mc( 'AKTirv.--Hut 1 siiy all the forts were north of that point. That is made plain by this, and I did not think there was any 'in^ntion about it. If your Lordships will look at the words used in 1744, at pajje .iH'.i : " Extracts from the orders given by the Hudson'd Bay Com[mny to their chief factora m the bay in anticipation of an attack overland from Onnada." The Loud Chancellor— What is tlie material part of it. Mr. McCarthy.— It is addressed to "Mr. Joseph Isbister and Council, at Albany Fort." Albany Fort was St. Anne's Fort, one was the Kn relish and 'the other the Frencli name. Lord AiiERDAKK.— There was a fort on the Moose River. Mr. McCarthy.— And they had put up a factory at Henley, on the Albany River, ■' The Lord Chancellor.— Henlev is on the north side. Mr. McCarthy.— No, my Lord, on the south. The Lord Chanoet.lor— Surely not. Mr. McCarthy.— We afterwards put the Henley Fort on the Albany River 140 miles from its mouth.* The Lord Chancellor.— [ asked whether on its north or south side. Mr. MoCarthv.— I answer the .south. The LoiU) Chancellor — I want to know from the map where it is. Mr. McCarthy.— If your Lordship looks at Mitchell's map, it shews it very plainly. ' Ttie Company, in their Memorial of 17B0, flay that Henley was 120 miles up the river. 277 ^^ROUMINT t)F M*. M'caKTHY, y.C., re QUESTION OF HOUNDAUY : Tht' LoKK ('HANCELM)K.— Tliore it is iimrktiil on tlio siuth sido. Tlii-* Eliuh^^raph wliicli , taki-n fioin Mitolii!!'-. xuny shows it l>olow, miJ tiio iiiii|) w.> ftvc bf«n u.sin>( marks it al>ovo tho rivor ami not below." Mr. M'<'.VHTHV. — Then it ia iocorrvct, because all the lariy maps mark it ImjI/w Vho rivtr* 8i.' RoiiKUT CoM.lER. — You say tho original Mitchi>,li'.s map shewn it. Mr Mcl'Auntv.— Yes, and I have another original map here which whows it — Henley Factory, on the Albany lliver. Lord AiiEUl>.\UK— Would tliat be on tho south side ' Mr. McUarthy. — Yes, and there are other maps where it is marked on tho south side too.* Lord AnKitDAUK.- -Where do you suppose Fori St. (lermain was ? Mr. McCaktiiy. — AV)out the same place. In fact I have a statement thai it. was in the same place. The French say it was the same place, and that iw Henley fort did not amount to much.f But the fort we have been speaking of was at the mouth oi tho river, and sometimes called the Albany Fort and soiu".- times Fo't St. Anne. Now, my Lord.s, the result would ap|icar 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 thoir southern boundary, nevertheles.s 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 tht> Bay and Straits of Hudson Tho French acceded to that and surrendered all the forts on the bay and straits, giving up even tho cannon.* Sir RoBEKT CoLLiKR.— '• The P-.y and Straits of Hudson " is exceedingly in- definito. 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 RoitKRT Collier. — On the bay and straits, would not take you far. Mr. McC'ARTHY.— There were no inland forts there then at all. There is no pretence that there were any inland forts at alii}. Now we come to the treaty (jf 1713-14, when the Hudson's Bay Company were put in possession, under the order of the King. Tho French King gave the order. The Queen transferred the order to the Hudson's Bay Company to take pos.ses- ?ion, and they acknowledged the fact, and that is tho last time the French e\cr * Henl»^y ia represented on most niajis as boin(? on the north bank of the .'V'tiany, its true ponition ; l)\it ■>!! some AH Hituate on the »outh bank. On the mapx attached to Mr. Montgom.,/ ■ .V..-»ilu n ?■ rks on the CKudwi and the Hudson's Bay Coin|>anv'« Territoriet, : .jjeetively (the latter prepar*) .u , h « .. 'stance of, an'! trom materials furnifhed by, the Company), as well as on the map shewing th" 'v-'iimiM.-.v • ' •fitorial clan ^ i' '• pared at the iintance of the Company by their own peographcr. Arrow ■ .n, i .r it.^ !iou»«ot Oomiiions Committee of 1«57, it i» markod on the north aide. These f*ctH, wuii i,iie Bcrong probabditv tliat tliat poBition was the most favourable for purjx)?ei of defence againct the French, determined its location on the map alluded to by the Lord Chancellor, viz., tho Ontario ( J overnment Map, prepared for the Fnvy C< unc'l. ■, The old maps place Fort St. Germain on the Albany, at its exit from Lake St, Anne, on thu north bai:. end considerably higher up the river than Henley. M. Bellin's statement (.Joint App., 643), h. re ^i.-evi Xo bj counsel, may be road in agreement with the maps : " Tho English built a factory th-re'- ^i ! the Vlbany. t 'bi '.c iort:- .c- on the margin of the Bay were surrendered, and not those inland. The surrender wasi .i 'o ^ Cr . ■ .oy, but '* to the Kingdom and tjueenof Great Britain." (Treaty of Utrecht, nrt. 10), and, v.i • .'«-- ' al; iuo dircumsta '•. o enured, it was claimey I'TUKOlfT. iuu]iH mark ii marked on tho occu'iietl on the )»ay.» The r.oijt <»ccnpnli .ti that we heiir of of th.' Fri-nch is on till- AU>riny Itiver.at the plmo wh. i Kort Ihiiley U( w is. That wnt compluiiieJ of hy tho Hu.l.sons Hay Company m 17IH. In I7l!», th?it complaint -.vaM re- presented hy the Britisii C'nmiiiisHari.- , lo fclif Frt-noh. And w*^ dn not h.'ar any- thini,Mi'ore ahont tho Froncli Kort which th.y call St. Ciermain, siihseiim^nt "to that pt-rifMl. Hut f rely on tli.' maps which an- put in of 1744, and I rely un tlif Htateinonts read of 1750, to show that at the time of the ceHNi.in. this Fort »l. (••jrmain had l>oen practicilly alinmloneil, It do.'s not appear in the list of fotH* ^iven hy (iovt-rnor Pownail, nor in thf list yivoii hy the tuo French oHicera to which reforence was made l.y the other side, and to which i referred on Sattn-day. So that we may assume that Fort St. (Jermain wni abandoned in ohedience to tho English demands.f Then, what happened with rej,'ard to that. in tho documents in which the Hudson s Hay Company state tho facts in 174S, after the Treaty of Aix la Chapello, thev state" distinctly, auJ I draw particular attention to that — The LoHD Chancellor.— Where is it to ho found ? Mr. McCahthy.~I will give your Lordship the referene>- to that. It is at page 5.S7, and it is 1759 I .see. That i.s a later one. I nuist ...-t the earlier one in a moment. The one of 1719 may be read. That is at fai^e.578.* Then there is one of 1748, which I shall be able to give your Lotd.si.ips in a moment. The Lord Chancellor.— At page 587, what is there thei » ? I do not see anything there bearing upon the question of any importance at aH Mr. McCauthy.— I will give it to your Lordship, because it i - of importanee with reference to the French posts. Lord Abekuare. — The Fre.ich go on claiming steadily from time to time» up to 1750, and past that. Mr. McCarthy.— No, my Lord. Lord Aberuare. — They go on steadily claiming their right t > possession, and their legal possession, at one time or other, of part of Hudson's wiy. Mr. McCarthy.—No, my Lord, I think not. When I say tli y' do not, I want to be correctly understood. After 1719, when Lord Stair and Mr. Bladen, • Not BO. In •ddition to their intercept! ns; the best part of the tr.tde at their inU 1 poiti, their oiwrrtions extended, at certain point*, to the nhorea of the Bay, and in particular at the iiipert, which the Hud»on a Bay Company abandontd, and at the Post ^ la Oii,T\m, whcsi- bounds extende. to the ahorei. (See appendix B, hereto.) t The evid<'nce is in contradiction to all these contentionii of counael : (a) Fort St. (ienm n ii depicted on the maps an late ai 1762 ; (i) thu very map of 1744 here referred to, produced bfifm-s th( «)ard, shews the very Bontrary of what is stated : it clearly shews tho fort, on Lake St. Anne ; (e) thu stot. ent of 17,^8, alio here referred to, (Pownall'ii), is confesKedly incomplete ; " I havi- not been able to K"" »" exact list of the forto in 'Canada, but the following is sufficient to sketch out tliv manner in which they induct thi» service;" he informs us, as the fact was, thai the " principal forti h»ve subordinate forts li indent on them; they ar* yet inde|iendpnt I'f ewh other, and only undor the coniinand of the Onvernur i ineral . and the otticers and commanders are removed to bt^tter and liettrr coinmand« Now St. Germain was a dependency of Nepigon as the principal post, and Pownall sets out the Netujfon and its dependencies as follows : — fTwo or three. "NiPIOON. ' One on the fliver Micliipicoton. 'l One other on the Lonp Rivor. ( And one other." Fort St. Ctermain miiy fairly bo taken to be covered by one or the other of the two last menti ned ; (d) De Bougainville- (fives the p»)st of Les Nipi^ons, without mention of dei)er.dencie8 other tlian that it ncludsdt La Carpf, which designation applied as well to a lake as to a stretch of territory : the limi'.s of this lu ler were northward «>f Nepigon, and extending to the shores of Hudson's Bay, and access to it wa.s by Nopigon . {c) that the French held the trade of the interior with numerous establiihments, the Company ci ntining th.-mselves to the shores of the bay, aj ,)par(' by the i-everal admissions of the Company as well as liy many other pieces of svidens!.. !Nr.t.--.s .-.r. >.?=.;=., N.~.=. f^. 7ft, 7,-., ?«, log. HO. 134, tiit. ii.rtp of 1744, as produced. Joisit App.» pp. 580-6, 594-6, 602-3, 716 ; Ont. App., 28-9, 32-36; appendix B hereto). t See ante, p. 112, note t. 279 AROUMENT OF MR. M'CARTHY. Q.C. re (JUESTION OF HOUNDARY limiting on behalf of the English, endeavoured to hnve this line fixed between the Fnnrh and the Knglish, nothing appears to have been said more than that Lcvd Stuir was unable to get the Conimissiuners to meet. He speaks of two iieetin, 614, + Ibid., p. 516. 280 LIMITS OF THE FRKNCII POSSESSION AFTER THE TREATV OF UTRECHT. Sir Robert Collier. — " Ho«rever that may be, His Majesty is firmly resolved to maintain his rights and his possessions. Mr. McCarthy.— Tlio.se were secret instructions and tliej- do not appear to have ever been coninnuucated.* In point of fact, your Lordship will find that they never were coinmnnicatod.* They rlid not meet or present to the Eny endeavounn;^ to guard their territorie.s Loth to the soutli an^lVrJ again.st tlie Frcneli frontier." Mr. McCakthy.— Yes, my Lord, it sliews at all events that tli-re wis ,,, acquiesceni-e on the part of the Hudson's Ba^ Cu.i.|.o.iiv, and also .shews that u il i ' point Fort Henley, they had withdrawn from. " . Lord Abkki).\re.— It shows f.hat the frontier uiii.st have come up unfonm.oniv close to the Hudson's Kay. ' • Mr. McCauthv.— So it did, my Lord. Lord Aherdake.— They wei'c at Fort Ahbitibi. which is immediateiv s„utli of the bay, and you will see that there i.s very little distance between th- tV,it which they (-rected at Moose River and Fort'Abl^itibi, which is iinmediat«lv t, the north of the height of land, and south of James Bay. Mr. McCarthy.— Th(i distance I will give vour Lordship exactly, but that was the fort, that was the place they speak of,* and that was the danger tli v appreheruted of the Frencli from the contiguity of Canada.* '"" Lord Abkroake.— The French claim' in the various pa]iers which th^y imt in that they have occupied all this country, coiniug from the south tliat tLv have come up almost to the borders of Hudson's Bay, and that all th;u tl'.. Hudson's Bay Cotnijany could claim would be the borders of the ba^-. Mr, McCarthy.— That is what the French were claiming, and th.^ En ''"«• Jt was in evidence, and in fact admitted bv the Company, and also so found by the agents appointed in the interests of the Dominion and sCl toba to make researches for the purposes hereof, that the Company never went into the int.ri.'Tn the region of the Moose, or, excerpt so far as Henley was concerned, elsewhere, during the French Tno ""•■ V'^'f I'^^n '"?*^ "l"f thereafter. Moose Fore was .it the mouth of the river, .ind the v" y memorial of 1750 referred to by coun.se .set. out that the object of its erection w,is tor "prevent ne ih/ fh''"'^-'"*^.l'"N-"*^ by any navig.^ti,.. down that river . . . and to guard their bound" ie« hv^h T F T. ' ^^ ^ '"'"') frontier In a statement of the Company printed in 1857, and funii.h d by them tor t^he purposes of the arbitnUion of 1878 as to the.e boundaries, they siv : -A.s Iopk a. Canada was held by the French the opposition of wandering trader.s was insulticient to indur^ the Con, R»/ fT "f'l*^"'^ "Hual method of trading. Their servants w.aited at the forts built on the ca.t of th- Bay, and there bouKh , by barter, the furs which tlie Indians brought from the interi,n. Hut after the cession of Canada to IJ.eat Britain iu 171-.3, Briti.sh traders, following in the track of the Fren . pene tratedmtolhe countries ying- to tlie north-west of the Company's territories, and l.v their bu^ d in^ factories brought the market tor furx nearer to the Indian ssller: The Company finding leirS seriously interior affected, extended the field of their ojierati. is and sent parties In process of tune, all suialler opposing interests were absorbed, to e-iLiblish tlieinaelv iu the ir. ti.= M ..I. v\' t /I ' V »*"■"";"'" i-r •.-•••« ••■"■ .»."..„ „t.., ..i.oui >.t7u, eitlier by purcliahe or coalition l^n'lli n^ ^'''^■"".'l"'"^"^'^^""*''^-'''' «"«'« thus became the sole rival and competitor to the Hud- ?k^ Jf^"' <^""''""'^'- ..""f'^K """'.V juccessive years, a most disastrous contest was carried on lietw^tti .fmhf'L ".'""";«•-,• ■'':""' ?l'l' -^i'^' Wr ?' ^ ' ■ t" '*',•; -^"i'^'^'T «'f State of Canada, conveying information for the purposes o. v» ITh t['''>'*"':"' '''r = t^^ "'; 'l'"' "^ j'"" '"*"''"*? "f *'>« ^i"'^l^«'= '^'^^ 1774, the Cninp-viy had not Ltif, nf 1 i'"" l""''" """^ '"^"f :">« f^"- f--',"" fh" «h'"-es of the Bay. .Tournals of tlie following trading stations have been i.nMfrved bearing thus date, namely: Albany, Henley, .Moose, Ka-tmain, York .^rnM'nf"th,S'j""-''""- ■ (J">"t»PP-M4-5.) And Messrs. BischolF.'^Bompas'^'and Bischoff, the London ^genls of the Dominion instructed to make researches, write on L'2nd March. 1877, to the .Secretaw of Mtate ot L-anada : . . We have been engaged almost coatinuously since the date of your lant l."tter in searching the records of the Hudson's Kay Company tVom a imrusal of the Conunm's journals, we hnd that it was not the practice of the Company's servants t" J ;, i^, 'nmt v to ,"a' "^^^i- peltry troin tlie Indians ; but tlie Iiidmns came down to V'ork ami other forts on the Bay and tiiere ^alU^?^™ n"" v"™! ^^A-,' ^°' 'he Company's merchandize. It appears tliat the ' pedlers,' d they were called, from Quebec had for some time prior to the year 1773 gone up into the Red River district, and by 284 OUNDARV LIMITS OF THE FRENCH I'OSSE.SSION AFTER TUE TREATY OK UTRECHT. neiip iincoiniiKiniv o- 1 F^ ,^; ■'^f';''"'!-7'"^^'•'^ ^^^^ J^^tance between tl.e fort at Moose R.ver and Fort Al.bitibi ? As far as I can ^niess it nn.st be over 100 miles. Mr. McCAimiy.-I think wo can give your Lordship tiie exact ;aRE.--No an,l there is Fort St. L<,uis which is said in tins niai. to have been built beiore 1G8G. ' a Wer^lbrt'' ^^"^^^'^'^'''^^'"-That is the fort I say, there is no evidence ot being Lord Aberdare.— Nor Fort St. Jaccpies or Fort (Iharles A,i-ni whft''''"''T'".'-'* VT *''"■' '' •^''^^•'"^•^' ^bout. There is a fort at Abbitild which is a frontier fort. The Lord Chaxcellor.--You cannot seriously contend that Moo.se Fort is \bbiUbr" ' '■' '' '""•^^^'^^'^'''^^ ^''^tance at the extreme north of Fort Mr. McCauthv.-I say so. It was nut a frontle. fort but a fort upon the nver for tlie purpose of meeting the attacks of the I-'rench The Lord Chancellok.~No ; they have altered their expression because a page 26 they say : " \ our memorialists thereby," that is by tl.e ereSion of thise Moose and He.iley Forts, "endeavoured to -aiard their territories otJi 4 he south and west a<,'ainst the French frontier," Mr. McCarthv.— Yes ; my Lord, fortsf ' ^''"'' CHAN'CELLOR._Does not that imply that they were frontier Mr. McCarthy.— I do not think so, my Lord * close'^rlo^Sr''-" '"^'^^ '''''' ''''' f^^'« ^''^-^^J "'-^ '-- -- .ery Mr. McCARTHY.-It implies this, my Lord : We say all the trade was done by these rivers , and what they dreaded wasJhat_tW French might penetrate H.arne wa« se..t down to establish a station u'^,' com, rry w Jo he .eo Im^lv cli/ It ^^ '7\''Vr ^^'■ In the same year, Matthew CockiDK started on a j.iuniey to t « Re !'T r^^^^ tumherland House. made there until Rome 15 ve«* later. In hi. j .urn "if this , urn ,1 hi '''^?"'-t..l>"t »» settlement was there every year.' ' An old t,edler caried V ung ller re S\here'"'"/hT" •.',?*' '*'""-^ *"■'"•'"'-"» ruj.ted by the pedlers having so lung resided ti.er > "and «.« »l. o I,' ^*' ""' "*"''*''^ '^'''"' ^or- Sa,katchewa« Kiver. These'',.edlers were both English and F?ei^h hMr'**'%''V''""''''^ "" *he Quebec. . . \V^> have not taken extract. frorthePosOitfe^^^^^^^^^^ '" ''^^e come from evidence calculated to support counsel's theory of prior dut<^^vLybrthe Hud msHrv'r'''' """' °° "V".'^' foregcms I reHectHj the general tupresHion produced upon our m lurby p " a " tl e f'.S n^^"^' ""'' V'" of sundry pubhshei histor es of the district in the f!oini.anv'» r ih^ ^ P'-"""" "* t»" t ort Uiaries, as a so p.,l.li«hed m2 • Remarks upon CaptLfMiddletmr'Drflnoi b^^^ «"^.":« ^ay.' Travels m North Amenoa.' t7fi6.' (Joir.b app., 715-17.) And see also Joint App^^^^^^^^^ """^ ^*'^"''' f^^^I^^^^i^J^^Z^I^:^'^^ ^l:^f-t^ ^y '^r%t,.t the muru.li..ts have used the best endeavours in their power t/urevenftl,^hW "''"'* = ^"'"" "'«■ on the British territory in these parts, and particularly at the H,,ten,r?f n *'"'•.? u^ -noroachmMits hbau.hood of the Wench, there is most t "raS Ym r me n ,' il f ^""1"^ Bay, wher», by the y years since upon the princinal river there. VX.M?,?,'. u^l'^.TV^''^'^ have made a settlement »e Bay. aud have also erected a forru.ounted wHh a"m' ' fo th/'.Tfen™"* f T^' '^i"*"^^ and preventmK the French entering the Bay by any navilration down th^t RuJ *"T "' '''* -fettlenient Zr/":;f ^ -r^ -;-• -^' '^'bany r' vel th^ lik&fat^'^nJo* h^',^,:;\!^^'i^^^^^^ ^pnr;^!a^ ■riZ^ -™s:is'tCb;';^^^;;^/;;;;tt^l'tili^^^;^ ^f V|i;u:cr:;r?^ and we.t, agamst the French frontier." (Memorial ..f 1760 coovTn "i.f^r?'''^ ^'"'^^''^t''« «""t'> Council, ■■) Fort Moose was on the Bay, at the TmnUh of the ^I'X River * «°»"d»'-'e« before Privy 286 AIUJCMENT OK MR. m'CAHTHY, Q.C, re (/rESTION OF BOUNDARY down by these .streanis, and they erected these fdrts for tlie i)roteoti()n of i\mr business on Hudson's Bay. That is how I unih^rstand it. In one of tjio papers ])ut in by the other side- there is a clear explanation of all that, ami yo'ir L()rdshi]),s will understand that readily on a moment's reflection. Thosr who were at the sources of the rivers could congrejjfate their forces and prepare f n an attack, because it was a very simple and ea.s}' thing to do to j^o down the .-^trfaiii and attack the peoph- at the mouth of the stream, and that was one of ihi. reasons why in early times they said that it was necessary to give the bniin.lai\ limited by the watershed, because if an enemy or another power was allow, il t(, come in at the source of tlie stream they could gather their forces together, lufiK! any preparations could be made to meet them, whereas if they had to come over the height of land, the tune retjuired for the preparation, and the tiuie of tht- pas-iage, would give notice of their approach and enable a defence to be rnndo. That is stateil by one of the French gentlemen whose memn\re» have been put in by m\' learned friends on the other side,* and it is a good and plain rea.soii why the line of uhe height of land should l:)e accejited as the line of limitation hetwcen jjowers in this savage wilderness. This fort at Luke Abbitibi I propose to say a word about bye and byu. All I think we have i.s this, that the French fort at Fort St. Germain was not theiv till 1714 or 171;'). 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 nf the height of land was Fort Abbitibi.f and let rae tell your Lordships when that was built. Sir Robert Collier. — Fort Henley was substituted for Fort St. Genuain '2 Mr. McCarthy. — Yes, my Lord, it is the .same place, and consequently Fort St. Germain was withdrawn.j The French withdrew from that place and we tind no mention of it,f or any mention of their forts at a later place. Then t'ne 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 co a:tack the Hudson's Bay party, and his party erected Fort Abhitibbi, and that remained in the possession of the French until the time of the ce.s.sion. 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 Aberoare. — If this map is to bo 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. *Duiii»s' memoire on the boundariee of Capad.-*, 1761, Joint App., p. .526, which, on this particular ptint, had reference, not t(i the boundariep towards Hudson's Bay, but to those to the southward of tlie Great Lakes, and towards Louisiana. The Hudson's Bay Company never put forward a claim to any of the boundaries projiosed by them on this particular ground, nnr at all to t!ie height of land until Lord Helkirk's time, and then on the pretence that the charter juBtified the claim, and invoking, later on (that is, upon the present proceeding), the language of the Treaty of Utrecht in eupiwrt This latter pretension was summarily disptjsed ench, captured by them from the English, and were restored by the Treaty of Utrecht, so that I think your Lordships will find that I am correct when I say 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 the exception of that fort and Fort Abbitibi, and the forts erected by Verendrye subsequent to that in 1738, there are no forts which have any bearing on the question which your Lordships have to deeide.Ji} I am desirous of continiug my observations as much as possible to those matters which appear now to me to be important. Now, if your Lordships will follow me and look at map No. 84, coming down to the other forts, your Lordships will see exactly where they are. I have never denied that there were forts. It is a small map in the brown coloured collection. Lord Aberdahe. — That is a map of 17.30. Mr. McCauthy. — A map of 1750, and that is said to be a map marking the forts to the west, by M. Verendrye. *0n tiie contrary, the ovidence was clear, and easy to find, in the books before the Board. See appendix B, hereto. t This ncarcelv acoordB with counsel's previous contentionH, that the line of 49° was proposed because of itd bfiug practically the same aa that of the l-eight of land, and that its adoption would be convenient by reason of the .iifBculty of following' the irregular line of the height of land. [A nte, pp. 221, 2K5. ) ' I They named it Fort St. Jacques. S On the contrary, there were many other forts harinaf such a bearinfr, as hareinhfifore already appeir*. But see appendix B, hereto, where the particulars are brought together. Verendrye's forts were erected 1731-1749, r87 m AROUMENT OF MR. M'CARTHY, Q.C., re QUEHTION OP BOUNDARY: Bay -Then, that makes Lake Winnipeg discharge itself Lord Aberdare. — Is this an English or a French map ? Mr. McCahthv. — A French map. Sir Robert Cor lier.— From whose custody does it come, the Hudson's Company ? Mr. McCarthy.— No, my Ix)rd. Lord Abkroare. — It is from the Depot do la Marine. Mr. McCakthy.— Yes ; from the Marine Department. Now, your Lordsbipi* will see on the right hand side is all that is shewn on the map of Lake Superior. Then following a chain of waters your Lordship will see the forts. The LoiM) Chancellor.— That is not what I have got. I have got ono which is a chart of the new discoveries in the west ot 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 ; Vmt it is not marked. On the right hand side your Lordship will find i^-ake .Superior. The Lord Chancellor. — Do you mean where the map ends ? Mr. McCarthy. — Yes. Lord Abeudare.— For instance, it is called " Partie du Lac Superieur." Mr. McCarthy. — Yes ; it is, as a fact, The Lord Chancellor into Lake Superior ? Mr. McCarthy.— No, my Lord, the height of land is marked immediately afterwards. The Lord President. — It does loolf 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 })art of the St. Lawrence system.f Now if your Lordship will follow that up to the lake called Rainy Lake." Lord Aberdahe. — There is no doubt that the source of the river which flows into Lake Superior is very 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 poinc may be a question, but here on this map it is not of course 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 tliat it puts that down exactly. Your Lordship will see at Rainy Lake, Fort St. Pierre. *No. 84 in the Notes on MapK, Ont. App., p. 110: "Carte dee nouvelleB Di^couvertes dsna I'OiiPBt du Canada, dresgjie surJes Memoirea de Mr. de la Veranderie, et donn.ie au DepOt de la Maiine par Mr. de la GaliBsoniJ're, 17.iO.'' GaliasoQiere was Governor-General at the time. t Some inapg prior to this date fhew the division of the waters properly, and some erroneously as here stated^ but most of them are silent. After 1760, ilitohell's, of 1755, and otiier maps, perpetuate the ermr, To this error in Mitchell's, which was the map by which the framerH of the treaty reRulated their proceed- ings, IB ascribod the drawing' of tlie international boundary line of 1783 through the Long Lake, m. cnlkd, and the intervening waters, to the most north-westernmost point of the Lake of the Woods, there shewn as the head of the 8t. Lawrence systeni. (Documents rt latino t-o the Boundariea of Ontario 1878. r., ViKv. notes " and J) The French explorers must have known the exact height of land fronTa very'eariy date. 288 very THK FRENCH OCCUPATION OF THE NORTH-WEST. it the difi'erent That IS the tirst fort. Tlien, if your Lordship will follow on to the next lake, which 13 the Lake of the Woods, you will find south of that Fort St. Charles Then, if you will go to Lake Winnipeg, you will find another fort on the east side of that ; and it you will still follow on to the west you will find, at what is called the Lake ot the Prairies, Fort Dauphin and also Fort La Reine These are the forts which that gentleman erected and this is the map shewing where he erected them. " The Lord Chancelloh.— Those are all forts of the Western Sea ? Mr. McCarthy.— Yes ; there are the foits he eiected. What I draw atten- tion to IS that tins line of forts is on the boundary line between Canada and the United btates and south of the awarded territory. It is on the very line which is the southern boundary of the awarded territory. The LoKD Chanoklloh.— Some of them arc in the awarded territory ? Mr. McCarthy.— Speaking generally, they are on the line. One is to the north. Fort St. Pierre. Fort St. Charles is to the south. This line of forts is on the line which is .southward of the territory.* The L()ui> Chancellor.— There is a Fort Caministiquia ? Mr. McCarthy.— That is further north. I understand that Pigeon Biver is south of that. There is no doubt that Fort Caministiquia is not on this chain Sir Robert Collier.— This map is altogether wrong. The Rainy Lake ia put as to the north when it is to the south. Mr. McCARTHY.--Still it is accurate enough so far as the forts are con- cerned. I rely upon them. Sir Robert Collier.— 't is an inaccuracy which is material Mr. McCarthy.— It is not my evidence. It is their evidence. They have put It m and I must accept something. It is the only evidence which vour Lordships have of where these were.f Sir Robert COLLIER.-It is altogether wrong. The Rainy Lake is put as to the north but it is to the south, and the Hudson's Bay is wrong Mr. McCarthy.— That is out of place. Sir Robert Collier.— It is as wrong as possible :t Mr. McCarthy— All the maps are.g He puts them down on this water commumcation. We hnd it was the water communication he took. At that date he could not have got into this country except by water communication. Up Pigeon River, Long Lake and the Uke of the Woods was the only means of conimumcation m those days. There is no doubt that is where he erected the f orts. That is, at all events, the proof which is offered to us.|| The result of tODlyonepieceotevidence, and not the inoat important. Their estiWiahiriunf .„.» ....t:„..i i are as muoh wUled matters of history as the diwovery of Mar.mettran, tS^ o^^^^^ exploits ,;f Caveiier de la Salle. (See'^de Bouga nvX's ^■c^f.t' f them a^l n 94 not« '"Jhr"""" ^""J Th09. Jeff'iry«, the EnRlish geographer and historian in 1761 Uir nnia^/' "^J^ 'a? vr' '^e account ot Ont. App., p. 11, ct ,.,. Thl f itf.h and CaJf^ir tra°deV"wCent^?ed\t*cU\ty^a» rfh^^ ce^o^ Canada, aa or matanoe Alexander Henry and Sir Alexander Mackenzie, give Zt mony .n re^«rd to thi t The map in queation is a sketch transmitted by the Governor-General to the Deoartinpnt nf M»,i„. and the Colonies, shewing, with very sufficient though not scientific clearne^ th« ol^«?^,f Marine tions, both lake and river, from the mouth of the Pigeon Ri^er on Lfke Sri n^^ water communica- Uke Winnipeg, and out 'of thi., direct route. like IwTnitobrwUh its f^^^^^^ ^he Red" Ri^er^n f'.hl A^smibome, together with the chain ot forts-each in the proper. position- fZded by Veron.W^ Saskatchewan also is shewn as .lischarging into Lake Winn/t.eir and thi« Iak» Lt^ H.^X-vf-V '^ .JXi^i)^^r:^t ?s^^iss;:;f,5rk?ptrr^!)'" ""''-^°«""'' ">-". itaik etc.- li See aufira, note f. 19 (b) 289 AROUMENT OF MH. M'oAUTHY. Q C, re QUK8TI0N OK IIOUNDARY : what T havo said, so far as it appears to mo, that there is not one fort that f.'(i( < to justify in any sens*) tho claim which is niado hero by the Province of nntaiio after tho Treaty of Utrecht. Tlie only possible fort they could rely upon wu, tho Fort St. Germain, and that fort was withdrawn, as I think I have uH't'ieil sulTicient proof tn shew.* The other forts are .south of the linef and cuiiii n justify tho northern boumlary assumed or taki"i by the arbitrators* Hero is a map wliich is the same as theirs orily ie Lout) Chancellor —Thon wo will postpone it* Mr. Mc;l.'AUTuy.~lf your Lor.lship will kindly Ulaiid, B. I)ferii Likke. B. R.K:k Dep/it. 7. Island L»ku. 8. Norway House, 1 1. Motwe. 3. N«w UriiiiBwiok 8. Kunogiunegee. 4. Miohipicoton. 6. Albany, Northern Dtvartmenl. 9. Beren River. 16. Carlton. 10. liakn La Pluie. 17. Kdmonton. 11. Red River. IH. Leaser ,Slavt> Lake 12. Up|)ei Red River. 19. Isle A la Crosse, 19, Manitouba. 20, Athabasca. 14. Swan River. 31, Peace River, 10, Cumberland, 33, Great Slave Lake. Southern 'Dtpartmint. 6. Henley. 11. NeiKiuiioar, 7. Martin's Falls. 13. Woswonappy. 8. Osnaburgh, 18. Rupert's Store. 9. Re4. Lac du Bonnet. 66. Grand Etifcre. 28 29. 30. 31, 32. 33. 56. B7. 58, Lac la Biche . 59, IMe a la Crotse (English River), 60. (Jreen Lake, 61. Lac la Loche. 62. Lac la RoUgo, ••3. I/ac la Pluie. Vermilion Lake. War RoHd. White Fish Lake, Lao des Isles. Lake Nipi^on, Sturgeon Lake. 66. Red Lake. 66. Lesser Sturgeon Lake. 67. Abimonde Lake. 68. Pio. 69. Ixing Lake. 70. Black River. 71. Michipicoton, 73, Matagame, 73. New Brunswick, 74, Batchewanan Bay, 76. Petoubeau. 70. Sault Ste. Marie, 77. Mitsisague (Lake Huron), 78. La Cloche, 79. Island Post. 80 S, £. Lake, 81. Lake Tumiscamingue. 82. Abitibi, 83. Waswanipi. 84. Grand Lao, 85. Matawacamingue. 86. Flying Post. 87. Fort Ooulosrne (Ottawa River). 88. Sandy Lake. 89. liound I^ke. 90. Tartousac (King's Posts). 91. Chicoutimi. 92. Lake St. John, 93. Isle de J^r^mie (Mingan). 94. Seven Islands. 96. Mingan. 96. Lak« of the Two Mountama. 97. Chats. Lao Carribanx, 64, Scahitechewan, lit will be observed from this double statement, how much more extended the operations, and morf numerous the ijosts, of the NortbWest Company.] PtMJTS or THK N0KTII-WE8T ,..D flUDSON's UAY CO., RMPICTIVtLY. le Arbitration. 1 AiiKKHAKE. — Is it tlie Soiitliorn Uepnrtinent that you are referring to? ^IcI'autiiv. — Yes. f ha Two MmmtMlM. be operatiom, and mor»> siul in the Southt-rn Department yonr Lordship will find Red Lake. Thin i« only evidence <>f where thi^ lako wiis. Lord Ali|.;nr>\UE.— Ami then; is a Kt-.l Riv(!r in thi^ Northern Department. Mr. M(;CauuiY,— There is n Keil Uiver in tho Northern Dei)artuient. No (lonbt there were two furts nt diH'erent times, hnt the only itriportant one i« this one. The Lord Chancellor.-- Von «ay trie Hudson's Bay Company, in 1S20, had a station at Red f^nke, in the United States Territory. Mr. McCarthy.— Yes, my Lord,' And we also say that is evidence that this Red Lako Forr, referred to in Messrs. Biscliort", Bonii)a.s & Biscliotf's letti r is the same. Lonl Mr. M( Lord AuKHDAKK. — They are Albany. Henley, and various other places. Mr. M(;Carthy.— Yotir Lordship will see Michipicoton. liord Arkudare. — All the.se places .seem to Ke north, Mr. McCar.thy.— My learned friend says that is north of Cumberland Hou.se. Cumberland House is reckoned in the North'ern Department, No. 15. It is called the Northern Denartment. It cannot be that Red Lake ; it is the Red River. The Loifr) President.— Cumberland House is reckoned in the Northern Department. The Lord Chancellor.— Red River is in the Northern Uepartment. Mr. McCarthy. — Yes, It is iuj.\t to Cumberland House, and is marked there as havin^jf a fort. Lord Aherdare. — Why are Albany and Henley in the Southern Depart- ment? Mr. McCarthy.— That is the way they classify them. There is Moose and New Brunswick directly south of James Bay. They classify this as the Southern Department. Churchill and the others wont much further north. The LoKD Chancellor. — It may be a point of great importance. Can we take this as identifying the position. Mr. McCarthy, — 1 know of no other Red l^ke. If my learned friends can point it out it will be a different thing. The Lord Chancellor. — Have you any map .shewing your forts about that time ? Mr. McCarthy. — No ; we have no such map at all. The only map we had was a map of an enrlier date, and it has been mislaid. I know of no other Red Lak''. The Loud President. — I do not know what Lac la Rouge means. I do not know that it does mean Red Lake. The Lord Chancellor. — Can you shew us the position in the same neigh- borhood 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 Lordnhip will see, if you look at the map, where the Department extends to. It is not perhaps a very correct geographical demarcation. The Lord Chancellor. — Where is there an ancient map shewing the Nor- thern and Southern Departments ? Mr. McCarthy. — I do not think there is any map to be found. We can only trace it out from the forts. Henley is put in the Southern Department. * As to this mitappreheniion of couniel, see ante, \>, 238, note t. 293 filffff ARGUMENT OF MB. M'cAUTHY, Q.C, re QUESTION OF BOUNDARY : The Lord Chancellou.— Everyfchins we know is there. Everything we really know is thei-e, and then you ask us to take this word, which may very likely occur in several places, as ref(!rnng to this particular position. Taki; another example to shew how very difficult it is to go by these names only. In the Southern Department I see New Brunswick and Michipicoton. Michipicoton is put down on a part of Lake Superior 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— Micbi- 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 States 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 ohe 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 rnoment 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 torts 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 AuERDAUE. -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- panv had a fort there as well. There were rival fort.s. " The LordChancellor.— It being admitted that Michipicoton was in Ontario, this does not prove that New 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 tiud the Hudson's Bay Company's posts aro in the Northern and Southern Departments— twenty-two in one and fourteen in the other. , Sir Robert Collier. — I observe among the North-West Company s statious, Lac la Rouge (32;. Lord Aberdare. — Lac la Rouge is the Red Lake. 294 DISTRICT OF ASSINIBOIA -18,S9. Dntario — Mtclii ent we see this upany's stations, Sir Robert Collier — No. It is called Lac la Rouge in the North-VVest Company's stations, and very probably it would be that station north of Cumber- land House.* Mr. McCauthv.— Now, 1 think I have dono with the different posts on both sides, and I come now^ to the position in which the Company stood at a little later date. The next thinff in point of timi.' which I ought to refer to, I think, is the formation of the lied River colony, of Assi^nboia, as it was variously termed. There are two pieces of 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 ? Atr. McCarthy.— 1888, i think it is, my Lord. Sir Montague Smith. — Is that the date of the foundation of the Colony ? Mr. McCarthy. — Yes, my Lord. The Lord Chancellor. — That is the date of Lord Durham's commission ? Mr. McCarthy. — Yes, about that. I propose to say a word about that. Mr. Mow AT. — I do not admit the propriety of looking at Judge Johnson** evidence. It is in the Manitoba Appendix, and it is ex 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 adnii.ssible ; and the nature of the enquiry is one which cannot be limited by strict rules of evidence. Mr. MowAT. — No; I quiiie admit that. The Lord Chancellor. — It would hardly be of equal importance with & a public document, if one should be found, tending in the opposite direction. Mr. McCarthy. — They do not — they quite agree. The Lord Chancellor. — We shall see. Mr. McCarthy. — I will first point out this, if your Lordships will allow me. Lord Aberdare. — Where is Judge Johnson's evidence to be found ? Mr. McCarthy. — His evidence commences at page 70 of the Manitoba Appendix, t The Lord Chancellor. — What was Judge Johnson's position ? Mr. McCarthy. — He was Recorder,^ but now is a Judge in Lower Canada. If your Lordships will look at page 73, you will see this : "It was in the year 1839, on the 13t,h of March, at a General Court held in the Hudson's Bay House, London, that the District of Assiniboia was erected, and was declared co-exfcensivo with aucii portion of thu territory " — these are the words of the Order— " granted to the late Thomas, Earl of Selkirk, on the i2th of January. 1811, as Ih now within tho domains of Her Britannic Majesty. That is what constituted the District of Ahsiuiboia, and it is constituted de faato. Whatevnr its precise extent, it has certainly been recognized by a series of acts by the British Government." The Lord Chancellor. — As far as the Hudson's Bay Company's claim is concerned, if that is correct, they claim to be entitled to make this district in 1839.§ * The true name would appear to be Ronge— Lac la Ronge. (Hudaoa'a Bay Company's maps of 1850 and 1867, by Arrowsmitli, and Wyld's map of the Company'^ territories accompanying Mr. Montgomery Mar- tin's Hudson's Bay.) tThe ex parte argument of this witness, cited in the following pages, in favour of the view that the so- nailed district of Assiniboia was a properly constituted colony of the Hu ison's Bay Company, within the temtorial limits of their charter, or reooiveJ Imperial recognition as such, is fallacious, not borne out by the statements put forward by him in support, and moreover at variance with the consensus of evidence bearing upon the point, before the Board. And see ante, pp. 241, note +, 297, note *. t The Company had no authority to make such an appointment, See ante, p. 241, note t. § It is noteworthy that the assumed power to erect suoii a distriol in thin quartei' waa not attarapted to- be exercised until the amalgamation of the Hudson's Bay Company and the North- West Company as one Company had been accompliahed, and a license of exclusive trade granted to the united body. Ibid. 295 ♦ -M ARGUMENT OP MR. M CAKTHV, Q.C., re QUESTION OF BOUNDARY : es. -That did not touch the territory that was settled by the but it goes up to the boundary line. It recognizes from the authority which Mr. McCahthy.- Lord AI5EUDARE.- Award. Mr. McCarthy.— No : the Lord Selkirk grant. The Lord Chancellor. — Of course, as it came made that grant, there is no wonder it recognized it. Mr. McCarthy. — Then we tind this colony was recognized on several occasions by the Iiritish Government. They sent out troops, as Judge Johnson tells us, and he gives the history of this.* The Lord Chancei.i-ok. — You admit Assiniboia, whatever the authority that made it, is to the west of the disputed territory. Mr. McCarthy. — Yes, my Lord, because south of the disputed territory was then the United States. Lord AiiERDARE.--It is not the j)re.sent 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 piis.s 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 Ijordship mean ? Lord Aberdare. — Just at that little black line going through the upper part of the Lake of the Woods. That is the eastern part of the grano to Lord Selki.K, 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 seo 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 : •• Wafl the colony of Assiniboia recognized by the Imperial Government and in -what way ? The existence de facto of the colony of Assiniboia was certainly reJORnized * There was no recognition. See ante p. 241, note +, port, p. 297, note *. + The pretensions of Upper Cauadu oubsistHd from the foundation of the Province, and had been publicly asserted from timn to time, as —in addition to the Order in Council, and the proclamation of 1791— by liieutenant-titvernor Simcoe, on several occasions ; by the Chief .Tustice of Upper Canada in connection with the Ijord Selkirk troublou ; on the occasion of the Ue Reiuliard and other trials, etc., etc.; and the riRhtH of the Province, and of British subjects (?enerallv. had been throughout Bucoessfuily maintained by the North-West Company of VIontreal, as against the Hudson's Bjy Company. The latter Company huii never nucfcedtd, iioir iiv\ its gfatitco, L>>rd Selkirk, ia giviug eueot to th^ir preten^iona to esoluwvp t»rr!- torial rights in this region. X There is no evidence of any such recognition. See ante, p. 241, note t, poU, p. 397, note *. 296 DISTRICT OF ASSINlItOIA "—1839. the Lake of the hing took place in a variety of WAys, and ia the most authoritative manner, by tlie Crown of England, in a seriea of act^s that admit of no doubt whatever. They sent the 6th Regiment there in 1846 or 184* under Oolonel Crofton. They were sent by orders of the Duke of Wellington to occupy that pUce, bo that in view of any trouble in respect of the Oregon question they miifht be made available on the other side of the mountains. However tbat was, they were sent there. After that, when I was sworn in as Gavernor, in 1855, sifcer the retirement of Colonel Crofton and the troops, I made a demand for troops for the purpose of keeping order, and I got troops commanded by Major Seaton. They sent out a company of a hundred men of the Canadian ilHles, British troops in the pay of the British Government, and they were quartered there some years."* The Lord Chancellor.— At present it seems to rae tbat your object is to shew that the limits of the colony of Assiniboia as laid down by the company were recognized by the Government as the limits of the colony. Mr. McCarthy.— Of course, 1 cannot say that absolutely. All I say is that the Hudson's Bay Company, claiming this part as Kupert's Land, formed a colony, appointed a governor to administer the laws and so on, and was in this way acknowledged by the Imperial Government. The Lord Chancellor.— Supposing the Hudson's Bay Company laid down the boundaries of Assiniboia. what evidence have we that the Imperial Govern- ment recognized it ? Mr. McCAiriHY.— If the Hudson's Bay Company claimed this part of Rupert's Land, formed a colony, appointed a governor, appointed judges, and executed the laws so far as to execute a man.f and the British Government recognized that I think it is very good evidence indeed. ' The Lord Chancellor.— This is evidence of nothing else than that the Imperial Government recognized a colony under that name properly formed, but not that it acknowledged it within certain boundaries. I think you have shewn enough to satisfy us that tho Hudson's Bay Company took upon themselves to make a grant to Lord Selkirk, and to make that grant coterminous with this Assiniboia. It is clear that if the Hudson's Bay Company did that, and that it was recognized, it goes a good way to establish your contention. "The sending of the troops in 1846-7 in the Imperial interest, in view of the Oregon question, can hardly be ssid to support the theory of a recognition of Assiniboia; neither does the stationing there of the Canadian KiHes, for the Imperial Government was in nowise bound to aid the Company in this man- ner or to mBinbain law and order in anv of their territories or pretended territories. On the contrary the Company s charter provides for their doing this themselves, and at their own expense. After provisions for the ordinary administration of justice " by the govt nor and his Council of the several and respective places where the Company shall have plantations," etc., the Company are empowered, " in case they con- ceive It noceesary, to send ships of war, men or ammunition, into any of their plantations, forts, factories, or places of trade aforesaid, for the security and defence of the same, and to choose commanders and officers over them ; and to give them power and authority, by commission under their common seal, or otherwise to continue to make peace or war with any prince or (leople whatsoever that are not Christians," etc The Company are thus in a position to deal, in regard to any of their settled places, as well with external trouble, caused by the surrounding Indian nations, as with internal disorders. The circumstances men- tioned by the witness, of these troops being not only furnished but the cost paid by the British Government m themitelves prove that as in the case of the first body of troops, so also this detachment must have been sent there for Imperial purposes, and doubtless the full histoiy of the event when it is disclosed will so shew. And see ante, p 241, note t. tThe Company had all these powers, except the power of ai)pointing judges, under their charter, in their own territories. The charter provided, not that a judge, but that the Governor of the particular plantation and his Council, should sit as a court of justice. Ontario claimed that the evidence shewed that the exercise of these powers in this region was a usurpation, as being outside tlie territorial limits of the charter. Ihe existence of a settled body of peopl" at the Ked River was an ostablishud fact, which had aothing to do with the other questions. The North- West Company of Montreal had been the controlling power there and the iwpulation was chiefly composed of their governing men, their families, servants, enj/aoin and' aepeiidents,^ wth Hudson's Bay Company's people and remnants of Lord Selkirk's broken up colony. They siist.".(i ■.•.r.t-,', is;!? n=i a Srttietiictit of euiony dc facia, and it was not until the amalgamation of the two Uom- panies at that time, leaving in their place no corporate rival interest to dispute their course, that the united oody, adopting the charter name, asiumed to exercise here the charter powers. 297 ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY : Mr. McCarthy.— If your Lordship will pardon me, it is a question of findini,' out from what took place at the time what were the fa«ts The Lord Chancellor.— You have not shewn that the Government recognized the boundaries, or that any commission was appointed to consider these bound- *"^^Mr McCarthy— I should have thought that if the Government had recocrnized the governor of the colony they had recognized the colony. The Lord Chancellor.— It is sufficient evidence of recognition ot a certain jurisdiction, but it is not evidence that it extends to other jurisdictions. It it does not include the United States territory, why shou d it include Canada. Mr. McCarthy.— Because it did specially exclude the United btates ^'"^^ The Lord Chancellor.— There is nothing whatever in the charter men- tioning it as a boundary. . , „ , - . t i !,• Mr McCarthy —I can only offer it with all deference to your Lordships. 1 submit it does. If I cannot convince your Lordships, of course, it is my rais- °^ "Lord Aberdare.— This portion was an infinitesimally small portion of the ^ ° Mr.'^McSARTHY.— But at that time there was no pretence that Ontario went up to the Lake of the Woods. ^ x lu ™'„^ ^e „„ The Lord Chancellor.— This matter was not present to the mind of any- body at the time. i . Mr. McCarthy.— The next question is J47. .,.,,,,. ^ .- Lord ABERDARE.-It is as well to have in our minds that this territory was not granted by the Hudson's Bay Company to Lord Selkirk but by the Old Canada Company. Mr. McCarthy.— No, my Lord. ,, • j u Lord Aberdare.— Yes, you will find it is so stated by the judge whose evidence you referred to just now. Mr. Justice Johnson in answer to question 319: " How did Lord SelVirk come into the poBaession of that vast territory called Assmi- boia, and how did it pass afterwards into the hands of the Hudson s Bay Company? The Old Canada Oompan/ called the North- West Company gave certain rights m the first instancp." Mr. McCarthy.-I will prove that by the evidence before t'he House of Commons, which I have here. Lord Selkirk made a settlement m 1808 befor the grant was made, and in 1811 the grant was made. The settlement of that colony proved a disa^strous failure, involving a great amount of expense and although they had made a grant to Lord Selkirk to enable him to carry out Im intention of settling that colony, they afterwards bought it back and gave him £100000 • for it, and they then established the colony of Assmiboia. Sir Robert Collier.— In 1836 they bought it back. Mr. McCarthy.— Yes. . „ . , , ,, TheiORDCHANCELLOR.-! think you are quite neht. Lord Selkirk held under both companies, and at all events he held under tlie Hudson s Bay Coin- pany, because you have referred to the grant. This witness of yours says tl a Lord Selkirk was a usurper and had no authority at all. I am very much unc the same impression. I think it was the United State, territory. I think that is ^"^ ^Sh'^RoBERT Collier.— He says it was established as a colony in 1839. ' Counsel Bubsequently inakei correction m to the wnount, po»t, p. 300. 298 ■n THE EVIDENCE BEFORE THE IMPERIAL HOUSE OF COMMON'S COMMITTEE, l^ioT. le charter mea- Mr. McCarthy.— That is what he says. I will give your Lordships a jneco of evidence from the Report from the Select Committee of the House of Com- mons on the Hudson's Bay Company in 18;j7. Your Lordships will see the way I put It IS this— in the first place I sav the Hudson's Bay Company claimed the hel^Wlt ot land ; tliat is the first point. If thev had the right to claim the height of land, It is clear that Ontario did not go further than the height of land. Then we find they are continuing that u]^ to 183; that when merchants make a purchase they open an account * Both Fort Frauoes and Kat Portage were outBide tlie limits of AHuiuiboiii. t Before the amalgamation of the tnro Companies, he had been one or tho partner* of the North-Weat Company^ of Montrevi. 300 LTNDAHY : THE HUDSON'S UAY CO'S. " STATEMENT OF IIIOHTS," 1850. "^orth-West Com- eat disadvantage. ers of the North-Weit itSms'th^^^^^^^^^ '^^y ^-- had fron. it sino^ and the l'TollTo:L^::rZT'' '^ ^ ^^'^^^■"^"^ '^-^^ J-Kl^e Johnsonglving a report deal account of R;j"'i^\^^ "nly r3ason I am referring to it ii f„r the statin- Inod "T r ^'L n '"'""^ '"^''^ "" *^'" 20th and ''24th Mav, 1S5G. and it ^The LoKO OHAvr; r?« ''r-' "^ ^?^'"iboia. Wiliian. R. S„nth. Seci'etary." bearing on the ,^,«f ^^''^'^"-I^ ''^ -^ an tbeappendice.s before „s, and it hasL Mr McCVuTHY -It speaks of the courts, the general quarterly court, and tk petty local courts, and gives the statistics and tl^ nu.nboV of 2es tried, ^nd puteJin%hrcou';r""'"--^''^* ^"^^ ''^' ''' ^'^^ ^^^^ ^'^-^ -- --« dis- Mr. McOARTHY.-That is what it is T suppose. Now I will return to the Joint Appendix and your Lordships will sec the statement of t^ Hudson's Bay torthTir%^^'ts'' ^"'" ''' ''"' ''''^ ^"^^ -'^'^h summarizes ^hat they cS Sir Montague Smith —That is in 1850 ' Mr. McCARTHY.-That is in 1850, and it becomes very important as leading up to the Rupert's Land Act. It is more fully .et ou?peZns Sh all' Its details m this document uddre-ssed to the House of Commons which I have in mftte5"?o f'jT '^' «"^;'^«"::\B'^>^ Company s Statement yRi^Stsarsub nutted to tae attorney and solicitor-generals. At pa.re 616 is the oninion - and that opinion cites all the documents^hat had refereLf to Und alnS the documents is the map and plan of the Hudson'.. Bay claim which I have before me_The^nap^a^_th^^ fi26.;oS?wtch*wlrprobai,i;XttSy^^^^^^^ »»"'' "- -- -tuMljrpiiJ-dTo Lord Selkirk"^ &i;Loitt'is^'"orrr.i\°rrar^^^ call^- the same so that afterward/put forward°n 18 "7 t^^^^^ U to al"Z' 1 ^^'^^T^- The claim i. praoti- ion'* Bay. ^ "'waru in looi, tnat is, to all the lands whose waters flow to Hud- <^r^4^yT:TJt^Sl^^^^^^^^ -tent of .the territory the a.8erti,on , '. ownership bv .Hp KmnHn mn,7^^^^^^^ enjuyment, mcIudinR in these Jatter terms and Utrecht, and again in iTsO. ^"""^"'"'' "° "nP°"ant public occasions, such as the Treaties of Ryswkk »L '. .T° *'^^^^ eleni^ntg of considrration upon this question mllH^ hn .»hh<.h f „ h • , the following words of the chatter, viz • '^ot iVosiHHst, h» .^a ., h . State ") whether, at the time of theXner, anrpart o 'th^ terrko^vlfnw T^ "^^Z Chr!stian'*i?rince or Conwmny could have been rightful] V claimed hvtlirFrp„nh.;fr^^^^ "pw claimed by the Hudson's Bay No„v..le France, and also thWeci olTe Ac'l o^l4'liir,t' LTin 'iV^Z^l'd "Tin'"''' °^ ^''°'"^* ^ nni^^l'^Xr:^^r^-i:r^i^^^^^^^ boundaries of the ject of a uuaii judicial enquiry ^' '^*'*"^«n '■''« Company and Canada, be made the sub- fu^/^rP """^^^^^^^^ ='-' i'So=t":f ^LV' i^^i^i'i.^^ r t"'« "H"-^r '- judicial determination. But if the Hudson's Bav Cnmn^n^ LLl \\ ^ty"°<=" "'■\^ any effect as a bind n» l-arHamenVtelhtnuVrep^'^^^^^^^^^ &pt;.';?'^"^^''«'°' -»'--">'■ ' • * Counsel woiSdtr=^tliu'ofcrdra'nd'o?tt^ 301 AKOUMENT OP MR. M'CARTHY, iiC, re QUESTION OF HOUNDARY : the annexation of it to the Dominion. Hero it is annexed to the statement, an I it was referreil to the attorney and solicitor-generals witli that statement of claim, and they gave their opinion that the claim of the Hudson's Bay Coniimny was well founded. Lord AiiERDARE. — Yes; but that opinion also erabodie.s some words which you cannot ignore. At page 618, line 20, there is this : " In the case of grants of considerable aj(e such as this Charter, when the wurds, an is often the case, are indefinite or ambiguouH, the rule is that they are construed by usai/e and enjoyment, including in these latter terms the assertion of ownership by the Company on important public occasions such as the Treaties of Ryawick and Utrecht and again in 1750." Sir RonERT Collier.— The opinion they gave is that the important question of the boundaries might be the subject of a 7?tasi 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 rfcf>UTe^' to it as the nearest post to Moose River. 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 war. The Lord Chancellor. — I thought that you conceded that it was French territory ? Mr. McCarthy. — No ; the French never lost possession of it. It was one of those which they ought to hstve given up, but they never gave it up. It was 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. 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. Mr. McCarthy.— That is the one I am looking for. I think 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 i. Mr. McCarthy.— If your Lordship will hand it to me I thmk 1 shall be able to find it for you. isputed by the Province of Ont»rio, which, by virtue as well of the Krench possession aa Imperial Crown and Parliament respectively, claimed up to the north-weeterly watershed • It was d of Acts of the Im;^ and sources of the Saskatchewan. 302 (UNDARY : THE HUDSftN's HAT CO's. " STATEMENT OF RIGHTS," 1860. me words which ot, that this map jst post to Moose ,t it was French itory ia in there, 1 ' Jervis and Sir The Loai) OiuvcELLOR.— Th> ly words that refer to the houndaries ,A the company s territorieH are these, which occur in their Statement of Rights : " Utder thiH gnint the company have alwajH claimed and exi^rciaed dominion as absoluto propnetors of thn soil in tlw* territories ut.derstood to b < eir.hraced hy the teroii of the Krant, iind which are more pa. tioularly .lotined in tho accompanying map ; and they >iave also claimed and enjoyed the exclusive right of trading in those territories." That is all that is said. Mr. McCauthy.— No ; if your Lor.lship will look a little earlier you will see this: " \ye were honoured with your Lord.^hip's conunaiuls." The Lord Chancellor —1 wa.H referring,' to the .statement. Mr. McCarthy.— 1 was referring to the opinion. The Lord Ciunckllor.— Ye.s ; the opinion proceeds on the statement and the papers sent. There was the passajjre which 1 mentioned just now, and there 18 nothing whatever bearing on any question of boundaries "afterwards; and it looks to me as obviou.s as anything can be tliat it di.l not refer to the attorney and solicitor-generals the question of the extent of the rights an int.. the legality „t co, tain , m';^!-; .^li ?, T '''»""""!'"' ,'■' 'n«tll..lo an on<|uiry Company Sn.ler their Zrl '7 Son »' ,' wi 1 "TT' ''>'■'■'"' ""''"■»'' B«y Mr. iawl,, the Undor.Sec;:iry';:;,i;ro;;lL''22nd oJt^E^"^ " •" ''" ■'■""'■ Ore, to .o,„.ir.t you th.t tho .ujjeo. i. « pr,"„t"Yd.r7.a,.i.Z..?''"'''' '■" '^" Tlieu whiit is sent to the Law Offiot^rt; hv tu^ n ^ • ^ c, of tho resolution of the Hoase^T CommonH : ^ ^^''""^ ^'°''''*"'"^ " ^^« ^°P3^ "That an address be preaontod to Hor Maipufv ni.ov;„„ *u ^ ascertaining tho legality of the powers which i^M^'^?^ '"'* -noasures be taken for Bay Company." ^ ' ^'^« Po^ers which are ciaKned or exercined by the Hudson's Ami ho sends all the Daners Tho " ri^«"^ lordships the the '^^'tiTAl^^^^^^^^ been handed to they would render their assistance'in coSng titi thTjidZ:r'h'e°Hor"fn''' mens by furnish ng your Lordshio with a Htlf^mn^f p *i. ."^^^ °* *^« House of Oom- consider themselveVentitlXand thr. xtLt to^w^ "^f*' ^'^ '^'^'^^ '^' "^^'^P^^y recently been exercised in relSn to the several^ hit T "^'' ' "' <** present or have lution, I have the honour to Twa d to you a statelnt T^ '^if'' '" *'" '•^«°- trade, taxation and govera.nent clainied an'd exercted rthe Huto^^ ^^'■"^'•y' the continent of North America, accompanied with a 2n of Kn.ftA^-^°°'P''"-'' ''^ the territories claimed by the Hudson's BaScomnlnv 1 "^ • f ch. ^?'«"°«. »« which them by King Charles L SeccM are cl'u^dTel" th:SrBrts£'r'> ^^•^'^'^!^ '' and those of Russia yellow." * ' "^ British territories pink, . . *^''t-;?.:/:i'L*?,:l»i\«'«y- 13'september. ^9. (Paper, r.iatinrt7^i;7;:r;;;r;7T:— —- 20 (B.) 305 ARflUMENT OF MB. M'CAHTHy, Q.C, re QUESTION OF HOITNIUHY : Tlmt WHS a pretty clear statoment that tliey unclerstrwid that thoy were to fiimisli n stati'tiient of tht-ir territory. Sir MoNTAfiiiE Smith. — But th«> Law Ullicors were not coii8i(l«rin<^ the way in wliicli that utrccttiii tho boumiary. Th« Limii iJfrAVCKi.r.ou. — And the controversy as to whether tliey claiini.l the disputed land is another thin;^ altoj^ether, Mr. McCvKTllY. — Your LordNliijiH will see I think that it eomes pretty nnuli to that. 1 will refer to the Joint Appendix as shortly as possihle, just to titu'o the history of this suhject, shewih;^ what they were claiminjf at all events, an'! 1 want to shew that 't was perfectly well understood by the Ministers ol Canada. At the Joint Appendix, pnge 16S* Sir liAiiNEs Peacock.- -For what do yon refer to page 1G>S ? Mr. McCahthv. — That was for the opinion as to the geographical question They did nut give any opinion as to the ()oundaries at all. Then at page 273 there is a letter from the Duke r)f nnckinghain (who was then Colonial Secretary) to the Oovernor-deneralf He says: "Her Maipfitj's Government will be willing to recommend a com|>liance with the prayer of the address so Boon as they shall be empowered to do so with a juNt reganl to the rights and interests of Her Majesty's subjects interested in those territories. Th y are advised, however, that the requisite powers of government and legislation cannot, cou- aistently with the existing charter of the Hudson's Bay Company, be transferred to Cfiii ada, without an Act of I'arliauient. Before such an Act can be obtained, it is neceHsary to consider the position of the Hudson'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 pioperty of all the lands and precious metals, and various eminent law otHcers consulted in succession have all declared that the validity of this charter cannot be justly disputed by tho Crown." Then, at page 274, the Under-Secretary writes to the Deputy-Governor of the Hudson's Bay Company, under date 23rd April, 18G8, that the Duke of Buck- ingham and Chaudos — *' has had under his consideration the address from the pa I lament 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 Oonipany, dated the 2.'')th of January, on that subject. Her Majesty's government think tha it will be right to comply under proper conditions with the . Ji expressed by theparliiimentof Canada, and they propose to introduce a Bill for the purpone 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 upoi. with the Hudson'a Bay Company. I am directed to call your attention to the negotiations which took plaoe in 186+, between the Secretary of State and the com- pany, as recorded in the correspondenci- referred to in the margin [setting out several letters], and I am to request that you will state what are tho terms which the company would be prepared to accept, proceeding on tho principles then adopted, namely, that the compensation should be derived tirom the future proceeds of tho lands, aijd of any gold which may be discovered in Rupert's Land, coupled with reservations of defined portions of land to the company." •The document appearinif at that page ii the Memorandum of the Canadian Commisaioner of Crown Landa, 1857. ■i- It is ds.tfid 23i'd AcriU 186^, Anrl hwi Tttfrntmcei tu " & joint addrew from the Senate and House of Com- mons o'f Canada, prayine the annexation to Canada ol Kupert's Land and the North- Weit Territory.' (Comn. Journal*. Can,, 1867-8, p. 367.) 306 THE II. N. A, ACT, l«f;7.— THE HUPEKTS I.^NO ACT, 1868. omniiaBioner of CrowD Sf* J' M hn W'?* ^''""^J' *.'"**"'• ^'■"•" ^'•- "^^^°''«» t" the Secretary of State . I liavo th.^ honour to aoknou-lod^o your letters " • Sir Roi.EiiT (•oi,HKK.-Wo have ha.i tfm letter. ha,nntLE'A"r''V"v'"^'^";'"''^"';^''''''"'f''"'^ *^'^^ ^«« "'»t the letter I ha.l inton. e.l t<> r-ad. Now, if your Lor-iship jro^s hack to look at the Act of Sir H..HKUT Cor.r..EK.~-That is the British Cohimbia Act. Mr.MctAKTHV^-NoithoHritiHh Nortli A.n.rica Act. It is the Act of Confederftt.o,, I refer U. the sixth section for thi« purpose. It .nay J>e Unporfiut otherwise with reference to Lord Durham's comnnssion: nnportaut '• The parts of tho Province of Canada (aa it exists at tho paHsiriK of this Act) which Tdel^edT ;■ 'se'^reTrnd'h'^ t'.e province, of Upper Can-l anlLower"c3a S oeaeemea to he 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 passin^r of this Act." Then, .section 14G .says : "It shall be lawful for the Queen, by and with the advice of Her Majesty's Most HonouraWe Pnvy Counc,], on AddreHses from the Hoaxes of Parliament of Canada and from the Houses of the respective Legislatures o. the colonies or pro vinces o Newfound or any of them into the Union, a-.d on Address from the Houses of the Parliament ..f Sr Sii; 1"'' H?""' "T"' ''f •*'" North- Western Territory, or either o hem? nto the Un on, on such terms and conditions in each case as are in the Addresses expr^sed ana as the Queen thinks «t to approve, subject to tho provisions of this Act." ^''P'^'^' .^rRnl^'i- ?"^T'r^°K-*u'>'''""^°" ^*" ^^"P^'-*"'* ^an'l- Then we come to h nr^nT ' \T^ ^' " V°^ '^ '^t P^^" ^^^- '^°^ ^''^^^h has a Very important bearing upon the quesuoii here. It says: ^ !'««'»"«' ''Whereas by ce.ta n Utters Patent granted by His late Majesty King Charles the oorli^'d, '.r'"'^"''™"^^^*'?!""^'^" reign, certain persons therein name^ were 7n Zl^ntVZ "«"' .^' J*"" ^?^"''"°"" """^ ^^'""P^^y 0^ Adventurers of England, trad- Si nrfvl'l'"' ^K *^^ '""*.'•" '*"''" *°^ territories, rights of governme/t and other rights, privilege,, liberties, franchises, powers and authorities were thereby granted or purported to be granted to the said Governor and Company in His Maiesty'JdominSns^n North America; And whereas by the British North A.n/rica Act 1867 it was /amon«it other th. .gs) enacted that it should be lawful for Her M.jesty, by and with^ the aS and consent of Her Majesty's Most Honourable Pnvy^cLil! oraddress from the Wto^: r'Th^'Tfr °' >''*"**;:' Vt^'''''"^' ^"P"^'« ^-"^ '^-^ the N^h Western IZrl^' r «*?«'". '"to th., Union, on such terms and conditions as are in the address expressed and as Her Mnjesty thinks tit to approve, subject to the provisions B ii Brii b N ■ rt'^A "^•'^''"f for the purpose of c.rryin'J .to'eflect' the provisions o the plSni f r"'^''^'*-!.^^^^' "'"^ °^ "^'"'"'"8 ^"P«^t'8 Und into the said Til ^ aforesaid, upon such terms as Her Majesty think, tit to approre. it is ex- a^itC t^' ^'i' ""'Vr'*'' 'T''"'''' "«'•*«' P"^"««-' "^^^^t'^^. franoh^iJes p;Jer Hid s^rren^ST. H * M ^"«^avo been lawfully granted to the said Company should be Z7iZ I •'t''^' Her heirs and successors, upon such terms and conditions as VJompany, as hereinafter mentioned ; "Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the ad vice and consent of the Lords Snirit.ml «nd T^mr-.a! o„h. oi-ll-- = T,^ • rariiament assembled, and by the authorrtyot't\e7ameM7olliw8 ':""'' " '"'" ^''^°'''^ ' 1. This Act may be cited as The Rupert's Land Act, 1868. 307 "■Bwlif AHGUMENT OF MR. M CAKTHY, Q.C., re QUKSTION OF BOUNDARY: " 2. For the purposes of this Act,\the term ' Rupert's Land ' shall include th« wholw of the lands ,and territories, held, or claimed to be held, by the said Governor nud Company." Now, whether they were rightfully held or not, it is quite plain that havin'^ regard to the document which I produce, and which I will shew 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. — Yes. The Lord Chancellor — Do yousay that that would imply the titleyou claim? Mr. McCarthy. — Yes : " for the purposes of the Act." The Lord Chancellor. — That raises an important question of construction. You will certainly have something to do to satisfy us that the merely puttinjj 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, fir.st, 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 commi.ssion 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, [refenHng to the col- ouring of the territory claimed by the Hudson's Bay Company, on the map pi-o- duced by them, to tlie House of Commons Committee, 1S67\ 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 tru3 meaning of that was, not to the shore, but rather to the Hudson's Bay territory .•}• 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 poeitipn of Ontario in regard to thi8 contention was, that the second section of the Act skonid be construed as if it road : "For the purposeB 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 Oovertior and Oompany." It is conceivable that the Company may have held some portions ot territory de factn, but yet without colour of right, and that, as to other portions, they might have been rightfully entitled, and yet never have come into possession. t There was no such coutention. The very contrary was claimed on behalf of Ontario at well before the arbitrators as before their lordships. ^Boundary description in Imperial ComraisBion to John George, Karl of Durham, Captain-General and Governor-in-Chief of the Province of Upper Canada, 30th March, 18.H8. " Our said Province ot Ui)ijer 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 r>f the Point au Baudet, in the limit between the Township of Lancaster and the Seigneurie of New Longueuil, running alon^ the said limit in the direction of north thirty-four degrees west to the weBternmoat angle of the said Seigneurie of New Longueuil, thence along the north-western boundary of the Seigneurie ot Vaudreuil, runningnorth twenty-five degrees east, until it strikes the Ottawas River, to ascend the said river into the Lake Temiscaming ; the said Province of Upper Canada being also bounded by a line drawn due north from the head of the taid lake until it readies the shorn of Hudson's Bay ; the said Province of Upper Canada being bounded on the Houth, beginning at the said stone boundary between Lancaster and xr ^ J ;.p„„„...;! V)v thf. Ijik?. St. Francis, the, Hiver Ht. Lawrftncft. thr Tjikfi ai thn Thor.sRr.-'i r=!:»;i.-1- Lsk^' Ontario, tie River Niagara, which falls [leads] into Lake Eiie, and along the middle of that lake ; on the 308 UNDARY : LORD DURHAM'S COMMISSIONS. 1838.— THK RWERT'S LAND ACT. 1SG8. tie title you claim? Ontario m well before T Hn^ vo,?r T. m'~ -{/"^ ^°''*^' ^ ^^'^^^ "•'t- Now, I am going to contend, and Jinn thaufw^ P ^'^^ ''^ ''""^ ^'^"'^'^^ *" ^^^ reasonableness of my proposi- iZ' RnnVrf r/ 77 >°?P'?''tant matter indeed for the welfare of the coni-ederacy il^Xtir H '".u '' ^'^''''^ ^^^"••'^ 't was transferred. Nothing could be Th Isav th^fn! lY a question of this kind should be permitted to arise, of the trLsfi X7T- *T ''''; *^"*^ \'''^^'' P"^-!^"'^'^^ «f *•>« Act. and for the purposes W thp H,?d nn- S^' P ^^"^ '''*' •i','^"*^^- ^*^ ^«« ^ well-known clain. put forward bj the Hudson s Bay Company. They claimed to go the height of land. Their tZilTt fttn ^"' ^'^f.;^-'^'\ P^^'^'r^"^ '^^3^ ' We say that parliament tlTbomLSn nS" r\' "^V^"' ^u*' ^^!^'' ^^'^ *^« h« «^h« ^^«^^ "t" the transfer to «ie Dominion Rupert s Land must be deHned. Now, how is it defined ? For the randTl tLt ;L^h' f'''^% '' )'^ ^"P^^^'^ ^^"^1- - whether it be not Ruperf's rinl! • '.^"p''"'?,^*^ ^^'"Pa"y held, or all that the Hudson's Bay Company claimed, is Rupert's Land ' Sir Montague Smith.-TIhs was a purchase in fact. on it r^v TnVr??^'"". u* '",?"*' '■•'r'^' ''''* '^^°" 'il^^ to hear my argument up- ^v^J:?^' P| ^"^ ^' ^^l' *° ^'^"'^ y«" *hat it has another bearing. ^ Mr MccIkt^'v ^Tt'"'- ^"' 'II^^ "°"'^ «"^y P^^^^ase what waf claimed. Majeft;'in theTrsTpl^ce "" "°" *''" ^ P"''^'*^"^^ ' '' ^^« '^ ^ ^^ *« ^er a sepSltSry"' '"'™-'^ ^'^ ' P"^"'^^^^ ^^ ^^^ -^-^ = ^^ -- -^ -de Mr. McCarth v.— It was made a separate province.* The Dominion is made up of several provinces. Amongst the new provinces was Rupert's Land.* ^ ^ Ihe Lord Chancellor.- You are contending that the Act speaks of territory which was not at that time under the Dominion of Canada ^erricory Mr. McCarthy.- Whaf^ I submit, with all deference to your Lordship, is this. It was important when this new colony was to be brought into the Dominion ,n llrV^.'"'^ •.• "" ^I'P'^*^ "-' *^ l'«""'3'^ries. Canada at that time perfect!^ unJers ood its position. Its attention was drawn to it, and althou<.h they have proceeded as though this Act had not bee^ijmssed, s(ill, upon the" whole, they Earl of E tfin in 1846 after whi^h thlt ' ^ ■ *^*' ^ '"v.'ncfi ",f Canada, up to and inclusive of that to the P 130 note) " oommmsions contain no boandary descriptiong whatever. (See ante, the report of the commisMoners, in Hertslet's Treatiflu v,.1 n n «Q9 » Tk' ^ IKainy LrakeJ. (bee ^j^^^^sT^ ts ^^^^'^^^^i'^:' .F^ii^rpsrrthe'oit »k' *i.^4.*'®*!''""'?"J'°°*, "^. ''°""*6' are not sustained by the British North America Art- IRn? S«r.f i.ir irnoneoT^^eottioial «^f^.„H ^^"""'^y- ""'{J''"' entirely to the disposition of the Dominion Parliament. Un^n is KuiLt^H lin'^tfillH'^"'"^"^ r'"'"? '? >t«. "dmission, or then pro.pective admission, into the 32 a«d M Vict nan •* n wl^ fp''' *'.-* ?''"7 = TVH^ frequently referred to as a territory. In the Act. torfa. " Ll^ fi .^?,' I'lu™'*' Rupert's Land and the North- Western Territory are referred to as "' tmri follows • ''Tt^ L^? l'^ ^h" ^"'^ «rJ°'''J'y' '" f"""'"' '" b« "the North-West Terr h^r es." ?Sec. 1 tZ u'^l'S.-.^ ..^9" ••'•Lterntories when a-Jmitted as aforesaid, shall bo stvled apd knn-n " "»i^" t1^w>^ the'lmrT Tcni'ai.d 3B V?^;^'ll'"9«'"'tl<^TS''P''"^« *''" 'if"" "territories ■ in the"Mme way." and usesTh^'terra'alto In the ^^'e'wtl' ^^' "^'"^ "*"'" "'• '^"''™" "'^ •"<' '^''"' "' *''"' D""^'"'"". ''"P'i^lly 309 AROIIMKNT OF AIR. IH'CABTHY, Q.C., re QUESTION OF BOUNDAKY : accepted it. Are we to suppose that Parliament would throw this as a bone of contention into Canada without sayinj^ : We will derine the boundaries, and wo 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 Barnb;s Peacock. — When you speak of Canada, do you speak of Ontario ? Mr. McCabthy. — No ; Ontario was bound by it. Lord Abeudare. — 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, ircluding 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. — It 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 shall be competent for the said Gdvernor and Oompany 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 and Company within Rupert's Land, upon such terms and conditions as shall be agreed upon by and between Her Majesty and the said Governor 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 Kupert'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 Oompany 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 L%nd or else- where trade and commerce. * It waa disputed by Outwriu, t All that they rightfully claim. See antt, p. 808, note ' 310 TRANSFER OF THE N. W. TI:RRIT0UY AND RUPEUT's LAND TO THE DOMINION, 1870. )eak of Ontario ? then power to '. this Act means 5, It shall bo 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 Ruperts 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 Canada, 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 such courts and ^officers as may be necessary for the peace, order and good government of Her Majesty e subjects and others therein ; provided that until otherwise enacted by the said Parliament of Canada all the powers, authorities and jurisdiction of the several 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, which 18 to be found at page 266 of the Joint Appendix.* This is the one passed immediately after Confederation, and it is important upon this part of the case. Having recited the 146th section, to which I have referred, they say : "We do therefore most humbly pray that Your Majesty will be most graciously pleased, by and with the advice of Your Most Honourable Privy Council, to unite Rupert's Land and the North-Western Territory with this Dominion, and to grant to the Parlia- ment of Canadn authority to legislate for their future welfare and good government ; and we most '•-■-bij beg to express to Your Majesty that we are willing to assume the duties and ob' 1 g ©f government and legislation as regards these territories." That „ .lie earlier address, that gave rise to the correspondonce 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 is 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 getting into the Dominion, on the same footing as the North-West Territory, livrnf first to form part of the Dominion. On the purchase, when Rupert's Land Act passed, it formed 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 provinces. Then there is a provision made for taking in the ori,'anized provinces, such as British Columbia, and ,so on. Sir Montague Smith.— What became of the North- Western Territory ? Mr. McCarthy. — That was also brought in as a separate province. Sir Montague Smith.— But still it was brought in. ! i /To„l^i'V*/®'* '"z?**' ^^j^^}^ ''■°? V'? SuMte and House of Commong of Canada, 16 17 December, 1867. (Journal Corns., Can., 1867-8, pp. 56-7.) 311 AUOUMENT OF MU. M'CARTHY, Q.C., re QUESTION OP BOUNDAHY : Mr. McCarthy. — Of course it belonged to the Imperial Government ; it wa.s not a part of Canada.* Sir MoNTA(}UE Smith. — It was a part of the Dominion. Mr. McCakthy. — Oh, no, the Dominion was at tinst limited to the original five Prbvinces. Then all that great country up here [describing on the map] was either in Rup. fc's Lnnd or the North- Western Territory. Then provision was made for bringing in Rupert's Land end the North-Western Territory, rtt a .subsequent date, 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 McDouga.ll, 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 terma upon which Oanbda 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 Land, 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 Oommittee to the terms of the British North A'lierica Act, which provides for the admission of Rupert's Land and the North-Weat Territory, or either of them, into the Union. We respectfully recommend that we be anthorized 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 Conipany 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 lieport of the Committee of the Council quite comprehends tlio 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 CHAxVCELLOR.~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. McC/ARTHY. — 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 colonies or provjncfls of Newfoundland, Nova Scotia, Prince Edward Island and British Col- umbia, as formed no part of Canada or of the territories of the Hudson'* Bay Company. But ita limits had never been defined, and tliis K»ve oxjasion to the Dominion, after thia territory and the territory of Rupert's Land had been brouRht into the Union, to wrongfully claim, as being comprehended in the one ■or the. other. Rst-nRivr, n-piUr-.s. rHin-.na hy Or.Uri > t.-. hsvp h«?n within the iin-dc-iibted limits of Upper <^anada, and to bo now within Ontario. t They were to come in, not as Provinces, but aa unorganized territory. See ante, p. 309, note *. 812 UNDAKY : LIMITS OF THE PROVINCE OF UPPER CANADA. vernraent ; it was lents. I see here upert's Land Act Bining and appre- ^..J^LY'.T <^"^f '^LLOR._That does not seem to advance you a step. We' ISttlffec^oUh^rU^'^^^' ^"^ ^^ ^^'^^ '"^^y --^ be presumed to know 1 ..» Jl';.?^ '^'^'^"^'■"^ f'" ^''"^, *^ ^*'"*" Lordship thinks it unnecessary, but it fhe wKin '"^ '"'P^^tant as shewing that Canada perfectly understood what The Lord Chancellor.-How could Canada be ignorant of it ? &ir KOBERT Collier^— You are occupying our time then by shewing that Canada understood the effect of the words in tie Act. Of course they must be taken to nave done .so. '' l^r Mnvl^^'''^i''''^''°''i;J ^^\°''^ •'"« ^^^ 't '« «f the least importance. n.«nf nf pILMI?";"-^^^' '^'^ "^ ^^^^ "^'^kes provision fo. the Parlia- ment of Canada establishing "new provinces in any territories forming for the fhereof" Do.umion of 6anada, but not included in any province Mr. McCARTHY.--There may be territories not in the province. ,f„^« whJ^^T^T'' Smith -Territories within the Dominion, not in the chaotic state which has been mentioned. Mr. McCarthy.— That is so - Sir Montague SMiTH.-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 Dominion was to be formed into a province. Mr. McCarthy. -No my Lord, not in the Dominion originally *!,«««/ Montague Smith -That I am quite aware of. They seem to have put these territories the North-Westem Territory and Rupert's Territory, into the ro^nces ""^ Dominion, and then it was afterwards carved into Mr. McCarthy.— Portions of them sliced into provinces. Sir Montague Smith.— That is what 1 meant. Mr. McCarthy.-I thought your Lordship meant that Canada included that country at that time. A je^ndlx ^ ^*^ °"^"° ^^ ^ ^^^""^ ^^^^ Lordship to page 221 of the Joint The Lord Chancellor.-Is there any authentic map which shews Upper 5ndeJ^?he^ActTl798f» ^^'' "^^ *' ^'^'"^'''^ '''*° '''''''^''' ''''^ ^^'*^^*^' Mr. McCarthy.— Yes, there are numbers of them, but unfortunately, mv Lords, none of us have a copy with us. -"J The Lord CHANCELLOR.-It is rather to be regretted, because if one saw a Kseful '""P*^'"" "^^ ^^^^ ^^^''''^ "^' »"^^ then a map of that kind, it would Socie?;." We tTloo'k'fot". ""^ '' ""''' '^ ''""' ^' ''^ ""'''' Geographical Lord Aberdare.— They have them all collected there for examination by any one who may wish to consult them. ' The Lor.D Chancellor.— There is an Act passed in 1798 which di.ided it,»Hiv?!l ,?®°' ^' ''■ ? 'UjiP" Can»d»)-"An Act for the better division of this Province " The last Dreo«d. B?thth«AV.*„'^';!I'^%*''> ?'■«?''""*'''>« of Lieuteaant-Governor Simooe of 1792 "printed anT/ plM) BotU the Act and the Proclamation are diaoussed ante, pp. 128-130. vprmcea awe, p. i^). te, IV. .309, note * 313 AKGUMENT OF MR. M'CARTHy, (J.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 ho oiuch of this Province an 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. McCARTriY.— 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/ T.— 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. McOarthy.— Yes. Your Lordship will remember the time of the Lord Selkirk trouble. He objected to be tried for offences committed at Fort Willi-;!!!, claiming that the due north line was the boundary, and ^he answer made by the authorities was that up to that point Upper Canada .lad been in the habit of exercising criminal jurisdiction. The Lord Chancellor.— But that would be clearly within the Wei tern Dis- trict under this Act, through not within any county. But what strikes me as of importance is to know whether those counties included anvthine north un to James' Bay. J & i Mr. McCarthy.— I think there is a fan in existence in London which would show that was not so. The Lord Chancellor.- One would like to see that. _ Mr. McCarthy.— Yes, my Lord.f Then, as to the question of boundary being an important one, I would direct your attention to })age 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 unqueBtionably did, and, among a mass of otlier evidence in support, pomted to the proclarnatjon of 1792, referred to in the preceding note, which declares that the County of Kent "is to comprehend all the country, not being territ iries of the Indians, not already included in the several counties hereinbefore degcribed, extending northwanTto the boundary line of Hudson's Bay, including all the territor- ies 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. 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's Bay," which formerly formed part of it. were included in the unorganized part of the Western District. The expression boundary line of Hudson s Ray 'here used, has been judicially decided to be synonymous, for the pur- poses of this case, with "shore of Hudson's Bay." J J < I t No such map wc^, at any time, produced to their Lordships. t Dated, 20th /anuary, 1858, Sees. Paps. Can., 1868, No. 3. 314 iOUNDARY. Lentioa has alreaJy i'urnish your Lonl- anada, you would n London which THE QUESTION OK BOLNDAUV AS AFKKCTED BY THE RUPERT's LAND ACT, 1868. ascertain by ?he Tecisionlf aomofomnS^'^'f. ^'.^^«'?™^nt consider it very desirable to of Canada and the ^^r.^or^:^:^:^^^:^ZX^t^J ^l^^ ''' ^^^^^^ 1858, on pa,;e 224t where S^W^oucLr^aysT " ''''^' '' ^'^ ''"^^ •'^""^'^^' pany'li tZ' IHZ iL^r^ver 't^^'^hT °' '''■' ^'"''^'^^ °^ '^« '='-™'' °* ^^^ Oon,- Majesty's Oove.nment have coL^ the oo'il-'"".f'">'>"°*'' ^' ^^"P«^''« I"^"^- «««• to institute proceedings with a view to r.Z /h"'"" **!"' 'VT"''^ ^« impossible for them departing from those principles ofToSty by wtw'/^r •'°° ^1°'' " 'T' *"^"'^*'' ^^'"^^^^ therefore it is to bo raised at a 1 i t Ls^ be bt .7 '°'''^"'' °"8*** *° ^° 8«ided. If 8ibility."+ "^ ™"*'^ ^« ^y otJ^f"- Parties on their own respon- ant ^^elofXl'e^LtZ^^^^^^^ '^"""^" «^"- ^-"^-^ -s an import- Sir Robert CoLHER.--Nobody would deny that itand We?oTov7arward7"T^^^^^ road it than for „.o to state assume the responsibility of contest^ f bk L f ""'"^ 'l^^^' ^''"'^^^ ""^^ ^^^^ed to of the Canadian Parliam .utrto brCnd§ ''^'' '"^ "' ^^^' ^^^ ^^« ^^^^-^^ fore ^JSlb,;;;^To:t M^^^ JT^^^'f^'^ ''^'^"^' -^ ^^''^ *"«- for the opinion\^f tL JudicKmSuee of S M 'T' ""'J-^' t'^^^'^ '^^^^'^ restriction as to any question OanS mil ^ •. ^^*J««*y « ^"''7 Council but without the said charter, or irtr^iSenate oTht r^l^itsr^" *° P"""* ""^ *^« ^'^"'^'*^ °' ?rp:tllurorits'rhUcloliJ^ - ^^ink the melt to an end, the Lnpe Lrauiitl sa^d no' ?it7"f ^T' ^^ V/^ ^*^*«- Sfhi^ btLir ^--^^- ^^^ -^- "- "hi \:u;tt? trrcf j?d * SesB. Paps. Can., 1858, No. 3. t The Secretary of State for the Colonies to the Go-ernor-Oeneral. Ibid. rega;d?oVe"qSLrC"d^a?y:'a^^^^ Government are anxiou. to afford every fTcXtowarr it««n Hon 'a^^'^ °', "'^ "^^l^ ««' Majesty's dieted in the correspondence, if such should be til^desire of Can Ja " ^'"^'^ °^ »ccomphshlng which is L ism! P^'im! "' '^^ ^""^'^'^ i"*rliament to Her Majesty, 13th Aug^ast. 1858, Journals Leg. Asa. C«. 315 ARGUMENT OF MR. m'cAHTHY, Q.C, re QITISTION OF nOUNDAHY : II' IV- Sir MoNTAGUK SMfTH.— Whatever they "claim," rightfully or wrongfully. Sir Barnks Peacock.— They were to have no claim again, excepting wiiat they reserved to themselves by their surrender. Mr. McCarthy. — That was one object of the Act, I admit. One wa.s to empower the Queen to accept it ; the other wa.s to define the boundary, because we will follow that up by the next Address. Sir Robert Collier.— We have had the terras of the Act before us several times. The Loiu> Chan'cellor. — You f-ay that the boundary is settled by saying everything they claim. Lord Aberdaue. — 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 nil the watershed of Hudson's Bay eastward i well as westward, all that is colouvod green [pointing to the map, shelving the company's claim, attached to the Report of the House of Commons Comviittee of J 85 7]. 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. Mr. McCarthy. — And is detined by mete? and bounds. The Lord Chancellor.— Where is that deed ? If the metes and bounds are there, thty 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 tilings) 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 Oompany to surrender," and so on. Then that — " TLi Canadian Government shall pay to the Company the sum 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. "f Then the sizes of tl. blocks are given and so on. Then, at page 318 : " Now kno' ye, and these presents witness, that in pursuance of the powern and provisions of th-- Rupert's Land Act, 1868, and on the terms and conditions aforesaid, and also on conditio 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. words there. There are no bounding *Deed of surrender of Rupert's Land, 19th November, 186i», the Governor and Couipany of AdventurerB of England trading into Hudson's Bay, to Her Majesty. Prefix to Stats,, Can., 1873, p. Ixxvii. etc. + Th« aentence cotitiniifia ; " wbHth«r in Riiwrt'a Land or any sther "art of British North Axaeti<&," 316 BOUNDARY : THE QUESTION OF «OUNDAItY AS AFFECTED BY THE RUi-ERT's LAND ACT. 1868. b thing in point of f £300,000 sterling." QBsesaed and occupied ere are no bounding Except by the recital. The whole deed must be read to- •The recital does not carry it further than the Act Mr. McCautuv gether, I submit. Sir Montague S,mith itaelf. .1. 1 u.^^V CHANCELLOH.-We have already .seen that there were nosts within the undoubted limits of Canada which belonged to th\m ^ Sir Robert CoLLiER._VVe have had all thin before u,s. Mr. McC ARTHY.-Then at page 310, and from that up to page 312 vour StfK' Ho" s;""?^.?!^ of the Canadian Delegates* a'nd thHlt Res^;,!"- tSwLtlLvSLtJn "'*'^'^^ '« ''""^ *he,se without seeing that what they did take over was what was c« led Rupert'.s Land in the Rupert's Jtl it aut time" A '? '^'^^^"«,''^^* ?'' "^^ ^' ^"^^^^ claimed "and 'they amffudtotheReZf n}tt^7\ 7? ""'"'"'''^ S'""'" [referring to the same map. attatnea to the Ueport of 18o7,\ it does appear to me that there is an end of the question as far as the height of land is concerned Sir BARNES PEAC0CK.-They could not claim against the Canadian Govern- ™'"m\' ^}^^ ^""^ ^^f" """^^ anything included in that deed ''^"*^'^" "°^''"•■ Mr. McCARTHY.-Undoubtedly, but I think it goes further Sir Barnes PEACOOK.-But it did not bind Ontario that they claimed thev IZ^t^Xyl'tl ^'' ^° "" '^^'' -^'''-' ^^- -- LludeTln^'th^ then^ th??k'itT:sTi:etha\T«:^^^^ ^'' ^""'^ ^'"^^ ^"^^^^ ^ ' -^"^^* '^ ^-' «n f'f^P^r^ Peacock,--How does the Imperial Act bind Ontario, supposing ^ ^M M n ^ ^''"^ 1 ^\*^''^" ""^ boundary of the Province of Ontario"'^ ^ Mr McCARTHY.-In thp first place, that was diluted ten-itory. Then the Mament to':^ ' '^'"'- ^''* "" ^ ^'^'^^ P^^^^^^^ ^^P^ '-<^ ^'^'^ ^^e Imperial • 1 ^^'^ ?,^f?^f,P^f^'Of'K.-They only .say the words "Rupert's Land" were to induce all hat territory in the possession, or claimed to be in the possesS of the Hudson s Bay Company. Tfien they authorize them to sell and dispose of or surrender that, m consideration of £300 000 ^ ' territolv af'^fhtT'^-"^^''' '^^''^ ""^'^^ ^ «^>^ '' ^^'' ^^'^^ ^his being disputed tTZl * *'>^*"»«' »t was competent for the Imperial Parliament to enact • '' We Sit'Cr 'sTir' ''' ''' ''''' '' ^^^'-«^ 'y ^'-^"^-'^'^ ^^y c-p-y Sir Baiines Peacock.— Did they say that ? Mr. McCarthy. —They do say .so _^irMo>™uE^>nTi^^ ^^ttj^ ^ ^.^^^^^ i Resolution, of the Senate and Housh of Commons of Canada, 23tb May, 1869. Hid. s ''' f. i 317 ARGUMENT OF MR. MCAUTIIY, QX., re QUEHTION OF HOUNDART : Sir Baiineh Peacock.— They only say the term " Ruperfa Land" is not only to include Rupert's Land, Vnit all the North-Wcst Territories. Mr. M{ Cakthy.— But what the C'anadian Parliament ouglit to have traiit>- ferrod to them m Kunort's Land in defiiu'd by tlii.i Act. 1 humbly submit that that is very clear. Hen- thott" is a disjiute from lf<50 upwards. Sir MoNTAOUE S.MITH. — Whatever the government purchased under that Act is to become part ot the Dominion, and, upon an Address, may be formed into a province. Mr, McCauthy.— Yes. Your Lordships will allow me to n peat once more the date.s and history of it. Sir MoNTAorE SMiTff.— There is nf> intention recited to aott.e boundaries Mr. McCarthy.— Your Lonlships will .see, in 1857 the Hudson's Bay (.'oin- pany put forward this claim. All parties agreuii that it was most important to .settle the boundaries. The Canadian people were asked to a|)peal to this Roard to settle boundaries. They declined to dary Commissioners. and?ts latitude and longitude are fixed by the latter treaty. " Th« North-West Angle " Is a different locality, well known ai » landing place on the old Dawson route, and as the place where the Indian Treaty No. 8 was nago- t Printed ante, p. 40, note. 318 UOUNDAKV EFFECT OK THE TllKATV OF 1783. i Land " is not only npeat once moiv 'Me Resolutiona of along the ea«torn Unk ot the said rivor to thoso.,th«n. houu«]ary of the territory granted to the Mordmnts A nr i> what J mean. The urf^i descriptions fjoes to the bank.s of the Mississipj,! aiuJ it follows that by expnws terms alonp the east bank of the Mi.ssissippi until the Hndson's H..y territory he reached. That is Uih first de.scription,— that u{ 1774i. The second descripti(;n says: goiiij,' from the nortli-weet angle • to tli.- Mi.si.ssippi, but it docs not say, "and then along the ea.st bank of the Missis- sippi," but it says, " anrl northward," just introducing the words of the Quebec Act.f That is the only diH'erenco. The LOKF) Chanckllou.— The difference relates to an imaginary prolonL'a- tion of the Mississippi. The other tlesmption is capable of being followt-d up to its .source, wherever that may be. Mr. McOari'HY. — The one description say.s, in terniN " along the ^«nk ' The other description, although it says to the Mississippi, ays to fhf> Missis.sippi and then " northward." f ' _ The Loni) Chvncelloh. — The importance of this de.scription 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. McCauthy.— Yes. Then the treaty is to be found at page 633. * it is the treaty of cession to the United States, and an acknowledgment oV their independence, and that is tlie next paper to bo looked at to understand, if wo 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. McCauthy.— 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- ledges the said United States "—naming them—" to be free sovereign and inde- pendent states," and that he treats with them as such. Tlien the 2nd article is ; "And that all disputes which nji^ht arise in future on the subject of the bjunilaries of the said United States may be prevented, it is hereby agreed and declared that the following 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 communication * Thi- northwoBt anglf>,"— se* antt, p. S18, note f. tTho contention of Ontario as to the word "northward " in the Quebec Act, and, by analogy in thin commiHKion of 178t!, wag that it iiad reference, not to the prolongation of a line, but to the extension, in that direction, of till territory. See ante, pp. 1S4. note, 136. notel-; also, p. 42, note. But Ontario also claimed that the couimisBi.in concluaively disposed of the theory of the due north lino from the junction of the Ohio and AIiB8i8Rippi, by chowinp that, in the mind of the Crown-of the King in Council, and lii» L,%w t>tho<'rR-the territory c,f the Province of Quebec extended along, and abutted upon, the Huppoaed Mis- »i8«ippi of that day, to a point at leaft aa far north ati the latitude of the most nofth-westernmont iioint of the l^ke of the WoodB, to which point the southerly btiundary of Quebec was carried by the commission in question : Through the middle of the said Long Lake and the water communication oetween it and the Lake of the WoodH t<» the «aid Lake of the Woods ; thence through the said lake to the most notth-wtv.tern point thereof ; and from thence, on a due weet course, to the River Mississippi." t Printed anU, i>. 43, note. 320 BOUNDAnV : THE MNE Of TJIE 49tH I'AHAM.EL. rdships will look at courH.. to th« Itiv.r MU.i„ippi.^ ^ '*"'"°'' "'* ''«"" '»»'««'« «» • due »»^-t ':i;:itoS;^^':i.:^::^ t ^nTkirt''-''"' ' *v> «-'i^ ^o ,««. the.. anjfle* of tl.o Lak« of the VVo iT wa« tl at ha w '" **'""''"^' ^" ''^^ ""rtl.WMt ninth parallel. Up to tho fort .S h ?a,a I TlT i^i"' ?," P"'"'\''" ^'^ »'«^*>- wuH more conveiumt t<. takf. th.- wit. 1 , n i ' ^^ *''." '^'^^'"' course-it Uke ot the Woo.1,, b„t nut f „ ;!,rt.h:, ' ;„H 1^" """"■"■■■"■•o.t portion of Ih. Ml-. McCahthv-BiiI wini 1 »,„' ,1,". ; .t . . thai that WM „ near a> they .-.•i X t.;r, j»,v, " !"!° '' ™ »nJen,lood .oulhern boundary of tl,e Hudson', Bay icjritorv , i... V' '. """'"■'' »' ">' ,.u .hatJ!,?t,rg\:iL^'"u,!Hr'sS,°Sei;.t.d t'd-^sr-r^ s- ■ - Mt LeTruaty of Utrecht had c.widored tj e ilS „.™m i 1',° '"''"'"'"I- honndary of their territory prior to the ce,,io an Kl ,'"."» ■»'"h«'-n the Treat,e« hetween no£ m, rely the T'n toj s.l 'T";.""' *" '"•» " • between the United State, and Spain 'aiiaLo on rft ""' "l?? S"'"" !>"*■ U»t e^tr^in th^Man^UAppL lii*^''r,r,i. it pSl^^Sd"! "' "' "" * See ontf, p. 318, note +. ' ~ ~~ ■ — ■■' line of th., 49th parallel either in the Jlectk „ of the mont nort'h'w * r^""^ •^'^' ^"''' "° that o^HsSt^ tZ or in the prolongation of the line. " from thenc« i.n '"""* ""fthweatern point of the Lake of tZ W^ h.; Convention of 1818, howovpp which settnthl wth , '>i .""""^ '" ">« R'^er Mi.,»i," „„• •■ Xl'> SpaiiXtirn'"*"" ■" '''*^' °^ "- -"^- boundary of Louisiana when th.t re^on wa. a and ffi^^iT^^^^^^^ Affairs made to Co„.re.. in 18« " settled a. the teundary under theT-reatv of Utrecht Th.f I . " Jen'onstrate that the 49th parallel w« r;;^^ Iffi- '"J'^" *»"' 'fr"ty of Ut^cht iB'atnd.„'«v'..lLTS„'^,^» "- -.V other line .^"boundr n«en ajrcsdy snown on Ite arKuuiBut. ' «^ *"*' =*'acnce before the BoarJ, and 21 (B.) 321 ARGUMENT OF MR. M'CAUTHY, Q.C, re QUESTION OF BOUNDARY : Lord Aberdare. — They only touch the 49th parallel at the very jioint where it was supposed that the terrttory of Ontario ends. Mr. McCarthy. — V'e.s; but perhaps I may refer to the other treaties bofor-o I go to that. In 1794 the next treaty took place. That i.s at page 547 and was between the United States and Great Britain. It Is called Jay's Treaty, or thi- Troaty of Amity, and acknowled<,'e3 tlie Hudson's Bay Charter, which of coursi^ is not now in dispute for the purpose of this investigation, in Article '6; and tlKui, at page 549, there is this ; " Article IV. Whereas it is uncertiin whether the River Mississippi extends so far to the northward as to be intersected by a lino to be drawn duo west from the Lake of thf Woods in the manner mentioned in the Treaty of Peace b-'tween His Majesty and thfi United States, it is agreed that mpaHures should be taken in concert with His Majesty s Government in America and the Ooverament of the United States for making a joint survey of the said river, from one degree of latitude below the Falls of St Anthony, to the principal tource or sources of the s^id river, and also the parts adjacent thereto, and that if, on the result of such survey, it should appear that the said river would not 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 aa 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 8a;me page— the Treaty of Ghent. Then comes the Convention of 1818 on the next page, 550 : " Article IF. It is agreed that a line dnvfn 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 intersect the said par- allel of north latitude, and from the point of such intersection, due west, along and with the said parallel, shall be the line of demarcation between the territories of the United States and those of His Britannic Mnjr sty, and that the sxid 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. Wherea* by the former Treaty of Pe«ce, tliat portion of the boundary of the United States from the point where the forty-fifth degree of north latitude strikes the River Iroquois or Cataraquy, to the Lake Superior, was declared to be "along the middle of said river into Lake Ontario; through the middle of said lake until it strikes the comaunication by water between that lake and Lake Erie • thence along the middle of said communication into liak* Erie ; through the middle of said lake until'u arrives at the water communication between that lake and Lake Huron ; thence alooR the middle ''f said water communicatiiin into the Lake Puron ; thanee through the middle of said lake to the water communication between tliat 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 Brita'7'^'o Majesty or of the United States : In order therefore finally to decide these doubte, tliey shall be referiod to two Commissioners, to be appointed, sworn, and author- ized to act exactly in the manner directed with respect to those mentioned in thti next preceding article, unless otherwise specified in this present article. The said Commissioners shall meet, in the first iuatance, at Albany, in the State of New York, and shall have power to adjourn to such other place or places an they shall think fit. The said Commissioners shall, by a report or declaration, under their hands and geafs designate the bonndary through the said river, lakes, and water communications, and decide to whick of the two cont cting parties the several islands lying within the said river, lakes, and water communications, do respectively belong, in conformity with the true intent of the said Treaty of one thousand seven hundred and eighty-three. And both partieB agree to consider such designation and decision as final and conclusive. And in the event of the laid two (Jommissioners differing, or both or either of them refusii ■ declining, or wilfully omitting to act, such reports, declarations, or statement* shall be made by theui, or either of them, and such reference to a friendly Sovereign or State shall be made in all respeote as in the latter part of the Fourth Article is conteineti, and in as full a manner aa if the same was herein repeatoU. 8S2 OUNDARY THE LINE OF THE 49TH PARALLEL. at the very point Treaty of Ghent. i. . mn,,?h nf Tl ^^^' r ^^""' ™"^''' '^'^^^^^^^Y ^^^o the line, commencing at Sir. nnl/i'fl ;^r-^^T '"'.'^ ^'""'^ "P ^^^' ''"«• 1 «»^«nifc that these fffrWn^vl™ north-west angle of the Lake of the Wood™ hrst m the belief that it wa,s souti, of the source of the Missis- es pp. If It was .south of the .source ot tlie Missi.s,sippi it v^as in the Province of ?i o!f n ""' "\ '^"^ ""'^f ^"'^ ^^y ^^"•'t'"'-^''- Then afterwards, when doubts came to arise as to where the source was, they ac^reed that the ountry foti; fine shouldT f T^ *^ V"'"''?^ ascertaine«ri"rTtheuLoft e wH» ^d 323 ARGUMENT OB' MR. M'CARTHY, QX!., re QUESTION OF BOUNDARY : Mr. McCarthv, — I know ; but I am just giving your Lordships the statf ■ ment of this Committee on Military Affairs made in Congress : " Those extracts are taken from the memoir of Mr. Greenhow, who, it is propor to add, conaidera the opinion that these boundary lines were actually established by the Oommiaaioners ' at variance with the most aocreditf^d authorities.' In this opinion tne Committee do not concur. So far from doing ao, it is thought the presumption that tlie 49th parallel whs adopted by the commissioners under the Treaty of TJtrecht, 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 United States and Great Britaiq. By the former the confines between tlni British and French possessions were irrevocably fixed ' by a line drawn along the middle of the MissisBippi from its source to the Iberville,' etc. By the latter, that part of thu 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 Like 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-westeru 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 patuUel of north latitude." Tlien it would lie in the line I have already read to your Lord-ships : "•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- tingeucy 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. This coincidence between the boundaries established by Great Britain and France in 17G3, and between Great Britain and the United States, 1783 and 1818, can scarcely be accounted for on any other supposition than that the said line had been previously estab- lished by the commissioners under the Treaty ot 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 tl . ., beyond all cavil, adopted between the United States and Great Britain, may it li t bo fairly inf< rred, 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 aia})s, etc., that the other line (forty-ninth parallel), equally beyond cavil, established by the United States au Great Britain, was also the same ono 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 che 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 was 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 1 have been able to shew sotne authority for my proposition that that was the reason the 49th line was chosen."* *aee ante, p. 821, notes t and §. 324 lOUNDARY : ordahips the siato- jr my proposition THE LINE OF THE 49TH PARALLEL. The LOKD Chancellor.— You have .shewn that a Committee of Military Affairs reported to Congress the motive why the actual boundary was really fixed, namely, that it was founded on tlie suppo.sition tliat tlie commis.sioaer3 under the treaty oi Utrecht had fixed the 49th parallel. Mr. McCarthy.— Of course that is all. hut it is some support 1 submit for my proposition. The Lord Chaxcelloh.— 1 do not know what your proposition is, because, supposing It to be established ever so clearly thai they imagined the boundary was hxed to coincide with the 49th parallel, when it did not what would follow ? Mr. McCaiithy.— It explains at all events the action of the commi.sRion. Ihe LORD Chancellor.— It explains nothing s'.rely but a motive for what was done. It it is done and remains, it is just as efRcacioua. Mr. McCarthy.— But the commission could not enlai j^e the Province, which was tixed by Act of Parliament, TT •.? of ".""^ Chancellor.— The commis.sion would not take away from the United States what belonged to the United States, hut it could most distinctly determine what the British Province of Quebec should be Mr. McCarthy.— That we propose to argue. After the Act of 1749* was passed, the commission could not do it. It was fixed Tjv Act oYParliament atTd the commission could not determine it. •X r ,P^f ^?^^ CHANCEL..OR.— But if you make out that the two are inconsistent, it falls 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. Oreenhow wrote from the Ame-ican point of view. It has nothing to do with this question in the world, except inci- dentally, r mean it has no reference to the Canadian dispute. The Lord Chancellor.— How can his 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 tliese ouestions. The Lord Chancellor.— He is no expert as to (luestions of fact. Mr. McCarthy.— No, my Lord, but he states the fact. The Lord Chanoellok.— We have got some large books here, 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.— N'""' '-'' -"^-»-t« 'nad^l npon refcr;n/es-"be"n so iirmly estabhshed that it may now be accepted as a well known rule of inter- national law. Now that well known rule of international law si far as this Z Zt '''r"^^^"^*' °t 'r«"'-«'^- i" «arly times-within the last century 1 may say-was of very great importance. There was an enormous continent the discovene.s had all been made fn.m the c^ean; each discoverer and each occur^e? r ttXn,l''''''^'\T''f''°^\*^"^' ^y ^^^««" «f that discovery, and tha Xe rise to disputes and difficulties which ultimately bave been settled, and settled upon a fair and reasonable br.sis, and these rules are now incorpora ed-if thev Zv "t "''"'^'''?*'^ ^'^''''' ^"^ ^ *^^"k t'^^t ^^^ earlier authorities shew that they were-as rules of .-..ternational law. Now I have already stated what I S'4\"rVt: tLtuir'^r' r'^* ' r^^^*"^^ ^'^^ ^° have bU'te dtpltl with regard to that rule. One claim put forwi d by the Americans, which ulti- mately they had to withdraw as the argument was against the-., wks thiV that Srrivl ?r''^ f\?' "\7^^ ""^ ^ '''''' ^*^« t« the discoverer the whole of !n Lio „^ ^ir", ^""^r^^ ^y occupation, because I am assuming occupation S ieTthat that'Jr, f^f ** Zu ^^""''^ ^^ '^- '^^^" ^he British a.fthoritie" ?S! ?hi « f ^as stating the claim too widely, and that the true rule was this that not merely the discovery of the river, but the discovery and settlement of the coas line, gave to the discoverer and settlers of that coast line a™?he country that drained into t. And upon that basis the French seem to have pro^ Si r/i' ^^'•'•^'''t times. The English at first took a wider vTew They claimed that the mere discovery of the coa.st line gave them all that they chosi llTthnT^.'"^'" ?, '^' very ocean The French took a more correct view by lYl^ f j! H- ^'"''^ *'''" * "f ^* ^"^ *'^ t^« ^^'^'l th^t 't watered, down to the al where the discovery was made ; and so I have read, once or twice references to l^ZT'^'T Jl*!*^ ^/T'-' ^j"? ^""'^^'^ ««^"^1« -^ governors,'in wh ch k is tIZI r • ' . *^f ^T^ ^'^'"f^ }'y ^"^^^ " «t^'«*™- Now I will read from Sir 1 ravers Twiss work, the second edition, page 196 Lord AREUDARE.-Did the French claim all the land which was watered by the tributaries of the Mi.ssis8ippi from the east to the west ? ^ claimed%Si'^rdi;c''o:e' ;" '''' '''' '''' ' "^^^" ''^ ''^'^^^^ ^^ «^"« P- eith.f 'if Tf^ CoLLiER.-According to that view, if a few miles of the coast on anv J. ff ' '!°"*'' "^,.? '''''' ^"'^ discoveied and sctcled you might claim any extent of country you like to .suppo.T' ^ Lord ABERnARE.--That is to say tlmt the discoverer of the mouth of the Mississippi or the land on either side of the Mississippi, c x.id claim not only thr S; l^'^o V.'?' M- *^-' .^'^'^'-^^'P.Pi' b"t all the lands watered by the enormou=: tributaries of the Mississippi on either side. wh.n^l!! McCARTHY.-That i,^ what the French claimed and what La Salle claimed when he erected the post and put the French arms upon it. Then the portion of Shlrfnf i ^;™M^Pi.^a« ceded to Spain, and then Spain gave that to tlie states, and t^hen the question arose, and it was with regard to that that this ^ge w.,ieh X am going to refer to was dealt with. This is Sir Travors Twiss' DooK, and 1 am reading at present at page 196. 327 f IV ^ ARCiJ»[^yT OF Mil. M'CAR'i'IY, y.C, /V! QUESTION OF BOUNDAUY : Sir Barnes P."^4cock. — But what treatise is it — on Internal!' isaaI !,an', I suppose ? Air, McCarthy. — Yes. Sir Robert Ojlmer.— You may read it valeat quantum. Mr. McCarthy. — " The exclusive rght of a nation to territory which it \.,• *n other nations its intention to appropriate the territory to its own par .•oB^'e The comity of nations then sanctions a presumption, that the execution of tht. ini'.e.-vliD \*il! follow within a veasonablu tim^ '•-he announcement of it. But natural vear,.,;; * f Miirk-s tb ;it the discovery should be notiiJed to other nations, otherwise if actuaf p^^s8< >»aion ban not ensued, the obvious inferert e would be that tho discovery was k tranaieift act and that the territory was never takt> )08ae88ion of aninui tt/acto." Then he sars that the, meaning of notification is, either by notiiying it formally, or taking po.isession. Then we come to section 120, which I do not think I need read to your I. irdships. 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 tory which would attach to oh fi»- ment, might not, in every o^.'r !e precisely determined. Bu' ;; and subsequent settlemeni,, wi : . a reasonable time, of the uv\ * i «F Tt'^-nfi Ot its vfrsi'tCftea hd^ br^n explorrd pfior to niiCtr uiscovei-y^ .j,- provided that occu- '"^ \ by permanent end, the right i;.v discovered or discovery or settle- he first discovery a river, particularly .'6 tun fij^nfc Oi. G»'CU- * On the C'lrtrary it was claimed on behalf of Ontario, and the evidence '.ifXi. li^ ■^ the French were the first occuptnee. See ante, pp. 189, note +, 200, note *, :i60, note +, 253, note * , ..: i ppendix B, hereto, 328 UNDABY : CEUTAIN rniNCIPLES OF " INTERNATIONAL LAW " INVOKED. irr,!ttt'.')niil Lan'. I ;"(juhle yourLof'.l plenipotentiary of pancy, and ultimately of sovereignty, to the whole country drained by such river and it. Tal a^ WB:itir'H^•"'''■''^ "^'-•l^'"'' -^ *" -^ 1-ation be'^.ween the United 8 ates an Jre.it Br ta,n, her acts have with propriety been appealed to as shewina that tlie principles on which they rely accord with their own." snewing tnat Now comes Sir Travels Twis.s' view upon that : • M?h^ ^r^forx as to the extent of territory over which the discovery of a part dvea n..e to the right of occupancy, may receive a solution by reference toihe Jrfncipfea of L thl*; ^»^^ n" "'I", l^^'t^nt actual posseasion must ,o in order to give" tit e to flfS^a t^i i^ lahabued It is not necessary, in or'der to constitute the occ pant of a hing the legal proprietor of it. that he should have actual possession of the whoL of posseVsio: ofVeTSr-' "' * '''' ^'''' ^*"""' '^ Beparated^from the whole. heV in Then section 125 is : the uJiteYsS nf T''"*'''' •" T^ ''"''"°'*' ^*''« ^''"^'^^ ^y *»>« commissioners of he United States of America, in the negotiations with the oommissionnrs of Spain on the subject of the western boundary of Louisiana "-which is just the point whSh you" Lordship was putting to me a moment ago-" ' The principles,' they observe. « which are tift Fnll' "T "■' '?? T ^'' '^'^'''"^ ^y '•«*^°»' *°d ^»^^ been adopted [n prao! ticeby Euiop^an nat ,na m the discoveries and acquisitions which they have respectively made in the New World. They are few, si.nple, intelligible, and at the same time^founded If anv ed^:n?';f ' ^"! 1 '^'" '"' '^^' "^''" any European nation takes possS of any extent of sea coast that possession is undor.stood as extending into the interior J ITvSlL .h^ r^'' , '" ^''^- '^ ." "«^' '" *'*^'>>«'°» "f «l' °*»^«' "-tion" to the same. ™rt^I h^h'"""^ ',f ' °u P'^'^^'P'^ 'i^'^st govern the rights of European powers in regard to each other m all such cases, and it is certain that none can be adopted, in those cases to which ,t applies, more reasonable or more just than the present one Many weighty considerations shew the propriety of it. Nature seems to have destined a large Z^y.r i""'^'^ "" '^^''"'^^ '°' '^'r""' '''"'''y > *« ^^'^ «'°»"«'=ted its several rarte together by a common interest, and to have detached them from others. If this principle IS departed from, it must be by attaching to such discovery and possession a more enlarged or contracted Jcope of acquisition, but a slight attention to the subject will demonstrate the absurdity of either The latter would be to restrict the rights if a European power .Tfltrr/ ."^ f possession of a new country, to the spot on which ils troops or settlements rested, o doctrine which has been totally disclaimed by all the powers who made discoveries and acquired possessions in America. The other extreme would be hf^n ftwrfr* l^\ '!' *•'■*' *^' °?*'°° ^*'" "^"^^ «"'^*' ^"''"^^'y should, in all cases, be entitled to the whole territory so discovered." Then he speaks of an island and says that if an island be discovered it all goes At section 120 he says : ^ iQ.)r" ?"* P08Jtion of law maintained on behalf of the Unitod States by Mr. Gallatin, in 1827, aboyo alluded to, had been previously advanced by Mr. Rush, in 1824, when i^si- dent as Minister Plenipotentiary of the United States in London. ' I asserted ' he writes to the American Secretary of State, Hon. J. Quincy Adams, ' that a nation discovering a country by entering the mouth of its principal river at the sea coast, must necessarily be allowed to claim and hold as groat an extent of the interior country as was described by the cou^e of such principal river and its tributary streams. The plenipotentiaries of the United States in support of their position appealed to the language of ancient charters—" and ao oa. Tien ; .«i m"/* ^"^ ""^'l'®"^ ^"^ behalf of the British plenipotentiaries, that those charters had no vaUd force or effect against the subjects of other sovereigns, but could only bind and 329 ARGUMENT OF MR. M CAUTHY, Q.C., re QUESTION OF BOUNDARY; reatrain, vigors suo, those who were under the jurisdiction of the grantor of the charters. and that although they might confer on tlie grantees an exclusive title against the 8ub jectB of the same sovereign power, they could only affect the subjects of other povureign powers 80 far as the latter might be bound, by the common law of nations, to respect acts of discovery and occupation efieoted by the members of other independent political- communities." Lord Aberdare. — That last position does not sooin to have been contested by Rush. Mr. McCarthy. — Yes, my Lord, ho contended for a much wider position. He contended that tlie mere discovery of the land near a river gave the whole of the territory ; the British said not. Lord Aberdare, — Although a part of the land watered by the tributaries or the principal river had been already occupied. Mr. McCarthy. — No, my Lord. I do not think that is contended. The dis- coveries were always from the sea in this country,* and being from the sea there could be hardly any foreign power or rival power at the head of the stream. At section 127 then he says : "The principle involved in the position of law advanced by the United States on the above occasions, seems not to be reconcilable with other pottitions of law in which all nations agree. It is inconsistent in the first place, with one of the positions of law upoa which the United States themselves rested their claims against Spain respecting the boundary of Louisiana, in 1805, namely, that the discovery and occupation of an extent of sea coast by a nation are understood to convey to that nation a right of possession over the interior country as far as the watershed line, which position of law Messrs. Monroe and Pinckney, the commissioners of the United States, then alleged to have been com- pletely eHtablished by the controversy between France and Spain on the one hand, and Greiat Britain on the other, which produced the war of 17R5 between those nations. It is obvious that a claim to all the lands watered by a river and its tributaries, founded on the discovery and occupation of the mouth of the river, must conflict with a claim to all the inland territory, as far as the line of watershed, founded on the discovery and occu- pation of an' extent of sea coast, about which latter position of law there is no dispute amongst nations." Now there are many authorities — it is not merely Sir Travers Twiss — to the same effect, and all of them are quite consistent with what I have read. My learned friend will refer to them more in detail. But what is the reason of it ? One rea- son is given in the book which I have just read. Another reason is that if you allow a rival nation to come to the head waters of the stream you would have no opportunity of defending yourselves against them ; they would come down with ease and swiftness, and without any opportunity being afforded of preparing for defence.-f- And therefore it ha,s been essential in the settleuicnt of these new countries that some such reasonable rule should be adopted. I refer also to Sir Robert Philliraore's work, the second edition, volume 1. pages 277 and 279, where * There may be said to bo two exceptional infttances, both in connection with the French occupation. Firstly, the Hudson'a Bay territories, claimed by the English on the ground of their operationn and allefsed discoveries on the shores of the Bay, but by the French, operating chiefly overland, from the St. Lawreice, with occasional voyages by sea, as an undoubted part of Canada, embraced in their charters, tributary commercially to their traders and trading posts, guarded from usurpation and intrusion hy their military and naval expeditions; secondly, Louisiana, embraced in the early English charters, purporting to cover territories stretching from the Atlantic «eabropo,sitions of law for which we contoiid ; and now to apply thoin. I have done with the facts now, ati.i will sav just a few words aa to the tti-i'lication ut the points which 1 Imvc endeavoured— lain afraid at some length, but, as far as I euii. consistently with my duty-to lav before your Lordsliips. I say in the first place that the possession of the English and the Hudson's Bay people ot this territory are correlrttive -or rather interchan.'eabJe. That would be the better expression— that the En^rlish ha.l ao claim to the Hudson's Bay country except that which they gave to the Merchants Adventurers of Hudson's Bay. 1 subtnit that by the words of the charter, as understood in international law, and with reference to the dealings with the Americai, continent, that did give, in terms, to the Hudron's Bay Adventurers, so lone as it was not at that time occupied by any foreign Christian power, all the watershed of Hudson's Bay I say that is the real meaning of the charter, as explained by international law nnd adopted of course in municipal law. If that be so-and I have already stated to your Lordships that there is no pretence of any occupation l by the French at that date, and no settlement,* then we come down to see whether any- thing happened since, by which the limits of the land or territory granted has hjen curtailed. I submit there has not boen.f I admit that as between the trench and English, and owing to the troubles which took pla'ce at that time these limits would have been curtailed, but nevertheless, upon the restoration of the px)untry to England, under the well known rule o{ postlimini, as it is called all the private property would have reverted to the Hudson's Bay Comp-iay' The English Crown, against its own charter, according to well recognized rules of aw, having obtained back— assuming now for the sake of argument that it had ..t^ portion of the Hudson's Bay territory by the wars which happened between u »"« ^71'^— having obtained it hack again in 1713 an.l 17();}, the effect of that would be, as a matter of law, I submit, that that would revert back to the original donees of the grant— the Hudson's Bay Company. That is as I under- stand, the clear, well-defined principle of law which goes under the name of post- hinim, in other words that the private property of the subject of a state who reconquers territory which formerly belomred to the private individual does not enure to the benefit of the public, but it enures to the benefit of the private owner^ So that I submit, broadly, that it is of no consecjuence whether the Jrench did or did not encroach upon this territory : the etrt?ct upon the retrocession or th e cession, of this p roperty -eat Britain would be equally the same | But 1«9 *n.^^+*'^TfiV"o-n^''"i'^''^*'S-o ^^' *°.""" P^ 'O''"'? <^f V'« Pr^^oh title and poseesnion. '^'^'■afj, '^. 18», niite t, 300, note *, 2o0, note :;:, 2.i3, note * j appendix B, hereto. . ■> « c w. .nrtli?!"!*" "T'v*!u^'^ '*°* Y-^' J"^""'*' '° "'•' '■«'''' "^^^"^ ''"" "f tl'" ^"^ that thero had been an actual .Ton tt entire uCv'ortC''"" '^Z "'"''"'f " L**^" ■■''" '^"*"''"''"r }^r «»y "f qualification to^h^H S! mfr'a position, under the circumstances of this case, is 3«t forth in the next note, : Tlie ripht ol poHliniiniuvi is defined as "that in viitiif of which, iw-rsons and thin?- tai^en hv th« behr^'fVatTelf \tt' 1.^^ "'ffi ';" P""""^»«-" -'" '^e P-U ..f^hrnaticm^^' whTch^'the; ^■^r ! fK : • ■• , Ttie contention of Ontario was that the argument founded upon the supposed appli- validity of the grant to iM ludson's Bay Company, under the charter of 1670, beine denied in toto as res- St elf" ""nn.'"i*''' ^'"- rT"^ ''"'"''"■=''• ?:"^' ""''"^ '"■'^-"^'"^ ^«« '"'^'"''"' by the terrns'rf the fn.tru. Wf« , f litT^n "°* »'':''.'^' - .Jtually possessed by or granted t.. any of our »ubj^ct«, or possessed by the sub- jects of any other Christ an Prince or State." The priority of the tVench title and posses-ion wan beyond con- tK>„o,«„ ™ t.u .J "•"• , — ' • •".-"-■• "-"TO. 1 ur (jiivM iL.v < your Lordships will r«meinbcr, who stated that the etli et of the treaty would be 1:1 lely to cause tho Eni;lish to deliver to the French the actual posts mentioned in the creaty, and not the territory itself* — that whatever luuv nave been the effect of that tn.aty, everythinj^ connected with that was swi-pt away by the Tra(y of I'trecht ,+ that by tlie Tv..,' ^f Utrecht the country to which the Uuilson'.s Bay people were onti ,^.l v\as i*e.ii,orel' -that a line was fixed — or rather a rule for ascertaining^ the line was fixed — which was in point of fact the watei-shed ;{;} that tliat oan be as well defined to-day, in a dis[>iito aris- inif, as this d'-jiute does arise, as to the limits of tiio Hudson's Bay, as it could have been b) the commissaries ; that the commissaries were only a inuthoil pointed out le the treaty o." fixin:; that limit, but that the rule being laid down and establi.vhf d in the treaty, that ail the Hudson's Hay and Straits, and the riv( rs and the hmi's oelongirig therunto be restored to Great Britain, we are just as competent in this country as the conunissaries were within a year alter the treaty, to have defined and marked down that limit. And that line would he tlie watershed;!!} or if it be not the watershed, after what has taken place it would be the 49th line. That 4')th 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 tlie C'rown. I cannot a^-ume to the Crown dishonour. After it-* obtaining the propeity again from the French, the Crown was in this ;j)'jsitir)u. It contended on behalf of tho Hudson's Bay Company that the true line was the 49th parallel. The Oi nvn then got the territory, and dishonour cannot he iuiputed to the Crown — and it would be imputing dishonour to the Crown, to say that tliu Crown could turn round and say to the Hudson's Bay Company : " True, last year we said that was your territory — wo liave got it now but you have got to prove that it is your territory." I do rot mean to say tb Crown is estoiined; but I mean to say it would be impu^^ing dishonour to the Crown to suggest any other course had been taken.|l The Crown n ver objected to the Hudson's Bay Company ; on the oontrarv- the Hudson's Bay Jompany remained in oceupation.Ti and went down as far as K T^akt *** Froi irae to tinie it occupied the whole treaty of peace has no lunger any claim to the right of }>ottlinunium," that the alienation " is vali>) and irrt vereible," and Buch that no reclamation can be made, even " if, in the nequel, an.no fortunate rewilutioa' •hould wrest it from the hand" of the coP'~'.' r(Vattel, Book HI, chap, iv.) K«nt puts it very Buccinctly : "If the rea! property, as a 'vn, or / .ni/. if the territory, I'^r inataiice, be led to the conquaror by the treaty of peasf, the right of v>o»tliminy is fone for ever * * T' 9 right of postiiminy no longer exists after the conclusion of the peace." (S)d. 18(Ui, i)p. 282-3-) It if to L-'iemensl'ered that at thH tii.ie of t'i(!Tf<>aty of Ryswick, France was in actual possession of all the poHts which h\A bean of the Hudson's Bay Uompuiy with one exception, and that this one also rightfully belonged t 1 , I'rench under the ternn ■ f tne treaty. * Tliii, in reality, was the contention of the Fremh, aftei the Treaty of Utrecht, and has here no application, for the English had never held the territ. tself, ■ ;iny portion of it, but only- fur .t time the ports on the margin of the Bay. t This is a begging of the questioi) See the dis .)n, , pp. 279-80. t For the answ. ; to this, see ante, pp. 190, note t, ■ . nolo , § This is the repetition of a contention already very emphatically disallowed by t' '- Lordships, atan earliii ^i.uge of the argument, as not well-founded {ante, pp. 216-218.) II I'he evidence does not sustain the contention and inferences of ODunsel, in regird to tti- line of 49", nor L'ould dishonour be atti buted to the Grown in the circumstances of this cace. Bee ante, pp. lUO, tiute t, 236, cote *, 331, note J. •i Of tliB posts only cm the shores of the Bay after 1713, with the sole exception of Henley. The French retained the posts and tho trade of the ii.teiior. Appendix B. hereto. ~' Ixut until 1700 ; and this Red Lake was far north, uu liiu uoitii-uastward slope uf Lake Winnipeg. 332 (UNDAaV: \1BW8 OK IMP. At THOKITIES re THK VALIDITY ANU THE I.OUNUS OK IHE CHAHTE't. y 1 1 ' Lordships, at «n ooimtry. In 182 wo find T-nl Bathurnt nu^g.^tn this compromise between the tw.. companies V\ ,• fi„a tl.on a license was granted.f an.l that tl.at license wll au'a n renewed rm.^mizm,. it with a perfect knowledj^e of all tl.at took place ai.l we .ay the Cmwn has not only rm;jrnfzod it, but il ha. refused, when appealed to by ( anada to test the validity of the Hudson's Bhv charter K.,th J r Labouchere m the k-tter i have read to your Lonlships. nnd the Duke of fiuekmgham Htterwar.ls, .states that it would n^t be within th. principles reoo.;. n.zed in Great Bntain for u,s to object in any sense, but if vou choose to' do «o you can.{) Afterwards ,t became necessary- that this .:ol.,nv': 'shoul 1 be taken in I rep.«ated my argument so recently with re^mrd to Kupert's Land that I ne.d not Wt'l'/w n^"l ^^ ^'^V7- ""'T'i"^^"" '' ^^"^'"- '*"'" ^'^^«« ••«"'*'>"^. I -"h">it, «ub- •'!fLt^*r 1 ^ Tr ^c 'r *" '^^ '^'^'' '''f^'"'-'^ t" ^»'<' •'"« "orth line, that either the due north line, from the . ontiuence of the rivers is th. proper western boundary, or ,f no that the proper boundary is the height of lan.l or, if your Lordsnps choose, th. hne wh.ch would be represented by the 49th liiie. Practi- cally he 49th hue and th. height n'' md are the sane./ J suppose the r.ovince of On tario wo uld much rather have liie height of lana than the 4rtth line. thHC»n«di»n trailers. whoHe looUt.p, thoy end'»v mr«J t fo low b1 wffh ! '^ ^^ To the wo conipknies jointly. To the two companies amalgamated as one. § r ' Imperial autiiorities never pliidKod themHelveg to the validity (if the ohartor hnt on f h., rn„t,.„ Secretarv. intimates that u (.'anadas " answer do^n not «>Tive by the l.t of mIv f[^r\r/;i'.r-'* <-'*'" """*": panyhu. opinion that '' at prenent the very ro„ndations of the compa ^Vti^rf" '^^ Zdi^^^^ ot,«r tunes howev«r. the home authorities ,.re averse to tl.« taking of the init n "^^*X^rttl validity of the charter, leavins: that to Canada or to private parties, if they sh- ., be s.. ' ,.,1 »n,f hi' law othcers pointing out thn mode ul procediiro in such c«e. But on thr.,,,est.on M t , K.^» .h antfionties were very pronounced. The law otti<,er.. in 1867. 8ay, in regard theKetl?:t, , , .." *i'^* '^»' of o„„,.deration upon thi, queHion, mu.t be . id.d'tho enquir^ as s'S by the b ow u^ word 'ofTh;! charter ; viz.: • not i ussessed by the subject. ,.( any other ('hristian Hnice .1 state ■ uWW f, M [■ of he charter, any part of the territory iow clai.nnd by the H^d ™'i BarUoin^ny^oidd tve^^^^^^^^^ Iffi?to?T/'"'A^? the French, as falling within ih. l„.undarios of Canada or NmeL France ai^ 1"^^^^^^^ effect of the Acts of Par lament passed in 1774 and 1791. Under these croum.tances we caiZt but fee! ^ttt the importi.ut .juestion of the boundaries of th. Hudson's B»v Company, might with ^earnti^tvli between the con.,.any and Canada, be made the subject of a quasi-judi.ia en qu ry " etr M^ Lab^^ in his very letter referred to by counsel, that ..f a2nd January. 1868 savs • '" With reo^iirH »!.' /i''"'''"'^"''.'*''. ottumidary .« ,i„tin?ui.hod from that of th. validity 7fhecl.ar^?f Her Majestlw anxious to afford every facility towards its solution,"etc ' and Earl Granville L his fettL above nTnHifH w"gn;!rete::;is^:'; '' ''^ '"''-'"'"- '- "• ^^"''^^ -• °^-' '^ .iu-t^« o^sr^'^S ii It was treated and named not as a colony but as a t iritory. S ante, p. S09, note V .!. .* '''''*y "^ far from being the s.'ime. In f.illowing tli. ever-varvuiir sinuositieB i.f H,o lw,;™V4. c i a a d"thu'lnd'i!n';fh"?h' "'" *° *" -'*"-*-"« wit^ it overbuy gi;::i aSuft-Mli u'nX'd ff« f'ro^ >, and that-judging by the maps-over a ranee varying from U degrees below to U dj-srr.:" ab."° 333 AllOirMKNT oi MH M'fAUTriV, i,>C, r«« QUESTION OK BOL'NIUllY 1 linvo oiif tnoro woivl to ivM with iv:,'anl to Jio Awiml. Your Lonlsliit,^ have all tliP facts lu'lore you, and I sulnnit witli soin- coiifideiico that tliero is n! i otio tittle of evitlen(^! in .support of tl^ Hik ,.r tho Awunl. I thini< it is propfi- that 1 .should stat.> this, and I will tell your Ijordships tli, purport ot it lefort- I stutf, it, as I do not want t stat(j, Hul.jrt't to what your Lordships think, that ihiN |iarticular lin.- wu.s th.-n cign.'od to. Ynur Lordship's will allow in.' to state it Mr. Mowat is present, who licard it. My learn.id friend, Mr. MatiMahon is pre- sent, who heard it on tiihalf of the Dominion, and it was htated by Sir Franc - IlinckH to l)e tlie fact. If 1 may .state it, I will tell your LonLships }iow that was The Loud Cuancem.ok— is there not aonie document in which Sir Francis Hiuck.s says it ? Mr. McCarthy. — Yes. Lord AnEKDARE.— I thouj^ht he said each of the three Arbitrators arrived at the same decision independently of each otlier. Mr McCahthy.— Ho does. Tho point I lun goiuij to refer to is not on that exactly. The Lord Chancellor —Where is tho documout ? Sir RoiiERT Coi,LiER. — It is at page 109.1 Mr. i]( LJarthy. — That is whore it commences but that is not where ihe passage is. Your Lordships will Hud tho. passage I refer to at paj^e 124, line 30* " The Bole ground for the charge that they ^adopted a conventional or convenient boundary is, that the line connecting the north-eastern and southwestern boundaries whs adopted for the sake of convenience. The Arbitrators were guided in their dccisionB solely b) Acts of Parliament, Proclamations authorized by Orders in Council, on the authority of Acts of Parliament, and international Treaties. They found in the Prooia- mation of 1791 that after reaching James' Hay the doscri|)tion proceeded thus : ' Includ ing all the territory to the westward and .southward of the said line, to the utmoit 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 tho Award believe such language susceptible of the construction that it lays dowu a precise spot on the north-west as a boundary, then their charge uiiirht have some foundation; but the fact is tbut, the language would hav« justiliej tne Arbi trators in extending the boundaries of ( Ontario very considerably. They were strouely urged by Ool. Dennis, one of the permanent staff of the Department of tho Interior, after their decision as to the south-westerly and north-eaatorly boundaries became known' to connect the two points by a natural boundary, and being aware of the fact that t\w Albany River had been formerly suggested by the Hudson's Bay Company as a satiHfHc- tory southern boundary, they accepted it." That, I belii;ve, is perfectly correct. It was done by consent. Mr. Mowat.— Will you read the next paragraph ? Mr. McCarthy. — I will.f Lord AuERDARE. — That thoy took that rather than what may be called a geographical line. ' Printed ante, p. 12, notef . f The paragraph itferred to is ; " ^' i? "0' » little Bingular that tne Award wa. promptly accepted by ( 'ario, although the only nuei- tmns of doubt were decided m favour of the pominion. Both on lb* v . and north, the doubta vere ?i blither Ontario should .lot hsvf. ha.-! rnrsro tiirrst.ory." 334 il'NDARY THE AWAUD OK THE ARlurUATOUS, 1878. t may be called a will ^:: 'Tl;'"'';ilr^ J;^:^;;^^V'7 ^T' j^ '''-• '^ y-"- if-'^nips t.T.itnry. If tl.,-y ) u^ln.. t.-rr t rv ' . '^ / ^"' *'"'"" ''"^>' '^'^'^ ^^ K"' to that Hudson's Hav itJit iCs n , ^f' ^i' >'; ^'" ''," -•'> ^hat line u, to the F.an^i'Minoi^V"'^^^^"""-""^^ '''- ^•"^' appear f.o,n thi. letter of Sir ^^^^^.M.-. McC;AKTUV.-TIu.y assun-ed the ncth-east an.le. That was Hudson", Ji I . Mc Lai TH^ .— 1 hey do not say it in v* oids I h.. Lord CHAN'ci;i.r.ou.--It is yo.,r tl„.orv ^ Bay ns.\i^'Ti::jo;^:L^^^ '^»^1«; ^^ioh is on the Jy Hudson's Bay property " '""' ^ '^'^ ■"">''"« '^ *'"^t t'^^X ignored Sir RoitKUT ij0M,iKK.-*-That is not so Bay V^'^rty"''^:^,;]!!:^^^^ -^J' --'«- there is no Hudson'^ propi;-ty'. I'say the aS^F is bt ' ,. n ho Tl JZ S Tl "° H "i'-^""' ^^ Conipa,.y had no territories between th.se two noT N « 1 / M ^"p?u"''* ^^^ not been a conventional line, where would tCy C^r^to"'" "Th uT '''^ thev could have drawn their line would have been orrhw«, ? ' Q •^ ''y wav onel Dennis had not made that su'^m-stion an )? "'" ?"^*"''^' Supposing Cof- that suggestion, where would thl^lS;^ 1^^^ t "''^rr^r (Quebec Act. it was to go no)-th to the territorv ^vll^.kT .v! It *»H'>wmg the turers ofHudson. B^§_ S. that Ih^S' Ji-ff::!.^ t^lXent ^;i .«rie, of Act, f ,h« Parliament and the t ,f Stl":^^^^^^^ '"^ 'fy '»'« combined effe^.T.' «o,..-thelmnt« were .Ira wn northward to tl>. " b undar; ^- li^'' "Oouncil Proclamation,, Commi.. son H Bay, and embraced " all the territory to the we«twa?d anH .!.', ",^'""«;'"; th« " shore " line of Hud- fxtont of th.. country commonly called o7known bTthn ill f J^^'^'^'m "' '''« """l ''"s *" »>'« utmoBt n., im.t other than the .hores of the Bay' r^he we,t aUhoul^r*''*; /^? J^ """^' t^ere warthu. lUelf have just.Hed an extension of th ' Dounda"ips to the « , ro ./ f o' S"'?"' " ^""<='' ^''">»'i» would of dently considered themselves restricted, on ,7r ouVKro^nrf^to wl^fch ^ "'" "'^itratorH ev"! d.x A liereto) to the most north-western P^ira of thruken^tuw,.,^' ""'*''" '''^^"''''•'^ '«> ^PI'«n- southern boundary was established coniilusivelv and bevotdrnt °'"'S "'' »,". *'''ch the line of the th« "shore of Hudson's Bay," it was opert^L ar hitraCs to ad ooTIn^v ^'■'"" * "' ^'T^' ""'"'ward to ft Ime due north, through tl,e w.lderness, which could m"bu, hav or,w?* "" "K *''T '''^"'ent lines : (1) vement one ; (3) the natural boundary of I^ke W „ni ,1 1 j' , "JZ^^ V""' embarrassing and ineon' to have been the ine the Duke of NewpnuHo h»,l f^ ,; ^ an ' tnc i\el8on Kiver, which may be suDooaed A|,nl. 1*J4 (Joint App. aSsT; /r 1^^^. tt Engl shi;d I? «"■"";""'=*""'' »" ">« Co^pany^oToth th„ Company as a li./^i't between themselu'^au', the K one" / .Ks'".) A?H ' 'ill- 'lV" '•'^'" f»>'<"iredty the leas favourable to Ontario, it did not rest with eXr the D''nin1"n ^^'^ -.^T'^ I"i« was.of the three, as, a natural m preferable to an astronomical 1^ undary. i is a 3 lll'y*?!'^'* ^"^J*'^^ Then njustice to any of the parties h involved. The conipany tleleheH inv^keH?i^''' '" "'^''l'* '*• " "'> ffroai ^' ^^J "'■.r'";:^ '" P°^' "'« Lords of Trad, and P,US,« su^S' ed^i fh^^''^^ '" '" '"'" ^"V con- lmeSJio to the French on the ea.st side of thj Bay M^ey , o „ed t^h« N' ^^m^*^™ ^*"' "'"cession of the S'Jdmg : " As to tho company's naming of rivers as .oinLrflJ^Ti^ the haat Mam River in substitution and obvious, both to the natives as we I as K^roo^us T.id theln . "'" '»"'"''.«'- "'e same is more cer a^i be so well laid down in that wild country, urin^^^^^ \juh the motives which may have actuated the Crown and ParbarnLf ? • '• '"' "'^'''■' ^*- 6«3). the alleged rights of the Company within the limits of the Award w^!l „"V '»"°'-'"*f. o' 'l«'ying, any of But .ee ante, pp. liK), note t, 208, note '. 2*5, note •,331 not^"' ^ "'*' ""' concerned : the fact suffice*. the uoTt'hTasTrgle:"'^'' ''""'"''"°"' '"' "'^ ^'^'^ "' ""'^'ority aTread'y referred to carried the boundary to - But the .2«ebee .-..l wa, only one o, the instruments or pieces of evidence governing the decision. 385 AIHiUMENT OF MU. m'carTHY, Q.O., re QUKSTION OF HOUNDAfiY : at up to Chiirchill. That would have been the theory if there had not been tli consent given. The LoKD CiJANf ELI.OR.— T do not see tliat lit all. Sir MoNTAcn.'E Smith.— Was that by con.sent ? Mr. McCarthy. — Ye.s. Sir MoNTAGirE Smith. — Between whom ? Mr. M(;CAiiTHY. — (.'ounsel for the Dominion on one side. Sir Montaouf; Smith.— Why do the Doir.inion dispute it, then ? Mr. McOahthy.— I'hey have to contend, on behalf of the Parliament tlmt the whole thing wa.s ultra vires* What I say is that there is not a sini,d.. thin- so far a.s I can under.stand (I am .speaking now of the west, my )earm;d frici d will address yoi;r Lord.ships on the other part), in favour of the Award upon th,- west,t and the theory of the Arbitrators would have carried them up to Cluirehil] or, at ail events, to Nelson River, ignoring the whole of the Hudson's Bay teiii-' tory completely between the Bay and the height of laud, whether it be 100 leagues or 20 leagues. The Lord C^haxcei.i.ok,— You argue tliat to the south of the Nelson J{i\er the Hudson's Bay territory does not extend ? Mr. MiC^VRTifY.— What I mean is this. If it had not been for the conven- tional arrangement made. Sir Robert Cor-UER —There was no conventional arrangement made. Mr. AIcOarthy. — I am stating it in the presence of Mr. Mowat. Mr MnwAT. -I know nothing more than is here. Sir RoBEHT Collier. — Mr. Mowat denies that there was any such conven- tional arrangement. The Lord Chancellor.— They fix the south-westerly and north -easterly boundaries, and having fixed the south -we.sterly and north-easterly boundaries they were .saved some trouble by a suggestion from the Dominion that a mituial boundary would be desirable, and they take the Albany River— not entirelv on that ground, ' ut because also they were aware of the fact that it had been foim- erly suggested. You umy 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 MoNTA(;t'K Smith.— This is an informal lecture, and not at all offioial 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 Arerdare. — As I understand, it is an explanation. Mr. McCarthy. — Yes, it is an explanation. • C)nly 88 any other or .lifferent decision which tfce board of arbitrators might ha^come to miRht ha7e boHJi ■uitravircif m\.he alw..D|^e of th« logislation promim-d by the Dominion Government: for liy formal Oraer in Council of tho 12th November, 1874, the Dominion agreed "that the determiimtion of arnajoritv of sueh three ref.,ree8 [me.'inniK the ttr()ilratorB| be hn.-i! and conehisive upon the limiti. to be taken as ancl for siK'.h bouiKiHi';es, and liirther aKreed to " cuncurrent action with the Province of Ontario in o'/aiuiii? such legMi.itiuii US .ii;..y be necesHary for giving binding effect to the concUisionn ;krrived at and for -t.ali- I lishingnie norihein .ind went, rn liniits of the'' ! rovince of Ontario in accordanio therewTth "• ' but'iii the end, and nf twiUihtaiidaig llie repeated urgent folioitations of Ontivrio, the Dominion Government t.eithcr a-ked for, nor obtained the legislation referred to, thus breaking faith with the Province, which, on its u»t procured the passage of ^n Act micli bh was called tor by the agreement. Although, however, tlio Av'ar.i WSH not of legal binding effect in the absence of Dominion legislatioD, its findings were found to be oiiuti- cally correct, nnd were bo Kubsequtntly adopted by the Lords of the Privy Council and bv the J >oiiiiiiion Parliament.. •' I That the euuthern beundiiiy of Upper Canatja extended at least as far to the westward as tlio iiin!i ncrth western ' ' ■ -i .1. .». , ... effect 1 sion 1 inelusivoly. As to the limitary line northward from that point, see o»»l!r, p. 335 note •' 3.S6 I i iiat trie euutiiern iieunaaiy of lipper I'anatza extended at least as far to the westward as tlio lunsi th western f.oirjt of the Lake of the Woods was conclusively established by a view of the ooinbin.Kl '^^:Jio l'^' a"1 .^V^ Coimmssmn of 1774, the Commission of 1777, tfie Treaty of 17H3, the Conimis I of 17Hr>, the Act. Orders in Cc.iwu il nrd ProclBmHtion of 1791, and tho C.ntr,iiiirVi.-,iH ffum ryo tu 18c' UOQNDAKY : THE AVVAKD OK THE AHBITUATOKS, 1878. e had not been that « any such conveii- It 18 called a lecture, ■ives a lecture to explain his til ^nJ'''"'^ SMiTH.-Whftt is It, exactly ? Award ^"^"^"^""'^'-^ «-•« ' «»• t^ancis HincL Mr. M(,wAT.— A popular lecture. Su- MONTAGT'K Smit»,_A written paper ? Mr McCauthv.— I was not nres^n/ u ' was a written lecture. ^ ^^ "" "'"'^ '^ ^' ^ lecture. I suppose it ^"^^^Z^-Z^ZS:" ^^' '- ^^'^^^y ^'- '^^ Award . ■ new^;^'";:^,^^-;;^^:^^-;;:;^^;^;! been attacked anony.ouslv in the Mr'^McCAKTHV.-Thar it I was stnHn''"''- T' '"^1 '^« defen,i;hi.uself is a fair argument for me to use/tlS if you 'fc:^ t."'' '^n '^'''' ^"'^ ^ ^^^ ^^ Lake of the Woods as the point of i b.nit v-fT"'" "^"^ ''"'^ ^^^^^^^ ^^» y^" Award i,s based upon the theory hat the H L' p ^"n^ ^'onMence, that this That is the effect of it. ^ "''^'' '^ ^ ''^Y Company had no lands.f Lord Aberuare. --Would not if hf> fl>af ^u them of occupation and part a fet emt. .t ht T f'' I'^'^r '1!'^"^"* ovidence for Lake of the Woods v ^ «tttlemtnt by Canada of the country up to the KSr^:^^ ::^11 ^'^^'^ b^ -P-ting myself again and again. it mc!^tha;^:S" i^;^' ' ^^^ '^^^« "^ •-* '^ «y"-We of eyidence to warrant settlement at Albany River ^ and F n-t S V ?. t?'^ ^T^'''"' *"^'^' ^^ ^^.s the forts were .south of the po nt T saf tW i Zb;^ T'- ^''"H.' ^^^^'^^^ ^he other that the Award itself, bavin.' been objected h, K "^n" ^'1 '*> '*' '^"^ I submit -n^^nt assembled.^ ought not'to be taken a c ? anv w'^PiT '"' ^''^'^'' ^" ^^''"'*- us. in the ascertainment of the true line TIip rlL r "V. *^'' ^'^ *^^"lence against the will of the Canadian peoplf mx imted 1 37?-^'""'^''"'"^"^- ««»trary to approve of.!i 1 submit it is n^ot tX Jpi L it o Zeffrct' T""^!!' ^^^'^ ^^^'^ »^^ A^nght. It is of no validity on this .ueSio^^^^tf ;^ S^l^J^-tSln LordJi;?p,s.''"' reasons, I submit the contentions I have n>ade before your The Lord Chanckllok.—! shouhl lik-o in „^u . -c ■. ■ + Sfoonea«ure formally lpp^ov:^.»t,::;r';;,1Ji/;te 2- ("•) 387 F ' I ARGUiMENT OF MR. ROBINSON, q.C, re QUESTION OF BOUNDARY: f.iisterly boundaries — the north-easterly at Hudson's Bay 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 t'ollowitig the course of tlie Albany River. Mr. McCai!THV.---No, my Lori.1, I am not autliorized to make any suggeHtitm, The LoiU) C'HANOELLOi!,.--! mean you have nothing to suggest as to uliit. the true line should be if those two data are arrived at ? Mr. McCakthv. — No, my Lord. ^h'. Chiustopukk I'oniNSON. — I represent the Dominion here. The position taken by the Dominion is substantially the same as that taken by the Froviray of Manitoba, and as far, therefore, as the facts arc eoneerneil, so far as all those geograjihioal questions are concerned which my learned friend has discussed in detail, 1 do not propose to add anytlung to his argument. We have, of cours( , discussed the mattei' very nnich together, and what he has said embodies, I think, all we could find which we desire to represent to your Lordships ujiph these different (juestions. There is only one of them, therefore, and that a \erv short one, upon which it will be necessary, 1 think, to make 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 ur wrong. Now, your Lordship will find at page 142* that when this ([uestioii was first raised as between the Dominion and the Province of Ontario, the Dominion adopted the view that the boundaries of Ontario were the due north line and the height of land.f * The Jeapatch appearing at that place does not shew the fact mentioned in the text; that is shewn In- the docimients at pp. 329-331. tin 1871, as the remilt of neKotiatioas originating with Ontario, Commissioners ware appointed on part of the Dominion and Province rebpeotively, "to determine the boundary line between tlip Province of Ontario and the North-Weat Territories." The Province had proponed that joint instnic tions sliould be prepared for their guidance, and asked that a draft of the instructions proposed to be givfa *)y the Dominion should be submitted for the consideration of the Provincial (Joverument. On a report nf the Minister of Justice, Sir John A. Maodonald, approved by (:»rder in Council of T2th March, 1872. aci'iiy of the draft instructions was transmitted accorditiKly, a« follow.i :- Draft of Instructions tf> bo given to the Commissioner appointed to act on behalf '•( the I)(i minion of Canada in the survey and locatiun of t)ie boundary line between the North West Territories and the Province if t 'ntario, in conjunction with a Commissioner to !)»• appointed by the Government of Ontario " The boundary in ipieation is clearly identical with the limit!- of the Province of '.Quebec, accordini; I' llie 14th Geo. III., cap. S3, known as the ' Quebec Act,' and is described in the said Act as follows, tlwt is to say : Having set forth the westerly portion ot tlie southern boundary of the Province as extendiui? along the River Ohio ' westward to the banks of tlie JSIississippi,' the description continues from thence {i.e., the junction of the two rivers) ' and nort'-iward to the n mtliern boundary of the territory granle 1 to the Merchants Adventurers of Englind trading to HudBons Bay.' " "Having determined the iireoise longitude west of Greenwich of the estremo point of land marking the junction of the north and east banks respecti- ely of the said rivers, you will proceed to ascertain and define the corresponding point of longitude of the intsrsection i>f the meridian passing through the said junction with the internation.al boundary between Canada and tho United fltate.s. Looking, howmer. at the tr.iciug enclosed, marked A, intended to illustrate tiiess instr.ictions, it is evident such meridian wouli! intersect the international boundary in Lake i-juperior. Presuming this to be the case, yon will determine and locate the said meridian, the same being the westerly portion of the boundary in ([iier-tiin, at such a point on the northerly shore ■ •!,„ paij lake as may be nearest to tlie said international bonn^iarT, and from thence survey a line due s^ o deep water, marking the same upon and acrosn any and ;ill points or islands which may intervciu' : aid from the point on the main shore, found as aforesaid, draw and mark a line due north to the southern boundary of the Hudson's Bay 'Ferritoty before uientinnid, This will complete the survey of tlie westerly boundary line sought to be established. "You will then proceed to irare out, survey and mark, eastwiirdly, the aforementii oed 'sunthitn boundary of the territory granted to the .Merchants Adventurers of England trading to Hudson's i$uy. ' "This is well oiiderstooit to Ire tho height of land livlding the waters which How into Hudson'.< li.ty from those emptying into the valley of the great lakes, and forming the northern boundary of <)ii:,arii. : and the same is to be traced and surveyed, following its various windings, till you arrive at the angle tli.Teiii between the Provinces of Ontario and i^uehec, aw the latter is at jirese'it bounded ; having acconioiishM which, the service will have bein ecmipletud." ♦ • » " ( Joim App., 330 ; Sess. Papers, Out., l>ii.;. No. 44, p lii I Here was the first othciai statement of the claim ot the Doii.'iiiion in regard to (he o oundary, u view adopted also subsenuently by Manitoba, and contended for by both to the end. Uy an Order iu Cmiiifil S38 OUNDAUY : THE CASE OK l,E JiEINHARD, 1818. le text; that is sbewii liy Caiui.laWillh/remern"ored^^^ '^' '^''''''''' ^^' '^'PP^'' an.l Lower Mr. Robinson.— Oil, yes what may he ..^o.'tlv .le.scribod s th T '"'/'^ H"""'^^"«« of <>"tario .■oristruction of tbe Quebec Act ^ ' '"'' *""' '^^^^S'^th'^"- «P»" 1:lie The LoRj)CiiANC'Er.r.oR.— Yos in, therefore to do blul^^X^I.'^he li) S ^r^^Tf * ^^'^ 'T^-"'^^''" in evidence, and as an. now knr.wn u vn r iflu- '^^''^'^ ^^^^^ "i'" i"'^' adnussible that Act. Now, it is al ) Th fa t tl u'.ril!;T.^ ^^!' '^^''''' ^ ?","«tniction n])on to ,io is to settle the c^^^t^^ti::;'^^'^: ^o" ^:^:^'^^ '' '^ ^'-rr^ to say, what is the meanin.v of the words '3\ffT '" f^'f '^ "l^P J that is boundary of the" Hudson's B-iv t rHf !. u tk ^ ^*'''t''^^ard to the southern aiWgettinf.tother o Inidn^^^^^^^^^^^ boundaries go along the Ohio or wrong, has never been judicially .,uestione.l. still lesVo3Ld r '^ ^ thmk your Lordships will find that the Mo7.i o« Vl- ) ^'°"^"\'^^'^- ' do not Mr. Scoble, referred .loes in n v.v .i' ' \? ?' ""'u''^'' "'^ ^*'^"^^"' *'»'»'"d. im'r.,oie;niuo«t of Ontario hIiouIcI Im :.lly rested until th« initiafon o1 the l^.iii^g'; ^'hieh U^^^ ^^^ «" ">e qu.Hion praotf the h,a,„teH, Or, nr« ... Councii. and IV.chvtrmlioD?, f ifq Ke e^^^Z^ 17:4.1«,S5. „„a AwM.(- ami tl„.f.u>»< at the teLsi't;S- "' ^'-^-i ="-. S:„.,?r-sl:^ „, ,,„„„ id "K at the iKi by the n'he easH refwrrrtd to wa^ tha,t of (; .iiollv r. Woolrich tripd in 1««7 l„ fi,» a • ^, inwh.eh a wa., judicially decided ^that the region., of th« KwTh^^W^^^^^^ "f Q- l-ec. *nt uiatter. (.Joint Afp., (!91,, '"'' therefore bt,' said to have no beanu^ „„„„ the "a".' mi) AKtiUMENT or MK ROBINSON, (^C, re QUESTION OF BOUNDAUV : Lord AiiEKDAiiK. — Wa- it settled by a court competent to settle il ? Mr. Robinson. — It was settled by a court which had a ri,i,du, just a.s dvcry court has an inciuental rii^ht, U> try .such que.'^tion. 'I'he Lord Cuanoei.lok. — Was it settled by acqaittiiif^ the accused ' Mr. K'iHlNsoN.--No, it was settled by ciHivictinLj him. Sir Baknes Peacock. — The petition had not ,i;ot to tli« Crown witlun tliici years, and then they say, considtrini; the time ho ha.s been kept in prison, ai'i! I'emcnibering all the circumstances, we relea.so him. The Loud CHANt;K].i,oK.— Wa.s it an Tpper Canada or Lower Canada court ' Mr. RiiHiNSON. — A Lo\ver Canada court. The IjORD Chanckllor. — What is the dale ? Mr. Robinson.— 1818. He was tried under the statute. 8ir BAiiNES Peacock. — Under the Act 48 Geo. Ill, chai)ter 188. I caniu;i very \^ell undm'stand it. The Comruissioners were to try whether tlie olloiii'i was conunitted out of the boundaries ot Uj.>per or Lower Canada, or in the te;:i. tories oi' either. Lord Aberdake. — Tlierefcu-e it was they convicted, I suppose. Is that at what is called the Dalles < Mr. Robinson. — Yes Sir Barneh Peacock. — I think the Chief Justice treated the boundary of Lower Caiiada a.s the boundary of U})per Canada. You will see what he .say-;. He says : "A line drawn due north from the head of Luke Teiniscainin;; til! it strikes the boundary line of Hudson's Bay " is the boundary of Upper Caiuula Lord Ai'.EKUAHK — The eastern IxMuidary of L'^pper Canada. The LdHD Chasci-U-LOU. — Where is the judj;fment I Sir Barnes Peacock — At page 67!> the Chief Justice says this. I think he makes a misttike. He was trying whether it was committed either in UpptM- Canada or Lower Canada. This was under a commission issued by Quebec. That was Lower Canada Mr. RoiUNSON.- If I understand and recollect the facts of that case rifil.tly, the iurisdJction of that court to try only arose provided the crime was committed out of the Province. Sir Robert Collier. — Ye.'^, in Indian teriitory. The Chief Justice says he is accu.sed of committing a crime in Indiiiu territory. Therefore, if he committed it in Canadian territory, I suppose he could not have been tried by that imiict- nient. Mr. Robinson, — That was it, my IjOdI. Tlie first words of the Act .sliow quite plainly what its purpose is (pa;.;*' ^OG) : " Whereas crimes and otfences havo been committed in the Indian territories, ami other parts of America, not within the liinits of the Provinces of Lower or Upper ('anadii, or either of them," It was to try such cases that jurisdiction wn.s <,dven by this statute to this com* in Lower (Canada. It wa-, therefore a condition precedent to the jurisdictioii tliat they should say the place where this murder was committed was outside the limits of L'pper Canada, Sir Montague Smith. — And I .suppose there was an objection to the juris- diction Mr. Robinson. — Ves, there was an objection to the jurisdiction, which tliey then discussed at lenj.;th. The Lord Chan>;ei.i,or.— The Chief Justice says, at line U) : " a line drawn due nurth from tho liead of Lake Temiscaming till it strikes the boundary line' -- tliuf is the eastern l>oundary. Mr. RoBiN.soN. — Yes, that is th< eastern boimdary. ' 340 :)UNDAUV: THIC CASE OK VE liEIN'HAUD, 1818. wer Canada court ippose. Is that at not c„,u„,itt,.l witl,i„ U,„ t, „E'ii,'l,i7,t .,ai,l';; i ,::^"' '" "■•"■ """"""' Mr. Rr)i!lNso\. — YiM do n:f:ii;'Tu'„"ratr;''-''''' """ "^ "™' '">"■' *« .-'■»""■'• s-p.- - Ml-. UOBINSON. -Thon the decision will he tlw other way. The LoilD OmNCELr.oi!.~Of e„„,.se, we sh.ll give ""■'' ^'VV^^J" "f"'" them.selve, to decide Council. In this dei.en.lent pr./v n4 n« "rthelts we have been'co.n^ ' .'" ^;"^' ''' *" S''" ^"'^ '""^ ^i-s ;|U".tiom not from any wish mi our own part but i^cau.elt wa, hrooJh t 7^ *" '^"''^' '^"''''"" "I"'" '^e ingit. The power of decidiui? tinallv is .U ho , e H.p m,..^f,l, m . ^ l^^^^ ^T*"/" "".' """^ t*""""^ «'*» "<> •^'■a'!- »nd in deciding the limits o'¥A)''nnHa h^^^^^^ "'''™ ^^f"™ '''^ King and his Council, have done ri(fht or wro„K. As ,', H..y .-- .M^ences ha ma™ ? 7 '''''"''' """■ '^*^'"'"" ''=<=""linK as we m.tled, they w,ll bo obviatod bv • h-. s,u,e: ^menW. Im^^^^^ IT I?'" '""■"'•■•'"•. » ">■'«■ «" have com- the Trial, pp. mi, CA'h?.} And ,n the , t'.^ o McI e in Ir^i " *'"' '!"-«'•""' '" referred.-' ( Report of under the same cmumission, the me C! i.f Justice lavin J down Z T"""":'^' "'""■^'^ f ^ '"' ' '" R^>*n''ard, ni his charge : " This question ^v 1 ' he -^,V,mi;l" , ^f V f * mgdown the bn'mtlary as in the other case, adds His Majesty, with the Ls'^ anoe c> - V Zei th»r\L'' k'^T ■'' Hi.s Maje.tv in Council, as it is only by mately and permanently Tefimd If u It L^teu!""''"'^? '" '""''^ "^ '^''^ territories can be legiti^ as.de by the competent amhrity, any inc/.nver ence wl eh m^v '*''"?.'v"'' '^'^'^' '^^"'^'""- ■^'"'"i<' b'' «^'t »s.^.iredly b<, obviated," et. i J,,"Ji„ T' J""" '^•■l'»''f"'Bnf \Ilj.} ; that Ue I'ardon " (//,. fi84) ; that, anyway, the Son t-thrOo,?rtw^^^^ Pl'^ased tc Rrant to the prisoner a free I alies, was situote " in the Indian TeSorv" an fbl^.f,' V' '"^.T'' ^}'"*' ""' "''«='" "f the murder, the C'onipany's territory. l«rritory, and therefore not w.th.n the bounds of the Hudson's Bay 341 M AUGUMENT OF MK. JIOBINSON, l,J.C,, >'«i (,>L KSTION OF ItOUNDAUY : boundiiry depuntlL'd entirely upon the fMnistructioii of the Quebec Act,* of coui^r it was a most esf^t'iitial eleun'iit in tlioir cousideratiou, tliat that t^tatutti had hcci! c"jn.stru(,'^'(! tiioutrht it was so phiin a construction that lie need not ;,'0 any further than the language of the Act itself. He .sai'l " northward " means due north, and he has a discussion with a surveyor who takes a dirt'ei'ent view. Mr. RoiiiNsoN. — Yes. Sir MoNTACiUE Smith. — But of course the judge had to construe the Act, and that was his construction. Mr. KoniNSON. — Yes, that was th« construction. Sir MoNTAOi'E S.MITH. — He does not give any reason for it, other than that the words mean it. Mr. RoniNsox. — 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 liis judgment. Sir Montague Smith. — That was the whole amount of it ? Of course you have his authority in your favour. Mr. Robinson. — Yes. 1 can say nothing more. 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, anJ although I cannot pretend to say there was more, when moi'e does not appear, I think it very likely. S?r Montague Smith. — This is very fully set out. It seems to be the fixed view from the beginning thnt '■ 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 a.s a general rule " northward " always means due north, but because " northward "as found there, taken together with the context, should be construed to mean due north. The LoKl) Chancellor.— Whether or not the words ought to be construed in any other way than the way in which the 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 Aberdaue. — And that one of those extrinsic facts was the Act of 1774,-f- which was to provid^! a proper method for the administration of civil government / Mr. Ro BINSON. — Unquestionably. * See ante, p. 339, note *. + Printed ante, p. 34, note. 342 ;")UNDAUY ; THE (^I;EBEC AfT, J774-C()N,STarfTIOX. -For tliis purpos,. it was just as nccessarv to ly Carleton liet'on ilccided view tlat strue the Act, and ms to be the tixed SO up to the Lord AnEE{|)ARE. Mississippi f the Miii;";;::s?;^:r;;s:i';-^^;t:."'" "■■■" ""'-"«" "••' "- -^ Mr. HomSSON.— No I luw nr,.ii,... It 1 ,1 settlements were taken h. hv • d . '; |.^;' '''T 'r'" ""'■''"''^"^' "^ '^^^' ""Portant Lord Ai,E.,nAHE:-Ev on clow ro a t , " r ^ '■"?'";' -' ^'"•^''^'^ ^''•'" t'''^*' Able way northward ^ ^ ' •'""'=^'"" '^^ ^'^•-' <^'»» *'«'' '^ consider- Mr. Robinson.— Fes I suppose „,y a„ty „„„ ist'eSi™ ' , ' , ':,l,™ [ .r'™,ai ',"' »""•"-'»• ' ■"' .seems to me that perhaps the fairest wn,. + . positiun was correct. It to take the enactimr 3 to seo wl,T J^ ^"■'^'"' ''" ^^'^ "^ ^'^^^ '^^''^ ^"^ ^-^^t fairly mean, and tirenC^ee Xt^^nH ' .^"^"t^^^: P^'rt taken i>y itself will in connection witl tTe suno„miinIX^^^^^^ " ""^'''^"r ^" ^'^« P'-^^^^'^' ^^^ken in evidence to effect thatTonstSon '"'''' ""^'"'^ '"''' P'^^^''^^' -^l™i««ible AppelTx Ih'^v cfo''fir!r t?ti;^' "*' 'l'-' '"T'f-" P"''^ ^'''' ^' P^g« 363 of the Joint Mr KomNs^,?Kl ""•'•"'' " ""' ,'1'"'» '■> the junction of the two rivers hut |i^p,r^^f/i -; .^rto^ire rk' :r;LVSi:^;;r.^' °^ *--^^ p.ace:';:|™';,:;;Tp2tTS,^r;^^ «» „„tice t,.*^ ,, .ver., Mr RoB.NSON-.-No, my f^rd ; that h important' river^;llr;r„7rV'hf„f tr" ""'"" "'°^ "'■'; "'°''«"-" "'• "^"^ ""-er the ■ jSi^'rir ?;4e fe? rof'-i.ri?i;,t'ts-Lt "- ''^ -'^ "-■ boundary ''''""™ '^"''" -■^"'"' '=''°'"™<='ion i«"ore, the height ot lam] as a (, p. 34, note. th« MtltipTor'rrw^rx^^^^^^^ ^^e IlIinoiB (with one exception,, whether on tSeepojr, ]>. 344, tote *. 34JJ AliriUMENT OV Mil. UOBINSON, Q.C, re t^UK.STIO.V OK HOUNDARV Mr. RoHiNsox. — No; because we ran.st follow tln' diit- north liin! until \\i i;et to the lieijijlit of land. The due north lino is inurki'd on the map and (li,. t'H'ect of it is very plain to be seen there. At all events, this course goes alonj,' the bank of the Ohio " westward, to tlir banks of the .Mississippi, and T)orthward to the southern lioundary of the territurv granted to tlie .Merchants Adventurers" of the Hudson's ]:!ay Company. I can- not say myself M-hat particular effect ought to l>e attriliuted to the use of the term " banks" instead of " bank," nor can T say whether it whs intended to hnv( any effect or not. We do not claim both lianks, as your Lordships know, and it is f|uite within the bounds of possibility that it is a misprint, liut J am not pie- pared to say that it i^ .so in any way, because I do not know. x\ll I say i.s I caniint myself found any djtinite ar^ninieiit upi>n it eith(;r pro or con.* If your Lonl .ships were aware — as wo are unfortunately- how many volumes have Ihth published upon this subject, and how very .small a part of thr literature iui.j discussions upon thi.s subject is the enormous mass of evidence we have placed before you, yuu would see that it is more difficult than in an ordinary case to endeavour to extract what is relevant. Our own impression, repn'senting the Dominion, is, that a vast ma.ss 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 tlie part of Ontariof was thought to l>e relevant oi right to be brought before your Lordships ; and what has beea 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 i)os8il)le for mo to put it before you, as far us relates to the details of these matters, and therefore I am not going to repeat oue 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 duo 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 tlie north-west ; but I do not think there can be any reasonable doubt as to what a 8U]'veA or would have done, if, the day after the Act was passed, it had be n placed in his hands, and he had lieen told to draw the line that that Act conic!n- plates. He would simply have jilaced himself at the junction of those rivers, on whichever bank it might be, and he would have said— Where is Hud.son's Bay * The odntention of Ontario resi)ecting thJB point— that the word " northward " in the Act Imd reference to the extension iu that direction, along the river to its soiure, of the whole tract of territory dealt with, and that therefore "bankH" might beuaed with propriety— is noticed, ante, p. ItMi, notet; to which may here be addfd another reajioii tor the use of the plural term "bankn," viz., that the treaty of 17t)3 provideil for the free navigation of the MisaiBsippi, in these termw : " Provided that the navigation of the MicsisHippi shall be eipially free as well to the subjects of Great Britain as to those of France, in ita whole breadth and length, from its sourue to the neii," etc., {ante, p, 3(!, nottO. Great Britain had, thus, in the stream, a title or intere.ft jointly with France, which extended to the far biak, and in transferring to the Province of ',luebec the territory which was within its newly settled limits, the use of tlie plural term "banks" seemed therefore necessary in so concise a description. If this be tilcen to be a true explan.ition of the use of the term, then every argument in support of the "duo north " theory falls to the ground, fur the absurdity of two separate and distinct due north lines is presented to u»-one stai-ting from the eastern, the other from the western, bank of the Mississippi. f Not on the part of Ontari ) jilone, but on the part of Manitoba al.so, ,and of the Dominion. It wan a Joint Appendix, agreed to as mvh not only liy each of the Provinces but .ilso by the IJomiuion. whose agents took an active interest in its arningement, and in oNoIuding Niioh papers (and published annotations of papers) as were rjhjection.i.ble in their view. Such riocninents J^** were mo excluded from the -Ji'itit A.'>"endiK. wei**? put m in the Keimratt ai)i'endicea of i intiirio and Manitoba respectively. Hut the dominion h»wh..ro-to the north, and ho wouM r o s ' ik:'':'''''*;/''^ f-^'T' ^"'^'-''^ ^'"^' t" ^»"^t ^'^"'torv. That, r tm, surveyois taking tvy.. .h ierout vnnvs upon sucli a .sulm-ct as that lo<.kin!M ti,?wri''~fi" / ?"/'"'"; ""^'^^^tancl a person not heing a surveyor looKin;,' at the whole nf thu tacts to^^ethiT. » J Mr iJoiiissuv,— (^),]ite ,sn. statin rH^^T ' ^^'\ ^"'.^■'^P'•'^P-iti.,n I have stated. And I am not a'd wit u ' n^: /'" "'' '"^'''^M^' ^^'y ^^''"^''-' '"^^*^'' f «'^y if ^»''^t ^t.,od ahnie. vevor w . /"^ r ^^^T l'"? ''^"r?f "^'?''^ is no MUestion of what a sur- mt tocTr wa ine V . t. ' ""• "^' '*^ '^1'^* .s sin.pl. us if yonr Lordship told I It to draw a 1 ne ir onj the point wliere I stand, northwarookca,se I'liat 1 say tlien would be the first meaning oi tlie It ^ stance 'wSNTv''';'"" -S >« there anything i„ the statute, and in the circum- ?Sir iH , t ;■''. T^'!: " ^T '^'"'I'^'^ip'^ ^^ttention, to shew that con- u hoi tvT I m *" ''/"P^"' • -^ •^' '^"'■•^^' '^''''' '' »« ^^a»t »f American antho nty, at all events, tor the proposition wliich is the only proposition of law r:1s nothir,?: r''"' : northwanl,;; taken by itself. iLLis^he noJth I m he demi of M^ .t'' "''^C^^^'^that .hre,.tion. I find in the case of Jackson, 1 wn- • \.i ^^'^' ""^ ''• ^*'^''-''* -^ '"^'^ne s Reports, pa^^e 29,^) a case decided ui mo m the court o which the late Chancellir K^r t was then ^ief iuTtice a man whose naine stands in that country as a very high authority ' Ihe LoKi) Chancellok.— And here also Ameuoa. He vvas the cliiet justice of the court, and Thompson justice in laying down the law there, as to the effect of a patent granted in 1088 conve ° " :S>rtli3Tut;ird*^' 1' ^"^:i' ''''i^' ^'^^ ^^^^^'^'^ P^'-^^- -d the courraie stru { on tha; whlnT ' ^'^'^^^'^l""^! westward," and it is a settled rule of con- and west. ''' ""'' ^ '" ^'"'^ '""'^ '''^^ '^"^' "^'•'*^' ^•^"<^>'' ^^^ Sir Montague 8mTH.-What are the precise words of the patent ? uafcnt ealfe 1 it?VT? uMp"^f'^'/''^^"^■? ^^^ *he case were these. There was a patent called the Catskill patent, which conveyed five great plains by name onn i Th'"'^- f ^^"«^"'"/-' ^^.mnng th. same, extending l,r foui^ Engh'^i miles stwai i 'tW Pp"^"?T'*^'^^ " t'^ '^''y ?-• E"Sl''^h miU; from the «lid plain tas vvaid , tour Enghsl, miles from the said plain northward ; four from the said plain westward ; and four from the sairl j^lain southward! J he Loud (.HANcELUuc-Were the plains rectanguJar blr.cks ^ h M n ,n?,n 1 '' T '"'' ''""''^ '^^''^''^^ '"'^"^^ '"^^ ^^^^^^^ northward would not be in le ai r will? T""' '" V'T f '^'^^- ^'•^'^""'^ ''^'^''"^-^ '^ '^" *" y"^^" I-'-'^^hips "adon ed ttl ^n ^T'^'^^P^t'^ '^" ^»t''"nty wiiere tlie same proposition )a e nr\:i,e. . /r' ' 'T^!. '" "'" ^'^^"'''^' "*■ ^^'^'^«^ "• Hogden, 1 Johnson, htf the .nn. tl'«,«f;"t- chief justice preside.! over the court. There it is said it et!,^nntf ^"""^ *'""'' ^"^^'\ ""''•'^ "'"''^ northerly." The word " northerly - coinse thence eight miles more northerly, tiiere beinirno object to control if ame ol er^l Z ■ ^'"'- ' '^"i^^ '^''' ^'^ °"'-' ■•'• ^^-^'^t^'^^- ^^^'^ '^^ whicirthe same general doctriae is expressed. S4.5 AROUMKNT OF MH. HOHl.N.SON, (.>.r., re. gUESTIdN OF JJOUNDARV Thcvo is a set ..f oasoa, in Kpntucky cliiclly, wltlcli, T tMi.k, furnish »i \-iv\ j?(M)(.l iihistratioii of a iliHi-K'nt rule. Tln-rc was a rustom in i iirly flays \\\ tlmi State, appart'iitly "if innkiii:,' an i-titry dI' a claim, fliat is to say ent'Tini; ynm claim tor the jMo-itnptitm of certain territory, ami clainrs were tntereil inrcertai'' territory uLsoniariy milis alonijacMTok, ami then sayin<^ " northwur'! for quantity There, it was lieMtlmt the term northward must yieM to the r\il<' wl.'ich r^quirel .such hlocks to Im- rcetangiilar. They said " tlie term northward " is there ii.v d simply to decide the side of the creek from which the lino runs; lieeanse. if tl.. creek i-: runninjf east and west and yoii claim four miles alony the crff^k, ymi must sh''W wlx'ther you «;o northward or southward for quantity, b«cauM' it i- necessary to sliew wldch side ot tiie creek the land is !yin<,' uj^on, but they said that does not mean that you must go (hie north, because there is another --ulf. *'hich runs in conHiet with that, whicli says that the hh)cks are to be rectani; Im that is to say, that the blocks are to run at right angh's to the stream upon wiiici; tliey lie. I will refer your Lord.ship to those cases, and to one or two more casts laying down the general rule for which I have contended— ^'ac^vi/i. v. Dean, 115 Ma,ssachusetts, page 577 ; and Hov.mrd v. The Colh'ije of the Holy f'-om, lu; Massaclmsetts, page 117: that case says " soutlierly is not necessarily du south. ' There, there were deKaite boundaries, and it was not construed to mean due. south. Other cases to whicli I would refer your Lordship are, Seanmn v. Hogohvom, 21 Barber, page 398; Craig v. JIawkin.% 1 Bill, page 54'; and Calk v. Sterliv;/, in the same volume, at page 122. It is said, however, M it looking at this description, taking it as a whole, and taking it in connection wi'/; all the circumstancea, " northward " hero shouM be construed "along the h.«. t >?r banks of the Mississippi." Now the first thin- to be remarked upon 'hi;--, ."i' y ^ir Lordships pointed out, and as it is made the basis of a great many of tli-: o!>inions which have been expressed upon this, is this : When the Legislature wi^'ud to say that they went along the banks of a river they said so. In the very preceding sentence they say that the line shall he " 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 argun)ent as applied to the construction of wills, that when you find an expres.-ion familiar to the person writing, and when you find that that expression, although appropriate if the contention is such as is conterided for, is omitted afterwards, it is a reasonable aigument at all events that it was not intended to u.se it. xU all events, just in the same line they do use the words "along the bank of the said river |that is the Ohio] westward," and there they furnish a good illustration of what the word " westward " must mean, becau.se nobody would contend that it means due west, where the bank of the Ohio went otherwise than due west. Then, in several places they speak also of going along the banks of a lake, shewing that when they desired to go along the bank, either of a lake 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. We have now to consider what were the circumstances under which this Act was passed. So far as one can judge, I should think it probable t.hat_ Mitchell's map was the one which was then referred to. I say that, because it is a map 346 OUNDAliy ; Tffl tlV.l-, ACT. 1774~C.R. ,;mstaN('Ks CONM^ctU) WITf ,TS PASHAUE. it out also, that in llo Loui. ( iANvi.;u,o«.--VVasthar the l,u.t ma,, fi r.Ro„N,s..v._I say nothing, more than thi.s .tutiife-a.nl we know that th«s( .luto ^VH^ t},e M.l.i, consulted the Lest n.nps th.U they oould, that wore hoy knew ' i.ho'.e who drew the . i^'ioi.l iJoal (iT debate— - itenco at the time. I cnniiot say any more tl an thnf i\ , V ? " ^'^t''»i!o at the time. I ooiuui...s^of tie Xtu nnoMn./the in! '".T ;*"^"''"''" "' ",'1^'"^" "''^^ ^'^'''^ have ' a drawn without e£en^tru::;;rH'''r'"'*r,^'"V' '"i'' "'^'^''^ faras .,.e know.s. Mitchell's mar'as h h ■ t Now i 'tlf^H V" '""'"^' 'T'' '^ to, the tirst observation whien stnkes s is f .f H ' ■^'''^'"'' ' '* '"I'P "^ '•«f«'-"-'l tiru unknown. 1, is staCl n ite'L r .. '•r''''" "',"'" ^^'^^'^^iPPi ^^'as in the ,ame man tha^ 1 e'! . . '"'''! '^^' '^ '^'^^ unknown, It i,s stated think, lo SS 106 aU on h 717'^VT' '' '"J" '^^"^^ ''^^'^"''« '''> *"d. I west than mrrTwald ; "" M'-^sMpp, by .Mitchell s map. went more north- aocordim"'fo Miter?! ''n '" "^T ^['^'^"''^'^"'^ i" t»'i'^ case,, that it would not go tmtorv^- ,fnn, n'«P-that ,t was .supposed to be then Hudson's fify iHMiiiil Mitcl.drB. ,f itwa,atallbef^,r.Zr ^dea frnnth^ '^'"7 would not be restrictid't" Ontario A,.,.enclix-, which co.nisel has. verlXd No l.H;^Hl,f °''^^^l'», '« evidence before the Roard in the date fr,.in 1 743 to 1778, shew the srurcHH of fh- \1 ;!• ""r*" "" '^'^^^ ""^P« ""''•'' 'inscribed, runnini? in Lake, .fth. Woods.' WZnte^ TintV^n For th^n^rt V't^ somewhere to tl.e southward of ^he -lUired by the Lords' Committee, for .v\ thev sen, .^^ ! h , P the de.wiptum a map wan scarcely re- i-lan,lsn,Kicou.,trieH . . .-nendnJ^l^u^^^^^^^ '^" 'he Kaid territories, "ftl.^ .M.s,siH,ippi, and northward to he^ sou 'K '^'""- ^^«"^''^^' ""^^^ '^'"'''B Company. The Couiraonn altered the firri.or i . f h*. 7.. ■ I- '".''"'"•y grante.l to the - Hudson'H Bay boundary by metea and boundH, bu lel^t 7r ma .V^i , ''P","!'' ''^' "*'"•."« ""^ " """ f'"" "'e southerly c»k.n by Ontario on thi. point, U^aJ^lVp'^is'^^^Xlrii^ri'oiet' ''' "' ''' "°""' ""^ ''' ''"" ''"""°° no dJ/nul.Z'rhe '^^ilern botary of rhf h"j!o^? liri^''^' '"' '*? T""''' ^'^ * l"^'">"-y- ""'l '»-«- ^'-''? the Fr..nch settlements of the Xo^l^WW witi bwi '*f,^';"r>any's territory, .and a noestionof bringinf answer the purpose. ' ''^'""" "" '^''''' '''« description in the Act would sufficiently 347 IMAGE EVALUATION TEST TARGET (MT-S) /. // ^ A ^ {< ^ ,« 1.0 I.I 11.25 u DA Sf L£ 12.0 Z5 2.2 U 11.6 HiotQgraphic Sciences Corporation ^ \\ ^ ' y far the nio.st im])ortant point is — does the preaiii'Ie shew that in order to fultil the int.-tition of the Aet, it was necessary to gi) n\nu^ the ^Iississippi ? It is said to he so, because ir» tlie iireaniMe of the stntuti' il is rt'cited, that ' l>y the arrangements made hy the .said iJoyal I'roclaiiiati.'in a very large extent of countiy, within which tiie're wt^re severaf colonies ami .vitlt- ments of the subjects of P' ranee, who claimed to remain therein under the fuilli of the said Treaty, was left without any provision being madi' for the adniinis. tration of civil government therein ; " and it is .said, and I think it i.s said faiih, that the intention of this statute was to put an end to that ditliculty. I .lo not think that that can be fairly denied, but we have now to see what those seti'^'- ments were. In the tirst place, your Lordships will remember that bv the pro- clamation of October, )7(J.S, ilie Province of t,)uebec had been fornied with a boumlary very, very far to the eastward of that given by the (Quebec Act. That boumlary I tliink, speaking generally, come.s down to a line drawn from tlio easterly shore of Lake Nipi.ssing to nearly the meridian of Prescott on the River St. LayvriMiee. It is marked on several maps, and your Lord.ships will se^ tlmt between that limit and the due north line, most of the important Mjttlements beyond all .{notion which were left and inhabited by the Frendi were to be found. ' The Lord Chanckllor.— T1 'u-e were a good many forts. [///,s LnvlsMj, read out the 'n it. o„„ i, N-„. ,w of „„ N,;,'. ' r jj«;^ ' "''"'' '""•" ""■"» ■«'"' "si" tar as I can tortn an oninion to nvn-l- tU. i; r ' "' • '^ ^eenis, as .n.l I ,,«.,.,. t«,a,ln l,v l„i" :;:X^\lt '"utul^^- "'""'"" "W""' ^■«""-'» Ml-. JVIOHAT. -Yes, lay Lord Nlr' M'cA.!Tnt''7 h'" ['•^ M,,McCarl,.,^ -..])o vou agree ' tL ^irs^^iri^The^! -r df.,1:;- r:r :;s.Yr t • eaiHing. ">niou goe.s tniou<;h Lake Temis- bai ---- 11 ;^::^!'A'!^ ::J^:^ -4' to xew souti. wvies. Illinois country, I am not able to di'^orilio them PirticiihrrT^ ~~R^~i" • T lH«t-were, u. 17,52, CiMkaikia., Kort .le cTirVrH' V, In^'. A <\ ''I' (.''vp-^ a list of «„meof them- " Thn inlet 0. the convoys of Lo„i.,a„„ a« a'r , e rCan fdt ' d '%'' o^ "^ '' i^ tl -. ,*; ""rd Drtrnit, and tt.at of the Kr..U..„i ,,^rt of thnia.a^e „at1", » "' AO^'//'^ "■'^"^'' »"'» ''"•""- "f the pZ and St. J(,H,.|-h, UM sot nm m the tVvt, he iiif(irnir us that tLr« •■ ^* f'' ''"Sf '" '■'>« «'ttloinfnt« at U..troit Ch.en ( H'ort St, Nicolas), wlii,.|, h,.d been a phioeof eoMH ller h iH^ 'I'l^rter; another bewn« Prairi , d^ «m) baUo remaiM.d oontinuou.ly to oar oH^dav. o i lieV ^tl^^^^^^^ '? "'' '™« "^ ^"'"''»« ^""ot liiif, and had a very lar.,'e population I'ownuU ...iva ,.t Vi L i' ' P r^ ' nan.ed wero west of the due ,„ir*h lin..Htle,^ent.a^^,,,vl\^.Vm,,«,dthev^^ ;„1y\' " Mo^t of timsa f " t "| a ^. tmljM'.o.inm*ndmKP>-.itionnftl,MlIi,Mns thea^t'lm^^^^^ '*"'""*" ^'f "U thin, it would Zm of -u d «ov.n,meut." ,Ud ,hc .epre.e. J^,t ms ,f ^ ;' ^h. rfaie»'"r'o''"A '""'"^ *" 1"^' '"" * ^nmrate form l;Hr;a„t f.^ctor* in the pron,„ti„i. of the Ac o' 1774 ■" e hv,! *'" ^'.T -"''honde., were no im n ti.- XI...U.P.. (se. „,., ,. ,„r, note' . and u^'t^d ttuo!u;::":r:;ln "1, J'";vi;^';n,';'/"" '■"" "^ .i..:!::.^^:;;:^.;!'"^ -'-- "-' '"^^ -- - ^'— -^ k.- i„ ttaniri.: u::iL,,,,„„^, + !Je Bougi-.iir.ille'-, 340 AROtTMEVT OF MR. ROIUNSON, Q.C , r«' QUriTION OF noUNDARY : Tlic r/>RO CiiANCKi.i.oi?. — Now South Wales loines to the Albany. Lonl Ahkrdauk— Who whh Hu«li (Jn>y f Mr. MoWAT. — Hf wi)s a n^sidont in the country for some years, a»i'l hu intellifieiit iiive.sti|^'iitor of it-« laws ami its coiiUtioroi^ and thoir incidents, wlioi.iit hi.s rotlectic lis upon th.'ni in this r'aniiiiar form, hut otherwise wo havr noliiinaue — lie was an authorized agent of Canada ? Mr. MowAT. — No, my Lord, of Ontario. Lord AnEKUAKK. — Only of Ontario ? Mr. McC'authv. — Yes; and he is one of the coun,selfor Ontario here pre.sont. The Lord Chancelloh. — He is the author of the report, and the map that accompanied it ? Mr. McCarthy. — I think the map i.s ouly one of the old maps that are i-eferred to Lord AJiKHDAHE. — What was the date of that report? Mr. McCiAKTHY. — Since this dispute and in consecjuence of it. Mr. RoHiN.soN. — It was prepared for the arl)itration. Perhap.s, my Lord^, I may be allowed to say, with reference to maps published beforf ifederation. that if your Lordships desire, no doubt any number of them •■ be bruiii^ht from Canada, and that a joint cable could be arranged between u.n .-o as to have them sent over at once. The Lord Chanckllor — That would be a very inconvenient thing to be done, to enable one to come to a conclusion, because if mai)s are sent t'roin Canada, then both sides must \n:. heard upon the maps, unless it i*; n case of extreine necessity. What of course would be of the greatest valiu', if it were aeees^-ibh;, would b(> some map made «)ut by public authoiity.* That map shews that at a certain date, 1809 or LSlO, there were neoplo who eonsidei-ed the Albany Taver to be tlie bouiidary of Canada, righlly or wrongly, whieh coincides, as it happens, with the Award. That is the impres- sion that map makes, but then it is not a jnap j»ublished by any authority. It is merely n pri\'uft' writer's map which e.xpresses what he understands to' be the fact. Of course a map made u'lder the authority of the Government wouM lip of great use. Mr. RolUXSON. — I may say with reference to maps that we do not attach the importance to them that the otht^r side have done. Our impression from the maps is simply this, that (dl they can shew is the -tate of geographical know- ledije at that time. ■* Such a in»i). Unucbetle'a Map of tlie Province? of Upper and Lower Canada, published in ISlu, was procured from the liritinh Muh^iiin at the iii.'itanoe of Ontario, and produced to their Lordships, hul iii overhioked in tin's report. It Bliewed rpt>fr CaMida fvtendinff northward to the Albany and to HiiiIboh's Uay. and ws-rws^rd Ut thf f.rtkii .if th,-. W.-.nrj;:, -nd (-.cyond Mr. I',..'ichette wa- ;it I he time "His Ma jestj-'s 8urveyor iJcnerul for Lowvr Canada." and he dedicates the in.ip to H. K. H. the I'rince Hooent. It is described in the Note.'* on Mape, be iig No. IS.'t in the list. 3J() BOUNDARY : THK CASE OK UK KKIMIAUD, 1818. s. 1 )u'.Vf not fjiif. it old maps that are rheLoiu, v.HANCKLi,ui,-K.i,utHtioM .s ahv..y.san,aDUrori,nportance »n ;'> ;n w """ "'■■''• r^ 'rr* ""*'" •"••■ '■"'"^'"'•V ■^>""" ••^•''J^^"«« .-f reputation. .» co.use MO are trx-o tro.M tlu- technical rul. s of .vi.lence in cnrts of law, and takuij' tl e wi-ler view, tl.cy are un.lv.iila. .Ily suim- evid.'noo Mr. IloHiNsoN -Wo have n..v.,r .]i,simt..d with n'f..v.M,oo t.; Mitcliell's map hn .ns a.Kv. that .t shews what was th- , .ncn.l inf..r,aatiou and holi't' a to £ Slat... ot the country at the t.me ; but that is aKsurdly wrung in several rosnec I as we liav<( now seen. ** » n ^.cui. , The Lo.ti> Chan. EM.(.H._I suppose that it is not correct in all re.spects is Mr. '•^;>"'^'^"N— Novn;. .ny Lords When your Lurd.sh.ps adjourned I was spk.nKot thv(. neba. Act, and the due north line, and I ha.l n.C.rred to the JV Keinhard trial as a decision on that poi,.t. 1 want to c.dl vour L.r.lship.s attention, wi h retevence to that trial, to two points. In the first place, your Lord.slnps will see by pai,'e (100. that it was not the decision of on. judge at a the Uiief Justice, bewell. and Justice Bowen. an.l there were other jud-res .onylted apparently t;ecause at pa;,.e ti5!» it a(,pears that De KeinlianI wa.s ned on .such a day before Cinef Ju.stice Sewell an.l Mr. Justice H,)won un.W S4 thl ' h! 'Vr ;• i'''r^ commission. Then your L..r,lships will Hml at pa^e O.Si t at te Chief Jus ice. in McLellans cas.. 1 thi., , it is, m ^ivinf. judj^nlent. •says: In thi.s oj.iin.m the court are unanimous, for i have consulte.rmy learned brothers who sat with me in the late trials." I only refer to that t.) shew w hat n,3' understan.ling was that this w.is probably a j.-int commission u,hhe.ssed to all the .pid^^es ; that some of the cases were argued before some of tl«Mu.lses. ati.l soi AIiaUMENT OF MR. ROBINSDN, Q.C., re QLESTION OF HOUNDAUY : cxeoutio)! of whose sentenco was respited ; " so that there is no question that tlif .[uestion of jurisdiction ricver was roiisidcMod.'* It can show nothing more Thmi. [ svtw ))roc«'edini,' last iiit;ht to discuss Uw (|ue .uion ol the due north lino. Sir Haknkh I'KACorK. — I did not quite •understand the Chief Justice's dni- sion in Reinhurd's ease, hecause l)e lays down the eastern l)onn(]ary — Mr. lioMiNsoN — That is a niistaki-, no donht. Sir iiAK.NKs I'EAOdCK. — It eould not he th(> western houndary of fjipr Canada, it was tlic eastfrn boundary of I'pper (.'anadii, and when this phice was mit on tlie west side of that houndary it uuj^rht be still in Upper Canada. What tli,' Cldef Justice was endeavouring to shew wa.s that the murder was comiiiiind within the jurisdiction of neither Upper nor Lower ('anada. Mr. KoiMXSoN. — Tliat was it. Sir Barnes Peacock. — Antl therefore his decision only put it outside Lower Canada. Mr. RolUNSON. — It was too clearly outside Lower Canada to achnit of any discussion. Sir Barnes Peacock. — He does not shew it was outside Upper Canada, unless he made that mistake, Mr. Robinson. — Your Lordships ^ ill find no que.stion about that. He (ii>. tinctly decides that the due north line is the line, whether he be right or wmh^' Sir Montaoue Smitk. — I do not think that is disputed. Mr. Mowat. — I think that is correct. Sir Barnes 1'eacock. — He says: "The western boundary of the Province of Upper Canada is a line drawn due north from the head of Lake Temiscaming till it strikes the boundary line of Hudson's Bay," Mr. RoBiN.soN. — That is all wrong. Sir Barnes Peacock. — That gives the boundary of Lower Canada. Mr. Mowat. — 1 have no doubt that is some mistake, probably of the reporter, and that what he meant to decide was that it was outside Upper Canada a.s weli as Lower Canaila. Sir Barnes Peacock. — But he lays down the boundary wrong for the pur- pose of shewing it wa^ outsiih? tho westiern line of Upper Canada. Mr. RoRiNsdx. — If your Lordsiiip reads the note to the same page, it say^ that is a manifest error. Sir RouERT Coi-i.lEii. — That is agreed on both sides. Mr. RoHiNsoN. — Then I need not discuss it further; there is no doubt that that wa.-i the decision, whether right or wrong."f" Then, my Lords, I was discussing the question of what was the proper i on- struction of the Quebec Act, and the meaning of the word " northward " 1 desired, or at all events I am prepared, t(* shew to yiuir Lordships in detail, tor I have taken the pains to go ovei' all those, all the forts which were west, and all the forts which were ea.st, of the due north line. I do not desire howevL-r * Tliid in a iiiHre ns8umptii)n : iiijoii tlw documents the inference seems clearly the iither way. Tlie lesiiite, we are otticiitlly inturni^d, wih t>i iirocuie tl' ■ ilecisiou of th(> home authorities " in respict t'l the couitV comvetency of jirmliotijii." Thi- inra^tapli of th(> letter referred to iu more fully &» foliow.s : "In acknowledging t'le lere is no doubt that unless vour Lonl>liij|.s sliotild sn wivil. tr. ■. „ , ...son/that I -lo Jt th!, fyo ,M,£: " 7'7':f I'V'""'' ^'"' '^'^ '^'"'J''" ..nwh(alHMtIunower.tni.tw.nty; fij^v ., ':" "^ '^f '^'^ *-•"" F-s''Iy tun» Whai I a.n ,.r..,,ar...l to sl.ow to y^. ^ Z!^;^''! ^l^f ''n ''"' "*^""'''^' ''T'^'r-le. far the greater nu.iil.t.r in inuKMtan,.. * « • ' "^"^ "' "" 'I'lf^'tion. is, that l>v fact east, of the duo no.th li e f^ J tT""! "' • ' '"'-^\ '''''■ '" I'"*"'^ "^" .l.ny. that th.re wero setth.ru.nts vvW otit ^ '" " '^ ""''""^ ''' '^^*^^"'P^ ^"^ Ihe Loud CHANCEi.r.(..t,_\Vc count.d ..K-v..,, y,Mn;hv ^^^^^^^^^~r::::u^'!QilrZ^^ inriu. history of those hut •■ coh^nies or settlements " o> wiH Hn I , i^ "''-' ""^ ^^"'^^ ' "'' " l'"sts " uf any in.p.rtanro at a 1* 'l) mit ' w ' ^'"'- '"'" '"^ ^^"■^'^ ^'^' ^''^^"' ^«^« next ono was St, Joseph For C ^ Jli ' ' 'r'''.,""'';T.^""*' ^^'^'-^ ""•^^ 'I'^e \-incennes was eant, and all ho i t t'', ^ i nn.;. /'"■**'' "^""'^ "'" ''''' ■ ^'^''^ Thon wocume west to F.)rt Kaskaskia. vlU ,' "I'ft'^"'--^'* ^^ere east of that line, the Mississippi, in the Illinois cou':^^^^^^^^^ ^'" ^' ^^'^'''"' '^"'^ «'» *'"' P'^^t'^ alon,. Lake^:peH:r""''''"''--^'^''^'^^'"''^"---^f->-l^Jas far hack as IGCO, on Mr. KoiuNsov.-That is near Duluth Jhe Loiu) CnANCELL()i(._]t is sairl t,, hnv,. i i •■ • iv-estahlished by Le Sueur in 1(5 InT fL '•'" '"'"^ '" "'<'^ «"'! as l(i(JO. ^ '^-' """'' ^'''^'•^^ ^^-a^ '1 ""«^ion founded as early Mr. iionrxsoN.-Yes. then, is no .juostion al,o«t that Wd An£K„AHE.-Where was Fort Kaskaskias' Jii. -KOiUNSO.N.— Ihey were French settlements Iw"shE:1" ""™-"" "'"""""" »'■ "><■ A«' »'■ 1774 ,.,„., to .he Mr. RoiiiNsoN.— It does not .say all French settl.>Mu.n>« __Wl_Ai^^HnARE^U-hy shoul..l\hey h^^^^^^^ trading ntation, and misHion: superior, and of considerable importance as a settLtrent! 23 (B.) 3.33 'i: AHOIMENT OF Mil. lUHtlNSON, (^(! , re (^lESTION OK llOr.N'MAUY Sir MoNTAfitTK Smith. — And why shonid there be nv arhitrnrv division 7 Mr. lloiUNsoN. --It .lay-^ there wore many French .settleiiionts. Wo do tfikf in many, and \>y fur the larj^'er rininbor.* Lord AliKUDAKK. — Why shouUI nut they have Liken in all I What va-.m rould you sii;^'oe.st wliy they sliould not, because the territory was undoulitidiv , I .sn{»[)o.se. Kn:4lish territory ? Mr. HoitlNsoN. — IL WcW eedeil up to the Miysis^ippi by the definite tieatv of 17ti3. Lord AiiEltnAUK. — Wliy should they be deprived of the advaiita>jes which ir wa.s intended to bestow l)y the Act on the inhabitants not between the Missi - sipjii and this line ? Mr. RonrN.soN. — Our iinpre.'ssion, derivetl from history, is this, and you will find it very stronj,dy eontirnud by Mi. Parknian'.s work, who is unllnestiorlaillv the historian of that period — L(n-d AnKUDAKE. — That is a reci^nt work ! Mr. KoiiiN.soN. — V'es, but it is a Imok universally referred to. Lord AltKHDAUE. — What i.s th(.' date of it i Mr. Kor.lNsoN. — I think there has been more than one edition. Sir HoitEi;T Colmku. — What does it pur[»ort to be ? Mr. RulsiN.soN'. — He has published a series of works. Sir HoiiEUT Collier. — What does that work purport to be ? Mr. RonlN.sox. — 'J'his work contains an account of this part of the country It is entitled " TIm; Conspiracy of Pontiac, and the Indian War after the Con(|:io>t of Canada. By Francis Parknian." At paj;e 25.*], he speaks of these forts, an! in one of the maps attached to volume I. of the work ho shews all these fortn, and I think it is the best one that is to be found. Your Lordships will sec it is prepared for tht purpose. There is a little summary of all the forts that tlKrv nre. [Hmiding the vntp to their Lordshipi.] Lord AnERDARE. — The map docs not shew it; there may be a summary in the text of the Viook. Mr. RouiNSON. — I'he map .shews .several of them. Lord Aheudauh — It shows Kaskaskias. Mr. RoiilNSON.— 1 think it .slmws ail the forts south of Lake Superior, as fai as I know from looking at it.f Lord AuEUDAiu:. — Will you look at it now ? Mr. RoJtiNsox. — It is headed " Forts and Settlements in America, A.D. 176'J." I see Vincennes, St. Louis, Cahokia, Knskaskias, Fort St. Joseph, Detroit, and Sandusky. Lord AiiERDAliE. — It uoes not mention Fort St. Esprit ?| Mr. RoiiiN.soN. — No; but your Lordships must remember that that map which you are looking at [viz. : the Ontario Government mdj) prepared fur this reference] is not a map which we recognize in any way * CouiiHel fails to give corapiirative p.irticul.irs in support of this contontion, which on the mak\in! an eiiumeratidn, \h fdund not to have beuii wpU-founded. Seeptist, p. 855, note t, nnlc, p. 348, note +. t The map in fiuoHtion extends westward only to lonjritude 91 i", and northward to latitude 4(1', sinil therefort^ exdudeB hh well llm upper pcrtions of tne MissisHippi, on which were a number of French f'irts and Bettlenients, as an extensive region, with its posts and settlements, to the southward and wetitward of Lake Superior. Moreover some then existing settlements in the part dsliueated are not set down. The Illinois seltlementg on the MusisBippi were best shewn by Hutohin's map of them, a facsimile copy of which was laid l)efore their Lordships by Ontario. A like copy appears in Parkman's Pontiac. + St. Esprit— otherwise La Points, or Chagouamigon — was on the south-west shore of Lake Superior, and therefore outside the limits of the Park man map. (See preceding note.) 354 ' '" "'i«'«'^''. orect.-d th..,n.« attnduM to then., un-l Ih.- naiuos .,f those who French ro.nnhu'.l in nu.nl.f-rs' th"v u-. i ' '"'' ""' ^^'"1 'merits wh.-.e the i.> that resp.c..f sJat IL 2 7 1 "'; v"''"'''"'^ '„^''"* "^ '»'« -listinction cession, in conse-tuoni nt the w,u a I , " ''"' ",":^'^' "* ^'^« ^•''-*' '^t" the then left on thi east hani of L ^''" '•;-'' "-'vul of the forts whieh wore natural and th..xMs no ,2 Uon L.rr''''' *''/'''' '"^"^ '"vk. and it seems 17G.-J had left befon"j77^l e , e S Z' ""'"'":'; '*^ ''"?' "'"' ^^•'■'•" ^'•"^^' '» -1.3 of the river were founded htiros J C:,:';;' "t! rf'T^ "■'''' ''"'■ "^'-"• that at ,nore length, because it would onl ,n,vi. thl f'"' ^''■'":".'" ^'" '"^'^ prove nothing more. • '"'"'- ^"'^ ;,'eneral proposition ; I can i-nprolS; Xt in;,e'i;::j ^:::I;";,T''1' r^*^; ^-^ *"»* --^I. ime. that it i. have taken, a.s the l.oundarv of -:"'7'"l''""^' knowied^'e at that thne they wn„l,l They did not know w en? that ' if r'S r '"""' f "'"'^ ^''''>' '^"'- ^ 'i^tK' ,m.le»v,H,red to falsify, or break the f7roe T^fhefit t' ^'".."Pl'™"'* '-•"""'"'I had «over, Iti.ne, un«uocej,«fu Iv. It shewed St. Enfrit, La Pointe or CWnv ""^''"''''- ''f^''" ""' f'«=« "f »''« ti>M, Imt map d.d not extend bo far. and c.lil.J nottherKahew^^^^^^^ '°'"' '"»»^'- ''"''"»''• The Parkman ___ t The evidence Khewed that round m..,. , J .? I.'!'', 'r-"."^""'""'""!* --'-"•^ ^y — >• iko Superior, as fur ka,kia. >n it\ b^.^ da7;..;^V%h7' ".. .Sh^ri,':;™'''*' ^^ "f"'-" M-ett;;T,;for„: „- Ct'' Tai. ',"i',t^'""l'^,^"* after "^it P^i^ed from t°crrv*^.,f' Kr.n '''■'■';■ " '"'P. "'^^n. '-"ntamit.g 2,000 or 3(XX) 1,500 8o„l« " Parkman, writing of irlt nay •• At the dati n^'iK''"'."':" ''"•u"""'^ >•«»" '"' "me i "down the-nu^r ,. r„f^~."!,„ "lu*' r^. "? ' -^ able to bear arm^, " and that " they hive a Kreat line, wi .e(fr upon thiit i|Ut;.«.ti(»n, aiiii 1 h'avt' it thrrcforc, simply sayiii)» that that is tl '• fontuntion, and lias iiei^n from the bii^'inning the cuntcntiyn, of tJio DoiniMJun ^lovtrnincut. Now tlic next question which wo coum to i^, assuming' that tlio northwail line — heciiUM; we are only coiisiclorin}; one act of tiiis wholi' Statute, ami one Im- of ill nly is in (jUcstion noithwarti ti> tho southern lioumlary of the " Huil.sins Bay territory— ass u mi Uff that ^^oes alonjjj liie Missi.s-.ippi, the next (pie.stion wliirh we have to oonsiilur is, wlicre (loes that p» to i Now oin- view of tliat matter ]\,\^ beentiiis: It is the southern boundary of the territory granted to the Hu(l<()ti.-i I5ay Company. The b)l{i» Chanoeli.oh.— It ^ovH np to that. .Mr, llftiiirJsoN, — It Koe.s up to that, wherever that may he. There is nn question ahout that. The Act i.s at pjiLje :}()(!.+ The words are : " to the .sontiicrn boundary of tlie territory t^'ranted to the Merchants Adveiitur, td 'JoviTnor-Unneral Oarleton, of yiiplmc : "That b«iiidpH the fori-goinj? courtn of criminal and civil jiiriwlictiun for th»< province at lar^t', there be nUo an infxriur court of cirmmul and civil jurisdiction in each of the DistrictMof the Illinoig, .St. Viiicennt", Detroit, Mimilimakinacand (ian|ii, by the Biiint'uof the Court of Kind's Hi'nch for sucli district ♦ ' • anil each uf the naid court* iihall coniiiHt of one jiid^e, beinff a natural Uirn subject of (Ireat Britain, Ireland, or our ether iilantationn, and of i.na other ijerson, bfinpf a Canadian, by the name of a8,-.ifitant or assessor, to (five lidvice to the judKn wIihi. it may be necessary," etc , " The extension of thf; limits of the Province of i^uebec necessarily uallti forth ytiir attention to a variety of new mutter and new objects of consideration : the protection and control of the various settlements of Canadian subjects, and the regulation of the f)eltry trade, in the upimr or interior country, on the one hand, and the proteoti jn of the fi.>(■--. p. 34, 356 jrNDAUY : CONSTRUCTION OF THE MUDHON's IIAV CO.S CIIaUTKH. 'hero wiw n-nlly no )t tliiiik 1 can sty 11},' tliat tlmt is Hi'f I, of tht; DumiiiiDn h;it tli(! north wii 111 atiitf. ami oia- Ini" • of the " HhiIsmii s f;xt (|iu'8ti<»n whirh of that iimtter liii> ^d to the Hudsoii'.s Vie. Th«'ro is m. : " to the southern ;un.'i-,s of En^'iaii'l, that that ch-aiiv iiitory grautetl Wr tlio IIiidHon's I'.ay th(!ii grant land to usiy granted to (!, Investigation of H's t'xtraoti from the Kiiy»l iftt b««iJeM the forrjfd iijf :ifiiriiiroourt of oinniruil imilimakiiiacand (>aM|>., I xaiil court! nhitil contiit )>laiitatii>nH, and df .in* ice to the juilff" wliBi, a. ^eaearily callH forth yaiir iction and ncmtrol of thn in the iipi)fr or iiitwrior . Ijiiwronce anrl on tlie on and despatch. 1 Iih tnatterH for thu Illui'.iti, ly pointed out and thi' 8»ary for their civil C( n- le for the supiKiit o! fn.r it to l)o our Royal intm- of any revenvit-B arixiiiif ipriatod to the uhi's and it-Goveraori or Suparin- Jtll.OOO at each b*)0 aiiO 100." )8efliientljr. That to thi' , established, or to be rth of April, 1775. It is jc of 1774, put hwyond w Officers, put upon the Mr. llciiissoN.— Vr.s, my b^-d. occupation hv th.. Kr.-nch. '' ^ t"- """•lv,.s. and the huhst(,Ufnt Mr. Ko,u.Nsov,-T,.s, n.y Lord, under th,. circurnstaTK-cs. Mr. li,.i„N.s(,N.-V,„. ,„y L„nl. I ,1,:,|1 c,„„„ i„ i|,at. hSgl.t of |a,Kl ^ ■ '' '''"'"• ^'"' ""^^ '" '^^ ^"'-^^ it goe.s to the " The Loan CHAKOELLOH—Well. no, it St''. f'"" a reason XV Inch 1 will giv.. to your Lordships in a moment 1 ho Lout) CiiAN(KM...u._You see that unless some Mich limits can be : antr b in r" >r, l'"^''' '^"?^" '" 'l"^'^^''*" ^^•-^'''- ^l'" objection SenT the Charter t)eing void tor unc(!rtainty we-' not good Mr. KoHiNsoN.—Ye.s, my Ix)rd. hecau^se'we tl.lnh'^";i"'?''".''?;'~~)y' ,'""^ ""* ^''''' ^">' ^''fe'"'"*^"* «^''0"t that, ret if iJv a f that whet , or the hnuts can be Ibund or not from the charter }et zt thoy are found d,' /ado that is enon>di. uifhin fi^^^'r''^'/'"' ~rV''^ ^''''"'- *'''^' ''•'^'■''^'* '^*' t'>*^ «»'art««-, thoy give " the rivers u.thin the straits and bay ami all the lands upo.i those rivens.'' That is v 'ly S.'." P?'!''v^ CoMiEU-It is "rivers within the entrance of the straits." called HnVlT''f"^.'''r?'''*'''' ''''*^'"" ^'^^ ^"trance of the straits commonly called Hudson s .straits. It is at page 844. It gives '' T'»" «"'*^ t'''"^'' ^n'l commerce of all the seas, straits, bays, rivers, lakes creeks and rnonu"ailed"rr, ''''.":!'; ''"-^ "'"'i '^' ''"'' '"' -'^'^- '»^^ entrance of" tlotrdtJ commonl> called If lukon's Straus, together with all the lands and territories upon th." cu.ntr,eH. coasts and confines of the sean, bay«, lakes, rivers, creeks and sounraforlS " The LoHi) Chanckli.or.— " That are not already po.ssessed • I am rLwwTlT^"'' "'^ ^?S^ T ^"^"""^ *° *^^t- '^^^"^ '' the exception. i„?/ '/f ^'^•'^''V".'''y'"? that they gave the rivers, and all lands on the n JCi.K ft "S'^'t .^'^" '» «;iying that subsequent provisions of the same charter, in which they provide tor the appointment by the Hudson's Bay Company, and 357 Allfjr.VirNT (»K MK. IIOHINSON, (^,t;., ,•<> yl,K8TIr)N (if llorVPAHV i HI* on. " for tli«» g(KH] ^'(ivorfnnent of the wvid « 'ompiui^ , iiiul nf all pnvernon of coli.n it!«, forts hihI iilaurntioriN. facfors, iimsU'r>. iiiariiicri ihpI olln-r ofRccrN otiiployf.l or to b« t'iii|iloy. .1 in any <.f the tfrritorit^ iin <'man('KI.i.()u. 'riu'u, as aj,'ainst Kraiice. I supposn ^ou would nut ucriously conteni' that Kin>,' t'liailc.-. th*! Second fonld create any right. Mr RoiiINHo.v. -What \vt-. do contend, my Lord, is this. I am anticipating; my ftr^fiinient there, hecaiise I wish tirst to try and settlt* the construction of tin- charter as to what the word 'granted " meant ; hut what we do contend ih that the Kngli.sh, heyond nil (juestion, had obtained Hudson's Bay and whatover goes under the con.struction of international law with that discovery. Tht-y had di, coveretl Hud,son's Hay ; they haubljshed 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. The Loud Chancellor. — Can you find any such pnjposition in Chancellor Kent ? Mr. Robinson. — No, I <'o not know that he has written a word on the sub- ject. * Upon the facts in evidence, and denying as well counsel's premises as their application, Ontario shewed the priority of thi> French posseRsion as well of thi' rivers as of the regions watered by them. AnU, pp. Ifift, nnt« +, 300, note *. 250> note t. 253. uole * ; appendix B. hereto. 358 )UNDAnr g(TMT|(»N.s nK • IVTEH.VATIi.NAI LAW." Th.' Ldiu. rn.^NrKi.u.H.— Or Wliiatun ? Mr. l{o...N,sn.v.--N„, I .lo ....t Ihink In- has writtvn utmn it llif LoHl) C'llANrEU.n|<.— Tiles,. w.ltMs ........k. ,„ r r .1 ZL, l",-"' ' r'"f ■ '',"' "' '" '''•"■'■■ ■ !'■"«'" Xi' li'^«-rt n 'llimW; work '''t'rjA»r.,;rrt:^;;,=.^n:,,»!'..'.^;i;-'--"."'-^ (lay ^I-ord ABfcRiJAHE.-Are tl.o.se the pujr,.. which were subntantially read yester- Tlw.i^L^''"'^'^"^'"! *'" ""U'oinp to read tliose passages to your Lordships Tose passages are «uh.stant.aJly the same as wor.. reari^yest^rday ^"11 X only exeroae of propriotHry right of ih ch th««H . Ih.Tu^ ^ contended to be tho snsm.tible- and to mark tLl n, \ °^ J'r°^ '"**" particular reKiot.ii ut that timB were occupWi'" ^" ^ *•""'*"="*' ""• **' '""<^" «« tl"^ 'faole tnrritory by the That shows that the nature of the occupation hv the Hudson's Rav Cmnanv here was effK|>ont as being the only occupatiun which couU e takeJ'bv trem"^ to estd, ish XrfiSh'f '7^"* ;'* ""' r'" •^'^•'- *''*' ^'^^' ^--' -gu"'-t tends e.suu.jisn eveiy i^rench fort as a hnn^t, h.ilf, occupation ? Mr. KoniNsoN.— I have not forgotten that, people ^'•^''^*^«^-^'^«' to a lar j,aeater extrant than the Hud.sons Hay sound'ar,^;Zr~'''^ "''^ "°' '"'"=^ ^'^^ '"■«'"»^"' ^^'«"' *^-' *>-eh if it is a sup,.Ses H?.7t'h"'" ^^'"V-.^ r "'■"'" '" '"^^•^' *'"'-««tten that this charter itself ■supposes that there may be ri-hts vn the part of the French Air. KoniN.soN.— I wft.s coming to that afterwards pute ■ ^^^'-''^■^"^^^ SM,TH.-Whethu- there were or were not, is a tnatter in dis- to .^Jr•^7^f«^^•-'t'^'^-'"Iv other authority I desire to refer your Lordships :-^^^^!'^_:^"^. "^ nuernationanaw, thatof_^Ir. Hall, at page 292. wEe en,ovn.„t of the trSe. See an^].:^^,, Zl^^^i P.'^Sr'I,;^^;!.?/!? Cr.'"" ^"' *° "•' 859 AIKIUMENT or MR. UOWN'SON, Q.C., re, (.lUESTKiy or liOUNDARY : there i.s a note, which in my view is a valuahlo one, setting; out the substance of tlie law. The LoRU Chancellor. — Do you thinit that the aiitliority of such works is jTveatcr in proportion to thcii- recency ? Mr. RdlUNSii.v. — No, I cimnot say that it is ; but it is, of course, greater or less in proportion to the .-standing of the writers. The L(/RI) Chancelldu. — These writers repeat each other, and are constantly extendinif the notion of international law, Mr. Robinson. — I am spoaking of the jiroper construction of the Hudson'.s Bay charter. One thiiiii; is peifectly certain, that we havi; here printed the opinion of six gentlemen of the very hi>,'hest anthority in the Law in England, two of them afterwards distinf(uished upon the bench, and another of whose standing and reputation 1 am not perfectly clear, who are unhesitatingly of opinion tlial this grant conveys to the Hudson's Bay (Jorapany all the territories up to the height of land. The Lord Chancellor. — What page are yo\i now referring to ? Mr. Robinson. — I am now referring to pages 47 and 52 of the Manitoba Appendix. At page 47 [ Hnd : " Copy Queries and opinion of Mr. JuHtice Holroyd, Sir Samuel Komiily, Mr. Cruise, Mr, Scarlett and Mr. Bell. " Whether any objection can be niude to the grant of the soil " — The Lord Chancellor. — Which of those names is unknown to you ? Mr. Robinson. — Dr. Stoildart, who is spoken of afterwards. The Lord Chancellor. — None of these other names ? Mr. RoiiiNSON. — I ought not to be ignorant, but I may say that I do not know what reputation Mr. Bell had. 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. Sir Montague Smith. — I should think so. Mr. Robinson. — Now, yonr Lordships will see it does not depend upon any case at all, or any facts, if you will simply look at the first passage.' " Whother any objection can be made to the grant of the soil contained in the charter, and whether the grant will include all the cjunt,ry the waters of which run into Hudson's Bay, as ascertained by geographical observations." Now that depeny geographical observation." Now surely nothing can be clearer than that. Now, that was a second oi)i'iion of Mr. Cruise, because at page ;W there is an earlier one. The last opin- ion I read was given in I8l.'{. At page 39 1 find a similar opinion by Mr. Cruise. "That therefore the opinion of the geographers would be adopted, namely, that all the countries lying upon thrt water.s which run into Hudson's Biy are included within the charter." I think there must be a misprint there, for it says, " for therein it will be jnt^fl'i'ctu.'i]." I think that must nst^an, " for otherwi.so it will be ineffectual." That was alsi a secv)nd opinion of Mr. Justice Holroyd's. 300 tUNDAKY : LEOAL OPINIONS ON THE HCDSOX's iUV CO.'s niARTEU. imuel Komiily, Mr. depend upon any The Lord Chaxckllou.- -Mr. Cruise i^ n „r .nf v i- i , i« a v.ry nsoful book, but I d(. not k^ow ?bf/ '","'' '^'^•>'''''' '^■'''«-^' '^^^^st authority is very ^^reat ^""''^ "" ■^^'^'' '^ ■'^»l>j'-ct as this his Hi.opl;;i^;'i;^^t-i^;^t-;;:n.z^ i-^-^-y -tis^od that <• retor to it. Tlutt" was a secmd oSo n' > M ' t^'''V%'^'' ^'T ^ '^''^'' l>ecause. a.sa,,p.a,vs at pa^e U, he had xnr i , ) M ' *" "".r-oyds which I read, year The first opinion 7s at p u'e tt t f ■'"'""• "P'"*"" ''^ *''*^^ P''''^'«"« wh,chlhave„hiyn,fern.d^v;urt;.rir''% *''""'"; ''^ '^' J'^'"^ -"■ *'' was not familiar with, and who^o en a i ' 11 \ f "^''^'"'"^ '^^'"^e n.'t.ne I Vour Lordships will iind his opinion Tf ' •""^' 'V'"'"' ^^'«'^ '^*- «t<>ddart. page 52. "^ ''^'"^"" ''^ t'"' ''^■.^nuimg of pa-e 50. and in full at i..rd AnKR„ARE.-Ves; he goes into it f„lly your LorS;;:^:^l^^;;S J;-|,„t',;f^V; ^■^'' ^" -y about it is that if ment. I .an add nothing o i Hm p r' cVl''-"' ! T'"''"' '" "*"''^ '* ^^ '"^ argu- siderations which we third, shonl^^r^u ' t^'";:;: \ ^^^^^ } ^'^'^ ^^'^ «««- clearly, or as clearly, oj- as stron-d/as he h.s s Ik ■'"!."'" ""^ *'^''^ ^'^^^^ „.ore convince your Lordships, I am su^e ho" ' ^'"' *''"''<'• ^*' '^f^y '^« "ot trying to do so. ' ' "'*' ' "'^""'"^ '"^ "'^^tuig your Lordships' time in The Lord ('iiivcKi T oii M t i what was the precise ^Vatter v^ich'tt TearneT"'"^ *' ?'''' ''""''^^ ^Pi'^^""^' You see some opinions ire tn T !. I learned counsel were asked upon ? which th.y are |i" ' C i^t^ted S''^; "'"' '"'"""'^'^ ^'"^ '^'^ ^'^-^ »p"« between Canada and the Hudson's Bar ('''''" ""^^ ^ 'J"'^'^"''" «*" ^""ndaries witli^^reference to any sucirqulstion^ ^ < ompany. or were the opinions given if I ~^^X::;^'^^^ ^h« ^i^Putos existing. and not suggesting co,i, S clai nf. n^.r „ ;i''^'7'^'l' validity of the charter, give the go'by to%vhat L the < uest o^^ we hav'to"' ° " '''> f'^^^^ ™^^'^^ fact that it was not brought befiretbomr n *^ T'"'^^'' «"tirely, and the Lord Aberdaue-As n ft., , , '^ '^ tl»»g to he considered. Hudson s Bay Com;anyi\heHio^^^^^^ North-West Company and the West Company intruders? " Company might think the North- the Htdso?rBarSpaT;-TadThf '^^ t\^^ ^" unoccupied territory which themselves masters of S- f?il !, "f * *" T'^^^y '"'"^ I"'^^^^^- '^"^ ^nake between the.n and citainder who Zni ^f*^ "",' *''^' ^"'-^ '^""''^^^^ ^^^ can quite understand opinion o\his sorr bin ' -'"'''''^ "^ f-^^ '^''^'•^^'■' *^'^<^" su<;h parties and upon such a onestim, h^ f being given upon differences between if the question we,^ hZ.en Jvance and f"""!" 'i''^^ -"""^^ ^'"^'^' '""^'^ »^«^""g tiuxt she had occupied a ceitain tor t-v ^'^l'^^ *"' '"'^^"''^' ^'^'^"^'^ "^«i«ti»5 limits. ' ''^'^'"'^ teiritory which came within the theoretical S LorCH:;;!Z>Rl^^'r'i::;i:;^-^ -^ they 1... my Lord, question of value but a caso nml ^,'- ''*,^ *■ . t'^«3' any bearing' It is „ot a 'Attention of counsel and tVe.T,^^ '''? '""^*"" brought to the other questions quit; dilL-ent ^ ""^ ^^ ''^"^" "'^t^^'''*' *^"J 'i«t to int out that their opinions were not asked upon any additional extraneous facts, which miglit be true or untrue. The charter was put before them, and they were asked to express their opinion upon the construction of that charter — What laud does it cover ? And there is their opinion. Sir RoiiKRT COLLIEK,— They had not a case submitted to them ? Mr. RoiUNSuN. — No, my Lord. The Loud CHANCEr,Lf)K.— I do not think one would be disposed to dispute the proposition that, so far as the Crown of England could give it, it gave to the Hudson's Bay Company a right, if they were able to make themselves masters of the country, to the territory up to the sources of the rivers ; but tht y did not make themselves masters of the whole of that country, for some other nation had come in in the meantime. Mr. Robinson.— To that I will come afterwards, but in the meantime I do not wish to extend my argument. I wish, if possible, to save your Lordships' time by simply adopting what you will find at page 52, and if your Lordships will be good enough to read that and consider it as my argument I can add nothing to it. The other argument I am coming to now. Now then I assume, because I certainly can prove it no further, that, as between the Crown and the Hudson's Bay Company, this charter granted to that Company the land up to watershed.* Then we come to what is the effect of any subsequent proceedings. Our view has alwajs 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 ground.s 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 find 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 French occupation, that the French doings, the French position in that country, the French habitations in that country, or whatever you choo.se to call it, have no bearing whatever upon this case.f Whethei we are right or wrong in 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. Now it must be remembered that both parties here claim as it were under a a common grantor, that is to say, the .same authority which granted the clmrter to the Hudson's 1 charter was grante 5ay Company, fixed the limits of the Province of Ontario. The ted l)y the Crown of England, ^he limits v/ere fixed l)y the ' Ontario pointed to .ipinions of other notable legal ttuthorities. which were nuite at varmn^e with those quoted by counsel ; and especially the joint opinion of Lord BrouRham and associate.s, which is very clear bb to the territorial prant being limited by the relation and proximity of the territoriei) to Hudson's Straits ; " Within the Straits must mean such a proximity to the Straits as would giv« the lands spoken of a sort of affinity or relation to Hudson's Straits," etc. (Ontario App. ISa.) t Ontario shewed that the Crown itself and the Parliament had regard in the fixing of the boundarien to the facts of the French ijossession : The Act of 1774 professedly deals with territories cede3 ; the limits of (Quebec were extended by the Act to embrace 'a very large extent of country, within which there were several colonies and settlements of the subjects of t ranee, who claimed to remain therein under the faith of the said Treaty," etc ; and the extension of Uinwr Can- ada by the Orders in Council and Proclamation approved by the Statute of 1791, was to embrace ' all the country, ' to the westward of the inter-proviuciai line, comiuouly known as the Canada of the Frcnth. 362 IIOUNDARV : NORTHERN DOUN'V. '.Y OF TUV i.i>vc.r.v,-n . .X ut TUL I'RKSENT PUOVINCK OF QUEBEC. les^islaturo of Eii<']aii(] * 'ind wp hnv ] tMnk .stni that the question is n.,t vv hat .T'C J ""^'i!^' T'K '"^'"''^ '"^^^- ^"'^ Hudson's J.5ay Corupanv were entitled / oki, '^''"7;. ^^"-''^"'^ ^^"^^ ^''-''^n'^^". t^'e but what th.. (Vown of En^lau atL-r 1 >'''" ''"' '''"^'■^•;'' •^"^•'"•-' *" t'>-'. land I may say shortly, under who,., we „ " *;".^-^''"'"«".V'f En;,dand, or E.,cr- of the Hu.lsor. s Bav charter and rec ..uL 1 • ""' r''''^''^'^ ^" '"' '^''' li'"it« Lord AiSS I, !. J ri,,C,,.n,ni,,io„t»U,«£", •hrh, ana tne Freuci., ..n the east side o't the Bay/' 1701. "' ^"^ Company, as tho boundary between 363 r !lr AROCMENT OK MR. ROI'.INSON, g ('-, *'<^ QUESTION OK liOL'NDAUY Tin; Ldhd r'MAN'CEM.oR. — Tt goos from the River Ottawa thron<;li I;aki" TeinisCiiininguci up to the Rivor Xottaway. Lord AiiKUDAHK. — They take no notice of the licii^fht of huul ; thoy <,'(> ri^lit throu<,'h it all, and tliey sve'm to throw intt of tliat. Mr. RoiiiNsoN. — Where are these limits to he found ? The LdUD CHAXCELIOK.—In Loid Durham's Commission; I do not kimw whether that is the earliest place where they aie, hut they are cl(;arly to lie found there. Lord AiiKKDARE. — They are mentioned hefore, hut they arc mentioned with the wonls " 1 boundary line of Hudson'.s Hay," and then it was argued that thiil meant the I ndaiy'oftlie territory eiaimed by the Hudson's Bay Conijiaiiy. But then you havein a subsequent (Commission the words, " to the shore of Hud- son's Bay." Mr. Robinson. — If your Lordships will permit me to say so, that is the branch of my argument founded on the Commissions ; and 1 was going to take it afterwards. That is entirelj' a separate matter. Lord AiiERDAiiE.— But I wanted to know as a matter of fact; and sunly the Dominion must know whether it claims as a part of Lower Canada all this tenitory which apparently is marked oti'as belonging to Lower Canada. Mr RoiUN'SON.— I cannot say what the elaim of the Dominion would he as regards Lower Canada, because I have not addressed myself to that, not thinking that it was in question. I catniot speak authoritatively as to that. I should have to go back to the Quebec Act. We have always regarded that Act as detiuing the boundaries whatever they may 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 hi.s Lordship, he is referring to its being carried up by a ccmimission. Lord Aberdake. — 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 Abehdare.- 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 impoi-tant question. We are both here, claiming under "England, your Lordshii)s mu.st remember ; and we say that the rights which might exist internationally as between France and England cannot ail'ect this question which is one as between the Province of Ontario and the Hudson's Bay Company, both claiming under England.* Now, there is no (juestion that the Crown of England assumed to grant to us — The Lord Chancellor. — Is there a copy here of Lord Durham's commission in full. Mr. Robinson. — There is a copy. The Lord Chancellor. — This seems to be only extracts from it. Mr. RoBiN.soN. — They probably would not give the whole commission. The Lord Chancellor,— I .should like to see it. It is the commission of the 30th of Ma-eh, 183S. * Ontario stewed that this was, in the ciroutngtanceg, a wholly fallacious contention. (Sea ante, p, 3G3, note t.) 364 IIOL'NDARY awa tlirouirh 1; >n ; I <1(> not, know BV are olcarlv to he t the French did had )urham'.s commission utention. (Sea ante, p. 3G3, ROYAL COMMISSIONS TO THE 0OV,,nXOHS ARE FORMAL ACTS OF STATE. I Will proceed with the connnis,sions, if your Lordship thinks Mr. RoHiNsox it the best or( !er. hut Su:'J::r^:er{^:nt'^^ 'T'^ the .ommi.sion to Lord Durhn.n; John coihorne.^::^;:^:; .J ;:^'^j^i;-X"::'"M •''''•" eo.nm,s.sion to Sir John Colbor nlof C ndl^ Cunada, and the conimission of 1831) " ''' <'^^''''"^'' «f Lower Mr. RoniN,so\.— Yc. The Lord CiiANCELLOR.-In truth in those two years iH-iH «n,J i9-"""« ^o point out possession an■«"»• argument then upon that ? must be what the Crown of En..]and Tielt'ed «. l« H 1 iiud.s.ms Bay Company when Canada is directed bv the Aot nf pf r ! Hudson s Bay territory; that of the territory -raS in n rrl!. .n ^^''^'-'^^If^t ^" fe'^*" the southern boundary clain. being Jr;:oS"byl^;tsL'S'f7'r';^'^ ^' r^' T'^'" ^'^^ ^---^^ of England^-egarded thL gran 'InLJn? tin ^^^-^M*' ^^^ Crown j,'rant by the t^rovTn of EnTr nnH fn fir ii ^j - 1\® ^J^""^^' obtained after the French obtained by poises i^ or w^^^S ^"^' Company-- anything the as an act of war H vv^ ? !! ' i "'''*^^^^' '* may be, was practically obtained the BiSh GWnmentf "'^ "' "" '^^^ '' ''''^^''- ^'^ ^^'^^til^^ ^«t against ilways been regarded by the t Ontario HJ.owed. on the evid«nc». th„ n,i,>.if„ „f .u„' ,.._....,, ""'' " '••'»'«'• UC-. mv.j I Ontario Bliuwed, on the evidence, thf nrioritv of f ho' W..-.„„i ""'''■. •"'"-"• U' . , occ,.pat..,n by France of the whole intir or, u^ o the Cetion t e .rnr^f?,,' 'A'« '"'"'"■■nuo,... peaceable- trespassers, from the isolated ,lace. they hidK'horT'pace't^u;' "d^o^ Khr«"'^/;K"''"?^« ""d vuc ouortB 01 the Bay : the AUUUMENT OF MB. ROIIINSON, g.C, TC QUESTION OF ItOUNOAHY The Loud (.'hanoellou. — You do not. pretend it wrh occupied in any other sense than tliat there were forts at tlie mouth of the rivers and upon hudsmiH Bay ■'. Mr. RoiiiNSON. — Vos, there i8 that unquestionably. Sir MuNTAUiJE Smith. — In what respect did your occupation differ from that of the French i Lord Aukhdare. — In being less complete. Mr. RoiUNsoN. — No, we discovered the 1»ay and the rivers* and we settled upon the coast.f I am either right or wrong' in saying that gave us the rii,'lit according to the rules at that time prevailing. Sir Montague Smith. — That is discovery ; but as tar as occupation went ' Lord AliEUOAUE. — Did you occupy them within reasonalile time i Mr. RoiUNSOX. — We think we did. Considering the nature of the territniy, and the purpose for which it could be occupied, we tliink we occupied within a reasonable time,:; and we say the French came in there simply as trespassers,;;) endeavouring to take from us what the Crown of England had asserted a ri^ht to,jj what she had established her right to by discovery* and what she had granti'd her subjer'tat Then we say whatever riir'hts could be founded upon the occu- pation by the Froncli at all events vanished when the French ceded the whole country, in 17<)3, to England,** and afterwards, when England subsequently to that recognized the lights of the Hudson's Bay Company under the charter granted by the Crown.ff the Crown never for a moment adopted the rights acquired by the French as entitling the Crown to any portion of this land.'^ Lord AnERDARE.— 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 Abeudake. — That at once breaks enormously upon your argument. The Lord Chancellor. — The Commissions were Acts of State, and of great authority and importance, beginning contemporaneously almost with the Cou- contirmatiou of these places to Fraiice by the Treaties of Neutrality and of Utrecht ; the consequent low to the (Jorapany, irrevocably, of these places under any past titles, whether by charter, occupation or other- wise howsoever ; and the after-aci|uisition of these places by the Crown, in its own right, and to its own uses, under the Treaties of Utrecht and of Paris. * The go-called discovery by the English from the sea was merely incidental to the search for a North- West Pa8sa(?e, and was followed by no sort of possession or attempt ut poseession, and there was a com plete abandonment even of the voyafires. The French discovery of this region was overland, followed by an actual and ever continuous possession of the lands and of the trade, and supplemented by occasional voyages by sea. (Antf, pp. 200, note •, 253, note * ; appendix B, hereto.) t Their settlement was of a few isolated spots only on the shore, and but temporary, the French quickly ousting them as trespass't-rs on the territory of Canada. tThe evidence is quite contradictory of this position. The Company never occupied any part of the interior (except Henley, and that not until 17-10) nor even sent any of their servants there bi-f.ire 1774 ; and they frankly fo admit [ante, p. 284, note t), nor before the Treaty of LTtrecht could they be said to have had any nettled possession even of the shore of the bay, (ante, p. 263, note *.) The French possession on the other hand was actual and continuous down to the very close of their regime. (Appendix B, hereto.) § That is exactly what Ontario contended was the position of the company ; as regarded the Frencli. it had no application, (a wtr, p. 253, note * ; appendix B, hereto). II This assertion was by the charter of 1670 ; but even the charter reserved the rights of France. Then the French had asserted their right nearly half a century earlier, by including these regions in their charter of 1627 to the Hundred Associates, [ante, p. 200, note * ; appendix B, hereto.) '' The grant was by the charter, as to which see note il, mpra. ** Ontario denied this. See anU, p. 363, note f. +t There never was recognition of any defined territorial limits. And in fact the Crown assigned to the Provinces immense regions which had been claimed by the Company as comprehended in the charter. Ihid. XX And yet it dealt with this land without regard to any supposed rights of the Oampaay. 36G ItOUNDARY : EVKKT8 FOLLOVVINO. AND CONSE,UKNT OX, ,,, theATV OK UTRECHT. ition differ from that 3ut temporary, tlie French E the Oompaajr. quest of Qiiobec, nn.l coming down to tlie years m^S „n,l l'"'^' '"^'^ •"^'" t'"' one alwayn adopted Sir HODEHT ()0I,L1ER.-Y0U have Sr>P,ethin.r to ...1,1 t , V al.le as they .lesire. If I an to cone ni 1 '^' "'^' ^''^"""^'"t as far us I am •V-what did En,da.,d .^' d a th' t^ S^^ ''' '""y '^''^ ^'^ ''"^^^i"" Bay I -o,npnny i Becauserheyond all'^, Pb: h ''' cf^Tl^' r" ^''^""''^'^"^ entitled to go to the limit of that territory Parliament we were Now the claiuiH which the HmNon's Mn^' P., aspect in this case. They l.ear^n s f«r n H ' C-ou.pany made have a double bv oradopte,! hy he Crow unon he c.nlf '^r'^''^''"^ ^"' *"'' '<'>"cti«ned their own'chartJr.just a^reSitt^ '^r::^.!:'::! .X'^h '"'"'" "^^^ would be au act shewing the construction n nr- 1 T '/ A ^ ^^'' ^^''^mi^^'ona They also bear upon tlmt^.xpre^o^i Z^ T^T" .'{P^" *''^''- ^'^''^■ or claimed." I am not aa^in IZ ■/ ;* f" r^"^. ^^" m '^''^ ^^'^ territory held .lone that) as to what it u^^'u^ef ^ L 'bu;"j''''" ^T'' '^''■""' '^''^"'^ ^^"^ Lo.d.ship.s one or two points whicl seen tn . n"' ^'^ ^^'"^ ""^' ^« J'O"'' a special notice. After the TrLTofmri/ '"*: !^t *• event, to be worthy of sulstantially was c.^Lfto En.tnd b . '^^^^^^ Hudson's Bay terriJ^ry in Apr 1 1713^ in IVfn,, 17iq fu ' ^"'"J^* (the treaty having been cone uded nomi'ie ;^ viur Ship wi 1 findT"^' ^lernan.l delivery of pc^ssession to thdr recognition by the C owLf tL rlts Sfh ' r' T^"' I ''^' ^« ^« *'^« P'«'"««t aerstand it, the TreatH" Utre^t ?f 111 ! Hii^lson's liay Company. A. I un- land.i Nowatp:^e%7kw5'l;a::fo rt^^^^^^ ^,« ^r transmitted to the petitioners as also He Maiestvl .' • f^''"'" .'"'"^^*' ^« .en named to take W.io. In a;i!:,^S;S S D:^^^^ :::^" ^^'^"^'^■ French King, and has therefrre in«iri *„ ^' *"* '"'r:;^ ""^ '^°* o^ c*^««io" from the n>ean8 the title of the OompanyTs klw^i^ mT ^^^"'*^ *? '^>« ''^ ' ^-^ '»>'« loyment of their property without .r^her trouble"^ ^ '°'"' '"'" *'^' immediate eu ance,tTa^t]:: ^^h: "I'lf 71^ -livable acknowledgment ami affinn- " We have nothing to do w 1 th?s territm- V ' «'^3^/^"'"P^»y,'^y the Crown : to us, but we decHnrto tnlV; <> r i ■•. *™"'''' ^'"''^ b^*-^° obliged to yield it thatihei-Ye^chSwr:^ temtcny iti."t Nc^i^p^^^ * See as to this, ante, p 365, noto *. ~ " ' — of tlJeJlrofth^';hn''r^e,'wffi v\" y limSKt'^'^n^^' 'I"'*""' *^l' ''^ ''''«-'" ^»'' "--tricted to certain Lordships have alr.^arly dealt ..vithtL:™;,„t d''P«nd«"t "PO" each. See ante, pp. 27 (It-livery was of tho Bay and Struits of Hu-Isod, aiiiJ till? ljuil-iiiio,s Ihereoti tirected. Mr. RoBiN.soN, — Yo8, there is iK)(|uestiou what they claimed. Now we slinll see what con.Hlniction thi^C.'rown put uixm the extent ufthe eliiiinsnf the Hud.sDii-, Bay (.'onipany. Will your Lordsliips refer to pages .Ml and 512. Vou wili reineiidx-r that coiniiiissioners were apiwiuted after the Treaty ut' Utreeht, with the view of settlinrr these territories, but whether they ever did setth; thein ,1 not is a disputed <|uestion, hut upon which the weij,diit of evidence, 1 think, i- asruinst their havinj; ,settle(,l them. At page .'U, your Umlship will Hnd iIh> dooumeiit.* 8ir RonEKT (.^OLLIEU— We have had this docuuKJut. Mr. RouiNsoN. — Ye.s, that document has heen referred to. Yonr Lordslii(, will find that this wa.s a memoir on the lindis of Ifudson's Bay, sent hy tlio English C()rnmis.sarios appointed by England, through Lord Stair, Ambassador in Paris, to tlie Marechal d' Estrees, one of the French commissaiies. We then; hn\>- the demand made by the Grown on behalf of the Hudson's Bay Company. What cuii possibly be stronger than tlie demand made there as including the watershed rf In the Hrst place " the comm'ssaries named by His Britannic Majesty demand that the said limits may be delined " to '■ commence from the north cape of Davis' Bay. ' The Lord Cha.vcei.i.ok.— Thatis the4!tth parallel ? Mr. Robinson. — Mo, not what I am on at this moment. The LoiU) Chani'EI.lok.— That is farther to the north-east ? Mr. RoHlNsoN. — Ves. The Loud Cif an'celi.oh.— All that we have to deal with as to thi.s, is surolv the 49th parallel. Mr. KoHiNsoN. — Yes: but your Lordship 'vill see when I ])oint 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 orinto the Strait or Bay of llud- Hoa, under any pretext whatsoever ; and furtheriuore that ... the 40th parallel [shall iw their limit.] . . . The said commissarioa 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 wbh to be "to the Britieh aubjeoCH havinjr comrniseion from the Queen of Great Kritain to demand and receive the same." Tlie Queen's demand upon the French Court was " for an order . . . for delivering poaBe.isiim U> such persons as should be .luthorized by Her Majesty;" and the French King » command to M. Ji-remie in " to deliver up to the bearer of the (jueen of (Jreat'Britain's order, ' < u-. (Joint App. 601, &7.>S.i And the agents appointed to receive posaeHsion bore the Uueen'a conimiwion accordingly. {IIk ^75, T)7H.) Then as betvvenn the British Crown and the company, the contention of Ontario was that the coiniiany at this time had no territorial interfst other than such as the crown might of its pure grace choose to con- cede to it {ante p. 30,'!, note ^); that such concession as the crown ap|)eared disposed to make on the preeent occasion was, subsennently, in the actual practice - whether because of the intention having been originally to make it merely provisional, or becauKe and as a consequence of the company's utter failure to oceupy'thc interior country, or, in fact, anything beyond the few posts on the shores of the Bay— in large part iKiioreJ, or, at »I1 events, greatly restricted, and extensive regions claimed to be within the charter limite d«alt with and assigned to other fiurposes, w ithout regard to any supposed rights of the company. * Boundaries claimed by the British Ccinmis.xaries, printed ante, p. 159. t This was unauthorized by the Crown. See the next following note. + In making this demand as to the rivers, the English commissAries exceeded their instructions, which m ; ■iary .,, , , ,. ;- .. o- — n — — -^ •».....,,.«.. Bay Company in writing, with some few additions pretty material for their service." (Joint App. .IIO.) Later, Comnii.^saty Pulteney writes : "That the French huve not been willing to entertain us now and then with » conference . . . nannot f sh'-n'-l think Ic- aevr.-.nitcd rir, but by supp.vsing they knew wo oam.- preiMied to i.-ji-ct nil their demands, iind to make very considerable ones for ourselves." (Joint App. 512. 'Ihe Couii)any, in their memorial of 1750, still a Ihered to the parallel of 58J". :]68 HODNDAKY. Straits of Hu'lson, KVKXTS .OU,OVV.N., AM, C-OXsK.,. KNT OS. THE THEATV OK Vr.r.nVV. 1 as to this, is sureU ill-. HoniNsoN. — Yo9 evon iu Fivnch territory. "^ "-^ ''''"*^*^ '^^ "^^'^^'-'c*' ^^''^'nch trade Mr. RoniN.so.S'.-T'liey (lifl. The Loud Cm vxpfi Ton —TVnf i.. ,., nmul or one thoy w.r' i dv il^^l^Z^^n'Z T 'T' '-'^Z' '•'"^-"'^''''^ <'- tLouKht l.a.l boon ..anted to tlu^'HudsrL-: ''''■' *'": '"^"'" ^''-^ tJ.,. Crown upon France. ^ " *'''' '''''"'''* "^ '-'"' Hudson s liny Company were named indifferently IWcH,^ ^'"^ ^'^^'S^^ ''f land give and take. ^ 'actic.ilh tliey .uu.o to nmcl. the same thin-* They adopS\/;i:;.s^;:^:^;;i;i~;'^Se,.d'^r;,:''^\ ^?^'\i-ai...i, if it were because it seon.s from^the h^t^er^^ln^Z'r^ "\ '^T '^''''^''' •^^""''"^'' beyond which neither French or a nv n t n ". ' . " f'''''\"^>' -°^ '' boundary ^voul.l be quite unnecessary to u h U^ t , "'I ^^■'^' ,'^^ ^'V''!' •'^''""'^' P'^«« '^ Mr RoHivsov On,, n!! /• V *" '^'"'' 'lt''"and which followed consisten^pt^--^' :S'r;;u-:t^;;;,:'r^^^'^'^ ^« -^ -- It is coasistent because thev Srded t^ p -l. n f'"' !^' '"'^''^"''^'«^«»t' ^^"t that practically the same* ^ '' **'*'' ^^'■^"^'' '''"^^ ^he hei-ht of land as oithefi: t"t^?!^;X:"Tu^t;ro""^ fr '^ r;r»^"^- ^or such a., idea couldpossibly des;;:."S be^tS^^^^s^^.'S a'^ T'^^^V^^ ^^^^ pardlel S^c;:^:^'^^^ r^f ?^^ ';jj'-;j;;'^ *- ->• they demanded the 40th certainly have more tlmn tlK. A™ufvet ns ' "'' ''' '^' ''"^^* "^ ^^"^- ^« again;?\,^^t;^:;^;;^^;;«^i;;J*^;f - -- ^'f ^Jocument is vexy much indeed their territorial bou„5a vy bc^nse WW^^ "'7 t" " ^^" ''«'?''* ^^ 'and as rights, they then go on to^ de r. o reS F Xl't,: ^""''•"?' V^'''' *'^'-"^'^"'^J boundar,^ if thes^ rivers hap^^ne^t:^!:",^* ^t '^'^^^ ^^'«" '^ ^^e south of that all together, it iTutt^y npc' ibk rframf 'J ''' 'Y '' ^'^"^ ^«'"^"J ^^ ^aken more 'clearly including every^h^^ wlte^Thv thZ'n '""? '^"'"P'-^h'^nsible and we demand that no ship of vours sLlI^nl '• *h^''^"^'«»'«' ^^'^a"«e. first, they say W, note "!'''''' °^ '*"'^ "'"' *''« "°^ °f ^«°' '»««' ^e^y f«r -. beinj? practically t... same. See ante p tA, ^..dy jhewn («„.. p. 368. note t.) thi, de.and of the nvera wa« not authorised by the Crown. ^ ^/f AnOUMENT OF MR. UOBINSON, y.C, r«( J/UESTION OF BOUNUAKY : It seems to me that lariffiiaf^o wouM fail to incliulo luoro clearly a (Jemainl t.. all the countries watered \>y the rivers. Now, it in to bo remornhered, that was n demand made by tju^ Crown, iiuthoritativoly, upon France. It was an e.\ecuti\c act, at least of the .same c])aracter, I apprehend, as eommissions and so on, ami Im.-, the same weight in the construe tion of the i.'rown j^rant as commissions may havr in relation to other matters.* In 17U, the company at all events acknowledire the delivery of the property, and they repeat the limits, ami say they deiminil that the Fremrh shall not come north r>f them hy land or watfr. Sir RoBKur Coi,r,iKU.— When do they acknowlodgo the delivery ? Mr. KoHiNsoN. — It was in 1714. The LoKl) Cu.\N(Ei,i,OH. - What is tlie page you are referring to ? Mr. Ro III N SON.— Pages '>7(] and 577. Sir KoiiKUT Coi.LlEH. — This is what they acknowledge : •' The company do, with the utmost gratitude, return your Majesty their most huniblw and hearty thanks for the great care your Majesty has taken for them by the Treaty of Utrecht, whereby the French are obliged to restore the whole Bay of Hudson and th" Straits." That ia all. The LoHD Phesi DENT.— You ,soe what they tnean by that if you look at thy note at the top of the page 575. They mean what was meant by the (.triginal words of the charter. They say so themselves. There is a note by the Hudson's Bay Company. Mr. RoiJiNSON.— " The company are, hy their charter, constituted Lords Proprietors of all those lands, territories, seas, straits, bays, rivers, lakes and sounds within the entrance of the straitu," and 80 on. The Lord Chancellor. — At the top of page 575 it says : •' These limits being first settled and adjusted, the company are willing to refer their losses." Then they make a note. The Lord President. — I mean that shews what they mean by the shorter expression, " Bay and Straits ol' Hudson." It is their own explanation of it. Sir RoHERT Collier. — " All those lands, territories, seas, streights, bays, rivers, lakes, and sounds within the entrance of the streights," is all they say. The Lord President. — It is an old expression, which they are taking from the ori^'inal charter. The Lord Chancellor. — In one place, there is a reference to the commis- sioners with a view to the settlement of the limits. In another place there is an acknowledgment of the delivery. No person can suppose they mean everything they claimed had been de facto delivered.-f- Mr. RoHiNSON. — At all events thct was in 1718 and 1714; and what I have subsequently referred to, in 1719, is t!ie demand of the Crown, thereby, as we say, *It was not authorized by tlie crown. See ante, p. 868, note **. f There was nothing de facto delivered except tlie isolated posts on the actual shores of the Bay. .\nd yet the company expressed themselves as fully satisfied on that score. The French retained the interior jKistit ftud country until the cession of Canada. 370 HOUNDARY : I willing to refer their i, and sounds within ly are taking from THE iririXSON H HAY m '*i rriiuo _ _ _ CO. 8 tU.MH AH-fiU TMK THKXTY OF VJUKCUT patting the conHtruction upon then- own .■hnrt.,.. T. ~, '^-=-= .hall not ,.nter th„ Straits v-m. .hnl , al "w m'" ""'^" '''"'"'•>' '^^''''''''J >••"« thi/^?r'j;-ft.^:^^i:;;'^fr - ...o. i. That waM in 170]. It is to L )r.LiKu.— ""uouuiou rijrilt to all Hudson^ Bay, "The limits which the IIudaon'H Bav (•orn,^»« d«r.eH." i^-y <'Ornpany conce.vo to ho necewary aa bo»n- adhe^'t^then.:];uU;rH.tTtJ!',^^^^ '^ '''V ^ "^'^ -oepted. thov a.--epted. and that end., that.'' So ^-^ th t.,:;;^ '^"Z' .?^''^'*^- ^^ ^- n% had always claimed up to parallel 4!>, whe Ir "w. "^ ^° "'" '"''' ^^^^ «^"'"Pany the hei^dit of land. If they do not .H 4') 1 1, ! TT .T*' ""^ '''^'"^'^al with Imd adopted that elain. ancla.sertedit In- 1 r,! ^a.^u'lHt F """': ''^"'" ^''•<>-» inen we na.ss on to fli.. r,« - *• .• "'"^ " as a^'auist l':i.e.s /he a.i.nii: for the purpcse of this adrnis-sion into the L h.n i . i ,^^"^^^^t. •» other words, and terntory which the llndHou'.hayiiZ^nvhn?^^ ships will look at pao>e 164 wh..n ih ,. ^"'"P'^P^ hold or claim. Jf your fnrrJ »u„„ o(the,■.,forL!;,^!„?;J:ji''t^^rt;sth';i;':" "^ « ii;h will find U,.t th» Secieteiy „f b"tato S,, '"""""ly "Sui.i) ynu I.o,-.l- Ootot..! of Canada, ,.aj-in" : ^ "' "'° "^ "'«■>■'-■» "rote to tho Governor. ,^^„;: Vo. are ...re tha". the „a„„„. B., C.„p.., ,.™ „„der t,.e Ob.r.,r ., Sir Robert C.ou.reK.-That U in 1856 ullnnatel/eXd'ln tW C'rtltnS tt'^rKr?!",*!"' .""^ ""•""■»«''"» "k-l. to that now. That ia i„ e„„Letion ^^Si^mZ^^: ^2^;, ' "'" -">"« - ^':^:::s:^f:^^:^j!i:^^^ «i.i« «naor th. oh.rter ., u,o • Printed ante. p. 20«, note :. ~ ~ 1— — 1 _ \ L* _ ' :;„:.'''L'i- ';«Kion8 under-British domi;,nnV„r^!l!,'fc ?."'^"^"'i <='»'"'" to be, a8-B,;.t;;d~byM;Labonrh *'*''' '"■ "»« grant [i.e., the »ined and formed i.art of W >'ri" .'"-"rM^-V" V".'"™'*"^" "f Pariiament. a; „1r.:....:"V'*'° '"• ."."d 371 T AMfiC.MKNT . \¥ MH. HOItmsOX, (if .•IKSTrON OK HOrNllAliV ^-rmr.„,. -,,||„w.v| ii|,„n tliu' nn.l I .1.. not .Ipmh' to rvtev to tlioM.. neL'utiati.r .It ,*iju(th Hu.l iM .l.,tiul. bi'CfUH, ftu>y li.ivr \»Hn ivIcrrtMl to tnoiv or 1<.hs \t Q\mf* ♦ wa.1% anNWoiwI tliat, |.iactiailly H^-iMTtiiiL' that tli tnoii' or I<*Hs. iu> lliuison's imnyKa*liM,t,Cf.UHialrii,'litsfttall.^ Tfiex nt lionie ("'hk.f J'istico DminmH'.',' tiiiK!. to insiat iif -on that vi(,\v.f ThonMvas an .•ii.|iurv l-v a ( 'oniuiitli-f uf i! Moiiso ot "'i"».,ri.s HI i;n-lan(l (which i.s hefoi.- your Loi(lHhi|)s).vvho took .■vi.l. i,.,. Ih..' result (.full that was, that th.' British Uovvinmoiit .i-Iincl alt.vrHhrr r,, qmvstion the II..a,son'.s Hay (;:.inf.uny's chart.^- ; Tliev Mai.l to Ca.imla : We think" ourselves i,i.rh.,h..l,havi„;,rs„l.r,ntto.ltl att-r to" the Law Ortiocrs, hy overv pniiciijk'ol c'.mity, IroMi .|uestiunin<; the churtor.lS 1)(, ynn wi.sh to do so f.r yo)jrmK-,.s ? We will allord you every facility if j'ou like to .).iestion U. Caim^ia s.iKl . No, wo will not tako the ro.-,ponsihilitv of .|tiestioni.iir the charter!' Thw ti.e Hudson s Hay Company, at one time (in IHoSj, wer.' rather desired, by the tli.n tolon.al heentary, to submit the validity of their charter a. n ouestion forth Courts. J hey distinctly refused to do so. They said their charter had b.. i, .tirkc'r '^""""'""^'"^ """^ e.t.bli,h„.,.nt, ,n the North XV..Ht ,,ur.n^ntv:^':^>;^tl^:utluT:^U ruarl 'Ihs:"" " Ai'it";.^?' "". V'1 ''""'^^ V- 'l"ito Ren«'al. Tl>«y »re und-r Order in Council ,.f 16th IVh ruary, IH57 . As it ,, I|,»l;''H».l.le^to antu.pat^ the n»t.>r« of the evidence that may 1^ taken, or the con pre^,.n.^u> by Wn^in, forward ,r.y oh.in,H, of ;i;,;a or e;,;:j^ ji That is the Law Otticers, in 18S5, so advine as to the nuestidn of the validity but on wits . e:r"t lit ' ': i'.e wee'i'o""?"'"'""' '""«',' n" "' i''" ''"""'""•-■^ ol^h'.HuAlln'Xy !'A"' "lulf r '";• .. '«t»^''n ti"- Company and Canada, be made the Hubject of a ...lasi-ii etc. (Hee anil Ir note §. ) on the other hand, „ . , - »«ty Companv nuKht Canada, be made the Hubject of a (inasi-judicial en(niir>," 872 liDlNDAliV ; o tho.it' nef,'otiatii.r lion- or U'Hs. At nil iliiilson's FJtiy Cm. I. /'Istic»» |)iap(!lllf Vi:r K > 'olIKllitlci! ot l!: s),\\hn took cviill lire ••liriffl iiltoiji'tliiT ti Ciiiimla : Wo think w Orticprs, hy every 1 wi.sh to do HI) t'l.r 'jiK'Ntioti It. Caiiiula till' ch.ut.'r.:' Til. I, r dt!.sii-eil, by the tlu'ii H n <)ueNtioii for th; ir charter had Ijimh Iiitn iiroprietDiR of thi- null lurticiiIiirJy ilcliiUMt in tin' ritflit )t truiliiijf in thusK hwivii triWln of the inland )U((ly at viiriuiKe u-itli tl;.' tilld plllOf in HI) l..Mr;ill iitt.ciuiit fViTi to excrrin,. uiy »nil till) NorthW.Mt ' j'lintly with thfCiiimi|i;,n H, or set font in any nf tiii> e cliin' (if tlie la^t OMtitiirv, ight common to all i!riti..|i . Can. 18S7. No. 17 ; .foint lada in the direotinii uf th.. rill fueling htire in .stronKlv i< notliinK Raid in reijird rler in Oouncilcf 16tli IV)j may Iw taken, or the con or Her MajHsty's (Juvcrn Hin KxceUent'y'H powtr t'l . . Ah Hiiun aH any p.ir ry U constituted, yuii wjU west* or claims of Can;ida, rectin)^ any prrontcms im this Province may pi>sa("m, ; Sesg. Paj.s. Can., IS.V, 'rial Qovennicnf, iiirnugh • te9tir„i .'t, u '■I'.'iiii; diem md ■;'■." rl r. . ' Karl onn I: ■ . inpnuy « titlt- * alwayH pronounced, that ia, noteii.) .y, Imt, on the other haiifl, «in'H Bay Company iniK'ht a iiuasi-judicial eniiuirv," the validity of the ohmti-r, han upon Canada toinsti- to Her Majesty, of i;ith f Trade . . presentx a rter," and "that Caiir.iU on of this (luestion," cte. liniou is expressKi "that ;ho charter claimed b.s tli'-< of Canada, and is, if the App., 226, 240 ; and she, r c.t ths rrrip=n i! (!,.v^rr, ;lf have taken the nfce^- ^UKN..K.l^U.Mtt;..KnT-« U^SU TO HKU M V,K.STV-T.UNH.nt TO TH. DOMINION. r.'ooKiiiziMl hy niiiii. TOILS Acts of ParHiiin.'iit ii,.,l t\. .v. „ . 1 1 i • which i,ni,!i..d auv doul.t us to it. vu | ' P i '" '"" "" 'f"***,''"" dt'Ir;^iile,-t fi hi iheiv as i)..ini.,i,„: ivr'i,.,,,,,, t, Th,.,' »,.,,,„.';;',;'; 'r''' ""I ,*'"jr'\''' "'" '27:\ tiunst' in lS(;s th.. < v.i,.,r;„i ^ 1 i'"".rf >'>iir i.oro.sriip will hmi at ixiire iwlsLXin^'''^""""'^'""^" '''''-' ^'^ "--(ieneral, ref nsin'g 1 * See ante, p. 873, noto I. ' ~ ~~ — &.i!dTe"orWrtK:r^^^^^^^ .'■■™.-d th. ministerial delegation of that ye.r to Ministers on this head : '• We arnved at tt. c. „^^^^^^^^ tho Im,..r,.l the b'st for Cana'! that tlie compen-a' The Imperial Government consented UUh ' Th^Znl '' ? '"'"' K'"'"'".^"«J ^'y «'«»' B^ita.n. mittee of Her Majesty's Govornment were t.liopd l.v .,''"',r"r\Vr°"''-'""I"""'>'cati.mi, with the Com- the ITth'iune: Vm; .lg;;^e.7iti;'this"suU:t^t '^'rMT^Tn "• '-'l' *'■;• ^""^r!''- '^™'"''^h. daied vened, and the i,osition of Canada in reKarH? ih^H .ill,,^ t."*^*^';^'*''^ '"^ c..nf«,leiati,.n then intpr- Order in Couniil of 22nd .Tune 18^71 eh it " sta ^ thl?.^^""'^-^ ■« e alwirately set out in a negotiations with the lIudson> Bay Company or the elti^.Mn / "?»».'«'l """'d. e!•«.^^'>^ l"»vfi o,«n.. prospect of her h ,dv absorption into tC prom, eVunion^,,f ^ "{T'^'fr- '"«1 ■' "ot Ix-en for th. t would obviously fiuve b.^n impro,,;r for t e fW^^^ Colonies. .hich they could not ho,»- to coi ,ol -te J Ir ent^,**^ *?.."''"'''"'"''''' *-\,'='''n'».':.''=" negotiationK Ft which ThVcourd''not''ho,,H" to comolete" or" Jo" enT^"!!!*' ""^•^""nent to commence negiitiationK must fall on the whole Confedtrated IWiJL "^^ ">'' fulhlment of which No. 1!».) Then the JiftishNortirA^^^^^ iLn?"" ^'-^l' '^^'*'' ^'"''- P«l'«". Can , lH«r.8. Ru,«,rt's Land and the North-weSTfrXy^o^either1ffU,iri;1""H'TT- ■^*^^ '"' l'" <"^"">"^"'» of turns, etc. . and thereafter, m • , far L Ca3» W^ concprL "M'"' '-^""!''' I'l' T'' '<""•"" »"'* '^""di- counsPl's ,vn clients, the J)<.iiunion Oov.rnment. '=""'=""«'*• "'« '"»"«'• «"»»in the hand, of the learned of H;,ln-s''Lai*dTd\'heS?onir;:;^^^^ -^ l^T™*^'' '««^- """^'^ '- »»>« »""""" Vour MaieBty's ttovernm-mt iwrerinTt'rtran" e^^^^^ ( WH P,';'""""."',.'*"'^ undertook "That in the event of the Government and ParliainXt'T^anada w 1 ,e reX^^^^ and control o.er the said region. interests of Her Majestv's sub,4s in ei^st^'d in tVnil I,,! '■ ''" ^^:"''^^ " J"",' ^''*""''' '" **>« "«''"' ""^ reMiiisite powers of governme. t ^nd 1. giTattn cann r..!n.i»i"Ti'- ^ '«>'»"' »''^ '»«'!' however, that the mm'sBay Company^.e.ranXrmlt, Cana aw^^^^^ ^^^ ^■"'*„"'i*< charter of the Hud- obtained- it is neoe«s;r^■ to c ,n iXr the posit on ,tl^ Hodton- "' P"!;*""""'- Before such an Act can be upon the C,)mpanv to state the term "on w id. th.'v V,, H "^ Company. ... I have called ever rights they have. . wit ?the inT wfon^l.^n " '""'■"•' ^ t". surrender to the Cn.wn what- Imt that in the transf:..e„co of\he,r rill). " , CaHa il^' m^^^^^^ '"'^""'"' '" T"^'^ 'l"' ^ "''^'' "' '»>«"'• portions of land (etc. | . I purpose to intro.luVe Him fn. T* r '••'^^■[^^'•""."'ade to them of defined anthori,.mg any arrangeuient which maTbee?^^^^^^^ I',? ^' " ^r "' ^^'''^'li^S' •*"'' '*"' ^'««' "^ pray^ofa.eAs::''iJ^i;;;Cc:L:c^r'^^^ 373 ARGUMENT Of MK. ROiUNSON, (J.C, re QUE.sTION OF liOLNDARV l:f; mid so on. So that the intention of the ffovernmont htre to pass a Bill definin.. 1 o.'o Tt'*"''^ '^*'' ^^""^ *''•'" «^P'-essed. Then the next thing we find is tha. in 1808 Messrs. Cartier and McDougall, two of the then Ministers of the Crown i,, Camula^ were sent to England. Thut was after the passing of the Ruperfs Lan,! • ,*^«"'",/^V'i''^"P ^''1' «nd. at page 275, that before going to Eiigjarui thov specially called the attention of the Government " to the terms of the recent Act of the imperial Parliament to 'enable Hor Majesty to accept a surrender un.m terms, of the knds, privileges, and rights ' of the Hud.son's Bay Company 'whiol, declares that Rupert's Land, for the }.urposesof that Act. ' shall include the who'lo ot the lands and territories held or claimed to be held' by the Company ' " And they recomniend that they be authorized to arrange for the adtnission of th. Worth-\Aest lerritory 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-General. Then the Ruperfs Land Act is passer] which is to be found at page 445. Now vdiat we say with regard to that Act ij that It practically puts an end to the whole o( 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, and for the purpose of the transfer, the property was defined, and it was surrendered to the t^owii as all the lands the Hudson's Bay Company had claimed. ihe Loud Chancellor.-— Held or claimed. • Mr. Robinson.— Yes, " held or claimed to be held by the said Governor and (company. Ihen 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 sum of £300,000, the money coming from the joint purse of the con- federated Provinces. ^ o j f The Lord Chancellor.— Supposing any part belonged to Canada. Nothinir was paid to Canada, I suppose— was it ? Mr. RoBiNriON.— No, it was not ; but for the purposes of getting that Act, and tor 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- pose, to be part of Rupert's Land. <= j f Sir Montague Smith.— How does Canada's claim affect Ontario ? Mr. Robinson.- Simply because Canada now derives her title to that pro- perty from the Imperial Government. Let us just test it. *v. * ?i^" ^f"^^^^ Peacock.— It was to be surrendered to the Crown on condition that the Crown was to put it back again into Canada. That was the Act of Parliament, Mr. Robinson.— Yes. Sir Barnks 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. • Tn® ^°^^ Chancellor.— It is an extraordinary thine to sav. that the Im- perial Government took, without consideration, from Canada, or Ontario, part of 374 liOUNDAHV OPKRATIONS OF THK HUDSON'.S BAV CO. WITHIN THE LIMITS OK CANADA. Canada. Nothing !JistS nrm;ertv '"o?'^''^ '* i" Ruporf.s Land, to be by son.e future Act n.ade a distinct property. Of course, if sucli a thinj/ was part of the Imperial Act it will receive Its proper construction, but it soe.Ms to be an extrao d na.y 1 fm O course, that assumes that it was part of Upper Canada. IfT wm Jrt ot LJD,.er tt .t'cU '""'"'"^'^'^*^ P-^ -J- the Act, then it cm'; lit Si^ C.Jti^^''T^°''■~^'^.''''^ ^''" '^''"^' P'^'" ^ J^ r^oi the property which S m tVlS'"^ S^rno; the property which the Hudson's Bay clmUnv h"ld or Vis look a whVf r '1^" f f""" ^^:'' ^''''^"'^y *^'«>' ^y^'iolaun to hold ? If o'hoid that af J, ft! 'f ?P^ a contrary construction would be. Is it possible nroneHv vvLe w . f " I^-^^vinces have paid a sum of .t;JO(),000 for this SX f?;.: tll^Sr jdnt ^i^r^ ^"'^ " •'■''"* "^^'"^'^^ -^''^'^ P--— noticr" ^'''''' C;"ANCELLOR.-Property taken from Upper Canada without Mr. Robinson.— Not without notice. The Lord Chancellor.— And a rate levied rpon th.>m to mv for wbpf be onged, not to them but to somebody else. But th^ere is no t e .Stest Trace Canada,'" ''' '° controversy, that anything was to be taken f^rom Upper Mr. RoBiNSON.-All 1 desire is, to present to your Lordships what we con- ceive to be the meaning, and see what the practical result is. Supposir after this money was paid for this territory, derived from the source I WalreadT ;rtt^brn;r.iurb:f> "^'"^ ^" ^-^ -y- -^'y- *^-^-^'^« ^^ The Lord CHANCELLOR.-But they are not so claiming. ■ Mr. Robinson.— They are now claiming „„.^!'^^''''''P''f''':'^''^ou.~ThatcMmi, set aside as manifestly unfounded and you are not called upon to answer it umuuuueu, the H!idson's'R„?r^"' *^''^; ^'^ °T "1^^"^^°^ *'^^* P^"-* «f the property which The Lord CHANCELLOR.-There is nothing in these words to shew it .r<,«t .Lw7T°''- P"'*^ *u'" ^^^*r controversy. Upper Canada did claim a great deal of this property as being theirs before the transfer Lord Abeudare.— Who is the Honourable Joseph Cauchon ' Mr. ROBINSON.— He was the Commissioner of the whole Province Lord Aberdare.— Of the whole Province of Canada ? vince'J^f CrnadTinTiS: ''' ^"^ ^o'-ni-oner of Crown Lands of the Pro- repretnt?'^"™"''"'"^" ^^*'^' ^''''" ^' ^^'^ Commis.sioner, what did he Mr. Robinson.— He represented Upper and Lower Canada of CwL «rf "tT~Y'^'"f?" '"o" *° r°^ ^^'^' J'^^ ^'"^ ^^« ^J^'^fc the claim* or L/anada are. I do not see Upper Canada. Mr. Robinson.— There is no doubt what their claims were. They made the HghtTt'all "'■ ' "'''''"'^ '^'^ "'' ^"^^'^"'^ ^''y ^^'"P*"^' had no tentorial R„v f^''"'^ Aberdare.-No Look at page 109. You will see that the Hud-son's Bay Company were allowed to establish themselves on the Canadian territory Mr. Robinson.- Ves. They assert the French view. texntoxj. 375 i' "I! 1^ 1)1 AliaUMENT OF MR. UOHINSON, (^.C, re Ql.KSTION OF BOUNDARY : Lord A»ERDAnE.--Look at page 1G9, at about line 12* The Commissioner says, that the (I^Jonipany " 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 Saguenay,"~which I suppose is wholly Canadian,—" the St. Maurice,"— which 1 suppose also is wholly Canadian,— " the Ottaw^a, the Jied River, the Assiniboine, or the Saskatchewan." You will see that they couple together the rivers w-hich are undoubtedly and indisputably Canadian, with those which the Hudson's Bay Conipany claim, ah having been permitted to establish posts there : "Wherever thoy 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. RoBixsoN. — Yes, and you will .see tliat the wording of that passage clearly corroborates what I said, that they emphatically denied all rights of territory to the Hudson's Eay Company. Lord Abkrdare. — 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 our 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's 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 of little 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 really which authorizes the Hudson's Bay Company's surrender of all tliat they claim. It is not because it authorized the Hudson's Bay Company's surrender that it would be binding upon any other * BXTBAOT FKOM THK MkmOHANDUM OK THR HoN. JOHKl'H CaUCHON, CoMMISWIONKB Olf CrOWN Lands, Canau.^, 1857 : — " The second point to be taken into conuideration, nnd which is of a more important nature, is that which affects the oijeratiimH of the Company within the boundaries of Canada, and on this head, it must be admitted that they l\ave iiad every facility tliey could possibly enjoy in their own territories, if MUch exist ; whether on the coasts of Labrador, l^akes Huron, .Superior, or Winnipefi; ; whether on the Sague- nay, the St. Maurice, the Ottawa, the R-"^^i h^v^:. rr.r;;„;rrLrs ..thoriti^ whiJvtV'ntd or ™.S"l.T„l''r!T .l'""""';"' "'"■" «"<" the .>id OoverDor and Company" ES™,,^i'j"'''' I'' '.'.•,""" '"'""" P"""'. «» Ku(»rt'.L.„d>h.ll troTad.l.ST7h ■ •^'f''"™",' »' ("anada, » declare that pa« ot th. DomSnTcM^I" »»nt,onod, b. admitted Into a»d b»,oo., 2' k:Z?:.'-Yer -'''"'' *''"" "■" " ™ »<" - wore. tt-eP"^ now acting within the said H.it, shall coiTelntuir fo^^TnTS Now, remember that that was authorizing the Dominion to make laws " for fh« peace, order and good governn.ent " of t°hat country ; in oUer words that the «ovem.nent ot that country was place.l under the Dominion ' ' the same '''^"'^' «MiTH._Then that leaves the boundaries of that country just ^^ «■• RoniN-s oN.— If it belonged to Ontario. c.mH.re.iend alKhe i.art. of Hritish CtrAmoric^^n f^^lin '"O'^nada by the Imperial Crown was to whit w»H n,.t ei,il,race1 in tlu, h. -rander u lerThM d™S ,?^ ^mUs of the «atabli,he.1 Provinces, and the desiKnatio,. of the ^^.rth-WH/te^, Te r t, r e^^^ anT P,vnaVI ,h:!''T' " '^'""'' ""'^^ '"«l"-««--«'l *" >t under 377 f 'Mi ARGUMENT OF MR. ROBINSON, Q.C., re gUESTION OF BOUNDARY : Sir MoNTAGlE Smith. — That is the question ; then, it is not part of Rupert's Land. Wliatever was part of Ontario was alre.uiy in that Province.* Thon Rupert's Land was made part of tiie l)orninion. The bou'.ulary b'^weeu Rupert's Land and Ontario is wliat we are trvin-^ to j,'et at. They cannot claim to hold, v/hat belonged to somebody el.se, unless^ they make out their title. Mr. li'OBiN.soN. — 1 say that the result may be this, that after all the negotia- tions, after the acquirement of this territory, described as it is described by thai. description, including tliat which Ontario now claims, Ontai'io may come and say " Part of that pioperty which was purchased by the united funds belongs to nie." Tlie Lord Chancellor. — No ; they would not say it was part of that pro|)erty. Sir MoNTAOUE Smith. — You assume complex propositions which they deny. Mr. Robinson. — I submit tliat I am able to prove, and that I have proved that they claim it as part of their property. Of course, if I have not proved it, my argument fails. Sir MoNTA(iUE Smith. — Supposing that any part was formerly a part of Canada, do you mean to say that it ceased to be Canada and became part of Rupert's Land ? Mr. Robinson. — I say any part which the Company claimed to hold at the time Canada came into the coniederation ceased to be a part of Canada there- frora.-f* The Lord Chancellor. — If it does not apply to the whole, why does it apply to part ? Mr. Robinson. — I pass now to the question of the commissions, which your Lordships directed my attention to some time ago. Lord Aberdare.— From 1791 onwards ? Mr. Robinson.— Oh, from before that — from 1774. Now, in the first place, they say that the Quebec Act defines the bounds. The Lord Chancellor. — Supposing these commissions shew what was understood by the Crown of England to be within these boundaries, and what was acted upon as being within these boundaries, does it not require that we should take the two things together ? Mr. Robinson, — Yes ; but I say, whatever is the meaning of the Quebec Act, that defines the boundai-ies. I say wherever the commissions are inccnsistent with the Quebec Act they cannot claim to change it, or affect it in any way in its operation.:]: I say, wherever the commissions are uniform, it may well be that they in some way throw .some light upon the Act and explain it ; but the only benefit that we derive from them, in our view, is that they do explain the Act. * And if already in that Province, then already aUo in the Dominion, and not therefore a part ot Rupert'^ Land. + This extraordinary propoaition, thai a part of the undoubted territory of the Province of Canada ceased to be Canada, simply bBcauee the Hudson's Bay Company "claimed to hold " it as part of Rupert's Land— a« they did by their "Statement of Rights "and map of 1850— amply justifies Ontario's construction and reading of the Rupert's Land Act :- " lands and territories rightfullii held, or rightfully claimed to be held," by the Comjiany. t Ontario dissented from this proposition in so far as the ijjuestion of boundary was concerned, and maintained that — leaving aside the case of a restriction or narrowing of boundaries fixed bystatute, wliich, moreover, did not arise here— it was quite within the competency of the Crown-^of the Soverign in Council, by Order, by ComnuBsion, by Proclamation— to enlarge the boundaries of a Province; and that, therefore, even if the Province of C^uebec was limited, on the west, to the due north line, by the Act of 1774, its limits were extended to the Mississippi by the commissions of 1774 and 1777, and to the meridian of the true source of the Mississippi bjr the commission of 1786. In the same way Ontario claimed that if, north of the sources of the Mipsissippi, the Province of Quebec— and the Province of Upper Canada -did not already extend, westward and northward, to the limits of the French occupation, they were mo extended by the Ordfrs in Covraei! srsd rroelanritttion of 1791. a7s BOUNDARY : w, in the first place^ id Dot therefore a part ot KFFKCT A\[) SCOPE OF THE ROYAJ, COMMISSIONS JO THK (iOVEKNOHs. MrssKss.ppr and I have said all r ha^ o a ah nr '/f'^'" ''^"'^ ''^ *J>« the com>.us,sic,n is clear and that the A.^s S ' /'S ^-"l' ^''"^^'"tio.. is that argument ah.nu that. Now the next is the <• . " ""V T^' '^- '^'"^^ i« my commmion to Sir Guy Carleton. < '>"nn.s.s,on oi ITSb'.^ That wa. the iadepe^r^^'ihe'iorurii;^^^ .o,u,„i««i.n is entirely Lord AjiERDAUK.— Remeinhp,. +1,;: -A ?, ^'" ^^" '''^'e''«. The LoKo PitKs.DENT-?cs it « ' '\ ■'■ ^''" '^'P'^'-^ti^n. ^ Mr. RoHiNsoN.-No. ' Of co'u se it C'T ^'V^" ^'*'* ^'''« ^>""^ "^'^th line, because all the .southern territory had I een .inn? I'^I^'^r" !' •"««'-«»t point, between the co.nmis.sion of 1786^nd thenr • " " ?'^° *'"' f''"** distinction commission differed from the Ac\^ai„ to t Afr" • ^ • ^^*. ^^ *^'«- '^ ''« fi'-^* Its eastern bank.^ The next conm s^on .Z \ T^^'' ^'^ ^''«" goi»ff along cunously_it goes to the Missis.S a nj f\Tn ^Z '" n' ''T^'''^ '^ *^« ^ct • ^omg northward "along the eastern la k 7th ■ aT'''^^'^'-' "'j'^^""* '^^^'^^ thing. We may say. on our .side thn/ 1 f ., Mlssl^.s,pp,. It i.s a curious m ssion did notlnte'nd to depart fro:^h worSl^ ')V\'''''''^'' "^ ^»- «»'" "'Jssion.li ^ ^^^^ woiding of the Act in their first corn- Mississippi hS bee"nSerto'^e^Un\S^ ^T '^'"''Y'' ''''''' -^f the not understood at the time ^'' ^' '^'^^ evident that that was Mr. l?OBLV.soN.-Downwards.!r my Lord. S'RoT.s^ori?ertLT was '''' "^ • '^ ^" ^^^^ ^^ ^-^ ^ .mission of i7«6 gL bis toth:;rdi'iPoT;h:\c4^'7f "'^"t^r ^^^ -- concerned--it says, if I recollect rightlv that f h A ' a ^' ^' *^" Mississippi is T rtinted ante, p. 40. ' . i The argument of Ontario wan f hat »!,„»» acommwmon asoonclusivelv «»faM,-.»..v„:.. : . * ^^^- •^**- word "north- -. abutting uix)n original boundary n » • ""^ """"^ °' tnat of the commission n( ittI/t T a ' ""' ward See nunrn. nnfa H ' See aupra, note | 379 i ' 'i 1^ AIIGUMENT OF SIH. ROniNSON, Q.C., re QUESTION OF BOUNDARY Lord AitEHOARE. — We have been told that the supposition was that the Mississippi was west of the Lake of the Woods, but would not this seoin to extend the boundary froiu the Lake of the Woods to the point where the Mississippi goes. Mr. RoHiNSON. — Nothing could be plainer. The Loun Chancellor. — Then it turns out that that was an error — you can- not find any western point in that way — and that tht> arbitrators were therefore right in stopping at the extreme point as a correct description. Lord AltERDARE. — 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 Coli,ikr. — 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 Ba3' Company's territory.* Mr. Robinson. — Both the commission and the treaty were founded upon a geographical mistake. The Lord Chancellor.— It is so, no doubt. Mr. RoBiN.soN. — 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 commission in these terms. Nobody in the world can question that. Then, what weight is to be attarhed to a commission which h 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 Prestuent. — It is quite accurate as to the southern boundary, from Lake Superior to Long Lake and the Lake of the Woods. Mr. Robinson. — Yoi cannot get at that without interfering with the rights of the Hudson's Bay Company. If their rights are what I have said, if tlie Hudson's Bay Company are entitled to the height of land;): (I do not want to go back to that) — the Crown could not take it from them by a commi.ssion.§ * 3uti that would bring the boundary of such territories to the southward of the height of land ; and even the company never claimed that. f Counsel might as well ask, What weight is to bo attached to a treaty which it fo\inded on an error? For, in this respect, this comniinsion of 17S6, which wan the firnt commission issued after the tre.ity of l'i>i3, sim))ly follows the description of the internatiouftl boundary laid down in that treaty. That error in thf treaty arose, it is known, from'its framers having for their guidance Mitchell's map of 1765, which indicattd that '.he Mississiippi had its sources in about lat. 50' and long. 105'^. {Ante, p. 107 ; Notes on Maps, Jntario App. 114). As the treaty description was held good, and remained undisturbed, as far westward as the mo.-it nortl'western point of the Luke of the Woods, so the description in the oommis.sion remained good up to the !ame point. !^. Ontario opixiaed tliia theory of the height of land as unsupported by any tittle of evidence, and it hiid ali'eady— when put forward l)y the counsel for Manitoba at an earlier stage of the argument— been emphatically disposed of by their Lordships as untenable. S Ontario pointed to the cominissiona ss very solemn acts of state, guarded by extraordinary formalities, (see ^ome particulars thereof, ante, p. Hfi.'), note *) and to this particular commission as evidencing that in the mind of the Crown the company were not justly entitled to so extensive a territory. And as fo counsel's contention, that "the Crown could not take it from themby a commission," Ontario claimed that thesu|)- posed c.'iie liad ti'it arisiMi, at the (joiiipanys clmiter rights Lad not extended to tht- terriLjry iu ipiea- tion, but that, if they had. it would have been competent for the Crown, in the circumstances of the case, to take away by commission what had been grantetl, or purported to be granted, by charter. .*580 OUNDARV POSITION OK THE ILLIXOIS AS AKKKOTINu Till.; (.., RSTION OK T the height of land ; and III: LIMITS. wliy did they not th.. IJ':^.t'^';Ci7,^;:t^rr:;■;z,v;i!;s^'''''' '"■ *" "-^ -"»'■»" h„n,,'redv^™;'°,f;i"''""'""-^''''^ -»""-°" i'- "» -a.ly a, „„.,,U,Ie, one Sir JlouERT Collier.— Yes tucio^ai Act""''''''""^'^' ""'' ''^ '^^' '' ''^^' '' ^^■"^'•'^'ly termed " the Consti- Sir Montague Smith.— Page 393, is it not ? LordSuiJdmt''nu;;rP'' ^"^ ^ '•""''^' ''"^"'^^ ^P^'''^'^^^^^' ^o those, remind your oU fte Titorv Hin •' 'TT''''' n^ "' ^'' ^^'- J^^»'"'^«"- I t'""k in respect 01 the teuitory ot Illinois, which was referred to by mv friends as atren-rfhonincr ti'TA'T'"'-' '' '^' "^'"^"^ ''''■ '^^hat is to hi foiCl at pa" « J f n "hS hrst place here ,s a singular circumstance connected with that, and t t is that they are a 1 commissions to Lieutenant-Governors. The one t7 Air Johnson your Lordships have already had. That has been referml to by myhievdBZ wirtluSeS"""' ^^"«^-^«- ^' tb^ Q-'- Act, and theb vLIa^lSob * See ante, p. SsO, note J. t See antr, p, 3.S0, note§. i This 18 not a (lueation of an Act of Parlinmanr h.,f „f n, l . . _ 378, note t, 880, note g. auiament, but of the charter of diaries 11.: and aee ante, pp S The inconsistency hag not been shewn. Ontario shewed th.^f ♦»,„«. apparent vanafon «^ explainabk, and ha,} been ""Lined. *''^"' "■"*' '" ^''«' »°Bej that any I Printed ante, p. 134 " See ante, p. 35(i, note *. 381 AHQUMENT OK MR. UOBINSON, Q.C., ?•« QUESTION OV bOUNDARY : Sir RojiKRT ('OLLIER. — That goes against the duo north line. Mr. RoniNsoN. — Yea. \\ hat I want to point out to your Lordships as a curious circumstance is tliat if you look at pa^e S'^o,* there is an item : "To Philip De llochoblave, Esq., for his H»!ary aa coinraandant of the IlUnois from the 13ih January, 1784, to the 13tli January, 1785, pursuant to Lieutenant-Governor . Hamilton's warrant, dated 2nd March, 1785 — .£200. Against that is put : "To this article I cannot assent, as it is unprecedented, and as it introduces a new appointment upon the civil eBtablishnient of the province, and the more especially us His Excellency Clovernor Haldimand declined issuing warrants for the six months ending let of November, 1784, for the salaries of Lieutenant-Oovernors Abbot and Johnnon, though commissioned by the King, as St. Vincent and the Illinois were wi^'^out the limits assigned to the province by the definitive treaty, and not occupied by the King's troops or subjects. "-f- I point to that remark to say that I myself am not able clearly to understand it. Lord Ahkudaue. — St. Vincent is within that line. Mr. R0BIN.SON. — St. Vincent is within the Illinois.:^ Mr. MowAT. — The explanation is, that it ceased to be British territory under the treaty. Mr. Robinson. — No; he .says it was "without the limits assigned to the province by the definitive treaty." The definitive treaty has generally been spoken of as the Treaty of Paris of 1763. That is what has been called the definitive treaty. The Lord Chaxceixor, — No ; it is made perfectly intelligble there. Lord Abekdahe. — It means the last treaty there. Mr. Robinson. — If it means the last treaty there, of course that makes it clear ; but the one that has been so spoken of throughout thi.s book is the treaty of 1763. I can shew your Lordships that in many places. ^■"|The Lord Chan'celloi:. — It agrees with the fact. It is without the limits defined for the province. Mr. RoiilNsON. — By the treaty of 17S3 ? • Minutes of the Ooiiooil of State for the Province of IJuebec, 23rd May, 1785, On Monday, tlio 23rd May, 178,"), at the council charaVx^r in the Bishop's Palace : Present : The Hon. Henry Hamilton, Esq., Lieutenant-Governor and Oommander-inOhief, Hugh Finlay, Thomas Dunn, Edward Harrison, .lohn Collins, Adam Mabane, George Pownal, J. G. C. DeLery, Henry Caldwell, Francis Baby, and Hanmei Holland, Eeiirs. Mr. Finlay, chHirnian of the Committee on the Public Accounts of the Province, iiresented a further Report, which was read toateiher wich the former Report. Mr. Mabane read, and delivered to be entered on the minutes, the following paper, viz : " I observe in the Acting Receiver- General's account current, an article of the 3rd March, 1785, viz.: " ' To Philip l)e Rocheblave, Escj., tor Ilia salary as coiymaridant of the Illinois from the 13th of " Manuary, 1784, to the liith .lanuary, 17S5, pursuant to Lieutenant Governor Hamilton's warrant, "'dated 2nd March, 178f> i'2O0.' "To this article I cannot assent, as it is unprecedented, and as it introduces a new appointment \\\km\ the civil establishment < f the province, and the more especially as His Excellency Governor Haldimand declined issuinj? warrants for the six months ending; 1st of November, 1784, for the salaries of Lieutenant- Govai-nors Abbot and .Johnson, though coiiiDiissioncd by the King, as St. Vincent and the Illiuois were without the limits assigned to the province by the definitive Treaty, and not occupied by the King's troops or subjects. "A. Mah.-vnb." [Lieutenant-Governor Hamilton transmits the minutes with a statement of the facts to Lord Sidney, Secretary of State, by despatch of 9th .Tune, 1785. In this he shews that Sir Guy Oarleton and, after hini. General Haldimand, had allowed thews payments, and that they had been continued by himself and had always passed the Treasury. (Joint App. .385. Public Record Olfice, Colonial Office Records, America and ■West Indies, Canada, \m>, No. 619.)] + This is the protest of one only of the Councillors— Adam Mabane. X This place, otherwise called Saint Vincenne or Post Vincenne, was on the Wabache, on its left bank, |ind there.fore nol within the limits of the Illinois. It wan a HenArate TjientnnAncy, and tne comfnission to Edward Abbott as first Lieutenant- tJovernor is printed in tlje Joint App. 382. See anlt, p. 3S6, note *. 882 )UNI)ARY: ^ to unclerstand it. ish territory under vithoufc the limits On Monday, tlie 23rd ice, tIIi(Thlp hut it io «»»■ what is called the definitive treaty.-^ AlthouU h r^ 7a ^ m nission S n. J'"V V^''''*"'->^ "P ^," ^h« northward. One wouhi expect to find cLu "sions tor the Government ot that territory as well as for that of Illinois. Th', sS that 1 1.S ..ot taken as beuifr within the country.+ Now I pass to the Ac of 1791 which your Lordships will find at pa- ---^ro^^s.' fn U. 'h>: 'rceTo' will hnd that the Act does not i>rofess in any way whatever to extend or to dimmish tiie Province of Quebec. It simply says tlmt ' His Majesty has been pleased to sigaify . Province of Quebec, into two separate provinces." his Royal intoation to divide hii Now that would authorize no Order in Council which did more than divide the Province of Quebec, if there were any such (Jrder in Council Lord Ahkrdahe.-I suppose there is always .<.,ne ambiLMiitv in what the meaning of the Province of Quebec i.s. because the Province^,f Quebec as first constituted was very far from covering the whole of the territory ce led by the Irench, and when you say the Prov.'.ice of Quebec here, in the A U,f Siament It mean,s the whole of the territory ceded by France iaiaainent. by th^ QuerrS:"^ "^"''^'^ '^'"'^ '' "'''"^* '^'' ^"''^'' «f '^"«bec as formed bnf Jil'b J;""'' Chancellor -It does not deal with the south-western boundary but with the north-eastern boundary, and it is material to observe the laugua/e' t^::!':^£:^::t''''' beene^uivocaUr the other commission^, ha^d effect^of Si? rr'T^f' "}^ ^"■'- , .^"''':,'' ^'r*' '^'^^ ^"^ ^'^'^ ^^'d "^bout the fn cin.;i • , ^f'}.T'' '*'" ^^^ ^'^''' ^^*^' '" ^-'^nnection with the Order m Council issued upon it, did extend the Province of Quebec whatever it raieht have been before 1774 All we have to say is that the Statute Sf doe not zLfii t'tt's ^;77r^^' ^^ '''''''^ '' -'''- ''- '--- ^^ ^-^-- The Lord Chancellor.-Is there any inconsistency between the two if the rte,p''^ ''^'''" '"^ H"'i^°"\'^-y ^--tory and the French terSy was stated ! Supposing, for instance, that the French territory is regarded as runnin' up. in accordance with the line of the Award, to Hudson's Bay, is There an| mconsiste_nc^' in ^ny pa|totjtht^aiiguage of the (^ec Act and this language? Fnena.,hip . . . signed at l4ri!'lh:'^;d'^f'^4tl.fbr;.''lW^*^-^(8r^^^^ "' ^'"^ -^ ineae dependencies probaWv embraced fhi' nnuf., .,f fKo tt.„,„- «r' ■:-•.- "i"-" "","■-■■ ."«^F«:""««";ieB. Save, or tn Mir.hll1i.v,LL.;.,!i^:^ tV™[!?u°5_'' ."i"'; 1'™" ''f t,n« Upper Mississippi, formerly tributary to La the Lieutenant-Governor of Missiliraakinac. Ro„„ i »»■ Ln- i"\'^'*"-y """iracea tn« posts ot the V whlh 1^1 Michillimackinao. Then there wa^ a commission to the Liei denosit'^i^H r"^''^'^.;'"*^ jurisdiction over all the northern settlements Michihmackinac is the place of rtonr.i,;f » „,<.■.<• •'j jui""un,t.un over aiiine northern settlements : in'oni! C4ar "'"""" ""' ""'"'^'^ '"' '*""''^''''' '^•--'1- Hen*t\%^^^^^^^^^ 'm^at^t'^^^i^'S:^, °f U"f- -<^ I'"-" ---^-^ -ere set. in 1791. not by the Act in 383 fr AHQUMENT Op Mil. ROHINSON, IjC, re (QUESTION OK IIOITVDAUV Mr. RdlilNSftN. -If we i.-rrnrfl tlio- Krenoli territory as niiiiiin;,' up to tho lim. of Hudson's lUy, aii.l tlie Fn-ncli n;rl,ts ,is thereby ovorridiiig th(! riglits of tl„ Hudson's Ihiy ( 'onipany, there may not be.* Tiie Loiii) ( 'llAM'Kr.l.oit.— TluVefoio it d^'pends on the fact. Tlie siiij.'estin., of inconsiHt^..ncv involves a hypothesis of (act, viz., that th,' Hudson's Bay boun.hiry (hd not coincide with the award line, or at all events that it did not carry the Krench territory in Canada to the .shore of Hudson's Bay. But tliat is a thiiijr'to ie ))rove(i. It is not pmved by the langua-je of the t^uebec Act Mr. R()iitIU'soN.--I do not wish to go liack, but your Lordship will see- - Sir MoNTAfii'K Smith. — I tliinl< you are tryini,' to meet an ari^niment which you suppo.se wa.s u.sed on the other side, viz., tiiat this Act exten.led tlie boundarv Mr. HoiUN.soN— Ves, that is wliat I mean. Sir Ab)NTAGi;K Smith.— I .jo not know that tliat was argued. Mr. MoWAT.— Not the Act itself Mr, BoiUN'soN. — I certainly recollect that argument often having been used and I thought it was used at the bai-. Sir Il(;itKHT CoLLlEK.— You are Hghting a shadow. I tlo not think it wa, argued here. Mr. Iloiu.s-.SON.— I know it certainly has been contended. Sir MoNTAGCE Smith. -It has not been contended at tlie bnr. Mr. Roiu.vsoN.— 1 certainly have heard the contention veryoften.f Sir MoNTAaiTK, Smith.— It was not contended here.! You say althoucrh it ha? been contended that this Act extended the boundary', it wa.s merely an Ant for the division of the wliole Province of IJluebec into two. The LoHi) (Jhanceij.ok. — It wa*^ rather put forward a.s e uience of what the boundary of Quebec wa.s. The words are, " From the head of the said lak. ' (that IS Lake 'lemi,scaming) " by a line drawn duo north," (which is certainly the hne we have here; the blue on the (me side and the red on the other) " until it strikes the boundary line of Hudson's Bay." Well, of course we may say thai, tlie meaning of that is one thing or the other, but at all events it gives you tin- boundary between the two provinces up to that point. Well, that point is, the shore of the bay, or it is the boundary line, wherever that miglit have been uf the Hudaon'.s Bay territory. You of course say the latter, and that that ilid nob coincide witli the shore of the bay. Mr. RoiJiNSON.—Yes, my Lord. The Loud Chancellor.— There is no doubt .something to be said upon your side; for instance there is the prima facie force of the words "boundary line" a.s distinguished from the "coast" or "shore." Now, I should like you to address yourself to the question whether you Hnd a similar descrii.tion to that in tlie commission of 1«38* in any place connected with this dividing Act, upon which those commissions must have depended. Lord Ai?ERi)AHE.— I have looked through the Quebec Act, and th« coni- mission.s founded upon the Quebec Act, and I find there that the Hudson's Bay Company, whenever they are nic.itioned, are described as 'The Merchants Adventurers of England trading vo Hudson's Bay," and the first mention of "boundary line" is when 3'ou come to 1791. v,J Wn^'V'"!'"^*^ "h''^*' Impeml Crown held in it^ielf, at thi« time, every rival territorial iut^ French and Euffhah, and was competent to deal with the regions referred to without regard to any bul posed rights or elainig of the Company. See anu p. 190, note t. e " ».• •»"/ ""v +See ante, pp. 3~H, note ;, 380, note tj. tUrd Durham's commission, which described Upper Canada as extending to " the shore of Hudsur's 384 HOUVDAKV : > " the shore of Hudson '« TIIKAtTHOKAITHOiUTYoK 17!)!, in IU:I. \| i,,n ro I,,, IID l»rKHAM'.SCOMMtS«U>\, lUSS. Air. KoiUNHON.-YeH. that is in ti.e cu .m.isMons* (■..iii|,,„iy tmdiii t.) Hu.Ihui,', I1,.v+ i;„ , '.' .1 ? -"""''' '" ""' .k., tiu. line „ ii.» ■■ , „„„i„K ri,„. „„.„,, .„ u„: ',:,!, 1 ,;. J- ;;;;rv ':;:■;;;; the Hou'- iiial< *'^ ^■■; "•';7 '" ■""v.-ju.uiir..* .)! nii^'iaiKl Mudiii;; to Hudson's Fiav ■ LonI AiiK.itDAUK.-ThHt is what I liavo .miuunI iust m.w + ti. • • i. not so p,v.-iH.. It si,nply .tatos - tho ho„. . ary C rih-lin" m'Iv""""} ^•ou vv.ll Hn.l aft^rwanls that it is th,- first,' ,u.l „.ft t I'.c >n 7/,' i^ 7:. 7 Invariably a-Jopt.,.!. till vou con.o ,lown to tl ' i [ ,T| l/ i ''"'T^ ^'''' " that tin.. (o.w,.nl it is uU..vh "the shore" of tfuU '" ^ '^"'"'^'n ;sS an.l from Mr. KoitiNsoN.—Qiiite so. Lord Abkrii.mie— I do not know that When von r>,,.„o f,^ Hr. 1 *» * in the :« comXitra'ni; srtt'Vrl^'isr-T.i'if i^r^,^*^''*'"^"^' -^ "' tho^'-' Order, iu co;;;cii:^» I The referfnoe jh to th6 following paper, which ia No. 46. anioni? "F, Quebec, _ to in the Order in Counci ^."Pe" relatinfr to the Province of 17J1. It u not the paper referred and the URniticance of it lies in tliis, that the autl (.ritieH r.-i. nt^H th . rf • ?" ^'^"'*' 1 »'-''''"i->"t, provincial line "to the boundary ,.f thl uZlTv ^^^^^^^^ that might be. aud deliber.-itely adopted the d /crintToD of o«r\. ,.! !. . ■""'l"'"'" " ^ay Company, wh,..ever and Proclamation, and wuh intended ?o r lew thai t 7' ""'« "f ^p^^ i.'^'^'"" '" C""ncil u;fb^?^*r^r&;.^^S:i;:j^d^s HS^^^^ ^, "The boundary line to nTn "hi,; s-nuth. rornr ,ne 1,^, , iaryTxH Z'th.n^^^t"^ "'l' ^fTf'!'^''''- FrinciB, in a cove of th- river S.iint Lawrence west of Pr^ t„ ^, w, i I • .? ■ "^ • '?'^°'^ ""'^ '*"' '»''*' •'^"int of Lancaster and .he .Seigniory of NerLo;^;ennrt V.T o Xrtl^^^^^ U„. Township and in a northerly direction from the aforenaid ht, ne bHinrkrv Xn , Th / " *'.''\J'^'''V " 'loriiinionM. -aid Seigniory of 'New Longueuil, andTtheSe gZry o \^^^^^^^ '"'*"'' '^'""d^ of the it strikes the Ottawan Kiver ; thence in a dS iZ 1 t? . n!!/ ' ?='='!"l'"*f ''' f'^*- variuii. roiirses. until channel of the «aid river ; thence, nceiding Den ddle^.ft^M^^^^^^^^^^ '*'? T.'r "'■ \^' ""^i^'^k''" Lake Temiscaming ; thence, through the middle of he said lake n> fh n '='»"'"''"'"'« *"^"1 river, to th. and thence, running due noHh. to the bo^nda y of the Terr iory' ^^l^td ?. rh«"M^"1^' "''"^""."''y ^^^"""^ • Kngland trading to Hudsond Bay." territory granted to the Merchants Adveuturtrs of Lower Canada, as adopted by the ()rde. irCounoil estSiL tl . Cn P • °" -^u'",.'*" '^fP^'' """^ ante. pp. 46-48. The reference t.. it in the texTLtlm firs defiri^^^^^^^^^ Provinces. The l'ap„ is printed the second deiinition, is explained by ?he papers Uungnum^^^^^ I" '"^'•»- <"' in the Joint Appendi.v, pp. 393-4. *^ numbered (1) and (2) re»i»ctfvely where they ai)pear § Lord Durhann's coTnniiseion in printed, ante, p. S08, note g. 25 (B.) 385 w ARiil'MKVT OK MU. RonrNSON, y.C, re «/iriCSTION OK IIOtJNlURY: Til.' I, Hi> ('HANCKi.i.on.— It set'iiis to 1)6 prmailile that the lej^islnturo rh^- liht-ratelj ; Jopted th.' wonls ' boundary lino of Hiidson'M Buy," rath».'r that. tli. others, Iwcause, ivj^Hnliii^' thom as practically coinoidetit, tile one i.hra.s(> wa> nioro exproMsive tluui tlio other, and inoro ^n'0j,frapliically correct. Mr. ilnm.v.soN -Tliod, my I^onl, iF no arK'nuient is loiinded on the Act ul 17!tl, 1 pans it l.y ; hiit if not upon th.; Act, I un-lcrHtood that sorae arL'umcut was louudod upon the Orders in Council issued under the Act.* The LoKi) Cm ANcEr.i.oii— Where is that f Mr. lloiil.VHO.v -There are two Orders in Council. They are at pages 397 anil :V.)!). The .Vet {,'ives no l.oundaries at all; it professes only to divide the Province < ' Qiiel)ec;t the Orders in Council s|.ecit'y ihe lino of division. There are two Orders in Council. One of them speaks of "the line of division descril,..,| in the paper, a copy of which is hereunto annexo.l." That description is thi> "To ascend the said [Ottawns] River into the Ulce TpiniHCMminR, and from the head of the said lake hy a line drawn dn.) north until it strikes the boundary line of Hudhon'b JUy, including all the t .ritory to the westward and southward of the mid line to the utnaost extent of the country coninionly called or known by the name of Oanada." Then your Lordsliips will find, at page 400 — Sir RdiiEirr Colmkh— First of all take tl posed line of division " le bottom of paj,'o 399 : 'The pro- Mr. lloHiNsoN.— Yes, ray Lord, the words that are of any importance there are these : " Including all the territory to the westward and Bouthward 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 ROHEHT Coi.MF.R. — "A line drawn duo north until it strikes the boundary line of Hudson's Bay." Mr. Ro III N'SON.— Quite so, that is the phrase used in the Order in Council, The LoKi) Cn.\NCh;[.LOR.--\'ou have passed over page 39H, but there is soine- thini,' there which soenis deserving' of attention. It appears the llif/jit Honourable Henry Dundas had adJre.s.scd a hater; to the Lord President, enclosincr copy of a Paperfl^presentedtoParliament previous to the passing of the Act. (leacribTng the line proposed, that being the Paper in which the words " until it strikes the boundary line of Hudson's Bay " occur. Then that Order follows—" from the head of Luke Temiscaming by a line drawn due north until it .strikes the boundary line i<\ Hudson's Bay "—taking the language of that paper and not of the other. Then comes the Order in Council at l)age .SH8 : "The Lords of the Committee, in obedi«nce to your Majesty's said Order of Reference, this day took the said letter into their consideration, tou;ether with the Act of VurUn- ment therei-- referred to, and likewise copy of the said Paper describin;,' the line proiwsf.d to be drawn for separatinj,' the Province of Upper Canada and the Province of L(»wer Canada ; and their LordshipH do thereupon agree humbly to report us their opinion to your Majesty, that it may be advisable for your Majesty, by your Order in Council, to divide •The Attorney GeDeral'H argument upon theie, together with thu Orders in Council »t ud 45m ante. ^^' ' I The .\ct dotis not profoii to do fveii thi.. It rscitei that •' Whereas His Majesty has been pleased to Bigiufy, by his Message to both Houses of Parliament, his Royal intention to divide his Province of Quebec into two separate ProvinceH," etc. The King in Council determined the limits accordingly. + Printed ante, p. 4fi. § Printed ante, p. 47. 386 Horr.viURY n Council, at pp. 45-rtO, the Provinco of Qattlntc into twi\ rli.»:.«* • not «^cu\'rAT;,7tTri.7Hlat'u'';e ^"' """ ''^' '''"' ^''«* ^'^'^^^ in (-...neil ca,.- (livisior, .JescrilMMl i„ t,}...- said Fapor - "^ "^ ' '^^•C"'-'1«»K to the «aid li.u. „t' -• U.«y sui,port ...y cunton^io,;.' It'j^;:;?t?7hN'-'^ '-k.l. and it seon.s to Ihftt in fciio Act of I7MI no boundaries a ,„ ' n ' \^ "'"'"'" '" "'^'' '» ^H' ...d |-ued upon it lK,unda,.ic. aro nu. i ne ' ' Tr' ^ '" ^ '" '.^^''- '" ^'""nei HMindanos d.rter, if thoy do dilfor at aT If.o . T ""T ' ■ ^'"'^ '" ^" ^■"'" «« tlu-.^e they cannot aHoct that Act l.ecanspwl i ^'"' '""'"'^aru's of th- (Jueh.-c Vet the Act of le.d«I«tMre.* ^'"' ""'*''' '" «" ^''^^<- "' Council cammi am' t tauiiJary „f that which i, roKai.1,,1 af « rHn,l', !.'-''°)i "" ''™'" "'" '"Uth^rn .«* .hew exactly what that Zt\u^XlS " !Z:j!^>\'i''"''''y' I"" i' •!«" Tho Lord Puesidknt This ;« a «„ of the country connnonly called or k^ow^ b'Crne o'^^ '^ ?"."*"^'^'^' -^-* Mr. Rojj/Ns()\.__Wo are .>iHi«,. r.vi / ' . "^ '** Canada. ' Bay darter went fron. the tu Jutirof'f B.;::!^^^^'^ ^J ^'"> Hudson's The LoiiD (,^aAXCEL/,(>K._You sav H . r . 1 • " , "^ '""^• oouid overrule that Act. *^ *''"' ""''''"^ which afterward.s passed Mr. RoiUNSON.— Yej Tlien Onuri.. claimed that even if if . . »■' clearly a^ if ,t had been lie subaeciuent acts of the Crown ami Polii ' ' I' had-.,r L'pper Canajrhad fh^ i • ". '""'*" con- f H'Wal Commi«.inn, .n^ r„„/..,"f.i *'"^ iarliament-the Act an.l IV, tT, * ?*„ '>"^? '"n'ta by virt.m + TK.f • ,7' 7-* f!-^"3and Oraei;, ,„ Council. ^ — ain^t.ua 01 l.vi and ttie tieriiBk t That « counsel-, theory merely, for the Act ,ivaB no definition/; 387 ■' ■(! ARfiUMENT OF MK. UOIilNSON, Q.C., rat alto,.othor •",. w 1 fi'a I \ 7 L ■' t' ""'"' "^ sion oF Lord Dorchester comes to be is.sMi u 1. L la 1 ber, 1791. tl.ey depart from the term C^n.n ,^lu ^'^^^ territories as were part of our said Province nl On "b ^ ' Tlf > " '"'!'''"» '\''^l when the Lie„tenint-Governor. Alure. ( 'h I f • m ^^^ •^'"" ^^ 1^'" ^"'^ ' '^^ of Lord Dorchester and the Order of Co;.ncii?lii;.+" *'"" '^"* '^'' eonun.smon i^^t'lt?.uvsov^''T?,n'''r^'''"^ 7^'^""'' that is material to this enquiiy. 'Zt:^!' seeu^s to be attached t^. it), in 183H. the clni^sl^; ^t^^JS^t lZ oetween i.ake h.r e and Lake Huron, right down to tha south, but it is verv little he w fc f this line itself, and all the other counties are dtherii between t and the Ottawa River, or to the eastward of this dividing line Then iti"es on -onnlJo?K^y^^-T^^ "f the said counties h. hereafter called by the name of the vounty of Kent, which county is to comprehend all the country, not beinc terr tories of called or known by the name of Canada '' ^^"^ '"""*'"^ commonly And in the Provincial Act of 1798, the Western District is said to consist of the Cou_n^_of_Es«ex_and Kent, an.i_what i^ the_west of t^em. N. w speakfng Majesty to the westward and «outliCrd of th»HafHr,frf^ '" rx-Bsessed by Hig Upper and Lower Can.'vda : IVtleChie/ Justice n^ -C ^^. ^, hT' ^' ''*'." "^l'"« /'^ 1"^"*''"° ^'*«'n t .e latter forwards to M.. (irenve, in which e^avs^'-trTvnfr /',.'? ^''^ , Dorchester ,. letter, which tion imtHJrtinif that by Uanafla is meant whatever th,.' I.V»Lh ^ ■ I^"''J«'>'i; « d-'sonption there l.e an addi- to this eflfectrs enclosed." The cSe ho encS ' ' ' »«'•'"•« cou.X':/^5iK^;is^^r^y^a^^^^ roui the Order in Ornncil. it ma^ afrlV be areu T^^^^ and purports to quote, the description is to be taken as read into the Comn/ission MrD, , l„ tlescription of the Order in Council governs and in the t,T>„8 used in the Order in rorcand^ntre Com *" t''« ^ifferenc^ what i. explantory. it does not, I conceive aml^^^^^^ observes : •' As the difference lies onlv in ^^rfectly immateL.." (Oespktch to^ '^^^S^.:il.:^ J^^^^^,^;^ j^; ^^^^^ r It is not attempted to be shewn that this commigsion of 1791 i« at v^r.-ar,^ ™uk ,• "iiasiun. •iiiiiiMii.il ui i/ai !s at variance With any earlier com- S It is printed ante, p. 308, noteg. II Printed ante, p. 128. 389 :' [ AROUMEIT OF MU. UOBINSON, g.C. re QUESTIOX OF HOUNDARY : broadly, the whole of the disputed territory, from that point to the west, au,l ut> t() Hudson s Bay, ,s to the west of the angle between Lake Huron and Lake r^rd Abkudare.— And it is partly to the northward ? 1 he Lord Chan(.:eli.ou.-Yoh. Although the County of Kent lies so much to t»ie south, yet, as would be expected, it is thrown into connection with it .ur. JtOJiiNsoN.— That touches the west side, and not the north-east an^lo tnat .1 am now upon. " The Lord Cuanckllok— Ye.., it does, because the line drawn from th,- v^ounty ot Kent, although as it was drawn due north from tlie County of Kent It would not accurately c(Mncide with this, yet would come very near it, if vou understand the whole of the Western District to be thrown together, whatever Its excont was, and not divided into counties. Sir Montague Smith.— The curious thing is that the County of Kent is not the westt-rnmost part of this District. Essex is west of Kent. Mr Robinson.— Yes ; Essex runs down the River Detroit, if your Lordshio w. 1 look at the map.* ' Passing then from the Act of 1791, and from the Order in Council and the U,mmission 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 aehnite description. ^ Now, the next thing we find is. that in 1838 a commission is issued to Lord JJurhani Your Lordships will see that these commissions differ, and differ very inateriaJly from the other commissions, because they go " until it strikes the shore of 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 reach.s 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 away from them their rights. f j> t- j j The Lord Chancellor.— Still they are strong evidence of what those rights were Mr. RoHiNsoN.— 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- sons Bay, in the earlier Commissions, and in previous Orders. Mr. Robinson.— At all events, what I mean is this, it is said *hat the eflect ot them 1.S 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 de.scriptions which are contained in those documents and that the de facto boundary was consistent with that bein.- the north-ea.st boundary of Upper Canada. It is a question of evidence. It is not >i question of taking away. It is a question of evidence as to the status quo oi rights depending really upon posses.sion and documents. Mr. Robinson.— Yes. Now, in the first place we say that the Hudson's Bay i^ompany s rights under their charter were settled long before that. The Lord Chancellor.— You say they did not depend upon possession or occupation under the charter ? jt r r tr,-,,-/ A" * "a"«r°/.f«t, Kent «-as as far to the westward in that quarter as Essex : tliey both faced the Dh- milonThete'jw" ?he^V''**''^"'""V'''']y.^"""'^?'y''f Kent was a line starting from MaUonvillV, oaraRel to th^RL^f r, »• T*^ T,"","' u"'";!S' •'""■■ n'''«'j,'"'d thence, at that distance, by a line running parallel to iiiG itiver i)pt',rrtif. ami l^ni^.. s^t nu:** #•.% *.i,.,. tiu- w -^ -' *» n^i S- • • Huron LwX«rL^T%"^ Lambton. and so faced of counie the River St. Olairand a part of L..k.. Huron, as well as liake bt. Olair and a part of the Detroit. 390 nouxPARV : POSTS ON SHORE TKMPORARirV OCCUPIED UY U. B. CO. BEFORE THEATV OK UTRECHT. n totrether, whatev lence of what those In thfn.^t';!hrth~;?'-' '•f''^-'"^'^'\"P- the ..-ant, recognized hv the Crown.* far as I know that fort has been occupied since ' Then 2nd ■< P If !ir • • .ITS tsn^i S'-f "-^•""'- '^^^'^>^^i sti»urt, zs loOK tnese torts they changed their name.s and gave them French names-" taken cLdJ^arsTe' Ant" "^t"' '^' '?^^' '""' ' ^''^^ ^ retaken iS'.Srd.tn? the EnXh nal tn L^^ T*""^ ''f",?^"» ^Sain from the French name to ine ^ngUsh— taken by de Troyes and d'Iberville in 1686 • retaken in 169S 4th, ^ew Severn, or Nieue Savanne, taken by d'Jberville in iSo otb Fort in i«vl^ .1 , ".^m' '" ^^'^2 ; retaken by Radisson, actin<^ for the En^dish n 16cS4 ; retaken by d'Iberville, 1 2th October, 1694 ; rt^taken" by the Emd Lh ren^i;untifl7iVlh'' f"'"''"^ ''''■ '' ^^'"-"-^ ^ ^^^ ..^session c^' t ChrchilT buiklt's^ ^n 1 . T ^r\\ 'V^r '^'' ''^''^'y «f UtI-echt. 6th. Fort <^niircmii Duut 1688, and taken by the French in 1689 " rhe Loud Chancellou.-Ls this one of your documents » Mr. RoBiNSON.- -Yes.;;; «eo JSl!;."90. maet ^'I^S *" ''«'^'»- hands of the Crown to any specific ;.rritoriihmit.;"In5 + Printed ante, p. 37(i, note *. -as^SatliLtfuw."'''**'"'^'^"''^'"''''"''''''^ the Hudson's Bay Company from an early date oJIt'lt in ml on ''tCn:^;;:!;^" U?:^^r^C?,:' ?^/\- ^^-JV^^vEh'.., C^ C, to the Dominion ■'In 1700, the Company .aid tha they had had st"n ,X 1h H "f'u^ w "^ ''^''Pr*"' "'^ ''"' »« f"""*" = there remained to tfiem only one (Pown.dl Papers VISS Siv f h"' ^"^ ""* encroachn.ents of the French to any contest ; the seventh I prel . ,,Tto bo J-'It \u1n ' T^ '^ '^u '*'"'" ""■ ^ "l*"'^*'' '° ''»^« K'^"" "'e In it there are sever,.! inA.>^,,r„i;r ^t^'l^H i t- -! "' i '"' "'".»**"'" a™ : --at-d then follows tho list, m irOO all the forts xvith oneixoeption werp Tn th» L'L '^f'^'i."''^'' '''"; ''"';^,« I'rcface which shews that ARa(,MB:NT OF MR. ROBINSON, Q.C., re QUESTIOX OK BOUNDARY The Lord Chancellor.— It is a little worthy of notice that certain forts nro mentinnefl as beino- taken and retaken; and then, this fourth one, New bovern i.h taken in Id'.H), but there is nothinj,' about its bein^ retaken. And tlien boTt Nelson is taken, and rjiven up in 1714 under the Treat v of Utrecht. So tliat with re,ij;ard to the other forts nothing,' is said about their beinj,' j^iven up under the Treaty of Utrecht. Some are said to have been retaken by the En'di.'^h alter their capture l)y the French. '^ Mr RoiUNsoN.— Yes. Your Lordship is aware that the Frencii at a certain period did -lapture all the forts but one. I think that was Fort Albany. And that was the foundation oi the complaint of the Hudson's Bay Company after the Ireaty of Rvswick, that the French had in time of peace invaderl their terri- tory and taken their forts, and they petitioned for redress. But as I understand it, it the assertion is that the commission issued to Lord Durham goes at that angle up to the shores of Hudson's Bay, it jilainly 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 tho.se forts; and surely they have acquired a title by occupation, which no commission could take from them. If occupation is necessary to give i-hom rights under that charter, then thev had occupation, and then they liad acquired the rights, and no commission could take those rights from them.* Then v.dth regard to the distinction in those commissions, between " the shore of Hudson's Ba^--" and " the territory " of the Hudson's Bay Company, we have always believed that there was never any intentional difference in those words. Any person would say, naturally, the boundary of the bay is the shore of the bay. Any person riot knowing or caring— as very possibly whoever it wa.s who drev,' these commissions did not know or care— about the rights of the Hudson's iiay Company, seeing them go in one place to the boundary line of Hudson's Jay, would naturally say, " The boundary of the bay is the shore of the Bay, and It makes no diHerence." 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 affect the ^"l^^A'^"' *;hcy must affe ct it in anot her respect. If these commissions are to be MilT.'r''*^ are Burroumled by the French on every side, viz. : by their 8e,ttl«rae7it8 on the Lakes aiTcl to tirifnfi!£?r. tV* t''P northward towards Hudson's Bay, as al.so fr(,m I'ort NeUon (aYm* York Fort) to the southward. The trench have hkewiae made another settlement between Port Nelson and Albany the I'Uv '^^fo-*' I' f aIk**"* are hindered from coming to trade with the English factory at the bottom of »l,»!^;;,fi* '^"'•t Albany which is here stated to be the only place in their possession, the French ^ne<,aS^ Fr.nnl.l"'^"^^^*"'"" "l^Y^ ^'A^^y of Ryswick. Fort Rupert was reilly founded by the two eftamishJlw H.T •*^?«7r"T,"'*iV^' GrosHeliera accompanied by GiUam; then abandoned, but re- R»v ifrfii'l '^ '" ^^l^- T^'" 1; '•end. paralyzed its trade, and the Oompany's headquarters on the time^Im,.n/nf?r'^''rri?' ^'"^'{'-""i^" Albany. Fort Rupert was, subsequently, again abandoned ; this f K» .M^^ ^ ^- ^.* 1'"'* '^^'""V "J,"*' ^^^ "" attempt at any establishment of the English until 1682 ; the 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. u»-u, wuuimu the ,^f■*'i'^Hw°in**'^?''*^^"^^'u'*'=''V"'^y ''^^ of onlyono spot on the shore of tUe Bay, and that llegally, and it is shewn by themselves, see ante, p. 391, note S) how precarious and barren the possession. After the Treaty of TJtreoht, they confined themselves, as they frankly admit (n.te t, p. 284 ZjLKh n "'""«,"" *'?« «'""•«. fX't only during the French occupation of Canada, but ai. , for a long periort thereaner. Then, it was claimed by Ontario, that the acquisitions of the Grown under the Treaties J / u l'';3<=""''^ n"*. )" the circumstances, enure to the benefit of the Company, (anf, p. 190 note t) ■ fan/, .m -m n^i ^'^"'V'"'«»'''" /^a^ffwatly inore far-reaching in its effect than is su, jested by counsel n . ,'. I^' i • f *' f "' ""'''J'' '^"^ granting, for argnment's sake only, that the company were properly n possession of any place on the coast under their charter, and not merely in the enjoyment of a right iii commo,, with tlte other subjects of the Crown, counsel has not shewn in evidence that the lines o the Award would embrace any place so actually occupied. Henley was on the north bank of the Albany. l aUo «n ah i-lanH ,.n M.<. H^- -t *>— i I'h f the Moose. • ' '^ •' "^ -•" '■"••'•'" ••' tThe Lord Chancellor had already remarked upon this contention : away, it is a question of evidence as to the status quo of rights," etc. 392 " It is not a question of taking iUNDARY !" 'i-'ort i)u'z;:- '''o:ii','s„^ 7™r;o'.'« '■:'•' «^^^i^™ZlI tional- .,„| be™„» it is t. b" ,ii i"r ■ ','' P,''™'""' "K^ i" i' »«» inten- eflVct, tlion vvhHt is th.. inmni^, ,f, .•'.•' 1 ' ?' '""■ """ " ™" havo that into L,.l •>■-'' ahal. be'dee^ed to be ^Sj^'l^^iZ'^'l^,^!:: ,t":£L^' '^"" ""^ Lord DnrW all^elan !av ifthlT "f '" '",';"""'' ''>' ""> """n"'™"' to Lord D„rha,nCpSSL*?i„ttk:%p'^rr ''""" '"'^ '"'■'""• |'|or»s^„rsr- 1 ^o fiK^ " ™'' ">- pe.:s;';r.sst-rt^„t:atr„X'^^^^^^^^^^ Mr. RoBiNSON.-Yes ; it does not go further. .e.5;^n.^"xs^-t-t!^-n^^^^^^^^ Mr. Robinson. — Yes. Loud ABEUDAnE.— And if it (roes as f;ir «« n..i..+i,M m 1 1 . g reat deal of the, awarded territory" '"" ^'''' *' "' * latter phrase aa e.vplanatory of the first. *° °^ '*^'^° '" '^^ synonymoua, and tlie '^<^r^'Z:^n:::7^^!tZ^^^Tl^t^°^ "^« Treaty of Ghent havin, «our.e of the line fron. that'point to . r^^^ ^^^^'^l^^^^t^^^r or.^, rl^ir*"''' "'^°" "^^ a.ofI^^Jr:tS^! -trr ai'^S^Il^t^St^i^^r- ^^--'' '«-.!« of the.. >t a question of taking ..he.expU..tio„U given ^^otet, ^ndbe^dj.. th^ . j„ t,-r^""^"^ "" f""'"^' '" «-'- . rho east th. line i drawn by rr^^'^'^J^^:^!:":;'^,:!!^ '"y '-« what- or restrict the province on the we^t by a line drawn nnrtf,m.,.,i t V ,-■■•■■■"■'"'.■"• ""^' ■«"' .oever; wherea. on ,ho eastthe line f, dra^n'bTTn^trl^nr.l^TJ^.Kr ^of ^ "- ' i.The n.ap prepared by Onurio for their Lordsh^s shewed Du.uth. at the head of La/e Superior. ARGUMENT OF MK. ROBINSON, Q.C., re QUESTION OF BOUNDARY: Mr. Robinson. — Ye.s, Our belief lias always been that those conimisHion.^ really weio not drawn with any view of accurately lintitint? or binding the pro- vinccM, or of describing any fixed boimdaries which had been fixed by Statute b(;lbre, but were drawn simply to diitine the authority of the Governor rsver particular territory. They could be renewed or changed from time to time, and they wei'.e never intende6 CommiKsions wore Kolemn Acta of State, under the Great Seal, and adopted by Orders in Council ; and iheir issue surrounded with great formalities. Ante, p. 365, note *. tThe fjosition of Ontario, already set forth, wa», either tuat the enlarged Province of Quebec under tlie Act of 1774 was coextensive with the Canada of the French ceded by the Treaty of 1763 ; or if not, then that it was enlarged to that extent under the Orders in Council, and by virtue of the Act, of 1791 ; that even if It were true that (,he Crown could not diminish the territorial e.\tent given to a, province by Act of Parliament, it was cuiite within its comi>etence, in the exercise of its prerogative, to enlarge the boundaries of such province. tSee ante, p. 392, note *. §See ante, p. 391, note *. Moreover the Crown might, as against France, put forward in support of its case such posseesory rights or legal claims sis might be attributed to the Company, and yet not feel con- atrained, in the circumstances, to a recognition of a like claim by the Company as against the Crown. !! The f'.)i«eH ftfe not- at uW parftlle!, and the equal right does not follow. See arjlc, p, 393, notes f and 5. 894 TNDARY : THE CARRVING OV THK BOUXrURY T.. HUDSun's HAY EVH.KM.K,, l.V U. (.. 17',»I-1S46. out the western irupauy:[: —a claim was neve? ?ZST'^^\'"' '" W "'.'^ '' r"^.««naMe ar^rn.n.nt t(, supposo that that dmrter T ^" '' boundanes or tlio li,„it of the Hudsons Bay The Lord CHAXCi:u.OR.-But the question is whether it is ev iilenee of what a V e:;i^;e ',?:r V".'""^''.?" ^:'^f^--'^«-ause the charter ^as 'a bounS Ml. KoriiN,soN.--lhen, it ,t wa.s unc.untmverted that that no ti.m north of oeiorifirul to the Hudson s Bay Con.pnnv In- occupation.* ' Ihe LoKi) (,UAN.;ELLOH.--Whut evidence of possession since 1791 of anv- Mr. li(,l.,NSON,_lf I ,mdcr,l,u„l rislitly, tl,..y l,a,l tl.o M„„« F„,t (hero everv view ti«t hp~ 'k^' ^"^ f /'"^«»f ^^ent, as I submit with conti.lence, with fn th^at Zntrv fh;:'fT' ^''" ^^'^'^^ ''^'^'^ n^htsof the Hudson's Bay Company in that countiy that they were cunhned to the limits of the coast of that point nf A I Lord CHANCEi.LOR.-We have to deal with near ly one hundred years of Acts of State carrying the boundary up to fludsons Bay, i the eS/com! mission ,9 to be construed in the same way Vs tlie later ones The Tnn^^T^'::^^!' "^^ *'?/'"'T '^'"''.'"^^ '''^^' '"^^ '^^^ or Commission of 1838. of 1791 Chancellor -Yes, but that follows on the earlier commiasion Mr. RoBiNSON.-But the commission of 1774, if I recollect riehtly,- The Lord CHANCELLOif.-The provinces were not divided thfn tL^ZTZ'^"' '"^'' ^r^.' '^''y ^^^'-^ ""^' Ji^ided at that time, thaf this {;^,f^,^«^NCELLOH.-It IS only when the provinces came to be divided that this boundary comes into existence and becomes important. Mr. ROBINSON.-Well, my Lord, our contention has always been that there Kre^oiTw fafn^U " ''^, '•"tf *^^' ^^'^^^<^ ^'^ ^'^ co';nnSon ot' 1791 mere could be m change made in it by any commission ' It eithe. was settled lX^^\i^l'^' "Mr*-^- The 'subsequent commission" Zt2" no limitations ot boundaries, and therefore tliey cannot assist us to vou muf Xi^i^^n '"P' ''f ""^l^'«tand the argument which I have addressed to 3 ou, and which I have endeavoured to put just in those two points We tirst contend lor the due north line, and we have pointed out to vour Lor.lships the authoriti es on^wbichw e argue for that. We next con tend that at all events we * See supra, p. 392, note *. ~~ ~ ~~ ~~ " nevat^hlid 'XS'n wL^'^^evr ol\S%lTf1t ?=f ^el^S ZV)? "f^" ^fy Co-pan. oceupafon ot Canuda. and then only in^^mmon wlurth'e^U^tstel iTlhl^Crot"'""" °' '^' ' """^ S Jbid. And see ante, p. 394, note f. Il That is, the comniiasions 8ub»equent to Lord Elgin's, of 1846. 395 ARGUMENT OF MR. ROBINSON, Q.C., re QUESTION OF IIOUNDARY : ^'0 to the southern limits of the Hudson's Bay territory— T mean of the territory granted ; that that territory is defined by the terms of the grant, and \>y the eon- structi.)!! wliich should he put upon tha't grant at the tiiiie it was given, at all events coupled with the acts of oceupation which followed it, which are questions of fact * Wo say that heyond all doubt or (|uestion, founded on our >jwn asser- tion, or our own assertion confirmed by the Crown, our limits long after that wei'e limits (.nly conlined by the watershed. Wo say that that being the case, it was impossible to take away from us territory which we had thus acquired by 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, v/hich gives international rights. Of course, we have always conceded that the B'rench subjects living on our territory may ac(iuire 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 ces.sJon, in 1.7 OH, can have any effect upon oui grant as between us and the Province of Ot.tario— we both claiming under the same power, namely, the Crown of Englrnd, and tho legislature of England. Whatever rights the French might or coula have assertod they have lost by tlu; cession, and they are out of the way. 1 ht whole question now is between British .subjects, and between parties claiming under the Crown of England.f Tlien 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 drawn 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 Petm v. Lord Baltimore, whatever might be the legal boundaries of the province, to give to the governor of it, bv his commis&ion, 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 territor}^ and we say that at most these commissions could have no other efiect.Ji} 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 regard 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 hag been already abundantly shewn that of no v)art of thu interior was there any occupation by or on behalf of this company ; that on the contrary it was in the adverse posseHsiun of France ; that the BO-called occupation of the whore was, up to 1713, temporary and precarious, and of certain isolated spots only, from which the trench ousted them as trespasserg ; that the benefits of the Treaties of 1713 and 1763 enured under the circumstances, not to the company but to the (Jrowii, and the Crown could, and did, deal with the territories according' to its discretion, the company being left on an equal fcotinir with the other suojects. Ant<, p. 190, note 1 ; apf)endix B, hereto. t All this has been already answered by Ontario ; and see ante, p. 190, note t. t Thii? has not been shewn ; on the contrary, Ontario claimed and shewed that they were in har mony, any apparent differences being explainable. S Oatario had already shewn that these commis.«ion8, instead of having the limited effect contended for here, were in fact orders of the yovereixn in Council, and passed 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 of any outside territories. Chief Justice Smith, of Quebec, in a com- munication to Governor l.oid Dorchester, in 1790, discussing the propMsed boundaries of Upper and Lower Caniida, says: -"All this is upon the supposition that it is necessary to parcel out His Majesty's doriiin- ions by Act of Parliament. If not. then Mr. Grenville'sfirst clause for the repeal will stand unaltered, and the two pruvmces take such limits as the Royal ComuiiBgions to Iheir Goveruors shall agsiifn." (Joint App. 391.) 396 t they were in har THE WUrslION liEI-EURED TO TIIL' AllUlTUATORS. THAT OF THE true UoVSUAUlEH. as a reference to settlo the true leffal I,oundarieN, or was a refe.vnce to a.ocrtain what wou a ho the mont convenient an^ hest houn-laries • T hen- is nTI , aho.ton. th,nJ,^ M,at the Act wfneh .),.,ano ,,a.sse.| afCr the \w r v vl icl it was enuct..Ml that the boundaries -iven (.v th. Hrliitrr^. .• . inliv Vl ? '^'\'^'\'t intmiation on Hi. part of that province of ti,e n-ht in which th.-y re-ardedtho arh.traUon naniely. that they rega.dnl t},.- Awa^d as h.ino- .-on iusi;^ whether .t hxed the true houndane.s or notf Xosv the Gover.nnent of the ?rar---U.e I o- ner\^nnS;V;::^ t ^''T"^ "' theday-hav..alway^s;S t^ !^ ne%ti was intended to be the reterence. and if it ever was intended to be the reference, .t never was an authorized n.f.rence, and never .shonhl i^ve t'^n mado for there never was any authority to n,al and have agreed to leave to arbitration "e ouesHorof Z n^l»n '"''//"'" ^ ft"';,"tii'n'^sh.ng the northern legislation would b^ necessary to give legal "tfect to the ™oeb,.,V -trif /^ P''"' P"".""' 'h«n considered that out to be, and the question aro,e*ho,v tlWs o^ifid best a„d "^^^^^^^^^^^ Parliament would, in the ordinary course of thing^ Imve S rifu ir!^^^ ft "^V^ ^''^ "^ ">« Imperial cartie to the ooncliiBion that the enablintr Imt erial A^r-li^mAi v- 7 *"" 'il? (^'vernment of Ontario. BcH.,k, placed sufficient authority in the f'rSial and Domin?, n Wm'",'" ^"P; 28. already on the Statute "The Parliament of Canada may, f ron, ime to thne w tHhe e^, ?nf f" m" 'i"' * '? ^ "P*'^'' '" ^'^^ ''ere : of the said Dominion, increase, diminish or otherwse riterth"^^^^^^^^^ the Legislature of any proviaoe Act. 42 V c. 2, adopts the same language '' Whe eas t wa« i^"e'i^^^ "' ' ^'""T':' ,^^- ^^^ <^""^'° should bf, determined by reference to arbitration ami w mr«u.V. ' iv '*'"J 'L"' "'^'^ boundaries give to this province less territor, than had been claini;d\.,rbia Tthj' Pr"""' "^ '^'u"""^ "*"'' *« "^ than the (Government of Canada had contended toX, w,> , n fh r • " r \f"vince, and more territory Legislature of tho Province of ()narb consents th^t Mil P.^^^^^^^ 1 ^'"' ^T^"""^ ■ • ■ . Ihl boundaries which by the Award of th^arbit 2 !rs aforesaid were deS to l^T*^" "7 ^,'"='»'« **"" the boundaries respectively of this province, shall be aM rrrthTnortherlv and -» f** T^^""^^, '"^'^ westerly wh.;ther Uio fame increase, dimmish, or otherwise alter thrtrMinr,f-i "'""'''''•'y, boundaries thereof, vincer The Dominion (Government fail^torbK its solemn e^/ai^^l^^ "^f """''' '""*'' "^ '^^ ?'«' and the outcome was the present reference of theoueatlon in sT»^!^^^ *^«"'ri\^ *'? concurrent legislation, cil. [Writing at this late date, it may no be o'ut o pilce to dTJw^atTe'nf- ^T^t'' '" ^^^ P'-'vy Coun- H::^^^n?aKsi^f^-^:^S^^zS»^ latiolSrre'ulrtdrgiv^'b^Ste^^^^ Andsstolegis. t have been required had the pro'^.osaTo " the fSSion Gov l'f,,P^^^'*?*^^^ '"'"« *^"'d tmguuhed English] legal functiouary should be nvSo r.?me ?J r^^i ?* ."' -^ '^^^ 'hat some " dis- for the purpose of hearing the ..vidpnce "r,l°\da ,, ^nnn th ! V ^'^"' *"■'"* .'° ^'"""to "r elsenlwrA, Secretary of State (Canala) to the Li;:.re;inTGre'rnrofttar.& ^^^^ 397 AROUjIENT ok MB. ROBINSON, y.C, re gUEailON OK BOUNDARY : The Lord Chancellor.— Suppo.sin<,' the arbitrators did Hettlo as well rh they could the true boundary, it i.s very diHicult to say that tli«' awatd is always to depend for its validity oii the ((uestion of wbetht-r it in rij,d\t or wrong; and when it concerns matters of tlu.s sort, surely it is a nsasonablo thing for a cotnputent Legislative Authority to give it effect whether >t is right or wrong. Mr. liuiiiNHoN.— Whether it may be a reasonnb'e thing or not, one thing is certain, that it was utterly impossible for them [the Legislature of Ontario] to do it. The liOUi) CriANCELLou. — 1 tun not going into the motive which led the Dominion to recede from its engagement. That is not our aH'air. Mr. RoiilNsoN. — 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 tlie arbitrators power (and .so interpn.'ted b}' the arbitrators), to .settle what was, under all the circumstances, the best and most convenient lioundary.* The Lord Chancellor. — What we gathere. We ^ave held that the award was not binding.-f* Mr RoiilNSO.V. — Then, the award not being binding, I am oidy desirous to call to your Lordships' attention just these consideratious, 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 be 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 tlie Crown Lands in Ontario. That is the only sense in which the Dominion have any interest in Manitoba diflTerinir from their interest in Ontario.* * It is pointed out, ante, p. 397, notes * and t, that the evidenoe emphatically disproves this suggea- tion of counsel. t Becaupe of the failure of the Dominion Government to abide by its agreement to procure confirma- tory legislation. (/tH THE VOVVL^a VIKW AS SHEW.NU WHKRE nOUNt.ARV WAS. which led the lamkbiit this is ,,f rrmit iin poHnnce to L 1'"* ""'"•\t'""^« shrps are perf,K.tIy aware that Co„f.lo,atio„ ;^:as fon I Z , .'^^t i X f meat of (Jonfe-leration .^IL, not to Iv ,7' ^a 4 M. '^';;;;/''f, ----"'no- oning the rights to which they are entid!.,! l^^iri^;.'; ,. ^ .i'''''^;:^^ ^ , Jf^ ;::rtK?;;S!:.E;ss.^^^^^ question which we co.ne before this triJ.nnal to havrieci^ e 1 utZfT '^ tarn what is or is not a ffood or convenient it'uX^^^'f ;..''„ ..^^^^to'Tv" artect.ng any view wh ch may be asserted, that the ilhanv ive" th^EnVish her. \ou ">ay ose a ce.tain portion of land which vo.i remiiro but it is v'lrv .onvement that Ontario should have it. 8tdl less can we sSv QueUc S this IS a .nore important question-that province is tf.e prc.vir.ce ot" wS ] have spoken-by saying to her : Tfie boundary as settled enla.le.« ()nta i . Mod whl? you imagmed her to be and beyond what vou supposed herb undies to bo when you entered into Confe.ieration ; but it is a colweni.nt bourZv+ It is tor that reason that I called attention sp..ciHca!ls to this point, an ca 'uttent on very strongly and speciHcally to the decision in the De Heinha ca Tko Pro vince ot Quobec-and this is an assertion we have heard ov.rnZix^r alin- iSa't tu'o'r •'^"". the agreement speeitied in the BHtish C^ Amorca Act. that Ontario should consist of what was formerly Upner Canada. Ihey had a decision in their eonntrv by their highest courts acJ E esced m for htty years, stating what was the lino of diviMon^aii.l wl at we e the himtsot_Ontario. Ontario is what Upper Canada was. They had t!lmt decision. I>eninent to itself, in the prennit c h^ an i» t " ^1^^»" ^^ very direct u.aterial interest, fltcenuou. advocacy nf MamtobaV ca.e.Z aJamst t at of c/i^tMrin nn fl """^ ^\ '"'"'■'' "^ ^'"'*»"- The for the Domimon, i8 therefore n„t HUrprWug ^" ""•«">»«' by the counBHl wa« l^'a!oit'v:SZZ:^^^:^^ ,^S^e?"th^^ th;^nl^^'!^"",^lJ'?^^-^^- "^ Man,toba .>ne 7-"''' '>".''• ""' "^^e linea ion and to Manitoba, and that thereforrneKh" ''''""' '^^^^^^^^ '"KMnoBt favourable to the Do.nin- «.. this Hcore (see aiU, p. m,T,t"'T novcZlT^^^^^^^ •'"i'^ f"^ '"'"^ «"'""'^ "' complaint appears to have overlooked -that the act of authc^tv^^ *? be remembered-what counsel rf,rd8on'» Bay. carried to the B^nieXrctlu; im"tK of 'c^eT-ei'^u'd ubluV^ '" '^^ "h'"-« "^ of territory to the north .,f the heiirht of land to whch her imt. I,. 1^: ^ i'" ?"''"'"«'"''« ''■»'=t restricted : " Aud which said Pro^ inoe of L..vTcanada i« also brnie^lt ^I?n ''^ '» ^ Loter'clni^r' J^ntAw^m^ ^"" '^""''^^ ^'^""'" ^''— • -«P<^ct.vely.-aa (ioVerno^rln^CKref of 399 AKOl'MKNT «.K Ml;. liOHINHON, y.«' , /v; t^lKSTION (tf HOfNDAUV ami tor that mwun I cftlleJ it to your l/.nlshipH' attention, and .^n.ivav.xirfl to -lo NO very plainly; a .leci.slon which Iwi.l stood inu|iu*Htionotl for fifty y^urs speril'v intr wluit wn- tl... limits of Ontario. Upon that unn favour of tin, DominioM coutcntu.n. For the purposes of the trial, the Lurt feU iS ed to declare the bomuUry, and m ,lo,nK so eou«trued the term ''northward" in the Ouebeo \ct 1" mean n^ due north ; but, thm done, they expre^dy reserved the question of the true b<,undary and therewith "^ questum of jur.sdict.on. over -to tn. King and hia council, an i in deciding the lim U of Up,«r Oana they will either cm.hrm or rever«e our deciBion. . . A« to any consequences that may re^ift f r ,m !nu error, if error we have commiti.^^, they will be obviated by the Bo,,ere.nrueDt authority ?o whom thHues tion w referred. ( Kr.,m the Judgweut of Chief Justice S.well. ) Th. re was a reHpVte from t"Se to time and the priooner watt ultiruaiely aet free {.See fuller particulars. ..r.'; -. 341 Vote' 400 liolNDAIlV ; zed for fifty years 111 it had never been P-fNCrPLKS BY WHICH THK nOARM mil. «E OOVEUNEr. U A.m.V.V. I ATCOXCMfSlONS. whtttoverthn (U'cision of tliis tribunal inav bn hut u i ^^ l .i , , ~ Empire, so that it .nay be s.l lo/.,,\ "t ;?'b I ^" '"■7'"'^' »nb„„al in the npon the basis which the provinees s t t , ^^^^^^ T 'T''""' •'«-^'''- '"'*» have th.. ,i.ht wbieh wo he'Jiev. a r q ^ , : U^' r," "'"•'/ "^^ '''?' ""^y obtain for them • "'.I'leHintinf^ the Dominion it is o„r duty to obtain for them.' The Lord Chancellor. Ihe Lord Chancellor.— Will von .iii,.,. ,., » , -It is not for nie for a moment to wiy wliat your LordHliips Mr. KoiuNsoN.- wouhl (h). con,,, to a„y coi.cln,ion ' '^ "^ * '""•■" '"'"" "" '" '">' 'l™ir„l to that it „„» i„„,„.i,,,„ to », ;,:.'t";,,;!'i;';„'i :;,i',:H,:r:;.!:"'''"'"i^' '■°»°""''"' und„'L%";:,, iri^i'-rnle",'!;;'!",™:''-^ |-ke>..Hai„ »,,„,, „ehe, to It at certain point,, clMirh- ao'rt t A ? ■» cor .ct on all ,,„n,t». We may, we»t lionn.lary i, ol.'arfy ««,"' in • I a,, l';^ "' r' ' u "'""'""'■ "'"' ""> """*- h»p» not b.,,icle„r,ya^c;.*iS°^,''U'„t,,:S,?f '''""''"''' '"'^ ^ Mr. Ronm»oN_It is not ( „„ i„ „„ bo„n^;:r3*'^n"',^,l:,™-^<,^t;tlt^r "s'/'r"-" "■" '-""r *«' «•» be, the c;,urt» ,. law nn,;;" have d'Sut '" "PP"""" ""' " "'"'' Mr. JloBiNsoN.— I ilo not Itnow that found the true bounilirv \ '7^ . ;'^' «^<^'^h"> t^a at certain points we have what are ;h"'i'r>;;;;n,trS!'""™ "• """ ""» "■ '""'"^°'' '» •>»• 'o «»»'«" - J--.IJ1,,.. .!,, vvr vtiiieti LIlC g^ _J A. to all this, see tiu- Lord ChancdlorWemark.. ante, pp. 397-8. «ad the^^^^^T^ 397, • aud +. 26 (B ) 401 Ii il AliCiUMENT OF MR. ROHINSON, Q.C, re QUESTION OK liOUNDAHY : evidence is much less conclusive, and I wanted to know what your proposition IS a.s 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. RoiiiN-soN.-I .should liave thought not. my Lords, because I never thought we were coinmg before your Lordships as a jury The Loud Chancellor.- We might have been saved all this argument if that IS your contention. What is the use of referring to this tribunal such a question as this li we are to do nothing, unless the evidence is demonstrative ? Mr. KOWNSON— In other words, we are not to judge of the amount of proof which your Lor.lships require, the question submitted being, what is the true boundary. What 1 am asked is what your Lordships are to do if you find no true boundary. •' The Lord Chancellor.— We know there must be some true boundary It may be that the evidence as to a certain part of the lines to be drawn may bo very far from complete or satisfactory. Supposing for instance we had ascer- tained those two points, [viz., che south-western and north-eastern points 1 do you say we ought to draw an arbitrary line— a direct line— between them ? Mr. ROHINSON.— No, my Lord, I do not, nor am 1 able at this moment to say to your I^rd.ships nor would I presume to say, what course your Lordshim should take. I only desire to avoid any impression that we were submittin<' the same question here which had been believed liy the arbitrators to be submitted * Ihat 13 all I desire to guard myself against, because I know that the province.s desire tlieir boundaries to be ascertained. Lord Abekdake.— Supposing we should be of opinion that there is no evKie^nce to shew the true V)oundary, vvould you have us so find ? Mr. RoHiNSON.—I should suppose so. That would be my impression on the reference. It is a question I have never considered for a moment. Sir Montague Smith. —It must be done on presumptions. If evidence fails it must be the best presumptions we can make upon the facts before us. Mr. Robinson.— I hope your Lordsiiips umlerstand this, that we can make no objection to your Lordships entertaining any presumption of any le-^al boundary. j o " Sir Montague Smith.— Or on any question of fact either. Mr. Robinson.— I wish there to be no misunderstanding about that. Sir Monta(}UE Smith.— It is a mi.xed question of law and fact. Mr, Robinson.— And your Lordships would so treat it. Sir Montague S.mith.— If boundaries were described by languao-e in the deeds, then we must construe the language, but when it is by reference t.i a grant then that grant has itself to be construed by what was done under it Mr. Robinson.— Then, 1 think I understand your Lordships better It is a question ot mixed law and fact. If it be so. we wish your Lordships to decide those questions of law and fact, because the question of what the trie lecral boundary is, involvos i)oth those questions, and we wish that decided; but wc*lo not wish It decided on any view of conventionalism or convenience Sir MoNTA(ii-K Smith.- -Mere convenience. Mr. Robikson.— Yes. There is another question to which, without speakintr upon It, 1 wish to draw your Lordships' attention. Tiie ()ue.stion is whether ^«" . "rpu 'f*'-nf "'"" "^'^^ '■*"""''''^ '''■'>' ''"Perial legislation to carry it into — !_1- will have to be considered, and that der.ends on whether the present <.,, * ?**'■ Afbjtrators could uot, in tije face of the Or iers of Rnf^rHncp. have believed and.ilrin-t h^li-., that the ..ue«t.ou «ubuutu..l wa» at.y other than that of ascertaining the true boSy?"!^;™ ^^]%ll'^ 402 BOUNDARY : THE LIXES OF THE AWARD SUBSTANTIALLY UPHELD. he was nrbounrJ byTt "^ ^" '"' "^' ''^"^ ''" ^*^"^^'"'^^- --'''^ «-- -^1 -y The SmfS;;-!/!;'""' f 'i""^ 'l^^'" '^ ^^^'« '^"^^^^-^^ apprehension o£ that. only£it?opSTtTJrtr''''"r"^^^ Icgishxtiun .s required, and I «r S, v£ pLf.o.^ Y"'"' ^"""^t^f, '^^^ there is that to be' .settled. mav£^^:^X^S%i;;;r"i^P-^^^ ^^^^ ^^-y ^new the boundaries and they Sir AloNTAGUE S.MiTH.-Thoy ,nav add to them Mr. RoBiNSON.-Yes. but they must know what they are adding to. [Adjourned for a short time.] The Lord Chancellor [to Mr. Mowatl~Theiv Lordships are of oninion of U^rLaKfT W "T rT"*'"^^"J--^->-- -d tl>e western ^to TpolntS ffi • fi : }] , 'f ''■'' ^^ ^"^ ""* '^t present say what is the exact points to be sufficiently estabhshed as correct as laid down by the Awanl 3 £ r L^rd ships therefore wish you to address yourself to the question wha 1 mav^es" Company as 1:o the post and fort on the Red Lake. I find we are bo?h mistaken my Lords, t is not where I thought it was, and it is nnrwhere rnv elrned fmjjd thought It was. Jt is stated hero, [hand^no a disputed territorv f Ihe Lord .,HANc-ELLo:. ..-Then we need not trouble ourselves ^bout that. What their Lordships desire to be understood is this, that the southern r we'S;: "bu "aV'tr'""" •=';--^'>'>>'' ^--^ - the Award, and s^.sSnJ a 11, *Imperial Act, 34and.'?6 Vict.,cap. 28. ~ ' ,. .J,^J'^ "."'''j !'■ 238, iii>te +. TliH .|iie»tion was aa to the position of that Ii»d Lake tn -Hir^ '' - FT-, - . • h on the „ap. ..„e^, the .o,uoe« o^^/^iJi.^i^tSr'f;^!:!^.^^ ^r ll^^^'^^^tst^^^r^' 403 h THE ATTORNEY-GENERAL OF ONTARIO IN REPLY : Mr. MowAT.— Yes, my Lord. Then I understand that I am not required to say anything with regard to tlie height of land ? The Loud Chanckllor.— No, nothing. Their Lord.ships do not adopt that view, nor do they adopt the 49th parallel. Mr. MowAT. — Nor with regard to the due north line from the confluence .,f the Ohio and the Mississippi ? The Loud 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 du- 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 larcer territory at the disposal of one or the other of them. " Lord Aberdaue.— There is the line on Mitchell's mai). What do vou sav to that ? ' J J Mr. Mowat.— That line is an uncertain line. All that Mitchell's map in fact mdicates is that the line is north of the Lake of the Woods, but it does not holp 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 1 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 sufficient to make a case for the English River. I do nut know that 1 can do anything more than make the single observation, and take the position, that having reachod a point north of the Lake of the Woods, ami no other line being suggested except the English River, the Engli.sh 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 vour 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.— W^here is that ? _ Mr. Movvat.— That is at page 563, my Lord— at the foot of the page.* That IS m one of the communications in 170L The last sentence is: " Ah to the Company's naming of rivers as boundaries, and not latitudes, tke same 18 more certam and obvious both to the natives as well as Europeans, and the contrary impracticable." . r j And the immense advantage of a natural boundary must be obvious to every one The Lord Chancellor.— That is in the year 1701, when they were Lmn- ning to accept the All)any 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 boundary, and not only is it in accordance with settlements made between nations when questions of \his kind * Printed aiUe, pp. 206-207. And see ant4, p. 836, note *. ~ ~ ~ 404 ADVANTAGES OF A NATURAL BOUNDARY. What do you say i bmT?K 7' , t'^'J"^ *hat any other line would be impracticable. That, I submit, iH a sutficient reason for adoptitijr that line Sir Robert Collier.— Who savs that ? defemLff irV^^' ^^t'"''' *^?^'. Company, through whom the present llnlovTr „n 1^""'"^- ^\7 '"y '' '^ ^'^practicable. The advantages of this hSlv Tb7. 'f\^'' r^^y «no"no«s- It is impo.ssible to state them too line wnnM L ■ "^1 '•«/erred to in my opening, of running an astronomical whenTlonl wnnl 7l ^'^ ^"/^ ''"^^* proportion to the value of the territorv, and. when done, would be an extremely inconvenient line. Now, convenience' is of course an important element of decision, when there is nothing else to go by I lir ^^V^'-"^^ ™«:.^ important elements, but we have nothing else to go bv fn u b'^? "^ • "'?u^'°" ^^''^' ^^^ '^^^' *« ^^^* I P'-^PO^^ a« being analogous bv the rLrtnlb k' ^"^^^ V?f •« the natural boundary is taken into account l^id on^b^I ^J if^w^T u^"*^"' 'controlling considerations, I think I have said on that point all that I have to say to your Lordships. [Counsel and partis, retired for a time to permit tJieir Lor,Mips to deliber- ate. Upon their re-adrnzsaion : — ] fb«^7A^ Lord r -o,aLOR.-Ccunsel are probably aware that the practice of their Lordships arences of this character has always been not to deliver a judgment, witl ■ ,.«s, but to make a report to Her Majesty, upon which Her Majesty will act. or not, as she may be advised; and that coulr^e will be followed Zr„t« ft.Ef?K "f °""^-r; ^^''. Lordships see no reason why they should deviate from that even if It were clear that it would be con-sistent with their tnZA '?r\ ^t»s right to mention to counsel, that their Lordships will not bnnnl!Lb *^ their duty to say anything about any boundary except the boundary between the two provinces of Ontario and Manitoba to H M-'^^i '' ^^^''"'^ *''** "^'^ ''°' ^"*^'' '""^ ^^^ report which they will make 405 APPENDIX. A.— Award of tho Arbitri. ,.rs. B - oldnlt'i " '\ ?,' ""'"'"" V' ">« ^^''^^ «-" J-y to the line of the Luke of the Wooda.] tSveV.''" """" "' ''" ""'^"'"'^ "■'■V Company and the French and En^linh Crown. 0.-In)i)erial Ord. r in Council, llth August, 188J ^•■■^""It't'ol"'' ^'"''''' '"'^ ^"'"'"°'" "f C-""^'' '0 He' Majesty, with the proceedings in Parliu- B,— Imperial Act, 52 and 53 Vict... chap. 28. A. AWARD OF THE ARBITRATORS. To all to whom theaa presents shall come : a« «rh!7rZ?rr^T*' *>*.^'"S J^««° appointed by the Governments of Canada and Ontario Ontario ?oh *° '^?7'"'»« the northerly an ]tf '■ "'"'" «"-" "»" »he land, ripA(!/-H«,v held, or rightfully/ vl^med to toheld." ^"rapa°y-that is, Ontario contended, "all the land* 406 APPE>')rx. the proceediagg in Parlia- io, this third day of The C„.„pany made the like cl-m to the R«I '"" "' *''""'"• VVeatern T.-rritory, .,uU!,)e of the Arct c « o n^. u, ' *^ '*' '^?"""'y, and iu fact to th. whola of the North 1774,''{^^ll':,^r;'ir,J' r I^orft.!;; :l^«^lt.rr. ?\ '"^ 7n-» -'« •■' ^•"^ ^-^ - and Parh-a.e„t of Couno.l, a» lH.inK w.thin the trueIi„,itT"7thri'l-Le '"'' '''^"'" ''"' Ar>>itr.tor8, and before the I'rWy the IH^'e ^t^'^l^^S^lnlj^tC::!;'^;;:';'? '-r^ ''- "- "^ ''« -.te^y li„,it drawn at to con8.derat,onH wl,ich had no reference whatsoeV;' t unv:nt?'''"l*'?~,T"'n^'u '^,T'"'"^ '" ''"V" beerdue On the part of the Arbitrators, we are author It el inf i T' ." ''' """"'"' ^"^^ ^^""P''"^' the only qnestions of doubt were deci.l^ in ?lvn' r f ?^ ".T'^ "l»"''«y ""'"'fiufl 'loubtR and that doubts were whether Ontario should not W ha^^^referrtrj "''"'"^ ^'"^ "" *''« "^"'^ ""^^ north, the i^a^tp;z.:i::^;*:;^^s^i:- 1:^ i^"^;;!;:^'Ti5;;ii,^'rf ■ "^'"^?j- '-■-« '° "-"^e ^^e ca.. of doub. *"!? pieces of evidence :- (,i) the a 1774 ; M'hich embraced as well the -several rolnnio,, „« i ^»i "■' • ^"' -"' <■'""><' or ine vue'iec Act territorioH, islands and countries i„ North An r^V TI ''«f."'^"'«n" "• the siibjecta of France "assail th4 the south by a line " described in the Ct a^j "o^'^^t^^'''"*^^"'^ "?. »''« ^^^wn of' Great Britain, b^ ,nde 1 on Adventurers of England trading to HudHo,?s Bav " V th„ P^ ?i^ territories granted to the Merchants Councd and the Proclamation respectively of mi' Jn L^l^^^'^l^'"!""""'*'"' "* 178(5, (rf) the Order in are clear evidence that ITpper Oa.Ula embraced -•allThetHrri? '"'f \^ *''" ^"^ "^ ^^e same year, which [interpr<)vincial line and of the bouudarv linn „f w,!? territory to the westward and southward of the commonly <=a'lei or known by the Tmn C^na^^^-ttaT ^ ^h'V" ^' utrncst extent of the coun ry «?er^L In *.""■'" ^•'^ T'^'^y "n'l northerhr Sshed of it ^r i, 1"^* °^ ^^f ^'"""'^'' ''hioh extended seemed to On ario that these authoritie,-uot in anv w^. m'vTfi^''''^'''^"'*"' '' "°' '" Athabasca, it had ol th^'irvi^t''"'^ *°"^«-''^--^°'^'-'«^ '^^th^su^^^^^ o1«r W^^^^^ constraine . to a more ..stricted ?ro,^^f ?'"'"'"''P','*"^ ">" ^^"^^ »f the \VoX: the drawing of thi"i?r'^1l" °^ i*^' *''i*' ,8«oe™Phical relations from the source of the real, and not of the sunnoJeHM^if ;.••'""' of\>undary of that Act " northinard " by the Treaty of 1783, and by the subsenM^nH^o? Misnissippi ; and the extension .,f the southerl,. line point of the take of the WoidS. anfc th^ce 21"^,; '° *"?"* "^ '" ""'y «« " "■« m"«t north VesWn .'^fll'*? *^* .r" ^"^ *" ''^ found, not on a due ^est but on^'fr""* ^i! *'"« ^'^" Mississippi." when n considered that the erection, in 1870 of thp ori».;no? t. ■ " *,*l'l'' *°"'h <=""™ ! and further, may have Ontario, and its conHrmatio'n by Imi^ia Act ri«7l'° " ''"*'""' ^"'^'" on thTpart of a more westward extension. ^ '•"P*"*' Act, -n 1871, operated by way of estoppel to Ontario's claim to awarded^o"onta?ro1mdb«:„:^",^}^t*i,'J;';^»^^ themselves that the extent of territory ing ui^n the consideration of any arKuments in favo ?!^f iCJ^'' "'."'•^'" principles of law, and not enter atrenghten the case in favour of the more restricted 1 nits «n «v h"'.'''.'"*"'' ''?"=''P' *" "» f*' a^ '^ese went to as again»t the one party and the other the om^M.^J ? evident determination from the first to uphold Award The r^ady'appfeciati«n\; tLVt^r^y "oen^^^^^^ Arbitrators and embodied uf S m.which a ready conformation to it on the argument wo ,M «?.??>,' **"' ^''A'^"'V? "' '^^ masterful position mination-acquiesced in by all the ansoc ate ^cunselXli^iFt ot ^"f -^ **"* Province, led to the deter- to marshal in support the whole weight of thHv denP wVi^lf . i' T''"". ^ nari-oweras the wider claim. ThevviXm f.f ThL ■ ''*!-' ^'«" ^'i^siKued to fortify as wel the the mere instrument y which tl e xihiln^^ this course was justiPed by the result. The Award itself - legally valid. becauK. /f The brea ^of & irtirDli^rnV''!''" '^'"'-"""ation-could not be held to be ment to procure conHn.atorv leginlation Tbut I e oonclST.^' h r™5 '" ''"'J",f '" """y ""* '^eir agree- The Lords of the Judicial Goiifi^ittee of" the I'rivy" cl^ncilV^^rt^d to^HeTMa esS ■"'''' ^"' ""*'^^' " 2 ThJ ■ ^!r, "" ""T"^ ''*''''*''"" ''^'' '"^"^ P'"'^^' *h" Award is not bin.llng as relate to thet^^tyTiwt di^p:;'t:ttw^'n the'p'rtin '"'^ ^Z"""^''- ''"- '-'^ "'^^^ ^'^ that Award be substantially correct, and in accordant! J^H^^th^ ^'^<^,^"'«« "^ Ontario and the Province of Manitoba to evidence laid before thm." ''<='="'-dan<=« "".th the conclusions which their Lordships hav^ drawn from the 407 f !» APPENDIX. B. The numerous references, by the counsel for Manitoba and for the Bominion, to the reepeotive rights and positions of the French and of the Hudson's Bay Comp<*ny, in regard to the territory to the northward and westward of the watershed of the St. Lawrence system, which the counsel for Ontario, by the course pre-determined upon for the con- duct of the argument in reply, were precluded from noticing in detail, seemed to call, in this edition, for some notes of correction or explanation in the interest of the general reader, who had not the advantage of access to, or familiarity with, the very voluminous evidence. It was found, however, that the frequent repetition of the same arguments, in varieties of form, would also involve cc jsiderable repetition in the foot notf i ; to avoid which, to some extent, the present Note also has been prepared, exhibiting a general view of the (josition of each party upon the evidence and the facts. The figures printed it the end of each particular have reference to the pages of the Joint Appendix, except where otherwise specifically indicated. I. PROCEEDINGS OF THE FRENCH, OR BEARING UPON THEIR REGIME. 1608- 1610- 1612- 1627- 1632- 1640- 1656- 1658— 1661- 1661- (1) As RESPECTS Hudson's Bay, and the Tjbkitobiks to thb ^\jbth of thk Height of Land, up to the TsEiiTY op Utrecht, 1713. •Oity of Quebec founded (172). •Formal act of taking possession of the country by Cliamplain (462-3). ■Commission to Ohamplain (647). ■Charter to the Company of New France, or of th Hundred Associates, covering Hudson's Bay and the territories northward cv. the Arctic circle (174, 197, 647), replacing a like charter of 1620 to the Montmorency (de Oaen) Companv. (lb.] Ferland, i, 200.) ■Treaty of St. Germain en Laye, restoring Canada to the French, without limits (174, 197, 463). [Canada had fallen to the English, v,nder Kirk, in 1629.] The Company of New France take possession of the region of New North Wales (463;. ■The Company of New France, authorized by the Sovereign Council of Quebec, send Jean Bourdon to the Bay, in command of one of their ships — he takes posses- sion and forms a settlement (466, 477, 625, 628). Decree cf the Superior Council of Quebec, giving control of the King's Domain or Limits of ( Traile de) Tadoussac to Sieur Demaure (653). [ The said limits were adjudged to extend from the St. Lawrence, in front, back to Hudson's Bay " in the extent of whose boundaries are found the Posts of Miataasins, and behind the Mistassins as far as the Hudson's Bay " (663. 656)] ' ^ Fort Nemiscau, on the Nemiscau (Rupert) River, established (477). By order of the Governor, the Jesuit Father Dablon, with the Sieuf de la Valli^re, an officer, and live soldiers, proceed to the Height of Land, at the sources of the Kupert and Saguenay, and make Hcts of taking possession of the northern lands (467, 477, 625, 028). 408 APPENDIX. J6G3- o the pag68 of the lEIR REGIME. '^' ^Zr^J^Z'Y.f *'"' °°**' ^"^ **^'*"P'-«' "'^^o'^Panied by fivo others and lC63_The Sieur Duquet King's Attorney to the PrevAtd of Quebec, and Jean L'An«laiB 1664-The Company of New France having surrondered their charter to the Crown, new trx;i:^ ;^ ■ h^Ts :s ^;r i^^r ''''''''' ''- ''- '^"°^'' 1665-The P^-7^^^-ee in^ A^rK^ ,, ,,,. ,3 „, ,,, ,^,^^ ,^ ^,^ 1662.6-RadiH8on and pea GroBselliera. employees of the Company of the West Indies, at orolTrh ^ * f ^^I' "PP^f; ^^^'' °^ ^''^ Bourbon or Nelson river. They proceed thence overland to Hudson'. Bay. returning the san^e way (463 4, 1666-4rr.7 of the King's Council of State, contirniing the Company of the West Indies Tet^l"?i"^Tfs^^^' ^■''^'^' °^ Tadoussac, a former lease having been set aside (Book of Arbitration Documents, 203). 1667— Treaty of Breda— see 1605 mpra. 1670-Oharter to the Hadson'j Bj,y Company, saving the possessions of " the subject, of any other Christiar I'rince or State " (341). 1670-1-The presence of English ships in the Bay being reported at Quebec, the Inten- dant Talon despatches Father Albanel, Jesuit, and the Sieur de St. Simon to the Bay to examine into the matter and " to take renewed possession in Hia Majesty s -lame," "as those countries have been long ago (ancimnement) originally discovered by the French " (619, 620). noKmnemem) 1671-The jndian nations of the North and North- West, assemble*! before the subKlele- gate St. Lnsaon put themselves and the territories occupied by them under the French dominion (467, 478, 619, 628, 633). 1672-0l8im of the Company of the West Indies, as against the French Grown, that the L.imit8 of Tadoussac extend to Hudson's Bay (621). 1672-Formal taking possession of the lands of Hudson's Bay by Albanel and St. Simon. (Joint App., 478 ; Book of Arb. Doc, 348-9). 1673_Several forts and factories established by the French on the Hudson's Bay slope VIZ,, one on the Mo.se River (567), one on Pisgoutagany Lake (Lake Ste! Anne) on the Albany River. one on the Tabbitibi River, and one " between the Outouhbis and the Asaeniboels." which was probably towards the head of tne Albany (478). 1675-A French-Canadian ship despatched to the Bay to check the designs of the Enc- lish J It winters in the Bourbon (Nelson) River (638). 1676— French post established on the Bourbon (Nelson) River (626). 1679-Louis Joliet's voyage from Quebec to the Bay-his report and map, prepared at the instance of the Farmers of the Revenue (621). r. r r 1682-The French re-establish Fort Bourbon on the Nelson. The English arriving subse- quently, and attempting a settlement, are, with their ships and effects, seized and kept prisoners (569, 572, 585, 622-3). 1683-5— The Hudson's Bay Company's servants refuse to visit the inland parts (585). 16g3-Two detachments of French proceed towards Hudson's Bay, to protect the trade and oppose the English (623). Ante 1684— Fort on the River Lamanne [? Savanne] established by Du L'Hut (624). 1684-5— Fort on Lake Ste. Anne (Albany River) recHablished (624 ; see Bellin, 643) 409 '' AI'PENDIX. 1686_Chevallertle Troyea and D'Iberville, with a military force, march overland and capture three English forts on the Bay (570-1. 627). 1686— Fort Abbitibi built by pe Troyea (Ontario, App, 7, 101). 1687-Treaty of Neutrality, confirminK the treaty of Breda, and to each party the terri- tones held by them (454-5). y J " 1687-Indiar,8 accustomed to trade at Hudson's Bay, to the nnmbpr of 1,500. trade at the ^rench forts on "the rivers above the Lake of the Allenimipigons " I the branches ot the Albany] (62D). ■• 1687-1G97-During this period the posts on the margin of the Bay were in the hands of both partie^ alternately, Fort Albany only remaining ultimately to the Hud- son s Bay Company ; and even this, under Art. 8 of the Treaty of Kyswick, the French were entitled to (489). Ante 1688-Maison Pranvois, on Lake Abbitibi, established (Ont. App., 98). i695-Post8of Abbitibi and Nemiscau granted by letters patent to La Oompagnie du JNord (Ont. App,, 7). 1697-Treaty of Rys wick whereby there was to be a mutual restoration of places pos- sessed belore 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 FrencT^ (48?)""^'**"'^° ^^ ^^^ ^°^"*'' ''"""^ ^^'^ '^*'' "*"*" ^ '^^* *° ^^^ 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 Z"^,.^''^ *^** "*''«y "*y ^ 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 tort at New Severn on the Bay, " wheroby they have hindered the Indians from coming to trade at the Company's factory at the bottom of the Bay, Fviz , Albany] so that the Company this -year have not received above one-fifth part of the returns they usually had from thence, 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 brt (573), the other forts of the Bay bei. in possession of the French. They complain that they are surror >ded by the French on every side, viz., by their settlements on the lakes and . uers from Canada to the northward towards Hudson's Bav 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 Ptraits, and which belong thereunto ; ' and commissaries 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). ^ What the French actually " restored " under the Treaty does not fully appear, but they claimed that they were bound to restore only such places as the English could prove an incontrovertible title to (512, 515). That they did not consider themaelves bound to give up any part of the interior country is evident as well from their retaining their old posts therein as by their establish in" ne- ones. - - o •• 410 Al'PENniX. arch overland and oh party the terri- reaty of Kyswick, (2) Old Posts kktainku and Nkw Posts kstw.i ,««,,,, „ North op ti..- u... r sstadlished ny tub Khknoh, to xna NoKin 0^ T„a mum, op Land, aptku the Trkatv ,>p Utukc,; AND UP TO THK Onss.oN OK Oanaua : 17i;j.l763. Mistassin, on tho Lakp of that n*. ,. tiv \ n > ., Joint App^Gsr^n)' ^''^"^•"«« -^t^P of 174(3; Ont. App.. 108. 115; Neraiscau, on Lake Nomi.cau, Rupert River, (Ont. App 33 117^ pi: ::t:rr: "l-r i';";' '""• ^- •»»■ -"• Fo« 8., a,™.i„. „„ l,.k, s.. Anne, A,U„, Bi„,, ,o„t App., 100, ,08, 109, 113, ''•'•"^•°7.1Sp«lTC,;;;"«?pJ°1,V" """^ '-^-«'» «"-'-•' ».,. i*^«M> Pos/s Eatabliahed : [And see the Posts of the North-Weat. sub-sec. (8) ,n/raj. ''''~'*"\Tn;'^1^^58'0)^^^----«- „, ,^„p,^.„^ ^^ ^^ ^^^ ^^^^^,^ ^^^ ^^^_ 1731-Mai8on des Dorvals. on Lake Miatassin (Ont. App., 105. 108). 73 ~prt"'"r f p'' '^"*"° "°"p'"^ ''^ '""^ '^«'''° °' ^^'^^ M-*-- m 17dy— Poat on Seal River, north of the Churchill (582) • of rentoring inknd (680 1° "^ Company', aerv.nu .,e incapable 1747-P«.„„t^e_Kjpe«R^,r,bywhich the French al„o.. „„„„p„„» .ie trad, ., inland » (Ont. App., 34). ' .ettlcmcnM m ailTerent parta "''-''°";:'.?7fe4T6«r'' °' ''°'"*°°' "'" "■"»• """' '"»°'> '" »»'"»■'■' B.7- 411 f 1 APPENDIX. (3^ PBBNcn FORTS OP TUB N0R:„-Wk8T. KBTAHLISHEr AFTEH TRB TrBATV Of UTKKCHT, HETAl.VBI, UNTIL VIIV. CeBHION OP CaNADA, AND NKVBR COMPLAINED OK IIY KITIIKB THE EnolISU OoVKUNMENT OR THE HUDBO.S'S BaY COMPANY. 1717-1* NoueUcom«i8Hioned to re-establUhCa.nanU^^^^ to erect for^.s on mnt^.. TA^w ^^r'P"* <^^°^- "« reeHtablisheH Oamaniatiguoya TT07 Tj '^' ^ " ' * P°** (Takamamiouen) on Kainy Uke (140-2) 17-7-Po8t of^the^Sbux^osUblished by Boucher °«t distant Indian'nations (JoTni Corn; ' PP" '^' ^^'' ''«'^°' ^"^ succeeded by Saint Luc de la Circ. ^^^^^^-f;i«^C.n^^^^^ the Saskatchewan, erected by Ante 1767-Fort des Prairies, erected (Joint App., 644-5; Ont. App.. 17). 412 API'KNDIX. visited, by way ran, erected by II. OPERATIONS OF THE IIUDSONVS KAY COMPANY, OR BKARINO UPON THEIR CLAIM. IC10.1015-Voya«e^^^^^^ Hutcon. Bylot and Baffin, respectively, into Hud«,u', 1629— Conquest of Canada, by the English under Kirk (173-4) 1631 - Voyases^of Fox a^.d Jamen to th. Hay. there havin, been none other in the interval The above voyaRea were directed chieUy to the diacovery of a North West I'assace and wore not (bllowe.l by any kind of posaesaion (175. 5G6) * ' 1632-Treaty^of^8t.^ Germain en Laye, whereby Canada is reBtored to th. French 1668-Gillam'8 voyage, at the insUnce and under th. guidance of the two renegade French Canadians, UadisHon and Den (iroHaelliera (lb). renegaUe There had been, from ICai, no other English voyage to the Bay,_an abandon- hand t7 ^'7°? -fu'Jr' ('"'^' '''' ''^''- The French, on the other 6?0 } iStd'l'eToT^V'^"' tI^'f'^'T f ''"^'T^°* ''^«"'«™' 1668 ; re-estab- " V ; iisnea ib/u (SBC). The French had, several yeara before, (in 1661) erected 1670-Charterof the Hudaon's Bay Company, saving the posaeaaions of "the aubjecta of any other Ohr.at.an Prince or State" (341,. The French had, long before aIhI; "^'''"^Z'^, »>" lesion in the charter of the Company of the HunS Aaaociatea, and after the surrender of this charter to the Crown, m 1663 it ^supX " °' '''"' '' '''' ''•'"P*"^ ^'^^'^^ WL Indies 16701683-The Company during this ^riod had only Fort Charlea (or Rupert). The French, on the contrary, had several eatabliahmenta (,upra) 1682-The Oompany'^^^^^^^^^^^ a fort and settlement at rort r^6laon (585 56P«"«"n., considered their own exdmive domain 'nt'Uder. wholl, out o( what they W.n,p,,, .a.Ut„h...„ and o.i.er Vitl ^oyThVN^orfhVe.l^-pJ^-tS;,' ISS mreoht, .,e Eo.iieb w„re .■ reator^i "t fol; 7Si^^^.;^:ZZ:^ ■ '"^ '"«' "' ««i^':«dr„u«-S:heTe:i:r' rJo^tVw*: o»io„„, o.,,.,;. .h, .„. p., .hed o( Lake .Superior to the Ekv \i™ ,nu„! I", ' "","''•"« '""" '!>» »«er„ water- to the northern b^d™ onLt;^.tS:::rdrt^r;vti':;rk;\rdVi'::l'"'-^ Oa.aL%Lr^,,rh.Vd'lf lltl'^;rrL,"'d''''' -" -" '" "" «»'»" " north, m elope, .,,,1 .,,, ,„,„. .„ ."^r^ '•;a t'o? h. ulZ ^i^"!, ""■""■ """• " ""> zz^zzr" ^""-"•' ''"'•" '"-. "»ri!t«irrs'rp:^r:hf «.. eSi;=:rS;S:;'h'e7r„r,":.?:K,:r hT'r '"■ -^"-f ^ »< «-»«'"• her early charters, th^ titlL ..„♦•,::!!.?..*.. ''"*'".^'' her d.apoHition of these reLnon« hy Kreda ; uud the charter of the Uudaoii 'a' Lv'.'Om ,?„"'''' ''' i^'". ':""'"*"» «" We an<| of .ion. o, .he ..hjeot. o, an, other ^^^^^^S^^^^^ '::ZZ^"S CZ T 1 APPENDIX. could be, in derogation of the rights of France. These rightH were, subsequently, extended or conhervod by the Treaties of Neutrality and of Ryswick. And it was the contention of Ontario that the Treaty of Utrecht, which curtailed the theretofore admitted rights of France, and the Treaty of Paris, which put an end to those rights as respected Canada, could not put the Hudson's Bay Company — as a company, and apart from their rights in common with all the other British subjeoti — in any better position than that they had pre- viously enjoyed , that the benefits thereunder enured not to the (jonipany, but to the Imperial (.'rown of VJreat Britain on behalf of the nation at large ; and that therefore it was competent for the Crown, (or the Crown and Parliament), on the formation of the Province of Upper Canada, now Ontario, to give — and that it did (jive — to the Province such extension as was deemed desirable, without regard to any limitation constructively arising upon the Company's claims regarding their territorial rights under the original terms of their charter. This view — embodied in various acta of state and instruments of authority — was given effect to in the Award of the Arbitrators, whereby the boundary was carried to the shores of James' Bay, and was subsequently adopted in etToct by the Imperial Privy Council and by the Parliament of Canada, and confirmed by Act of the Imperial Parliament. c. IMPERIAL ORDER IN OOUNCIL, EMBODYING HER MAJESTY'S DECISION. At the Court, at Osborne House, Isle of Wight, the 11th day of August, 1884. Preuent : THE QUEEN'S MOST EXCELLENT MAJESTY. His Royal Highness the Prince of Walks. Lord President, Lord Steward, Earl Granville, Earl of Northbrook, Sir T. Erskine May, Sir A. Cooper Key. Whereas there was this day read at the Board a Report from the Judicial Committee of the Priv" Council, dated the 22nd of July last pasi;, in the words following, viz : " Your Majesty having been pleaned b^' your Order in Council of ;lie 26th June^ 1884, to refer unto this Committee the humble petition of Oliver Mowat, Your Majesty's Attorney General for the Province of Ontario, as representing that Province, and of James Andrews Miller, Your Majesty's Attorney -General for the Province of Manitoba, as representing: that Province, in the matter of the boundary between the Provinces of Ontario and Manitoba, in the Dominion of Canada, between the I'rovince of Ontario of the one part and the Province of Manitoba of the other part, sotting forth that a question has arisen, and is in dispr ' i, between the Provinces of Ontario and Manitoba, respecting the western boundary of the Province of Ontario, and it has been agreed between those Provinces to submit snch (juestion to Your Majesty in Council for determination ; the following Special Case has accordingly been Bgteod upon between the petitioners as repre- sfciiting the two Provinctj aforesaid : — " ■■ Special Caae. " 'The Provini -■ of Ontario cla ms that the western boundary of that Province is either (1) the meridian of the most north-westerly angle of the Lake of the Woods, as described 410 sequently, extended as the cont«'ntion of re admitteii rij?lits 8 respected Canada, froiri their rights iu 1 that the}' had pre- )ii)pany, but to the id that therefore it le formation of the e — to the Province ,tion constructively under the orif^'inal and inBtrumenta of lereby the boundary !d iu effect by the med by Act of the STY'S DECISION. ' August, 1884. Y. ihbrook, ne May, er Key. ! Judicial Oouimittee following, vi/. : il of ;he 26th June,. «vat. Your Majesty's \t Province, and of ovinco of Manitoba, sen the Provinces of Dvince of Ontario of forth that a question klanitoba, respecting greed between those determination ; the I petitioners as repre- lat Province is either Woods, as described APPENDIX. in a certain Award made on the 3rd August, 1878, by the Honourable Chief Justice Har- rison, Sir Edward Thornton, and Sir Francis Hinoka, or (2) is a line west of that point. " • The Province of Manitoba claims that the boundary between that Province and the Province of Ontario is (1) the meridian of the confluence of the Ohio and Mississippi Rivers, or (2) is that portion of the height of land dividing the waters which flow into Hudson's Bay from those which empty into the valley of the Great Likes, and lying to the west of the said meridian line. '"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 par- ticulars in the said Appendix is submitted quantum valeat, and not otherwise. " ' In addition to the particulars set forth in the Appendix, any historical or other matter may be adduced which, in the opinion of either party, aay be of importance to the contention of such party, and (subject to any rule or direction of the Judicial Com- mittee in that behalf) such additional matter is to be printed as a separate Appsndix by the party adducing the same, and copies are to be furnished at least ten days before the argument. " ' The book known as the Bo-'k of Arbitration Documents may be referred to in the argument for the purpose 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 the 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 1 " ' (3) Whether, in case legislation is needed to make the decision on this case binding or eflFectual, Acts passed by the Parliament of Canada and the Provincial Legis- latures of Ontario and Manitoba in connection with the Imperial Act 84 and 35 Vict, cap. 28, or otherwise, will be sufficient, or whether a new Imperial Act for the purpose will be necessary. " ' 0. MOWAT, " ' Attorney-General of Ontario. '"Jamkb a. Millbb, " • Attorney -General of Manitoba.'" " And humbly praying that Your Majesty in Council will be pleased to take the said Special Case into consideration, and that the said Special Case may be referred by Vour Majesty to the Lords of the Judicial Committee of the Privy Coumil to report thereon to Your Majesty at the Board, and that such Order may be made thereupou as to your Majesty shall seem meet. The Lords of the Committee, in obedience to Your Majesty's said Order of Keference, have taken the said humble Petition and Special Case into con- sideration, and having heard counsel for the Province of Ontario, and also for the Province of Manitoba, their Lordships do this day agree humbly to report to Your Majesty as their opinion : — " 1. That legislation by the Domiuion of Canada, as well as by the Province of Ontario, was necessary to give binding efiect as against the Dominion and the Province to the Award of the 3rd August, 1878, and that, as no such legislation has taken place, the Award is not binding. " 2. That, nevertheless, their Lordships find so much of the boundary lines laid down by that Award as relate to the torritorv uow in dispute between th<-- Provir-''" of Ontario and the Province of Manitoba to b3 substantially correct and in accordance with the oonoluaions which their Lordships have drawn from the evidence laid before them. 27 (B.) 417 APPENDIX. western Jrt of th^P 5 •?n\^'''^ ^^' *'"« boundary between the western part of the Province of Ontario and the southeastern part of the Province of Manitoba to be so much of a line drawn to the Lake of the Woods. throu«h the waters tZ t?rlt of'tltV 1 riV! """^.^f ^' "''^^^ ''''''^ «"*'«»> NorthTmerlor? o™ the territory of the United States, and thence through the Lake of the Woods to the most north-western point of that lake, as runs northward from the United Stares boundary and from the most north-western point of the Lake of the Woods a line dr!w^ due north Tl ed 'l ke S u? ZT 'r 1 '^^ r'^l ""{ '''' ''''-' ^'-*^-8-« '"^^ waters of the lake called Lake Seul, or the Lonely Lake, whether above or below its confluence with the finH r'"^ ^'"? the L.keof the Woods towards Lake Winnipeg. andZir L^ip, the'aou'th oT^r^'r '''"T ''^ ^^"^ '.r ^'"^•"'^^^ *° '^' -'^^ «« OntLio and ?o ine 2 k« f ^ S"' f^'^^^f'^S ^^^^''^'•d f'-om the point at which the before mentioned \\nl S7h« ""'1''^ '""' °^ *^' "°"''« °^ *•''' "^«'' '»«* *f°'-^«'^iilr« hTSZf :„ JTh nctlhJo''' hii *'^";r, '^"^ "°"^^ ^'-« threaurTin^^to':;' l^d^o tL 'utJu?!''i?M' "l.l'''^"™''''?'?'''"''' ""• «»v.rnor General in Oouncil, d.W 21 3l . '^^ 1 u ^?'^^' ^f''.*^*' "^"^^ in accordance with the Act 23 Victoria Ohaoter 21, and approved by Order of the Uovernor-General in Council, dated the ToToiM^X (Journals, House of Commons, Canada, 1889.) E. AOy OP THE IMPERIAL PARLIAMENT, 52 Ai^D 53 VICT., CHAP. 28. An Act to declare the Boundaries of the Province of Ontario, in the Dominion of Canada. [12th August, 1889.] , . Be It therefore enacted by the Queen's Most E^.ell«n. Mo/A: ulT.',^ _:.. ... 420 Al'PEVDlX. mted to the 1. rhis Act may be cited an the Canada (Ontario Boundary) Act 1889 ProvLe oi'oolarfotfthnl*!^'' '^l Z''-''i'' f^i^^'^'^' "^"^ ^*«*"'y boundaries of the province of Ontario are those deacnbed in the Address set forih in the Bchedule to this SCHEDULE. ADDRESS TO THE QUEEN FROM THE SENATE AND HOUSE OF COMMON'S OF (CANADA states rTZi^ fr^'-f "^^ '}' i«t^™ational boundary between the United erly alon^l^e S Voii'^^'t 1u^'' '^^ ^^*'^^" '^''''' «^ L^ke Superior, thence wit erly along the said boundiiry to the north-west anglr ,f the Lake of the Woods thence along a line drawn due north until it strikes th« miadle line of the course of the rTver discharging the waters of the lake called Lake 8eul, or the Lonely LT whether above j2fZ;nj:efZ7 tlf ''' '''T *^--g f-"' the Lake 'of^he Wofds towards ;t,!«!-„ J f P ^1 -l^ t'^''"^® proceeding eastward from the point at which the before mentioned line strikes the middle line of the course of the river la«t aforesaid aLf th^ Rive Vr'TtoteoaTbf '"^r^^ ^^ ^^^^^^^ -""^ by the'name ^f'the' En'gl sS Ske Seui or thri n^ °''T^" '"''^'Tl^' ^y tho name of the River Winnipeg) up to lAke Seu!, or the Lonely Lake, and thence along the middle line of Lke Seul irl\u^^'-^., *¥ ^""^ "^ **^'^t '^l^^' «"d thence by a straight 1 ne to the nearest miSe line' u'ntlf'l'"' l' *'t "f^" "' ^"^^^ ^^^ ^^^P^' and thence along Tha middle line until it reaches the foot or outlet of that lake, and thence alone the thel ^oVthe n-rofV'/^ °' ^^'^^ «'• Jo-Ph discharge the-le^vest ine snore ot the part of Hudson's Bay commonly known as James' Bay and thence romtrhel'dS'SV'^"'^^ P"^"^* ^•^-^ * "'- dra'^n'Sue nort" a^^line to the LaH of Tr^Ti'T' ^.°"l^ "'"^^ '^' "'^^ ''^^""^ ^ue south along the kke into the «h! I '^'^ If ^' *°/ *^"'^°^ *^''°"8h the middle channel of the said of the faid rifer trth«' in"; "''^*^''°r descending along the middle of the main channel Seigneur^e of Riil 1 « intersection by the prolongation of the western limits of the aeigneurie of Kigaud, such midchannel being as indicated on a man of ^he OHaw^°dary between Upper and Lower Canada, made m accordance with the Act 23 Victoria chanter ^i ant approved by Order of the Governor-General in Council, dated thnGthof March. 1861 1 tario should 421