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r 1 a
i:
To His Kxcollency tlie Uiglit llouoiablo ('luirlos Stanley
Viscount Moiurk. ]5arou MoncU of Bnllytraminon, In the
County of* Wexford, Governor Genornl, &c,, &e., &c.,
IN c o y M C I L .
Tlif Mcirinriiil of Mahy McCokmick, widow mihI relict ol Williuiii McCorinidk, lati
Lalic Krir, M-^ijiiirc, dfCLMscd ; ol' David, Williii
of tile Island of Poiiit-aiil'i'l(
Thomas, Liiciiida K., I'itc'tIiii', Arilinr and Snridi Ann, llic snrvivinu' sons and (lan'dilors
ni.
of till- said laic William McCoiniick, a
II
•cm-' devisees in lii.-
.-I Will aiul Teslaiiifnt ;
and of Francis Hiirwell, (;iiarlolle l.oiiisa. Waller I Icrhcrl, William vJliarlcs an<l .Malcolm
Talhoi, the sons and dani;hlcrs of.lolin McCorniieli, la'.c of llic said Island, Ksi|uire,
decfascd, wlio dic(l inteslalc, and who was also one of die sons and devisees in liio
said Will of tli(! said laio William McCoriiiick ; —
Humbly shewelh —
1. That on the lirst day of May, I7S.S, the (.'hicfs and Sachems of tlio Hands oftht:
Cldppewa and Ottawa Nations of Indians, then owniiii,' iind inhahitiiiif the said Island,
rxceiited, with all due soleniniiy, and delivered to'l'lioinas McKee, who wtis a half-l)recd,
and a Chi(d', anil then of the Parish of l/Assomptioii, in the then Province of Qiielicc, n
Lease of the said Island, for ii term of nine liinidred and ninety-nine years, whicii Lease
was duly attested i)y, as siihscriliini,' witnesses, .lames Allen, then of Detroit, in tilt!
then Indian 'I'erritories, and l''rancois Mahy, then of l/Assomption aforesaid, and after-
wards of the 'I't
iwn
i)f W
indsor. Ill
the C
oillltv o
f I'!
sCX,
i:
represenled, in I'arliameiil, the said Comily tor many ye
Lease, marked (A,) accompanies tiiis .Memorial.
quire, deceiiscd, and who
; a true copy of which s.iid
2. That the said Thomas .McKee, iimnediafely ••il'ler the e.\eciition and delivery of
tlie said Lease, eiiti'ied into possession of the said Islam!, iherciindcr, and coiiliniied in
.sueh po. session, l)y lii
in the iiumih ol M<
ssioii, l)y himself and his tenants, up to the time of his dciilh, which occii
f the year iMl."), when iiis only child, Alexander
McK
I rred
if
L';\ssomption, in the then Dist^
therein, the suid Thomas McKt
3. That the said Lea
by the enemy, on the occ:
Thames, (in which lie had \)i
, ol
III
M
-iimre, (leceaset
inherited
lii-
ee, o
interest
d intcslali
sail
I L
h
avini;, howe
prevailinf( in the then I'n
Pnblie, in a rej^isiiy book
the said Ixxtk l)em!j; one ol
referred to and described
and marked (H). Tlial tj
with the allidaviis of ()|
one Charli's Labadie, ill
herewith exhibited
That Yonr Exec:
Book bears, on its faee7
111 the said Thomas McKee, wic, his baggage,
lit of the Uriiisii forces after the balde oj llie
luring the l.-ist war with the United States, the
St duly enrolled aciording to the Ficiicli law,
re, by William .Monforton, Kstjiiire, as a Notarj'
us such Notary, on pages 293 and 294 thereof;
Iree old registry books which are more parlienlarly
fit of.lolin Stuart, accompanying this Memorial,
Irial Uegislry Hook of the saicl William Monforton,
IMonforlon, the grandson of the said .Votary, and of
pompanying and fmlher identil'yiiig the same, is
Horialists respeelfnlly submit that the said Registry
lencc of its own uutheiiiicitv.
4. That it \vmm
H^HmeTOth May
lion of the said I\^H
^^H, that the ti'^
In now the Coiiii^H
^^^Ho the Che 11^
opposite a porlii^^H
^^^Huriiory th^H
the Indians, and^^H
^^^Hl of sindi^^H
such Deed, to I^^H
HBgotiatcil^^H
of the saidTho^H
^^H, is I'nj^^^l
books ; that t\^^H
^n regi^^^l
to have been (j^^B
HhcK^^^H
Canada, i>P°H^H
^■shi^^^H
of two years iifter the exeeu-
from Cattish Creek, in what
10, upward:
iicteiidin
^\ hat is now the (,'oiiniy of Kent
Situate — was ceded to tiie Crown liy
Fity lor whicli appears, liy the terms of
^leKee, Ksqiiire, who was the father
'the others of the said three old registry
f Avliieh lliiit last mentioned is one, appear
*of the then Western Distiiet of Upper
ney still remain; whereas, that of the said
/
l^bO
William Mont'oilon uppcars to huve remained in liis liniub up to tlie time of iiifi death,
iiml to liavf liccn subsequently in the keeping of his descendants until n very few years
since, wIiimi it vvns uciiuired by ilic said Cliarlcs I,abiidie, and by him handeil over
to till, said John Stuart, as mentioned in the said allidavils, annexed thereto.
That a Iriie copy of the said Deed of Cession, as extracted fiom one of the said
other two ii'ijistry books, is annexed to, and forms a pari of th(! said affidavit of the said
John Siuarl.
5. That none of the islands, lying oil' the coast so ceded, and of which the island in
question is one, are included in iht; said Deed of Cession ; neither have the Indians,
either before, or siin'i? the ilato of the said Deed, ever pretended cither to cede the said
last mentioned island to the Crown, to demand possession thereof, or to claim any right
thereto.
6. That the iiands of Indians, who so owned and occupied the said island, and
whose Chiefs ami Sachems cxecuteil the said Lcjise thereof, to the said Thomas McKee,
have become exiiiicl.
7. That the . lid William McCorrniek, so early as the year 1815, removed to the
said island, as will appear by reference to the afiidavit of Michael Fox, (accompanying
this Memorial, and marked (C,) ) occupying the sanii-, as the tenant of the said Alexander
McKee, the younger, up to the year l«.'3, when he, the said Alexander McKee, by
Deed of Bargain and Sale, duly registereil in the Itegisiry Office of the County of Essex,
conveyed to him, the said William McCormick, the whole of the said island, for a
valuable consideration, (a certified copy of tlie Memorial, of which said Deed us regis-
tered, accompanies this Memorial, and is marked " D,") and, from which latter period,
he, the said William McCormick, occupied the same ns his own property, improving
and building upon it, by himself and his teu.inis, up to the time of his death, the 18:h day
of February, 1840, bringing up and establishing thereon a numerous family of eight
sons and three daugl'.ters, to whom he devisejl the same equally by his Will, and all of
whom, with the exception of those since deceased, have continued to reside upon and
improve the same up to this time.
8. That thi! said William McCormick, by his last Will and Testament, *"...ring
date the ^Olh July, I83i), also duly registered in the Kegistry Office of the said County
of Essex — after leaving to his wile a Life F.state in the " Home Farm," and two hundred
acres of woodland adjoining it for her own support ; charging three other farms, specified,
with the support and education of the younger branches of his family, during their
minority; and leaving his sister Elizabeth a life inieresi in the " Butler Farm," — devised
to each of his eleven .«ons anil daughters, a certain farm, (paiiicularly designated) pro-
viiling that each and every of the ten, of the said eleven, farms thus specifically devised,
should be made up to the complement of three hundred acres of tillable land.
And the said William McCormick further — after providing that one hundred acres
of land, on the island, not otherwise disposed of, should be reserved for the support of u
school on the said island, and that a certain place should be murked out for a village
plot, a church and a school-house — devised the residue of the island, the saw-mill, with
two acres around it, with all stone, cedar, timber, village plot, church and school lot,
and himting and fishing privileges, equally among hiA said eleven children.
That the said William McCormick, by his
as executrix and executors thereof, his said
David and William, of whom only the said Mai
William arc now surviving ; a certified copy of
registered, accompanies this MeiuorinI, and is ma
9. That after the death of the said William^
said Will, considering it advisable that the said isl
farms, so sp'cifically devised to them respectively,
to the employment of a Provincial Surveyor for that
Salter was, accordingly, employed therefor, and who,_
of the island, and whose original field notes and e
pany this Memorial, and are marked respectively " F
10. That the said Alexander McCormick, who, as
the other devisees to act as their agent, for the manage
undivided portion of the said island, inducod
specifically devised by the said Wdl, in such
interests, and not in accordance with the t
none of the other devisees^ ever assented, e
Testament, appointed,
d sons, Alexander, John,
and the said David and
)f the said Will, as duly
the devisees, under his
be surveyed, and the
nd d( fined, consented
the la-e Philobeth D.
847, made a survey
" such survey, accom-
d been allowed by
r interests in the
t off the farms, so
is own individual
which survey
irtion of the said
li
Island known as " Middle Island," llu- division iliercol' being in MtricI ticcordanee with
the terms of the said Will, and also, ms truly determining tlic area of the said island and
iis marshes respectively.
11. That the Haiil Island of" Point-au-Pelee," lhoiij»li found, liy the said survey, to
cover nn area of eleven thousand six Inmdred and forty-nine aen^s, one rood and fimr
poles, contains upwards of live thousand four hundred acres of iTiarsli, which is iinavaiU
able at all limes and, in fonscqu('n(!o of its low hjvcl, utterly irreelaimahle ; that
upwards of two thousand acres of that portion, which is not such irreclaimable niaisli,
can never be mtidc available as lillai)le lan(l, it being always ovcrlloweii at anything
I ke a high stage of water ; and I'urlher, there an; at least five Inmdred acres of the
remaining four thousand three hundred acres on bed-rock — slightly covered with soil —
which is also unfit for purposes of tillages ; there, thus, being less than four thousand
acres of the whole area ol the Island, available, at all times, as arable land.
12. That, in the year 1859, some of Your Excellency's Memorialists, being anxious
to raise money, some by way of mortgage on, and others by sale of portion* of, their res-
pective interests in the said island, and having failed in such attempts in eonseqnenc^
the indisposition, on the part of the parties with whom they had negotiated
purpose, to purchase or make advances on real estate, for which no Patent had i1
consulted their then legal adviser, John Prince, Ksquire, a* to the best nmde of pro^
the confirmation of their titles by the Government ; that the said John Prince ther
suggested that the Government hould be requested to bring an amicable suit al
one or more of them, in respect of their possession of the said island, he, the said Jolm
Prince, advising them, that upon judgment being r«mdered in their favor, (as he was
confident it nuist be,) the Government would at once issue the necessary Patents to them,
confirming their titles ; that Your ICxcellency's Memorialists, reposing full confidence
in the legal knowledge and ability of the said John Prince, were induced to assent to
such his suggestion.
That, accordingly, at the express instance and request of the legal adviser of the
said devisees, the Toronto agent of Her Majesty's Attorney General lor Upper Canada,
filed, in the Court of Queen's iieneh, an Information lor Intrusion, on the said island,
against Mary McCormick and William McCormick, two of Your Excellency's
Memorialists ; which action resulted in a judgment, rendered in Easter Term of 1859,
in favor of the Crown, and on which said judgment no further action has been taken, by
or on behalf of the Crown, than the collection of its costs therein, from the defendants,
under a Writ of Execution ; that the said information, having been so filed, a special
case was agreed upon, by the Counsel on both sides, for submission (or the judgment of
the Court ; that in the statement of such spec'al ease, not only weri* some material facts
erroneously stated, but a particular one, which, as Your Memorialists are advised, was
most material and important to the defendants' ease — as in fact, constituting the basis
and ground-work of the McKee-MeCormiek title to the said island — was wholly omitted
and ignored, namely : the (!xislf:nce of the Registry of the said Lease from the Indians,
and that the holding, as well by the sai<l devisees, as by those under whom they claimed,
was under the said Lease, and, which fact, had it been made to form a part of the said
special case, could not, as Your Memorialists are advised, lave failed to satisfy the
Court on the very important point, as to which tl<e learned Chief .Justice, the late Sir
John Beverley Robinson, Karonet, in giving his judgment, admits, in the following
words, the Court to have been left wholly in the dark, viz : " Some proof, I think,
*' should be given that the p<).sses8ion had not been a mere continued one taken, in the
first instance, by a mere intruder, not a.sMsrting title."
Your Excellency's Memorialists lieg leave to append, for Your Excellency's infor-
mation, the concluding paragraph of the judgment in question : " I do not doubt, when
*' I consiiler the position of this Island, un the southern frontier of Canada, that it must
•' have been known to the Government, in fact, that McKee and McCormick, and his
*' family, had held the long possession which is admitted ; if the Government ac(|uiesced
" in it from a knowledge that the Indians had, all along, intended the land to be theirs,
" and, for that, or any other reasoii, have forborne, for sixty years, to assert a claim,
*' either on account of the Indians or for the Crown, that may be felt, perhaps, by the
'•' Government, to give a strong claim to iho present occupants to be confirmed in their
*' title or, at least, to be left unmolested, as they have hitherto been ; but that is a
*' consideration to be ditpoeed of by the Government, and, it is evident, I think, from
" what ia before us, that the defendants are not likely to be unjustly or harshly dealt
*' with. As a Court of Jnstice we must be careful not to distort legal principles on
" account of their operation in particular cases, for what wu hold to be law in the pre-
*' sent case, we should be bound to apply in others, unless there should be a difl'erence in
" the facts, such as wwild warrant a dinercnt decision. My opinion is, that the Crown,
" upon what ia stated in thia case, is entitled to a verdict ;" which said judgment is
reported in volumei 18, of 4hc Queen's Bench Reports for Upper Canada, at page 131,
and also in the U. C. Law Journal for 1860, page 41.
V
;,j
I
/
\
report, iippriM-cl Incm llial llic nine had pa>-('(i, Dcioif in; iiaii irrn so n-iaini'd, lo iiiuho
an allfiiipl to >cl aside tlie >:\'h\ jn(l!,'nii'iil, on the ^touikI of tlie »-ase liaviii^ befn
(lefectivelv jireseliled lo the Court, il indeed any such alli'nipl could have been nuide, at
anv time, with any c'iiaiiee ol" suece.«x, die >aid Jlld^n)etlt lluvill^ been j^iven on ii speciiil
case ol' facts agreed to hy dieir own counsi I.
Tliai, when llie said special case wa- so a^'reed upon, the said .Jolin I'rintu' was
well aware ol'tho several I'aels I'ollowint,' : 1st. 'I'lia' the said Lease had cxisied ; iJnd.
Tliat il had ix'en rej^islered in tip' manner wliicli was the lawful, aixl otdy possible, one
at that early ilay ; .Jrd. Thai i\eai.ct! ol the said registry ixisied in his inuncdialo
neiphliourhood at the lime of the stalini,' of till' said case; and, lih. That Vour Kxeel-
leiicy's Mcmoiialisis claimed the said Inland under a peaeeaMe and undisputed posses-
sion, held under the said Lease, for a period of seventy-two years, with the knowled^^o
of ilie (u)vernmenl, and not by any Uieans, as •' sijualiers," under a possession taken, in
the lirsi instance, by a mere intruder " not asserting title." •
14. Thai Vour Mcmorialisl-i, after liavini,' been so furnished with the report of the
.'^aid ease, called the attention of the said .lolin Stuart lo the said isnporlanl defect in the
stating of the said spi-eial ease, and the existence, soniewiiere in llie township of Sandwich,
of the said Notarial Ref»islry IJook, containiMj» the Kej^istry of the said Lease, where-
upon the said .lolin Stuart adviM'd the irniiiediale Iraeint; up an<l securing of the said
book, which was aecordin!,dy done, and llie same was jilaced in his hands.
L">. That die said Thoiiia-' MeKrc, and those deriving their title imder him, have
enjoyed peaceable and luiinlenup'nl possi s>ion ol the said island, uiupicstioned by the
said losors and their suecosms, and wiiluuil coiuplaint of the said Lease having been
unduly obtained, from iIk' said Isi day of .May, I'n^t, lo the present time — a perKnl of
upwards ,<f three (jiiarters of a eciiliiry — as will appear upon reference lo ilie said
adidavil of llie said Sli'-'hael Fox, I'ereinbelore referred to, as also the accompanying
allidaviis of William KllioH, William Dull' and Robert Uynolds, Ksi|uires, and of
Mailelaine ,\skin, who was the wife (if ihe late John .\skin, Ks(|iiiie, ^all of wlioin were
amon;.'st the most aged and lespectable pi'ople ol llial part of the country,) and of
Frederick Fisher, an intelligent Indian, and a man fami'd for his iniegrity and probity,
wliicli said five allidaviis, last nieiiiinncd, are marked respectivciv, " il, ' " I," " K,"
•' L,''.'ind " M."
16. That the occupation of the said i-land, by the IMcKees and MeCorniieks, has
been, from the beginning, with the full knowledge of the Uovernmeni, as may be shown
by the following, ainongsi other facts, viz :
1st. The s^id Thomas McKce was himself deputy agent of Indian Affairs, and
gave notice to the Governnieni of his having obtained the said Lease.
3nd In thi; year 1812, the Government purchased from l\w said Thoma?» McKee,
cedar and other limber, on the said island, fur the purpo.ses of the furtiiications at Fort
Maiden.
3rd. In the year 1833, when it was determined to erect the Light House on the
said Island, permission to do so, as well as the necessary site for the purpose, wbh first
asked for and obtained, from the said William McCoimick, deceased, then in possession,
by the said William Elliott, who was the senior of the Commissioners appointed to
superintend the erection of the said Light House, and who, having been aware ever
since the year 1802, (when he first came to the country,) of the precise nature of the
McKee-McCormick title to the said i.slund, and, being himself a lawyer, considered
such permission necessary preparatory to breaking ground, (all of which will appear by
the said affidavit of the said William Elliott, hereinbefore referred to) ; and,
\
^ i.iiA
k\
•llli. In the yt'iir 1838, liio GovciTinn'nl iif^ain piiiclinscd (•tiliir and oilier liinber —
which they well knrw in have l:t'»'n cut tin ihc Miid i^liind — Ironi ihc said Williatn
McCdcniick, defeased, lo n large aruoiiiil, I'oi' the repairs ol' Fort Mahh'n aforesaid.
That Votir Exoellency's Meninriulisls respeeti'idly sni)init, tiial in conseJinenre of
lh<* great iap.to of lime since the cxeciilion of liir said Lease, ihey could iiardly hi'
expected lo addiKM' proof of knowledge, on llie part of the (iovereincnl, during ihi*
earlier period of the cxislenee of the said Lease, of llie fai'ls of ils jiiiving so existed,
and of the occupation of the said ishind lliereiinder ; living evidence <if such facts
having had ample timi; to diisuppenr frtaii the stage, as \v<dl as has docuiiietitary
evideiutc to i)ecomc dcMtroycd, lost and mislaid, in the dcpiirtiiiciits of the Govcrnincnt
whurc it miglit otherwise havu lieen expietcd to lie found. *
17. That Your Excellency's Mciiiorinlist? having lenrned that it has lately been
urged, on the part of the liiilian Depailment, against the validity ol the said l-easc,
under \vhi»di Your Mi 'I'orialists so claim, that it had heeii olitained in violation of
express law, respectfully submit, that they are advised that such oliji-etion is groundless,
inasmuch as no Statute, Imperial or Proviiii'ial, Proclamation, Ordinance or Order in
Council, prohibiting the aoi|uiiieig (even by persons, not Indians or half-breeds), by
Deed or Lease, from the Indians, lands within Ihc par'.iciilar territory, in which the
Island in fpiestion is situate, was passed or made, until many years after the execution
of the said Lease, and, in fact, until the passing of the Provincial Act 13 and 11 Vic.,
cap. 71, in 18.V), upwards of sixty years after the execution of the said Lease. Your
F.xeelleney's Memorialists beg to submit, with this Memorial, a brief shewing, amongst
other hings, all the dillerent Acts, PriM-lamations, and Orders in Council, relating to the
subject, passed and made up to, and including the said last mentioned Act ; which said
brief is marked " N."
18. Your Kxcelleney's Memorialists would respectfully submit, for Your Excellency's
consideration, the following cireiunstanccs, as, amongst others, further shewing the
justice of their claim to have their titles, to their respective portions of the said island,
under the said Lease and VVili, conlirmed by Patents from the Crown, viz :
Isl. That a larg'- tract of territory, extending fourteen miles on both banks of the
" Ou.se " or " (Jrand Uiver," after havi'ig been obtained by the Crown, by cession, was,
as Your Memorialists are advised, subsei|iiently given to the Six N'alioiiM of Indians, on
their arrival in the Province ; that the late (Colonel .losepli Hraiii, as their principal
chief, and in their name, subsetpicntly re-leiised, to the (Joveinment, portions of the said
territory, from time to time, as it was needed for selileinein, the pni( ceds of which, as
sold, having been applied to their usi> niid benelii : that the said linUans, also, in inany
instances, gave, in some cases by deed, and, in others, by long lease, (known as lirant
Deeds and Leases,) portions of the said ii-rritory to i;n iiih>rs of the ludiaii Department,
and others of their friends, which Deeds and Leases (having been given freely and
voluntarily) were recognized by the Cioverntuent, and sub.seipiently conlirmed by Patents
to such grantees and lessees, and others claiming under them respectively ; that Your
Excellency's Memorialists would tnention, as one instance of the many of such eases,
that of one William Dockslader, whose tith? to fourteen hundred acres, the Government
confirmed, by issuing Patents to his several assignees and representatives for their
respective proportions.
2nd. That many parties, holding such Deeds and Leases, i unconfirmed by
Patents, having turned traitors during the w-.r of 1812, the Governmii.t look the neces-
sary steps to confiscate their titles, thereby, as Your MemoriaTsts are advised, fully
recognizing the Brant titles in another mode. Your Excellency's Memorialists beg
leave to s'lbinit the accompanying opinion, on their case, by the Honorable Henry .lohn
Boulton, an eminent counsel, upon whose reports, when occuping the position of
Attorney General for Upper Canada, Letters Patent were issued for the confirmation of
many Indian titles, held under Brant Deeds and leases, of lands on the Grand River;
and who, also, conducted the proceedings for the connscating of lands, helil under such
Deeds and Leases, then unconlirnied by Patents, as the property of traitors during the
late war with the United States of America ; the said opinion is marked " O."
ID. Your Excellency's Memorialists further submit, that according to the best infor-
mation they have been enabled to obtain, the said Thomas McKee, the said lessee, and
his son, Alexander, were men of infiucnee among the Indians of Point-au-Pelee Island
and its neighbourhood, being half breeds and chiefs, ns well as olficcrs of the Indian
Department, and were fully as much entitled to the aflectionate regard of those Indians
as was Colonel Brant to that of the Six Nations of Indians.
In this connection, Your Excellency's Memorialists beg to call your attention to the
accompanying copy of a letter, addressed by the late Major General Sir Isaac Brock, to
the late Colonel Proctor, as extracted from the life and correspondence of the former,
edited by Ferdinand 0. Tuppor, Esquire ; which said extract is marked " P."
JO. Ttiiit MiiH'f ilic tli'iilli <il" Williiiiii McCorinicK, four (if liir' clnldnMi, (li-viMCfji in
11, h
flicd, vi/ : ('li:irlij<, tin Dni'mlxT I"*, IHH, ;i miih>r, nimiiirrii'<l, iind
iii'i Mull' ; Ali'MituliT, on Aiiyii^l „' I, IM.JI; imil Jolm, oil July 2.'i, lh,)(i, Imili Imviiig
fliililiiri iiiid liolli illll■^ll|:l' ; :M:ii>, on July .M, lM(il, IciiviiiK ii Will, l.y wliicli i«li«
(ii'vir^cd licr c^laif lo her rxt'cuioi*, I'lrcyruic Mc'Coniiick iiiid Arlliiir McCoriiiit'k, iinil
to liiT cxrciiiiix, Mli/.iilii'ili McCoiiuiik, i:i liu>i lo pay odCiTluiii li-),':iiii ^', mid to divido
till' irxiduc innoii^'^t liri° r<ui'\ i\ iiii; liruili('i>< iind ni^irrH, iind dircriintf ii nliaro fi|iial lo
that of t'iuli of lirr Mirviviiig l)rollifi>* lo he liiMdi'd amongst lln' tliildifii o( lirr brollior
John.
Jl. Tliai all till' siirviviiii; divi^ccN hi ilii- Will of th«» unid iati- Willintn Miirormick,
and ihfir raiiiili<'>, »n wtdl as iliai of the snid laic John McCoriuifk, conliniii- lo (K'ciipy
the said Island, and :dl join in iliis Mcu'Driai That tlif only parties, having an interest
in the island, who do not join in presenlinir this Memorial, are ihe children of the Into
.Alexander McC^ormicJ; ; he, liaviiif^ in his iilciinic,sei up pieicrilioiis to a lar/^cr KJiare of
the island than the other lueiiilier* ol the family were willini,' to admit, or than he was l>y
law cniilled to, claiiuin:,' the whole o| IMiarles' tthan' us dev(dvini( lo himself ; llu!
^hildr
i)W livinj;, Uoland Alexander MeCorin ck and Aifties l.caiisa l\lcC'«)rmi(;k,
hein;,' minors, and uinlei the tiitelaye of iheir mother, Mary Hurwell McC^ormick, now
rc!tidini{ in the t'ouiily of Klijiu.
ii2. That prwecdin^'s have been taken, nnd urc now |M•ndin^ in Ilcr Majculy'n
Court of ("lianccry, 111 'I'oronto, for II |)arlition of the inlcrcsis of the sevenil parties,
y, to have ilicir i(>prcii\c inicresiH or poilioiis iissigncd and net oil' to
th
ititlcd
n anv wa
cm in severa
i>y-
iii. That, impii'ssed as \iiiir ^fcmorlalisI•; an-, with the rightfulness and jiixliec o
if
their claim to the said island, th
I'
sevsion thereof hy ihcm and iliosc iiniler whom
they hold, liavini; liccii held for so lout; a period, undistiirhed and un(|neslioned liy the
Indians, who were the original |)osscs«(irs, as well as l>y llieir dcscendunts, the Indians
ever respecting' the Lease llicy had so pa«sed, as well liy not ollcrin^ lo cede ordit>|io«e
of the s.iid island hy treaties, sulisc(picnlly made with the (iovcrniiient, or otherwise, an
hy rcco;;ni/iiiL( the rii;hts of tliose claiming; under the sai<l Lease, hy chcerliilly paving
for llie privilege of trappim^ thereon, year alter year. Voiir Kxci-llcncy's iMemoriiiiisiH,
nevi-rthdcss, desire to hold their lands under Patent from llie Crown, in order lliut
ihey may Ihe more fully reap llie henehls thereof, by hcin;; enabled to raicc the ne<-e8sary
means of improviiii; the same, and to be placed under the operation of the municipal
insliliitions oi Upper Canada.
And they vcniure to assert ihat ihey are ilcservini; of the favonr.ablp considcrntion of
llic tioverimicnt, in this tla-jr expreiMtion, to be emiranteed and protected in their
holdim(, not merely from the I'act of tlieir deriviui,' their title foan the ori^inal possessors,
but i'l ii{L<ht of their f.ither, who, in caily limes, and tinder dillit-ulties and hardship!*,
Mibject to ^rcilt inconveniences ami privations, setllcd with his family upon Ihe island,
an exile from society, and, with imich toil, sirived lo achieve the mainlenanee of his
family, and to leave his children each in tip- possession of a homestead. If, at this day,
foreii;ncrs are invited lo tiie (•onntiy, and ollered lands fri-c, in orih'r to accomplish the
Keltlemcnl of our wilds, shall not the children of our early pioneers Ix- permitted to
receive the reward of their uneestor's toil and endurance and of their own .'
.Mways unhesitatin>;ly loyal to the Mritish Govcrnmenl, nnd ever true lo its interests.
Your Memorialists feel that they can a[)|)eal with confidence Ir. the guardianship and
protection of the Kcpresenlativ*- of their Sovereign,
Your Kxcelleney's Memorialists therefore humbly pray that Your Kxccllency
will be pleased to take their case into your attentive and favourable
consideration, and cause an Order in Councril to be pai<scd, providing
for the waiving of the said judgment, so obtained against the said
Mary McCormick and William McCorinick, under the peculiar circum-
stance!" hereinbefore set forth, in order thai Your Excellency's
Memorialists may no longer cnnlinne to be in a worse po.sition than
Ihey were prior to the filins; of the said Information, and for the
issuing of Pall nts of Conlirination, on payment of the fees ihereon, to
Your Exceliency'.s several petitioners, claiming the said Island, for the
respective portions thereof which may be assigned to them in severalty,
as the result ot the said proceedings for partition.
And Your Excellency's Memorialists will, as in duty bound, ever pray.
(Signed,) JOHN STUART,
Attorney for Memorialists.
Quebec, 25th July, 1 863.
SYNOPSIS OF MHMiHIIAL.
JV. B, — ne numf>e> nf the clauart lureuntlrr cwrrapoml with tltoM if the Memnriul,
IM. Mny I, niM. Thf Chii-fs nml SiicIiciiin of tin- Hiirids of the Otlnwa nnd
Cliippewii Trilx's of Indiiiiis, iticii (iwniriL,' mill iiiliiiliitiiii^ llic Islaiul of I'oint-iiii-Pelt'c,
Ipiihi" it, for ()!)!( yciirn, to 'I'Ikuiiiis McKii-. (wlm wiis ii liiilf-liicnl aiul a cliief,) IiIh lioirs
nnd U!«:4iKiis. Leant- witiii'Hicd hy ilii' luic |''raii<,<piN Haliy, i')r>(|iiiro, wlio n-prcHenifd the
Coiiniy of Kmm'x in tiuverul l'urliaint> niM. for cojiy of Li.-asu, nl'i; SynupsiH of Kxliibitx
(A.)
2nd. 'riioiiia^< McKci', on Kxccutioii of I.,cum', ^ocs iiiio possi'si^ioii, and rotiiins it
until Ilia dcatli, iiitcxtntc, in March, IHIo, wiicii his only Non, Aicxunder, inlieritit.
3rd. The Lca.Mc, after hnvin;^ bucn duly I'nrolh'd, l>y Wiiliani Moiiforton, as a
Notary of th»' I'roviniT of l^ucbec, i.i <!a|)inri'd from Mr. MtrKcf, with hi.« ba^i^aj^c, on
tho occasion of tin; rctreiil of the British l-'ori'is after thi; " Battle of the Thames," in
which lie had purtiiupiitetl. The Notarial Kc^istry Book forthcoming, with Memorial —
it M identified, iind its authenticity established — vid. aflidaviln of John Stuart ; Synopsis
of Exhibits (.\). Aliidavit of William Klliolt ; sec Synopsis of Exhibits (IJ) and (II („) ),
and the alfidavits of William Monforlon, Charles V. Lubadie and Charles Baby, accom-
panying the Monfortoii Hegi«try Book.
•1th. May 19, l*9l). Upwards of two yearn ofler the execution of the Lease, Colonel
Alexander McKee, the father of Thomas, negotiates a treaty with the Indians, for tho
cession of the et)ast off which the Island lies ; Deed of Cession enrolled in one of a
series of three old regi.-itry books, (kept before the establishment of Uegistry OiKucs in
Upper Canada,) of which, that in (pieslion, is oni;. Syn(>|)sis of Exhibits (B).
5th. The Islands lying otf the coa^l, so ceded, not included in Deed of Cession ; for
copy uf Deed of Cession, see aliidavit of J. Stuart. Synop.sis of Exhibits (B).
6th. The Batuls of Indians, in whose helrdf tlie Lease was executed, have become
extinct.
7th. In 1815, William MeCormiek, senior, settled on the Island, as the tenant of
Alexander MeKee. See aliidavit of Aliehael Fo\, Synopsis of Exhibits (C) and Mrs.
Askin. Synopsis of Exhibits (L). He continued thereon as tenant nniil 1823, when
he aciinired, from Mr. McKee, a conveyance in fe(! of the wlioU- Island. For certified
copy of Memorial theo'of, registered, setf Sync»psis of Exhil)its (D). Mr. McCormick
continues to occupy and improve the Island until his death, on Itith February, \*8'10.
8th. Directs, by Will, an e(|iud division of the Island among the eleven children,
with certain provism-s and reservations. See Synopsis of Exhibits (E).
9th. In 181", the Devisees piocurc the Island to be surveyed by P. D. Salter, P. L. S.
For his field notes and <Hjpy of n.ip of survey, see Synopsis of Exhibits (F) and (G),
lOth. Alexander having, as the eldest, the agency as to the yet undivided interests
in tliP Island, improperly induces the surveyor to set oil" the farms (specifically devised)
to suit his individual intciests, and nut in a(;cordance with the terms uf the Will,
excepting so far as that portion of L^land called " Middle island " is concerned.
llth. The survey, consequently, never assented to by the other devisees, excepting
as to " Middle Island," and as truly determining the area uf the Island and its marshes
respectively.
It found the Island to contain 11,649 acres, nnd that, of that there are 5,413
acres of marsh ; this marsh, in consequence of iis low level, is utterly irreclaimable ;
and about 2,0UU, of the residue, of the 6,236 acres, are liable to be overflowed during
anything like a high stage of water ; and furthei, there are at least 500, of the remaining
4,300 acres on bed-rock — slightly covered with soil — which is also unfit for purposes of
tillage, there, thus, being lesb than 4,000 acres of the whole area of the Island available,
jll all times, at> arable land.
/
I.MIi In IH'dl, « . 11 • 111' ill- .M.Cuniiii !, Iu.h'iIv, I'miliii^ caiiiliiliMM, with wliinii lliry
|,.i.| I ri II. K iiiiiiiii)^ lor liiiii-.<ni iIh' !«.'>iiiil_v tirtluir liiiiTr".)-. In iln- isiiunl, iinwilliim
1.1 iinlii' I'lv.ini'i'x nil |ir.i|MMly, liir wliirli "im I'.ili'nl li id rvi-r i««ii('(l, iiri- iiidiiiTd, liy
tlii'ir I'liiiii'i I, lo iillnw liiiii III |iiiiriiri' Mil Miiiii'uMi' iictiiM In I"' |pri)iii,'lil injiiiiinl llirm iit
till' ?.iiii i>r nir Crow II, ill r.''«|iii III' iln'ir ixi'.x'x.idn nl' I'lc l-l md, in iIh' Ii(»|ii' ilmi n
iiid;^ii|illt lliiTiMll in illi'ir I'livxr (;iiii| .ix In lli''ir "lit linin,' w iiiili, lliry wen- led liy lln'ir
iMillll-fl M Iti'lifVi' llwit 111) ilcilllll fXi-'li'd.) Illll-l l«"'llll ill till- (ioMlllllifllt fiinKiiiliin; ut
once lo i«-<iii' till' II '(v'««iiry I'llciit f'M' ill • <'iititiriii ilinii ul llii'ir lillc!'.
An inlDiiiriiiiiii Inr Iniriixion ii, iinMrilini;ly, lili'il in tin- (^iiri'ii'* nciicli, iiKnimtl
Miirv .Ml'' iiriiiirk mid Willi nil MfCiiriitirli. (uvii iif ilir Mi'iimriiili-w,) iind, in )• intli-r
TiTin of ili>' V'Mr iH.'ilt, |iidi,'Micni ii«, m llir uri':ii di>-iiny nf llir M.'iiinriiiliKN, n'tidtrrd
ii^aiiiHt ilic diicn lii:il'< ; llic iiMxin lor !«ii('li jiid^iiiiiii, |iroviiii{ in In' iliiit, in llir Htlllill^
nl'liic f*|ici l;d cii-i', wliifli w ;if ii«li'rd ii|miii hy roiill«il, I'nr lllf n|iininn nf llic ('(\lirl, llm
lndi:in !,<• i»"', Mild III!' ilcji'ii hiiiN liojijiiii; imdiT ii, wrv wlinlly innnrfd, (llii-ir coiiiiwid
tliii-t d('|)riidiiii,' iipiin llif Iniit; |)o««c««ioM, ii* liMiriiii; iln' ('rnwn'-" rn<ht In rrcnvcr,) and
lIlllH liMvill'^' il to III' iill'ri'i'i'd, lis till' Coill't did, III I.K'I, illlcr, lllilt " ill)' dcrcndiinlH'
" pni'.i'oioii Imillici'M II imri' rniiiitiiii'd niH' litlrii ill thf Jimt in>tanif liy u mere
" intrildiT nnl ii>M'rtiii;,' lillr "
GxtriK-tx licK' Inllnw I'roiii ilic induiiK'iit of tlir lute Sir John Hcvcrly Rnliininn,
Miirnni't, iMvoriilili', in iiiiiiiy jioiiiw, to iln- .Mr('nriiiirl« lull', I' veil ii|)nn till' crronciiUHly und
di'l't'i'tivcly -liili'd riiHr' lii'Inii' liiiii
l.'Stli. Tlir .Mc(.'niiiii('k> kept in i;;nnrall<'i' nf llir u'rniinds nil which tin- jild^iiK'Ht
liiid lii'i'i) ii'iidcrrd iidviT'Tiy, iiiilil Inn lute to iiriki' all iillt'iiipt to prnciirc it» reversal
ad'ordiiii; lo tin- pr.u'liii' of ilii- Court ; they had, In thr lir^l in^tanci', iidvincd thi'ir
(■i)iin'<(d of the lad oftliu i-xiKtrnec of tlif \nlarial Ui'i.'i>iry Honk, coniaitiin^ the cnrnN
incut (if till' Indian l,i'a>c, under which ilicy held.
Mill, (iiviiii; lip all linpi' of ^cllini; from their coiiii.scl the rcipiircil infnrinatinn, iih to
the i,'romid-i (if till' iidvi-r-c jiidtjiiieni, they I iii|)lny new cniinsel, and whn, after procuring
from the reporter of the Ccnirt, a written copy of the jiidLfiiicnt, (liefore llic pulili(;atinn of
the printed re|iori in tlie ii-iial eniirx',) i;ave tlieiii the information ; they, llicrciipnn,
inform him of the cMsii'iice nf the Noiarial |{eui'>lry Honk in ipicstinii, (rontninin^ the
liuiiaii I ease, wlnreiipdii he aih irti'M their ioHiiij^ n.i tunc in trucing up and gt'tling
po!«ses»iun of it, wliieh is done accorclinyly.
loili. 'riic Nland held, under the Leaxe, from Mny I. IISS, until llip prrorni limr,
iini|iiestinned and without coiuplaint, fmm |^•^s(M> nr their siieccsMirw, ilcpoxilinnN of
several of the most resprciahle and ai;ed people ni the ncii;lili<)iirli(Nid shew this,
(Synopsis of K.sliiliits (II) to (L) ) lintli inclusive ; and de|)osiiion of Frederick Kishnr,
an iiiteliitj;ent Indian, lamed lor his intc^jrity, (Synopsis of K.xhihjts (M). )
IGili. The (invcriuncnt had kiinwledye nf the claim to the Island on thf part of the
McKees and MeCnrmieks Irniii the first.
I7tli. The iicipiirini;, fmni the Indians, on |st Miy, 11H», of ih** Lcnsr, by McKrc,
(even il he had imi been a halt-lireiil, as he in fad Wiis,) cnnicnded not to havf U'cn in
enntr.iveiilinn of any tlieii exisiiiii; law, eiilier Impeiial or I'roviiicial, (all the Acls and
Proelamalinn^ ever passid and issiii'd <j|i the .siilijcci df the aeipiisitinn nf lands from
Indians, reciied in a lirief prepared fur the purpose. (Synopsis nf Kxhihits (.\). )
l.^tih. The conlirinatinii liy liie (jovemnnnt, from lime to time, of Hranl Deeds and
Lenses of Indian Lands on the (irand liiver, as alsn the cnntisc-itinn of hinds, ax thp
properties nl irailni^, held iiiider such Di'cds and Lenses, unennlirmcd hy Patent, (the
latter as rei'n-nizinu' nn the part nf the (invernmeiit such Indian titles in another iriodc,)
cited as preoedi'iUs for die granting ol the prayer nf the Memorial in 'pieslion. Se«'
opinion of the Honble. Henry John Boiilton on the McCorrnifk title, (Synopsis of
Exhibits (0). ,
19th. (.'olniiel MeKi'e\s inlliieiiie with lli>' Indian^ ni the West, deservedly I'lpial to
that of t'olonel Hranl with the Six Nations, as accnuiiiing for the giving of the Leui>e,
and its always haviiii; been respected, vid. extraet from the life of Major General Sir
Isaac Brock ; Synopsis of Exhibits (F').
20th. Since ihe death of William MeC'orinick, senior, four of his devisees have
died ; three of them intestate and the fourth leaving a Will.
21st. i^ll the surviving deviseeK, and their families, as also that of the late John
McCormick, continue to reside on the Island, and all nf them join in the Memorial ; the
only parlies having an interest in the Will, and not joining in it, being the children of
the late Alexander McCormick, who, in his lifetime, claimed more of the Inland than
the other members of the family considered him entitled to.
Siml. Profpfdinxn have boon iimtilutcd in Chanoory, for a partition of thn intoreili,
of till' Ncvcral pnrtioH inlcrnNti'il, to bn Hi*t utl'to thrrn in iii-vcriiity.
83rcl. OrniindN for n rtrnKonablu contiduration, by IliH Kxceilnncy in Council, uf the
prayer of thi^ Mi'iiiorlnl, utatiid.
ailli. Tin- prnviT of llic Mi'inorial in, tlint llie Oovorntnrnt will, firittlv — waive the
jiidKiiM'nl oltiitini'il under thu vitv iioiuliiir ciminiMtunccH set forili in the Memorial ;
and, Nfcondly — lliiit tlify will conlirrn, by I'litonln, tlm lenun* of all thoiie tu whom,
ri>M|H-i;tivuly, xliiircH, or porlionit of NJiiircs, in the litlund inuy be uimigned, in suvcrulty,
by lilt' Muit for puriilion now so pending.
SYNiirsiS OF EXIIIIUTS
Acc'ompnyiiiiiK tlie Meiiiori:il of the McCurmick liimily for Patents of
Ouiillrnmtioii of tlu'ir Titlu to Point-uii-Puli'e Island.
(N. B. — TIte numl>er» ofdamet art tho$e, rttpectiveltf, of the Memorial.)
the
Exhibit (A.)
Cliiiiiio No. I. — Cojiy of Indian l,<'U!»e to Tliomim McKf«, dated lut May, 17''8, of
Ixland, fur it Irrrn of 1)9!) y<'ari«, (rciu'Wiiblf,) for ii yearly rent of three b\u'..< in of
corn, or itit vuliie if (iriiiunded — (ii Iriic copy of Lcn^e follows this Synopais).
Claiim'8 NoH. 1 and 5.
EXHIIIIT (B.)
The iiliidiivit of Jolin Stuart, otatcs
That there are in ilie Uf^iwlry Ollicc of the County of Ks!«e.\, two t)ld IlegiHtry Books
purpo^lill^ lo have Ix.-eii coiiuucnccd in Detroit on or about tiie IGth day of April, 1768,
by one I*. Deieun, rtlyiin^ liiiiiM'lf" Notaire Royal," and lo have been finislied on or
about the •i\iit Moi/, IN(M), at Samlwieli, by William Koe, styling himself " Deputy
I'rovineial llegister, W'estt^rn Uislrittl, IJ. C."
That there \» entered in the Hceond, of the said two iiooks, a memorandum, of which
th<! following is n copy: "This Itegister was sent down to Quebec, by Order of the
" Commander in Cbiel, in the year I7HI, where if remained until the year 1789, when
" it >vus brought up from thence by William Dummer Powell, E8i|., first Judge of His
" Maj( sty's Court ol Common Pleas for the District o( Hesse, and al'lei wards deposited
" in my Oflice, in the year I79U, in the month of May — and it is lunv continued ;
" During the inhrval the Records of the Di»tricl ipere in the hands of William
" MoMroRTON, who acted as Notari) Public, to which reference must be had.
" (SigMfidl,) T. SMITH, C. C. Pleas. District of Hesse.
"' "24th of May, 1790."
That the said Ji|>iin Stuart, having been retained by the McCormick family, to look
niter their interests with respect to Poinl-au-Pelee Island, after the rendering of the
judgment against them, in favor of llie Crown, and having learned that u Register Book
uf iIk- above named William Monforton, containing the enrollment of the Indian Lease
of the Island lo Thomas McKee, Esquire, was in the hands of his descendants in the
Town.-ihip of Sandwich, caused the said book to be traced and discovered, and
which book is now in his hands, and which contains the enrollment of the said Lease, a
copy of which enrollment is annexed lo the said alUdavit, and which said book is fully
identified, as that referred to in the 'liovc memorandum of Thomas Smith, by the
affidavits of William Monforton and Charles Lubadie, annexed lo the said bixik, and of
Clmrles Hnby, Esquire, Barrister and Attorney, and Clerk of the Peace nf the said
County of Essex ; that the said book contains five hundred and forty pages, (as num-
bered.j and appears to cover the period between the 10th day of May, 1786, and the 23rd
day ot September, 1792 ;
10
That the .second oft lie said ilegistrv Huolis deposited in the Uei,'isler Olllce of
Essex eontains liie eniollinent of 'he 'Deed of Cession from the Indians, of die <-iiast,
opposi'te a portion of which tiie said Island is siliiale, (a true eopy of wliieli sai<l Deed,
dated 19th May, 1190, is annexed to the said allidavit) the said Deed ol Cession »»()/
including the said Island ;
That the said Deed of Cession is tli<' fust instniment enrolled in the said last men-
tioned book, after i s lelurn from (Jneliee, as mentioned in the said eerliliealt! of tin- said
Thomas Smith ;
That there appear to be several registries in the last mentioned hook, made liy the
said William Monforton, as a Notary Pnhlie, as w.'ll before the said book was sent lo
Queliec, as after its return iheiiee, and evidently in the same liaiid-wnlmg as that in
which his own Registry Hook appears to have been exelusivciy kept.
Exhibit (B. u) )
Clauses 4 and 5.— Copy of salfieient of the deseription of the premises in the Deed
of Cession of 19lh May, n 90, to shew that it does not inclmle the island o( Toiiit aii-
Pelei .
• \ eeilain tract of land beginning at the month of Callisli ("reek, commonly called
" ' Riviere ail Cliaiidiere,' on the north side of Lake Krie, bciiii; 'lie western extremity
" of a tiaet piieliased by bis said Maje.-ly (Voiii the Missi--agas Indians, In the year
" \lS-i,anil Jhini thiucp niiiniiig ireslward \iAiyi. nu: mohdkh ok Lakk Khik, and up
" the siraits to the iiioulli of the ri\cr known iiy the name of ' Chciiail Kcarte,' "
\, |{._\„nf of liic Islands olf tlie I'oasI ceded by liiis Deed, are referred to in it,
excepting "Hois Hiaiic" l>land, (as bavin;,' ncir its head a small " run " at wliieli
commences a description of one of the reservations in the Dieil ; and the " I'etite Isle
au Dinde," as having above it- head " i' •• beginning of the Fieiich setllemenl," to
which the said reservation extends.)
K.MIIltlT '().)
Clause 7. — Aflidavil of Midi I Ko\, of .\inheistbiirg, K>(|iiire, made 9lli May,
1859, states—
That he was, then, in the eightieth year of his age ; that In- resided in the Town-
ship of (ioslielil, immediately oppo-ile the Island of l'oiiil-aii-l'<lee, and at a distance of
some twelve or fourteen miles Irom it, from M'Jb to IHII ;
Th;it he well knew Thomas McKee and his father, and his son .Mexander, .is also
John Askin, Esquire, who belonged to the Indian De|)artiiient ;
That he was aware, prior to the year 180 J, that Thomas Melvee had, some years
previously, olitained from the Indians, either a Deed or a long l,eas<', of the said l>larid ;
anfl also that 'he said .lolin .\skin was, for some yeais, in pos>ession thereof, under a
Lease Irom Thomas McKee, and that he, during that time, kept a large ((uanlity
of stock on it, and as early as the year IWUt or ISO,) ;
That he recollects the circumstance of two jiersons named Justus .Mien and Robert
Little, respectively, occupying portions of the Island as tenants under John Askin ;
That he is aware that shortly after tin- declaration of llie peace of 1815, William
MeCormi(!k removed to the Island, and, alter having occii|)ied the same for some years,
as the tenant of .Mexander McKec, (tli:' s;)ti of Tliomas,) purchased ii bom him ; and
that, although he resided within fourteen miles of the Island, and visited it occasionally
for a period of about forty-five years, he never heard of any com|)laiiils lia\ iiii,' been
made on the part of t; (; Inilians of the octaipatioii of the Islanil by the suiti .MeKecs,
John Askin or William McCormick, or any person holding under either of them.
ExiiiiiiT (D.)
CIari.se 7. — Certified copy r.f Registry of Memorial of Deed from McKce to
McCormick, of the Island— dated 5th Septeiliber, I8.J3.
Exhibit (K.)
Clause 8. — Certified copy of the Registry of Memorial of Will of Wm. McCormick,
dated 30ih July, 1839 ; whcrebv he devi.sed—
Isf. To Mary, his wife, a life interest in the flomeslead farm, and in two liundred
acres of wowl-land adjoining ; and al.so devised to hi'r the rents and profits of three other
farms, specified, for the sujiport and education of the younger branches of his family
during their minority ;
m
11
3(1(1. lie (It-vised to (M(^Ii of liis ^oti^i, Alexander, John, David and William, a farm,
p.'irticiilarly s|»ccificd ;
.'Jrd. To Ills diUij^liti'v Liicinda, and his sons Charles and Peroprine, (all of whom
wrri^ then under !iji;e,) each one of the farin-i, tin; rents and profits of which were to be
applied towards the r support and education during their minority ;
4lli. To his daughters Mary and Sarah Ann, he devised the tract known as " Middle
Island," whieli is within the said Island of I'oint au-I'elee ;
Sill. To his son Arthur he devised the " Home Farm" nt his mother's death.
(I he \vi:l foiitains a proviso that each of the said eleven portions devised in fee
slii>uld l)e made eipial to :i()0 aert.'s of tillahle land.)
(Illi. To his sister, Klizabeili, he devises the " Untler Farm " and " Conklin Farm,"
or the retils ami profits therefrom during her natural life.
Iih. Ill- devised the profits of all stone, eedu timber, villagt^ plot, church and
school lot, ;nd hiuit-ngaiid fishing privilegis, to be equally divided among his above
named chi'dren.
8tli. lie devises one hun Ired acres of land, on the Island, not otherwise disposed of,
ilie rents ;in<l profit" of which were to be ajiplied for the use and stipport of a school for
the benelit of the Island.
flih, Lastly h(! wills and designs that the portions of the said Island, not hereinbefore
apjtropriaied, slmukl be cipially divided to liis children according to value.
K.\iiiiuTs (F. and G.)
Clause 9. — The (icM m.lcs of the survey of the Island, in 1847, by V. D. Saltee,
shewed the Island to contain I Itil!) acres, and that there an- 5-J13 acres thereof marsh;
and map of the said survey.
KxHiHiTs (H. and H. (a) )
Clause ;{ and Ki. — The aliidavil> of \Vm. Klliott, Ks(i., made, respectively, 27th
February, and 17tli July, laGl), state, atuongsi other things :
That 111- was at thai lime, in the eighty-fifth year of hih age , that he cami' into the
township of Sandwich in \H02; tliat he was admilted to the bar, and as im attorney of
the courts of Upper Canada, in |H()3 ; and that he represented the coimty of Esse,\ in
Parliament.
That he was intimately ae()uainted with Thom.;:;i McKee, from a period shortly after
his arrival in Sandwich, as well as with his son Alexander, and with Williairi McCor-
luieli ; that he knows that Tlioinas MeKee held a 9Jt!) year's Lease from the Indiims of
Point Pclee Island ; that he has seen it in his hands, and read it, and never entertained
any doubts of its genuineness ami authenticity.
That, after the l„te war with the United States, Thomas McKee told him that the
lease had been taken from him by the i-nemy, with his baggage, on the occasion of the
retreat of the IJritish forces alter the buttle of the Thames.
That he was well ac(piainled with William Monforton, the elder, who was a Notary
Public, and who, a> such, kept a Notarial Registry untler the French Ilegime.
That, many years after his death, he saw this Registry Rook in the hands of some
of his descendants, of the same name, in the townsliip of Sandwich ;
That he had lately seen the identical Registry Book in the hands of John Stuart
(then) of Windsor, in the said county of Essex, Kscpiire, and that for the better
identifying it as the Registry Hook referred to, he had written his name on its first and
last pages.
Thai he is aware that Alexander McKee inherited the interest of his father (Thomas)
in the Island, and that he, in or about the year 1823, conveyed his interest therein to
William McCormick ;
That he never heard of any complaints having been mtideon the part of the Indians,
of the Lease having been obtained by Thomas McKee in an improjier manner, or of the
possession of the Island having been held thereunder by him, or any of those holding
imder him, and that he was in the way of hearing of such complaints had they been made ;
That he is aware that the late John Askiu, Esq., of Amherstburg, held the Island for a
12
term of years under Thomas McKeo, nnil that he siih-let portions of it ; That ho is nwiirc
that cedar pickets and other liiiibrr were cut on tiie Ishmd, during tlie last war witii the
United, for tiie use of the fortifications at Fort MaicU'n, and tlial Thomas McKee was
paid the value of 8uch timber as standing.
That having been, in the year 1833, ap|)ointed one of a Hoard of Commissioners to
pnperinl(>n(l the t-rection of the lighl-iiouse on the said Islaiid, and knowing the nature of
the claim of William MeCormirk thereto, he, as the senior of the Boarjl, applied to the
said William MeCormick for the necessary land for the purposes of the light-house ; and
that the said William MeCormiek having eonsenled to give it, they proceeded to stake
out what was considered to be suflieient, with the understanding that the said William
■ MeCormick was to execute a deed of cession thereof to the Crown, after a proper survey
and description thereof should be made ;
That he is aware that the two old Registry Hooks, before mentioned as being de|»o-
nited in the Registry Ofliee of the county of Essex, were ihi-re so early as the year 1805,
and that one of them contained the enrollment of ilie deed of cession, from the Indians to
the Crown, of the territory extending from Catfish creek to the Chenail Kcnrte.
Exhibit (I.)
Clause 16.— The affidavit of William Dufl", Esquire, of Amherstburg, made 3th
March, 1860, states —
That he was then in the sevi-nty-ninth year of his age : — That he was well aecpniintcd
' with Thomas McKee and his son Alexander, a^i also with William MeCormick ;
That he was aware that the late Joliu A«'kin, Esipiire. who belonged to the Indian
Department, occupied the Island of Point ;ni-Pi'l(>e, for niiiny years, and as early as the
year 1804, under Thomas McKee, who, he then undcrstool, held the Island under a long
Lease from the Indians, obtained many years previously : ihni, as long as he could
recollect, Thomas McKee, and those hohling under liiiii, enjoycil nninlerrupled and
peaceable possession of the Island U|) to the time of the making of his aflidavil, s<» far as
the Indians were concerned ; and also so far as the (iovcrnnic'ii w(!re concerned, until
within the last two years.
That he has, ever since the year 1804, resided within al«)ut 30 miles of the said
Island and been in the way of seeing the Indians in passing and re-j)assing ; and that
he has never heard of any complaints having been made by them of the said Lease
having been olilained in an iinproper manner, or of the occu|>ation of tin' Island lliere-
undiT, and that he thinks that, had any such comj)lainls been made, he must liave heard
them.
ExmiHT (K.)
Clause IC. — The aflidavit of Robert Reynolds, Ks(inirc, of Maiden, (of the same
age as Mr. Dull',) made on same 5th March, is preei^ely similar to the affidavit of Mr.
Dull, cxccpliiig that he states that his knowledge wiiii respect to the Island extends
back to 1807, instead of 1804.
EXHIUIT (L.)
riause IG. — The aflidavit of Madelaine Askin, of Amherstburg, made 29th Novem-
ber, 1859, slates—
Tliat she is the widow of the late John Askin, Esquire, who belonged to the
Indian Department for many years ;
That she was, in 1859, in the eighly-fourih year of her age : That she rceolleets the
circumstance of her husband having, in the year 1801, slocked and occupied thi> Island
of Point-au-Pclce for several years undi^r Thom'is McKec, who, she always understood,
owned the Island, and wnom she knew very well. That evi-r since the year 1804,
excepting the period from 1807 to 1817, she resided in Amherstburg — about ;)0 miles
from llie said island — and thai she never heard of any comphiint having been made, by,
or on the part of the Indians, of the oeeu|)uli()n thercufby the said Thomas McKee or
any of those who have, from lime to time, held under him.
ExHIHIT (M.)
Ciau.sc 16. — The aflidavit of Frederick Fisher, made 9lh April, 18U0, bi-fore Tliotnns
Hawkins, Esquire, (who certifies that he is well aecpiaintcd with liim, lliat he bears the
character of an honest and upright man, that he understands the English Language well,
and that he is particularly intelligent for a person in his sphere of life,) stales —
,^ That he is an Indian, us also a Chief of the Chippewa Nation and a christian;
13
Tliiit lit' bc'lievt's liiiii»elt' to be ii|)wuril ' of 50 y«Mirs of age. 'I'hat In- wiis well
Hcqiminli'il with Thomas MeKce, who, he was always told by their people, had obtained
tVtiiii the (yhiels and Saclieriis of the Hands, owning the Island^ of Point-au-Pelee, a
long lease of it ;
That he was also ae(|nainted with Alexander McKee, who inherited the Island
from 'I'liomiiS, his father, as also willi William Me(^oitniel<, who, h(! understood, pur-
ehased it from Alexa' '"r ;
That he has , vn the island all his lite, having lived in the neighbourhood of
Amhersiburgh (u tii luee of about 30 miles fr<mi it) ev«!r sinetr the year 18IS, and having
for the last nine years, paid the family ol the said William McCormick, every year, for "
the privilege of tra|)ping thereon ;
Tint he has known a number of olher Indians of his nation, who have been in the
habit of paying the said family for the like privilege, as wll before, as during, \\w time
he has been in the habit of frequenting the island annually for the purpose- of trapping ;
That he has never heard of any objeetions being made, on the part of any of the
Indians, to pay the oecnpanls of tlu- islan<l for the privilege of trapping thereon; nor
even heard of any eomplainis having iM-en made by their forefathers or their.deseeiidants,
of Thomas MeKee having obtfiined the island in an impro|)er manner, or of its having
been oecnpied by him, or any ol those holding under him, it having been considered by
them (the Indians) that they, the occupants, were its rightful owners.
BxHiniT (N.)
Clause 18. — Brief shewing all the A(!ts — Imperial and Provincial — and Proelama-
tiona which were in force, at the date of the Indian Lease, as well as all those subse-
quently passed and issued with reference to the acquiring of lands from the Indians by
subjects, proving that the obtaining of the Lease in epicsiion was not in contravention of
any such Act or Proclamation. (For <H>py of Brief vi<le Infru.)
Exhibit (O.)
Clauses 19 & 20. — Opinion of the Honorable Henry John Bcmlfon, on the McKee —
MeCormiek title, citing the fact of the Governmcni's confirming by Patent Brant Deeds
and Lenses, and confiscating the tenure of traitors (during the war of 181.2, &c.,) of lands
held under olher such IJeeds and Leases (not conferred by I'atcnls), as precedents for
granting the prayer of the memorial of the MeCormiek family, as to Point-au-Peleu
Island. (For copy of Opinion vide Infra.)
Exhibit (P.)
Clause 20. — An extract, from the life and correspondence of Major General Sir
Isaac Brock, of a letter addrc»cd by him to Colonel Proctor, as shewing the great
regard in which Colonel McKee was held by the Indians from which, amongst other
things, it is urged that the Indian Lease should be respected, (vide Infr.i.)
APPENDIX.
Exhibit (A.)
{Copy of Indian Lease (renewnble) as Enrolled.)
This Indenture made and made between the Chiefs and Sachems of the Chippewa and
Ottawa Nations of Indians, on he one p;irt ; and Thomas McKee, of Detroit, of the other
part. Witnessed thai the said Chiefs and Sachems oi the Chippewa and Ottawa Nations,
for and in consideriition of the rent and covenant hercinafler mentioned and contained,
which on the part and behalf of the said Thomas MeKee, his heirs, executors, adminis-
trators, are and ought to be paid and performed, hath dtimised, and to farm Ictten
granted, and by these presents do demise, grunt, and to farm let unto the said Thomas
McKee, his heirs, executors, administrators or assigns, all that Islancl ktiown by the
14
„,„„.« ..I I'oini »VI.-^ Islaiul, ...Ml- I'oiMi h-l.-e in llu- I...Kr Kri.- : Tu liavr und jo hold
1,1 s.i'l M^Hul, ami all ami singular ..ih.r tlir i"-''"">-^ •■""< '•^'■^M"''* »'»' I'""'''
|„Mr..|- ,nm.ih...:.i(lTlu.,„as M.K..', his rx.TUtois, a.ln.imsiraior. or assign, or an.
in.Mlu-t.T.....lnim. lnuul,...ia,ulnin..|y-niM.->..ar., an.l lully lo In- com,, rt.. and
en 1 "r To paicd out tlu- sai.l IslanJ int.. sndi lols or i-anvls a. he may ih.nk proper,
',nd lenanl th.' same with wl,ai>oev,.r an.l whom.o.^ver ihey p ease lo pnt thercn.
Yielclin- an.l pavin" lheref.,r, yearly ami .'very year, -Inrin- the saul l.T.n, nnio th.; m.ul
Chi.fs .m.l Saeh'ems ..llhe Chippewa ami Ottawa \ati..ns ih.Mr heirs a..d ns.i«ns three
l,„.hels..||n.lian eo,n. .-r the valn.^ iher...!', il .lemaml.'.l, annually, U> |"'d l"r «h'; "««
of the said (•■■ -ef^ and Saeliems, their nations, heirs an.l assiijns, tor ami in lull siilislue-
ti..n ami paviu.t.l o, aii manner ..livnts vv hals.,ev,.r ; ami the sai.l Chiels, lor ihevs.-lveH,
their nations, heirs ..r assi-ns, .1.. her.'l.y .Mv.-nant. that th.- sai.l I homas Meke.' s helr^
ex.-em..is, administramrs .,r assi-ns may .lemis.-. grant ..r sell any part ..r pareel .,t the
said Island, lor the term h.'rein speeilied.
In witness wh.-ie..l, &e., at D.iroit, th.- first .lay of May, ii> th.' year, Sic , IISM.
Exeeut.'.l by Seven Chi. Is and Sue:., ins, who atta. li their rolems.
Signed, sealed and .h liver.-.l
in prt'senc.; ol
„. ,. iJAMKS Aid, AN,
(Signed,) I p UAHV.
APPKNDIX (N.)
BHIEF (»F CASE
In Ihe matter of the cliiiin of tlu- MeCorinick Family to Point-au-Pelee
Isslaiul, ill Lake \'.tiv.
tin; MeCormick family, setlini? forth
I of the
This is a petiti.m preferreil bv the inemhers ol ,,n, ..■.. v/.....i... ™ j, .=-^ ^
their title 1.) P.iint-au I'elei- Island, an 1 praying to be enabled t.> hohl the [Kirtions .if the
Island belontjiiig to them respe.'ti\eiy, under tlt.-ir lather's will, in fre-siinple, and by
laienis from the tr.mn, and to be br.mglit under the Muni.ipal Institutions Aet of
r- #• I.,
P!
Upper Canada.
case, to elieetiiate their ri-.pi.'sts.
I. — First. \s to the title .)f the M.Cormiek family to P.,inl-au-Pel.'e Isliind : —
The title tif the family to the pl)ssc■s^i(ln .if the Island, n-sts iip.in an Indian leaiie for
nine himdnil and ninety-nine (!)9!() years, bearing dait; 1st .May, \.l). I7>SS, and grunted
byeliiefs an.l saeliems <if (he Chippewa and Ottawa nations of Indianst.) Tluimas .MeKuf,
Estpiire, a chief and half-br.'ed, iiiiil also a l).-piity .\gent f.ir Indian allairs in the West ;
and continuous ,)eaceablc possession th.^reimder from thai .lay t.) the present.
This Lease appears to have been duly I'xeeuled, and to havo t)een registered in the
way, an.l a.cording totlie form in use,al that early .lay, inth.-Terril.iry of IJulroil — which
comprised in it what is now the .•oiinty .)f Kssex — nam.dy, in the book for enrolling deeds
and other instruments, kejit by Notary Monforton, and in fact in the v^ry same series of
b(M)ks in which th.' Crown ilvelf rcgistere.l its own Deed of C<'sHion fr.im the Indians of
the adjacent c.iast taken two years after the dale of the lease in question.
The Lease is shewn to have been genuine and authentic ; and unless, at the time it
was taken, there was an existing law rendering it invalid and void, <//> inilh, Ihe peti-
tioners must be held to have acquired a right for the residue of the term cited by it.
15
Till- olijfclion wliicli is t>:i'u\ to bn tukon lo it, hy llie Deputy Superintundont of
Indiiin Aduir.', Mr. Spriii,'s»c, in liii* llcpoit, i«, in ellfcl," lliiit it w.is not coinpiMcnt for
'riioiiiii!' McKfi- to tiiki- II lease Iroiii llle lililhill-<, iieeiiise, he «uvs, there w.is a I'roeln-
niuii.in i ii'cl by Sir Williiun Jolirisim, on I llh ().;l iber, 17)!,}, proiiiiili,'aiin<^ the Kinf,''»
j)roeliiiii;iiioii of l«i M,\y, I7(>;J, l'orl)i(iilin^' siibjecis IVoiii nuking iini-c'iaae< from Indiana
in the tt'rril()rie^<, willioiii the lloyal Lieense, whieii Thoina!* MeKee ha<i not. .And liiat,
again, there waM a I'roelaination is-ned by CJencral (iai^e, dated 8th of .\i>ril, 1771, stat-
ing that it was not allowable for siibjeet.s lo aeqiiire lands in the Detroit Territory from
the Indian? ; he ar^^iiing, llierufore, that the lease in (|uesl!on is defective and void.
This objection to the Lease insiy lie answered as follows: —
The two proelarnations cited an-, essentially one and the same, both of them merely
promulgating the lui|HTial Order in Council of (ieorge III., of 1st May, A.D. 17(J3.
We shall prcxreed to i;xphiin the history, nature and intention of this order, and it
will be apparent that \\w elleel of dii- Proclatnution is not that stiled by Mr. Spragge.
It c«)uld not, and did not, render it incompetent for the Indians to give a Lease of a
trait of their lands, nor Intn, Tlioiiias McKee — liall-l.n cd as ne was — to talte one from
Iheui. And, if he could take and transmit, the tcinire of the McCormick's should be
regarded as yood as are titles, for such a tenure, held by Families or Corporations, for
Kstates in Knglaiid.
By the Treaty r>f Paris, after the conqncM of Canada, all existing Titles lo Lands,
and holdings of property were confirmed, and the Goveinment of Great Britain regarded
and treated, us owners of the soil, the ditl'crcnt 'I'rilies of Indians, in the irac'.s respeci-
ively (H-cupied by llieni, imt iilrcady ceded by the French tiovemmenl.
In order to arrive at the true meaning o( the Order, upon which Mr. Spraggc's
objection depends, it may be well to recapitulate events: —
On IHth September, 1750, occurred the Capitulation of Quebec ;
On 8tli May, 17C0, followed the Capitulation of Montreal ;
On lOlh February, 1763, was conclude<l the Treaty of Peace between the Kings of
France and (in-al Britain, whereby he tif France renounced Acadia, Canada, Cape-
Breton and nil its dependencies, — belore this cessi()n, by the King of France, was passed,
on 1st May, I7G3, ihi- Order iiiCiaincil of (Jeorge III, promulgated on I llh October, 1763,
j)y Sir William .lolmson, and, afterwards, re-ileratt?(l by General Gage on .Sih A|)ril, 177 I.
This Order after reciting that valuable aetpiisitions had been made by the British
Crown, and that it w.'is desirous that loving subjects should avail themselves thereof,
sets forth that Letters Patent had been granted for the erection of four distinct Govern-
ments — Ouehce, Fast Florida, West Florida and Grenada.
It also sets forth the boundaries of the Province of Quebec, which, according to that
description, eiuild n'>l have exii'ndcd westward of a line drawn from Lake Nipissing
to Lake ('haui|)lain, which wouid pass in the neighbourhood of ('ornwall.
It provides for the Government of the Province> by the uppointnient of Governors,
with direirtions lo summon Assemblies and ordain Laws like those of England ;
It provides for Grants of Land to Millitary iind Naval Ofliccrs.
And then follows the clause upon which Mr. Spragge relies, and is here copied tn
exleruo, viz :
And we do further ileclare it to be our Royal will and Pleasure, for the present
Wesaid, to reserve under Our Sovereignty, protection and dominion, for the use of
id Indians, all the Lands and Territories not included within the limits of Our
d three new Governments or within the limits ol the Territory granted to the
'« Bay Company. As also all ihe Lands and Teiritories lying to the westward
fTsources of the rivers which fall into the Sea from the west and north-west as
aforesaid."
" And we do hereby strictly forbid, on pain of Our displeasure, all Our loving sub-
" jects from making any purchases or settlements whatever, or taking possession of any
" of the lands above reserved, without Our special leave and license for that purpose
" first obtained."
" And we do further strictly enjoin and require all persons whatever who have
" either lawfully or inadvertently seated themselves upon any lands within the countries
16
•' iiliovc (Icscribt'd, or np.m otlicr liiiul!', wliicli, not liavinp Ii<-<mi ci-ilcd lo, or pun Imxfil
" liv us, iirr still icscrvcd to tlic said Indians as a'ori'siiiil, loriliwiili lo rt'iiiovc tlicm-
" selves IVoin MU-ll mMIIcimciiIs."
" Ami wiicrfas ijrcat I'raiids and al)nscs Imvc Ixon connniltcd in piircliasintc lands
" of the Inditins, to ilif ),'rcai pn-jiidu-c of our imprests, and to liic tficat dissalisfjiciion
" of llif said Indians I In okIit, ilicrcfon', lo prevent smdi irri';,Mdarnii's Inr ilic futnri',
"and lo llif t-nd that tin- Indians may hi- convinced of our .histicr and di'ti'rniiiird
" resolution. \Vh no, will) the advice of Our I'rivy Council, strictly enjoin and ie(|uire,
" that no private per-on do pri'suuie lo iiinhr am/ purclmni' from the said Indians ol any
" lands reserved lo the said Indian*, wilhin iliose parts of onr Colonies where we have
" thoui.'ht pro;)er to allow seltlrmenl ; hut thai, if at any time, any of Hic said Indians
" should he induced to dispose ot ihe said lands, the same shall tie piirehaseii only for
" us, ill our name, at some puiilie meeiiiii; or asseml)ly of the said Indians, to he- held
" for liiat purpose hy the (iovernor or ("ommander in Cliief of onr Colony, respectively,
"wilhin which ihey shall he. And in ea»e they shall hi- within the limits of any
" proprietary Govern' nl, they shall lie purchased only for the use and in the name of
" sueii proprietors, conformahle to such directions and instructions as we or they sliiill
" think proper to give lor that pnr|)osc."
I. — The evident inlonlion of this Order in Council, of (JeorRe III, was to provide
forihe ill n immediate want in the new aeipiisilions. A ({overnmeni and a temporary
one — until more ni:iiured and settled arranuemcnls ecaild lie made ; —Cerlainly lor Ihe
re;;ion, then uiieNploriMl and unluiown, lyiny hetweeii the limit a-sii;iied to the I'rovinee
of (^uchec, anil ihe supposed limit of tlie territory of the Hudson's Bay ('ompany, llm
order forbiiile :
Isl. All lovinij suhjccts, " on pain of iliiipliaauri;^^ (wui niakini; purchases or settle-
ments wilhin this rei^ion.
2nd. .\nd. as to th(? sidyerls within the limits of the Province, who had " sra/ed
llieinsr/ves^" i: directed them lo remove.
3rd. .\iid it provided that the (,'rown should have all the l)ar«ains from the Indians,
when seltleiniiits were |)ermilled hy the Citnvii.
The (juestion is, whether this order liijii the ed'eei of rendering null antl void the
Lease to Thomas .McKee, made in HHH .'
1st. That order had been revuked and annulled and made v.iid, fioni and after 1st
May 1775, hy the Imperial .\ci I I (ieoru;e III, chap. 83.
This Aci, after assijrniiii; new limits to the Province of (Jueliec ineiiidint^ in iln-ni
what is now eallecl " Upper Can id i," provide-, hy seeiioti IV, after recitins< that the
provisions made hy saiil Procl imation, in respect lo the CiviUiovernment of ihi' Province
of (ini'bi-c, and the powers and aiiilioriiies tfiven to the (Jovernor and other Civil Odicers
of the said Province, hy the :,'ranl and commission issued in eonsetpienee tiiereol', had
been found to be inapplicable, &e.
" That <//e sfffV/ Proc/rt/iirt/Zo//, so far as the same relates to the said Province of
"Quebec, and the commission and the authority thereof, under the aiithoriiv whereof
" the (joviMiimeni of tlu- saiil Province is at present administered, uiut all every
^* Ordiiiiince (!/i<l Onliniinrfs, n];\t\v \ty the (io\ernor and t.'timicil of Quebec, for the
" time liciiii.', relative to the Civil (iosernmenl and A('Miinistration of .lusiici.- in the said
" Province, and all Commissions to .Indues and other Olheers thereof, be, and //i/' .laiiie
" fire hcrcbi/ riwiked, annulled mid made vniil, i^'tn ami aj'lir tlir \st d'lji of May, 17*5."
And a Government was, by the said Act eonstilnted for nianaf{ine the aflairs of
the Province, consistins,' of the (Jovernor, for the time bi-int;, and a ("oiineil of twenty-
three meirihers appointed by warrant of His Majesty.
([•".irthis Im|)erial .Vet, .See Thompson & MeFarlane's Revised Kdition ( 1831) of thu
Statutes of Upper Canada, published at Kingston.)
Hy a Proclamation of Lord Dorchester, dated 2l!li .Inly, A. D. 1788, the
Province was divided into the four following new Dislricis, namely, Lunenburg, .Meck-
lenburg, Nassau, and Gaspe. The District of Hesse comprising all the Territory west
of Long Point.
Tims from May 1st, 1775, an end was put to the old regime, and the Proeiainution,
relied upon, became dead ; and it is, con.sequently. only in the Legislation, subsequent
to that date —first of the Province of (Juchec, and second of the Province of Upper
Canada— that we have to look for enactment.s making dealings with Indians illegnl.
y
17
2n(l. Hill, oven if llii.s Proeliimiilion liml not Ixisn tlius loriniilly iiljroi^iilcil and ileter-
iiiini'il previous to tin- ^jriiiilinf^ of llii- Indian l^rimi' to TlioiriuM AIuKec, it HJionld
noijUnd could hot, bi; licid to lendi-r tlie luiise void iit thi diiy.
(i.) H«!Ciiii!'e it is ohsolele and worn out, and wholly inapplicable to the condition of
tilings now, and was so t'v<;n in ITHS —
(ii.) Hceauso, oven in its fre(*hn(!H!*, it did not acc()mpli!<h the making null and void an
iigrceincnt properly and formally made by Indians for Lands.
{'t.) It did not so provide by its words. It s.iys ; " We forbid on pain of our
diHpleiisum." The (^fleet of such (.'xpression would be, possibly, to render
the ollender liable lor a uiisdumeanor, or siibjuet to the punishment of
sununury I'vielion.
(6.) The evident intention of the Proclamation was for the summary and imme-
diate enlDrceini'Ut in this inunner, the Government of the day being more,
of an ai'bilrary, tliim Judicial character.
(c.) It would require an Act of Parliament to make an agreement '^ nudum
puctuni."
((/.) The PriMtlamal ion provided, under its second head, " no one shall purchase,
wiihout Iciive, in selilcmenis." If the c:is(!of the McCormicks ('ome under
this head, leav(! must be presumed, because, in I'HfJ the Indians in possi-s-
sion of llif Island leased it lo Thomas .McKee, and two yi^ars afterwards,
in ni)l», the (iovernment treated with the Indians for the main shore oppo-
site ; and il is a fair presumption thai thi! (iovernment then were informed
of the case, and they did not then repudiate it, nor has the Governm(;nt, to
this day, nitemptcd to treat with the Indians for the Island.
/iii.) The term used in the Proclamation is "/w/jc/fcsp." It must be interpreted strictly,
aii<l cannot bt; held lo apph/ to leaiies.
(iv.) The original Lessee was a half-breed, and, by law, an Indian, and the Proclama-
tion, whde in existence, could not, and should not, be held to prevent him from
occupying and holding Indian lands.
(v.) The Island passed to .Vlexander McKee, who was also a half-breed ami an Indian,
and it was not until ihe year \Hi3, that he paried with il to William McCorruick,
the father of the claimants, when the laws in force in the Province of tipper
Canada alone were applicable to dealings between Indians and half-breeds on the
one sidi- and whiles on ihe other.
(See 13 and 14 Vie., chap. 71, and compare provisions by which, as well per-
sons married lo Indians, as the children of an Indian parent, are permitted to hold lands
in Indian Reserves. And see also dctinilion of the word " Indian.")
3rd. The History of ('anada may be divided into the following periods, and the Legisla-
tion, adopted in reference to the Indians, during each of these periods, was as
folK)Ws, autl, uuiil I85U, it had nothing in it rcndeting the taking of leases from
Indians illegal.
(i.) Th*: pkriod of Military hulk under the Proclamation or Gkorue III,
3rd veak, cited bv Mr. Spragoe and exte.\:)!ng from I7G3 to 1775.
During this period the Proclamation itself simply forhailt subjects (mm purchasing
from Indians in the Territories; ordered them to remove from lands occupied;
and not to purchase without leave.
(ii.) The period of the Constitution of Quebec — extending fror.i 1775 to 1792,
under a Governor and twenty-three Councillors, appointed by the King and
authorized to pass Ordinances.
During this period an Ordinance was passed — 17 George III, chap. 7, intituled,
" An Ordinance to prevent selling liquor to Indians, and to deter persons from
buying their clothing and arms, and for other purposes relative to the trade and
intercourse with the said Indians."
But this Ordinance enacted nothing against making an agreement with Indians
for lands.
(N. B. — This Ordinance was held to be In force in Upper Canada after its
erection into a Province.)
18
(iii.) TlIK I'KHIOI) «»• I'HK
ov.siirurii
i.\ <)►• Upi'BR Canmiv »:\TrNni\(i kii»m
I7!)i
IHIO
Diirin;^ tliis pfriod several Aels wen
In
.(liali '
It imiif ill |iri'vciiii
1)11 1)1 I lie jitircliiise of IiiikIh
|)iismm1 reyiilaliiii,' llie dealings wiili
(iv.) 'I'llK I'KRIOI) K\TKM)IN<i KIIOM Tl
IK I
NION O
f TlIK I'hOVINCK!', KHO.M IMU) Ti) IHU5.
In 1850 the Act iniroduccl l.v Mr. IJai.lwin, l.l & I » Vie. ihap. 7 l-rr.i.ler.nK
/(»;i(/.v, invalid, and iiiikiiii,' n a iiiisdeiiieainmr to
llfffVI nil
treat
Ills wiili Indians, tor
with them, ami viirioiH «)ilier le^'uiaiitiiis,
Itir wliieli see Aft iisell.
riiis Act is, dC ilM'ii', evi(U-liee ol' the jnior non-exisleiue ol any
I any Kiile ul' Law
ayainsi pnreliasini,' d
r leasing luiuls Ironi Indian
Ciiapte
IX (if tiie Consolidated Statutes ol Cimu
(la einlxiiies tin- varictix
cnaclmeiils \v
ilii relereiiee to the Indians.
||._As to tlie .Iiid«iiieiit oliiained against the MeCormieks on the Inl'orinalion
for Iniriisioii.
Ue'''rrin:: li> the Jnd:,'ment
1)V the learned laic Chief Jufi.iee Sir John Heverley
iinsoti, in
Rob
131 — it is evi
l|„. ,.;,>e— as reported in Vol. IS, of the QiieenVs Heneh Reports, piim?
lent that, had the MeConiiiek elaiin, to the hiand, lieeii made to appear
to have lieen Inunded ii|
the I.
iroiii the Indians to Tlioiiias MeKee, a half-breed,
transiniitiiii,' to his Son, and by him tran
•lerred to William MeConniik. their father —
the Coverniiieni never haviiii; obtained the eessii
lioldins,' under a title independent and adversi
nn of the Island, and the M<-Corinie!i!<
f the learned Chief
-thi
(leelsion o
.luMiet^eonld not have been otherwise than llie reverse of what it was. An«l it is evident,
from the r.'Miarks of his Lordshi|>, that he I'.dt that the ease of tli.- .M<'('orinieks had not
been faiilv submitted to !he Court, by the special ease acreed on for the purpose, and by
lisiiirbed possession for a
riL'ht to recover, tlnis, by
ihieli tlieirease was iiiadi' to <le|)end solely upon their undisiiirbed possess
-riod of upwards of sixty years, as liarnni; the Crown's
iipletely
liriiorin
LT the Indian Lease, not shewin^' that their " possesion had been
id IkI'I not hrcn (i iiiirr (ontiniied posarsxion
" adverse to the Crown and not peniiisMvi
" tikcn, in llie first instance, hi/ c nitrr intrmUr mn- ussrrting litlf,'"~'.i " .xpi.iiiei
in fact.
Til.
iirlant defect, in the staleineiit of tin- ease of the MeC'ormii'ks bein^
arc
nt, from the very judi^meiil of his I,ordsliip, notliin:^' ni'cd be added to indme tl
ment to perform llie act of justice of waivinii; the advantage of the judmiieni
app
Govern
thus obtained.
III. As to the disposition in which it is liope<l the claim of die McCormit-k fiiinily
will be received, and dealt with, by the (ioverninent.
The ariiumenl, iiad under the first lieail, i,'<m's to shew lh;it the MeCormieks have a
good pajier title to the Nland, or a rii,'hl to it, ae(|iiired boitu fide. Hut, in snbinittini? their
case, the MeCormieks fetd lliey are not eomini; to a corporation, invesiigatinjj Ihi-ir lith?
as if for a loan, bui to the (ioverninent, -is panns palrice, mindful of the just (daitiis, and
solicitous for the welfare, of all loyal and loving subjeels. They conceive thai, h'gally
and rightfully, they have aef)uir<'d the |)o>session and ownership of the lslan<l they
occupv, and, in ap|)roaching the Government with their east-, (even were it the (net that
eillier the Lease, under which they liohl, or the possession originally conferred by the
Indians and transferred to them, was irregular or (lefieient in any respect,) the petitioners
woula feci conlident that the Government of tli(> country never would, under any pre-
tcnee, attem|)i to deprive ihein of holdings undisturbed for upwards of three quarters of
a century. Hut, on the contrary, thai the Government would protect them in their
l)ro|)erty, and confirm a to them in tlit; manner most advantageous to them.
I\'. As to the ways and means by which the requests of the I'etilioners may best bt
erteutuated.
The members of the McCormick family, the Petitioners, are ready and willing to
surrender to the Crown their Lea.sc, in order that their res|M!ctive titles under it may be
confirmed by patents. And it is respcctfp'ly asked that the GovernrT'"nt will take a sur-
render of the reversionary interejt of the Indians, if the bands, ulut originallti owned the
Island, are still in exis:ence. And if, upon enquiry, it should iie found that those bands
are extinct, th(!ii that the Gov(!rnment assume the reversionary interest, and, accepting
the surrender of the Lea.se, issue patents, ill the manner prayed for in the petition, to
each member of the family as entitled.
19
Till' ciirto is a pt'ciiliaronc, The trad IcsiMutl in this instance l>y Iniiiuns to a. I'avoritt^
diief, \H Hiiiiill UH coinpnrcd with other ^riinls iiiaiii' liy Indiitni^ iind >iihNe(|Ufiilly re-
spcctcil and conHrnu'd, and inMlgniticanl iih conipiirt-d with the vast territorial f^raiits
tnadc I' 'I Hovi'rt'ign to a I'l'W iuvorin-n, and which uri' rfMpi'clcd to this day.
Ir till cunfiriniition of the title to lliit* iMland, att iixked for, u iiioxt loyiil and, in every
respt'cl, ncoerviiiK liiiiiily, will hr served, and the eoiintry at lar>{e, will Ik- udvaiilaged
liy their dividing iipthrir holiiingi« and inviting settlers to their inland to further ilevi-lope
und improve it.
APPENDIX O.
(Opinion of Tho Hononiblt' Henry John Poulton)
In Ee (lie McConnicic Claim to Point-Pek-e Island.
F have read the Brief and Petition to the (lovernor (ieiieral, ^ent to me for my
perusal and opinion, and, aliliDiii^h I see no ohjeetioii to the petition, in point of form,
yet i think liotli the (ioveriiiiiint .V^'cnts, an<l the ( hiiniants to the JMland, urge their
respeiMive view.s rather loo niiieh u|)oii the idea of a legal paper title heing sought to be
eHtalilishe<l.
Previous to the Treaty of (iiiebee the whole of the present Province belonged, in
Sovereignty, to the French King hy c<)n(|uest, Imt such eoni|uest did not, I apprehend,
vest in the French King the soil of the couiiiry, belonging to the Indians, and used by
them OH hunling grounds, but, whensoever the (iovi^rniiient recjiiired lands for Civil pur-
poses, .\giicultural or otherwise, ih • Indians, represented by their Chiefs, treated with
the Government for a ei^ssion of so much of the Territory, to be organized for settle-
ments, as the circumstances of the country might require.
The Indians, although occii|)ying and nsing the country collectively, in a nomadic
state — like all other wandi'ring tribes of iincivili/ed savages — never, individually,
reduced any part of it to personal enjoyment, as separate properly, an<l never had, in
fad, any individual separate estate or property in the land !it all. Therefore, it was not
in the power of any Indian In make a title to any portion of land — as property — to
anybody, and, therefore, when hinds were wanted lor cultivation ihe Chiefs nr Head-
men of the Tribes (according to Indian usages and the custom of savages everywhere,
whether in America or .M'rica) me; in Council and negotiated, by Treaty, for the cession
of the land needed, which is the course, (I think I may veniure to say) uniformly adopted,
on this continent, in dealing wiih the Indians — whelher by the British (Tovernment, or
American, or Colonial, or Proprietary (Jovernments — except, perhaps, in some excep'-
ional cases, where they iimy have acipiired territory, as the price of peace, alter having
provoked a war w liieh ended in the subjection of the Tribes engaged. Now the facts,
in this case, as represeutecHM the p;ipers bi-fore me, shew that the Indians, oil the 19th
of May, 1790, by their Chiefs in Council, ci-dod to the (Jovernment of the King of
(Jreat Britain, most of the VVesti^rn Peninsula ol Canada, lying along the shores of Lakes
Firie and St. Clair — but not the Islands adjacent — and making, as is well known,
certain reservations for their own use, as camping grounds, |)erhaps, when thiy should
assemble to transact any business with the Government.
The Grand River Reserve — as it is, I think, incorrectly called — was, at a very early
date, acquired, in the same way, from the Trilx's, and afterwards a sort of License of
oecup aiM)n (which was neither a Lease nor a IJeed purporting lo grant a Freehold) was
moiJ^^Hie Six Nations of Indians, coming in from the Mohawk country, under Jo.seph
LSir William .lohnson, for their loyalty lo the British Crown during the
Levoliition. But still no individual Indian acquired a legal estate in any
territory without the intervention of the Crown, for the reasons I have
lamely, that individual Indians did not acquire any separate estate, the
fmg set apart for their general use as a hunting-ground. And this land has
Jeali with, by the Indians, through their Chiefs, and by Ihe Government, just as if
find originally been theirs, as the aborigines of ihe country, for whensoever it has been
thought best to have the land organized for settlement and divided into Townships, the
Indian Chiefs (of whom Joseph Brant was, during his life, principal) ceded back to^tthe
Government, such parts as it was thought best for the benefit of the Indians and to
promote the settlement of the country and it was then sold for the benefit of the Indians
in general.
Brant, upon several occasions, gave leases of considerable tracts to his friends and
leading members of the Indian Department, which, having been doiie freely and volun-
•20
mril), viTi- iiiii ojip.iM'd liy til'- (JiiM'iiiiiH'ni, uin
tlifiiiHi'lvfKor ili(wc(l;iiiiiiiit» iintltT llifin, wIiiti'H!<
ini'n
miMi
I Imvi' «ii» r liiTii |mtfiil*'«l lit llir purtif
t, llic!*!' Iciiscf* wiTC \vorilili">>, fini
, wiilioiii ilii- rccouniliiiii iif Ihi' fiDvcrn-
-li lit nil,' iit> liilf wliiiii'wi ; mill yi't tin- (Jovorn-
l' il-cir, wlirii I \v!»f AlUirni'y-CiciuTsil. ciKili^Mii'il l:iri,'i' inicN of limd held iindor
iln> liiind'* ol' iilii-ns will) I'tirl'.-iiiMl tlnir f«liilfs liy Iri'usoii during
Hr;iiil l,<Ms( r< Ill-ill'' ill
till'
All
\Vi
.1 l>\
Now llic li'iim- i>f Ptiinl-ai
-I'l'jcc Idlaiid >l.ind:*ju»t ill llii- -Mini' piwiiiDii, miuI I liiivt
no (liiii
loiiht
ih.il. il' till' .Mi'L'oriiiicks, in>UMd nl ln-iiii,' loyal milij
liji'ftis to till' Crown, had li.'I't
till' I'roviiii'c and uont
(orl'fiit
inii
III
tl
iii'iitf a^t a I
to till' I'liitrd St..ii'n (liiriiii; tin- war, tlii- l-l.ind would have hrcn
"riioiiia-* Mi'Ki"', to my l.nowl<di,'c, was a man of
I, Mild wa-* a« riiiirli iMilitlcil to
ic ••aiiu' iiiaiiniT.
hli'f and ollircr of llit! Indian l)<-|i.irtiiu-n
till' iiUcctioniili' rf:,'aid of iln' Indians, to whom ih.' l-lniid ln-loin,"' i, as
liraiii.
my
olIiiT Iradint,' ilii< f of ihi- Six Nati
till- (iovfrniiii'iii
1.1 to theirs ; and I am stin- that if, at that time
the wholf maliri wi
(who mviT ownc.l ilic UJand) had alli'iii|ilfil lo dcpriM" liim of it, wliih-
lush in till' minds of all the Indians and inlniliitaiits of that purl of
t disL'iist in the mind of cvcrv one — liKJiaii iind
■ ■»■ coiinliy, it would have crrati'd ;,'ri'a ^..
whiti' sfliliM — Mid the Inilians who a>srnird lo ili<- jcasr, would, in all jirolialiiliiy, liavi<
resiMiti-il, ill some wav, tin" iiidis,'nitv olilTod lln'iii hy tin- ri'lusaj lo n'oo','iiizi' tlii-ir aot.
Th.- (
lovi'innifiii, a
t ail
lis, ncM'r had anv ri''ht to tin' Island, as it was ni-vi-r
fcdcd lo thfl'iovvii liy itif liiiiiiiii-*, iiiid it hivinj,' lui ii m ilu- po
his assiijn.s, i laimlnii''lill«' lo il, lor more than wvciiiy years; I am sii
ssr^sitill of ihi- |iss(«' lliu
(hat
>o iiiijiisiili-
Mr an act, as the depriving a loyal family of iheir pairimoiiy. under ihe preleni'e llial
they have fstahli^hed no /• i^n/ iiiijirr tilli to ;7, alter liviiii; upon and imptoviiijj it for
between 70 and Ml years, has noi yei hceii aiteiiipted liy any (iovernmeiil dealing
with the Indians at any tiiiie.
11 the Crown re»ts ItKciaim upon the prcro'j^ative rii;ht of !>ri/iiii; into itw own liandit
all projieriv for whii'li no ownrr <mii !)•• f luiul — .i<, if an illei,'itiiu iie son had died without
issue and miesiaie, then, in defaiili of heirs, ilie Crown would take as iiaren.i imlritT — I
do not think any dch'liee eoiiM lie set up. In the piesftit ease, liowevir, it is elear that,
if the delendants had lieen projieily defi nded. tlii' Crown would have lieeii defeiiled under
the provisions tif the !tlli lieorije |||, c.ip. Hi, made rxpressly toipiiel ihe possession of
the siiliject : where neither the Kim;, nor those under whom he made title, had eitlivr
been in possession, or laken Ihe proliis, for lit) years.
In this ease the Crown could have made out no such ease, as this Island had never
been ceded lo it, and no others, than the MeCormicks, had any lightfiii |iossession under
which the (ioveinment could establish a claim.
I therefore think that the (Government oii^'ht, tit once, to i'on«eni to the si ttinij aside
the Jud^lllenl, which, tliroiiu'li neyliiieiice or iiilioriini'c, h;is liceii sulleieil to be olitained
aii;iiin-t the iwo difendiini. — :ililioui;li they iiiii;lil as well issue paii nis to iho>.e entitled
under tliu Will of the hiii- Willitim .McCoriuii'k.
I have read the judijinent of ihe liite ("hicf.lusticfof Upp'TC inada,Sir,lohn Ucverley
Robinson, as reported in 18 U. C. (i- IJ. Keports, p. I.il, — Medina v. MeCormicks, —
in which he eviiieiilly iniim.iles that it w;i^ in coiisetpience of the leiil facts of the case
not beiiif^ before the court thsit he was consirained to give iudyiiient for the ('rown, uh ho
was well iiwtire of the loni,' enjoynn'iit of the property iind'T the Itiditin Lease.
Holland House, Tonmto, 5lli Am'Ust, l.'itJj.
apim:ni)i.\ (P.)
Extract from a Lrltrr (Hlurnined li;i Mij >r-(lriifral Ilrork t'> C'olonil Proctor.
" Foit (jeorge, September 17, 1812.
" Colonel K f FJIioii] is a respectable, tj:'ntlem'inl" man ; but he, by no means, posseHs
the inllunce over the li;ili;,ns which Captain McK [Thomi$ .MeKce] does; I
recomiiieiid to you to |iioiiiote, as iar as in you lies, a ^imkI iiiulersianding with, and
between them, and observe ii conciliatini; deportment and liinj^uage towards the latter
Ihiil /lis If rent injlmni-e maif be m cured ami mi/iloi/ed, in its fullest extent, for the benefit
of your distri(;l and for the ffmeral frond. In conversation with liirn you may ttike an
opportunity of intimating that I litive not been unmindful of the interests of the Indians
in %iy communications to ministers, and I wish you to letirn (as if casually the subject
of fonversition) what stipulations they would propcsc for tlieniMelves, or be willing to
accede to, in case either of failure or of succtss."
'i Ir
Life and correspondence of Major-General Sir Isaac Brock, K.B., by Ferdinand 0.
Tapper, Esquire, 2nd Ed., p. SIL
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