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BLACKETT ROBINSON, 6 JORDAN STREET. 1882. tl •• • •• i- •' FC 30-70 1 1 Notes of explanation and reference have, under the supervision of the Attorney-General, been appended to a few of the Papers. These notes are in brackets, with the initials, " G.E.L." I '• I i"C ral, been appended f.E.L." (i vatin tux^nbiytoihminiDnpirA \en'^aiJJi cccordwg toDonwmm ^ofKeewatiais.. _ 'jccordinff to awetrd/ 'cording toDominiojvConlenti uthofneujhl ofJMiid- otOuebecCSmA of Height ofLi tTthofHeigJit of Land, Kxording toDontinion Cbnten \nsmck... Ucu - hvard Island iri&F minions. « car taken fiomSirAl^Gunpbt \ 70 I PAOI. ll,\iV ^ >yf> tj (if. 1_ "J: c.Gu:;Ar;iiC l:a:^3 cf cakada. _x_ \z^ -rwrr^^^^^^^*^^^^*^ -m^Slit/^K»^m- Map of Canada To ilLuiStrate the que.stioas iii dispute mtbllie PROVINCE OF ONTARIO. COMPILED IIY C B klRKPATlilCK. P L. wS. Dep.•^rlluent of Crowii Lands, ONTAKIO. May 12? 1882. NOTE. The part striped with yellow and red tTroeawise, deruite.s that partof theTerntoTv nwdrdedto Ontario which is now claimed by Manitoba and the Dominion. The^Jart with yellow stripes only, is transferred by hi Vict rap;14.D. to Manitoba condiboiially Tliep«Tt Willi 6reen stripes only 's transferred by 39 Vict; Caj):21,D. to lieewatin condih(»nally The pari striped with red only, dtnmlt's that part of theawarded Territory which is claimed liy the dominion. z fopp, Clark & Co T.i(h-T 1 '■ntc //:7 I ! 4 ^ ^x.'Wli.i:^ tt« • - •' "."f-TW,;*"?* oK> /■ -C^ V Noteac N K. V. ■ - v^ • -^ 5-' -_ % /' r^.. ^>i \ i ^> ^.^^--S^' < -i, ^ 4\ i \ 3- ^N-^y «|M f. i I v CONTENTS. PAOI. 1866. Dec. 4. The Secretary of State for the Colonies (hereinafter called the Colo- nial Secretary) to the Governor-General, touching the proposed renewal of the Hudson's Bay Company's license to trade, the reference of the question to a Committee of the House of Com- mons, and the course to be pursued in the interest of Canada thereon > 1 1857. Jan. 17. Order in Council (Canada) upon the same subject, urging the im- portance of ascertaining the limits of Canada, and suggesting that her western boundary extends to the Pacific Ocean ? " " The Governor-General to the Colonial Secretary, with copy thereof. 2 Feb. 16. Order in Council (Canada), setting forth the instruciions to be given to the special Agent appointed to represent Canadian interests before the proposed Committee of the House of Commons 3 " 17. The Governor-General to the Colonial Secretary, with copy thereof. 4 " 20. The Assistant Provincial Secretary to Chief Justice Draper, convey- ing instructions to him as such special Agent . 4 April — Memorandum of the Hon. Joseph Cauchon, Commissioner of Crown Lands (Canada), respecting the Indian, North-West, and Hud- son's Bay Territories, and the questions of boundary and juris- diction connected therewith 6 (a) Operations of the Hudson's Bay Company 6 (6) Boundary of the Company's territories under their Charter 8 (c) Boundaries of Canada 21 (d) Boundaries of the Indian territories 25 (e) Jurisdiction 26- May 6. Chief Justice Draper to the Colonial Secretary, with memorandum, and suggesting a reference of the question of boundary to the Judicial Committee of the Privy Council 31 " " Memorandum of Chief Justice Draper (alluded to in the foregoing communication), respecting the question of boundary between Canada and the territory claimed by the Hudson's Bay Com- pany, and the diverse views of the Company thereon in recent and in former times 32 It. CONTKNTH, rAOK 1857. May 28. Further piipor of Chief Juntico Driiper relative to the boundarieq, UetailiiiK the variouH claims made by or on behalf of the Hud- Hon*H Bay Company, 1687-1760 (delivered to the House of ComnioMB Committee) 37 June 8. Evidence of Mr. William MoD. DawHon before a Committee of the Legislative ABsembly, touching the HudHon's Bay Company's claims to territory, jurisdiction, and exclusive rights of trade. . 40 " 12. Chief Justice Diapur to the Provincial Secretary, conveying his opinion that a decision by the Judicial Committee would give to Canada, for westerly limit, the meridian of the source of the Mississippi, and on the north a line considerably beyond the Height of Land 47 July 18. The Governor of the Hudson's Bay Company to the Colonial Secre- tary, consenting to a reference to the Judicial Committee as to the extent of their territory ; oOcring to cede to Canada sucli lands as may be required for settlement ; and stating the Com- pany's position generally 47 " 22. Instructions to Mr. Cladnian, Chief Director of the party engaged, under authority of the Government of Canada, in the explora- tion of thr country between Lake Superior and Red River .... 49 Memorandum shewing that the objects of the expedition had been attained and that the explorations were subsequently continued and extended under Messrs. Hind and S. J. Dawson 51 " *' Final Report of Chief Justice Draper respecting his mission to England, giving a general review of his action and of proceedings 1858. Jan. 20. The Under-Secretary of State for the Colonies (hereinafter called the Under-Secretary) to the Governor of the Hudson's Bay Company, offering to renew the Hudson's Bay Company's li- cense of exclusive trade, upon terms, and suggesting the desira- bility of ascertaining the boundary between Canada and the territories claimed by the Company, and the surrender of such portion thereof as may be available to Canada for purposes of settlement or for mining or tishing " 21. The Governor of the Hudson's Bay Company to the Colonial Secre- tary, agreeing to these terms and suggestions 61 " 22. The Colonial Secretary to the Governor-General, transmitting the preceding correspondence for the consideration of the Canadian Government and intimating that the British Government will be no parties to proceedings for testing the validity of the Charter 6S Mar. 26. Mr. Gladman to the President of the Council (Canada), criticising the statements in the above-mentioned letter of 21st January and the Company's dealings with the North-West 64 51 60 rONTKNTH. alonial Secre- FAOK. |18B8, Apr. II. Thf» Provincial Hecrotary to Sir (tnorj{') Himpaon, fJovomor of Kupcrt'H Land, beHpeakin^ for tho Canadian oxplorin^ exptnli- tion of this yuar the aHHiHtanco of th« otficoni and Hervantu of the Company 66 " 23. The Govornor of Rupert'H Land to the Provincial Secretary, pro- niiRing tho required aHRiHtanco 67 Aug. 1 3. Joint AddreHH of tho Lf^giHlative Council and Assembly of Canada to JIe;r Maji'Hty, in view of the proposod renewal of the HudHon'n Bay Company'H license, assorting tiie title of Canada to a portion of the territory covered by it, and suggesting the surrender of other portions for purposes of settlement, and tlie reference of the (juestions of boundary and of tho validity of the Charter to tho Judicial Committee 68 " " Resolutions moved by Mr. W. McD. Dawson in the Kouse of Assembly, respecting the limits of Canada and the claims of the Hudson's Bay Company under their Charter and License .... 69 " 16. The Governor-General to the Colonial Secretary, with Joint Address. 71 Hept. 9. Order in Council (Canada), recommending that the subject-matters of the Joint Address, and the establishment of a line of com- munication by railway or otherwise from Canada to the Pacific be urged upon the attention of the Imperial Government .... 71 '* 9. The Governor-General to the Colonial Secretary, enclosing the fore- going 71 Oct. 26. The Colonial Secretary to the Governor-General, in acknowledgment 72 " 1 2. The Deputy Governor of the Hudson's Bay Company to the Colonial Secretary, conveying the refusal of the Company to be con- senting parties to any proceeding for testing the validity of their Charter 72 Nov. 3. The Under-Secretary to the Deputy ^Governor of the Hudson's Bay Company in reply, urging the Company to reconsider their de- cision and to become party to a reference to the Judicial Com- mittee, and intimating the purpose of the Colonial Secretary, in the event of their continued refusal, of taking steps for closing the controversy, for securing a definite decision, and for putting an end to their license to trade 72 " 10. The Deputy Governor of the Hudson's Bay Company reiterating the Company's refusal 74 Dec. 16. The Law Officers, Sir Fitzroy Kelly and Sir H. Cairns, to the Colo- nial Secretary, advising that proceeding for repeal of the Com- pany's Charter should be by scire facias 75 " 22. The Colonial Secretary to the Governor-General, suggesting that the Canadian Government take steps to obtain the writ of scirf. facias 76 VI. CONTENTS. PAOK. 1859. Jan. 28. The Colonial Secretary to the Governor of the Hudson's Bay Com- pany, intimating that the Company's license will not be renewed for a term of years, but offering an extension for one year .... 76 Feb. 2. The Governor of the Hudson's Bay Company to the Colonial Sec- retary, in acknowledgment, and promising an early reply .... 77 " 8. The Governor of the Hudson's Bay Company to the Colonial Sec- retary, declining an extension for one year ; offering to accept renewal for 21 years, terminable at two years' notice ; setting ' ^ ' ' ( forth the Company's present position respecting the questions in controversy ; and stating their continued adhesion to the piinciples of the letter of 18th July, 1857, ante 77 " 11. The Colonial Secretary to the Governor-General, pressing for the reply of the Canadian Govei'nment to the proposal of his des- patch of 22nd December, 1858, mite 80 Mar. 9. The Under-Secretary to the Governor of the Hudson's Bay Com- pany, intimating that the Canadian Government desire to consult the Legislature befoi'e coming to a decision ; refusing the renewal for 21 years, but offering to make the extension two years instead of one ; characterizing the proposals of the letter of 18th July, 1857, as insufficient and illusory; re-affirming the advisability of the Company's consent to a proceeding , for testing the validity of the Charter, and shewing the favourable position in which they would be placed thereby, whatever the decision 81 " 10. The Colonial Secretary to the Governor-General, transmitting his correspondence with the Hudson's Bay Company and intimating that if the decision of the Canadian Government and Legis- lature does not reach him by 1st May, the Imperial Government must take such proceedings as to trying the validity of the Charter as they may be advised 84 " 15. The Chairman of the Hudson's Bay Company to the Colonial Secre- tary, in reply to the letter of 9th March, conveying the Com- pany's refusal to be party to the suggested proceedings, and declining the offer of a two years' extension 84 " 18. The Colonial Secretary to the Governor-General, urging the imme- diate answer of tlie Canadian Government as to their intention to take proceedings by scire facias 86 April 1. The Under-Secretary to the Governor-General, transmitting the above letter of 1 5th March . . 86 " 4. The Governor-General to the Colonial Secretary, intimating that the Canadian Government will not advise proceedings for testing the validity of the Charter, but that they are of opinion that the boundaries of Canada should be speedily and accurately defined. 86 '^^'X • CONTENTS. Vll. PAOI. 87 8» 1859. April 29. Joint Address of the Legislative Council and Assembly of Canada to Her Majesty, representing that the onus of litigation respect- ing the validity of the Charter should be assumed by the Im- perial Government, and that the question of the future of the Territories should not be made to depend upon the mere legal view which may be taken of such validity 1862. Mar. 8. The Governor-General to the Colonial Secretary, as to organizing the Saskatchewan territory under 22 and 23 Yic, cap. 26 ... . Apr. 16. The Colonial Secretary to the Governor-General, pointing out that the Act in question does not apply to territories claimed to be within the limits of the Hudson's Bay Company's Charter, and that consequently the organization of Saskatchewan cannot be undertaken 88 " 15. The Provincial Secretary to Mr. Dallas, Governor of Rupert's Land, proposing a scheme of overland road and telegraphic communication with the Pacific, and desiring the co-operation and practical aid of the Company, without reference to disputed rights 88 " 1 6. Tiie Governor of Rupert's Land to the Provincial Secretary, declin- ing the proposal, on the ground that the settlement of the Saskat- chewan and Red River valleys to which it would lead, would impair the Company's sources of supply of winter food for their northern posts and otherwise interfere with their trade, but intimating that the Company might be prepared to surrender all their chartered rights on equitable terms 90 1862. Apr. 24. Order in Council (Canada), recommending the transmission to the i Colonial Secretary of a copy of the correspondence relating to the proposed overland communication with the Pacific 91 " 25. The Governor-General to the Colonial Secretary, transmitting the correspondence, and urging the Imperial Government to take such steps as may enable Canada to carry out the project .... 91 May 19. The Governor of the Hudson's Bay Company to the Colonial Secre- tary, intimating that the Company cannot practically aid, but will not oppose, the project ; pointing out the difficulties and dangers to be encountered in passing through the " vast desert" between Red River and the Rocky Mountains ; and renewing the ofier of surrender of the Company's tei-ritorial rights on equitable terms 92 June 3. The Colonial Secretary to the Governor-General, transmitting the foregoing, and conveying the desire of the Imperial Government to co-operate in a proper scheme not involving a grant of Im- • ." . perial funds 9S vin. CONTENTS. PAOE. 1862. Oct. 17. Report of Postmaster-General Foley (Canada), upon the proposed scheme, and recommending an appiopriation 94 1863. Feb. 9. Order in Council (Canada), approving the foregoing report and re- commendation 97 " 27. The Governor-General to the Colonial Secretary, transmitting the two last documents 97 Apr. 28. Mr. Watkin to the Colonial Secretary, with proposals for construc- tion of overland road and telegraph line 97 " " Heads of such proposal 98 May 1. The Under-Secretary to Mr. Watkin, approving the proposal, sub- ject to modifications of details, and promising grant of Imperial Crown lands 99 •' " The Colonial Secretary to the Governor-General, transmitting the correspondence, and recommending the scheme for the considera- tion of the Canadian Government 100 1864. Feb. 18. Order in Council (Canada), representing that the proposals are unsatisfactory, setting forth the expediency of settling the north-western boundary of Canada, and recommending the asser- tion of the claim of Canada to such portion of the North-West as was in possession of France at the conquest 100 " 19. The Governor-General to the Colonial Secretary, with the preceding. 101 July 1 . The Colonial Secretary to the Governor-General, referring to pend- ing negotiations with the Hudson's Bay Company for surrender of their territorial rights to the Crown ; and suggesting that if the Canadian Government are desirous of assisting, and of accepting the Government of the territory, a delegate be sent j and that if not so desirous, they represent their views as to the North-West boundary 101 Nov. 1 1 . Order in Council (Canada), in reference to the foregoing despatch, representing the views of the Canadian Government, that the negotiations with the Hudson's Bay Company be continued solely by the Imperial Government ; that upon their conclusion Canada will be prepared to arrange for the annexation of the available territory ; and that as a first step the Company's ter- ritorial claims and claim to exclusive rights of trade should be extinguished ; and intimating that the Hon. George Brown will communicate the views of the Government more fully .... 102 1865. Jan. 26. Report of the Hon. George Brown, President of the Executive Council (Canada), respecting his mission to England and tlie negotiations between the Imperial Government and the Hud- son's Bay Company, and giving an abstract of the correspon- dence (not elsewhere published) which had passed 105 CONTENTS. . i«i. — I PAGK. 1865. Mar. 24. Order in Council (Canada), recommending the appointment of Messrs. Macdonald, Cartier, Brown and Gait, as a Ministerial Delegation to England upon, in'-'--■• fc Secretary, protesting against the construction of the Red River ' ' *' Road, as a trespass by Canada upon the Company's freehold . . 148 Enclosures refer'-ed to in above letter — Extracts from letters of Mr. MacTavish, of October 10th and 11th, 1868 148 " 30. The Under-Secretary to the Canadian Delegates, on the same subject, and asking for explanations 148 1869. Jan. 16. The Canadian Delegates to the Under-Secretary, on the same sub- ject, with explanations, but denying the Company's title, and asserting that of Upper Canada to the country between the Lake of the Woods and Red River 149 * Feb. 2. The Governor of the Hudson's Bay Company to the Under-Secre- tary, in reference to the above letter of the Canadian Delegates, charging that Canada is, pending the negotiations for purchase, exercising rights of ownership by virtue of an old claim, re- peatedly advanced, but denied by the Company ; and claiming the pr'^tection of the Colonial Minister 151 Jan. 13. The Governor of the Hudson's Bay Company to the Under-Secretary, in reply to the letter of 1st December last, criticizing the pro- posed terms of transfer, and suggesting a money compensation as being more satisfactory to the Company 152 " 18. The Under-Secretary to the Canadian Delegates, enclosing the preced- ing letter for their observations thereon 155 Feb. 8. The Canadian Delegates to the Under-Secretary, in general review of proposed terms of transfer and of past negotiations, setting forth Canada's title to the North-West and North by virtue of the French possession, and making counter-proposals 155 " 22. The Under-Secretary to the Governor of the Hudson's Bay Com- pany, enclosing the preceding, and inviting a statement of the Company's objections, if any, to the counter-proposals of the Canadian Delegates 167 " 26. The Governor of the Hudson's Bay Company to the Under-Secre- tary, in reply 168 Mar. 3. The Under-Secretary to the Governor of the Hudson's Bay Com- pany, proposing new terms of surrender 178 XIV. CONTENTS. I ?Aai. 1869. Mar. 9. The Under-Secretary to th& Canadian Delegates, enclosing copy of the preceding, and promising the Imperial guarantee to a loan of X300,000 if proposed terms accepted 172 " 12. B«8olutionB of the Governor and Committee of the Hudson's Bay Company, respecting modifications of proposed terms of transfer 1 73 " 13. The Canadian Delegates to the Governor of the Hudson's Bay Com- pany, whereby it appears that the Delegates have accepted the new proposals for transfer, but will not consent to any modifica- tions 173 " 16. The Governor of the Hudson's Bay Company to the Canadian Dele- gates on the same subject, and as to settlement of details .... 174 " 18. The Canadian Delegates to the Governor of the Hudson's Bay k Company, respecting the Company's resolutions ir. modification of the proposed terms of transfer 175 " 22. Memorandum of provisional agreement between the Canadian Dele- gates and the Directors of the Hudson's Bay Company in regard to certain details 176 " 27. The Canadian Delegates to the Under-Secretary, as to delay of the shareholders of the Hudson's Bay Company in accepting the proposals for transfer, and asking for transfer of the North- West Territories, apart from Rupert's Land, in default 177 " 29. Memorandum of further agreement between one of the Delegates and the Governor of the Company respecting details of pro- posed transfer 177 April 3. The Under-Secretary to the Governor ot the Hudson's Bay Com- pany, intimating the acceptance, by the Canadian Delegates, of the proposed terms 178 " 10. The Governor of the Hudson's Bay Company to the Under Secre- tary, transmitting resolution of shareholders in acceptance of the proposed terms 178 " 10. The Colonial Secretary to the Governor-General, on the subject of the conclusion of the negotiations for transfer 179 May 8. Report of the Canadian Delegates to the Governor-General, on the subject of their negotiations with the Imperial Government for the transfer of Rupert's Land and the North- Western Territory 180 " 14. Order in Council (Canada), approving of the above report and of the terms of transfer 181 " 17. Message from the Governor-General to the House of Commons (Canada), transmitting for their consideration the report of the Delegates 182 CONTENTS. XV, ' ■ — ' " " " ■ PAOI. 1869. May 28. BeHolutions of the Parliament of Canada in acceptance of the transfer of Rupert's Land and the North- Western Territory 182 " 29kSc31. Joint address of the Legislative Council and Assembly of Canada , ; . to Her Majesty in acceptance of the transfer 183 June 22. Dominion Act for the temporary government of Rupert's Land and , the North-Western Territory when united with Canada. (32-3 Vic, cap. 3) -18.5 Nov. 3. Extract from the Speech of the Lieutenant-Governor, at the opening of the Legislature 185 " 19. Deed of Surrender of Rupert's Land : the Hudson's Bay Company to Her Majesty 185 Schedule thereto, shewing the Company's posts and the quantity of land secured to each of them 188 " 23. The Governor-General to the Colonial Secretary, respecting the disturbances in the North- West, and consequent detention of Lieutenant-Governor McDougall (telegram) 191 " 27. The Governor-General to the Colonial Secretary on the same subject, and advising postponement of transfer in consequence (telegram) 191 " 30. The Colonial Secretary to the Governor-General on the same subject, and recalling the state of the negotiations for transfer 191 Dec. 16. Order in Council (Canada), setting forth the advisability of postpone- ment of transfer, in view of the disturbances in the Red River Settlement 193 " 28. The Gowernor of the Hudson's Bay Company to the Under-Secretary, urging that the Canadian Government should carry out their engagements notwithstanding the disturbances at Red River. . 196 1870. Jan. 8. The Under-Secretary to the Governor of the Hudson's Bay Com- pany, respecting the proposed postponement of the transfer, and approving thereof 197 " 8. The Colonial Secretary to the Governor-General, transmitting copies . of the two last- mentioned letters 198 May 12. Dominion Act to amond and continue 32 and 33 Vic, cap. 3, and to establish and provide for the Government of the Province of Manitoba. (38 Vic, cap. 3) 198 June 23. Imperial Order in Council for the admission of Rupert's Land and the North-Westem Territory into the Dominion 200 Schedules referred to in above Order in Council 203 Dec. 29. Report of the Minister of Justice (Canada), advising Imperial legis- lation for confirmation of Manitoba Act, and for authorizing the establishment and the alteration of the limits of Provinces .... 203 XVI. CONTENTS. I: ■ I ■ ':■ i PAOl. 1871. June 29. " Tho British North America Act, 1871," in which the suggeRtions of the above Report are embodied. (Imp. Act, 34 and 35 Vic, cap. 28) 206 July 14. Memorandum of Hon. J. Sandfield Macdonalci, Attorney-General of Ontario, calling attention to the necessity which exists for the settlement of the boundary and for the appointment of a Com- mission 206 " 17. The Lieutenant-Governor of Ontario to the Secretary of State (Canada), urging the settlement of the boundary line between Ontario and the North-West Territory 206 " 20. Ths Secretaiy of State (Canada), hereinafter called the Secretary of State, to the Lieutenant-Governor of Ontario, acknowledg- ing his despatch 207 " 28. Order in Council (Canada), appointing Eugene E. Tache, Esquire, as Boundary Commissioner on behalf of the Dominion 207 " 31. The Secretary of State to the Lieutenant-Governor, advising him of the appointment of Mr. Tach6 as such Commissioner 207 Sep. 19. Order in Council (Ontario), appointing the Hon. William Mc- Dougall as Ontario Boundary Commissioner 208 '• 20. The Assistant Provincial Secretary to the Hon. W. McDougall, advising him of his appointment 208 " 21. The Lieutenant-Governor to the Secretary of State, advising him of such appointment 208. " 22. The Hon. W. McDougall to the Assistant Provincial Secretary, accepting the appointment 209 " 26. The Acting Under-Secretary of State to the Lieutenant-Governor, acknowledging his despatch of the 21st inst 209 Oct. 1. Report of J. S. Dennis, Dominion Surveyor-General, to Sir John A. Macdonald, Minister of Justice, on the question of the boun- dary between Ontario and the North-West Territory 209 List of papers and maps accompanying the above report 213 Nov. 28. Order in Council (Canada), setting forth that the ascertaining and fixing of the boundary line is of much consequence and should be expedited, and recommending that no licenses or patents for land in the disputed territory be granted pending settlement. . 21J " 30. The Secretary of State to the Lieutenant-Governor, enclosing the foregoing 214 1872. Jan. 4. Order in Council (Ontario), respecting above subjects and the in- structions proposed to be given to the Dominion Commissioner. 214 CONTENTS. XVU. PA(». 1872. Jan. 6. The Lieutenant-Governor to the Secretary of State, referring to the subject of patontH of lands in the diaputed territory ; concur- ring in the view that it is of consequence that the fixing of the boundary should be expedited ; and requesting a draft of the inntructions proposed to be given by the Dominion Govern- ment to their Commissioner 216 " 11. The .Secretary of State to the Lieutenant-Governor, acknowledging the above 215 Mar. 5. The Acting Assistant Provincial Secretary to th'i Hon. W. Mc- Dougall, asking for his report, etc 216 " 9. The Hon. W. McDougall to the Provincial Secretary, .'espec^-ing his action under his Commission, and promising to sabmit a pre- liminary memorandum 216 " 1 1. Report of Sir John A. Macdonald, Minister of Justice, respecting the draft of instructions to be given to the Dominion Commissioner. 218 Draft of instructions annexed to the above report 218 " 12. Order in Council (Canada), respecting the draft instructions, and recommending that a copy be sent to the Government of Ontario. 219 " 14. The Secretary of State to the Lieutenant-Governor, transmitting copy of draft instructions 220 " 15. The Secretary of State to the Lieutenant-Governor, substituting a tracing for that which accompanied the draft of instructions and requesting return of the old one 220 " 19. The Lieutenant-Governor to the Secretary of State, acknowledging despatches and retuining tracing as requested 220 " 19. The Acting A.ssistant-Secretai-y to the Hon. W. McDougall, request- ing him to submit his further report 221 Preliminary memorandum of the Hon. W. McDougall on the subject of the Western Boundary of Ontario 221 " 25. Order in Council (Ontario), advising that the Government of Canada be informed that the line claimed by Ontario is very different from the one defined in said draft instructions, and that the Ontario Commissioner be instructed to abstain from taking any further action 226 " 26. The Provincial Secretary to the Hon. W. McDougall so instruct- ing him 227 26. The Lieutenant-Governor to the Secretary of State, transmitting Order in Council, and advising him that the Commissioner for Ontario had been instructed to abstain from any further action under his commission 227 B xviil CONTENTS. (■■iiii PAOB. 1872, April 6. The Secretary of Stat« to the Lieutenant-Qovernor, acknowledging the above 227 " 9. Order in Council (Canada), rcconinionding that the Government of Ontario be invited to state their viowg &h to the location of the boundary line 228 ** 10. The Secretary of State to the Lieutenant-Qovernor, with the pre- ceding, and asking for a description of the boundary line suggested on behalf of Ontario 229 *' ** 19. Order in Council (Ontario), claiming (as per description annexed .,.< thereto) as Western boundary the meridian of the source of _ I the Mississippi, and for Northern boundary a line north of the Height of Land ; but submitting that there are grounds for ,,, , , contending, with former (ilovernments of Canada, that the Western limit is further West, and that if the line suggested is not accepted the Province will not be bound 229 Proposed description above referred to 230 ** 19. The Lieutenant-Governor to the Secretary of State, transmitting copy of the foregoing Order in Coiincil 230 ** 22. The Secretary of State to the Lieutenant-Governor, acknowledging same 230 •" 24. The Secretary of Public Works (Canada) to the Secretary of State, transmitting accounts for maintenance of Police Force at Thunder Bay, and for advances in respect of Court House at Prince Arthur's Landing, and requesting that they be pre- sented to the Government of Ontario for payment 231 *' 26. The Secretary of State to the Lieutenant-!. rnor, forwarding said accounts 231 May 1. Report of the Minister of Justice, recommending the reference of the question of boundary to the Judicial Committee of the Privy Council of England, and the establishment of some joint system by way of provisional arrangement as to lands in the interim 231 " 16. Order in Council (Canada), approving of foregoing report 232 " 16. The Secretary of State to Lieutenant-Governor, enclosing the two preceding documents, and asking concurrence in their recom- mendations , 232 May 3L Order in Council (Ontario), expressing regret that the Government of Canada is not prepared to negotiate for conventional boun- daries ; proposing refei-ence to arbitration and the placing of the disputed territory within the limits of Ontario for criminal purposes, pending a settlement ; and recommending that the Commissioner of Crown Lands take action with a view to establishing some provisional arrangement as to lands 233 •i m CONTENTS. fix. cnowledging vernment of ;atiou of the ith the pre- iindary line on annexed le source of ne north of groundit for El, that the e suggested 230 230 231 ransmitting :nowledging ^y of State, Force at House at ey be pre- forwarding 231 reference ttee of the some joint nds in the 231 It 232 g the two ir recom- 232 vernment nal boun- ing of the criminal that the view to 233 PAOI. 1872. May 31. The Lioutonant-Oovernor to the Secretary of State, enclosing copy of the above Order 234 June I. The Secretary of State to the Lioutnaant-Oovernor, acknowledging same 23^ •• 10. Secretary of Public Works (Canada) to Secretary of State, enoloning accounts of moneys disbursed for maintenance of Police Force at Thunder Bay, and requesting them to be forwarded to the Ontario Oovernment for payment 23& " 13. The Secretary of State to the Lieutenant-Governor, enclosing the above accounts 23f) " 28. The Lieutenant-Governor to the Secretary of State, with cheques in payment of expenditure on Court House at Prince Arthur's Landing 23(> " 26. Order in Council (Ontario), respecting the matters above referred to, and pointing out that whilst tlie Government of Canada in claiming these payments admit the title of Ontario to the terri- ' tory westward of Thunder Bay, yet that Government is at the ' ' : ■ ',< - same time proposing, as westerly boundary, a line which would deprive tlie Province of the territory in question 236 July 2. The Under-Secretary of State to the Lieutenant-Governor, ac- knowledging despatches relating to the accounts and the receipt of cheques 237 " 1 .5. Bank of Montreal deposit receipt for the moneys in question 237 " 24. The Secretary of Public Works (Canada) to the Provincial Secretary, enclosing duplicate receipt 237 Nov. 7. Order in Council (Canada), respecting matters dealt with by Order in Council (Ontario) of 3l8t May last; re-affirming the view that the boundary of Ontario is, on the north, the Height of ■ Land and, on the west, the meridian of the junction of the Ohio and Mississippi; and renewing proposals for reference to the Judicial Committee of Privy Council 238 *' 12. The Secretary of State to the Lieutenant-Governor, transmitting copy of the foregoing Order in Council 239 " 25. Report of the Secretary of State, recommending that no patents or licenses for land be granted at the head of Lake Superior, pending settlement of boundary, and suggesting that the Gov- ernment of Ontario should in like manner refrain .... . . 239 1873. Jan. 8. Extract from the Speech of the Lieutenant-Governor at the opening of the Legislature 240 " 20. Address of the Legislative Assembly for the production of Mr. Cauchon's memorandum and Chief Justice Draper's report and certain papers on the boundary 240 r ^ii n ]|'^ If .' i ii 1 n^ XX. CONTENiS. PACK. 1873. Jan. 31. The Lieutenant-Governor to the Secretary of State, enclosing copy of the resolution, and asking for the papers 240 Feb, 3. The Secretary of State to the Lieutenant-Governor, acknowledging ing the same 240 Mar. 14. The Lieutenant-Governor to the Secretary of State, calling attention to his despatch and requesting reply 241 " 18. The Secretary of State to the Lieutenant-Governor, advising that cer- tain of the documents asked for were not in the possession of the Government, and directing where to find copies 241 Dec. 26. The Secretary of State to the Lieutenant-Governor, calling attention to the Order in Couucil, 7th November, 1872, and requesting a decision as to the proposed reference to the Judicial Committee 242 1874. Jan. 8, Extract from the Speech of the Lieutenant-Governor at the opening of the Legislature 242 Mar. 23. Resolutions of the Legislative Assembly (Ontario), approving of a reference to arbitration, or to the Privy Council of England, in the discretion of the Lieutenant-Governor in Council, and of the adoption of a provisional boundary lino 242 Jane 2. Report of the Minister of the Interior, recommending the adoption of a provisional boundary line 242 " 3. Order in Council (Canada), approving of above report 243 " 5. The Under-Secretary to the Lieutenant-Governor, enclosing copy of the foregoing, and sugge.sting that the Ontario Government appoint a Commiseioner to meet the Minister of the Inter'ir to arrange for the adoption of such provisional boundary lino .... 244 " 26. Memorandum of Agreement for provisional boundary 244 ' July 8. Order in Council (Canada) approving of the above 245 " 9. Order in Council (Ontario) approving of the Agreement 245 " 10. The Lieutenant-Governor to the Secretary of State, transmitting a copy of such Order in Council 246 " 22. The Under-Secretary of State to the Lieutenant-Governor, trans- mitting a copy of the Order in Council of 8th instant 246 Nov. 10. Report of Hon. Adam Crooks, Member of the Executive Council (Ontario), reporting that the Dominion Government had con- sented to a reference to arbitration, and had nominated an arbitrator to act with Chief Justice Richards, nominated- on behalf of Ontario, such two arbitrators to agree upon a third j and recommending concurrent action for obtaining legislation for giving binding effect to the conclusions which may be arrived at 246 CONTENTS. XXI. FAGK. 1874. Nov. 12. Order in Council (Canada) approving of reference to arbitration, submitting the name of the Hon. L. A. Wilmot as Dominion Arbitrator, and recommending concurrent action for obtaining legislation as aforesaid '247 " 12. Extract from the speech of the Lieutenant-Governor at the opening of the Legislature 248 " 21. The Under-Secretary of State to the Lieutenant-Governor, enclosing copy of the Order in Council of 12th inst 248 " 21. The Under-Secretary of State to the Hon. L. A. Wilmot, advising him that he had been appointed Arbitrator 248 " 25. Order in Council (Ontario) approving of Hon. Adam Crooks' report of the 10th November 249 Dec. 3. The Assistant Provincial Secretary to Chief Justice Richards, noti- fying him of his appointment as Arbitrator 249 1875. Nov. 25. Extract from the speech of the Lieutenant-Governor at the opening of the Legislature 250 1876. Apr. 12. Dominion Act creating the district of Keewatin (39 Vic, cap. 2]) 250 Dec. 12. The Governor of the Hudson's Bay Company to the Secretary of State (Canada), with information relating to the boundaries of the Company's territories and the limits of their trade, and en- closing maps and documents for the purposes of the arbitra- tion 251 1877. Jan. 3. Extract from the Speech of Lieutenant-Governor at the opening of the Legislature 252 Feb. 28. Manitoba Act, defining the boundkries of that Province (40 Vic, cap. 2.) . . 252 Mar. 22. Messrs. BischofF, Bompas and Bischoff, Dominion Agents in Eng- land, to Secretary of State (Canada), reporting the results of their search of the records of the Hudson's Bay Company, and enclosing maps for the purposes of the arbitration 254 Sep. 26. Sir John Rose to Hon. A. Mackenzie, on the subject of searches made under his instructions at the Colonial, Foreign and Rolls Offices and in the Hudson's Bay Company's archives,, for docu- ments relating to the boundaripi, znd. advising that further search would be unattended with any result 257 Mr. McDermott to Sir John Rose, reporting that he had been en- gaged for some time in searching among public documents for papers or maps defining the western and northern boundaries of , , , ; , Ontario, with result of his search 257 1878. Jan. 9. Extract from the Speech of the Lieutenant-Governor at the opening of the Legislature 259 'J PAOI. 1878. Mar. 18. Mr. Scoble, Agent for Ontario, to the Attorney-General, on the re- , suit of his search in London and Paris for further evidence bearing on the boundaries of Ontario 259 Apr. 24. Memorandum of the Minister of the Interior, recommending that leases be put on the same footing as patents in regard to the provisional boundary line 262 " 29. Order in Council (Canada) approving of above 262 May 1. The Under-Secretary of State to the Provincial Secretary, enclosing the two preceding documents 262 " 3. The Assistant Provincial Secretary to the Secretary of State, ac- knowledging same 263 " 7. Report of the Attorney- General of Ontario, recommending that leases be put upon the same footing as patents in regard to provisional ^ boundary line 263 " 9. Order in Council (Ontario) approving of above report 264 " 11. The Assistant Provincial Secretary to the Secretary of State, enclos- ing copies of the two preceding documents 264 " 13. The Under-Secretary of State to the Minister of Interior, enclosing copies of the three last-mentioned documents 265 ,j " 27. Memorandum of the Deputy Minister of Justice, advising the pro- curing of copies of statements submitted by the Hudson's Bay Company to the Law Officers in 1849, and of their opinion thereon • • " " 265 " 29. The Under-Secretary of State to the Governor-General's Secretary, in regard to procuring such copies 265 July 31. Order in Council (Ontario) approving the recommendations that Chief Justice Harrison be appointed arbitrator in the room of the Hon. W. B. Richards ; that the award of the three arbi- trators, or a majority of them, be taken as final ; and that concurrent action with the Government of the Dominion be had in obtaining legislation thereon 266 " 31. Order in Council (Canada) approving the selection of Sir Francis Hincks (in place of Hon. L. A. Wilmot, deceased), and of Sir Edward Thornton and Chief Justice Harrison as arbitrators, and recommending that their award be final and conclusive . . 266 Statement of the Case of the Province of Ontario, respecting the westerly and northerly boundaries ; prepared by the Hon, Oliver Mowat, Attorney-General of the Province , . . . . 267 Statement of the Case of the Dominion ; prepared by Hugh Mac- Mahon, Q.C 277 Supplement to the Case of the Dominion 298 1878. 1879. J 'I ^ CONTENTS. XXIU. PAQK. 1878. Aug.1-3. Report of proceedings before the Arbitrators 304-370 ^ Argument of the Attorney-General of Ontario, counsel for the 1 . ; Province 304 Argument of Mr. Hodgins, Q.C., counsel for the Province. ... 2M Argument of Mr. MacMahon, Q.C., counsel for the Dominion . . 338 Argument of Mr. Monk, counsel for the Dominion 363 The Attorney-General of Ontario in reply 369 " 3. The Award of the Arbitrators 370 Dec. 31. The Provincial Secretiry to the Secretary of State, advising that a measure will be introduced at the approaching session of the Legislature to give effect to the award made by the arbitrators, and trusting thb,t the same legislation may be had at Ottawa ; and asking for maps, field notes, etc., relating to the awarded territory 371 1879. Jan. 8. The Under-Secretary of State to the Provincial Secretary, acknow- ledging the same 371 " 9. Extract from the Speech of the Lieutenant-Governor at the opening of the Legislature, calling the attention of the House to the settlement of the boundaries by the Award 372 Mar. 11. Ontario Act respecting the northerly and westerly boundaries of the Province (42 Vic, cap. 2) 372 May 2. The Assistant Provincial Secretary to the Secretary of State, enclos- ing the documents bearing on the subject of the boundaries, to assist in introducing necessary legislation 373 Sep. 23. The Assistant Provincial Secretary to the Secretary of State, respecting the necessary legislation to give effect to the award of the arbitrators ; reviewing the question of boundary ; and repeating the request for maps, Held notes, etc., relating to the awarded territory 373 " 25. The Under-Secretary of State to the Provincial Secretary, acknow- ledging the above communication 377 Dec. 1 9. The Provincial Secretary to the Secretary of State, calling attention to the despatch of 31st December, 1878, as yet unanswered, and intimating that in view of the award having " definitely settled" the boundaries of the Province, the provisional arrangement is considered to be at an end 377 1 8i>0. Jan. 8. Extract from the Speech of the Lieutenant-Governor at the opening of the Legislature 378 XXIV. CONTENTS. I i^ , :i :!i PAOK, 1880. Jan. 20. Report of the Minister of Justice advising the disallowance of the '•I Ontario Act respecting the administration of justice in t}^e ■y. •^•:r.-in\i}. ,y northerly and westerly parts of Ontario (42 Vic, cap. 19), 'Mb «■;■ unless the same be repealed within the time limited 378 ^ , ,, .,^^tj,, Appendices to the above report : ' ' . -1 . i. ;». -•?; "A."' — Memorandum of J. S. Dennis as to boundary 381 '' ."B." — Extracts from a former report of the Minister of Justice . on a Bill passed in British Columbia for establishing Min- ing Courts 381 '''■'"''" ' *' '^ •' " C." — Extracts from a report of the Minister of Justice en a '"" '■ *'»'J'*^' *»^-" ■^- former Act of Ontario respecting Algoma 382 Feb. 12. Order in Council (Canada) approving of the above report 384 " 14. The Under-Secretary of State to the Provincial Secretary, transmit- ting copy of the Order in Council last mentioned 384 " 14. Address of the I^egislative Assembly of Manitoba to the Governor- General, representing that it would be advisable to enlarge the boundaries of that Province, and that they had already, at the I jf.jj . j;a;;; suggestion of the Privy Council of Canada, passed an Act to ..M. . p -^jwi pjQyj^g foj. gygi^ enlargement 385 " 17. The Under-Secretary of State to the Provincial Secretary, with copy "'• '•' " • - of report of the Minister of Justice of 20th January last, with "f '■ - its Appendices . 385 Mar. 3. Resolutions of the Legislative Assembly (Ontario) respecting the boundaries 386 ■•' " 13. The Secretary of State to the Lieutenant-Governor, enquiring . whether the Ontario Government intend to address to the ' ^ ' '■' ''' Dominion Government any communication with reference to / ■ ' '^' the report of the Minister of Justice of 20th January last. . . . 387 " 15. Report of the Attorney-General of Ontario reviewing the report of ■; ' ' the Minister of Justice of 20th January last, on the question of the disallowance of the Ontario Act respecting the administra I ."^ -V-.', y. tion of justice in the northerly and westerly parts of Ontario 388 " 16. Order in Council (Ontario) approving of the above report 392 " 15. The Lieutenant-Governor to the Secretary of State, enclosing copies of the two documents last mentioned 392 " 17. Further report of the Minister of Justice, withdrawing some of hie objections to the Act in question in view of the above report of the Attorney-General, and recommending the disallowance notwithstanding 393 " 22. Order of the Governor-General in Council, disallowing the Act. .. . 394 CONTENTS. XXV. PAOB. 1880. Mar. 22. Certificate of the Governor-General of date of receipt by him of the Act 394 " 22. The Secretary of State to the Lieutenant-Governor, transmitting the order of the Governor-General in Council of this date 394 *' 25. The Lieutenant-Governor to the Secretary of State, requesting him to forward a copy of the report of the Minister of Justice, alluded to in his last communication 395 " 30. The Secretary of State to the Lieutenant-Governor, forwarding same 395 Apr. 15. Mr. Lyon, Stipendiary Magistrate, to the Deputy of the Attorney- General (Ontario), respecting the division of the disputed terri- tory for Division Court purposes 395 " 23. The Attorney-General of Ontario to the Minister of Justice, on the subject of the administration of justice and of the license laws in the disputed territory, and enclosing a draft Bill 396 Draft Bill enclosed in the preceding letter : An Act for the admin- istration of justice in the territory in dispute, etc 397 May 7. Dominion Act respecting the administration of criminal justice in the territory in dispute between the Governments of Ontario and the Dominion. (43 Vic, cap. 36.) 400 Petition of the inhabitants of Rat Portage, etc., to the Lieutenant- Governor, for the establishment of a Division Court at Bat Portage 401 " 28. Order in Council (Ontario) establishing two Division Court divi- sions in the disputed territory west of the meridian of the most easterly point of Hunter's Island 402 July 31. Imperial Order in Council uniting to the Dominion all territories in British North America not already within its limits, except- ing Newfoundland 402 1881. Jan. 13. Extract from the Speech of the Lieutenant-Governor at the opening of the Legislature 403 Feb. 1. The Attorney-General of Ontario to the Minister of Justice, again urging the necessity of legislation for confirmation of the award, and to make further provision for the administration of justice, and to recognize the authority of the Ontario Govern- ment to deal with the land and timber in the disputed territory ; and enclosing new draft Bill to supply certain omissions in former Ajts 403 Draft Bill enclosed in the foregoing letter : An Act to make fur- ther provision respecting the Administration of Justice in the Territory in dispute, etc < . . . . 404 ill ;,. ! § 11 XXVI. CONTENTS. PAQK. 1881. Feb. 7. The Minister of Justice to)the Attorney-General of Ontario, acknow- ledging above letter and promising attention 406 Mar. 3. Resolutions of the Legislative Assembly of Ontario, regretting that the Award has not been confirmed by the Dominion Far- t, «w 1.. .'i. liament, nor its validity recognized by the Dominion Govern- s ment, and re-affirming the determination of the House to sup- port the Government in all necessary steps to sustain the awarded rights of the Province 406 " 4. Manitoba Act to provide for the extension of the Boundaries of that Province (44 Vic, cap. 1) 407 " 4. The Lieutenant-Governor to the Secretary of State, with copy of resolutions of the Legislative Assembly of 3rd March instant. . 407 " 7. The Under-aecretary oJ State to the Lieutenant-Governor, acknow- ledging the above 408 " 15. The Lieutenant-Governor to the oecretary of State, protesting against the Bill introduced in the Dominion Parliament, pro- viding for the extension of the boundaries of Manitoba, as an ' ' ' ' act of gross injustice to Ontario ; urging its modification ; and ' calling attention to the injuries occasioned to the inte~' sts of Ontario by the delay in confirming the Award 408 " 16. The Under-Secretary of State to the Lieutenant-Governor, acknow- ledging the above despatch 410 ■ " 18. Amendments to the Bill for the extensiqn of the boundaries of Manitoba, moved in the House of Commons by Messrs. Mills, Dawson, Blake and McDougall respectively, and having in view the limitation of the eastern boundary of Manitoba 410 " 21. Dominion Act, to provide for the extension of the boundaries of Manitoba (44 Vic, cap. 14) 412 " 21. An Act to continue in force, for a limited time, the Act forty-third Victoria, chapter thirty-six, relating to the Administration of Criminal Justice in the territory in dispute (44 Vic, cap. 15). . 413 Apr. 1. The Under-Secretary of State, in reply to petition from Rat Portage for the establishment of a Court of Civil Jurisdiction 413 " 30. Mr. Lyon, Stipendiary Magistrate, to the Deputy of the Attorney- General (Ontario), enclosing the foregoing letter 414 ]*^: y 6. Lecture of Sir Francis Hincks, one of the Arbitrators, on the subject of the Boundary Award, and setting forth the grounds upon which the Arbitrators arrived at their decision 414 Sep. 30. Mr. Lyon, Stipendiary Magistrate, to the Attorney-General of On- tario, respecting the disputed jurisdiction of the Ontario Divi- sion Court at Eat Portage , 431 CONTENTS. XXVU. . . PAOK. 1881. Nov. 1. Report of the Attorney-General of Ontario in general review of the Boundary Question 432 Dec. 31. The Lieutenant-Governor to the Secretary of State, calling attention to the unfortunate condition of the disputed territory in the absence of confirmation of the award ; requesting to be informed what the best terms are to which the Government of the Do- minion is prepared to agree ; and alluding to the administra- tion of justice and the dealings of the Dominion authorities with the lands and timber in the disputed territory 461 1882. Jan. 12. Extract from the Speech of the Lieutenant-Governor at the opening of the Legislature this year 466 " 13. Extract, being the third paragraph of the resolutions proposed for the Address in reply to the Speech of the Lieutenant-Governor, with reference to the boundaries 466 " 26. Amendment moved to this paragraph 466 " 26. Amendment to the amendment (carried) 467 " 27. The third paragraph as amended 467 " 27. The Secretary of State to the Lieutenant-Governor, with proposals respecting the boundary question and the administration of justice in the disputed territory 468 Feb. 18. The Lieutenant-Governor to the Secretary of State, in reply to the above 472 Mar. 9. Resolutions of the Legislative Assembly respecting the boundary question 485 " 9. Amendments proposed to the above resolutions 487 *' 14. Return to an address of the House of Commons (Cansula), for state- ment of timber and other licenses and grants by the Dominion Government within the disputed territory west of the meridian of the most easterly point of Hunter's Island (formerly known as the westerly Provisional boundary line of Ontario) 489 Apr. 4. Resolutions of the House of Commons (Canada) with reference to the boundary dispute 490 May 17. Dominion Act to amend and further to continue in force the Act forty-third Victoria, chapter thirty-six, respecting the admin- istration of criminal justice in the territory in dispute, etc. (45 Vic, cap. 31) 491 I i Mil CORRECTIONS. Page 84, line 8 from foot, insert " [9th]" after "5th." •' 127, line 21 from top, read "follow." " 370, line 22 from top, insert " nearest " before " line." NO] 1i i '/'. <1, CORRESPONDENCE. PAPERS AND DOCUMENTS, OF DATES FEOM 1856 to 1882 INCLUSIVE, BELATIXO TO THE NORTHERLY AND WESTERLY BOUNDARIES OF THE PROVINCE OF ONTARIO. PrirUed hy Order of the Legislative Assembly of Ontario, of 9ti„ March, 1882. ;'• -"^.'l/ '"/i.k>. ii} .i'-»tt •■•" ..n ,'..^1 The Secretary of State for the Cotnsequences, should rosity or the justice Jstions of boundary fore, been so little length. 1 at the time were serious embarrass- i matters of detail, by the fact, that iniporttnce, it can Qdian Territories " I's Bay Company, lifficult to conceive y, if the principal dian Territories" 670. e Charter of the lifficult but abso- stent renders the nsider and rebut distinct condi- )f the donor. iscoveries of the Jnditions result- le case. of the donor, it 1 or discovered, t never become e : it is further ortions of what ''hich condition, that some part did or did not hy the second 1 being less ex- s all countries ts, and to limit vould be a con- extends to all 3ugh Hudson's 1 from extend- ssessed by the )ressed in the Charter in relation to undiscovered territories, but it is emphatically so as regards the then state of the rights and possessions of Christian Powers. While the King, therefore, is 80 careful, at lepst in the wording of the document, not to infringe upon the rights of others already acquired, it can scarcely be supposed that he meant to infringe upon the rights of others to acquire what then belonged to none. The inference is altogether against the supposition that King Charles meant by his Charter to deny the right of any other civilized nation to make further discoveries and appropriate the countries discovered, and even if he had so intended it, he had not the power to alter the law of nations in this respect. Besides, the Charter is expressly one of discovery as well as trade, etc. ; the advantages granted to the "adventurers" are incidental and subordinate to that greater object, but there could be no discovery on their part wherever they were preceded by prior discovery and possession on the part of the subjects of any other Christian Prince. The right of discovery is and was so well established, and wherever considered of any importance, has been so jealously watched that volumes of diplomatic controversy have been written on single cases of dispute, and the King of Great Britain could not by his Charter annul the recognized law of nations, or limit in any degree the right of other States to discover and possess countries then unknown. It may even be considered ex- travagant to affirm that he could convey a right of property to territories not then, but which might afterwards become his or his successors' by the prior discovery and possession of the Company themselves, his subjects: were it necessary to dwell upon this point, it could easily be shown that most of the territories now claimed under the Charter which were not discovered at that date, the Company were not afterwards the first nor were any other British subjects the first discoverers of; that, in fact, except the Coppermine River, the Company never discovered anything or penetrated beyond the Coasts and Conines of the Bay (to which perhaps they at that time justly considered their rights re- stricted) for upwards of a hundred years after the date of their Charter, and that when they did so penetrate, the only discovery they made was that the whole country in the interior had been long in the peaceful possession of the subjects of another Christian Prince. But the position as regards discovery after the date of the Charter, it is unnecessary to dwell upon, particularly as an adverse title can be proved prior to the date of the Charter, and that too sanctioned by treaty. The early discovery and occupation of the country in and about Hudson's Bay are, as in many other cases, shrouded in a good deal of obscurity. The British claim as the first discoverers of the whole coast of this part of North America, in the persons of John and Sebastian Cabot, about the year 1497 ; but it is contended on the other hand that their discoveries did not extend to the north of Newfoundland, which still retains the name they gave it, and which they supposed to form part of the main land. It is said, indeed, that the Cabots penetrated to a very high latitude far to the north of the Straits now bearing the name of Hudson ; but it must be remarked that there appear to be no authentic i-ecords of the two voyages of the Cabots, their journals or observations. There appears to be only hearsay evidence of what they did, or where they went, fold afterwards at second-hand to third parties. The voyages of the Cabots, therefore, although they arc matters of history, not admitting of any reasonable doubt, in a general way, as to their having reached the coast of America, lose much of their force as the bases of specific territorial claims, from the want of any record of their proceedings. Did they ever land 1 If so, where t What observations did they make 1 Did tliey take formal possession ? etc. The French claim through fishermen of Brittany, who established fisheries on the coast as early as 1504, and through a map published by Jean Deny, of Honfleur, in 1506. The map would be valuable if any authentic copy of it be extant. There does not appear to be any such record of the operations of the Breton fishermen as would fix precisely Ogilby, the spot where their trade was carried on, though a British geographical work, London, 1071. published in 1671, with a niaj. .ttached, fixes it at Hudson's Straits, naming the country after them, on the south side of the Straits and within the Bay. The next navigator through whom the French claim is maintained is John Verezzani, who visited the country by order of Francis the First of France, in 1523-4. This is the first voyage, in 10 MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857. III behalf of either France or England, of which any authentic and circumstantial record exists, as written by the na 'igator himself, who gave the country the name of New France. In 1534 Jacques Cartier's discoveries commenced, and these are so well known that it is unnecessary to say more of them. Thus, then, it appears tliat the Cabots' voyages, unsustained by any authentic record, affording no 'ueans of basing even a probable surmise as to whethtjr so much as a landing was effected, formal possession taken, or any act done to constitute the assumption of sovereignty or of territorial dominion, comprise the only grounds on which England can base a claim to the country north of Newfoundland, prior to the voyage of Jacques Cartier. Apart, therefore, from the questi . of " benejlcialinterests " ( i use the expres- sion of a British diplomatist) which were acquired by France, com: '^. ncing with the discoveries of Cartier, the preponderance of admissible evidence ij. altogether in favour of French discovery of that part of the continent between Newfoundland and Hudson's Bay. But even if the question rested altogether between the unauthenticated disco- veries of the Cabots and the commencement of settlement by Cartier, it would not be inappropriate to assume the British view of a similar question as maintained in the Oregon dispute, in the following words : — *' In the next place, it is a circumstance not to be lost sight of, that it (the discovery by Gray) was not for several years followed up by any act which could ve it value in a national point of view ; it was not in truth made known to the world either by tlte discoverer himself or by his Government." The next Tilnglisli attempts at discovery commenced in 1553, when Willoughby penetrated to the north of Hudson's Bay, which, however, he did not discover or enter. This was nineteen years after Jacques Cartier'? first voyage, and was followed by various other attempts at finding a north-west passage, all apparently directed to the north of Hudson's Straits until 1610, the pei'iod of Hudson's voyage, in which ho perished after wintering in the Bay which bears his name : but by this time it must be observed that Canada was colonized by the French. In 1540 De Roberval was made Viceroy of Canada, the description of which as given in his commission included Hudson's Bay, though not then of course known by that name. L'Escarbot gives a full description of Canada at the period of De La Roche's ap- pointment in 1598 as follows : — " Ainsi notre Nouvelle France a pour limites du c6t6 d'ouest les terres jusqu' k la mer dite Pacifique au de9a du tropique Ju cancer ; au midi les iles de la mer Atlan- tique du cote de Cuba et I'lle Espagnole ; au levant la mer du nord, qui baigne la Nouvelle France ; et au Septentriou cette terro, que est dite inconnue, vers la mer ^lac^e jusqu' au Pole Arctique."-* Notwithstanding failures and difficulties, France continued the effort to colonize Canada, and in 1598 De La Roche was appointed Governor of the whole of Canada as above described ; in 1603 or 1604 the first exclusive Charter was granted for the fur trade of Canada up to the 54° of north latitude ; in 1608 Champlain founded the City of Quebec ; and in 1613 he accompanied his Indian allies, to the number J between two and three thousand, up the Ottawa and by Lake Nipissing and the French River, to war with a hostile nation at the Sault Ste. Marie. It must now be observed that the great incentive to the colonization of Canada was the enormous profits of the fur trade, with- out which it is scarcely likely that such persevering efforts would have been made for that purpose while so many countries with more geaial climates remained in a manner unappropriated. Tadousac, at the mouth of the Saguenay River, was the first important post estab- lished by the French on the St. Lawrence ; it was the entrepot of the fur trade before Quebec was founded, and continued to be so afterwards. This will not be deemed extra- * Therefore Nev France has for boundaries on the WEtst the Pacific Ocean within the Tropic of -Cancer ;_ on the south the iRlands of the Adantio towards Cuba and Hispaaolia ; on the east the Northern Sea, which washes its shores, embracing on the north the lands called (Jnknown, towards the Frozen Sea, tip to the Ar-^'o Pole. MEMORANDUM OF THK HON. JOSEPH CAUCHON, 1857. 11 [ordinary when it is considered that the Sag'ienay River afforded the best means of access [into the interior, and was the best inland route, in fact is the best canoe route yet, to the [Great Bay now bearing the name of Hudson. There is indeed no authentic record of [any of the French having made an overland journey to the Bay at so early a period, but when it is considered at what an early date the Coureurs dea Bois traversed the whole country in search of peltries, how readily they amalgamated with the Indians, who in that locality were in friendly allir-nce with them, and when it is also considered what extra- fordinary journeys the Indiana undertook, &n instanced by the war carried into the enemy's [country at the Sault Ste. Marie, already referred to, the presumption is that the fur [traders of Tadousac not only enjoyed the trade of the Great Bay, but must also have penetrated very far in that direction, if not to the Bay itself, a journey at the most of less distance and not greater difficulty than that whicH Champlain successfully accom- plished with an army, while it had the strong incentive of profit to stimulate it. It is not necessary, however, to prove that every corner of the country known to the world as New France or Canada had been first visited by the actual possessors of the region so known. However strong the probabilities, therefore, of the Coureura dea Boia having been in communication with the great northern Bay before the visit of Hudson in 1610, or of Button, who succeeded him in 1612, it is not necessary to base any argument thereon ; nor is it necessary to dwell on the reputed voyage of Jean Alphonse, of Saintonge, in 1545, which, although quoted by French historians, does not appear to be sufficiently authenticated. For, granting that the rights accruing from discovery resulted from the voyages of Hudson and Button, these discoveries were practically abandoned, in fact were never dreamt of being followed up by way of occupation, the finding of a north- west passage having been their sole object ; but waiving even this point, it will be found that the rights of France were made good by international treaty long before the Charter of Charles the Second was granted. It will be seen from L'Escarbot's description, and those contained in the commissions of the Governors already referred to, that France claimed the whole conntry extending to the north of Hudson's Bay, her title resting in the first instance upon the discoveries already mentioned, of which those of Verezzani, Cartier, and Champlain are of unques- tioned authenticity, t,; which they had added, when L'Escarbot wrote, in 1611, the title resulting from actual possession in the shape of permanent settlement. England, on vhe other hand, claiming under Cabot's discovery, denied the right of France generally to the whole, and practically to the more southerly parts, where she endeavoured to plant settle- ments of her own, in which she was successful at a period somewhat later than the French. The fact is, each was trying to grasp more than they could take actual possession of ; and if mere discovery of parts of a continent without actual possession or settlement were made the basis of permanent rights, neither of the contending parties would perhaps have had any right at all. Gradually the state of the actual possessions of the two Powers settled down into a sort of intelligible shape, though without any very distinct boundaries, the most northerly of the English possessions being known as New England, and all the country to the north thereof being known as New France or Canada, where the French only were in possession, there being no possession or settlement of any kind to the north of them. Still, had England colonized Hudson's Bay at that period and been successful in keeping actual possession of it, she would just have had the same right to do so that she had to colonize New England. That England persevered with extra- ordinary energy in trying to find a norfcn-west passage there can be no doubt, nor does it appear that France, though publicly claiming the country, made any objection ; but neither country made the most distant attempt at settlement or a<^tual occupation of those remote and inhospitable regions at that period. In 1615 another expedition was made into Hudson's Bay, in search of a north-west passage, by Baffin and By lot. In 1627 the Quebec Fur Company was formed under the auspices of Cardinal Eichelieu, and an exclusive Charter granted to them for the whole of New France or Canada, described as extending to the Arctic Circle. In 1629 Quebec was taken by the British, as were also most of the other principal towns founded by the Prench, in Acadia and Nurembega (now Nova Scotia and New Brunswick), which were 12 MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857. then Provinces of New France, the two nations being then at war. In 1631 Fox and Jamea, on two different expeditions, prosecuted a further search for a north-west passage in Hudson's Bay, and from the latter of these navigators the southerly portion of the Bay takes its name. At this period the authenticated voyages of the English into Hudson's Bay were Hudson ill 1610, Button in 1612, Bylot and Baffin in 1615, and Fox and James in 1631 ; the numerous other expeditions having been apparently directed to the north of Hudson's Straits. At the same time, the extent of New France or Canada, as claimed by the French, was publicly known throughout the civilized nations of Europe. It is not neces- sary to say that that claim was admitted by Great Britain ; it is sufficient that it was Dwn. British autliorities even of a later period, it must be observed, have contended aat the French were intruders in 4merica altogether in violation of the title accrued through the discoveries of the Cabots, and had no right whatever to any part of it until acquired by treaty. It therefore becomes immaterial whether the claims of the French were disputed or not, so far as they were afterwards confirmed or a title created by Treaty. In 1632 peace was concluded, and by the Treaty of St. Germain-en-Laye, Canada or New France was relinquished to the French without any particular designation of its limits, and the British forces were to be withdrawn from the places they had taken, which being the most important, including the seat of Government, might almost be said to have amounted to the conquest of the whole country. Admitting, then, that but a disputed title of discovery had previously existed on either part — nay, admitting more, that the right vested by prior discovery was in Eng- land, this Treaty sets the matter at rest as regards all that was at that time called by the name of New France or Canada. There is indeed no getting behind this Treaty, of which the Charter afterwirds granted by Charles the Second was in fact, but for the saving clause it contains, a violation, and Canada might well be content to rest her case here as against a Charter, which, referring to a country previously guaranteed by the Treaty to a foreign power, is expressly conditioned (as a Charter of discovery) not to interfere with what belonged to that other power. If, as is asserted by some English writers, France had no rights in America but such as she acquired by Treaty, what, it may be asked, were the limits of the Territory she acquired by the Treaty of St. Germain-en-Laye, if not all that she claimed under the name of New France \ It must be observed, too, that Cham- plain, the Viceroy of Canada, was made prisoner when Quebec was taken in 1629, and carried to England, where he remained for some time, and that the very year in which the Treaty was entered into, he published a work, containing a map of New France, by which Hudson's Bay was included in the country so called. Can it then for a moment be supposed, with Champlain, the Viceroy of New France, a prisoner in their hands, and their flag floating in triumph from the battlements of its capital, that the British Govern- ment and the diplomatists who negotiated the Treaty were ignorant of the meaning attached to the terms " Canada " or " New France," or could attach any other meaning, to those terms than that which Champlain's published maps of a previous date indicated, and with which the descriptions of other French writers, whose works were known throughout Europe, coincided 1 Can it be supposed that in the negotiations preceding the Treaty, Champlain's views of the extent or boundaries of his Viceroyalty were wholly unknown, or that the British diplomatists meant something less by the appella- tion than what was known to be understood by France % If, indeed, something less than the known extent of country called New France had been agreed upon, some explanation would undoubtedly have been contained in the Treaty, or if there had been any misunder- standing on the subjoct, vhe map which issued the same year, in Champlain's work of 1632, would at once have been made a cause of remonstrance, for, coming from the Chief Officer of the Colony, who was re-appointed to or continued in his office after the Peace, and published in Psius under the auspices of the King, it could not be otherwise looked upon than as an official declaration of the sense in which France regarded the Treaty. Even, then, if the rights of France were wholly dependent upon international Treaties, her right became as good by the Treaty of St. Germain-en-Laye to the shores of Hudson's Bay as to the shores of the St. Lawrence. If she had rights before, the Treaty confirmed MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857. ^, 18 Hudson's Bay were and James in 1631; le north of Hudson's I, as claimed by the pe. It is not neces- fBcient that it was v^ed, have contended if the title accrued any part of it untii lims of the French f a title created by eviously existed on 30very was in Eng- t time called by the lis Treaty, of which but for the saving 8t her case here as by the Treaty to a I ic interfere with sh Ihem ; and if she had no rights before, the Treaty created them ; and in either case, the bffect was as great in the one locality as the other. Every further step, however, in the listory of the country will only tend to show that even if there had been no such Treaty IS that of St. Germain-en-Laye, the Charter could not be sustained in opposition to the ifights of France. I The provisions of the Treaty of 1632 seem to have been respected for a period of Ihirty-six years, when, in 1668, the next English expedition entered the Bay, which was [he first trading voyage ever made by British subjects to the Bay, and which resulted in the formation of the Hudson's Bay Company and the grant of the Charter two years ifter. In saying that this was the first purely commercial enterprise of the British in [udson's Bay, it is not meant to be implied that no trade was had with the Indians by those engaged on the former expeditions, but that such enterprises were undertaken with the definite object of reaching the Pacific, and without the least idea of any practical jjoccupation of, or trade with the country. The British having ceased any attempt upon Hudson's Bay from the time of Fox and I James' voyages and the Treaty of St. C*ermain-en-Laye, for a period of thirty-six years, (it now remains to be so^n what the character of this their next attempt was, and what ! had been the circumstances of the country in the interim. That the name of Canada or New France continued to attach to the whole country during that period is indisputable ; the French published maps of these times leave no doubt upon the subject j and when we find the French not only designating the country by these names in their maps published by royal authority, but also entering upon the practical occupation of the since disputed parts of the country so designated, the carrying on of the trade with it both by sea &nd land, and the establishing of missions, all within the period intervening between the Treaty of St. Germain-en-Laye and the granting of the Charter, or the voyage which preceded the Charter, and all without interference on the part of Great Britain, we must conclude that the rights of the French were incontestable, and that if ever an adverse claim had been prefex'red, it was considered to have been abrogated by the Treaty. In 1656 the first exclusively commercial sea voyage was made into Hudson's Bay by Jean Bourdon, who found the trade in furs so profitable that others immediately followed. The first missionary establishment was made there in 1663 by La Couture, who went over- land by direction of D'Avaugour, Governor of Canada, who had been twice solicited by deputations of Indians from the Bay to send them missionaries ; and now the French being fully established in the trade and in the occupation of the country both by sea and land, of the coast and of the interior, the English " Adventurers " first appear upon the scene, in a business way, under the countenance of two Canadians, De Grozelier and Badisson, who having been already engaged in the trade of the Bay, and having failed in procuring certain privileges they desired from their own Government, went to Eng- land and induced some Englishmen to join them in a trading voyage in 1668, which was so successful that, as already stated, it resulted in the formation of a Company, and the grant in 1670 of one of those extraordinary Charters which were so much in vogue in those days that the whole of the Continent of America, north of the Gulf of Mexico, known and unknown, may be said to have been covered by them, and some of it doubly so, if the vague and ambiguous descriptions, of which this was the most vague, could be said to mean anything. This was the origin of the Hudson's Bay Company, and they immediately com- menced to build forts and establish themselves in the trade, but no sooner was this known in France than orders were given to expel them. Accordingly a desultory warfare was kept up for a number of years between the Canadian traders and the Company, in which the latter were nearly expelled, but again recovered themselves and strengthened their position, when it became necessary to take more eflfective means for their expulsion. Troops were accordingly despatched from Quebec overland for that purpose, under the Chevalier de Troyes, who commenced his work very efi'ectually by taking the principal Forts of the Company. It must be observed that this was in 1686, in time of ;peace between Great Britain and France, and yet these proceedings Were not made a cause of war, which in itself would strongly imply an admitted right on the part of Franco to extirpate the Company as trespassers upon her territory. " -' War having afterwards broken out, the Forts on Hudson's Bay were successively taken and retaken till the Peace of Kyswick, in 1697, put a stop to hostilities, at which time the British appear to have been possessed of Fort Albany only, the Canadians having possession of all the other establishments and the trade of the Bay. By the Treaty of Ryswick, Great Britain and France were respectively to deliver up to each other generally whatever possessions either held before tho outbreak of the war, and it was specially provided that this should be applicable to the places in Hudson's Bay taken by the French during the peace which preceded the war, which, though retaken by the British during the war, were to be given up to the French. There could scarcely be a stronger acknowledgment of the right of France to expel the Company as trespassers upon her soil, for it is impossible to construe tho Treaty in this particular otherwise than as a justification of the act. Moreover, commissioners were to be appointed in pursuance of the Treaty to deter- mine the rights and pretensions which either nation had to the places in Hudson's Bay. Had these commissioners ever met, of which there appears to be no record, there might have been a decision that would have set the question at rest as to which were " rights " and which were "pretensions." The commissioners must, however, have been bound by the text of the Treaty wherever it was explicit. They might have decided that France had a right to the whole, but they could not have decided that Great Britain had a right to the whole. They would have been compelled to make over to France all the places she took during the peace which preceded the war, for in that the Treaty left them no dis- cretion. The following are the words of the Treaty : — " But the possession of those place» which were taken by the French, during the peace that preceded this present war, and were retaken by the English during the war, shall be left to the French by virtue of the foregoing article." Thus the Treaty of Ryswick recognized and confirmed the right of France to certain places in Hudson's Bay distinctly and definitely, but it recognized nO' right at all on the part of Great Britain ; it merely provided a tribunal to try whether she had any or not. So strongly has the Treaty of Ryswick been interpreted in favour of France in thi& particular, that some historians merely state the fact, that by it she retained all Hudson's^ Bay, and the places of which she was in possession at the beginning of the war. The commissioners having apparently never met to try the question of right, things remained in statu quo, and the most reliable accounts show that the Hudson's Bay Com- pany retained possession of Fort Albany only from that time up to the Ti'eaty of Utrecht, in 1713. Now, whatever the commissioners might have done, had they ever passed judg- ment on the cause the Treaty provided they should try, they could not have given Fort Albany to the British, for it was one of the places taken by the French during the pre- ceding peace, and retaken by the British during the war, and therefore adjudged in direct terms of the Treaty itself to belong to France. Thus then it will be seen, that the only possession held by the Hudson's Bay Com- pany during the sixteen years that intervened between the Treaty of Ryswick and the Treaty of Utrecht was one to which they had no right, and which the obligations of the Treaty required should be given up to France. Here, therefore, for the second time an International Treaty interposes a barrier against the pretensions of the Company. By the Treaty of Utrecht, in 1713, the whole of Hudson's Bay was ceded tO' Great Britain without any distinct definition of boundaries, for the determining of which commissioners were to be appointed. No ofi&cial statement of the action of such com- missioners is at present available for reference,* but it is stated that no such action threw any additional light upon the subject. Indeed no such commissions ever have done much to determine boundaries in unexplored countries, as witness, for instance, the dis- pute so long pending on what was called the North-Eastern boundary question between '* [It has since appeared on o£BciaI authority that no boundary was settled by ohe commissioners.' G.E.L.] MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857. 15 es a barrier on between amisaionera. — Great Britain and the United States, which was finally conipiomibtid by tho Treaty of Washington, concluded by Lord Ashburton ; and again, the difficulties arihing out of the same ambiguous description, and which so many commissions endeavoured in vain to settle, between the Provinces of Canada and New Brunswick. There is no denying the fact that the ancient boundaries of Canada or New Franco were circumscribed by the Treaty of Utrecht, and it is difficult to determine precisely the new boundaries assigned to it The general interpretation adopted by the British geographers, as the country gradually became better known from that time up to the final cession of Canada, was that the boundary ran along the high lands separating the waters that discharged into the St. Lawrence from those that discharge into Hudson'^ Bay to the sources of the Nipigon River, and thence along the northerly division of the same range of high lands dividing the waters flowing direct to Hudson's Bay, from those flowing into Lake Winnipeg, and crossing the Nelson, or rather (as it was then known) the Bourbon River, about midway between the said T. j,ke and Bay, thence passing to the west and north by the sources of Churchill River, etc. ; no westerly boundary being any- where assigned to Canada. It may indeed be held doubtful whether the terms in which Hudson's Bay was ceded could possibly be interpreted to mean more than the Bay and its immediate environs, but whatever the legitimate interpretation of the Treaty, the actual acceptation of it gave to Prance at least all to the south of the dividing high lands above described, for she remained in undisputed possession thereof until the final cession of Canada in 1763 ; while on the other hand the acceptation of it on the part of Great Britain, as proved by the same test of occupation, confined her at least to the north of the said high lands, if not to the very shore of the Bay, beyond which her actual posession never extended. It must here be observed, however, that the Tifeaty of Utrecht conferred nothing upon the Hudson's Bay Company. It gave them nothing that was not theirs at the Treaty of Ryswick, and the Treaty of Ryswick gave them nothing that was not theirs before. The Charter obtained from King Charles the Second may have granted all that was his (if anything) to grant in 1670, but it would have required a new Charter to have grantad what France ceded to Great Britain forty-three years afterwards. No doubt the Treaty of Utrecht had this important bearing upon the Company, that although it conferred no territorial rights upon them, the territory it conferred on Great Britain was then inacces- sible to British subjects by any other route than through the Bay and Straits of Hudson, over which (if over anything) the Company's Charter gave exclusive control, and over which, whether rightfully or wrongfully, they have exercised such control. Matters continued in this state as regards the territorial rights of Great Britain and France for fifty years more, when Canada was ceded to Great Britain by the Treaty of Paris in 1763. During this period the Ki'dson's Bay Company occupied the posts on the coasts of the Bay, and lliese only, having maae no attempt to penetrate into the interior or occupy even what the British geographers of the time construed the Treaty of Utrecht as conferring, not upon the Company, but upon Great Britain : while on the other hand the French had covered that part of New France which still remained to them (accord- ing to the British authorities*) with posts or forts from the Lake of the Woods to the lower end of Lake Winnipeg, and remained in peaceable possession thereof, and in the most active prosecution of the trade until the whole country was given up to the British by the Peace of Paris, in 1763 ; by which, however, nothing was conferred upon the Hudson's Bay Company any more than there had been by the Treaty of Utrecht, the rights acquired by these treaties being simply in common with other British subj' -^ts. For a few years, about the time of the transfer of Canada from French to British dominion, the trade of the western territories languished from a very natural want of confidence on the part of the Canadians by whom it had, up to that time, been carried on, and who now owed a new allegiance and had to seek a new market for the produce of their industry ; but a fresh impulse was soon given to it, first by separate individuals,, then by small companies, and finally by the great North-West Company of Montreal,, * [Jeflferys (a British authority subsequently quoted in this paper) mentions, in addition to the poata- here^ref erred to, two of the French posts on the Saskatchewan.— G. £. L.] i 4 16 MEMORANDUM OF THE HON. JOSEPH CATJCHON, 1857. who not only spread thfalr operations over all the territories formerly possessed by the French, but explored new countries to the north and west, while the HudHon's Bay Com- pany had not yet made a ningle ostablishmeat beyond, the immediate coniluea of the sea coaac. The temporary depression of the fur trade at the period of the transfer of Canada to British dominion was, of course, advantageous to the Hudson's Bay Company, for the Indians inhabiting those parts of Canada where the French posts were established around Xiuke Winnipeg and its tributaries, would naturally seek a market in Hudson's Bay during the comparative cessation of demand at the establishments in their midst. But when confidence was restored, and a now impulse was given to the trade in the north-west of Canada, the supply wa3 again out off from Hudson's Bay, and now the Company for the Jiral time entered into competition with the Canadian traders in the interior, where their first establishment was made in 1774. And why, it may ba asked, did not the Hudson's Bay Company oppose the French Canadians in the interior a few years earlier, as well as they opposed them (principally the same people) now that they had become British sub- jects] The answer is very simple. During French dominion they could not do it because the country belonged to France, but by the cession of the country to Great Britain, the Company had acquired the same right as any other British subjects to trade in it, and they availed themselves of that right accordingly. From this period an active competition was carried on between these companies, but the Canadian North- West Company were everywhere in advance of their rivals. They were the first to spread themselves beyond the limits of the French, over the prairies of the Saskatchewan ;* they were the first to discover the great river of the north, now tearing the name of McKenzie, and pursue its course to its discharge in the Frozen •Ocean ; they were the first to penetrut-e the passes of the Northern Cordilleras and plant their posts upon the shores of the Pacific ; and with such indomitable energy did they carry on their business, that, at the period of Lord Selkirk's interference, they had upwards of 300 Canadians, " Voyageura," employed in carrying on their trade to the west of the Rocky Mountains. It would be a useless task now to enter into a detail of the attempt made by the Earl of Selkirk, as a partner of the Hudson's Bay Company, to ruin thrir opponents. It is only necessary to refer to it here as the first endeavour made to exercise the privileges contended for under the Charter over those territories which had not been acquired by Great Britain till the conquest or cession of Canada. Lord Selkirk having become princi- pal partner, and acquired a predominant influence in the affairs of the Hud.son's Bay Company, it was determined to assert the assumed privileges of the Company '.o an •extent never before attempted j and for this purpose a grant of the country on the Red River was made to his lordship, who commenced in 1811-12 to plant a colony there.t A Governor was appointed, the colonists and the servants cf the Conipany were armed and drilled, and in 1814 the claims of the Company to soil, jurisdiction and exclusive trade were openly asserted, and for the first time ».ttcu'i.ted to be enforced by the actual expulsion of the North-West Company, several of whose forts were surprised and taken, their people being made prisoners, their goods seized, and the channel o2 their trade obstructed by the interception of their supplies. Overawed somewhat for the moment by this bold assumption of authority, the Canadian Company appear to have avoided the contest, but when forced into it they proved the stronger j the Governor was killed in leading an attack upon a party of the North-West Company, who turned and gave battle, and the colony was dispersed. This final catastrophe occurred in the spring of 1816, while in the meantime Lord Selkirk was organizing a more formidable force than had • [It 13 now historically established that the French, before the cession of Canada, occupied the whole country of the Saskatchewan. They had several forts on that river ; one of them at its source in the Kooky Mountains. — G. E. L.] + "Who have been the aggressors in their different quarrels, I am not able to determine ; however, pre- vious to 1811, at which time Lord Selkirk became connected with the Company trading to Hudson's Bay, and sent settlers from Euroije to that country, no great differences existed between the servants of that Com- pany and the fur traders of Canada. There might be difficulties between different posts, but seldom attended with serious consequences.*' — Despatch of Lieutenant-Governor Gore to Earl Bathurst, 9th September, 1816. MEMORANDUM OF THE HON. JOSfci'H CAUCHON, 1857. 17 hitherto taken the field. Having procured a cotnniiHsion of the peace from the Govern- ment of Canada, ho engaged a large force of the disbaijded DeMeuron Holdiera, equipped them in military style, procured arms, ammunition, artillery even, and started for the interior. It must be allowed that it was a somewhat anomalous course for the Qovernnient of Canada to have pursued, to permit such a force to be organized ; but when it is con- sidered that groat ignorance prevailed as to the state of those remote localities, that it was known that there had been disturbances and bloodshed the previous year ; when also Lord Selkirk's position is considered, and that he went as a pacificator profossedly to main- tain peace, it may not be deemed so extraordinary that so much confidence should have been placed in him, for he was oven granted a sergeant's guard of regular troops. It is not the object here, however, to enter into a discussion of the unfortunate occurrences of that period, or the particular action of the Provincial Government, and the circumstances are only referred to, to show that Canada actually exercised the jurisdiction, that Lord Sel- kirk's destination was the Red River Colony, and that he deemed it necessary to fortify himself doubly with commissions as a Canadian magistrate, first for Canadian territory, and second (under 43 Geo. 3rd) for the " Indian territories" so that those who resisted his authority on the ground that they were in Canada, he could judge under the one com- mission, and those who resisted on the ground that they wore in the Indian territories, he could judge under the other, while the judicial and governmental attributes claimer for the Company would have served as a third basis of operation ; and thus with the actual force at his disposal there was a pretty fair prospect of the Hudson's Bay Com- pany being made the absolute masters of the north-vest country. At the Sault Ste. Marie, however. Lord Selkirk met intelligence of the death of Governor Somple and the dispersion of his colony ; nevertheless, ho still proceeded with his force as far as Fort William, on Lake Superior, where he arrived about the 11th of August, 1816, and soon after arrested the partners of the North-West Company, who were there at the time, and took possession of the whole establishment, including the merchandise and stores of the Company. The course pursued on this occasion, as appears by documents published at the time, shows the character of the pretensions set up at that period — pretentions which were then and not till then presumed upon. It will be observed that Fort William was the principal depot of the Canadian mer- chants, through which all their «arter was granted to the Hudson's Bay Company for the colonization of the island, coui eying a grant of the soil. Neither the Act nor the Charter, however, confers any jurisdiction upon the Company. The Company were required by the terms of the grant to colonize the Island within five years, failing which the grant was to become void. It was also stipulated that the grant might be recalled at the time of the expiration of their lease for the Indian Terri- tories upon payment to the C -upany of the expenses they might have incurred, the value of their establishments, etc. General Remarks. Before concluding this Report, it is desirable to offer a few general remarks upon the subject, which the policy of the Company has kept out of view, and which consequently is not generally well understood. The Hudson's Bay Company claim under three separate titles, the first of which is the Charter of Charles II., granted in IQTO, forever. The second is the lease orginally granted in 1821 to them, in conjunction with the North-West Company of Canada, for the Indian Territories. The third is their title to Vancouver's Island, as explained. Under the first, they base their claim to government, jurisdiction, and right of soil over the whole country watered by rivers falling into Hudson's Bay ; at least, such is the theory, although they have abandoned it south of the present southerly boundary of Canada at Rainy Lake, the Lake of the Woods, and a' ng the 49th parallel, to the south of which those rivers take their rise. Under the seco they claim exclusive trade from the Rocky Mountains west to the Pacific, and from the sources of the McKenzie River to the Frozen Ocean. There is no dispute about their title on this head, but their lease expires in two years, and it is the renewal of this lease for a further period of twenty-one years which they now seek to obtain. It will be seen by the question of boundary already treated, that the country about Red River and Lake Winnipeg, omi>any, and their HUcuoHHorH, that thty and their Huccessora, and their factorH, Ht^rvants, and agents, for them and on their behalf, and not otherwise, shall forever hereafter have, use and ei\joy, not only the whole, entire and only trade and traffic, and th« whole, entire and only liberty, use and privilege of trading and trafficking to and from the territory, limits and places aforesaid, but also the whole and entire trade and traffic to aud from all havens, bays, creeks, rivers, lakes, and seas i .0 v hich they shall hnd entrance or pas- gage, by water or land, out of the territories^ > mi 41 or places aforesaid, and to aad with all the natives and people inhabiting within tho territories, limits and pla<;eH aforesaid, and to and i» tli all other nations inhabiting any of the coasts adjacent to the said terri- tories, limits iuid places, which are not granted to any of our subjects." Prior to this Charter, there was li'"" " nothing done within Hudson's Bay in the way of taking any actual possession ot ..c territory gianted. The bay had been dis- Govored, several ships from time to time had entered it, and probably some interchange of ommoditioa with -^he Indians had taken place while the vessels remained within the Straits ; but nothing whatever was known of the interior. Charles the Second claimed — for it was no more than a claim — all the territory which the discovery of the Straits and Bay could confer on the British Crown. The French Crown in like manner had claimed, by reason of their actual settlement of Canada, and of their progroHsivo discoveries and trade, not only all the western territory, including that now in dispute, but even the Bay of the North, and thence to the Pole; but neither French nor English hod, in 1670, actually penetrated, so far as appears, within many hundred miles of the lied River. ''^ The settlements made by the Hudson's Bay Company were at first confined to tho^le on the shores of James' Bay, and at the Ohurchill and Hayes Rivers. Henley Horse, which is about 150 miles up the Albany River, was not erected before the year 1740. The Company afterwards erected Fort Nelson, which is laid down on the maps at aboul. 200 or 230 miles from the mouth of Churchill River, and the fort at Split Lake, which is represented as about 140 miles from the mouth of the Nelson River. It is believed that these two last-named forts are of comparatively modern erection, but that, at all events, for more than a century after the date of the Charter, these, together with the forts on or near the shores of the Bay, were the only settled posts of the Hudson's Bay Company. This throws some light upon the view which the Company practically adopted, of the extent of their territories. In many written documents they treat Hudson's Straits and Bay as the governing and principal matter, iu reference to or for the purpose of securing which the grant of territory was madi to thciTi. In a petition a>idre5. such a manner that they had nothing to object or desire Englisli elusion of the peace (in 1715), made a settlement at the head of Albany River, upon which the Company's principal factory was settled, whereby they interrupted the Indian trade from coming to the Company's factories. It was therefore propo-ad and desired, " that a boundary or dividend line may be drawn so as to exclude the French from coming anywhere to the northward of the latitude of 49°, except on the coast of Labrador ; unless this be done, the Company's factories at the bottom of Hudson's Bay cannot be secure, or their trade preserved." In all the foregoing documents it will be observed, that whether upon the peace of Ryswick, when English affairs looked gloomy, and those of France were in the ascendant, or after the Treaty of Utrecht, when the power of France was broken, the Hudson's Bay Company sought to have the boundary between the territories they claimed and those forming part of Canada, settled by some defined and positive line which was to be the result of negotiation, not then pretending that there was anything in their Charter which gave them a rule by which they could insist that the extent of their territories to the southward should be ascertained. Even in October, 1750, they entertained the same views, while at that time they were pushing their pretensions, both to the northward and westward, to the utmost limits. They state that the limits of the lands and countries lying round the Bay, comprised, as they conceived, within their grant, were aa follows : All the lands lying on the east side or coast of the said Bay, eastward to the Atlantic Ocean and Davis' Straits, and the line hereafter mentioned as the east and the south-eastward boundaries of the said Company's territories, and towards the north, all the l^nds that lie " on the north end or on the north side, or coast, of the said Bay, and expending from the Bay northwards to the utmost limits of the lands there towards the North Pole ; but where or how these lands terminate is at present unknown. And towards the west, all the lands that lie on the west side or coast of the said Bay, and extending from the Bay westward to. the utmost limits of those lands ; but where or how those lands terminate to the westward is also unknown, though probably it will be found they terminate on the Great South Sea. And towards the South all the lands that lie on the south end, or .south side of the coast of the said Bay, the extent of which lands to the south to be limited and divided from the places appertaining to the French in those parts, by a line," etc., describing the line from Cape Perdrix to the 49th parallel, and along that parallel westward, as in their proposals of August, 1719, excepting that they state the starting point to be in latitude 59|° N. They add, with regard to this boundary, that " to avoid as much as possible any just grounds for differing with the French in agreeing on those boundaries which lie nearest their settlements, it is laid down so as M leave the French in possession of as much or more land than they can make any just pretensions to, and at the same time leaves your memorialists but a very sjaall district of land from the south end of the said Bay necessary for a frontier." It is worthy of remark that this line would have given to France the southerly portion of the Lake of the Woods, Rainy River and Rainy Lake, which are now claimed as within the Company's territories. The foregoing extracts are deemed sufficient to establish what the Company con- sidered their territorial rights in reference to their oonnectioii with and proximity to Hnd- ijt 1 36 MEMORANDUM OF CHIEF JUSTICE DRAPER, 6tH MAY, 1857. ; S son's Bay itself, where they had planted their factories, and desired to attract the Indian trade. They certainly show that neither after the Treaty of Ryswick, nor that of Utrecht, when they stated the boundaries, they were either willing to submit to, or were desirous of obtaining, nor yet in 1750, when they set forth what they thought themselves entitled to claim under their Charter, did they ever think of assertir ^ a right to all the countries the waters of which flow into Hudson's Bay. Their claims to lands lying both northward and westward of the Bay are entirely at variance with any such idea. Sir J. Pelly, before a Committee of the House of Commons, in March, 1837, seems to have adhered to the views expressed in 1750, when he said "the power of the Company extends all the way from the boundaries of Upper and Lower Canada away to the North Pole, as far as the land goes, and from the Labrador coast all the way to the Pacific Ocean," though he afterwards explains that the Company claimed in fee-simple all the lands the waters from which ran into the Hudson's Bay. It is submitted, that if this latter claim were well founded, the further grant in the Charter of exclusive trade beyond the limits of the territories granted in fee-simple would give colour to the assertion of the " power " of the Company extending to the Pacific ; assuming that the word " pov/er " was used to designate the exclusive right of trade, and not the ownership of the territory. For if the Charter gives the fee-simple of the lands to the Rocky Mountains the Pacific is a " Sea," and Fraser's and McKenzie's are " rivers," in which *' entry or passage by water or land out of the territories " actually granted may be found ; though in such case the application for a license for the exclusive trade would, if the Charter be in this respect valid, have been unnecessary. The French Government, it appears, would not agree to the proposal which would have limited them to the 49th parallel. Colonel Bladen, one of the British Commis- sioners under the Treaty of Utrecht, wrote from Paris in 1719 in reference thereto : "I already see some difficulty in the execution of this affair, there being at least the differ- ence of two degrees between the last French maps and that which the Company delivered us." No settlement of the boundary could be arrived at. If the later claim of territorial limits had been advanced during this negotiation, there can be no doubt it woxild have been resisted even more strenuously than the effort to make the 49th parallel the boundary was, not merely by contending that the territory so claimed formed part of Canada, and had been treated as such by the French long before 1670, but also that the French King had exercised an act of disposition of them, of the same nature as that under which the Hudson's Bay Company claim, by making them the subject of a Charter to a Company under the Sieur de Caen's najae, and after the dissolution of that Company had, in 1 627, organized a new Company, to which he conceded the entire country called Canada. And this was before the Treaty of St. Germain-en- Laye, by which the English restored Canada to the French. In 1663, this Compi.ny sur- rendered their Charter, and the King, by an edict of March in that year, established a Council for administration of affairs in the colony, and nominated a Governor ; and about 1665, Monsieur Talon, the Intendant of Canada, despatched parties to penetrate into and explore the country to the west and north-west, and in 1671 he reported from Quebec that the " Sieur de Lusson is returned, after having advanced as far as 500 leagues from here, and planted the cross, and set up the King's arms in presence of seventeen Indian nations assembled on the occasion from all parts, all of whom voluntarily submitted themselves to the dominion of His Majesty, whom alone they regard as their sovereign protector." The French kept continually advancing forts and trading posts in the country, which they claimed to Le part of Canada. ; not merely up the Saguenay River towards James' Bay, but towards and into the teiTitory now in question, in parts and places to which the Hudson's Bay Company had not penetrated when Canada was ceded to Great Britain in 1763, nor for many years afterwards.* They had posts at Lake St. Anne, called by the older geographers Aleuimipigon ; at the Lake of the Woods ; Lake Winnipeg ; and two, * In the evidence given by the Honourable William M'Gillivray, on one of the North-West trials at York (now Toronto), in 1818, he stated that there were nn Hudson Bay traders established in the Inriian country about Lake Winnipeg or the Red River for eight or nine years after he had been used (as ,^ r;,riner is the North-West Company) to trade in that tountry. PAPER OF CHIEF JUSTICE DRAPER, 28TH MAY, 1857. 37 ermain-en- it is believed, on the Saskatchewan, which are referred to by Sir Alexander McKenzie in his account of his discoveries.* Enough, it is hoped, has been stated to show that the limits of the Hudson's Bay Company's territory are as open to question now as they have ever been, and that when called upon to define them in the last century, they did not advance the claim now set up by them ; and that even when they were defining the boundary which they desired to obtain under the Treaty of Utrecht, at a period most favourable for them, they designated one inconsistent with their present pretensions, and which, if it had been accepted by France, would have left no trifling portion of the territory as part of the Province of Canada. So far as has been ascertained, the claim to all the country the waters of which ran into Hudson's Bay, was not advanced until the time that the Company took the opinions of the late Sir Samuel Romilly, Messrs. Cruise, Holroyd, Scarlett, and Bell. Without presuming in the slightest degree to questiv^n the high authority of the eminent men above named, it may be observed that Sir Arthur Piggott, Sergeant Spankie, Sir Vicary Gibbs, Mr. Bearcroft, and Mr. (now Lord) Brougham, took a widely different view of the legal validity of the Charter, as well as regards the indefinite nature of the territorial grant, as in other important particulars. Of the very serious bearing of this question on the interests of Canada there can be no doubt. By the Act of 1774, the Province of Quebec is to "extend westward to the banks of the Mississippi, and northward to the southern boundary of the te-ritory granted to the Merchants Adventurers of England, trading to Hudson's Bay." And in the division of the Provinces under the statute of 1791, the line was declared to run due north from Lake Temisoaming " to the boundary line of Hudson's Bay ; " and the Upper Province is declared to consist of or include all that part of Canada lying " to the westward and southward of the said line." The union of the Provinces has given to Canada the boundaries which the two sepa- rate Provinces of Upper and Lower Canada had ; the northern boundary being the territory granted to the Hudson's Bay Company.! It is now becoming of infinite importance to the Province of Canada to know accurately where that boundary is. Plans for internal communication connected with schemes for agricultural settlements, and for opening new fields for commercial enter- prises, are all more or less dependent upon or affected by this question, and it is to Her Majesty's Government alone that the people of Canada can look for a solution of it. The rights of the Hudson's Bay Company, whatever they may be, are derived from the Crown ; the Province of Canada has its boundaries (sssigned by the same authority ; and now that it appears to be indispensable that those boundaries should be settled, and the true limits of Canada ascertained, it is to Her Majesty's Government that the Province appeals to take such steps as in its wisdom are deemed fitting or necessary ko have this important question set at rest. f t Papbr Relative to Canadian Boundaries, delivered by Chief Justice Draper to THE House op Commons Committee, May 28Tn, 1857. J On the 25th January, 1696-7, not long b( 'ire the Treaty of Ryswick (which was signed on the 20th September, 1697), the Hudi n's Bay Company expressed their "de- sire that whenever there should be a treaty of peace b. tween the Crowns of England and France, that the French may not trav -^1 or drive any trade beyond the midway betwixt Canada and Albany Fort, which we reckon to be within the bounds of our Charter." * [We have now authentic record of their hav>g had at 'east four posts on the Saskatchewan, of which one at its source. They had also posts on llainy Lake ; r • i;he Red River ; on a branch of the Assiiiiboine , »nd on Lake Dauphin. — G. E. L.] i [oii.:?a this was written evidence has been obtained eetablishing the shore line of Hudson's Bay as the northern boundary of Upper Canada.— G. E. L.] + Report Select Committee House of Commons (Eng.) on the Hudson's Bay Company, 1857, p. 378. i 38 TAPER OF CHIEF JUSTICE DRAPER, 28tH MAY, 1857. 'i'he 8''. Article of the Treaty of Ryswick shows that the French at that time set up a claim of right to Hudson's Bay, though that claim was abandoned at the peace of Utrecht,* and was never set up afterwards. In 1687, James the Second declared to the French Commissioners, MM. Barillon and Bonrepos, that having maturely considered his own right, and the right of his sub- jects, to the whole Bay ^nd Straits of Hudson, and having been also inlormed of the reasons alleged on the part of the French to justify their late proceedings in seizing those forts (Fort Nelso:i and Fort Charles), t which for many years past have been possessed by the English, and in committing several other acts of hostility, to the very great damage of the English Company of Hudson's Bay, His Majesty, upon the whole matter, did consider the said Company well founded in their demands, and, therefore, did insist upon his own right and the right of his subjects to the whole Bay and Straits of Hudson, and to the sole trade thereof." " The grants of the French King signify nothing to another prince his right, and they may name what they will in their grants, places, known or unknown, but nobody is so weak as to think that anything passeth by those grants but ^vhat the King is right- fully and truly possessed of or entitled to, for nemo dnt quod non habet is a maxim understood of all ; but whereas the French would have no bounds to Canada to the northward, nor, indeed, to any parts of their dominions in the world if they could." -- Extract from the Reply of the Hudson's Bay Company to the French Answer left mlh the English Commissioners, 5th June, 1699, under Treaty of xlyswick. In 1687 there were discussions between the English and French respecting the right to the Bay and Straits, in which it was, among other things, submitted on the j art of the Hudson's Bay Company as follows : " It shall not be the fault of the Company of Hudson's Bay, if their agents aud those of the Company of Canada do not keep vnthin their respective bounds, the one pretending only to the trade of the Bay and Straits abovementioned, whilst the other keeps to that of Canada ; that the forts, habitativ ns, factories and establishments of the English Company be restored, and their limits made good, as the first discoverers, possessors and traders thither." The Company having already waived the establishmert of a right to Hudson's Bay and Straits "from the mere grant and concessions of >' " operate to the prejudice of others that ha. e the right of ■ ; ^ . oil their side, it is again averred that His Majesty's oubj right to the coasts, bays, and straits of Hudson. *' The Hudson's Bay Company having made out His Majesty's right and title to all the bay within Hudson's Straits, with the rivers, lakes and creeks therein, and the lands and territories thereto adjoining, in which is comprehended Port Nelson as part of the whole." 10th July, 1700, — the Hudson's Bay Company proposed the following limits between themselves and the French, in case of an exchange of places, " and that they can- not obtain the whole of the Straits and Bay which of right belongs to them." 1. That the French be limited not to trade nor build any factory, etc., beyond the bounds of 53° N. or Albany River, to the northward, on the west main or coast, and, beyond Rupert's River, to the northward on the east main or coast. 2. 'he English shall be obliged not to trade nor build any factory, etc., beyond the aforetuJ ;?.v;tude of 53° N. or Albany River, or beyond Rupert's River, south-east towards Canada, oa any land wM.h belongs to the Hudson's Bay ('ompany. 3. As likewise that neither the French nor English shall at any time hereafter extendtheir bounces contrary to the aforesail limitations, . . . which the French may very r.kibonably con' ply with, for that tliy by such limitations will have all the country south-eastwan' ot* tt Albany Fort and Canada to themselves, which is not only the best and most ioriilf purt, but also a >nuch larger tract of land than can be supposed to 'ing, which, indeed, cannot ry and continued possession jTily are possessed of such a ■ At (.rigirtal right to the Bay as having been within the limits of Canada, but , result of the reverses they had suffered in the wars of Europe,— G. E. L.] * [Thay still niain*.i."n..] were compelled to cede ii lu. . + [This shonlo : 'J, '>'. soiling tAr«c forts (Albany Fort, Moose Fort, and Fort Charles or llupert)." See the Company's merooK.d to Queen Anne of 1711.— G. E. L.] .^.•^«t *fcji'^. PAPER OF CHIEF JUSTICE DRAPER, 28TH MAY IS^Y.^ 3» =?=>5f * •• • lie to the northward, and the Company deprived of that which was always their^Qdoubted right. , . *^. By this document it appears the French were insisting on having the limits^fit^^^d between York and Albany Fort, as in the latitude of 55° or thereabouts. ''■''*»^ 22nd January, 1701-2, the Lords of Trade and Plantations asked the Company totSM^ *' whether, in case the French cannot be prevailed with to consent to the settlement pr<>^\ posed on the 10th July preceding by the Company, they will not consent that the limitil', ' on the east side of the Bay be the latitude o* 52^°." This proposal would have given the '^ East Main River and Rupert's River to Canada. On the 29th January, the Hudson's Bay Company alter their proposals, offering the boundary on the east main or coast, to be Hudson's River, vulgarly called Canute, or Canuse River (which I take to be the river now marked on the maps as the East Main River) ; but, thoy add, should the French refuse the limits now proposed by the Company, the Company think themselves not bound by this or any former concession of the like nature, but must (as they have always done) insist upon their prior and umioubted right to the whole Bay and Straits of Hudson, which the French never yet would strictly dispute, or suffer to be examined into (as knowing the weakness of their -laim), though the first step in the 8th Article of the Treaty of Ryswiuk directs the doing of it. If either pro- posal haJ been accepted, the French would have had access to James' Bay. The first pro- position left them Moose River ; the second appears to have given up Rupert's River. In February, 1711-12, prior to the Treaty of Utrecht, the Hudson's Bay Company proposed that the limits between them and the French in Canada should begin " at Grim- mington's Island, or Cape Perdrix, in the latitude of 58^° north, which they desire may be the boundary between the English and French, on the coast of Labrador, towards Rupert's Laud, on the East Main, and Nova Britannia on the French River." That a line be drawn from Cape Perdrix to the Great Lake Mistassing, dividing the same into two parts, beyond which line the French were not to pass to the north, nor the English to the south. In August, 1714, they renewed their application for the settlement of the limits, adding to their former proposition, that from the Lake Mistassing a line should run south-westward into 49' north latitude, and that such latitude be the limit, and that the French do not come to the north, or the English to the south of the boundary. In August, 1719, in a memorial, they say that " the surrender of the Straits and Bay aforesaid has been made according to the tenure of the Treaty, at least in such man- ner that the Company acquiesced therein, and have nothing to object or desir further on that head." But they even then complained that since the conclusion of th peace, vii., in 1715, "the French had made a settlement at the head of Albany River, upon which very river our principal factory is settled, whereby they intercept the Indian trade from coming to the factories ; and will, in time, utterly ruin the trade, if not prevented. It is therefore proposed and desired, that a boundary or dividend line may be drawn so as to exclude the French from coming anywhere to the northward of tlie latitude of 49°, except on the coast of Labrador ; unless this is done, the Company's facte ies at the bottom of Hudson's Bay cannot be secure, or their trade preserved." This shows that the Com- pany there sought to establish an arbitrary boundary, and that the object of it was to secure the fur trade from the French. The English Commissioners made the demand to have limits established according to the prayer of the Hudson's Bay Company, and for the giving up the new fort erected by •the French ; adding a demand that the French should make no establishments on any of the rivers which discharged themselves into Hudson's Bay ; and that the entire course of the navigation of these rivers should be left free to the Company, and •<, such of the Indians as desired to trade with them. The precise terms of the instructions to the Commissioners hardly seem to liave con- templated the latter part of the demand, for they (the instructions of 3rd September, 1719) merely designate the boundaries beyond which the French and English respectively are not to cross They contain this passage, however : " But you are to take especial care in wording such articles as shall be agreed upon with the Commissioners of His Most Chris- n f-'-r. )si 40 EVIDENCE OF MR. WILLIAM M'D. DAWSON, 1857. tian Majesty upon this head, that the said boundaries be understood to regard the trade of the Hudson's Bay Company only." Colonel Bladen, on the 7th November, 1719, wrote to the Lords of Trade that the English Commissioners would that day deliver in the demand, and that he foresaw " some diflSculty in the execution of this affair, there being at least the difference of two^ degrees between the last French maps and that which the Company delivered us, as your Lordship will perceive by the carte I send you herewith." Colonel Bladen was right. After receiving the English demands, the French Com^ missioners, the Mar^chal d'Estr^es and the Abb6 Dubois, never met the English Commis- sioners again, and all the instances of the English Ambassadors failed to procure a renewal of the conferences. The Company were again called upon, on the 25th July, 1750, to lay before the Lords of Trade an account of the limits and boundaries of the territory granted to them. They replied, among other things, that the said Straits and Bay " are now so well known, that it is apprehended they stand in no need of any particular description than by the chart or map herewith delivered ; and the limits or boundaries of the lands and countries lying- round the same, comprised, as your memorialists conceive, in the same grant, are as fol- lows, that is to say : all the lands lying on the east side or coast of the said Bay, and extending from the Bay easward to the Atlantic Ocean and Davis' Strait, and the line here- after mentioned as the east and south-eastern boundaries of the said Company's territories; and towards the north, all the lands that lie at the north end, or on the north side or coast of the said Bay, and extending from the Bay northwards to the utmost limits of the lands : then towards the North Pole ; but where or how these lands terminate is hitherto unknown. And to^^ards the west, all the lands that lie on the west side or coast of the said Bay, and extending from the said Bay westward to the utmost limits of those lands ; but where or how thfsse lands terminate to the westwarf^ is also unknown, though pro- bably it will be found they terminate on the Great South Sea, and towards the south," thoy propose the line alreauy set out by them, before and soon after the Treaty of Utrecht stating that the Commissioners under that treaty were never able to bring the settlement of the said limits to a final conclusion ; but they urged that the limits of the territories granted to them, and of the places apperttiining to the French, should be settled upon the footing above mentioned. ill Evidence op Mb. William MoD. Dawson, before Committee of the Leqislativb ^qaauBLY of Canada, 8th June, 1857.* I am the head of the Woods and Forests Braiv;h of the Crown Land Department, and reside in Toronto j I never had any difficulty or quarrel with any one connected with the Hudson's Bay Company . Q. — Have you pii-» culaily stndied the titles under which the Hudson's Bay Company claim certain right-j if joil, j>ri.'ri"ction and trade, on this continent 1 A, — I have m&ae thl,^ M:bjc'. t ■\ particular object of study for many years, and have omitted no opportunity <>* aoquiriiic- information upon it, and although with more time than I could devote to it, and * mora extended research, much additional information could be obtained, I believe lha(, ii v,ouid only tend to fill up details, and strengthen and confirm the results of the iave?tigatioii I have already made. Q, — Will you state to the Oommittea the result of your investigation? A. — The result of my in\ istigation has been to demonstrate that in the Red River and Saakatchewati countries, th.j Hudson's JJay Company have no right or title whatever, except what thfy have in common with other British subjects. Wherever they have any possession or oc( upanoy there they are simply squatters, the same as they are at Fort William, Ia Cloche, Lake Nipissing. or any of their other posts in Canada. The Governmental attributc-s they claim in that country are a fiction, and their exercise a palpable infraction of law. • ScHS. Papers, C»ti., 1857, Vol. 15, No. 17. EVIDENCE OP MR. WILLIAM M'D. DAWSON, 1857. *l d the trade of jEGISLATIVB !ay Company I am no enemy to the Hudson's Bay Company, nor to any individual connected with it, and I think that there are, at the present day, extenuating circumstances to justify a great degree of forbearance towards them, when their position comes to be dealt with either judicially or legislatively. Illegal as it undoubtedly is, their present position is a sort of moral necessity with them. The first attempt of the Company, under Lord Selkirk's regime, to assume that position, was no doubt a monstrous usurpation, but it was defeated, though not till it- had caused much bloodshed. The Hudson's Bay Company and the Canadian traders (North-West Company) after- wards amalgamated, and then, in pursuance of a policy most dexterously planned and executed, carried the trade awaj' back into the interior, from the very shores of the lakes and rivers adjoining the settlements of Canada, and took it round by Hudson's Bay to keep it out of view, to lessen the chances of a new opposition springing up. They also gave out that it was their country — a fiction which the license of exclusive trade for the Indian territories helped to maintain — and they industriously published and circulated maps of it, as such, which being copied into other maps and geographical works, strengthened the delusion till it became very general indeed. When, therefore, by this means they had been left alone in these remote territories, without any intercourse with the organized tribunals or legitimate government of the country — an intercourse which their monetary interests forbade them to seek — it became a sort of necessity for them to establish a jurisdiction of their own. It is true that they have gone to an extreme in this matter which it would he difficult to excuse ; but in such a case it is hard to take the first stop and be able to s+op afterwards, more particularly when it consists in a total antagonism to existing law, or rather in assuming to themselves the functions of constituted authorities wh( .e they legally possess only the right of subjects and traders, in common with the re.s of the community. But having once assumed and exorcised such f- ^wers, and thereby made thi luselves amenable to the laws of the country, it is not to be wondered (it that they had sought to justify it on the pretence that they possess those powers of government which, doubtful at best, even in those localities where they have some show of title, are with M Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 A \ v 4^ O % %" c> 4is a %^ 46 EVIDEXCE OF MR. WILLIAM M'D. DAWSON, 1857. m troops at least were not to be used against the one to sustain the ridiculous pretensions of the other. Notwithstanding the stringency of these instructions, however, Lord Selkirk having a number of the disbevnded De Meuron soldiers in his pay, it was difficult for the regulars to resist being led along with them, to enter upon tho North- West Company's property, etc., and which involved them in legal difficulties, after thair return, from which it was not easy to extricate them. I have confined myself in the foregoing remarks to the Red River and Saskatchewan countries, which were the principal scenes of the disputes which have heretofore called for action, and it will be seen that the imperial authorities, the military authorities, and the courts of justice have all ignored the pretensions of the Hudson's Bay Company as regards those countries. The great danger in renewing the Company's lease of the Indian territories, however, would be that they might drop the pretence that the Red River, etc., is covered by their charter, and claim it as part of the Indian territories, a plea which, though erroneous, might be more easily sustained by technicalities, inasmuch as some of the remote parts of Canada, perfectly understood to be such, have, nevertheless, sometimes been designated as the " Indian countries," in official documents. 1 have not referred to the validity of the Company's Charter, either to deny or admit it ; I merely deny that it has effect on the countries I have spoken of. In support of this I have quoted more recent authorities, but for a more particular investigation of their title, its extent and origin, I beg to refer to a Report which I wrote for the Commissioner of Crown Lands, some months ago, the substance o£ which appears in the shape of a Memorandum in the Return to an Address of the Honourable Legisla- tive Assembly, dated 15th March, 1857, for certain papers connected with the Hudson's Bay question. It embodies the views I have entertained for many years,'and is the result of much careful study. Q. — Have you made the early and present boundaries of Canada a particular subject of study ; if so, state the result 1 A. — The early boundaries of Canada or New France included, I think, the whole of Hudson's Bay, for I find all that part of the country granted to a trading Company by the King of France, in a Charter somewhat similar, but forty-three years earlier than the Charter of the Hudson's Bay Company. I find the country also confirmed by Treaty to France, at St. Germain-en-Laye, thirty-eight years before the last named Charter j but the investigation of this part of the said subject is fully stateu in the Memorandum ' referred to. I find that from the Treaty of Utrecht, in 1713, to the Treaty of Paris, in 1763, th& boundaries between the French possessions in Canada and the British possessions in Hudson's Bay were not defined. The lines claimed by both parties are distinctly laid down on the map lately prepared by Mr. Devine, in the Crown Land Department. Both, it, will be seen, give the Red River and Saskatchewan to France, and the line laid down from British authorities is from those least favourable to French pretensions of that period. All the country south of that tine is of course what was ceded by France, as Canada, in 1763, and was in her undisputed possession up to that time. There was never any westerly limit assigned to Canada, either before or since the Treaty of Paris. The French claimed to the Pacific, though they never explored the whole way across, which, however, the Canadians (British and French) were the first to effect after the Treaty. SoniR British authorities of a more recent date claimed, under the Treaty of Utrecht,, from Hudson's Bay to latitude 49° as having been so determined by Commissioners ; but no such decision was ever given. I have searched every book I could find upon the sub- ject, and have communicated with those who have searched the best libraries of France and England with the same object, but no authorit^^ can be found for such a boundary. [The rest of the evidence of the witness relates only to the soil and climate of th» British territories north and west of Lake Superior to the Pacific. — G. E. L.] CHIEF JUSTICE DRAPER ON THE MISSISSIPPI AS A BOUNDARY. 47 lus pretensions of d Selkirk having b for the regulars pany's property, am which it was id Saskatchewan etofore called for ihorities, and the mpany as regards ritories, however, covered by their lOugh erroneous^ e remote parts of been designated to deny or admit i, more particular )rt which I wrote o£ which appears nourable Legisla- ith the HucUon's years,' and is the particular sul^ect ink, the whole of ing Company by ears earlier than .firmed by Treaty ed Charter ; but he Memorandum ms, in 1763, the sh possessions in ice distinctly laid [partment. Both, ^e line laid down ibenaions of that led by France, as Ime. There was [Treaty of Paris, [hole way across, effect after the [eaty of Utrecht,, imissioners ; but id upon the sub- braries of France \h a boundary. Id climate of thft Chief Jdstioe Draper tc the Frovinoial Seoretart, dated London, June 12th, 1857.''^ (Extract.) Although it certainly a'^pears to me, as a matter of legal inference, that the lan- guage of the Statute of 1774 (not varied by the Proclamation of 1791 1), leaves no ground for contending that the limits of the Province of Canada extend west of the westernmost head of the Mississippi River — yet it is desirable to have the decision of the J udicial Committee [of the Privy Council] on that point, as well as on the northern boundary j and if, as I confidently hope, the decision gives to Canada a clear right west to the line of the Mississippi, and some considerable distance north of what the Hudson's Bay Com- pany claim, there would be no obstacle in ascertaining the practicability of communication and laying out lands for settlement on Bainy River and Rainy Lake. The Governor of the Hudson's Bay Company to the Colonial Secretary. | Hudson's Bay House, 18th July, 1857. Sir, — I have the honour to acknowledge the receipt of your letter of the 15th instant, communicating a passage from the statement you have received from the Law Officers of the Crown, in reference to the question of the geographical extent of the ter- ritory granted by the Charter of the Hudson's Bay Company, and suggesting that such question might with great utility, as between the Company and Canada, be made the subject of a qiuui judicial enquiry, and desiring to be informed whether I think it probable that the Hudson's Bay Company would consent to appear before the Judicial Committee of the Privy Council, in the manner and for the purpose suggested. I have submitted this communication to my colleagues, the Directors of the Hudson's Bay Company, and as we are desirous to throw no obstacle in the way of settlement of the doubts that have been raised by the people of Canada, as to the extent of the terri- tory to which the Company are entitled under their Charter, we shall be prepared to recommend to our shareholders to concur in the course suggested. At the same time, you will not fail to see that other interests than those of the Company may be involved in the enquiry, as there are many persons, not now members of the Company, who have acquired by grants from the Company, or otherwise, a title to large portions of the land in question. Assuming, however, that the object of the proposed enquiry is to obtain for Canada land fit for cultivation, and the establishment of agricultural settlers, I would observe, that the Directors are already pi-epared to recommend to the shareholders of the Company to cede any lands which may be required for that purpose. The terms of such cessions would be a matter of no difficulty between Her Majesty's Government and the Company. The Board, havivig in view the present condition of the enquiry before the Committee of the House of Commons, and the agitation which prevails on the question in Canada, are desirous of availing themselves of the opportunity your letter affords, to state clearly, for your information, the principles which will guide them in their future proceedings. * Book of Arbitration Documents, p. 391. It is there stated that the original is in Department of Sec- retary of State at Ottawa. t [This Proclamation, as well as the Imperial Order in Council on which it is founded, have these words not contained in the Statute : "including all the territory to the westward and southward of the said line to the utmost extent of the country commonly called or known by the name of Canada."— G. £. L.] tSess. Papers, Can., 1869, Vol. 17, No. 7. 48 POSITION OF THE HUDSON'S BAY COMPANY IN 1857. u. ifr t '''M The Board will be ready to bow to any decision which Her Majesty's Government may consider it for the public interests to take with regard to the maintenance or abolition of the exceptional rights and trade of the Hudson's Bay Company, relying confidently on the justice of Her Majesty's Government, and of Parliament, for just compensation to the present stockholders, and a due consideration of the claims of their factors, traders, And servants in the Indian country, if the time shall have arrived in the opinion of Her Majesty's Government for the abolition of the monopoly. The present holders of the capital of the Company, 274 in number, are of the usual •class of persons holding stock in other chartered companies, who have invested their money on the faith of the Company's Charter, and in confidence of the permanent char- acter of their rights and property, and are in general indifferent to any other question in .the present discussion than the security of their capital and dividends. The situation of the factors, traders, and servants of the Company ia described in the evidence taken before the Committee. As no change in the condition or settlement of the country could well be carried into effect without their willing co-operation and assist- ance, their just claims must be considered in any new arrangements to be submitted to Parliament. As respects the Board of Directors, of which I have the honour to be Chairman, their situation is peculiar, and their future conduct must be guided by the disposition of Her Majesty's Government to support them in the future administration of their affairs. They have been rewarded so far, since the union of the Hudson's Bay and North-West Companies, by the success of their administration, as proved not alone by the results of their trade, but by the condition in which they will leave, if they now retire, the govern- ment of the whole Indian Territories entrusted to their care, as well as by the express approbation of every succeeding Secretary of State for the Colonies for the last thirty- «even years. Looking to the future, they will only consent to undertake the future charge of the Indian Territories, which would devolve upon them on the renewal of the license, on the faith of being firmly supported by Her Majesty's Government in maintaining their present establishments in full efl&ciency. It would be inexpedient, in their opinion, to «nter upon a new and further term of their administration without the fullest and most •explicit assurance of that support. The Directors have always considered that the settle- ment of 1821 was sanctioned by the Government and the Legislature, and the monopoly of the Hudson's Bay Company then re-established and extended, quite as much, if not snore, as the best instrument the Government could employ for the administration, -security, and peace of the Indian country, as for the advantage of the parties whoso interests were united by that settlement. These parties and these interests have been long since replaced by others, and are now represented by the present holders of the stock of the Company. We do not consider any further legislative measures nccassary at present for the government of the Indian Territories. The powers under the Charter have hitherto •proved suificient for the ordinary purposes of admini:: .ration, and the Government have full powers, under the Act of 1821, to appoint Justices and establish Courts, independent of the Company, when and where th«y shall think it expedient. All new establishments of this description will create expense, which must be paid by this country or by Canada, as neither the Bed River Settlement nor the Indian country have taxable means for the purpose. We beg to be allowed to add the expression of our opinion, that in whatever arrange- ments which may now be made for the f v ,ure government of the country, any mixed authority or combination of agents appointed to act with those of the Company will only weaken an administration which it is essential to strengthen in the present state of affairs. No competent persons would ba found to abandon civilized life to accept such situa- iiions, with such salary as will be found reasonable ; and if they could be found, the probability is that the want of sufficient occupation will soon engage them in antagonistic discussions with one another, not conducive to the general order or cordiality of the small •community whose affairs they will be sent to direct. INSTRUCTIONS TO DIRECTOR OF RED RIVER EXPLORING PARTY, 1857. 49 The Board is willing to remain in the exercise of its present functions, to concur'in any arrangements proposed by Government or Parliament, which will not interfere with or obstruct their power of independent management of the concerns of the Company ; and to give assistance and support to any magistrates appointed by the Government in endeavouring to maintain the present undisturbed state of the Indian Territories. But they will decline to undertake a divided administration of carrying on the government of the country, under the exceptional circumstances of the case, unless assured of the same cordial and unhesitating support from Her Majesty's Government which they have hitherto enjoyed. I have, etc., ' The Right Honourable Henry Labouchere, M.P. John Shepherd, Governor, Instructions to Mr. Gladuan, Chief Director of the Party enoaobd, under Authority of the Government of Canada, !N the Exploration of the Country between Lake Superior and the Red River, authorized by Order in Council of 18th July, 1857.* Secretary's Office, Toronto, 22nd July, 1857. Sir, — I have the honour to acquaint you that, confiding in your integrity, judgment and energy, together with your acquaintance with the Red River Territory, your knowledge of the communication with that country, and with the tribes of Indians which traverse it, His Excellency the Administrator of the Government has been pleased to appoint you to the cliief direction and control of the party about to be sent there. The party organized consists of the following : Mr. Gladman, Chief Director and Controller of the expedition, and his assistant. Professor Hind, Geologist and Naturalist, and his assistant. Mr. Napier, Engineer, with his assistant and staff-men ; and Mr. Dawson, Surveyor, with his assistants and chain-men. Also, such voyageurs or canoe-men as in your judgment may be necessary, the probable number of canoes being assumed at four, with four voyageurs in each ; such men to be selected with a view to their being capable of assisting the engineering and surveying branches of the expedition, as axe-men, etc., when required. The primary object of the expedition is to make a thorough examination of the tract of country between Lake Superior and Red River, by which may be determined the best route for opening, a facile communication, through British territory, from that lake to the Red River Settlements, and ultimately to the great tracts of cultivable land beyond them. With this view the following suggestions are offered for your guidance, so far as you will find them practicable, and supported by the topography. In the first place, after being landed at Fort William, to proceed by the present Hudson's Bay canoe route — by the Kamini&tiquia River, Dog Lake, Lake of the Thousand Islands, etc. — to Lac la Croix, and thence by Rainy Lake, Lake of the Woods, Winnipeg River to Lake Winnipeg, and up the Red River to Fort Garry. From Rainy Lake to Lake Winnipeg, the route as at present affords a good naviga- tion for boats of considerable size, with the interruption, however, of some short portages : but from Rainy Lake eastward to Lake Superior the route is very much interrupted, and rendered laborious, tedious and expensive by the great number of portages, some of considerable length, which have to.be encountered to avoid the falls and rapids in the ravines and creeks which this route follows. • SeBB. Papers, Can., 1868, Vol. 16, No. 3. 60 INSTRUCTIONS TO DIRECTOR OF RED RIVER EXPLORINO PARTY, 1857. For the establishment cf a suitable communication for the important objects aimed at, it is believed that the construction of a road throughout, from some point on Lake Superior, probably either at Fort William or at or near the mouth of the Pigeon Kiver to Rainy Lake, must be undertaken. To ascertain, therefore, at present, by general exploration, what the route for this road should oe, whether iu the vicinity of the Hudson's Bay route, or by the line of country in which lies the chain of waters from Kainy Lake to the mouth of Pigeon River, this question can obviously be only satis- factorily determined by the difficult portions of both being tested instrumentally ; but in either case, as the construction of such road would be a matter of time and much expense, it is considered necessary that the portages, etc., of either of the routes above described should be improved, so as to be made more available and facile, and to be auxiliary to the works of the road by facilitating the transport of men, supplies, etc. To -determine, therefore, the portages to be improved, and the best mode of doing so, and whether the present reaches of canoe or boat navigation may not be further extended by the removal of shoals or the erection of dams, will be points to which you will direct the attention of the engineering and surveying branches of your party. From Rainy Lake, by Lake of the Woods and Lake Winnipeg, to Fort Garry, as before described, is now comparatively a good water communication, but very circuitous ; and should the character of Rat River, which rises at no great distance from the Lake of the Woods, and falls into the Red River above Fort Garry, be found pusceptible of its being made a boat channel, a saving probably of 160 miles in length might be effected ; or on an exploration of the country through which that river flows, it may be found more desirable to construct a road along it from Red River ; and should this be so, the nature of the communication between Red River and Lake Superior, eventually, would be about 100 miles of road from Red River to Lake of the Woods, thence about 140 miles of water communication to the eastern end of Rainy Lake, and from that point a continuous road to Lake Superior of from 160 to 200 miles in length. When you shall have reached Rainy Lake by the Hudson's Bay canoe or northern route, it is left to your discretion whether you should or not leave the enguieering paitj with sufficient force to return and explore back to Lake Superior, the Southern or Pigeon River route, while you proceed with the surveying party by Lake Winnipeg to Red River, and return by Rat River. All the members of the party, with the exception of the Geologist and his assistant, are, it is understood, to winter on the expedition if required. The expediency of adopting that course can only be determined by you some time hence j but should you decide upon 80 doing, you will, of course, take due precautions for the safety and comfort uf the party, and for their effective and profitable employment. As director and leader of the party, you will govern all matters whatsoever connected with the conducting and provisioning of it — the hiring, discharging and payment of men. The lines to be explored, and the water examinations to be made will be determined by you, on consultation with the gentlemen conducting the engineering and surveying branches. You will also decide the times and places for separating the party or parties and for their re-union. The Engineer and Surveyor have been instructed to afford you all the assistance in their power, and have bee. i informed that they are to consider themselves under your guidance and direction. Any occasional additional assistance they may require will be obtained through you, as well as all necessaries whatever ; but the con- ducting of their immediate professional duties will, of course, be regulated by themselves. At the very outset, it ib important that you should regulate the number of fire-arms that you may consider it necessary to take, which it is believed should not exceed six, — one with the Director, one with the Geologist, two wit'i the Engineer, and two with the Surveyor. You will adopt, also, full precautions against any spirits, etc., pf any description being carried, except what shall be under your own sole charge and control, and such as you may consider it necessary to have in case of illness. With regard to the procuring of canoes, camp equipage, medicine, etg., etc., for the expedition, it is not considered necessary, from your experience in such matters, to offer any suggestions further than to draw your attention to some Crimean rations of pressed 1867. FINAL REPORT OF CHIBP JUSTICE DRAPER. 51 bjects aimed Int on Lake 'igeon River b, by general iinity of the waters from be only satis- tally ; but in auch expense, lOve described 5 auxiliary to le of doing so, ther extended rou will direct ?ort Garry, as ary circuitous ; im the Lake of jceptible of its hi be eflfected ; be found more « so, the nature v^ould be about ) mUes of water jontinuous road 106 or northern fineering paitj Southern or "Winnipeg to id his assistant, ncy of adopting rou decide upon ,rt of the party, oever connected ayment of men. determined by and surveying jarty or parties .0 afford you all ider themselves ance they may ; but the con- by themselves, iber of fire-arms exceed six,— [A two with the )s, etc., pf any •ge and control, \^., etc., for the latters, to offer [tions of pressed vegetables, now in the commissariat store, which occupy but little space, and a small portion of which makes in a short time excellent soup. In order further to give effect to your control and authority, a oommisaion of magistracy will be conferred upon you. About the time of your reaching Rainy Lake, or at such period as you may deem proper, you will send a messenger with despatches, reporting upon your progress, etc., etc., and whether you find it necessary or desirable to winter in the territory, eta Finally, you will impress upon each member of your party that no oommunioatioii or information whatsoever, with regard to the progress or results of the expedition, are to be transmitted, by writing or otherwise, except to the Honourable Provincial Secretary. The ad interim reports of the Geologist, Engineer, and Surveyor, you will enclose with your own, and transmit by the messenger above adverted to. You will also peremptorily require that the weight of all personsd effects taken by each of the party, including that of the bag or leathern valise containing them, shall not exceed ninety pounds. George Gladman, Esquire, Port Hope, U. C. E. Parent, Aasiatant ProvincuU Secretary. [Here follow special instructions to Professor Hind, Mr. Napier, and Mr. Dawson respectively, together with voluminous reports showing that the objects of the expedition had been successfully attained. The papers also show that the explorations were continued and extended in the following year under Messrs. Hind and Dawson. See Sess. Papers, 1858, Vol. 16, No. 3. See also the letters to and from Sir Geo. Simpson, post, under dates 14th and 23rd April, 1858, respectively.] Final Repobt of Chief Justice Draper respecting his Mission to England.* To His Excellency the Right Honourable Sir Edmund Walker Head, Baronet, Governor- General, etc. The following report is respectfully added to the various despatches and communica- tions heretofore written by met on the subject of my mission to England, having been drawn up in the hope of presenting a connected statement of the proceedings — while for elucidation and fuller details, I beg permission to refer your Excellency to all that has been previously submitted by m.e. The instructions of the 20th February, 1857, >*ith which I was honoured, referred to the leading subjects which subsequently engaged attention ; among them are the following : The duty of attending on the Parliamentary Committee, of watching over the interests of Canada by correcting erroneous impressions, and by bringing forward any claims of a legal or equitable kind which the Province might possess on account of its territorial position or past history. This duty was limited by an express restriction to conclude no negotiation and assent to no definite plan of settlement affecting Canada, without reporting the particulars of the same, and the views entertained by me thereon. The expediency of marking out the limits between the British possessions and the United States, was strongly pointed out, from the importance of securing the North- West teiritory against sudden and unauthorized intrusion, as well as of protecting the frontier ♦Seas. Papers, Can., 1858, Vol. 16, No. 3. t[With the exception of the extract from his letter of 12th June, 1857, which ia gi^ ,r. at p. 47, amtt, none of these previous despatches and communications appear to be in print. — Q. E. L.] 52 FINAL REPORT OF CHIEF JUSTICE DRAPER. / ^ (I , ', '>?» of the lands above Lake Superior, and about the Red River, and thence to the Pacific, BO as effectually to secure them against violent seizure and irregular settlement, until the advancing i>ide of immigration from Canada and the United Kingdom might fairly flow into them, and occupy them as subjects of the Queen, and on behalf of the British Empire. TL^u any renewal of a license of occupation (if determined on at all) or any recog- nition of rights in the Hudson's Bay Company should be guarded by such stipulations as would prevent interference on their part with the fair and legitimate occupation of tracts adapted for settlement. The importance of Vancouver's Island, as the key to all British North America on the side of the Pacific, was alluded to as being too self-evident to require any advocacy. I lost no time after the receipt of those instructions in setting off for Europe. , On my arrival in London, on the afternoon of the 9th of March, I found that, owing to the vote on the Chir.ese war. Parliament was about to be dissolved, and that the Committee on the Hudson's Bay affairs and territory had held its last sitting on that day, and would merely report the evidence they had taken, the enquiry being incomplete and insufficient as the foundation of any report. I certainly felt great momentary disappointment since I saw that my stay in London would be thereby greatly prolonged. But a little reflection, and some information wMoh I obtained as to the course the enquiry had taken, soon brought me to view the delay as likely to be an advantage, by affording time that might be put to a very profitable use. My first interview with the Right Honourable the Secretary of State for the Colonies gave no reason to apprehend any indisposition on his part to take a just view of the interests of Canada in the matter. His language, though general, was favourable, and I thought I could safely infer that ary obstacles that might arise would not originate with him, however he might be affected by pressure and urgency from other quartern Enquiries in other places, together with a perusal of the evidence taken before the Committee (which Mr. Labouchere promptly communicated to me), led me to the conclusion that the only party desirous of maintaining things in their present position was the Hudson's Bay Company, though, as I afterwards ascertained more distinctly, very different opinions wore entertained as to the course; which it would be most •viae to adopt in the future government of that portion of British territory. My first duty, therefore, appeared to be to take steps with a view to meet the resistance which the Hudson's Bay Company were opposing to any change. This resistance took, as I thought, two forms — one, resting generally on the rights claimed under their charter from Charles II. ; the other more particularly directed against the claims of this Province, by setting up an alleged impossibility arising from geographical and physical causes, to the Government of the territory being administered by Canada. The first was obviously to be met by an examination of the foundation on which they relied, the second by endeavouring to obtain more accurate knowledge of the formation and accessibility of the county lying between Lake Superior and Fort Garry, and by posiiponing any final arrangement until this should be fully investigated. I was aware of the correspondence waich took place in 1850 bearing upon the first of these points, and that the late Sir John Jervis (afterwards Chief Justice of the Court of Common Pleas) and Sir John Romily (now Master of the Rolls) had reported their opinion that " having regard to the powers in respect of territory, trade, taxation, and government, claimed by the Hudson's Bay Company," the rights so claimed properly belonged to that Company. They had, however, accompanied this opinior with their advice that the questions should be referred to a competent legal tribunal for considera- tion and decision, and they suggested the Judicial Committee of tb j Privy ij;.>uncil as the tribunal best fitted for the discussion of the case. Her Majesty's Government adopted the advice, but, as they refused to have the proceedings jarried on at the piiblic expense, the matter was then dropped. Impressed with the idea that a similar reference would rpjeive the approval of the Government, and that it was on every account desirable '^oat the validity of these claims should be submitted to the test of judicial investigation, I applied for and obtained leave to make searches among the public documents and State papers, where I hoped I should obtain some information respecting the original granting of the Charter, FINAL REPORT OF CHIEF JUSTICE DRAPER. 53 av in London mation wMoh V the delay as profitable uae. State for the ke a just view as favourable, [ not originate ir quarters, en before tbe d me to the 38ent position ore distinctly, 3 most wise to to meet the lange. This ights claimed id against the I geographical ed by Canada, an which they the formation Jarry, and by upon the first 3 of the Court •eported their taxation, and med properly or with their for considera- vy o;.Mincil as Government at the piiblic iproval of the iity of these ilied for and kpers, where I the Charter, as well OS some reliable account of the construction put upon it in tiires when no such questions had arisen as now presented themselves. Several points with respect to the Hudson's Bay Company's rights and claims, on which doubts had been siggested, might probably be elucidated by this enquiry, and materials might be found to narrow the pretensions set up by them. But while engaging in this research, which proved much more long and laborious than I at first supposed, I felt it my duty, at an early date after my arrival in London, and as soon indeed as I had sufficiently reflected on the information which I could immediately gather, to submit for the consideration of Your Excellency such views as up to that time impressed themselves on my mind on the subject, in order that Your Excellency in Council might be in a situation to exercise your judgment upon them. The enquiry before the Committee had taken a much wider range than fell within the limit of my instructions, but the information elicited in regard to the Iiidians, and the trade carried on by them with the Hudson's Bay Company, had a very inptrtant though a collateral bearing upon the preservation of British authority within, and the settling and government of the North-West Territory. In my despatch of the 20th March, I pointed out the course which the evidence had so fA<- taken, as vtrell as some of the views and reflections to which it was calculated to give rise. There seemed to be an almost settled conclusion that a change had become necessary — that the Hudson's Bay Company could not be permitted to maintain a territorial monopoly for their own benefit, to the exclusion of the rest of the Queen's subjects from the occupation and cultivation of such lands as were fitted for agricultural purposes ; and with regard to Vancouver's Island, its value, in a political point of viev^ , seemed so well understood, that there appeared no room for doubt that it was deemed inexpedient to sufler it to continue in the hands and under the control of that corporation. As to the mainland, I gathered that the impression entertained by Her Majesty's Governme; it was in favour of placing such portion of it as was fitted for settlement, to the west of the Rocky Mountains, under the control of the Colonial Government proposed to be established at Vancouver's Island ; while as to such portion of it similarly fitted for settlement as lay to the eastward of that mountainous chain, there was a readiness to meet the views of Cai-ada — by plt;.cing it under the control of the Government of this Province, if the practicability of opening communication between Lake Superior and Red River, and so to connect this more distant territory with Canada, under one general Administration, were established, also subject to the rights (whatever they were) of the Hudson's Bay Company — aid to an adjustment of compensation for that which it might be found necessary to take frtjm them. Although conflicting opinions oxistsd as to the mode in which the settlement and administration of affairs in this territory should be effected, the prevalent, as I have already stated, was in favour of an entire change of system, and I could anticipate an enquiry whether Canada would be disposed at once to assume the charge of settling and governing and (except as to foreign aggressic.i) of maintaining peace in the territory indicated, accepting the burden of adjusting such claims as might appear on enquiry to be well founded, and if not, what other arrangements -vould be suggested in contemplation of its ultimate cession to her. I endeavoured to point out to Your Excellency, in my despatch of the 27th March, the question which I deemed of the most prominent importance, and I discussed therein, at some length, some of the leading considerations involved in them, and I submitted such conclusions as (so far as I could then perceive) I thought it would be for the interests of the Province to arrive at. As to the validity of the claims of the Hudson's Bay Company U'lder their charter, I assumed the Government at home entertained the same views as vO the propfie\y of a reference to the Judicial Committee of ti 5 Privy Council as ha-^ been expressed in 1850. During t'je residue of the session of Parliament, and from the dissolution until after the elections, I had but little oppoi'tunity of communicating with any of the authorities on these points. I took, however, the earliest convenient occasion to ascertain, as well at the Colonial Office as elsewhere, what opinions prevailed with regard to them, and was surprised and disappointed to find that doubts had been suggested and difficulties 64 FINAL REPORT OF CHIEF JUSTICE DRAPER. raised to following out the couise previously suggested by the law advisers of the Crown, and sanctioned by Earl Qrey. It was ii.timated to me, that possibly the Judicial Committee might decline pronouncing any opinion upon the validity of the claims of the Company, when no parties were before them, whose right would be bound by their decision, and that it was more fitting the judgment should be given in a case where the rights of partiea were in actual dispute upon which their decision would be strictly judicial and binding. I could perceive plainly that the difficulties, which it was supposed might bo met with in the Judicial Committee, must have been suggested since the correspondence of 1860, and that they v/ere deemed of some importance at the Colonial Office. A brief interview with Sir R. Bethel, the Attorney -General, led me to believe that he thought, that after so long an enjoyment on the part of the Hudson's Bay Company, it was not by the CroWn that the validity of their charter should be brought into discussion. From all this, I drew the conclusion, that, unless I could raise a question of legal right in which the Province of Canada had a direct interest, there was very little prospect of any reference to the Judicial Committee, while I felt a very strong conviction that no other judgment would be satisfactory on the validity of the Company's claims, or if adverse to the claims of the Province (which, however, I did not believe possible) would receive a respectful submission. With this impression, I considered that vague and indefinite as the southern boundary of the territory mentioned in the Company's charter is, the limits of the Province of Canada in that part are made dependent en it. I observed also, that this same boundary had been a matter of lengthened dispute between Great Britain and France, finishing only by the treaty of 1763. That at various periods subsequently to 1670, and to 1750, the Hudson's Bay Company had been called upon to point out the extent of their territorial claims under the charter, and to define the boundary which they claimed, and that on no one occasion during all that period had they advanced the claim they now insist upon, namely, that the charter gave them the ownership of all lands, the water from which flows into the Hudson's Bay or Straits, and therefore extending as far as the head waters of the Red River, and east and west of that stream to the sources of its tributaries, though the Ashburton treaty has, of course, disposed of so much of that claim as lies south of the 49th parallel of latitude. And I prepared a memorandum on the subject, which I forwarded to the Secretary of State for the Colonies in a letter, a copy of which letter and its enclosure was transmitted to Your Excellency in my despatch of the 8th of May, 1857. My object was to place the question on a footing by vhich the Crown would be called upon to determine the boundary between the Colony and Rupert's Land, as it is styled in the charter of 1670, and, for its own information and guidance, would find it desirable, I might almost say indispensable, to obtain the advice and opinion of the Judicial Committee of the Privy Council. Of the right of the Crown to take this course under the Imperial statute 3 and 4 William IV., there can, I apprehend, be no doubt. It is treated as clear by Mr. MacQueen, in his " Practice of the House of Lords and Privy Council," and on such a reference, I presume, the Judicial Committee would simply make a report, and not pronounce a judgment ; upon which report Her Majesty might issue an Order in Council, establishing the boundaries, in virtue of her prerogative royal. Such a declaration would, I venture to submit, meet with respect and obedience in all Her Majesty's Courts of Justice. But if there w«is a shadow of doubt of the full authority of such an order, a declaratory Act of Parliament, founded upon it, or upon the report of the Judicial Committee, would set the question at rest forever. I thought that counsel for the Province, as well as for the Hudson's Bay Company, would be heard, and I did not see how it would be possible to exclude the former from contesting the validity of the charter, when it was to be used for the purpose of limiting Canada on the north. Parliament was opened on the 8th of May, and a Committee of the House of Commons was named to continue the enquiry. Before that Committee met, I received, (the 12th May) the minute of Your Excellency in Council, of the 27th April preceding, which expressed a fixed opinion that no immediate charge should be taken of any territory in a form which would throw upon the Province the cost of administration and m some ir FINAL REPORT OF CHIEF JUSTICE DRAPER. 59 defence, while in an unsettled state, until the sanotion of the Provincial Legislature was obtained, and that in the meantime I should see — " 1st. That Canada should be secured tho reversion of such territory north and west of Lake Superior as experience may show to be fit for settlement, contingent on the opening of such communication from Canada as may prove sufficient to allow their future union with the Province. 2nd. That incmediate steps should be taken by Hor Majesty's Government to prevent the absorption of tho territory west of Lake Superior by unauthorized emigration from the United States. 3rd. That every facility should be secured for enabling Canada to explore and survey the territory between Lake Superior and the Rooky Mountains — and if the Piovincial Legislature should think fit to provide the means of so doing, no obstacle should be thrown in the way of the constructing of roads or the improvement of water communication, or the promotion of settlement beyond the line supposed to separate the territory of the Hudson's Bay Company from that of Canada." The first meeting of the Committee was on the 15th May, when no business except the appointment of the Chairman was transacted. I submitted the names of several witnesses whose evidence I thought would be found valuable ; and I received an unofficial intimation of the intention of the Committee to call me before them as a witness. I saw at once the embarrassing position in which this would place me, for it must have been well known that I had no personal knowledge of the territory, and I was therefore certain that my opinions and not my knowledge must form the subject of examination, and that questions might very easily be put to me, which it would be difficult, bearing in mind the restrictive character of my instructions, to answer. I almost determined — if the matter were in any way left open to me, as a matter within my own discretion — not to appear as a witness, though I felt such a course might be open to great miscon- struction, and might create impressions unfavourable to the i'^terests of the Province. However, at the meeting of the Committee of *21st May, thi chairman expressed his opinion that I should be called before them, in which all presc and it was formally stated to me that the Committee desired my meeting. I took an opportunity, as soon as the Committee bi Chairman my objections ; but (if he felt there was any forci narently concurred, lance at their next , of stating to the m) he left me no reason to doubt that in his opinion I should comply with the expressed desire of the Committee. In the meantime, however, I had learned, through the public press, that an expedi- tion had been set on foot to conduct a geographical survey through a part of the territory in question. I addressed a letter on this subject to the Secretary of State for the Colonies (16th May, 1857 — separate. No. 5), a copy of whidh I enclosed to Your Excellency in my despatch of the 21st May. To this I received a reply from Mr. Merivale, one of the Under-Secretaries of State, bearing date the 25th May, and on the 27th May I received a reply from Mr. Fortescue, the Parliamentary Under-Secretary of State for the Colcnies, in reply to my letter of the 6th May, copies of which were transmitted by me to Canada, in my despatch of the 29th of the same month. (Separate, No. d). On the 28th day of May I was examined before the Committee. I took particular care to have it understood that I had no instructions to appear before them as a witness. Examined repeatedly as to my individual opinions on the subjects of enquiry, I could not avoid stating what I sincerely thought ; but while I felt bound to reply without reserve, I was solicitous to impress that I stood alone responsible for such views, that I pretended no authority to advance them in the name of the Province, and that they were in some instances opposed to what I believed many people in the Province thought. I addressed a reply on the 5 th June to the letter which I had received from Mr. Fortescue on the subject of the suggested reference to the Judicial Committee of the Privy Council, and in this letter I took occasion to present, as succinctly as possible, the points which I thought it most material for the interests of Canada should be treated in the Report of the Committee, and disposed of by Parliament. I felt the more impera- tively called upon to take this step at once, lest any answer of mine in the course of a lengthened examination should give rise to misapprehension as regarded the claims of the Province. A copy of this letter was sent by me to the Provincial Secretary in my 56 FINAL REPORT OF CHIEF JUSTICE DRAPER. m t> ; 'jl Hi despatch of the Sth of Jane. I received on the evening of the 6th of June a note from Mr. Labcuohere'd private secretary, respecting my official letter of the 6th of June, to which I rnpliod on the following Monday, and I forwarded copies of those two notes in «ay despatch to the Provincial Secretary of tho 12th of June. To this despatch I beg to make especial reference. It contains a reaumi of my reasons for pressing the reference to the Judicial Committee ; a statement of the bovndaries, which, for the present, and without reference to the legal adjudication, I was of opinion might answer ; as also a recapitulation of some of the proposals made by me for dealing with the questions before the Committee and the Government. On the 3rd of July I received a copy of the evidence taken before the Select Committee of the House of Assembly, which I immediately transmitted to Mr. Labou- chere, as chairman of the Committee. It is printed in the Appendix to the Report of that Committee. In the meantime (as I learned through private channels of information) the Attorney and Solicitor-Generals had been called upon to report their opinion whether the Crown could lawfully or constitutionally raise for lesral decision all or either of the following questions : 1. The validity, ^t the present day, of the charter of the Hudson's Bay Company ; 2. The validity of the several claims of territorial right, of government, of exclusive trade and taxation claimed by that Company ; 3. The geographical extent of this tei 'itorial claim, supposing it to be well founded to any extent ; and, if the Crown could do so, then to state the proper steps to be taken, and the proper tribunal to be resorted to, and whether the Crown should act oi\ behalf of tho local Government of Canada, as exercising a delegated share of the Royal authority, or in any other way; and if the Crown could not properly so act, whether they saw any objections to the questions being raised by the local Government of Canada, acting independently of the Crown, or by some private party, in the manner suggested by the law officers in 1850 — the Crown undertaking to bear the expense of tho proceedings. I was on the 11th of July favoured by Mr. Labouchere with a copy of the report in reply, but the communication to me was marked " Private and Confidential " (Sth July, 1867). A few days prior to its receipt, however, I addressed a letter to Mr. Labouchere, again pressing for a reference and decision on the subject of boundaries. A copy of this letter was transmitted by me to the Provincial Secretary on the 10th of July. In reference to the opinion of the law advisers of the Crown, I cannot abstain from remarking that it does not appear to me to meet the questions submitted. The general question put was, whether the Crown could lawfully or constitutionally raise for legal decision, — 1. The validity of the charter at the present day. 2. The validity of the several claims of territorial right, of government, exclusive trade and taxation, insisted on by the Company. 3. The geographical extent of the territorial claim, supposing it to be well founded to any extent. 1. As to the validity of *-he charter. The answer in fact is (if I do not misunder- stand it), the Crown cannot justly raise this question, because, taking into consideration the enjoyment that has been had under the charter, and the recognition made of the right of the Company under various Acts, the judgment of any tribunal ought to be in favour of upholding it, although, if principles which govern a charter of reoent date were applied, it must be deemed invalid. With great submission, this appears to me to savour much more of an opinion on what should be a result of a reference, than an opinion on the power of the Crown to refer. And, if this be the true sense of the answer, then it is difficult to avoid the reflection that such a determination, coming from a high and impartial tribunal, would carry more weight and conviction with it than an opinion, which, if followed, prevents such an adjudication being obtained. And the adoptioii of that opinion by the Government becomes virtually an abo^rtion by the Government of the validity of the charter — while the argument, resting upon long enjoyment, and parliamentary recognition, seems almost to involve the admission of its invalidity. 2. The answer to the second branch of the inquiry is open, as appears to me, to similar objection. If it be admitted — and the opinion given involves the admission — that rights of government, taxation, exclusive administration of justice, or exclusive trade, -■annot be legally insisted upon by the Hudson's Bay Company, as having been legally FIKAL REPORT OF CHIEF JUSTICE DRAPER. sr granted by the Grown ; and if, as is notoriously the fact, the Hudson's Bay Company have assumed and assorted all these rights, the answer to the question put ought, I humbly conceive, to have been that the Crown could legally and constitutionally raise this question for legal decision, instead of anticipating the judgment by an opinion that the charter should not be deemed invalid, because it professes to grant thosa powers, inasmuch as to a limited extent those powers may be lawfully used. I cannot say the result of the reference, so far, was any matter of surprise to me. On whatever grounds the opinion might be rested, I had, as I have already stated, satisfied myself that there would be no facility afforded for raising either of these quostions, and I was the more fully satisfied that I had taken a right course in submitting a proposition which it was impossible to negative on any such reasoning as the report contains in regard to the first two questions. Even on that proposition, however, the opinion given hardly appears to me to afford a full answer. I concede fully that the Crown could not, of its inherent authority, and by any mere command, bring the Province of Canada and the Hudson's Bay Company, as two contending parties, before the Judicial Committee of the Privy Council to submit their respective claims for final decision. For this purpose the consent of both parties would be indispensable. But I fail to perceive, and on this point the opinion throws no light, that the Crown could not obtain the opinion and advice of the Judicial Committee upon all the existing facts as to the boundaries between Canada and the territories of the Hudson's Bay Company, supposing their claim " to be well founded to any extent," and that such opinion and advice might be made the foundation for determining those boundaries, with the aid, if requisite, of a declaratory Act of Parliament. It has not yet been denied on any hand that the Crown can legally and constitutionally take that course, and I continue to think this is a more safe and will be a more 8ai,I:.'factory mode of determination than a quasi-judicial enquiry, in which the Province of Canada is to be made to assume the position of a plaintiff in ejectment, and in that character to prove a title to turn the Hudson's Bay Company out of an imaginary possession. The Committee held their last sitting for the examination of witnesses on the 23rd June. Their next meeting was on the 20th July, with closed doors, and so their meetings continued until their repoi t was finally adopted. Before this I had several interviews with Mr. Labouchore, in which, among other things, the opinion of the law advisers of the Crown was spoken of. These interviews, as I was informed by a letter of Mr. Under- Secretary Merivale, rendered it unnecessary, in Mr. Labouchere's opinion, to address any reply to my letter of the 8th July. The substance of what took place at these interviews is contained in my last despatch to the Provincial Secretary. I felt it right to send a copy of this letter without delay to Mr. Labouchere in order that he might be fully aware in what light I viewed, and how I had understood, what passed between us. It will be observed that Mr. Labouchere made nc direct proposition to ine founded on the report of the law advisers of the Crown. On tho contrary, so far as I could understand, though I may be in error, I thought him much more desirous of seeing the points in doubt or dispute settled by some compromise than of having them left for legal adjudica- tion, while I represented that a determination of the rights conferred by the charter would tend to facilitate the settlement of the other questions which were raised. I had the opportunity of again pressing the necessity that I thought existed, that the authority of the Hudson's Bay Company should at once be put an end to, over such portions of the territory as might be ceded to Canada. And I took occasion, when the question of compensation to the Company was referred to, to state my unqualified opinion that Canada would never consent to pay any portion of it. The report of the Committee confirms my early impression of the opinions enter- tained as to the future government of Vancouver's Island and the territory west of the Rocky Mountains. The importance of Vancouver's Island seems to be fully estimated, and the necessity of administering its government and providing for its settlement otherwise than by the agency of the Company. That colony is also viewed as the most convenient head-quarters for settlements on the adjacent mainland, especially about Frazer's River and Thompson's River (on or near which it is said there are indications of Hm f f'M »■"' iJj li ' ftfi'ii i^M 58 FINAL REPORT OF CSIISF JUSTICE DRAPER. f -■1 m I gold), and generally as far as the Rocky Mountains. The distance, judging from maps, and taking a direct line without reference to tie difficulties of communication and necessary divTgencies, by rivers and lakes, are from Victoria, on Vancouver's Island, to the junctio' of the Frazer and Thompson Rivers, 180 miles; thence to Fort Thompson, 80 miles r thence to Mount Brown, 170 miles; thence to Red River, at Fort Garry, near 900 miles; and thence to Fort William, 300 miles, or 500 miles if the canoe route is followed. The Frazer River empties itself opposite the south-easterly part of Vancouver's Island, a little to the north of the ' h parallel. The parts of this country best fitted by climate and soil for agricultural . Tient, as well as the points where it was asserted gold had been discovered, were ordv » to the evidence of Mr. Cooper, situated upon these rivers. They are also facilities of obtaining inform*- intervention were necessary) they drain, had very great settlement and protection o. Govemment of that Colony. Mr. Roebuck to be strongly fai greater •n f' ,m the boundary line of Oregon. The of speedy cojamunications and intervention (if :ouver's Island to these rivers and the country ice on the minds of those who were of opinion the jiiese parts of the territo) y should be managed by the On the otter hand, there were those (and I understand c* that opinion) who thought that th>> territory lying between the Province of Canada B,nd the Pacific far too extensive to be ^ ^ to Canada and Vancouver's Island, but that it should be divided into several colonies to be settled under the ailthority of the British Crown, with local Governments which might in time form part of a confederacy of the British possessions on the North American continent, maintaining their connection with the British Empire. There were not wanting some who would have been disposed to cede to this Province the territorial right of the Crown on condition that Canada should relieve Groat Britain of all future charge of its government, defence and administration, and take upon its own resources the burden of any airangement which the claims of the Hudson's Bay Company might give legitimate rise to. The express instructions I had in no way to pledge the Province to incur any expenditure until the sanction of the Provincial Parliament was obtained, was sufficient without any other reason to prevent my entering upon this topic, to which, I may be permitted to add, I saw what appeared to me to be the gravest objections. I refer to these matters in connection with the amendments which were made in the draft report first submitted to the Committee, to show that there was a wide diflference of opinion in that body as to the best mode of dealing with the subject under consideration. The recommendation of the report was in eflect : — 1st. That the Province should be free to annex to her territory such portions of the land in her neighbourhood as may be available to her for the purposes of settlement — with which lands she is willing to opeii and maintaifi communication, and for which she will provide the means of local administration. The districts on the Red River and the Saskatchewan are those particularly referred to, and the recommendation, therefore, involves the giving to Canada power to assume the whole of the extensive territory bounded on the south by the United States, and on the west by the Rocky Mountains, and as far north as the soil and climate tit for agricultural settlement extends, leaving to Her Majesty's Government to effect any necessary arrangements with the Hudson's Bay Company, whose authority over the country annexed to Canada would entirely cease. 2nd. The reassuming by the Imperial Government of Vancouver's Island, and the making provision for developing the natural resources of that colony, and extending it over any portion of the continent to the west of the Rocky Mountains, on which per- manent settlement may be found practicable. 3rd. Subject to these recommendations, the continuance of the privilege of exclusive trade to the Hudson's Bay Company. On this latter recommendation I would remark, that for the reasons set forth in my despatch of the 27th March, 1857, 1 thought temporary renewal of the license of exclusive trade would be advisable. It also appeared to me, that to throw that trade at once and unreservedly open, would be, in effect, to give an immediate advantage to the fur traders from the United States, while its benefit to the people of Canada was remote and con- tingent. For the former, with establishments near the frontier (at Pembina, for instance). FINAL REPORT OF CHIEF JUSTICE DRAPER. 69 lege of exclusive already obtaining a considerable number of furs f a the British territory, would be ready at once to extend their operations — to enter into active arrangements with the half -breeds and Indians, and to lay the foundation for an immediate connection with them, and so to a-m a start of our own people that must be extremely disadvantageous to the latter. And there is a further danger, the apprehension of which arises from an answer given by the Right Hon. Edward EUice, in his examination before the Committee, when he says in reference to the " servants " of the Hudson's Bay Company in the interior, " Even if it was necessary, and if the attempt were made to deprive them " (as, for instance, by taking away the exclusive right of trade) " of what are, in short, their sole means of existence, they would find means, either by communication with America or lomewhere else" (possibly Russia, whose possessions join the British territories on the uorth), " to carry on the trade and exclude every other party." This warning or covert menace (for it is capable of that construction, though unintentionally) from a gentleman who must know the disposition of those of whom he speaks, and the influence their inter- course with the Indians has given them, is not to be overlooked, and it will not have the less point and significance when it is remembered that though settlements within the Oregon Territory had been formed under the protection of the Hudson's Bay Company's "servants;" and though that Company had no chartered rights there, but only such privileges as the exclusive right of trade gave them ; yet when the Ashburton Treaty was made, and the north branch of the Columbia River yielded up to the United States, the transfer of these settlements created no difficulty, while pn article was inserted into the treaty by which the possessory rights of the Company wei . "^^o be respected, under which article the Company have now a great claim in discussion "before the Congress, for indemnity for the surrender of their possessory rights." These reflections are calculated to add to the importance of interposing a body of British settlers between the line of 49* north, and the most valuable fur-bearing country, before the privilege of exclusive trade is entirely abrogated, and otrengthen the suggestions offered in favour of a temporary renewal of the license for exclusive trade. The report points also to the necessity of making communications to the Govern- ment of Canada — as well, I apprehend, on the subject of boundary, as respecting such other arrangements for the settlement and administration of the territory as may be deemed expedient. Its language and expression evince a disposition to sustain and advance the welfare of the Province, and to strengthen its position as a part of the British Empire. I cannot better conclude this report than by recapitulating the points which, appear- ing to me to come within the scope of my instructions, seemed to be of the greatest present importance, and were presented by me in that light in my communications with the Home authorities. 1. The determination of the proper limits between Canada and the territories (what- ever they may he) belonging to the Hudson's Bay Company. 2. The marking out the boundary between the possessions of Cirreat Britain and the United States to the Pacific. 3. The adoption of measures to protect the possessions of the Crown from intrusive settlement. 4. The granting to Canada, for a fixed period, powers to explore and survey, to open communications by land and water, and to lay out and settle townships to become, as fast as they are laid out and settled, integral portions of the Province, and, over the territory in which Canada is to possess these powers, to abrogate at once every right and privilege of the Hudson's Bay Company, excepting the right to their factories and other building-. erected within the same, with a sufficient portion of land immediately attached to such factories, etc., necessary for their convenient enjoyment and occupation. 5. The making a provisional arrangement for the government of the Red River Settlement entirely independent of the Hudson's Bay Company, until that settlement can be incorporated with the Province of Canada. 6. The reservation to the Crown of a power to lay out a line of railway, and to use all lands necessary for that purpose throughout the whole territory to the Pacific Ocean. All which is respectfully submitted. W. H. Dpaper. 60" PROPOSED RENEWAL OF THE HUDSON'S BAY COMPANY'S LICENSE, 1858. I! .j Thb Under-Secretart to the Governor of the Hudson's Bat Compact.* Downing Street, January 20, 1858. Sir, — Her Majesty's Government have had under their consideration your letter of the 22nd December, 1856, containing an application on behalf of the Governor and Committee of the Hudson's Bay Company, for a renewal of their license for exclusive trading with the Indians in the North- Western Territories of America. They have also, since the receipt of that letter, paid full attention to the Report of the Select Committee of the House of Commons appointed during the last Session of Parliament to consider the state of the Britissh Possessions under the administration of the Hudson's Bay Company, and I have now to acquaint you, by direction of Mr. Secretary Labouchere, with the result of their deliberations on the whole subject. 2. They are disposed to advise Her Majesty to execute the powers vested in her by the Act 1 and 2 Geo. IV. c. 66, by renewing the existing license of the Hudson's Bay Company for the further term of twenty-one years from its approaching expiration on the 30th May, 1859, on the following conditions : 3. The reservation, as in the present license, of any territories which may be formed by Her Majesty's Government into colonies. 4. Vancouver's Island to be exempted from the license as already constituted into a colony. On the subject of this Island I am to refer you to another letter of even date herewith, in which the views of Her Majesty's Government in relation to it are communicated to you. I am further to state that Her Majesty's Government consider it very desirable to ascertain, by the decision of some competent authority, the boundary between the Pro- vince of Canada and the Territories claimed by the Company under their charter. 5. It has been suggested by Her Majesty's law advisers that this might be efltected through the intervention of the Judicial Committee of the Privy Council on their being moved to entertain the question. You stated in your letter, addressed to me on the 18th of July last, that the Directors of the Company were prepared to recommend to their shareholders a concurrence in this course. But I have no authority to state that the Province of Canada is also prepared to concur in it unless allowed at the same time to discuss the farther validity of the charter itself, a question which, on public grounds, Her Majesty's Government do not consider themselves authorized to raise. If, therefore, any parties in Canada propose to take measures towards contesting the Company's rights to the full extent before a legal tribunal, Her Majesty's Government must leave them to take that course on their own responsibility. If, on the other hand, Canada thinks it expe- dient to agree to the course now proposed, namely, that of trying the question of boundary alone with the consent of the Hudson's Bay Company, Her Majesty's Govern- ment will afford every facility iti their power for its determination. It is, therefore, Mr. Labouchere's intention, in the first place, to submit this proposal to the option of the colony. 6. But supposing that no such proceedings were taken, and that the colony declines to contest the naked question of boundary in the manner suggested, Mr. Labouchere is of opinion that the objects recommended by the Committee may be attained by another course. He will then be prepared to propose to Canada, and to the Company, on the part of Her Majesty's Government, as a further condition for the renewal of the license, that the Conapany should surrender to the Crown such portions of the Territory now claimed by it under the Charter as may be available to and required by Canada for purposes of settlement. 7. It is stated in the report that the districts likely to be required for early occupa- tion are those en the Red 1 ver and Saskatchewan. If that should be the case, the portion of territory thus generally indicated should be rendered free for annexation to I • Sesa. Papers, Can., 1868, Vol. 16, No. 3. which may be PROPOSED RENEWAL OF THE HUDSON'S BAY COMPANY'S LICENSE, 1858. 61 Canada ; such annexation to take place, whether in this or any other direction, when Canada has made a road or any other line of communication connecting the territory she requires, and when Canada has given satisfactory evidence of her intention to take steps for laying out townships, and settling and administering the affairs of these dis- tricts. Thus the annexation might be gradual in case it should be found to suit the convenience of the several parties interested. 8. For the purpose of ascertaining the satisfactory performance by Canada of the terms thus required, the period when such annexation should consequently commence, and the manner in which it should be carried into execution, Mr. Labouchere would pro- pose the appointment of a Board of three Coinmissioners, one to be nominated by the Province of Canada, one by the Company, and one by Her Majesty's Government. 9. The same Board should be authorized to consider and report on the following question, namely, — the amount of pecuniary compensation which, under all the circum- stances of the case, may become justly payable to the Company in consequence of such contemplated annexation, and in respect of property which they may be required to surrender. 10. The Commissioners should be instructed to dispose of further questions connected with the transfer which, in the course of these proceedings, it may appear desirable to refer to them. 11. Her Majesty's Government have further to propose that, if it should at any time be made known to them that there is a good reason to believe that mining operations or fisheries may be advantageously conducted in any portion of the territory held by the Hudson's Bay Company under their charter, facilities should be afforded to Her Majesty's subjects for engaging in these pursuits within limited districts. For this purpose it would be necessary that Her Majesty's Government should be authorized to grant licenses or leases, or in some other manner which may be arranged by mutual consent, to place the parties engaged to prosecute such undertakings in possession of the land required for the purpose, any territorial rights of the Company notwithstanding. On the other hand, it should be fully understood that Her Majesty's Government will not grant any such facilities unless the parties applying for them give to Her Majesty's Government and the Company substantial proof of their competency, and of the bona fide nature of their intentions ; nor unless proper security be taken against the interfer- ence of such parties with the fur trade of the Company with the Indians. The mode of carrying into execution these arrangements would be matter for subsequent consideration if the Company should agree to the principles now suggested. 12. If the Company should signify througli yourself their willingness to consent to these proposals. Her Majesty's Government will proceed forthwith to submit them to the Local Government of Canada for their consideration, and in the event of their concur- rence, they will be prepared to take the necessary means for carrying them into effect. I have, etc., H. Merivale. 14: John Sheplierd, Esq. The Governor of the Hudson's Bay Company to the Colonial Secretary.* Hudson's Bay House, 21st January, 1858. Sir, — I have the honour to acknowledge the receipt of Mr. Merivale's letter of the 20th instant, communicating the result of the consideration which Her Majesty's Govern- ment had given to my letter of the 22nd December, 1856, and adverting to the full attention paid to the report of the Select Committee of the House of Commons, which « Sgm. Pftpera, 0»n., 1868, VoL 16, No. 3. ^ 1 ^■r*^ "f ^V! . 1 ■i a-- J,. 1-^ * ■i } d4 62 PROPOSED RENEWAL OF THE HUDSON'S BAY COMPANY'S LICENSE, 1858. !,,.. inquired last session into the state of the British possessions under the administration of the Hudson's Bay Company, detailing the conditions on which Her Majesty's Govern- ment are prepared to advise Her Majesty to renew the existing license for a further term of twenty-one years, and informing me that if the Company should signify their willing- neiis to consent to these proposals, Her Majesty's Government will proceed forthwith to submit them to the local Government of Canada for their consideration, and in the event of their concurrence, will be prepared to take the necessary measures for carrying them into effect. In reply, I beg leave to state, that after full consideration with my colleagues in the direction, we shall be prepared to recommend to our proprietary body : 1st. To agree to the reservation, as in the present license, of any territories which may be formed by Her Majesty's Government into colonies. 2nd. To agree to the proposed exception of Vancouver's Island from the license ; and upon this subject we beg to refer you to the answer to the communication which you have forwarded to us, conveying the views of Her Majesty's Government in relation thereto. 3rd. We concur in your suggestion that in the event of the Government of Canada declining to be a party to the proposed reference of the Boundary question to the Judicial Committee of the Privy Council upon ' he footing which Her Majesty's Government are prepared to recommend, and which this Company has already expressed their willingness to adopt, the objects recommended by the Committee of the House of Commons may be attained by another course, the detailed arrangements of which should be carried out under the supervision of three Commissioners, one to be appointed by the Crown, one by the Canadian Government, and one by the Hudson's Bay Company. I trust that the ready acquiescence of the Hudson's Bay Company in the plan pro- posed for meeting the requirements of the Canadian Government, will be accepted as an earnest of their desire to be on terms of harmony and friendship with their countrymen in Canada. 4th. In communicating this assent on the part of the Hudson's Bay Company, it is, however, right to notice that the territories mentioned as those that may probably be first desired by the Government of Canada, namely, the Red River and Saskatchewan districts, are not only valuable to the Hudson's Bay Company as stations for carrying on the fur trade, but that they are also of peculiar value to the Company, as being the only source from which the Company's annual stock of provisions is drawn, particularly the staple article of Pemican, a regular supply of which is absolutely necessary to enable the officers of the Company to transport their goods to the numerous inland and distant stations, and to feed and maintain the people, both European and Indians, stationed thereat It is proper, therefore, that I should draw your attention to the fact that the ultimate loss of those districts will most probably involve the Hudson's Bay Company in very serious difficulties, and cause a great increase of expense in conducting their trade. The Company assume that the Canadian Government will be responsible for the preservation of peace, and the maintenance of law and order in all the territories ceded to them, and that they will prevent lawless and dishonest adventurers from infringing from thence the rights of the Company over the remaining portions of their territories. 5th. With respect to the eleventh paragraph of your letter, in which it is proposed that " Her Majesty's Government should be authorized at any time to grant licenses or leases, or in some other manner which may be arranged by mutual consent, to place parties engaging to prosecute raining operations or fisheries in possession of the land required in any portun of our territory for the purpose, any territorial rights of the Company notwithstanding," — assuming that the principles stated in the 9th paragraph, as applicable to cessions to Canada, apply equally to any cessions which may take place in virtue of the 11th clause, I beg to state that we shall be prepared to recommend our shareholders to concur in this proposal. 6th. In conclusion, allow me to refer to the sentiments ex^^ressed in the fifth and last paragraph of my letter of the 18th of July last, as explanatory of the continued views of myself and colleagues. We are willing to enter upon a new tenure of our engagements under the renewed license, upon being assured of the support of Her PROPOSED RENEWAL OF THE HUDSON'S BAY COMPANY'S LICENSE, 1858. 63 Majesty's Government, and of the cordial co-operation of the neighbouring Government of Canada, in maintaining tranquillity and order among the Indian tribes, and protecting the frontiers of the whole adjacent British territories from foreign encroachment. The interests of the Hudson's Bay Company, we are convinced, are closely united with the real prosperity of Canada, and we trust that the humane and beneficent objects of Her Majesty's Government will prosper under our united exertions. I have, etc.. Bight Hon. H, Labouchere. John Shepherd, Governor. The Colonial Sborbtaby to the Governor-General.* Downing Street, 22nd January, 1858. Sir, — In sending for your consideration and that of your Council, a correspondence which has recently passed between the Directors of the Hudson's Bay Company and this Department (Colonial Office to Hudson's Bay Company, 20th January, 1858; do. do. Hudson's Bay Company, 21st January, 1858; do. do.) on the subjects embraced by the investigation of a Committee of the House of Commons in the last year's session of Parliament, it is not necessary that I should add much to the information which that correspondence conveys. The relations in which the Company is placed, both towards Canada and towards Her Majesty's Government in this country, have naturally attracted in no common degree the attention of the Canadian community, and they were also carefully investigated by the Committee to which I have referred. It is the anxious desire of Her Majesty's Government to take the opportunity afforded by the approaching termination of the Company's license of exclusive trade over what is termed the Indian Territory, for placi g these relations upon such a footing as shall be consonant with justice, and at the sa^ue time conducive to the satisfaction and to the interests of the great Province under your government. It is for the purpose of promoting these objects that I have carried on the corres- pondence which I now transmit to you, and I make no question but that it will be con- sidered in a similar spirit by the Legislature and people cf Canada. I do not propose to discuss the question of the validity of the claims of the Company, in virtue of their charter, over the whole territory known as Rupert's Land. Her Majesty's Government have come to the conclusion that it would be impossible for them to institute proceedings with a view to raise this question before a legal tribunLl, without departing from those principles of equity by which their conduct ought to be guided. If, therefore, it is to be raised at all, it must be by other parties on their own responsi- bility. With regard to the question of boundary, as distinguished from that of the validity of the charter. Her Majesty's Government are anxious to afford every facility towards its solution, a mode of accomplishing which is indicated in the correspondence, if such should be the desire of Canada. But I trust that in any case a machinery may be provided through the course now proposed which will afford to Canada the means of obtaining any districts which she may require for the purpose of settlement, and to which she may be able to afford the benefits of administration and protection. The tracts claimed by the Company under its charter are conterminous on the north and west with the whole of that great Province which is now united under your government. I therefore look to the gradual aggregation of such portions of these tracts as may be found available to that Province which contains within * Seas. Papers, Can., 1858, Vol. Ifi, No. 3. ! *( "Ti 64 MR. GLADMAN ON PROPOSED SURRENDER OP DISTRICTS FOR SETTLEMENT, 1858. its limits the noble water communication afforded by the Lakes and the St. Lawrence to the Atlantic. I recommend this important subject to the early consideration of yourself and your advisers. Her Majeaty's Government can have no other wish regarding it thaa, sistently with the principles of good faith, to promote the prosperity and consult v feelings of the people of Canada in this matter, as well as to provide for the security of law and order in these vast regions, in the maintenance of which Canada has herself so deep an interest. I have, etc., Governor the Right Honourable Sir E. W. Head, Bart., etc., etc., etc. H. Laboucherb. dl Mr. Gladman* to the President of the Council (Canada).! Toronto, 26th March, 1858. . Sir, — Permit me again to offer a few remarks relati e to the correspondence between the British Colonial Office and Mr. Shepherd, on thi affairs of the Hudson's Bay Company. In Mr. Shepherd's letter to Mr. Labouchere, of 2l8t January, 1858, he observes, " It is, however, right to notice, that the territories mentioned as those that may probably be first desired by the Government of Canada, namely, the Saskatchewan and Red River districts, are not only valuable to the Hudson's Bay Company as stations for carrying on the fur trade, but that they are also of peculiar value vo the Company, as being the only source from which the Company's annual stock of provisions is drawn, particularly the staple article of pemican, a regular supply of which is absolutely necessary to enable the officers of the Company to transport their goods to the numerous inland and distant stations, and to feed and maintain the people, both Europeans and Indiani?, stationed thereat. It is proper, therefore, that I should draw your attention to the fa.ct, that the ultimate loss of those districts would most probably involve the Hudson's Bay Company in very serious difficulties, and cause a great increase of expense in conducting the tiade." The object of Mr. Shepherd, in the foregoing statement, appears to be to induce a belief that the Company would sustain an immediate pecuniary loss by the occupation of the Red River and the Saskatchewan districts as a portion of Canada, and under its juris- diction, and that by reason of the Company being deprived of the power to trade or buy pemican from thn hunters, they would be placed in circumstances of difficulty and expense. It need scarcely be observed that the object of immigrants into that country, from Europe, Canada, or other places, being settlement and the cultivation of the soil, their farming opfations could not materially interfere for some years to come with the pro- viding of tbe staple article of " pemican " by the Hudson's Bay Company, upon which so much stresi \. laid by Mr. Shepherd. If my understanding of the question is correct, the desire of Canada is the extinction of the monopoly or exclusive rights of the Com- pany in every portion of territory under Canadian rule, and the admission of the people of Canada to carry on business operations at Red River, the Saskatchewan, or any other portion of British North America, as freely and as unrestrainedly as they may do in Toronto or Montreal. It is not, I presume, the desire of Canada to exclude or prevent * [Mr. George Gladman was the gentleman selected as Chief Director of the Canadian Government exploring expedition to the Red River country in 1857. See what is stated of him in the first paragraph of his instructions, p. 49, ante.—G. E. L.] + SesB. Papers, Can., 1858, Vol. 16, No. .3. MR. QLADMAN ON PROPOSED SURRENDER OF DISTRICTS FOR SETTLKMENl", 1868. 65 Lawrence to tUCHERK. the Hudson's Bay Company from carrying on their commercial transactions at the Red River or the Saskatchewan, as freely as they now do at Lachine. £qual rights as British subjects and merchants is all that is contended for by Canada, and as Canada does not seek to deprive the Company of any of their establishments or possessions in the Sas- katchewan or Red River districts, there is no good reason for supposing that the Gom» pany will in any way be debarred from prpviding as much peiiiican as they may think necessary for carrying on their trade as heretofore. It is evident many years mi^st elapse before the cultivable prairie lands will become so occupied by settlers as to intdr- fere materially with the trading of provisions from the hunters at Saskatchewan, and when that time arrives, domesticated animals will take the place of the buffalo. The question of pecuniary compensation can, as I conceive, have reference only to the right of soil which the Company claim to possess under their Charter, or by purchase from the Earl of Selkirk. The license of exclusive trade with the Indians by the Company being limited to a certain time only, and those territories being reserved to be formed into colonies by Her Majesty's Government whenever it may be considered proper to do so, I apprehend the rights of the Company will cease as soon as the present lease expires, and other govern- ment than that of the Company is established. Another remark made by Mr. Shepherd is this : " The Company assume that the Government (Canadian) will be responsible for the preservation of peace, and the main- tenance of law and order in all the territory ceded to them, and that they will prevent lawless and dishonest adventurers from infringing, from thence, the rights of the Com- pany over the remaining portions of their territory." In these observations, the Hudson's Bay Company assume to treat for the cession of certain territories. As a trading company of British merchants, they assume that the Canadian Government will maintain law and order in the territories ceded to them by the Company, which territories yet, in point of fact, belong to the natives. It may be well here to consider what the present government of the Red River and the Saskatchewan districts really is. So far as the uninitiated know of the matter, it is generally under- stood to be this : A Governor and a Council appointed by the Hudson's Bay Company, and holding their meetings at the Company's forts in the Red River Settlement, form the entire executive administration. The Governor being also the only legal functionary in the settlement, the Company's legal adviser, the judge, the directors of the Company (in London) and their representative, the Governor of Rupert's Land (residing for the most part at Lachine) make all the appointments. Hence it devolves chiefly on " the Governor and Council of Assinniboia," as it is in Hudson's Bay form expressed, to preserve the peace, and to maintain law and order in those districts. Can that government, appointed although they be by the Company, and with all the influence of the Company to support them — can they prevent adventurers (I will not call them " lawless and dishonest," for they are chiefly natives seeking to earn an honest livelihood in their own land) from infringing upon the assumed rights of the Company over the other portions of what they are pleased to call Ru^>ert's Land'} They cannot, and it would be clearly an impossibility for any government established by Canada to prevent natives of that country, or in fact any others who miglit choose to do so, from trading in that extensive territory, wherever they might find it most advantageous to do so. Nor can I suppoio that a Canadian Gov- ernment would for one moment under any circumstances entertain such an idea. As is well known, the Hudson's Bay Company have for years past held leases from Government of the King's Posts and Seigniories in Lower Canada. Have they been able to prevent intrusion on the Queen's domain and infringements of the rights given by these leases 1 No, certainly not ; and what has been their remedy 1 Recourse by civil action to the courts of Canada whenever they were disposed to try the question. And so it will and must be in the districts of Red River, when other laws than those of the Hudson's Bay Company shall have been there established. Whatever the form of government that may be decided upon, the preservation of peace and the maintenance of law and order will, of course, be its legitimate objects. There need, however, be no apprehension of any disturbance of the peace, except from the officers or servants of the Company, who may take upon themselves to determine (as 1 u 06 THE CANADIAN RED RIVER EXPLORING EXPEDITION, 1858. in the case of Mr. Bannatyne) what is an infringement of the Company's rights, or an intrusion on the Company's undefined boundary line, according to their own ideas. It is, therefore, in my humble opinion, much to be desired, even for the sake of peace and good order, that the whole trade should be free and open to all British subjects. That it would be requisite, in such case, to place the trade under certain restrictions and enactments (as to the introduction of ardent spirits, for instance) is clear, but that all in the territory, from the jRocky Mountains to the Hudson's Bay, whether servants of the Hudson's Bay Company or not, whether at Red River or on the shores of Hudson's Bay, should be amenable to the jurisdiction of the Red River Government, is equally clear, and a measure of necessity and good policy. As regards tuv^ governing of these territories from or by Canada, the difficulties do not appear greater than they are at the present moment, under the rule of the Company. The gentleman who fills the office of Governor of Assinniboia is a lawyer from Monii.r ing on the inhabitants the rights of election in their several municipalities would be all that the state of the country would require for several years to come. I am confident I speak the sentiments of the Red River people when I say their chief desires are, a voice in their own government, and freedom to trade in the best markets within their reach. I vetiture to offer these few remarks, suggested by the local knowledge and experience acquired in the several positions in which I have been placed, and submitting them to your favourable construction as to the motives by which I am actuated. I have the honour, etc. Geo RGB GliADMAN. To the Honourable The President of the Council. The Provincial Secretary to Sir George Simpson, the Hudson's Bay Company's GovEBNOR OP Rupert's Land.* Secretary's Office, Toronto, Uth April, 1858. Sir, — I am commanded by his Excellency the Governor-General to state to you, for the information of the Honourable Hudson's Bay Company, that it is the intention of the Canadian Government to send a lother expedition this year into the country in the neigh- bourhood of the Red River Settlement, for the purposes of exploration. 2. The expedition will be divided into two parties, of which one will be under the direction of Professor Hind, and the other under that of Mr. Dawson. Both of these gentlemen served with the expedition last year sad the latter is still at Red R^* *-er. 3. The operations of Mr. Dawson and his party, probably about twenty men, will be confined pretty much to the same ground as last year, namely, the route from Fort *Seu. Papen, Can., 1868, Vol. 16, No. 3. THE CANADIAN RED BIVKR EXPLORINQ EXPEDITION, 1868. 67 William to Fort Garry ; while the operations of Professor Hind and his staff will extend to the country west of Red Rivdr and Lake Winnipeg, and below the Rivers Assiniboinfi and Saskatchewan, as far west as •' South Branch House." 4. His Excellency desii'es to bespeak through you for the expedition this year the same courteous assistance from the officers and servants of the Company on the line of the oroposed expedition, which was so readily proffered last year, and which was (his Excel- lency is informed) so freely extended to all the members of the expedition. 5. This letter will be delivered to you by Professor Hind, who is about to repair to Montreal on business connected with the expedition. 6. Professor Hind would be gla< to be favoured by you with a general letter, addressed to the officers in charge of the Company's posts on the route about to be visited by him, requesting them to promote, as far as in their power, the general objects of the expedition under his charge. His Excellency desires me to state that he trusts it will be in your power to gratify Mr. Hind's wishes in this matter, as he doubts not it would very materially advance the object of the expedition. I have the honour, etc.. Sir George Simpson, Governor Hudson's Bay Company, Hudson's Bay House, Lachine, Montreal. T. J. J. LORANQER, Secretary. Sir George Simpson to the PROViNciAt Secretary.* lAY Company's Hudson's Bay House, Lachine, 2Srd April, 1858. Sir, — I have the honour to acknowledge your communication, dated 14th instant, informing me, by command of his Excellency the Governor-General, of the intention of the Canadian Government to send another expedition this year to the neighbourhood of the Red River Settlement, for the purposes of exploration, and requesting for the expe- dition tiie same assistance from the Hudson's Bay Company as was rendered to its mem- bers last season. In reply, I beg to state that your letter was delivered to me in person by Professor Hind, to whom I intimated verbally, that it afforded the Hudson's Bay Company at all times great pleasure to render good offices to the Government of Canada, and that such assistance as could be given at the Company's posts to the expedition under his command would be freely rendered. I have already famished Professor H^'nd with the letters of introduction to the Hudson's Bay Company's officers, which you apply for, and given him the necessary authority to obtain canoes and other supplies at Sault Ste. Marie and Fort William. The usual equipment of tent and other camp appointments for his use, while travelling in the interior, has been provided from the Company's store. Beggiug you will assure his Excellency the Governor-General that the Hudson's Bay Company will forward the objects of the exploring expedition with the same cordiality with which they are ever anxious to co-operate with the Government of this Province, I have the honour, etc., 'ITio Honourable T. J. J. Loranger, etc., etc. G. Simpson. M fi, I • riess. Papers, Can., 1858, Y(A. 16, No. 3. 11 68 ADDRESS OF CAl^ADIAN PARLIAMENT TO HER MAJESTY, 1858. Address of the Canadian Parliament to E MTY, 13Tn AuQuaT, 1858. ♦ i '$. To the Queen's Moat Excellent Majesty. Most Grvjious Sovereign, — We, Your Majesty's most dutiful and loyal subjects, the Legislative Council and Assembly of Canada, in Provincial Parliament assembled, humbly approach Your Majesty, for the purpose of representing — That the approaching termination of the License of Trade granted by Your Majesty's Imperial Government to the Hudson's Bay Company over the Indian Territories, a portion of which, in our humble opinion, Canada has a right to claim as forming part of her terri- tory, renders imperative the adoption of such measures as may bo necessary to give effect to the rights of the Province, and presents a favourable opportunity for obtaining a final decision on the validity of the Charter of the Company, and the boundary of Canada on the north and west. That Canada, whose rights stand affected by that Charter, to which she was not a party, and the validity of which has been questioned for more than a century and a half, has, in our humble opinion, a right to request from Your Majesty's Imperial Government a decision of this question, with a view of putting an end to discussions and questions of conflicting rights, prejudicial as well to Your Majesty's Imperial Government as to Canada, and which, while unsettled, must prevent the colonization of the country. That the settlement of the boundary line is immediately required, and that therefore we humbly pray Your Majesty that the subject thereof may be forthwith submitted for the opinion of the Judicial Committee of Your Majesty's Privy Council, but without restriction as to any question Canada may deem it proper to present on tho validity of the said Charter, or for the maintenance of her rights. That any renewal of the license to trade over the Indian Territories should, in our humble opinion, be granted only upon the conditions that such portions thereof, or of the other territories claimed by the Company (oven if their Charter be held valid), as may be required from time to time to be set apart by Canada, or by Your Majesty's Government, into settlements for colonization, should, as so required, be withdrawn from under any Buch license and the jurisdiotlon and control of the said Company ; and that Your Majesty's Government, or the Governor-General in Council, should be permitted to grant licenses to trade in any portions of the said territories while held by or in occupation of the said Company, upon such conditions for the observance of law and the preservation of tho peace, for the prohibition or restriction of the sale of ardent spirits, for the protec- tion of Indian tribes from injury or imposition, and with such other provisions as to Your Majesty's Government, or to his Excellency in Council, may seem advisable. That in our humble opinion Canada should not be called upon to compensate the said Company for any portion of such territory from which they may withdraw, or be compelled to withdraw, but that the said Company should be allowed to retain and dispose of any portion of the lamls thereof on which they have built or improved. All which we hum I y pray Your Majesty to take into Your Majesty's gracious and favourable consideration. * Journnls, Lsgislative Assembly, Canada, 1858, p. 1028. Ill RESOLUTIONS MOVED BY MR. W. M'D. DAWSON, 1858. \ 69 RBS0LUTI0N8, MOVED BY Mr. W. MoD. DaWION, IN TUB LkUISLATITB Aa8KHBtY| Canada, 13tu August, 1858, in amendment to the Resolutions, for thb FORBQoiNu Address. Neqativbd on a votk or 42 to 23.* 1. Jieaolved, That Canada, or New France, as originally known and recognized bj European nations, had no limit towards the north except the Frozen tiea, and no limU towards the west except the Pacific Ocean. 2. Jieaolved, That a Charter was granted by King Charles the Second of England, in 1670, to certain parties as "The Merchants Adventurers of England, trading to Hudson's Bay," which, although neither the grantor nor the British people knew anything, at that time, of the interior of the country about Hudson's Bay, nevertheless precluded the Company from entering upon the possessions of France ; the Charter thus bearing upon its face a doubt of the extent, or indeed the existence, of the title it professed to convey, and a knowledge of the fact that the right to the country, even on the shores of Hudson's Bay (which only was then known to England), was, in whole or in part, vested in France. 3. Jieaolved, That from the tirst moment the intrusion of the Hudson's Bay Company became known to France, or to the Canadian authorities of that day, it was forcibly and for the most part successfully resisted, though in a time of peace between Great Britain and France. 4. Jieaolved, That by the Treaty of Peace concluded at Ryswick, in 1697, between Great Britain and France, most of the places situate on Hudson's Bay were recognized as belonging to France, while the claims of the two nations to the remaining places were to be determined by commissioners respectively appointed for that purpose, who, however, never met for the object contemplated. 5. Jieaolved, That by the Treaty of Peace concluded at Utrecht, in 1713, the whole of Hudson's Bay (saving the rights of the French occupants down to that period) was ceded by France to Great Britain, but without defined limits, which were also to be determined by commissioners, who, however, in like manuer, never met for the purpose. 6. Jieaolved, That the extent of the actual possession, by each of the two nations, affords, therefore, for the next fifty years, the true basis of their respective rights, unaf- fected by the various propositions, not based upon the treaty, but conventionally made or rejected by the one or the other. 7. Jieaolved, That during the said period the possession of Great Britain, through the medium of the Hudson's Bay Company, was confined to the shores of Hudson's Bay, or extended a very short distance inland, while France was in possession of the interior countries to the south and west, including the Red River, Lake Winnipeg, the Sas- katchewan, etc. 8. Jieaolved, That by the Treaty of Paris, in 1763, Canada was ceded by France, as then possessed by her, to Great Britain, reserving to the French inhabitants all the rights and privileges of British subjects — a provision made specially applicable to the Western Territories (then the great seat of the fur trade) by the capitulation of Montreal. 9. Reaolved, That Canadians, alike of British and French origin, continued the fur trade on a large and increasing scale, from 1763 to 1821, by the Ottawa, Lake Superior, tlie Saskatchewan, etc., west to the Pacific Ocean, and by the McKenzie River north to the North Sea. 10. Reaolved, That in 1774, the Hudson's Bay Company, exercising the undoubted right of British subjects, also entered upon the Saskatchewan and other parts of the ♦Journals, Legislative Assembly, Canada, 1858, p. 1026, the same Journals, were as follows : The yeas and nays, appearing at p. 1028 of Ybas— Messieurs Aikins, Bell, Biggar, Cauchon, Christie, Clark, Dawson, Dorland, Dufresne, Gould, Hfliert, Rowland, Jobin, Mattioe, McDougall, McKellar, Munro, Notman, Papineau, Powell (Walker), Rymal, Short, Wright. -23. Nays— Messieurs Archambeault, Baby, Beaubien, Bellingham, Benjamin, Burton, Cameron (John), Carting, Cayley.Cartier (Atty. -Gen.), CoutWe, Daoust, Dionne, Dunkin, Ferres, Fournier, Gaudet, Har- wood. Holmes, Labelle, laacoste, Laporte, LeBoutillier, Loranger, Macbeth, McCann, McDonald (A. P.), McMicken, Morrison, Panet, Play fair, Robinson, lioblin, Rose (Sol. -Gen.), Scott (William), Sicotte, Simwrd, Simpson, Smith (Sidney), Talbot, Turcotte, Wright.— 42. 70 RESOLUTIONS MOVED BY MR. W. M'D. DAWSON, 1858. Canadian Territory cednd by the Treaty of Paris, and carried on the fur trade there^ though on a loHser Rcalo than the North- West Company of Canada. 11. Re'Holved, That, about the year 1812, the Hudflon's Bay Company, under the auspices of tho Earl of Selkirk, set up the pretence that the countries on the Red River, the Saskatchewan, etc., and the jurisdiction thereof, belonged to them in virtue of their Charter of 1670, and attempted practically to enforce this view by the expulsion of the North-Wpst Company, which, however, they failed to effect, and in the attempt to do which tho deciHioDS of the Imperial and Canadian authorities wore uniformly adverse to their pretensions. 12. Resolved, That after a protracted struggle between the two Companies, they united in 1821, and obtained a joint lease from the Imperial Qovemmont of the "Indian Territories." 13. Resolved, That under this lease the two Companies — uniting upon the policy of the Hudson's Bay Company — have since carried their trade through Hudson's Bay, allowing the cheaper and more advantageous route by the St. Lawrence to fall into disuse, to the serious detriment of the resources of Canada, to which the fur trade had always been a source of great wealth. 14. Resolved, That the said "Indian Territories" being without any specific terri- torial designation, the Company have taken advantage of this circumstance to disseminate such views as were most suitable to their own objects ; publishing maps and creating territorial divisions, upon paper, alike inconsistent with all authority, contrary t ) his- torical facts, adverse to geographical association, and even in direct contradiction to the terms of the Statute under which their lease is held ; and by these means they have suc- ceeded in imposing upon the people of Canada so as to exclude them from a lucrative trade which, in fact, vbere is o lease, charter, or law to prevent them from prosecuting. 15. Resolved, That, therefore, the Hudson's Bay Company under their Charter (in itself held by eminent jurists to be invalid and unconstitutional, void, also, as this House believes it to be, on the ground that the countries it professes to grant belonged at that period to France) cannot, by virtue thereof, in any event, claim the interior countries on Lake Winnipeg and the Saskatchewan ; and under their lease of the Indian Territories can claim the exclusive trade of such countries only as they may prove to be no part of Canada. 16. Resolved, That this House maintains the right of the people of this Province to enter upon and freely to trade in that part of Canada, or Nouvelle France, as originally known, on Hudson's Bay, ceded by France to Great Britain in 1713; and, independently of the ownership thereof having been in France previous to 1670, denies the existence of any constitutional restriction to preclude them from enjoying the rights of British subjects in that or any other British territory. 1 7. Resolved, That, by the Treaty of Paris, the Mississippi necessarily became the westerly boundary of the then southerly part of Canada (now part of the United States), because France retained the west bank of that river from its source downwards ; but the territory lying nortii of the source of the Mississippi, thence west, forming the northerly boundary of Louisiana, previously possessed by France, and so ceded by the said treaty, this House claims (save in so far as it has since been relinquished to the United States) as an integral part of Canada, without any westerly limit except the Pacific Ocean. 18. Resolved, That a joint address of the two Houses of Parliament be presented to Her Majesty, founded upon the above resolutions, and praying that, in consideration of the injurious consequences to the trade and general interests of this Province resulting from the indefinable nature of the " Indian Territories," under cover of which the lessees have been enabled to create a monopoly in localities not legally affected by their lease of the said territories. Her Majesty may be graciously pleased to refuse any renewal of such lease to the Hudson's Bay Company; and further, that Her Majesty may be pleased to sanction no Act by which the existing territorial rights of jurisdiction of this Province would be affected. Report op CORHESPONDENOK RKSPEOTINO JOINT ADDRK8S OF ('ANADIAN PARLIAMENT. 71 Tub Oovbrnor-Gkneral to thk Colonial Seorbtary.* GOVBUNMRNT HOUSB, ' » Toronto, August 16, 1888. Sib, — I havo tho honour to oncloHo n Joint Address from th« Ij^iginlative Council and AHSouibly of Canada, to Her Majesty tho Quoon, on the suhject of the Territory of the Hudson's Bay Company, which I request may be laid at the foot of tho Throne. The Right Honourable Sir E. B. Lytton, Baronet, etc., etc., etc. I liave, etc., Epmuno Head. Report OP A Committee op Council, Canada, dated 4t!i Septembkh, 1858, approved nv the Govehnor-Gbneral on the 9tii September, 1858.* The Committee of Council respectfully recommend that the Resolutions passed by the Legislative Council and the Legislative Assembly, and the Joint Address thereon of both Houses, on the subject of the Hudson's Bay Territory, be urged upon the attention of the Imperial Government, by such members of the Executive Council as may be in London during this present autumn ; and that, at the same time, the importance of opening a direct line of communication, by railway or otherwise, from Canada through the Red River and Saskatchewan Territories, to Fraser's River and Vancouver's Island, be brought by them under the notice of tho Imperial authorities. Certified. Wm. H. Lee, Clerk C. E. C. Tub Governor-General to the Colonial Secretary.* Quebec, September 9, 1858. Sir, — I have the honour to enclose a Copy of a Minute of the Executive Council of Canada, approved by myself this day, respecting the Joint Address of both Houses of the Provincial Legislature, on the subject of the Hudson's Bay Territory, and the questions connected therewith. I fully concur with my Council in the importance of this matter, and would press ita consideration on Her Majesty's Goyernment. I have, etc., Edmund Head. The Right Honourable Sir E. B. Lytton, Baronet, etc., etc., etc. • Sesi. Papers, C»n., 1869, Vol. 17, No. 7. 72 CORRESPONDENCE BETWEEN COLONIAL OFFICE AND H. B. CO., 1858. The Colonial Secretary to the GovERNOR-GE>fKRAL.* Downing Street, 26th October, 1858. Sir, — I have to acknowledge the receipt of your despatch, No. 117, of the 9th Sep- tember, enclosing a Copy of a Minute of the Executive Council of Canada, respecting the Joint Address of the Provincial Legislature, relative to the Hudson's Bay Territory, and the questions connected therewith. This important subject will not fail to receive the careful consideration of Her Majesty's Government. I havo, etc., Governor Sir Edmund Head, etc., etc., E. B. Lttton. etc. The Deputy Governor of the Hudson's Bay Company to the Colonial Secretary.* Hudson's Bay House, 12th October, 1858. '"^SiR, — With reference to a communication addressed to me, under date of the 3rd ultimo, the receipt of which I had the honour to acknowledge on the 7th of that month, I beg now to state that this Company can only re-assert their right to the privileges granted to them by their Charter of Incorporation, tho extent and nature of which they have already fully explained in the papers which will be found amongst those printed by order of Parliament. I refer particularly to a letter addressed by Sir J. Henry Pelly to Earl Grey, dated 13th September, 1849, enclosing a paper entitled " Statement of the Rights as to Territory, Trade, Taxation, and Government, claimed and exercised by the Hudson's Bay Company, on the Continent of North America," and marked No. 2, among the papers on the affairs of the Hudson's Bay Company, printed by order of the House of Commons, on the 12th of July, 1850. This Company cannot, therefore, be a consenting party to any proceeding which is to call in question rights ao long established and recognized, but they will, of course, be pre- pared to protect themselves against any attempt that may be made on the part of the Canadian authorities to deprive them, without compensation, of any portion of the terri- tory they have so long been in possession of. I have, etc.. The Right Honourable Sir E. Bulwer Lytton, Baronet, etc., etc.. H. H. Berbns, Deputy-Governor. etc. The Under-Secretary to the Deputy Governor of the Hudson's Bat Company.* Downing Street, 3rd November, 1858. Sir, — I am directed, by Secretary Sir E. B. Lytton, to acknowledge the receipt of your letter of the 12th October. Sir E. Lytton will not conceal the disapoointment and regret with which he has * Ses*. Papers, C»n., 1869, Vol. 17, No. 7. >?*.-. CORRESPONDENCE BETWEEN COLONIAL OFFICE AND H. B. CO., 1858'. 73 ration of Her i Secretary.* received that communication, containing, if he understands its tenor correctly, a distinct refusal on the part of the Hudson's Bay Company, to entertain any proposal with a view^ to adjusting the conflicting claims of Great Britain, of Canada, and of the Company, or to join with Her Majesty's Government in affording reasonable facilities for the settlement of the questions in which Imperial, no less than Colonial, interests are involved. It is Sir E. Lytton's anxious desire to come to some equitable and conciliatory arrangement by whidi all legitimate claims of the Hudson's Bay Company should be fairly considered with reference to the Territoiies or the privileges they m&y be required to sur- render ; but if the decision as conveyed in your letter, be regarded as final, all power to facilitate such an arrangement is withdrawn from his hands. By that decision, Sir E. Lytton sees with regret, that a process of temperate and amicable enquiry and adjudication must be exchanged for a legal conflict, where all parties concerned will be brought into antagonistic and even hostile relations, and where it is manifest that the terms of compensation, compromise, and mutual convenience, which Her Majesty's Government would, under other circumstances, have been able to negotiate, must become far more diSicult of attainment, if not actually unattainable. Unsatisfactory as this result would be, Sir E. Lytton will not feel at liberty to decline it. He desires that the Hudson's Bay Company should distinctly understand, that, in his opinion, the time for arriving at some authoritative definition of conflicting claims can no longer be postponed with safety, or in justice to public interests ; and both Canada and the British Parliament might justly complain of further and unnecessary delay. But before deciding finally upon the course to be pursued, he desires to place once more the question before the Hudson's Bay Company, with a sincere hope that on a further consideration they may see the expediency of modifying the determination which your letter announced. Where on all sides interests so great and various are concerned, the wisest and most dignified course will be found, as Sir E. Lytton has on previous occasions pointed out, in an appeal to, and a decision by, a Judicial Committee of the Privy Council, with the con- currence alike of Canada and of the Hudson's Bay Company. If the adoption of such a procedure be advantageous to the interests of all parties concerned, Sir Edward cannot but think it would be particularly for the interest of the Hudson's Bay Company. It would afford a tribunal pre-eminently fitted for the dispassionate consideration of the questions at issue ; it would secure a decision which would probably bo rather of the nature of an arbitration than of a judgment ; and it would furnish a basis of negotiation on which reciprocal concession and the claims for compensation could be most successfully discussed. In such an event, Sir E. Lytton would be prepared to agree that the Company, if they succeed in maintaining the full rights which they claim, should be indemnified against the costs, and that in any other result it should be understood that each party should bear its own expenses incident to the proceeding. It is not for Sir E. Lytton to dictate to the Company the course which they should pur- sue, but I am to place distinctly before them his own intentions, and to leave them to decide. If, on the one hand, the Company will meet Sir E. Lytton in finding the solution for a recognized difficulty, and will undertake to give all reasonable facilities for trying the validity of their disputed Charter, they may be aure that they will meet with fair and liberal treatment, so far as Her Majesty's Government are concerned ; but if, on the other hand, the Hudson's Bay Company persist in declining these terms, and can suggest no other practicable mode of agreement. Sir E. Lytton must hold himself acquitted of further responsibility to the interests of the Hudson's Bay Company, and will take the necessary stops for closing a controversy too long open, and for securing a definite decision which is due to the material development of British North America, and the requirements of an advancing civilization. It is only fair to add, that in such case the renewal of the exclusive license to trade in any part of the Indian Territory, a renewal which could only be justified to Parliament as part of a general arrangement, adjusted on the principles of mutual concession, must become impossible. I have, etc., Captain Berens. Carxartow. jf m i %(' m \' fs •t vr Y \ n« t m ! ^ ' 'Til 1 W 74 CORRESPONDENCE BETWEEN COLONIAL OFFICE AND H. B. CO., 1868. The Deputy-Governor of the Hudson's Bay Company to the Colonial Secretary.* I!: Hudson's Bay House, 10th November, 1858. Sir, — I have the honour to acknowledge the receipt of Lord Carnarvon's letter of the 3rd instant, to which I now beg to reply, as I am anxious that the views and inten- tions of this Company should not be misunderstood. In the year 1850 a correspondence passed between the Colonial Office and this Com- pany in reference to the objections raised by certain parties in regard to the validity of the rights claimed by this Company under their Charter, and, under date of the 24th January, 1850, Mr. B. Howes, by desire of Lord Grey, transmitted to SirH. Pelly, the then Governor of this Company, a copy of a letter proposed to be addressed by his Lordship to Mr. Isbister, the person bringing forward the complaints referred to. In answer to that communica- tion, the Secretary of this Company, under date the 29th January, 1 850, stated that there was nothing in the letter so proposed to be addressed to Mr. Isbister, to which the Directors of the Company had the least objection. At that period the consent of this Company was not asked, and the Law Officers of the Crown stated as their opinion that the proper mode for raising the question for dis- cussion would be to embody in a petition to the Queen, any complaints urged against the Company ; and they recommended that any such petition should be referred by Her Majesty to the Judicial Committee of the Privy Council. On that occasion it was dis- tinctly stated that the petition must be confined to the subject to which the resolution of the House of Commons of 5th July, 1849, extended — that subject being an inquiry into the legality of certain powers claitned and exercised by the Hudson's Bay Company, under their Charter, but not questioning the validity of the Charter itself. No petition, however, was then presented, and there the matter rested until the year 1857, when a select Committee of the House of Commons was appointed " to consider the state of the British possessions in America, under the administration of the Hudson's Bay Company, or over which they possessed a license to trade." In the month of July, 1857, a communication was made to this Company by Mr. Labouchere, the then Secretary of State for the Colonies, calling the attention of the Company to a statement received from the Law Officers of the Crown, having reference solely to the question of the geographical extent of the territory claimed by this Company, as included in the grant by their Charter, recommending that the subject should be referred to the Privy Council, and stating that this could not be done, except by the con- sent of both parties, namely, Canada and this Company. In reply to this communication, the Governor of the Company informed Mr. Labouchere, under date 18th July, 1857, that the Directors of this Company would be prepared to recommend to their shareholders to concur in the course suggested. The suggestion now made to the Company, as set forth in the Address to Her Majesty vrom the Canadian Legislature, and to which my letter of the 12th ultimo had reference, is that they should give their consent to an inquiry before the Judicial Com- mittee of the Privy Council, which inquiry is to involve not merely the question of the geographical boundary of the Territories claimed by them, but to challenge also the va- lidity of the Charter, and, as a consequence, all the rights and privileges which it professes to grant, and which have been exercised by the Company for a period of nearly 200 years. If such an inquiry should be gone into in the manner suggested by the Law Officers of the Crown, in 1850, the Company will now, as it was then, be prepared to appear on that inquiry, in support of their rights, but in that event no consent on their part will be necessary, nor, as I have already observed, was any consent asked for or suggested when the former inquiry was contemplated. But if the validity of their Charter itself is to be called in question, the Committee feel that in justice to their Shareholders it would be impossible for them to be consenting parties to proceedings instituted with such an object. The Attorn: Seas. Papers, Can., 1859, Vol. 17, No. 7. OPINION OF THE LAW OFFICERS AS TO PROCEEDINQ BY 8cire faciaS, 1858. 75 Secretary.* The Company has at all times been willing to entertain any proposal that might bo made to them for the surrender of any of their rights or of any portion of their territory ; but it is one thing to consent, for a consideration to be agreed upon, to the surrender of admitted rights, and another to volunteer a concent to an inquiry to call those rights in question. While, therefore, I and my colleagues in the Direction of the Hudson's Bay Com- pany, are anxious to do all that we can, consistently with our duty to our shareholders, to meet the wishes both of Her Majesty's Government and of the Canadian Legislature, we feel that we cannot return any answer to your letter of the 3rd instant, than that which is conveyed by the letter on the same subject, which I had the honour of addressing to you on the 1 2th ultimo. I have, etc., The Right Honourable Sir E. B. Lytton, Earonet, etc., etc., etc. H. H.'Berens, Deputy Governor. i > ! The Attorney-General and SoLiciTOR-GENERAii (Eng.) to the Colonial Secretary.* Temple, 16th December, 1858. Sir, — We were favoured with your commands signified in Mr. Elliot's letter of the 2nd December inst., in which he stated that with reference to the opinion received from us dated the 30th October, ultimo, relative to certain questions pending with the Hud- son's Bay Company, he was directed by you to transmit to us the accompanying copies of a correspondence with that Company, and that we should perceive that the Directors of the Hudson's Bay Company decline to be consenting parties to a reference of the pro- posed questions respecting the validity and extent of their Charter and respecting the geographical extent of their Territory, to the Judicial Committee of the Privy Council. Under these circumstances it was understood from our former opinion that no other course remains open for trying those questions than a proceeding by scire facias. Mr. Elliot was also pleased to state that you inferred from the views which have been expressed on the subject by the Government and Parliament of Canada, that the Canadian Government will be prepared, if necessary, to take steps for organizing that mode of procedure. Mr. Elliot was also pleased to request that we would take these papers into our consideration, and favour you with our opinion whether it will be expedient to apply to the Government of Canada to tako such steps as may be requisite for the purpose of commencing the proceeding by scire/acias, and, if so, what those steps should be ; or if it should be our opinion that there are any difficulties in the way of the commencement of that proceeding by the Government of Canada, that we would advise what steps should be taken in this country for accomplishing the intended object. In obedience to your commands, we have taken these papers into consideration, and have the honor to report that the Directors of the Hudson's Bay Company having declined to become parties to the proceeding before the Judicial Committee of the Privy Council, to which they were invited, we apprehend that the only course open for the determination of the questions arising on their Charter, is by scire facias brought to repeal the Charter, as suggested in our report of the 30th October ultimo. This proceeding may be instituted by the Canadian Government in the name of any individual subject of Her Majesty, and we apprehend it will now be proper to ascertain from the Canadian Government whether they are willing and ready to commence such proceeding. *SeB8. Papers, Can., 1869, VoL 17, No. 7. i- ;•:!' W yf I'M' 76 OPINION OF THE LAW OFFICERS AS TO PROCEEDINO BY Scive fados, 1858. If the Canadian Government think fit to proceed by scire facias, and to authorize some Agent in this country to apply for the writ, there will be no difficulty in obtaining the writ ; but we think that, in the first instance, all necessary steps should be taken with the aid of their own legal advisers, by the Canadian Government. "We have, etc., Sir E. B. Lytton, etc., etc., etc. FiTZROT Kellt, H. H. Cairks. The Colonial Secretary to the Govkrnor-Genebal.* Downing Street, 22nd December, 1858. Sir, — I duly received your despatch. No. 106, of the 16th August last, and laid before the Queen the Joint Address to Her Majesty, which accompanied it from the Leg- islative Council ai id Assembly of Canada, relative to the Territory of the Hudson's Bay Company. The subject of this Address has occupied my careful consideration, and I transmit to you the copies of a correspondence respecting it, which has taken place between the Com- pany and this Department. From this correspondence you will perceive that the Hudson's Bay Company decline to be consenting parties to a reference of questions respecting the validity or extent of their Charter to the Judicial Committee of the Privy Council, and under these circum- stances the Law Advisers of the Crown, whom I have consulted in the matter, have stated in an opinion, of which I forward a copy, that the only course open for the determi- nation of these questions is hy writ of scire facias brought to repeal the Charter. I have, therefore, to request that you will submit the accompanying papers to your Government, and invite them to take steps to obtain the writ in accordance with the sug- gestion of the Law Advisers ; and that you will inform me as soon as practicable, of the course which the Government of Canada may resolve to adopt in this matter. Parliament will doubtless meet in the first week of February, and I .leed not say how desirable it would be if Her Majesty's Government could then be prepared to notify the decision of Canada. I have, etc.. The Right Honourable Sir E. Head, Baronet, etc., etc., etc. E. B. Lytton. The Under-Secretary to the Governor of the Hudson's Bay Company.* ill; Downing Street, 28th January, 1859. Sir, — With reference to former correspondence on the pending qaestions between Her Majesty's Government and the Hudson's Bay Company, I am directed by Secretary Sir E. Bulwer Lytton, to request you will inform the Directors of the Hudson's Bay Com- pany, that Her Majesty's Government, after the maturest consideration, are not prepared to grant to the Company a renewal for a term of years of the license of exclusive trade which they now enjoy over the Territories of North-Western America, but which is not claimed under their Charter, and not included in British Columbia. At the same time, regard being had to the proximity of the period at which the pre- ♦ Seii. PaporB, Can., 1859, Vol. 17, No. T. CORRESPONDENCE BETWEEN COLONIAL OFFICE AND H. B. CO., 1859. 77 sent license will expire, namely, in May next, and the injury to the public interest in the regions comprised in the license which might in the present state o£ things arise from its termination at that date. Her Majesty's Governmont are willing to grant the Hudson's Bay Company a fresh license for one year, to commence from the expiration of the pre- sent license; I have, etc., ; Carnarvon. H. Berens, Esquire. , . The Governor op the Hudson's Bat Company to the Colonial Secretary.* Hudson's Bay House, London, February 2nd, 1859. Sir, — I have the honour to acknowledge the receipt of the Earl of Carnarvon's letter of the 28th ultimtj, informing me that Her Majesty's Government are not prepared to grant to this Company a renewal, for a term of years, of the license of exclusive trade over the Indian Territory, but that they are prepared to grant a fresh license for one year commencing from the expiry of the present license. The subject being one of deep impox'tance, and requiring the consideration of the full Board, the Directors now in London feel that in the absence of the Deputy Governor, who is in Scotland, but who is expected to arrive in London to-morrow, they ought to postpone coming to a decision until they have been able to consult with him. I have, however, called a special meeting of the Committee for Friday next, when the subject will be fully considered, and on Saturday, I hope to have the honour of transmitting to you the result of their deliberations. I have, etc.. The Right Honourable Sir E. B. Lytton, Baronet, etc., etc. etc. H. H. B^RENS, Governor, 1 J t "'1 The Governor op the Hudson's Bay Comf ny to the Colonial Secretary.* h iv ih^i which the pre- Hudson's Bay House, London, 8th February, 1859. Sir, — With reference to my letter of the 2nd instant, I have now the honour to inform you that I have this day laid before the Board of Directors of the Hudson's Bay Company, the letter addressed to nie by Lord Carnarvon on the 28th ultimo. His Lord- ship, by your directions, therein informs me, that Her Majesty's Government are not pre- pared to grant to the Company a renewal of the license under the Act of 1st and 2nd Geo. IV., cap. 66. But regard being had to the expiration of the present license in May next, and the injury to the public interests in the region comprised in the license which might in the present state of things arise from its termination at that date, Her Majesty's Government are willing to grant to the Hudson's Bay Company a fresh license for one year, to commence from the expiry of the present license. The Board direct me respectfully to decline that offer. The acceptance on their part of the license for any period of shorter duration than that which has been usually granted since the passing of the Act above mentioned, would, in their opinion, only further *SeiB. Papers, Can., 1859, Vol. 17, No. 7. 'h^ ;, .* I 73 CORRESPONDENCE BETWEEN COLONIAL OFFICE AND H. B. CO.^ 1859. increase the inconveniences resulting from the state of suspence in which the question has been kept for the last two years ; so far from strengthening, it would paralyze their author- ity even within their own Territory, from the impression it would create of the approach- ing termination of tha*. 'lathority. They do not require, and never have applied for the license for the purposes of their trade. The Act passed at their suggestion in 1821 was intended for the preservation and maintenance of peace and order in the whole of the Indian Territories. These had been grievously compromised by conflicts of the servants of rival traders, whoso interests were about that time united ; no means are provided in the Act for the enforcement of its provisions, so as to give additional protection to the trade. The intelligence of the renewal of the license for a year would not even reach a large por- tion of the posts of the Company before that period had expired. The Board beg respectfully again to bring under your review the whole of the cor- respondence and proceedings which have had reference to this subject since their first application, dated December 22nd, 1856, for a renewal of the license. In consequence of that application, and of the approaching period of the expiration of the existing license, the late Secretary of State for the Colonies, Mr. Labouchere, referred the matter to the consideration of a Committee of the House of Commons. Much evidence was taken before that Committee. The Board, through the medium of their late Chairman, Mr. Shepherd, communicated fully their opinions and intentions with respect to the past and future interests of the Hudson's Bay Company, in a letter to Mr. Labouchere, dated the 18th July, 1857,* which was laid before that Committee. For fear that that letter may have escaped your re'^ollection, they think it essential at this moment, to transmit a copy of it for your information ; no change has taken place in the situation of the Company, nor in any circumstances connected with their affairs, to induce the Directors to change in any respect the course which they have announced to Her Majesty's Government it was their intention to pursue. Nor have they at any time, in any subsequent communication, departed, or intended in any respect to depart, from the principles on which they then intended, and still intend to act. The Board were then as much aware as they are now of the unpopularity attaching to the existence of the monopoly. That consideration made it more essential that they should weigh with the greatest caution every step in their proceedings which might entail further personal responsibility upon them. No monolopy can be upheld on any ground short of a conviction of its necessity as the best, if not the only means of accomplishing some exceptional object, The Board have therefore entreated that the Government might, in the first instance, decide the question of the maintenance or abolition of the monopoly, either for the present or for any future purposes for which it may be required. If better means can be devised of maintaining order and peace in the Indian country, and for the protection of the Indian Tribes from the evils which have hitherto been found inseparable from competition in the trade, as well as for the colonization and agricul- tural improvement of the Territory, the question of the abolition of the Hudson's Bay Company should only be one of just indemnity to the shareholders for their legal rights and interests. If, on the other hand, it should be found impossible to devise better means for the Government of the country, the hands of the Directors should be strengthened to enable them to fulfil the public purposes for which their services have been considered efficient and satisfactory for the last forty years j any diminution of the confidence and support they have hitherto received from the Government, or even any appearance of it, would weaken their power both with Indians and settlers in the country. The above course would not be inconsistent with any extension of colonization or settlement which qither Her Majesty's Government or the Government of Canada can have in view in that part of Her Majesty's dominions now possessed or occupied by the Company, or with the accomplishment of all the objects recommended in the Report of the Committee of the House of Commons. The Board lamented to see, and have hitherto abstained from adverting to some *[See thiB letter, p. 47, ante.—G. E. L.] 1859. CORRESPONDENCE BETWEEN COLONIAL OFFICE AND H. B. JO, 1859. 79 3 question has B their author- the approach- pplied for the nin 1821 was 3 whole of the if the servants re provided in m to the trade. ;h a large por- ole of the cor- ince their first the expiration •. Labouchere, of Commons, bhe medium of md intentions , in a letter to lat Committee. it essential at las taken place h their affairs, a announced to )y at any time, jO depart, from irity attaching ntial that they h might entail on any ground accomplishing ) Government bolition of the ,y be required. 1 country, and to been found and agricul- ludson's Bay gal rights and 1 means for the ned to enable dered efficient e and support e of it, would above course which qither in that part or with the mittee of the ting to some expressions in your letter of the 3rd November last, imputing to them unreasonable con- duct in not accepting some terms of compromise which it is alleged had been offered to them. In that letter it is boated, " that you entertain an anxious desire to come to some equi- table and conciliatory arrangement by which all equitable claims of the Hudson's Bay Company should be fairly considered, in reference to the privileges they may be required to surrender." Only two propositions have been made to the Board. The first in a letter from Mr. Merivale, under date the 20th January, 1858, by which it was proposed to refer the question of the Company's boundaries to the Judicial Committee of the Privy Conncil, but distinctly stating that Hei- Majesty's Government, on public grounds, did not consider themselves authorized to raise the question of the validity of the Charter itself, and that if any parties in Canada proposed to take measures for that purpose, Her Majesty's Gov- ernment must leave them to take that course on their own responsibility. To that pro- position the Board gave their unhesitating consent. The other proposition to this Com- pany which was conveyed by your letter of the 3rd September, 1858, and subsequently by that of the 3rd November following, was to the effect, that this Company should volun- tarily concur in some inquiry having for its object to raise the question of the validity of their Charter, and should give facilities for that purpose : thus altogether repudiating the proposition previously received from Her Majesty's Government, and seeking to do the very thing to which on public grounds the Government had previously declined to be a party. This latter proposition therefore the Directors could not, in justice to their con- stituents, for one moment entertain, and they confidently appeal to all their previous communications with Her Majesty's Government as justifying that refusal. Both the present Directors and their predecessors in the management of the affairs of the Company, have been advised by lawyers of the first eminence and authority, that the grant of their land and Territories by the Crown was indisputable and unavoidable. As Trustees, they shouM feel as little justified in consenting to a reference of the pro- prietary rights of their shareholders as kl gratuitously disposing of their property. The conviction of the Directors o* the fiiai position on which they stand, has not been shaken by the opinions of the late ALuomey and Solicitor-General, laid Wore th<3 Committee. The Board have heard of no " conciliatory arrangement by which the equitable claims of the Hudson's Bay Company may be fairly considered, in reference to the privi- leges they may be required to surrender." But the Hudson's Bay Company have invari- ably expressed their readiness to comply with the conditions on which the Committee of the House of Commons recommended the renewal of the license. They are most willing to concede immediately, or gradually, as the same may be wanted, for the purposes of actual settlement,portions of their Territories on the Red River or Saskatchewan, which may be available for cultivation and settlement, on "equitable principles." They are ready to leave those principles to the decision of Com- missioners to be indifferently appointed. They are willing, if it is considered desirable, to remain in temporary possession of those parts of the Territories until adequate arrange- ments shall be made for their settlement and administration by some other authority, and to concede, in the meantime, lands to settlers on such terms as may be recommended by Her Majesty's Secretary of State, and in any other way to assist Her Majesty's Govern- ment in such ulterior views as they may entertain, whether for the purpose of establish- ing those territories as an independent colony, or of placing them under the Government of Canada. The Hudson's Bay Company have done what was in their power to promote settle- ment in such parts of their land as appeared to them most suitable for agricultural improvement. They have been careful at the same time not to involve the capital of the shareholders in hopeless speculations of this description. Their principal object has certainly been the fur trade of the country. They made a grant to Lord Selkirk, who established the agricultural settlement of the Red River, and made arrangements with the Puget Sound Company for same purpose on the territories beyond the Rocky Mountains. When the disorders and troubles broke out in the Red River country, which led to the anion of the North-West and Hudson's Bay Companies, and to the passing of the Act under which the license of trade was granted, it was thought better to put an end to I' til 80 CORRESPONDENCE BETWEEN COLONIAL OFFICE AND H. B. CO., 1869. separate interests, so that the administration both of colony and trade might be conducted under one authority. The Hudson's Bay Company then ro-purchiised the Red River Settlement, and have since endeavoured to encouarge and protect settlers in it. But owing to the circumstances of the country, the inclemency of the climate, the remoteness of markets, and the difficulty of communication, they acknowledge that their efforts have been attended with but little success. After the notice given to them in your letter of the 3rd November, of the intention wholly to withdraw the license, the Board bad taken measures to adapt the administra- tion of their affairs to the altered circumstances in which they would then be placed. They had decided to diminish their establishments in Canada, and to bring their expendi- ture within the strict limits required by their trade. Further arrangements of this description will become necessary, if the colony on the Red River is no longer to be dependent on their ships and means of conveyance for supplies. If, however, the Secretary of State sees fit to reconsider his decision to withdraw the license, the Board will willingly endeavour to concur in any measures by which the hands of the Government may remain unfettered, with respect to any policy which changes in America might hereafter recommend, and the credit and authority of the Com- pany might at the same time be maintained. ' For fear of further misunderstanding on that point, they think it right to protect themselves, in a suggestion they would respectfully make to Her Majesty's Government, from any supposition that they still desired the renewal of the license for the purposes of their trade. It is certainly very essential that there should be no interval between the cessation of their authority and the substitution of some other to prevent or regulate, in as far as that may be possible, the interference of strangers with the Indian tribes, and the renewal of the disorders for the prevention of which the Act of 1 and 2 Geo. IV., cap. 66, was passed. The suggestion they would submit to your consideration is, that the license mi^ht be renewed to the Hudson's Bay Company for the usual period of 21 years, with a reservation of power to the Crown to withdraw it at any time on a notice of two years. They make this suggestion to shew their disposition to assist the Government in the difficulties which they are fully aware beset this question. But the Board direct me to repeat, that they cannot undertake the responsibility of remaining charged with the care of order and peace in the Indian country, under the temporary grant of a license which would almost carry with it an acknowledgment of the doubts which have been thrown upon their rights, and convey an impression of the weakness and willing submis- sion of the Board to the clamour by which thieir administration has unjustly been assailed. I have, etc., The Right Honourable Sir E. B, Lytton, Baronet, T. W. Berbns. etc.. etc. etc. The Colonial Secretary to the Governor-General.* Downing Street, 11th February, 1859. gin In the course of the interview which passed between Messieurs Cartier, Ross, and Gait, and myself, during the visit of those gentlemen to this country in October last, I understood from them that it was the intention of the Government of Canada tounder- take le<'al proceedings in this country against the Hudson's Bay Company, if that Com- pany should refuse to allow the validity of their Charter to be tested by agreement before the Judicial Committee of the Privy Council. It was in consequence of this understanding that I addressed to you my despatch of the 22nd December last, informing you of their refusal. ♦ Seas. Papers, Can., 1859, Vol. 17, No. 7. CORRESPONDENCE BETWEEN COLONIAL OFFICE AND H. D. CO., 1859. 81 It was my hope that I should receive an answer to that despatch, expressing in definitive terms the resolution arrived at by the Canadian Government, before the mef't- ing of the Imperial Parliament, and it now becomes necessary that I should press on you the importance of my receiving such an answer immediately, in order that Her Majesty's Government may determine on the course to be taken by themselves. I have, etc., The Right Honourable Sir E. Head, Baronet, E. B. Lytton. etc.. etc.. etc. The Under-Secretary to the Governor op the Hudson's Bay Company.* Downing Street, 9th March, 1859. Sir, — I am directed by Secretary Sir E. B. Lytton to acknowledge your letter jf the 8th February last, conveying on the part of the Directors of the Hudson's Bay Company their refusal to entertain the proposal which he had caused to be submitted to them, that Her Majesty should be advised to renew their license of exclusive trade with the Indians for a year. Your letter, however, goes also at considerable length into a general statement of tlie present position of the Hudson's Bay Company, and defence of its conduct ; and it becomes necessary that Sir E. Lytton should enter upon that wider field of discussion, so far at least as may be required in order to justify the proceedings of Her Majesty's Government, before he replies to the more urgent part of your communication. I am to state at the outset, that Sir E. B. Lytton has received from the Governor of Canada a despatch, copy of which is enclosed, informing him that the Local Government require to consult the Legislature before deciding whether they will or will not under- take legal proceedings against the Company. Sir E. B. Lytton, in regretting this delay, trusts that it will not be much prolonged. It is obviously due to Canada, on a matter in which she is so much concerned, to grant a reasonable time for a definite answer from the Province ; but as it is also desirable that the whole question regarding the Charter Territories should be settled in the course of tL"^ present session, it is Sir Edward's intention to inform the Governor-General of Can- ada, that if the answer does not arrive by the 1st of May, Her Majesty's Government must feel themselves free to act. To return to the general subject of your letter. • The late Government, as your letter recites, were willing to test before the Judicial Committee, not the existence but the extent of the rights claimed under the Charter. To this proposal the Company assented. But Canada declined to take part in an enquiry so limited. Whatever the original advantages of such a scheme may have been, the refusal of Canada to take part in the proceedings absolutely nullified it. A decision as to the limits of the Charter waiving the question as to its general validity, could, after that refusal, have bound no one except the mere parties to the proceeding, and woulj have been practically useless. That refusal was only conveyed to Sir E. B. Lytton by despatch from Canada of the 16th August last. I am to notice this only to shew that Her Majesty's Government are chargeable with no unnecessary delay, having, notwithstanding the great importance of the subject, allowed as little time as possible to elapse without taking steps in the transaction. Her Majesty's Government had now to consider what effect they could give to the 13th Resolution of the Committee of the House of Commons, in which, after specifying the principal objects which they thought desirable, added — " How far the chartered rights claimed by the Company may prove an obstacle to their attainment, they are not able AS ft ♦ Sess. Papers, Can., 1859, Vol. 17, No. 7. 82 CORltESPONDENCE UKTWKKN COLONIAL OFFICE AND U. h, CO., 1859. with any certainty to say. If this difficulty is to be solved by amicable adjuBtment, such a course will be best promoted by the (iovcrnmnnt, after eonuuuniuiition with the Com- pany, as well as with the Government of Canada, rather than by detailed suggestions emanating from this Committee." With the best attention which they could give to this recommendation. Her Majesty's Government could not but see that the fairest and most direct method tu accomplish it was to test, not the limit, but the validity, of the Charter itself ; and they were, and remain, >of opinion that this was best done by the consent of the three parties concerned. Sir E. B. Lytton is well aware of the proposals made by the Company in Captain Shepherd'n letter of 18th July, 1857, which are referred to, and a little extended as regards Saskatchewan, in yours, which he is now answering. He must be permitted to say that those proposals, though conceived with the sincerest desire to avoid litigation, by no means met the exigencies of the case. Those proposals simply were (for the pvossnt purpose) to relinquish to Government ^ land lit for cultivation and the establishment of agricultural settlers," — land as yet un- ascertained, and in all probability, for the present, but trifling in extent. Such an offer he could hardly have considered from the beginning sufficient, but it bas become, from subsequent causes (using the phrase without the slightest imputation on the motives of those who made it), illusory. The occupation of British Columbia ha.s Tendered more urgent than ever a policy even before that time recommended by the course of «vonts, namely, to con act the two sides of British North America, without the obstacle interposed by a proprietary jurisdiction between them. The difficulty of maintaining the jurisdiction of the Hudson's Bay Company over that intervening region became daily more evident, and the certainty also that if any attempt were made to maintain it, Her Majesty's Government would be called on to furnish the means. On the other hand, it appears t" " e the general opinion among lawyers, that the monopoly of trade claimed by the Company (under the Charter) is invalid altogether, and that this monopoly could only be defended indirectly, by pushing to extreme limits the consequence of a most invidious territorial grant, enabling the Company, as landlords, to exclude traders as trespassers. Sir E. B. Lytton cannot at all, therefore, agree with the Directors in i-eferring the pre- carious position of the Company to the mere general unpopularity of monopolies. Thft weakness of their case arose, and still arises, from causes far more special and urgent, and it was obviously to be apprehended that Her Majesty's Government might, as protectors of the right of her subjects generally throughout the empire, be called on to defend the claimants of assumed rights, which had never been fairly submitted to investigation. It was quite impossible for them to be contented in the interest of the public with such offers as the Company had made, and to leave the general question unsettled ; and to settle it without the consent of the Company was at least to be avoided, until that assent had been lormally invoked. It was with this view that the letters addressed to you from this Department, on the 3rd September and 3rd November last, to which you refer, were written j and it was with the same view that Sir E. Lytton endeavoured, during the stay of the Canadian Min- isters in England last autumn, to induce them to bring Canada to a decision as to her part in the proceedings to be taken. 'And Sir E. Lytton feels it due to himself and his colleagues to disclaim most dis- tinctly the supposition expressed or implied, that the proposal conveyed to the Company in those letters was conceived in any spirit of hostility. On the contrary, it is his con- viction now, as it was when those letters were written, that the Directors would consult the interest of their shareholders most effectively by causing it to bo accepted. In this way all outstanding questions could be solved. Sir E. B. Lytton felt that if the clecision of the Judicial Committee was in favour of the Company, and to the full extent claimed, then the Company would stand in a more advantageous position before the country, in claiming compensation for ascertained rights, if required to relinquish them for the public benefit, than they possibly could at present. If, on the other hand, the decision of that Committee were unfavourable to the Company, iJiey would at all events still possess that claim to equitable consideration to which long usage and the investment of extensive capital on the faith of supposed rights might fairly entitle them ; and although Her CORRESPONDENCE BETWEEN COLONIAL OFFICE AND H. B. CO., 1859. 83 ^^ajosty'a Government could not of course give any distinct pledge in tRis latter event, no ■one acquainted with the general desire of Parliament to do justice to vested interests would be likely to apprehend serious danger. In short, as the main and perhaps the sole practical difficulty in coming to the most amicable arrangements with the Company appears to lie in ascertaining, not so much the amount of conipenHation aa the principle and mode on which it can be assensed with the approval of Parliament, so that difficulty appeared at once to be surmounted by ascertain- ing without dispute the nature of the right upon wh?ch claims for compensation may be fairly based. The Directors, however, judged differently from Sir E. B. Lytton on this question. Sir Edward does not question their right to decide as they thought best for the interests of their shareholders. He can only express his regret at a determination which retains the very difficulty in the way of speedy and amicable settlement, which he had sought to remove. As the case now stands, should Canada resort to legal proceedir.gs, negotiation is of course at an ^nd, until the result of such proceedings is known ; should she refuse to do so, it will then be for Sir E. B. Lytton to consider whether negotiation^ with the Company can be resumed, or whether, in the last resort. Her Majesty's Government must take the mat- ter into their own hands, and proceed on their own account as they may be advised. But in any case, he can with justice assure the Directors that hfs determination will be founded on a regard to public interests only, and without the slightest bias of hostility towards the Company. It remains for me to convey Sir E. B. Lytton's reply to the immediately practical part of your letter, that referring to the renewal of your license over the non-Charter Territories. The Directors reject his offer of a year's license, but they are ready (in the public interest) to accept a renewal for 21 years, terminable at two years' notice. Sir E. B. Lytton is sorry he cannot meet their views by acceding to this proposal, although he can well conceive, and would indeed desire, arrangements by which the Indian Territory, and all land not likely to be soon colonizable, might be left to the juris- diction of the Company, provided, on the other hand, the lands adapted for colonisation were surrendered to the Crown ; yet, while the latter object remains unachieved, ht does not believe that Parliament, or the public, would be inclined or ought to assent to a measure which would give Her Majesty's Government, in concert with the Company, the power of continuing the license f w 21 years. But he wishes to shew every leasonable respect to the argument which you draw from tlie distance of many of the posts in the license territory, which, by rendering communica- tion with them extremely slow, would make a year's extension of comparatively trifling importance for the purposes in view. The delay in obtaining the decision of Canada may also be fairly taken into consideration as opposing obstacles to arrangements with the Company by which the objection to an ultimate extension of the license might be removed. He is ready, therefore, to make the extension of two years' duration instead of one. In making this proposal, he believes he is acting in the interest of the Company, even in a pecuniary sense alone ; that, however, is a question for the directors and share- holders, and not for himself. He only refers to it in order to shew how far he is from being actuated by any motives inimical to the Company. But the really important aspect of the question (as the directors will fully agree with him) is that which regards the maintenance of peace and order, and the welfare of the Indian race ; and while he believes that the dangers represented as likely to arise if the trade of the Company ceased to be protected by license are much exaggerated, yet he is desirous to guard against the possi- bility of such dangers during the interval that must elapse, necessarily without any fault of his own, between the abrupt termination of the Company's jurisdiction in parts so remote, and the establishment of any other machinery for the safety of the Indians which it might be in the power of the Government to devise. He is certain that the Directors will take a similar view of this part of the question, and he is satisfied that if they reject the present offer, they will do so on full conviction, from their own superior knowledge, that no evil consequences are to be apprehended from the sudden termination of their license. But should this be an error in judgment on their part, the responsibility for the conse- quences will not lie with Her Majesty's Government. 1 "jfl # R4 C0RKE8P0NDENCE BETWEEN COLONIAL OFriCE AND II. U. CO., 1859. Sir Edwarcf Lytton truntn that as oarly an atiHwer as practicable may ho roturned to this letter, as little [time] is loft for communicating with the Oovernor of Britinh ('olumbia before rtio termination or the license, and iih it may bo necessary (in the event of your refusal) to apply to Parliament for an amendment of the present Acts. I have, etc., H. Bcrens, Esquire, etc., etc., H. MBRIVAL&. ete. Thb Colonial Secrbtary to the Oovernor-Genhral.* DowNiNd Stkeet, 10th March, 1859. Sir, — With reference to former correspondence on the subject of the affairs of the Hudson's Bay Company, I now transmit to yon a copy of a correspondcuice which has taken place between this Department and the Governor and Committee of that Company, on the subject of the approaching expiration of their trading license in North-Western America. You will observe that, as that license expires in May next. Her Majesty's Go\ernnient could not avoid entertaining the question, although they would have preferred waiting for the decision of the Canadian Government as to trying the validity of the Charter, in order that the whole subject might be disposed of together. With respect to this latter question, it is impossible for Her Majesty's Government to allow the present session of Parliament to pass by without endeavouring to use it for the settlement of pending questions. I have, therefore, to add, that unless I receive by the 1st of May next the decision of the Canadian Government and Legislature, whether they will or will not contest the validity of the Charter, Her Majesty's Government must proceed, though with reluctance, to take such steps as to the Charter Territory, whether in the way of negotiation, legislation, or legal procee '■— s, as they may be advised. Ample care will, however, in any case, [be taken] to reserve and protect whatever claims of right Canada may hereafter establish. I have, etc., The Right Honourable Sir Edmund Head, Baronet, etc., etc., etc. E. B. Lytton. >it The Governor of the Hudson's Bay Company to the Colonial Secretary.* Hudson's Bay House, March 15, 1859. Sir, — I have the honour to acknowledge Mr. Under-Secretary Merivale's letter of the 5th instant, and lose no time, after consulting with my colleagues, in replying to it. With respect to the chartered rights of this Company, I can only repeat that my colleagues and myself are unanimous in considering that we cannot, in justice to our proprietors, be con- senting parties to any inquiry which shall have for its object to challenge the validity of I the charter ; and we feel convinced that in any discussion that may arise before Parlia- ment, that body will be prepared to act upon the maturely considered opinion which was given by the then Law Officers of the Crown, when the whole matter was submitted to their consideration. I refer to the opinion of Sir Richard Bethell and Sir Henry Kea- * SesB. Papers, Can., 1869, Vol. 17, No. 7. 859. COUUKHPONDKNCl-: HKTWEKN OOI.ONIAL OFFil'K AKD II. B. CO., 1859. 85 be returned to 'iti:ih (/olumbid 3 event of your VIkiuval.!*. irch, 1859. 10 affairs of the which Ima taken Jompaiiy, on the cBtern America, i/a Go\ eminent irred waiting for ;)harter, in order ly's Government ing to use it for less I receive by slature, whether overnmont must itory, whether in idvised. Ample r claims of right 3. LVTTON. Secretaky.* ISE, 15, 1859. ale's letter of the [yinn to it. With ly colleagues and )prietors, be con- ;e the validity o! se before Parlia- (inion which was ms submitted to Sir Henry Kea- ting, in July, 1K57, in which tlioy state that " the ijuestionB of the validity and construction of the Hudson's Hay < 'ompany's charter cannot be considered apart from the enjoyment that has been had under it during nearly two centuries, and the recognition made of the rights of the Ooinpany in various Acts both of the Government and the Legislature ;" and ^'that nothing could be more unjust or more opposed to the spirit of our law, than to try this charter as a thing of yesterday, upon principles which might be deemed applicable to it if it had been granted within the last ten or twenty yean." They then go on to state, that in their opinion the Crown could not now '.vith justice raise the question of the general validity of the charter, but that on every legal principle the Company's territorial ownership of the lands granted and the rights necessarily inci- dental thereto (as, for example, the right of excluding from their territory persons acting in violation of their regulations), ought to be deemed to be valid. The Board are aware that it is competent to the Canadian Government to disregard these principles, however just and well founded ; but they cannot but lament to see, by a despatch, under date December 22, 1858, and published by the Provincial Legislature, that the Canadian Government should have been invited by Her Majesty's Government to adopt such a policy — a course so opposed to that which was enunciati^d by Mr. Labou- chero, in his despatch to Sir Edmund Head of the 22nd January, 1858, in which he dis- tinctly states that he did not propose to discuss the question of validity of the claims of this Company over the whole territory known as Rupert's Land, Her Majesty's Government having come to the conclusion that it would be impossible for them to insti- tute proceedings with a view to raise this question before a legal tribunal, without depart- ing from those principles of oquity by which their conduct ought to be guided. It is to be regretted that delay should arise on the part of the Canadian Government in determining the course which they have thus been invited to take. If such proceedings are ultimately determined upon for the purpose of contesting the validity of the chartor, we shall be prepared to maintain the rights of our proprietors. With regard to your suggestion that the license should be extended for a period of two years instead of for one year, as before proposed, I beg to state that all the material objections to such a proposal which were pointed out in my former letter (8th February, 1859,) with respect to the proposed extension of one year, apply equally to an extension for two years. I beg, however, distinctly to state, that in declining to accept a renewal of the license for a period of two years, that refusal in no way proceeds, as you propose to assume, upon a conviction in our minds that injury to the public interest may not be the conse- quence of the absence of proper measures for maintaining peace and order in the territories in question ; on the contrary, our reason for declining to undertake the preservation of peace upon an extension of the license for the period of two years, only arises from our conviction that such an extension would not secure to the Company a continuance of the weight and influence they have hitherto enjoyed, and to enable them to prevent the threatened mis- chief so short an extension would be considered as evidence of the intention of Her Majesty's Government to determine their privileges altogether at the end of that term, and would deprive thera of all moral influence over the parties frequenting those territories. We consider that the proposed extension would only give so much more time for excitement and agitation, and would produce a state of things among the unsettled popu- lation on the frontier which might with difficulty be controlled by any subsequent admin- istration to bo established on the removal of the authority of the Company. In the opinion of the Board, there is no alternative between maintaining the present system in its former efficiency, or providing by legislation a totally different Government, which should possess the means of ensuring a proper administration in the Indian, territories. Should the latter alternative be decided upon, our Board will lend their most zealous assistance towards promoting any measures which may be adopted for the purpose. The Right Honourable Sir E. B. Lytton, Baronet, etc., ete., I have, etc., H. H. Bergns, Govarnor. ■ f^ % I' ■% '^1 i5- '#!;-■ • m etc. ;i ".'fJa 86 CORRESPONDENCE BETWEEN COLONIAL OFFICE AND GOVERNOR-QENERAL, 1859. The Colonial Secretary to the Governor-General.* • • ! . Downing Street, 18th March, 1859. Sir, — With reference to former correspondence on the subject of the affairs of the- Hudson's Bay Company, I have now to inform you that the Governor and Directors have finally declined the proposal made to them by Her Majesty's Government, on public grounds, of an extension of their license for two years (instead of one, as originally offered). The correspondence shall be transmitted to you by the next mail, as there is not time for the present. In May next, therefore, the license will expire, and Her Majesty's Government have- now under consideration the steps which it may be necessary to take in consequence of that expiration. You cannot fail to observe that this circumstance renders the disposal of the pending questions relative to the charter of even more urgent necessity than it was before. The question as to the future management of the license territories and of the charter terri- tories being so closely connected, it becomes even more essential that I should have the immediate answer of your Government, whether it is their intention or not to try the validity of the charter by scire facias, and if such is their intention, whether they will at once either send a delegate, or in any other manner initiate the necessary proceedings. The Right Honourable Sir E. Head, Baronet, etc., etc., I have, etc., E. B. Lytton. etc. The Under-Secretary to the Governor-General.* Downing Street, 1st April, 1859. Sir, — With reference to my despatch. No. 43, of the 18th of Mar^h, relative to the- affairs of the Hudson's Bay Company, I transmit to you herewith copy kjl the letter from the Company, in which they decline the extension of their licen^ for two years. This- letter completes the correspondence with the Company to the present date. I have, etc.. The Right Honourable Sir E. Head, Baronet, etc , etc.. H. Merivale, In the absence of the Secretary of State.- Joint Addr Most Gracioii etc. ■m^^/ The Governor-General to the Colonial Secretary.* Government House, Toronto, April 4th, 1859. No. 1.5. No. 37.- No. 43.- I regret very much that I have not been able before this to send any definite reply to your despatches (the dates and numbers of which are 11th Febriary, 1859. marked on the margin), relating to the charter of the Hud- 10th March, 1859. son's Bay Company. The first of these despatches was laid before my Council on the 11th January, and I have repeat- Si K, No. 102.— 22nd DeceraLer, 1858. -18th March, 1859. 1859. ♦ Sess. Papers, Can., 1859, Vol. 17, No. 7. ADDRESS OF THE CANADIAN PARLIAMENT TO HER MAJESTY, 1859. 87 edly pressed the members of that body for their formal opinion on this important matter. They have frequently discussed the subject, and I fully admit that it is one which requires careful consideration. I am now, for the first time, able to inform you, that the Executive Council will not advise steps to be t^ken for testing the validity of the charter by scire facias, but they are strongly of opinion that it is most desirable on all accounts that the boundaries of Canada should be accurately and speedily defined. It is probable that Hudson's Bay Territory will again form the subject of discussion by the Provincial Parliament in the course of the present session. t, ,-a'i-'J*'). ■:■■'- ': I .(■: ■-■In i-r- ■'; ■•,;• !;'.•?-.•■•! :■,.•.;.(.?:;■«;?■;. 1 / I • , . ' I have, etc., The Right Honourable Sir E. B. Lytton, Baronet, Edmund Head. etc., etc., etc. |W.-!" Joint Address or the Legislative Council and Assembly of Canada to Her Majesty, 29th April, 1859.* To the Queen's Most Excellent Majesty. Moat Gracious Sovereign : We, Your Majesty's most dutiful and loyal subjects, the Legislative Council and Assembly of Canada, in Provincial Parliament assembled, humbly approach Your Majesty for the purpose of representing : — That having had under consideration the subject of the Hudson's Bay Company, and, in connection therewith, the various despatches from the Colonial Secretary, dated re- spectively the twenty-second day of December last, the eleventh of February last, the tenth of March last, and the eighteenth of March last, and the Address to Your Majesty by the Legislature of Canada in its last Session, we adhere to the propositions contained in that Address, and desire respectfully to urge them upon the consideration of Your Majesty's Government. That, in our opinion, Canada ought not to be called upon to litigate the question of the validity of the Charter claimed by the Company, inasmuch as such portion of Terri- tory as the Charter covers is not part of Canada, and is, if the Charter be invalid, sub- ject to Imperial and not Provincial control ; and that, in our opinion, the question of the future of that Territory should not be made to depend on the mere legal view which may be taken by a Court of Law on the validity or extent of the Charter, but that there are considerations involved higher than those of strict legal rights, and which can be dealt with by the Imperial Government alone. That the formation of a British Province on the shores of the Pacific, and the pros- pect of immediate and extensive settlement thereiri, render it of imperative necesmty that tlie vast extent of country lying between that Province and Canada, should come under immediate organization, with a view to coloniasation. That while the important objects above alluded to can only be accomplished by the interference and action of the Imperial Government, yet Canada feels that, as a portion of the Empire in whose rule she rejoices, and from the almost direct interest she has in the future of the vast territory contiguous to her on the West, she is justified in urging upon Your Majesty's Government the final disposition of these great questions ; and in doing HO, she desires to acknowledge the great interest therein which Your Majesty's Government have already evinced, and the prompt and energetic action which they have taken in the matter. All of which we humbly pray Your Majesty to take into Your Majesty's most gracious and favourable consideration. * Journals LegiHlative Assembly, Canadn, 1859, p. 464. 88 PROPOSED TRANS-CONTINENTAL ROAD AND TELEGRAPH, 1862. The Governoh-Genebal to the Colonial Secretary.* Quebec, ' V ' ■' :'■* .:•■"■'''■" :''r '■'■" ■' .■'■'"' "■''"'".;:';.' ^: v:r, '„: ':"" ' :' ... March sth, 1862. My Lord Duke, — I have the honour to enclose to your Grace a Minute of the Executive Councilf, approved by myself, in reference to the propriety of taking soma steps towards carrying into effect, in the Saskatchewan territory, the provisions of the Act of the Imperial Parliament, 22 and 23 Victoria, Chapter 26. The Minute states so fully the reasons for present action in this matter in which I fully concur, that I do not think it necessary to trouble your Grace with any observations of my own on the subject. I have, etc., MONCK. To His Grace the Duke of Newcastle, etc., eto. River, but tl The Colonial Secretary to the Governor-General.* i Downing Street, ' 16th April, 1862. My Lord, — I have the honour to acknowledge the receipt of your Lordship's de- spatch. No. 44, of the Sth March, forwarding a Minute of a Committee of the Executive Council of Canada, in reference to the propriety of taking some steps towards carrying into effect, in the Saskatchewan territory, the provisions of the Imperial Act, 22 and 23 Vict., Cap. 26. This Minute proceeds on an assumption that a certain Act of Parliament was passed in order to organize the Saskatchewan country. But I have to explain that this was not the effect of the Act referred to. It contained an enactment, in the concluding section, that it should not be applicable to territories heretofore granted to the Hudson's Bay Company. Those territories not having fallen under the jurisdiction of Her Majesty's Government, the Act in question does not in any degree facilitate the acquisition or government of the territory claimed by the Company under this grant, nor until the claim of the Company is shown to be groundless will Her Majesty's Government be in a position to take any step in that direction, I have, etc., Newcastle. Governor the Viscount Monck, etc., etc., etc. The Provincial Secretary to the Hudson's Bay Company's Goternob of Rupert's Land.| Provincial Secretary's Office, Quebec, 15th April, 1862. SiR^ — The Government of Canada have had their attention very strongly directed to the important subject of an overland communication with British Columbia through • Segg. Papers, Can., 1863, Vol. 22, No. 31. t [This minute doeg not appear to have been printed. --Q. E. L.] t Se- J. Papers, Can., 1863, Vol. 22, No. 29. PROPOSED TRANS-CONTINENTAL ROAD AND TELEGRAPH, 1862. 89 isions of the VrCASTLE. RNOB or the Hudson's Bay Territory, via the Red River, and I am now bommanded by His Ex- <«llency the Governor-General to inform you of the steps proposed towards effecting this object, and to seek the co-operation of the Hudson's Bay Company therein. The Canadian Government do not wish at present to raise any questii i as to the rights of the Company, who must be regarded as de facto in possession of tne country intervening between Canada and British Coiumtjia. They consider that most important public interests demand the establishment oi a practicable line vi communication across the continent, and they desire to have the practical aid of your Company in carrying it into effect. Arrangements were made within the last four years for postal service with Red River, but the want of territorial rights at Red River and along the greater part of the route defeated the plans of the Canadian Government, and, after a very considerable outlay, the line had to be abandoned. Another effort is now being made in the same direction, and, as the Hudson's Bay Company claims the right of territory and govern- ment over this region, it is hoped they will also assume their correlative duties, and unite with Canada in opening up the country. The Canadian Government are about to establish steam communication with Fori William, on Lake Superior, immediately. A large tract of land at this point has been surveyed, and a Crown Land Agent has recently been appointed to reside there. Appro- priations have been made by the Legislature for roads towards Red River, on which free grants will be made to settlers, and every effort will be made to attract settlement — the ultimate object being the connection with the Red River and Saskatchewan. Canada is, therefore, now prepared to guarantee that, so far as her undisputed boundary extends, every facility will henceforward exist towards a communication with the west. The Canadian Government cannot doubt that the Hudson's Bay Company are fully alive to the vast importance oi such a communication. The recent gold discoveries on the Saskatchewan cannot fail to attract many adven- turers, who must at present be principally drawn from the United States. The Settlement of Red River itself has now its sole communication with Minnesota, iMid will naturally imbibe American principles and views, unless brought in connection with the British settlements oast and west. Canada must look with some apprehension to the probable result that, in a very few years, the population lying to her west will be wholly foreign, and that (unless facilities for settlement be afforded from Canada equal to those enjoyed from the United States, and unless efficient civil government be speedily established) British rule over this part of the continent will virtually have passed away, and the key of the trade to British Columbia, and ultimately China, have been surren- dered to our rivals. The Hudson's Bay Company cannot desire a result that would equally militate against their own interest'^ ; and the Canadian Government, therefore, hopes for their hearty co-operation in the opening of the Red River and Saskatchewan Territories by a communication from Canada to British Columbia. The Government of Canada considers that, in connection with the means of trans- port across the continent, a telegraphic communication should bo established as especially necessary for Imperial interests, masmuch as both the United States and Russia possess telegraphic lines to the Pacific, while Groat Britain has no other mode of doing so but through the Hudson's Bay Territory. Recent events have proved the paramount impor- tance of such a line. Leaving untouched, therefore, all disputed questions, I am commanded by His Excellency the Governor-General to state, that the Canadian Government have decided at once to establish steam and stage communication to the extreme limit of the territory under their government, and are ready to unite with the Hudson's Bay Company in a mail service and post route to British Columbia. The Canadian Government is also prepared to guarantee the construction of a tele- graph line to the extreme western limits of the Province. M, 90 PROPOSED TRANS-CONTINENTAL ROAD AND TELEGRAPH, 1862 m. I request that you will inform me 'how far you will be prepared to act for the Hud- son's Bay Company in carrying out objects of such great national importance, and which cannot be long delayed without the most serious injury to the interests of the Empire;, and especially to the future progress and security of Canada. I have, etc., Alexander G. Dallas, Esquire, ;.:. !,f,iri.. Governor in Chief of Rupert's Land, Montreal. C. Allbyk. The Govkbnob of "Rupert's Land to the Provincial Secre';ary.* [' *•' ' -^- .t. h,.. ■: ■ii'. v:i'^J''i'>''' ''>■' H'i^- ''i" -u^v':-!> J^ti,; t't ■ (.!»,'. .f I j-ii; I y V-;!i . .-> Montreal, 16th April, 1862. Sir, — I have the honour to acknowledge receipt of the important communication! which you have addressed to me by command of His Excellency the Governor-General, under date of the 15th instant, wherein you intimate the desire of the Government of Canada to establish an overland communication with British Columbia through the Hud- son's Bay Territory, as weU as the steps proposed towards effecting that object ; and further request the co-opp^-ation of the Hudson's Bay Company therein. After stating tht< j the Government of Canada, regarding the Company as de facto ' in possession of the intervening territories, does not wish to raise any question as to its rights, you proc-dd to point out the great public interests which are involved by the formation of a ohain of settlements, connecting Canada with British Columbia, by postal and telegraraic services, the paramount importance of which is proved by recent events. You also point out the danger of the Red River Settlement, from its close connection with Minnesota, consequent on its isolated position with regard to Canada, becoming imbued with American principles and views, and passing away from us to our rivals, thus depriving the country of the key of the trade to British Columbia, and ultimately to China. While fully admitting the force of the above arguments, and the immediate necessity of some arrangements being come to, I am reluctantly compelled to admit my inability to meet the Government of Canada in this forward movement, for the following reasons : First. — The Red River and Saskatchewan valleys, though not in themselves L'ur- bearing districts, are the sources from whence the main supplies of winter food are procured for the northern posts, from the produce of the buffalo hunts. A chain of settlements through these valleys would not only deprive the Company of the above vital resource, but would indirectly in many other ways so interfere with their northern trade as to render it no longer worth prosecuting on an extended scale. It would neces- sarily be divided into various channels, possibly to the public benefit, but the Company could no longer exist on its present footing. The above reasons against a partial surrender of our territories may not appear sufficiently obvious to parties not conversant with the traue or the country ; but my knowledge of both, based on personal experience, and from other soui'ces open to me, point to the conclusion that partial concessions of tlie districts which must nscessarily be alienated, would inevitably lead to the extinction of the Company. Second. — Granting that the Company were willing to sacrifice its trading interests, the very act would deprive it of the means to carry out the proposed measures. There is no source of revenue to meet the most ordinary expenditure, and even under present circumstances the Company has practically no power to raise one. The co-operation proposed, in calling on the Company to perform its co-relative duties, presupposed it to stand on an equal footing with Canada. Report of * Sess. Papers, Can., 186;j, Vol. 22, No. 29. V OBJECTIONS OF HUDSON 8 BAY COMPANY THERETO. It is not to be supposed that the Crown would grant more extensive powers to the Company than those conveyed by the charter. If any change be made, it is presumed that direct administration by the Crown would be resorted to as the only measure likely to give public satisfaction. Not having anticipated the present question, I am without instructions from the Board of Directors in London for my guidance. I believe I am, however, safe in stating my conviction that the Company will be willing to meet the wishes of the country at large by consenting to an equitable arrangement for the surrender of all the rights con- veyed by the charter. I shall by the next mail forward copies of this correspondence to the Board of Directors in London, who will thus be prepared in the event of the subject being r«i- ferred to Her Majesty's Secretary of State for the Colonies. I may state that it is my intention to make immediate arrangements at the existing settlement of Red River for the sale of land, on easy terms, free from any restrictions of trade. It would, I believe, be impolitic to make any distinction between British subjects and foreigners. The infusion of a British element must be left to the effects of a closer connection and identity of interests with Canada and the mother country. I have the honour to be, sir, I Your most obedient servant, The Hon. Charles Alleyn, Provincial Secretary, etc., etc., etc. A. G. Dallas. Report of a Committee op Council, approved by the Governor-General on the- 24th April, 1862.* In reference to the recent correspondence between the Provincial Government and the Governor of the Hudson's Bay Territory on the subject of the proposed overland communication with British Columbia, the Committee respectfully advise that a copy of the same be transmitted by your Excellency to his Grace the Secretary of State for the- Colonies. Wm. H. Lee, C.RC. The Governor-General to the Colonial Secretary, t '■''•' ' ' Government House, Quebec, April 25th, 1862. My LtHD Duke, — I have the honour to forward to your Grace a Minute of tho Executive Council, approved by me, on the subject of the establishment of a postal com- munication through the Hudson's Bay Territory, between Canada and British Columbia,, containing a letter from the Provincial Secretary to the Manager of the Hudson's Bay Company, and that gentleman's reply. The subject is one of considerable importance, both in an Imperial point of view and as regards the particular interests of this Province ; but the letter of Mr. Alleyn enters so fully into the merits of the question on both grounds, that I do not think it necessary to trouble your Grace with any observations of my owrt The answer of Mr. Dallas would seem to imply that the existence of the present rights of the Hudson's Bay Company will prove a permanent obstacle to the realization ' Se88. Papers, Can., 1863, Vol. 22, No. 29. t/6irf, No. 31. D2 PROPOSED TRANS-CONTINENTAL ROAD AND TELEGRAPH, 1862 of the views which the Canadian Government entertain in reference to the proposed communication. As the Government of the Province have no means of acting upon the Hudson's Bay Company except through Her Majesty's ministers, I would, on its behalf, ask of your Grace to take such steps as may enable the authorities here to carry into execution their ■desire for an extension of postal communication between this Province and the shores of the Pacific. I have, etc., ^ MONCK. His Grace the Duke of Newcastle, K.G., etc., eto., etc. The Governor op "^ua Hudson's Bay Company to the Colonial Secretary.* I > t^it- Hudson's Bay Hours, London, May 19th, 1862. My Lord Duke, — I have the honour to enclose, for your Grace's information, copy of a correspondence that has passed between Mr. Charleb AUeyn, Secretary to the Gov- •emment of Canada, and Mr. Dallas, who has lately succeeded Sir George Simpson in the Government of the Hudson's Bay Territory, in North America, on the subject of a pro- posed road and line of telegraphic communication between Canada ad the gold regions of British Columbia. I take the liberty of forwarding this correspondence to your Grace, because my colleagues agree with me that any negotiation on the subject should be carried on, not with the Colonial authorities, hut with Her Majesty's Government in this country. The Canadian Government propose, in the first instance, to establish steam communi- cation on Lake Superior, and to open up roads irom Fort William in the direction of B«d River, and they appear to consider that it is the duty of the Hudson's Bay Company to undertake the further prosecution of the work through their territories. Of course there is no difficulty as far as steamers on Lake Superior are concerned, but between Fort William and the height of land the natural difficulties of the country will make Toad-making a very expensive business, while the soil, which consists chiefly of rock and «wamp, will offer no inducement to settlers, even if they obtain the land for nothing. Within the last few years a considerable sum of money has been granted and ex- pended by the Canadian Government for the purpose of opening this route, but I am not aware that there has been any practical result. Beyond Red River to the base of the Rocky Mountains the line will pass through a vast desert, in some places without wood or water, exposed to the incursions of roving bands of Indians, and entirely destitute of any means of subsistence for emigrants, save herds of buffistlo, which roam at large through the plains, and whose presence on any particular portion of these prairies can never be reckoned on. These again are followed up by Indians in pursuit of food, whose hostility will expose travellers to the greatest danger. With regard to the establishment of a telegraphic communication, it is scarcely neces- sary to point at the prairie fires, the depredation of natives and the general chapter of accidents, as presenting almost unsurmountable obstacles to its success. I have thought it my duty thus slightly to sketch the difficulties in the way of the •enterprise, the subject of the correspondence which I have brought under your Grace's notice ; but if it be thought that tl\^ interests of Canada and British Columbia, or of this country, require that the experiment should be made, the Hudson's Bay Company will most readily acquiesce in the decision of Her Majesty's Government. At the same time <»Se88. Papers, C»n., 1803, Vol. 22, No. 31. OBJECTIONS OF THE HUDSON'S BAY COMPANY THERETO. 93 it is my duty to state that, in justico to our proprietors, the Directors of the Hudson's Bay Company cannot risk their capital in doubtful undertakings of this description, spread over such vast distances, through a country where the means of maintaining them, if once mt,de, will lead to an expenditure scarcely to be contemplated. Although, there- fore, the Directors, on behalf of the Company, are ready to lend Her Majesty's Govern- ment all the moral support and assistance in their power, it must be distinctly understood that the Company have no means at their disposal beyond those employed in carrying on their trade, and cannot consequently undertake any outlay in connection with the schemes suggested by the Canadian Government. I think it may not be improper to take this opportunity of referring your Grace to former communications between the Hudson's Bay Company and the Colonial Office on the subject of settlement in their territories. The Company have always expressed their willingness to surrender the whole or any part of their territorial rights upon terms that would secure fair compensation to the pro- prietors, as well as to the officers and employees in the country. The Governor at Red River Colony has instructions to make grants of land to settlers, on easy conditions, without any restriction as to the Company's right of exclusive trade, and if Her Majesty's Government, with reference to the interests of the public, consider more extensive plans for the improvement of the country expedient, the Directors of the Company will be quite ready to entertain them, with the desire to meet the wishes, of Her Majesty's Government in any manner not inconsistent with the vested rights of their constituents. I am, etc., His Grace the Duke of Newcastle, K.G., etc., etc., etc. W. Berens, Governor. The Colonial Seoretary to the Governor-General.* Downing Street, 3rd June, 1862. My Lord, — I have the honour to acknowledge the receipt of your Lordship's de- spatch. No. 79, of the 25th of April last, and to transmit to you for your information a copy of a letter [of 19th ? ^y] from the Hudson's Bay Company (received at this depart- ment a few days after your despatch reached me) on the subject of establishing postal and telegraphic communication through the Company's territory between Canada and British Columbia. Although it is not in the power of Her Majesty's Government to grant rssistance from Imperial funds for carrying out the object which the Canadian Government has in view, there would be every desire on their part to co-operate in any well-devi'ied scheme- for effecting this important communication across the American continent. As a possible preliminary to such an undertaking, I would direct your Lordship's attention to the facilities for the acquisition of land which the Hudson's Bay Compiny announce their intention of offering to settlers proceeding to the Red River. I have, etc., Newcastle. Governor the Viscount Monck, etc., etc., etc. ♦ Seas. Papers, Can., 1863, Vol. 22, No. 31. 94. PROPOSED TRANS-CONTINENTAL ROAD AND TELEGRAPH, 1862 Report op Postmaster-General Foley (Canada).* Post Oi VICE Department, 17th October, 1862. Referring to the correspondence had with His Grace the Duke of Newcastle, the Canadian Government, and certain of the officers of the Hudson's Bay Company, with reference to the establishment of postal and telegraphic communication through the Company's territories, so called, between Canada and British Columbia, and to his report of Slst f July last, on the subject of postal communication with the North-west, the undersigned has the honour to submit for the consideration of His Excellency the Gov- ernor-General in Council, as follows : The circurastarcos which for some years past have indicated the expediency of opening up communications westward from Lake Superior derive, in the judgment of the undersigned, additional importance from the recent and continuous intercourse with British Columbia, consequent upon the discoveries there of valuable gold fields ; whilst the reported existence of the same precious metal in the fertile valley of the Saskatche- wan has had the effect of awakening a yet deeper interest in what in Canada is popu- larly known as the Red River country. Under so powerful an impulse, a rapid stream of emigration has set towards the Pacific, which gives indications of indefinite expansion in view of the encouraging reports which are constantly received of the richness of the mines and the value of the country as a field for settlement. The shortest and most natural route to these inviting territories lies through the St. Lawrence and its chain of tributary lakes ; but owing to the want of facilities for transit beyond the head of Lake Superior, persons destined for the western settlements necessarily make the voyage by eea, or accomplish the first stage in the land journey — Fort Garry on the Red River — by way of Minnesota and Dacotah. Thus it may in truth be said that the people of the neighbouring states hold the key to the British possessions in the west, and while by this means their wild lands are being settled and improved, ours, lying immediately adjacent and quite as well fitted for cultivation, remain a mere hunting ground for the sole benefit and advantage of a company of traders, whose object it is to keep them a wilderness pro- ductive only of game, and who, to this end, do all in their power to divert into foreign channels, to the promotion of alien interests, the commerce carried on by them with the outside world. In the judgment of the undersigned, the time has arrived when more decisive and effective means than have yet been put forth should be employed in opening up and per- fecting the communication wesvward from Lake Superior through British territory. Cut off from intercourse with their fellow-snbjects, except on condition of submitting to the inconveniences, the losses, and the numerous vexations of a circuitous journey through a foreign country, and which, on the occurrence of difficulty, would be closed to them, or but afford facility for their invasion, and, under the circumstances, all but certain con- quest, the people of the Red River Settlement have for many years past been loud in their expressions of dissatisfaction. Minnesota, and not Canada, is, from imperious necessity, the emporium of their trade ; the chief recent additions to their population are from the United States, and their sympathies, in spite of their wishes, are being drawn into a channel leading in an opposite direction from that of the source of their allegiance. In a word, the central link in the chain of settlements which should connect Canada with British Columbia is being rapidly Americanized, and unless a prompt effort be made to advance British interests in that direction, there is reason to fear that incalculable mis- chief will follow. The tendencies which have in the main operated in keeping the North-western country closed to the industrial enterprise of the British and Canadian people, may be traced to the alleged obstacles in the way of the construction of practicable roads and the improvement of navigation. Recent explorations, however, prove these obstacles to • SesB. Papers, Can., 1863, Vol. 22, No. 29. \'t-( REPORT OF POSTMASTER-OENERAL FOLEY THEREON. j« 96 liave been greatly exaggerated. The expeditions of the Imperial and Canadian Govern- uiaats demonstrate the entire feasibility of establishing communication for postal and tolegraphic service, at reasonable rates, through the territories which the Hudson's Bay Company claim as being under their jurisdiction.* *♦♦*♦* The undersigned respectfully submits that such a territory ought not to be permitted longer to remain under the sole control of the mere handful of traders, however powerful and influential, who have hitherto monopolized its rich resources, and for so many years barred out all others from a participation in its advantages. Sooner or later their hold upon those portions of it specially suitable to agriculture must be relaxed, and a move- ment having for its object an tnd so desirable, is deserving of prompt and liberal encouragement. In our proceedings hitherto we have been far too tardy. Our apparent indifference and unconcern have been taken advantage of by the Hudson's Bay Company to assert, with continuously increasing pretension, the'r claims to the entire territory; and to-day it may be said with truth that they feel themselves stronger than ever before in their •claims to keep, if they choose, for all time to come, unsettled a vast region in every way suited to human habitation. Withor*^^ any suggestion at present as to legal title, it is sufficient that we are invited by His Grace the Duke of Newcastle to join in adopting means to effect the communica- tion on this side to the summit of the pass of the Rocky Mountains, and that while, in Jiis despatch of 3rd June last, he promised the co-operation of the Imperial Government, lie afterwards intimated to ^he House of Lords, on the 4th July last, his hope " that when Parliament met next year he should be able to inform their Lordships that some progress had been made towards the establishment of postal communication between Canada on the one side and New Westminster on the other." In the opinion of the undersigned, it is not only desirable but essential that advan- tige be taken of the present favourable disposition of the Imperial authorities. The late Administration, yielding to the pressure of public opinion, exhibited as well as professed a strong sense of the practical importance of opening up the first link of the route. To this end the subsidies were, from time to time, at their request, readily granted by Parliament ; but for some cause or other, whether arising from difficulties occasioned by rival claimants for the performance of the service, or want of judgment in the parties immediately concerned in the application of the funds, or otherwise, it is not for the undersigned here to express an opinion ; the means granted by the liberality of the Legislature for a good and useful purpose were worse than wasted, although during the first year, before partisan rivalry had been intruduced, and when real efforts were directed to the solution of the question as to the commercial advantages and the feasi hility of the project, success beyond the expectation of the parties engaged was the actual result. As to the difficulties suggested by the Hudson's Bay Company, through their officers, Governors Berens and Dallas, in the correspondence herein referred to, those gentlemen in truth substantially, though evidently unwillingly, vindicate most strongly the views contended for by the advocates of improvement and colonization. The first and second of these objections of Governor Berens as to the practicability of the route between Lake Superior and Red River, and the deduction to be drawn from the failure of the projects hitherto encouraged by the Canadian Government, are suffi- ■ciently met by what has gone before. His next statement establishes, in the judgment of the undersigned, the very reverse of the conclusions he arrives at, and one finds it difficult to account for his permitting himself to be involved in such manifest inconsis- tencies as are apparent on the very face of his statement. Directly in contradiction of the well-authenticated reporus of others, among them Governor Dallas, who speaks of tho Red River and Saskatchewan countries as the sources of supply of the employees of the Company, Governor Berens describes the country be- yond the Red River to the base of the Rooky Mountains as "a vast desert, in some places without wood or water, exposed to the incursions of roving bands of Indians, and entirely I Mlh Sill -'i^'^ * [Tke •mitk«d portiooi of thU Report do not touch tke in»tter in iwue.— G. E. L.] 96 PROPOSED TRANS-OONTINENTAL ROAD AND TELEGRAPH, 1862: :-;ii -iil destitute of any means of subsistence for emigrants, save herds of buffalo which roam at large through the plains, and whose presence on any particular portion of these prairioH can never be reckoned on." "These again," he says, "are followed up by Indians in pursuit of food (a good ground, one would sny, for the buffalo not remaining all the timo in the same particular places), whose hostility will expose travellers to the greatest dangers." One can well fancy precisely the same reasons being given by interested parties ir any uncivilized country against its settlement. The Governor evidently loses sight of his design to prove the territory to be a vast desert, when he adds to that terror those of the Indians and the buffalo. The early settler in any part of America would tell him that the regions to which the Indians, as well as the buffalo and other wild animals most resorted, were those above all others the most fertile and fitted for cultivation, and just the sections most sought after by the pioneer anxious within the shortest possible period to make for himself, and those dependent upon him, a habitation, and to aid in conquering for his country, with his axe, his spade, and his plough, fresh accessions and contributions to civilization :%nd improvement. The Governor's next fear, namely, that the construction of telegraph linos would be useless because of the probability of their being burnt up, is just as groundless, as is appnrent from the fact that over the boundless plains of California, and across the unsettled prairies of Illinois and other States, these almost indispensable accompaniments of civilization are in full, active, and undisturbed operation. So with respect to the "depredations of the natives, and the general chapter of accidents." These are encountered in every new country, and are not in our day any- thing like such formidable obstacles as they have been in the past. On Governor Berens' principle, the settlement of any portion cf America was a grave mistake, for at some time or other, and at every place within its vast extent, pre- cisely the same difficulties which he conjures up, in the shape of roving bands of Indians, wild animals, desolation by flood and tire and tomahawk, as well as a " general chapter of accidents," existed over them all. However, the unconquerable white race triumphed, and to its energy and self-sacrificing exertions and indomitable perseverance, the British and Canadian people are indebted for an inheritance such as Providence never before bestowed upon any race since the world began. If they fail to improve their opportunities, the loss will be proportionate to the advantages otherwise certain of attainment. Differing from Governor Berens, as well as to the facts as with respect to the style of objection, Governor Dallas puts the whole matter on its true ground when he refers to the Saskatchewan and the Red River countries as the sources whence the Hudson's Bay Company draw their supplies of food ; and the simple question in view of his admission is as to whether or not these magnificent territories shall continue to be merely the source of supply for a few hundreds of the employees of a Fur-trading Company, or the moans of affording new and boundless contributions to civilization and commerce ; whether they shall remain closed to the enterprise and industry of millions in order that the few may monopolize their treasures and keep them for all time to come, as the habi- tation of wild beasts and the trappers engaged in their pursuit.* * « * * The question as to what is reasonably to be expected from Canada, is that at present to be considered. In view of all the facts and circumstances, and feeling that it is on our people that the initiative in the matter rests ; that it is to this Province the Imperial Government looks for a commencement of the movement, — a movement demanded alike from our pa- triotism and our interests — the undersigned considers himself fully justified in submitting, that unless the Government deem it expedient to proceed under the direction of the Honourable the Commissioner of Public Works, as soon as it can be satisfactorily shown that competent and responsible parties are prepared to assume the work, they should propose to Parliament the granting of an annual subsidy of $50,000, or such other sum as His Excellency the Governor-General in Council may deem judicious, for a term of years, towards the undertaking. Should the above suggestion for a subsidy be concurred * [The omitted part does not affect the qneition in iisu*. — G. £. L.] TIkport of a The Govern APPROPRIATION RECOMMENDED BY THE CANADIAN QOVERNMENT. 97 in, *he undersigned will be in a poaition to submit to His Excellency the Governor-Gen- eral in CouBoil the details of such arrangements as it may be desirable to make with responsible parties willing to perform the service ; but as the question of the construc- tion of works, as well as that of carrying the mails, would be involved, it is expedient that the Honourable the Commissioner of Public Works should be associated with him for that purpose. All of which is nevertheless respectfully submitted. . " < , '■ ; - ' M. H. Foley, .' * Poatmaater-Gentral, .Heport of a Committbb of Council, approved by thk Governor-General on the 9th February, 1863.* The Committee having taken into consideration the Report of the Honourable the Postmaster- General, on the expediency of opening up and better securing communication westward, towards British Columbia, through British territory, for a telegraphic and postal service, concur in the opinion expressed in that Report, as regards the advantage of securing such communication, and humbly advise that a sum of $50,000 be placed in the Estimates of the approaching Session, for the purpose of carrying out the same in the manner suggested in that Report, or in an/ other that may be deemed more advan- tageous. Wm. H. Leb, C.E.C. The Hon. the Postmaster-General, etc., etc., etc. rF-.-^ 1 W "'4 e never before lionato to the The Gotbrnor-Gbneral, Lord Monck, to the Duke of Newcastle, Colonial , Secretary.* (Extract.) Quebec, February 27th, 1863. I have also the honour to enclose for your Grace's information, a Report of the Postmaster-General of Canada, on the subject of postal communication, through what is termed the North-west Territory, with British Columbia, and a Minute of the Executive Oounoil founded upon it.t u PROPOSAL FOR ESTABLISHING TELEGRAPHIC AND POSTAL COMMU- NICATION FROM LAKE SUPERIOR TO NEW WESTMINSTER. | Mr. Watkin to the Colonial Secretary. § 21 Old Broad Street, London, E.C., • April 28th, 1863. * * * I have now to enclose proposals, which I trust will My Lord Duke,- • Sew. Papers, Can., 1863, Vol. 22, No. 29. + TThis extract is the only portion of the despatch which appears to have been printed. - G. E. L.] t[The four following papers are inserted here with a view of rendering more clear the references made "to the Heads of Pronesal in certain of the subsequent correspondence. The omitted portions of the letters of Mr. Watkin and Mr. Fortescue have no bearing upon the matters in controversy. Mr. Watkin is stated to have become, about the time of the date of these proposals, the purchaser of a controlling interest in the stock of the Hudson's Bay Company.— G. E. L.] § SesB. Papers, Can., 1863, No. 31. 7 i; ' , '.m 98 IMIOPOSAL FOR OVERLAND COMMUNICATION WITH THE PACIFIC, 1863. II •' SO meet your Oracji'H approval, for the establishment of a postal and telegraphic route between (/'anada and the Pacific Ocean. It is hopitd that tlieso proposals will be found to bo such as your Grace may be able to recommend, and that their adoption by Her Majesty's Qovernmont, by Canada, by British Columbia, and by Vancouver Island, may load to the completion of the moHt important work involved, at a very early period. ♦ ♦ * * » I have to observe that the rate of interest to be secured to the Company, when it was assumed that Her Majesty's Government would take a direct part Jn the guarantee, was four per c(»nt. as a minimum ; but at the same time it was proposed that, in the event of the colonies alone becoming responsible, a larger rate of interest would be considered necessary. A reference to the documents will show that this was the case. In the enclosed paper therefore the maximum rate of interest has been taken at five per cent., while a minimum of four per cent, is preserved, and it will bo for your Grace, should the colonies decide to accept the proposals, to accord, as between the parties, such a rate, and such a rate only, as the circumstances of the time may render necessary, with a view to securing the absolute success of the undertaking. I have, etc., Hia Grace the Duke of Newcastle, K.G., etc., etc., etc. Edward W. Watkin. ■i';r; m m: M Heads op Pkoposal for establishing Telegraphic and Postal Communication prom Lake Superior to New Westminster, referred to in the foregoing Letter op 28th April. 1863.* The " Atlantic and Pacific Transit and Telegraph Company " propose to establish and maintain communication by electric telegraph, and a mail post, passing at such in- tervals, fortnightly or otherwise, as shall be agreed upon between a point at the head of Lake Superior and New Westminster, in British Columbia, on the following terms : — 1. That the Imperial Government, the colonies of Canada and British Columbia, and the Hudson's Bay Company, shall each within the territories belonging to them, grant to the Company such land belonging to the Crown or Company, and all such rights aa may be required for the post route, telegraph and necessary stations, and for the proper working therof. 2. The line of telegraph shall be divided into proper sections, and so soon as tele- graphic communication is established throughout any such section, the colonies of Canada, Vancouver Island and British Columbia will guarantee to the Company a rate of profit on the capital expended at the rate of not less than four nor more than five per cent., provided that the total amount of the capital guaranteed shall be limited at £500,000, and that the total annual payment to be made by Vancouver Island and British Columbia together shall not exceed £12,500 ; provided also, that the interest accruing upon the money paid up by the shareholders, until the above guarantee shall take effect, shall be reckoned as capital ; and provided further, that in case the telegraphic line shall not be completed within five years, unless by reason of war or commotion, or of any interrup- tion not arising from any wilful default of the company, the above guarantee shall be suspended till the line shall be so completed. 3. In case the route shall run through Crown land not witliin the limits of Canada or British Columbia, nor within the territory claimable by the Hudson's Bay Company, tht' Company shall be entitled to demand Crown grants to the extent of five sq ire miles for every mile of telegraph line within such Crown land. Such grants shall be demand- * Seas. Papers, Can., 1863, No. 31. PROPOSAL FOR OVERLAND COMMUNICATION WITH THE PACIFIC, 1803. 99 i may be ablo r Canada, hj of the moHt ♦ * pany, when it hfi guarantee, t, in the event he conHiderncl ;aHe. In the five per cent., Grace, nhonld 18, such a rate, f, with a view able as noon an t]i(> telegraph coinniunication shall he completed across such Crown land, and the blocks granted hIihU be adjacent to the telegraph line, and shall be as near as may be Hve niiles square, and shall alternate on each side of the line with blocks of nimilar size and frontage, which shall remain in the possession of the Crown. The Com- pany is not to Hell this land except under elTuctual conditions of settlement, and in case the undertaking Hhall be permanently abandoned, the land not so sold is to revert to the Crown. 4. The Company shall not dispose of the telegraph without the consent of the Im- perial Government. 5. The Colonial GovornmentH, within their respective limits, or the Imperial Govern- ment in any part of the line, may at any time take temporary possession of the telegraph lino, in ease the public interest requires it, on payment of a rate of compensa- tion to be hereafter agreed, and Government messages shall, at all times when demanded, have priority over all others. 6. The H( Government, with the > onsent of the parties, will introduce into Parliament such oasures as may be requisite to give effect to this proposal. 7. The telegraph and works, and the servants and agents of the Company, shall be considered as under the protection of the Crown and of the Colonial Governments as fully as if in the settled districts o ' British North America. 8. The Company and its works shall be exempt from all taxation for a period of thirty years. 9. Any further matters of detail, or questions of difference requiring disc 'ssion, to be remitted to the sole decision of his Gracb the Duke of Newcastle, Her .Majesty's principal Secretary of State for the Colonies. ** ** * ' '■ '-in l%'''i;| so soon as tele- lies of Canada, rate of profit five per cent., i at £500,000, itish Columbia f.ing upon the effect, shall be ne shall not be any interrup- rantee shall be nits of Canada lay Company, e sq ^re miles all be demand- Thb Undkr-Skcretary to Mr. Watkin.* Downing Street, ■ * Ist May, 1863. SiJi, — I am directed by the Duke of Newcastle to state that he has had much satis- faction in receiving your letter of the 28th ultimo, enclosing the heads of a proposal for establishing telegraphic and pof>tal communication between Lake Superior and New Westminster, through the agency of the Atlantic and Pacific Transit and Telegraph Com- pany. These proposals call for some observations from his Grace. * * :k Article 1. — His Grace sees no objection to the grant of land contemplated in this article, but the "rights" stipulated for are so indeterminate that, without further explanation, they could scarcely be promised in the shape iu which they are asked. He anticipates, however, no practical difficulty on this head. * * * * His Grace apprehends that the Crown land contemplated in Article 3, is the terri- tory lying between the eastern boundary of British Columbia and the territory purport- ing to be granted to the Hudson's Bay Company by their charter. His Grace must clearly explain that Her Majesty's Government do not undertake, in performance of this article of the ugreement, to go to the expense of settling any questions cf disputed boundary, but only to grant land to which the Crown title is clear. * * ♦ Subject to these observations, and to such questions of detail as further considera- tion may elicit, the Duke of Newcastle cordially approves of the Company's proposals, and is prepared to sanction the grants of land contemplated in the 3rd article. I" 1 !,>{ Her Majf-Sity's Government, to the grant of land contem- plated in the third article of the "heads of proposal;" and that I have recommendec' the project to the acceptance of the colonies of British Columbia and Vancouver's IsL.ad, subject to such modifications of detail (if any) as further examination may show to be necessary. With this information, I should wish you to submit the proposal for the considera- tion of your Government. I have, etc.. Newcastle. Governor Viscount Monck, etc., etc., etc. Report op a Commiitee of Council, approved by the GovERNOii-GENERAL on the 18th February, 1864.t (Extract.) The Committee of the Executive Council have had under consideration a despatch, No. 49, from His Grace the Duke of Newcastle, dated 1st May, 1863, with enclosures, on the subject of a proposal of the " Atlantic and Pacific Transit and Telegraph Com- * Segg. Papers, Can., 1863, No. 31. tSess. Papers, Can., 1864, Vol. 23. No. 62. ^JBlPAKiiiib!^! or JDSnCi iTBSCUE. CLAIM OF CANADA TO THE COUNTRY POSSESSED BY THE FRENCH IN 1763. 101 pany," to establinh telegraphic ar d postal communication from Lake Superior to New Westminster, in British Columbia.* * >|: * * The Committee have not been able to persuade themselves that the people of Canada would be likely to receive benefits corresponding to the cost of constructing a line of tele- graph from the seat of government to the head of Lake Superior, and guaranteeing half the interest of the cost of constructing a line from that point to the Pacific Coast, unless at^ the same time the fertile valleys and plains of the Great North-West are made accessible to Canadian settlers, and to European emigrants, who are in quest of cheap lands under the protection of the British flag and a free Constitutional Government. A " telegraph line" will not accomplish these objects, though it may serve an impor- tant purpose and lead ultimately to their attainment. But unless " The Atlantic and Pacific Transit and Telegraph Company " are prepared to undertake the construction of a road pari passu with the telegraph line, the Committee cannot, in the present con- dition of the Canadian exchequer, and with the important questions of boundary, terri- torial jurisdiction and form of government in the vast territory proposed to be opened, still unsettled, recommend acceptance of the heads of proposal as submitted by them, and conditionally approved by His Grace. The Committee are of opinion that in view of the recent change in the constitution and objects of the Hudson's Bay Company, which, from the correspondence laid before the House of Lords, appears to have been eSected, and the claims which the new organi- zation have reiterated witn the apparent sanction of His Grace the Duke of Newcastle, to territorial rights ovb^ a vast region not included in their original Charter, it is highly expedient that steps be taken to settle definitely the North- Western boundary of Canada. The Committee therefore recommend that correspondence be opened with the Imperial Government with a view to the adoption of some speedy, inexpensive and mutually satisfactory plan to determine this important question, and that the claim of Canada be asserted to all that portion of Central British America which can be shown to have been in the possession of the French at the period of the cession, in 1763. Certified. Wh. H. Lee, C.E.C. ' ihe considera- WCASTLE. ERAL ON THE The Governor-General to the Colonial SscRETARY.t Quebec, " - 19th February, 1864. My Lord Duke, — I have the honour to enclose a Report of the Executive Council on the proposals of the Atlantic and Pacific Transit and Telegraph Company, transmit- ted to me with your Grace's despatch. No. 49, of the 1st of May, 1863. I have, etc., MONCK. His Grace the Duke of Newcastle, etc., etc., etc. The Colonial Secretary to the Governor-General. J Downing Street, Ist July, 1864. My Lord, — I have had under my consideration your Lordship's despatch. No, 18, of the 19th of February, enclosing to the Duke of Newcastle the Minute of your late * [These and other papers referred to are omitted frctn this collection as having nu bearing upon the inatterH involved. The omisflions from the present document are for the like reason.— 6. E. L.J + SesB. Papers, Can., 1864, Vol. 23, No. 62. i Journals, Legislative Assembly, Can., 1865, Vol. 26, p. 45. Ill U4 ,, 102 CLAIM OF CANADA TO THE COUNTRY POSSESSED BY THE FRENCH IN 1763. I !ti ! ; i^; Executive Council on the subject of the pending negotiation between Her Majesty's Got- emment and the Hudson's Bay Company, for the cession of the rights of that Company in the Hudson's Bay Territory to the Crown. In that Minute the Executive Council say they " are of opinion that, in view of tht recent change in the constitution and objects of the Hudson's Bay Company, which, from the correspondence laid before the House of Lords, appears to have been effected, and the claims which the new organization have reiterated, with the apparent sanction of His Grace the Duke of Newcastle, to territorial rights over a vast region not included in their original Charter, it is highly expedient that steps be taken to settle definitely the North- Western boundary of Canada. " The Committee therefore recommend that correspondence be opened with the Imperial Government with the view to the adoption of some speedy, inexpensive, and mutually satisfactory plan to determine this important question, and that the claim of Canada be asserted to all that portion of Central British America whic h can be shown to have been in the possession of the French at the period of the cession m 1763." If the proposed cession shall take place, it will be necessary to make provision for the future government of the Red River Settlement, and prospectively of such parts of the Territory as may from time to time become the seats of settled occupation and industry. The Committee of the House of Commons, which in the year 1857 considered the state of the British possessions in North America which are under the administration of the Hudson's Bay Company, expressed themselves in the following terms : — " Your Com- mittee consider that it is essential to meet the just and reasonable wishes of Canada, to be enabled to annex to her territory such portion of the land in her neighbourhood as may be available to her for the purposes of settlement, with which lands she is willing to open and maintain communication, and for which she will provide the means of local admin- istration. Your Committee apprehend that the districts on the Red River and the Saskatchewan are among those likely to be desired for early occupation. It is of great importance that the peace and good order of those districts should be effectually secured. " Your Committee trust that there will be no difficulty in effecting arrangements, as between Her Majesty's Government and the Hudson's Bay Company, by which these dis- tricts may be ceded to Canada on equitable principles ; and within the districts thus annexed to her, the authority of the Hudson's Bay Company would, of course, entirely cease." Before taking any further steps in the negotiations with the Company, 1 am desirous of being informed whether your advisers are prepared to assist in these negotiations, with a view of accepting the government of any portion of the territory, and undertaking the duties contemplated by the Committee, in case sufficiently favourable terms can be obtained. If they are prepared to do so, it will be desirable that they should send over to this coun- try some person dulj authorized to communicate with me upon the subject, in order that the negotiations may be proceeded with during the recess, and the necessary mea- sures prepared for obtaining the sanction of the Imperial Parliament and of the Legisla- ture of Canada. If they are not prepared to assist in the negotiations, I shall be glad to hear from you their views upon the subject of the north-western boundary of Canada. I have, etc., Edward Cardwell. Report of a Committee op Council, approved by the Goveunor-General on the 11th November, 1864.* The Committee --f Council have had under their consideration the despatch of the Right Honourable Edward Cardwell, Her Majesty's Secretary of State for the Colonies, of 1st July, 1864, in reply to your Excellency's despatch of 19th February, 1864, transmitting Minute of Council on the subject of the pending negotiations between Her 'Journals, LeifiHlatire Asdembly, Can., 1S66, Vol. 26, p. 46. NEGOTIATIONS BETWEEN THE IMP. GOVERNMENT AND THE H. B. CO., 1864. 103 U ON TUE Majesty's Government and the Hudson's Bay Company, for the cession to the Crown of the rights of that Company in the North-Western Territories. In the Minute of Council transmitted by your .Excellency, the Government of Can- ada recommended that " correspondence be opened with the Imperial Government, with a view to the adoption of some speedy, inexpensive, and mutually satisfactory plan " to " settle definitely the north-western boundary of Canada," and that " the claim of Canada he asserted to all that portion of Central British America which can be shown to have been in the possession of the French at the period of the cession in 1763." Mr. Cordwell, in acknowledging this Minute, remarks, that " if the proposed cession shall take place, it will be necessary to make provision for the future government of the Bed River Settlement, and prospectively of such parts of the territory as may from time to time become the seats of settled occupation and industry." He quotes from the Report of the Select Committee of the House of Commons of 1857, in which it is said : — " Your Committee consider that it is essential to meet the just and reasonable wishes of Canada, to be enabled to annex to her territory such portion of the land in her neighbourhood as may be available to her for the purpose of settlement, with which lands she is willing to open and maintain communications, and for which she will provide the means of local administration. " Your Committee apprehend that the districts on the Red River and the Saskatche- wan are among those likely to be desired for early occupation. It is of great importance that the peace and good order of those districts should be effectually secured. Your Com- mittee trust that there will be no difficulty in eflfecting arrangements as between Her Majesty's Government and the Hudson's Bay Company, by which those districts may be ■ceded to Canada on equitable principles, and within the districts thus annexed to her the authority of the Hudson's Bay Company would, of course, entirely cease." And Mr. Cardwell concludes by asking, whether the Government of Canada are prepared to assist in those negotiations with the view of accepting the government of any portion of the territory, and undertaking the duties contemplated by the Committee, in case sufficiently favourable terms can be obtained ; and he suggests that if prepared so to do, it would be desirable that some person duly authorized to communicate the views of the Canadian Government, should be sent to England for that purpose. The Committee of Council recommend that Mr. Cardwell be informed that the Gov- ernment of Canada is more than ever impressed with the importance of opening up to settlement and cultivation the lands lying between Lake Superior and the Rocky Moun- tains. The great extent of these lands and their adaptability for settlement are now established beyond a doubt ; and it is not to be contemplated that a region so fertile, and capable of sustaining so vast a population, should longer be closed to civilization for the benefit of a trading company, however long established and respectable that company may be. The rapid progress of British Columbia adds to the expediency of opening, without delay, an overland route to the Pacific, and gives feasibility to the hope, long cherished by many, that the Atlantic and Pacific Oceans, ere many years elapse, may be connected by one direct line of railway through British territory, from Halifax to British Columbia. The close relations springing up between the Red River settlers and the Americans of Pembina and St. Paul, and the removal of many Americans into the territory, render it doubly expedient that a settled government, under the British Crown, should be estab- lished in the country at an early date. The effort now being made, with every prospect of success, by the Governments of Canada, Nova Scotia, New Brunswick, Newfoundland and Pfince Edward Island, for the union of all these Provinces under one Government, presents another strong reason for settling now the future position of the North-West country, more especially as the parties to the proposed British American Federation have unanimously agreed that the •People of the North- West Territory, and of British Columbia and Vancouver, may, at .-ay time, join the Federation on equitable terms, and the whole of British America thus bocome united in one system of government under the protecting rule of Great Britain. The Government of Canada is rea ay and anxious to co-operate witli the Imperial Government in securing the early settlement of the Territory and the establishment of local government in its settled portions. The Government looks forward with interest i > Jit J < i S ■m r-1 ■s '!-? I 104 VIEWS OF THE CANADIAN GOV'T. RESPECTING THE NEGOTIATIONS, 1864. II. '-''"■'! rj; i t,o the day when the valley of the Saskatchewan will become the back country of Canada^ and the land of hope for the hardy youth of the Province when they seek new homes in the fc-odt ; and it anticipates with confidence the day when Canada will become the high- way of immigration from Europe into those fertile valleys. To attain these ends the Government is prepared to render all the aid in its power towards opening up the country. The Committee of Council are, however, clearly of the opinion that the first step towards the settlement of t*- => terril-ry is the extinction of all r im by the Hudson's Bay Company to proprietary rights in the soil or exclusive right of iii,de. The Committee do not deem it necessary now to raise the question of the validity or invalidity of the Com- pany's charter. Were all the pretensions of the Company as to their title fully admitted for the sake of argument, the necessity of its speedy extinction would still remain. It is not to be entertained for a moment/ that half a continent should continue to be shut oflffrom the world on the strength of a parchment title, however good. The Committee are, however, conscious that it is for the Imperial Government, and not for the Government of Canada, to assume the duty of bringin ' to an end a monopoly originating in an English charter, anc! exercised so long under i iperial sanction ; and while acknowledging with thanks the courtesy of Mr. Cardwell, in inviting the Govern- ment of Canada l;o assist in negotiations with the Hudson's Bay Company for the cession to the Crown oi their claims, the Committee are of the opinion that the negotiations will be advantageously left in the hands of the Imperial Government. When the negotiations have been brought to a close the Government of Canada will be ready to arrange with the Imperial Government for the annexation to Canada of such portion of the land in her neighbourhood as may be available for settlement, as well as for the opening up of communications into the territory and providing means of local administration ; or should the Imperial Government prefer to erect the territory into a Crown colony, the Govern- ment of Canada will gladly co-operate in the opening up of communication into the territory and the settlement of the country. The Coii. irittee express the hope that until the Government of Canada has been com- municated with, no cession of large sections of land will be made by the Imperial Gov- ernment for any purpose, or any right of way granted through the territory. The history of the American continent is replete with examples of the great evils resulting from the locking up of extensive tracts of land in the hands of wealthy corporations, whose whole object is the realization of large profits. The existence of such an evil in these North- western regions would seriously embarrass the eflTorts of any Government for the early and satisfactory settlement of the country. In suggesting that the negotiations with the Hudson's Bay Company should remain in the hands of the Imperial Government, the Committee are anxious that Mr. Cardwell should not interpret this as arising from any diminution of interest on the part of Canada in the just and speedy settlement of this great question ; on the contrary, the public interest in the question, and the desire for the early occupatic of the country, have of late much increased, and the best proof of this is furnished in the desire unanimously expressed by the recent Conference of the Atlantic Provinces, for a political union with the great Western Territories. The Government will observe the progress of the li \q[oti- ations with profound interest, and will most gladly communicate with Mr. Cards' '.1 on any point which he may deem proper to submit to it. The Honourable the President of the Executive Council of Canada [Mr. Brown] sails for England on the 16th instant ; he has given much attention to the Hudson's Bay question, and will be able to commiinicate more fully to Mr. Cardwell the views of the Government on the subject, of which he is fully possessed. Certified. Wm. H. Lbb, C.E.C. REPORT OF HON. GEO. BROWN RESPECTING HIS MISSION TO ENGLAND, 1865. 105 Bbpokt of the Honourable George Brown, President of the Executive Council. OF Canada.* » . ... Quebec, 26th January, 1865. To His Excellency the Governor-General of Canada in Council. My Lord, —I have the honour to report that while recently in England, in compli- ance with your Excellency's instructions, I olaced myself in communication with Her Majesty's Secretary of State for the Colonies, on the subject of opening up to settlement the North-Western Territories. In your Excellency's despatch of 19th January, 1864, to the Colonial Secretary, the anxious desire of the Canadian Government was communicated " for some speedy, inex- pensive, and mutually satisfactory plan for settling definitely the North- Western boundary of Canada," and the claim of Canada was asserted to " all that portion of Central British America which can be shown to have been in the possession of the French at the period of the cession in 1763." In reply to this despatch, Mr. Cardwell, on 1st July, 1864, requested to be informed whether the Government of Canada was prepared to assist in negotiations with the Hud- son's Bay Company, with the view of accepting any portion of the territory now c! imed by that Company, and providing the means of local administration therein ; and Le sug- gested that if so prepv.red it would be desirable that some person duly authorized to com- municate the views of the Canadian Government should be sent to England for that purpose. On the 1 1th November, 1864, a Minute of Council was approved by your Excellency, in reply to Mr. Cardwell's despatch. It set forth that the Government of Canada was ready and anxious to co-operate with the Imperial Government in securing the early set- tlement of the North- West Territories, and the establishment of local government in its settled portions ; but that in its opinion the first step towards that end was ihe extinction of all claim bv the Hudson's Bay Company to proprietary rights in the soii or exclusive rights of trade. It suggested that it was for the Imperial Government, and not for the Government of Canada, to assume the duty of bringing to an end a monopoly originating in an English charter, and exercised so long under Imperial sanction ; but that when tho negotiations were brought to a close, the Government of Canada would be ready co arrange ^^ith the Imperial Government for the annexation to Canada of such portions of the territory as might be available for settlement, as well as for the opening up of com- munications into the territory and providing means of local administration ; or should the Imperial Government prefer to erect the territory into a Crown colony, the Canadian Government would gladly co-operate in the opening up of communication into the terri- tory, and the sett!oment of the country. The Minute finally suggested that the under- signed, while in England, would communicate more fully to Mr. Cardwell the views of the Canadian Government. While in London I had the honour of several interviews with Mr. Cardwell, at which the whole question was fully discussed ; and I gratefully acknowledge the courtesy and attention extended to me by that gentleman. I found that negotiations iur the cession to the Crown of the territorial claims of the Hudson's Bay Company had been proceeding for a year ])ast between the Colonial Minister and the Company ;t and it may not be without advantage that I should state here briefly the point to which these negotiations had been brought : — I. In July, 186.3, the whole interests of the Hudson's Bay Company were transferred to Mr. E-^'vard W. Watkin and certain gentlemen acting with him ; and Sir Edmund Head was elected Governor of the Company. The capital stock of the old Company wa» £500,000 sterling, but at the time of the sale and for some time previous each ,£100 share * Journals, Legislative Assembly, Can. , 186.5, Vol. 25, p. 48. t [The papers which passed between the parties to these megotiations, dnrii the years 1863 and 1864, do not appear to have been printed (at least in this country), except in so far i\n they are quoted in the present report.— G. K. L.J Rf ' 106 REPORT OP HON. GEO. BROWN RESPECTINQ HIS MISSION TO ENGLAND, 1865. i' ■waa worth £200 on the London Stock Exchange. The market value of the Company's interests was therefore £1,000,000 sterling. The new Company agreed to pay £1,500,000, and did pay that sum, for the transference to them of all the interests of the old Com- pany. II. On the 28th of August, 1863, Sir Edmund Head, as Governor of the new Hud- son's Bay Company, communicated to His Grace the Duke of Newcastle a resolution expressive of the conviction that the time had arrived for introducing into the North- West Territories the direct authority of the Crown. III. On the 9th of Octobor, 1863, Sir Frederick Rogers, by instruction of the Duke of Newcastle, informed the Company that His Grace was ready to consider any proposals «ubmitted to him by the Hudson's Bay Company with reference to the introduction of the direct authority of Her Majesty's Government in Eupert's Land. IV. On 11th November, 1863, Sir Edmund Head acknowledged the receipt of Sir Frederick Rogers* communication, and proceeded to explain the views of the Company in the following terms : — " With regard to the extent of the proposed colony, of which the seat of government ■would be Red River (or Fort Garry), the Committee presume that His Grace would wish it to include the whole country from the frontier of the United States to the north branch of the Saskatchewan, and to extend eastward towards Lake Superior, as far as the frontier of Canada, wherever the precise line of that frontier may be found. Perhaps the most convenient limit for the northern boundary would be either the Saskatchewan itself, or a line running from the Rocky Mountains eastward through Edmonton House and Fort Cumberland, and, from the latter, following the Saskatchewan down to Lake Winnipeg. Nothing would be gained by going further to the northwai'd, nor by including the eastern side of Lake Winnipeg ; but from the mouth of the Winnipeg River, where it enters the lake, the line of demarcation might be run eastward until it tut the Canadian frontier somewhere north of Lake Superior or Lake Huron." After hinting at the purchase by Government of the whole territorial claims of the Company for a sum of money, payable down or by instalments — but which he admits is probably an impracticable solution — Sir Edmund Head goes on to propose, as the condition of the Company's consent to the erection of a Crown colony, that " the Company should retain the ownership in fee simple of one -half of the lands in the colony, and the other half should be conveyed by the Company to the Crown." And this compromise he explains the Company suggests, only subject to the following stipulations : — "1st. The Hudson's Bay Company should have the sole right to erect, and should bind themselves to complete within five years, an electric telegraph to connect British Columbia and Canada. The line for this telegraph should be approved by the Secretary of State, and it should be maintained by the Company, who would, of course, engage to convey the messages of the Imperial and Colonial Governments at a fixed and moderate rate. " It would be necessary as a condition precedent to the erection of the telegraph, — " (a) That the Government of British Columbia and Canada should pledge their faith respectively to the Secretary of State to pay the yearly sum set forth in the enclosures to the despatch of July 31, 1862, with all the advantages as to lands to be granted by Her Majesty's Government, and other terms therein specified. " (6) That a road should be laid out along the line of telegraph, but the soil on which the telegraph stands, and the, space, say one mile in width, on one side of its course, should belong to tae Hudson's Bay Company, to be reckoned as part of the half of the land which they would retain. The other side of the road might be included in the half belong- ing to t!ie Crown. '•(c) That the Company, in constructing the telegraph, should be entitled to use woai 01 other materials taken from ungranted land. " 2nd. The Crown shall resume the grant of mines, and diggings of gold and silver throughout the colony, on condition of paying to the Hudson's Bay Company one-third of the receipts of all dues, royalties, rents, etc., from such mines or diggings, whether raised by w ay of export duty or otherwise, but the Company should not be Uable for expenses of coiieotion or escort. ntitled to use NEGOTIATIONS BETWEEN THE IMP. GOV. AND THE H. B. CO.J^63-4. 107 c " 3rd. The buildings required for military or Government purposes at ForlTOMrry or Red River should be valued and purchased of the Company. *^' " 4th. The Company should retain as a portion of their half of the lands, anCl^ already laid out and surveyed, as well as five thousand acres round each of their forts n*-^, posts." " therefore, the vital importance to Canada of hav- ing that great and fertile country opened up to Canadian enterprise, and the tide of emi- gration into it directed through Canadian channels — remembering also the danger of large grants of land passing into the hands of mere moneyed corporations and embarrassing the rapid settlement of the country — and the risk that the recent discoveries of gold on the eastern slope of the Rocky Mountains might throw into the country large masses of set- lers unaccustomed to British institutions — we arrived at the conclusion that the quickest solution of the question would be the best for Canada. We accordingly proposed to the Imperial Ministers that the whole British territory, east of the Rocky Mountains and north of the American or Canadian lines, should be made over to Canada, subject to such rights as the Hudson's Bay Company might be able to establish ; and that the compensa tion to that Company (if any were found to be due) should be mot by a loan guaranteed '•Mt<. -4 ft F„..«M^1 I 'hi i' [The omitteil j ortions of thia Report do not relate to the matters in iasue.— G. £. L.] 8 114 PROPOSED SALE OF H. B. TERRITORY TO AN ANGLO-AMERICAN CO., 1866. I'P) ^ii^ by Great Britain. The Imperial Government consented to this, and a careful investiga- tion of the case satisfies us that the compensation to the Hudson's Bay Company cannot, under any circumstances, be onerous. It is but two years since the present Hudson's Bay Company purchased the entire property of the old Company ; they paid £1,500,000 for the entire property and assets, — in which were included a large sum of cash on hand, large landed properties in British Columbia and elsewhere not included in our arrange- ment, a very large claim against the United States Government under the Oregon Treaty ; and ships, goods, pelts and business premises in England and Canada valued at £1,023,569. The value of the territorial rights of the Company, therefore, in the estima- tion of the Company i^elf, will be easily arrived at. The results of our communications with the Committee of Her Majesty's Government were placed, by Mr. Cardwell, in the form of a despatch to your Excellency ; that docu- ment bears date the 17th June, 18o5, and has already reached your Excellency's hands. It contains a correct statement of the result of the conference. * * * John A. Macdonald. • Geo. Et. Cartibr. Gbo. Brown. A. T. Galt. , Quebec, 12th July, 1865. The Governor-General to the Colonial Secretary.* Government House, Quebec, 16th August, 1865. Sir, — I have the honour to transmit for your infor^lation copies of papers relating to the opening up of the North-West Territory to settlement and legislation, which I have caused to be laid before both Houses of the Legislature of Canada.! n I have, etc., MONCE. Thj Bight Honourable E. Cardwell, M.P.j etc., etc., Secretary of State. Mr, MoEwkn to the Governor op the Hudson's Bay Company.]: 5 Nicholas Lane, Lombard Street, E.C., London, 18th Jan., 1866. Sir, — Will you permit me to emquire, on behalf of self and friends, whether the Hudson's Bay Company is at liberty and is willing to dispose of its cultivable territory to a party of Anglo-American capitalists, who would settle and colShizo the same on a system similar to that now in operation in the TTnited States, in respect to the organiza- tion of Territories and States 1 If so, perhaps you will state whether you are also ready to make or to receive, with the intention of business, a proposition for the absolute sale of the same. I have, etc., . Alex. McEwbn. Sir Edmund Head, Governor Hudson Bay Company, Fenchurch Street. * Sess. P»peri, Can., 1867-8, Vol. 1, No. 19. t [It does not Appear what these papers were.— G. E. tSeia. Papoii, Can., 1867-8, Vol. 1, No. 19. L.] n the eatima- i Government PROPOSED SALE OF H. B. TERRITORY TO AN ANGLO-AMERICAN CO., 1866. 115 The Secrktaby of the Hudson's Bay Company to Mb. MoEwen.* , ., . , Hudsok's Bay House, • >• London, 24th January. 1866. Sib, — Your letter of January 18th was received and laid before the Governor and Oommittee at their meeting on the 23rd inst. I am directed by them in reply to inform you that they are quite ready to entertsdu and consider favourably any proposal for purchasing a portion of the Company's Terri- tory for the purpose of colonization. With respect to the organization of the Territory to be settled, the Hudson's Bay Company would be desirous of faciliating such organization by the exercise of any power which they lawfully possess. As Rupert's Land is a British colony, the concurrence of Her Majesty's Government on the part of the Crown would be necessary in the establish- ment of any Government j but the Governor and Committee see no reason to suppose that any obstacle would arise on this account. I am, etc.. Alex. McEwen, Epq. Thomas Fbaseb, Secretar^f. The Govebnob of the Hudson's Bay Company to the Colonial Secretary, t Hudson's Bay House, London, 6th February, 1866. Sir, — I have the honour to enclose certain papers for the information of the Bight Honourable the Secretary of State : A. — Extract from a letter addressed to the Secretary of the Hudson's Bay Com- pany by William Mactavish, Esq., Governor of Rupert's Land, dated Nov. 13th, 1865. | B. — Copy of a letter addressed to Secretary of Hudson's Bay Company, by Mr. Alexander McEwen, dated January 18th, 1866. C. — Copy of answer to the same, sent by order of the Governor and Committee, and dated January 24th, 1866. -^ With regard to Mr. Mactavish's letter it will be observed that Yermilion Lake^is'in ths United States Territory, a little south of Rainy Lake. I have, etc., Edmund Head. T. F. Elliot, Esq., Colonial Office. The Under Secretary to the Governor of the Hudson's Bay Company.§ Downing Street, 20th February, 1866. Sir, — I am directed by Mr. Secretary Card well to acknowledge the receipt of your letter of the 6th inst., enclosing a copy of one addressed to you by Mr. McEwen, enquir- ing if the Hudson's Bay Company are willing to dispose of such portion of their Territory as is capable of cultivation to a party of Anglo-American capitalists. ♦ Seas. Tapers, Can., 1867-8, Vol. 1, No. 19. f Seu. Pap«n, Can , 1867-8, Vol. 1, No. 19. t [This extract has reference only to alleged gold discoTeries on Vermilion Lake.— O. E. L.] S Seal. Papen, Can., 1867-8, Vol. 1, No. 19. it' i I * liar 116 PROPOSED SALE OF H. B. TERRITORY TO AN ANGLO-AMERICAN CO., 1866, • You also enclose a copy of the reply -which the Company have retui .ed to thU enquiry. Having regard to the reference you have made in your letter to the probable con- currence of Her Majesty's Government in the establishment of some new government, Mr. Oardwell is desirous of reminding you that at the conferences which took place during last summer, between the Canadian Ministers and certain members of Her Majesty's Government, the Provincial Ministers expressed their desire that the North- Western Territory should be made over to Canada, and they undertook to negotiate with the Hudson's Bay Company for the termination 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. To this proposal. Her Majesty's Ministers assented, engaging that if the negotiation should be successful, they, on the part of the Crown, being satisfied that the amount of the indemnity was reasonable, and the security sufficient, would apply to the Imperial Parliament to sanction the arrangement and guarantee the amount. Until this engagement shall have been disposed of, it will be necessary for Her Majesty's Government to keep it in view in any steps which they may be called upon to take in the matter. I am, etc., E. E. FORSTER. Rt. Honourable Sir E. Head, Bart., etc., etc. Thb Colonial Sbcrktary to the Governor-General.* Downing Street, 24th February, 1866. My Lord, — I have the honour to transmit to your Lordship a copy of a letter, fith February. with its enclosures from the Governor of the Hudson's Bay Company, 20th February, relative to a proposal for purchasing such portion of the Company's Territory as may be capable of cultivation by a party of Anglo-American capitalists. I also enclose a copy of a reply which I have returned to Sir Edmund Head. I have, etc., Edward Cardwell. Governor the Right Honourable Viscount Monck The Governor op the Hudson's Bay Company to the Un, ur Secretary.* Hudson's Bay House, London, March Ist, 1866. Sir, — I have the honour to acknowledge your letter of the 20th instant. I beg to assure the Secretary of State that the Committee of the Hudson's Bay Company have never lost sight of the fact, that an arrangement for transferring their rights to Canada was contemplated as possible, although no action or engagement has been yet taken on the part of the Company, except so far as to express a readiness to consider any offer which may be made. The letter to Mr. McEwen intended only to say that the Company would be ready to exercise its lawful powers for the protection of the colonists, and the organization of a settlement in their territory. If those powers shall have been previously purchased by Canada, or assumed by Her Majesty's Government, their exercise will not be needed, because there will then be another government in existence. If such powers were still * Sess. Papers, Can., 1867-8, Vol. I, No. 19. PROPOSED SALE OF H. B. TERRITORY TO AN ANGLO-AMERICAN CO., 1866. 117 in the hands of the Company, the Committee ventures to think that the Right Honour- able the Secretary of State would probably concur in any lawful exercise of them which might be necessary for the good of settlers. Irrespective of any question of the government of the Territory, the Committee presume that they are at the present time in nowise hampered in the disposal of their private property in lands by sale. At the same time, 1 would venture most respectfully to enquire for how long a period the option, if it may be so called, which has been given to Canada, is supposed to remain open. On the 29th June, 1865, I assured the Secretary of State of our readiness to con- sider any offer made in pursuance of the agreement between Her Majesty's Government and the Canadian deputation. Since that time, so far as the Comm .tee know, the only step taken has been the publication of a report made to the Governor-General of Canada, by one of the deputatipn, in which, as it appears to the Committee, the rights of the Company are disputed, and the value of its property systematically depreciated. If indeed the action of the Company with reference to its rights of private property (as distinguished from its rights of government) is in any degree fettered or suspended by the existence of the agreement of Her Majesty's Government with that of Canada, the question of delay, and the possibility of losing a favourable opportunity for sales, may become a very grave one in a pecuniary point of view. This is more especially the case, because in tLe agreement the words "if any " are expressly inserted in connection with the proposed compensation. So far, therefore, as that agreement is concerned, the Company, after all, may be held entitled to no compensation for their rights, public or private. It is difficult to see how a stipulation of this very contingent character, not entered into by the Company themselves, can, with any fairness, be considered as interfering with its right to deal with its own property. It is scarcely necessary for me to say, that the final acceptance of any offer made by Canada or by any other party, would depend, not on the Committee, but on the body of shareholders, to whom that property belongs. I have, etc.. Eduund Head, To E. Forster, Esq., M.P. The Colonial Secretary to the Governor-General.* Downing Street, 3rd March, 1866. Mv Lord, — With reference to my despatch of the 24th ultimo, No. 18, forwarding copies of a correspondence between the Governor of the Hudson's Bay Company and this Office on the subject of a proposal addressed to that Company by Mr. McEwen, for the purchase of a portion of the Hudson's Bay Company's Tei-ritory in British North America, I have the honour to transmit to your Lordship a copy of the reply which Sir Edmund Head has returned to the letter written to him by my direction on the 20th ultimo. ■.SJ'l?*"' I have to request that your Lordship will communicate this reply of Sir Edmund Head to your contidontial advisers, and state that I shall be glad to be favoured with their wishes on the subject of the proposed purchase by Canada of the rights of the Hudson's Bay Company. I have, etc., Edward Cardwell. Governor Viscount Monck. • SesB. Papers, Can., 1867-8, Vol. 1, No. 19. m 1 18 CANADIAN PROTEST AGAINST ALIENATION OF H B. TERRITORY, 1866. P.BPORT OF A COMMITTBB OF COUNOIL, APPROVED BY THE GcVERNOR-GeKBRAL OIT THl 32nd Day of Junk, 1866.* The Committee of the Executive Council have given their careful consideration te the despatches of the Secretary of State for the Colonies, bearing date the 24th February and 3rd March last, relative to a proposal made to the Hudson's Bay Company by a party of Anglo-American capitalists, for the purchase " of such portion of the territory claimej by the Company as may be capable of cultivation ; " and they have the honour to submit to your Excellency the following remarks on the subject : — In tlife first place, the Committee do not admit that the Company have a legal titl* to that portion of the North- Western Territory whicL is tit for cultivation and settle- ment. This fertile traict is a belt of land stretching along the northern frontier of th« United States to the base of the Kocky Mountains, and Canada has always disputed the title of the Company to it. Even if it be admitted that the Charter of 1670, recognized as it has been by several Imperial Statutes, gives to the Company a freehold right in the soil in Rupert's Land, Canada contends that the cultivable tract in question forms no part of that land. It is not now necessary to repeat the grounds on which this opinion is founded, as they have been already more than once submitted to Her Majesty's Government, and it is only alluded to lest silence on the subject might be asl^umed as an acquiesence on the part of Canada in the right of the Company to sell. Assuming, however, that such right exists, the Committee see grave objections to the proposition, of Mr. McEwen being enter- tvined. Canadian experience has shown that sales of large tracts of land to individuals, or commercial corporations, have operated prejudicially to the best interests of th» Province, and retarded rather than promoted its settlement and progress. Companies or individuals purchasing for the purpose of speculation, are governed oolely by the one view of obtaining a profitable return of the money invested in the purchase. All other considerations are set aside. No general or comprehensive system of settlement is or can be established. The best tracts are withheld from settlement in order that their value may be increased by the improvement of the surrounding country, and by the labour of the settlers, and the price paid to the Company for the lands, instead of beiilg expended in the opening up of roads and in developing the resources of the country, is divided among a number of non-resident shareholders havi'.ig i.o interjst in Itie prosperity of the country further than as such prosperity contributf s to t le value of their shares. In the correspondence which took phce in I86.-> and 1864 between the Hudson's Bay Company and the Colonial Office, with reference '.o the introduction of the direct authority of Her Majesty's Government in Bupert'"* Land, it appears that the Company proposed, as a condition of their assenting to the erec '.ion of a Crown colony, that they should retain the ownership in fee simple of one-half of the lands of the colony. This proposition was rejected by the Duke of Newcastle, in language which appears to the Committee to be conclusive : " In an unsettled colony there is no eflfectual mode of taxation for purposes of government and improvement, and the whole progress of the colony depends on tha liberal and prudent disposal of its land. These considerations afford decisive reasons against leaving that land in the possession of a corporation. And I am to observe that these objections, conclusive in any case, are greatly enhanced in the case of the Hudson's Bay Company, as I learn from your letter that it has been ' the unvarying opinion ' of the Committee on whose behalf you speak that the Company would ' lose fully as much as they would gain, by the increase of settlement in the chartered Territory.' It is therefore, to say the least, a question whether the Company would not be under a direct inducement to use their proprietary rights to thwart the /colonizing efforts of the Govern- ment The conclusive objection to the scheme is that it would reproduce in a gigantic shape the inconveniences which, on a far smaller scale, were found intoler- able in Canada. It is evident as a matter of reasoning, and notorious as a matter of * Sess. Papers, Cun., 1807-8, Vol. 1, No. 19. CANADIAN PROTF.ST AGAINST ALIENATION OF H. B. TERRITORY, 16Q6. 119 IRA.L ON TBI i a legal titlt Da and settla- fact, that the interposition of large blocks of property between tracts or districts of Crown land must obstruct the opening up of those districts, unless it fortunately happens that the private proprietor is ready to expend money pari paaau with the Government in the construction of roads and other improvements, and to conform his land policy to that of the authorities. It is also clear that colonists of the Anglo-Saxon race look upon the land revenue as legitimately belonging to the community, and thai the diversion of half or more than half of that revenue to the purpose of increasing the dividends of a private corporation would cause a continual and growing discontent, which could not be allayed by any abstract argument of right, and the full force of which the Government would be expected by the Company to sustain. His Grace cannot con- sent to make himself responsible for these consequences, and he is therefore obliged to treat as inadmissible any proposal for the p- irietary partition of those territories which may be placed under the government of the Crown."* Tf such objections exist to the tenure of large tracts of land by so ancient and responsible a corporation as the Hudson's Bay Company, with large powers of govern- ment, and a political as well as a commercial status, with Eow much greater pressure must they weigh against the transfer of such tracts to a private aesociation of tipeculators. The Committee are further of opinion that before any steps are taken to introduce a large body of settlers into that country, provision should be made for the efficient administration of the government there. So long as the Great North-West is only occupied by the Hudson's Bay Company's servants, and by the few scattered settlers at Fort Garry, the system of government now obtaining there may work sufficiently well ; but whenever a large population shall settle in the country, it is to be feared that the Company's power will be altogether insuffi- cient to preserve order and good government, and that its authority will be set at nought. It is evident that the old policy of exclusion of strangers from the Territory must shortly be at an end. The neighbouring territories belonging to the United States are fast being settled up to the boundary line, and if the statements as to the existence of gold in the Valley of the Saskatchewan be at all verified, there will, ere long, be an influx of population which no power that can be exerted by the Hudson's Bay Com;»any can either resist or control. This population will mainly come from the United States, and although there may be a good many of Her Majesty's subjects among them, by far the greatcsr portion will be aliens, ignorant and regardless of the laws of England, and perhaps hostile to the British Government. They will utterly disregard the authority of the Company, will endeavour to establish a government and tribunals of their own, and, as similar bodies have done elsewhere on tliis continent, assert their political independence. Such a community would sever the British North American possessions in twain and be the means of retarding, if not altogether preventing, the formation of a railway connection between the Atlantic and Pacific Oceans. The future interests of Canada and all British North America are, therefore, vitally concerned in the immediate establishment of a strong Government there, and in its settle- ment as a part of the British colonial system. Impressed with this conviction, Canada would ere this have opened negotiation* with the Hudson's Bay Company for the extinction of their claims, had it not been for the prospect of her speedy absorption in the proposed Union of the British North American Colonies. It would obviously have been improper for the Canadian Govern- ment to commence negotiations which they could not hope to complete, or to enter into engagements, the fulfilment of which must fall on the, whole Confederated Provinces. At the same time, the Committee beg leave to observe that if the Company had thought proper to submit for consideration formal proposals for the transfer of their claims, the final settlement of the question would have been greatly advanced. * [Trom letter of Mr. Fortescue, Under-Secretary of State for (ho Colonieg, of 11th March, 1804, qi'oted in Report of Hon. George Brown, ante, p. 107.— G. £. L.] ' fa '4 . r .1 f >-li f'l • ( t i I' >1^ 120 PROPOSED TRANSFER OF THE H. B. TERRITORY TO CANADA, 1866. Recent events serve to shew that in a few months that union will be effected, and the Committee have no doubt that the Confederate Government and Legislature will feel it to be one of their first duties to open negotiations with the Hudson's Bay Company,, for the transfer of their claims to th e territory. Meanwhile Canada invites the aid of Her Majesty's Government in discountenancing and preventing any such sales of any portion of the territory as is now applied for. W. H. Lek, c.E.a The Govbbnor-Genkral to the Colonial Secretary.* Government House, Ottawa, 23rd June, 1866. Sir, — Referring to your despatches (Nos. 18 and 20) of February 24th and March 3rd, I have the honour to transmit, for your information and consideration, an approved Minute of the Executive Council of this Province, on the subject of the Hudson's iJay Territory. I have, etc., MONOK. The Right Honourable Edward Card well, M.P., etc., etc., ' Secretary of State. The Governor op the Hudson's Bay Company to the Under Secretary.* Hudson's Bay House, London, 17th July, 1866. Sir,- T have the honour to enclose, for the information of the Right HonourabU the Secretary of State, a copy of a pamphlet which I ref-^ived on the 12th instant. This pamphlet purports to be a report addressed to the Secretary of the Treasury of the United States, and it contains certain statements to which the Committee of th« Hudson's Bay Company desire to call the special attention of the Earl of Carnavon. At page 26 the following passage occurs : — " Twenty years later, in 1 865, the American territory of Montana adjoins the region which excited the enthusiasm of DeSmet. Its population of 25,000, to be increased during 1866 to 50,000, have been drawn to the sources of the Missouri by discoveries of gold and silver mines close to the international border, and rumours of gulches and ledges in the Saskatchewan District, yielding even greater prizes to the prospector, are already rife, and will soon precipitate a strong, active and enterprising people into the apacious void. What is called the 'Americanization' of the Red River Settlements has been slow, although sure, since the era of steam navigation ; but the Americanization of the Saskatchewan will rush suddenly and soon from the camps of treasure-seekeni in Montana." You, Sir, are aware of the correspondence which during the last three years has passed between my.self as Governor of this Company and the Colonial Office, on the subject of establishing in the Hudson's Bay Territory some government administered in the name of Her Majesty. You know also that Mr. Cardwell decided to offer to Canada an option of acquiring the rights of this Company, and that so far back as the Ist of March last I ventured respectfully to ask the question (which has not yet been answered) how long this option was to remain open. • SeB8. Papers, Can., 1867-8, Vol. 1, No. 19. 66. PROPOSED TRANSFER OF THE H. B. TERRITORY TO CANADA, 1866. 121 9 effected, and ature will feel Jay Company,. ;es the aid of sales of any IE, c.E.a June, 1866. th and March n, an approved Hudson's a&j MoiroK. ECRKTART.* July, 1866. it Honourabls 1 instant, he Treasury of umittee of tho Carnavon. oins the region o be increased by discoveries )f gulches and prospector, are eople into the ttlements has mericanization reasure-seekem iree years has Office, on the dministered in ffer to Canada k as the Ist of )een answered) In a letter addressed to me by Mr. Forster, and dated the 20th of February^ last,, we were told : — ^ll'];f-^ " Having regard to the reference you have made in your letter, to the probable concurrence of Her Majesty's Government in the establishment of some ne-'- govern- ment, Mr. Caldwell is desirous of reminding you, that at the conferences which took place during last summer between the Canadian Ministers and certain Members of Her Majesty's Government, the Provincial Ministers expressed their desire that the North- western Territory should be made over to Canada, and they undertook to negotiate with the Hudson's Bay Company for the termination 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. To this propoFdl Her Majesty's Ministers assented, engaging that if the negotiation should be successful, they, on the part of the Crown, being satisfied that the amount of the indemnity was reasonable and the security sufficient, would apply to the Imperial Parliament to sanction the arrangement and guarantee the amount. " Until this arrangement shall have been disposed of, it will be necessary for Her Majesty's Government to keep it in view in any steps which they may be called upon to take in the matter." Under these circumstances, it is clear that the Company thus cautioned can take no steps of themselves to meet any inroad or immigration within their territory, if it be on their territory that it will first take ])lace — a point to which T shall afterwards- revert. Indeed, the powers of the Charter were probably not given to be used for any such purpose ; but if they ware sufficient for such an emergency, our hands are at the present moment tied by Mr. Forster's' letter. We think, therefore, that we are the more bound most respectfully to suggest whether, if it is intended to retain the territory north of the 49th parallel as British soil, some steps ought not to be taken for asserting its British character, and maintaining law and order within it. This may, no doubt, either be effected by the direct action of the English Govern- ment, or be attempted by the agency of Canada ; but as we understand the latter course to have been deliberately selected, the Committee (provided this Company are fairly dealt with in the matter of compensation) can have no right to offer any remarks on the gubject. In the face, however, of the confident predictions and statements contained in this report to the Secretary of the United States Treasury, we should not be justified if we failed to point out the necessity of speedy action of some kind. With regard to the particular strip of country where the first overflow of settlers or miners may be exnected from the United States Territory of Montana, I think it prob- able that the Hudson's Bay Company have no immediate interest or responsibility connected with it. So far as I can judge from the imperfect maps accessible to us, I believe that on the north of Montana there is a narrow belt running along the 49th parallel, watered by streams, which fall not into Hudson's Bay but into Milk River, a tributary of the Upper Missouri. If this be so, this strip of land, though British ground, as being north of the 49th parallel, is not included in the grant made by th& charter of Charles II. to the Hudson's Bay Company. I have, etc., Sir Frederic Rogers, Baronet, etc., etc., etc. Edmund Head, Governor^ r (t 'Mi, .^Hif. ^. y^m w .! ' Q '-r ..«* ' a| - ' 122 THE BOUNDARIES OF BRITISH COLUMBIA, 1866. M Tub Colonial Secretary to the Governor-General.* Downing Street, Ut August, 1866. My Lord, — I have the honour to transmit to you, to be laid before your responsible advisers, the accompanying copy of a letter from the Governor of the Hudson's Bay Company, enclosirg, in the orm of a pamphlet, a letter from the Secretary of the United States Treasury, ' anr to a Resolution from the House of Representatives, calling for information ii' r- '; j commercial relations with British America. I have, etc.. GovemcT the Right Honourable Viscount Monck, etc., etc., etc. Carnarvon. The British Columbia Act, 1866.t (Extracts.) Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This i^H may be cited as "The British Columbia Act, 1866." 2. In this Act the term " Governor " means any oflScer for the time being lawiuUy administering tie government. 3. From and immediately after the proclamation of this Act by the Governor of British Columbia, the colony of Vancouver Island shall be, and the same is hereby united with the colony of British Columbia, and thenceforth those two colonies shall form and be one colony, with the name of British Columbia (which union is in this Act referred to as the union). 4. On the union taking effect, the form of government existing in Vancouver Island as a separate colony shall cease, and the power and authority of the Executive Govern- ment and of the Legislature, existing in British Columbia, shall extend to and over Van- couver Island ; but in order that provision may be made for the representation of Van- couver Island in the Legislature of British Columbia after the union, the maximum number of councillors in the Legislative Council of British Columbia, after the union, -shall, until it is otherwise provided by lawful authority, be twenty-three instead of fifteen. 7. Until the union, Brit i Columbia shall comprise all such territories, within the dominions of Her Majesty, as are bounded to the south by the territories of the United States of America ; to the west by the Pacific Ocean and the frontier of the Russian territories in North America ; to the north by the sixtieth parallel of north latitude ; and to the east from the boundary of the United States northwards by the Rocky Mountains and the one hundred and twentieth meridian of west longitude ; and shall include Queen Charlotte's Island, and all other islands adjacent to tho said territories, except Vancouver Island and the islands adjacent thereto. 8. After the union, British Columbia shall comprise all the territories and islands aforesaid, and Vancouver Island and the islands adjacent thereto. i * Sess. Papers, Can., 1867-8, Vol. 1, No. 19. t Imperial Act, 29 & 30 Vict. o. 67. Assanted to 6th Aurvst, 1K6C. BRITISH NORTH AMERICA ACT, 1867. 128 iBNABVOX. The Governor-Qeneral to the Colonial Seorbtart. * ■ Government House, ' Ottawa, 18th August, 1866. My Lord. — I have the honour to acknowledge the receipt of your despatch (No. 15) of the 1st instant, transmitting copy of a letter from the Governor of the Hudson's Bay Company, respecting the proposed purchase by the Canadian Government «f the teiritorial rights of that Company. I shall not fail to bring before my advisers your Lordship's despatch and enclosure ; but I wish to remark, for your information, that this is one of the subjects upon which it is considered undesirable to decide, pending the discussion of m Union of the Provinces of B.N. A. As the completion of that Union may now be looked for at an eurly \v Brunswick, have expressed *lieir desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that «f the United Kingdom : • Sesg. Papers, Can., 1867-8, Vol. 1, No. 19. t [Omitted as not affecting the present question. — Q. E. L.] :; Imperial Act 30-31 Vict. c. 3. Assented to March 29th, 1867. ! \M ^-Jr 1 ■!■: 124 BOUNDARIES OF ONTARIO BY B. N. A. ACT, I^GV. And whereas such a Union would conduce to the welfare of the Provinces and promote the interests of the British Empire : And whereas on the establishment of the Union by authority of Parliament it Ih expedient, not only that the Constitution of the legislative authority in the Dominion be provided for, but also that the nature of the Executive Government therein be declared : And whereas it is expedient that provision be made for the eventual admission into the Union of rther parts of British North America: Be it th( refore enacted and declared, by the Queen's Most Excellent Majesty, by and Mrith the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — 1. This Act may be cited as " The British North America Act, 1867." 2. The provisions of this Act referring to Her Majosty the Queen extend also to the heirs and successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland. 3. It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a day therein appointed, not being more than six months after the passing oi this Act, the Provinces of Canada, Nova Scotia and Now Brunswick, shall form and be one Dominion under the name of Canada ; and on and after that day those throe Provinces shall form and be one Dominion under that name accordingly. 4. The subsequent provisions of this Act shall, unless it is otherwise expressed or implied, commence and have effect on and after the Union, that is to say, on and after the day appointed for the Union taking effect in the Queen's Proclamation j and in the same provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act. 5. Canada shall be divided into four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick. 6. The parts of the Province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form two separate Provinces. The part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario ; and the part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec. 40. Until the Parliament of Canada otherwise provides, Ontario, Quebec, Nova Scotia and New Brunswick shall, for the purposes of the election of members to serv* in the House of Commons, be divided into Electoral Districts as follows : — Mbuorandui 1. — Ontario. Ontario shall be divided into the Connties, Ridings of Counties, Cities, parts of Cities, and Towns enumerated in the first Schedule to this Act, each whereof shall be an Electoral District, each such District as numbered in that Schedule being entitled to return one member. 70. The Legislative Assembly of Ontario shall be composed of eighty-two members, to be elected to represent the eighty -two Electoral Districts set forth in the first Schedule to this Act. 146. It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provincas of New- foundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada, to admit Rupert's Land and the North-Western Territory, or either of them, into the Union, on such terms and conditions, in each case, as are in the Addresses expressed, and as the Queen thinks fit to approve, subject to the provisions of this Act ; and the provisions of any Order in Council in that behalf shall have effect as if tbdy had been enacted by the Parliament of the United Kingdom of Great Britaift and Ireland. BOUNDARIES OF THK DISTRICT OF ALOOMA, 1859. A, 12S Provinoea and i'urliatnent it in tho Dominion tin be declared : admission into ilajesty, by and imiuona, in this V3 : — tend also to the igdom of Great Majesty's Most >r a day therein he Provinces of uion under the :orm and be one se expressed or ly, on and after ion ; and in the Canada shall be ec, Nova Scotia, this Act) -which er Canada shall which formerly >f Ontario ; and 1 constitute the Quebec, Nova lemberfl to servs Cities, parts of heof shall be an Uitled to return -two members, le first Schedule [Majesty's Most- of Canada, and liucas of New- bse Colonies or I Houses of the fitory, or either as are in the le provisions of |l have eflfect aa Great Britain Thb First Sohbdulb. . Electoral DittrivU of Ontario, U [Here are set out the i:: •™ 1 ,» 11 «H ~| ;i £■ '*' 1 'ii'\ "!!| n 1 \ ^\\ M J- 1 -al 126 CANADIAN PUBLIC WORKS ON BEIOHT OF LAND BEFORE CONFEDERATION. 7. The above ia the approximate eatimate of Mr. Simon Dawson, C.E., who was in command of the Rod Rivor Exploring Exp(>dition in 18B8-9, and who now reports to tho Commisaionor of Crown Lands that he belli' ^ ' s the neoesaary worka, of auitablo character and strength, can bo constructed for the sums named ; and that the materials, as well atone as wood, required therefor, can be readily procured in the neighbourhood of the works, with hardly any transportation that cannot be done in scows constructed on tho spot. 8. The result of the improvements above estimated for, would be that 120 miles of the route from Lake Superior to Red River would be thrown open, giving easy accctw to Lac des Mille Lacs, the western extremity of which is within 70 miles of Rainy Lake, from whence the navigation is uninterrupted (save by a short portage at Fort Francis) to the north-west angle of the Lake of the Woods, a point distant about 90 miles from Fort Garry. 9. The Coloniziitic (i Roiid Fund of Upper Canada has a sum at its credit, from. Parliamentary votes, sutHcient to njeet the expenditure contemplated by this Memoran- dum, in case your Excellency in Council should deem it expedient for the present t» devote it to this object, on the assumption that the amount now expended will form a claim upon the new Dominion of Canada, and that proper accounting shall be had between the present Provinces of Upper and Lower Canada, as to the sum now taken from the Colonization funds of Upper Canada, for general purposes, the equivalent vote* for Lower Canada having been heretofore therein expended. 10. The Commissioner of Crown Lands humbly recommends to your Excellency that the course above suggested be adopted, and that the improvements described bt immediately undertaken, and carried out during the present season. Crown Lands Department, Uth June, 1867. A. Campbell, C.C.L. Rbport of a Committee of Council, approved by His Excellency the Adminis- trator OF THE Government, on the iSth Jitnb, 1867.* The Committee have had under consideration the annexed Memorandum of the Hon- ourable the Commissioner of Crown Lands [being that of 14th June, 1867], on the subject of constructing a line of road from Thunder Bay to Dog Lake, and thence to Savanne River, for which an approximate estimate has bee.^ submitted by Mr. Simon Dawson, C.E., who had charge of the Exploring party desp. tched to Red River in 1858-9 ; and they respectfully report their concurrence in the recommendation made by the Commissioner in his said annexed Memorandum, and sub mit the same for your Excellency's approval. Certified. W. H. Lee, C.E.C. [The public works undertaken by the Province of Canada, referred to in the two preceding documents, were partly to the oast and partly to the west of the height' of land which divides the waters that fall into Lake Superior from those that fall, through Lake Winnipeg, into Hudson's Bay. They formed part of a scheme of land and water com- munication designed to extend from the western shore of Lake Superior to the E«d River. See extract from Mr. Bridgland's report of 4th October, 1867, inserted here out of its ordinary course. — G. E. L.] *S«Be. Fkpen, Can., 1867-8, Vol. 1, No. 19. This was before Confederation. TANADIAN PUBLIC WORKS ON HRIOHT OF LAND BKFORR CONFKDEnATION. 127 Rrpoht of tub Supkbintkndkvt ok Colonization Roads (Ontario) to the Ontario COMMIBBIONRR OF ChOWN LaNOB.* (Extract.) THK AdhIKIS- ' DSPAHTMBNT OK CrOWN LanUB, Frovinob Of Ontario, Toronto, 4th October, 1867. To 'he Hon. S. Jtieharda, Commitaioner of Croum Lands. 8lB, — I have the honour to report to you my return from Thunder Bay, on Lake Superior, whither I had been xid to proceed by the former Commissioner of Crown Lnnds, the Hon. Alex. CampbteU. My iiiHtructions from the above named Minister directed me to organize and supply a party of labourers, with overseers and assistants, for the purpose of commencing and for»varding a scheme of works, intended to open a regular transit line of communication between Thunder Bay, on Lake Superior, and Fort Garry, on the Red River, estimates and appropriations having been made for the above work, as far as the Savanne River, amounting to $5r),900. My instructions further directed me to operate in concert with Mr, S. J. Dawson, who wns charged specially with the construction of the dams necosaary to raise the waters of Dog Lake and River, in order to complete the first navigable reach upon the said waters. [Here follows details of the work, and information respecting the soil, ito,] All of which is respectfully submitted by Your obedient servant. Jab. W. Bridqland, f Supt. of Col. Roads. The Colonial Secretary to the Governor-General. J Downing Street, 23rd August, 1867. My Lord, T have the honour to transmit to you a copy of a letter, with itft enclosure, from th Hudson's Bay Company, together with a copy of the reply which I have caused to be returned to it. § The question of the Hudson's Bay Territory is rapidly becoming urgent, and if delayed much longer may give rise to serious difficulty. No time should, therefore, bo lost in deciding on the course of action to be pui-sued by Canada. I have, etc., BaCKINQHAM &> CUANDOS. Governor the Right Honourable Viscount Monck. • Seas. Papers, Can., 1867-8, VoL 1, No. 19. \ [Mr. E ridgland also addreBsed r,eports in October and in December of '1867 to the Dominion Com- missioner of Public Works.— G. E. L.J JSess. Papers, Can., 1867-8, Vol. 1, No. 19. . _ § [These enclosures are omitted as not affecting the present question. — G. E. L.] ' k*Ai^ ' I M ' %^| .! Repoet op the Dominion Minister op Public Works.* The undersigned has the honour to submit, for the consideration of your Excellency in Council, the following recommendations on the subject of the negotiation with the Imperial Government for the transfer of Rupert's Land and the North- West Territory to Canada. I. That in additioii to the joint Address of both Houses on the subject, your Excel- lency will be pleased to transmit to the Secretary of State for the Colonies, the Resolu- tions as they were finally adopted by the House of Commons and the Senate, with the votes and proceedings of both Houses thereon. II. That the attention of his Grace the Duke of Buckingham be specially called to the Eighth Resolution, which was not embodied in the Address, and was not intended by the Canadian Parliament to express a term or condition of the Order in Council, autho- rized by the 146th Section of the British North America Act. III. 'T'hat your Excellency will be pleased to express to his Grace, as the opinion of the Canadian Government, that it is highly expedient thrio the transfer, which thelmpe- rial Parliament has authorized and the Canadian Parliament approved, should not be delayed by negotiations or correspondence with private or third parties, whose position, opinions and claims have heretofore embarrassed both Governments in dealing with this question. IV. That in the opinion of the Canadian Government, the terms of the Address can- not be materially altered or extended without causing injurious delay, and greatly embar- rassing the people and Government of Canada in their efforts to open communications with the Territory, to encourage emigration and settlement, to establish law and order, and to provide for the speedy organization of Municipal and Local Governments therein. V. That recent proposals in the Congress of the United States in reference to British America, the rapid advance of mining and agricultural settlements westward, and the avowed policy of the Washington Government to acquire territory from other powers by purchase or otherwise, admonish us that not a day is to be lost in determining and pub- lishing to the world our policy in regard to these Territories. VI. That your Excellency will be pleased to request his Grace to inform your Excellency by Atlantic Cable (if the information can be so communicated), whether the Imperial Cabinet will at once advise Her Majesty to approve of the transfer on the terms of the Address, in order that the Canadian Gov^ernment may be prepared to submit appro- priate measures on the subject on the re-assembling of Parliament in March next. Respectfully submitted, Wto. McDouoALL. December 28th, 1867. The Governor- General to the Colonial Secretary.* Government House, Ottawa, Canada, January 1, 1868. My Lord Duke, — Referring to my despatch No. 107, of 2lFt December, 1867,1 have the honour to transmit to your Grace an approved Minutj ' the Privy Council of *Segi. Papers, Can., 1867-8, Vol <, No. 59. PROPOSED TRANSFER OF RUPERT's LAND TO CANADA, 1868. 131 Canada, together with the Resolutions of both Houses, and the proceedings upon them respecting the proposed annexation of Prince Rupert's Land and the North-West Terri- tory to the Dominion of Canada. I desire especially to call your Grace's attention to the eighth resolution adopted by both Houses, and which was not incorporated in the Address to Her Majesty. If Her Majesty's Government should approve of the proposed incorporation with Canada of this Territory, on the terms contained in the Address to the Queen and these Resolutions, it would be of great advantage to my Government if I could be informed of the decision by telegraph, in order that all necessary steps may be taken for carrying the arrangement into effect. I have, etc., - - ' -,-'-■ MONOK. His Grace the Duke of Buckingham and Chandos, . etc., etc., e+c. ' Thb Colonial Secretary to the Governor General.* Downing Street, 18th January, 1868. My Lord, — I have received your despatch. No. 107, of the 2l8t December, accom- panied by an Address to Her Majesty from both Houses of the Canadian Parliament, pro- posing the annexation of Prince Rupert's Land and the North- West Territory to the Dominion of Canada. I have also received your Lordship's subsequent despatch. No. 1, of the 1st January, enclosing Resolutions adopted by the two Houses on the same sub- ject, and an approved Minute of the Privy Council. These proceedings will receive the early and serious attention of Her Majesty's con- fidential advisers. The decision of Her Majesty's Government will be communicated to you as early as possible ; but the consideration by them of so important a subject will necessarily occupy ' some short time. I have, etc., v^ Buckingham & Chandos. Governor the Right Honourable Viscount Monck, etc., etc., etc. ^cDouoall. member, 1867, 1 The Governor of the Hudson's Bay Company to the Colonial Secretary. f- Hudson's Bay House, London, 15th January, 1868. My Lord Duke, — In addressing this letter to your Grace on belialf of the Com- mittee of the Hudson's Bay Company, I thivik that some apology is necessary for anticipating the official communicatioi from the Colqnial Office, of the Resolutions passed in the Parliament of Canada, as weL as the Address to be founded upon them ; but as from the tone of the debate in the Canadian Parliament, and from the terms of the Resolutions passed there, it is manifestly the object of that Parliament to have the power to establish in the Dominion of Canada, including the Territory of Rupert's Land, Oourts wbich shall have jurisdiction in all matters arising in any part of British North America, and thus to give powe** to the tribunals so constituted to determine upnn the rights claimed by this Company under ;neir Charter, r ;ourse of proceeding which this * SesB. Papers, Can., 1867-8, Vol. 1, No. 69. tJonrnalB, Coms., Can., 1867-8, p. 368. ' >n ,..fl^' '\ r^Ji^'^-^^..*:^ POSITION OF H. B. CO. ON PROPOSED TRANSFER TO CANADA. 18.S. ^1 Committee consider to be so injurious to the interests of the Hudson's Bay Company, they are desirous to bring the matter before your Grace, and to submit their view s upon th'3 subject to Her Majesty's Government, before any assent is given or determination «ome to in reference to Her Majesty's approval of the proposed admission of Rui -ert's Land into the Unioi of British North America. I beg to remind yorr Grace that the rights of this Company, under their '"'harter, have at various times been brought under the consideration c f the Government, a d that the result of those discussions has been a clear and distinct recognition on the part of the Crown that the general validity of the Charter cannot now be called in question, and, in particular, that the territorial ownership of the lands grrvnted by the Charter and the rights necessarily incidental thereto, must now be considered as valid. It is true that questions have from time to time been raised in Canada as to the extent of the territory claimed by this Company under their Charter, and in some respects as to other rights which the Charter confers ; but while Her Majesty's Government have at all times declined to be any party to proceedings on the subject, the opportunity has always been afforded to the authorities of Canada to bring any questions for adjudication before Her Majesty in Council — a course to which this Compny have always been pre- pared to accede, and which appears to bo the only legitimate mode of decitiing their rights, if they are to be called in question. The Canadians have altogethei abstained from availing themselves c* the opportu- nity thus afforded them ; but it is now ob\riously the object of the Canadiini Legislature to secure to tribunals of their own nomination the decision of those rightr. I may here state that, so far as the mere political powers grarrhed by the Charter are concerned, such as the rights of government, taxation, and excluaiv<- administration of justice, the Company have long since expressed their willingness that I liese powers should be vested in officers deriving their authority directly from the Crovs'n ; but before any Buch powers can with justice be transferred to the Colonial Government, 1 iubmit that the extent of the territorial rights of the Company should either be fully i 'cognized, or that if the Canadian Government are desirous of procuring those rights for the benefit of Canada in general, they should in the first instance arrange with tlie Hudson's Bay Company the terms upon which they should bo so acquired. But should the Caaad'^n Legislature" . Iisire that any judicial investigation into the territorial rights of the Company si;.:*.'' : ke place, such inquiry should be referred to the Judicial Committee of the Privy C. ^jioU, in accordance with the opinion of the Law Officers of the Crown, given so long ago as July, 1857, as the only tribunal to which ought to b e delegated the construction of a Charter emanating from the Sovereign of Great Britain. This opinion your Grace will find at page 404 of the Report from the Select Committee on the Hudson's Bay Company, ordered by the House of Commons to be printed, the Slst July and 11th August, 1857. I have, etc., His Grace the Duke of Buckingham aiid Chandos, etc., etc., etc. Edmund Head, Governor. The IlNDKR-SECRKTARy TO THE GOVBRNOE OP THE HuDS^n's BaY COMPANY.* Downing Street, 18th January, 1868. 3tR,--I am directed by the Duke of Buckingham and Chandos to aeknoAvledge the roci'ipi. of youi* letter of the 15th instant, relative to the proceedings of the Canadian * Journals, Corns. , Can., 1867-8, Vol. 1, p. 369, POSITION OP H. B. CO. ON PROPOSED TRANCi?'ER TO CANADA, 1868. 133 F&>liaQisiit on the subject of the Hudson's Bay Company. I am desired to state that the subject of this letter will not fail to receive the carefid consideration of Her Majesty's Government. I am, Sir, Your obedient servant, The Right Honourable Sir E. Head, Bart., K.C.B. ^ T. F. Elliot. The Under-Secretary to the Governor of the Hudson's Bay Company.* • ' Downing Street, 18th January, 1868. Sir, — I am directed by the Duke of Buckingham and Chandos, to transmit to you, for the information of the Committee of the Hudson's Bay Company, a copy of a despatch which has been received from the Governor-General of Canada, accompanied by a copy of the Address to Her Majesty from the Senate and Commons of Canada, praying that steps may be taken for uniting Rupert's Land and the North- West "Territory with the Dominion of Canada. I have, etc., T. F. Elliot. The Right Honourable Sir E. Head. Bart., K.C.B. The Governor op the Hudson's Bay Company to thr Colonial Secretary.* Hudson's Bay House, London, 25ti January, 1868. My Lord Duke, — I have the honour to acknowledge Mr. Elliot's letter, of the 18th instant, enclosing a copy of Address to the Queen, forwarded by the Governor- General of Canada, and to thank your Grace for communicating these papers to the Hudson's Bay Company. On this Address I beg to request your Grace's attention to he following observations on behalf of myself as Governor, and the Committee of the Company : — 1. It seems necessary in the first place to distinguish the two classes of rights con- ferred on the Company by the Charter. Some of these are, no doubt, of a public or political character, such as belong to a proprietary government ; but others are practically of a private nature, such as might have been vested in aiiy individual subject, or any private corporation clothed with no public functions of any kind. Of these latter, it is only necessary at present to refer to the right of private property- in the soil and in the mines and minerals. 2. It may be that the public or political rights of the Company, pendrx!'^p."404'''pamr2. "■^^' ^^ *^® Charter ill-defined and of doubtful expediency at any time. It may be, too, as the Law Officers in their letter of 1857 appear to hint, that for any effectual exercise they require the aid of the right of private property, as v.isteil in the Company by the same instrument. 3. The Committee need scarcely remind your Grace that, so far from opposing a if * Journals, Corns., Can., 1867-8, Vol. 1, p. 370. f^.C " 134i POSITION OF H. B. CO. ON PROPOSKD TRANSFER TO CANADA, 1868. resumption by the Crown of the political powers of the Company, almost the first iflaportant step taken by them in 1863, was the adoption of the following resolution: — " I^6solved that the time has come when, in the opinion of 28th Aug/ie63. °^*"' this Committee it is expedient that the authority, executive and judicial, over the Bed Eiver Settlement and the south-western portion of Rupert's Land, should be vested in officers deriving such authority diuctly from the Crown, and exercising it in the name of Her Majesty. " That the Governor be empowered to communicate this resolution to his Grace the Duke of Newcastle and to discuss the subject with him, or with the Under Secretary of State for the Colonies, reporting from time to time to this Committee thereon." 4. In the correspondence which ensued with the Colonial HeadriTth'March, IsS". Office, it appears to be implied on the part of his Grace the Duke of Newcastle, that the fact of the right of private property in the soil being no longer possessed by the Crown, was one of the chief obstacles to a com- pliance with the suggestion made in the above resolution. If this be so, the very fact of making this objection involves an admission in favour of the Company. Most assuredly if the Crown had alienated its right of property in the soil and minerals of the Hudson's Bay Territory, it had granted it to no other party than the Hudson's Bay Company, and by no instrument other than the Charter o^ Charles II. 5. On Mr. Fortescue's letter of March 11, 1864, an offer of a contingent money payment, as the consideration for the cession of the territorial rights of the Company, was distinctly made by the Secretary of State. The proviso See Post, para. 9. inserted in the postcript to that letter will be adverted to after- wards, and had reference only to the suppos; ^ rights of Canada. 6. It ib unnecessary for the Committee to refer to the undisputed enjoyment of these rights, at any rule since the time of the Treaty of Utrecht. 7. In addition to all this, it remains to quote the express ^ to Mn Merivall, Appcn- "^^^^^ °^ ^^^ '^'^ Officers in their letter of 1857, already referred dix to Report, 1857, page to. They say, " In our opinion the Crown could not now, with 404, last paragraph. justice, raise the question of the general validity of the Charter; but that on every le^al principle the Company's territorial ownership of the lands granted, and the rights necey^ai ily incidental thereto, ought to be deemed to be valid." Moreover, in a passage alluded to above, the Law Officers imply indirectly their belief in the validity of this right of private property, when they say that " rights of government, taxation, exclusive administration of justice, or exclusive trade, otherwise than as a consequence of the right of ownership of the land, could not legally be insisted on by the Company." What other opinions of the Law Officers of the Crown may b^ found in the records of the Colonial Office it is not for us to say, An , '".J 3 to ^ v,yt ^;]jg evidence given by the Right Honourable Edward EUice ' ' ' ' before the Committee of 1857, as to the opinions taken by him both for and aj;.a: rist tl.. Company, is well worth referring to. 8. Od' other D'^iut "s a mere technicality no doubt, but it may be worth observing that the title of tLb 'JouArivny to their land is an English title, since it is granted "to b« holden as of the Manor oi East Greenwich, in our County of Kent, in free and common soccage." 9. The Committee do not intend to impute to the Parliament or the Ministry of Canada, u.ny delibc: 'te intention of violating such rights of the Hudson's Bay Company as the;' admit to exist, but it must be remembered that a theory has been started, and in referr d to in the debate on this Address by which the admissions of the English Govern- ment and the opinion of the English Law Officers as to the right of ownership in ths soil are directly negatived. It has been supposed, we believe, that France was in possession of these territorirs, or a lerge portion of them when the Charter was granted ; that they were therefore within the exception which that Charter con- tains with regard to other territories belonging to " any other Christian Prince j " and that this French title remained good and was transferred to the English Crown with Canada at the final cession of that Province by France. See pogt2r»pt to letter of Mr. C. FortescuetoSir E. Her:d, llth March, 18C4, r.nd letter April «, 1864. April 15, 1867 Extract No. 1 POSITION OF H. B. CO. ON PROPOSED TRANSFER TO CANADA, 1868. 136 Despatch of Mr. Cardwell to Lord Monck, June 17, 1865. Letter of Mr. Forstsr to Sir E. Head, 20th Feb., 1866. Minute, 22nd June, 1866. Letter from Sir F. Rogers, to Sir E. Head, Slst July, 1866. Mr. Elliot to Sir E. Head, AprUlS, 1867. 10. This is not the place for entering on a discussion of the facts and law involved in this argument, — an argument, as we have said, inconsistent with the continued recog- nition of the Company's rights in various ways by the English Government and their legal advisers for a long series of years ; but if this objection to the Company's title shall be presented in a tangible form before a proper tribunal, the Hudson's Bay Company will be quite ready to meet it and demonstrate its futility.* 11. The very existence, however, of such a theory in the minds of the Canadian Ministers or the Canadian people, is a sufficient reason why, in justice to the Company, it should be set aside, or its truth or falsehood should be conclusively tested before their rights of property undei the Great Seal of England, and in fact their future existence, is placed under the legislation and the absolute control of Canada. 12. The Committee cannot but feel that the Company has already had great reason to complain of the course pursued during the lust few years. In 1865 the Canadian Delegates sent to this country to promote the scheme of Confederation solemnly "under- took," with Mr. Cardwell, to negotiate with the Hudson's Bay Company. The answer given by the Committee was that they would be ready to consider any proposal. The fact of this under- taking was recited again in a subsequent letter, as a reason why no other step should be taken. No negotiation, however, was opened, and, in 1866, the Canadian Council resolved that such negotiation must devolve on the Government of the Confederation wnen onstituted, rather than on the Government of Canada. This was contirmod by t le resolutions of the Delegates in England, of April 3rd, 1867. After all, when the Jonfedera ion is formed, and the Parliament has met, resolutions are passed, and an Add: ss to the Queen is adopted, praying that the powers of legiRlation and government over t •. Hudson's Bay Territory and the North- Western Territor;. may be conveyed to Canada first, ail that the judicial decisions or negotiations as to the Company's rights should take place after- wards. 13. We desire in the first place to remark that this inversion of the order of pro- ceeding is entirely contrary to the expectation raised by th icts of the delegates, md by the communications from the Colonial Office to us. We may have erred in thinking so, but certainly we conceived that the negotiations which the delegates, in 1865, undertook to initiate were intended, under the Act of last session, to form the preliminary step for transferring the supreme control to Canada, not to follow after such transfer with all the disadvantages to the Company which must then ensue from the change of the relative position of the parties. It would appear, too, from a passage in a speech of the Honour- able Mr. Holton in the Canadian Parliament, as reported in the Canadian News, as per Extract No. 1 enclosed, extract herewith, that the Committee were not the only parties who supposed this to be the intention of the Government. The Committee, moreover, thought that it was expressly in anticipation of this original undertaking to negotiate being thus carried out, that the Secretary of State for the Colonies intimated his wish in the following terms that the Company should abstain from any other arrngements likely to interfere with the views then entertained : " It is of course for the Hudson's Bay Company to consider for themselves what course is most proper and conducive to their own interests. But it appears to Lord Carnarvon that any effective negotiation being for the moment Mr. EUiotto Sir E Head, impossible, it is for the interest of both parties that the question January 23, 1867. i u • i i i.u -x should remain open for arrangement so soon as an authority exists capable of dealing with it on the part of the Colony or Colonies interested. He would therefore regret to learn that the Company contemplates any immediate action which was calculated to embarrass the negotiations, which would then become possible, and which in the opinion of the Executive Council it would be the duty of the Confederate Government to open." lAifif, * Ijiiee cxtraeU from Jeffwys, pp. SI and 22, on!*.— l£. £. L.] 136 P08>TT0V OF H. B. CO. ON PROPOSED TRANSFER TO CANADA, 1868. SOkndSlVic, c. lt^ li iii 14. The Committee folt no anxiety respeoting the wide- 3, sec. 146, powers of transfer conferred on the Crown by the Act of last session, because they did not believe that thfir rijr'ita of ownership in the coil and minerals could be affected by it ; and becauo''. attf^v the undertaking to negotiate formally commanicated to them, and the correspondence relating to it, they relied, as they continue to roly, on the honour and good faith of the English Govornment. 15. But the case assumes a very difierent aspect if the plan of giving to the Canadian Parliament and Governroant legislative and administrative control over these territories, without defining and providing for the rights and interests of the Company as a co7idition precedent, should be carried out. So far as we now see, no security of any kind would exist against such a uiie of this control in taxation and other matters as might be thought best fitted for compelling the Company to accept any terms, however disadvantageous. No specific guarantee it seems is proposed to be given as to the legislation which might take placo beiore these claims were finally disposed of, or as to the impartiality and com- petency of the Courts before which the Company, if aggrieved, would have to seek redress. At any rate, the relative position of the two parties to any such suit or discussion respect- ing these rights would, after the transfer of the legislative and administrative control, be one which must leave the Company as defendant, more or less at the mercy of the plain- tiff, and would, tu say the least, taint the voluntary character of any agreement to be subsequently arrived at. The only reliance of the Company would be on the honesty and the considerate disinterestedness of the Canadian Parliament and people. The Committee, moreover, venture to think that their apprehensions on this score are reasonably increased, rather than diminished by all that is ■^d'^^Vewrindog^d"^" reported to have passed in the debates, and especially by the extract of the accompanying report of the speech of Sir John A. Macdonald, K.C.B., the Canadian Premier. The Report is taken from the Canadian News. It is probably condensed, and, as a matter of course, it may be more or less inaccurate. 16. The Act of last Session provides that the inuurporivtion of Hupert's Land and the North- Western Territory with Canada may be made by the 8 146 ^^ ' Queen "on such terms and conditions in each case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the provisions of this Act ; and the provisions of any Order in Council in that behalf, shall have effect as if they had been enacted by Parliament of the United King- dom of Great Britain and Ireland." Now looking to the previous correspondence between the Hudson's Bay Company and the Colonial Office, it is not unreasonable to suppose, that so far as regards the Territory of the Company, the Act contemplated the insertion of certain terms and con- ditions in any Address relating to the transfer of such Territory. But the Address, a copy of which your Grace had had the goodness to transmit to us, contains no " terms and conditions " whatever, except a vague assurance that *'.he " Par- liament of Canada will be ready to provide that the legal rights of any corporation, company, or individual within the same shall be respected and placed under the pro- tection of courts of competent jurisdiction." Such an assurance is of little value, when the party making it disputes the very existence of the rights in question, and at r-ny rate it amounts to no more than a statement that British subjects on British soil shall be entitled to the protection of a Court of Law of some kind, hereafter to be established b)- the act of one of the parties. It might be presumed that redress before a competent tribunal would be the right of any one who was wronged, and such an assurance can hardly be deemed a " term or condition " of the kind which the Statute intended to be set out specifically in the Address from the Legislature. 17. The Committee trust it may not for one moment be supposed that they arrogate to themselves any rigl.t or entertain the smallest desi.-e to impede or even to comment on the general policy of ;ransi erring the government of the North- Western Teri-itory and of the Hudson's Bay Teiritorv to the Confederate Government of Canada, in this, as in everything else, they would bow with submissioa to the authority of the Crown, and SIR JOHN MACDONALD's PROPOSAL RESPECTINO THE H. B. CO., 1867. 137 36 more or rejoice in any measure which was really calculated to strengthen loyalty and promote union in British North America. 18. What is asked for as a matter of justice to a proprietary consisting of upwards of 1,700 shareholders, who have paid a very large sum on the faith of our Charter, and of the protection of their rights of property in the soil by English law, is the adoption by Her Majesty's Government of one of the following alternatives ; — 1st. That some conclusive agreement as to the extent, value and compensation to be made for the claims of the Company, as owners of the soil and minerals of the Hudson's- Bay Territory, and some arrangement, by which burthens assumed by them in their political capacity, such as the endowment of the bishoprics, may, when that capacity ceases, be transferred to others, should be completed before, not after the transfer of the government of the North- Western Territory or Hudson's Bay Territory to Canada. 2nd. That before any incorporation of Rupert's Land or the North- Western Territory with Canada, the rights of private property vested in tlio Company, and the exact limits of such rights, should be ascertained, acknowledged and efficiently protected by law, in a manner binding on any Colonial Government, so that they should not be at any time hereafter impeached or violated without proper compensation. ^ . . , I have, etc., His Grace the Duke of Buckingham and Chandos, etc., etc., etc. Edmund Head, Governor,- Extract prom a Speech of the Honourable Mr. Holton, in the Canadian Par- liament, AS REPORTED IN THE "CANADIAN NeWS," OF JANUARY 2nD, 1868, PAGE 7, referred TO IN THE PRECEDING LETTER OF SiR EdMUND HeAD.* It struck him too that what was in contemplation in the Union Act, was that the Address to Her Majesty should follow the negotiations, and that the Address should set forth clearly and distinctly the terms on which we were prepared to unite that territory with Canada. Extract prom a Speech of Sir John A. Macdonald, K.C.B., in the Canadian Parliament, reported as above, page 9, referred to in the preceding Letter OP Sir Edmund Head.* ' K' y It had been said by the member for West Durham, that this was a worse proposition than the proposition of 1865. It was precisely the same ; it was simply that we wished to take possession of this territory, and would undertake to legislate for it, and to govern it, leaving the Hudson's Bay Company no right except the right of asserting their title in the best way they could in Courts of competent jurisdiction. And what would their title be worth the moment it was known that the country belonged to Canada, and that the Canadian Government and Canadian Courts had jurisdiction there, and that the chief protection of the Hudson's Bay Company and the value of their property, namely, their exclusive right of trading in those regions, were gone forever. The Company would only b"" too glad that the country should be handed over to Canada, and would be ready to enter into any reasonable arrangement. The value of the Company's interest would be determined by the value of their stock ; and what would that be worth when the whole country belonged to Canada 1 .;i * Journals, Coma., Can., 1867-8, Vol. 1, p. 374. 138 THE COL. SEC'y. OX TEUMS OF PROPOSED HUUHKNDEU OF BUPERT's LAND. The Colonial Skcketary to the Qovkrnor-Oenehal.* ' ' • '\ '^ I - DowNiNQ Strkbt, ■' ' ' "' 23rd April, 1868. My Lord, — I have already acknowledged, on the 18th of January, your Lordship's <]espatch. No. 107, of the 2lBt of December, transmitting a Joint Addresa from the Senate and House of Commons of Canada to Her Majesty, praying the annexation to Canada of Rupert's Land and the North- West Territory. Your Lordship will have the {goodness to inform the Senate and House of Commons that their Address has biun diUy laid hofore the Queen. Her Majesty's Government will be willing to recommend a compliance with the prayer of the Address so soon as they shall be empowered to do so witli a just regard to the rights and interests of Her Majesty's subjects interested in those ^«rritories. They ure advised, however, that the requisite powers of government and legislation cannot, consistently with the existing Charter of the Hudson's Bay Company, be transferred to Canada without an Act of Parliament. Before such an Act can be obtained it is necessary to consider the position of the Hudson's Bay Company. The Company have held their Charter, and exercised privileges conferred by it, for 200 years, including rights of government and legislation, together with the property of all the lands and precious metals ; and various eminent Law Officers consulted in succession have all declared that the validity of this Charter cannot justly be disputed by the Crown. I have, on behalf of Her Majesty's Government, called upon the Company to state the terms on which they would be prepared to surrender to the Crown whatever rights they have over the lands and precious metals, including the rights of government, with the intimation that no present payment in money will be made to them, but that in the transference of their rights to Canada they might have a reservation made to them of defined portions of land, and of a share of the future proceeds of the lands and precious metals of the territory up to a certain fixed amount. I enclose copies of the lettei-s which have passed up to the present time between the Company and this Department upon the subject. I purpose to introduce a Bill into the Imperial Parliament with the view of authorizing any arrangement which may be effected on the basis thus indicated ; of defining the territory over which it extends ; and authorizing the subsequent transfer to the Canadian Government of the rights and powers to be acquired by the Crown in respect to government and property, in accordance with the prayer of the Address. With respect to the North- West Territory, the same obstacles do not exist to the transfer of the greater part by the Crown to Canada at the present time, subject to proper reservations of the rights and property of Her Majesty's subjects now settled therein, and for the protection of Her Majesty's native subjects ; but I apprehend that while it remains separated from Canada by the Hudson's Bay Company's Territory, still under the Com- pany's government, it will not be the desire of Canada to undertake the government of this more remote country. A portion of the North-West Territory, immediately adjacem. to British Columbia, I am of opinion that it will be necessary for the public advantage to retain in the possession of the Crown, with a view to its incorporation with British Columbia. I have the honour to be, My Lord, Your Lordship's most obedient, humble servant, Buckingham & Chanoos. H. B. Co., 16th Jan., 1868. C. 0., 18th Jan., 1868. C. O., 18th Jan., 1868. H. B. Co., 25th Jan., 1868. CO., 23rd April, 1868. * Journals, Corns., Can., 1867-8, Vol. 1, p. 367. THE RUPERT'8 1-AND ACT, 1868. \ 139 between the Tub Undkb-Skcrbtary to thb Dbi'uty-Uovbrmor of tub Hudson's Bay Comi'any.* ■ " ' ' DowMiNQ Strbet, , . 23rd April, 1868. Sir, — I am directed by the Duke of Buckingham and Chandos to acquaint you that he has had under his consideration the Address from the Parliament of Canada to Her Majesty, praying that Rupert's Land and the North- West Territory may bo united with the Dominion of Canada, and placed under the authority of the Canadian Parliamont, and the letter from the Governor of the Hudson's Bay Company, dated the 25th of January, on that subject. Her Majesty'fi Government think that it will be right to comply, under proper cunditionn, with the wish expressed by the Parliament of Canada, and they propose to introduce a Bill for tho purpose into the Imperial Parliament. Thoy desire, howtivor, to pay due regard to the interests of Her Majesty's subjects already concerned in the Territory ; and with that view they will be prepared to make provision for any reasonable terms which may be agreed upon with the Hudson's Bay Company. your attention to the negotiations which took place in 1864 State and the Company, as recorded in the correspondence referred to in the margin, and I am to request that you will state what are the terms which the Company would be pre- pared to accept, proceeding on the principles then adopted — namely, that the compensation should be derived from the future proceeds of the lands, an! of any gold which may be discovered in Rupert's Land, coupled with reservations of defined portions of land to the Company. I am directed to call between the Secretary of Colonial Office, lUh Mnr., 1864. 5th April, 18(J4. 6th June, 18(>4. Hudson's Bay Company, 13th April, 18«4. 7th December, 1804. I am, etc., To Sir Curtis Lampson. C. B. Addbrlbt. An Act for enabling Her Majesty to accept a Surrender upon Terms of thb Lands, Privileoes, and Rights of " The Governor and Company of Adven- turers OP England trading into Hudson's Bay," and fob admitting the same into the Dominion of Canada.! Whereas by certain letters patent granted by His late Majesty King Charles the Second in the twenty-second year of His Reign certain Persons therein named were incorporated by the name of " The Governor and Company of Adventurers of England trading into Hudson's Bay," and certain lands and territories, rights of government, and other rights, privileges, liberties, franchises, powers, and authorities, were thereby gi-anted or purported to be granted to the said Governor and Company in His Majesty's Dominions in North America : And whereas by the British North America Act, 1867, it was (amongst other things) enacted that it should be lawful for Her Majesty, by and with the ad \ ice of Her Majesty's most Honourable Privy Council, on Address from the Houses of the Parliament of Canada, to admit Rupert's Land and the North-western Territory, or either of them, into the union on such terms and conditions as are in the Address expressed and as Her Majesty thinks fit to approve, subject to the provisions of the said Act : And whereas for the purpose of carrying into eflfect the provisions of the said British North America Act, 1867, and of admitting Rupert's Land into the said Dominion as aforesaid upon such terms as Her Majesty thinks fit to approve, it is expedient that the said lands, territories, rights, privileges, liberties, franchises, powers, and authorities, • Journals, Corns., Can., 1867-8, Vol. 1, p. 374. + 31-2 Vic, cap. 106. Assented to Slat July, 1868. ^1 i "It ' t' .J <^, IMAGE EVALUATION TEST TARGET (MT-3) v. m A V. s 4a 1.0 I.I Mam 150 1^ E^ 1^ III 2.2 12.0 1.8 ■ 1.25 1.4 11^ « 6" - ► V] <^ /^ 7 'c*l Photographic Sciences Corporation \ S .V ^^ <^ 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 6^ 4 4 •^ i}\ i; so far as the same have been lawfully granted to said Company, should be surrendered to Her Majesty, Her heirs and successors, upon such terjaa aud conditions as may be agreed upon by and between Her Majesty and the said Governor and Company as herein- after mentioned : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as " Rupert's Land Act, 1868." 2. For the purposes of this 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. 3. It shall be competent for the said Governor and Company to surrender to Her Majesty, and for Her Majesty, by any instrument under her sign manual and signet, to accept a surrender of all or any of the lands, territories, rights, privileges, liberties, franchises, powers, and authorities whatsoever granted or purported to be granted by the said letters patent to the said Governor and Company within Rupert'a Land, upon such terms and conditions as shall be agreed upon by and between Her Majesty and the said Governor and Company ; provided, however, that sui-V surrender shall not be accepted by Her Majesty until the terms and conditions upon wLioh Rupert's Land shall be admitted into the said Dominion of Canada shall have been approved of by Her Majesty, and embodied in an Address to Her Majesty from both the Houses of the 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 rightn, and all other privileges, liberties, franchises, powers, and authorities whatsoever, granted or purported to be granted by the said letters patent to the said Governor and Company within Rupert's Land, and which shall have been so surrendered, shall be absolutely extinguished ; provided that nothing herein contained shall prevent the said Governor and Company from continuiii,; to carry on in Rupert's Land, or elsewhere, trade and commerce. 5. It shall be competent to Her Majesty by any such Order or Orders in Council as aforesaid, on Address from the Houses of the Parliament of Canada, to declare that Rupert's Land shall, from a date to be therein mentioned, be admitted into 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 territory 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's 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. I The Coloniai. Secretary to the Governor-General.* Downing Street, 8th August, 1868. My Lord, — I have the honour to transmit to you, for your Lordship's information, the enclosed copy of an Act of Parliament, t conferring powers for the surrender to Her Majesty by the Hudson's Bay Company of their territories and privileges. Ih *Se»a. Papers, Can., 1869, No. 25. t [The Rupert's Land Act, 1868.— G. E. L.] CANADIAN DELEQATION TO ENGLAND, 1868. 141 )e surrendered to bions as may be mpany as herein- by and with the s, in this present In pursuance of the powers conferred by this Act, I propose to enter into negotia- tions with the Hudson's Bay Company as to the terms on which they will surrender their rights, and I shall not fail to keep your Lordship informed of the course of such negotiations. I have, dec, Buckingham & Chandos. Governor the Right Honourable Viscount Monck. Teleorah — The Oovbbnor-Gbneral to the Colonial Secretary.* Quebec, 9th September, 1868. Privy Council wish to send a delegation to London to take part in treaty with Hudson's Bay Company. They are anxious that negotiations with Company should be postponed till arrival of delegates in London. Please inform me by Cable how soon you will be able to receive them. They are prepared to go immediately. ■ ^ ' •;,•?■ ■■• V.-!- r MONOK. Teleorah — The Colonial Secretary to thb GovERNoa-GENBRAL.'*' Colonial Officb, Uth September, 1868. Delegates to advise with me on the arrangements between the Crown and the Company should start at once. I have appointment with Governor of Company for 18th, but will now conclude nothing until delegation shall have arrived. BUOKINOHAM & ChANDOB. Tbleoram — The Governor-General to the Colonial Secretary.* ' ■-■■■. Quebec, 14th September, 1868. I find now that for reasons connected with the public service, delegates do not wish to leave Canada till first week in November. Will this suit you t - Monck. ■}. Telegram — The Colonial Secretary to the Governor-General.* Colonial Office, 17th September, 1868. I should have preferred an earlier date — I cannot defer negotiations with Hudson's Bay Company, but probably the settlement of terms will occupy some time. '' Buckingham & Chandos. Telegram — The Governor-General to the Colonial Secretary.* Quebec, 18th September, 1868. In consequence of your last message, delegates will leave for England the 7th October Monck. *Se8i. Papers, Can., 1869, No. 26. 142 APPOINTMENT OF SIR GEO. CARTIER AND MR. M'DOUOALL AS DELEGATES. A I 111 , ^„ , Tklegrah — Thk Colonial Secretary TO THE Govebnor-General.* ^ Colonial Office, 18th September, 1868. I have seen Kiinberley and Lampson to-day. I think it essential that some leading member of your Government, if possible all delegates, should be here not later than 9th October to confer with me. Delegates will be wanted at least 10 days. BUCKINOHAH k ChANDOS. Tbleqbam — The Governor-General to the Colonial Secretary.* " Quebec, 22nd September, 1868. Delegates intend to sail from hence October 3rd. They trust nothing will be concluded until their arrival in England, where they will; be due about the 13th. ■MONCK. Report of a Coumittee of the Privy Council, approved by the Governor-General. ON THE 1st October, 1868.* In view of the great importance of the immediate settlement of the Hudson's Bay question, and in consequence of the passage by the Imperial Parliament of the Act 31 and 32 Vic, cap. 105, and in accordance with the despatch of his Grace the Secretary of State, No. 173, and dated 8th August, 1868, the Committee of Council advise that a delegation proceed to England composed of the Hon. Sir G. E. Cartier and the Hon, W, McDougall, for the purpose of arranging terms for the acquisition by Canada of Rupert's Land, such terms to be subject to the approbation of the Governor in Council. Wm. H. Lee, CUrk, P. C. Memorandum of Sir George E. Cartier jlsd the Hon. William McDougall, Canadian Delegates to England.* 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 Govern- ment the terms upon which Canada may acquire Rupert's Land, and to state that we have much pleasure in accepting the mission. We would, however, beg to call the attention of the Committee to the terms of the recent Act of the Imperial Parliament to " enable Her Majesty to accept a surrender upon terms of the lands, privileges and rights " of the Hudson's Bay Company which declares that Rupert's Land for the purposes of that Act " shall include the whole of the lands and territories held or claimed to be held " by the Company. We would also call the attention of the Committee to the terms of the British North America Act, which provides for the admission of Rupert's Land and the North-West Territory, or either of them, into the Union. We respectfully recommend thuc we be authorized to arrange with the luiperial 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. Geo. Et. Cartier. W. McDougall. October 1st, 1868. * SesB. Papers, Can., 1869, No. 26. .4*- PROPOSED TERMS OF SURRENDER OF RUPERT's LAND, 1868. 14$ ; ChANDOS. (ternor-Genebal. Report of a Committee of the Privy Council, approved by the Governor- General ON THE IsT October, 1868.* The Committee have had under consideration s. memorandum dated this day from- the Hon. Sir George E. Cartier, Bart;, and the Hoa. Wm. McDougall stating that they have received communication of the Minute in Council appointing them a delegation to England to arrange with the Imperial Government the terms upon which Canada may acquire Rupert's Land, and expressing their readiness to accept that mission. They however bring under the notice of the Government 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 Lend " for the purposes of that Act " shall include the whole of the lands and territories held or claimed to be held " by the Company. They also call yolir Excellency's attention to the terms of the British North America Act, which provides for the admission of Rupert's Land and the North- West Territory,, or either of them, into the Union, and they recommend that they be authorized to arrange with the Imperial Government for the admission of the North- West Territory into union with Canada, either with or without Rupert's Land as may be found practicable and expedient. The Committee advise that the authority requested by the delegates be granted, and that a copy of this Minute, if approved by your Excellency, be transmitted to his Grac» the Secretary of State for the Colonies. ^ ... . . Wm. H. Lee, Clerk, P. C. McDoUGALL, The Governor of the Hudson's Bay Company to the Under-Secretary.*- .. Hudson Bay House, London, ^ October 27th, 1868. Sir, — The Co. imittee of the Hudson's Bay Company have received from Sir C Lampson and myseif reports of the interviews which we have had the honour to have with his Grace the Buke of Bucicingham and Chandos, on the subject of the proposed cession to Canada of the Company's territorial rights, and they have anxiously considered how far they would be justified in altering the terms proposed in my letter of May 13th, witL a view to meet the objections which have been raised to them. They understand his Grace to suggest that instead of the Company being entitled to a free grant of 5,000 acres, to be selected by them for every 50,000 acres which shall be alienated by the Government, the whole territory should be at once divided into sections on the map, and that a certain portion of each section should be allotted to the Company by fixed geographical rules, the Company taking the chance as to the value of the land which might fall to its share ; and further, that in order to meet the evils which' might arise from the existence of so many blocks of wild land free from taxation, the exemption of the Company's wild land from taxes should continue only for a limited period,, say, for example, twenty yeara The Committee regret that they are unable to agree to this mode of allotment. One of the chief inducements to their shareholders to accept the proposed arrangements would be that, according to the plan of the Committee, if, as it is hoped, the colonization of the- country proceeded rapidly under the new government, the Company would receive blocks- of land of moderate size in the vicinity of the new settlements, which would possess an actual value in the market. But if the plan suggested by the Duke of Buckingham were adopted, instead of the grants to the Company proceeding equally with the progress of colonization, the whole country would be dotted over with isolated tracts of wild land belonging to the Company, many of which even if ultimately available for settlement^ #SeB8i. Papers, Can., 1869, No. 25. 144 PIlOl'OSED TERMS OF SURRENDER OF RUPERT'S LAND, 18G8 % i. must necessarily remain entirely valueless until long after the expiration of the twenty years, and if taxed would be a heavy burden instead of a source of profit to the Company. The Committee are willing, however, to agree that the exemption from taxes on the Company's wild land should only apply to each block of 5,000 acres, which they may be entitled from time to time to select, for a period rA ti^enty years ^rom the date of selection. This would give the Company a reasonable time within which to turn each block to profitable account, and at the same time the ultimate liability to taxation would prevent these lands from becoming an obstruction to the free progress of settlement. The Committee think it right to add that they do not propose that land purchased by the Company should be reckoned in the 50,000 acres ; and that the selection of the land by the Company naturally implies that the Company shall bear the cost of such a survey as may be necessary to define the land selected, it being understood that the 'Company shall have the option of making the survey by means of their own officers. x'he Committee are quite willing that land granted for such purposes as roads, tshurches or schools shall not be liable to the payment of one shilling per acre to the Company, provided that the exemption is restricted to the land actually used in the construction of the work, and that the exceptions are specified in the agreement with the Government for the cession of the Company's rights. They also admit that it is proper that a similar exemption should apply to land set apart as Indian Reserves, on the lunderstanding that these reserves will be made by Her Majesty's Government, as they •are informed it is his Grace's intention they shall be, before the Company's territory is transferred to Caaada, and that, if at any time before the million oucrling is paid to the "Company, such land shall be used or granted for other purposes, it shall become liable to tthe payment of a shilling an acre in common with other land. With respect to the land which the Clommittee have asked that the Company may retain as private property round their posts and stations, if 6,000 acres are thought to be too much in that part of Rupert's Land which is suited for settlement, the Committee will consent that the 6,000 acres shall only apply to posts which do not lie within the limits referred to under article 10 in my letter of May 13th, as laid dowii in Sir E. Head's letter of November 11th, 1863, and that within these limits the extent of land to be retained round each post shall not exceed 3,000 acres, all the lands retained to be free from taxation, except when reclaimed from a wild state. Lastly, the Committee cannot deny that the stipulation that the Committee shall have power to bring before the Judicial Committee of Her Majesty's Privy Council matters in dispute, is open to the objection that the Privy Council acts only as a Court of Appeal, and as they presume that the Company would be entitled to appeal from the local Courts to the Privy Council, they do not think it indispensable to insist on this demand. The Committee, in declaring their willingness to make these alterations in the terms which they proposed, are actuated by a sincere desire to arrive at an agreement with Her Majesty's Government ; but they are conscious that they would be wanting in their duty if they did not add that at the half-yearly meeting of shareholders, held since my letter of May 13 th was written, opinions were expressed strongly adverse to any arrangement for the cession of the Company's territorial rights which did not secure the payment as compensation of a sum of hard money. Sir Edmund Head, in the conclurving paragraphs of his letter of April 13th, 1864, in which terms were proposed similar to those now under discussion, but involving the cession of a part only of the Company's Territory, avowed to tho Duke of Newcastle the apprehensions of the Committee that it might be difficult to convince the shareholders that the offers then made were to their advantage ; and although the Committee have felt bound not to recede from the terms contained Jn. my letter of May 13th, which were based on their former offers, they cannot conceal f>um his Grace that they anticipate a very serious opposition on the part of their shareholders to any such arrangement as that which they have put forward. His Grace will recollect that at our first interview, before the Canadian delegates had started for England, Sir C. Lampson and I strongly insisted upon this point, and that we suggested that if Canada would agree to pay to the Company one million sterling in bonds, such a settlement might )e 'acceptable to our proprietors. PROPOSED TERMS OF SURRENDER OF RUPERT's LAND, 1868. \ 145 of the twenty the Company. Q taxes on the 1 they may be te of Helection. each block to would prevent It. [and purchased election of the cost of such a rstood that the >wn officers, rases as roads, per acre to the Uy used in the ement with the hat it is proper eserves, on the rnment, as they ly's territory is ig is paid to the become liable to I Company may re thought to be , the Committee nrithin the limits n Sir E. Head's t of land to be uned to be free lommittee shall Privy Council ily as a Court of al from the local in this demand, jns in the terms ement with Her ng in their duty since my letter ,ny arrangement the payment as Ipril 13th, 1864, lut involving the If Newcastle the ^he shareholders Jommittee have |3th, which were ley antipipate a Ingement as that Ian delegates had |int, and that we lion sterling in The Committee entirely bhare this view. The more they consider the very compli- cated arrangements which have been devised as a substitute for the payment of a sum of money at once, the more they are convinced that it is as much for the interest of Canada as of the Company, that the claims of the Company should bo provided for by a direct compensation, and not by contingent payments extending over a long series of years, and by grants of laud under stipulations, which, although indispensable to protect the Company from spoliation, would be invidious in the eyes of the future settlers and embarrassing to the Colonial Government. At the same time the Committee desire me to assure his Grace, that if their terms as now modified are agreed to by Her Majesty's Government, the Committee will use all their influence to induce the proprietors to confirm them. I have the honor to be. Sir, - " Your most obedient servant, KlHBBRLBT. The Right Honorable C. B. Adderley, M.P., Colonial Office. The Undbr-Skcretaby to the Governor of the Hudson's Bay Company.* 1st December, 1868. My Lord, — I am directed by the Duke of Buckingham and Chandos to acknowledge the receipt of your Lordship's letter of the 27th October, and to express his Grace's regret that the serious illness of Mr. McDougall, one of the two delegates sent from Canada, which prevented his Grace from communicating with him, should have caused so long a delay in the answer. His Grace regrets to perceive that the letter under reply does not afford much prospect .i)i au arrangement being come to. Her Majesty's Government, in the letter of Mr. Adderley of 23rd April to Siir Curtis Iif-mpson referring to the negotiations which took place in 1864, requested to be informed " what terms the Company would be prepared to accept, proceeding on the principles then adopted, namely, that the compensation should be derived from the future proceeds of the lands, and of any gold which may be discovered in Kupert's Ljind, coupled with reservations of defined portions of land to the Company." To this your Lordship replied that the Committee were prepared to recommend — 1. That the Company shall surrender all the territory which they hold under their charter, with the reservation of all their posts and stations, with an area of 6,000 acres round each such post or station ; this reservation of 6,000 acres, however, not to apply to the Red River Settlement. 2. That the Company shall be entitled to receive 1«. for every acre of the land surrendered, which shall be disposed of by the Government whether by sale, lease, or free grant, or parted with in any other manner. 3. That one quarter of the sum received by the Government as an export duty for gold and silver, ov on leases of gold and silver mines, or for licenses for gold and silver mining, shall be paid to the Company, the amount to be received under this and the preceding article being limited to a total sum, conjointly, of £1,000,000 sterling. 4. That the Canadian Government shall confirm all titles to land that has been alienated by the Company at Red River, or elsewhere. 5. That whenever the Government shall have sold, leased, granted, or otherwise parted with 50,000 acres, the Company shall be entitled for every such 50,000 acres to a free grant of 5,000 acres of wild land to be selected by them. 6. That no tax be imposed upon any land belonging to the Company not under cultivation, and no exceptional tax shall be imposed upon the Company's other lands or property, or upon the Company's servants. ,1 t • Jt^l ♦ Sesa. Papers, Can., 1869, No. 26. 10 146 H. B. CO.'S PROPOSKD TERMH OF SURRENDER OF RUPERT'S LAND. 1868. ■tiw 7. That the disputed matter of the Company's lands in Canada be settled by issuing grants on the footing formerly agreed upon by Mr. Tankoughnet and Mr. Hopkins. 8. That the Canadian Government shall take over from the Company all the materials for the construction of the telegraph now in Rupert's land, and the North-West Territory^ A payment of the cost price, and the expenses already incurred with interest. 9. That full liberty to carry on their trade shall be secured to the Company, fiee from any special or exceptional taxation. 10. That until .£1,000,000 sterling, stipulated by articles 2 and 3, shall be paid tc the Company, no export duties shall be levied by Canada upon furs exported by the Company, and no import duties shall be levied upon articles imported by the Company into the North- Western Territory, and into that part of Rupert's Land which is not included within the geographical limits laid down in Sir E. Head's letter of 1 3th Novem- ber, 1863, the Company to be further entitled to import goods in bond free of duty, through any part of the surrendered territory into the North-Western territory and the aforesaid part of Rupert's Land. Lastly. That in order to afford to the Company a guarantee for the due fulfilment of these provisions by the Canadian Government, power shall be given to the Company to bring before the Judicial Committee of Her Majesty's Privy Council for decision any matters connected with the carrying into effect the foregoing provisions, in respect of which they may consider themselves aggrieved. His Grace intimated in reply, that there were " certain points in the terms set forth to which he would not feel at liberty to agree in their present shape," and at the meetings which ensued his Grace expressed his strong objections to the principle of the proposals of the Company respeotiag reserves of land to be selected from time to time at the discretion of the Company, and to the principle of special exemption from taxation in their favour, and expressed his opinion that there were many points in the other proposals requiring material modification. Your Lord.ship's present letter intimates */hat the Company are unable to agree to certain modifications which suggested themselves during the discussions as modes of avoiding the objections entertained by his Grace, and proceeds to state the changes which the Company are willing to agree to, and which his Grace understands to be as follows i 1st. That the exemption from taxes on the Company's wild lands shall only last for a period of twenty years from the date of selection. 2nd. That any lands purchased by the oompany shall not reckon in the quantities of 50,000 acres, in respect of which the Company should be entitled to select 5,000 acres. Srdly. That the Company shall bear the expense of surveying their blocks of 5,000 acres. 4thly. That lands granted for such purposes as roads, churches or schools, shall not be liable to the payment of one shilling per acre to the Company. 5thly. That the same exemption shall apply to land set apart by Her Majesty's Government as Indian Reserves before the Company's territory is transferred to Canada. 6thly. That with regard to la "id around posts beyond what is designated the fertiib belt, 6,000 acres shall be granted, and that only 3,000 acres shall be the quantity within that belt. 7thly. That the proposed recourse to the Privy Council as a Court of first instance, shall be abandoned. His Grace is unable to recommend the adoption by Her Majesty's Government of such terms for the surrender of the territoriafrights of the Company. Whatever be the future government of the territory, whether by the Hudson's Pr.y C^ui^-.,uy or by Canada, or by any other authority, very considerable annual outlay will have, as in all other unsettled countries, to be incurred in clearing roads, main '.^enance and opening of naviga- tion, etc., and surveying. For these charges, the produce of the early sales o'. land is the natural resource. But by the Company's proposals they would dep'ive the future Government of any prospect for a long time at least of receiving any income. Ist. They fir.°t stipulate, not for a share of the receipts from land, but for a definite a -I n TERMS OP SURRENDER PROPOSED BY THE COLONIAL SECRETARY, 18G8. 14fl^ be terms set forth schools, shall not of first instance, but for a definite gum per acre, a sum in all probability far in excess of what is likely in practice to gcj obtained for the greater portion. !' « 2ndly. They stipulate that they shall retain certain reserves around their posts^' amounting, therefore, according to the lists of posts handed in by Sir C. Lampson, t5 upwards of 500,000 acres of the land most likely to be made available for settlement aind sale, as being the land surrounding the established posts of the Company, they have, after long experience, retained as the most advantageous positions for trade and occupatioij, and of which nearly 100,000 acres surround the posts in what is called the fertile beU M the territory. 3rdly. And that they shall also receive a share of mineral rights, and confirmation of all titles. 4tlily. They proceed to stipulate for a further reserve of one-tenth of the whole territory, and that the Company shall have this tenth in blocks of 5,000 acr3b to be selected as each successive 50,000 acres is alienated and not merely to select in the H.ime locality, but anywhere ; so that for instance, if land is alienated on the higher parts of the Rocky Mountains, at Jasper House for example, in consequence of the mining opera- tions in that district, or for fishing stations or for mining purposes on the coast of Hudson's J3ay or Labrador, the Company should be entitled to select the proportionate reserve in such part of the most fertile region as they may consider will realize the utmost profit to them, whether by its cultiv^ation or development, or by its power of obstruction to others. These lands moreover are to be exempt from taxation for a period of 20 years from selection, and the lands retained round the posts to be entirely free from taxation unless reclaimed. These conditions his Grace cannot accede to. His Grace would, however, recommend Her Majesty's Government to agree to a surrender on the following conditions : Ist. That the land to bo retained by the Company in the neighbourhood of their posts shall vary according to the importance of tl^e post : in no case whatever exceeding 6,000 acres in all for any one post, including the cultivated or reclaimed land now occupied, and in no case exceeding 3,000 acres within the feMile belt for principal posts, and 600 acres for minor posts ; the adlitional land to be set out so as not to include frontage to riviirs or tracks, roads, or portages. 2nd. The Company to receive one-fourth share of all receipts from land. If any free grants of land be made for other than public purposes, such lands shall be deemed to have been sold at one shilling per acre. 3rd. That one quarter of the sv;m received by the Government as an export duty for gold and silver mines, or for licenses for gold and silver mining, shall be paid to the Company, the amount to be received uiider this and the preceding article being limited to a total sum conjointly of £1,000,000 sterling. 4th. That the Imperial Government shell confirm all titles to land that has been alienated by the Company at Red River or elsewhere. 5th. That the Company shall have the option of selecting five lots of not less than 200 acres each in each township, whenever it is set out, on payment of rateable cost of survey. 6th. That no exceptional tax shall be imposed on the Company's lands, trade, or servants. 7th. That full liberty to carry on their trade shall be secured to the Company. 8th. The Company to have similar reserves granted them in connection with their [ posts in the North- West Territory. 9th. The boundary lines between Hudson's Bay and Canada to be defined, and I between Hudson's Bay and North- West Territory to be defined by a natural or geographical boundary agreed on. 10th. No >>dld lands to bo taxable until surveyed and marked. 11th, TL«^ whenever the payment of £1,000,000 sterling under Article 8 shall have [been made as therein provided in rash, or otherwise extinguished by any payment or I commutation by Canada to the savisi'action of the Company, the rights of the Company I to further selections of lots, to royalties, and share of land receipts shall cease. 12th. Such lands as Her Majesty's Government shall deem necessary to be set aside Ifor the use of the native Indian population shall be reserved altogether from this arrange- 148 H. B. CO.'S PROTEST AGAINST CONHTRUCTION OF RED RIVER ROAD, 1808. menl, and the Company shall not be entitled to the payment of any share of receipts or any royalty the/efrom, or right ot selection in respect thereof under previous articleH, unless for such part, if any, of these lands as may be appropriated with the consent of the Crown to any other purpose than that of the benefit of the Indian natives. If these terras are appro /ed. Her Majesty's Government will be prepared to conclude an arrangement, and to submit it to the Canadian Government fur their favourable consi- deration ; but if the Company jhall not assent to these conditions. Her Majesty's Govern- mont will consider themselveti unpledged by any of the offers that have been made. " ' \ I am, etc., The Earl of Kimberley. C. B. Adderlbt. ( Tub Dbputy-Qovbuxor of thb Hudson's Bay Company to the UNDBR-SEoaETARY.* ' HuriON's Bay House, London, 22nd December, 1868. Sir, — I have the honour to enclose for the information of the Right Honourable the Secretary of State for the Colonies, extracts of letters recently received from Governor Mactavish, dated Fort Garry, Red River Settlement, October 10th and November Uth, from which it will be seen that the Canadian Government have intimated through an agent sent to Red River by the direction of the Canadian Commissioner for Public Works, their intention to construct a road from Fort Garry to the Lake of the Woods, through the territory of the Company. A trespass upon the freehold territory of the Company must be committed in order to carry out this intention. The Committee cannot but look upon this proceeding as a most unusual and improper one, especially as negotiations are at present pending for the transfer of the territory of the Company to Canada. This trespass will be an actual encroachment on the soil of the Company, and that too by a Government which has constantly up to this time and still disputes the right of this Company over that soil. The Committee therefore ask for the intervention of Her Majesty's Government, but at the same time they beg leave to say that any application by Her Majesty's Government or the Canadian Government for permission to make this road will be favourably entertained. i have, (fee, CM. Lampson, Deputy-Governor. Sir Frederic Rogers, Bart, etc., etc., etc., Colonial OiSce. Extracts of Letters prom Mr. Mactavish, Hudson's Bay Company's Governor of Rupert's Land, to W. G. Smith, Esquire, Secretary, dated respectively Fori j Garry, Red River Settlement, the 10th October and 11th November, 1868, referred to in the preceding Letter.* 10th October. — " I am informed that the Canadian Government have forwarded in charge of a Mr. Snow, a quantity of provisions which Mr. Snow has written to one of the merchants here to provide freight for irom Georgetown, and appointed the loth instant as the date on which the supplies will be at Georgetown. Mr. Snow himself says nothing on the subject, but it is rumoured here that he comes up for the purpose of superintending the making of a cart road from this place to the Lake of the Woods, and that the provisions that ho is bringing are to be used in payment of labour on the | above road." *Se88. Papers, Can., 1869, No. CORRESPONDENCE RELATING TO CONSTRUCTION OF RED RIVER ROAD, 1868-0. 14f) 3. Addbrlby. 11th November. — " Mr, Snow, who I before advised you as expected here to super- intend in mailing a road from this settlement to the Lake of the Woods, with a view to opening direct communication with Canada, arrived some time ago, and is now on the evo of commoncing operations. He has brought in with him some provisions with which he purposes paying for labour on the road. On his arrival here, he called on me to show his instructions from the Commissioner of Public Works. These contained nothing of any consequence beyond the expression of a hope on the part of the Commissioner that the Company's agent hero would offer no opposition to Mr. Snow's operations, but would leave the matter entirely in the hands of the Imperial Government, which (as generally people here regard Mr. Snow's arrival aa opportune on account of the scarcity of provisions), I agreed to do ; and without instructions to protest against Mr. Snow's action, I did not think it politic to do so." ►br-Seorbtary.* December, 1868. TnR Under-Secretary to Sir Geokgb E. Cautier, onk of the Canadian DBI-aGATKfl.* • H Downing Street, ■ . : , 30th December, 1868. Sir, — I am directed by Earl Granville to transmit to you a copy of a letter which his Lordship has received from the Deputy Chairman of the Hudson's Bay Company, relating to some steps which have been taken under authority of the Canadian Government, and from which they apprehend some invasion of their territorial rights. His Lordship will be glad to receive from you or from Mr. McDougall any explana- tion with which you or he may be able to furnish him of the st ms taken by the Canadian Government. I am, Sir, ' ' Your obedient ' .t, Sir G. E. Cartier, Bart. t 1FRIC Rogers. The Canadian Dblbgateb to the Under-Secretary.* Westminster Palace Hotkl, London, January 16th, 1869. Sir, — We have the honour to acknowledge receipt of your letter of the 30th ult. (with its enclosures), stating that you were directed by Earl Granville to transmit to us a copy of a letter which his Lordship had received from the Deputy Chairman of the Huurfon's Bay Company, relating to some steps which have been taken under the authority of the Canadian Government, and from which the Company apprehend some invasion of their territorial rights. You inform us that his Lordship will be glad to receive from us any explanation which we may be able to furnish him of the steps taken by the Canadian Government We have read the letter of the Deputy Chairman, and extracts from the letters of Governor Mactavish, and have macb pleasure in being able to furnish his Lordship with what we hope will prove satisfactory information on the subject of the Hudson's Bay Company's complaint. 1. In the month of September last, very precise information reached the Canadian Government that, in consequence of the complete destruction of their crops by locusts, the people of the Red River Settlement, numbering probably from 12,000 to 15,000 souls, were in imminent danger of starvation during the winter about to set in. ♦ Sess. Papers, Can., 1869, No. 26. 150 CORHKHI'ONnKNCK HKLATINO TO CONSTRUCTION OK IlKD RIVEU ROAD, 1808-9. 2. NuinerouB and oarnest appflaU for aid had already been nian with their fellow- ited people, viz., in ay Company might prove a valuable p the future. On been committed, or negotiations which lafer of the North- ible Earl Granville adian Government, their opinion this ment," both invites old and goveri; the •med the first duty of communication willing to meet the to the settlement ested happy in the ir interference, ly that the country of the Company," iding provisions to [1 convenience and npany," might, if bs of the Company Lordship that the :ider the authority the westward and flouthward " of the " boundary line of Hudson's Bay, to the utmont extent of the country commonly called or known by the name of Canada." Whatever doubt may exist as to the " utmost extent " of old or French Canada, no impartial investigator of the evidence in the case can doubt that it extended to and included the country between Lake of the Woods and Hed River. The Government of Canada, therefore, dees not admit, but, on the contrary, denies, and has always denied, the pretensions of the tludaon's Bay Company to any right of soil beyond that of squatters, in the territory through which the road complained of is being constructed. . We have, etc., G. E. Cartibr, Wm. MoDouoall. Sir Frederic Rogers, Bart., etc., etc., etc., > ,. Colonial Office. The Govkknor op tub Hudson's Bav Company to the Undbr-Skcrbtary.* ^ Hudson's Bay House, London, February 2nd, 1869. Sir, — I have the honour to acknowledge your letter of the 28th January, addressed to the Deputy-Governor of this Company, enclosing a communication from Sir G. Cartier and Mr. McDougall, on the subject of the recent proceedings of the Canadian Government in the matter of the construction of a road through the Company's territory between Fort Garry and the Lake of the Woods. After the distinct statement contained in Sir Curtis Lampson's letter of the 22nd December, that the Company, while protesting against a trespass on their land, were pre- ipared favourably to entertain any application for permission to make such a road, either on the part of the Imperial or of the Canadian Government, the Committee think it unneces- sary to discuss the greater portion of the letter of the Canadian Ministers. Their objeo- tion is not to the road being made, but to its being undertaken by the Canadian Govern- ment as a matter of right, as though the territory through which it is to pass were Canadian. Such a step, taken at a moment when negotiations are in progress for the transfer of the Company's possessions to Canada, and taken by a Government which openly disputes their title to this portion of them, could not have been allowed to pass unchal- lenged without derogating from the Company'^ rights. The Canadian Government them- selves seem to have been alive to this. Mr. McTavish states that the agent of that Government (Mr. Snow) on arriving at the Red River, communcated to him his instruc- tions from the Commissioner of Public Works in Canada, containing the expression of " a hope on the part of the Commis^iioner that the Company's agent here would offer no •opposition to Mr. Snow's operations, but would leave the m.itter entii-ely in the hands of the Imperial Government." Governor McTavish, upon this, very properly allowed Mr. Snow to commence his operations ; and so far as this Company is concerned, no impedi- ment has been, or will be, offered to the prosecution of the work. If it were worth while to discuss that part of the letter of the Canadian Ministers which refers to the circamatances under which the construction of the road was ordered, the Committee would be able to show that the Company had in no way failed in their duty to the colony ; but that they had promptly taken measures for the relief of its inhabitants and had supplied large sums, both by direct grants and by subscriptions raised under their auspices for that purpose, at a period anterior to the appropriation of the Canadian road grant. They would also be able to point out how the delay which has occurred in opening up communications and otherwise developing the resources of the Red River Settlement is due to the restraint which has been imposed upon them by Her Majesty's Government at the request of Canada, and not to any negligence or indifference of their own. * Se88. Papers, Can., 1859, No. 26. t ! ^n M r»' m ,t t i +-i'i» l.i- fS;.^ 152 H. B. CO.'S PROPOSED TERMS OF TRANSFER OF TERRITORY, 1 869. But the Committee desire to avoid the raising of a false issue, and they accordingly instruct me to re-state to Earl Granville the precise complaint which they have to make. It is this : — that while negotiations are going on for the acquisition of their territory by GanKf'A, the Canadian Cover ament are endeavouring to exercise rights of ownership over ft prrtion of that territory, to the exclusion of the Company, and to the prejudice of their title. This they are doing by virtue of an old claim which they have repeu«edly advanced, which the Coupany have ipvariably disputed, and have declared themselves ready to con- test before a court of law, •> "^ which Her Majesty's Government, acting under the advice of various law officers of t' 'own, have declined to endorse. The Canadian Gov, u. , we hitherto shown no inclination to bring their claim to the test of a judicial de tou, am in the absence of any such decision, the Committee cou- ^ !: Jiatdue respeci, should be paid to the Company's unin- ".hi ! < tory for two centuries, and to the numerous and weighty fron. time to time been given in their favour. 1 orranville for support in tMs matter, instead of entering into a controversy with Canada, or taking legal steps to eaforce the Company's rights, the com- mittee have been actuated by a desire to proceed as far as possible in accordance with the views and wishes of Her Majesty's Government, as they have end ■ -'red to do through- out the pending negotiations for the establishment of a settled form ol Jovemmentatthe Red River. Thoy desire now respectfully, but confidently, to claim the support and pro- tection of the Colonial Minister against any invasion of the Company's rights which may have been prompted or facilitated by the policy which they have adopted in order to meet the wishes of the Colonial Office. \ I have, etc., Stafford H. Northcote. Sir Frederic Rogers, Bart. aider it not unreasonabi terrupted possession legal opinions which In appealing to The Governor of the Hudson's Bay Company to the Under-Secretary.* Hudson's Bay House, London, January 13th, 1869. Sir, — I have the honour to acquaint you, for the information of Earl Granville, that I was elected by the shareholders of this Company on Tuesday, the 5th instant, to the office of Governor, vacant by the resignation of the Earl of Kimberley. It now becomes my duty to address you in reply to Mr. Adderley's letter, dated the Ist December, 1868, which was received by my predecessor on the eve of his resignation, and to which, in consequsnce. of that event, the Committee have not been able to send an earlier answer. Before making any observations upon the particular topics discussed in Mr. Adderley's letter, I am desired by the Comuiittee to assure Lord Granville that they continue sincerely anxious to promote the object with a view to which this Company was reconstructed five and a half years ago, viz., the gradual settlement of such portions of their territory as admit of colonization ; that they adhere to the opinion expressed in their resolution of the 28th August, 1863, viz., that the time has come when it is expedient that the authority, executive and judicial, over the Red River Settlement and the south-western portion of Rupert's Land, should be vested in officers deriving such authority directly from the Crown ; and that they cheerfully accept the decision of Her Majesty's Government, com- municated to thera in Mr. Adderley's letter of the 23rd April, 1868, viz., that the whole of the Company's territory should, under proper conditions, be united with the Dominion of Canada, and placed under the authority of the Canadian Parliament. Acting in accordance with the wish of Her Majesty's Government as conveyed to them in Mr. Elliot's letter of the 23rd January, 1867, the Committee have declined to encourage overtures which have been made to them by private persons for the purchase of portions of ♦ Sess. Papers, Can., 1869, No. 26. H. B. CO.'S PROPOSED TERMS OF TRANSFER OF TERRITORY, 1869. 153 NORTHCOTK. Secret AiiY.* the Company's territory with a view to their )nization, and have kept the whole question in abeyance during the time that the nego .itions which have led to the confederation of the British Provinces constituting the Dominion of Canada were proceeding. In the whole of that time they have taken no steps which could give rise to fresh complications, or could place any new difficulty in the way of the admission of their territory into the confederation when the proper moment should arrive ; and when they were informed by Mr. Adderley's letter, of the 23rd of April, that the Parliament of Canada had addressed Her Majesty upon this subject, and were requested to state the terms which the Company would be prepared to accept, proceeding on the principle adopted in the interrupted nego- tiation of 1864, they unhesitatingly complied with the desire of the Government. It is therefore with surprise, as well as with regret, that they have learnt from the letter now under reply that the terms proposed by them, even when most strictly in con- formity with the principles adopted in 1864, are considered by Her Majesty's Government to be inadmissible, and not to afford much prospect of an arrangement being come to. They find, for instance, that the stipulation that the Company should receive one shilling per acre on lands hereafter sold, which was onginally suggested to the Committee by his Grace the late Duke of Newcastle, in Mr. Fortescue's letter of March 11th, 1864, and which has never hitherto been called in question, is the first point to which exception is now taken. Objections are also raised against several other proposals which have been lo*ig before the Government, while no notice at all is taken of some which have been made for the first time with a view to the protection of the Company's trade, and with regard to which the Committee are left in ignorance, whether t'^ey are considered admissible or not. The Committee, although somewhat embarrassed u^ this apparent change in the spirit of the correspondence, desire me, however, to make the following observations upon some of the remarks contained in Mr. Adderley's letter, in order that there may be no misap- prehension as to the bearing of their proposals : The Committee are aware that, as is stated in Mr. Adderley's letter, in order to pre- pare the country for settlement, very considerable annual outlay will have to be incurred, and that for this charge, the produce of the early sales of land is the natural resource ; but they are at a loss to understand upon what ground it is alleged that their proposals would deprive the future Government of the ceded territory of " any prospect, for a long time at least, of receiving any income." The only part of the territory in which it is probable that any early or extensive settle- ment will take place is the part known as the fertile belt. It haa been confidently asserted by independent persons who have travelled through the country, that a great part of this land is not inferior in quality, or in advantages of climate, to the adjoining United States territory now forming the State of Minnesota, and it has been justly pointed out that, being prairie land, it does not require much labour to render it fit for cultivation. But the price of land in Minnesota ranges, as the Committee are informed, from five 8hilline;s to one pound per acre. Tne Committee think, therefore, that the fixed payment of one shilling per acre, proposed by the Duke of Newcastle, p,nd accepted by them as a basis of compensation, cannot be deemed to be unreasonable, in so far as relat;ed to land sold within the limits set forth in Sir Edmund Head's letter of the 11th of November, 1863. As regards any portions of land lying outside those limits which may possibly be sold, the (Committee think it very improbable that such sales will take place except for mining purposes, in which case the payment of a shilling per acre could hardly be deemed exces- sive. In order to save trouble and to obviate disputes, therefore, the Committee proposed the fixed payment of one shilling per acre in respect of all sales wherever they may take place, and they believe that the arrangement would have been, on the whole, more favour- able to Canada than that suggested by Mr. Adderley. Mr. Adderley proceeds to remark, with reference to Lord Kimberley's proposal that the Company should retain certain reserves around their posts, that the reservations would amount to upwards of 500,000 acres. It was, however, stated by Lord Kimberley and the Deputy-Governor at an interview with the Duke of Buckingham upon this subject, that the Committee were willing to confine their claim for reserves to the limits defined by Sir Edmund Head'a letter of the 11th November, 1863 ; that they were prepared ta 154 H. B. CO.'S PROPOSED TERMS OF TRANSFER OF TERRITORY, 1869. ml ■Mi agree that such reservations should be measured by the importance of the posts to which they were to be attached, and should in no case exceed 3,000 acres. The total quantity of land to be retained by the Company under this :.rrangement, would not exceed 50,000 acres. The Committee cannot agree to the absolute exclusion of these reserves from all frontage to " rivers or tracks, roads or portages " which would render thorn entirely value- less, although they would have been ready to consider any reasonable limitation of these special advantages. As regards the right of selecting lands for the Company :n proportion to the quanti- ties sold from time to time by the Government, the Committee desire to call Lord Gran- ville's attention to the reasons given in Sir E. Head's letter of the 13th April, 1864, for adopting this mode of rese' 'ation in preference to that of " setting apart beforehand a number of isolated tracts of wild land, dotted over the surface of the colony, and calculated to impede the free flow of settlement in the territory." Their proposal was framed with reference to sales in the fertle belt only, and it never entered into their minds to comtera- plate such contingencies as those suggested in Mr. Adderley's letter. In order, however, to obviate all cavil upon this point, they would have been quite willing to limit the Com- pany's right of selection to the case of lands sold or alienated within Sir E. Head's limits, provided that it were agreed that no alienations should take place beyond those limits, except either for distinctly public purposes or for the bona fide carrying on of agricul- tural or mining operations. As regards Mr. Adderley's proposal that the right of selection should be confined to five lots of 200 acres each in each township, as it is set out, the Committee can only remark that the character of this proposal must depend upon the size of the township, of which no indication has been given. The Committee still adhere to the opinion that under the peculiar circumstances of the proposed transfer of their territory, it would be reasonable that their wild lands should for a limited time be exempt from taxation, in order to allow them a fair opportunity of bringing them into profitable cultivation. They observe that Mr. Adderley makes no reference to the tenth stipulation contained in Lord Kimberley's letter of the 13th May, viz., that until the stipulated sum of <£ 1,000,- 000 sterling has been paid to the Company, no export duties shall be levied by Canada upon furs exported by the Company, nor any import duties on articles imported by them into the North-Western Territory, and into that part of Rupert's Land which is not included within the geographical limits laid down in Sir Edmund Head's letter of November 11th, 1863. This is a point to which the Committee attached very great importance. If it had been proposed by the Canadian Government to make a direct purchase of the Com- pany's territory, and to pay the price for it at once, the Company would, of course, have accepted their fair share of the burdens which annexation might be expected to involve. But if the purchase money is to be withheld until the Canadian Government have sold oflf 20,000,000 acres of the land, or have realized a considerable sum by the produce of mining operations, it is reasonable that the pressure of the fiscal burdens, which would fall almost exclusively upon the Company's trade, should be suspended also. Otherwise it might happen that, in consequence of the neglect or the inability of the Canadian Govern- ment to proceed with the settlement of the territory, the Company would be subjected tc very heavy contributions to the colonial treasury without receiving the smallest benefit in return. As an illustration of the extent to which they might thus be injured, were no limitation placed upon the colonial power of taxation, I may observe that according to the present Canac" Stafford H. Sir Frederic E.ogers, Bart. NORTHCOTB, Ckyvemor, The Under-Seorktary to the Canadian Delegates.* Downing Street, 18th January, 1869. Gentlemen, — I am directed by Earl Granville to transmit to you, for any observa- tions which you may wish to offer upon it, the enclosed copy of a letter from the Hudson's Bay Company in answer to the proposals made to them by the Duke of Buckingham and Chandos in the letter from this Department of the 1st of December last, with respect to the proposed cession to the Crown of the Company's territorial rights in British North America. I am. Gentlemen, ■ ' "' "^ ; . ^i ^ -^ Your obedient servant, " ••' Sir G. E. Cartier, Bart. W. McDougall, Esq., C.B. Frederic Rogers. The Canadian Delegates to the Under-Seoretarv.* • ' ■ ' Westminster Palace Hotel, London, February 8th, 1869. Sir, — We have the honour to acknowledge the receipt of your letter of the 18th ultimo, enclosing a copy of Sir Stafford Northcote's letter of the 13th ultimo, in reply to proposals made to the Hudson's Bay Company for the cession to the Crown of their territorial rights in British America, by his Grace the Duke of Buckingham and Ohandos, in the letter of Mr. Adderley of the 1st December last. « Seas. Papers, Can., 1869, No. 26. I! ' hii 156 CANADIAN DELEGATES IN REVIEW OF PROPOSED TERMS OF TRaJtSFER, 1869 ; i«; IP Yoc state that Earl Granville directed you to transmit this document to us /or any observations which we may wish to offer upon it. His Lordship's courtesy and consideration in sending us a copy of Sir Stafford Northeote's letter and inviting us to- express our views upon it are gratefully acknowledged, but upon reflection we thought it would be expedient to refrain from any formal expression of our opinion on new and indefini^« propositions, until we had received some intimation of the view which his Lordship was likely himself to take of them, or of the policy in respect to the general question which Her Majesty's present advisers intend to adopt. At an interview with which we were favoured by Earl Granville on the 26th ultimo, he expressed his preference for a less complicated mode of dealing -"vith the Hudson's Bay question than that proposed by the Duke of Buckingham and Chando^, and requested us to communicate to him our observations on the reply of Sir Stafford Northcote, and especially on the proposition with which his letter concludes, viz., that the Canadian Government should " complete the purchase of the territory at once, by the payment of a sum of money or by the delivery of bonds." As we have had but few opportunities to confer with his Lordship since his accession to office, it may be proper, before considering Sir Stafford Noythcote's letter, to state the position of the Canadian Government, as we apprehend it, in this negotiation. The British North America A fc of 1867 affirmed the policy of uniting under one Government all the colonies, provinces, and territories of British North America. Three provinces were united at once, and provision was made by the 146th section, for the admission into the union of the remaining colonies, on address to Her Majesty by their respective Legislatures and the Parliament of Canada. The North-west Territories and Rupert's Land, or either of them, are to be admitted on the address of the Parliament of Canada alone, and on such terms and conditions as the Canadian Parliament may in its address express, and Her Majesty approve. In pursuance of the policy of the Imperial Parliament thus distinctly affirmed, the Canadian Parliament at its first session under the new constitution, adopted an address to Her Majesty for the incorporation of the North-west Territory and Rupert's Land with the Dominion of Canada. The terms and conditions expressed in the address were, — let. That Canada should undertake the duties and obligations of Government and legislation in respect of those territories. 2nd. That the legal rights of any corporation, company, or individual within the territories should be respected, and that provision should be made for that purpose by placing those rights under the protection of courts of competent jurisdiction. 3rd. That the claims of the Indian tribes to compensation for lands required for purposes of settlement should be considered and settled, in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines The above were the only terms and conditions which, in the opinion of the Canadian Parliament, it was expedient to insert in the Order in Council, authorized by the 146th section. His Grace the Duke of Buckingham and Chandos, on receiving the address of tlie Canadian Parliament, consulted the law officers of the Crown, who advised, among other things, that " there would be much difficulty created by the existence of the charter " of the Hudson Bay Company, " to putting into execution the powers of the 146th section of the British America Act, 1867, assuming that the Hudson's Bay Company were adverse to the union." A Bill was thrireupon carried through the Imperial Parliament, apparently to remove the '* difficulties " which the law officers had discovered. It reverses the order of procedure contemplated by the Act of 1867, and observed by the Canadian Parliament in its address, and makes the assent of the Company a condition precedent to the transfer. The Canadian Government were not consulted as to the terms of this Act ; they could not understand why it was necessary, and greatly doubted the expediency of passing it. The Duke of Buckingham and Chandos, having opened negotiations with the Hudson's Bay Company under the authority of the Act last mentioned, invited a delegation from the Canadian Government to confer with him in this country. The undersigneid, duly POSITION OF THE CANADIAN GOVERNMENT ON THE QUESTION. 167 ;e his accession commissioned for that purpose, repaired to London iu October last, and had frequent interviews with his Grace before his retirement from offica The proposals submitted to the Company by the late Government in the letter of Mr. Adderley of the 1st December last, were not made at our suggestion, although we were disposed to think (and so informed his Grace) that if the Company accepted them, the Oanadian Parliament might be persuaded to undertake the duties of legislation and government in the territories on the conditions specified. The Company, through Sir Stafford Northcote, have declined to accept either the principle or the mode of settlement proposed by the late Government, but suggest a new and summary method of closing the negotiations, by demanding that the Canadian "Government should, by a payment in cash or bonds, " complete the purchase of the terri- tory at once." No sum is mentioned, and no data given from which it can be inferred. Under these circumstances, we are asked, as representatives of the Canadian Government, to communicate to Earl Granville any observations we may wish to offer on this reply and proposition of the Company. His Lordship will readily perceive from the foregoing recital, that, as representatives of the Canadian Government, we are in the position of spectators of a negotiation, begun and carried on upon principles and under conditions to which we are strangers, rather than that of assenting principals, responsible for its initiation, and bound by its results. Without undertaking, therefore, that our views on every point will be approved by the Canadian Government, we proceed most respectfully to offer a few observations on Sir Stafford Northcote's reply to the recent proposals of the Imperial Government. It will be observed that two things are assumed in these proposals to the Company, which the Canadian Government have always disputed. 1st. That the charter of Charles II. is still valid, and grants the right of soil, or freehold, of Rupert's Land to the Company. 2nd. That Rupert's Land includes the so-called " Fertile Belt," extending from the Lake of the Woods to the Rocky Mountains. The law oflScers of the Crown in England have, on two or three occasions, given their ' opinion in favour of the first assumption, but never, so far as we are aware, in favour of the second. The report of the law officers in 1857 admits that the geographical extent of the territory granted must be determined y excluding the country that " could have been rightfully claimed by the French as f alliiig within the boundaries of Canada " (which the ■charter itself excludes by express words), and states that "the assertion of ownership on important public occasions, as at the treaties of Ryswick and Utrecht," should be consi- dered ; and also " the effect of the Acts of 1774 and 1791." The most recent opinion of the law officers of the Crown which we have seen (January 6th 1868), as to the rights of the Hudson's Bay Company, does not even by implication support their present claim to the fee simple of nearly one-third of the American continent. On the contrary, Sir John Karslake and his colleagues conclude their report with the emphatic statement that it is " very necessary, before any union of Rupert's Land with Canada is efiected, that the true limits of the territory and possessions held under the charter should be accurately defined." An assumption, therefore, which covers so much ground, and is unsupported by any competent legal authority ; which ignores the repeated protests and claims of Canada ; and seeks to supply a basis upon which a surrender for valuable consideration may be made, — is, to say the least, a most favourable assumption for the Company. We notice these points in Mr. Adderley's letter before remarking on Sir Stafford Northcote's reply, to prevent the possible inference that we have acquiesced in them. Sir Stafford Northcote assures Lord Granville that the Company " continues sincerely anxious to promote the object with a view to which the Company was reconstructed five and a-half yearc ago, viz., the gradual settlement of such portions of their territory as admit of colonization." It would be tedious to quote the numerous and positive averments by members and governors of the Hudson's Bay Company, in the course of official inquiries during the last tiSfty years, that their territories (in which they included the Red River and the Saskatchewan districts) are totally unfit for colonization. The evidence of Sir George Simpson before the House of Commons Committee of 1857, is a fair sample of ihe views heretofore entertained and avowed by the representatives of the Company. 9.^ 1 *H \ ' •i >V|, *1 168 CANADIAN DELEGATES IN REVIEW OF PROPOSED TERMS OF TRANSIiER, 1869 ; Vide Commons Report, 1867 ; Questions 716, 717, 718, 719, etc.) Mr. ElHce, for many years the ruling spirit of the Company, declared before the same Committee that the Red River settlement was an " anwise speculation," and " had failed ; " that " the climate i* not favourable ; " that the Saskatchewan is a country capable of settlement on' when " the population of America becomes so dense that they are forced into situations. :« fit for settlement than those they occupy now ;" that the winters are " rigorous," and ths country badly off for " fuel," etc. (Questions 6840 and 6847.) With such views of the unfitness of the country fov settlement, and avowing their beiief that colonization nnd the fur trade could not exist together, it is not surprising that the Company have always cherished the latter, which was profitable, and discouraged, and, as far as possible, prevented the former, which had proved an " unwise speculation." It is true that the Company was " re-constructed " in 1863, with loud promi.ses of a new policy. A great road i»vross the continent was to be made, a telegraph line was to be put up, and emigration and colonization developed on a large scale. The Duke of Newcastle, then Secretary of State for the Colonies, was so much impressed by the zeal and public spirit of the gentlemen who effected the reconstruction, that he wrote despatches to the Canadian Government on their behalf, and evidently believe;! that a new era was about to open in the North -West, and the wild animals and fur traders retroat before the ma/ch of " European " settlers. The stock of the old Company, worth in the market about j61, 000,000, was bought up, and by some process which we are unable to describe, became £2,000,000. A show of anxiety to open postal and telegraphic communication was made, and " heads of proposals " were submitted to the Goverr ments of Canada and British Columbia, which on examination wert: found to embrace a nne of telegraph only, with the modest suggestion that the two Governments should guaran ee the company a profit of not less than 4 per cent, on their expenditure ! A proposal so absurd could only have been made to be rejected, and it was rejected accordiiigly. The surplus capital of the reconstructed Company, which was called up fo'.' the avowed purpose of opening their territories to " European colonization, under a liberal and systematic scheme of land settlement," has never been applied to that purpot.'e. Five and a half years have passed since the grand scheme was announced to the world, but no European emigrants have been sent out, no attempts to colonize have been ma le. Sir Stafford Northcote was not probably aware, when he vouched for the bona fid/^ of the Hudson's Bay Company as promoters of colonization, that a solemn vote of the shareholders was taken in the month of November, 1866, which condemned and rejected the policy of colonization, absolutely and definitively. While unable, for the reesons stated, to concur in Sir Stafford Northcote's assurance that the Hudson's Bay Company are anxious to promote colonization, we are gratified to learn that they " adhere " to the resolution of 28th August, 1863, that the time has come when it is expedient that "the authority executive and judicial over the Red River Settle- ment and the south-western portion of Rupert's Land, should be vested in officers deriving such authority directly from the Crown." The first remark we have to mako upon this reference to the resolution of 1863 is, that it admits the continued incapacity of the Company as ag'oi-erroin^power; the second, that if this was true in 1863, — if at that time it had become expedient to substitute the authority of the Crown for that of the Company, — it is much more expedient if not absolutely necessary, now ; and third, that if the Company are to be relieved of the duty and cost • * ;j;overnment which their charter imposes, and which they admit they do not and cannot properly discharge, compensation shonld be made, not to the Company, as is claimed, but by the Company to those who take the b'jrden off their shoulders. We confess we have failed to discover any evidenc?, and therefore cannot believe, that the Company have " cheerfully " accepted the decision of Her Majesty's Government, " that the whole of the Company's territory should, utder proper conditions, be united with Canada." A h^ief notice of the acts^ in contrast wi*h the professions of the Com- pany, will, we think, account for the ill success of our researches and justify our incredulity. The representatives of the Company, while declaring before the House of Commons Committee in 1857 (as we have already shown) that their territories were " unfit for iii ER, 1 869 POSITION OF THE HUDSON'S BAY COMPANY IN THE MATTER. 159 nice, for many 9 that the Red ' the climate i» mt on' when uationK ^ fit rouB," and the 'ing their belief rising that the uraged, and, as ilation." It is if a new policy, be put up, and ewcastle, then public spirit of the Canadian l)Out to oper. in ! the ma/ch of market about escribe, became vtion was made, da and British h only, with the iny a profit of 5uld only have 18 capital of the f opening their kcheme of land ITS have passed emigrants have thcote was not ly Company as in the month tion, absolutely jote's assurance are gratified to time has come [ River Settle- )fficer8 deriving on of 1863 is, rer ; the second, substitute the jedient if not ed of the duty t they do not ompany, as is ers. annot believe, s Government, ans, be united of the Ccm- d justify our s of Commons are "unfit for settlement," professed their readiness to surrender any portion of them that might be desired by the Imperial or Canadian Government for that purpose. Mr. Ellice declared in the moat unqualified terms, not only that the Company waa willing to surrender, but that it was the duty of the Government to see that no mere trading corporation obstructed "for one moment," nor to the extent of " one acre of land ht f..-'" cettlement," the "dominion of the actual settlers.'' (Commons Report, 1857; questions 5859, 5860 and 5933.) The Governor of the Company informed the Colonial Secretary (18th July, 1857,) that an inquiry into the " geographical extent of the territory granted by their charter," which the law officers had recommended, was of little importance, because, if the object of the inquiry was " to obtain for Canada land fit for cultivation and the establishment of agricultural settlers, the Directors are already prepared to recommend to the shareholders of the Company to cede any lands which may be required for that purpose. The terms of such cession," he assured Mr. Labouchere, " would be a matter of no difficulty between Her Majesty's Government and the Company." Mr. Ellice had previously told the House of Commons Committee, that the question of boundary was " of no importance at all," because " if the Province of Canada requires any part of the territory, or the whole of it for purposes of settlement, it ought not to be permitted for one moment to remain in the hands of the Hudson's Bay Company." He added that " less money than would be spent in a litigation upon the subject would be sufficient to indemnify the Hudson's Bay Company for any claim which they could have on giving up any disputed part of their territory." These assurances induced the Committee to negative propositions for ascertaining by a judicial inquiry the validity of the charter, or the position of boundaries, and to report in favour of annexing to Canada " such portion of the land in her neighbourhood as may be available to her for the purposes of settlement, with which she is willing to open and maintain communication, and for which she will provide the means of local administra- tion." The Committee "trusted " that there would be "no difficulty in effecting arrange- ments as between Her Majesty's Government and the Hudson's Bay Company " for ceding the territory on "equitable principles." It may be proper to remind Earl Granville, that leading members of the Committee of 1857, taking the offers of the Company on the subject of colonization to mean what the language of their representatives imported, strongly opposed the recommendation to leave the question open for " amicable adjustment " upon " equitable principles," with tho cer- tainty of protracted negotiation and a chance of ultimate disagreement. Mr. Gladstone accordingly submitted resolutions for a prompt and definitive settlement of the whole question. He proposed — 1st. " That the country capable of colonization should be withdrawn from the juris- diction of the Hudson's Bay Company." 2nd. " That the country incapable of colonization should remain within their juris- diction." He proposed that in the country remaining within their jurisdiction power should be reserved to Her Majesty's Government to make grants " for the purposes of mines and fisheries, but with due regard to the immunities and trade of Ihe Company." No " im- munities " were even suggested with respect to the country which was to be withdrawn for colonization. He proposed to ignore the charter, by declaring that the jurisdiction of the Company " should rest henceforth upon the basis of Statute." He quoted the Governor's letter above referred to, " as an expression of the willingness of the Company to accept in principle the arrangement " he proposed, and ended with the suggestion that, " as the Company had tendered concessions which may prove sufficient to meet the case," no decision seemed necessary as to the question of raising "a judicial issue with the view of ascertaining the legal rights of the Company." The propositions of Mr. Gladstone were only lost in the Committee by the casting vote of the chairman. Twelve years have passed since these offers were made by the Company and accepted by a committee of Parliament. Every Colonial Secretary, from 1858 to the present mo- ment, has attempted to carry out the recommendation of the Committee, with the assent of ';,-:>■■' V V4' ICO CANADIAN DELEGATES IN REVIEW OF PROPOSED TERMS OF TRANSFER, 1869 ; the Company, but without success. Two Acts of the Imperial Parliament have been passed, with provisions to facilitate the arrangement, but are yet without fruit. Sir Edward Bulwer Lytton characterized the offers of the Company during his administration as " illusory," and declared that they " by no means met fhn exigencies of the case." He expressed his regret at a determination on their pert which " retains the very difficulty in the way of speedy and amicable settlement which he had sought to remove," and stated that if Canada declined to resort to " legal proceedings " (which he had recommended) "it would be his duty to consider whether negotiations with the Company can be resumed or whether in the last resort Her Majesty's Government must take the matter into their own hands and proceed on their own account." (Mr, Meri vale's letter to H. H. Berens, 9th March, 1859.) Sir Edward remained in office long enough to put an end to the Company's h'^ense of exclusive trade in British Columbia and the Indian territories, but not long enough to carry out his policy of " connecting the two sides of British North America without the obstacle interposed by a proprietary jurisdiction between them." The Duke of Newcastle opened negotiations with the Company, in 1863-4 with much vigour. Put after various proposals and counter-proposals including the " reconstruc- tion " of the Company, he was obliged to treat their propositions as " inadmissible." Mr. Cardwell, during his administration, could not accept their proposals " without considerable modifications." The Duke of Buckingham, after many discussions with the representatives of the Company, regietted to perceive that their proposals "did not afford much prospect of an arrangement being come to ;" and in the communication to which the letter of Sir Stafford Northcote is a reply, declared himself " unable to recommend the adoption " of the termg Klemanded by the Company. Our notice of what, in Sir Stafford Northcote's opinion, constitutes a "cheerful" Acceptance of the decision of Her Majesty's Government, would be incomplete, if we did not remind Earl Granville that the Company's "proper conditions" for the surrender of that portion of the North-Western Territories, for which they can show no title but such AS may be derived from the possession of a few trading posts, established there within the last fifty yea"rs, rose from a question of "no importance at all" in 1857, or at most, of " less money than would be spent in a litigation on this subject," (House of Commons Report, Question 5834,) to the retention, in 1863, in fee simple, of half the land proposed to be surrended, with various other conditions, including a guarantee by the Governments of Canada and British Columbia of an annual profit on the Company's expenditures for improvements on their own property ! In 1 864 these conditions took the form of a -demand, first, t? bo paid Jl, 000,000 sterling from sales of landb and mines, with large reservations " to be selected by them," etc. ; and, secondly, to be paid £1,000,000 sterling in cash, with other terms and reservations favourable to the Company. In 1868 these conditions for the surrender of territorial and governing rights over the whole territory remained at £1,000,000, as in the first proposition of 1864, with large reservations of land at "selected" points, specially exempted from taxation, and with full liberty to carry on their trade free from the export and import duties to which all other subjects of Her Majesty in that country would be exposed. In 1869 these various proposals, which no Secretary of State could possibly enter- tain, have all been apparently merged in one grand proposition to sell out " the territory at once for a sum of money," in cash or bonds, the amount of which is not stated. We content ourselves under this head with the ob.servation, that whatever others may be able to see in aii ihese transactions, we are utterly unable to discover either a cheerful acceptance of the decision of any government, or an honest disposition to fulfil the solemn pledges made to Parliament in 1857, on the faith of which the Company was unquestionably saved from judicial or legislative extinction. Sir Stafford Northcote claims credit for the Company because they have " declined to encourage overtures which have been made to them by private persons for the purchase of portions of the Company's territory wicn a view to their colonizatioi.. ' Our informa- tion is (and we can give Earl Granville names and dates, if the point is deemed of any importance) that the only " overtures " of the kind mentioned which the Company have ^received, were not merely " encouraged," but suggested and concocted by prominent mem- STATEMENT OF THE FRKNCH TITLE TO THE NOBTH-WEST TERRITORIES. 161 bers of the Oompany, llor the pur^^ose of producing aa impression on the Government, and with a view, not io colonization, but to negotiation and the stock market. We are not sure that we understand the statement of Sir Stafibrd Northcoto that the Oompany " have taken i o step which would give rise to fresh complications or place any new difficulty in the way of the admission'of their territory into the Confederation." The sale of land to private parties for colonization (assuming that bona fide offers have been received from such parties) could not give rise to much complication, except in the affairs of the Company. If Sir Stafford hints at the negotiations which were latel/ reported to be going on with certain American speculators in London for denationalizing and Americanizing the Company with a view to the " admission of their territory " into the Uiuted States, instead of the Confederation, we respectfully submit that while such a difficulty might indeed be " new," ti • proper person to solve it would be Her Majesty's Attorney-General with the aid of a court ejid jury of competent jurisdiction. We do not understand that Earl Granville ezpects us to defend in detail the Duke of Buckingham's proposals, or to answer all the objections made to them by Sir Stafford Northcote. The Government of Canada, as we have already reminded his Lordship, neither suggested the Act of Parliament nor the terms of the negotiation, which the late Secretary of State for the Colonies attempted to carry out under its authority. The Cana- -dian rlan of dealing with the question of the North- Western Territory and Rupert's Land is set forth in the address of the Canadian Parliament to Her MostGracious Majesty, ajid we do not feel at liberty, as representatives, to suggest any other mode, until we are informed by Her Majesty's Government that the one proposed is deemed impracticable. Sir Stafford Northcote's suggestion that " the payment of a sum of money " for the purchase of the territory would conduce to a more satisfactory result, is, we believe, the point upon which Earl Granville specially desires to have our views. Assuming that by " territory " he means the whole territory to which the Oompany lay claim, and that they are to continue as a trading corporation, retaining their posts, and allotments of land in their neighbourhood, as he states was agreed upon by the Duke of Buckingham and Lord Kimberley, we have to observe: — 1. This proposition involves an abandonment of the principle which two Secretaries of State (and it must be presumed, two successive administrations), declared, after much consideration, and in view of the transactions of 1857, was properly and justly applicable to this case, viz. : That the compensation should be derived from the future revenue of the territory itself, and payable only as it came into the hands of Government. This principle was also accepted by the Company in their communication of 13th April, 1864. 2. On the other hand, the principle of ascertaining and fixing a money value upon the territoral rights of the Company " in the British terri^ry east of the Rocky Mountains And north of the American and Canadian lines," and of extinguishing those rights by a payment "at once," was suggested, in 1865, by a delegation from the Canadian Govern- ment of that day, and assented to by Mr. Oardwell, then Secretary of State for the Oolonies, and his colleagues. If the latter principle and mode of settlement is now xo be adopted, it is obvious that the first question is. What is the nature of these " rights " and what territories do they affect t and the second, What are the rights, separated from the duties and burdens atliached to them by the Charter, fairly worth t We shall not attempt to answer these questions fully in the present communication, but we venture to submit for Earl Granville's consideration a few facts and inferences, which cannot, we believe, be disputed, and which are essential elements in any calcula- tion which may be attempted on the basis of a money purchase. 1. The Charter of Charles II. (and for the present we raise no question as to its validity) could not and did not grant to the Hudson's Bay Company any territory in America which was not then (1370) subject to the Crown of England. 2. The Charter expressly excluded all lands, etc, then *' possessed by the subjects of any other Christian prince or state." 3. By the treaty of St. Germain-en-Laye (1632), the King of England resigned to the Xing of France the sovereignty of Acadia, New France and Osoiada, generally, and without limits. I?. 1 i" ■" 11 Mi t Iff 162 CANADIAN DELEQATBH IN REVIEW OF PROPOSED TERMS OP TRANSFER, 1869 ; 4. " La Nouvelle Franoe " was tUeo uaderNtood to include tho wholo region of Hudson's Bay, as the maps and histories of tlie time, English and Franoh, abundantly prove. 6. At the treaty of Ryswiok (1697), tw ^n years after thodat«of tho Charter, the right of the Fronch to " plsuses Hituat(7d m xindson's Bay " was distinotly admitted ; and although commissioners were appointed (but never ame to an agreement) to " examine and determine the pretensions which either of the said kings hath to tho places situate in Hudson's Bay," und with " authority for settling tho limits and confines of the lands to be restored on either side," tho places taken from the English (t.e. from the Hudson's Bay Company) by tho French previous to the war, and " retaken by the English during this war, shall be left to the French by virtue of the foregoing (the 7th) article." In other words, the forts and factories of the Hudson's Bay Company, established in Hudson's Bay under pretence of their Charter and taken possession of by tho French in time of peace, on the ground that thoy were an invasion of French territory, were restored, by the Treaty of Ryswick, to the French, and not to the Company. 6. By the Treaty of Utrecht, 1714, " the Bay and Straits of Hudson, together with all lands, seas, sea coasts, rivers, and places situate in the Bay and Straits, and which belong thereto," were finally ceded to Great Britain. 7. As no definite boundary was ever established between the possessions of the IVench in the interior and the English at Hudson's Bay, down to the Treaty of Paris, 1763, when the whole of Canada wan ceded to Great Britain, the extent of the actual possession by the two nations for some period, say from the Treaty of Utrecht to the Treaty of Paris, affords the only rational and true basis for ascertaining that boundary. 8. The evidence is abundant and conclusive to prove that the French traded over and possessed the whole of the country known as the Winnipeg Basin and " Fertile Belt," from its discovery by Europeans down to the Treaty of Paris, and that the Hudson's Bay Company neither traded nor established posts to the south or west of Lake Winnipeg, until many years after the cession of Canada to England. 9. No other or subsequent grant to the Company was ever made which could possibly extend their territorial rights under their Charter. The license to trade in the Indian territories, which they obtained in 1821, was revoked in 1858, and has not been renewed. 10. The country which, in view of these facts, must be excluded from the operation of the Charter, includes all the lands fit for cultivation and settlement in that part of British America. It will be for Earl Granville to consider whether this Company is entitled to demand any payment whatever for surrendering to the Crown that which already belongs to it. We confess our utter inability, upon any principle of law, or justice, or public policy, with which we are acquainted^ to estimate the amount which ought to be paid under such cir- cumstances. The only basis of computation we can discover, applicable to such a case, is the coat of the legal proceedings necessary, if any be necessary, to recover possession. A person has taken possession of a part of your domain under the pretence that it is included in a deed which you gave him for some adjoining property before you purchased the domain. You want to get rid of him, but will be compelled to bring an action. He is artful, stubborn, wealthy and influential. He will be able to worry you with a tedious litigation. How many acres will you allow him to "reserve," and how much will you pay to aa\e yourself the cost and trouble of a law suiti Compromises of this kind are not unknown in privat life, and the motives and calculations which govern them may be applicable to the present case. We recommend this mode of computing the amount of the payment to be made for the surrender of the North- West Territory, as distinguished from Rupert's Land, with all the more confidence, because it has already been suggested by one of the ablest and most trusted of the representatives of the Company. ( Vide evidence of Kight Honourable E. EUice, House of Commons Report, 1857, question 5834.) With respect to Rupert's Land, or the "lands and territories," " upon the coasts and confines of the seas, bays," etc., "that lie within the entrance of the straits commonly called HudBoa's Straits," " not .possessed by the subjects of any other Christian prince or state," a diferent rule, we admit, Qiay be held to apply. Giving to the words of grant the widest construction, territorially, that could possibly be admitted by any judicial body iJ (>fiyr ;f"f ■!■■-■•/ /.Tr NATURE OF PREVIOUS PROPOSALS. 0' Trt'T ?r t rrt ? t' / . 108' ititled to demand IS with the facta of the case in evidence before it, or, giving to these words the construction which the Company themselves applied for a hundred years from the date of their Charter, the " rights " they propose to sell are of little commercial value. No revenue, we feel assured, will over bo derived from them. The fur trade is the only industry the country offers AS a source of protit, and this, if we rightly understand Sir Stafford Northooto's sug- gestion, the Company wish to retain. It has never been alleged, even by the most sanguine advocates of the new theory of the Company respecting land sales, that any revenue can be derived from that source within the limits which we have assigned to Rupert's Land. The cost of government, there, inconsiderable though it may be, will always exceed any possible revenue. We are thus led to the same conclusion as in the case of the territory claimed, but not owned, by the Company, viz., that what they propose to sell has no pecuniary or commercial value. They are there, however, by at least a show of right. Being there, they obstruct the progress of Imperial and Colonial policy, and put in jeopardy the sovereiirn rights of the Crown over one-third (and as some think, even a larger portion) of the North American Continent. " What is it worth to have this obstruction quietly removed V Tliia perhaps, the true question ; but the answer, we submit, belongs rather to Her Majesty's Government — which has the power, in the event of resistance, to jemove the evil by a summary process — than to those who are little more than spectators of the negotiation. Earl Granville is aware that several attempts have been made since 1 887 to arrive at a definite agreement on the subject of compensation. The suggestions and proposals on each side, together with the actual market value of the Company's stock at different periods, supply data which his Lordship may deem of importance ; and we therefore respectfully submit our views as to the conclusions which may be deduced from them. The first attempt of the Imperial Government to estimate, and express in pounds sterling, the compensation which it would be reasonable to offer to the Company, was made by the Duke of Newcastle in 1864. The greatest sum which, after "very grave consideration," his Grace felt himself able to propose for the surrender of the country west of Lake Winnipeg was £250,000. But the payment was subject to the following conditions : — 1. £150,000 was to be derived from the ^e of lands by the Government within the ' territory. The payment was to be made at the rate of 1«. per acre sold, but to be entirely dependent on the Government receipts. 2. Payments were to cease whenever they reached £150,000; and absolutely at the end of fifty years. 8. The company was to be paid one-fourth of the sum received by the Government for export duty on gold or for mining licenses or leases for gold-mining in the territory, for fifty years, or until the aggregate amounted to £100,000. 4. The payment of any part of the £250,000 was contingent on the ability of the Company to place Her Majesty's Government in possession of an " indisputable title " to the territory ceded by them as against the claims of Canada. The last condition was objected to by the Company on the ground that they could only give such title as they had, which they contended "must be taken for better for worse." The Duke of Newcastle renewed his offer, modifying the last condition into a stipulation that, in case it should be found advisable, the territory eastward of a line passing through Lake Winnipeg and Lake of the Woods, might be ceded or annexed to Canada, in which case nothing would be payable to the Company in respect of that territory. The present value in cash of such an offer, subject to thb conditions and contingencies specified, would be very diflScult to ascertain. The revenue from export duty on gold and for licenses would probably be ml. The revenue from land sales, if the cost of surveys, management, and necessary roads were deducted, would be nil also. It is very doubtful whether, if these deductions be made, the revenue from land sales in the Provinces of Canada, from the cession in 1763 to the present time, would show a surplua Sir S'"ifford Northcote quotes the price of land in Minnesota, and thence infers the value of lands in the Bed River and Saskatchewan districts, which lie from five to ten degrees further north and are still in the possession of the wild Indians of the plain. But L . 4 "'ill. i^Hiv e* >M y 1 K iH ' '' i: i ' % '1 I i 'I > CI 1 J % 1 4 -4--.^'- .11 , ' , -^s t t I 164 CANADIAN DELKOATEH IN REVIEW OF PROPOSED TERMS OF TRANSFER, 1869: we think it will bo found that the lands in Minnesota, whioh sell for " one pound per acre," are either private lands in tho neighbourhood of towns, or the property of railway com- panios, on or near which millions of dollars have been expended to make them saloable. They are certainly not public lands unimproved by public expenditure. Hir Statlord ought to have mentioned at the same time a fact, which we believe is known to overy emigrant who leaves the British Isles for America, that, in the Western Status of tho Union, and in the Provinces of Canada, wild landu are now given to settlers as " free grants," and we may add, this policy is more likely to be extended than reversed. T'^ talk of the value of public lands as a source of revenue, distant from one to two thousand miles from available markets, and without roads or navigable waters by which to approach them, is to con- tradict all experience, or to assume that the cost of surveys and management, and of canals, roads, and other improvements for their development and settlement, will be supplied by those who do not own them for the benefit of those who do. But in order to arrive at some result that can be expressed in figures, we will assume that the sum ascertained by the Duke of Newcastle to be a sufficient " compensation " would under his proposition, have been paid within fifty years, and at an average rate per annum. We thus give the Company the benefit of all the doubts in the case, and reduce the question to a simple problem in arithmetic : What is the present value of an annuity of £b,000 per annum for fifty years? That value, we submit, is the highest amount in cash which can be claimed as an equivalent for the ofier made to the Company in 1864, by his Oraco the Duke of Newcastle. The next offer of the Imperial Government which mentions a specific sum, is that made by his Grace the Duke of Buckingham and Chandos, on the 1st December last. It differs from the previous offer in several important particulars. 1. It embreces the whole of the territory claimed by the Company. 2. It proposes to l. low the Company to retain their " posts " and certain allotments of land in their vicinity, with a small reservation in each township as it is surveyed. 3. It proposes to allow the Company one quarter of the receipts from land (free grants being treated as Sales at 1«. per acre), and one quarter of the sum received by Government as an export duty for gold and silver. 4. It limits the amount to be received under these heads conjointly at £1,000,000 sterling. The other stipulations are unimportant for the purpose of ascertaining the cash equi- valent of the proposition. It is evident that the " unknown quantities " in this equation are as difficult to find as in the first. We know the total sum to be paid, and the proportion of the receipts from lands and mines applicable for its payment; but we do not know the average annual sum likely to be realized from their sale. The minimum price is fixed at la. per acre, and it is doubtful, if under the proposed arrangement, the price would ever bo found to exceed that sum. There is one term still to be ascertaind — the average number of acres per annum likely to be sold and granted. A crude guoss is all that the case admits of. If wo take Upper Canada, possessing many advantages for early and rapid settlement of which, unfortunately, the remote territories of the North- West are deprived, we find that from its erection into a separate province, down to 1868, about twenty -two millions of acres had been disposed of by sale and grant, or an average of about 286,000 acres per annum. Assuming that the same rate of sale, etc., is maintained in the North- West Terrri- tories (which all the old Hudson's Bay authorities who know the country, would pro- nounce a bold assumption), we have reduced the question to a simple reference to the annuity tables as before, viz., What is the present value of an annuity of X3,675 per annum for 280* years 1 We have omitted from the last term the one-fourth of the Government receipts from gold and silver, for two reasons. Ist, It has not been shown that there are any gold or * lSi.c. in the original print ; but tha figure is an evident error in copying or printbg. The figure should no doubt be 60.— G. £. L.j MATURE OF PREVIOUS PROPOSALS. 16i i; the cash equi- itlng. The figure gilvor minea In the territory that will pay for working. 2nd, All the attemptn hereto- fore mado to obtain a revenue from such sourooM, in Canada, have failed, and public opinion has forced the local Oovernnients to adopt the policy of what may be called "free mining," or cheap lauda for the minorB, and abolition of royalties and impoHtH, except to meet the cost of preserving the peace, and of surveys and necessary supervision. There is another proposition on the (Government side which bears on the question of " compensation." It results from the agreement between the representatives of the Oovornmont of Canada and Her Majesty'n Government in 1865, and containing fewer elements of uncertainty than propositions which involve questions of Government policy, emigration, land sales, etc., it can be reduced to a cash value with greater exactitude. Mr. Cardwell dtAcribes the agreement, as follows : — " On the fourth point the sub- ject of the North- Western 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 termination of their rights, on condition that the indemnity, if any,' should be paid by a loan to be raised in Canada under the Imperial guarantee. With the sanction of the Cabinet, we assented to this proposal — undertaking, that if the negotiation should be 8Ucoossf\il, we, on the part of the Crown, being satiHtied that the amount of the indemnity was reasonable, and the security sufficient, would apply to the Imperial Parliament to sanction the agreement, and to guarantee the amount." The Canadian delegates reported on the subject with a little more detail. " We ac- cordingly proposed to the Imperial Ministers that the whole British territory east of the Rocky Mountains and north of the American or Canadian lines should bo made over to Canada, subject to such rights as the Hudson's Bay Company might bo able to establish, and that the compensation to that Company (if any were feund to be due) should be mot by a loan guaranteed by Great Britain. The Imperial Government con- sented to this, and a careful investigation of the case satisfies us that the compensation to the Hudson's Bay Company cannot, under any circumstances, be onerous. It is but two years since the present Hudson's Bay Company purchased the entire property of the old Company ; they paid £1,500,000 for the entire property and assets, in which were included a large sum of cash on hand, large landed properties in British Colum- bia and elsewhere, not included in our arrangement, a very largo claim against the United States Government under the Oregon treaty ; and ships, goods, pelts, and busi- ness premises in England and Canada, valued at £1,023,569. The value of the terri- torial rights of the Company, therefore, in the estimation of the Company itself, will be easily arrived at." The principle which this agreement between the two Governments recognizes as applicable to the case, appears to be compensation in money for the ascertained rights of the Company, after deducting the value of the property retained by them. The words "if any," and " if any were found to be due " import that, in the opinion of both parties, it was possible if not probable that, after making the deductions, no compensation would be " due." The basis of tlie caloilation which seems to have been made, or agreed upon, is very simple. The old Hudson's Bay Company had recently sold all the rights and property of the Company of every description for the sum of £1,500,000. An inventory, agread to by both sellers and purchasers, set down the assets, exclusive of " Territorial Rights," as follows ; — 1. The assets (exclusive of Nos. 2 and 3) of the Hudson's Bay Company, recently and specially valued by competent valuers, at £1,023,569 2. The landed territory (not valued) 3. A cash balance of £370,000 £1,393,569 On the face of their own statement, £1,500,000, less the above sum, or £106,431, was the amount which the new purchasers actually paid for the <* landed territory." Under ■M 166 CANADIAN DELEGATES IN REVIEW OF PROPOSED TERMS OF TRANSFER, 1869. the agreement of 1865 this seems to be the highest sum which Mr. Card well and the representatives of the Canadian Qovemment thought could in any event be demanded bj th» Company, as indemnity or compensation for the surrender of the rights they " would be able to establish." We have thus attempted to convert into their equivalents in cash the two offers made to the Company since 1857 by the Imperial Government, and to ascertain the amonnt of the indemnity contemplated by Mr. Cardwell and the Canadian delegates in the arrangements of 1865. To arrive at any result, we have had to assume figures which, according to our experience, the facts of a new country will be more likely to reduce than to increase. We have also omitted conditions either implied or expressed in the proposals of 1864 and 1868, which we believe would hav^ imposed considerable expense upon the Company. There is another mode of estimating the amount to be paid, on the principle of compensating for actual loss only, which remains to be considered. The stock of the Company has for some time been quoted at an average of 13^. The capital is, nominally, £2,000,000, and the shares £20, — the value of the stock, therefore, in cash, assuming that the whole of it could be sold at the market rate, is £1,350,000, or £43,569 leas than the value, according to their own estimate, in 1863, of the Company's assets, exclusive of the "landed territory." The money obtained from the public for shares, beyond the £1,500,000 paid to the old shareholders, will no doubt be amply sufficient to make good any deficiency in the valuation of 1863. From a consideration of these data we submit, that, if the validity of the Charter is not now to be questioned ; if the territorial extent of the country affected by it is not to be defined ; if the claim of Canada to include, within her boundaries, a large portion, if not the whole, of the country occupied by the French at the time of the cession in 1763, is not to be investigated, and finally determined j if the admitted incapacity and the notorious neglect of the Company to perform the duties of government (which were part of the consideration for the rights conceded by the Charter), are not to be taken as suffi- cient, on public grounds, to justify cancellation and re-entry by the Crown, — then the very highest indemnity Mhich ought to be paid, in cash, for a surrender of the territorial claims of the Company, with the reservations and other privileges offered by his Qrace the Duke of Buckingham and Chandos, is the sum indicated by the foregoing computations. We must, in conclusion, express to Earl Granville our str6ng conviction that no money offer, which either the Imperial or the Canadian Government would deem reasonable, will be accepted by the Company, and that, to delay the organization of constitutional Government in the North- West Territory until the Hudson's Bay Company consent to reasonable terms of surrender, is to hinder the success of Confederation in British America, and to imperil the interests and authority of the British Crown in the territories now occupied by the Company. We therefore respectfully submit for Earl Granville's consideration, whether it is not expedient that the Address of the Canadian Parliament be at once acted upon, under the authority of the Imperial Act of 1867. But, if his Lordship should see any sufficient legal or other objection to that course, then wo ask, on behalf of the Dominion Government, for the immediate transfer to that Government of the " North- West Territory," or all that part of British North America, from Canada on the east, to British Columbia, Alaska, and the Arctic Ocean, on the west and north, not heretofore validly granted to and now held by " The Governor and Company of Adventurers of England trading into Hudson's Bay," by virtue of a Charter of King Charles II., issued about the year 1670. U' u."Tf'.'i We have the honour to be. Sir, Your obedient servants. Hur.XH(:.i's. Gbo. Et. Cartier. Wm. McDougall. Sir Frederic Rogers, Bart., ^>-" etc., etc., etc., ' ■' J' ' Colonial Office. i»?^®.v COBRESPONDMNCE RESPBCTINa COUNTER PROPOSALS OF CAN. DELEGATES. 167 the principle of The Uhdbr-Sboretaby to thb Govsbnob 07 thb Hudson's Bay Oomfany.* ^^ ;u'i.ix;' imai t)-ir,(/:ii aim mU '^iTit'>"qH'n ;ui!.fnirj;;ut vf; 'oi\ i.y"'.'<\ ■•rii ruoiT ', , , 22nd February, 1869. Sir, — I am directed by Earl Granville to enclose, for the information of the Directon of the Hudson's Bay Company, the copy of a letter which his Lordship has received from Sir 6. Cartier and Mr. McDougall. As the greater part of that letter relates to matters on which the Company and the colony cannot be expected to agree, and on which Her Majesty's Govern'nent has no authority to decide their diflferences. Lord Granville has felt aome doubt whether the settlement of the question would be advanced by forwarding this letter. He considers it, however, necessary to do so ; and in doing so, to explain clearly the position which he considers himself to occupy. It appears that his Lordship's predecessor entertained the hope that he would be able to arrange the terms of a compromise, under which, with consent of both parties, the sovereignty of the Hudson's Bay Company's Territory would be transferred to the Dominion of Canada. With this view his Grace made to the Company a proposal, respecting which Sir G. Cartier and Mr. McDougall write as follows : — " The proposals submitted to the Company by the late Government in the letter o£ Mr. Adderley of the 1st December last, were not made at our suggestion, although we were disposed to think (and so informed his Grace) that if the Company accepted them the Canadian Parliament might be persuaded to undertake the duties of legislation and government in the territories on the conditions specified." Your letter of the 13th iust. may be considered as a rejection of those proposals, and M thus terminating the negotiations instituted by the Duk» of Buckingham and Chandos. But in your letter you propose that the matter should be settled by the immediate payment of a fixed sum of money, or by the delivery of bonds, and you express yourself prepared to enter into further communication with Lord Granville on this subject. It is of course obvious that this negotiation for the purchase of the Hudson's Bay Company's territory is really between the seller and the buyer, the Company and the Xiolony, and Lord Granville is of opinion that if the negotiation is revived on this or any other basis. Her Majesty's Government, can, at present, do no good by assuming to fram^ or suggest terms of accommodation ; but can merely offer to act as a channel of commu- nication between these two real parties to the transaction, using its best endeavours to remove any ditficulties not inherent in the nature of the case. Acting on this view, Lord Granville communicated to Sir G. Cartier and Mr. McDougall a copy of your letter of the 13th. The enclosure to this letter is the answer which he has received. The material sentences, for the present purpose, are those with which the letter ■concludes. You will observe that the representatives of the colony state the principles on which they consider the cost of the territory should be calculated, indicating the opinion that the sum of £106,431 is the highest which could on any hypothesis properly be demanded bj the Company ; and express their strong conviction that no money offer, which either the Imperial or Canadian Government would deem reasonable would be accepted by thfe Company. Assuming this to be the case, they ask on the part of the Dominion Govern- ment either the immediate transfer of the sovereignty of the whole terrritory, subject to the rights of the Company, or a transfer of the sovereignty and property of all the territory not heretofore validly granted to, and now held by the Company under its Charter. Under these circumstances. Earl Granville directs me to communicate to you tha enclosed letter, which taken in connection with previous correspondence, appears to him (to leave little present hope of bringing matters to a settlement by way of compensation. If the Directors of the Company should still think any such arrangement possible, his Lordship will of course be prepared to transmit to the Canadian representatives anj • Seu. Papera, Can., 1869, No. 26. f ?a m ! • ' , 4I«I I ' rntl ,1* 168 CORRESPONDENCE P.SSPECTINO COUNTER PROPOSALS OF CAN. DBLBaATES. modified proposal on the part of the Company. Failing this, he thinks it proper to invite from the Directors, not any argument refipecting the true nature and extent of the Company's claims from which, as not being before a court of law, he could anticipate no result, but a statement of any objections they may have, whether of principle or detail to the two counter proposals now made by Sir G. Cartier and Mr. McDougall on behalf of the Canadian Dominion. And it might not be immaterial to add what course the Company would propose to take, for securing that life and property are adequately protected, and international obligations duly performed in their territory, so long as they remain responsible for its government. I am, Sir, your most obedient Servant, Freobrio Booers. The Right Honourable Sir Stafford Northoote, M.P. The Governor of the Hudson's Bay Company to the Under-Secretary.* Hudson's Bay House, , London, February 26th, 1869. Sir, — I have the honour to acknowledge your letter of the 22nd inst., transmitting, by Earl Granville's direction, a copy of a letter addressed to his Lordship by Sir George Cartier and Mr. McDougall, on the subject of my letter to yourself, dated the 13th ultimo. The Committee of the Hudson's Bay Company understand from your letter, that it is not Earl Granville's wish that they should enter into a discussion of the communication from the Canadian delegates, and they therefore refrain from making any comments upon its tone or criticising and correcting its assertions. If there are any of those assertions to which Earl Granville himself attaches weight, the Committee will gladly, on their being pointed out to them, offer such observations upon them as may appear to be necessary. As regards the manner in which the Canadian delegates treat the suggestions contained in my letter of the 13th ultimo, — that the Canadian Government should complete the purchase of the Company's territory at once, by the payment of a sum of money or by the delivery of bonds, — the Committee desire me to observe that they might have had gome difficulty in gathering, from the terms in which the delegates express themselves, whether they were or were not prepared to entertain that suggestion, and to open a negotiation with this Company, But as Earl Granville, who has had personal communi- cation with the delegates, is of opinion that their letter, taken in connection with previous correspondence, leaves little present hope of bringing matters to a settlement by way of compensation, the Committee are forced to adopt the conclusion that it is intended as a virtual jefusal on the part of the delegates to entertain the question in a serious spirit. Should Earl Granville at any time come to the conclusion that it is desirable that the Committee should renew the offer of fully communicating with him on the subject of a money sale which they made in my letter of January 1 3th, they will hold themselves prepared to do so. For the present, and in accordance with what they gather to be his Lordship's views, they consider this matter at an end. It becomes my duty, then, to answer Earl Granvillo's questions, (1) Whether the Committee have any objections, either of principle or of detail, to make to the " counter proposals" of Sir G. Cartier and Mr. McDougaH, and (2) What course the Company would propose to take for securing that life and property are adequately protected, and international obligations duly performed in their territory, so long as they remain respon- sible for its government. «Se88. Papers, Can., 1869, No. 26. Wi •ELEQATES. CORRESPONDENCE RESPECnNG COUNTER PROPOSALS OF CAN. DELEGATES. 169 t proper to invite id extent of the >uld anticipate no rinciple or detail agall on behalf o{ would propose to md international ^sponsible for its SRIO EOOBRS. Secret ART.* ary 26th, 1869. nst., transmitting, bip by Sir George d the 13th ultimo. our letter, that it he communication ly comments upon those assertions dly, on their being ;o be necessary. gestions contained uUl complete the n of money or by might have had jress themselves, and to open a ersonal communi- ion with previous ement by way of t is intended as a n a serious spirit. desirable that the the subject of a hold themselves f gather to be his (1) Whether the to the " counter •se the Company ly protected, and iy remain respon- With regard to the first of the two counter-proposals, viz., that the sovereignty of the whole of the territory in question should be immediately transferred to the Dominion Government " subject to the rights of the Company," the Committee desire to ask whether it is intended that the rights of the Company should be ascertained and defined before the transfer takes place, or after it. If the former be Earl Granville's intention, the Committee have no kind of objection to offer to the proposal ; but if it be meant that the transfer should take place first, and that the rights oi the Company should then be made the subject of litigation in Canada, with a right of appeal to the courts of this country, I must remark that such a course is likely to lead to much inconvenience, expense and annoyance to all parties concerned, as well as to prove detrimental to the interests of the settlement itself by the prolongation of an irritating and disturbing controversy. As regards the injustice to this Company involved in such a proposal, 1 beg leavb to refer Earl Granville to Sir E. Head's letter of the 25th January, 1868, to the Duke of Buck- ingham and Chandos, in wfiich a similar proposal is very ably discussed, and to which, and to the extracts from speeches delivered in the Canadian Parliament which it encloses, the Committee desire to invite Earl Granville's particular attention. The second counter-proposal is for a •transfer to the Dominion Government of both the sovereignty and the property of " all the territory not heretofore validly granted to, and now properly held by the Company under its Charter." Upon this proposal also the Committee desire respectfully to ask whether the limits of the territory so to be transferred are to be distinctly set out in the instrument of transfer, so that there may be no room for disputes as to the limits of the respective jurisdictions. Even with the utmost care in this respect, the Committee cannot but feel apprehensive that difficulties will arise in dealings with the Indians and with the various classes of hunters and traders frequenting those distant regions, if two different sygtems of administration are introduced into those portions of the extreme North- Western Territory which would be effected by the proposed transfer, especially as the great distance of that territory from Canada, and the difficulty of the communications, will render its administration by the Dominion Government very troublesome. Should, however. Her Majesty's Government decide on this measure, the Committee will do all in their power to arrive at a good understanding with the Dominion Government as to the details of the arrangements which should be made in the two portions of the now united territory, and to facilitate the establishment of a strong administrative system in both. As regards any transfer of the sovereignty without a distinct definition of the limits to be assigned to it, and by virtue merely of vague general words, the Committee feel that they need not point to Earl Granville that such a step would not only be open to the objections which I have already mentioned in the case of the former counter-proposal, but to the further, and very serious one that it must lead to constant conflicts of authority and to frequent political embarrassments. The Company can hardly be expected to provide for the security of life and property, and the due performance of international obligations if their boundary is left unsettled, and their title to important parts of their territory unrecognized. It is probably unnecessary for me to pursue this argument at any length. I have now to advert to the last question put by Earl Granville, — that relating to the course which the Company would propose to take for the government of their territory, so long as they remain responsible for it. The Committee desire me, in the first place, to remind his Lordship that they have no authority to give a pledge on the part of the shareholders of the Company, and that they can only undertake to submit certain proposals to them, and to use their own influence to secure their adoption. Subject to this reservation, the Committee are prepared to enter at once into communication with Earl Granville, as to the measures which should be adopted for the purpose to which he adverts. As his Lordship is aware, a resolution was agreed to by this Committee, as long ago as in August, 1863, to the effects that in the opinion of the Directors it was expedient that the authority, executive and judicial, over Red River settlement and the south-western portion of Rupert's Land, should be vested in officers deriving such authority directly from the Crown, and exercising it in the name of Her Majesty. In adopting this resolution, the Committee intended to indicate their r. ' 1. ^'f^ 1 '- ■ *■ ^J:M "1 ;•■■,■■; 170 CORRESPONDENCE BETWEEN COLONIAL OFPICH AND H. B. CO., 1869 : 5 desire for the establishment of a Crown colony in this portion of their territory. They still believe that this would be the most satisfactory plan that could be pursued, and they are prepared to discuss it with Her Majesty's Government, if they are encouraged to do so. I am to state that the Committee would be willing either to advise the surrender of «uch proportion of the Company's proprietary rights as might be found to be a fair equiva- lent for the charge which the establishment of a Crown colony would throw upon the Imperial Exchequer, or to recommend the Company, retaining its proprietary rights, to take upon itself the whole of the pecuniary burden The Committee are satisfied that a territory, which in the present undeveloped state of its communications supports a trado of the annual value of more than £400,000, and which possesses a large amount of highly fertile soil requiring no great expenditure for its clearance and cultivation, is perfectly capable of supporting the expense of any government that it may be required to maintain ; and they have little doubt that if the state of the case were fairly laid before the share- holders, and if the m jral support of the Imperial Government were distinctly assured to them, the necessary funds would readily be forthcoming. Of course, if Her Majesty's Government should be of opinion that the great objects in view could be equally well attained by the exercise of the powers actually possessed by, or which might be granted to the Company, and should consider that it would be prefer- able to adopt this method of government rather than to erect the territory into a Crown colony, the Committee would at once fall in with such a suggestion, and would request Earl Granville to state to them what establishment would, in the opinio nof Her Majesty's Government, be sufficient to meet the necessities of the case. It can hardly be necessary for me to add that, in the event of such an arrangement being made, the Company would rely upon the cordial co-operation of the Government in submitting any needful measure to Parliament, and in protecting the settlement from any trespass or interference on the part of Canada. In conclusion I am to observe that it is on many accounts important that the Directors of this Company should soon communicate to the shareholders the progress of this negotiation, and should lay the correspondence before them. They trust that Eai'l Griinville will have no objection to their doing so. iTH s iu .j'j"iri;iy!f'.i,M:.-;) I have, eta, :'. ,1 Stapfoed H. Northoote, (rovemor. ,;;, Sir Frederic Rogers, Bart., „';, ^Cuub ■i:<-n:A-u> r..:,!. . 7 .-...; -.vn i> .a v-ii; ;.,„ 3,;, Colonial Office. ■,„ ,,^,., ..,,b,,..^r vj.,„-,'.. .v..,! I ,!>, ■/ JCVl\U':'. '., •.>'•■>■• Jil, •,.!>'];( 1 'M f !."' ^if' -.III' !- Thk Undeei-Sbcbstary to the Governor of the Hudson's Bay Compabtt.* v^iii ij; ".■ .'i;^ ■:.;■:•.' ■■!! .v'^; ..t:.:i. -I..'; ruv.-" -11. iij Downing Street, 9th March, 1869. Sir, — Earl Granville has had under review the correspondence which has passed respecting the proposed transfer to Canada of the jurisdiction and territorial rights of the Hudson's Bay Company in North America. It is, in Lord Granville's opinion, of very great importance th-it this question should be settled on a permanent footing, and with little delay. He does not disguise the interest which Her Majesty's Government have in this settlement. It is not creditable to this country that any inhabited part of Her Majesty's dominions should be without a recognized Government capable of enforcing the law, and responsible tc neighbouring countries for the performance of international obligations. "The toleration of such a «tate of things in parte of the Hudson's Bay Territory is unjust to the inhabitants of that territory, and is not without danger to the peaceful relations between this country ♦ii"(h -i.M'iiliiii •;•• U i!-1 '|i ' • S«M. Papers, Cftn., 1869, No. 26. 'm- 1 !l M 1869: NEW TERMS OF SURRENDER PROPOSED BY COLONIAL SECRETARY. iii arritory. They irsued, and they )araged to do so. the surrender of be a fair equiva- throw upon the ietary rights, to 9 satisfied that a supports a trado amount of highly lion, is perfeo'tly red to maintain ; 3efore the share- inctly assured to the great objects illy possessed by, would be prefer- )ry into a Crown id would request of Her Majesty's an arrangement ,e Government in element from any hat the Directors [progress of this at Earl Granville •I 'J U> biu i'lO] NORTHCOTE, Governor. I M|i\V >^fT;U■■■■!^• .I'lj'-'llil ■•II' !■ . 1.,,. -f't .■,i :,.■ COMPABTT.* • Ill .' ii.;! ;■•: [arch, 1869. rhich has passed ■itorial rights of question should not disguise the is not creditable uld be without a tc neighbouring 'atiou of such a e inhabitants of een this country «nrl the United States ; and this danger and injustice are likely to increase in proportion aa the mining and agricultural capabilities of what is called the " Fertile Belt " begin to attract settlers from the east and south. To Canada the settlement of the question is not less important, as removing a cause of irritation between it and its neighbours, and even with the mother country itself ; as destroying an obstacle to that which has been looked upon as the natural growth of the Dominion ; as likely to open an indefinite prospect of employment to Canadian labour and enterprise ; and lastly, as enlarging the inducements which Canada is able to offer to the British immigrant. It is no small matter that it would enable Her Majesty's Government at once to annex to the Dominion the whole of British North America proper, except the colony of British Columbia. ^^^ - "' To the Hudson's Bay Company it may almost be said to be necessary. ' ' At present the very foundations of the Company's title are not undisputed. The boundaries to its territory are open to questions of which it is impossible to ignore the importance. Its legal rights, whatever these may by, are liable to be invaded without law by u mass of Canadian and American settlers, whose occupation of the country on any terms they will be little able to resist ; while it can hardly be alleged that either the terms of the charter, or their internal constitution, are such as to qualify them under aU these disadvantages for maintaining order and performing the internal and external duties of government. The prejudicial effect that all those uncertainties must have on the value of the Com- pany's property is but too evident. The interests of all parties thus evidently pointing towards an immediate and definite adjustment, Lord Granville has been most unwilling to abandon the hope of bringing it about by way of amicable compromise. He is fully alive to the difficulties of such a compromise. He does not conceal from himself that the estimate which the Company form of the nature and value of their rights is widely different from that which is formed by the gentlemen who represent Canada ; nor can he undertake to express any opinion whatever as to the relative correctness of those estimates. Indeed, it would be impossible to do so without knowing to what extent the claims of the Company would be supported by the judgment of a court of law. But after repeated communications with both parties, his Lordship is convinced that he will be serving the interests of the Dominion, of the Company, and of tuis country, by laying before the Canadian representatives and the directors of the Company a dis- tinct proposal, which, as it appears to be, it is for the interest of both parties to accept, and in support of which Her Majesty's Government would be prepared to use all the influence which they could legitimately exercise. If the proposal is really an impartial onr Lord Granville cannot expect that it will be otherwise than acceptable to both of the p < '^^ies concerned. But he is not without hope that both may find, on consideration, that if it does not give them all that they conceive to be their due, it secures to them what is politically or commercially necessary, and places them at once in a position of greater advantage with reference to their peculiar objects than that which they at present occupy. ]■.:-■. s ■■:, • . The terms which his Lordih'p now proposes are as follows : — 1. The Hudson's Bay Compr.ny to surrender to Her Majesty all the rights of govern- ment, property, etc., in Rupert's Land, which are specified in the 31 and 32 Vic, c. 105, sec. 4 \ and also all similar rights in any other part of British North America, not com- prised in Rupert's Land, Canada, or British Columbia. 2. Canada is to pay the Company £300,000 when Rupert's Land is transferred to the Dominion of Canada. 3. The Company may, within twelve months of the surrender, select a block of land adjoining each of its stations, within the limits specified in Article 1. 4. The size of the blocks is not to exceed acres in the Red River Territory, nor 3,000 acres beyond that territory, and the aggregate extent of the blocks is not to exceed 60,000 acres. 6. So far as the configuration of the country admits, the blocks are to be in the shape of parallelograms, of which the length is not more than double the breadth '■ :t1 -:im '^•■.m - ■ ...:■,■'■■ \ -1 .. .,., ■ • "i ■ i ,' ","■•■ .' ' 'i ,*if ; ■:■- -.' i' ' r': '■.M-' 17S KEW TERMS OF SURRENDER PROPOSED BY COLONIAL SECRETARY 1869 ; 6. The Hudson's Bay Company may, for fifty years after the surrender, claim In any township or district within the Fertile Belt, in which land is set out for settlement, grants of land not exceeding one-twentieth part of the land so set out : the blocks so granted to be determined by lot, and the Hudson's Bay Company to pay a ratable share of the survey expenses, not exceeding an acre. 7. For the purpose of the present agreement, the Fertile Belt is to be bounded as follows : — On the south by the United States boundary ; on the west by the Rocky Mountains ; on the north by the northern branch of the Saskatchewan ; on the east by Lake Winnipeg, the Lake of the Woods, and the waters connecting them. 8. All titles to land up to the 8th of March, 1869, conferred by the Company, are to be confirmed. 9. The Company is to ba at liberty to carry on its trade without hindrance, in its corporate capacity, and no exceptional tax is to be placed on the Company's land, trade, or servants, nor any import duty on goods introduced by them previous to the surrender. 10. Canada is to take over the materials of the electric telegrtiph at cost price, such price including transport, but not including interest for money, and subject to a deduction for ascertained deteriorations. 11. The Company's claim to land under agreement of Messrs. Yankoughnet and Hopkins to be withdrawn. 12. The details of this arrangement, including the filling up the blanks in articles 4 and 6, to be settled at once by mutual agreement. It is due, both to the representatives of Canada and to the Company, to add — that these terms are not intended by Lord Granville as the basis of further negotiation ; but a final efibrt to efiect that amicable accommodation of which he has almost despaired, but which he believes will be for the ultimate interest of all parties. If this be rejected either on behalf of the Dominion or the Company, his Lordship considers that his next step must be to procure an authoritative decision as to the rights of the Crown and the Company, and with this object he will recommend Her Majesty to refer their rights for examination to the Judicial Committee of the Privy Council, whose decision will form a basis for any future legislation or executive action which Her Majesty's Government may find necessary. Whatever may bo the result of this proposal, his Lordship desires to express his sense of the openness and courtesy which he has experienced throughout these negotia- tions, both from the representatives of Canada and from the Governor and Deputy- Governor of the Company, and the patience with which they have entertained proposals which, from their point of view, must no doubt have appeared inadequate. Lord Granville is aware that a proposal of this kind will require consideration j but he hopes that you will lose no time beyond what is necessary in acquainting him with your decision. I am, Sir, Your most obedient servant, Frederic Roqers. fti: Sir Stafibrd Northcote, Bart., etc. The Under-Secritary to the Canadian Delegates.* Downing Street, 9th March, 1869. Gentlemen, — Lord Granville transmitted to the Governor of the Hudson's Bay Company a copy of your letter of 8th February, and I enclose, by his Lordship's direc- tion, a copy of the answer which he lias received. The conclusion to which he has been led, after a careful consideration both of the correspondence which has passed and of the various representations made orally to him * Seas. Pap«r8, Can., 18G9, No. 25. H "OLUTIONS OF DIRECTORS OP H. B. CO. THKREON. 173 ly yourselves and by the Governor and Deputy-Governor of the Company, are embodied in the enclosed letter, which he has directed me to address to Sir is. Northcote, and which you will be good enough to consider as conveying to yourselves also the views of Her Majesty's Government. His Lordship is confident that you will give it your earliest attention. _ ^ , ^ His Lordship desires me to add that, in case the terms suggested in this letter flhould be accepted by the parties concerned, Her Majesty's Government would be pre- pared to fulfil the expectations held out in Mr. Card well's despatch of 17th June, 1866, and to propose to Parliament that the Imperial guarantee should be given to a loan of X300,000, the sum which is proposed to be paid over by Canada to the Company on the transfer of the Company's rights. As this is a matter, in which the Company has no interest, it is not adverted to in my letter to Sir Stafford Northcote. I am, Gentlemen, Your most obedient servant. Sir G. E. Cartier, Bart., W. McDougall, Esq. Frederic Roqirs. Resolutions op the Governor and Committee of the Hudson's Bat Company, PASSED March 12th, 1869, transmited to the Canadian Deleqateb.^ Resolved, that the Committee will recommend the shareholders to accept the pro- posal of Lord Granville, if the Canadian Ministers will agree to the' following modifications : — 1. That Canada will lay no export duty on furs. 2. That the 6th Article be modified so as to allow the Company to defer exercising their right of claiming their proportion of each township for not more than ten years after it is set out. 3. That no charges 1 > mar"::) upon the Company for the expenses of survey. * 4. That the proportion of land which they are to be allowed to claim be increased from one-twentieth to one-tenth. , .• 5. That York and Moose Factories be retained as ports of entry. 6. That Canada undertakes to pay the £300 a year now paid to the Bishop of Rupert's Land, and other charges of a public character now borne by the Company. 7. That some provision be made for referring to arbitration any question which may arise out of the agreement. u v 1' f \ I ' 1 ' ,< m ' -.'V^ H ri Jv w ■< n I eric Rogers. The Canadian Delegates to the Governor of the Hudson's Bat Compant.* Westminster Palace Hotel, ' London, March 13th, 1869. Sir, — We have the honour to acknowledge the receipt of a copy of certain resolu- tions adopted by the Governor and Committee of the Hudson's Bay Company, on the 12th inst., suggesting important modifications of the proposal of Lord Granville for the transfer of Rupert's Land to Canada. We beg you will inform the Committee that, in our opinion, the proposal of Lord Granville is mnch more favourable to the Hudson's Bay Company than any previous ; proposal of the Imperial Government, and much more onerous to Canada than its Gov- I ernnient and people have been led to expect. With great reluctance we have consented to recommend Lord Granville's proposal, if accepted by the Company pure et simple, but *Se8B. Papers, Can., 1869, No. 36. 1' II ^- t 11 A '.i.1 174 NEGOTIATIONS BETWEEN CANADIAN DELEGATES AND H. B. CO., 1869, not otherwise, to the favourable consideration of the Canadian Government. The modificationf) and additions proposed by the Committee are not, in our judgment, " details " within the purview of the 1 2th article of Lord Granville's proposal, but substantive and material changes affecting the very basis of the arrangement. We cannot, therefore, assent to them, or undertake to recommend their acceptance by the Canadian GoveAiment. We have further to observe that, in making these demands upon us, the Committee assume that the changes they propose will be accepted, or approved by the Imperial Government. If wo are correctly advised, the Committee are not warranted to make that assumption. In the letter of Sir Frederic Rogers communicating to us a copy of Lord Granville's proposal, we are assured that it conveys " the views of Her Majesty's Government ;" and in the letter conveying these views to the Company it is stated that " these terms are not intended by Lord Granville as the basis of further negotiations." It follows, we think, that Lord Granville's proposal is to be regarded as the ultimatum of the Imperial Government, and must be accepted or rejected in its entirety The Act 31 and 32 "Victoria, Chapter 105 (which was not introduced at the instance, or passed in the interest of the Canadian Government), placed the negotiatyjn of the terms of surrender by the Company to the Crown in the hands of Her Majesty's Imperial Govern- ment, where, until the Act is repealed, or the negotiation fails, we are of opinion it niu.t remain. We shall be glad to confer with you upon all questions of " detail," which by the terras of Lord Granville's proposal are left to be adjusted between the Canadian Govern- ment and the Hudson's Bay Company. -o-iq Mu i.i'.rii: .'. ..,,.>;., u:,u We have the honour to be, Sir, V,..v\.,v',\ "niv/oMo'l -jih oi wtv--- ii' Your very obedient servants, -.' i- '- .rt;.!^ IM VT!if> fKlKZ) f1.M ' '•- Sir Stafford Northcote, M.P., ^ etc., etc., etc. Geo. Et. Cartikb. Wm. MoDouqalu ■''Cilij. MJ ■''!■ OP. l)i '''^IuStAFFORD H. NoRTHOOTB. Ol Sir Geo. E. Cartier, Bart., and oiauhioo viijst/io ,l)'j)qi'(jii n .-ii'. •'}• ^\wf .pnnyr rirj) joA The Hon. Wm. MoDougall, O.B. "■ ' ''t-itiid a ii iif'unU.M'tiUi'y '.ift vfAiuu'l .- tt:Xl It having been officially announced that the North-West Territory, lately under the administration of the Hudson's Bay Company, is about to be annexed to the Dominion of Canada, and looking to the certainty of this measure being carried out, I venture to suggest tiiB propriety of your providing for an early ascertainment of the boundary line between that territory and this Province. "'vl m Deed of Surrender: The Governor and Company of Adventurers of England trading into Hudson's Bay to Her Majesty Queen Victoria. J To all whom these presents shall come unto, or concern, the Governor and Company of Adventurers of England trading into Hudson's Bay, send greeting. Whereas the said Governor and Company were established and incorporated by their said name of " The Governor and Company of Adventurers of England trading into Hudson's Bay," by letters patent granted by His late Majesty King Charles the Second, * Dom. Stat., 32 and 33 Vict., cap. 3, 1869. + Journals Leg. Abb., 1869, toI. 3, p. 2. t FreHx to Stata., Can., 1872, p. Ixsvii. Assented tr 22nd June, 1869. -^f1 m^ !■ -t^ 186 H. B. CO.'S DEED OF SURRENDER OF RUPERX's LAND, 1869. in the twenty-second year of his reign, whereby His said Majesty granted unto the said Company and their successors the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds in whatsoever latitude they should be, that lay within the entrance of the straits commonly called Hudson's Straits, together with all the lands and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid, that were not already actually possessed by, or granted to, any of His Majesty's subjects, or possessed by the subjects of any other Christian Prince or State, and that the said land should be from thenceforth reckoned and reputed as one of His Majesty's plantations or colonies in America, called Rupert's Land ; and whereby His said Majesty made and constituted the said Governor and Company and their successors the absolute lords and proprietors of the same territory, limits and places aforesaid, and of all other the premises, saving the faith, allegiance and sovereign dominion due to His said Majesty, his heirs and successors for the same ; and granted to the said Governor and Company and their successors such rights of government and other rights, privileges and liberties, franchises, powers and authorities in Rupert's Land as therein expressed. And whereas ever since the date of the said letters patent, the said Governor and Company have exercised and enjoyed the sole right thereby granted of such trade and commerce as therein mention , and have exercised and enjoyed other rights, privileges, liberties, franchises, pov i and authorities thereby granted ; and the said Governor and Company have exercised or assumed rights of government in other parts of British North America not forming part of Rupert's Land, or of Canada, or of British Columbia. And whereas by the " British North America Act, 1867," it is (amongst other things) enacted that it shall be lawful for Her present Majesty Queen Victoria, by and with the advice and consent of Her Majesty's Most Honourable Privy Council, on address from the Houses of Parliamt at cf Canada, to adn>it Rupert's I^nd and the North-Western Territory, or either of them, into the Union of the Dominion of Canada, on such terms and conditions as are in the Address expressed, and as Her Majesty thinks fit to approve, subject to the provisions of the said Act. And whereas, by the " Rupert's Land Act, 1868," it is enacted (amongst other things) that for the purposes of that Act, the term " Rupert's Land " shall include the whole of the lands and territories held or claimed to be held by the said Governor and Company, aid that it shall be competent for the said Governor and Company to surrender to Her Majesty, and for Her Majesty, by any instrument under Her Sign Manual and Signet, to accept a surrender of all or any of the lands, territories, rights, privileges, liberties, franchises, powers and authorities whatsoever, granted or purported to be granted by the said letters patent to the said Governor 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 ; pro- vided, however, that such surrender shall not be accepted by Her Majesty until the terms and conditions upon which Rupert's Land shall be admitteid into the said Dominion of Caneuia shall have been approved uf by Her Majesty, and embodied in an Address to Her Majesty from the Houses of the Parliament of Canada, in pursuance of the 1 46th section of the " British North America Act, 1867," and that upon the acceptance by Her Majesty of such surrender, all rights of government and proprietary rights, and all other privileges, liberties, franchises, powers and authorities whatsoever, granted or purported to be granted by the said letters patent to the said Governor and Company within Rupert's Land, and which shall have been so surrendered, shall be absolutely extinguished ; provided that nothing in the said Act contained shall prevent the said Governor and Company from continuing to carry on in Rupert's Land, or elsewhere, trade and commerce. And whereas Her said Majesty Queen Victoria and the said Governor and Company have agreed to terms and conditions upon whicli the said Governor and Company shall surrender to Her said Majesty, pursuant to the provisions in that behalf in the " Rupert's Land Act, 1868," contained, all the rights of government and other rights, privileges, liberties, franchises, powers and authorities, and all the lands and territories (except and subject as in the said terms and conditions' expressed or mentioned) granted or purported to be granted by the said letters patent, and also all similar rights which have been exercised or assumed by the said Governor and Company in any parts of British North America not forming part of Rupert's Land, or of Canada, or of British Columbia, in H. B. CO.'S DEED OF SXJRRENDER OF RUPERT's LAND, 1869. m order and to the intent that, after such surrender has benn effected and accepted under the provisions of the last-mentioned Act, thd said Rupert's Land may be admitted into the Union of the Dominion of Canada, pursuant to the hereinbefore mentioned Acts or one of them. And whereas the said terms and conditions on which it has been agreed that the said surrender is to be made by the said Governor and Company (who are in the following articles designated as the Company) to Her said Majesty are as follows, that is to say :— 1. The Canadian Government shall pay to the Company the sum of £300,000 sterling, when Rupert's Land is tcansferred to the Dominion of Canada. 2. The Company to retain all the posts or stations now actually possessed and occupied by them, or their officers or agents, whether in Rupert's Land or any other part of British North America, and may within twelve months after the acceptance of the said surrender select a block of land adjoining each of their posts or stations, within any part of British North America, not comprised in Canada and British Columbia, in con- formity, except as regards the Red River Territory, with a list made out by the Company and communicated to the Canadian Ministers, being the list in the annexed schedule. The actual survey is to be proceeded with, with all convenient speed. 3. The size of each block is not to exceed in the Rod. River Territory an amount to be agreed upon between the Company and the Governor of Canada in Council. 4. So far as the configuration of the country admits, the blocks shall front the river or road by which means of access are provided, and shall be approximately in the shape of parallelograms, and of which the frontage shall not be more than half the depth. 5. The Company may, at any time within fifty years after such acceptance of the said surrender, claim in any township or district within the ferule belt in which land is set out for settlements, grants of land not exceeding one-twentieth part of land so set cut, the blocks so granted to be determined by lot, and the Company to pay a rateable share of the survey expenses, not exceeding eight cents Canadian an acre. The Company may defer the exercise of their right of claiming their proportion of each township or district for not more than ten years after it is set out, but their claim must be limited to an allotment from the lands remaining unsold at the time they declare their intention to make it. 6. For the purpose of the last article the fertile belt is to be bounded as follows : — On the south by the United States' boundary ; on the west by the Rocky. Moun- tains ; on the north by the northern branch of the Saskatchewan River ; on the east by Lake Winnipeg, the tjake of the Woods, and the waters connecting them. 7. If any township shall be formed abutting on the north bank of the northern branch of the Saskatchewan River, the Company may. take their one-twentieth of any such township, which, for the purposes of this article, shall not extend more than five miles inland from the river, giving to the Canadian Dominion an equal quantity of the portion of land coming *o them of townships established on the southern bank of the said river. 8. In laying out any public roads, canals or other public works, through any block of land reserved to the Company, the Canadian Government may take, without compensa- tion, such land as is necessary for the purpose, not exceeding one-twenty-fifth of the total acreage of the block ; but if the Canadian Government require any Ian i which is actually under cultivation, which has been built upon, or which is necessary for giving the Company's servants access to any river or lake, or has a frontage to any rivor or lake, the said Government shall pay to the Company the fair value of the same, and shall make compensation for any injury done to the Company or their servants. 9. It is understood that the whole of the land to be appropriated within the meaning of the last preceding clause, shall be appropriated for public purposes. 10. All titles to land up to the eighth day of March, one thousand eight hundred and sixty-nine, conferred by the Company, are to be confirmed. 11. The Company is to be at liberty to cany on its trade without hindrance in its corporate capacity ; and no exceptional tax is to be placed on the Company's land, trade, or servants, nor any import duty on goods introduced by the said Company previously to such acceptance of the said surrender. m '-M "MP , ■ (■ J'"^'.' :. ' •:' k^A : ■ !5 ^Jt:-' ■ '.;t i *!' • ' A' fr I* ^ 1 ' ',:| i ^ if * ^ _ 1 ( iffS ^ k'liili l4* p 188 SCHEDULB TO H. B. CO.'S DflBED OF 8UBRKKDIR OF RUPRBT's LAXD, 1869. 12. Oanada is take orer the materials of the nlectrio telegraph at cost price ; such price including transport, but not including interest for money, and subject to a deduction for ascertained deterioration. 13. The Company's claim to land under an ag:rjement of Messrs. Vankoughnet and Hopkins is to be withdrawn. 14. Any claims to Indians to compensation for lands required for purposes of settle- ment shall be disposed of by the Canadian Government in communication with the Imperial Government ; and the Company shall be relieved of all responsibility in respect of theia And whereas the surrender hereinafter contained is intended to be made in pursuance of the agreement, and upon the terms and conditions hereinbefore stated. Now know ye, and these presents witness, that in pursuance of the powers and pro- visions of the " Rupert's Land Act, 1868," and on the terms and conditions aforesaid, and also on condition of this surrender being accepted pursuant to the provisions of that Act, the said Governor and Company do hereby surrender to the Queen's Moat 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 ; and also all similar rights which may have been exercised or assumed by the said Governor and Company in any parts of British North America, not forming part of Rupert's Land or of Canada, or of British Columbia, and all the lands and territories witiiin Rupert's Land (except and subject as in the said terms and conditions mentioned) granted or purported to be granted to the said Governor and Company by the said letters patent. In witness whereof, the Governor and Company of Adventurers of England trading into Hudson's Bay, have hereunto caused their Common Seal to be affixed, the nineteenth day of November, one thousand eight hundred and sixty-nine. THK SCHEDULB ABOVE REFERRED TO. - Northern Department, Rupkbt's Land. ..'. Red Biver. . IKstrict. Post. i ■ i Acres of Land. ISncHHh HiTAF Isle k la CroBse 50 Rapid River 5 Portatre JjSk Lioche 20 say 10 acres each end of Portage. 100 Cold Lake 10 ^:M \-.,U:A:.r- .:■•;„,. .. Deer's Lake Cdmonton Mouse 5 SaflkAtohewan 3,000 Rocky Mountain House Fort Victoria 500 3,000 St. Paul 3,000 ..f-^: ' ': •<>.-_,■ Fort Pitt 3,000 ■ <: c. - ■ { ■ . Battle River 3,000 . Carlton House 3,000 3,000 500 Fort Albert., Whitefish Lake ■-■>■»■'.• *', ..■ ' Lac La Biche 1,000 . , 50 ■: I i.l. II Lesser Slave Lake Lac Ste. Anne Lac La Nun . ... St. Albert 500 500 ' , 500 ■ ■ ■ 1,000 ■-■>'•, ■■- "■■;,"" Piffeon Lake 100 . ' ■ ■■ Old White Mud Fort Cumberland House Fort La Cocue 50 Gnntberlaod 100 3,000 ;-. rv-:^-»-Ti :■ ,:, Pelican Lake 60 y- --^w-.- - - .'■ • 1,000 25 ThePa* i.l.. 8CH1IDULE TO H. fi. CO.'S DEED OF SURRENDER OF RUPERT'S LXND, 1869. 189 ost price ; sach t to a daduotion ,nkoughnet and Lrpoaes of settle- 'ith the Imperial respect of theiu. de in pursuance powers and pro- is aforesaid, and ovisions of that 3 Moat Gracious rties, franchises, d Governor and irles the Second ; ned by the said forming part of B and territories tions mentioned) )y the said letters iirers of England to be affixed, the ish BWer District. District. Cumberland . Sw»n RiTer , Red River. Pott Moose Lake Grande Rapid Portage Fort Pelly Fort Ellice Q'Appelle Lalces . Touchwood Hills. Shoal River Manitobah Fairford Upper Fort Garry To Mtinitobah Lake . . . Portage L» Prairie LftkeLaPluie .... and *0WD of Winnipeg Lower Fort Garry (includ- ing the farm the Company now have under cultiva- tion) White Horse Plain J Oak Point York Norway House Fort Alexander .... Fort Frances Eagle's Nest I>ig Island Lao du Bonnet Rat Portage Shoal Lake Lake of the Woods Wbitefish Lake .... English River Hungry Hall Trout Lake Clear Water Lake . . Sandy Point York Factory , , Churchill Severn Trout Lake . Oxford Jackson's Bay God's Lake . . . Island Lake . Norway House. Bereiis River . . Grand Rapid . . Nelson's River . Total in Northern Department . Acre6 of L*nd. 60 100 3,000 3,000 2,500 600 60 60 100 60 acres at each end of Portacs. 4,326 acres in Cumberland Distriot 9,200 acres in Swan Rirer Distriot. ( Such number of acres as may be agreed upon between the Company andf the uoremor of Canada in Counoil. i 60 1,000 600 600 20 20 20 60 20 60 20 20 20 20 20 20 100 10 10 10 100 10 10 10 1,060 1,300 acres in Lae La Fluie District. 100 260 25 10 10 146 '■iiit'' \-^ i1 *2,l']0 icm. catohewan District. AW)aiiy East Miiiii MoHse Southern Department, Rupert's Land. Albany Factory . Martin's Falls . . Osnaburg Lac Seul Little Whale River Great Whale River Fort George Moose Factory . . Hannah Bay.... Abitibi New Brunswick . 100 10 25 500 60 50 25 100 10 10 26 636 12C 14S 190 SCHEDULE TO U. B. CO.'S DEED OF SURRENDER OF RUPERT'S LAND, 1869. Diitriot. Port. Aeret of Land. Rupert's River .... RuDdrt's H0U86 60 , MirtaiwinK TemiBkamay 10 10 • Woswonaby Mechiskun Pike Lake 10 .( 10 V 10 - * \ Nitcheauou KamapiBoan Matawagamique 10 V. 10 i..^^— • 190 Kinoiruniissee 60 Kuokatooah Southern Department 10 60 ''..••,■ Totalin 1,085 acres. • Montreal Department, Rupsrt's Land. Ill" Superior Temiacaminque . Labrador. Ill Long Lake .... Kakababeagino Fort Nascopie Outpoata, ditto Fort Chimo(Ungava). South River. Outpogts. George's River Whale River North's River False River . . . Total in Montreal Department 10 10 75 25 100 30 60 60 25 26 20 380 400 aorei. Athabasca McEensie's River. Northern Department, North-Wkst Tbrbitobt Fort Chippewyan 10 Fort Vermilion 600 Fort Dunvegan 50 Fort St. John's 20 Forks of Arthabaaca River. 10 Battle River 6 Fond du Lac 6 SaltRiver 6 Fort Simpson . . . . Fort Liard . . . . . . Fort Nelson The Rapids Hay River Fort Resolution . . Fort Rae Fort du Lac Fort Norman . . . Fort Good Hope . Peel's River Lapierre's House. Fort Halkett . . . . 100 300 200 100 20 30 10 10 10 10 10 10 100 605 acres in Athabaaka District. 900 acres in McKenzie's R. District. Total in North- West Territory 1,605 acres. RECAPITULATION. Acres. Northern Department, Rupert's Land 42,170 Southern do do 1,085 Montreal do do * 400 Northern do North-West Territory . ..« 1,606 46,160 1869. CORRESPONDENCE RESPECTINO DISTURBANCES AT R. R. SETTLEMENT, 1869. 191 .- !i TEI.BORAM — The Govbrnor-Qbnbral, Sir John Youno, to Lord Oranvillb, Colonial Secretary.* Ottawa, November 23rd, 1869. Mr. MoDougall, designated Lieutenant-Governor of North-West Territory, after transfer, is stopped on the way to Fort Garry by small armed force of insurgent half- breeds. The Hudson's Bay Company authorities, in whom government still rests, are seemingly powerless and inactive. Half-breeds have appointed Provisional Committee of Government ; John Bruce, president. Governor McTavish very ill, said to be dying. Telkoram — The Governor-General, Sir John Young, to Lord Granville, Colonial Secretary.* Ottawa, November 27th, 1869. Your telegram received and considered by Privy Council. On surrender by Company to Queen, the government of Company ceases. The responsibility of administration of affairs will then i^est on Imperial Government. Canada cannot accept transfer unle:is quiet possession can. be given. Anarchy will {oUow. B«bels have taken possossicm of Fort Garry, and it is said are using the stores of Company. A change of feeling is hoped for, and till then the governing power should remain with present authorities. My advisers think Proclamation should be postponed. Mr. MoDougall will remain near frontier, waiting favourable opportunity for peaceable ingress. Parties having influence with Indians Und half-breeds are proceeding to join McDougall. John Young. ii »•■? The Colonial Secretary to the Governor-General.* aska District. mzie's B. District. Acres. 42,170 1,085 400 1,606 46,ie0 Downing Street, , 30th November, 1869. Sir, — I have received, with much regret, your telegraphs of the 23rd and 27tli instant, informing me that disturbances have occurred in the Red River Settlement, and that Canada cannot accept the transfer of the Territories hitherto occupied by the Hudson's Bay Company, unless quiet possession can be given. It becomes necessary, under these circumstances, to recall to you the state of this question. Although Her Majesty's Government have long desired that the title of the Hudson's Bay Company to these Territories should be extinguished, yet this extinction has been uniformly pressed forward by and in the interests of Canada. On the 11th of November, 1864, a Committee of the Executive Council of Canada expressed themselves "more than ever impressed with the importance of opening up to settlement and cultivation the lands lying between Lake Superior and the Rocky Mountains," and expressed the opinion that the first step towards settlement was the extinction of all claim by the Hudson's Bay Company to proprietary rights in the soil or exclusive right of trade. By Mr. Card well's despatch of the 17th June, 1866, it appears that tho Ministers of the then Province of Canada desired that the North-West Territory should be made over to that Province, and undertook to negotiate with the Company for the termination of their rights. - * Sess. Papers, Can., 1870, No. 12. t M tn 192 CORRKSHONDENC.K BEHPFX.'TINO D1STURUANCK8 AT R. R. HKTTLEMEN:, 1869 I!!'' til 1 On the 22nd of June, 1866, the Executive Council of Canada expreHsed the opinion that the most inviting parts of the territory would Hhortly be peopled by persons whom tho Company were unable to control, and who would establish a Government and tribunals of their own, and assert their political independence ; that such a community would cut British North America in two, and retard or prevent their communication by railway, and, therefore, that " the future interests of Canada and all British North America were vitally concerned in the immediate establishment of a strong Government there, and in its settlement as a part of the British colonial system." They express their conviction that the Confederate Government and Legislature will feel it to be one of their first duties to open negotiations with the Company for the transfer of their claims to the territory which, but for the approach of Confederation, they would themselves have done. And meantime they pray Her Majesty's Government to discountenance and prevent any such sales of any portion of the territory as had thnn been proposed to its existing proprietors. By the Act of Parliament which effected Confederation, the Queen was authorized on certain terms to annex these territories to the Dominion. These powers the Canadian Parliament prayed her to exercise. Her Majesty's Government were unable to concur in the terms on which the transfer was proposed to be made ; but after prolonged nego- tiations and the passing of a second Act of Parliament, fresh terms were agreed upon between the Hudson's Bay Company and the representatives of the colony, and wore embodied in a second address from the Canadian Parliament. The other : ""quisite instruments have been prepared, and the Canadian Government itself has named, first, the 1st October, and next, tho Ist of December, for the completion of the transfer. Meanwhile the Company have been informed, by the agents of the Canadian Government (Messrs. Baring and Glyn), that the indemnity of .£300,000 will be paid on due proof of the completion of their surrender. Throughout these negotiations it has never been hinted that the Company is to be bound to hand over its territory in a state of tranquillity. Rather its inability to secure that tranquillity, and the dangers resulting from that inability to the neighbouring colony, is taken for granted as a reason why its responsibilities should be adopted by Canada. This being tho state of the case, the Canadian Government, in anticipation of the transfer, now agreed on by all parties, undertook certain operations in respect of land, subject in the first instance to a faint protest from the Company, and directed the future Lieutenant-Governor to enter tho territory. The result, unfortunately, has not met the expectations of the Colonial Government. Mr. McDougall was met, it appears, by armed resistance, and the disturbances caused by his presence seem to have resulted in the plunder of the Company's stores, and the occupation of Fort Garry by the insurgent portion of the population. But the Canadian Government having, by this measure, given an occasion to an outburst of violence in a territory which they have engaged to take over, now appear to claim the right of postponing indefinitely the completion of their engagements to the Company, and of imposing on Her Majesty's Government the responsibility of putting down the resistance which has thus arisen. This, at least, I understand from the passages "on surrender by the Company to the Queen of Great Britain, the government of the Company ceases," and "Canada cannot accept the transfer unless quiet possession can be given." You will, however, perceive on referring to the Act of Parliament 31 and 32 Vict, cap. 105, that if, on the one hand, the Parliament of Canada embodies in an address the terms on which they are prepared to receive Rupert's Land into the Dominion : and if, on the other hand, tho Company surrenders their territory on terms agreed on with Her Majesty, it merely remains for Her Majesty, first, by acceptance of the surrender, and next, by Order in Council, to give effect to the arrangement thus agreed to by both parties ; and it is provided that the surrender of the territory becomes null and void, unless, within a month of its acceptance by the Queen, Rupert's Land is, by such Order in Couucil admitted into the Dominion of Canada. You will see, therefore, that it is impo^ible for Her Majesty to accept the surrender h:. 1869 : ed the opinion porsons whom tvernment and h a ooiumunity imunication by British North rig Oovernment Legislature will >tnpany for the Oonfedoration, v'h Governmont ory as had thon was authorized irs the Canadian inable to concur prolonged nego- are agreed upon lolony, and wore other requisite baa named, first, of the transfer, lian Government I on due proof of Company is to be aabiiity to secure Hie neighbouring i be adopted by iticipation of the 1 respect of land, rected the future has not met the the disturbances pany's stores, and ,n occasion to an er, now appear to gagements to the libility of putting Company to the "Canada cannot t 31 and 82 Vict. in an address the )ominion : and if, rreed on with Her ,he surrender, and kgreed to by both les null and void, is, by such Order ■cept the surrender •0 V. t ■> PROPOSED POSTPONEMENT OF TRAN8FEB IN COimfi^W''^ 193 =^ "-^ 7i . of the Hudson's Bay Company's territory unless it is certain within a month to be transferred to Canada. Unless, therefore, it is to b« so transferred, it must remain under the jtlrisdiotion of the Company, and liable to all the disorders which uru to be expected when the prestige of a Governmont, long known to be inadequate, is shaken by the . knowledge that it is alHO expiring, and by the appearance, however well intended, of its successor. This is not a state of things in which Her Majesty's Government ought to acquiesce, if they havu'the power of preventing it. The British Government is, by the Act of Parliament, practically invested with the power, and therefore the duty, of giving effect to what has been deliberately agreed upon between the Company and the colony. If, after all that has paused, the Company present their surrender and claim its acceptance by Her Majesty as a means of enabling them to enforce obligations which it is too late to repudiate, and for the fulfilment of which the Canadian Government has itself fixed a time, I do not see how it is possible for Her Majesty's Government to reject their application on the grounds put forward by your Ministers. I am lad to see that they are doing what they can to assist in the restoration of order, I I should not have been surprised to learn that, while completing the transactiui ^tractically, as between themselves and the Company, they were desirous of choosing their own moment for a public announcement of the change of jurisdiction. But while Her Majesty's Government would have been ready to acquiesce in any such short postponement of ' he formal Act of transfer, they do not feel that they are at liberty to treat the transit ion as capable of being re-opened, or that they can refuse an application from the Com] -iiy to complete a transfer which appears to them, not merely the only moans of providing for the restoration of order, but also to be due as a matter of mere justice to one of the parties. Her Majesty's Government have reason to believe that the Hudson's Bay Company feel it to be their interest, and it is their wish, to assist to the extent of their power the Govftrnment of the Dominion; and I have to instruct you to impress strongly upon your Mini8';ers, the anxious desire of Her Majesty's Governmont to make the authority of the Queei available in their support. I have the honour to be, Sir, Your most obedient, humble servant, Granvillb. Governor-General The Rt. Hon. Sir John Young, Bart., G.C.B., G.C.M.G., etc., etc., eta. Report of a Coumitte.1 of the Privy Cooncil, Canada, dated the 16th December, 1869.* The Committee of Council have had before them the despatch of the Right Hon. the Secretary of State for the Colonies of the 30th ult., on the subject of the two telegrams sent by your Excellency on the 23rd and 27th ult., to the Colonial Office, on the subject of the disturbances in the Red River Settlement. The Committee readily acknowledge the correctness of the narrative in the despatch of the proceedings which resulted in the final arrangements for the transfer of the North- western Territory to Canada. The circumstances which created the desire of the Government and people of Canada to acquire that country, have been so often and so recently stated, that they do not seem to require reiteration. It was alike the interest of Her Majerty's Government, Canada, and the Hudson's Bay Company, that the transfer should be made. Canada still desires to acquire the territory, and is quite ready to perform all the obligations that she has m* n J^VX' tx-i -ii • Sou. Papert, Can., 1A70, No. 13. 13 194 DISTURBANCES AT RED RIVER SETTLEMENT, 1869 incurred under the recent arrangements made with Her Majesty's Government and the Company for the completion of the transfer. At the same time, it would seem clear that if Canada is bound to accept the tranufer of the territory, the Company is equally bound to make it. It surely was never contem- plated by any oi. ohe parties engaged in the negotiations that the transfer was to be a mere interchange of instruments. It must, from the nature of things, have been under- stood by all parties, that the surrender by the Company to the Queen, and the transfer by Her Majesty to the Dominion, was not to be one of title only. The Company was to convey not only their rights under the charter, but the territory itself of which it was in possession, and the territory so conveyed was to be transferred by Her Majesty to Canada, That there would be an armed resistance by the inhabitants to the transfer was, it is to be presumed, unexpected by all parties j it certainly was so by the Canadian Government. In this r \'5;\rd, the Company cannot be acquitted of all blame. They had an old and fully org&:!;aed Government in the country, to which the people appeared to render ready obedience. Their Governor was advised by Council, in which some of the leading residents had teats. They had every means of information as to the state of feeling existing in the country. They knew, or ought to have known, the light in which the proposed negotiations were v'awed by the people under their rule. If they were aware of the feeling of discontent, they ought frankly to have stated it to the Imperial and Canadian Govern- mints. If they were ignorant of the discontent, the responsibility of such wilful blindness on the part of their officers must rest upon them. For more than a year these negotiations have been actively proceeded with, and it was the duty of the Company to have prepared the people under its rule for the change- to have explftined the precautions taken to protect the interests of the inhabitants, and to have removed any misapprehensions that may have existed among them. It appears that no .iteps of any kmd, in tliat direction, were taken. The people have been led to suppc>f.e that they have been sold to Canada, with an utter disregard of their rights and positioii. When Governor McTavish visited Canada in June last, he was in communication with the Canadian Government, and he never intimated that he had eve. % suspicion of discontent existing, nor did he make any suggestions as to the best mode oi' effecting the proposed change, with the assent of the inhabitants. Lord Granville states that "Throughout those negotiations, it has never been hinted that the Company is to be bound to hand over its territory in a state of tranquillity, Rather its inability to secure that tranquillity, and the dangers resulting from that inability to the neighbouring colony, is taken for granted as a reason why its responsi- bilities should be adopted by Canada," Now the obvious reason why no express stipulation to that effect was made was, that it was assumed, by all parties, that the Company had both the right and the power to hand over the territory. It was in a state of tranquillity, and no suggestion was made of the possibility of such tranquillity being disturbed, Canada did not allege, nor did the Company admit, any inability on the part of the latter to secure the tranquillity of the country in its present condition. It is true that Canada had pointed out that in the future, with the population of the United States rapidly pressing forward towards the boundaries of the North-West territory, such pressure would soon overflow into British x-erritory, and that the Company would, in such case, be unable to govern or control the large and alien population which might then take possession of the fertile country along the frontier. But this state of things has not yet arisen, and the resistance comes n,ot from any strangers or new comers, but from those born and brought up under the government of the Company, and who have hitherto yielded it a willing allegiance. These statements are not made as a matter of complaint against the Company, hut simply as a justification of the course taken by the Canadian Government, which is observed upon in the despatch. That course has been governed solely by a desire to carry out the transfer under the arrangement in the quietest and best manner possible ; and in a way that will not leave behind it any cause for discontent or disquiet in the future. CANADIAN PROPOSAL FOR POSTPONEMENT OF TRANSFER IN CONSEQUKNOa. 195 rnment and the The resistance of these misguided people is evidently not against the Sovereignty of Her Majesty or the Qovernment of the Hudson's Bay Company, but to the assumption of the government by Canada. They profess themselves satisfied to remain as they are, and that if the present system of government were allowed to continue, they would at once disperse to their homes. It is obvious, then, that the wisest course to pursue is, for the present, to continue the authority of the Company, which the insurgents affect to respect, while steps are being taken to remove the misapprehensions which exist, and to reconcile the people to the change. Any hasty attempt by the Canadian Government to force their rule upon the insurgents would probably result in armed resistance and bloodshed. Every other course should be tried before resort is had to forca If life were once lost in an encounter between a Canadian force and the inhabitants, the seeds of hostility to Canada and Canadian rule would be sown, and might create an ineradicable hatred to the union of the countries, and thus mar the future prosperity of British America. If anything like hostilities should commence, the temptation to the wild Inditun tribes, and to the restless adventurers who abound in the United States (many of them with military experience gained in the late civil war), to join the insurgents, would be almost irresistible. Already it is said that the Fenian organization look upon this rising as another means of exhibiting their hatred to England. No one can foresee the end of the complications that might thus be occasioned, not only as between Canada and the North-West, but between the United States and England. From a sincei ^ conviction of the gravity of the situation, and not from any desire to repudiate or postpone the performance of any of their engagements, the Canadiaui Government have urged a temporary delay of the transfer. This is not a question of money — it may be one of peace or war. It is one in which the present and future prosperity of the Britisli possessions in North America is involved, wliich prosperity hasty action might permanently prejudice. Even were the £300,000 paid over, the impolicy of putting an end to the only constituted authority existing in the country and compelling Canada to assert her title by force would remain. It is better to have the semblance of a government in the country than none at all. While the issue of the Proclamation would put an end to the government of the Hudson's Bi^y Company, it would not substitute government by Canada therefor. Such a govern- ment is physically impossible until the armed resistance is ended, and thus a state of anarchy and confusion would ensue, and a legal status might be given to any Government de facto, formed by the inhabitants for the protection of their lives and property. On a review of the whole circumstances, the Committee would recommend that your Excellency should urge upon Her Majesty's Government the expediency of allowing matters to remain as they are until quiet is restored, or, in case of failure of all effort to do so, the time should have arrived when it is possible to enter the country in force, and compel obedience to Her Majesty's Proclamation and authority. As by the terms of the late Act, the surrender to the Queen must be followed, within a month, by Her Majesty's Order in Council, admitting Rupert's Land into the Dominion of Canada, the proper course seems to be that the surrender itself should be postponed, and that the purchase money should remain on deposit meanwhile. The Committee would also request your Excellency to assure Lord Granville, that the Government here have taken, and are taking, active measures to bring about a happier state of affairs. They have sent on a mission of peace to the French half-breeds now in armB, the Very Reverend Mr. Thibault, Vicar-General (who has laboured as a clergyman among ♦hem for thirty-nine years), accompanied by Colonel de Salabery, a gentleman well acquainted with the country, and with the manners and These gentlemen are fully informed of the beneficent Government, and can disabuse the minds of the people of by designing foreigners. ly,,,. .-^qf ? +>? .^) » ,.,f , 'Ti i. ? : feelings of the inhabitants. intentions of the Canadiiai the misrepreaentations made 'A ( 4 ,\ iiM 196 COKRESPONDENCE BESPECTIKG DISTURBANCES AT B. B. SETTLEMENT, 1869 : They have also sent Mr. Donald A. Smith, the Chief Agent of the Hudson's Bay Company, at Montreal, as a Special Commissioner. From his position as an officer of the Company, he is likely to obtain ready access to Port Garry, where he can strengthen the hands of Governor McTavish (now weakened by long illness), and arrange with the loyal and well-affected portion of the people for a restoration of order. It is confidently hoped that the measures taken will succeed, but in the event of failure, the Government are making preparations, by the construction of boats, and otherwise, for sending a military force in early spring. In these efforts the Canadian Government are glad to believe that they will have the hearty co-operation of Her Majesty's Government, and the Hudson's Bay Company, John A. Maodonald. 16th December, 1869. The Governor of the Hudson's Bay Company to the Under-Secretary.* Hudson's Bay House, London, December 28th, 1869. Sir, — I am desired by the Committee of the Hudson's Bay Company to transmit to you, for the informa*-.ion of Earl Granville, copies of the several communications named in the accompanying lists, some of which have been already privately forwarded to hij Lordship, t The Committee regret extremely the unfortunate occurrences described by Mr. McTavish. They are most anxious to co-operate with Her Majesty's Government in any measures which Earl Granville may think it expedient to adopt with a view to the restoration of order, and the settlement of the Territory. They sincerely trust that these objects may be attained without the employment of force, and above all without a coliision between the different sections of the population of the Red River Settlement, feeling assured that the effects of any such collision would be very disastrous to the prosperity of the country. At the same time they desire me to express to Earl Granville their conviction that it is most undesirable to leave matters in their present undefined position. The Company's authority which (as Lord Granville is aware) has long been exercised under a sense of difficulty, has been greatly weakened by the steps which have been taken for the transfer of the country to the Dominion of Canada; a transfer which, according to the arrangements publicly and officially announced, ought to have been formally completed on the Ist instant. On the other hand, the authority of the Dominion has not yet been established ; and the announcement that the Dominion Government intend to withhold the purchase money, and therefore, of course, to abstain from accepting the responsibility of government until the present troubles are at an end, must naturally deprive their action of any force. The Committee cannot recognise, in the circumstances which have occurred, any reason for the Dominion Government delaying the performance of the engagements into which they have entered, under the sanction of Her Majesty's Government, with this Company, and they trust that Earl Granville will take measures for giving immediate effect to that engagement, formally placing the Settlement under the charge of the authority which must be responsible for its good government, and at the same time causing the stipulated price of the land to be handed over to the Company. ■ 1 I have, etc., Stafford H. Northcotb, Governor. Sir F. Rogers, Bart., etc., etc., etc., Colonial Office. )*• 1>SU«. ,V'v>r7n-- Go^crncr-Ger *SeM. Pkpen, Can., 1870, No. 12. t [These relate to the diBturbanees in the Red Rirer Settlement.— Q. E. L.] PROPOSED POSTPONEMENT OF TBANFEB IN CONSEQUENCE. 197 Thk Umder-Sbobetart to thb Gk)vsENOR or the Hui/soir'a Bat Ookpant."' Maodonald. i-Secretary.* Do WKiNG, Street, 8th January, 1870. Sir, — I am directed by Earl Qranyille to acknowledge the receipt of your letter of the 28th of December, relating to the disturbances which have occurred in the Eed River Settlement, and urging that the arrangements for the transfer of the territories may proceed, and the stipulated price be paid over to the Hudson's Bay Oompany without delay. Lord Granville desires me to inform you, that he has lately received from the Governor-General of Canada, a Minute of the Privy Oounoil of the Dominion, conveying the expression of their views on the present position of the Canadian Government in regard to this question. In this Minute, the Canadian Government repeat the expression of their desire to acquire the territory, and of their readiness to perform all the obligations incurred by Canada under the recent arrangements for the completion of the transfer. They urge a temporary delay in proceeding with the transfer, from a conviction of the gravity of the present situation, and not from any desire to repudiate or postpone the performance of any of their engagements. They submit that the government of the Company, which the inhabitants have been accustomed to respect, should be continued while steps are being taken to remove the misapprehensions which exist, and to reconcile the people to the change. They point out, that any hasty attempt by the Canadian Government to force their rule on the insurgents might load to bloodshed, and sow an ineradicable hatred to the union of the countries, and thus mar the further prosperity of British North America|; and they represent that even were the purchase money paid over to the Company at once, it would not the less remain impolitic to put an end to the only existing authority in the country, and compel Canada to assert her title by force. They inform Lord Granville that they are taking active measures to bring about a happier state of affairs. They have sent on a mission of peace to the French half-breeds, now in arms, the Very Revd. Mr. Thibault, Vicar-General (who has laboured as a clergymen among them for thirty-nine years), and also Colonel de Salabery, a gentleman well acquainted with the country, and with the manners and feelings of the inhabitant^ They have also sent Mr. Donald A. Smith, the Chief Agent of the Hudson's Bay Company, at Montreal, as a Special Commissioner. From his position as an officer of the Company, the Committee anticipate that he will obtain ready access to Fort Garry, and that he will be able to strengthen the hands of Gk>vemor McTavish, and arrange with the loyal and well-affected portion of the people for a restoration of order. The Committee express their confident hope that these measures will succeed ; but, in the event of failure, the Canadian Government are making preparations for sending a military force in the early spring. Lord Granville desires me to add that the reasons given by the Canadian Government for delaying the transfer, weighty in themselves, become practically conclusive, when it is considered that Her Majesty's Government and the Hudson's Bay Company must alike look to that Government for the practical accomplishmont of the transfer, and that they appear, in fact, to be conducting it in the spirit which Her Majesty's Government approve, and which is most calculated to avoid that injury to the trade of the Company which Mr. McTavish anticipated from any violent meMures. Lord Granville, moreover, learns from the law officers of the Crown, that, although it would be competent to Hor Majesty's Government to complete the transfer by accepting the surrender of the Company, and issuing the requisite Order in Council, yet this acceptance would not place the Company in a position to obtain, by any legal process, the sum of ^300,000 recently depos" '^d by Mr. Rose for the purpose of being available for their payment ; and considering that even after the surrender is completed, questions may possibly arise, or further arrangements may have to be made, between the Hudson's Bay t/ompany and the Canadian Government, his Lordship believes that a short delay in the * S«M. Papers, Can., 1870, No. 13. i. ' i 1 ^ J "* S i iitl ■'1 ml * t. !l ^ i > , I r ,' ':! 1 198 ACT ESTABLISHING THE PROVINCE OF MANITOBA, 1870. I (• M'i f ^ completion of the contract, however in itself inconvenient, may be more than compensated by ensuring that the surrender is finally effected with the full consent and agreement of both parties interested. I am, etc., F. ROOBRS. The Right Honourable Sir Stafford H. Northcote, Bart., etc. The Oolonial Sbobktart to thb ( tbbnor-Genbbal.* DowyiNQ Strbst, 8th January, 1870. No. 134, Nov. 26th, 1869. SiR, — I have the honour to acknowledge the receipt of your " 148* ' ° llth " despatches noted in the margin, relating to the recent disturbances " 156,' •' 17th* " in the Red River Settlement. In the despatch No. 166 you TT ri^^S Ti f^"*' " ®^°^08® copy of the Minute of the Privy Council of Canada^ I)^'28th, Iseg!™'^*"^' coivejing their views on the p> mt position of the Canadian Colonial Office, Jan. 8th, Government in regard to the transfer of the Hudson's Bay ^^'^- Company's territories to Canada. I transmit, for your information, a copy of u letter on this subject, which has been received from the Hudson's Bay Company. together with a copy of the answer which I have caused to be returned to it. * * * \The remainder omitted as being irrelevant. — G. E. L.] J I have, etc., Granville. Governor-General, The Rt. Hon. Sir John Young, Bart., G.C.B., G.C.M.G., etc., eto., etc. An Act to Amend and Continue the Act 32 and 33 Victoria, Chapter 3 j and t'^ Establish and Provide for the Government of the Province of Manitoba, t (Extract.) Whereas it ia probable that Her Majesty the Queen may, pursuant to the " British. North America Act, 1867," be pleased to admit Rupert's Land and the North- Westera Territory into the Union or Dominion of Canada, before the next session of the Parliament of Canada : And whereas it is expedient to prepare for the transfer of the said territories to the (Government of Canada at the time appointed by the Queen for such admission : And whereas it is expedient also to provide for the organization of part of the said territories as a Province, and for the establishment c a Government therefor, and to make provision for the civil government of the remaining part of the said territories, not in- cluded within the limits of the Province : Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : 1. On, from and after the day upon which the Queen, by and - . '■h the advice and consent of Her Majesty's Most Honourable Privy Council, under the auJ jrity of the 146th section of the " British North America Act, 1867," shall, by Order in Council in that behalf, admit Rupert's Land and the North- Western Territory into the Union or Dominion of Canada, there shall be formed out of the same a Province, which shall be one of the Prov- inces of the Dominion of Canada, and which shall be called the Province of Manitoba, and be bounded as follows : that is to say, commencing at the point where the meridian of ninty-six degrees west longitude from Greenwich intersects the parallel of forty-nine degrees north latitude; thence due west along the said parallel of forty -nine degrees north latitude * 8ei8. Papers, Can., 1870, No. 12. t Dom. Stat., 33 Vic, Cap. 3. Assented to 12fch May, 1870. ACT ESTABLISHING THE PROVINCE OF MANITOBA, 1870. 199 Granville. Senate and House (which forms a portion of the boundary line between the United States of America and the said North- Western Territory) to the meridian of ninety-nine degrees of west longi- tude ; thence due north along the said meridian of ninety-nine degrees west longitude, to the intersection of the same with the parallel of fifty degrees and thirty minutes north latitude ; thence due east along the said parallel of fifty degrees and thirty minutes north latitude to its intersection with the before-mentioned meridian of ninety-six degrees west longitude ; thence due south along the said meridian of ninety-six degrees west longitude to the place of beginning. 2. Oii, from and after the said day on which the Order of the Queen in Council shall take effect as aforesaid, the provisions of the "British North America Act, 1867," shall, except those parts thereof which are in ut^rms made, or by reasonable intendment, may be held to be specially applicable to, or only to affect one or more, but not the whole of the Provinces now composing the Dominion, and except so far as the same may be varied by this Act, be applicable to the Province of Manitoba, in the same way, and to the Vke extent as they apply to the several Provinces of Canada, and as if the Province of Mani- toba had been one of the Provinces originally united by the said Act. 30. All ungranted or waste lands in the Province shall be, from and after the date of the said transfer, vested in the Crown, and administered by the Government of Canada for the purposes of the Dominion, subject to, and except and so far as the same may be affected by, the conditions and stipulations contained in the agreement for the surrender of Rupert's Land by the Hudson's Bay Company to Her Majesty. 31. And whereas it is expedient, towards the extinguishment of the I lian title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-lireed residents, it is thereby enacted, that, under regulations to be from time to time made by the Governor-General in Council, the Lieutenant-Governor shall select such lots or tracts in such parts of the Province as he may deem expedient, to tlie extent aforesaid, and divide the same among the children of the half-breed heads of families residing in the Province at the time the said transfer to Canada, and the same shall be granted to the said children respectively, in such mode and on such conditions as to settlement and otherwise as the Governor-General in Council may from time to time determins. 32. For the quieting of titles, and assuring to the settlers in the Province the peace- able possession of the lands now held by them, it is enacted as follows : — (1) All grants of land in freehold made by the Hudson's Bay Company up to the eighth day of March, in the year 1869, shall, if required by the owner, be confrmed by grant from the Crown. (2) All grants of estates less than freehold in land made by the Hudson's Bay Com- pany up to the eighth day of March aforesaid, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown. (3) All titles by occupancy with the sanction and under the license and authority of the Hudsrri's Bay Company up to the eighth day of March aforesaid, of land in that part of the Province in which the Indian title has been extinguished, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown. 34. Nothing in this Act shall in any way prejudice or affect the rights or properties of the Hudson's Bay Company, as contained in the conditions under which that Company surrendered Rupert's Land to Her Majesty. 35. And with resj>ect to such portion of Rupert's Land and the North-Western Territory, as is not included in the Province of Manitoba, it is hereby enacted, that the Lieutentant-Governor of the said Province shall be appointed, by Commission under the Great Seal of Canada, to be the Lieutenant-Governor of the same, under the name of the North- West Territories, aiid subject lo the provisions of the Act in the next section men- Honed. 36. Except as hereinbefore is enacted and provided, the Act of the Parliament of Canada, passed in the now last session thereof, and entitled " An Act for the Temporary Government of Rupert's Land, and the North-Western Territory when united with Canada," is hereby re-enacted, extended and continued in force until the first day of January, 1871, and until the end of the session of Parliai nt then next succeeding. m -tU.| 200 IMP. ORDER IN COUNCIL UNITING RUPERT'S LAND AND N.-W. TO DOM., 1870. Imperial Order in Ooukcii. for the Admission of Rupert's Land and the North- western Territory into the Dominion.* At the Court at Windsor, the 23rd day of June, 1870. Present : The Queen's Most Excellent Majesty. Lord President Lord Privy Seal. Lord Chamberlain. Mr. Gladstone. Whereas by the "British North America Act, 1867," it was (amongst other things) enacted that it should be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the North- Western Territory, or either of them, into the Union on such terms and conditions in each case as should be in the Addresses expressed, and as the Queen should think fit to approve, subject to the provisions of the said Act. And it was further enacted that the provisions of any Order in Council in that behalf should have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland : And whereas by an Address from the Houses of the Parliament of Canada, of which Address a copy is contained in the Schedule to this Order annexed, marked A, Her Majesty was prayed, by and with the advice of Her Most Honoui-able Privy Council, to unite Rupert's Land and the North- Western Territory with the Dominion of Canada, and to grant to the Parliament of Canada authority to legislate for the future walfare and good government upon the terms and conditions therein stated : And whereM by the " Rupert's Land Act, 1868," it was (amongst other things) enacted that it should be competent for the Governor and Company of Adventurers of England trading into Hudson's Bay (hereinafter called the Company) to surrender to Her Majesty, and for Her Majesty, by any instrument under Her Sign Manual and Signet to accept a surrender of all or any of the lands, territories, rights, privileges, liberties, fran- chises, powers and authorities whatsoever, granted or purported to be granted by certain letters patent therein recited to the said Company within Rupert's Land, upon such terms and conditions as should be agreed upon by and between Her Majesty and the said Company ; provided, however, that such surrender should not be accepted by Her Majesty until the terms and conditions upon which Rupert's Land should be admitted into the said Dominion of Canada should have been approved of by Her Majesty and embodied in an Address to Her Majesty from both the Houses of the Parliament of Canada, in pursuance of the 146th section of the " British North America Act, 1867." And it was by the same Act further enacted that it should be competent to Her Majesty, by Order or Orders in Council, on Addresses from the Houses of the Parliament of Canada, to declare that Rupert's Land should, from a date to be therein mentioned, be admitted into and become part of the Dominion of Canada : And whereas a second Address from both the Houses of the Parliament of Canada has been received by Her Majesty praying that Her Majesty will be pleased, under the previsions of the hereinbefore recited Acts, to unite Rupert's Land on the terms and con- dititins expressed in certain Resolutions therein referred to and approved of by Her Majesty, of which said Resolutions and Address copies are contained in the Schedule to this Order annexed, marked B, and also to unite the North- Western Territory' with the 'Oominion of Canada, as prayed for by and on the terras and conditions contained in the hereinbefore first recited Address, and also approved of by Her Majesty : And whereas a draft Surrender has been submitted to the Governor-General of Canada containing stipulations to the following effect, viz. : — 1. The sum of £300,000 (being the sum hereinafter mentioned) shall be paid by the • Prefix to Statutes of G»nada, 1872, p. IxiiL rnor- General of IMP. ORDER IN COUNCIL UNITINa RUPERT'S LAND AND N.-W. TO DOM., 1870. 201 Canadian Goyernment into the Bank of England to the credit of the Company within six calendar months after acceptance of the surrender aforesaid, with interest on the said sum at the rate of five per cent, per annum, computed from the date> of such acceptance until the time of such payment. 2. The size of the blocks which the Company are to select adjoining each of their forts in the Bed River limits, shall be as follows : — Acres. Upper Fort Garry and town of Winnipeg, including the enclosed park around shop, and ground at the entrance of the town 600 Lower Fort Garry (including the farm the Company now have under cultivation) 600 White Horse Plain 600 3. The deduction to be made as hereinafter mentioned from the price of the materials of the electric telegra'^/h, in respect of deterioration thereof, is to be certified within three calendar montha from such acceptance as aforesaid by the agents of thd Company in charge of the depots where the materials are stored. And the said price is to be paid by the Canadian Government into the Bank of England to the credit of the Company within six calendar months of such acceptance, with interest at the rate of five per cent, per annum on the amount of such price, computed from the date of such acceptance until the time of payment. And whereas the said draft was on the fifth day of July, one thousand eight hundred and bixty-nine, approved by the said Governor-General in accordance with a Report from the Committee of the Queen's Privy Council for Canada ; but it was not expedient that the said stipulations, not being contained in the aforesaid second Address, should be included in the Surrender by the said Company to Her Majesty of their rights aforesaid or in this Order in Council. And whereas the said Company did by deed under the seal of the said Company, and bearing date the nineteenth day of November, one thousand eight hundred and sixty-nine, of which deed a' copy is contained in the schedule to this order annexed, marked C, surrender to Her Majesty all the rights of government, and other rights, privileges, liberties, franchises, powers and authorities granted, or purported to be granted to the said Company by the said letters patent herein and hereinbefore referred to, and also all similar rights which may have been exercised or assumed b> the said Company in any parts of British North America not forming part of Rupert's Land, or of Canada, or of British Columbia, and all the lands and territories (except and subject as in the terms and conditions therein mentioned) granted or purported to be granted to the said C ^mpany by the said letters patent : And whereas such surrender has been duly accepted by Her Majesty, by an instru- ment under her Sign Manual and Signet, bearing date at Windsor, the twenty-second day of June, one thousand eight hundred and seventy : It is hereby ordered and declared by Her Majesty, by and with the advice of the Privy Council, in pursuance and exercise of the powers vested in Her Majesty by the said Acts of Parliament, that from and after the fifteenth day of July, ono thousand eight hundred and seventy, the said North- Western Territory shall be admitted into and become part of the Dominion of Canada upon the terms and conditions set forth in the first hereinbefore recited Address, and that the Parliament of Canada shall, from the day aforesaid, have full power and authority to legislate for the future welfare and good government of the said territory. And it is further ordered that, without prejudice to any obligations arising from the aforesaid approved Report, Rupert's Land shall, from and after the said date, be admitted into and become part of the Dominion of Canada upon the following terms and conditions, being the terms and conditions still remaining to be performed of those embodied in the said second Address of the Parliament of Canada, and approved of by Her Majesty as aforesaid : — 1. Canada is to pay to the Company £300,000, when Rupert's Land is transferred to the Dominion of Canada. 2. The Company are to retain the posts they actually occupy in the North-Western :A ■ - 'm ■ -. -m ■:\\. '^"^1 i:.j/| '^ ! ■■■ Vi !; ^ittiii rtli-i ,_i§ >■■ : ' i; ■!,i!' 202 IMP, ORDER IN C!OUNCIL UNITING RUPBRT'S LAND AND N.-W. TO DOM., 1870. Territory, and may, within twelve raouths of the surrender, select a block of land adjoining each of its posts within aiiy part of British North America not comprised in Canada and British Columbia, in conformity, except as regards the Red River Territory, with a list made out by the Company and communicated to the Canadian Ministers, being tko list in the Schedule of the aforesaid Deed of Surrender. The actual survey is to be proceeded with, with all convenient speed. 3. The size of each block is not to exceed [10] acres round Upper Fort Garry ; [300] acres round Lower Fort Garry ; in the rest of the Red River Territory a number of acres to be settled at once between the Governor in Council and the Company, but so that the aggregate extent of the blocks is not to exceed 60,000 acres. 4. So far as the configuration of the country admits, the blocks shall front the river or road by which means of access are provided, and shall be approximately in the shape of parallelograms, of which the frontage shall not be more than half the depth. 6. The Company may, for fifty years after the surrender, claim in any township or district within the Fertile Belt, in w hich land is set out for settlement, grants of land not exceeding one-twentieth part of tie land so set out. The blocks so granted to bo determined by lot, and the Company to pay a rateable share of the survey expenses, not exceeding 8 cents Canadian an acre. The Company may defer the exercise of their right of claiming the proportion of each township for not more than ten years after it is sol out ; but their claim must be limited to an allotment from the lands remaining unsold at the time they declare their intention to make it. 6. For the purpose of the last Article, the Fertile Belt is to be bounded as follows : — On the south by the United States' boundary ; on the west by the Rocky Mountains ; on the north by the northern branch of the Saskatchewan ; on the east by Lake Winni- peg, the Lake of the Woods, and the waters connecting them. 7. If any township shall be formed abutting on the north bank of the northern branch of the Saskatchewan River, the Company may take their one-twentieth of any such township, which for the purpose of this Article shall not extend more than five miles inland from the river, giving to the Canadian Dominion an equal quantity of the portion of lands coming to them of townships established on the southern bank. 8. In laying out any public roads, canals, etc., through any block of land reserved to the Company, the Csoiadian Government may take, without compensation, such land as is necessary for the purpose, not exceeding one twenty-fifth of the total acreage of the block J but if the Canadian Government require any land which is actually under culti- vation, or which has been built upon, or which is necessary for giving the Company's ser- vants access to any river or lake, or has a frontage to any river or lake, they shall pay to the Company the fair value of the same, and shall make compensation for any injury done to the Company or their servants. 9. It is understood that the whole of the land to be appropriated within the meaning of the last preceding clause shall be appropriated for public purposes. 10. All titles to land up to the eighth day of March, one thousand eight hundred and sixty-nine, conferred by the Company are to be confirmed. 11. The Company is to be at liberty to carry on its trade without hindrance in its corporate capacity, and no exceptional tax is to be placed on the Company's land, trade or servants, nor any import duties on goods introduced by them previous to the surrender. 12. Canada is to take over the materials of the electric telegraph at coat price— such prici including transport, but not including interest for money, and subiect to a deduction for ascertained deterioration. 13. The Company's claim to land under agreements of Messrs. Vankoughnet and Hopkins is to be withdrawn. 1 4. Any claims of Indians to compensation for lands required for purposes of settlement shall be disposed of by the Canadian Government in communication with the Imperial Government ; and the Company shall be relieved of all responsibility in respect of them. 15. The Governor in Council is authorized and empowered to arrange any details that may be necessary to carry out the above terms and conditions. And the Right Honourable Earl Granville, one of Her Majesty's principal Secretaries of State, is to give the necessary directions herein accordingly. , ,...,.,. , «., 1870. PROPOSED IMP. LEGISLATION FOR KSTABLISHMENT, ETC., OF PROVINCES. 203- ilock of land comprised in rer Territory, inisterB, being urvey is to be Garry ; [300] imber of acres )ut so that the front the river ly in the shape jpth. I any township grants of land » granted to be y expenses, not tercise of their years after it is jmaining unsold 3d as follows ; — cky Mountains; by Lake Wiuni- of the northern ,wentieth of any :e than five miles ty of the portion of land reserved jation, such land al acreage of the ually under culti- le Company's ser- they shall pay to r any injury done ithin the meaning light hundred and hindrance in its pany's land, trade to the surrender. i cost price— such iect to a deduction Vankonghnet and poses of settlement with the Imperial in respect of them. arrange any details rincipal Secretaries SOHBDDLBB. [R^erred to in the foregoing Order in Cckviieil.] Schedule (A). [Address to Her Majesty the Queen from the Senate and House of Commons of Canada, to be found in order of date, December 16th and 17th, 1867, ante, p. 128.] 'VI v" Schedule (B). 1. Resolutions. [Reoolutions of the Senate and House of Commons of Canada, to be found in order of date, May 28th, 1869, arUe, p. 182.] 2. Address. [Address to Her Majesty the Queen from the Senate and House of Commons of Canada, to be found in order of date, May 29th and Slst, 1869, ante, p. 183.] Schedule (C). [Deed of Surrender, the Hudson's Bay Company to Her Majesty Queen Victoria, to be found in order of date, 19th November, 1869, ante, p. 185.] Report of Minibtbr op Justice advising Imperial Legislation for Confirmation op Manitoba Act and for authorizing the Establishment and the Alteration OF THE Limits of Provinces.* Department of Justice, Ottawa, Dec. 29th, 1870. The undersigned has the honour to report to your Excellency that during the last session of the Oi^nadian Parliament, while the Act 33 Vic, cap. 3, providing for the establishment and government of the Province of Manitoba was under consideration, the question was raised as to the power of Pa.liament to pass the Act, and especially those of its provisions which gave the right to the Province to have representatives in the Senate and House of Commons of the Dominion. " The British North America Act, 1867," provides that : "The Queen in Council on address from the Houses of Parliament of Canada, may admit Rupert's Land and the North-Western Territory, or either of them, into the Union on such terms and conditions as are in the address expressed, and as the Queen thinks fit to approve, subject to the provisions of this Act ; and any Order in Council in that behalf shall have effect as if it had been enacted by the Parliament o^ the United Kingdom." The address, which was passed by the Parliament of Cana- *, contained no provision* with respect to the future government of the country, the only terms and conditions con- tained in it being those agreed upon between the Hudson's Bay Company and Canada as the conditions of their surrender of their Charter to Her Majesty. Even if the terms of the address had included a new constitution for the North-West, it must, under the above cited s(!ction, have been .>5ubject to the provisions of the Imperial Act of Union. The Rupert's Land Act, 1868, passed by the Imperial Parliament, provides (5 Section) for the admission of Rupert's Land (but not of the North-Westem Territory) into the ^■■IIMII ^.1 ^-1. I I. ..II.. II. I I I l.l I I . ■ ^, ■ I * Sesa. Papers, Can., 1871, No. 20. 5, \ '1 ',1 in. M \H 3HHHI mm .;,r .;,y« them. July 14th, 1P71. J. 8. Maodokald. Tub Libutenant-Govbrnob op On'^ario to thk Secbetakt or State, Canada.* GOVBRNHBNT HoUSE, Toronto, 17th July, 1871. Sir, — I have the honour to call your attention to the necessity which exists for the -settlement of the true boundary or division line separating the Province of Ontario from what is known as the North-West Territory. The imp'^rtance of accomplishing this object has been recognized both by the House of Commons and the Legislature of this Province, and appropriations made by them for defraying the expense of a Commission for that purpose, one member of which to be appointed b; His Excellency the Governor-General and the other by myself. As the season is fast advancing, it is desirable that these appointments be made at as early a date as possible. It would be superfluous to urge the necessity of having the boundary line in question ascertained without delay. Numbers of emigrants and others are now making their way from Thunder Bay towards Red River, and, when on the route, require to be protected. With that view it is necessary that the limits of the territory, over which the authority of this Government extends, be clearly defined, as well as of that over which the Government for the North- West Territory holds jurisdiction. I would add that this Government, on the appointment of the Commissioners, will be prepared tp agree to joint instructions to be given them as their guide in executmg the task to be assigned to them. I have the honour to be, Sir, Your obedient servant. Hon. Secretary of State (Provinces), Ottawa. W. P. HoWLA^TD. • Sesa. Papers,- Ont., 1873, No. 44, p. 3. r, 1871 : APPOINTMENT OF rfoUNDABY COMMIflSIONEa ON BEHALF OF DOMINION. J07 ;en by them in it. Itthereforfl ixoelloaoy and early w pos- for which the ging the early rs of omigranta juires that they )f tluB Oovern- e remark would ellency will be this memoran- appointed, will ide in executing Iaodohald. ATB, Canada.* July, 1871. iich exittts for the 6 of Ontario from oth by the House [imde by them for [r of which to be Uelf. [nts be made at as line in question |)m Thunder Bay y, over which the that over which Immissi oners, will luide in executing HOWLAND. Tub Skorrtary of State to tub Likutinant-Govbknoh.* Dbpabtmbnt of Sborbtahy of Statb for thb Provinobs, Ottawa, 20th July, 1871. Sir, — I have the honour to acknowledge the receipt this morning of your despatch, 1^0. 101, of the 17th instant, calling attention to tho nocessity which exinta for dutining the trun boundary or division lino separating the Province of Ontario from the North- West Territories. Your despatch will be brought under the early notice of His Excellency the Oovernor-Qeneral in Council. I have the honour to be, Sir, Your most obedient anrvant, J. Howl. Hon. W. P. Howland, O.B., Lieutenant-Governor, Toronto. Report op a Oommitteb of tub Privy Council, approved by tub Qovbrxor- Qeneral on the 28th July, 187 l.f On the application of the Government of the Province of Ontario, requesting the Dominion Government to appoint a Commissioner to act with the Commissioner of the Ontario Government, to determine the boundary line between Ontario and the North- West Territories, The Hon. tho Minister of Public Works reports that Parliamert voted at its last session the sum of fifteen thousand dollars ($15,000) to pay one half of the cost of survey- ing the said boundary line, and recommending that a Commissioner be appointed, and that the said Commissioner be Eugene E. Tach^, Esquire, of the city of Quebec. The Committee submit the above recommendations for your Excellei.-^y's approval. Certified. Wm. H. Lbb, Chrk, P. C. • The Sbcrbtary of State to the Lieutenant-Governor, t Department of Secretary of State for the Provinces, Ottawa, Slst July, 1871. Sir, — "With reference to your despatch, No. 101, of the 17th instant, I have the honour to inform you that his Excellency the Governor-General in Council has been pleased to appoint Eugene E. Tach6, Esquire, of the City of Quebec, to be a Commissioner to act, on behalf of the Dominion, with the Commissioner to be appointed by the ■(lovernment of Ontario, to determine the boundary line between that Province and the North-West Territories. I have the honour to be. Sir, Your obedient servant, Hon. W. P. Howland, C. B., Lieutenant-Governor, Toronto. J. Howe, Secretary of State for tlie Provinces. *Se88. Papers, Ont., 1873, No. 44, p. a t Beturn, House of Oommons (Canada), dated 19th March, 1881, No. 37, p. 2. tSess. Papers, Ont., 1873, No. 44, p. 4. ¥^Wi .'11 'v5 \: ^.;? 208 APPOINTMENT OP BOUNDARY COMMISSIONEB ON BEHALF OF ONT., 1871. ':,in Minute of Council, Ont., approved by the Lieutenant-Govbrnob on the 19th September, 1871.* The Commit^e of Oouncil have had under consideration a communication of the Secretary of State for the Provinces, dated Slst July last, in reply to your Excellency's- despatch of the 17th of the same month, in relation to the appointment of a Commission, one member of which should be appointed by the Dominion, and the other by the Ontario Government, to determine the boundary line between the Province of Ontario and the North-West Territories, in which the Secretary of State announces that Eugene E. Tach6, Esquire, of the city of Quebec, has been named, on the part of that Qovernment, as its Commissioner for that purpose, and the recommendation of the Honourable the Attorney- General, dated 18th September, 1871, in respect thereto. The Committee advise that a Commiasioner, to act for and on behalf of the Ontario Government, le appointed by your Excellency, to confer with and act in the premises with the Dominion Commissioner, and they further respectfully advise that it be an instruction to the said Commissioner to report concerning the western as well as the northern boundary of this Province, and the territory of the Dominion, and that the Honourable William McDougall, C.6., be the said Commissioner for this Province. Certified. Toronto, 18th September, 187L J. G. Scott, C. E. C. ^ V < The Assistant Provincial Secretary to the Honourable William McDougall.* Toronto, September 20th, 1871. Sir, — I am commanded by His Excellency the Lieutenant-Governor, to inform you that an Order in Council has been passed to the effect that a Commissioner shall be appointed to act on behalf of this Province in the matter of the settlement of the boundary line between Ontario and the North- West Territories. Mr. Eugene E. Tach^, of the city of Quebec, has been appointed Commissioner on behalf of the Government of the Dominion, and His Excellency has been pleased to name you cj a Commissioner to act in conjunction with that gentleman. I am to request that you will signify to this Department your determination as to the acceptance! of His Excellency's nomination at your earliest convenience. I have the honour to be, Sir, Your obedient servant, Hon. W. McDougall, O.B,, Toronto. T. C. Pattbson, A$8iatant-Secretary. The Lieutenant-Governor to the Secretary of State.! Government House, ■ ' Toronto, 21st September, 1871. Sir, — With reference to correspondence that has passed on the subject of a Com- mission to settle the boundary line between Ontario and the North- Weot Territories, * Seas. Papers, Ont, 1873, So. 44, p. 4. f Ibid, p. 6. APPOINTMENT OF ONTARIO AND DOM. BOUNDABT COMMISBIONBHS, 1871. 209 ON THE 19th ■mination as to the I now have the honour of informing you that I have appointed the Hon. William McDougall, O.6., etc., etc., Commissioner on behalf of this Province, to cooperate with Mr. Tach^, the nominee of His Excellency the Governor-General in Council. I have the honour to be. Sir, Your obedient servant, The Hon. the Secretary of State, Ottawa. W. P. HOWLAND. Hb. MoDougall to thb Asbistakt Fbovinoial Sborbtart.* Toronto, September 22nd, 1871. Sib, — ^I have the honour to acknowledge your communication of the 20th inst, informing me that His Excellency the Lieutenant-Governor has heen pleased to appoint me, under an Order in Council, Commissioner for the Province of Ontario, in the matter of the settlement of the boundary line between Ontario and the North-West Territories. I beg to inform you, in reply, that I accept the appointment, and shall be ready to enter upon the duties of the Commission at any moment. I have the honour to be, Sir, Your obedient servant. T. 0. Patteson, Assistant-Secretary, etc. W. MoDouoALL. The Acting Undek-Seoretaby op State to the Lieutenant-Govebnob.* Department of the Seobitabt of State for the Pbovinces, Ottawa, 26th September, 1871. Sir, — I have the honour to acknowledge the receipt of your despatch of the 2lBt instant, stating, with reference to previous correspondence on the subject, that you had appointed the Hon. William MoDougall, C.B., a Commissioner on behalf of the Province of Ontario, to co-operate with the Commissioner appointed by the Dominion Gbvern- ment to determine the boundary line between that Province and the North-West Territories. I have the honour to be, Sir, Your obedient servant. Hon. W. P. Howland, C.B., Lieutenant-Governor, Toronto. G. Powell, For the Under-Secretary. •jy 4 Rbport of Col. Dennis, Dominion Surveyor-General, prepabed at the request of Sir John A. Macdonald.! Ottawa, 1st October, 1871. Remarks on the question of the boundary between the Province of Ontario and the Dominion Lands or North-West Territories. i 14 * Sets. Papers, Ont., 1873, No. 44, p. 6. t Report, Ho. of Coma. Oommittee, 1880, p. 1. \^ H ; I ! ft n^ t: ''., ■ '■ 210 REPORT OF THE DOMINION SURVEYOR-GENERAL ON THE BOUNDARY, 1871. 1. The above limit is identical with the westerly boundary of the Province of Quebec as the same was fixed by the Quebec Act in 1774.*' 2. In describing the boundary of Quebec, in the Act referred to, having commenced at the Bay of Chalenrs and continued westerly to the north-west angle of the Province of Pennsylvania, it goes on in the following language : " And thence along the western boundary of the said Province (Pennsylvania) until it strikes the River Ohio, and along the bank of the said river westward to the banks of the Mississippi, and northward to tht $ouihern boundary of the territory granted to the Merchant Adventurers of England trad- ing to Hudson's Bay."\ 3. The above phraseology (underlined), in describing the westerly boundary of Que- bec, has been, and is still, interpreted in different wayn according to the private opinions or prejudices of psirties. • 4. Those interested in locating the boundary of Ontario as far as possible to the west, argue that the term " to the banks of the Mississippi and northward to the south -n bouridary of the territory , etc., etc.," means that in going northward, the banks of itio Mississippi are to be followed to its source, and that they were in fact so intended in the Act. 5. On the other hand, it is contended, in the interest of the Dominion, that the language " to the banks of the Mississippi," simply means to the banks of the said river at the point where it is joined by the Ohio, and the words which ioWoyr," and northward to the southern boundary, etc.," was intended to be construed as upon a due north line. 6. There is no evidence forthcoming which would show clearly what was intended by the Act, I and in considering the question, therefore, we are left to draw conclusions from co-relative circumstances ; a consideration of these have led the writer to believe that a due north line from the forks of tKe Ohio was intended as the westerly boundary of Quebec, in support of which he would submit :— 7. Had such not been the intention, that is to say, had it been intended that the Mississippi River should be the west boundary, inasmuch as the evident intention to make the Ohio River the southern boundary, west of Pennsylvania, was thus definitely expressed : " arid along the banks of the said river westward to the banks of the Mississippi ;" then such intention would have been expressed in corresponding terms, that is to say, the boundary would have been described as "northward along the banks of the Mississippi, etc., etc., etc." 8. This argument has the more force from the fact stated as follows : — The Bill, as submitted to the House, described the boundaries as " heretofore part of the territory of Canada in North America, extending southward to the banks of the River Ohio, west- ward to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the Merchant Adventurers, etc., etc." 9. Mr. Burke, in the interests of the Provinces of New York and Pennsylvania moved in amendment (the House being in Committee) to substitute the following for tL boundary, viz. : after North America "by a line draw etc., etc., etc., to the north-wtit part of the boundary of Pennsylvania, and down the west bovmda/ry of that Province by a line drawn tJience till it strike the Ohio." The above words were inserted.§ 10. Then followed another amendment, which was adopted, and after "Ohio" should be inserted " and along the bank of the said Ohio." Now, had the banks of the Mississippi been intended to be adhered to in going " north- wards," is it not clear that the necessity of an amendment to that effect would similarly have made itself evident at the time, and does not the abaence of any reference to the * [S«e the subaeq'ient notes (within braclcets) to this Report— O. E. L.] r, ; f See p*per marked E. t [Ool. Dennis seems to have overlooked the evidence which is aSorded of the opposite view, by the freamole of this Act of 1774 ; by the debate thereon in Parliament ; by the Act of 1791 ; the message to 'arliament, referred to in that Act ; the Imperial Order in Council of the same year ; the Paper men- tioned in the Order ; the Royal Gommfisions; the proclamation of General Clarke, etc., etc. FortheH •ee Book of Arbitration Documents, pp. 3, 4, 388, 411, 46-62, 389-890, 27.— O. E. L.j |C. Debates, p. 123, and JounuJs of Housa of Commons, No. 34. point, on a du 11. the boui Mitchel] 12. drawn o; rectiona, 13. ing the I at a poin further fi "Th 50th degi 14. ] map itself settled, w. appi, thai 16. S ince in gri cision of h 16. T direction e decision on the trial of P«g River.^ 17. Tl undoubtedll possible thi located on 18. T marked P), tones drain ♦SeeWri trWithre f Msed in Pari ■dlv intended north from the indication wha of the western tionthan the boundary, has Mfore describe As to whal » boundary ha( onhr to betray BM been eatab boundary of th western boundi tfThisjud WM discharged. Moision was an deoisfon, but wj Canada. (See i Corns., En(f., If, Upp-jr Canada Treaty with In Md statement that decision •00 was not 1 SSeeRepor iirThisisin( r.rni. ace of Quebec Iff ootan^oi^ced le Province of J the western hio, and along rthward to the 'Engtai"^ trad- andary of Que- rivate opinions possible to the ! to the south -n le banks of tue intended in the minion, that the of the said river andruyrthwardto north line- hat was intended draw conclusions writer to believe iresterly boundary intended that the ident intention to as thus definitely nhe Mieaissippi ;" that is to say, the of the Mi»»i»**m ,ws :— The Bill, as of the territory of River Ohio, west- n boundary of the and Pennsylvania e following for i. 3. to the Twrth-wetl that Province by a and aft^r "O/iio" to in going" north- ect would similftriy ,ny reference to the REPORT OF THE DOMINION SURVETOR-QENBRAL ON THE BOUNDART, 1871. 211 point, or discussion whatever upon it, go to show that " northwards " was intended to be on a due north line t 11. The map which was used in the House of Commons to illustrate the question of the boundaries of Quebec in the debate on the Act, is said to have been one known as Mitchell's map, dated February 13th, 1766. 12. It is stated that there were two editions of this map, the first one being with- drawn on the publication of the second, tohieh latter contained *' riMmerous importwat eor- rectiona, but the dcUe vxu not altered.* 13. The only copy of Mitchell's map available is in the library here, and, on insneot- bg the River Mississippi on it, we find that the course of that river is taken up abruptly at a point in 47° 12' north latitude and 101* 30' west longtitude, at which point we further find on the map the following note by the author : " The head of the Mississippi is not yet known. It is supposed to arise about the 50th degree of latitude and the west bounds of this map," etc., etc., etc. 14. Now it is not at all probable that with the uncertainty asserted to exist on the map itself used by the House of Commons at the time the boundaries were debated and settled, with regard to the source and direction of a great part of the course of the Missis- sippi, that the House intended its banks as the boundary of Quebec. 15. Such a theory, leaving as it would, one of the principal boundaries of the Prov- ince in great uncertainty, would be entirely inconsistent with the minuteness and pre- cision of language insisted on it settling the Ohio as the southern boundary, f 1 6. Taking the strictly legal construction of the description, it is claimed that the direction expressed as " northwards " is upon a due north line, in favour of which see the decision on this specific case in the judgment of Chief Justice Sewell^ in connection with the trial of Charles de Reinhardt in Quebec, 1817, for murder committed on the Winni peg River.§ 17. The northerly boundary of Ontario, between it and the Dominion lands, is undoubtedly the southern boundary of the Hudson's Bay Company's possessions. It is possible that some difference of opinion may arise as to where this boundary should be located on the ground, 18. The Charter of the Hudson's Bay Company, dated 2nd May, 1670 (see paper marked F), described their grant as " extending over and including all lands and terri- tories drained by the waters emptying into Hudson's Bay."|| * See Wright's Cavendish Debates. (Note following preface.) trWithreferenoe to the arguments oontainsd in paragraphs numbered from 7 to 16, from what had risMi in Parliament, it may be noted that the Bill, as it oame down from the House of Lords, was admit- dlv Intended to give aa the western boundary the banks of the Mississippi, and not a line drawn du« north from the confluence of the Mississippi and Ohio ; that the reported debates in the Commons give no indication whatever of an intention to change the western boundary, but the contrary ; that the description of the western boundary was not altered ; and that the supposed chang^f intention has no other founda- tion than the supposed effect which the amended language, introducea with reference to the southern boundary, has in varying the grammatical meaning of the language in which the western boundary was As to what is said as to the "uncertainty " of the Missusippi as a boundary^ it mav be noted th<«t suoh s boundary had the fixity and certainty which belong to the channel of a great river, whose course required only to be traversed in order to be ascertained ; that, notwithstanding the so-called uncertainty, this river had been established by the Treaty of Paris, 1763, as the westerly boundary of the British and the easterly boundary of the French possessions in that quarter ; and was again established by the Treaty of 1783 aa the western boundary of the United States.— 6. E. L.] t [This judgment was not acted upon ; and the prisoner, though found guilty and condemned to death, was discharged. It may also be noted that Upper Canada was no party to the proceeding in which the decision was arrived at ; that the then Chief Justice of Upper Canada (Powell) did not subscribe to the decision, but was of opinion that the western limit of Upper Canada was oo-extenslve with that of Frepoh Canada. (See this opinion in " Papers relating to the Red River Settlement," printed in Sess. Papers, Ho. Corns., Eng., 1819, Vol. 18, p. 286.) In fact, the decision in the De Reinhardt case was never recognised in Uppor Canada before its union with Lower Canada, nor by the Province of Canada afterwards. (See Treaty with Indians of Lake Superior, Book of Arb. Docs., p. 23, statement of lands patented, at p. 322, and statement of mining licenses, eta. At p. 409 of same book ; see also »6., pp. 264, 269-271.) Since that decision a mass of evidence has come to light which further supports the contention of Ontario, and was not before the court in the De Reinhardt case.— O. E. L.] § See Report of trial, in Library, House of Commons, Ottawa. iJ [This is incorrect There are no suoh words In the Charter.— G. E. L.] ¥\n 212 REPORT OF THE DOMINION SURVEYOR-QENErjLL ON THE BOUNDARY, 1871. 19. The boundary in such case would be the ridge dividing the water-sheds north and west of Lake Superior, which intersects the Dawson route at height of land portage, and crosses the international boundary between South Lake and Gunflint Lake. 20. It may be argued on behalf of Ontario that the dividing ridge which should bound the Hudson's Bay Company's possessions on the south is that which maybe described as the northerly section of the * " range which, dividing to the north-west of Lake Superior, separates the waters flowing direct to Hudson's Bay from tho^e flow- into Lake Winnipeg, crossing the Nelson River at Split Lake, or Lac des Forts, etc. /' and it will probably be urged in favour of iliis view that the grant to the Company only covered " such lands and territories as were net already actually possessed by the sub- jects of any other Christian Prince or State," and that inasmuch as the country to the south of the range of high lands last described wat.' considered to belong to France, that therefore King Charles would give no title in what he did not own, and certain old maps (see B and C) are referred to in support of this view. 21. It is not important to discuss this view, if it is conceded that a due north line ^m the forks of the Ohio bounds Ontario to the west ; as in such case the height of land would be intersected just north-west of Lake Nipigon at a point about which there can be very little dispute. 22. If, on the other hand, the contention of Ontario is allowed, that is to say, that the banks of the Mississippi should be followed to their source, and that a line should be dravyn thence due north to intersect the height of land alluded to in paragraph 20, then the westerly boundary would extend over 300 miles north of the Lake of the Woods, and the Province would be made to include a territory which, as regards form and extent, cculd not, in the opinion of the undersigned, have been at all contemplated or intended at the time of passing the Quebec Act. 23. But the undersigned assumes, on the strength of c^Ix..ions to such effect, given by eminent counsel to whom the question had been submitted, that the " southern boun- dary of the territory granted to the Merchant Adventurers of England trading to Hud- son's Bay " was, and is, the height of land bounding the watershed of the basin of Hud- son's Bay ; f and, even admitting that the banks of the Mississippi, to the source of the said river, were intended by the Act, a due north line from the latter would, in the course of a very few miles, intersect such height of land, as the sane is in the immediate vicinity of the source of the Mississippi, and between it and thj Lake of tba Woods, the waters in which latter drain into Hudson's Bay. 24. The only territory, therefore, affei;ted by the question of the due north boundary from the forks of the Ohio, as against the Mississippi, as the boundary, is that coloured yellow on the tracing marked A herewith, ihown as contained between the due north line from the forks of the Ohio and the cut ved line defining the height of land to the south and west ; because, e^n construing the west limit of Ontario in the Quebec Act as the banks of the Mississippi, and a line due north from the source of that river to the height of land forming the southern boundary of Hudson's Bay Company's territory, such description would only take effect where, and to the east and north of where, such height of land crosses the international boundary between Gunflint and South Lakes, as before mentioned, confirming, in fact, the western and northern boundaries of the Province, in * See Report, Commissioner Orown Lands, 1867. +[Other eminent counsel had given the contrary opinion. The opinions of the counsel referred to by Mr. Dennis api>ear to have been founded on the incorrect statement, which the Company had l>een in the habit of making, that the Company had always claimed and exercised dominion, as absolute proprietors of the soil, to the height of land referred to. (See Book of Arb. Docs. pp. 265, 288. ) It is now clear, and in.ieed ig admitted by the Company, that until long after 1763, *'he date of the cession of Canada to Great Britun, the Company had no possession of any part of the interior of the'Oountry, and ti:at their possession was con- fined to certain forts on the Bay, and two factories not very distant. (See Book Arb. Docs., pp. 121, 252, 395-6, 399, 400, 412, 414-15. ) And as to the region drained by the waters that flow into Lake Wi: .-^s> "^ which the French of Canada were in actual possession from a very early date, the Company, by its servant* or agents, did not set foot within it for more than a century after the date of the Charter, and then onlr M enjoying the right in commdu with all other British subject*. — G. E. L.] ,Y, 1871. er-sheds north ! land portage, jake. B which should which maybe I north-west of )m tho-e flow- B8 Forts, etc. ,•" Company only sed by the sub- country to the to France, that )rtain old maps , due north line ) height of land nrhich there can A is to say, that a line should be agraph 20, then the Woods, and orm and extent, ited or intended uch effect, given " southern boun- trading to Hud- le basin of Hud- the source of the lid, in the course imediate vicinity ds, the waters in i north boundary , is that coloured in the due north ht of land to the he Quebec Act a» ' that river to the y's territory, such rhere, such height _ Lakes, as before f the Province, in [jounBol referred to by ipany had been In the bsolute proprietors of now clear, and in ieed ada to Great Btitun, ir poBsession was con- ,. 6008., pp. 121, 252, to Lake Wi:: V-ii. »' npany, by its servant* Iharter, and then only QUESTION OF QRANTINO PATENTS FOR LAKDS AT BEAD OF LAKE 8UPERI0B. 213 accordance with their description by Bouohette,'*' and which usage had established up to the acquisition of the territories in 1869. 25. Looking at the very irregular character of the boundary which would be formed by following the ridge between the watersheds, it ia suggested by the writer, whether it would not be better for Ontario and the Dominion to agree on a conventional boundary, for instance, in some way as shown on tracing lettered C. 26. The saving, in such case, in the expense of surveying and defining the boundaries on the ground, would be at least one-half ; besides which, making the limits of this regular character, would facilitate the laying out of the lands Adjoining them in future times. Ottawa, October Ist, 1871. J. S. Dennis. Papers and maps accompanying the preceding remarks, submitted to the Hon. the Minister of Justice. A. — Tracing of Cotton's map (modem), showing sources and course of the Mississippi* B.— Tracing of Jeffrey's map of 1760. C. — ^Tracing of De Lisle's map of 1740. D. — Tracing of (reduced scale) Mitchell's map of 1755. E. — Extract — Quebec Act, 1774. F.— Extract— Charter H. B. Co., 1670. O. — Tracing part of Devino's map, north of Lake Superior (to show conventional boundary proposed). H. — Extract — Bouchette's History of Canada, describing boundaries (1832). I. — Extract — Opinion of .Tudges on boundary, from De Reinhardt's trial K. — Extract — Commission to Guy Carleton, 1786. L. — Extract — King's Proclamation, 1763. Report op a Committee op the Privy Counoii,, approved by the Governob-Geneeal ON the 28th November, 1871. t On a memorandum dated 25th November, 1871, from the Hon. the Secretary of State, submitting that applications have b«ten made to him for mining licenses and patents for land in the neighbourhood of Lake Shebandowan, and in places about the head of Lake Superior, and recommending that, pending the locating of the boundary line between the North-West Territory and the Province of Ontario, no action be taken upon these or any similar applications ; and further recommending that the Lieutenant- Governor of Ontario be informed of the course proposed to be taken by your Excellency's Government, and that it be suggested that the Government of that Province should, in like manner, refrain from granting patents or mining licenses in the region of country about the head of Lake Superior and Lake Shebandowan until after the boundary line *rMr. Bouchette's opinion is not wholl}' in favour of Colonel Dennis's view. For example, he copiei from General Clarke's Proclamation, without objection or comment, thn words following : "From the head of the said lake (Temiscamingue) by a linedrawn due north until it strikes the boundary line of Hudson's Bay ; including all the country to the westward and southward of the said line to the utmost extent of the country comm6nly called or known by the name of Canada." (See his Topographical Description, London, 1816, quoted in Book Arb. Docs. , p. 390. ) Again, speaking of tipper Canada, tne same author says : — " On the west and north no limits have oeen assigned to it ; therefore it may be supposed to extend over the vagt Tegions that spread towards the Pacific and the Northern Oceans." (Quoted at p. 391 of Arb. Docs.) Onh {• map of Upper Canada, 1815, he shows the Province as extending beyond the height of land both on the north and to the west — on the west < lands in the neighbourhood of Lake Shebandowan and in places- about the head of Lake {Superior. May I request that you will have the goodness to bring the matter under the early notice of your Government, and communicate to me their views thereon for the informa- tion of His Excellency the Governor-General in Council. I have the honour to be. Sir, Your most obedient servant, J. Howe, Secretary of State /or tfie Provinces. Hon W. P. Howland, C.B., Lieutenant-Governor, Toronto. (li Minute of Council, approved by the Lie^ '^nant-Qovernor, on the 4th January, 1872.t The Committee of Council have had under consideration the communication of the Honourable the Secretary of State for the Provinces, dated 30th November, 1871, trans- mitting a copy of a report of the Committee of the Privy Council of Canada, approved by His Excellency the Governor-General in Council on the 28th November, 1871, wherein it is recommended that, pending the locating of the boundary line between the North-West Territory and tlie Province of Ontario, no action should be taken upon applications for mining Ucenses vJoA patents for land in the neighbourhood of Lake Shebandowan and in places about the head of Lake Superior by the Dominion Government, and suggesting that the Government of Ontario should in like manner refrain from granting patents or mining licenses in the said region until after the boundary line aforesaid should have been established. The Committee advise that the Secretary of State be informed that .the said com- munication and enclosure have been referred to the Honourable the Commissioner of Crown Lands and that immediately upon his reporting in respect thereof the matter will be taken into consideration by your Excellency ; and further that concurring in the state- ment contained in the said report of Council that it is of so much consequence that the ascertaining and fixing on the ground of the boundary line in question should be as far as- • Sess. Papers, Ont, 1873, No. 44, p. 5. f Ihid, p. 6. \ CORRESPONDENCE RESPECTINQ INSTRUCTIONS TO DOM. COMMISSIONER, 1872. 215 'ovvneea. possible expedited, your Excellency is desirous that the draft instructions proposed to be given to the Commissioner should be at the earliest possible moment submitted for the consideration of your Excellency. Certified. I I 4lh January, 1872. J. Q. Scott, C. E. C. The Likutenant-Govbbnor to the Secretary of State.* Government House, Toronto, 6th January, 1872. Sir, — With reference to your despatch dated 30th November, covering a copy of a report of a Committee of the Privy Council making certain recommendations as to the issue of patents in the neighbourhood of Lake Shebandowan, and urging the early settle- ment of the boundary question, I now have the honour to inform you that the subject has been referred to the consideration of the Commissioner of Crown Lands in this Prov- ince, and that as soon as his report upon it can be obtained the Executive Council will come to a decision in the matter. In the meantime, I concur in the view expressed in the Minute of the Privy Council, that the boundary line in question should be ascertained and fixed with all possible speed, and, to prevent unnecessary delay, would suggest that a draft of the instructions proposed to be given by the Government of the Dominion to the Commissioner appointed, be transmitted for the consideration of the Government of this Province at the earliest moment. I have the honour to be. Sir, Your obedient servant, The Hon. the Secretary of State for the Provinces, Ottawa. W. P. HOWLAND. The Secretary of State to the Lieutenant-Governor.* Department of the Secretary of State for the Provinces, Ottawa, 11th January, 1872. Sir, — I have the honour to acknowledge the receipt of your despatch of the 6th instant, in reply to mine of the 30th November last, in reference to the locating of the boundary line between the North-West Territory and the Province of Ontario, near the head of Lake Superior, and suggesting that a draft of the instructions given by the Dominion Government to the Commissioner appointed on its behalf, be forwarded to your Government. I have the honour to be, Sir, Your obedient servant. Hon. W. P. Howland, C.B., Lieutenant-Governor, Toronto. Joseph Howb. O- - ^ft '^i ♦ Seas. Papers, Ont., 1873, No. 44, p. 7. 216 ACTION OP ONTARIO BOUNDARY COMMISSIONER, 1872. The Aotino Assistant Frotinoial Seorbtaby to Mr. MoDouqall.* Frovikoial Sboretary's Office, Toronto, March 6th, 1872. Sib, — Adverting to bhe communication from this Department, under date 20th September last, info; nin^ you that Hia Excellency the Lieutenant-Governor had been pleased tc .~)oir < .a Ooramissioner on behalf of this Frovince, in the matter of tha settlement " '!^- 'x .ondary line between Ontario and the North-West Territories, I have now the hoj. i'\r. ,>< <8uance of a conversation that took place some time ago between the Presidenn, ■■*■ * '? c ancil and yourself, to request you to forward, at your earliest con- venionce, a detbued rep 'pon ^e whole subject of the North-West boundary, also a report stating your action ui; ier the Commission, with the result of any conference you may have had with the Dominion authorities. You will also be good enough to state, for the iriormation of His Excellency the Lieutenant-Governor, your views of the probable acti jS. of the Commissioner appointed on behalf of *^^he Dominion, and to offer any sug- gestioris you may consider it desirable to make as to tht conduct and probable reuults of tbd O'imnussion. I have the honour to be. Sir, Your obedient servant. Hoa W. McDougall, C.B., Toronto. I. R. Eokart, Acting Asaistant Secretary. Mb. MoDougall to the Provincial Secretary, t March 9th, 1872. Sir, — I have the honour to acknowledge your communication of the 5th inst, in which you refer to a conversation between the Honourable the Fresident of the CouncD and myself on the subject of the "North-West" Boundary, and (1) request me in pur- suance of that conversation to forward a detailed report upon the whole subject, and (2) also to report my action under the Commission of the 20th of September, with the result of any conference I may have had with the Dominion authorities. I observe that yon further request me (3) to state, for the information of His Excellency, my views of the probable action of the Commissioners appointed on behalf of the Dominion, and (4) to offer any suggestions I n _, think desirable as to the conduct and probable result of the Commission. I have the honour to state in reply that I have not yet received any instructions from His Excellency as to the time, place, or manner in which I should proceed to execute the commission entrusted to me. The letter of appointment merely informed me that the object of the Commission was " the settlement of the boundary between Ontario and the North-West Territories," and that Eugene E. Tach6, Esq., had been appointed on behalf of the Dominion, and that His Excellency had named me to act in conjunction with him. The late Attorney-General, Hon. J. S. Macdonald, on one or two occasions expressed to me verbally his opinion as to the scope of the inquiry and the nature and effect of the report which the Commissionnrs ^ore expected to make, but gave no official directions b the matter. I have not yet been put in communication with the Commissioner appointed on behalf of the Dominion, and am therefore unable to report anything as to his views. But having twice visited Ottawa in the hope of meeting him, and having conferred • SesB. Papers, Ont, 1873, No. 44, p. 7. fibid., p. 8. ACTION OF ONTARIO BOUNDARY COMMISSIONER, 1872. m w'th certain members and officers of the Dominion Government on the aubject of the Coinmiasion, I have formed an opinion as to the naturo of the instructions prepared fo him, which I beg to submit in the form of a confidential memorandum. I also beg to refer to this memorandum for any further information under the second and third heads mentioned in yowv letter. I have collected the greater part of the materials for a report which I expected to make in aonjunction with the Commissioner for the Dominion, on that part of the boun- dary between the Province of Ontario and the Territories of the Dominion which crosses the line of communication between Lake Superior and the new Province of Manitoba, bat I regret that certain map6 ordered from England, and which, in my judgment will be very important in the event of a serious difference of opinion between the Commisuioners or the respective Governments as to this part of the boundary, have not yet reached me. I presume that the detailed report upon the whole subjf * of the North -West boun- dary which you have asked me to forward, is not the final i dtI -\nder my commission, but a preliminary statement for the information of His Exce.idn' of the present position of the question, and the opinions I have formed Trom such r' cumi^avj, maps, and proofs as are accessible to me, of the actual location of the north-weai/tm boundary of Ontario, or as to the manner in which it must be determined. I shall have the honour in two or three days to submit a report of the character referred to in my conversation with the President of the Council, in the form of a pre- liminary memorandum, which I trust will meet the ap{. val of His Excellency. The 4th and last point mentioned in your letter, vi. , an invitation to offer any sug- gestions I may think desirable '* as to the conduct and probable results of the Commission" may be conveniently disposed of in this communication. Having reason to believe, as will appear in the confidential memorandum herewith, that the Commissioner for the Dominion will take the ground that a line due north from the junction of the "Ohio" with the "Mississippi" is the legal western boundary of Ontario, or that the height of land west and north of Lake Superior is the utmost western limit of the Province ; and being of opinion myself that the limit is much further west, I do not think we shall be able to agree upon a joint report, or that the respective Governments will adopt, without protracted and perhaps angry discussions, the view of either party ; I have therefore suggested in a friendly and unofficial way to members of the Dominion Government, as well as to the late Attorney-General of Ontario, the ex- pediency of appointing, before the Commissioners begin their discussion, a third person of ability and position, unconnected with Canada, to act as umpire in case of dispute, and the giving to the report of the Commission thus constituted the character of an award, subject, of couise, to the final approval of Parliament. So far as I could judge, both Sir J. A. Macdonald and Sir George Cartier, to whom I made the suggestions, viewed it favourably. I respectfully recommend, in answer to the invitation in your letter, the expediency of a proposition by His Excellency the Lieutenant-Governor of Ontario to the Governor- General for the reconstruction of the boundary Commission in the manner suggested. I need not point out the serious inconvenience and embarrassments which would probably follow a disagreement between the Commissioners, concurred in by the respective Govern- ments. Experience teaches but one lesson in these cases, viz., that it is easier and safer to agree upon a reference than upon the details of a settlement, and that two referees are quite as likely to disagree as the original Contestants. -^f ).;■;■(:,:.-(: I have the honour to be. Sir, Your obedient servant. Wm. McDougall. The Honourable the Provincial Secretary, Toronto. % A. m m ■t'Sl t; I? ai !!18 INSTRUCTIONS TO THE DOMINION BOUNDARY COMMI&«IIONEB, 1872. Bbport of thr Minister of Justice.* Ottawa, 11th March, 1872. Reference having been made to the undersigned of the Order in Council, of the 28th November last, on the subject of applications for mining locations, and patents for land in the neighbourhood of Lake Shebandowan, and about the head of Lake Superior, and also of the despatch of the Lieutenant-Qovemor of Ontario on such Order in Council, he begs leave to report : — That the Lieutenant-Governor, in his despatch of the 6th January, states as follows : — " In the meantime I concur in the view expressed in the Minute of the Privy Counci!, that the boundary line in question should be ascertained and fixed with all poss'.ble speed, and to prevent unnecessary delay would suggest that a draft of the in- st'' actions proposed to be given by the Government of the Dominion to the Commissioner ai>pointed, be transmitted for the consideration of the Government of this Province at the earliest moment." The undersigned with the view, therefore, of meeting the desire expressed by the Lieutenant-Governor, and after consultation with Survoyor-General Dennis,! begs leave to recommend that a copy of the draft instructions, hereunto annexed, he transmitted to the Government of Ontario. All of which is respectfully submitted. John A. Maodonald. Instructions to the Commidsioner for the Dominion. | Draft of Instructions to be given to the Commissioner appointed to act on behalf of the Dominion of Canada in the survey and location of the boundary line between the North- West Territories and the Province of Ontario, in conjunction with a Commis- sioner to be appointed by the Government of Ontario. The boundary in question is clearly identical with the limits of the Province of Quebec, according to the 14th Geo. III., cap. 83, known as the "Quebec Act," and is described in the said Act as folk ws, that is to say : Having set forth the westerly portion of the southern boundary of the Province as extending along the River Ohio " westvoard to the hanks of the Mississippi" the description continues from thence (i.e., the junction of the two rivers) ** o ,\d northvoard to the southern boundary of the territory granted to the Merchants Adveniurers of England trading to Hudson's Bay." Having determined the precise longitude west of Greenwich of the extreme pomt of land marking the junction of the north and east banks respectively of the said rivers, you will proceed to ascertain and define the corresponding point of longitude of the intersection of the meridian passing through the said junction with the international boundary between Canada and the United States. Looking, however, at the tracing enclosed, marked A, intended to illustrate these instructions, it is evident such meridian would intersect the international boundary in Lake Superior. Presuming this to be the case, you will determine and locate the said meridian, the same being the westerly portion of the boundary in question, at such a point on the northerly shore of the said lake as may be nearest to the said international boundary, and from thence survey a line due south to deep water, marking the same upon, and across any and all points or islands which may intervene ; and from the point on the main Eihore, found as aforesaid, draw and mark a line due north to the southern boundary of the Hudson's Bay Territory before mentioned. * House of Commonii Return of 19th Mai oh, 1881, No. 37, p. 4, i-[See the Report of Mr. Dennis on the Boundaries, 1st October, 1871, ante, p. 209. J Sees. Papers, Ont., 1873, No. 44, p. 15. -G. E. L.] INSTRUCTIONS TO THE DOMINION BOUNDARY COMMISSION BR, 1^72. 219 This will complete the survey of the westerly boundary line sought to be estab- lished. You will then proceed to trace out, survey and mark, eaatwardly, the aforemen- tioned " aouthem boundary of the territory granted to the MerohanUi Adventurers of England trading to fludeon'a Bay." This is well understood to be the height of land dividing the waters which flow into Hudson's Bay from those emptying into the valley of the groat lakes, and forming the northern boundary of Ontario ; and the same is to be traced and surveyed, following its various windings till you arrive at the angle therein between the Provinces of Ontario and Quebec, as the latter is at present bounded ; having aooomplished which, the service will have been completed. Your requisition for such assistance, scientific and otherwise, as may be necessary to enable you to determine the necessary longitude with precision, and to elFect the practical surveying operations in the field and for such instruments as may be required will receive due consideration. Further instructions relating to the character of the boundary marks to be erected, and conveying other information which you will probably require will be duly sent you. ■ '1 " h , I: ,'•.'■" ■•■if ■1 Maodonald, Rbport of a Oommittkb op the Privy CotiNOiL, approved by the Governor" General on the 12th March, 1872.* The Committee have had before them a memorandum, dated 11th March, 1872, from the Honourable the Minister of Justice, stating that reference having been made to him of the Order in Council of the 28th November last, on the subject of applications for mining locations and patents for land in the neighbourhood of Lake Shebandowan, and about the head of Lake Superior, and also of the despatch of the Lieutenantr Governor of Ontario on such Order in Council ; he reports. That the Lieutenant-Governor in his despatch of the 6th of January, states as follows : — " In the meantime I concur in the views expressed in the Minute of the Privy Council that the boundary line in question should be ascertained and fixed with all possible speed, and to prevent unnecessary delay, would suggest that a draft of the instructions proposed to be given by the Government of the Dominion to the Commissioner appointed be transmitted for the consideration of the Government of this Province at the earliest moment." That with the view, therefore, of meeting the desire expressed by the Lieutenant- Governor, and after consultation with Surveyor-General Dennis, he, the Minister of Justice, recommends that a copy of the draft instructions annexed to his memorandum be transmitted to the Government of Ontario. The Committee submit *he above recommendations for your Excellency's approval. Certified. ' • -^ Wm. H. Lee, Clerk P.C. The Secretary op State ro tije LiEUTENAin'-GovERNOR.t Department op the Secretary op State for the Provinces, Ottawa, 14 h March, 1872. Sib, — With reference to your despatch. No. 138, of the 6th January last, I have the honour, in compliance with the request therein contained, to transmit to you hero- * House of Commons Betum, March 19, 1881, No. 37, p. 5. tSess. Papers, Ont., 1873, No. 44, p. 14. vm m 'i I 220 C0RRE8P0NDKNCB RESPECTIMQ INSTRUCTIONS TO DOM. GOMMUSIOMKB, 1872, II i with » copy of the iiutruotiona to be given to the Commiuioner appointed to Mt on behalf of tne Dominion of Oannda in the nurvey and location of the boundarj line bttwaea the North- West Tenitoriea and th(^ Province of Ontario. I have the honour to be, Sir, Your obedient servant, Hon. W. P. HowUud, O.B., Lieutenant-Qovemor, Toronto. JoBKPn HowB, Secretary of Slate for the Provinoei, The Seobetabt or State to the Libutbnant-Govbbnob. * , Department of the Secretary of State for the Provikobs, Ottawa, 16th March, 1872. Sir, — With reference to my letter of the 14th instant, I have the honour to trangmit herewith a tracing which, it is requested, may be substituted for that which accouipaoied the draft of instructions to be given to the Commissioner appointed by the Dominion in the survey and location of the boundary line between the North- West Territories and the Province of Canada, a copy of which was enclosed in my letter above referred to. May 1 request that you will have the goodness to cause the tracing for which tht enclosed is substituted to be returned to this Department. I have the honour to be, !!?ir, Your obedient servant. Hon. W. P. Rowland, O.B., Lieutenant-Governor, Toronto. Joseph Howb, Secretary of State for the Prowneet. f!i: ■• I [Memorandum. — Copy of a tracing, showing boundary line between Dominion and Province of Ontario.] The Libutenant-Qovebnob to the Seirbtary of State, f OoVKHNMiiNT HOUSB, Toronto, 19th March, 1872. Sir, — I have the honour to acknowledge the receipt of your despatches of 14th and 1 6th instant, enclosing tracings with reforence to the boundary line between tliii Province and the North- West Territories, and to return herewith, as requested, tht tracing enclosed in your former dospatch. I have the honour to be. Sir, Your obedient servant, • W. P. HOWLANO. Hon. Secretary of State (Provinces), Ottawa. * Seas. Pap«ra, Ont., 1873, No. 44, p. 15. flbid., p. 16. AIOMEB, 1871 MEMO. Of THK ONT. COMMI8SI0NBR RE8PE0TINO WKSTEUN BOUNBART, 1872. 221 ThI AotINO AsilBTAHT PROVINCIAL SbORBTART TO Mr. MoDoUOALU* Provincial Seorbtary'b Offioi, Toronto, 19th March, 1873. Sir, — I am commanded to request that you will, at the earliest poiwible moment, gabmit to the Government the further report promised by your lost communication. It u) extremely important that the Oovernraont should rec(/ivo this report as soon as possible. I have the honour to be. Sir, Your obedient servant. Hon. William Mt'" nil, O.B., etc., etc., etc., xOt'onto. I. R. ECKHART, Acting Aaaiatant Secretary. veen Dominion and , P. HOWLAND. Mbkoranduh of Mr. MoDouoALL.t Prkliiiinart Mrmoranduu, for the information of the Lieutenant-Qovemor of Ontario^ on the subject of the western boundary of the Province. The undersigned, appointed a Oommissioner for the Province of Ontario to act in conjunction with a Comn.t.iHioner on behalf of the Dominion, '*in '^he matter of the settlement of the boundary line between Ontario and the North-Wcat Territories," has the honour, in compliance with the request of the Provincial Hecrntary, communicated to him by letter, bearing date the 5th March, 1872, to submit the following memorandum upon the subject of the " North-West Boundary." As the undersigned has not yet been put in communication with the Oommissioner on behalf of the Dominion, he is unable to submit a report in conjunction with that officer. A preliminary statement of his own views as to the true position of the western boundary line of the Province, and a brief reference to the authorities and proofs which he has thus far been able to collect in support of the conclusions at which he has arrived, will probably meet the wishes of the Government as expressed in the letter of the 5th inat. It will be convenient to consider, in the first place, the western boundary as dis- ti i^isheil from the north-western or northern boundary of the Province. There are /our possible lines, any of which, it may be contended with more or less plaosibi *^^j, is the western boundary of Ontario. 1. Tr^ie meridian of 88° 50' west from London, or a line due north from the mouth of the Ohio River. 2. A liro commencing at the height of land, west of Lake iBuperior, at the inter- national boundary, and following the watershed of that lake, in a north-easterly direction,, to the southern limit of Rupert's Land, wherever that may be found. 3. A line from " the most north-western point of the Lake of the Woods," north- wards to the southern limit of Rupert's Land. 4. A line northward from the source of the Mississippi River to the southei imit of Rupert's Land. There is at least a difference of 6* of longitude between the first, or most eastern, and the last, or most western of these lines. In other words, the adoption of the last mentioned line would give to the Province three hundred miles of territory on the west, which would be cut off by the adoption of the first line, including Thunder Bay, and nearly all the mineral lands which have been surveyed or sold in that neighbourhood. *SeB8. Papers, Ont, 1873, No. 44, p. 16. f/Md., p. 9. %:' I; •■ '-•If ;■ M-'M.; ill ■■m 222 MEMO. OF THE ONT. COMMISSIONER RESPECTINa WESTERN POUNDART, 1872 [ l!: (1) It is contended by some that the first, or Ohio Rivor meridian, is the true legal boundary of Ontario on the west, because the Imperial Act of 1774, known as the Quebec Act, defined the boundary of Canada after it reached the north-west angle of the Province of Pennsylvania as follows : — " And thence along the western boundary of the said Province (of Pennsylvania), until it strikes the River Ohio and along the bank of the said river westward to the banks of ihe Mississippi, and northward to the southern boundary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay." If by the word " northward " the Imperial Parliament meant north, or dtie ruyrth, (as the Court of King's Bench for Lower Canada held in the trial of De Reinhardt in 1818), then the meridian of 80' 50' (or whatever the meridian of the right bank of Ohio «t its junction with the Mississippi may be ascertained to be), will be tiie line which iu 1774 formed the western boundary of Canada. In the opinion of the undersigned, the word " northward," in the Act of 1774, does not mean, and was not intended to mean either " north " or " due north," but "north- erly " or " northward," along the banks of the Mississippi River to the southern boundary uthem boundary f ter shown. ;ree8 further west, in a north-easterly ian 88' 50", the mly authority for has never, as the iny Court of Law, i has always been wurpatton, on the !/ompany with the us and convenient itories watered by d their maps, and sr and the Kocky their charter, was northward " was item boundary of y of the territory re been met with ent international Ji, either by the the maps of that of Rupert's Land ds, and therefore bods will be more em boundary of cknowledging the ng (among other) ndary of Canada. The undersigned 18 of removing it. of the House of ibes of members, ed could be found entary History of es on the Quebec Oovernment Bill of 1774, taken in shorthand by Sir Henry Cavendish, who was a member of the House of Commons at the time. It was found in the British Museum among the Egerton manuscripts, and is of undoubted authority. From these debates it appears that the Quebec Bill was first carried through the House of Lords. It came down to the Oommonp and was there proposed by Lord North, who explained the reason for extending the limits of the Province of Quebec, as fixed by Royal Proclamation in 1763. He mentions expressly " the country westward of the Ohio to the Mississi)>pi, and a few scattered posts to the west," as having been added in order that " there should be some government" for the settlers and traders in these distant countries. (Gavendiah Debates, pp. 9, 184.) Th( description in the Bill, as framed by the Government and carried through the Lords^ was in these words : — " Be it enacted that all the said territories, islands and countries " (referred to in the preamble), "heretofore part of the territory of Canada in North America, extending southward to the banks of the River Ohio, westward to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the Merchants Adven- turers of England trading to Hudson's Bay, etc., be, and they are hereby during His Majesty's pleasure, annexed to and made part bnd parcel of the Province of Quebec," etc. This mode of describing the bounds of the enlarged Province of Quebec is explicit enough. The intention of the Government to make the Mississippi the western limit of ihe Province does not admit of doubt. Why was the language of the description altered in the Act as finally passed 1 The debates in the Committee show that it was done at the instance of Mr. Edmund Burke, who was English agent for the Province of New York, and was apprehensive that some portion of that Province might be transferred to Quebec by the description as it stood in the Bill. Lord North, to satisfy Mr. Burke and his clients, consented to an alteration by which a line of boundary was substituted on the south for the indefinite terms of the Bill. As no private interests were affected by the proposed western or north-western boundary, that part of the original description was allowed to remain. The amendment was made in haste, and, as often happens, without any one at the moment noticing its incongruity with the former mode of description. Sir Henry Cavendish gives us the following account of the amendment : — " The first clause being read, there was much puzzling about settling the boundary line. Mr. Edmund Burke, Mr. Jsuskson, Mr. Baker, and Sir Charles Whitworth, went up stairs in order to settle it, while the House was supposed to be proceeding on it. The House continued for at least half an hour, doing nothing in the meantime. The difference was whether the tract of country not inhabited should belong to New York or Canada. At five o'clock Mr. Burke returned with the amendments, some of which were agreed to, others not," [Cavendish Debates, p. 253.) Throughout the debates no objection was made to the Mississippi as the western boundary. There is no evidence of an intention to alter that boundary either by the Oovernment or the Committee, and the conclusion seems irresistible that Parliament, as well as the Government, intended that the Mississippi should bound the Province on the west The word " northward " (thouftU its meaning in the Act is different from its meaning in the Bill) is not inconsistent witti that intention. The Mississippi, as delineated on the maps of that date, is nearly due north for about 500 miles above the mouth of the Ohio. It forms exactly that kind of boundary for which Mr. Burke contended. " Nothing," says he, " can be more geographically distinguished than water and land. This boundary is physically distinguished ; it is astronomically distinguished." (Referring to the parallel of 45*, which had been determined by Commissioners, at the head of Lake Ohamplain.) " We have every ihing that geography, astronomy and general convenience, stronger sometimes than either, can give, to make this boundary definite." (Cavendish Debates, p. 194.) b. In framing the Treaty of Paris a f -iw years later, the Imperial Government recog- nized the Mississippi as an existing territorial boundary. All the country east of that river, and south of a line drawn through the middle of the Great Lakes to the most north-western point of the Lake of the Woods, was surrendered to the United States. All the country west of the Mississippi, extendiug south to the 31* of north latitude, and east to the Atlantic Oc3an, was left to its former owners. The Mississippi was supposed at f '»' ' m 'ill -■.'Sl 224 MEMO. OF THE ONT. COMMISSIONER RESPECTINQ WESTERN BOUNDARY, 1872 ; Uir 4 that time to take its rise to the west and north of the Lake of the Woods. (See Bow«n'i, Mitchell's, and other maps by Royal Geographers, 1775 to 1783.) c. The construction put upon the Act of 1774 by the Court of King's Bench of Lower Canada in De Reinhardt's case, cannot now be regarded as an authority. The Court admitted that the question of boundary was brought before them " incidentally." They concluded their judgment on the point as follows : — " The power of deciding finally is, however, at home. The question will be taken before the King and his Council, and on deciding the limits of Upper Canada, they will either confirm or reverse our decision according as we have done right or wrong, so that as to any consequences that may result from our error, if error we have committed, they will be obviated by the superior authority to whom the question is to be referred." De Reinhardt was charged with murder, and the Court, holding that the place of the crime (some part of the Winnipeg River) was beyond the limits of Upper Canada, asserted their jurisdiction under the Act 43 Geo. IIL, c. 138, and convicted the prisoner. He was sentenced to be executed, but the sentence (the case being referred to the Imperial Gov- ernment) was not carried out. It is believed (and the point can no doubt be ascertained in England), that the Law Officers advised the discharge of the prisoner, on the ground that the Court was mistaken as to the western limit of Upper Canada. See Report of Select Committee of Legislature of Canada, 1857, Appendix No, 8, and see Howe of Commons Report, 1857, on Hudson's Bay Company, p. 397. d. Chief Justice Draper, who was sent to England ii. 1857 by the Canadian Govern- ment to maintain the claims of Canada against those of the Hudson's Bay Company, was examined before the House of Commons' Committee, and in answer to question on the the subject of the western boundary of Canada, state'' that — " The only western boundary which is given to the Province of Canada is the Mis- sissippi River." (H. B. Report 1857 ; question 4133.) " All the documents emanating from the Crown, which give westorn boundary to Canada, give the Mississippi River." (Question 4134.) e. The Right Hon. Edward Ellice, the representative of the Hudson's Bay Company before the same Committee, did not dispute the claim of Canada on this point. On the contrary he admitted that the Mississippi was its western boundary. Ho was asked : — " Have you ever considered the question of a boundary between your territory and Canadal" Answer. — " Yes, I have considered it very much." And after giving hip views as to the effects of the Chai-ter, he says : — " Then, if you come down to the Act of Parliament constituting the boundaries of Canada, which I hold after all to be the great authority on which we must proceed, the Act of Parliament defines the limits of Canada to be bounded westward by the Missis- sippi, and thence to where the line touches the lands granted to the Hudson's Bay Company." (Report, p. 329 ; question 5833.) Assuming then that the Mississippi River was the western boundary of the Province of Quebec, as fixed by the Act of 1774, we must follow that river to its source. Accord- ing to the best American maps the principal branch appears to take its rise in Lake Itasca on or near the meridian of 95° west longitude, and about 47° north latitude. The Mis- sissippi, as already observed, was supposed in 1774, and even in 1783, to take its rise to the north and west of the Lake of the Woods. If that supposition had proved correct, the point at which the western boundary of Canada intersects the present international boundary would be easily determined. In what direction must that line be drawn, under the terms of the Act of 1774, when the natural boundary has been traced to its natural termination 1 The point to be reached was the southern boundary of the Hudson's Bay Company's territories, or Rupert's Land. As " northwards " can no longer be' explained or defined by the course of the river it seems that a due north line or a line northwards in the general direction or course of the river from the Ohio to its source, are the only alternatives. In caoe a due north line is adopted, which is peihapb the most reasonable, or the least objectionable alternative, the meridian of 95* will I i> (he westom limit of Ontario from its intersection with the 49th parallel to the southern boundary of Rupert's Laad, wherever that southern boundary may be fount'- )-; THE MERIDIAN OF SOURCE OF MISSISSIPPI FOR WESTERN BOUNDARY. 225 sida is the Mis- (rn boundary to ■ hip views as to In either of the cases last mentioned the western limitary line so to be found, will be the most western of the four possible lines discussed in this memorandum. But it remains for the undersigned to mention the evidence which he has discovered in favour of No. 3, or the Lake of the Woods line, and which in his opinion conclusively shows that the western boundary of Upper Canada at its southern limit, or starting point, is, and has been, ever since the Treaty of Paris of 1783, or at all events since the 22nd of April, 1786, identical, or co-terminous, with " the most north-western point " of the Lake of the Woods. 1. Interprovincial boundary lines, in the absence of express statutory definition, are tixed by prerogative. In De Reinhardl's case the Court said, " Original jurisdiction relative to the Colonial Territories of the King is in the King and his Council." 2. The Act of 1774 did not oust the jurisdiction of the Crown in the matter of boun- daries. It established the limits of the Province of Quebec only " during His Majesty's pleasure." (14 Geo. III., cap. 83, sec. 1.) 3. In 1786 the King commissioned Sir Guy Carleton as "Governor in Chief in and over our Province of Quebec in America, comprehending all our territories, islands and countries in North America, bounded on the south by a line from the Bay Chaleurs," etc. describing the line through the lakes to Lake Superior, and through that lake as follows — " thence through Lake Superior northward of the Isles of Royal and Phillippeaux to the Long Lake, tlience through the middle of said Long Lake and the water communica- tion between it and the Lake of the Woods to the said Lake of the Woods, thence through the said lake to the most nortJ' •western point thereof, and from thence on a due west course to the River Mississippi, and northward to the southern boundary of the territory granted to the Merchant Adventurers of England trading to Hudson's Bay." [See copy among the Chishohn Papers, Parliamentary Library, Ottawa.) It will be seen that this definition of boundary would carry the limitary line on the weM to the same point (on the parallel of latitude which cuts the most north-western point of the Lake of the Woods) at which the Act of 1774 intended to place it, namely the Mississippi River. But it was afterwards discovered that the Mississippi River liad its source two degrees to the south of this parallel. In the Treaty of Amity, etc., between Great Britain and the United States, of 1794, an article (4) was inserted, admitting a doubt on the point, and providing for a joint survey of the Mississippi, and "if it should appear that the said river would not be intersected by such a line (due west from north- west point of Lake of the Woods) the two parties will thereupon proceed by amicable negotiation to regulate the boundary line in that quartei, as well as all other points to be adjusted bocween the said parties acccrding to justice and mutual convenience, and in conformity to the intent of the said treaty." The question was not settled till 1818. By the tr-jaty of that year. Great Britain surrendered to the United States all the country west of the Mississippi and south of the 49th parallel, "to the Stony Mountains." The line from Lake Superior to the most north-western point of the Lake of the Woods and the 49th parallel, have since formed the international boundary in that quarter. But the western boundary of the Province of Quebec, or, since its division into Upper and Lower Canada, of the Province of Upper Canada, was not affected by that surrender of territory. The Treaty of 1783 had given up all the country east of the Mississippi and south of the present international line, The question, then, seems to be reduced to a single point. Must we stop in our pre ress westward at " the most north-western point of the Lake of the Woods," because tht t is the last point or distance that can be ascertained on the ground either under the Treaty of 1783, or the Ro;^ .1 Connnission of 1786, or may we continue on our due west course, not to the Mississippi, but to the meridian of 95°, which, according to one of the alternatives under th* Act of 1774, takes the place of that river? In the first case the western boundary line of Ontario will start from the " most north- western point of the Lake "f the Woods and runs northwards (which, in the absence of any natural or geographical linr nuet be interpreted to mean north) to the southern boundary of tlie territory granted to the Hudson's Bay Company. The " north-west angle" of the Lake of the Woods, as determined by the Commissioners appointed xmder the con- vention of 1818, is not the most north-western point of that lake according to Mr. Dawson 16 I 226 ONT, COMMISSIONER DIRECTED TO ABSTAIN FiluM FUPTHE:. ACTlvtN. 1872. and other later observers ; but p.n official determination of the point, under treaty with a foreign power, will probably be de:-ined binding on all subordinate authorities. In the second caBe, the meridian of 95° or a due north line from the source of the Mississippi, •will, according to the most authentic maps, place our western boundary a Tew miles further west. It is to be observed that this last moiitioned line was the boundary of the Province of Quebec, under the Act of 1774 ; was the line intended in the Treaty v f 1783, and in the Commission to the Governor, Sir Guy Carleton, in ?786. It is the \ astern limitary line of the "Canada" of official designation and legal jurisdiction, and it remains unchanged to this day by any Act of Parliament, or exercise of "the pleasure" of the Crown. In conclusion, the undersigned would observe that the elaborate report of the Com- missioner of Crown Lands in 1857 ; the instructions to Chief Justice Draper, the agent of Canada in England ; and the Minute of Council, approved by the Gov-^rnor, Sir Edmund Head, show that the Government of Canada of that day contended for a still more western line. The approved *' minute " claims that " the western boundary of Canada extends to the Pacific Ocean." The "Canada" referred to in the minute, and in Mr. Cauchon's Report, was, however the Canada of the French, JVouvelle France ; but the Canada whose boundaries we have now to determine is the Canada of the British, after the whole country, east of the Mississippi, had become British by the Treaty of 1763. It is the Canada whose limits were declared by Statute, by Proclamations, Commissions, md other " Acts of Sovereign authority/' between that date (1763) and the passin-i; n of the boundary line between the Province of Ontario and the North- West 'j . n^oriec, I have the honour to transmit herewith a copy of an Order in Council appr •' on the 25th instant, having regard to that matter. I have, at the same time, to intimate that the Commissioner appointed o; behalf of my Government has been instructed to abstain from any further action uuder hin Commission. , ■, ■' . ■•■• I have the honour to be. Sir, Your obedient servant. W. P. HoWLAifD. ' 1 IP Hon. Secretary of State (Provinces), Ottawa. The Secretary of State to the Lieutenant-Governor. J Department of the Secretary of State for the Provinces, Oi-AWA, 5th April, 1873. Sir, — I have the honour to acknowledge the receipt of your despatch, No. 444, rf the 26th ultimo, covering a certified copy of a Minute of your Executive Council, passed on that day on the subject of the location of the boundary line between the Province of Ontario and the North- West Territories, and at the same time intimating that the ♦ Sess. Papers, Ont., 1873, No. 44, p. 16. t/Wd., p. 16. :/6id., p. 17. [f.iU 228 ONTARIO GOVER MENT INVITED TO STATE CLAIM AS TO BOUNDARY, 1872. Commissioner appointed by your Government to act on their behalf in fixing the said boundary has been instructed to abstain from any further action under his Commission. I have the honour to be, Sir, Your obedient servant, Hon. W. P. Rowland, C.B., Lieutenant-Crovernor, Toronto. Joseph Howe, Secretary of State for the Proi^nces. I' 11- ' HI % Report op a Committee op the Privy Council, approved by the Governor- General ON THE 9th April, 1872.* On the despatch of the Lieutenant-Governor of Ontario, dated 26th March last, on the subject of the Ideation of the boundary line between the Province of Ontario and the Nortb-West Territories, the Committee of the Privy Council beg leave to report : — That in a despatch from the Secretary of State for the Provinces to the Lieutenant- Governor of Ontario, dated 30th November last, based upon a Minute of Council of the 28th November, it was suggested to the Government of Ontario that it was of great cor.pequPHce that the ascertaining and fixing on the ground of the boundary lino in question should be, as far as possible, expedited. That the Lieutenant-Governor, in his despatch of the 6th of January last, expressed his concurrence in the necessity for immediate action, and to jirevent uiinecessaiy delay, puggested that a draft of the instructions proposed to be given to the Com- missioner appointed on behalf of the Dominion to locate the line, should be transmitted for the consideratir>n of the Government of Ontario at the earliest moment. That wjth the view of meeting the desire so expressed, a draft of the proposed instructions was transmitted to the Lieutenant-Governor by despatch dated the 14th of March last, and That tbc iiieutenant-Govemor, in reply, transmitted with the despatch of the 2Cth of March now t.ic'.er consideration, an Order of his Executive Council to the following eflfect : — "The Committee advise that the Government of Canada be informed that the Province of Ontario claims that the boundary line is very different from the one defined by the said instructions, and cannot consent to the prosecution of the Com- niission for the purpose of marking on the ground the line so defined, and that the Commi.,:^ loner appointed by the Government of Ontario should be instructed to abstain fro>i talc'ng any further action under his Commission." The ( ''. nmittee of the Privy Council regret that the Government of Ontario, while i.xpr'^r.iing ♦ii'ir difference of opinion from that of the Dominion, omitted to give their c ••^1 vic/s oil the subject, and they did not state what their claim as to the location oi the boui Jai ; line was. As it is of c?!e greatest consequence to the peace and well-being of the country in the vicinity of tlie ividing line, that no questions as to jurisdiction, or the means of proventitu or punishment of crime should arise or be allowed to continue, the Committee recommeiT^ that the Government of Ontario be invited to communicate their opinion on the subjeci to your Excellency, together with a description of the boundary line which they would suggest aa the correct one. Should it be found, after an interchange of opii^ions, that the two Governments cannot agree as to the location of the line, the Committee do not doubt that both Governments will fuel it their duty to settle without delay upon some proper mode of determining, in an authoritative manner, the true position of such buundary. Certified. Wm. H. Leb, Clerk P. G. • Sess. Papers, Ont., 1873, No. 44, p. 18. , 1872. BOUNDARIES PROPOSED OX BEHALF OF ONTARIO, 1872. 229 4 A' ■■'- ' .■■ II fixing the »n under his Provinces, ;E GOVERNOR- ih March last, of Ontario and to report : — he Lieutenant- Council of the t was of great undary line iu last, expressed it unnecessary 11 to the Com- be transmitted t. if the proposed dated the 14th I of the 26th of owing effect : — >rmed that the from the one n of the Com- , and that the cted to abstain Ontario, while ed to give their to the location country in the the means of the Committee their opinion on dary line which interchange of of the line, the settle without anner, the true TiiK Skoretaby of State to the Lieutenant-Governor.* ' Department of tub Secretary of State fob the Provinces, Ottawa, 10th April, 1872. Sib, — I have the honour to transmit for the consideration of your Government, a certified copy of an Order of His Excellency the Governor General in Council, on your despatch of the 24th ult., on the subject of the location of the boundary line between the Province of Ontario and the North-West Territories. Permit me to call your attention to the concluding paragraph of the Order in Council, and for the reuson therein set forth, to invite your Government to communicate their opinion on the subject discussed in the Order, together with a description of the boundary line which they could suggest as the correct one. I have the honour to be, Sir, I . Your obedient servant, Joseph Howe, - • Secretary of State for the Provinces, Hon. W. P. Howland, C.B., Lieutenant-Governor, Toronto. Lee, Clerk P. C. Order in Council, approved by the Lieutenant-Governor ox the 19th April, 1872.t The Committee of Council have had under consideratio i the deFDatch from the Secretary of State for the Provinces of the 10th instant, on t e subject of the boundary line of Ontario, and the copy of an approved Minute of thf 'rivy Council of Canada enclosed. In this Minute the Prvy Council regrets, "That ti.e Government of Ontario, while expressing their difference of opinion from that of the Dominion, omitted to give their own views on the subject, and flid not state what their claim as to the location of the boundary was." The Committee vrould observe that the despn'^fh on which their M- ute was founded did not contain any invitation to the Governm^ .it of Ontario to express its views or state its claim. The Government of Ontario is now invited to do so, and the Committee advisi' that the Government of Canada should be informed that this Government proposes the boundary contained in the annexed description. The Committee further advise that the Government of Canada should be informed that as to the western limit, in the opinion of this Government, there are grounds for maintaining the contention of former Governments of Canada, that the limit of Ontario is further west than the one proposed in the description, and that, while this Government is prepared, in view of all the circumstances, to agree to the western limit so proposed, in case the same is accepted by the Government of Canada, this Government does not consider itself bound by the proposal in any other event. As to the northern limit, it will be observed from the description that this Govern- ment maintains the position which is supported by the contentions of all former Governments, and by the indisputable facts, that the northern boundary lies north of the watershed of the St. Lawrence system, the line of which watershed is the northern boundary laid down by the Government of Canada ; and the Committee advise that the Government of Canada should be informed that, in view of all the circumstances, this Government will be prepared, in case its position as to the northern boundary is agreed to by tlie Government of Canada, to consider any proposal which may be made by that Government for the establishment of a conventional limit to the north of that watershed. Certified. J. G. Scott, Clerk E. C. i i * S«88. FaptMt. <^nt., UTJ, No. 44, p. 17. \Ibid., p. 19. m k :■ 230 BOUNDARIES PROPOSED ON BEHALF OF ONT.J.RIO, 1872. Proposed Dkscription. ( averred to in the annexed Mi.Mte of Council.)* The boundary line of Ontario is the international boundary from the mouth of the Pigeon Rivpr, on Lake Superior, to a point west of the Lake of the Woods, where the international boundary lino 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 intersection of tha southern boundaries of the Hudson's Bay Territories; thence the boundary line of Ontario is the southern boundary of those Territories to the point where ;hat boundary would be intersected by a line drawn north from the head of Lake Temiscaiuing. ii?t: The Likutknant-Goveunor to the Secretary op State.! Government House, Toronto, 19th April, 1872. Sir, — Adverting to the correspondence that has taken place with reference to the settlement of the boundary line between the Province of Ontario and the North- West Territories, 1 liave now the honour to transmit a copy of an Order in Council, approved this day, having regard to that question, and to invite the attention of the Dominion Governn ent thereto. I have the honour to bo. Sir, "Your obed->nt ocrvant, W. P. H0WI,AND. Hon. Secretary of State (Provinces), Ottawa. The Secretary of State to the Lieutenant-Governor. { Department op the Secretary of Sta'te for the Provinces, Ottawa, 22nd April, 1872. Sir, — I have the honour to acknowledge the receipt of your despatch of the 19th instant, adverting to previous correspondence with reference to the settlement of tlie boundary line between the North- West Territories and the Province of Ontario, and covering a copy of an Order of yotr Executive Council in relation to that question. I have the honour to be, Sir, . , YovLT obedient servant, Joseph Howk, Secretary of State for the Provinces. Hon. W. P. IJowland, C.B^ Lieutenant-Governor, xoronto. * Sess. Papers, Ont., 1875, No. 44, p. 19. ■fibid., p. 1^. tibid., p. 19. EXPENDITURE OF PUBLIC MONEYS AT TUUNDKR BAY, ETC., 1872. 231 The Secretary Department of Public Works to tub Secretary of State.* Department of Public Works, Ottawa, 24th April, 1872. , Sir, — I am directed to transmit herewith, an account against the Province of Ontario, for maintenance of police force at Thunder Bay, and cash advances, etc., for Court House at Prince Arthur's Landing, amounting to S4,035.74, and to request that application may be made to the Government of that Province for an early settlement of the same. I have the honour to be, Sir, Your most obedient servant. F. Honodrablo the Secretary of State for the Provinces, Ottawa. Braun, Secretary, . . Tub Secretary of State to the Lieutenant-Governor.* ' Ottawa, 26th April, 1872. Sir, — I have the honour to transmit you herewith, for the consideration of your Government, a copy of a letter from the Secretary of the Department of Public Works, together with the account therein referred to, amounting in all to the sum of four thousand and thirty-five dollars and seventy-four cents, for the maintenance of a police force at Thunder Bay, and for cash advances, etc., for the Court House at Prince Arthur's Landing. I have the honour to be. Sir, Your most obedient servant, , ;. • Joseph Howb, ■' ' Secretary of State for tlie Provincea, The Honourable W. P. Howland, C.B., Lieutenant-Governor, Toronto. ' ! Report of the Minister of Justice.! Department of Justice, Ottawa, Isl, May, 1872. With reference to a despatch of the Lieutenant-Governor of Ontario, of the 19th April, transmitting an Order in Council of that Province of the same date, on the subject of the northern and western boundaries of the Province of Ontario, and in which the Government of that Province transmits a description of what it holds those boundaries to be. The undersigned has the honour to report that a considerable difference exists between the Government of Canada and that of Ontario, in respect to the said northern and western boundaries of Ontario, and until iuch boundaries are properly ascertained and defined, no criminal jurisdiction can be tflfectively established or exercised in the disputed territory. Having reference to the prospect of a large influx of people into the North-West Territories, it is very material that crime should not go unpunished or unprevented, and ' 'k il f & gl ^M -t ' i •li #Ses8. Papers, Ont., 1873, No. 44, p. 26. ilbid., p. 20. 232 DOMINION PROPOSAL FOR REFERENCK TO JUDICIAL COMMITTKE, 1872. in this view the undersigned haH the honour to Huggest that the Oovornmont of Ontario be invited to concur in a statement of the case for immediate reference to the Judicial Committee of the Privy Council of England, with a view to the settlonient, hy a judgment or decision of that tribunal, of the western and northern boundaries of Ontario. This is the more necessary as no conventional arrangement between the two Govern- ments, as to boundary, can confer criminal jurisdiction on the Courts of Ontario, unleRs the place where any crime moy be committed is, by law, witliin the Province. The undersigned has the honour, also, to call attention to the fact that the mineral wealth of the North-West country ia likely to attract a large immigration into those parts, and, with a view to its development, as well as to prevent the confusion and strife that is certain to arise and continue among the miners and other settlers .so long as the uncertainty as to boundary exists, the undersigned begs leave to recommend that the Government of Ontario be urged to arrange with that of the Dominion for some joint course of action as to the granting of land and of mining licenses, reservation of royalties, etc., and for this purpose he would suggest that the Governn.ent of Ontario be moved to appoint a Commissioner to meet the Hon. J. C. Aikins, and arrange some joint system ; and that any such arrangement, when ratified by the two Governments, shall be held to bind both, and shall be subject to the decision of the Judicial Committee of the Privy Council upon the question of the boundary ; and that after such decision, titles to land» or mining rights shall be confirmed by the Government, whether of Canada or of Ontario, as sli ill, under the decision of the Judicial Committee, be the proper party to legalize the same. All which is respectfully submitted. John A. Macdonald. Rbport of a Committee of the Privy CouNciTi, approved ry tub Oovernor-Gewbhal ON THE 16th May, 1872.* The Committee of Council have had under consideration the annexed Memorandum, dated May 1st, 1872, from the Honourable the Minister of Justice, having reference to the settlement of the question of the northern and western boundaries of the Province of Ontario, and they respectfully report their concurrence in the recommendations submitted in the said Memorandum, and advise that the same be approved and adopted. Certified. To the Honourable The Secretary of State, etc., etc., for the Provinces. Wm. H. Lee, Clerk P.O. The Secretary of State to the LiEUTENANT-GovERNOR.f Ottawa, 16th May, 1872. Sir, — Referring to your despatch of the 19th ultimo, covering an Ordc^r in Council of the Government of Ontario, of the same date, on the subject of 'he northern and west<»rn boundaries of that Province, I have the honoui to enclose, for (li'> information of your Government, a copy of an Order of the Governor General in Council, da. ad to-day, together with a copy of the memorandum of the Honourable the Minister of Justice mentioned therein. 2. I am, at the same time, for reasons set forth in the memorandum, to invite the Government of Ontario to concur with the Government of Canada in a stateraent of th« #SeH8. Papers, One., 1873, No. 44, p. 21. ilhid., !>. 20. ONTARIO FAVOURS A CONVENTIONAL SETTLEMENT OR ARIUTRATION. 233 tlxCDONALD. case now in dispute between tho said Qovemments, rcHpecting such boundaries, for immediate reference to the Judicial Committee of the Privy Council, with the view to a Hflttlement, by a judgment or decision of that tribuniil, of tlje western and northern boundaries of Ontario. 3. I am also to urge upon the Government of Ontario the necessity, in view of tho facts stated in the last paragraph of the accompanying memorandum, of arranging with tho Government of the Dominion for some joint course of action as to the granting of land and of mining licenses, reservation of royalties, etc., in the portion of territory in controversy, and for this purpose I have to request you to move your Government to appoint a Commissioner to meet the Honourable J. C. Aikins to arrange such joint system, on the understanding that any such arrangement when ratified by the two • iovornments shall be held to bind both, and shall be subject to the decision of the Judicial ( 'omraittee of the Privy Council upon tho question of the boundaries, and that after such decision titles to lands or mining rights shall be confirmed by the Government, whether of Canada or of Ontario, as shall under the decision of tho Privy Council be the proper party to legalize the same. ,. .. . , I have t'lo honour to be, Sir, Your most obedient servant, The Honourable Wm. P. Howland, C.B., Lieutenant-Governor, Toronto. Joseph Howb, Secretary of State for the Provineet. /EIlNOR-GEiCBBAL Order in Council, approved by the Lieutenant-Governor on the SIst Mat, 1872.* The Committee of Council have had under consideration the despatch from tho Secretary of State for the Provinces, of the 16th May with the Minute of Council and memorandum of the Minister of Justice enclosed in that despatch, all relating to the settlement of the question of the northern and western boundaries of the Province of Ontario. The Committee of Council regrets that the Government of Canada does not propose in any respett to modify its views with reference to these boundaries, opposed as these views are to the general tenor of the expressions and conduct of the Governments of the late Province of Canada, and of the Dominion in the past. The Committee of Council also regrets that the Government of Canada is not prepared to negotiate for the arriving at a conventional arrangement as regards the boundaries. The Committee infers that the Government of Canada disapproves of that course in consequence of the difficulty stated in the following extract from the memorandum of tho Minister of Justice. "This is the more necessary as no conventional arrangement between the two Governments, as to boundary, can confer criminal jurisdiction on the Courts of Ontario, unless the place where any crime may be committed is by law within the Province." The Committee desires to call attention to the third clause of the Act of the Imperial Pailiament, passed 29th June, 1871, chap. 28, which is in these words : " The Parliament of Canada may, from time to time, with the consent of the Legisla- ture of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby." It appears to tho Committee that under tho operation of this clause it is quite possible to arrive at a conventional settlement of the question by the joint action of the Executive and Legislative authorities of the Dominion and of the Province. * Sess. Papers, Ont., 1873, No. 44, p. 21. i u J^. -'^- IMAGE EVALUATION TEST TARGET {MT-3) 1.0 I.I 1^ Ilia 2.0 1.8 ■ 1.25 1.4 i4 ^ 6" - ► '^1 V. ^^ / % ^> ^) p PhotDgraphic Sciences Corporation 4^ \ «■ \\ '% \ ^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4S03 ^% J £2 SJ \\ 234 COUNTER-PROPOSALS ON BEHALF OF ONTARIO, 1872. it* m ili- ' ;♦). With reference to the emergency arising out of the expected immigration during this spring and summer, it appears to the Committee that a short Act of the Parliament of Canada, providing that the boundaries of the Province of Ontario should, for the purposes of criminal jurisdiction, and so far as the Parliament of Canada can provide, be deemed, pending the settlement of the question, to extend as far as the limits which are specified in the memorandum transmitted to the Government of Canada by this Government, would, though open to some obiection, afford the best practicable solution of that difficulty. With reference to the proposed submission to the Judicial Committee of the Privy Council, this Committee begs to observe that the solution of the boundary question depends upon numerous facts, the evidence as to many of which is procurable only in America, and the collection of which would involve the expenditure of much time ; and upon the whole the Committee is of opinion that the more satisfactory way of settling the question, should the Government of Canada still decline to negotiate for a conven- tional boundary, would be by reference to a Commission sitting on this 'side of the Atlantic, and the Committee recommends that, without for the present dealing definitely with the proposal of the Government of Canada for a reference to the Judicial Committee, this counter-suggestion should be made to that Government. The Committee of Council entertains a strong conviction that it is the duty of the Government of Ontario to retain in the meantime the control of the lands within the boundaries claimed by it ; but as it is anxious that the policy of the Government with reference to the disposition of these lands should, so far as practicable, conform to the views of the Government of Canada, the Committee agrees that an effort should be made to avoid the possible difficulties arising from the claims put forward by that Government, and with this view the Committee recommends that the Honourable R. W. Scott should be requested to confer with the Honourable J. C. Aikins, as proposed by the despatch of the 16th May. Certified. J. G. Scott, Clerk E. C. Executive Council Chamber, 31st May, 1072. The Likutknant-Govkrnor to the Skcbbtaby op State.* GOTERNHENT HouSE, Toronto, 31st May, 1872. Sir, — T have the honour to transmit herewith a copy of an Order in Council, approved this day, having reference to the settlement of the boundary line between the Province of Ontario and the North-West Territories, and to invite the early attention of the Dominion Government thereto. I have the honour to be. Sir, Your obedient servant, W. P. HoWtAND, Per E. G. Curtis, Private Secretary. Hon. Secretary of State (Provinces), Ottawa. * Sess. Papers, Out., 1873, No. 44, p. 21. EXPENDITURE OF PUBLIC MONEYS AT THUNDER BAY, ETC., 1872. 235 The Seckktary op State to the Lieutbnant-Govebnob.* Department of the SEORETAKy of State fob the Provinces, Ottawa, Ist June, 1872. Sib, — I have the honour to acknowledge the receipt of your despatch of the Slst ultimo, covering a copy of an Order of your Executive Council, having reference to the settlement of the boundary line between the Province of Ontario and the North- West Territories. Your despatch and its enclosure will be brought under the early notice of the Governor- General in Council. I have the honour to be, Sir, Your obedient servant, Joseph Howe. Secretary of State for the Provinces, Hon. W. P. Howland, C.B., Lieutenant-Governor, Toronto. / The Secbetary of the Depabtment of Public Woeks (Canada) to the iSkobetaby OF State. t Public Woeks, Ottawa, 10th June, 1872. Sir, — I have the honour to enclose herewith, sundry accounts, with vouchers of an expenditure amounting to $797.09 (seven hundred and ninety-seven dollars and nine cents), disbursed by Mr. S. J. Dawson, in charge of the Bed Biver route, for the main- tenance of a police force at Thunder Bay. The Minister of Public Works requests that you will be good enough to present the same to the Ontario Government for payment. . I have the honour to be. Sir, Your obedient servant, F. Bbaun, Secretary. The Honourable the Secretary of State, etc., etc., etc. ''I ''9 1 The Secbetary of State to the LiEUTENANT-GovBBNOR.t Ottawa, 13th June, 1872. SiE, — I have the honour to transmit to you, herewith, a copy of a letter from the Department of Public Works, together with the accounts and vouchers therein referred to. May I request that you will have the goodness to bring these documents under the early notice of your Government. I have the honour to be, Sir, Your most obedient servant. The Honourable W. P. Howland, Lieutenant-Governor, Toronto. Joseph Howe, Secretary of State for the Provinces, Seas. Papers, Ont., 1873, No. 44, p. 22. t7?)td., p. 25. ' i. 4: lH.Vf w n-. 236 EXPENDITURE OF PUBLIC MONEYS AT THUNDER BAY, ETC., 1872. The Lieutenant-Governor to the Secretary of State.* Government House, Toronto, 25th June, 1872. Sib, — Adverting to your despatch under date the 26th April last, enclosing a copy of a le*'flr from the Secretary of the Department of Public Works of Canada, together with certain accounts therein referred to, amounting to the sum of $4,085.74, for the maintenance of a police force at Thunder Bay, and for cash advances for the Court House at Prince Arthur's Landing, I have the honour to transmit herewith cheques of the Treasury Department, Ontario, Nos. 782 and 783, drawn in favour of the Dominion Government for the sums of $215.02 and $793.81 respectively, being in discharge of items in connection with the Court House at Prince Arthur's Landing. With reference to the other items in connection with the maintenance of a police force at Thunder Bay, I have at the same time to intimate that my Government has been unable to ascertain the authority from the Province of Ontario upon which the Province is now asked to pay these amounts, and I have, therefore, to request you to be good enough to state, for their information, the authority upon which the expenditure in question has been made. While my Government fully concurs in the view of the Government of the Dominion of Canada, that Thunder Bay and that part of the Bed Biver road, the construction of which has given rise to the claim now made, is within the limits of the Province of Ontario, I cannot but observe that the Government of the Dominion of Canada is at this moment preferring a claim to that territory on the ground of its being beyond the limitA of this Province. I have the honour to be. Sir, Your most obedient servant, W. P. HOWLAND. To the Honourable The Secretary of State for the Provincer,, Ottawa. Order in Council, approved by the Lieutenant-Governor on the 2Gth Junk, 1872.* ii! The Committee of Council have had under consideration the despatch of the Secre- tary of State for the Provinces to his Excellency the Lieutenant-Governor, dated the 26th April, 1872, enclosing a letter from the Department of Public Works of Canada, respecting the transmission of an account against the Province of Ontario for maintenance of police force in Thunder Bay, and cash advanced, etc., 'or Court House at Prince Arthur's Landing, amounting together to $4,035.74. The items in connection with the Court House at Prince Arthur's Landing, amounting to $798.91 and $215.02, making together $1,008.98, are correct, and cheques have been issued for these amounts, and the Committee recommend that they should be transmitted to the Secretary of State. With reference to the other items in connection with the maintenance of polite force, the Committee have been unable to ascertain the authority from the Province of Ontario upon which the Province is asked to pay the aimunt, and the Committee recommend that ihe Secretary of State be requested to furnish that authority. The Committee agree in the view of the Government of Canada that Thunder Bay and that part of the Eod Biver road, the construction of which has given rise'to the claim, is within the limits of the Province of Ontario, but they feel bound to observe that the Government of Canada is at this moment preferring a claim to that territory as beyond the limits of Ontario. Certified, J. G. Scott, Clerk, Executive Council, Ontario. * Seas. Papers, Out., 1873, No. 44, p. 26. , 1872. EXPENDITURE OF PUBLIC MONEYS AT THUNDER BAY, ETC., 1872. 237 JB." I June, 1872. , enclosing a copy : Canada, together $4,035.74, for the Qces for the Court jre-with cheques of .r of the Dominion ng in discharge of lenance of a police ly Government has ■io upon which the ) request you to be Lch tiie expenditure 3nt of the Dominion 1, the construction of the Province of of Canada is at this g beyond the limits :vant, P. HOWLAND. THE 2Gth June, spatch of the Secre- Governor, dated the y. Works of Canada, irio for raaintenance frt House at Prince jonnection with the id $215.02, making [se amounts, and the Itary of State, lance of polke force, |Province of Ontario imittee recommend . that Thunder Bay ffen rise' to the claim, I to observe that the territory as beyond 3C0TT, \ouncil, Ontario. The Under-Secretary of State to the Lieutenant-G >vernor.* Secretary of State for the Provinces, Ottawa, July 2nd, 1872. Sib, — I have the honour to acknowledge the receipt of your despatch of the 25th ultimo, in reply to one from the Secretary of State for the Proviuces, under date the 26th April last, enclosing a copy of a letter from the Secretary of the Department of Public Works of Canada, together with certain accounts therein referred to, amounting to $4,085.74, for the maintenance of a police force at Thunder Bay, and for cash advances for the Court House at Prince Arthur's Landing. I have also to acknowledge the receipt of two cheques (enclosed in your despatch) on the Treasury Department, Ontario, in favour of the Dominion Government, for the sums of $215.02 and $798.81 respectively, being in discharge of items in connection with the Court House at Prince Arthur's Landing, A copy of your despatch has been com- municated to the Minister of Public Works, and his attention has been callad to the request made by you on behalf of your Government, to be informed of the authority upon which the Province of Ontario is called upon to pay the expenses specified in the accounts in connection with the maintenance of the police force at Thunder Bay. I have the honour to be. Sir, Your obedient servant. The Honourable Wm. P. Howland, C.B., Ideutenant-Governor, Toronto. E. A. Meredith, Under-Secretary of State. Bank of Montreal Deposit Receipt. + (Ordinal /or the Depositor.) No. 576. $1,008.88. Bank op Montreal, Ottawa, 15th July, 1872. Received from Dept. Public Works, on account of transportation service, N.-W. Territory, the sum of ten hundred and eight -^^(^ dollars, which amount will appear at the Beceiver-Generars credit with this Bank. Ent. 8 p. Signed in duplicate. Jas. Smith. The Secretary of the Department of Public Works (Can.) to the Provincial Secretary, t Ottawa, July 24th, 1872. Sib, — I have the honour to enclose herewith a duplicate receipt for the sum of $1,008.83 paid into the Bank of Montreal by this Department, on account of transport service, N.-W. Territory, and paid to the credit of the Receiver-General of the Dominion. I have the honour to be. Sir, Your obedient servant, F. Bbaun, Secretary. The Honourable The Provincial Secretary of Ontario, etc., etc., Toronto. ♦ Seas. Papers, Ont., 1873, No. 44, p. 26. ilbid., p. 27. .« •<<' :!k|| A 238 RENEWED PROPOSAL OF DOM. FOR REFERENCE TO JUDICIAL COMMITTKi; Report of a Committee op the Privy Council, approved by the Qovshnor- General on the 7th November, 1872.* The Oommittee of Council have had under consideration the despatch from the Lieutenant-Governor of Ontario of the 31st May last, transinitting a further Order in Council of that Province on the subject of its northern and western boundaries. The Committee have the honour to report that the importance of obtaining an authoritative decision as to the limits, to the north and to the west of the Province of Ontario, has already been afErmed by Minute in Council. That the establishment of criminal and civil jurisdiction, and the necessity of meeting the demands of settlers and miners for the acquisition of titles to lands, combine to render such a decision indispensable. In reference to the northern boundary, the Government of Ontario contend that it lies to the north ut the watershed which divides the waters running to the south from those which run towards Hudson's Bay, and oflfer, " Should this view be acceded to by the Government of the Dominion, to consider any proposal which may be made to them by that Government for the establishment of a conventional limit to the north of that watershed " — and as regards the western boundary line, they state that it may be defined by a line drawn north from a point west of the Lake of the Woods and on the 49th parallel of north latitude, where that parallel would be intersected by a line drawn north from the source of the Mississippi River, and from thence to the point of intersection with the southern boundary of the Hudson's Bay Territory, but reserve, in the event of such a line not being agreed to by the Canadian Government, the right to contend that the boundary of Ontario is still farther to the west. The northern boundarj' of Ontario, the Government of the Dominion believe to be the line of the watershed separating the waters which run towards Lake Superior from those which run towards Hudson's Bay; and the western boundary, a line drawn in accordance with the provisions of 14 George III., chapter 83, from the conflux of the Mississippi and Ohio rivers northward (i.e., by the shortest northward course) to the southern boundary of the Hudson's Bay Company's Territories. With the divergent views thus held by the respective Governments, and consider- ing the limits within which the Government of Ontario propose to circumscribe the possible conventional boundaries, the ditficulties which would attend an attempt to arrive at a settlement of the present differences between the two Governments in that mode are manifest, and in the opinion of the Committee too great to render such an attempt expedient. To place the territory in dispute, pending the settlement of the question, within the limits of Ontario for criminal purposes, as suggested in the Order in Council of that Province of the Slst May, whilst not at all providing for the sale or management of lands or granting titles thereto, or for civil jurisdiction, would, there is good reason to apprehend, be beyond the powers conferred by the " British North America Act of 1867," and would be objectionable, not only as tending to render one party to the dispute less anxious possibly for its settlement, but, also, as calculated to exercise a prejudicial influence on the ultimate assertion of th i rights of the Dominion. The Government of Ontario without, for the tiir.e, definitely dealing with the proposal of the Government of Canada for a reference to the Judicial Committee of the Privy Council, observe that " the solution of the boundary question depends upon numerous facts, the evidence of many of which is procurable only in America, and the collection of which would involve much time, and suggest that the more satisfactory way of settling the question, should the Government of Canada still decline to negotiate for a conventional boundary, would be by a reference to a Commission sitting on this side of the Atlantic." The Committee are of opinion that the evidence upon which the decision of the boundaries in question would deptMid, is chiefly, if not altogether, of a documentary character, and would be found rather in the Imperial Archives than in America, and ♦ SesB. Papers, Ont., 87'., No. 44, p. 23. ^^^^: OMMITTEE. PROPOSAL TO SUSPEND ISSUE OF PATENTS, ETC., AT HEAD OF SUPERIOR. 239 HE GovlilNOR- that any which exists here might readily be supplied, whilst an authoritative decision by the Judicial Committee of the Privy Council would be final, and command that general assent which is so important in endeavouring to ac^ust questions of an inter- provincial character. There are objections also to this proposal as regards the mode of conferring legal powers upon such a Commission, which it would be found very difficult, if not impossible to deal with, and the Committee doubt whether any other tribunal than that of the Queen in Council would be satisfactory to the other Provinces of the Dominion in the decision of questions in which they have a large interest, the importance of which is, by current events, being constantly and rapidly augmented, and they respectfully recom- mend that the proposition for a reference to Her Majesty in Council be renewed to the Government of Ontario. They recommend, therefore, that a copy of this Minute, if approved, be trans- mitted to the Lieutenant-Governor of Ontario by the Secretary of State for the Provinces. Certified. W. A. HiMSWORTH, C. P. C. The Secretary of State to the Lieutenant-Governor.* Department of the Secretary of State for the Provinces, Ottawa, 12th November, 1872. Sir, — With reference to your despatch of 31st May last, and its enclosure, I have the honour to transmit to you herewith, for the information of your Government, a copy of an Order of His Excellency the Governor-General in Council, on the subject of the northern and we^tcru boundaries of the Province of Ontario. I have the honour to be. Sir, • Your obedient servant, Hon. W. P. Howland, C.B., Lieutenant-Governor, Toronto. Joseph Howe, Secretary of State for the Provinces. Report of the Secretary of State (Canada), t The Secretary of State has the honour to submit to your Excellency in Council that appli3ations have been made to him for mining licenses and patents for lands in the neighbourhood of Lake Shebandowan and in places about the head of Lake Superior, and he recommends that, pending the locating of the boundary line between the North- West Territory and the Province of Ontario, no action be taken upon these or any similar applications ; he further recommends that the Lieutenant-Governor of Ontario be informed of the course proposed to be taken by your Excellency's Government ; and that it be suggested that the Government of that Province should in like manner refrain from granting patents or mining licenses in the region of country about the head of Lake Snperior and Lake Shebandowan until after the boundary line shall have been settled, and he begs further lo submit that it is of much importance that the ascertaining and tixing on the ground of the boundary line in question should, as far as possible, be expedited. J. C. AlKINS. 25th November, 1871. ♦ Sess. Papers, Ont., 1873, No. 44, p. 23. t House of Commons Return, 19th March, 1881, No. 37, p. 12. ''% u M 240 REFKUENCE IN LIEUT.-aOV.'s SPEECH TO THE llOUNDARY NEQOTIATIONS, 1873. Extract from the Spekcu of His Honour tue Lieutenant-Governor of Ontario ON TUB Ol'KNlNQ OF TUE LEUIdLATUhE, 8tU JANUARY, 1873.* Since we last met negotiations have taken place between the Dominion Government, and myself on the subject of the northern and western boundaries of the Province. The correspondence will be laid before you. Meanwhile, I have directed investigation.^ to be made which were necessary to the establishment of the rights of Ontario, and a mass of evidence in favour of the boundaries claimed by Ontario has been accumulated, which will I hope prove abundantly sufficient to secure a favourable result. Eesolution of the L"uislative Assembly of Ontario. + Legislative Assembly, Toronto, 20th January, 1873. Kesolved, That an humble address be presented to His Excellency the Lieutenant- Governor, praying His Excellency to cause to be laid before this House — So much of the memorandum of the Cooimissioners of Crown Lands, made iu March, 1857, as relates to the north-west boundaries of Canada ; also, the report of Mr. Chief Justice Draper respecting his mission to England, in 1857, on the subject of the claims of the Hudson's Bay Company, together with copies of the two documents '•elating to the boundaries of Canada, laid before the Committee of the House of Commons the Chief Justice. The Lieutenant-Goveenob to the Secretary op State. J Government House, Toronto, 31st January, 1873. Sib, — I have the honour to transmit herewith a copy of a» resolution of the Legis- lative Assembly of this Province, asking for certain informaoiou relative to the north- west boundaries, and to request you to be good enough to furnish the same at your earliest convenience. I have the honour to be. Sir, Your obedient servant, Hon. Secretary of State for the Provinces, Ottawa. W. P. HOWLAND. The Secretary of State to the Lieutenant-Governor. J Department of the Secretary of State for the Provinces, Ottawa, 3rd February, 1873. Sir, — I have the honour to acknowledge the receipt of your despat'^n of the 31st ultimo, covering a copy of a resolution of the Legislative Assembly of tiie Province of Ontario, asking for certain information relative to the north-west boundaries of Canada. ♦ Journals Leg. Aas., 1873, Vol. 6, p. 2. ilbid., p. 39. tSeaa. Papers, Ont., 1875-6, No. 14, p. 1. [ATI0N8, 1873. OORRESPONDKNrK RKHPKCTINO BOUNDARY PAPERS, 1873. 241 Your despatch will he submitted for tho early conaidemtion of the Oovornor-General in Council. I have the honour to be, Sir, i i Ycur obedient servant, Hon. W. P. Howland, C.B., Lieutenant-Governor, Toronto. JoREPH Howe, *^ Secretary of State for the Provinces. The Lieutenant-Governor to the Secretary op State.* |tl ■] Government House, Toronto, 14th March, 1873. Sir, — I have the honour to invite your attention to my despatch of Slst January labt, transmitting a copy of a resolution of the Legislative Assembly of this Province, asking for certain information relative to the north-west boundaries of Ontario. I have to request you to be good enough to furnish the same at your earliest convenience, with a view to its presentation to the Legislative Assembly this session. I have the honour to be. Sir, Your obedient servant, Hon. Secretary of State for the Provinces, Ottawa. W. P. Rowland. if. The Secretary of State to the Lieutenant-Governor.* Department of the Secretary of S'^'ate for the Provinces, Ottawa, 18th March, 1873. Sir, — Referring to your despatches of the Slst January last and the 1 4th instant, lequesting certain information relative to the north-west boundaries of Ontario, I have to acquaint you that I am informed that the memorandum of the Commissioner of ("rown Lands for the late Province of Canada, made in March, 1857, and referred to in the resolution of the Legislative Assembly of Ontario enclosed in your despatch first above mentioned, is uot in the possession of the Government, but will, vith the report of Mr. tJhief Justice Draper, referred to in the same resolution, be found in the appendi^i to the .Fournals of the Legislative Assembly of the late Province of Canada, Vol. 15, No. 4, 1857. I have the honour to be. Sir, Your obedient servant, Joseph Howe, Secretary of State for the Provinces. His Honour the Lieutenant-Governor of Ontario, Toronto. • Sees. Papers, Ont., 1876-6, No. 14, p. 2. &n 16 m m 'm 242 ui'-soLr'N ok lk(j. ass. kkmpkctino kkkkkknok to ARHITRATION, KT(\, 1874. TilK SiCRKTAKY OF StATK TO TUB LlKUTBNANT-CloVKH.VOK."' DKPABTslltNT OF THR SbORHTARV OF 8tATB, Ottawa, 26th December, 1H73. Sir, — I have the honour to invite your attention to the letter addreHsed to your predecesaor on the 12th November, 1872, covi^ring a copy of a report of Hia Excellency the Oovernor-General in Council, on the aubject of the northern and weatern boundari'M of the Province of Ontario. May I requeat that you will have the gommeaa to bring the matter under the early notice of your Government, with a view to their coming to a deciaion on the proposition contained in the Order in Council in question to submit the question of tho boundary to the deciaiort of the Judicial Committee of the Privy Council. I have the honour to be, 8ir, Your obedient servant. His Honour the Lieutenant-Governor of Ontario, Toronto. D. Christik, SecTfitairy of 8Mk Extract from the Spbbch of His Honour tub Lieutenant-Governor op Ontario, ON THE OpENINU OF THE LeoISLATURE, 8tH JANUARY, 1874. t The collection of evidence with respect to our North- West boundary is still going on ; and the evidence for and againat our claims will soon, I trust, be in a position to bo referred to some tribunal for adjudication. I have no apprehension as to the result. Meanwhile, informal negotiations have taken place for the adoption of a provisional line, HO that the settlement of the important territory in dispute may not be delayed for a deciaion as to the true and permanent boundary. Resolutions on the subject will probably be submitted for your consideration. Resolution of the Lboislativk Assembly of Ontario, passed 23rd March, 1874.1 Resolved, That this House approves of the reference of the question of the western boundary of this Province to arbitration, or to the Privy Council, acjording as the Lieutenant-Governor in Council shall see fit, and approves likewise of tho adoption of » provisional boundary line in tho meantime, on auch terms as may be agreed upon between the Government of the Dominion and the Government of thia Province. •■(':■■ Report of the Minister of the Interior. § Department op the Interior, June 2nd, 1874. The undersigned has to report that on the I6tb May, 1872, a Report of the Honourable the Privy Council was approved, embodying a memorandum from th*' • Sena. Papers, Ont., 1875-6, No. 14, p. 4. + Journals Leg. Abb., 1874, Vol. 7, p. 3. Xlhid., p. 262. §Sese. Papers, Ont., 1875.6, No. 14, p. 8. , KTC.lftT*. PROPOSAL FOB ADOITION OV I'ROVIHIOXAL ilOUNDAKII-X, 1874. 24.1 mber, 1873. IdrwBsed to your [ Hit* Excellency istern liountlari-* under the early m the proposition I the boundary to K, Mary of Stat^. CBNOR OP Ontario, 1874.+ ary is otill goi"g °" • 9 in a poftition to W 3n as to the result. ,f a provisional line, )t be delayed for a lubject will probably Honourable the Minister of Jastioo, having reference to the bonndaries of the northern and western part of Ontario, wherein the Minister of Justioe calls attention to the fact that the mineral wealth of the North- West country is likely to attract a largo immigra- tion into those parts, with a view to its development, as well as to prevent the confusion and strife that is cortner to meet the undersigned and arrange some joint system for the sale of lands, by tl. adoption of a conventional boundary on the west and north, and that after the final adJTi aent of the true boundaries, titles to the land should be confirmed by the Governn^ 'hether of Ontario or the Dominion, whichever should be the proper party to legs same. • David Laird, Minister ofl/ie Intflrior. m !) .!| I IsuD March, 1874.: Ltion of the western Kl, according as the tf tho adoption of a Igreeil upon between Ice. ERIPR. |une 2nd. 1874. OS a Report of the forandum from th' Keport ov a Committrk op tub Privy Council, approvrd by tub Govrrvor-Gbnbral ON THE 3rd Jcnr, 1874.="= The Committee of the Privy Council have had under consideration the memoran- dum, dated 2nd June, and hereunto annexed, from the Honourable the Minister of the Interior, representing that as some considerable time must elapse before the northern and western bouiiuaries of Ontario can be finally adjusted, it is desirable in the meantime to agree upon conventional boundaries, and suggesting that the Ontario Government be moved to appoint a Commissioner to meet with him, the Minister of the Interior, and arrange some joint system for the sale of lands, and adjusting disputed rights in the territory claimed by both Governments by the adoption of a conventional boundary on the west and nortli, and that, after the final adju itment of the true boundaries, titles to lands should be confirmed by the Government, whether of Ontario or the Dominion, whichever should he the party to legalize the same. The Committee concur in the recommendation submitted in the said memorandum, and submit the same for your Excellency's approval. W. A. Himsworth, Clerk Privy CiMtitcif^ * S688. PapoM, Ont.. l»7Mi, No. 14, p. 7. I 244 I A(iUKKMKNr FOR PROVIHIONAL B0UN<'7AKY, lU74. Thr Umder-Srcrriary of Btatr to the LiRUTRNAirr-QovBRiroR.* ^ Dkpartmknt or tub Secretaky of Htatb, ' Ottawa, 6th Jone, 1874. Sir, — I have the honour to transmit to you herewith a oopy of an Order in Council of the 8rd inst., BUggosting that your Government be moved to appoint a Comnii8siouer to meet the Honourable the Minister of the Interior, and arrange some joint system for the sale of lands, and adjusting disputed rights in the territory claimed by both Govern- ments, by the adoption of n conventional boundary on the west and north, and for the other purposes mentioned in the said Order in Connoil. I have the honour to be, Sir, Your obedient servant, His Honour the Lieutenant-Governor of Ontario, Toronto. Edouaro J. Lanobvin, Under-Secretary of State. Memorandum of Agreement for Provisional Boundary in Respect of Patents or Lands.! The Government of the Dominion of Canada having, by an Order in Council dated the Brd day of June, 1874, suggested that the Ontario Government should be moved to appoint a Commissioner to meet the Minister of the Interior and " arrange some joint system for the sale of lands, and adjusting disputed rights in the territory claimed by both Governments, by the adoption of a conventional boundary on the west and north, and that after the final adjustment of the true boundaries, titles to lands should be confirmed by the Government, whether of Ontario or the Dominion, whichever should be the proper party to legalize the same." And the Ontario Government having acted on the suggestion of the Privy CoudcII, by appointing the Commissioner of Crown Lands of that Province to meet the Minipttt of the Interior, and discuss the proposed arrangements, and the said parties having met thin day, have agreed to the following propositions as the basis of a memorandum to be submitted to their respective Governments : — 1. That the conventional boundary of the Province of Ontario, for the purposes set forth in the said Order in Council of the 8rd June instant, shall be, on the west, the meridian line passing through tht. most easterly point of Hunter's Island, run south until it meets the boundary line between the United States and Canada, and north until it intersects the fifty- first parallel of latitude ; and the said fifty- first parallel of latitude shall be the conventional boundary of the Province of Ontario on the north. 2. That all patents for lands in the disputed territory, to the east and south of the said conventional boundaries, until the true boundaries can be adjusted, shall be issued by the Government of Ontario ; and all patents of lands on the west or north of these conventional boundaries shall be issued by the Dominion Government. 8. That when the true west and north boundaries of Ontario shall have been definitely adjusted, each of the respective Governments shall confirm and ratify such patents as may have been issued by the other for lands then ascertained not to be within tlie territory of the Government which granted them, and eaoii of the respective (iovernments shall also account for the proceeds of such lands as the true boundaries, when determined, may show to belong of right to the other. 4. That the Government of the Dominion shall transfer to the Government of the Province of Ontario all applications for lands lying to the east and south of the conven- #SeB8. Papers, Ont., 1876-«, No. 14, p. 7. t/6irf., p. 10. BPKCT OF Patents AOREKMRNT VOR PROVISIONAL BOUNDARY, 1H74. 245 tional boundaries, and also all deposits paid on the samo ; and the Ontario Oovernmont xliall transfer to the Dominion Government all applications for lands lying to the west or north of tho said boimdarios, and likewise all deposits naid thereon ; ana such of the tinid iipplioiitions as iiro botuijide and in proper form, shall bo dealt with finally, according to tho priority of the original tiling, and where applications for the same lands have been filed in the Departments of both Governments, the priority shall be reckoned as if all had been filed m one and the same office. Signed in daplicate this 20th day of June, 1874. ' ' David Laikd, Minister uj the Interior. T. B. Pakdkk, Commiiisioiier of Crovm Lands. Rkpout op a Committee of tub Pkivv Gbnerai, on the 8th Council, approved DAY OF July, 1874.* BY TiiK Governor. The Committee have had under consideration a memorandum, dated 20th June, 1874, from the Honourable the Minister of the Interior, stating that, in pursuance of the suggestion contained in the Minute in Council of the 8rd June inst., relative to a provisional arrangement respecting the western and northern boundaries of the Province of Ontario and the questions therewith connected, the Ontario Government appointed the Hon. T. B. Pardee, Commissioner of Crown Lands in that Province, to meet him, the Minister of the Interior, at his office, with a view to their arriving at some understanding of a provisional nature on the subjects referred, and that on the 26th June ult., the memorandum hereto annexed was agreed upon, and he submits the same for the consideration of your Excellency in Council. The Committee oxb of opinion that the provisional arrangement proposed in the s lid memorandum is unobjectionable, and advise that the same be sanctioned by your Excellency in Council. Certified. W. A. HiMSWORTII, C. i'. C. 'I Order in Council, approved by the Lieutenant-Governor the 9th day of July, 1874.* The Committee of Council have had under consideration the Report of the Honour- able the Commissioner of Crown Lands, dated 2nd July, 1874, submitting for ratification and approval by your Excellency a joint memorandum signed by the Hon. David Laird, Minister of the Interior of the Dominion of Canada, and the Honourable the Commis- eioner of Crown Lands, wh&reof a copy is hereunto annexed, fixing a temporary conventional boundary of the Province of Ontario on the west and north, and adopting a system for the side of lands and for adjusting disputed rights in the territory claimed by both Governments. The Committee advise that the arrangements proposed in the said memorandum be adopted and ratified by your Excellency. Certified. J. G. Scott, Clerk, Executive Council, Ontario. tQeaa. Papers, Ont., 1875-0, No. 14. p. 9. 24C REPORT OF HON. ADAM CROOKS RFSPECTING REFERENCE TO ARBIT'n., 1874, Th« Lieutenant-Governor to the Secretary of State.* Government House, Toronto, 10th July, 1874. Sib, — I have the houour to transmi*. ^erevdth a copy of an Order in Council approving of a Joint memorandum, bignec' the Hon. David Laird, Minister of the ' . Xi.. nourahle the Commissioner of Crown i alsci t iCiosed), fixing a temporary boundary -^ ^' uh, and adoptug a system for the sale in '' erritory claimed by both Governments. Interior of the Dominion of Canada, an Lands of this Province (a copy of whic^ of the r.'ovince of Ontario on the west of lands and for adjusting disputed ri{,' 1 have, et" The Honourable the Secretary of Sta*e, Canada, Ottawa. John Crawford. The Ukder-Sboretary of State to the Lieutenant-Governor.! Department of the SEcaETAKV of State, Ottawa, 22nd July, 1874. Sir, — I have the honour to transmit to you, for the information of your Govern- ment, a copy of an Order of His Excellency the Governor- General in Council, approving of a memorandum of agreement adopted by the Hon the Minister of the Intarior, and the Hon. the Commissioner of Crown Lands of the Province of Ontario, relative to a provisional arrangement respecting the western and northern boundaries of that Province. I have the honour to be. Sir, Your obedient servant. Edouard J. Lanoevin, Under-Secretary of State. To His Honour the Lieutenant-Governor of Ontario, Toronto, Ontario. Report of the Hon. Adam Crooks, Member op the Executive Council, to tub Lieutenant-Governor. I May it please your Excellency : The undersigned has the honour to report the following on the subject of the western and northern boundaries of the Province of Ontario : By Chapter 28 of the Acts of the Parliament of the United Kingdom .of Great Britain and Ireland, passed in the Session held in the thirty- fourth and thirty-fifth years of Her Majesty's reign, and intituled "An Act respecting the establishment of Provinces in the Dominion of Canada," it was enacted that the Parliament of Canada might from time to uime, with the consent of the Legislature of any Province of the said Dominion, increase, diminish or otherwise alter the limits of such Province, upon sueh terms and conditions as might be agreed to by the said Legislature, and might, with the like consent, make provision respecting the effect and operation of any such increase or ♦ SesB. Papers, Ont. , 1875-6, No. 14, p. 8. t Ibid. , p. 9. % Ibid. , p. 14. See Order in Council, p. 249, pott. ti'xV;'-| BIT'N., 1874. TE.* JBE, 0th July, 1874. Order in Council I, Minister of the issioner of Grown aporary boundary stem for the sale oth Governments. N Crawpokd. AOKEEMENT FOR SUBMISSION TO ARBIT TION, 1874. 247 EBN0R.t State, ad July, 1874. n of your Govern- Council, approving it of the Interior, )ntario, relative to )onndaries of that iANGEVIN, etary of State. diiuinutiou or alteration of territory in relation to any Province affected thereby. By a resolution of the Legislative Assembly, passed on the drd day of March last, the House approved of the reference of the question of the western boundary of this Province to arbitration, or to the Privy Council, according as the Lieutenant-Governor m Council should see fit. It is considered by your Excellency's Council to be expedient that the question of the northern boundary of this Province should be determined at the same time as the western boundary, though the determination of the northern boundary is not of BO pressing importance as the other. In view of these objects, the undersigned, before his late visit to Ottawa on other public business, was authorized by the other members of your Excellency's Council to propose (subject to your Excellency's approval) to the Government of the Dominion that the question concerning the northern and western boundaries of the Province of Ontario should be rleteirmined by a reference to arbitrators to be mutually agreed upon, and whose standing and ability might readUy be expected to secure for their decision the confidence alike of the people of Ontario and the people of the Dominion. Your Excellency's Council were of opinion that a decision by such arbitrators is hkely to be more prompt and perhaps more satisfactory than any otiier mode of decision which is attainable. The undersigned was also authorized to suggest the name f the Hon. William Buell Aichards, Chief Justice of Ontario, as one of the arbitrators, subject to your Excellency's approval. Accordingly, the undersigned while at Ottawa conferred with the Premier and other members of the Dominion Government on the subject of the said matters, and made tiie above suggestions to them. The Government of the Dominion concurred in the views expressed on the part of the Government of Ontario, and proposed on behalf of the Dominion the name of the Hon. Lemuel Allan Wilmot, late Lieutenant-Governor of New Brunswick, to act in conjunction with the said Chief Justice, and that authority be given to the said the Hon. William Buell Biohards and the Hon. Lemuel Allan Wilmot, to agree upon a third person to be associated with them, such third person not being a resident of Canada, iind that the determination of a majority of such referees should be final anii cunolusive upon the limits to be taken as and for such boundaries as aforesaid respectively. The undersigned recommends that the Province agree to concurrent action with the Dominion in obtaining such legislation as may be necessary for giving binding effect to the conclusion which may be amved at, and for establishing the northern and western boundaries of the Province of Ontario in accordance therewith. n ■I.' Adam Croukb. Council, to tub "he subject of the [ingdom ,of Great ' thirty-fifth years lent of Provinces nada might from lie said Dominion, [n such terms and |ht, with the like such increase or 1 Council, p. 249, pott. 10th November, 1874. Report of a Committee of the Privy Council, approved by the Governor-General, ON THE 12th November, 1874.* On a memorandum dated 12th November, 1874, from the Hon. Mr. Mackenzie, stating that he recommends concurrence in the proposition of the Government of Ontario to determine by means of a reference the northern and western boundries of that Prov- ince relatively to the rest of the Dominion. That the Ontario Government having named the Hon. William Buell Richards, Chief Justice of Ontario, as one of the referees, he submits the name of the Hon. Lemuel Allan Wilraot, formerly Lieutenant-Governor of the Province of New Brunswick, to act in conjunction with him, and advises that authority be given them to agree upon a third person, not being a resident of Canada, and that the determination of a majority of such three referees be final and conclusive upon the limits to be taken as and for such boundaries respectively. * Sees. Papers, Ont., 1875-6, No. 14, p. 14. 248 AGREEMENT FOR SUBMISSION TO ARBITRATION, 1874. He further recommends that the Dominion agree to concurrent action with the Province of Ontario in obtaining such legislation as may be necessary for giving bindiu,^' efifeot to the conclusions arrived at, and for establishing the northern and western limit» of the Province of Ontario in accordance therewith. The Committee submit the above recommendations for your Excellency's approval. Certified. W. A. HiMSWOUTH, c. p. V. wB Hi \H'. Extract from the Speech of His Honour the Lieutenant-Oovernor of Ontario, o\ THE Opening of the Legislature, 12th November, 1874.* In accordance with a resolution passed at your last session, with respect to the westerly aud northerly boundaries of the Province, my Government and the Government of the Dominion have agreed on a provisional line, to be assumed as correct for the purpose of land grants by each Government until the true and permanent boundary shall be ascer- tained and determined ; and have agreed to leave to arbitration the question as to the permanent boundary. Two distinguished gentlemen have been selected for the office of ai-bitrators, and they are soon to enter upon their duties, and will probably finish their work in the early part of next year. The Under- Secretary of State to the Lieutenant-Governor.! Department of the Secretary of State, ' Ottawa, 2l8t November, 1874. Sir, — I am directed to transmit to you, for the information of your Government, a copy of an Order of His Excellency the Governor-General in Council, on the subject of the appointment of referees to determine the northern and western boundaries of the Province of Ontario, relatively to the rest of the Dominion. I have the honour to be. Sir, Your obedient servant. His Honour the Lieutenant-Governor of Ontario, Toronto. Edouard J. Lanoevin, Under-Secretary of State, The Under-Secretary of State to Hon. Lemuel Allan \Vilmot.| Department of the Secretary of State, Ottawa, 21st November, 1874. Sir, — I have the honour to inform you that His Excellency the Governor- General in Council has been pleased, at the instance of the Government of the Province of Ontario, to direct that the question of the northern and western boundaries of that Province rela- tively to the rest of the Dominion, be determined by moans of three referees, of whom one is to be named by the Government ' the Dominion, and one by the Government of Ontario — these two to have authority to agree upon a third, not being a resident of * Journalg Leg. Ass. , 1874, Vol. 8, p. 1. t Sess. Papers, Ont., 1875-6, No. 14, p. 13. t House of Corns. Return, 19th Marcl), 1881, No. 37, p. 2«. '•\i APPOINTMKNT OF ARBITRATORS, 1874. 249 lleacy's approval. Canada ; the determination of a majority of such three referees to be final and conohi sive upon the limits to be taken as and for such boundaries respectively. I am further directed to state that His Excellency desires to avail himself of your services as a referee on behalf of the Dominion for the above purpose, to act in con- junction with the Honourable William Buell Richards, Chief Justice of Ontario, the referee named by the Government of that Province. I am to add that the Dominion Government agree to concurrent action with tlie Province of Ontario in obtaining such legislation as may be necessary for giving effect to the conclusions arrived at, and for establishing the northern and western limits of the Province of Ontario in accordance therewith. May I request that you will have the goodness to acquaint me, for His Excellency the Governor-General's information, whether you are prepared to accept the office of referee for the Dominion, and that, if so, you will place yourself in communication with the Honourable Mr. Chief Justice Eichards. I have the honour to be. Sir, Your obedient servant, Hon. L. A. Wilmot, Fredericton, N.B. Edouard J. Lanoevin, Under-Secretary of State. il\ -t ^ 1 1' Order in Council, approved by the Lieutenant-Governor the 25th day of November, 1874.* The Committee of Council have had under consideration the annexed Report of the Hon. the Treasurer, dated 10th November, 1874, | with reference to the western and uorth°rn boundories of Ontario, and advise that the action of the Treasurer be approved of by your Excellency, and that the recommeudations contained in the said Report be acted upon. Certified. J. G. Scott, Clerk Exectitive Council, Ontario. The Asslstant Provincial Secretary to Chief Justice Richards.! Provincial Secretary's Office, Ontario, Toronto, 3rd December, 1874. Sir, — I am commanded by His Honour the Lieutenant-Governor to inform you that he has been pleased to appoint you one of the arbitrators in the matter of the settlement of the nortbern and western boundaries of the Province of Ontario. I am, at the same time, to transmit, herewith, copy of the Order in Council, and the recommendation of the Hon. the Treasurer relating to such propose;! arbitration. I have the honour to be, Sir, Yoiu" obedient servant. The Honourable Wm. Buell Richards, Chief Justice of Ontario. * Sess. Papers, Ont„ 187.5-G, No. 14, p. 14. \Ibid. p. 15. L R. Eckart, Assistant Secretary. X See Report, p. 246, on<<. .■ '...f I SI: Ill' P 260 ACT CREATING THE DISTRICT OV KEEWATIN, 1876. Extract from the Sperch of His Honour the Lieutenant-Governor of Ontario, ON the Opening of the Legislature, 25th November, 1875.* Since the dissolution of the last House, the question of the northerly and westerly boundaries of the Province has continued to receive the attention of the Grovernment. Informal negotiation'i have taken place with respect to both a compromise line and the arbitration which the Legislature authorized, but no final result has been arrived at ; meanwhile, steps have been taken for obtaining some additional evidence expected to be of value. An Act respecting the North-West Territories, and to create a Sbparatr Territory out of part thereof. t (Extract.) Whereas it is expedient, pending the settlement of the western boundary of Ontario, to create a separate territory of the eastern part of the North- West Territories : There- fore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : — 1. All that portion of the North-West Territories bounded as follows, that is to say : — Beginning at the westerly boundary of the Province of Ontario, on the international boundary line dividing Canada from the United States of America ; then westerly, following upon the said international boundary line, to the easterly boundary of the Province of Manitoba ; thence due north, along the said easterly boundary of Manitoba, to the north-east angle of the said Province ; thence due west, on the north boundary of said Province, to the intersection by the said boundary of the westerly shore of Lake Manitoba ; thence northerly, following the said westerly shore of the said lake, to the easterly terminus thereon of the Portage connecting the southerly end of Lake Winnepegosis with the said Lake Manitoba, known as " The Meadow Portage ; " thence westerly, following upon the trail of the said Portage, to the westerly terminus of the same, being on the easterly shore of the said Lake Winnipegosis ; thence northerly, following the line of the said easterly shore of the said lake to the southerly end of the portage leading from the head of the said lake into Cedar Lake, known as the "Cedar" or " Mossy Portage ;" thence northerly, following the trail of the said portage, to the north end of the same on the shore of Cedar Lake ; thence due north, to the northerly limits of Canada ; thence easterly, following upon the said northerly limits of Canada, to the northerly extremity of Hudson's Bay ; thence southerly, following upon tlie westerly shore of the said Hud.son's Bay, to the point where it would be intersected by a line drawn due north from the place of beginning ; and thence due south, on the said line last mentioned, to the said place of beginning ; shall be, and is hereby set apart as a separate district of the said North- West Territories by the name of the District of Keewatin. * Journals Leg. /. ssembly, 1875-6, Vol. 9, p. 4. t Doui. .\ct, 3!» Vic. chap. 21. Agsented to 12th April, 1870. INFORMATION AND DOCUMENTS FURNISHED BY H. B. CO. FOR THE ARBIT'N. 251 EATB A SkpARATR ,8 follows, that is TiiK Right Honourable Gborgb G. Goschen, Governor op the Hudson's Bay Company, to the Secretary op Stats (Canada). [From the Book ot Arbitration Documenta, p. 412. The foot notes are from the same place.] Hudson's Bay House, London, 12th December, 1876. Sir, — I have the honour to acknowledge your letters requesting information relating to the boundary between the Province of Upper Canada and the Territory held by the Hudson's Bay Company. I enclose a map, No. 1, showing the Territories claimed by the Company in^ virtue of the Charter granted to them by King Charles the Second. The map in question was prepared by Mr. John Arrowsmith, and was ordered by the House of Commons to be printed Slst July, and 11th August, 1857.* I also enclose a statement. No. 2, prepared for the Company in 1857, with reference to the Parliamentary inquiry which took place in that year, t The boundaries were then asserted to be, on the side of the United States, by the 49th parallel of latitude ; on the side of Canada, by the height of land whose waters flow into Hudson's Bay ; and on the north by the Arctic Ocean. J At the time of the passing of the Quebec Act, 1774, the Company had not extended their posts and operations far from the shores of Hudson's Bay.§ Journals of the following trading stations have been preserved bearing that date, namely : Albany, Henley, Moose, East Main, York, Severn and Churchill. || These Journals give no information upon the subject of the boundaries between Canada and the Territory of the Company, nor was the question raised in 1748, when the House of Lords held an inquiry with reference to the Company's affairs as at that time conducted. H I ■ ■:■■'> [The followiiiff rwtc8 are from the Book of Arbitration Doc "llie Company finding their trade seriously affected, extended the field nf their operations, and sent jiartieg to establish themselves in the interior. In process of time all smaller opposing interests were absorbed either by purchase or coalition in the North-West Company of Montreal, which thus became the sole rival and competitor tt) the Hudson's Bay Company. During many suocessive years a most disastrous contest was carried on between these two companies. Wherever one Company established a trading post, there at once the other Company also commenced operations. This system of close competition rapidly produced a general state of disorganization, resulting in scenes of violence and bloodshed between the Inilinns, the trappers and the traders, in the interests of the rival Coni[)anie8." ' And the French had their forts and posts on the rivers and lakes of the northern watershed, and carried away the best of the trade, even pushing their operations to the very shores of the Bay, as at La Carpe, Temiscamingue, and on the east coast, to the north of Slude River. In the west the French had forts on nearly all the lakes and rivers- five of which on the Saskatchewan, >ine at its very source in the Rocky Mountains. See also evidence, pp. SO.I-O [Arb. Docs.]. t See map No. 186, p. 139 [Arb. Docs.]. S This admission of the Chairman of the Conn)iiny af-rees with the Company's Statement qf 1857, here- inbefore referred to, and with what the French ana their Canadian successors always claimed,— the territory tliey occupied being co-extensive with their claims. Thus it is admitted that the Companv, up to 1774, had not proceeded far from the shores of the Bay, whilst on the other hand, it is clear that the French, up to 1763, hod maintained themselves in, and carried off the trade of the interior almost up to these very shores,^ — of portions of which they were in actual possession. It follows, therefore, that the " southern boundary of the teiTitory " granted to the Hudson's Bay Company, and contemplated in the Quebec Act, could not have l)eeii fur from the shores of the Bay. II Not yet come to the hands of the Government of Ontario. 1l Til's Report of the Lords, dated 1749, is largely quoted from, pp. 395-400 [Arb. Doc«.]. 252 MANITOBA ACT RESPECTlNa THE BOUNDARIES, 1877. A map, No. 3, no doubt prepared for that occasion, and sent herewith, shows the extent of country to which these operations were then confined. * At a subsequent period, namely in 1777, a map was published in London by John Andrews, giving the height of land, near Lake Abitibi and other quarters, and showin<; certain boundaries for the Province of Upper Canada, t I am to request that the maps and documents accompanying this letter may be returned to the Company when the inquiry to which you refer has been completed. I shall be glad if you find them useful for the pui pose of defining the boundary line between the Dominion and Ontario. I have, etc. The Honourable R. W. Scott, Secretary of State for Canada, Ottawa. George G. Go8chen. !*■ '.^>, Extract prom the Speech op His Honour the Libutenant-Governor oj? Ontario, ON the Opening of the Legislature. 3rd January, 1877.| For the determination of the Provincial Boundaries by the agreed method of an arbitration, the appointment of a new arbitrator on behalf of the ^Province recently became necessary, the distinguished judge who was to occupy that position having requested to be relieved from it. Meanwhile, a provisional line had been mutually determined upon in terms of the resolution of the Legislative Assembly at a former session ; a considerable amount of additional materials for the ascertainment of the ultimate boundaries had been collected ; a new and an exhaustive statement of the case of Ontario had been prepared ; and a considerable part of the documentary and other evidence affecting the questions at issue had been printed. Almost everything is nov/ ready for the final decision, within a few months, by able and competent referees, of questions which for two centuries have given occanion to keen controversy, and often to fierce conflicts between the nations, as well as the great public bodies who have from time to time claimed portions of the disputed territory. An Act op the Legislature op Manitoba for the Definition op the Boundaries OF that Province.^ Whereas the boundaries of the Province of Manitoba, as defined by the Act of Canada commonly called the Manitoba Act, and passed in the thirty-third year of Her Majesty's reign, have never been surveyed ; and whereas, in consequence of the uncer- tainty arising therefrom, questions of jurisdiction in civil and criminal matters may arise; and whereas it is desirable to obviate such inconvenience by the temporary adoption of certain known and defined lines as the boundary of the Province ; and whereas under authority of the Act of the Parliament of the United Kingdom of Great Britain and Ireland passed in the session held in the thirty-fourth and thirty-fifth year of the reign of Her Majesty Queen ^'"jtoria, which may be cited as tht British North America Act of 1871, the Parliament ot Canada may, with the consent of the L'^gislature of any Province of the Dominion, alter the boundary of any such Province ; Her Majesty, by and with the advice and consent of the Legiislative Assembly of Manitoba, enacts as follows : [The two next following iiotea xrefrom the Book of Arbitration Documenti, — Cf. B. Zr.] *Thi8 is map No. 80, p. 136 o [Arb. Docs.]. + This is map No. 156, p. 1(56 ff [Arb. Docs.]. The Province of Ui)per (J«nada had not then l)etn eated. The boundary line given is an imaginary one, without any authority. t Journals Leg. Assembly, 1877, Vol. 10. p. 2. § Manitoba Stat., 40 Vic, cap. 2. Assented to 28th February, 1877. l!i MANITOBA ACT RESPECTING THE UOUNDARIES, 1877. 253 erewith, shows the n London by John .rters, and showinj; this letter may be en completed. 5 the boundary line s G. GOSCUEN. ERNOR oi" Ontario, 1877.t jreed method of an ) Province recently lat position having had been mutually lembly at a former icertainment of the batement of the case lumentary and other t everything is now mpetent referees, of oversy, and often to who have from time OF THE BOUNDARIKS ined by the Act of y-third year of Her iUence of the uncer- 1 matters may arise ; iporary adoption of and whereas under Great Britain and [th year of the reign orth America Act of iure of any Province hlative Assembly of -9. B. L.] lada had not then betn 1. The Legislature of Manitoba agrees and consents that the limits of the Province may be altered by the Parliament of Canada by the temporary establishment of certain known and defined lines as the boundaries of the Province, in place and stead of the l.oundaries establijh'^d by the Act of Canada passed in the thirty-third year of Her Majesty's reign, aiid chaptered three ; and which boundaries that may be so established, aid which are hereby consented to, shall be as follows : — Commencing aj) the intersection of the international boundary, or forty-ninth parallel of north latitude, by the westerly boundary of township number ono in the twelfth range west of the principal meridian in Manitoba ; thence due north, following the westerly boundaries respectively of townships one and two, to the intersection thereof by the southerly limit of the road allowance on the first correction line ; thence due west along tlie latter to the intersection thereof by the westerly limit of township three in the afore- said twelfth range west ; thence due north, following the westerly limits respectively of townships three, four, five and six in the said twelfth range, to the southerly limit of the ron'l allowance on the second correction line ; thence westerly upon the latter to the intersection thereof by the westerly limit of township seven in the aforesaid twelfth ranj(e ; thence due north, upon the westerly limit respectively of townships seven, eight, nine and ten, to the southerly limit of the road allowance on the third correction line ; thence due west along the latter to the intersection thereof by the westerly limit of town- ship eleven in the said twelfth range west of the principal meridian ; thence due north along the westerly limit respectively of townships eleven, twelve, thirteen and fourteen, to the southerly limit of the road allowance on the fourth correction line ; thence westerly along the latter to the intersection thereof by the westerly limit of town- ship fifteen in the said twelfth range west of the principal meridian ; thence due north alon^ the westerly limit respectively of townships fifteen, sixteen and seventeen in the said twelfth range west, to the southerly limit of the road allowance, the northerly boundary of the said township number seventeen ; thence due east, following the said southerly limit of road allowance between townships seventeen and eighteen in the system of Dominion lands surveys Tthe said line crossing Lakes Manitoba and Winnipeg), to the easterly boundary of township seventeen in the tenth range east of the principal meridian ; thence due south along the easterly boundary respectively of townships seventeen, sixteen and fifteen, to the southerly limit of the road allowance on the fourth correction line ; thence due west along the latter to its intersection by the easterly limit of township fourteen in the aforesaid tenth range east ; thence due south along the easterly limit respectively of townships fourteen, thirteen, twelve and eleven, to its intersection with the southerly limit of the road allowance on the third correction line ; thence due west along the latter to its intersection with the easterly limit of township ten in the said teiith range east ; thence due south along the easterly limit respectively of townships ten, nine, eight and seven, to the intersection thereof by the southerly limit of the road allowance on the second corrocti ^n line ; thence due west along the latter to its intersection with the easterly limit of township six in the said tenth range east of the principal meridian ; thence due south along the easterly limit respectively of townships six, five, four and three, to the intersection thereof by the southerly limit of the road allowance on the first correction line ; thence due west along the latter to its intersection with the easterly limit of township two in the said tenth range east ; thence due south along the easterly limit respectively of townships two and one, to the intersection thereof by the forty-ninth parallel of north latitude, or the international boundary line aforesaid ; and thence due west, following upon the said forty-ninth parallel of north latitude, or the international boundary line, to the place of beginning : Provided always, that that portion of the eastern boundary of the Province hereby consented to be established which has not yet been surveyed, as also that portion of the northern boundary which has not been surveyed, shall be forthwith surveyed and marked out on the ground by the proper authority of the Dominion of Canada. 2. Nothing in this Act contained shall be held to repeal or innovate in any way upon the Act passed by the Legislature of Manitoba, in the thirty-seventh year of Her Majesty's reign, intituled An Art to provide for the enlargement of the boundaries of Manitoba on equitable terms, anc* the said Act shall continue in full force and effect. •H J m 254 8KARCH OK H. H. CO.'s AUCUIVK8 BY DOMINION AOKNTS, 1877. MKSaRS. BldCUOKF, BOitlfAU AND BiSOUOVF, AOENTS OK TIIK DoMINtON, TO TUR SeORBTARY OF State (Canada). [From tlitt Buulc iif Arbitration UuuumentH, p. 4l:<. The foot iioten are tnken from tlie same place.] 4 Gkbat Winchestkr Sthket, London, E.G., 22ad March, 1877. Sir, — We beg to report that we have been engaged ulinost oontiuuously since the date of your last letter in searching the records of the Hudson's Bay Company, and rcgrot that our efforts have not bbc^n crowned with more satisfactory results. The only important documents which we havo found are two maps, which we did not get in time to despatch by this mail, but which shall bu forwarded to you by the next. The first and smaller of these maps defines the boundary uf the Frovinoo of Quebec as settled after the Treaty of Utrecht, — a red line being drawn, and the words " Tlie French and English raspoctively not to pass this line " being written thereon.* The second is a large map of North America, published in 1765, f by one Mitchell pursuant to Act of Parliament and under authority of the Board of Trade. This map draws the boundary line betwet-n the Hudson's Bay Territory and New France as extend- ing along " the height of laud " aR far as the " Lake of the Woods," and there stops, owing as we imagine to there not being at that period any ficcurate knowledge of tlm country lying westward of that point. | You will observe that at the point where the boundary line stops, iti:. running in a south-westerly direction, and here consequently, if continiKid, would completely cut off from New France the whole of the Red Rivci- Territory.^ Both these maps are important as showing that after the Treaty of Utrecht a boundary was fixed between the English and French Territories, as far as knowledge of the country would enable it to be doae,|| and that the claims of the French westward so [The following notes are from, the Book of Arbitration l)ocunu!nU.--0. E. L.\ * This in map No. 36, p. 136(/ [Book of Arb. Docs.], It was really made In 1709. + The map here referred to is the second edition of Mitchell's Map, as to which see full notes to map No, 86, pp. 136t, It [Arb. Docs.]. The boundary line, it will be noticed is, in some places, north of the he.:(htnf lana. Manjr subsequent maps which fc:.*:end further west, show the same line as this one, stopping at the like terminal point, — the western boundary ri'nuing thence due north, or northerly alonif the eastern shores of Lake Winnipeg. As to the country westwai J of the point mentioned, it is matter of History that the Veren- dryes traversed and traded through the whole Winnipeg basin before llCrO ; that they built forts on Rainy Lake and Lake of the Woods in 1731-2, and very shortly afterwards on the Winni{)eg, Red and Assiniboine Rivers, taking; possession also of the Upper Missouri and its tributaries to their source. They subseciueutly extended their forts on the lakes and rivers northwards to the .Saskatchewan, on which they and their succes- sors had, up to 1755, built no less than five forts — one at the base of the Rocky Mountains. They thus com- manded the whole trade of that vast region, which thev called the Post of the Western Sea. (See the articles ante [Arb Docs.], Les Varennes de la Verendrye, ana Bougainville on the French {wsts.) There is grounii for believing that they even penetrated before 17t>3 to the Athabaska country, and made it and the upper reaches of tne Churchill, tributary to their forts on the Saskatchewan. Up to this periotl, their trade had never been disturbed, nor had any others claimed a right to it ; and for eleven years more, no servant uf the Hudson's Bay Company had set his foot there. The cession of Canada caused scmie of the old French commandants to retire from those western posts ; but a good many remained, retaining the old forts and the trade, and the old voyageurii. These, 80(jn after the cession, received from Canada, reinforcements in men (both French and English) and mercliaiidise for barter ; and they and their successors (luickly spread themselvoii over the whole western territories —to the Pacific and to Alaska, and even to the Frozen Ocean. The earliest post of the Hudson's Bay Company in these inland parts was Cumberland House, on Sturgeon Lake, built Dy Hearne in 1774 ; and their 'lext post was built in 1790, when their first establish- ment on the Red River, or rather Red Lake, was founded. (See the present letter (p. 256 K H. H. OO.'s AUCHIVEH BY UOMfMlON AOKNTS, 1877. 255 } TUK SbORETAKY the iume place.] klaroh, 1877. uiioiisly atnoe tlie apany, and rcgrut ips, which we did od to you by the rovincfi of Quebec the words " The lereon.* t by one Mitchell ?rade. This map Prance as extend- and there atops, knowledge of the a point where the lere consequently, of the Red River eaty of Utrecht a ,r as knowledge of ench westward so .LA full notes to map No. north of the he ;{htof e, stopping at the like the eaxtern uhores nf istory that the Veren- built forts on Raiuy Red and Assiniboine They 8ul)!(e(tuently hey and their succen- us. They thus com- la. (See the articles I. ) There is ground ^de it and the upper Irioil, their trade had more, no servant of lie of the old French jg the old forts and jada, reinforcements (r Kucuesijors (luickly 1 even to the Frozen mherland House, mi their first establish- |r(p. 2.56itf tVis vol.l the Hudson's Bay l.],eJHo note to map, I Canada were never jpii's Bay Oomp»njr'» Lted by the Britmli far as the Rooky Mountains, and northward to the Baukatchewun, must be without foundation, as that at the date of the map (1765), the country was only known to gtOKraphers to points far short of the pretended limits.* We also found anothor map of the Province of Quebec, according to Royal procla- mation of 7th October, 17(J3, from the French surveys. Wc have not sent this map, as the norlli westerly boundary is the same as in the first above-mentioned map, ending at the eorner of Lake Nipissing, lat. 40, long. 7H. From a peruisal of the Company's journals, we find that it was not the practice of tiio Company's servants to go up country to purchase peltry from the Indians ; but the [The fvHowit*u »»"5 ; those of Lamothe- Ciwlillac and Gallisouni^re respectively ; and the grant to Sieur Simblin. See also, p. 205 [Arb. Docs.], the ordinance as to the limits of Tadoussac.) Besides, the Hudson's Bay Company has, in the most formal manner, and in printed documents, admitted what is otherwise abundantly evident, that up to 1763, their trade and terrilwial occupancy were confined to the shores of the Bay. (See their statement of 1857, Sec. XVII. [Arb. Docs.].) In their Memorial of 1719, the Company admit that " the surrender of the Straits and Bay has been ]u!ule according to the tenour of the Treaty, at leant in such manner that [they^ acquiesce therein, and have nothing to object to or desire on that heivd." We have been unable to get evidence of what, besides Fort Xelson, was actually delivered to the Company on the occasion rereried to ; it is supposed to have been the .rs " (Frenc)i traders - -Coureun det Boii), an they woro (jallod, from QiKibec, bac. lOi some time prior to tho year 1773, gone up into the Red River district, and by so doing had out off the Indians and bought their furs, and so prevented their taking them to York Fort and the other Rottlements and forts on the Acy. It was to prevent this that iu the year 1774, one Mr. Hearne was sent down to establish a station up country, which he accordingly did at Oumborland House, f In the same year Matthew Cooking started on a journey to the Red River District, but no settlement was made there until some fifteen years later. In his journal of this journey he mentions " that pedlers swarmed there every year." " An old pedler called ' Youn^' Deer ' residing there ; " tliat " the natives were corrupted by the pedlers having so lon^r resided there," and speaks of Franceways settlement on the Saskatchewan River. These pedlers were both English and French, but seem to have come from Quebec, though there does not seem to be any authority fur alleging that they were the discoverers of this Territory. I One Joseph La IVanoe, a French Canadian (Canadese) Indian, passed through the Red River Territory and Saskatchewan, on his way to York Fort, in the years 1739-42, and in his aoooant of tho journey makes no mention of having met any pedlers, or other foreigners, but only natives.ij This story is set out iu the Appendix No. 2, to the Report of the Committee of the House of Commons, in 1849, a copy of which has been sent by the Secretary of tlie Hudson's Bay Company. A map of the country was also prepared by a Mr. Dobbs, who published the story, under the instructions of Joseph La France. It is fairly accurate, but of course shows no boundaries. |{ The whole country westward of Lake Winnipeg is left blank. The principal importance attaching to this story, we think, is that it precludes the Quebec pedlers from claiming that district by right of discovery. In one part he says the French never pass into the countries adjoining Lac la Pluie.H The following are the dates of the establishment of the earlier posts of the Hudson's Bay Company iu this District: Cumberland Ho## 1774 Ked lAke 1790 S.Branchdo 1791 LaclaPluie 1790 Swan River 1790 La CroRse, Athabaaoa-H- 1791 Brandon Ho 1794 Edmonton Ho 1795 Carlton Ho 1797 Lakf) Winnipeg 1796 Asainiboils River 1796 Red River 1799 ITht following notei are/roi>i the Book of Arbitration Documentt. — O, E, L.] • Writen) who have touched on the subject agree that the Indiana iirat sold their finest and best furs to the French, and then proceeded to the Bay to seTl to tho English the heavy and inferior fura the French had refused. (See, amongst others, Robson, pp. 6i!-3, 79, etc.) t See note t, [p. 254 of this vol.] X The "discoverers " were their French forefathers ; and subsequently, m to the more remote districts, themselves or their immediate descenditntb or successurs— French and English Canadians. § Were he travelling in ordinary course, and not, as was really the case, attempting to escape justice and to keep away from the French traders, who would have been sure to deliver him up, he could have met them without trouble ; for ho shows such con Merable knowledge of the country that he could not but knnw where to find their forts theretofore estah) led, and then still subsisting. But he was, in fact, trading without a license, — an offence for which swift punishment would have been meted out to him if caught. He had been poaching witiiin the licensed limits of some farmer of the revenue, had secured cargo for his canoes, and was proceeding on his route to the lower countries— perhaps to Orange— when he was met by a detachment of troops going to the upper posts. Well knowing his fate should the commander of the troops ipiestion or susp^jct nim, he left his turs and took to the woods and ultimately found his way to the English at Hudson's B»y. (See Report of 1749.) II This is map No. "i, p. l'16n, ante [Arb. Docs.]. 11 We have already shown that they had a fort there in 1717. ** See as to tliis, note +, [p. 254 of ihis vol.] It may be further added here, that before the Company estab- lished any other fort, the Canadian fur traders- and especially their great companies, culminating in the North- West Company, of Montreal— had i>enetrated to the Northern and Western Oceans, building forts and settling agent's in all parts of the territories ; and that the Hudson's Bay C'ompany, instead of striving to lead their rivals, contented themselves by following them at some interval, and securing such portions of the trac?e as the otners had allowed to pass by. (See section, "Canadian Enterprise m the North-West" [in Arb. Docs.].) tt This post wad on the waters of the Churchill. Lake Athabasca over twenty years before.— /6. Canadian establishments had been formed on or near 77. nij^eA their futH, (French traders ime prior to the t off the Inilians )rt and the other vas Bent down to House. t In the ■ District, hut no il of this journey er called ' Youd},' rs having so lonj; wan River. »me from Quebec, it they were the ftssed througli the be years 1739-42, y pedlers, or other I Committee of the i Secretary of the 1 by a Mr. Dohbs, ance. It is fairly westward of Lake story, vie think, is right of discovery, ig Lac la Pluie.n irlier posts of the 1794 1796 1797 1795 1796 1799 1 finest and beat furs t.. kerior furs the French 1 more remote districts, lians. . .. Iting to escape justice ■up, he could have met Ihe could not but know Te was, in fact, trading t to him if caught. He Igecured cargo for his ■when he was met by a Vmander of the troom lis way to the English Ire the Company estal)- leg, culminating in the fclceans, building forts I instead of striving to Ig such portions of the ITn the North-West leen formed on or near 8KARCH FOR KVIDKNCK IN H. B. CO.'S AND NATIONAL ARCHIVES, 1877. 257 Wo approhond the maps as coming direct from the custody of the Hudson's Bay Conpany, prove themselves. We have not taken extracts from the Post Diaries, inas- luucu as wo can trace no direct evidence calculated to support counsels' theory of prior discovery by the Hudson's Bay Company,* and the foregoing repulses [reflects] the gonoral impression produced upon our minds by perusal of the Post Diaries, as also of gimdry published histories of the district in tlie Company's Library, such as " Robson's Hudson's Bay," published 1762 ; " Remarks upon Capt Middleton's Defence, by Arthur Dobbs," 1744 ; and " Carver's Travels In North America," 1766. As we have given the Company an undertaking that the two maps shall be returned to them when done with, we should deem it a favour if you would give directions for tdieir receipt to bo acknowledged on arrival, and for their return to us when done with. We liave the honour to be. Sir, Your most obedient servants, Hon. R. W. Scott, Ottawa. BiSCHOFF, BOHPAS & BiSCROFF. Sir John Rose to the Hon. Alex. Mackenzie, Premier op the Dominion. IFrom the Book Arb. Dooa., p. 415. The not« also is from the same place.] Bartholomew Lank, E.C., September 26th, 1877. The Minute of Council requesting tliat Mr. Crooks be accredited in reference to the boundary between Ontario and the Dominion, has reached me by last mail. You have already heard by my previous letter that Mr. Crooks had sailed. I may mention, however, that even if he had remained, I do not think any research would have thrown more light on the matter than his Government is already in possession of. I employed a gentlemen for several weeks to search at the Colonial Office and Foreign Office, as well as the Rolls' Office, and the Hudson's Bay archives, and every scrap of information bearing on it was, I think, sent out either to Mr. Campbell, whilst he was Umister of the Interior, or to Mr. Scott, some months ago. I mention this to satisfy the Ontario Government ; as I believe that any further search would be attended with no result.} Believe me to be, Yours ever faithfully, The Hon. Alex. Mackenzie, Ottawa. John Rose. Mb. McDermott, an Agent op Sib John Rose, to Sib John Rose. [From the Book Arb. Docs., p. 416. The notes appended are from the same place.] Sib John Rose, — In accordance with your instructions I hava been engaged for some time past in searching among public documents for papers or maps defining the western and northern boundaries of the Province of Ontario. [The following notes a-efrom the Book of Arbitration Document*. — O. E. L.I * In face of the known facts apiiearing in this book, no legitimate prior discovery on the part of the Hudson's Bay Company can possibly be made out. tSome valuable evidence— forming part of this supplementary section XVII. [Book Arb. Docs.] was afterwards procured in England by the Agent of the Ontario Government ; such, for instancej_»re the three docnments, dated 1699, pc Hudson's Bay Company, 1762-9 17 349 et teq. ; Papers relating to the Commissaries, pp. 360, etc. ; Claims of pp. 376, etc. ; and the Order in Council of 24th Aug., 1791, pp. 348, 411, m 2.'>8 SKARPH FOR KVIDKNrK tN H. B. CO.'S AND NATIONAL AROHIVRR, 1877. Having boon informed that yon hivd yourself invoHtigaked the collection of maps in the Foroign Office Library, the greater portion of which had been removed to the National Record Office in RoHb' Oourt, I commenced my search in the library of the latter department, receiving for neveral days the sole attention of Mr. Kingston, the librarian, whose assistance, I need hardly say, saved much time and labour. I nay at once state that my search has been unsuccessful. The facts and quotations supplied by you have all been easily verified, but the closest search has given no clue to the discrepancies, and no additional information in regard to disputed points. In the first place, with regard to the western boundary line of the Province of Ontario as laid down bv 14 George III., cap. 88, no minute of the Privy Dounoil nor any public documents of that time give any definition of the vague term " northwards," nor do any of the maps of Canada indicate any boundary whatever in thin region.* The second edition of Mitchell's Map of 1755, in this respect does not ditfer in any par- ticular from the first edition. One of Mitchell's Maps in the collection, I may add, ig the identical one used by the Commissioners in settling the boimdary line after the revolutionary war, and on it the western boundary line of the United States follows the course of the Mississippi northwards from its conflux with the Ohio. With reference to the district in Michigan governed by Mr. Hay, I found among the papers of Governor Haldimand a Petition from the inhabitants of Detroit, forwarded in 1788, by a Lieutenant-Governor Hay ; but amidst this very voluminous corres- pondence I could find no further mention of this gentleman ; and no patent of his appointment exists. Such patent, I am told, would certainly be upon the Bolls had his appointment emanated fr ''m this ">de. As to the line of division betMrvien Upper Canada and Hudson's Bay Territory, I can find no explanation of the discrepancy pointed out by you between the definitions of the boundaries of Upper and Lower Canada, as given in the Proclamation of Governor Alured Clarke in 1791, and that assigned in the letters patent of the Earl of Elgin in 1846. I have read carefully through the draft instructions to the Earl of Elgin and all the correspondence relating to his appointment, but can find no mention of any reason for extending his jurisdiction to the shores of Hudson's Bay, nor indeed any allusion to boundaries other than incidentially to matters in dispute between Canada and New Brunswick. The explanation given by you that the difference may be due to a slip of the pen would seem to be correct. Subsequent research among the papers at the Colonial Office affords no other explanation.! I may mention here that the Order in Council dividing Upper and Lower Canada is dated 24th August, 1791, upon a Report from the Lords of Committee of Council, dated 17th August, 1791.:J The boundaries of the Hudson's Bay Company, as defined by the treaty of Utrecht, are shown on both editions of Mitchell's map as following the height of land which forms the watershed of rivers running southward to the Lakes or northward to the Bay, I do not find, however, in the Records and Correspondence of the Commissioners of Trade and Plantations (which consist of documents in French, Latin, and English), any mention of a decision arrived at by the Commissioners appointed to fix this boundary matter and other disputed questions. Neither could the Secretary of the Hudson's Bay Company afford me any information on this point. He states that the Company have no maps illustrating the question, and that it was always understood that their territory comprised the land in which the waters flowed to the northwards, thus fixing the boundary at the height of land before mentioned. He says ho will look through the documents of the [The following note* are from the Book of Arbitration Document!, — O. E. L.] . * There are several maps (see Notes on Maps, sec. VIII. ante [Arb. Docs.]), showing the Misaisainpi to its source as the western boundary of British Canada and Quebec, respectively. The snort period miring which the Mississippi remained the real boundary of Provinces, viz. : 1774 to 1783, or perhaps to 1791-4- has caused a scarcity of such maps. t If, as would seem, this difFerence relates to the words in the one document "until it strikes the boundary line of the Hudson's Bay," and in the othrr "until it reaches the shore of Hudson's Bay"(^both referring to the inter-provincial boundary), it cert uly cannot have been due to "a slip of the pen, 'for there are five other Commissions, 1838-46, containing exactly the same phrase as Lord Elgin's (See English Commissions, in Arb. Docs.). , .... J See this Order, pp. 388, 411 [Arb. Docs.]. -.'■■■■ " ' ' ', VRH, 1877. 8BAUCH IN NATIONAL ARCUIVUH OV BNQ. ANU FRANCE UY ONT. AGENT. 269 action of mftpn in removed to the he library of the Ir. Kingston, the abour. I nay at lotationfl eupphod jn no clue to the nts. , )f the Provinoo of Privy Dounoil nor rm '• northv?ard8," thin region.* The differ in any par- tion, I may add, is lary line after the t States follows the ay, I found among I Detroit, forwarded voluminouB oorres- id no patent of his ipon the Rolls had n's Bay Territory, I )en the definitions ol imation of Governor ;he Earl of Elgin in Earl of Elgin and all ention of any reason deed any allusion to n Canada and New ty be due to a slip of the papers at the e that the Order m 1791, upon a Report le treaty of Utrecht leight of land which jrthward to the Bay. mmissioners of Trade English), any mention Mjundary matter and dson's Bay Company npany have no maps r territory comprised the boundary at the le documents of the .E.L.} ■ The sWt period ^>mng 3, or perhaps to 1791-* Lt" until it strike, to P Hudson's Bay "(boj I "a slipot the i>en. I"' L Elgin's (SeeEngtal' Company, but he holdn no expectation of finding anything concluaivo of the matter. Should he do ho, he will at once communicate with you. Under those circumHtancos I have thought it best to communicate at once to you tho roHult of my inquiries. Mr. Kingston, the Librarian of the Record Office, joins me in the belief that no more precise information exiata on the subject, and all the older maps Hhow that HO little was known at the time, of the regions in question, that inaccuracies and diBorepauciea in the description of boundaries would appear to be inevitable. R R. MoDbrhott. Extract from thb Sprrch of His Honour the Libutenant-Governor of Ontario, ON TUB OpBNINQ OF THE LbOISLATURB, 9tU JANUARY, 1878* There has been another unexpected delay in procuring a sottleinnnt of the important subject of the boundaries between Ontario and the adjoining territories of the Dominion ; •the absence from America of the distinguished gentleman selected as third arbitrator having made a settlement during the year impossible. The delay has been made use of to collect further fncts and documents from the public archives in London and Paris, as well as from the records in possession of the Hudson's Bay Company, and from various public libraries in Europe and America. The result of these and other investigations has been embodied in an important supplement to the papers already printed for the use of the arbitrators. Copies will be laid before you. Tho three arbitrators are believed to ))e now ready to enter on the arbitration as soon as may suit the arrangements of the two Governments. Mr. Scoble, Aqent of the Government of Ontario, to the Attorney-General or Ontario. [From the Book of Arb, Dooa., p. 417. The foot notes are from the same place.] ■ Toronto, March 18th, 1878. Sir, — It having been deemed important that a search should be made for further evidence bearing on the limits of Ontario to the west and north, I received instructions from you on the 16 th October last, to proceed to Paris and London for the purpose of searching the archives relating to the history of the country, with a view to procure such further evidence. Arriving in London on the 30th October, I presented my letter of credence to Sir John Rose, and by him was furnished with a letter to the Secretary of State for the Colonies; by whom, upon learning that my immediate intention was to proceed to Paris, I was furnished with a letter to Lord Tenterden, Under-Secretary of State for Foreign Affairs, who gave me letters to the British Ambassador in Paris. With these credentials I left London for Paris on the 3rd November, and on the 5th November I presented my letters to Lord Lyons, and was furnished by him with letters to the Minister of Marine and Colonies, the Minister of Foreign Affairs, and the Minister of the Interior. I lost no time in presenting these, and stating the objects of my visit to the various Ministers ; but owing to the unsettled state of French politics, and the changes in the personnel of the Ministry (there having been five successive changes of Ministry during the month of November), I found it very difficult to procure immediate attention. Pending the official permission to search the public archives, I busied myself in the splendid libraries of Paris, where I found much information which was collaterally useful to me, and where I saw and made notes of large numbers of maps published between 1713 and 1763. I was * Journals Leg. AsB., 1878, VoL 11, p. 3. . 1 ;i «1 ■ ^1 m mm IHR it 'T ^i m 1 1 "'1 260 SEARCH IN NATIONAL ARCHIVES OP ENG. AND FRANCE BY ONT. AGENT. 1% \U also sufficiently fortunate to establish friendly relations with M. Pierre Margry, whone historical writings upon the early history of North America are so well known. Through his advice, and aided by his extensive knowledge of all matters relating to the early history of Canada, I was enabled to commence my researches at a point very far in advance of that which I should otherwise have done. Having at last procured the required permission to search the archives of the Marine and Colonies, a new difficulty presented itself. Monsieur Le Bon, the Sous-Directeur of the Department, was one of the Commissioners appointed to arbitrate between France and England upon the question of the Newfoundland Fisheries, and I found it difficult to disabuse his mind of the idea that my investigations had some relation to this subject. Consequently, my researches were carried on under certain restrictions. All the extracts I required were submitted to his eyes before I was allowed to use them ; and copies were made, by the clerks of the Department, of such matter only as he judged could not be used in relation to Newfoundland. I am of the opinion, however, that the copies of the documents which I forwarded to you contain all the evidence that can be procured from that source which is material for the present purpose. I am sustained in this belief by the opinion of Mons. Margry, who was aware of the nature of my mission, and with whom I conversed frequently as to the discoveries I made, and as to the existence of further evidence. With respect to the reference which was made in letters* that passed between the Marquis de Torcy and Mr. Prior, and between Mr. Prior and Lord Bolingbroke in 1713, to a map or maps that had been furnished to the Commissioners of both countries, defin- ing the extreme pretensions of each, the most diligent search on my part, both in London and Paris, failed to bring these maps to light, although I was sufficiently fortunate to discover the original letters which accompanied them. I found a map.t however, in the Depot des Cartes de la Marine, in Paris, which bore certain autograph lines upon it, that were marked as lines " according to the pretensions of the English " and " according to ihe memoir of M. D'Auteuil"J respectively. The first of these lines is that claimed by the memorial of the British Commissaries presented through Lord Stair in 1719,§ as being the boundary desired by the Commissaries appointed by Great Britain under the Treaty of Utrecht. The second is probably that boundary which France, as a last resort, was willing to concede. The lines are drawn upon a map published by Guillaume (b L'Isle in 1703, and the lines in question doubtless furnished the data for the lines shown in the subsequent editions of De L'Isle's maps, which, however, followed D'Auteuil'a memoire more closely than the original map. M. D'Autouil was, at the time of his *• memoires," " Procureur General " in Canada, and was engaged in Paris in and after 1719 in the preparation of the French case for consideration of the Commissaries under the Treaty of Utrecht. During my stay in Paris, I examined some hundreds of maps, many of them original, relating to French discoveries in N. America, and made full notes as to the information furnished by upwards of sixty of them. As, however, subsequent research proved many of them to have been geographically incorrect, and they bore little or no value as historical references, I did not consider it necessary to send you more than a few of the most important. Returning from Paris to London on the 9th December, I commenced my researches by looking at the maps in the Colonial and Foreign Offices, but without finding any niap» of special value in reference to boundaries. I received much assistance in my search in the Foreign Office from E. Hertslet, Esc]., C.B., whose acquaintance with the Treaties concluded by Great Britain enabled him to give me much valuable information. My researches served to prove that no' authentic [The following notes are from the Book of Arbitration DonumenU, — O. E. L. ] * See letter, Prior to Bolingbroke, p. 153 [Arb. Docs.] t This is Map No. 133, p. 136/ [Arb. Docs.] X For this Memoir, see p. 368 [Arb. Dooh.] § For this Memoir, see p. 365 [Arb. Docn.] SEARCH IN NATIONAL ARCHIVES OF ENO. AND FRANCE BY ONT. AOENT. 261 Diap exists in the Colonial Oiiice, the Foreign Office or the Public Records Office defining the extent of country ceded by the French in 1763.* I found a map published by Arrowsmith, in 1795, in the Foreign Office. This map is inscribed, "by permission to the Hon. Governor and Company of Adventurers trading into Hudson's Bay, in testimony of their liberal communications," and gives no boundary under the Treaty of Utrecht, but bears the letter U in Upper Canada, on the parallel of 51)', and the whole word " Upper" north of tlie }ieight of land ; whilst in an edition of tlie same map, dated 1795, but, as I ascertained from the publisher, published in 1850, tlie words " Upper Canada " have been erased from the original position, and re-engraved close to the shore of Lake Superior, south of t/ie height of land. My researches in the Public Records Office were materially aided by Mr. Kingston, the librarian, through whose kindness I procured copies of important documents and cor- respondence having reference to the English Commission, under the Treaty of Utrecht. Some of the documents forwarded from France having failed to reach you, I returned to Paris on the 11th January, completed my researches, and going back to London, left foi' Canada on the 25th February, arriving here on the 15th inst. In conclusion, I beg i-espectfully to point out the difficulties which encompass research into such a matter as that with which I have been charged. The examination of the records of nations like those of Great Britain and France, must needs be laborious, even under the most favourable circumstances ; but considering that I had been preceded in my researches by many gentlemen, who gave much time and study to the subject, I feel that I have been fortunate in being able to bring to your notice documents that have never been produced before in all the course of the discussion of the boundary question, as to the claims of the Hudson's Bay Company, and as between the Dominion and this Province. Trusting that the result of my labours has been satisfactory to you, I am. Sir, Your obedient servant, Hon. O. Mowat, M.P.P., Attorney-General, etc., etc., Toronto. Thos. C. Soobls. m SMjji^'., - ,-(,1 .1 it III {The following notes artfrom the Book of Arbitration Documents.— G. E. i.] * By the Treaty of 1703, the Mississippi, from its source to the ... sea, was declared to be th« IfDundary between Louisiana and the English possessions. The previous boundaries of Louisiana were, on the north and north-east, the northern and north-eastern watershed of the Missouri from its source in the Ilocky Mountains to its junction with the Mississippi —the Illinois country being at times within and at times without the bounds and jurisdiction of Louisiana. (See the official description, pp. 41-2. [Arb. Docs.') The French mai)s coucur, as a rule, in the same boundaries.) This northern lioundary of Loiiisiana, was, prior to the cession, \indoul)tedly the southern boundary of C'nnada, in that direction, up to the sources of the Missouri ; and whilst Louisiana was confessedly limited to the llocky Mountains, the French always claimed that Canada extended l)eyond those mountains to the Western and Pacific Seas,— having for southern boundary in those nuarters New Albicm or NewMexico, as the case might l)e. No geographer or historian has ever claimed that the countries north of Louisiana, and indefinitely westward, were other than part of (Canada ; sometimes they are referred to, when beyond the iimit of actual discovery, as " tlie unknown lands of Canada." Through these unknown lands the intrepid French commandants and their followers pushed discovery anil trade — always seeking for their goal, the Western Sea. They reached the Rocky Mountains, which thev probably crossed ; but it was left to their Canadian successors— French and English— to establish on tlie Pacific slope, the establishments which secured to them its trade, .^nd to one of them —Sir Alexander Mackenzie— to secure the sovereignty of the territory, to the British Crown, west of the_ Rocky Mountains. (See Mackenzie's Travels, and the negotiations between the United States and (rreat Britain respecting th« Oregon Question.) In the negotiations with the United States the western extension beyimd the meridian of the source of the Mississippi could not be claimed by England by virtue of its having been English territory from the beginning, or of its having been French teiritory, not part of Canada. It was claimed, westward to the Rocky Mouiitains, as a part of French Canada, and the claim wa« ultimately conceded. The Treaties of 1783 and 1794, made no change. By the Con\'ention of 1818, how- ever, tho par. of 4!>" become by mutual consent the boundary between tlie two countries, from the Rocky Mountains eastward to the Lake of the Woods. It will be remembered that until tho recent claims of the Hudson's Bay Company,' no other country than Canada had ever claimed this western Territory, and that it liad always been named and treated as part of Canada, whether French or English. What France ceded tlien, in 17(53, west of the meridian of the sources of the Alississippi, was the country liounded on the south by the parallel of the source of the Mississippi, westerly, -(1) to the South Sea or Pacific Ocean ; or (2) to the northerly watershed of the Missouri, according to its situation as shown by maps und geographit's of the time, and thence along such watershed to the Rocky Mountains, and thenoe westward to the Piu;ifio ; or (3) to the northerly watershed of the Missouri, iin ww- known, and thenee alonK •Hvh watershed tu the Rocky Mountains, and thence westward to the Pacific. % 262 EXTENSION OF PROVISIONAL ARRANG^^MENT TO LICENSES, ETC., 1878. Memorandum of the Minister of the Inti;eior.* Department of the Interior, Ottawa, 24th April, 1878, Memorandum. Referring to the terms of the Order in Oonncil dated the 8th July, 1874, relative to the provisional arrangement respecting the westerly and northerly boundaries of Ontario, intended to provide a joint system for the administration of the lands within the territories claimed by the respective Governments of the Dominion and Ontario, the undersigned has the honour to call the attention of Council to the fact that while all necessary provision is made therein for the confirmation eventually of any patents issued by either Government, it is not specifically mentioned in the said Order that any lease granted by either Government in the interim shall similarly be ratified. The question has been brought under ^e notice of the undersigned, in connection with the lease recently authorized by Council to Mr. Macaulay for a timber limit situate in Eeewatin, between the Lake of the Woods and Eainy Lake ; and the under- signed having been advised by the Deputy Minister of Justice that it would be desir- able to add the right of giving leases to that of making grants of land, to the respective Governments, over the country apportioned to each by the conventional boundary, respectfully recommends that communication be had with the Government of Ontario with that in view, the understanding to be that all such leases shall bo ratified and confirmed, and that all bonuses, rents and royalties received by either Government for limits which may prove to be situate within the true boundaries of the other, shall be transferred in accordance with the Sections 8 and 4 of the Order in Council quoted. Bespectfully submitted. David Mills, Minister of the Interior. Report OP A Committee OF the Privy Council, approved by the Governor-General ON THE 29th April, 1878r* On a Memorandum, dated 24th April, 1878, from the Honourable the Minister of the Intei'or, having reference to the terms of the Order in Council dated the 8th July, 1874, relative to the provisional arrangement respecting the westerly and northerly boundaries of Ontario, and recommending that communication be had with the Govern- ment of Ontario, with a view to an understanding that all leases tihall be ratified and confirmed, and that all bonuses, rents and royalties received by either Government for limits which may prove to be situate within the true boundaries of the other, shall be transferred in accordance with the Sections 8 and 4 of the Order in Council quote:!. The Committee submit the foregoing recommendations for your Excelltncy's approval. Certified. W. A. Himsworth, Hon. Minister of the Interior. C. P. C. The Under-Secretary of State to the Provincial Secretary.! Department of the Secretary of State, Ottawa, ist May, 1878. Sir, — I am directed to transmit to you herewith, for the information of His Honour the Lieutenant-Governor of Ontario, a copy of an Order of His Excellency the Governor- * Ho. of Coins. Return, 19th March, 1881, No. 37, p. 23. t Ibid., p. 24. EXTENSION OF PROVISIONAL ARRANGEMENT TO LICENSES, ETC., 1878. 263 General in Council, and of the Memorandum of the Honourable the Minister of the Interior therein referred to, respecting the terms of the Order in Council of the 8th July, 1874 (of which a copy was commuuicated to the Lieutenant-Governor on the 22nd of that month), relative to the provisional arrangement with regard to the westerly and northerly boundaries of Ontario. I have the honour to be, Sir, Your obedient servant. ^m Hon. Provincial Secretary, Toronto. Edouard J. Langevin, Under-Secretary of State. The Assistant Provincial Secretary to the SECKETAR^ op State.* the Interior. vernor-Geneual Provincial Secretary's Office, Toronto, 3rd May, 1878. Sir, — I have the honour to acknowledge the receipt of your letter, transmitting copy of an Order in Council and of the Memorandum of the Honourable the Minister of the Interior therein referred to, respecting the terms of the Order in Council of 8th July, 1874, relative to the provisional arrangement with regard to the westerly and northerly boundaries of this Province, and to inform you that the subject will be sub- mitted to His Honour the Lieutenant-Governor. I have the honour to be, Sir, Your obedient servant, I. R. Eckart, Assistant Secretary. Hon. Secretary of State, Ottawa. Report of the Attorney-General of Ontario. t Referring to the terms of the joint memorandum signed by the Hon. David Laird, formerly Minister of the Interior of the Dominion of Canada, and the Hon. T. B. Pardee, CommisBioner of Crown Lands of this Province, fixing a temporary conventional boundaiy of the Province of Ontario on the west and north, and adopting a system for the sale of lauds and for adjusting disputed rights in the territory claimed by both Governments, and which memorandum was approved by His Excellency the Governor- General upon the eighth day of July, 1874, and by His Honour the Lieutenant-Governor of Ontario on the ninth of the same month, the undersigned has the honour to report that an Order of His Excellency the Governor-General was passed on the 29th April, 1878, in which attenlion was called to the fact that while all necessary provision is made by the said memorandum for the confirmation eventually of any patents issued by eitlier Government, that it is not mentioned that any lease granted by either Government in the interim shall be similarly ratified, and recommending that communication should be had with this Government, with a view to an understanding that all leases should be ratified and confirmed, and that all bonuses, rents and royalties received by either Government for limits whicli might be proved to be situate within the true boundaries of the other should be transferred in accordance with sections three and four of the said memorandum. * Ho. of ConiB. Return, lOtli March, 1881, No. 37, p. 24. \n,id., p. 25. ■ tl l!i..:-c. ':m 204 EXTENSION OF PROVISIONAL ARRANGEMENT TO LICENSES, ETC., 1878. The uudersigaed respectfully recommends that an Order in Council be passed declaring that all leases and licenses and applications therefor, shall be subject to tho stipulations contained in the said memorandum in respect of patents of lands and appU- cations therefor, and that all bonuses, rents and royalties received by either Government for limits which may prove to be situate within the true boundaries of the other shall be transferied in accordance with the provisions of the third and fourth sections of the eaid memorandum as extended by such Order. O. MowiT, A ttorvey- General, 7th May, 1878. Order in Council, approved by the Lieutenant-Governor, the 9th day op Mat, 1878.* Upon consideration of the Report of the Honourable the Attorney- General, the Com- mittee of Council advise that it be declared that all leases and licenses and applications therefor, shall be subject to the stipulations contained in the joint memorandum signed by the Honourable David Laird, formerly Minister of the Interior of the Dominion of Canada, and the Honourable T. B. Pardee, Commissioner of Crown Lands of this Prov- ince, fixing a tempor try conventional boundary of this Province on the west and north, and adopting a system for the sale of lands and for adjusting disputed rights in the territory claimed by both Governments in respect of patents of lands and applicationa therefor ; and further, that all bonuses, rents and royalties received by either Govern- ment for limits which may prove to be situate within the boundaries of the other, shall be transferred in accordance with the provisions of the third and fourth sections of the said memorandum as extended by this Order. Certified. J. G. Scott, Clerk Executive Council. The Assistant Provincial Secretary to the Secretary of State. ''^ is! Toronto, 11th May, 1878. Sir, — With reference to the correspondence that has taken place respecting the provisional arrangement with regard to the westerly snd northerly boundaries of Ontario, I am now directed to transmit herewith a copy of an Order in Council, approved of by His Honour the Lieutenant-Governor the 9th instant, together with a copy of the Report of the Honourable the Attorney- General therein referred to, having reference to such boundaries. I have the honour to be. Sir, Your obedient servant. Hon. Secretary of State, Ottawa. I. R. Eckart, Assistant Secretarij, * Ho. of Coins. Return, 19th March, 1881, No. 37, p. 24. Hi- CORRESPONDENCE RESPECTING DOCUMENTS TO BE PROCURED. 265 )th day op Mat, mtive Council. The Under-Secretary of State to the Minister op the Interior.* Department op the Secretary of State, Ottawa, 13th May, 1878. Sir, — Adverting to the Order of His ExcoUenoy the Governor-General in Council of the 29th ult., I am directed to transmit to you herewith a copy of a letter from the Atiaistant Provincial Secretary of Ontario, and of the Minute of (Jouncil and Report of tlio Honourable the Attorney-General of that Province therein referred to, with respect to the provisional arrangement regarding the westerly and northerly boundaries of Ontario. I have the honour to be. Sir, Your obedient servant. Hon. Minister of Interior. Edouard J. Langkvim, Under-Secretary of State. Memorandum op the Deputy-Minister of Justice,* Ottawa, 27th May, 1878. On tin 9th June, 1857, H. Merivale, Esq., by letter of that date, submitted to the then Attorney and Solicitor- General, as law officers of the Crown, certain questions con- nected with the rights of the Hudson's Bay Company, and requested their opinion thereon. In this letter Mr. Merivale states that the statements of Hudson's Bay Company rights as to territory, trade, etc., made by them to Earl Grey, on the 18th September, 1849, was submitted to the then law officers of the Crown, who reported that they were of opinion that the rights so claimed by the Company properly belonged to them. It is of great importance, for the purpose of the arbitration shortly to be held, to settle the north-west boundary of Ontario, that a copy of the statement submitted by the Hudson's Bay Company to the Government as above mentioned, and of the opinion of the law officers of the Crown thereon should be obtained. Will the Secretary of State please request His Excellency to communicate without delay with the Colonial Secretai-y, and request that a copy of the documents referred to may be obtained and transmitted at as early a date as possible. The arbitration is expected to be held in July next. Z. A. Lash, Deputy of 'i Minister of Justice. tant Secretarji. The Under-Secretary of State to the Governor-General's Secuetary.! Dkpartaient of the Secretary of State, Oti-awa, 29th May, 1878. Sir, — I am directed to transmit to you herewith, for the information of His Excel- leucy the Governor- General, a copy of a memorandum from the Deputy of the Minister of Justice, requesting that copies may be procured of certain documents therein men- tioned, in reference to the rights oi the Hudson's Bay Company as to territory, trade, etc I have the honour to be, Sir, .._ Your obedient servant. The Governor-General's Secretary. Edouard J. Langevin, Under-Secretary of State. * Ho. of ComH. Return, 19th March, 1881, No. 37, p. 25. + Ibid., p. 26. 266 ORDERS IN COUNCIL IN FINAL APPROVAL OF ARBITRATORS AND ARBITRATION. Order in Council, approved by the Lieutenant-Governor the 31st day of July, 1878.* Unon consideration of the Beport of the Honourable the Attorney-General, datecl 80th day of July, 1878, reoommeLdiug that the Honourable Bobert A. Harrison, Chief Justice of Ontario, be appointed arbitrator in the matter of the northerly and westerly boundaries of the Province of Ontario in relation to the rest of the Dominion, in the room and stead of the Honourable William Buell Biohards, who, since his appointment as such arbitrator, was appomted Chief Justice of the Supreme Court, and subsequently resigned his appointment as arbitrator, the Government of the Dominion having named Sir Francis Hincks one of the arbitrators in the room and stead of the Honourable Lemuel Allan Wilmot, deceased, and the Bight Honourable Sir Edward Thornton having been named on behalf of the Governments of the Dominion and Ontario ; and also recom- mending that the determination of the award of such three arbitrators, or a majority of them, in the matter of the sfiid boundaries respectively, be taken as final and conclusive; and also that the Province of Ontario agree to concurrent action with the Government of the Dominion in obtaining such legislation as might be necessary for giving effect to the conclusion arrived at by the said arbitrators, and for establishing the northern and western limits of the Province of Ontario in connection therewith : The Committee of Council advise that the foregoing recommendations be adopted and approved of by your Honour. Certified. Lonsdale Capreol, Assistant Clerk, Executive Council, Ontario. Beport of a Committee of the Privy Council, approved by the Governor- General ON THE SlsT July, 1878.* The Committee of Council have had under consideration the subject of the northern and western boundaries of the Province of Ontario, which under previous Orders in Council had been referred to the Honourable "W. B. Bichards, then Chief Justice of Ontario, nam<:d as referee on behalf of that Province, but who was subsequently replaced by the present Chief Justice, the Honourable B. A. Harrison, and the Honourable Sir Francis Hincks, who has been named on behalf of the Dominion; and whereas subse- quently to the action taken under Order of Council of 12th November, 1874, it was mutually agreed between the Governments of the Dominion and Ontario, that the Bight Honourable Sir Edward Thornton should be selected as third referee, the Com- mittee recommend that such selection be confirmed by Minute of Council, and that the determination of such three referees be final and conclusive upon the limits to bo taken as and for each boundary respectively. Certified. W. A. HlMSWOTH, Clerk Privy Council, Canada. • Sesg. Papers, Ont, 1879, Vol. 11, No, 42. ARBITRATION. 3l8T DAY OF sy-General, datec) . Harrison, Chief erly and westerly in ion, in the room pointment as such sequently resigned aving named Sir jnourable Lemuel ■nton having been J and also recom- B, or a majority of al and conclusive ; li the Government or giving effect to the northern and dations be adopted itncil, Ontario. SovERNOR- General Gct of the northtm devious Orders in n Chief Justice of jsequently replaced lie Honourable Sir ,nd whereas subse- Qber, 1874, it was Ontario, that the referee, the Com- ncil, and that the limits to be taken l?t«ci?, Canada. STATEMENT OF THE CASE OF iHE PROVINCE OF ONTARIO, 1878. 907 A STATEMENT OF THE CASE OF THE PROVINCE OF ONTARIO RESPECT- ING THE WESTERLY AND NORTHERLY BOUNDARIES OF THE PROVINCE. Prepared for the Arbitration between the Dominion and the Province, 1878, BY the Attorney-General op Ontario.* Ontario has the same limits as Upper Canada had ; and the same limits as, west of the division line between Upper and Lower Canada, the Province of Canada had, and the Dominion of Canada had before its purchase of the rights of the Hudson's Bay Company. * In the present dispute the claim of Ontario ia to the boundaries which were officially insisted upon by the Province of Canada before Confederation, and by the Dominion after- wards. It is submitted that the demand so made was just and well-founded. Thus, the Hon. Mr. Cauchon, Commissioner of Crown Lands, in an Official Paper, in the year 1857, claimed that the westerly boundary of the Province extended "as far as British territory, not otherwise organized, would carry it, which would be to the Pacific ; or, if limited at all, it would be by the first waters of the Mississippi which [a due west line from the Lake of the Woods] intersected, which would bo the White Earth River ; and this [he showed] would in fact correspond v,'ith the extent of Canada previously known to the French. . . The southerly boundary of the British dominions, west of Lake Superior, being therefore demonstrated as identical with the southerly boundary of Canada, to some point due west of the Lake of the Woods, the only question is as to where that point is to be found. Is it the White Earth River, the first waters of the Mississippi which the due west line intersects 1 or is it the summit of the Rocky Mountains, on the same principle that the co-terminojcs boundary of Louisiana was ultimately so construed ? " With respect to the northerly boundary, the Commissioner pointed out that " the only possible conclusion is that Canada is either bounded in that direction by a few isolated posts on the shore of Hudson's Bay, or else that th« Company's territory is ... a myth, and consequently that Canada has nt. ;^.ri/icular limit in that direction." So also, after Confederation, in an official letter of the Canadian Ministers, Sir George E. Cartier and the Honourable William McDougall, to Sir Frederic Rogers, Bart., Under- Secretary of State for the Colonies, dated 16th January, 1869, they pointed out that " the boundaries of Canada on the north and west were declared, under the authority of the Constitutional Act of 1791, to include 'all the territory to the westward and southward' of the ' boundary line of Hudson's Bay .... to the utmost extent of the country commonly calli'd or known by the name of Canada.' Whatever doubt may exist as to the 'utmost extent ' of Old or French Canada, no impartial investigator of the evidence in the case can doubt that it extended to, and included, the country between Lake of the Woods aud Red River. The Governinent of Canada therefore does not admit, but on the con- trary denies, and has always denied, the pretensions of the Hudson's Bay Company to any right of soil beyond that of scjuatters in the t;rritory " between tlie Lake of the Woods and Rod River (that being the territory to which the matter which called forth the letter referred). In another letter, dated 8th February, 1869, also addressed to Sir Frederic Rogers, the same Ministers mentioned among other facts and inferences " whichjcannot, [they] be- lieve, be disputed," the following : — " 1. The Charter of Charles II. (and for the present we raise no question as to its validity) could not, and did not, grant to the Hudson's Bay Company any territory in America which was not then (1670) subject to the Crown of England. " 2. The Charter expressly excluded all lands, etc., then ' possessed by the subjects of any other Christian Prince or State.' "3. By the Treaty of St. Germain-en-Laye (1632), the King of England resigned to the King of France the sovereignty of Acadia, New France, and Canada generally, aud without Umits. * Sis?. Papers, Ont., 187:), No. 13. m m 268 STATEMENT OF THE CASE OF THE PROVINCE OF ONTARIO, 1878 ; " 4. ' La Nouvelle France ' was then understood to include the whole region o( Hudson's Bay, as the maps and histories of the time, English and French, abundantly prove. "5. At the Treaty of Ryswick (1697), twenty -seven years after the date of the Charter, the right of the French to ' places situated in the Hudson's Bay ' was distinctly admitted; and although comuussioners were appointed (but never came to an agreement) to ' examine and determine the pretensions which either of the said Kings hath to the place."? s'.cuute in the Hudson's Bay,' and with ' authority for settling the limits and con- fines of the lands to be restored on either side ; ' the places taken from the English (i.e., from the Hudson's Bay Company), by the French previous to the war, and ' retaken by the English during this war, shall be left to the French by virtue of the foregoing [the 7th] Article.' In other words, the forts and factories of the Hudson's Bay Company, «stablished in Hudson's Bay under pretence of their Charter, and taken possession of by the French in time of peace, on the ground that they were an invasion of French terri- tory, were restored, by the Treaty of Ryswick, to the French, and not to the Company. " 6. By the Treaty of Utrecht, 1713, 'the Bay and Straits of Hudson, together with all lands, seas, sea coasts, rivers, and places situate m the Bay and Straits, and which belong thereto,' were finally ceded to Great Britain. " 7. As no definite boundary was ever established between the possessions of the French in the interior and the English at Hudson's Bay, down to the Treaty of Paris, 1763, when the whole of Canada was ceded to Great Britain, the extent of the actual possession by the two nations for some period, say from the Treaty of Utrecht to the Treaty of Paris, affords the only rational and true basis for ascertaining that boundary. " 8. The evidence is abundant and conclusive to prove that the French traded over and possessed the whole of the country known as the Winnipeg Basin and ' Fertile Belt,' from its discovery by Europeans down to the Treaty of Paris, and that the Hudson's Bay Company neither traded nor established posts to the south or west of Lake Winnipeg, until many years after the cession of Canada to England. " 9. No other or subsequent grant to the Company was ever made which could possibly extend their territorial rights under their Charter. The license to trade in the Indian territories, which they obtained in 1821, was revoked in 1858, and has not been renewed. " 10. The country which, in view of these facts, must be excluded from the operation of the Charter, includes all the lands fit for cultivation and settlement in that part of British America." Ontario claims that the official views of the Government of the Dominion, as thus expressed, should, prima facie, be carried out as between the Dominion and the Province, unless the Dominion proves that the assertions so made by its Ministers were false or mistaken, and that the claim to which they led was unfounded. The onus of proof is on the Dominion. The opinion of Chief Justice Draper, as communicated to the Government of the Province of Canada, 12th June, 1857, was that the decision of the Privy Council would give *' to Canada a clear right west to the line of the Mississippi and some considerable distance north of what the Hudson's Bay Company claim ;" though not any territory " west of the westernmost head of the Mississippi River." But the claim of the Dominion as made in 1872, after having acquired the Com- pany's right, and as made now, proposes to limit the Province on the west to the meridian of the confluence of the Ohio and Mississippi, variously stated as 88*^ 50', 88° 58', and 89° 9' 27" ; and to limit the Province on the north (as the Company claimed in 1857) by the height of land which divides the waters that fall into Hudson's Bay from those that fall into the St. Lawrence and its lakes. In support of the claim which Ontario represents, the Province relies on the argu- ments of the Ministers of the Province of Canada before Confederation, the arguments of the Ministers of the Dominion, the legal opinion of the learned Chief Justice, and the arguments set forth in Mir Mills' Report, and in the other papers, on the same side, ■which have been collected and printed for the purpose of the present arbitration. The evidence obtained during the present year affords some fresh arguments in favour of the same views. BOUNDARY OF THE MISSISSIPPI UNDER ACT OF 1774. 2m The preRont statement is a summary of some only of the facts and reasons which lupport Ontario's claim. In 1763, France ceded to England Canada with all " its dependencies," reserving so much of what had theretofore been known as Canada as lay west of the Mississippi River; and the Treaty provided that the confines between " Franco and England in that part of the world shall 1)6 fixed irrevocably by a line drawn along the middle of the River Missis- gippi from its source ... to the sea." Shortly after the Treaty, His Majesty, by Royal Proclamation dated the 7th Octo- ber, 1763, erected the Province of Quebec, with certain boundaries therein set forth. Afterwards, in 1774, the Quebec Act was passed, which recited that "by the arrange- ments made by the said Royal Proclamation, a very large extent of territory, within which were several colonies and settlements of the subjects of France, who claimed to remain therein under the faith of the said Treaty, was left without any provision being made for the administration of civil government therein." The Act therefore provided, " that all the territories, islands, and countries in North America, belonging to the Crown of Great Britain, bounded on the south by " a line, therein described, from the Bay of Chaleurs to " the River Ohio, and along the bank of the said river westward to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the Merchants Adventurers of England trading into Hudson's Bay, ... be and they are hereby, during His Majesty's pleasure, annexed to and made part and parcel of the Province of Quebec, as created and established by the said Royal Proclamation of the 7tb October, 1763." Ontario contends that a true construction of this language requires that the line northerly from the confluence of the Ohio and Mississippi should follow the Mississippi River to its source. That this is not only the just construction of the language employed,' but was also the real intention of Parliament, is shown further by the history and the known objects of the Bill, by the proceedings thereon in the House of Commons, and by the letter of the Right Honourable Edmund Burke, dated 2nd August, 1774, to his constituents of the Province of New York, whose agent he was at the time. So, the Royal Commission which was issued immediately afterwards (viz., 27th December, 1774) to Sir Guy Carleton, as Captain-General and Governor-in-Chief of the Province, expressly describes the line from the confluence of the Ohio and Mississippi as " northward alom/ the ensteiTi hank of the said river [Mississippi] to the southern boundary of the territory granted to the " Hudson's Bay Company. Sir Frederick Haldimand succeeded Sir Guy Carleton. His Commission is dated 18th September, 1777, and assigned to the Province the same boundary lines as the pre- Tious Commission had dona These two Commissioners remove all reasonable doubt as to the line northward being along the banks of the Mississippi to its source on two grounds : — (1.) On the ground that these Commissions show the contemporaneous exposition of the intention of the Act, by the Ministers of the day and by their distinguished law advisers. Lord Camden was Lord Chancellor ; Mr. Thurlow was Attorney-General, and Mr. Wedderbum was Solicitor-General — each of whom afterwards became Lord Chancellor. (2.) On the ground that the Crown had an undoubted right to add to the boundaries of the Province ; and that if the boundaries given to it by the Commissions are not the identical boundaries which the Statute provided for, and which were thereby to continue during His Majesty's pleasure, and if the Commissions assigned to the Province a larger area than the Statute had described, the Crown had the right to make and did make the addition. By the Treaty of Paris between Great Britain and the United States, in 1783, it was agreed that the boundary between the two countries should be a line, therein particularly described, from the north-western angle of Nova Scotia, through Lakes Ontario, Erie, Huron, Superior, Long Lake, etc., to the Lake of the Woods, " thence throngh the said Lake [of the Woods] to the most north-western point thereof, and from thence on a due west course to the River Mississippi," etc. The Commission to Sir Guy Carleton after this Treaty (dated 22nd April, 1786), 'I ^;»i! lit tj: III --i-ri> *t ' i i70 STATEMENT OF THE CASE OF THE PROVINCE OF ONTARIO, 1878 ; flh II followed thia description in giving thn boundaries of the Province, and assigned an itg southerly boundary a line " to the said Lake of the Woods, thence through the said Lake to the most north-western point thereof, and from thence on a due west course to the River Mississippi ; and northward to the southern boundary o? the territory granted to the " Hudson's Bay Company. A duo west line from the point indicated would not intersect what is now known as the Mississippi, and therefore what was then known as the Mississippi, or the first tribu- tary so intersected, the waters of which flow into the Mississippi, may he taken as intended. This question is very fully. discussed in Mr. Dawson's paper. If that view should not be sustained, the alternative is the courae taken under the Treaties with the United States of 1794, 1814, 1818 and 1842. The Constitutioiial Act, 1791, the Act providing for the division of the Province of Quebec, recited that " His Majesty had been pleased to signify, by his message to both Houses of Parliamer.t, his Royal intention to divide his Province of Quebec into two sep- arate Provinces, to le called the Province of Upper Canada and the Province of Lower Canada ;" and the Act made provision for the government of each Province after the division should take place. A Paper had been presented to Parliament previous to the passing of this Act, describing the line proposed to be drawn for dividing the Province of Quebec into two Provinces. This Paper traced the line of division into Lake Temiscam- ing, " and from the head of the said Lake by a linn drawn due north until it strikes the boundary line of Hudson's Bay ; including all the territory to the westward and south- ward of the said line, to the utm jt extent of the country commonly called or known by the name of Canada." On the 24th August, 1791, an Order in Council was passed, reciting among other things that this Paper had been presented to Parliament previous to the passing of the Act; and dividing the Province into two, according to the line of division menti-ned in the paper. On 18th November, 1791, General Alured Clarke, Lieutenant-Governor and Com- mander-in-Chief of the Province of Quebec, issued a Proclamation, in His Majesty's name, in pursuance of his instruction and of a provision for this purpose in the Statute, declar- ing when the division should take effect (26th December, 1791). This Proclamation recited as follows : — " Wherea.s we have thought tit, by and with the advice of our Privy Council, by our Order in Council dated in the month of August last, to order that our Province of Que- bec should be divided into two distinct Provinces, to be called the Province of Upper Canada and the Province of Lower Canada, by separating the said two Provinces accord- ing to the following line of division, viz. : — ' To commence at a stone boundary, [etc,,] running north twenty-five degrees east until it strikes the Ottawas River, to ascend the said river into the Lake Temiscaming, and from the head of the said lake by a line drawn due north until it strikes the boundary line of Hudson's Bay, including all the territory to the westward and southward of the said line to the utmost extent of the country com- monly called or known by the name of Canada.'" That the country then commonly called or known by the name of Canada comprised the whole of the territory formerly claimed against the Hudson's Bay Company, and now claimed by Ontario, is established by abundant testimony. On the 12th September, 1791, a Commission issued to Lord Dorchester, this being the second Commission issued after the Treaty of 1783. It recited the Commission of 22nd April, 1786, to the Governor-General (as Sir Guy Carleton), the Order in Council of 19th August, 1791, dividing "said Province of Quebec " into separate Provinces, by a line therein specified : " the Province of Upper Canada to comprehend all such lands, territories and islands lying to the westward of the said line of division as were part of our said Province of Quebec." This form of expression shows that Quebec was supposed and intended to include all the territory belonging to England, and formerly known as Canada ; for it is not to be supposed that there was an intention so soon to give to the Province narrower bounds than were indicated by thn Paper presented to Parliament, adopted afterwards by the King in Council, and declared by the Proclamation of Governor Clarke. The change of expression was probably suggested by taking note of the language 3,1878: nOUNDAUY UNDKR ORDKK IN COUNCIL OK 1701, ETC. 271 and ansigned m itg rough the said Lake ) west course to the territory granted to lat is now known ag pi, or the first tribu- te taken as intended. , view should not be h the United States n of the Province of his message to both Quebec into two sep- 3 Province of Lower I Province after the nent previous to the ding the Province of into Lake Temiscam- h until it strikes the westward and south- called or known by reciting among other to the passing of the Ivision menti'nedin -Governor and Com- His Majesty's name, 1 the Statute, declar- This Proclamation rivy Council, by our ur Province of Que- Province of Upper wo Provinces accord- )ne boundary, [etc.,] liver, to ascend the ake by a line drawn ing all the territory of the country coin- Canada comprised Company, and now orcheater, this being the Commission of ;he Order in Council rate Provinces, by a hend all- such lands, sion as were part of •uebec was supposed formerly known as soon to give to the nted to Parliament, .raation of Governor note of the language of the Treaty of 1763, by which, while France ceded to England " Canada and all its ddpondeucics," the cossion was subject to a limitation. The watershed of the Mississippi and Missouri had been tho boundary line between Canada and Louisiana, and that part of Canada which was west of the MiKsissippi was reserved to France. So, by the Treaty of 1783, a further part of Canada was coded by England to the United States. A descrip- tion, therefore, in 1791, of the Province of Quebec, or of Upper Canada, which would pur- port to give to the Province all " the country commonly called or known by the name of Canada " would not have been correct. A form of expression was therefore substituted which was free from this difficulty. The subsequent Commissions to the Governors-General of Caimda, up to and includ- ing that of Lord Gosford in 1835, and the Imperial Commissiou to Mr. Caldwell as Receiver-General of Lower Canada, assigned the same line of division between Upper and Lower Canade. In the seven subsequent Commissions, from the Commission to the Earl of Durham, 30th March, 1838, to the Commission to Lord Elgin, 1st' October, 1846, inclvsive, and also in the two Commissions to Sir John Colborne and the Right Honourable Charlea Poulett Thomson, as Captains-General and Govcrnors-in-Chief of Upper Canada, dated the 13th December, 1838, and Gth September, 1839, respectively, the line of division iietween Upper and Lower Canada is stated to reach the shore of HudsonV, Bay " by a line drawn due north from the head of said lake [Temiscaming], until it stri'iea the shore of Hudson's Bey." The expression " shore of Hudson's Bay " obviously has the same signification as " boundary line of Hudson's Bay," but if the latter expression could be supposed to refer to some line south of the shore, the subsequent Commissions must be taken as having extended the boundary to the shore. These two Commissions trace the western boundary into Lake Superior, and no further, saying nothing of the line thence westerly or northerly ; but of course nobody has ever supposed that the southerly boun- dary of the Province terminated as soon as Lake Superior was reached. [The Commissions subsequent to Lord Elgin's contain no boundary line descriptions. The other Commissions to the Lieutenant-Governors of Upper Canada which have been examined, either do not give the boundaries of Upper Canada, or give them partially only, and in such a manner as throws no light on the present question. So also the Com- missions after the union do not give the western boundary of the Province of Canada. The Act of Union, 1840, does not specify the boundaries of the Province of Canada thereby created, but describes the new Province of Canada as constituted of the former Provinces of Upper and Lower Canada.] Now the Province of Upper Canada, from a period long antecedent to its union with Lower Canada, and the Province of Canada afterwards, acted, whenever there was occa- sion, on the assumption that the boundaries of the Province were those assigned by the Royal Commissions. Thus : (1.) The Province of Upper Canada is known to have been in the habit, since, at all events, 1818, of issuing writs into the territory west of the line of 89° 9^', (2.) In 1850, the Province of Canada, with the .sanction of the Imperial authorities, entered into a treaty with the Indians, and procured from them the surrender of the rights of the Indians in the territory as far west as Pigeon River. This territory, it may be observed, is south of the height of land, and was never claimed by the Hudson's Bay Company, thou.^h it is now claimed on behalf of the Dominion. (3.) From the year 1853, the Province of Canada, continuously, and without objec- tion from any (quarter, made grants of lands, in the Queen's name, in this territory, and west of the proposed line of the Dominion. Between 1853'and Confederation, no less a quantity than 35,059 acres had thus been granted west of that line. Numerous mining licenses in the same territory were granted in like manner, commencing with the year 1854, the territory embraced in them extending to Pigeon River. (1.) In 1868 the Government of the Dominion appropriated $20,000 towards the construction of a road from the Lake of the Woods to Fort Garry, on Red River ; and the money was spent accordingly. So far as relates to Ontario's western boundary, it is unnecessary to consider for the present purpose the argument as to the Hudson's Bay Company owning this territory ; m j'|-e Reinhard was pardoned (though clearly guilty of murder), and that the reason of his pardon was, that (notwithstanding the supposed decision of the Court to the contrary) tli« place of committing the murder was within Upper Canada, and, therefore, not within the jurisdiction of the Court under tho Statute 43 Geo. III., c. 138, on the authority of which the Court was acting. '■' In view of all these considerations, it is apparent that if there is any difficulty, on the westerly side of the Province, it is as respects tho territory west of Lake of the Woods. Is the western line further west than this Lake 1 Is the point of commence- ment the point on the first tributary of the Mississippi which a line due west from the most north-western point of the Lake of the Woods strikes 1 Or does the western limit extend to the Rocky Mountains ] Then as to the Northern boundary : It has been already stated that the Quebec Act, and such of the Royal Commissions to the Governors, previous to 1838, as mention the Northern boundary, specify for that purpose the southerly boundary of the territory granted to the Hudson's Bay Company ; and the principal difficulty here is, that the southerly boundary of this territory has always been an unascertained line. The claim cf the Dominion is that the boundary is the Height of Land already described. It is submitted, for the following among other reason *'^at the Height of Land is not our northern boundary : (1.) Because the easterly and westerly lines assigned to the Province by the Royal Commissions, cut through and go north of the Height of Land ; and the Commission issued in 1791,' and such of the subsequent Commissions as mention the northerly boun- dary, thereby declared in effect that the southerly boundary of the Company's territory was not south of those points, viz. : the south shore of Hudson's Bay (there called James' Bay), and the most north-western point of the Lake of tho Woods ; and was north of the Height of Land. (2.) Because the Height of Land was not claimed or suggested by the Company as being the intention of the Charter, or as being the measure of the Company's just rights, until nearly a century and a half after the date of the Charter. This fact is a practical contemporaneous exposition of the Statute by the Company themselves against their recent claim, and, having been continued for 150 years, is, without other evidence, con- clusive. ♦ [NotwithstanilinK this decision, an opposite view appears to have been taken by the Upper Canaila judges. (See paper by Chief Justice Powell, dated 1st May, 1819, in " Papers relating to the Red River Settlement, 1815-1819, " being a Return made to the British House of Commons, printed in its Sessional Papers of 1819, vol. IS, p. 285.) His Lordship considered Upper Canada, as he said, " to comprehend all the country conquered from France under the name of Canada, which had not been relinquished to the United States of America, or secured to the Hudson's Bay Company, or designated as Lower Canada." It may be added, that in the papers embraced in the same Return, Fort William (which lies west of the due north line)'and the surroundmg section are treated throughout as being within the Western District of Tipper Canada. The Governor-General so refers to it in his letters, pp. 67, 94. The Hon. John Beverley Robinson, then Attorney-General of Upper Canada, treats it in the same way, pp. 281, 284. It also appears from the same Return that the Deputy Sheriff of the Westeni District, as Kuch, attempted to arrest Lord Selkirk at Fort William, and failing in the attempt, endeavoured afterwards to execute hi» warrant itill further west, viz., at the Red River Settlement.-— G. £. L.] 1878; Hi!l\tiUN8 AUAlMHi UKlUUT OK l.XSl) UKINU TUK HuUNDAllV. 273 ir by th« StatuU", y'H having or not r boundary would Id torritory o! IIms orritory had been tho French before ot of the westfrn [ DeReinhard and cm the conflucncfl ) be 88' 60' or 88* , is based, was not ftt the prisoner De the reason of his the contrary) tlie ore, not within the authority of which s any difficulty, on ,8t of Lake of the point of commeueo- (lue west from the s the western limit Royal Commissions try, specify for that jn's Ray Company ; erritory has always lit of Land already the Height of Land [viuce by the Royal id the Commission ;he northerly boun- lompany's territory Ithere called James' id was north of the Iby the Company as Vpany's just rights, B fact is a practical jelves against their Ither evidence, con- 1 1,v the Upper Canadft Lting to the Red River Irinted in its Segsional Id, " ti) comprehend all len relinquished to the [a Lower Canada." ■(which lies west of tne l\e Western District of le Hon. John Beverley 11. 2H4- .^ lict, as «\ich, attempteo erwards to execute hi» (.1.) Bi'fdUMi* ihi' alli)j(t'i| rule, that the diMcovfiy au head waters (if the rivers flowing into IludsanH Ray, and to the interior of the country. Tluu'e is no sound n^ason to sustain a rule for giving to the diHcov(M'(Ts of the May into which thew livers How, a right to stop such explorations and settleinonts, in favour of discoverers (if the Knglish were such) who did not choose to occupy the interior of the country. The nil>' as to rights to unoccupied contiguous territory is in sucii case more than sutfioient to I' itsv(!igh the supposed rule as to the Height of Lund, (5.) Recause the ground of the recent claim is that the Knglish wem the first dis- ■ovt-rers, and tliat their discoveries were followed liy such possession of the territory in ijiiestion as the laws of nations recognize as giving a title to the territory up to the Height of Land ; while the fact is, that it is impossible to say with certainty who were the first iliscovererH, nor was the alleged discovery by the English followed by possession. 'I'he voyage of Cabot, when he entered the Ray, is said to have been in 1517 ; and no sort of possession of any part of the Bay by the Knglish before 1(507 is pretended; being an interval of l.')0 years, (iilham is said to have built, in IG67, Fort Charles (Rupert), wliiih waw on the east side of the Ray. lu the meantime the Bay had become known to the world ; persons acting under the authority of the French tTOverninont had repeatedly sisiteil it ; had taken possession in tins French King's name, and set up the Royal Arms tiiiTe ; the French had established posts at convenient points for trade with the Indians, mid had secured und were enjoying the whole tradts with the Indians around the Ray. lu 1627, the King gave to the Company of New Franco the right of trade to an exten- sivi' territory — including Hudson's Ray — both along the coasts and into the interior. Under such circumstances, the ruhs invoked by the Dominion has no application. What then is to be rt^garded as the southerly boundary of the territory of the • "onipany ? The language of th»f (Jharter, by reason of its ambiguity, affords no assistance in this iM.(iuiry. The validity of the Charter has always been questioned on the groun natives ; that in the pro.scoution of thoir trade and other enterprises these? adventurei-s evinced great cnex'gy, courage and persevm- anc , that they had extended tiioir hunting ;ind trading operations to the Athabasca oouiit y (say 58° north latitude and 111° west longitude); that some portions of thi' Athabasca country had before 1640 been visited and traded in, and to some e.'ctent occupied by the French traders in Canada and their Beaver (!ouipany (which had been founded in 1629) ; that from 1640 to IGIO these discoveries and trading settlements had considerably increa.sed in number and importance ; that Athabasca and other re{,'ioiis bordering upon it belonged to the Crown of France at that time, to the same extent and by the same means as the countries around Hudson's Bay belonged to Englahd, viz., liy discovery, and by trading and hunting. (7.) It may be added, that if the Athabasca country thus belonged to France at so early a period, so would the whole intermediate country between Athabasca and Hudson's Bay on the w.st, and between the Athabasca country and the St. Lawrence on the south. (8.) Between 1670 (the last date named by Judge Monk) and 1763 the French establisheil posts or forts in that Nor*^' -West Territory which they had previously 5, ,W.Wl#4'li| 187H: ACTUAL POSSESSION BY FRANCE OF THE NORTH AND NORTH-WEST. 275 ,(1, in this manner, Janada in 17G3 by y had been in pos- n. toi'y whicli France reposterous to nup- the Company, as the then unknown jugh such territory of square miles— a 1 give, to tho ( l()n\- nd from all British my should do noth- idy else could ; and srwards, acquire by le whole Empire, in tended to accrue, to ;he Company them- lad no possession of 3 confined to certain in 1869, that "the [1 over and possessetl e Belt ' from its dis- dson's Bay Company rinuipeg until many iiy's first post— viz., ion in question was this tract of country by Judge Monk, in iich, before the Hud- as 1605 Qv -'^ohad ore 1630 the Beaver kng on the fur trade 1 Territory ; that the the French colonists itern portions of the nations, and carried , prosecution of their lonrage and persevev- ^ns to the Athabasca bmc portions of the land to some extent Iny (which had been Ving settlements liad la and other regions the sanu' extent and to England, viz., I'V Iged to France at so [abasca and Hudson's ^t. Lawrence on the Id 1763 the French Biev had previously explored, and hunted over and traded with ; namely, on Rainy Lake, the Lake of the Woods, Lake Winnipeg, Lake Manitoba, on the Winnipeg Eiver, the Red River, the Assiniboine River, the River aux Biches, and the Saskatchewan, and so west to the Rocky Mountains, where Fort La Jonquifere was established by St. Pierre in 1752. All the lakes and rivers mentioned are connected by the Nelson River with Hudson's Bay, and are in the territory which, in the following century, the Hudson's Bay Company claimed under their Charter ; but confessedly they had constmcted in it no post or settle- ment of any kind until long after 1763 — their first post away from the Bay (other than the two factories already mentioned), having been established in 1774. It was not until 1790 that they had any post in the Winnipeg Basin ; and they did not enter the valley of the Red River until long afterwards. (9.) France had also, on the northerly side of the dividing line. Fort Abbitibi, which was north of the Height of Land, and was built in 1686. It was situate at a considerable distance north of the Height of Land, and upon the lake of the same name, from ^/hich the River Monsippy flows into Hudson's Bay. The French had also Fort St. Ger- main, on the Albany, which was built in 1684 ; and still higher up on the same river Fort La Maune, established about the same period ; and, to the east. Fort Nemiscau, on the lake of that name, situate on the River Rupert, midway between Lake Mistassiu and the Bay ; this fort was built before 1695. Of none of these did the English Government or the Company ever complain. The French had also anothei' fort on the Albany, being that mentioned in one of the memorials of the Company as having been built in 1715. (10.) The Company furnished certain maps for the purpose of the present arbitra- tion, two of which only seem of importance on either side. One of these two bears the Royal Arms and those of the Company, is of the date of 1748, and seems to have been prepared by the Company in view of the Parliamentary enquiry of that year, and for the purpose of showing the limits which the Company then claimed. The line which this map gives as the Company's southern boundary is considerably north of the Height of Land, even as shown on this map ; for the line is therein made to cut Frenchman's River — a river not named on this map, but corresponding with the Abbitibi River — and several other rivers shown on the map as flowing into the Hudson's Bay. The line runs to Lake Winnipeg (which is misplaced, being represented as due north of Nepigon, its southern point in the latitude of Fort Nelson), thence northerly along the easterly shore of Winnipeg, and thence northerly to Sir Thomas Smith's Sound in Baflin's Bay. The map thus demonstrates that the Company, at the time of its preparation, did not claim to the Height of Land, even as the same was then supposed to be situated, and did not claim Lake Winnipeg. The other of the two maps is Mitchell's engraved map, described as published by the author, February, 1755. This copy appears to have been much used and worn. There is on it an irregular line marked " Bounds of Hudson's Bay by the Treaty of Utrecht ; " and this line may therefore be taken as showing the extent of the Company's claim in 1755, and long aftor. The line is about one-third of a degree north of the T,ake of the Woods, and extends to the limit of the map in that direction, being about 98° of longitude. The territory south of this line is differently coloured from the territoi-y north of it. It is evident that the Company have in their possession no maps which purport to give to them a larger territory than these maps do. Their elalit? to the height of land as the true intention of the Charter, and tli(> true measure of their rights, so far from having been always made, was not thought of by the Company until more than half a century later, and was in eff"ect negatived by the Crown in numerous Commissions to the (lovernors of the country. The maps produced show the extent of territory which the Company claimed prior to the cession of 1763. It may be observed that on the occasions of the Treaties of Ryswick and Utrecht, the Company's claims were (expressed either in the terms of the Charter, or were simply to "the whole Bay and Straits of Hudson, and to the sole trade thereof." It sufficif" tly appears, from the (^arly documents which emanated from the Company, that this general claim to the whole Bay and Straits was a claim to the waters and shores only, and to the exclusion of the French therefrom — the French having been in pos- 11 m .?: it .'M •11 1 1 ,' t,',r 27(5 STATEMENT OF THE CASE OF THK PROVINCE OF ONTARIO, 1878. fe: III. HCHsion of forts on the Bay until after the Treaty of Utrecht, and the Treaty of Ryswick liaving in effect given them possession of all places on the Bay, except, it may be, Fort Bourbon ; and that the Company's object was the ti'ade of the Bay, and not the occupa- tion or settlement of the country away from the shores of the Bay. Indeed, in 1700, the Company, notwithstanding this claim, were willing to accept the A-lbany River as their southern boundary on the west side, and Rupert River as their southern boundary on the east side of the Bay. In 1701-2 they were content even with East Main River, and proposed it as a boundary. But both proposals were rejected by the French as being far more than the Company had any right to demand. In 1711-12 the Company proposed a line to run from the Island of Grimington, or Cape Perdrix, on the Labrador coast, south-westerly to and through Lake Miatassin. This line did not extend beyond the south-west shore of the lake ; and though the Com- pany made a demand for the surrender of the forts on the shores of the Bay, yet they do not appear to have made at that time any proposal as to a line on the west or south side of the Bay. Thus the only claims and contests of the Company at this period were about the margin of the Bay. After the Treaty of Utrecht (1713), which gave to the British all lands, etc. , "on the Bay and Straits, and which belong thereto," the Company, on the 4th August, 1714, proposed, for the tirst time, that, the Mistassin line should go south-westerly to 49° " north latitude, . . . and that that latitude be the limit ;" but as to how far to the west this line of 49" was to be followed nothing is said. In 1719 and 1750 the Company proposed the line of 49'', but both times the proposition was rejected by the French. This line would have given to the Company a boundary greatly more limited than the boundary of the Height of Land, which began to be claimed three-quarters of a century later. It has already been said that the Company could not take advantage of their Charter for the purpose of making any addition to their territory by exploration or settlement after the cession of 1763; but the practical result would be nearly the same if this righ*: should be deemed to have ceased at a somewhat later date, viz., the date of the passing of the Quebec Act, 1774, or even the date of the Treaty of 1783. The Company made no further settlement between 1763 and 1783, except Cumberland House ; and it is doubtful whether its locality belongs to the Winnipeg or the Churchill system. Both the Act and the Treaty obviously require that the southern boundary should be deemed a fixed line, not liable to variation by the mere act of the Company. These considerations are submitted as showing that the strict legal rights of the Company did not extend beyond their forts on the shores or in the neighbourhood of the Bay, and such adjacent territory as these forts may have commanded ; and that Ontario is entitled to have its nortlierly boundary line drawn accordingly. Or, if the Company's territory is to be considered as extending beyond the forts on the Bay and the immediately adjacent territory, their territory is not to be deemed south of the northern extremity of the dividing line between Upper and Lower Canada ; to exceed otherwise what England herself was entitled to under the Treaty of or Utrecht, viz., the middle line between the forts and settlements of the English and French ; and further, is not to include a greater area than is shown on the maps furnished by the (/ompany, in case the middle line would give them a larger territory than these niaps claimed for the Company ; for the reference in the Statute of 1774 to the territory granted to the Hudson's Bay Company, cannot in any view be construed as referring to a more southerly line than the Company had theretofore claimed for themselves. Or, if there is too much doubt as to tho southern boundary of the ' Company's TiTritory to detorraine with precision where such boundary was, a northern boundary sliDuld be assigned to the Province which would give to the Province the full territory which the Commissions to the Governors definitely provided for, and, in addition, such further territory to the north as may be just and reasonable. O. MOWAT, AtlQrnAyGe'neral of Ontario. 1878. STATKMENT (»F THE CASK OF THE DOMINION, IHJi^. 277 ?reaty of Ryswick t, it may be, Fort id not the occupa- willing to accept pert River as their content even with i were rejected by and. of Grimington, or li Lake MiHtassin. I though the Coin- the Bay, yet they the west or south iod were about the all lands, etc., "on 4th August, 1714, uth-westerly to 49° i8 to how far to the ut both times the , to the Company a md, which began to age of their Charter fation or settlement f the same if this z., the date of the r83. The Company and House ; and it chill system. Both should be deemed legal rights of the jighbourhood of the ; and that Ontario Ing beyond the forts lis not to be deemed land Lower Canada ; Ider the Treaty of [of the English and the maps furnished ^rritory than these [774 to the territoiy rued n» referring to Ithomselves. of the ■ Company's northern boundary |ce the full territory I, in addition, sucti \ral of Onlario. ■ - ■ ^ .■-..,... . ■ , . . I ,,. . , , . '. STATEMENT OF THE CASE OF THE GOVERNMENT OF THE DOMINION OF CANADA REGARDING THE BOUNDARIES OF THE PROVINCi^ OF ONTARIO. Prepaued by Hugh MacMaiion, Q.C, Counsel for the Dominion.* ''\ /;''. ABBKEVIATIONS. " Ont. Docts." — Statutes, Documents and Papers respectinj,' the northern and western boimdarie.s of Ontario, compiled by direction of the Government of Ontario. " Mills." — Revised Report for the purpose of the arbitration between the Dominion of Cauada and Province of Ontario, by David Mills, Esq., M.P. "Papers Rklatino to H. B. Co. Fresknteo to House op Commons." — Papers presented by command of Her Majesty to the House of Commons, in pursuance of an address respecting the territory, trade, taxa- tion and government claimed or exercised by the Hudson's Bay Company. (Ordered by House of Cominnns to be printed, 12th July, 1850.) The limits assigned to the Province of Ontario by the British North America Act, 1867, sec. 6, are such part of the Province of Canada as at the passage of the Act formerly constituted the Province of Upper Canada. The claim of the Dominion of Canada is, that the meridianal line drawn due north from the junction of the Ohio and Mississippi Rivers (ascertained to be 89° 9' 27" west) forms the western boundary of Ontario, and that the land's height of the northern water-shed of the St. Lawrence is the northern boundary. The Government of Ontario contend that the western limit of that Province is the Rocky Mountains ; that the north-westeru limitary line lies north of the Saskatchewan ; and that the north-eastern line lies in the vicinity of Hudson's Bay. (Mills, p. 1.) The claim of Ontario to extend the western limit of the Province to the Rocky Mountains rests, it is assumed, upon the supposed title of France to that country, as having been the first discoverers thereof. It was stated by M. de Calliferes, when writing to M. de Seignelay in 1685 (N. Y. His. Doc, Vol. IX., p. 265), that the French were the first to discover Hudson's Bay, and that nation was therefore entitled to the whole country to the base of the Rocky Mountains ; and the rule of international law on which this is claimed is thus stated by M. de Callieres : " It is a custom established and a right recognized by all Christian nations, that the first who discovers an unknown country, not inhabited by Europeans, and who plant in it the arms of their prince, secure the property thereof to that prince in whose name they have taken possession of it." L'Escarbot, in 1617, stated that " New France has for its limits on the western side the lands as far as the sea called the Pacific ; on this side the Tropic of Cancer ; on the south the islands of the Atlantic Sea, in the direction of ( uba and the island of Hos- paniola ; on the east by the Northern Sea, which bathes New France ; and on the north that land called ' Unknown,' towards the icy sea as far as the Arctic Pole." (Ont. Docts., p. 5.3.) So that the whole of the north-western portion of the continent was claimed as belonging to France. It will be necessary briefly to show upon what these claims arc; founded, and then to consider if they have any value as bearing on tiie question to be decided by the arbitrators. In 1626, Louis XTII. granted to the Company of New France a charter which, it is asserted, included the whole of the country about Hudson's Bay and west of it. The Indians from the vicinity of Hudson's Bay came to Montreal to trade ; hence it is said there was no necessity for erecting forts and trading- posts. (Mills, p. 127.) It is stated that Jean Bourdon, the Attorney-General, in 1656, explored the entire coast of Labrador and entered Hudson's Bav. * H i^^^^^^T' ' ' 'I''^ M mm ^ ' '' ^1^ ■ := m • London, Out., l»7« ; Report of Coinraittej Ho. of Com., Can., 18H0, pp. 2:47-255. -'1p i ■■'* - ii •■ll, Ifi ■■■■m ■i:i i; r"l,if t " m I; ,: 1 1 r 1 1 1 ; ! 278 STATEMENT OF THE CASE OF THE DOMINION, 1878 ; It appears that in the year 1656 there was an order of the Sovereign Council of Quebec authorizing Sieur Bourdon, its Attorney-General, to make a discovery thereof. There is no record whatever of his having attempted to make the discovery in the same year in which the order was passed l)y the Council.* There is a record, however, of his having made the attempt in the year following (1657), and he may then have designed carrying out the order, t He sailed on the 2nd day of May, and returned on 11th August, 1657 ; and it is not pretended that he could have made a voyage to Hudson's Bay and return between these dates. (Journal des Jesuites, pp. 209-218.) As to the extent of this voyage there can be no doubt, as in the Rel. des Jesuites, Vol. III., Rel. 1658, p. 9, it is thus reported : — " Le 11 (Aout) parut la barque de Monsieur Bourdon lequel estant desceudu sur le grand fleuve du Cost6 du Nord voyagea jusques ou 55 degr6 au il rencontra un grand banc de glace qui le fit remonter, aiant perdu deux Hurons qii'il avait pris pour gviides. Les Esquimaux sauvages du Nord les massacrerent et bless^rent un Franrois de trois coups de fleches et d'un coup de couteau." The Jesuits would have known if Jean Bourdon had entered the Stmits of Hudson, and would have mentioned it in their Eelations. On the contrary, they never mention it, and it is to be taken from that that the assertion that he ever entered Hudson's Bay is a myth, because he was of the Province of Quebec, and was a man well kiiown and trusted by the Jesuits, and went with Father Jogiies on an embassy to Governor Dongan, of New York. It is asserted that Father Dablon and iSieur de Valliere were in 1661 ordered by Sieur d'Argenson, Governor of Canada, to proceed to the country about Hudson's Bay, and they went thither accordingly, and the Indians who then came back with them to Quebec declared that they had never seen any Europeans there before. In Shea's Chai'levoix, Vol. III., pp. 39 and 40, it is stated that he (Father Dablon) attempted to penetrate to the Northern Ocean by ascending the Saguenay. Early ir, July, two months after they set out, they found themselves at the head of the Nekauba River, 300 miles from Lake St. John, | They could not proceed any further, being warned by the approach of the Iroquois. Rev. Claude Dablon arrived in Canada in 1655, and was immediately sent missionary to Onondaga, where he continued, with a brief interval, until 1658. In 1661 ho set out overland for Hudson's Bay, but succeeded in reaching only the head wateis of the Nekauba, 300 miles from Lake St. John. (N. Y. His. Doc, Vol. IX., p. 97, note 2.— Ed.) In the Rel. de Jesuites, Vol. III. (1661), p. 13, there is an account of this voyage, which is called ^^ Joniiial dv premier voyage fait vers hi mer du. Nord. (12 Aont, 1661.)" The account is dated from the highest point they reached, Nekauba, 100 lieues de Tadou.sac, 2 Juillet, 1661 : — " 1661, Juillet le 27, rotourncrent ceux qui estoient alles ou pretendoient aller ii la mer du Nord au Kiristinons P. Dablon, etc." (Journal du Jesuites, p. 300.) An assertion is made that sonic Indians came from about Hudson's Bay to Quebec in 1663, and that Sieur la Couture with five men proceeded overland to the Bay, posses- sion whereof they took in the King's name. *[The same authority (juoted by Mr. MacMahon iiiformg us that "as re^'ards Hudson's Bay, the French settled there in IHSfJ," and that the .Sieur Bnurdon " went to the north of the said Bay, and took possession thereof in His Majesty's name." (The Sieur de Calliferes, (iovernor of Montreal, and subsequently Governor-General of Canada, to the French Minister, the Marquis de Seicuelivy, in Book Arb. Docs. p. 109.) And there is the further strttemunt that " in K^Bj Jean Bourdon ran along the enti-e coast of Labrador with a vessel of thirty tons, entered and took possession of the North Bay. This is proved by an extract of the ancient llegister Of the Council of Few France of the 2IJth of August of said year." (The Marquis de Denouville, Governor-General of CJanada, to the Marquis de .Seignelay, Book j*rb. Docs. p. 111.) The North Bay— Bai> du Nord -a French name for Hudson's Bay. By the term " north of the said Bay," is meant the northern part — probal)ly Port Nelson. — G. E. L.] •|-[The contention on the part of Ontario is that this is the private record of a different voyajfeina different year, and which, eitlier because of '^s not having been directed to Hudson's Bay, or in consequence of its failure if it was so directed, is not noticed in the official records or despatches. G.E.L.] t [Charlevoix, who did not write until the next century, may not have been master of all the facts. But even his account shows that Dablon met an immense concourse of the Indians of Hudson's Bay, at their appointed place of rendezvouB on the Height of Land. — G. E. L.] J UENCH EXPEDITIONS TO HUDSON'S BAY, 1656-1672. 279 i^ereign Council of iscovery thereof, le discovery in the a record, however, he may then have d returned on 11th oyage to Hudson's -218.) As to the bes, Vol. III., Rel. itant descendu aur encoutra un grand t pris pour giiides. 1 Franrois de trois Stmits of Hudson, hey never mention Bred Hudson's Bay n well kill own and aassy to Governor n 1661 ordered by lut Hudson's Bay, back with them to le (Father Dablon) iguenay. Early ii: id of the Nekauba •ther, being warned ely sent missionary In 1661 he set out pad wateis of the 97, note 2.— Ed.) nt of this voyage, ord. (12 Aont, ekauba, 100 lieues tendoient aller a la 300.) ks Bay to Quebec lo the Bay, posses- ,. Hudson'rt Bay, the he said Bay, and took ■r of Montreal, and Ignelay, in Book Arb. fclong the enti-e coast This is proved by J of said year." (The lok Arb. DocH. p. 111.) |rth of the Haid Bay," idiffeipiit voyage in a f, or in coHHeiiuence '.E.L.] lof all the facts. But lidson'a Bay, at their There is no record of this voyage. No mention is made in Charlevoix or in the Relations of the Jesuits respecting Couture or his expedition.* Sieur Duquet, King's Attorney for Quebec, and Jean L'Anglois, a Canadian colonist, are said to have gone to Hudson's Bay in 1663 by order of Sieur D'Argenson, and renewed the act of taking possession by setting up the King's arms there a second time. Viscount D'Argenson, who is stated by Mr. Mills at p. 129 of his Revised Report to have given the order to Duquet to proceed to Hudson's Bay, left Canada on 16th September, 1661, two years prior to the giving of the order, which it is stated Sieur Duquet received.! (Shea's Charlevoix, Vol. III., p. 65, note 5, and p. 17. N. Y. His. Docts., Vol. IX., p. 17). In 1666 or 1667, Radisaon and des Groselliferes were roaming among the Assini- boines in the region of Lake Winnipeg, and were conducted by members of that tribe to the shores of Hudson's Bay. (Mills, p. 8.) Father Albanel and Sieur St. Simon were, in November, 1671, sent by M. Talon to Hudson's Bay, which they reached in 1672. In the Relations of the Jesuits, Albanel gives an account of his trip, and shows that the English Company were already in possession of Hudson's Bay, having entered there under their charter. It is quite apparent from the relation that no one had on behalf of France visited Hudson's Bay prior to his visit in 1672. Father Albanel says : — " Jusques icy on avoit estime ce voyage impossible aux Francois, qui apr^s I'avoir entrepris d^ja par trois fois, et n'en ayant pii vaincre les obstacles, s'estoient veu obligez (le I'abandonner dans le desespoir du succez. Ce qui paroist impossible, se trouve ais6 quand il plaist a Dieu. La conduite m'en estoit deu6, apres dix-huit ans de poursuites que j'en avc;s faibe, et j'avois des prcuves assez sensibles que Dieu m'en reservoit I'execu- tiou, apr^s la favour insigne d'une guerison soudaine et merveilleuse, pour ne point dire miraculeuse, que je receus des que je me fus devout ii cette mission, a la solicitation de men Superieur." (Rel. Jesuites, 1672, p. 56). Up to this time (1672) the Jesuits do not appear to have heard of any prior expedi- tion having reached Hudson's Bay. J What is relied upon by the Province of Ontario as furnishing evidence of Father Dablon and Sieur Couture having visited Hudson's Bay is a memoir of M. de Calliferes sent to the Marquis de Seignelay in 1684 (N. Y. His. Doc, Vol. IX, p. 268) ; and M. de Oenonville, on 8th November, 1686, by a memoir sent to M. de Seignelay, appears to liave copied the statement made by M. de Calliferes.§ (S(!e Ibid. p. 304.) But in his letter which accompanied the memoir, M. de Denonville says : " I annex to this letter a memoir of our rights to the entire of that country, of which our registers ought to be full, but no memorials of them are to be found." (N. Y. His. Doc, Vol. IX., p. 297). M. de Denonville thereby admits that documentary evidence could not even at that time be adduced in support of these visits having been made to Hudson's Bay.|| ■m *[The Marquis de Denonville reports of Couture'a journey to the shore of Hudson's Bay : "In 1603 . . . Sieur D'AvaiiRour, then Governor, sent Sieur Couture thither with five ethers. Said Sieur < 'oviture took possesssiou anew of the head ( foruh) of said Bay, whither he went overland, and there set up the King's arras, engraved on copper. This is proved by Sieur D'Avaugour's order of the 20t.h May, 1663, imd the certificates of those who were sent there." (Book of Arb. Docs., pp. Ill, 112.)— G. E. L.] t [The order of D'Arg' iib ^n was renewed by his successor, D'Avaugour, as appears from de Calli^res : — "In tne same year, ICCj, Sieur Duquet, King'.s Attorney to the Prov6U of Quebec, and Jean I'Anglois, a Canadian colonist, went thither again by order of the said Sieur D'Argenson and renewed the act of taking pDs.seBsion by setting up His Majesty's arms there a second time. "This is proved by the arrit of the said Sovereign Oo\mcil of Quebec, ann by the orders in writing of the said Sieurs d'Argenson and d'Avaugour." (IJnok Arb. Docs., p. 109.)-G. E. L.] i[And yet the overland journey of the two Frenchmen, Radisson and Des Grosselliferes, who wont to the shores of the Bay in 1666, is related al)o"e. We have also for it the authority of the English author OMmixon. (Book of Arb. Docs., p. 280.)— G. E. L.] ii [There is no foundation for this conjecture. The two mimoires bear internal evidence that they were prepared independently one of the other. — G. E. L.] ■ i [This extract from the Marquis de Denonville has reference, not to Hudson's Bay, but .o the Country of the Iroqnoit, south of the St. Lawrence and liake Ontario, of which he treated in the same mf moire. (See the full text in the N. Y. Hist. Docs. )-G. E.L.] . < ; ■:m y'M i\ 280 STA'iKMKNT OK THK CASE OK THK DOMINION, 1S78 : li'' At the time that M. de Calli6roa and M. do Deiionville wrote (in 1684 and 1680)), it wa.s most important to show, if possible, that Dablon and Couture had been at Hudson's Bay. The French, before that time, liad driven the English from a number of their forts ; and in March, 1686, Canadian troops were sent by Denonville, wiio surprised and captured Forts Albany, Hayes and Rupert, belonging to the Hudson's Bay Company ; and it therefore became necessary to show a colour of right for these proceedings, and these memoirs were prepared with that view.* ' ExKLisii DiscovmiY. ^_ • ' , ,. 1517. ' '"' Sebastian Cabot, who sailed to Hudson's Bay ,iud Straits under a commission from Henry VII. of England, entered the Bay, which, in 1610, took the name of Hudson. This is admitted by Mr. MilKs, pp. 122 and 123. (See Bacon's History of Henry VII., Hakluyt, Vol. Ill, pp. 25, 26 and 27.) . , 1576, 1577 and 1578. . ', . - .„ .-, Sir Martin Frobisher, It is said, mad« three voyages to Hudson's Bay. He entered Hudson's Bay in 1576, and gave the name to Ftobis) -'s Straits. (Mills, p. 123 ; Uak- luyt, Vol. III., pp. 55 to 95 ; Pinkerton's Collection, ol. XII., 490-521.) 1608-1610. According to the narrative of Prickett (who was with Hudsor during the voyage), to be found in Harris's Voyages, Vol. II., pp. 243-4, Hudson sailed on 17th April, 1610, reached the Bay now known as " Hudson's " in July of that year and wintered in the Bay, and remained there until late in the summer of lb 11. 1611. . ' It was desired to prosecute the discoveries made by Hudson, and in 1611 His Royal Highness Henry Prince of Wales was applied to by persons concerned in the project, and he resolved to send Captain Button, who penetrated to the Hudson's Bay and sailed 200 leagues to the north-west. He wintered there at Nelson River. (Harris, Vol. 11., pp. 245-404.) 1631. It appears that the English nation had been tiadiug with Greenland, and those trading finding that " other nations were interfering with this trade " found themselves under a necessity of having recourse to the Crown for protection and assistance, as well for defending their fi.sheries as for prosecuting their discoveries, and they accordingly addressed themselves to King Charles I., who furnished them with a frigate called "The Charles," under command of Captain Luke Pox, who .sailed in the spring of 1631, in order to make discoveries towards the north-west. Captain Fox and Captain James met at Fort Nelson in August, 1631. Captain Thomas James undertook his voyage in 1631 for the satisfaction of Charles I., at the expense of the merchants of Bristol. The account of the voyage was written by himself, and published in 1633. Captain James left England in May, and met Captain Luke Fox on 29th August near Port Nelson. He wintered in Hudson's Bay. (Harris's Travels, Vol. II., pp. 407, 409 and 413.) 1667 and 1668. ' ■ Des Crosellieres and Radisson (who it is supposed were Coureitrs ilea bow) were roaming among the Assiniboines and were conducted by them to Hudson's Bay. * [There is no authority for thip suggestion, and the high character and position of these two Oovermin) are opposed to it. Besides, these were confidential reports to the French Government, which have only become public in our own day, and iit the instance of the State of New York, whose early history they serve to illustrate. See a ftdler reference to this matter in the argument of the Attorney-General of Ontano before the Arbitrators, pimt. -(\. K. Ij.1 ENOLISir VOYACJKS TO HUDSON'S HAY, 1667-9. J81 Des Groselliferes and llatliaHon went to Quebec for the purpose of inducing the iner- chants there to conduct trading vessels to Hudson's Bay. The proposal was rejected, as the project was looked upon as chimerical liy the Quebec merchants.* (Ont. Docts. p. 2H0.) (This does not accord with the pretensions of the French that Jean Bourdon had made a voyage there in 1656 Oi- 1657.) Des Groselli^res was in London in 1667, and before going there had been in Boston and Paris in search of persons willing to tit out an expedition to explore Hudson's Bay. lit! met witli a favourable reception, and the London merchants employed Z. Gillam, a person long used to the New England trade, to perfect this discovery. Gillam sailed in the " Nonsuch " in 1667, and on his arrival built Fort Charles, said to have been the first fort erected in the Bay,t and upon his return those engaged in the enterprise applied to Charles II. for a patent, which was issued on 2nd May, 1670, to Prince Rupert and otliprs. (Harris's Voyages, Vol. II., p. 286.) , ' ' '« , ■ '.'» 1669. ' Captain Newland was sent out in 1669 by the same parties who in 1667 sent out Z. (rillam. As far as thn Hudson's Bay Territory is concerned, the English were first, both as to discovery and occupation. So long as the English were not there, the Indians came to Montreal and Quebec, and the French derived the benefit of the trade, which was all that was required, and they could then afford to treat as chimerical the statements of Badisson and Des Groselli^res that Hudson's Bay could be reached with ships.* But once the English occupied the territory, erected forts and created settlements; whereby the French fur trade was cut off from the west and north, then it became necessary for them to claim title by discovery. Hence the memoir of M. du Callieres to M. Seignelay, which is shown cannot be relied upon, and which Des Denonville says there are no memorials to support, t If possession is to form a claim to the country, the evidence that the English first made a settlement and thus took possession is of the clearest character, for it is not seriously pretended that any actual i)ossession was taken nor any settlement made until Gillam went to Hudson's Bay and built Fort Charles in 1667.§ What, then, did England obtain by taking possession and making a settlement for the purpose of occupancy by building the numerous forts on Hudson's Bay, in the year 16G7 and during subsequent years] According to Vattel, Book I., Chap. 18, Sect. 207, " Navigators going on voyages of discovery furnished with a commission from their Sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the nauui of their nation ; and this title has been usually respected, provided it was soon after followed by real possession." '' When a nation takes possession of a country, with a view to settle there, it takes possession of everything included in it, as lands, lakes, rivers, etc." {Ibid,, Chap. 22, Sect. 226.) " In the negotiations between Spain and tiie United States respecting the western l)Oundary of Louisiana, the latter country laid down with accuracy and clearness certain propositions of law upon this subject, and which fortify the opinion advanced in the fore- going paragraphs, ' The principles (America said on ihis occasion) which are applicable to the case are such as are dictated by reason and have been adopted in practice by ♦ [The sole authority for this Htateiiient is OUhiiixon, an English author who wrote in the next century alter tlie event, and wrote in the interest of tlie Hudson's Bay Company and from materials partly furnished by the ('onii)uny (see Book Arb. D(Ks., pp. 27'.>, 2S0) ; hthI it is re[)eated in Harris's Voyages, an English com- pilation. The real reasons for the rejection of the pronosal were that the French had already command of the trade by the overland channels, and that neither the merchunts nor any one could engage in the trade without the Tjicense of the (jovernor, whose policy was to bring the trade to the posts of the St. Lawrence.— (}. K. L.] t[This was a temporary establisiiment, abandoned on (Hllani's departure. -G. E. L.] *[See the answer to these statements in the preceding notes to this paper.— G. E. L.] S[The French had the undisputed dominion and the enjoyment of the whole trade of the Hudson's Hay country secured to them by tlieir posts and operations on the St. Lawrence and the Height of Land, and, therefiire, had not found it necessary, in the absence of all advei-se claims, to build any permanent establish- ments on the shores of the Hay. — G. E. L. I 2»2 STATEMKNT OF THK CASE OF THE DOMINION, 1878 I II. .■ . : )v ;-, ■ '■ I European Powers in the discoveries and acquisitions which they have respectively made in the New World. They are few, simple, intelligihle, and, at the same time, founded in strict justice. The first of these is, that when any European nation takes possoHsion of any extent of sea coast, that possession is understood a.s extending into the interior country to the sources of the rivers emptying within that coast, to all their branches, and the country they cover, and to give it a right, in exclusion of all other nations, to the same. (See Memoire do I'Am^rique, p. 116.) It is evident that some rule or principle must govern the rights of European Powers in regard to each other in all such cases ; and it is certain that none can be adopted, in those to which it applies, more reasonable or just than the present one. Many weighty considerations show the propriety of it. Nature seems to have destined a range of territory, so described, for the same society ; to have connected its several parts together by the ties of 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 scope of acquisition ; but a slight attention to the subject will demonstrate the absurdity of either. The latter would be to restrict the rights of an European Pov/er who discovered and took possession of a new country to the spot on which its troops or settlement rested — a doctrine which has been totally disclaimed by all the Powers who made discoveries and acquired possessions in America.' (Phillimore's Internat. Law, 2nd ed., Vol. I., pp. 277-8-9.) Sir Travers Twiss, in his discussion on the Oregon question, at page 300, states that " Great Britain never considered her right of occupancy up to the Rocky Mountains to rest upon the fact of her having established factories on the shores of the iJay of Hudson, i. e.. upon her title by mere settlement, hut upon her title hy discovery, confirmed by settle- ments in which tlie French nation, her only civilized neighbour, acquiesced,* and which they subsequently recognized by treaty." The British nation, therefore, acquired, by discovery and by settlements made on Hudson's Bay, the possession of the country extending into the interior to the sources of the rivers emptying within that coast, which would include the Saskatchewan and English Rivers to the west, having their sources at the foot of the Rocky Mountains, and extend- ing south and east to the sources of all the rivers flowing into James' Bay. The law entitling England to this has been stated not only by Vattel, but has been adopted as correct by the United States, and is recognized by the highest authorities on Internationpl Law in England — Dr. Twiss and Dr. Phillimore — as being the correct principle to apply in such cases, t If England acquired the territory claimed within the limits stated, it may for some purposes be necessary to consider what the Hudson's Bay Company took under their Charter. The Chai-ter will be found in Ont. Docts., pp. 29-37, and at p. 33 will be found what the King grants to the Hudson's Bay Co. under the name of " Rupert's Land." First is granted the sole trade and commerce of all those seas, bays, lakes, rivers, creoks, etc. Then the Company are created the absolute lords and proprietors of the saim territory, limits and places, etc., etc., in free and common xncrage," with power to erect colonies and plantations, etc. The Charter is very wide ; and although it appears to have been conceded by the leading counsel in England (Ont. Docts., pp. 193 to 202) whose opinions were obtained that the (!)harter granting a monoply to the Company to trade may have been void t)ecause not sanctioned by Parliament, yet that the territorial grant is valid, and the only ilifference in the opinions appears to be to the extent of territory covered by the grant. In 1849, on an address of the House of Commons praying that Her Majesty would he graciously pleased to direct that means be taken to ascertain the legality of the powers * [The now known factn are that the Frencli did not ac(|ui48ce, but always proteMted, and backed their protcHt by force of arms.— G. E. L.] t[In applying these principles to the present case, Mr. MacMahon ignores the odverne pogsessiim of France — a possession by discovery, by contiKiiity, by the submission ami consent of the natives, by l)einj,'iii the sole enjoyment of the trade— a possession dr. facto of, at all eveutK, the so\irces of the rivers and tk: whole interior. To such a case the principles referred to have no application. (See the Argument of the Attorney-Goneral on this point before the Arbitrators, pu»t.) As to the Nelson River, the outlet of the waters of Lake Winnipeg, the first fixed settlement upon it was that of the French.— (J. K. L.] OPINJ'JN OK THE LAW OFFICERS ON EX I'AKTE STATEMENT OF H. B. CO., 1850. 283 IcHted, ivnd backed their in respect to Territory, Trade, Taxation, and Government, which are, or have been, claimed by the Hudson's Bay Company, the Directors of the Company were requested to render their assistance in complying with the address of the House of Commons, which they did on the 13th of September, 1849, by enclosing to Earl Grey a statement as to their Eights as to Territory, Trade, etc., which will be found in full in Ont. Docts., pp. 288-9 and 290. Annexed to this statement was a map showing the territory claimed by the Company as included within their Charter; and a copy of this map was likewise produced in 1857 to the Select Committee of the House of Commons, and is attached to the Report of that Committee. This map shows that on the south the Company claimed to the land's height, and on the west to the foot of the Rocky Mountains. On 30th Oct., 1849, Earl Grey enclosed to the then law officers of the Crown the statement and map furnished by the Company, requesting an opinion as to the rights of the Company. The opinion furnished is as follows : — {Copy oj a Letter from Sir John Jervia and Sir John Romilly to Earl Grey.) Temple, January, 1850. My Lord, — We were honoured with your Lordship's commands contained in Mr. Hawes's letter of the 30th October last, in which he stated that he was directed by your Lordship to transmit to us the copy of a Resolution of the House of Commons, that an Address be presented to Her Majesty, praying that measures may be taken for ascertain- ing the legality of the powers which are claimed or exercised by the Hudson's Bay Company on the Continent of North America. Mr. Hawes then stated that he was to enclose the copy of a letter from the Chairman of the Hudson's Bay Company, together with a statement and map, prepared under his direction, of the territories claimed by the Company in viiiue of the Charter granted to them by King Charles the Second. Mr. Hawes also sent the copy of a letter, dated the 30th September last, from Mr. A. K. Isbister, inquiring in what modo Her Majesty's Government intend to give effect to the Resolution of the House of Commons, and whether, in the event of any reference to a judicial tribunal, it will be necessary for the parties interested t© appear by counsel or otherwise, or to furnish evidence, and, if so, of what nature. Mr. Hawes concluded by stating that your Lordship requested that we would take tliese papers into our early consideration, and inform you whether we are of opinion that the rights claimed by the Company do properly belong to them. In the event of our entertaining a doubt on any point raised in these papers, Mr. Hawes was to request that wo would ad^^se your Lordship in what manner the opinion of a competent tribunal can be obtained on the subject. In obedience to your Lordship's command, we liave taken these papei's into our consideration, and have the honour to report that, having regard to the powers in respect to territory, trade, taxation, and government, claimed by the Hudson's Bay Company in the statements furnished to your Lordship by the Chairman of that Company, we are of opinion tliat the rights so claimed by the Company do properly belong to them. Upon this subject we entertain no doubt ; but as it will be more satisfactory to the complainants against the Company, to the promoters of the discussion in the House of Commons, and possibly to the Company themselves, if the questions are publicly argued and solemnly decided, we humbly advise your Lordship to refer these questions to a competent tribunal for consideration and decision, and to inform Mr. Isbister tliat he may appear as complainant, and the Company that they may be heard as respondents upon the argument. The proper mode of raising the question for discussion will, we presume, be for Mr. Isbister, or some other person, to embody in a Petition to Her Majesty the complaints urged against the Hudson's Bay Company ; and such a Petition may be referred by Her Majesty either to the Judiciary Committee, under the 4th section of the Statute 3 and 4 William IV. c. 41, or to the Committee of Trade, as involving questions within their jurisdiction. The Judicial Committee, from its constitution, is the best ^n. m ni m m I 284 STATKMKNT OK THK CAHK OF THK DOMINION, 1H7H If? I' ;- t : fitted for the diHCUHnion of a civso of th (UtHoription, and wa rncomniend that to tlmt tribunal the proposed Petition should l)o referred. (Papers relatinjnr to H. B. Co., presented to House of 0." Now, what were the Hudson's Bay Company claiming as their territorial rights ai the time of the Treaty of Ryswick (1697) and after the Treaty of Utrecht (1713), and also in 17j'0? mend that to that CLAIMS OK THE HUDSON'S HAY COMPANY, 1007-1712. 28ft By tho 7tli and Htlj Artiolos of the Treaty of RyHwick, certain thingH wore to be (Idiin — (1) thti Truaty was to he ratilied, and (2) after the ratitic-ation ( 'oniiniaHioncra were to be appointed who were " to examine and determine the rij,'htH and pietenHionn wliich either of the Hnid Kings had to the places situate in Iluilson's Hay."* (Ont. Docts., pp. 1.^) and 1(5.) And although CJomniissionerH were appointed, and although claims were at ditlertmt times advanced by the Hudson's Hay Company (as will j)resently be Ktated), nothing was dour- by the Commissioners to determine such rights and pretensioDH. " After the Commis-sioners have determined th«)S(! ditlerences and disputes, tho Articles tho said C'onnnissioners shall agree to shall be ratified by both Kings, and shall have the same force antl vigour as if they w(!re inserted word for word in the present 'iV(!aty." (Treaty of Ryswick, Art. 8, Chalmers' Tn-aties, Vol. I., p. 335.) The English and French (Jovornments went on negotiating, under the Treaty, until 1702, when the war of succession broke out and all negotiations were at an end. It har. been stated, and urged as a ground against the lati^r pretensions of the Hudaon'i Bay Co., that in July, 1700, they were willing to contract their limits. While willing to do this for tho purpose of effecting a settlement, and only on condition of their nut being able to obtain "the whole Straits and Bay which of right belongs to them." (Ont. Docts., p. 123.) Nothing was done under this, and the Hudson's Bay C'O. were again addressed by the Lords of Trade and Plantations in January, 1701, when they again insist on their lim'hts to the whole Bay and Straits, but are willing tj forego their rights to a certain i^xt08t timiniutn ; for the Soveroij^n, in whatever maiui(>r ho rt'CovcrM thuiii, ix boutul to rtmtore them to their former ooiiditioii &h hoou uh lie reKninH poHHesmon of them, {/hid., nee. 205.) The enemy, in givin)( back a town at the peoco, renoiineeH the right he had iic<|nired by arniH. It in juHt the Hanie aa if he had never taktm it ; and the tranHaotion furruHheH no reauon whiuh can JuHtify the Hovereigii in refusing to reinHtato Huch town in the poHHeHHioii of all her riglitH, and to nmtoro her to her former condition." {/bill., hw. "J 14.) It is submitted, howcuer, that, iiH hetwcten the Dominion and Province of Untario, the question whether the lIudHon's Bay Company were entitled to demand the right of /loul limiiiium in of no conHt^cjuence whatever.* The late (.''lief Justice Draper, when acting as agent for the Province of Canada, delivered to the House ot" Commons Committee, on the 2Hth of May, 1857, a paper rela- tive to the boundaries, w.'ierein it is stated ; "The 8th article of the Tnmty of Ityswick shows that the French at that time snt up a claim of right to Hmlson's Hay, though that claim was abandoned at the peace of Utrecht, and was never set up afterwards."! (Ont. Docts., p. 240.) Lord Dartmouth's letter of the 27th May, 1713 (Ont. Docts., p. 129), enclosing the petition of the Hudson's Bay Company, shows what was the design in not accepting un " Act of Cession " from the French King ; and Her Majesty the Queen " insisted only upon an order from the French Court for (lelivering possession ; by this means the titln o/ thii Company is ac/moinfedged, and they will come into the immediate enjoyment of thoir property without further trouble." The sections of the Treaty of Utrecht having any bearing upon the question are the 1 0th and ir)fch, to be found in Ont. Docts., pp. 16 and 17. Under sec. 10 the King of F'rance was "to restore to the Queen of Oreat Britain, to be possessed in full right '':>rever, the Bay and Straits of Hudson, together with all lands, seas, coasts, rivers, and places situate in the said Bay and Straits, and which belong there- unto ; no tracts of Itind or of sea being excepted which are at presetit possessed by the mh- jects of France." * * * "The same Commissaries shall also have orders to describe and settle in like manner the boundaries between the other British and Frenoli colonies in those parts." In the wording of the 10th article a great deal of discussion arose as to whether the word " restore " or the word " cede " should be used. Count de Torcy, in January, 171.'t, says : " The plenipotentiaries now make no difference between places ' ceded ' and places 'restored.'" (Bolingbroko's Correspondence, Vol. III., p. (501.) But in March, 1713, he .says that the truth is so evident that the plenipotentiaries of Great Britain at Utreclit always make a distinction between places that should be " ceded" and those that shouKI be "restored." (Bolingbroko's Correspondence, Vol. III., p. 605.) Great Britain was contending that as France had dispossessed her of Hudson's Bay Territories, the French should " restore " them, while the French desired to use the word "cede," as if the territories had belonged to the French, and they were for the Hrst time cediu|< them to Great Britain. The word " restore " was used, and it is important to examine the original text of the treaty, which is in Latin. The words used in that article, " spectantibus ad eadem," show clearly that France was to restore to England all the lands looking towards the Hudson's Bay ; in other words, the whole water-shed of the waters running into the Hudson's Bay. J The first part of the 10th section does away with any exception, and left nothing for the French to hold possession of in Hudson's Bay. * [See thii* (luestion of post lirainy treated in Mr. Mills' revised llejiort, pp. 1W7-171.— G.-E. L.] t[8ee note * ante, p. 38.- G. E. L.] J [There were two originals of the Traaty, of co-ordinate authority, the one in Latin, the other in FrencJj. In "tie official KnKlish copy, published by authority of the UritiHli Government in 1713, and which may, therefor •, be taken as a conteinporaneouH interpretation of the Latin original l)y the hiL'liest authority, the words in ipiesti >n are rendered "and which belontf thereunto ;" and the French original at,'rees with the FiUglish version, it- words l)eing "''< lieu qui en tlfiiemlatit.'' (ChalaierH' Treaties, Vol. 1; Le Clerq, llecueil, toiu. 1.) Vccordint,' to a well-known and settled principle of international law, France, as the party called upon ti ■ make facrifices, had a right to select that original of the Treaty, and that reading of the tf xt, which would be thf most favourable to her interestn (Vattel, Book 4, sec. .S2).--G. K. li.j KNLAU(JKI) PRETKNHIONS i)V THK HirnsON'H HAY COMPANY, I7l3-I71!>. 287 wh»t(*ver maiiiifr Hooii ttH hu r«KHiiiA town at tho peaut\ ho had i»evf»r taken nn^ii ill rufuaiti^ to h«r to her foriiior rovinco of Ontario, Binaud the right of rovince of Ctiimda, 1 857, a papor rcla- ich at that tinio ^4t)t tied at the peace of 129), enclosing the in not accepting an leen " insisted only tw means the titln of enjoyment of thoir ;he question are the of Great Britain, fo ether with all lands, [ which belong there- posseaaed by the mh- ilso have orders to British and Frenuh 10 as to whether tiie ly, in January, 171:5, ' ceded ' and places in March, 1713, he Britain at Utrecht Id those that should lor of Hudson's Bay red to use the word the first time ceding iportant to examine [sed in that article, tngland all the lands -shed of tho waters land left nothing for '^ < I I7-I7I.-G.E. L.1 I in Latin, the other in Vent in 17i;<, and which ir tiie liiL'iiest autlionty, loriginiil agrees with the la, Vol. 1; liB Clern, Inal law, France, a» the Iv, and tlittt reading nf l2).--G. E. L.) Mr. Mills, at p. 151) of his report, after quoting the portion of tho 10th section ahovc referred to, says : "The words of the Treaty just (juoted aiul the attendant ciroumstanceB show that what was claimed liy Knglund and yieldod \>y France was the Bay and tho country upon its margin. NevtirtlielesH, the language of the Treaty i/itl not make it im- jioniiihte for Eiiqlnnd, if ahe wern ao di*/joseil, to inaial ii/xni thu poaatiaaion of the who/e tannlry to ihf. land' a hniyht* Franco, too, consented with reluctanct^ to tho use of the worad of 'ceHsicm.'" The Treaty not only made it possible for Kiigland to insist upon the possession of tho whole country to tho land's ludght,* but from tho very moment Oommissaries wero appointed as provided by th(( Treaty she always insisted that she wiis entitled to the whole country, and it will be apparent that Franc(' assented to this contention ns being tliv correct interpretation of the Treaty. Although (!ommissaries were appointed as provided by the Treaty, and notwithstand- ing tho (Jonnnissaries failed to iletin«i the boundaries between tho territories of each of tho Oovemments, it was in some manner assumed that the boundary had been settled by the 19th parallel; and this was ked upon by the Americni.s and by the English themselves as being the southern bound of the Hudson's Bay Company's Territory. And we find that in tho discussion which look place in regard to the boundary line from the north- w st angle of the Lake of the Woods to the Hocky Mountains, the United States assert- ing on the one hand, and Great Britain not denying on the other, that tho 49th parallel was the boundary between their respective couulrios, because it was the southern boundary of the Hudson's Bay.t "From the coast of Labrador to a certain point north of Lake Superior, those limits wore fixed according to certain metes and bounds, an : " The said Commissaries further demand that the subjects of His Most OLristian Majesty shall not build forts or found settlements upon any of tfie rivers which empty into Hiodson's Bay under any pretext whatsoever, and that the stream, and the entire navigation of t/ie said rivers shall be left free to tlie Company of English merchants trading into Hudson's Bay, and to such Indians i. wish to traffic with them."* (Ont. Docts., p. 365.) Sir Travers Twiss says : — "The object of the 10th Article of the TreaVy of Utrecht was to secure to the Hudson's Bay Company the restoration of the forts and other possessions of which they had been deprived at various times by French expeditions from Canada, and of which some had bei-ii yielded to France by the 7th Article of the Treaty of Ryswick. By this latter Treaty Louis XIV. had at last recognized William III. as King of Great Britain and Ireland ; and William, in return, had consented that the principle of uti possidetis should be the basis of the negotiations between the two Crowns. By the 10th Article, however, of the Treaty of Utrecht, the French King agreed to restore to the Queen (Anne) of Great Britain, ' to bo nossessed in full right iforever, the Bay and Straits of Hudson, together with all lauds, 6>tas, sea coasts, rivers and places situate in the said Bay and Straits, and which belong thereto ; no tracts of land or sea being excepted which are at present possessed by the subjects of France.' The only question, therefore, for Com- missaries to settle were the limits of the Bay and Straits of Hudson, coastwards, on the side of the French Province of Canada, as all the country drained by streams entering into the Bay and Straits of Hudson were, by the terms of the Treaty, recognized to be part of the possessions of Great Britain. t " If the coast boundary, therefore, was once understood by the parties, the head waters of the streams that empty themselves into the Bay and Straits of Hudson indicate the line which at once satisfied the other conditions of the treaty. Such a line, if com- menced at the eastern extremity of the Straits of Hudson, would have swept along through the sources of the streauis flowing into the Lakes Mistassinnie and Abbitibi8,3>;he Rainy Lake, in 48° 30', which empties its ^If by the Ramy Rivf;r into the Lake of the Woods, the Red Lake, and Lake Travers. "This last lake would have been the extreme s'-uthern limit in about 45° 40', whence the line would have wound upward to the north-vv-est, pursuing a serpentine course, and resting with its extremity upon the Rocky Mountains, in about the 48th parallel of latitude. Such would have been the boundary line between the French possessions and the Hudson's Bay district ; and so we find that in the limits of Canada, assigned by the Marquis de Vaudreuil himself,! when he surrendered the Province to Sir J. Amherst, the Red Lake is the apex of the Province of Canada, or the point of departure from which, on the one side, the line is drawn to Lake Superior ;§ on the other, 'follows a serpfiutinc course southward to the River Oubache, or Wabash, and along it to the Junction with the Ohio.' This fact was insisted upon by the British Government in their answer to the ultimatum of France, sent in on the 1st of September, 1761, and the map which wa« presented on that occasion by Mr. Stanley, the British Minister, embodying those limitn, was assented to in the French memorial of the 9th of September."|| (Historical Memorial of the Negotiations of France and England from March 26th to Sept. 20th, 1701. Published at Paris by authority,) (Twiss' Oregon Boundary, pp. 209-211.) * [8ee as to this the arffument of the Attorney-Genoral before the Arbitrators, post. — (J. E. L.) t [The Treaty is, in terras, opposed to this contention : " It is agreed on both sides to determine, within •A year, by Commissaries to be forthwitli named by each party, the limits which are to lie fixed between the sail! Bay of Hudson and thr place-i appcrtainiiif/ to the French." (Art. 10 of tli9 Treaty.) And Mr. Mills proves (pp. 15!», KiO,) that the neuotiators of the Treaty had drawn upon the maps certain lines by which the Commissaries were to be ({ui(led ; which lines were north of the Hei^'ht of Land.— G. E, L.] J [The Manpiis do Vaudreuil positively denied that he assigned any such limits. In a letter of HOth October, 1761, to the Due de Choiseul, he says : " When I capitulated I traced no limits whatever, and in all the messages that passed between the Knglish General and me, I made use of the word ' Canada ' only . " (liook Arb. Docs., j). 159.) The line of the Mississippi was ultimately agreed on aw the Ijimndary. Seethe Treaty, 76., j). 18. -G. K. L.] § [Tliis is a mistake ; there is no line drawn to Lake Superior on the map, (See the copy annexed to the original edition of the Dominion Case).— G. K. L.] !i [It might well have been assented to ; for, if accepted by England, those limits would have left t" France a considerable part of Canada which should have been surrendered to England.— G.E.L.] 8 Most Oliristian which empty into I entire navigation lants trading into it. Docts., p. 366.) to secure to the ons of which they ,da, and of which lyswick. By this of Great Britain ie of uti possidetis the 10th Article, bore to the Queen iay and Straits of ite in the said Bay jxcepted which are therefore, for Oom- coastwards, on the r streams entering ly, recognized to be 3 parties, the head of Hudson indicate Such a line, if corn- have swept along e and Abbitibi8,ihe ito the Lake of the jout 45" 40', whence lentine course, and .e 48th parallel of iich possessions and [da, assigned by the Sir J. Amherst, the arture from which, oUows a serpentine le junction with the heir answer to the ;he map which was (dying those limits, istorical Memorial Sept. 20th, ITfil. -211.) fa, post. — G. E. L.] et to determine, within Lo he fixed between tlic laty.) And Mr. Mills jcertain lines by wliicti l-G. E. Kl Tn a letter of Mh limits whatever, mid in vord 'Canada' only.' Ithe lioundary. Set the l(See the c.py annexed litH would have left t" Id.-G. E.L.I LIMITS OF THE ILLINOIS AND OF LOUISIANA. 289 " By the Treaty of Utrecht, the British possessions to the north-west of Canada were acknowledged to extend to the head-waters ".f the rivers emptying themselves into the Bay of Hudson ;* by the Treaty of Paris they were united to the British possessions on the Atlantic by the cession of Canada and all her dependencies ; and France contracted her dominions within the right bank of the Mississippi. That France did not retain any territory after the Treaty to the north-west of the sources of the Mississippi will be obvious when it is kept in mind that the sources of the Mississippi are in 47° 35', whilst the sources of the Eed River, which flows through Lake Winnipeg, and ultimately finds its way by the Nelson River into the Bay of Hudson, are in Lake Travers, in about 45* 40'." (Twiss' Oregon, p. 226.) It has not been thought necessary to refer to the numerous maps described in the Ontario Documents, as, unless a map has been made use of in connection with a treaty, or a boundary has been defined thereon, but little reliance can be placed upon it. f Sir Travers Twiss says : — " The claim, however, to the westwardly extension of New France to the Pacific Ocean requires some better evidence than the maps of French geographers. A map can furnish no proof of territorial title : it may illustrate a claim, but it cannot prove it. The procf must be derived from facts which the law of nations recognizes as founding a title to territory. Maps, as such, that is, when they have not had a special character attached to them by treaties, merely represent the opinions of the geographers who have constructed them, which opinions are frequently founded on fictitious or erroneous statements : e. g., the map of the discoveries of North America by Ph. Buache and J. N. DeLisle in 1750, in which portions of the west coast of America were delineated in accordance with De Fonte's st'^ry, and the maps of North-west America at the end of the seventeenth and beginning of tae eighteenth centuries, which represent California as lately ascertained to be an island. (Twiss' Oregon, pp. 305-6.) When new Commissaries were appointed in 1750, the Lords of Trade and Plantations requested the Hudson's Bay Company to furnish a memorandum showing the limits claimed, which was done on the 3rd of October in that year, and is substantially as claimed by them in 1719. (Mills, pp. 176-7.) It were well to consider what territory was comprised within the limits of Louisiana, as this will prove a help to arriving at a proper conclusion as to what England claimed as being comprised in " Canada," or " New France." According to extracts (Ont. Docts., pp. 41-2) copied from the Charter of Louis XIV. to M. Crozat, Sept., 1712, it will be seen that Louisiana "was the country watered by the Mississippi and its tributary streams from the sea-shore to the Illinois," i.e., the Illinois River J was the northern boundary of Louisiana according to this " authoritative document of the French Crown." By the same public document all the rest of the French possessions were united under the Government of New France. (Twiss' Oregon, pp. 219-220.) In the course of the negotiations respecting the limits of the Provinces of Canada and Louisiana, the Marquis de Vaudreuil, who signed the surrender, published his own account of what passed between Sir J. Amherst and himself, of which he considered the English account to be incorrect. " On the officer showing me a map which he had in his hand I told him the limits were not just, and verbally mentioned others extending Louisiana on one side to the carrying-place of the Miamis, which is the height of the lands v)ho8e rivers run into the (Euahache ; and on the other to the head of the river of the Illinois." (Annual Register, 1761, p. 268.) Even thus, then, all to the north of the Illinois was admitted to be Canada." (Twiss' Oregon, pp. 220-221.) What took place at the various conferences respecting the limits of Canada has been procured from the records of the Foreign Office. - • -' ■ - •- * [The Treaty tu'ls to di»olo«e any such acknowledgment.— O. E. L.] + [The degree of credit to be given to a map, a* to a history or a work on geography, depends very much on the standing of the author. Maps have been appealed to and used in all intematloiiM questions of bound- ary that we know of, and on both udes.— Q.|E. L.J »/>u ,»-• [Not the Illinois River, but the Illinois Country is here meant.— O. E. L.] r-m in.. , yn ■'A t 19 ■j'flf 290 J>V STATEMENT OF THE CASE OF THE DOMINION, 1878 ''>•■? ^i 1 I 'i.'r. '" t,! Hi: On the 18th August, 1761, M. deBussy, the French Minister at London, furnished to Mr. Pitt a memorandum upon the limits of Louisiana, which bore upon the limits of Canada, and ran thus : " 8ur les limites de la Louisiana. rifii- " Pour fixer les limites de la Louisiane du c6t4 des colonies Angloises et du Canada, oti tirera une ligne qui s'^tendra depuis Rio Perdido entre la Baye de la Mobile et celle de Pensacola, en passant par le Fort Toulouse ohez les Alibamons, et qui, se prolongeant par la pointe occidentale du Lac Eri6 enfermera la Riviere des Miamis, et par I'extremite orientale du Lac Huron, ira aboutir k la hauteur des terres du cote de la Baye d'Hudson vers le Lao de TAbitibis, d'oii la ligne sera continu^e de I'Est k rOiiest jusques «t compris le Lac Superieur." (Pub. Rec, Off. Vol. 483.) Instructions, however, accompanied by an ultimatum, were transmitted under date of the 27th August, 1761, to Mr. Stanley, in which it was laid down that these limits could not be acceded to ; and Mr. Pitt, in alluding to the conduct of France, stated that among the reasons whereby British confidence had been shaken was " the cl-\iming, as Louisiana, with an effrontery unparalleled, vast regions which the Marquis de ^audreuil bad surrendered to General Amherst as Canada, and defined himself, with his own hand, as comprehended in the government of that Province where he commanded," and Mr. Pitt gave the following definition of the boundaries of Canada, as set forth by M. de Vaudreuil : — " Le Canada, selon la ligne de ses limites traced par le Marquis de Vaudreuil lui- meme, quand ce Gouverneur-G6n6ral a rendu, par capitulation, la dite Province au General Britannique le Chevalier Amherst, comprend d'un cote, les Lacs Huron, Michigan et Superieur, et la dite ligne, tiree depuis Lac Rouge embrasse, par un cours tortueux, la Riviere Ouabache (Wabash) jusqu' k sa jonction avec I'Ohio, et de Ik se prolonge le long de cette derni^re riviere inclusivement, jusques k son confluent dans la Mississippi;" and on this definition of the limits of Canada its cession was claimed — a copy of M. de Vaudreuil's map being sent to Mr. Stanley for reference, together with an extract of a letter from General Amherst, dated 4th October, 1760, bearing upon that subject (Pub. Rec., Off Vol. 483.) Annexed will be found a copy of that map of M. de Vaudreuil to which Mr. Pitt referred, which has been made from the original enclosed by General Amherst in his despatch of 4th October, 1760, from which document also the following extracts have l)een taken : — " The Government of Canada includes Lakes Huron, Michigan and Superior, as you will see by the enclosed sketch, the red line being marked by the Marquis de Vaudreuil."* "The Government of Quebec begins with Trondines on the north-west and de Chaillon on the south-east, and takes in all the parishes from them down the River St. Lawrence." (Pub. Rec, Off. Vol. 94, Ama. and W. Indies.) It is further recorded on the 2nd September, 1761, the Marquis de Vaudreuil's map was shown to the Due de Choiseul by Mr. Stanley, and that the bounds of Canada were agreed upon as therein stated. This fact is further substantiated by a passage in Mr. Stanley's despatch of the 4th of that month, which runs as follows : — " The Due de Choiseul complained that the bounds of Canada were laid down very unfavourably to France, in the description which your memorial contains, alleging (sic) that there had been disputes between the Marquis de Vaudreuil and the Governor of Louisiana with regard to the limits of their two Provinces, wherein the former, being the more able and the more active, has greatly enlarged his jurisdiction ; he added, however, that though many such objections might be made, it had been the intention of the King his master to make the most full and complete cession of Canada, and that he consented in his name to those limits. I then produced the map you sent me, and it was agreed that this Province should remain to Great Britain as it is there delineated." (Minutes of a Conference at Paris, Sept. 2nd, 1761. Pub. Rec, Off. Vol. 483, France.) The last M^moire of France to England in these negotiations is dated Sept. 9tli, 1761, and was delivered by M. de Bussy to Mr, Pitt on the 14th. * [This is a mistake : it now appears that the line was marked by Oen. Haldimand. (See the cor- respondence, Mills, pp. f»l-4.)—G.E.L.] BOUNDARIES OF THE PROVINCE OF QUEBEC BY THE ACT OF 1774. 291 l,H(f The first Article fully confirms the aoceptauce by France o£ the de Yaudreuil map,* «nd states as follows : — " Le Roi, a dit dans son premier memoir de propositions et dans son ultimatum, qu'il cederoit et garantiroit a I'Angleterre la possession du Canada dans la forme la plus etendue : Sa Majesty persiste dans cette ofiEre : et sans disenter sur la ligne des limites, trace dans une carte presentee par M. Stanley, comme cette ligne demand^e par I'Angle- terre, est sans doute la forme la plus etendue que I'on puisse donner k la cession le Boi vent bien I'accorder." (Memoire Historique sur la Negotiation de la France et de I'Angle- terre, 1761, p. 52. F. 0. Lib. 4to, No. 434.) Then came the Treaty of Paris, concluded on 10th February, 1763, by which the Canada of the French was ceded to Great Britain. By the 7th section of this Treaty, " It is agreed that for the future the confines between the dominions of His Britannic Majesty and those of His Most Christian Majesty in that part of the world shall be fixed irrevocably by a line drav/n along the middle of the River Mississippi, from its source to the River Iberville, and from thence by a line drawn along the middle of this river and the lakes Maurepas and Fontchartrain to the sea." (Ont. Docts., pp. 18-19.) As the source of the River Mississippi was Red Lake, and as it was from that point that the Marquis de Yaudreuil directed the red line to be drawn, there can be no difficulty in coming to a conclusion as to what was included within the boiinds of the "Canada" of the French.! Now, the proclamation of the King on 7th October, 1763, created four separate Governments, viz. : Quebec, East Florida, West Florida and Grenada. All the lands not within the limits of the said Governments, and not within the limits of the territory granted to the Hudson's Bay, were for the present reserved for the protection and dominion of the Indians. (Ont. Docts., p. 26.) m -.(! )■■: k,.- Quebec Act, 1774. -J ttr Lldimaud. (Bee the cor- When the Quebec Act of 1774 was introduced, it was designed to extend the bounds of the Province of Quebec far beyond those created by the Proclamation of the King, issued in October, 1763. By the Act, as originally introduced, it was evidently intend^ to include in the Province of Quebec " all the territories, islands and countries heretofore a part of the territory of Canada, in North America, extending southward to the bar^ oj tlie Mississippi, and northward to the southern boundary of the territory granted to the Merchant Adventurera of England trading to Hudson's Bay, and which said territories, islands and countries are not within the limits of the other British colonies as allowed and confirmed by the Crown, or which have since the 10th February, 1763, been made a part and parcel of the Province of Newfoundland." (Mills, pp. 77-8.) Now, in the Act as passed, the words ^'hereto/ore a part ofths territo^-y oj Canada" are loft out, and the Act included "all the territories, islands and countries in North America belonging to the Crown of Great Britain," between certain defined limits along the western boundary of the then Province of Pennsylvania until it strike the River Ohio ; and along the bank of the said river westward to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the Merchants Adventurers of England trading in Hudson's Bay ; and all the tenitories, islands and countries which have since the 10th February, 1763, been made part of the Government of Newfoundland, be, and they are hereby, during Her Majesty's pleasure, annexed to * Yet on the 30th Nov., weeks after the cessation of these negotiations, M. de Yaudreuil addressed a letter to the Duo de Choiseul, which was published, as stated in the Annual Register of 1761, "to quiet the minds of the people," and in which the Marquis stated hat what he was charged with b^ the English as regards the limits of Canada was entirely false and gro .idless, and that nothing passed in writing on that Read, nor was any line drawn on any map.— An. Reg., 1761, pp. 267-8. (See M. de Vaudreuil's letter, Ont. Docts.. p. 169.) [The above is a note to the Dominion case. The Marquis de Vaudreuil's statement is borne out by Gen. Haldimand's letter. (See it in Mills, pp. 52-4 ; Ho. Corns. Report, 1880, p. 233.) As to the asMnt ol France, see note II, p. 288, ante.] + [See note t, p. 288, ttntf.-«. E.L.] '--'••"*'»' ''••^* "1" , S ! 6:^ ';. .., 292 JtT^- > STATEMENT OF THE CASE OP THE DOMINION, 1878 ; If...: -y I I'l p and made part and parcel of the Province of Quebec, as created and established by the said Royal Proclamation of 7th day of October, 1763. (Ont. Docts., p. 3.) On reading this description it Trill be seen that the east bank of the Mississippi oould not have been intended as the western limit. Whenever the bank of a river or lake is created a boundary, the Act expressly states such to be the case, as " the eastern bank of the River Connecticut," " the east- em bank of the River St. Lawrence," " theory along the eastern and south-eastern bank of Lake Erie," and " along the bank of the b&;J river (Ohio) until it sti es the Missis- sippi." Now, when the River Mississippi is reached the description do. not proceed " along the bank of said river," as in the other descriptions, but descnbes the remaining limit as " northward to the southern boundary of the territory granted to the Merchants Adventurei.; of England." It is said that the word " northward" in the Act cannot mean "north," and that, therefore, a line drawn north from the junction of the Ohio and Mississippi rivers to the Boathem boundary of the Hudson's Bay Company's lands would not conform to the description in the Act. The meaning of the expression "northwurd," as used in this Act, re "ved judicial interpretation in the year 1818, on the occasion of the trial of Charles de Keinhardt for murder committe.! at the Dalles; &au also during the trial of Archibald McLennan, in the same year, for & like offence. The Judges of the Court of Queen's Bench in Lower Canada, in giving judgment in these cases (Ont. Docts., pp. 226-7-8), were clearly of opinion that the western limit of Upper Canada was a line drawn due north from the junction of the Ohio and Mississippi rivers.* In the Treaty between Great Britain and the United States, in 1846, the term '* westward " was used, and it was interpreted to mean " due west."! (U. S. Treaties and Conventions, p. 375.) Because the Commission which issued to Sir Guy Carleton in 1774 extended the boundary of the Province " along the eastern bank of the Mississippi river to the sottthom boundary of the territory granted to the Hudson's Bay Company," it is asserted that the Commission should govern. The fact of a Commission having bee^^ issued with this extension, not authorized, cannot be made to extend the boundaries created by the Act. These Commissions, being mere instructions to the Governor-General, c«ui have no effect in altering territorial boundaries. | The Commission to Governor Andros, of Connecticut, gave him authority to the 3outh Sea. Lord Elgin's Commission as Governor-General, issued in 1846, apparently gave ulra jurisdiction to the shore of Hudson's Bey ; but it never was claimed or pretended that the Commission extended the boundaries of Canada to the shore of that Bay.§ (For Commission, vide Ont. Docts., pp. 61-52.) .^ ., ^ , ; ' ' See also the argument of the Attorney-General before ♦ [See notes, t, p. 211, ante, and *, p. 272, aiUe. the Arbitnton as to this point, poat.— u. £. L.] t [On thd other hand, in the Quebec Act, 1774, the term ' ' westward " is applied to a oourse which follows the sinuosities of the River Ohio. (See the Act, Book Arb. Docs., p. 3.)— 0. £. L.] }:[The Commissions and the "instructions" to the Governors are separate and different documents. Ontario ha« never adr"' ci ■ i .hat Upper Canada had, before these Commissions, limits less extensive than the Commissions assigned \,i. .le Province. Un the contrary, as to the Commissiuus of 1774, the contention of Ontario was, that these Commissions are a contemporaneous exposition of the meaning of the Act of that year by the very highest authority— the Ministers and Law Advisers of the Crown— the authors of the Act itself ; but that if t tie boundary of the Act wan the due north line claimed on behalf of the Dominion, it wan competent for the Crown, in t^e exercise of its preroprative, and by this public instrument under the Great Seal, to unite, and that the Crown did thereby unite, to Upper Canada, that portion of the unorganizeil territories of the Crown which lay between such due north line and the Mississippi ; and that any poaiilile question as to the boundary under the Act was thus immaterial. — G. E. L.] § [.3ome eight other Commissions, appearing in the Book of Documentf, give Upper Canada the like boundary. fSee Book Arb. Docs., pp. 60, 61, 390.) As soon as the question of boundary arose, Ontario claimed all the territory which this boundary g»ve. (S^ Book Arb. Docs., p. 423,}— Q. £. L.j r'n-KidH ESTABLISHMENT OF THE PROVINCES OF UPPER AND LOWER CANADA, 1791. 293 established by the p. 3.) of the Mississippi the Act expressly actiout," " the east- south-eastern bank sti es the Missis- n d^. not proceed ibes the remaining 3d to the Merchants "north," and that, issippi rivers to the lot conform to the uct, re ved jadiciai les de Keinhardt for ibald McLennan, in I giving judgment in ihe western limit of )hio and Mississippi I, in 1846, the term (U. S. Treaties and 1774 extended the issippi river to the ipany," it ia asserted iion, not authorized, Commissions, being altering territorial im authority to the ipparently gave liim d or pretended that of that Bay.§ (For Attorney-General before Klied to a course which . E. L.] nd different dooumentit. its less extensive than the f 1774, the contention ot *ning of the Act of that —the authors of the Act ' of the Dominion, it was prument under the Gre&t rtion of the unorgamw'! ' ; and that any poaiible Upper Canada the like wundary arose, Ontario -G. E. L.] .<4 .«<^f .(,.i,i.:i^°., i.i t l.» 1791. — Thb Conbtitutional Act. What ia known as the Constitutional Act of 1791 (31 Geo. Ill,, cap. 31) was passed to repeal certain parts of an Act passed in the fourteenth year of His Majesty's reign, entitled "An Act for making more effectual provision for the government of the Province of Quebec, in North America," and to make further provision for the government of the said Province. " Whereas an act wrs passed in the fourteenth year of the reign of his present Majesty, entitled ' An Act for making more effectual provision for the government of the Province of Quebec, in North America / and whox-eas the said Act is in many respects inapplicable to the present condition and circumstances of the said Province ; and whereas it is expedient and necessary that further provision should now be made for the good government and prosperity thereof ; may it therefore please your most excellent Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that so much of the said Act as in any manner relates to the appointment of a Council for the af^irs of Uie said Province of Quebec, or to the power given by the said Act to the said Jouncil, or to the major part of them, to make ordinances for the peace, welfare, and good govern- ment of the said Province, with the consent of His Majesty's Governor, Lieutenant- Oovernor, or Commander-in-Chief for the time being, shall be and the same is hereby repealed. " And whereas His Majesty has been pleased to signify, by his message to both Houses of Parliament, his royal intention to divide bis Province of Quebec into two separate Provinces, to be called the Province of Upper Canada and the Province of Lower Canada, ikc." (Ont. Docts., p. 4.) The Proclamation of November, 1791 (Ont. Docts., p. 27), declares that by an Order in Council of August it was ordered that the Province of Quebec should be divided into two distinct Provinces. But it is argued that this Proclamation annexed to Upper Can- ada territories not included in the Province of Quebec. This argument is based upon the use of the word " Canada" at the end of the first paragraph of the Proclamation. It is stated the 14th Geo. III. " is in many respects inapplicable to the present con- dition and circumstances of the said Province." "To what Province is it inapplicable t Why, to the Province of Quebec. The Act says the intention of the King was "to divide his Province of Quabec into two separate Provinces" His Majesty, on the 24th day of August, 1791, "was pleased, by and with the advice and consent of his Privy Council, to order that the Province of Quebec be divided into two distinct Provinces, to be called the Province of Upper Canada and the Province of Lower Canada, by separating the said two Provinces according to the line of division inserted in the said order." (Ont. Docts., p. 389.) The Act of Parliament was that alone upon which the Order in Council could be based or the Proclamation issued ; and it is quite evident that neither the Order in Council nor the Proclamation intended tu do more than the Act made provision for, %.«., to divide the Province of Quebec* The construction put upon this Act by the Court of Queen's Bench ia Lower Canada, in De Reinhardt's case and in McLennt..i's case (Ont. Docts., pp. 226-7-8), was that ** Upper Canada could include only that part of the Province so dividec^ as was not con- tained in Lower Canada, but it could not extend beyond those liuilts which constituted the Province of Quebec."t * LThe Act did not divide the Province of Quebec ; nor did it deal or profess to deal with the boundaries of the two new Provinces of Upper and Lower Canada ! its sole object was to provide a constitution for these Provinces, which was to take effect when the division should be made by the King. (See the Act, Book Arb. Docs., p. 4.) The King, prior to the passing of the Act, communicatod to the two Houses of Parliament the division and boundaries which he contemplated. (See the Order in Council settling these boundaries, and the Paper so submitted to Parliament, Book Arb. Docs., pp. 388-9, 411,)— 6. E. L,J 'H m + [Upper Canada judges took a diffardnt view. (See notes, t, p. 211, ante, and ♦, p. 272, n the gi'ounds for mainta'nin'^ such different view were not before the Lower Canada Court, (. Creneral'it argument before the Arbitrators, pott.)—G. B. L.] -,) Many of ■e Attorney- ■^tfif 294 <^c)!H'iv:<> STATEMENT OF THE CASE OF THE DOMINION, 1878 : * -^'^^^l^JMa^ In the Commisaion issued to Lord Dorchester, Sept. 12, 1791, as Captain -(General and General-in-Chief of the Province of Upper Canada and Lower Canada (wherein the Order in Council of 19th August, 1791, is recited), It states the intention to divide the Province of Quebec into two separate Provinces, " the Province of Upper Canada ta comprehend all said lands, territories and islands lying westward of the said line of division as were part of our said Province of Quebec." (Ont. Docts., p. 48.) The Commission issued in 1794 to Henry Caldwell, Esquire, Receiver-General of the Prov' of Lower Canada, contains a boundary description of Upper Canada similar to that 4 ihe Commission of Lord Dorchester. (Ont Docts., pp. 389-390.) The ten Commissions issued to the Governors-General of the Provinces of Upper and Lower Canada between December, 1796, and 1st July, 1839, contain boundary-line descriptions similar to that of Lord Dorchester in September, 1791. On the 13th December, 1838, a Commission was issued to Sir John Colbome as €fovemor-in-Chief of the Province of Upper Canada, in which, after describing the other boundaries of the Province, it proceeds : " On the west by the Channel of Detroit, Lake 3t. Clair, up the River St. Clair, Lake Huron, the west shore of Drummond Island, that oi' St Joseph and Sugar Island, thence into Lake Superior." (Ont. Docts., p. 390.) The Commission to the Right Hon. Sir Charles Poulett Thomson, dated 6th S«pt 18o9, contains boundary descriptions similar to above. (Ibid., p. 390.) •' ,•"' «v'Ui vo-i a <7.w 1? l L'.'i/ JljfA , • • "" ~- V ' 29th August, 1840. ^ ,)i, f.«„ : ." ; .r.. i^m^ffi The Act of Union {Impl. Act 3, 4 Vic, cap. 35) was passed to make "provision for- th© good government of vhe Province of Upper Canada and Lower Canada, ♦ * * * which, after the passing of this Act, shall form and be one Province under the name of tie Province of Canada." (Ont. Docts., p. 10.) After the passing of the Union Act, and on the 29th August, 1840, a Ormmission was issued to Lord Sydenham as Governor-in-Chief of the Province of Canada. The Com- mission gives the western boundary of the united Provinces, as in the Commission to Sir John Colbome. (Ont Docts., p. 51.) _^,, ,.[• The Commission to Lord Metcalf in February, 1843, and that to Earl Cathcart in March, 1846, and the one issued to Lord Elgin on Ist October, 1846, contain boundary- line descriptions of Upper Canada similar to that issued to Lord Sydenham in 1840. It will be seen that, between December, 1838, when Sir John Colborne was appointed Governor-General, until 1852 or 1853, when Lord Elgin's term as representative of Her Majesty expired, the British Government understood and treated the western boundary of Upper Canada as being on the shore of Lake Superior ;* and it is fair to infer that the Imperial authorities were not ignorant that a line drawn north from the junction of the Ohio and Mississippi would strike the shore of Lake Superior, and they no doubt intended that where the line so struck should be the limit of the jurisdiction of the Governor-Gen- eral, and consequently the westerly limit of the Province of Upper Canada. Then, in order to reach offenders for crimes committed in the Indian territory * [The reason that the Oimmission of 18;W traced the southern boundary into Lake Superior, and omitted any further description of it. waa probably that the Commissioners appointed under the Treaty of Ghen*- had agreed upon a hue extending only " into Lake Superior . . . to a point in said lake 100 yards to the north and east of a ( mal^. island named on the map Chapeau, and lying opposite and near to the north-eastern uoint of lie Royale ; " and had disagreed " as to the course of the boundary from the point last ineutionea in Lake Superior 'lio another point, designated in the maps, at the foot of the Ghandiere Fall in Lac la Pluie," the Anierican Commissioner contending for a line to and by the River Kamanistiquia and Dog Lake, and the BritMh Commissioner for a line to and by Fond du Lac and the St. Louis and Vermillion Rivers. (See t'.ie Report of the Commissionera in Hertslet's Treaties, vol. 13, p. 892.) The por- tion of the line so not a<;'eed upon was settled under the Treaty of 1842, which ran the line from the point in Lake Sui)erior " where the line marked by the Commissioners terminates," to Pigeon River, and thence to Lac la Pluie and the '"jake of the Woods. (See the Treaty, Book Arb. Docs., p. 21.) It was, no doubt, from oversight that »ao change was made in the form of the Commissions subsequent to this Treaty of 1842, for althotigh St. (leurgd's or Sugar Island, as to which the Commissioners had also disagreed, was assigned by the same Treaty tc'the United States, yet it continued to be treated in the Commissions, including Lord Elgin's, as belongirg to Great Britain ; and so also with Drummond Island, which the Cominig..ioner8 hafl aijpropriated to tht United States. (See the Treaty ; see also the Commissions in question. Book of Arb. Docs., pp. 51-2.; -G. E. L.] Captain-General ida (wherein the ion to divide the pper Canada ta the said line of 48.) )r-General of the !anada similar to ivinces of Upper in boundary-line ohn Colbome as sribing the other of Detroit, Lake aond Island, that cts., p. 390.) , dated 6th Sept. )^n -nit i>JJA , ke " provision for ada, * * * * nder the name of 40, a Ormmission anada, TheCom- lommission to Sir ADMISSION OF RUPERT'S LAND AND N.-W. TERRITORY INTO THE DOMINION. 295 (ceserved for the Indians by the proclamation of October, 1763), the Act of 43Qeo. III., cap. 138 (11th August, 1803), was passed. (Ont Docts., pp. 4-5.) As doubts existed as to whether the provisions of 43 Geo. III., cap. 138, extended to the Hudson's Bay Territory, the Act 1 and 2 Geo. lY., cap. 66 (2nd July, 1821), was passed, including the Hudson's Bay Company's lands and territories heretofore granted to the Hudson's Bay Company, and under the 14th section of that Act the rights and privileges of the Hudson's Bay Company are to remain in full force, virtue and effect. (Ont. Docts., pp. 6-7-10.) So that in all these Acts they were making provision for the government, or at least for the judicial control of large territories claimed as belonging to the Crown of Great Britain, and which were not included in the Province of Upper Canada.* The sixth clause of the British North America Act, 1867 (Imperial Act, 30th Yio., cap. 3), is as follows : " 'The parts of the Province of Camtda (as it exists at the passing of this ^ct) which formerly constituted respectively the ''' rovinces of Upper Canada and Lower Canada shall be deemed to bo severe.!, and shall form two separate Provinces. The part which for- merly constituted the Province of Upper Canada shall constitute the Province of Ontario ; and the part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec." (Ont. Docts., p. 11.) And the 146th section of the same Act, under which Rupert's Land and the North- western Territory could be admitted into the Union, is as follows : — " It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, on addresses from the Houses of Parliament of Canada and from the Houses of the respective Legislatures of the Colonies or Provinces of New- foundland, Prince Edward Island and British Columbia, to admit those Colonies or Prov- inces, or any of them, into the Union, and on addresses from the Houses of Parliament of Canada, to admit Rupert's Land and the North- Western Territory, or either of them, into the Union on such terms and conditions, in each case, as are in the addresses expressed, and as the Queen thinks fit to approve, subject to the provisions of this Act ; and the provisionu of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland." (Ont. Docts., p. 404.) On the 17th December, 1876, the Senate and Commons of the Dominion of Canada adopted an address to the Queen, praying Her Majesty to unite Rupert's Land and the North-western Territory with this Dominion, and to grant to the Parliament of Canada authority to legislate for their future welfare and good government. (Orders in Council, Dom. Stats., 1872, t). Ixvi.) In compliance with the terms of the above address, the Rupert's Land Act, 1868, (Imperial Act, 31 and 32 Vic, cap. 105), was passed, and under the second section of that Act the term " Rupert's Land " should include the whole of the lands and terri- tories held, or claimed to be held, by the said Governor and Company, t On the 19th November, 1869, the Hudson's Bay Company executed a deed of sur- render to Her Majesty of Rupert's Land, which included the whole of the lands and ter- ritories h»'ld, or claimed to be held, by the Company, excepting the lands mentioned in the second and fifth paragraphs. Under the second paragraph, the Company might, within twelve months, select a block of land adjoining each of their stations. The schedule of the lands selected is attached to the surrender, and includes about 46,000 acres of land. Under paragraph No. 5, *' the Company may within fifty years after the surrender claim in any township or district within <-he Fertile Belt, in which land is set out for settlement, grants of land not exceefUng one-twentieth part of the land so set out." * [The contention of Ontario is, that the '"Indian territories" (outside the Provincial boundaries) to which the Acts applied were those drained by the waters which fall into the Arctic Ocean.— G. B. L.] + [The enactment is, that " Ftyr the purposes of this Act, the term ' Rupert's Land ' shall include," etc.— (See Book Arb. Docs., p. 405.) The object of the Act was to enable effect to be given to a contemplated arraneement by way of compromise, which was in negotiation between the Dominion and the Uudson'B Bay Comijany.— G. E. L.] ''1 IK, ■I ■■■ I'.'!:. . ■i'-it Ml Mi^^^^Hi '"t 296 STATEMENT OF THE CASE OF THE DOMINION, 1878 (6) " For the purpose of the present agreement, the Fertile Belt is to be bounded as follows: — On the south, by the United States bound:iry; on the west, by the Rocky Mountains ; on the north, by the northern branch of the SaHkatchewan ; on the east, Ijy Lake Winnipeg, the Lake of the Woods, and the waters connecting them." (Order in Oounoil, Stats, of Can., 1872, p. Ixxix.) Such surrender was accepted by Her Majesty by an instrument under her sign manual, and signed on 22nd day of June, 1870. On the 23rd June, 1870, Her Majesty, by an Order in Council, ordered that, aft«r the 15th July, the said North-western Territory in Rupert's Land should be admitted and become part of the Dominion of Canada, on the Dominion paying to the Company £300,000, M'hen Rupert's Land should be transferred to the Dominion of Canada, which transfer has been made and the consideration money paid. (Ont. Docts., pp. 405-6-7-8.) On the very threshold of Confederation, Ontario knew the terms upon which Rupert's Land and the North-western Territory might be admitted into the Union ; and during the negotiations that were pending between the Imperial authorities and the Dominion respecting the surrender by the Hudson's Bay Company if their lands and territories, rights and privileges, the Ontario Government never interfered or claimed that what was about being surrendered to Her Majesty for the purpose of admission into the Dominion had at any time formed a part of the Province of Upper Canada — although Ontario must be assumed to have known that the Hudson's Bay Company was, in 1857, claiming under its Charter that the southern boundary of the Company's territory was the height of land dividing the waters which flow into the Hudson's Bay from those emptying into the St. Lawrence and the Great Lakes, and that the western boundary was the base of the Rooky Mountains. In thus lying by while the Dominion was purchasing this territory, and without forbidding the purchase or claiming any interest whatever in the rights and privileges about being acquired, that Province is now estopped from setting up that its western boundary extends beyond the meridian passing through the point of junction of the Ohio and Mississippi rivers north of the United States and south of the Hudson's Bay Terri- tories.* All the remaining ten-itory was "held, or claimed to be held, by the Governor and Company," and was, as such, paid for by the Dominion.! (firegg v. Wells, 10 A. and E., 90.) The acceptance by the Imperial Government of a surrender of what the Hudson's Bay Company claimed as territory belonging to them, was an admission that no portion of these territories were ever included in the Province of Upper Canada. The British Government being bound by this admission, surely Ontario must be. X In 1871 a Commissioner was appointed by each of the Governments of the Dominion and Province of Ontario for the settlement of the northerly and westerly boundaries of the Province. The instructions given to the Commissioners on behalf of the Dominion were that— " The boundary in question is clearly identical with the limits of the Province of Quebec, according to the 14th Geo. III., oh. 83, known as the ' Quebec Act,' and is * [But see the argument of the Attorney-General before the Arbitrators as to this point, post. — 6. £. L.] + [The territory lying west of the meridian of the junction of the Ohio and Mississippi, and to the south and east of the Height of Land, was never " held or claimed to be held " by the Hudson's Bay Com- pany. And as to the purchase of the remaining territory b^ the Dominion, see the argument of the Attor- ney-General before the Arbitrators, poH. See also the following passage, applicable to thispoint, in the letter of 8th February, 1869, from Sir George Cartier and the Hon. William McDoupall to the Colonial Secretary ; " It will be for Earl Granville to consider whether this Company is entitled to demand any payment whatever for surrendering to the Crown that which already belongs to it. We confess our utter inability, upon any principle of law, or justice, or public policy, with which we are a«iuaintei1, to et^imate the amount which ought to h« paid under such circumstances. The only basis of computation we can discover, applicable to such a case, is the cost of the legal proceedings necessary, if any be necessary, to recover possession. A person has taken possession nf a part of your domain under the pretence that it is included m a deed which you gave him for some adjoining property before you purchased the domain. You want to fet rid of him, but will be compelled to bring an action. He is artful, stubborn, wealthy and influential. [e will be able to worry you with a tedious litigation. How many acres vill you allow him to ' reserve,' and how much will you pay to save yourself the cost and trouble of a law suit ? " (Ante, p. 162.)— G. E. L.] X [But there was no such admission. (See the argument of the Attorney-General before the Arbitrators, po").—G. E. L.] BOUNDARIES CLAIMED BY THE DOMINION, 297 to be bounded as Bt, by the Rocky I ; on the east, by hem." (Order in 1 under her sign rdered that, aft«r lould be admitted g to the Company of Canada, which bs., pp. 405-6-7-8.) lon which Rupert's nion; and during and the Dominion in and territories, ned that what was into the Dominion -although Ontario , in 1857, claiming ory was the height lose emptying into ry was the base of itory, and without hts and privileges p that its western motion of the Ohio iudson's Bay Terri- by the Governor •gg V. Wells, 10 A. hat the Hudson's »n that no portion lada. The British bs of the Dominion perly boundaries of linion were that — lof the Province of ]iebec Act,' and is point, post.— G.E.L.] HBsissippi, and to the le Hudson's Bay Com- fgument of the Attor- lliis point, in the letter Tie Colonial Secretary ; Remand any payment Igs our utter inaoility, liteil, to eirtimate the fition we can discover, necessary, to recover ,Doe that it is included pmain. You want to Vthy and influential, low him to ' reserve,' lie, p. 162.)-G. E. L.] lef ore the Arbitraton, described in the said Act as follows, that is to say : Having sot forth the westerly position of the southern boundary of the Province as extending along the River Ohio ' westward to the banks of the Mississippi ' the description continues from thence {i.e , the junction of the two rivers) ' and northward to the southern boundary qf the territory granted to the Merchants Adventurers of England trading to Hudson's Bay.' " Having determined the urecise longitude, west of Greenwich, of the extreme point cf land making the junction of tho north and east banks respectively of the said river, you will proceed to ascertain and define the corresponding point of longitude or inter- section of the meridian passing through the said junction with the international boundary between Canada and the United States. " Looking, however, to the tracing enclosed, marked A, intending to illustrate these instructions, it is evident that such meridian would intersect the international boundary in Lake Superior. " Presuming this to be the case, you will determine and locate the said meridian, the same being the westerly portion of the boundary in question, at such a point on the northerly shore of the said lake as may be nearest to the said international boundary, and from thence survey a line du*^ south to deep water, making the same upon and across any and all points or islands which may intervene, and 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 Territory before mentioned. This will complete the survey of the westerly boundary line sought to be established. " You will then proceed to trace out, survey and mark, eastwardly, tho aforementioned imUhem boundary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay. " This is well understood to be the height of land dividing the waters which flow into Hudson's Bay from those emptying into the valleys of the Great Lakes, and forming the northern boundary of Ontario ; and the same is to be traced and surveyed, following its various windings till you arrive at the angle therein between the Provinces of Ontario and Quebec, as the latter is at present bounded ; having accomplished which, the same will have been completed." The Privy Council of Ontario on receiving a copy of above instructions advise the Dominion " that the Province of Ontario claims that the boundary line is very different from the one defined by the said instructions, and cannot consent to the prosecution of the Commission for the purpose of marking on the' ground the line so defined, and that irltB Commissioner appointed by the Government of Ontario should be instructed to abstain from taking any further action under his commission. (Ont. Docta, pp. 340-1.) The boundaries that Ontario was willing to accept are set forth in an Order in Council. (Ont. Docts., p. 243.) Until the boundaries could be definitely adjusted, provisional boundaries were agreed upon on the 3rd of June, 1874, as follows: — On the west, the meridian line passing through the most easterly point of Hunter's Island, run south until it meets the boundary line between the United States and Canada, and north until it intersects the fifty-first parallel of latitude ; and the said fifty-first parallel of latitude shall be the conventional boundary of the Province of Ontario on the north. (Ont. Docts., p. 347.) ;.';J..4 I, ?WJ ,1 .!-! I ' " •v ' ■ i ;.'U' ji ! ■ i ■ i;,j , • /. "•. ••■• ':■- -v' ( •IT-- «•• '■■^'^■-S .': ;> ■)W ^' :.>.'..x\.; ;'..,;r 1. ,.■ 1' ill-: ilii.- '■','■> ■ ■■( ■-• « tt,.Hm-'^-' ou ;,* ■ ;t' )o{;fD8 f>;»JU. v' vr? «♦* .V:....qR»t itidi i>} (copied from DOOUMBNTS rURNISHKO BY THE FOREIGN OFFIOE.)t '>^)<^i'(^!H-j;;S M\Xf/Si Jail **" M. de Vaudreuil was Governor of La Nouvelle France in 1 756. ^ H'M «' w/ai Oenoral Wm. Shirley (as Mij. Shfrley) was Oaptain-General and Oommander-in-Chief of the Province of Masuachusetts Bay in 1 749, and in July of that year it was agreed that Oommissaries should be appointed to define, in an amicable spirit, the boundaries between thd colonial possessions of Great Britain and France in North America. There is proof that Mr. Shirley was originally one of these Commissaries, and thai Mr. Mildmay was the other ; for on the 21st September, 1760, a m6moire, signed " W. Shirley " and " W. Mildmay," was presented to the French Commissaries, respecting the boundaries of Nova Scotia or Arcadia, under Art. 12 of the Treaty of Utrecht; and on the 11th of January, 1761, a second memoire on the same subject was signed by "W. Shirley " and '* Wm. Mildmay," as British Oommissaries at Paris ; but it is evident that Mr. Shirley had ceased to bo a Commissary in April, 1766 ; for on the 23rd January, 1763, a further memoire was presented by the British Commissaries to the French Oom- missaries respecting this same boundary ; but instead of its bearing the signatures of Mr Shirley and Mr. Mildmay, it was signed " Mildmay " and " Ruvigny de Cosne." Mr. Shirley had therefore no doubt returned to America, and Mr. Ruvigny de Cosne, who was British Charge d' Affaires at Paris, in the absence of the Earl of Albemarle, had succeeded him as one of the British Commissioners. -■ " ^ >- • ^ " •■• - In May, 1755, the commission was still sitting at Paris. " ' " "—-■r'J -- -v On the 14th of May of that year, a m6moire was delivered by the French Ambassa- dor in London (the Duke do Mirepoix) to the British Minister for Foreign Affairs, in which was laid down the following four points of discussion : . , 1. 2, 3. 4. ■JJ^ > * The islands of St. Lucia, St. .Vincent, Dominica and Tobago. ^11 if 1 .'u^'iK'i iioa-' ^.' With regard to the limits of Canada the memoire ran as follows : — ''■^'^'•'L '>^^ *^ "The Court of France have decisively rajected, and will always reject, the proposition which has been made by England, that the southern bank of the River St. Lawrence and Lakes Ontario and Erie shall serve as boundaries between the two nations. " It is necessary to establish as ai base of negotiation relative to this Article, that the River St. Lawrence is the aentre of Canada. This *Tuth is justified by all titles, by all authors, and by possession. All that France will be able to admit, after having estab- lished this jH-inciple, which cannot be reasonably contradicted, is to examine, in regard to this object, whether the reciprocal convenience of the two nations can exact some parti- cular arrangement thereto, in order to fix invariably the respective boundaries. " The only pretext the English make use of to colour their pretensions is drawn from Article 1 5 of the Treaty of Utrecht ; but m examining attentively all the expressions of that Article, it is evident that nothing is less founded than the inductions which the Court of London actually wish to draw from it. "1. It is only a question in this Article of the person of the savages, and not at all of their country, or pretended territory, since they have no determined territory, and the only knowledge they have of property is the actual use they make of the land they occupy to-day, and which they will cease perhaps to occupy to-morrow. " 2. It would be absurd to pretend that everywhere where a savage, a friend or subject of one of the two Crowns, should make a passing residence, that country that he had dwelt in should belong to the Crown of which he might bo the subject or the friend. I!' ♦ Report, Committee Ho. of Com., Can., 1880, pp. 266-262. + [Thi8 pareatl'etica! statement is from the supplement to the Dominion case. The paper has the aignature 'Edward Hertslet,' (see post, p. 303.)— O. E. L.l (: NEOOTIATIONR BETWEEN ENGLAND AND FRANOK, 1755. 209 r>idi.)t '^tti'^^Hg/.a !ommander-in-Chief ) year it was an^reed rit, the boundaries h Araerioa. imisaarieB, and thai moire, signed "W. aries, respecting the if Utrecht; and on ras signed by "W. )ut it is evident that the 23rd January, to the French Oom- [le signatures of Mr> Y de Cosne." '. Ruvigny de Cosne, Earl of Albemarle, ;he French Ambassa- Foreign Affairs, in •i hUif! ito:3£> )ject, the proposition \er St. Lawrence and itions. this Article, that the by all titles, by all after having estab- can^ine, in regard to m exact some parti- jundaries. isions is drawn from all the expressions iductions which the /ages, and not at all Bd territory, and the of the land they [e, a friend or subject lountry that he had It or the friend. The paper has the " 3. The savages in question are free and independent, and there are none that could be called subjects of one or the other Crown ; lae enunciation of the Treaty of Utrecht in this respect is incorrect, and cannot change the nature of things. It is certain that no Englishman would dare, without running the risk of being massacred, tell the Iroquois that they are subjects of England ; these savage nations govern themselves, and are as much, and more, friends and allies of France than of England ; several French faroiiie» are even affiliated among the Iroquois, and have dwelt with them during the couii^e of the last war, during which the tive nations preserved the most exact neutrality. ,;f- ) "4. Article 16 of the Treaty of Utr«oht oontaina the same stipulations, as muob in favour of the French as in favour of the English, and these stipulations are mutual ; tbQ French could then sustain with a better title than the English pretend about the Iroquois, that the nations Ab^naquises and Souriquoises, otherwise Micmacs, Mal^oites, Cannibas, etc., are subjects of France, and as there are some Souriquois who inhabit the- extremity of the Peninsula of Cote, Cape Fourcher, and Cape Sable, it would follow that the French could pretend to form settlements there, with as much right as the English have formed them at Oswego, or Chouatgen on the shores of Lake Ontario, in 1726 or 1727, and consequently long after the peace of Utrecht ; France has not ceased since that time to complain of that enttirprise, and she relies upon the Fort of Chouagen being n " 6. The Treaty of Utrecht has been ill interpreted in pretending that it would authorize the French and English to go and trade indincriminately amongst all the savage nations, under pretext of subjection, alliance or friendship. This Article, well unr'erstood and well expounded, assures only the liberty of commerce which the savages can make among themselves, or with European nations, and does not at all authorize them to leave the confines of their colonies to go and trade with the savages. "6. Finally, this Article 15 conveys that it shall be settled that the American nations shall be reputed subjects or friends of the two Crowns. This stipulation has not been executed, because, in fact, it is scarcely susceptible of execution, since such a savage nation, which to-day is friendly, to-morrow may become an enemy, and, consequently, the fixation which might have been appointed for it would be continually contradicted by fact " All that has just been exposed proves clearly that in discussing concerning the mle» of the justice and right of Article 15 of the Treaty of Utrecht, it will be easy to destroy the false interpretations that have been given it ; it will not be less easy to demonstrate that the English should not be determined by any motive of interest to put forward the pretensions they have formed ; it is not a question in these vast regions of America, t» dispute about a little more or a little less land. The essential interest is confined to two objects, that of security and that of commerce ; and the Court of France will be always disposed to concert, in these two respects, with that of London, equitable and solid arrangements as well for the present as for the future." ' ;' j,fi tvi: On the 7th of June following, the British Government returned a reply Lo this mimoire, repeating Article by Article, and with reference to the limits of Canada, said : — " It will be difficult to form a precise idea of what is called in the Memorial the centre of Canada, and still less can it be admitted as a base of negotiation that the River St. Lawrence is the centre of that Province ; this is advanced without proof, and it is impossible that the course of a river of that length can form the centre of any country. Besides, Great Britain cannot grant that the country between the northern coast of the Bay of Fundy and the southern bank of the P'ver St Lawrence, which Great Britain has already offered to leave neutral, and not possessed by either of the two nations, in reserve for the borders that arc proposed to be drawn for it, ought to be regarded or has ever been considered as a part of Canada, since the contrary has been demonstrated by authentic proofs. Neither can Great Britain admit that France has right to Lakes Ontario and Erie, and the Niagara River, and to the navigation of these waters exclu- sively, since it is evident, by incontestable facts, that the subjects of Great Britain and of France, as well as the Five Nations Iroquois, have indiscriminately made use of the navigation of these lakes and this river, according as occasions and convenience have m n (■'■ . Ifli llfi- 800 8UPPLKMKNT TO THE CASE OF THK DOMINION, 1878: roquirml ; but as rogarJs a pieoe nituated on the Houth bunk of the Hivor St. Lawrence, vxcluHivo of that already propoued to Ihj left neutral, thu boundariuH of which are in dispute bdtweon tho two nations or their respootieve ooloiiitm, the Court of Great Britain is ready to enter into a disuuHHion in regard to this, and to fix the liniitH of it by an amicable negotiation, but without prejudice, nevertheleau, to tHe rights and possesfiioni of any of these five nations. " With regard to the exposition that is made in the French Memorial, of the IJ^th Article of the Trjaty of Utrecht, the Oourt of Great Britain does not oonceivo that it ia authori^ed either by the words or the intention of that Article. " 1. The Court of Great Britain cannot admit that this Article only has regard to the ^oerson of the savages, and not their country ; the words of that Treaty are clear and precise, viz. : The Five Nations or Cantons Indians are subject to the ruh of Groat Britain, which, by the accepted exposition of all treaties, must have reference to the country as well as to the person of the inhabitants ; France has reco,'^nized this most solemnly ; she has well weighed the importance of that avowal at the time of the signature of this Treaty, and Great Britain can never depart from it ; the countries possessed by these [ndians are very well known, and are not at all as indotorminace as is pretended in the Memorial ; they possess and transfer them, as other proprietors do everywhere else, " 2. Great Britain has nev pretended that the country in which a savage should make a passing residence would belong to the Crown whose subject or friend he might be. " 3. However free and independent the savages in question may be (which is a point which the Court of Great Britain does not at all wish to discuss), they can only be regarded as subjects of Great Britain, and treated as such by Fiunce in particular, since she has solemnly engaged herself by the Treaty of Utrecht, renewed and confirmed in the best form by that of Aix-la-Chapelle, to regard them as such ; the nature of things is not changed by the Treaty of Utrecht. The same people, the same country, exist still ; but the acknowledgment made by France of the subjection of the Iroquois to Great Britain is a perpetual proof of her light in this respect, which can never be disputed with her by France, " i. It is true that the 20th Article of the Treaty of Utrecht contains thn same stipulations in favour of the French as in favour of the English, with regard to such Indian nations as shall be decned, after the conclusion of this Treaty, by Commiasariot, to be subjects of Great Britain or of France ; but as to what is mertioned of the five nations or Cantons I: 'quois, France has distinctly and specifically declared by the said 15th Article that they ar, subjects of Great Britain, ' Magnce Britannia impvrio aubjeotce,' and consequently this is a point to be no more disputed about. " 5. In whatever manner one interprets the Treaty of Utrecht with respect to the trade which will be permitted the English and French to carry on indiscriminately with the savage nations, it is nevertheless very certain that such a general trade is by no means forbidden by this Treaty. It is an ordinary and natural right to transact business with one's own subjects, allies or friends ; but to come in force into the territories belonging to the subjects or allies of another Crown, to build forts there, to de^.rive them of their territories and to appropriate them, is not and will not bo authorized by any pretension, not even by the most uncertain of all, viz., convenience. However, such are the forts of ^''rederick, Niagara, Presqu'isle, Bivi6re-aux-b(Bufs, and all those that have been built on the Oyo and in the adjacent countries. Whatever pretext Fr»n.?e 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 transferred to the English) belong still to the sn ue Indian nations that France has agreed, by the 20th Article of the Treaty of U !cht, not to molest, ' Millo in poaterum imp^dimmto aiU molestia afficiant.' " 6. It has already bi on proved that France hsis, by the express words of the said Treaty, fully and absolutely recognized the Iroquois as subjects of Great Britain. It would not have been as difficult as ia pretended in the Memorial to come to an agreement on the subjects of the other Indians, if, among the many Commissions which have emanated to settle this point, there had been a mutual disposition to come to a conclusion. The acts of these Commissions have sufficiently shown the true reasons which have prevented the NEaOTFATIONS FOR THE CESSION OP CANADA, 1761. 301 iver St. Lawrence, BH of which are in rt of (irnat Britain liiuitH of it by an Xh and poHHeHnions luorial, of the IBth oonceivo that it it )lo only hoB regard iftt Treaty are clear o the ruh of Qroat reference to the cofjnized this moat ime of the signature ntries poaseased by « as is pretended in io everywhere else, lich a savage should ■ friend he might be. be (which is a point ,), they can only be 3 in particular, since d and confirmed in the nature of things J country, exist still ; 9 Iroquois to Great 1 never be disputed contains tho aarae ith regard to such jy, by Commissaries, lertioned of the five ieclared by the said BritannicB impirio >ut. with respect to the idiscriminately with [eral trade is by no to transact business into the territories lere, to deprive them authorized by any However, such are all those that have pretext Fr&^e can |s certainly true that r transferred to the [agreed, by the 20th ,m imp^ditnsnlo a^ ^3 words of the said j,t Britain. It would to an agreement on jrhich have emanated lonclusion. The acts 1 have prevented the execution of the ISth Article of tho Treaty of Utrecht, without recourso to an imaginary supposition, as if tho Treaty was not capable of being executed ; a supposition which it evidently destroyed by the Treai,y itself with regard to the Iro is 304 ARGUMENT OF THE ATTORNEY-GEN. OF ONT. BEFORE THE ARBITRATORS, 1878 : REPOPT OF PROCEEDINGS BEFORE THE ARBITRATORS IN THE MATTER OF THE BOUNDARIES OF THE PROVINCE OF ONTARIO, AT OTTAWA, IsT, 2nd, 3rd AUGUST, 1878.* >U i:;;i.i ^ , ' : ■■•V.lll' . 1 >■ V t.!il' ; - U- i iVi >iiHt ■- .■! <• r u', , The Right Honourable Sir Edward Thornton, \ •''' The Honourable Sir Francis Hincks, and > .V / .,. rpi^g Honourable the Chief Justice of Ontario. ■ -vf. '■ . ■ • . r< ■ Covntel for OiUario : The Hon. Oliver Mowat, A.G., Ont., and Mr. Thomas Hodgins, Q.0, • "■' ■ Countd for the Dominion: . Mr. Hugh MacMahon, Q.C., and Mr. E. C. Monk. Argument of the Attornet-Gbnbral of Ontario. ^>'f ■ •■'ri/!- The Hon. Oliver Mowat, Attorney-General of Ontario, opened the case for Ontario, He said : — I have embodied in the printed " Statement of the Case of the Province of Ontario"! the substance of the principal grounds on which I think that the Province is entitled to the bounds northerly and westerly which we claim. I have also, for facility of reference, had printed in a book, of which the arbitrators have copies, the statutes, documents, and other matter which seemed to bear on the subject, whether favourably or unfavourably to our claim. I do not mean to attempt now an exhaustive statement of .all that is material, but purpose confining myself to stating some grounds which seem to me to be quite sufficient, and more than sufficient, to sustain our claim, although there are others of perhaps not less importance that might be dwelt upon. I do not mean even to answer at present all the points which have been set forth in the case for the Dominion ; some of them I shall refer to, and if any of those not referred to seem to make any impression upon the arbitrators, I shall have an opportunity in luy reply to remark upon them. The 6th section of the British North America Act provides that that part of the Province of Canada " whioh formerly constituted the Province of Upper Canada, shall constitute the Province of Ontario ;" the Province of Canada was by tho Union Act of 1840 constituted of the Provinces of Upper and Lower Canada. The lino of division between these Provinces had been settled in 1791 by an Order in Council, and extended in manner therein described to the "boundary line" of Hudson's Bay. By 'lie same Order in Council, Upper Canada was to include "all the territory to the wost\\ vrd and south- ward of the said line to the utmost extent of the country commonly called or known bv the name of Canada." All of the Province of Canada which lies west of tho line of division belongs to Upper Canada, as all which lies east of the same division line l)elongs to the Province of Quebec. Ontario has tho same limits as Upper Canada had, and the sam' limits as west of the division line the Province of Canada had, and as the Dominion of Canada had before its purchase of the rights of the Hudson's Bay Company. In 1870 the Dominion acquired these rights, as also the " North- Western Territory," in addition to the territory which the Province of Upper Canada and tho Province of Canada liad had. The question for the arbitrators is as to the westerly and northerly bouhdaries of the Province of Ontario, or of the Province of Upper Canada. It will be convenient before entering upon the argument, to point ouc upon the produced map by Mr. Devine, the principal points which come in question in the discus. * Printed by G. BUokett Robinson, Toronto, 1880. See ftlso Report of Committee of tlie House of Com- mon8, Can., 1880, pp. 262-891, 301-O7. ^■■- t [To be found at p. 267, (Mle.-0. E. L.) — — . . - RATORS, 1878 I / V ■* PRELIMINAUY STATEMENT. 305 rORS IN THE E OF ONTARIO, [gins, Q.C. ' v^J,''- no. " ^>^' the case for Ontario. 16 of the Province of that the Province is .ave also, for facility copies, the statutes, vrhether favourably or laustive statement of ounds which seem to ilaim, although there lon. I do not mean ,h iu the case for the referred to seem to nity in my reply to Ihat that part of the I Upper Canada, shall Ly the Union Act of The line of division incil, and extended in By *he same Order |west\v vrd and south- called or known by of the line of division n line lielongs to the la had, and the sam<> 1 as the Dominion of Lnpauy. In 1870 the Uory," in addition to of Canada had had. •ly bouhdaries of the point out upon the lestion in the discus. Le of the House of Com- (ion. 'ifhis map has been prepared to assist the arbitrators in following the arguments addressed to them. It is in the main correct, although I have discovtired two or three unimportant inaccuracies. On this map is marked the line of division between Upper and Lower Canada, which line runs northerly into Lake Temiscaming and thence due north to the boundary line or shore of Hudson's Hay. In regard to that line, I suppose there will be no dispute. The westerly boundary of the Province, according to the present claim of the Dominion, has also been marked upon the map ; it is a line drawn due north from the confluence of the Ohio and the Mississippi and in longitude about 89° 9|'. The provi- Hional line of 1874 is the next on the map westward, but is not of any importance for our present purpose ; it was found necessary, until the right boundary should be decided, that a line should be agreed upon provisionally, to the east of which the Province sho'dd make its grants of land, and to the west of which grants by the Dominion might t'O made. (Bool )f Documents, p. 347.) The next line westwardly is that running to the most north-western angle of the Lake of the Woods, near the Province of Manitoba ; that point is very nearly in the meridian of Turtle Lake, and of Lake Itasca, both of which lakes hav(; been regarded as sources of the Mississippi, and are very nearly in the same longitude. Ontario claims that it is clear that its western boundary line is no farther east than the meridian of the most north-western angle of the Lake of the Woods, and that the only question on the western side of the Province is as to how much (if any) territory we are entitled to west of that, meridian. With regard to the northern boundary, we claim it to be certain that it is not south of the shore of James' Bay, or of the most north-westerly point of the Lake of the Woods; as to the exact extent of the Province to the north of those points there may be more (lifl&culty. The statute of 1774, usually called the "Quebec Act," added a considerable territory to the Province of Quebec, and purported to give as the northern boundary of that Province, the territory granted to the Hudson's Bay Company ; how far that terri- tory extended has never been dellnitely ascertained. We have examined whatever docu- mentary evidence there is which might throw light on this question, and we have also bad a pretty exhaustive examination made of the various maps published before the present century. An analysis of the maps has been printed at p. 135 and on subsequent pages of the Book of Documents ; and the produced map by Mr. Devine shows the principal lines. Th<' most northerly is one which, in 1701, the Hudson's Bay Company unsuccessfully claimed for its southern boundary ; and the next is the line they had asked for without success in the previous year, 1700. All of the other northerly lines marked on this map are at the westerly side placed to the north of the Lake of the Woods ; most of them are several hundred miios to the north of that lake ; while on the east they are south of James' Bay and of the point to which the Royal Commissions bring us there. None of these northerly lines has the authority of a treaty or a statute or an agreement. One line is marked on certain maps as " bounds of Hudson's Bay by the Treaty of Utrecht ; " but that was a mistake of the geographers ; it must be admitted that the bounds were not settled by the Treaty of Utrecht. The claim of Ontario is precisely the same ad some considerable distance north of what the Hudson's Bay Company claim, though not t ny territory west of the westernmost head of the Mississippi River," which is very near the Rocky Mountains, The opinion will be found at page 391 of our Book of Documents. Sir Edwcvrd Thornton — The law officers of the Crown in England strongly recom- mended an appeal to the Privy Council, but that was not done. The writer of this extract seems to have expected that there would be a decision of the Privy Council, and I would like to know why the case was not referred. ...in'v Chief Justice Harrison — It was probably delayed by negotiations. The Attorney-General — There were constant negotiations going on from that time, and the matter was one which, however clear the right might be thought to be, it was con- sidered desirable to settle by compromise. Sir Edward Thornton — But it was not compromised. Tlie Attomey-Oeneral — It was compromised twelve years afterwards. My learned friend, Mr. Hodgins, reminds me that one thing which prevented the reference was that the Government here thought the question ought to be referred by the British Govern- ment — that the Province ought not to have the responsibility of it ; at all events the delay was only twelve yeara from this time — not a great while to be negotiating about a continent of territory. Mr. MacMahon — I can answer further in regard to that. The Province of Canada refused to submit anything but the validity of the Charter of the Hudson's Bay Company to the Council ; they refused '•,0 submit the question of the boundaries. The Attorney-General — The adverse opinions were founded upon the Company's nx parte statements of the facts, and one of the allegations was that the Hudson's Bay Com- pany had been always in possession of the territory. Now, it is n. familiar priaciplo with regard to old statutes or charters, that the interpretation of them .'s governed by the con- temporaneous exposition they received, and by the acts of the parti as under thorn, ilithe fact was, that, from 1670 to the time when these opinions were ca'.led for, there had been an actual possession by the Hudson's Bay Company of the whr-le territory which thny elaimed, there could be little question ot' their right to such terr''jory. It would be absurd to .suppose that, as a matter of law and legal construction, the Company could be deprived of property which they had for nearly two centuries "claimed and exorcised dominion over ■' under their grants, as absolute and undisputed proprietors of the soil. Buc we deny that there was any such claim, dominion or possession, by the Company of the terri- tory now in question, for more than a century after 1670 ; the principal ground upon which the opinions referred to must have proceeded was not in accordance with tho facts. We have in our book the Company's statement. I refer to page 288 : — " Under this grant the Company have always claimed and exercised dominion as absolute proprietors of the soil in the territories understood to be embraced by the terms of the grant, and which are more particularly defined in the accompanying map ; and they have also claimed and enjoyed the exclusive right of trading in those territories," The map referred to claims up to the height of land. No lawyer, upon that statement, could come to any other con- clusion than did the law officers. In some of the earlier as well as the more recent of the legal opinions, expre.ss reference was made to the importance of knowing ho>'.' much of this territory had been in possession of the Hudson's Bay Company, and it was stated in them that an old charter of this kind, e.specially an ambiguous one, should not be interpreted without reference to that fact. lUTORH, 1«78; 'L' KOUMER CONTENTIONS OF THK GOVERNMENT OF CANADA. 307 No adverse legal opinion has been given on the facts that are now before the arbitra- tors. On the other Iiand, we have the opinion of a very distinguished judge, who waa aware of all the material facts in favour of the Company's contention — although not of all the facts in favour of the Province, — and who gave that opinion after having been exclu- sively occupied several months with the subject. However, the arbitrators are not bound by that opinion. They will give whatever weight they may consider due to it ; but they will consider for themselves whether the opinion was right or wrong. On entering now upon some discussion of the evidence, I submit that, inasmuch as thfl Province of Ontario is now claiming what had always been claimed before by the Province of Canada, and by the Dominion of Canada likewise, I am entitled to ask the arbitrators to take that claim to be prima facie correct and well founded. The Dominion is one of the two parties to this controversy, and we put in evidence the otticial statements of the representatives of the Dominion repeatedly made ; '• t show what position they took iu regard to this question, what assertions they made, ami what they claimed, up to the very last moment before becoming purchasers of the Hudson's Bay Company's rights I do not say this is conclusive, that it estops the Dominion from saying that their conten- tion had been wrong, false or mistaken, but I do say that their demands before buying out the Company throw the burden on the Dominion of showing that in all those antecedent discussions and statements they had been wrong. I start with the strongest presumption in my favour when I show that before they made that purchase, the Dominion of Canada had taken the position which I now take, had made the assertions which I now make, had used many of the arguments which I now use, and had considered that those arguments were incapable of being answered. To take a single example, what did the Dominion Ministers say in their letter to the Colonial Minister on the 16th January, 1869 1 (Book of Documents, p. 324.) They expressly claimed " that the boundaries of Upper Canada on the north and west " included " all the territory to the westward and southward of the boundary line of Hudson's Bay to the utmost extent of the country commonly called or known by the name of Canada ;" and that " Whatever doubt may exist as to the utmost extent of old or French Canada, no impartial investigator of the evidence in the case can doubt that it extended to and included the country between the Lake of the Woods and Red River." But I shall show that, if I had no presumption in my favour, the conclusions which I desire the arbitrators to arrive at are the conclusions which they cannot but arrive at in view of all the facts. In 1763 France ceded to England "Canada with all its dependencies,"' reserving only sucli part of what had been known as Canada as lay west of the Mississippi. The troaty will be found at page 18 of our Book of Documents. The watershed between the Missouri and the Mississippi rivers had been the boundary between Canada and Louisiana when both were owned by France, and by the treaty of 1763 the River Mississippi was agreed to as the future boundary between the English and French possessions in that quarter ; the language of the treaty being, '* that the confines between [France and England] in that part of the world shall be fixed irrevocably by a line drawn along the middle of the River Mississippi from its source [etc.], to the sea." Very soon after this treaty, via., on 7th October, 1763, the Province of Quebec was erected by Royal Proclamation, but the Province as then constituted took in very little of what was afterwards Upper Canada ^ and what is now Ontario; the most north-westerly point was Lake Nipissing; the whole of the territory adjacent to the great lakes was excluded. In 1774 the boundaries of Quebec were enlarged by the Quebec Act. That Act recited that "by the arrangements . made by the said Royal Proclamation a very large extent of territory, within which were several colonies and settlements of subjects of France, who claimed to remain therein under the faith of the said treaty, was left without any provision being made for the administration of civil government therein." The Act therefore provided that " all the territories, islands and couj^t. '-ms in North America belonging to the Crown of Great Britain, bounded on the south by a line " therein described, from the Bay of Chaleurs to "the Rivor Ohio, and along the bank of the said river, westward, to the banks of the .Mississippi, an'^ northward to the southern boundary of the ter-itory granted to the Merchants Adventurers of England trading into Hudson's Bay," ei..., " be, and they are 'r%l m ■^i m 308 ARGUMENT OF THE ATTORNBY-OEN. OF ONT. BEFORE THE ARBITRATORS, 1878 : htreby, during His Majesty's pleasure, annexed to and made part and parcel of the Prov- ime of Quebec as created and established by the said Royal Proclamation jf the 7th October, 1763." What territory was embraced in this description ? The Dominion cou- tends now that the expression " northward to the southern boundary " of the Hudson's Bay Territory, meant a line drawn from the confluence of the two rivers due north, which would be in longitude about 89° 9^ west; that the old Province of Quebec contained no territory west of that line; and that the Province of Upper Canada or the Province of Canada contained none. The only pretence for this argument is the word " northward " in this statute. Reasons as strong and indisputable as possible in favour of a more westei'ly boundary are afforded by the other language of the statute; by the surrounding circumstances ; and by subsequent transactions. Look first at the statute itself. It will be found at page 3 of the Book of Docuii its. The enactment is as follows : — " That all the territories, islands and countries in ^orth America, belonging to the Crown of Great Britain, bounded on the south by a line from the Bay of Ohaleurs,"etc., "until it strike the River Ohio, and along the bank of the said river, westward, to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the Merchants Adventurers of England, trading to Hudson's Bay; and also all such territories, islands and countries, which have, since the 10th day of February, 1763, been made part of the Government of Newfoundland —be, and they are hereby, during His Majesty's pleasu?*'?, annexed to, and made part and parcel of the Prov- ince of Quebec as czeated and established by the said Royal Proclamation of tht 7th day of October, 1763." Now, in the first place, the word " northward " does not necessarily mean due north, In descriptions in the ordinary deeds f.nd documents with which we are familiar, the word " northward " is constantly used as meaning any northerly direction — either due north, or towards the north-west or the north-east. Then in another part of the descrip- tion a corresponding word is used in the sense in which I say this word "northward" should be used, for after the description brings the lino to the River Ohio, it goes on thus ; " along the river weahoard to the banks of the Mississippi." Here the word "westward" is used, not in the sense of due west, but of a line following the sinuosities of the River Ohio. Further, we have in the same description the expression "directly west." We have thus a word corresponding to "northward" — namely, "westward" — meaning not due west, but in a westerly direction ; and we have the words " due west " and " right line" when Parlit. '^ent meant due west and in a straight line. These considerations remove any presumption that Parliament when saying northward, must necessarily be taken to have meant due north. All the territories, islands an« countries in North America belonging to the Crown of Great Britain, which was assigned in 1774 to the Province of Quebec, are bounded on the south by the line described, to the banks of the Mississippi ; and what we say is that " northwards " meant the whole territory north- ward from the south lino so described. The south line is given, and the statute describes what territory that south line is intended to include — all the territories belonging to Great Britain norshward to the Hudson's Bay Company's territory. The surrounding facts bearing on the question place the intention beyond doubt. First, observe that the recital declares the object of the Act to be, to give to the Province more extensive boundaries than it had by the Proclamation : " Whereas by the arrange- ments made by the said Royal Proclamation, a very large extent of territory, within which were seviaal colonies and settlements of the subjects of France who claiined to remain therein under the faith of the said treaty, was left without any provision being made for the administration of civil government therein." Where were these colonies and settlements 1 There is no room for question that if you take the due north line as the westerly boundary, you do not include in the Province many of these French colonies and S'ttlementfi. A large number of them, containing a large population, are given in Mr. Mill's book ; and by looking at the produced map by Mr. Devine, the Arbitrators will see the number of forts which, with the populations in their neighbourhood, would be excluded. It is thus an historical fact, utterly beyond controversy, that a line due north from the confluence of the Ohio and Mississippi, would leave between that line and the Mississippi a large number of colonies and settlements for which it was intended by the ITRAT0B8, 1878 : aXHi .iUl >TA.iJ'r)i' HI8TOHY OF THE QUKHE(! UILL, 1774. . tLf fl^-^fV 809 I parcel of the Prov- imation jf the 7th The Dominion cou- " of the Hudson's era due north, which Quebec contained no or the Province of word " northward " ti favour of a more by the surrounding Book of Docui. its. i countries in North ith by a line from the ank of the said river, uthern boundary of ingto Hudson's Bay; ice the 10th day of d — be, and they are ,d parcel of the Prov- lation of tht 7 th day irily mean due north, we are familiar, the lirection — either due r part of the descrip- 1 word " northward " Ohio, it goes on thus : he word "westward " losities of the River directly west." We yard" — meaning not e west" and "right These considerations must necessarily be countries in North :ned in 1774 to the to the banks of the hole territory north- the statute describes es belonging to Great ition beyond doubt. 1 give to the Province [jreas by the arrange- Jof territory, within Ince who claiiiied to jiy provision being Ire these colonies and l« north line as the I French colonies and n, are given in Mr. I Arbitrators will see 1, would be excluded. [due north from the I and the Mississippi intended by the statute to provide civil government. Assume that the word "northward" is ambiguous, aa certainly it does not necessarily mean due north, we remove all doubt by showing from the statute what the intention was, and by showing that that intention would not l»e (tarried out by a due north line. Further, if I had not the recital in the statute ; if I did not know from history that there were colonies and scotlements there, which the recital shows that it was intended to include ; if all I knew was that we had this ambiguous word, and that the British pos- sessions at the time of the passing of the Act extended along the banks of the Mis- sissippi to its source, that fact would afford sufficient ground for presuming that the word " northward " was intended lo include whatever British posspssions there were there. " In the interpretation of staiutoB, che interpreter must, in order to understand the subject matter, and the scope and object of the enactment, call to his aid all those external iiad historical facts which are necessary for the purpose." (Maxwell on Statutes, pp. 20, ll.) It is presumed that the circumstances which led to the Act, the Bill introduced, :md the proceedings of Parliament thereon, can be looked at for the purpose of the present controversy, as the discussions on the negotiations for a treaty are looked at to remove p.ny doubt to which the language of the treaty might give rise. The proceedings in Par- liament are printed at page 299 of the Book of Documents ; and the debate on the Bill shows that, as a matter of fact, the intention of the measure was understood on both sides of the House to be that the Mississippi, and no due north line, should be the western boundary. The Bill originated in the Lords, and the Bill, as it came down from that House, was clear as to the Mississippi being the western boundary. The Bill described the Province as " all the territories, etc., heretofore forming a part of the territory of ('anada in North America, extending southward to the banks of the River Ohio, westward to the banks of the Mississippi, and northward to the southern boundary of the territory )j;ranted to the " Hudson's Bay Company. (Page 302.) Under that description the present question would not be arguable. There is no reference there to a due north line from the confluence of the Ohio and Mississippi ; and it will not be argued that any terri- tory there belonging to Great Britain was to be left without any government or without any provision made by the statute for its government. The description was altered in the Commons. Why was it altered t Was it in order that the banks of the Mississippi should not be the western boundary ? By no means ; no member objected to that boundary. It appears beyond question from the debate, that all parties, those in favour of and those opposed to the Bill, concurred in regarding the west- v^rn boundary as being properly the Mississippi River to its source (that being, as I have said, the boundary also between the possessions of France and England), and that the only reason for the change was the desire of Mr. Burke — who was at that time agent for the Province of New York — to settle the boundary between the Province of Quebec and the Province of New York. He thought that the Province of New York might suffer if the Crown was left to settle its boundaries, and he therefore wanted the statute to settle them ; but no proposal was made by him, or by anybody else, that the territory of the Province of Quebec should be less extensive towards the west. We have Mr. Burke's letter, written after the Act had passed, and in which he gives an account to his coustitu- snts of the Province of New York of what he had done for them. He points out what was wrong in the Bill as first introduced — namely, the difficulty as between the French Province of Quebec and the English Province of New York — in a region of country far away from the Mississippi ; and he tells what he did for the purpose of removing that difficulty. His letter is dated 2nd August, 1774, and is printed at page 384 of the Book of Documents. He told his constituents that he thought they " might be very much affected by " the clause as it stood in the Bill as it passed the Lords ; and explained " the conduct which (he) held in consequence of that view of (their) interests." He informed his clients that " the predominant and declared opinion " was, that " any growth of the [English] colonies which might make them grow out of the authority of this kingdom, ought to be accounted rather a morbid fulness than a sound and proper habit ; " that the prevailing habit was to restrain " the colonies from spreading into the back country ; " and " that the lines of the plan of policy just mentioned were very dis- I I: 310 ARGUMENT OF THE ATTORNEY-GKN. OF ONT. BEFORE THE ARBITRATORS, 1878 : I Hi, '!'> ?i;' IJ! tiuguidhable in the Bill as it came down to " the House of Commons, and that he had in consequence procured the alterations which had been made in the House of Commons. That " this was not (as it might be between two ancient British colonies) a mere question of geographical distinction, or of economical 'i'stribution, where the inhabitants on the one side of the line and the other lived undei the same law and enjoyed the same privileges of Englishmen. But this was a boundary uihiriminating different principles of jurisdiction and legislation ; whore, in one part, the subject lived under law, and in the other under prerogative." In the debate the greh , te* k ihis territory was objected to by Mr. Townsend, who said that the limits tht l.v a;;;v *ned to Canada, and ata^ed in the Bill to have been part of it, were greater than K^ji.v ad Prance had ever given to Canada. He was answered by Lord N orth as foii .- - " The first thing objected to oy the urable gentleman is the very great extent of territory given to the Province. Why, he isks, is it so extensive? There are added undoubtedly to it two countries which were not in the original limits of Canada as settled in the Proclamation of 1763 — one the Labrador coast, the other the country westward of (to ?) the Ohio and Mississippi, and a few scattered posts to the west. Sir, the addition of the Labrador coas", hiP been made in consequence of information received from Ihose best acquainted vrith ^ Anada and the fishery upon that coast, who deem it absolutely necessary for the prescrv <.\tion of that fishery that the Labrador coast should no longer be considered as part of the Government of Newfoundland, but be annexed to that country, With respect to the other additions, these questions very fairly occur. It is Ayell known that settlers are in the habit of going to the interior parts from time to time. Now, howevei' undesirable, it is open to Parliament to consider whether it is fit there should be no government in the country, or, on the contrary, separate and distinct governments, or whether the scattered pr ts should be annexed to Canada. The House of Loi-ds have thought proper to annex .«iem to Canada ; but when we consider that there must be some government, and that it ij the desire of all those who trade from Canada to these coun- tries that there should be some government, my opinion is that, if the gentlemen will weigh the inconvenience of separate governments, they will think the least inconvenient method is to annex those posts, though few in population, great in extent of territory, rather than to leave them without government at all, or make them separate ones. Sir, the annexation likewise is the result of the desire of the Canadians, and of those who trade to those settlements, who think they cannot trade with safety as long as they remain separate." Attorney- General Tharlow said — "The honourable gentlemen are mistaken if they suppose that the bounds described embrace in point of fact any English settlement. I know of no English settlement ombracod by it. I have heard a great deal of the con)- raencement of English settlements ; but as far as I have read they all lie upon the otlier side of the Ohio. I know at the same time that there have been, for nearly a century past, settlements in different parts of al' \m tract, especially in the southern parts of it and in the eastern (? western) bounded by the Ohio and Mississippi, but with regard to that part there have been different tracts of French settlements established. As far as they are inhabited by any but Indians, I take those settlements to have been altogether French ; so that the objection certainly wants foundation." Solicitor-General Wedderburn said — " It is one object of this measur>? tliat these per- sons (the English) should not settle in Canada." Mr. Burke said — " In the first place, when I heard that this Bill was to be brought in on the principle that Parliament was to draw a line of circumvallation about our colonies, and to establish a siege of arbitrary power, by bringing round about Canada .the control of other people different in manners, language and laws from those of the inhabitants of this colony, I thought it of the highest importance ihat we should endeavour to make this boundary as clear as possible. . . . The noble lord showed me the amendment, which by no means relieved my apprehensions. The reason why I feel so anxious is, that the line proposed is not a geographical distinction merely ; it is not a line between New York and some other English settlement ; it is not a questidn whether you shall receive English law and English government upon the side of New York, or whether you shall [TRATORS, 1878; 7»rf.i/,8 of pies of jurisdiction I in the other under by Mr. Townsend, 3 Bill to have been > Canada. He was very great extent of i There are added of Canada as settled country westward of t. Sir, the addition eceived from those ) deem it absolutely should no longer be ted to that country. '. It is \yell known me to time. Now, is fit there should be net governments, or ouse of Lords have t there must be some nada to these coun- the gentlemen will least inconvenient extent of territory, separate ones. Sir, and of those who long as they remain te mistaken if they rlish settlement. 1 it deal of the com- 11 lie upon the otlier >r nearly a century )uthem parts of it but with regard to Llished. As far as jve been altogether surft that these ])pr- pastobe brought in I about our colonies, Canada .the control the inhabitants of kavour to make this |e the amendment, so anxious is, that line between New you shall receive irhether you shall receive a more advantageous government upon* the side of Connecticut, or whether you are restrained upon the side of Now Jersey. In all these you will find English laws, English customs, English juries, and English assemblies wherever you go. But this is a line which is to separate a man from the rights of an Englishman. First, the clause pro- vides nothing at all for the territorial jurisdiction of the Province. The Crown has the power of carrying the greatest portion of the actually settled portion of the Province of New York into Canada .... The Bill turns freedom itself into slavery. These are the reasons that compel me not to acquiesce by any means either in the proposition originally in the Bill or in the amendment." Lord Cavendish testifies in so many words that " the difference was whether the tract of country not inhabited should belong to New York or Quebec." The change made was by substituting a long clause drawn by Mr, Burke for the short descript' of the southern boundary which the Bill had contained. The following words of tL. BiJ *rom the Lords, " extending southward to the banks of the River Ohio, and westweid the banks of the Mississippi," were cancelled, and for this description the on- subst'tiited gave to the Province " all the territories, etc., in North America belonging to the Crown of Ureat Britain bounded on the south by the line [therein described] to the banks of the Mississippi," — leaving untouched the remainder of the original description, whi- was and is as follows: — "and northward to the southern boundary of the territorv granted to" tlin Hudson's Bay Company, which woid " northward " clearly had not ii he Bill meant a due north limitary line on the west (to its point of contact with the t^.ritory of the Hudson's Bay Company), but had meant northward from the whole described boundary line to the whole southerly boundary of the Hudson's Bay Company ; and such southern lioundaiy ihe Bill had constituted the northern boundary of the newly-created Province. It is thus perfectly clear that the western boundary was, as a matter of fact, intended to l)e the line of the Mississippi to its source ; that as to this there was no difference of opinion. Then let us look at the subsequent transactions. I h ve referred to the commis- sions issued by the Crown immediately after the passing of the Act, and which constitute an authoritative contemporaneous exposition of what the statute meant. In the first connnission issued to the Governor-General of Canada after the passing of the Act, the boundaries of the new Province were described. The commission was to Sir Guy Carleton, and it described the line word for word as the Act had described it, to the confiuence of the Ohio and Mississippi, and northward as in the Act, except that after the word north- ward the commission had these words, which are not in the Act, " along the eastern baitk of the said river" (Mississippi) to (as in the Act) the southern boundary of the territory granted to the Hudson's Bay Company. Thus we have a royal commission issued shortly after the Act, defining the Province as it was the royal will that it should be bounded, and expressly declaring that the line should be along the eastern bank of the Mississippi ; such commission having been prepared and issued on the advice of the very Ministers who were responsible for the statute and personally knew what it meant. That fact would possess great force, no matter who the Ministers were or who were their law advisers, and at this date must be held by any tribunal to free the question from the possibility of a doubt, on two grounds. First, because the commissien is, as I have said, a conclusive lontemporanyous exposition of what the statute meant ; and, secondly, because the Crown had a right to add to the territory of the Province. If the ^Latute did not give the ter- ritory to the banks of the Mississippi, the Crown had, by virtue of the royal prerogative, a right to add to the limits of the Province ; and the commission in which territory up to and along the eastern bank of the Mississippi was given to the Pro 'nee had the effect of gi\'ing to it that boundary, supposing that the statute had not given it. (Jhief Justice Harrison — And providing the Crown had not given the territory to the Hudson's Bay Company already. The Attorney -General — No ; because the Crown had the right to place the territory in the Province, though it could be made to appear that the territory in some sense belonged to the Hudson's Bay Company ; they were only private per oons. If the Crown had chosen to put the whole of the Hudson's Bay Territory into the Province, the Crown hal a right to do so. The present is not a question of property, but of government. ■■,v\ % % ■'' -"'"TT IM wm ■/■^. .^13 .112 AHGUMKNT or THE ATrOttNEY-QKN. OK ONT. HKFOKE THK AUBITRATOHfl, 187H : fc '$ Chief Jitatict Harrison — That of oourso bringH up the old queHtion as to what right bho Hudson'H Bay Company did acquire. Thp. AUorney-Oeneral ~l mean that the HudHon'u Bay Company might have the foo, just ft8 a privcto individual might have the fee iu any portion of the territory of the Province ; the Crown would not be intertVring with their property by placing it undor ix certain government. That is all I am cuncomed about now. What I want to know Ih, how far our Province extends, and what territories are included under the government of the Province ; the ownership of the soil may be a distinct question. It is of some importance to know that the Law Ollicors of 1774 were men of groat eminence. Lord Camden was the Lord Chancellor ; Mr. Thurlow was the Attornoy- General, and he afterwards became Lord Chancellor ; tho Solicitor Cunenil was Mr. Wedderburn, and he also afterwards became Lord Chancellor. The Ministry had the highcH*. legal assistance, and their acts on which I rely are of the highest value. They more certainly show tho intention than a mere exposition by a court, however able, whose members know nothing personally as to why an Act had been passed or what was meant by it ; and a contemporaneous exposition by such a court would not bo meddled with fifty years afterwards, not to speak of a hundred years afterwards. The second commission to a Governor-General, after the passing of the Act, wan to Sir Frederick Ualdimand, and it defined the Province in the same way as the commiHHion to Sir Guy Carleton had done. I have said that tho Crown had a right to include additional territory beyond tliat given by statute if tho Crown thought proper. An illustration of this prerogative in afforded by this Act of 1774, which provides for additions to the Province of Quebec bm theretofore given by the Proclamation. The Act provides that these additions, which Parliament itself was making, were to continue during His Majesty's pleasure only ; although Parliament was making an addition, the prerogative in regard to even that ter- ritory was not interfered with ; and a fortiori the prerogative right of giving still further territory to the Province was not intended to have been interfered with by the Act. Ah the statute provided that the additions thereby specified were to be during His MajeHty'H pleasure, if His Majesty's pleasure should interfere with that provision being carried out, it would so far be in effect a repeal of the Act, and would be a stronger exercise of the royal prerogative than a further addition to the territory provided by the statute would be. The Constitutional Act of 1791 implies the same right of the Crown to exercise the royal prerogative in the arrangement of territorial limits. That Act was passed in con- templation of the division of the Province of Canada into the two Provinces of Upper and Lower Canada, and it made provision for the government of each of those Provinces. But the Act did not itself make the division ; it provided that when the division was made, the government should be as the Act describes. This is the enactment : "Hia Majesty has been pletuied to signify, by his message to both Houses of Parliament, hiH royal intention to divide the Province of Quebec into two separate Provinces," etc. It was to be done, if done at all, by the royal prerogative. His Majesty might divide the Province into two in any way he chose ; and all that Parliament did by the Act of 1791 was to provide that, in case of such a division by the Crown, each of the two sections should be subject to the government which the statute provided for it. Another illustration of such an exercise of the prerogative is in the proclamation of 1763, whereby the Crown created four new Provinces ; Prince Edward Island, or St. John's Island, as it was sometimes called in those days, with the lesser islands, were added to Nova Scotia by the same prerogative. Mr. Burke's letter to his constituents (printed in the Book of Documents) contains a reference to this matter— the paragraph is towards the foot of page 385. He says ; "My next object of inquiry, therefore, was upon what principles the Board of Trade would, in the future discussions which must inevitably and speedily arise, determine what be- longed to you and what to Canada. 1 was told that the settled uniform practice of the Board of Trade was this : that in questions of boundary, where the jurisdiction and soil in both the litigating Provinces belonged to the Crown, there was no rule but the King's will, and that he might allot as he pleased, to the one or the other. They said also lATOHvS, IH7S .fiVij^ KKKKirr OK TIIK THKATY OF 17b3. :U3 a» to what right might havu the p territory of the )laoii>K it undor a want to know in, • the governiiu'iit rere men of great as the Attorimy- General was Mr. Ministry had the leat value. They wevor able, whose r what was meant bo meddled with if the Act, wiirt to aa the commiHwion •itory beyond that ihia prerogative [» ance of Quebec au le additions, which y's pleasure only ; ■d to even that ter- giving still further ih by the Act. Ah ring His Majesty's jion being carried ronger exercise of led by the statute Iwn to exercise the Iwas passed in con- Inces of Upper and ' those Provinoes. the division was [enactment : "His if Parliament, his povinces," etc. It 1 might divide the |y the Act of 1791 the two sections Le proclamation of ^rd Island, or St. Bser islands, were cumonts) contains ^ 386. He says ; Id of Trade would, lermine what he- lm practice of the Tisdiction and soil [le but the King's They said also that under these cirouinstaneeH, even when) the King had actually adjudged a territory to one Province, he might afterwardH change the boundary ; or, if he thought tit, oroct the parts into Heparate and n(!\v govitrnments at his discretion. They alleged the example of Carolina: tirst one Province; then divided into two separate governments, and which afterwards had a third, that of Georgia, taken from the southern division of it. They urged, besides, the example of the neutral and conquered islands. These, after the Peace of Paris, were placed under one government. Since then they wem totally separated, and had distinct governments and assemblies. Although I had the greatest reason to question the soundness of some of these principles, at least in the extent in which they were laid down, and whether the precedents alleged did fully justify them in that latitude, I certainly had no cause to doubt but that the matter would always be ili'terrainod upon these maxims at the Board by which they were adopted." Mr. Burke ijid uot approve of the extensive clkinis of the Crown in the matter of prerogative, as maintained by the Board of Trade ; he thought the doctrine was carried too far ; still, he admitted that it was the uniform settled practice of tht; distinguished persons who constituted the Board of Trade to act on that principle. I find nothing aginnst that view ; there seems to be no doubt that the Crown had the legal power stated, and that, it' the Quebec Act did not give to the Province of Quebec as large a territory as the com- nuHsions of the Governors afterwards provided for, these commissions were sufficient to jjive the additional territory to the Province. By the Treaty of 1783 (printed at page 19 of the Book of Documents) it was agreed Ijetween His Majesty and the Uniteil States of America that the boundary of the United States should be a line, therein particularly described, from the north-west angle of Nova Scotia, through Lakes Ontario, Erie, Huron, Superior, Long Lake, etc., to the Lake of the Woods, '• thence through tlie said Lake (of the VVoods) to the most north-western point thereof, and from thence on a due west course to the River Mississippi," etc. The effect of this was to transfer a further portion of what was formerly Canada, from Great Britain to the United States. It is in this Treaty that we have the tirst description referring to the Lake of the Woods. It is material to observe the language of the com- missions to the Governors-General after this Treaty. The commission to Sir Guy Carleton three years afterwards, in giving the boundaries of the Province, followed this description of the Treaty, and assigned as the southerly boundary of the Province a line " to the said Lake of the Woods, thence through the said lake to the most north-western point tiiereof, and from thence on a due west course to the River Mississippi, and northward to the southern boundary of the territory granted to the" Hudson's Bay Company. This was the first commission issued after the Trtiaty, and will be found at page 49 of the Book of Documents. It is to be observed that a due west line produced from the most north-western point of the Lake of tho Woods would not strike what is now known as the Mississippi ; and as we find that to bo so, what is to be done ? Various views have been suggested. One is that the line should go on until it reaches the tirst tributary of the Mississippi. Chief Justice flnrritton — What was the Mississippi as then understood 1 That is the tirst inquiry. The Attomtiy-Gemral — I have had that marked on the map. Mr. Dawson, the member for Algoma, has furnished me with an elaborate paper shewing what the Missis- sippi was as then understood. (Ont. Documents, 273-8.) On this part of the case, I rely on the arguments of Mr. Dawson, and of Mr. Mills in his book at page 67, without repeating them. ^ x wiim Chief Justice ffarrisoit — They both treat it with great ability. The A tt(»'nei/-GeTieral— The matter is also discussed very ably in a paper by *''e Hon. Mr. Cauchon, Commissioner of Crown Lands, which has been printed at page 243 of the Book of Documents. If the Arbitrators fail to be satisfied with the reasoning of all these gentlemen, where is the line to go from that point 1 What alternative is there 1 When the difficulty on this point occurred between England and the United States, they agre/'d that the line should be drawn due north or south, as the case might be, to the line • 49*. Chis was by the Treaty of 1818, which will be found on page 21 of the Book of Documents. I .shall advert to this point again. '"1 VlK*^ ::i *f MI 4 AIUIKMKNT i)V THK ATTOKNKV-OKN. OK ONT. HF.KORK THK AHMITUATOHH, 1M78 : I have referred to the C/'onntitutional Act of 1791, and have road tlio recital in tliat Act, to the effect that HiH MajeHty had been pleaoed to signify liiH intcMitioii to ilivido the Province of Qiiobec. A paper waH proHented to Pai liatneut bofore the paiiHing of the Act, which doHcriberl the line proposed to ho drawn to di\ ide the Province. (Docts., p. 411.) It traced the line of divinion into Luke TenuHcaniing, and thence "by a line drawn due north until it strikoH the boundary line of HudHon'.s Bay, including all tho territory to the wentward and Houthward of tlie naid lino, to tho utniont extent of th(i country commonly called or known by the name of Canada." That was tho ileacription of Upper (Janada as given in this paper, laid before Parliament when )»roviding for the government of each of the two Rections, and afterwards adopted by an Order in ('ouucil passed for the purpose of Riving effect to the Act. In August, 1 791, tho Order in Council was passed, and it recited among other things that this paper had been presented to Par- liament previous to the passing of the Act. It was therefore with the knowledge and concurrence of Parliament that th- Crown adopted the lino of division which I have Npoken of, and gave to Upper Canada all of oid Canada which was to the westward and southward of the line or lines mentioned in the Order. On 18th November of tho same year. General Alured Clarke, Lieutenant-Governor and Commander-in-Chief of the Pro- vince of Quebec, issued a Proclamation in His Majesty's name, in pursuance of his instructions, declaring when tho division should take effect ; the Act having provided that the division should take effect upon a Royal Proclamation being issued, setting forth a day for that purpose. December 26th, 1791, was the date named in the Proclunuition. The description of the Province is given in the recital : " Whereas we have thought fit, by and with the advice of our Privy Council, by our Order in Council dated in tho month of August last, to order that our Province of Quebec should be divided into two distinct Provinces, to be called the Province of Upper Canada and the Province of Lower Canada, by separating the said two Provinces according to the following line of division, viz.: — 'To commence at a stone boundary on the north bank of the Lake St. Francis, at the Cove west of Pointe au Bodet, in the limi\, between the Township of Lancaster and the Seigneurie of New Longueuil, running along the said limit in the direction of north thirty-four degrees west to the westernmost angle of the said Seigneurie of New Longueuil ; thence along the north-western boundai'y of the Seigneurie of Vaudreuii, running north twenty-five degrees east until it strikes the Ottawas River, to ascend the said river into tho Lake Tomiscanning, and from the head of the said lake by a line drawn due north until it strikes the boundary line of Hudson's Bay, including all the territory to the westward and southward of the said line to thi> utmost extent of the country commonly called or known by the name of Canada.' " What "territory westward and southward" of the described linob was " commonly called or known by the name of Canada?" I have collected in the Book of Documents a vast amount of evidence on that point, which I will not trouble the Arbi rators with at present. There is no doubt that Canada included the whole of the ter "itory now claimed by Ontario. If I find that my friends dispute that the name had this extensive signification, I shall give references to all sorts of documents which shew t'.iat Canada was as extensive as I state it to have been. Sir Edward Thornton — Are you able to shew any acts of jurisdiction exercised by Canada in the disputed territory'? T/m Attorney -General^Yes, I shall come to that point directly, und shall shew con- tinued and repeated icts of jurisdiction by the Province in the territory west of the line that the Dominion now contends for. Before the Proclamation of General Clarke, the commission to Lord Dorchester, who was to be Governor-General, had been issued. It bears date 12th September, 1791, and recited the commission of April 22nd, 1786, to the same Governor-General (as Sir (tuv Carleton), and the Order in Council of August, 1791, dividing "the said Province of Quebec" into two separate Provinces, by a line therein specified : "the Province of Upper Canada to comprehend all such lands, territories and islands lying to the westward of the ■said line of division as were part of our said Province of Quebec." This form of expres- sion shews that Quebec was supposed and intended to include all the territory belonging to England, and formerly known as Canada, for it is impossible to suppose that there uATOttS, l«7b : tlm rooital In that utcntioii to ilivido thn paHHiiig of thi' vinco. fDoccM., j). thonco "uy » ''"•' , inclmUuR all tin; llORt uxtt'iit of th(^ 'as tho dosoription II providing for the in Order in (!ouncil ho Order in Council n presented to Par- the knowledge and ision which T havR o the westward and vember of the same n-Chief of the Pro- n pursuance of his ct having provided issued, setting forth m the Prochimation. rivy Council, by our p Province of Quebec ice of Upper Canada ovinces according to indary on the north lin the limu between I, running along the westernmost angle of em boundai'y of the until it strikes tho ;, and from the head iary line of Hudson's the said line to thi> ,e of Canada.' " iOb was " commonly Book of Documents [he Arbi rators with if the territory now e had thi 3 extensive shew t'.iat Canada Idic'.'ion exercised by I '.md shall shew con- Lry west of the line Lord Dorchester, who [eptember, 1791, ami Toeneral (as Sir (iuy Jhe said Provinee of le Province of Upper 1 the westward of tin' iThis form of expres- territory belonging I suppose that there AtTH OK I'ROVINCIAL JUUIMDHTION WEST OK hVK NuKTM LINK. »16 i'l! was an intention ho soon to give to the Province narrower V)oundH than were indicated by the paper presented to Parliament, ado}>ted afterwards by tlie King in Council, and than were defined l>y the Prolamalion of (lovernor (Uarke. Home cliaiigc was rerpjiied by strict acotiracy of expresHiun. Hy the Tre-ity of 1763, France had ceorne and the Right Hon. Charles Poulett Thomson, as Captains- (Jeneral and Governors-in-Chief of Upper Canada, dated respectively DecemVwr 13th, 1838, and September 6th, 1839, the line of division between Upper and Lower Canada is stated to reach the " shore " of Hudson's Bay : " by a line drawn due north from the head of the said lake (Temiscaming) until it strike the shore of Hudson's Bay." These seven commissions use the word " shore." It is not to be supposed that there was a mis- take in substituting the word " shore" for the words "boundary line." The two expres- sions "boundary line of Hudson's Bay" and " shore of Hudson's Bay" evidently meant the same thing. After Lord Elgin's, the commissions to the Governors-General did not contain any boundary -line descriptions. The other commissions to tho Lieutenant-Governors of Upper Canada which have b» on evamined, either do not give the boundaries of Upper Canada or give them partially onl^ and in such a manner as throws no light on the present question. So also the conin 'issions after the union do not give the western boundary of the Province of Canada. The commissions to Sir John Colborne and Governor Thonison trace the western boundary int' Lake Superior, and no farther, saying nothing of the line thence either westerly or northerly. I was asked just now by Sir Edward Thornton whether acts of jurisdiction were ever exercised within the limits now claimed by the Dominion ; and I propose now to answer this (juestion. The first fact I may mention is, that Upper Canada has been in the habit of issuing writs into the territory west of the line 89° 9y, since, at all events, 1818. We have been able to trace the practice back to that date. In 1850 the Province of Canada, with tho sanction of the imperial authorities, entered into a treaty with the Indians, and procured the surrender of the rights of the Indians in the territory as far west as Pigeon River or the international boundary. This territory, it may be observed, is south of the height of land, and includes the territory between the line 89° ^' and the internatioaal boundary; this being territory which the Hudson's Bay Company never claimed, although the Dominion claims it now. The treaty is set forth in pages 22 to 24, Book of Documents. Mr. Robinson, who negotiated the treaty, seems, from the terms of it, to have been of the opinion that the height of land was our northern boun- Ihll .'U6 AKGUIIENT OF THK ATTORNEY-aEN. OF ONT. BEFORE THE ARBITRATORS, 1878 : I I (lary, but of course his opinion does not bind us. Another w&y in which jurisdiction baa been exercised is this :— From the year 1853 the Province of Canada, continuously and without objection from any quarter, made grants of land in the Queen's name in this territory, west of the proposed line of the Dominion, and up to Pigeon Kiver. Between 1853 and Confederation, no less a quantity than 35,059 acres had thus been granted west of that line. Numerous mining licenses in the same territory were granted in like manner, commencing with the year u^i, the territory embraced in them extending to Pigeon River. The dates and other particulars of all these grants are given in the Book of Documents, 322, 409. In 1868 the Government of the Dominion appropriated $20,000 towards the construction of a road from the Lake of the Woods to Fort Garry, on Red River ; the money was expended accordingly. Sir Edward Thornton, — I think that was the money expended in time of great distress, and which led the Hudson's Bay Company to complain of intrusion on thoir territories. The Attorney-General — And, on behalf of the Dominion, its Ministers, Sir George E. Cartier and the Hon. William McDougall, ably replied to the complaint, and showed that there was no ground for it. The correspondence will be found at page 323 of the Book of Documents. ^o far as relates to Ontario's western boundary, it is unnecessary to consider the argument as to the Hudson's Bay Company owning this territory ; because the extension of the southerly boundary to the west is not made to depend on the Company's having or not having the territory to which the western extension of the southerly boundary would bring us, and the Crown had power to include within the limits of the Province part of the territory of the Company, as well as that of any private owner of land, if such was the royal will. But the fact that this western territory had been c^^scovered, explored, tr-vde-i" n^ith, occupied and taken possession of by the French before the treaty of cer.^ion — which seems now to be admitted on all hands — shows that the Company had no rignt to this territory, and adds strength to Ontario's claim, even in respect to the western boundary. The only thing that I know of against all this mass of evidence are the decisions of a Lower Canadian Court in 1818, in the cases of De Reinhardt and McLellan, which have been cited in favour of the line drawn due north from the confluence of the Ohio and the Mississippi, and stated in t'a evidence in those cases to be 88° 50' or 88* 58'. In each of those cases the question was whether the locality in which the murder was com- mitted was in Upper Canada or not. The court was acting under a special statute and cc~>tmi8sion, which confined its authoiity to ofiences committed outside of Upper Canada; V . prisoners wished to make out that the scene of the alleged murder was in Upper Canada, and that the court had therefore no jurisdiction. The court naturally leaned against what seemed a technical objection. "The investigations and discussions of the liiHt twenty-five years have thrown an immense amount of fresh light on the question ; a good deal of the evidence on which I ask the Arbitrators to come to a different conclusion was not before the court ; the court seemed also impressed with the erroneous idea that the word "northward," in the Act of 1774, n-^cessarily meant due north, and the argu- ment for another construction from other words in the statute was not presented by counsel, whose contention mther conceded that the Act of 1774 was against them, ami they endeavoured to show that the Act of 1791 extended the boundaries ; the court hiul Ijefore it the Proclamation of General Alured Clarke, but not the paper which had been submitted to Parliament in 1791, nor the series of commissions which had been issued, and which showed conclusively the intention of the Act and of the Crown ; nor had the court its attention calleJ, either to the historical facts referred to in the recital of tlie Quebec Act, or to th;« evidence of intention afforded by the debate on the Act and by Mr. Burke's letter. The court had nothing like the same materials for coming to a cor- rect conclusion as the Arbitrators have ; and, having reference to the materials before the Arbitrators, I submit it is quite clear that the conclusion of the court on the point now in question was wrong. Chief Justice Hirriaon — Still, it was an important decision. air Edward Tliomton — It was a unanimous decision. . iATORS, 1878 : ti jurisdiction has jontinuoualy and n's name in thia River. Between )een granted west granted in like lem extending to jiven in the Book lion appropriated ids to Fort Garry, in time of great ntrusion on their listers, Sir George )laint, and showed t page 323 of the y to consider the oause the extension Company's having jutherly boundary its of the Province owner of land, if i been c^scovered, ih before the treaty ,t the Company had in respect to the .•e the decisions of a ^Lellan, which have ice of the Ohio and , or 88* 58'. I" le murder was corn- special Htatute and bof Upper Canada; Mer was in Upper |t naturally leaned jcusaions of the bwt le question ; a good Uflferent conclusion prroneous idea that forth, and the argu- not presented by against them, and "ies ; the court had ^er which had been bh had been issuf • i-^^'^f pjtrri","' >.,■/•;'•. THB QUESTION OF THE NORTHERN ROUNDARY. Kf: 317 town nor had the li the recital of the Ion the Act and by lor coming to a cor- Ve materials before [court on the point Afr. MacMahon — The then Chief Justice said that he had consulted his brother judges, and they were unanimously of opinion that that was the conclusion which ought to be reached. Chief Justice Harrison — De Reinhardt, although convicted, was never executed. * • The Attorney-General — No, he was not executed. I have endeavoured to get the despatch which directed that he should be released, but it cannot be found. There is no doubt that the man was not hanged, and no reason has been suggested for this except that the British Government, actii ig under the advice of the Crown lawyers in England, thought that the ruling of the court on the point in question here was not correct. (Docts., p. 226.) McLellan was af/juitted. Ill view of the whole evidence now before the Arbitrators it is apparent tha,t if there is . v difficulty on the westerly side of the Province, it is only as respects the territory west of Lake of the Woods. Is our western line further west than this lake % Hoes it extend to the first tributary of the Mississippi which a line due west from the most north-western point of the Lake of the Woods strikes ? Or does our western limit extend to the Rocky Mountains ? I submit that the proper legal way of viewing the matter is, that inasmuch as the Royal Commissions declare that the line is to go due west to the Mississippi, some mean- ing must be given to that direction, and these words should be construed as referring to either the then supposed locality of the Mississippi, or the first stream the waters of which flow into the Mississippi, no matter by what name the stream may be called. There are various streams which fall into the Mississippi that a due west line would meet ; tliese first fall into the Missouri and then into the Mississippi. We must find some meaning for the words employed ; and as what is now called the Mississippi would not be touched by this due west line, we must find another meaning as near to the language used as possible. I come now to consider the northern boundary, which so far I have only referred to incidentally. I have stated that the Quebec Act, and such of the Royal Commissions to the Governors previous to 1791 as mention the northern boundary, specify for that purpose the southerly boundary of the territory granted to the Hudson's Bay Company ; and the principal difficulty here is, that the southerly boundary of this territory was never definitely ascertained. The claim of the Dominion is that the northern boundary of the Province is the height of land already described. I submit tha"^ it is clear that the height of land is not our northern boundary, and, on the contrary, \a considerably south of our northern boundary. The first fact showing this is, that the easterly and westerly lines assigned to the Province by the Royal Commissions, cut through, and go north of, the height of land. This alone is conclusive on the point. The shore of Hudson's Bay to which our boundary goes on the east is far north of the height of land, and the Lake of the Woods, through which our boundary passes on to the west, is also north of the height of land to which the claim of the Dominion would lioMt us. It may be said also that the commis- Hion which was issued in 1791, and such of tue subsequent commissions as mentioned the northerly boundary, declared in effect that the southerly boundary of the Company's territory was not south of those two points, namely, the south shore of James' Bay (called there Hudson's Bay) and the most north-western point of the Lake of the Woods. The next point to which I ask the attention of the Arbitrators is, that so southerly a boundary as this height of land was not claimed or suggested by the Company as being within the intention of the charter, or as bein"; the measure of the Company's just rights, until nearly a century aiul a half after the date of charter. The Company's papers and books have been thoroughly examined, and I do not think my learned friends will be able to show that for a century and a half after the date of the charter the Company ilaimcd the height of land as their boundary. The English Ooininissioners, in their negotiations with France, made in one instance a proposal something like that, but made it of their own motion, without any authority from the English Government, and with- out any suggestion from the Company. That proposal will bo found printed in the Book of Documents, at page 36r), the last paragraph on that page. The language used is this : " The said Commissaries further demand that the subjects of His most Christian V m ^.-:^f' 318 ARGUxMENT OF THE ATTORNEY-GEN. OF ONT. BEFORE THE ARBITRATORS, 1878 : WW- ■- I l!i Majesty shall nob build forts o,r found settlements upon any of the rivers which empty into Hudson's Bay, under any pretext whatsoever ; and that the stream and the entire navigation of the said rivers shall be left free to the Company of English merchants trading into Hudson's Bay, and to such Indians as shall wish to traffic with them." But even that proposal did not claim as the boundary the height of land ; it claimed only that the rivers should be free, and that no forts should be built or settlements made upon them, because such woul3 interfere with the freedom of the streams. The proposition had reference only to the rivers, not to the lands. There is no evidence that the land was in the minds of the Commissioners. The point, however, which I am making is, that the Company themselves did not for one hundred and tifty years, make that claim. They made their claim in different forms at different times. Upon the occasion of the Treaties of Ryswick in 1697 and Utrecht in 1713, the Company's claim was expressed either in the terms of the charter, or was simply to " the whole Bay and Straits of Hudson," and " to the sole trade thereof." It sufficiently appears from the early documents which emanated from the Company, that this general claim to the whole bay and straits was a claim to the waters and shores only, and to the exclusion of the French therefrom, — the French having been in possession of forts on the bay until after the Treaty of Utrecht, and the Treaty of Ryswick having in effect given them possession of all places on the bay except, it may be. Fort Bourbon. The Company's object was the trade of the bay, and not the occupation or settlement of the country away from the shores of the bay. The line which the Compan^, itself pro- posed in 1700 was from the River Albany, on the one side, to Rupert River, on the other side of the bay ; but the French rejected the proposal. In 1701 the Company proposed a still more northerly line, namely, from the River Albany on the one a" le to East Main River on the other ; but the French rejected that one also. In 1711-12, the Company proposed a line to run from the Island of Grimington, or Cape Perdrix, on the Labrador coast, south-westerly to and through Lake Mistassin. This line did not extend beyond the south-west shore of the lake ; and though the Company made a demand for the surrender of the forts on the shores of the bay, yet they do not appear to have made at that time any proposal as to a line on the west or south side of the bay, and their only claims and contests of this period were about the margin of the bay. In one instance or more they absurdly claimed the whole eastern coast to the Atlantic and the whole western coast to the Pacific ; but the specific claim that they were entitled to the height of land, and to the territory along the various rivers which directly or indirectly flow into Hud- son's Bay, was not made for one hundred and fifty years after the charter had been obtained. The ground on which the Company's (and now the Dominion's) claim to the height of land is maintained is, an alleged rule that the discovery and possession of the shore of a new country gi\ e a right to the rivers and to the land adjoining. I do not admit that so-called rule. It is stated more strongly than the authorities warrant. My learned friends have in their case referred to Dr. Twiss's book on the Oregon Territory. That book was written by Dr. Twiss as a controversialist. It was published duri.ig the discus- sions on the question of the Oregon Territory, and published to help the English cause. But the view which was taken by Great Britain as to the alleged rule, appears from an extract which my learned friends have printed at page 6 of the Dominion case : — " Sir Francis Twiso in his discussion on the Oregon question, at page 300, states that Great Britain never considered her right of occupancy up to the Rocky Mountains to rest upon the fact of her having established factories on the shores of the Bay of Hudson — that is to say, upon her title by mere settlement, but upon her title by discovery, confirmed by settlements, in whi'^h the French nation, har only civilized neighbour, acquiesced, and which they subsequently recognized by treaty." So that it is only to the extent of the actual recognition of tlie English settlement by the French, subsequently made, that Dr. Twiss was of opinion that the rule had proceeded. At page 148 of the same book tiie author quotes Mr. Rush as asserting on behalf of the United States, " tha a nation discovering a country, by entering the mouth of its principal rivar at the sea o ist, must necessarily be allowed to claim and hold as great an extent of the interior country as was described by the course of such principal river, and its tributary streams." Bi t Dr. Twiss III -mf.'^ roKS, 1878 : 1 which empty and the eixtiie iish merchants ;h them." But t claimed only mts made upon }he proposition I that the land lives did not for diflferent forms 97 and Utrecht charter, or was ide thereof." It ! Company, that and shores only, in possession of ^swick having in I Fort Bourbon. I'or settlement of apan^ itself pro- iver, on the other ompany proposed r* ie to East Main 12, the Company , on the Labrador [ot extend beyond demand for the r to have made at and their only In one instance or the whole western tie height of laud, tly flow into Hud- charter had been RIGHTS OF DISCOVERY AND POSSESSION. tm remarks that " Great Britain formally entered her dissent to such a claim, denying that such a principle or usage had been ever recognized amongst the nations of Europe ;" and that " in the subsequent discussions of 1826-7 Great Britain considered it equally due to herself and to other powers to renew her protest against the doctrine of the United States." Suppose, however, the modern rule to be as the Dominion contends ; we are now interpreting an old charter, and we cannot interpret it by a new rule. The object is to find out what the intention at the time was ; and we are not for that purpose to make use of modern rules not known and acted on at the time the charter was granted. I do not find any ground whatever for holding that the rule which my learned friends contend for was a recognized rule at that time, if there is any reason for maintaining its subse- quent adoption and recognition. Again, all international rules are founded on reason and necessity ; it is because they are supposed to be j ust that the rules are recognized. If in some cases it may be just and reasonable that the possession of the coast should give a title to all the land watered by the rivers, back to the height of land, this cannot apply to a river 3,000 miles long. So far from being a matter of necessity or reason, it is absurd that the possession of a few miles of coast on Hudson's Bay should give the right to a river 3,000 miles long, and to half a continent of territory which that river happens to water. General rules respect- ing the rights of nations must be applied in a moderate and reasonable way, Lnd not to cases to which the application cannot be defended on grounds of reason and justice. If such a rule exists as my learned friends contend for, the^e is no reason, justice or good sense in applying it to a case of this kind. Further, possession as well as discovery is needed in order to give to a nation the rights for which my learned friends contend. The facts are, that the French, from the beginning of the seventeenth century, were in possession of the territory to the south of the lauds watered by the rivers flowing into Hudson's Bay, and were from time to time extending their explorations and settlements, as they had a right to do, to the head waters of the rivers flowing into Hudson's Bay, and to the interior of the country. They had various forts and settlements in the interior, and these settlements were not objected to by the English, nor could they have been. Supposing the rule to have been what the Dominion contends that it was, the fact of the French being in possession of the territory to the south of the rivers, and extending their territory from time to time, would bar the discoverers of the bay — if the Company were the discoverers — from saying that, by reason of the discovery, they could stop all further explo -ation in that direction. The rule, so far as it exists, is of effect only where the interior of the country can be reached only through the coast discovered and settled. The case of the Dominion is based on the assertion that the English were the first discoverers of the bay, but it is impossible to say with certainty who were the first dis- coverers ; nor was the alleged discovery by the English followed by possession. The voyage of Cabot, "grand pilot to Henry VII." (of England), into the bay, is said to have taken place in 1517 ; but no sort of possession of any part cl the bay by the English t)efore 1667 is pretended ; being an interval of 1.50 years. It would be extrr "rdinary to tind a rule by which, after discovery being made and 150 years or more allowed to go by, the advantage of that discovery can then be claimed as giving title to half a continent. (Hlhani, a British subject, is said to have built, in )67, Foi't Charles (Rupert), which was on the east aide of the bay ; but in the meantim* the bay had become known to the world. In the Ust of maps at p. 135 of the Book of Documonts will be found a number nf maps of dates anteceilent to the charter, and showing the bay ; the country was well known to everybody when Gilham built his fort. It is not material tnidor the circumstances, but it is reasonably clear as a fact, that the bay was repeatedly visited by Frenchmen 'rom t' i French settlements on the St. Lawrence between 1656 and 1663. I refer the Ar' rators to page 108 of the Book of Documents, the memoir of Sieur de Jallieres to the Marquis de Seignelay, the Foreign Minister of France. My learned friends dispute the truth of the statement in the memoir of Sieur de Calli^res, that Father Dablon and Sieur Couturo visited Hudson's Bay in 1661 and 1663. M. de Calli^res is spoken of as a man of high character, and this r*' i>*^-*:yf>-Xi*: 320 .\r/. ..iMKNT OF THE AnORNEY-OEN. OV ONT. BEFORE THR ARBITRATOIUS, ' S7o mem oil" ./as not written for the purpose of controversy, but was a contidential communi- cdtion to the Minister in France, who was the otiicial superior of the writer. M. dc C'alli^res was Governor of Montreal and afterwards of Canada. I apprehend it will be assnnied at this late day that his statements were correct. He says : — "As regards Hudson's Bay, the French settled there in 1656, by virtue of an arret of the Sovereign Council of Quebec, authorizing Sieur Bourdon, its Attorney-General, to make the discovery thereof, who went to the north of said Bay, and took possession thereof in His Majesty's name. In 1661, Father Dablon, a Jesuit, was ordered by Sieur dArgenson, at the time Governor of Canada, to proceed to said country. He went thither accordingly, and the Indians, who then came from thence to Quebec, declared they had never seen any European there. In 1663, Sieur d'i^.vaugour, Governor of Canada, sent Sieur Couture, Seneschal of the Cote de Beaupr6, to the north of the said Hudson's Bay, in company with a number of Indians of that country, with whom be went to take possession thereof, and he set up the King's Arms there. In the same year, 1663, Sieur Duquet, King's Attorney to the Prevute of Quebec, and Jean I'Anglois, a Canadian colonist, went thither again by order of the said Sieur d'Argenson, and renewed the act of taking possession by setting up His Majesty's Arms there a Kocond time. This is proved by the arret of the said Sovereign Council of Quebec, and by the orders in writing of said Sieurs d'Argenson and u'Avaugour." There is a detaiii^d account, of which the Governor of the Province is sending a confidential communicfltio!' I refer also to the statements of M. de Denonville, Governor-General of Canada, wi the Foreign Minister. They will be found at page 111 of the Book of Documents. M. de Denonville says : — " On the 29th of April, 1627, a new (company) was organized, to which the King (Louis XIII.) conceded the entire country of New France, called Canada, in latitude from Florida, which His Majesty's royal predecessors had had settled, keeping along the sea coasts as far as the Arctic Circle, and in longitude from the Island of Newfoundland westward to the great lake called the Fresh Sea, and beyonc, botli ah)ng the coasts and into the interior. Since that time, the French have continued their commerce within the countries of the said grant. In 1656, Jean Bourdon ran along tk' entire coast of Labrador with a vessel of thirty tons, ertered and took possession of the North Bay. This is proved by an extract of the an' ' -egister of the Council of New- France on the 26th of August of the baid year. I/? : .) ] the Indians of said North Bay came expressly to Quebec to confirm the good underst, . i^L.g that existed with the French, and to ask for a missionary. Father Dablon went overland thither with Sieur de laValliirc and others. Father Dablon lias given his certificate of the fact. In 1663 those Indians returned to Quebec to demand other Frenchmen. Sieur d'Avaugour, then Governor, sent Sieur Couture thither with five others. Said Sieur Couture took possession anew of the head (fonds) of said Bay, whither he went overland, and there set up the King's Arms engraved on copper. This is proved by Sieur d'Avaugour's order of May 20th, 1663, and the certificates of those who were sent there." These also are statements made con- fidentially by a man of high character, who ought to know, to his official superior in France. I find the following on this subject at page 3 of the Dominion Case : — " It appears that in the year 1656 there was an order of the Soverf ign Council of Quebec authorizing S'f xr Bourdon, its Attorney-General, to make a disc:)very thereof. There is no record wliat' voi of his having attempted to make the discovery in the same year in which the order was passed -y the Council. There is a record, however, of his having made the attemnc in the year following (1657), and he may then have designed carrying out the order. He si;, led on the 2nd day of M lyand returned on lit! August, 1657; and it is not pretended that <'» could ^".ave nade .i voyage to Hudson's Bay and return between these dates. (« )uni...i d « Jt uites, pp. 209-218.)" Of course he could not ; but then a man may make vova^es in different yjum. It is not to be assumed that he did not make a voyav^e tn.^ j ^:r before because ho made a partial voyage in this year, since we have positive t«.vurii ,\r ■ f; it he had also made that previous voyage. If these (tovernors were making fa!Hf <>t« '>menta to their superiors in France, they would have referred to 1657 : but they rfcujrr'^I to 1656, showing that the reference was to a different transactiou altogether. It is true there is no entry in the Jesuits' book of this voyage of 16''^. TOIW, i HTo ■ >;,v*.<^. .4*w>^^=. THE FRENCH TNT POSSESSION OF WHOLE TKADE OF H. » BEFORE 1670. 321 intifll communi- writer. M. de ehend it will be rtue of au arret ruey-General, t(i assession thereof rdered by Sieur ntry. He went (Quebec, declared ur, Governor of lorth of the said J, with whom be [n the same year, Jean i'Anglois, a d'Argensou, and Q8 there a Kt-cond uebeo, and by tbc ere is a detaiu'd x\ communicAtnw 3ral of Canada, w )k of Documents, ly) wa3 organized, ew France, called rs had had settled, le from the Island and beyon*:, \)Otli Lve fioutinued their rdon ran alc>vig tk' : possession of tbe le Council of New of said North Bay id with the French, Sieur de laVallifere 663 those Indians ir, then Governor, possession Anew of U the King's Arms May 20th, 1663, .emcnts made con- official superior in lase :—" It appears Quebec authorizing J'here is no record [year in which the i having made the |l carrying out the 11657; and it is not lurn between these , ; but then a man Jie did not make a lear, since we have >8e Governors were , retorred to 165( . Ifferent transaction lis voyage of l?'^'' but that book is silent in regard to many things which no doubt did occur ; and the mere fact of its not mentioning a voyage is no sort of evidence that the voyage did not take place. The printed case for the Dominion comments also on what is said in reference to Father Dablon. It does not appear whether there were two priests of that name or only one. At all events, the mere fact that the journeys which we prove to have been made by a priest of that mime were not recorded by the Jesuits is no evidence against the direct authority that we have for the fact. On the whole, there seems to be no reason which would justify us in now doubting that persons acting under the authority of the French Government had repeatedly visited Hudson's Bay in and before 1663; had taken possession in the French King's name, and set up the Royal Arms there. And, however that may be, the French had certainly before that date established posts at convenient points for trade with the Indians, and had secured the whole trade with the Indians around the Bay. In 1627, long before the date of the Hudson's Bay Charter, the King of France gave to the Company of New France the right of trade to an extensive territory — including Hudson's Bay — both along the coasts and into the interior; those words being inserted in the Charter. The French were enjoying the whole trade with the Indians around the Bay at the time the Charter to the Hudson's Bay Company was given. It is said in the books that for the purpose of giving property in a country, the possession needed is a possession having relation to the nature of the country. This was not an agricultural country ; settlement for the purpose of agritulture was not expected ; all that either party wanted was the trade with the Indians ; the French had secured that, and had been in the enjoyment of it long before the Hudson's Bay Company obtained their Charter, and this was sufficient to prevent their rights from being interfered with by the subsequent possession of the coast by the English, after they had allowed one hundred and fifty years to pass without acting on the discovery which they are said to have made. In the Dominion case, stress is la* J on the fact that, by the Treaty of Utrecht (1713), the whole Bay and Straits were coded or restored to England by France. But it was never intended by either party that so extensive a claim as is now raade should be made under any language employed in that Treaty. In the memorial concerted with the Marquis de Torcy, January 19th, 1713, and forwarded to Lord Bolingbroke by the Duke of Shrewsbury (Book of Documents, page 153), it is stated : — "The inhabitants of Hudson's Bay, subjects of the Queen of Great Britain, who have been dispossessed of their lands by France in time of peace, shall be entirely and immediately after the ratif' ition of the Treaty, restored to the possession of their said lands ; and such proprietors nail also have a just and reasonable satisfaction for the losses they have suffered, with respect to their goods, movables and effects ; which losses shall be settled by the judgment of com- missaries, to be named for this purpose, and sworn to do justice to the parties interested." And Mr. Prior writes to Lord Bolingbroke on January 8th of the same year (Book of Documents, p. 153) : — " As to the limits of Hudson's Bay, and what the ministry here seem to apprehend, at least in virtue of the general expression, tout a que 'Anrfleterre a jamain possede de ce cote la (which they assert to be wholly new, and which I think is really so, since our plenipotentiaries make no mention of it), may give us occasion to encroach at any time upon their dominions in Canada, I have ansvirered, that since, according to the carlft which came from our plenipotentiaries, marked with the extent of what was thought our dominion, and returned by the French with what they judged the extent of theirs, there was no very groat difference, and that the parties who determine that difference must be guided by the same carle, I thought the article would admit no dispute. In case it be cither determined immediately by the plenipotentiaries -v referred to commissioners, I take leave to add to your Lordship that these limitatiou.s are not otherwise advantageous or prejudicial to (ireat Britain than as we are better or worse with the native Indians, and tliat the whole is a matter rather of industry than dominion. If there be any real difference b(!tween rejtftitiUion and cession, qtieritur?" It is plain, then^fore, that th') Treaty was not intended to authorzie so large a claim by England against France as the Dominion case contends. We know pretty well what, foi the sake of peace, the French were willing to give up -namely, the territory to one or the other of the linos marked on DeLisle'a maps, and marked as such on our map — and 21 322 ABGUMENT OF THE ATTORNEY-OEN. OF ONT. REFORE THE ARBITRATORS, 1878: '": »■ what I have just read shows that there was not a great difference between what England demanded and what France was willing to give ; and it is manifest that would not have been the case if there was anything like what is now demanded. The testimony, therefore, appears to be abundant that the height of land boundary was what the English had no right to claim. Assuming that to be so, the question is, — What line north of the height of land is to bo regarded as the Company's southern boundary 1 The language of the Charter, by reason of its ambiguity, affords no assistance in this inquiry. The validity of the Charter has always been questioned on the ground of its ambiguity, as well as for other reasons. Assuming that the northern boundary is on one side^the shore of Hudson's Bay, say beetwen 51° and 52° of latitude, and on the other at least as far north as the most north-western point of the Lake of the Woods, say latitude 49' 23' 55" ; if these points were clearly in the Hudson's Bay Territory, the northern boundary would perhaps be a line drawn from one of these points to the other. Wo claim that our boundary is farther north than this, but cannot be south of it. Are these points in what was the territory of the Company '( And is the Provincial boundary no farther north t If by reason of the Charter being so old, and having been acted upon in some sort, and of its validity to some extent being implied in certain statutory references to the Company, the instrument cannot be treated as absolutely void, it must, as regards its construction and operation, on well-kuown and well-settled principles, be interpreted most strongly against the Company, and in favour of the Crown. The object of giving the Charter, as the Charter itself declares, was to encourage discoveries by the Company; and the validity or operation of the instrument is to the extent only of giving (so far as the Crown could give) to the Company whatever of unknow territory the Company, within a moderate and reasonable time should occupy; and all that the Company could be entitled to was what the Company Lad, in this manner, acquired for themselves and for the Crown previous to the cession c^ Canada in 1763 by France to England ; or what, previous to that time, the Company had been in possession or enjoyment of as their own with the concurrence of the Crown. It is a familiar rule that Crown Cranui are construed most favourably to the Crown, the grantor. The rule is thus -^ated in Chitty on Prero. page 391 : " In ordinary cases between subject and subject, \ ';e principle is that the grant shall be construed if the meaning be doubtful, most strongly against the grantor, who is presumed to use the most cautious words for his own advantage and security. But in the case of the king, whose grants chiefly flow from his royal bounty and grace, the rule is otherwise j and Crown graiii/B have at all times been construed most favourably for the king where a fair doubt exists as to the real raeani:,g of the instrument, as well in the instance of grants from His Majesty as in the case if trrubters to him." The rule is not new but was in existence at the time of this CLif-^^cr and '.ifore, and was, perhaps, more stringently acted upon then than it is in the casu or r/odeii' c^eds. Independently of this consideration, legal opinions are uniform that, ii the cive of <> » old and ambiguous charter like this, the instrument operates as far as poasewsion a' J t /oyment have been had under it, and no further. I may cite some decided case.s noar';.:;; on this point. Blankley vn. Winstanley, 3 Term Reports, 288, is one of thoin. In t>.,>,t case it was observed by one of the learned judges as follows : — " With regard to the usage : usage consistent with the meaning of the Charter has pre'vailod for on hundred and ninety years past, and if the words of the Charter were mere disputabi. than they are, I think that ought to govern this case. There are case- in which this Court has hold that a settled usage would go a great way to control the v/ords of a charter. Such was the case of Gape vs. Handley, in which the Court went much further than is necessary in the present case ; and it is for the sake of quieting corporations that this C/Ourt has always upheld long usage where it was possible, though recent usage would not perhaps have much weight." So in Wadley vs. Bayliss, 5 Taunt., 753, tho case of an award under the Inclosure Acts, it was laid down that "the language of the award being ambiguous, it was competent to go into evidence of the enjoyment had, in order to see what was the meaning of those who worded it." The rule is thus applied by Sir Arthur Pigott, Mr. Spankie, and Mr. Brougham, in the opinion printed at page 198 of the Book of DocuuieutH ; — " In such a long tract of ATORS, 1878 : THE POSSESSION OF H. B. CO. LIMIFKD TO PARTS OF THK SHORE OF THE BAY, 32» K! n what England would not have : land boundary lie question is, — ipany's southeni assistance in this he ground of its (undary is on one id on the other at oods, say latitude ory, the northern , the other. We of it. Are these icial boundary no een acted upon in latutory references it must, as regards lies, be interpreted le object of giving B by the Company ; 'iving (so far as the \ Company, within Company could be themselves and for England ; or what, Bnt of as their own ■ably to the Crown, «' In ordinary cases bo construed if the ned to use the most of the king, whose erwiae; and Crown where a fair doubt of grants from His was in existence at ,ly acted upon then tion, legal opinions lis, the instrument and no further. I ^instanley, 3 Tenn the learned judges »e meaning of the if the words of the lo govern this case. .uld go a great way .ndley, in which the fit is for the sake of Wre it was possible, [Wadley va. BayHss, laid down that "the iito evidence of the .rded it." I Mr. Brougham, m 8uch a long tract of time as nearly one hundred and fifty years now elapsed since the grant of the Cliarter, it iriust now be, and must indeed long since have been, fully ascertained by the actual occupation of the Hudson's Bay Company, what portion or portions of lands and territorie* in the vicinity, and on the coasts and contines nf the waters mentioned and described as within the Straits, they have found necessary for their purposes, and for forts, factoriuSr towns, villages, settlements or such other (fstablishments in Bucli vicinity, and on such toasts and confines, as pertain and belong to a Company instituted for the purposes mentioned in their Charter j and necessary, useful or convenient to them within th«^ prescribed limits for the prosecution of those purposes." In 1857 the Crown Lawyers pointed out (page 202) that the question of the validity and construction of the Company's Charter cannot be considered apart from the enjoyment that had been had under it. " Nothing could be more unjust than to treat this Charter as a thing of yesterday, and upon principles which might be deemed applicable to it if it liad been granted within the last ten or twenty yeai-s." They likewise say: — "The remaining subject for consideration is the question of the geogmphical extent of the territory granted by the Charter, and whether its boundaries can in any and what manner be ascertained. In the case of grants of considerable age, such as this Charter, where the words, as is often the case, are indefinite or ambiguous, the rule is that they are construed by usage and enjoyment." There is no authority or opinion against that. Again, the Company were certainly not entitled to any of the territory which France owned at the time of the cession, and ceded to England ; it is preposterous to Knpp< se that the Charter intended to grant, and did effectually grant to the Company, as against the world, all the territory southerly and westerly of the Bay, to the then unknown height of land (unknown to the Crown and to the Company), though such tei ritory houM be, as it was, to the extent of unknown hundreds of thousands of square miles— third of the continent ; that the Charter was intended to ^ve, and did give to the Company,, the right to shut up this enormous territory from the Crown and from all British Bubj<>x;tK —and from other nations also — for all time ; that if the Company should do nothing to discover, settle or acquire it for a hundred years or more, nobody else could ; and that any portion of it which England should, a hundred years afterwards, -quire by war with another nation, and by the employment of the resources of the whoK empire, in Europe as well as America — accrued, when so acquired, and was intended to accrue, to the Company for their own private benefit. Such a claim cannot be in accordance with a sound inter- pretation of any authorities which can be found. It is clear, and indeed has been repeatedly admitted by the Company themselves, that until long after the date of the cession, the Company had no possession of any p«r4 of the interior of the country, and that their possession was confined to certain fort» on the Bay and two factories not very distant. Henley House was one of these factories, on the Albany, erected in 1744 ; and France had at the same time forts on the same rivei'. At all events, with these exceptions, no possession of any part of the territory away from the shore was had by the Company until long after the cession. 1 have said that the Company have admitted that to be so. A Committee of the British House of Commons was appointed in 1749 to inquire into the state and condition. of the countries adjoining Hudson's Bay, and of the trade carried on there ; and evidence; was given before this committee that, at that time, thf only forts and settle- ments of the Company were on the Bay. (Book of Documents, 39,^.) Those opposed to the Company at that time were complaining of this, and urging that the Company had not attempted to settle the country. Again, in a statement of the Hudson's Bay Company, the material part of which is- printed in the Book of Documents, page 402, there is this admission : " A.s long as ('anada was held by the French the opposition of wandering traders (C 'ureurs des Bois) was insufficient to induce the Company to giv o up their usual method of trading. Their s(Tvants waited at the forts built on the coast of the bay, and there bon^t by barter the furs which tiie Indians brought from the int-rior. But after the c(\ssion of Canada to Great Britain in 1763, British traders, following in the track of the Fj-enci, penetrated into the countries lying to the north-west of the Oorapanjr s territories. And by there liuilding factories, brought the market for furs neaivr to the Indian seller' That means \'H 32+ AROUMMNT OK THK AITORn K»-OKN. OF 0^fT. BKFOBK THK ARBITRATORS, 187S BritiHli tmiiors uucoiuiected with the Company. " Th(? Company, tinding their tradu «erlou8ly aff-ctcd, extendt-d the fiold of their operations, and sent parties to establish themselves in tlie interior." I need for my purpose nothing inor.; tiian this statement hy the Company themselves. It is an o.icpross admission that the L'rcuch did settle in the territories referred to; that the ITud.son's Bay Company confined themselves to the forts on the Bay ; and that after the Treaty of 1763, British traders unconnected with the Com pany commenced to,move ; that they were first to move ; and that it was not until the Compsmy found their trade seriously affected by the acts of these otiier traders that the Compuiis' extended their operations. T' ' " at page 412, Book of Docunionts, there is a letter from Mr. Goschen, then <5hairmb... of tlui Company, telling the result of his researches into the books and papers of the Company. Amoi'gst other things he says : " At the time of the passing of the Quebec Act, 1774, the (^impany had not extended their posts and operations far from the shores of Hudson's Baj Journals of the following trading stations have been pre- served bearing that date, namely, Albany, Kenley, Moose, East Main, York, Hevern, and Churchill." The solicitors employed by the Dominion to search the records of the Hudson's Bay Company, wrote as follows (see page 414, Book of Documents) : — " From a perusal of the Company's Journals, we find that it was not the practice of the Com- pany's servants to go up country to purchase peltry from the Indians ; but the Indians came down to York and other forts on the Bay and there exchanged their furs, etc., for the Company's merchandise." So that the Company not only did not establish stations, but did not go up the country. " It appears that the peddlers (French traders — Oorcreun dea Bois, as they were called), from Quebec, had, for some time prior to the year 1773, gone up into the Red River district, and by so doing had cut off the Indians and bought their furs." Sir John Rose says (his statement iti at page 414 of the same book) ; "I may mention that I do not think that any further research would have thrown more light on the matter tiian ' he Ontario Government is alrsady in possession of. I em- ployed a gentleman for several weeks to search at the Colonial Office and Foreign Ofce, as well as the Roll -' Office and Hudson's Bay Archives, and every scran of inrormation bearing on it was, ' think, sent out either to Mr. Campbell or to Mr. Scott [Dominion Ministers] some months ago. I believe that any further search would be attended with no result." Thus, during the whole period from 1670 to the passing of the Quebec Act, the Hudson's Bay Company had been in no sort of possession of more than their forts and factories on and in the immediate neighbourhood of the Bay. The Dominion Ministers truly affirmed in 1869, that "the evidence is abundant and conclusive to prove that the French traded over and possessed the whole of the country known as the Winnipeg Basin and ' Fertile Belt,' from its discovery by Europeans down to the Treaty of Paris, and that the Hudson's Bay Company neither traded nor estab- li>'hed posts to the .south or west of Lake Winnipeg until many years after the cession of Oanada to England." The Company's first post — viz., Cumberland House, on Sturgeon Lake — in the vicinity of the region in question — was not built until 1774, and they did not establish any post within this tract of country before 1790. There has been printed in the Book of Documents, 230, the judgment of the Hon. Mr. Justice Monk, of Lower Canada, in a case of Connolly vn. ^yoolrich, and tin* substance of it is this : — He shows, in regard to t'le French, that as early as 160ii, Quebec had been established and hud become an important settlement; that before 1630 the Beaver and several other companies had been organized at Quebec for carrying on the fur trac'e in the west, near and around the great lakes and in the North- West Terri- tory ; that the enterprise and trading operations of these French companies, and of the French colonists generally, extended over vast regions of the northern and north-western portions of the continent ; that they entered into trpiities with the Indian tribes and nations, and carried on a lucrative and extensive fur trade with the natives ; that in the pro.sp oution of their trade and other enterprises these adventui'ers evinced great energy, courage and perseverance ; that they had extended their hunting and trading operations to the Athabasca country (say 58° noitb latitude and 111^ west longitude) ; that .some portions of the Athabasca country had, before 1040, been visited and traded in, and to RATOR8, 1878 ; FRKNCH OCCUPATION OF NORTH AND NOKTU-WKST, lG29-l7 iding their tradu rties to establish this statement by did settle in the ves to the forts on ,ed with the Com \raB not until the r traders that the Ir. Goschen, then hooka and papers he passing of the aerations far from ns have been pre- ain, York, Hevern, the records of the uments) :— " From •actice of the Coin- 8 • but the Indians their furs, etc., for establish stations, traders— CoMre?trj( r to the year 1773, Indians and bought e same book) ; " I have thrown more issession of. I en»- land Foreign OFoe, ran oJ in2oi'matioii r. Scott [Dominion I be attended with )f the Quebec Act, )re than their forts ice is abundant and iiole of the country Iby Europeans down traded nor estab- after the cession of ouse, on Sturgeon 1774, and they dul cruieut of the Hon. pVoolrich, and tho as early as 160S, ; that before 1630 bee for carrying on North-West Terri lipanies, and of the 1 and north-westeru J tribes and nations, [that in the pro.sf- [need great energy, trading operations Titude) ; that some ' traded in, and to Home extent occupied by the French tradtfrs in Canada and their Beaver Company (which had been founded in 1629); that frotn 1640 to 1670 these discoveries and trading Kettlements had considerably incrensed in number and importance; that Athabasca anil other regions bordering upon it belonged to the Crown of France, at that tin)e, to tht- same extent, and by the same means, as the country around Hudson's Bay belonged to England, viz., by discovery, and by trading and hunting. Judge Monk mentions 1670, because it was the date of the (Charter of the Hudson'is Hay Company. These were the conclusion to which Judge Monk came judicially. It may be added, that if the Athabasca (country belonged to France at so early a period, so would the whole intermediate country between Athabasca and Hudson's Bay on the east, and between the Athabasca country and the St. Lawrence on the south, because with these parts the French were more familiar, and traded to a much larger «xtent than farther north. Between 1670 (the last date named by Judge Monk) and 1763, the French established posts or forts in that North-West Ti rritory which they had previously explored, and hunted over, and traded with, namely, on Rainy Lake, the Lake of the Woods, Lake Winnipeg, Lake Manitoba, on the Winnipeg River, the Red River, the Assiniboine River, the River auv Riches, and the Saskatchewan, and so west to the Rocky Mountains, where Fort la Joi iiiere was established by St. Pierre in 1752. All these lakes and rivers are connected by the Nelson River with Hudson's Bay, and aro in the territory which, in the fo'.liwin^ v^ontury, the Hudson's Bay Company claimed under their Charter ; but confessedly they had constructed in it no post or settlement of any kind until long after 1763. The subjects of France had also, on the northerly side of the dividing line. Fort Abbitibi, which was north of the height of land, and was built in 1686. It was situate at a considerable distance north of the height of land, and upon the lake of the same name, from which the River Monsippy flows into Hudson's Bay. The French had also- Kort St. Germain, on the Albany, which was built in 1G84 ; and still higher up on the same river Fort La Mauno, established about the same period ; and, to the east, Fort Nemiscau, on the lake of that name, situate on the River Rupert, midway between Lake Mistassin and the Bay ; this fort was built before IGQ.*). Of none of these did the English Government or the Company ever complain. The French had also another fort on the Albany, being that mentioned in one of the memorials of the Company as having^ been built in 1715. The facts enumerated form another conclusive ground against such a claim as is now set up by the Dominion as purchasers from the Company. The m itter is made clear in another way; that is, by the maps which the Company has furnished for the purposes of the present arbitration. We applied to them for what maps they had, and they furnished seven, only two of which seem to be of importance. One of the two, dated 1748, bears the Royal Arms and the Arms of the Company, and seems to have been prepared by the Company in view of the Parliamentary inquiry of that perioenchman'8 River, and several other rivers shown on the map as flowing into Hudson's Hay. The Company does not by the map claim to the height of land oven so far as these con>paratively small rivers are concerned. Their southerly line on the map runs to the eastern shore of a lake called Nimigon, thence to and northerly along the easterly shore of Winnipeg, and tbcnce northerly to Sir Thomas Smith's Sound in Baffin's Bay. I am entitled to say that this map demonstrates that the Company, in 1748, did not claim to the height of land, even as the height of land was then supposed to be situated, and (lid not claim Lake Winnipeg. The other of the two maps is Mitchells engraved map, described as published by the author, February, l7^^>i). This copy appears to have been much used and worn ; 1 suppose, therefore, that it is the map to which the Company chiefly referred when they had occasion to examine any map of their territory. There is on it an irregular line marked "Bounds of Hudson's Bay by the Tnaty of Utrecht,'" and the colouring on the two sides of that line is diflferent. This line may therefore he taken as showing the ■■1 '"•n ■ I'i isvV'^'.iC. 32G AUOUMKNT Of THK AITOKNKY-OKN. Of ONT. UEFOUU THK AHBITKATOIW, l«78. !!. «xtent of the Compaiiy'H ciaiin in 1756 and long after. Can there l>e any doubt that this in a fair couoluBiou to drawl On what principle can it be said tliat this map, which han been in the posaeNflion of tlio Compiiny for over a century, should not be taken as showing, not what the bounds w(ire, but what the Company regarded as their bounds 1 The line is about one- third of a degree north of the Lake of the Woods, and extends to the limit of the map in that direction, being in about the 98th degree of longitude. Chief Juatice llarrUon — The height of land does not appear to have been known at the time the Hrst of these two maps was prepared. The. AUoriiay-Gcnoral — But those rivers are marked on the map, and the territory marked as the Company's does not extend to the sources of them. Chifif Justice /farriiton — Those rivers are undoubtedly to the north of the height of laud. Z'Ab Attorney-General — -In regard to the territory which tlm Company knew when these maps wore prepared, they did not claim to the height of land. On this map of Mitchell's the Company claimed a more southerly boundary than in the other n ap, but «veu in this map the line they claimed cut some rivera which flow into Hudsou'» Bay, instead of extending to their sources. The claim to go to the sources of the rivers itt inconsistent with both maps, although the Company claimed larger bounds by the one thuu by the other. The Lake of the Woods is marked, and the line they claim by the map ih north of the Lake of the Woods. Chief JvMice Harrison —There does not appear to bo an interval of more than seven years between these two maps. The height of land is marked in some places upon Mitchell's map. The Atloriiey-Oeneraf — Yes ; but the map throughout negatives the idea that the Company then claimed to the height of land. After the Treaty of Utrecht (1713), which gave to the British all lands, etc., "on the Bay and Straits, and which belong thereto," the Company, on the 4th August, 1714, proposed, for the first time, that the Mistassin line should go as far south-westerly as 49° " north latitude . . . and that that latitude be the linut ; " as to how far to the west this line of 49° was to be followed noth'i g was then said. In 1719 and 1750 the Company proposed the line of 49° genei- ally, but both times the proposition was rejected by the French. This line would have given to the Company a boundary greatly more limited than the boundary of the heiglit of land, which began to be claimed nearly three-quarters of a centnry later. It has already been said that the Company could not take advantage of their Charter for the purpose of making any addition to their territory by exploration or settlement after the cession of 17G3. The practical result would be nearly the same if this right should be deemed to have ceased at a somewhat later date, viz., the date of the passing of the Quebec Act, 1774, or oven the date of the Treaty of 1783, for the Company made no further settlement between 1763 and 1783, except Cumberland House ; and it is doubtful whether its locality belongs to the Winnipeg or the Churchill system. Both the Act of 1774 and the Treaty of 1783 obviously require that the Company's southern boundary should be deemod a fixed line, not liable to extension by the mere act of the Company. Theso considerations are submitted as showing that the legal rights of the Company dgi7u, Q.C, for the Province of Ontario, next addressed the Arbi- trators. He said : In the printed documents submitted by the Government of Ontario, throe territories aro mentioned, the localities and limits of which must in some measure bo ascertjMiu'd, in order to arrive at a proper solution of the (|uestion where the bound- aries uf Ontario should lie traced. These territories are, (1) The Indian Territorios ; (2) the Territories claimed by the Hudson's Bay Company, and (3) the Terrltoriex known as Canada or New France. The Indian Tot-ritorics may bt; shortly described as those extensive tracts of Ian 1 lying to the wesward and northward of Canada and the Hudson's Bay Company's Terri- tory, not actually taken posHession of by any civilized government prior to 1763. These Indian Territories are, as wo contend, the lamls described by Sir Alexander Mackenzie in his Travels in iVorth America, published during the early part of the present century, and appear on the map as the Athabascan and Chippawayan Territories. These terri- tories were specially reserved under the sovereignty of the Crown for the use of the Indians by the King's Proclamation of the 7th October, 1763, which established the Provinces of Quebec, East and West Florida, and Grenada, "within the countries and islands ceded to the Crown " by the Treaty of Parii of the 10th February, 1763. That Proclamation dosciibes them us " the lands lying to the westward of the sources of the rivers which fall into the wea from the west and north-west ; " and as " such parts of our dominions and territories as, not having been ceded to us, are reserved to the Indians, or any of thorn, as thoir hunting grounds ;" and again, as " lands which not having been coded to or purchased by us, are still reserved to tho said Indians as afore- said." * They are also doscribed in tho first section of the Act of 1803, which extended the jurisdiction of the Courts of Lower and Upper Canada over crimes and ofl'ences committed within certain parts of North America, in tho following words : — " Indian Territories or other parts of America, not within the limits of the Provinces of Lower or Upper Canada, or eivher of them, or of the jurisdiction of the Courts established in those Provinces, or withia the limits of any civil government of the United States of America." t No more ylearly defined locality is given to these territories in any of tho State Papers relating to North America ; but Lord Selkirk in his Sketch of the British Fur Trade in North ^(yjiej-icffl, published in 1816, refers to them thus: — "This vague term, ' Indian Territories,' has been used without any definition to point out the particular territories to which the Act is meant to apply." "There are, however, exten- sive tracts of country to which tho provisions of the Act unquestionably do apply, viz., those which lie to tho north and west of the Hudson's Bay Territories, and which are known in Canada by tho general name of ' Athabasca.' It was here that the violences, which gave occasion to the Act, were connnitted ; and these are the only districts in which a total defect of jurisdiction described in the preamble of the Act was to be found." | The other territories are those which, prior to the cession of Canada in 1763, formed the possessions of the King of England, and are claimed as the " Hudson's Boy Com- pany's Territory," and tho possessions of tho King of France, and known as " Canada or New France." That portion of this latter territory lying west of the Ottawa and Lake Temiscaming, and of "a line drawn duo north to tho boundary line" or "shore" "of Uucl-wii's Bay" — oxoepting tho portion south of the great lakes, and west to the Mississippi, coded to tho United States in 1783 — now forms tho territory of the Province of Ontario. Tho diplomatic con-ospondonce and state papers, printed in the Book of Documents, show that for a .series of years, prior to 1763, the territory about the shores i)t' Hudson's Bay was a chrouio subject of dispute, of diplomatic negotiation, and of treaties, between the Knglish and French Governments. From 1668 to 1755, the chief subject of discussion botw(^en the French Ministers and their Governors in Canada, and tho English Miiiislt th iind tho French Plenipotentiaries, was what were the territorial limits or bouuduries of tho two Sovereigns about Hudson's Bay. ' v ♦ Book of Documents, p. 26. + Ihid,, p. 5. + Earl Selkirk, Sketch of the fur Trade, pp. 85-0. ,.;»} m IMAGE EVALUATION TEST TARGET (MT-3) %. % 7a 1.0 f^^ 111 I.I 50 2.5 22 2.0 1.8 ■ 1.25 1.4 1.6 < 6" - ► 0>^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 872-4503 328 ARGUMENT OF MR. HODOfNS, Q.C., BEFORE THE ARBITRATORS, 1878 : A,i if 1 Mi ^> if f I*' Ik !^ i ¥. Taking first the question to which Sovereign the southern limits of Hudson's Bay belonged, it will be found that after the Treaty of Utrecht in 1713, the English Ministers, asserted that the whole of Hudson's Bay, including of course the southern shore inland to line 49, belonged to Great Britain. On the other hand, the representatives of the Crown of France contended that their earlier discoveries, their prior possession, and their settlements, bad made that southern shore part of the territory of Canada. Certainly up to 1700, the Hudson's Bay Company conceded to the French the sovereignty of the southern portion of James' Bay south of the Albany River on the west, — or line 53° north latitude.^ But subsequently a gradual advance was made in the territorial claims of the Hudson's Bay Company, as follows : — To the Canute or Hudson River in 52^ N. latitude t : to Lake Miskosinke or Mistoveny in 51|^° N. latitude | ; although no new possessory rights were acquired by Great Britain or the Company in the disputed territory between 1700andl713. After the Treaty of Utrecht of 1713, the claim presented by the Company to the English Government advanced the boundary to line 49° N. latitude. § That Treaty restored — not surrendered — to England " the Bay and Streights of Hudson, together with all Kinds, seas, sea coasts, rivers and places situate in the said Bay and Streights which belong thereto," all of which with the fortresses there erected, " either before or since the French seized the same," were to be given up within six months from the ratification of the Treaty. It further provided that the conterminous limits of • the territories of the two nations, at Hudson's Bay, should be determined within a year by Commissioners to be named by each Government ; so as to fix " the limits between the said Bay of Hudson and the places appertaining to the French — which limits both the British and French subjects shall be wholly forbidden to pass over or thereby to go to each other by sea or land." This Treaty, notwithstanding the exclusion, gave to the French a right to use the shores of the Bay, whatever meaning may be attached to the following words : " It is, however, provided that it may be entirely free for the Company of Quebec, and all other the subjects of the Most Christian Eling whatsoever, to go by land, or by sea, whithersoever they please, out of the lands of the said Bay, together with all their goods, merchandises, arms, and effects of what nature or condition soever," except munitions of war. || The Commissioners were appointed, but never determined the question of boundary. The British Commissioners, inspired by the Hudson's Bay Com- pany, claimed for the first time as the boundary, the line 49° north latitude. 1i This the Commissioners of the French King resisted, contending that the territory claimed was part of Canada. Now at that time the Hudson's Bay Company had not any territorial occupation beyond a few small posts or a widely-scattered fringe of settlements, about three or four, on the shores of the Bay, and from which their trade with the Indians was carried on. This fact appeai-s in the evidence taken by a Committee of the House of Commons in 1 749. Historically the same fact is stated by writers and officers of the Company who dealt with the question from personal knowledge. In Robson's Account of Htidaon'a Bay, published in 1753, it is stated : — " The Company have, for sixty years, slept at the edge of a frozen sea. They have shown no curiosity to penetrate further themselves, and have exerted all their art and power to crush the spirit in others." (p. 6.) Further on, in speaking of the Indians, he shows how the French had gone inland, and had — unmolested by the Company — established forts and trading settlements with the Indians, and which, according to the acknowledged rules of international law, had given the French King proprietary and sovereign rights over the territory thus occupied by his subjects. " The French," he sa^s, " live and trade with the Indians within the country at the heads of the rivers that . un down to the English factories." " In consequence of this narrow spirit of self-interest in the Company, the French have been encouraged to travel many hundred miles overland from Canada, and up many rivers that have great waterfalls, in order to make trading settlements ; and there they carry on a friendly intercourse with the imtives * Book of Documents, p. 128, tibid., p. 129. WJbid., p. 16. ilbid., p. 124. %Iiid., p. 132. Hlbid., p. 132. s, 1878: EARLV FRENCH POS&ESSrON AND ASSERTION OF TITLE TO HUDSON'S BAY. 329 of Hudson's Bay I English Ministers them shore inland isentatives of the kssession, and their Eida. Certainly up sovereignty of the ivest, — or line 53° 16 territorial claims »n River in 62'' N. ; although no new f in the disputed e Company to the le.§ That Treaty Hudson, together Bay and Straights "either before or months from the lous limits of • the \ within a year by Limits between the Ich limits both the )r thereby to go to asion, gave to the be attached to the 36 for the Company hatsoever, to go by Bay, together with ion soever," except r determined the Hudson's Bay Corn- latitude. 1i This itory claimed was itorial occupation |bout three or four, ins was carried on. le of Commons in the Company who of HvdsorCa Bay, , slept at the edge »m selves, and have ) Further on, in had — unmolested idians, and which, the French King subjects. " The •y at the heads of this narrow spirit el many hundred irfalls, in order to le with the imtives at the head of most of the rivers westward of the Bay, even as far as the Churchill River, and intercept the Company's trade." " There are fine improvable lands up the rivers of the Bay, and no British settlements or colonies are made or attempted to be made there." (p. 7.) Bowen's Geography, published in 1747, says: "The bottom of the Bay is by the French pretended to be part of New France ; and indeed, to cross the country from St. Margaret's River (meaning the St. Maurice or the Saguenay) which runs into the river of Canada or St. Lawrence, to Rupert's River, at the bottom of Hudson's Bay, is not above 150 miles. The French have a house or settlement for trade near the southern branch of Moose River, about 100 miles above the factory, where they sell their goods cheaper than the Company do : although it be very difficult and expensive to carry them so far from Canada. . . . The French get all the choice skins, and leave only the refuse for the Company. The French have also got another house (Fort Nemiskau) pretty high up, upon Rupert's River, by which they have gained all the trade upon the East Main, except a little the Company get at Slude River, the mouth of which is about thirty leagues to the north of Rupert's River." And further on, referring to the absence of English trade with the interior, the writer says that " The English who trade here have no plantations or settlements within land, but live near the coast within their forts, in little houses or huts."* Governor Pownall, in his Report on the French posts in North America, states that by their influence with the Indians, the French had been admitted to a landed possession and had become possessed of a real interest in and a real command over the country. + The French Government prior to the Treaty of Utrecht claimed the whole of that territory ; and after the Treaty they continued to claim it as part of " Canada." They contended : — " The term ' restitution,' which has been used in the Treaty, conveys the idea clearly that the English can claim only what they have possessed ; and as they never had but a few establishments on the sea coast, it is evident that the interior of the country is considered as belonging to France."J The French King, Louis XIV.^ in a letter to M. De la Barre, dated the 5th August, 1683, claimed that the actual possession of the territory about the Bay had been taken in his name prior to the possession of the English. His letter states, " I recommend you to prevent the English, as much as possible, from establishing themselves in Hudson's Bay, possession whereof was taken in my name several years ago ; and as Col. d'Unguent (Dongan) appointed Governor of New York by the King of England, has had precise orders on the part of the said King to maintain good correspondence with us, and carefully avoid whatever may interrupt it, I doubt not the difficulties you have experienced on the side of the English will cease for the future."|| The facts connected with the right of possession then claimed by the French King,, will be found in a letter from M. Talon to the King, dated Quebec, Nov. 2, 1671, in which he states that he had despatched Father Albanel and Sieur de St. Simon to Hudson'a Bay.§ Then, further on, the result of their journey is thus described : " Father Charles. Albanel, Jesuit Missionary, employed in the instruction of the Indian nations and Montagnais, and Paul Denis de St Simon, commissary, and deputed by M. Talon,. Intendant of Canada, to take possession in the King's name of the countries, lands, lakes and rivers, which lie between the b^nks of the River St. Lawrence as far as the shores of the straits of the Fretnm Davis, including Hudson's Bay, and adjacent lands and seas, being at Miskaouto, Nagasit, places where the Indians meet to trade, and at the River Nimiskau (Rupert River) which rises in Lake Nemiskau, the residence of Capt. Kiaskou, Chief of all the Indians inhabiting the North Sea and Hudson's Bay, and on the 9th of July, 1672, planted the Cross, with the Captain's consent, and in His Majesty's name set up the arms of France, on the said Lake Nemiskau, at the mouth of the river of the same name. On the 19th of the same month, being at the River Minahigouskae, Sossibahourat, cajjtain of the Mistasirenois, having consented, they did set up in like manner the said arms, after having turned up a sod of earth, pulled up some grass, planted *Bookof Documents, p. 371. +76td., p. 380. J/6«d., p. 372. II J6»d., p. 106. §/6id., p. 104. 4 ' '> i ' I 330 ARGUMENT OF MR, HODQINS, Q.C., BEFORK THE ARBITRATORS, 1878 : some shrubs pnd performed other necessary ceremonies. They made known to the Indian nations, in their language, that they subjected them to the French nation, and that they should acknowledge in future King Louis XIV., for their Monarch and Sovereign Lord. In witness whereof, the said minute was signed by Father Albanel, Sieur de St. Simon, and by Sebastian Provero ; and the chiefs of each Indian nation, to the number of eleven, made their hieroglyphical marks." A similar surrender by the Indians on the west side of Hudson's Bay took place at Sault Ste. Marie. '^ In these statements we have not only the actual taking possession, but we have that act of Indian surrender which has been recognized by the Crown of England for years j the actual surrender of the Indian terri- tory by a document signed by the chiefs of those Indians who were the occupants of the territory about Hudson's Bay, acknowledging that they surrendered the territory to the King of France, in the same manner as the Indian territories have been and still are surrendered to the Crown in Canada. The Treaty of Utrecht did not surrender any portion of the territory of Canada or New France, it only restored the Bay and Straits of Hudson ; therefore whatever should be ir.cluded in that description was ceded to the Crown of England. The English could not claim more territory than that named in the Treaty, and as " Canada " was not named or ceded, no part of it, as such, became the property of the Crown of England. 'J'he word used by the French was reatitura. The rule of interpretation in regard to such Treaties is, that where the Treaty is alleged to be capable of two interpretations, that which is most favourable to the ceding power shall govern. Such was the decision of the United States Supreme Court in the case of the United States vs. Arredondo,\ In that case there w. 370 OHS. 1878 : MKROER OF FRENCH SOV'TY. IX BNOLIHH CROWN NOT TO ENURE TO H. B. CO. 331 1 known to the Indian lation, and that they and Sovereign Lord. ,, Sieur de St. Simon, the number of eleven, ians on the west side bements we have not render which has been ir of the Indian terri- ! the occupants of the il the territory to the ,ve been and still are erritory of Canada or efore whatever should I. The English could inada " was not named f England, 'J'he word egard to such Treaties )ns, that which is most n of the United States |- In that case there Creaty ; but the Court ceding power, should a is a deed of the ceded relates to the cession ; antor ; the Treaty was Ject depended upon his [and the thing reserved, ,e clearly expressed and a fortiori in public— that the French King [on the Bay and Straits (. The French King than the words of the id by the French Coni- is, he reported : "iThe ludaon's Bay, therefore I for one cannot restore that at the time of the it and Bay of Hudson, >me time before, the that it is understood loir of M. D'Auteuil, of restitution ; let the they will reatoro iL to »ut any appearance of of the said Bay and jrdor of the seu, while It ceased to traverse all li of all the places and (river, or lake, belongs to Hudson's Bay, because if all the rivers which empty into this B»y, or which com- municate with it, belongs to it, it might be said that all New France fceiunged to them,— the Saguenay and the St. Liawrence communicating with the Bay by the lakes. That this being incontestable, it is for France to regulate the limits in this particular quarter, and that of the little which she may cede, she will always cede that which is her own, as the English cannot pretend to anything except a very small extent of the country adjoining the forts which they have possessed at the foot of the Bay."* And consistent with these views, it appears that after the Treaty the French erected a fort at the head of the Albany River, t The Hudson's Bay Company claimed that the boundary should be at the 49th parallel, while the French insisted it should be at the 55th parallel. The object of the Company being, as stated by Chief Justice Draper, " to establish an arbitrary boundary and to secure the fur trade from the French." | The negotiations between the (/ommissioners appear to have ended about 1720, probably because during that year several of the chief Ministers of State whose names appear in these papers — notably Mr. Secretary Craggs, the Earl of Sunderland, het Chancellor of the Exchequer, and others— became implicated in corrupt transactions with the South Sea Company, which caused their expulsion from Parliament the following year. Their successors in the Government appear to have allowed the negotiations to lapse. " Nothing was done," wrote the Duke de Ghoiseuil in 1761. The next chapter.s in this history are the capture of Quebec and the Treaty of Paris of 1763, by which Canada was ceded to England. By the Articles of the Capitulation of Montreal between General Amherst and the Marquis de Vaudreuil in 1760, and the Treaty of 1763, France ceded to England "in full right, Canada and all its dependencies, and the sovereignty and property acquired, by treaty or otherwise," and declared that "aline drawn along the middle of the River Mississippi " should be the limits of the British and French Territories. Neither in the capitulation between General Amherst and the Marquis de Vaudreuil, nor in tlie Treaty of 1763, is there any reference to the territories about Hudson's Bay. But I take this ground now : By this capitulation, by this treaty, the English King succeeded to the sovereignty, to the prerogative rights, and to the assertion of title, over the territories which the French King- claimed about Hudson's Bay. In addition to his own prerogatives as King of England, he became clothed with the prerogatives which had pertained to the King of France aq the Sovereign over this territory ; and this double prerogative was to be exercised in such a way as would best maintain the public right of the people to whose allegiance he had succeeded. The claim to the territories about Hudson's Bay had been in contest between the King of France and the Hudson's Bay Company. It now became a question of territorial right between the King of England, as representing the possessory rights and sovereignty of the King of France, on the one side, and the Hudson's Bay Company on the other. Succeeding, therefore, to the French sovereignty over thi.s territory and people, the Crown of England had the right to claim as against the Hudson's Bay Company, and all others, the French sovereignty, as if the French authority had not been suppressed, and as if the French authority was itself seeking to enforce its territorial claims. Viewed in the light of this claim of the double sovereignty which it thus had, the suVisequent proceedings of the Crown of England in regard to the boundaries of Upper Canada, should weigh with the Arbitrators in determining what effect and what interpretation should be given to these subsequent proceedings as political acts of stute. The interpretation, I take it, of this double sovereignty, must be that which was the largest and most advantageous for the public rights of the Sovereign and people. This doctrine of succession to sovereign rights has received judicial iulorpretatiou in regard to the property and territory, and sovereign lights, of a displaced power. And the judicial interpretation which I shall quote is cited with approval in the last edition of Whsatou on Intcrnatiotial Law, as being a fair and proper exposition of public law on that question. In the case of the United States vs. McRae g, Vice-Chancellor (now Lord Justice) James, says : " I apprehend it to be the I-. ; * Hook of Documents, p. :W8. t Ibid,, p. Mi. i Lttw llepurta, 8 Kiiuity, 7"). t Ibid., p. 242. ?^ 332 ARGUMENT OF MR. HODGl.'S, Q.C., BEFORE THE ARBITRATORS, 1878 : ill ^ii^y- clear, public, universal law, that any Government which de facto succeeds to any other Government, whether by revolution or restoration, conquest or re-conqnest, succeeds to all the public property, to everything in the nature o£ public property, and to «^U rights in respect of the public property of the displaced power, — whatever may be the naaire or origin of the title of such displaced power." " But this right is the right of succession, is the right of representation ; it is a right not paramount but derived, I will not say under, but through the suppressed and displaced authority, and can only be enforced in the same way, and to the same extent, and subject to the same co-relative obligations and rights, as if that authority had not been suppressed and displaced, and was itself seeking to enforce it." The same doctrine had been previously recognized in England, in the case of the King oj the Two Sicilies vs. Wilcox,* United States vs. Prioleau,^ and in Canada in the case of United States j. Boyd. J The Supreme Court of the United States has in various cases affirmed the same doctrine : that the new government takes the place of that which has passed away, and succeeds to all the rights and property of tho original sovereign. Now, with reference to the alleged claims of the Hudson's Bay Company to the lands south of Hudson's Bay, to line 49°, it may reasonably be argued that there could be no estoppel between the Crown of England, clothed with the double sovereignty of the French and English Crowns, over this disputed territory, and the Hudson's Bay Company. Whatever representations and claims the Hudson's Bay Company may have induced the English Government to make prio" to the cession of the territory, would not estop the Crown of England, having acquired the sovereignty which France had held, in any con- tention between it and the Hudson's Bay Company. Chief Justice Harrison — I fancy that Great Britain could not have conferred on the Hudson's Bay Company any greater rights than Great Britain at the time of the grant possessed. Mr. Hodgins— The cession of the disputed territory would not accrue to the Hud- son's Bay Company. Chief Justice Harrison — Not in the absence of an express grant. ' Mr. Hodgins — We say that this territory about the south shore of Hudson's Bay had been surrendered by Indian treaty to the Crown of France prior to the Hudson's Bay Company's claim of title, and had been occupied and thenceforward claimed as French territory up to a period after the Treaty of Utrecht, and therefore could not have been granted to the Hudson's Bay Company. And that there would be no estoppel operating in favour of the Hudson's Bay Company by reason of the subsequent acquirement of that territory by the Crown of England in 1763. We come next to the King's Proclamation of the 7th October, 1763, under which the Provinces of Quebec, East and West Florida, and Grenada, were established. In that Proclamation there seems to be an express reservation. The Proclamation is not printed in full in Book of Documents, but it will be found in a work which I obtained from the Education Department of Ontario, in which the terms of Capitulation, the Treaty of Peace, and the Pi-oclamations in regard to the earlier establishment of Quebec and the other Provinces, are collected. That Proclamati m reserves out of the extensive and valuable acquisitions in America secured to the Crown by the Treaty of Paris, other ter- ritories than those placed under the four Governments then constituted, viz., a territory not yet ceded to the Crown, which, I assume, included the Indian territoiies before refer- red to, and a territory beyond the sources of the rivers which fall into the Atlantic. It was assumed at that time, and some of the maps confirmed the assumption, that Lake Winnipeg was connected with Pigeon River, and so through the greut lakes with the St. Lawrence. The Crown therefore reserved for future disposition th= territories referred to, and expressly limited the jurisdiction of the Governors of the new Provinces in a way markedly different from the commissions which issued subsequently under the Quebec Act : " That no Governor or Commander-in-Chief do presume, upon any pretence what- ever, to grant warrants of survey, or pass any patents for lands beyond the bounds of their respective governments, or for lands beyond the heads or sources of any of the rivers # 1 Simons N.S., 301. t 2 'iemniing & Miller, ti&i. X 16 Grant's Chancery, 138. EFFECT OF THE QUEBEC ACT, 1774. 333 r^rM lofc accrue to the Hud- which fall into the Atlantic Ocean, from the weat or north-west, or any lands whatever, which, not having been ceded to or purchased by us, are reserved to the Indians." The next document in point of time is the Quebec Act of 1774. The Attorney- General has left me little to add in construing that Act, and he has shown that the words " during His Majesty's pleasure," preserved the future exercise of the Royal prerogative. The Dominion contends for the most limited construction which can be placed upon the term " northward " in that Act — that it means " due north." The rule is otherwise stated by the Supreme Court of the United States : " In great questions which concern the boundaries of States — when great natural boundaries are established in general terms with a view to public convenience and the avoidance of controversy — the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplex- ities which may sometimes influence contracts between individuals."* But apart from the construction placed by the Crown upon that word " northward," immediately after the passing of the Act, we find in the preamble of the Act, and on the ground within the disputed territory — that is, between the line drawn "due north" from the junction of the Ohio and Mississippi, and the line of the " banks of the Mississippi River" — irresisti- ble arguments against the contention of the Dominion. Now, within that disputed ter- ritory between the lines referred to, there were, at tlio time, several well-known settle- ments and trading forts of the French, as shown on the maps : Forts Kaministiquia, St. Pierre, St. Charles, La Pointe or Chacouamicon, St. Croix, Bonsecour, St. Nicholas, Crevecoeur, St. Louis, De Chartres, and the settlements on Lake Superior, west of this " due north " line. The preamble of the Act shows that the intention of Parliament was to extend civil government over French settlements left out of governmental control ; for after reciting the Proclamation of 1763, it says: " Whereas, by the arrangements made by the said Royal Proclamation a very large extent of country, within which there were several caloiiiss and »eti glance cursorily at the evidence in regard to the eav.^ HWttlomeuts ; althc -gh 1 di> not conceive it to have very much bearing on the case, stiM, as it das been pressed on the Arbitrators by the Attorney-General so vury forcibly, I consider it necessary to view the facts as they appear from the historical documents. France claimed in 1685, and in 1671 — 1671 to 1685 — that she was entitled to the whole North- West, including what is claimed as the Hudson's Bay Territory. That claim was set up tir.st by Do Calli^res, when writing to the authorities in France in 1685, and afterwards.* His memoir was followed by the Marquis de Denonville's, when communi- cating with the same Oovernment. It was stated in that memoir just as has been asserted by the Attorney-General, and that memoir is set forth in the New York Historical Docu- ments, Vol. 9, 287, and also at page 304 of the same volume. But in that statement of M. de Denonville, he admits that documentary evidence could not even at that time be adduced in support of those visits having been made to Hudson's Bay. His words are : — " 1 annex to this letter a memoir of our rights to the entire of that country, of which our registers ought to be full, but no memorials of them are to bo found."! When we come to examine into the facts of these asserted voyages, it will be found that not one of them was made until the voyage of Albanel, in 1672. It is asserted that Jean Bourdon, the Attorney-General, in 1656, explored the entire coast of Labrador and entered Hudson's Bay. Now, there is no record whatever of that — nothing whatever to support it ; but there is a record in 1655, that Sieur Bourdon, then Attorney-General, was authorized to make a discovery of the Hudson's Bay, and it will be seen hereafter what he did in order to comply with that arril of the Sovereign Council. He made an attempt: he started on his voyage on May 2, 165/. His statement is contained on page 3 of the Dominion Case. He started on May 2, and returned on August 1 1 of the same year. My learned friend had to admit that there was no possible chance of his making a voyage to Hudson's Bay between those dates. The account of it, as given ir the Relations of the Jesuits of 1658, page 9, is this : — "The llth (August) there appeared the barque of M. Bourdon, which having descended the Grand River on the north side, sailed as far as the 55th degree, where it encountered a great bank of ice, which caused it to return, having lost two Hurona that it had taken as guides. The Esquimaux savages of the north massacred them, and wounded a Frenchman ' with three arrows and one cut with a knife." Jean Bourdon was of the Province of Quebec ; he was well known to the Jesuits and trusted by them, and it la stated in the memoir that he went with Father Jogues on an embassy to Governor Dongan, then Governor of the Province of New York. | The other statement is that Father Dablon and Sieur de Vallifere were ordered in 1661 to proceed to the country about Hudson's Bay, and that they went thither accord- ingly. Now, all the accounts agree in the statement that Dablon never reached Hudson's Bay. In Shea's Charlevoix, Yol 3, pp. 39, 40, it is stated that Fathei Dablon attempted to penetrate to the Northern Ocean by ascending the Saguenay. Early in July, two months after they set out, they found themselves at the head of the Nekauba River, 300 miles from Lake St. John. They could not proceed any farther, being warned of the approach of the Iroquois. In the New York Historical Documents there is a note by the editor of these papers on page 97, which gives an account of the Rev. Father Dablon from the time of his arrival in Canada in 1665. He was immediately sent missionary to Onondaga, where ho continued, with a brief interval, until 1658. In 1661 he set out overland for Hudson's Bay, but succeeded only in reaching the head waters of the Ne! miba, 30U miles from Lake St. John.§ * [The claim of France, from the firat settlement of Canada, was that its boundaries extended on the wen to the Pacific Ocean, and on'the ncTth to the Arctic. (See L'Escarbot, quoted p. 10, arttc.)— G. E. L.] + [See note ||, p. 279, ante.—G. E. L.] X [See, as to the actual voyage which Bourdon made into the Bay, note *, p. 278, antt,—G. £. L.] § [See note X, P. 278, ante.—G. £. L.] h 'i : h I ilirlil *¥ W- wm .u: 1^: 340 ARGUMENT OF MR. l,TACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878 ; An assertion is also made that some Indians came from about Hudson's Bay to Quebec in 1 663, and that Sieur la Couture, with five men, p'.oceeded overland to the Bay, possession whereof t\ey took in the King's name.* There is no account of this voyage in Charlevoix or in the Relations of tJut Jesuits; and the authority relied npon is the same as my learned friend relies on as being furnished for the Marquis de Denon- ville, to which I have already referred as being untrustworthy. M. de Calli^res in his memoir, written in 1685, was twenty-one years after the time of which he writes. It is asserted in the memoir thftt Couture made the 'urney to the Hudson's Bay for the 6/ ■ -ih.. with the fact that the Governor of record in any shape to which they a8ea8ion in His Majesty's I, and to draw up a prod* J established in usurpation lithout military estabhsh- ly the Height of Land and f a permanent settlemeni military force overland, admit that there is not so much in his view as he thought thei .: was at the time he wrote his report. In a note on page 129 Mr. Mills says : "An attempt has been made, on the strength of certain passages in the Relations dea Jesuites, to throw doubt on the authen- ticity of certaiT' of the occurrences mentioned in the memoirs of M. de Callieres and the Marquis de Denonville. It is not at all likely that either of these— the one being Governor of Montreal, and the other Governor-General of New France, having access to the official documents, and writing within a short time of the date of the events narrated —could by possibility be mistaken." Now, De Callieres was writing twenty-one years after the events ; Denonville was writing twenty-two years after them, and relying upon the very identical memoir that De Callieres had written, and which he said there was not a document to support. If there was not a document on which they could rely, how is it possible that any reliance could be placed upon their statements just at that particular juncture, when it was necessary for them to find some argument upon which they could defend their having sent the French into Hudson's Bay and destroyed these forts t For m 1686 the Marquis de Denonville had sent two or three companies of Frenchmen to Hudson's Bay and taken three forts in one year ; and it was necessary that they should account for these transactions to the Government of France. I will show that the Hudson's Bay Company were at that very time making representations to their Govern- ment in regard to the conduct of the French, and to the governors of the French. I think that this is all I need say in regard to Sieur Duquet's voyage. The fact of D'Argenson having left Canada two years before his order is said to have been iven to Duquet, shows that the whole thing was, if not a fabrication, a mistake. I am not going to say that it was a fabrication ; I am not called upon to account for it in any way ; I am only called upon to point out that there is no authority for it ; and the whole circumstances go to show that the transaction could not have transpired as it is set forth by the governors at that day. There has been an egregious error committed in some way. That order could never have been given, because we have the most unmistakable evidence that D'Argenson was not in this country then.* When we come to the voyage of Albanei and St. Simon in 1671, which we admit was made, we find in a letter of M. Talon to the King, dated Quebec, November 2, 1671, these words : "Three months ago I despatched with Father Albanei, a Jesuit, Sieur de St. Simon, a young Canadian gentleman recently honoured by His Majesty with that title. They are to penetrate as far as Hudson's Bay, draw up a memoir of all they will discover, drive a trade in furs with the Indians, and especially reconnoitre whether there be any means of wintering ships in that quarter." That is what they were to do ; so that if the French Government of the day had prior to that caused visits to be made to Hudson's Bay in the way in which they pretend some years after that to state, all that knowledge and information would have been acquired, and there would have been no necessity for sending a priest there in order to make that discovery. If those statements of the earlier alleged voyages had not been made by the duly constituted authorities of the Government of the country, I think this is almost all the answer it would be needful to make. But Father Albanei says, at page 66 of the Relations for 1672 : " Hitherto this voyage had been considered impossible for Frenchmen, who, after having undertaken it already three times, and not having been able to surmount the obstacles, had seen themselves obliged to abandon it in despair of success. What appears as impossible is found not to be so when it pleases God. The conduct of it was reserved for me, after eighteen years' prosecution th vt I had made, and I have very sensible proofs that God "eserved the execution of it for me, after the signal favour of a sudden and marvellous, not to say miraculous, recovery that I recoived as soon as I devoted myself to this mission, at the solicitation of my superior, and in fact I have not been deceived in my expectation ; I have opened the road in company with two Frenchmen and six savages," This shows that so far as the Jesuits were concerned, the pioneers of the country, they had never heard of anyone having penetrated to Hudson's Bay before them. The very letter that M. Talon was writing to the King shows that he had never heard * [For the answers to these objections as to the reliability of the mimoiru of Callieres and Denonville^ »nd the authenticity of the events related in them, see notes to the Dominion Case, pp. 278-280, an(«.— O.E.L.] 1 342 ARGUMENT OF MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878 ; UBes, and seized their edations ; that in the pert Fort, and Moose (88, and the Company '8 in referring to the id 5 of the Dominion Martin Frobisher, in X and Thomas James, isellieres and Radisson the Assiniboines, and to Quebec after their uct trading vessels to Ehe whole transactions st as they transpired, e project was looked General Bourdon, the teen years before, and eturned from there, it roject was chimerical.t merely says that their the project was looked there he had been in caching Hudson's Bay se, but they refused to issador at the Court of those who afterwards pany, employed Des brt Rupert in 1667 or parties who sent out nglish were first, both n the English were not rs. The whole of the by the Indians them- into the country some ited into the interior. teen discovered and taken But as soon as the English commenced occupying the Hudson's Bay Territory ; as soon as they were intercepting and taking possession of the trade that had formerly belonged to the French merchants, then those who were interested took steps to secure at Hudson's Bay the trade which the English were intercepting. The memoirs are full of statements as to the venality of those connected with the French Government in Canada. It is stated that the Governors-General themselves were in league with certain merchants and traders for the purpose of getting possession of as much of the trade as they possibly could, and that none except certain favoured individuals could get licenses from the Governors. The people stated themselves that they were persecuted by the emissaries of the Government, who sought to prevent them going into the interior ; and thus the Coureurs dea Boia were prevented from going into the interior of the country, and cutting off the trade which would otherwise have gone to Montreal, and which the officials were bound to participate in if they could. That is the reason why the French Governors here thought it necessary to send these memoirs to the Court of France, Now, having found the English making discoveries, entering into possession, and building forts upon Hudson's Bay, the question suggests itself — a question which ought to be determined — what extent of territory the King of England, as represented by the Hudson's Bay Company or the discoveries of that Company — what extent of territory the King of England was entitled to by this discovery, possession, and occupation. I do not think there can be a doubt about it. Most of the authorities on the point are referred to on page 6 of the Dominion Case. It is laid down in Vattel that " navigators going on voyages of discovery furnished with a commission from their Sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation ; and this title has been usually respected, provided it was soon after followed by real possession." Here we have these people sent out under the sanction of the King and of Prince Rupert to make a discovery of Hudson's Bay. They did make that discovery, and entered into possession ; and I am going to show to the Commissioners, no matter what the occupation was, that under the law of nations as interpreted then and since by the highest authorities, they were entitled to the whole of the lands watered by the streams flowing into Hudson's Bay and James' Bay ; and more than that, it will be apparent that the Hudson's Bay Company and the English Government were claiming that the whole of these lands belonged to England. Vattel says also : " When a nation takes possession of a country, with a view to settle there, it takes possession of everything included in it, as lands, lakes, rivers, etc."* The next authority I shall quote is Phillimore. He says : " In the negotiations between Spain and the United States respecting the western boundary of Louisiana, the latter country laid down with accuracy and clearness certain propositions of law upon this subject, and which fortify the opinion advanced in the foregoing pai-agraphs. ' The principles (America said on this occasion) which are applicable to the case are such as are dictated by reason and have been adopted in practice by European Powers in the discoveries and acquisitions which they have respectively made in the New World. They are few, simple, intelligible, and at the same time founded in strict justice. The first of these is, that when any European nation takes possession of any extent of sea coast, that possession is understood as extending into the interior country to the sources of the rivers emptying within that coast, to all their branches, and the country they cover, and to give it a right, in exclusion of all other nations to the same. (See Memoirs de I'Am^rique, p. 116.) It is evident that some rule or principle must govern the rights of European Powers in regard to each other in all such cases ; and it is certain that none can be adopted, in those to which it applies, more reasonable or just than the present one. Many weighty considerations show the propriety of it. Nature seems to have * [Frunce, long before the English had obtained a footing in Hudson's Bay, was, by consent of the natiTus, in possession of the sovereignty, and monopolized the whole trade up to the shores of the Bay. The country being unfit for cultivation or settlement, she could utilize this poasession in no other way ; but it was none the less an integral part of her Canadian dominion. Vattel lays down the rule that if a nation " has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not maite actual use of them, those places still belong to her ; she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of them." (Vattel, Book 2, chap. 7, s. 86.)— G. E. L.] ^^i M'i Ji fl m !i : J 344 ARGUMENT OF MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878 ; destined a range of territory so described for the same society, to have connected its «everal parts together by the ties of 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 contrasted scope of acquisition ; but a slight attention to the subject will demonstrate the absurdity of either. The latter would be to restrict the rights of an European Power who discovered and took possession of a new country to the spot on which its troops or settlement rested— a doctrine which has been totally disclaimed by all the Powers who made discoveries and acquired possessions in America.' " (Philli- more's International Law, 2nd ed., vol. 1, pp. 277-8-9.) I wish to draw the Arbitrators' particular attention to this expression in regard to restricting the rights of European Powers, etc., to the spot on which troops or settlement rested, because in dealing with the Treaty of Ryswick, the argument has been advanced that all which was left to the English after that treaty were the settlements in the imuiediate neighbourhood of the fort or two then in their nossession : that is, the territory immediately round about, and nothing more ; although, as I will afterwards show, I do not think that the Treaty of Byswick has anything to do with the discussion of this case. At page 223 in the discussion of the Oregon question. Dr. Twiss says : " In the nego» tiations antecedent to thj Treaty of Utrecht, it was expressly urged, in support of the British title to the territories of Hudson's Bay, thai M. Frontenac, then Governor of Canada, did not complain of any pretended injury done to France by the said Company's settling, trading, and building forts at the bottom, of Hudson's Bay, nor made pretensions of any right of France to that Bay till long after that time."* (Anderson's History of Commerce, A.D. 1670, vol. 2, page 516.) He goes on to say : " In other words, the title which this charter created was good against other subjects of the British Crown by virtue of the charter itself." That is what Dr. Twiss lays down as a proposition which he aays cannot be controverted — that us regards the title created by the charter, it was good against other subjects of the British Crown by virtue of the charter itself ; so that in virtue of what has taken place within the last few years it must be good as against the Province of Ontario. He continues : " But its validity against other nations rested on the principle that the country was discovered by British subjects, and at the time of their settlement was not occupied by the subjects of any other Christian Prince or State ; and in respect to any special claim on the part of France, the non-interference of the French Governor was successfully urged against that power as conclusive of her acqui- escence."* That is laid down by Dr. Twiss,and it is a proposition which has been assented to by Phillimore in the quotation just read. The quotation which was made use of by my learned friend the Attorney-General from Twiss' Oregon was not attempted to be controverted by the English authorities at the time of the Oregon difficulty. Mr. Mills, at page 182 of his Report, says : "It can hardly be contended that because the Hudson's Bay Company had established certain posts and forts at the mouths of some of the rivers that empty into the Bay, they could rightfully claim all the country drained by those rivers and their tributaries. A pretension of this kind was put forward by the United States to the whole of Oregon, because of the discovery of the Columbia River by Captain Gray, but it was expressly repudiated at the time by Great Britain. No such rule is recognized by writers on international law." Now, the rule of law as recognized by international writers and Great Britain was different from that put forward by Mr. Mills- What was stated by Twiss and what is asserted here is, that it depended upon other con- siderations. Sir Francis Twiss, in his discussion on the Oregon question, at page 300, states that " Great Britain never considered her right of occupancy up to the Rocky Mountains to rest upon the fact of her having established factories on the shores of the Bay of Hudson, i.e., upon her title by mere settlement, but upon her title by discovery, confirmed by settletnenta in which the French nation, her only civilized neighbour, acqui- esced, and which they subsequently recognized by treaty."\ That is the ground upon which Dr. Twiss puts it, and it is the groundwork of the whole international law as stated by *rAIbaneI and St. Simon's expedition of 1671 to take renewed poBsession, already referred to, was by way of protest against the Company's presence in the Bay. (Book Arb. Docs., p. 105.)— Q. E. L.] t[See note *, p. 282, ante.— G. E. L.] ORS, 1878 ; have connected its etached them from such discovery and slight attention to d be to restrict the new country to the ti totally disclaimed Lmerica.' " (PhUli- ession in regard to ;roopa or settlement has been advanced settlements in the ;hat is, the territory ;erwards show, I do cussion of this case, ays : " In the nego- , in support of the , then Governor of the said Company's or made pretensions aderson's History of ther words, the title ish Crown by virtue sition which he aays sharter, it was good jr itself ; so that in good as against the r nations rested on and at the time of ian Prince or State ; •interference of the usive of her acqui- 1 has been assented was made use of by ot attempted to he fficulty. Mr. Mills, Bcause the Hudson's some of the rivers •y drained by those ward by the United ia River by Captain No such rule is as recognized by ward by Mr. Mills- ided upon other con- estion, at page 300, up to the Rocky on the shores of the title by discovery, w neighbour, acqui- ground upon which lal law as stated by Bady referred to, was by ,06.)-G. E. L.] EXTENT OF TERRITORIAL CLAIM OP H. B, CX). UNDER THEIR CHARTER. 345 Phillimore in the quotation that I have already read. The principle is stated in Vattel in the reference I have made ; is fully recognized by Great Britain and the United States ; and is fully assented to by Twiss and Phillimore. In reference to the middle distance, my learned friend quoted from Twiss, 148. At 173 and 177, Twiss treats of this middle distance in regard to this very territory. He says : " Again, in the case of a river, the banks of which are possessed by contiguous States, the presumption of law is, that the Thalweg, or mid-channel, is the mutual boun- dary ; since rivers are, in the case of the conterminous States, communis juris, unless acknowledged by them to be otherwise, or prescribed for by one of the parties. ' The general presumption,' observes Lord Stowell (in the Twee Gebroeders, 3 Rob., p. 339), certainly bears strongly against such exclusive rights, and the title is matter to be estab- Ushed on the part of those claiming under it, in the same manner as all other demands are to be substantiated, by clear and competent evidence.' " A title by contiguity, as between conterminous States, would thus appear to be a reciprocal title ; it cannot be advanced by one party, excepting as a principle which sanc- tions a corresponding right in the other. The practice is in accordance with this. Thus, the United States of America, in its discussion with Spain respecting the western boundary of Louisiana, contended that ' whenever one European nation makes a discovery, and takes possession of any portion of that continent (i.e., of A iierica), and another afterwards does the same at some distance from it, where the boundary between them is not deter- mined by the principle above mentioned (i.e,, actual possession of the sea coast), the middle distance becomes such a course.'" (British and Foreign State Papers, 1817-18, p. 328.) Now, here we have taken possession of the sea coast, so that the question of middle distance, or reaching the territory by another route, cannot come in question at all ; because, as contended by the United States and Great Britain in the discussion of this question, they have always claimed, and the Hudson's Bay Company have always claimed, that the territorial rights extended to the height of land on all sides ;* and I will point out to the Commissioners that as early as 1709, before the Treaty of Utrecht, the Hudson's Bay Company were claiming on the east and south the very line that ran from Griming- ton's Island down through Lake Mistassinnie. Now, it is necessary to look at the Com- pany's grant in different aspects. The charter will be found in Ontario Documents, 29, 30. What does the King grant to the Hudson's Bay Company ^nder the name of Rupert's Land 1 First is granted the sole trade and commerce of all those seas, bays, lakes, rivers, creeks, etc. Then the Company are created the " absolute lords and proprietors of the same territory, limits, and places," etc., etc., in free and common socage, with power to erect colonies and plantations, etc. So that here was a proprietary government created by the charter. You will see by the charter that the Company had the power to adjudge, to create colonies — the power to do everything, apparently, which any government ought to be called upon to do. And I refer to the fact of its being a proprietary government because it will be necessary to consider that in relation to the bounds which my learned friend the Attorney- General says could be created by the King, notwithstanding that the boundaries might have been limited by the Act of Parliament. The charter is very wide. Although Sir Vicary Gibbs, who gave an opinion in 1804, thought the charter void because it purports to confer upon the Company exclusive privileges of trade, he does not say anything about the proprietary rights ; he does not say anything about the right of the King to grant a charter the same as was granted in Pennsylvania ; he does not say any- thing about the right to make a territorial grant ; he merely gives the opinion that the charter is invalid because it grants exclusive privileges of trade and thereby creates a monopoly, which they say the King could not grant without the sanction of Parliament. The next opinion in point of time is that of Sir Arthur Pigott, Serjeant Spankie, and Lord Brougham, 1816 ; and the next one is that of Mr. Edward Bearcroft in 1818. In these two opinions they do not for a moment say that the charter is invalid, but they * [On the contrary, Chief Justice Draper in his elaborate Memorandum of 6th Ma^, 1857 (see ante, p. 37), came to the conclusion that "the claim to all the country the waters of which ran into Hudson's Bay, was not advanced until the time that the Company took the opinions of the late Sir Samuel Komilly, Messrs. Cruise, Holroyd) Scarlett and Bell," which was iu 1812-14. The cases on which these opinions were given have never been produced. — G. K, L.] 'M -tip Wi i ill ;1 346 ARGUMENT OF MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878: (1 1 k1 ' hv > I Hi k say that the Crown had no right, and could not of itself create a monopoly, and therefore as to that part of the charter it might be invMid ; but as to the rest of the charter, they say the only part of it to which a question could be raised was in regard to the extent of territory covered by the charter. I think I will be able to show the Commissioners that the charter was always considered by the British Government as extending to the full length asserted now by the Dominion, and as was asserted by England shortly after the Treaty of Utrecht. The Attorney-General urged with a great deal of force that the opinions given by the law officers of the Crown in 1850 and 1857, were given upcri statements furnished by the Hudson's Bay Company which were ex parte, and that, therefore, the Commissioners are not bound by these opinions. I do not pretend that Ontario is bound by any of these opinions ; that is not asserted by the Dominion ; but the Province of Ontario is put into a position which I think the Province is not able to escape from by the very fact of the proceedings referred to having been instituted, and that the law officers of the Crown stated at that time that the Hudson's Bay Company were entitled to everything that they claimed ; and I am going to point out to the Commissioners what the claims were, ."^nd upon what these claims were based. The claim as furnished by the Hudson's Bay Company will be found in full in Ontario Documents, 288-90. That claim was founded — upon what t Upon a document prepared by the Crown itself, and furnished to these very counsel as the title upon which they were to rely ; and the law officers of the Crown, looking at that document, at the charter itself, could see for themselves, and were giving an opinion in regard to a legal dot ument. The Company import into their statement a part of the charter, and set out by s, ying in the words of the charter what the King had gi-anted them ; and then they say that they "have always claimed and exercised dominion as absolute proprietors of the soil in the territories understood to be embraced by the terms of the grant, and which arc more particularly defin-jd in the accompanying map." The map is an exact counterpart of what was used in 1857, and in that map is set forth all that they claim. Chief Justice Harrison — Each time that they were called upon to give their claim, they appear to have extended their boundaries. Mr. MacMahon — They were determined to claim enough, lik( my learned friend the Attorney-General, who started out with claiming the line of the Rocky Mountains. They furniched that claim to their grantors ; they were furnishing that claim to the Crown, and it was submitted to the Crown officers, who gave an opinion in regard to it, and that opinion I have had copied in the Dominion Case, at page 7. It was given by Sir John Jervis and Sir John Romilly — of whom one became Chief Justice of the Common Pleas, and the other Master of the Rolls. In that opinion, which is addressed to Earl Grey, they say : — " In obedience to your Lordship's command, we have taken these papers into consideration, and have the honour to report that, having regard to the powers in respect to territory, trade, taxation and government, claimed by the Hudson's Bay Company in the statements furnished to your Lordship by the chairman of that Company, we are of opinion that the rights so claimed by the Company do properly belong to them. Upon this subject we entertain no doubt." The Commissioners will see that that map is attached to the correspondence and papers ; and all these papers were brought down in 1850 to the House of Commons on a return then oi"dered, and which shows the correspondence which took place between Mr. ''ibister, who was representing these who felt themselves aggrieved — I do not know whether representing a Government or private parties. Chief Justice Harrison — He was not acting for any Govemirent — he was acting as an individual. Mr. MacMahon — He was acting for some people who claimed to have rights in the Hudson's Bay ; and the correspondence took place in respect to the chai.-ter, the extent of territory and the trade, taxation and government, as claimed by the Hudson's Bay Company. Sir Hdward Thornton — I shou) a suppose that Mr. Isbister represented the people in Assiniboia — the dissatisfied people in the Red River Settlement. Chief Justice Harrison — Yes ; certainly he did not represent any Government. He was one of the first to rouse public opinion about the monopoly, botii here and in England. Mr. MacMahon — I showed the letters and papers attached to the map to the Attorney- QUESTION OF TESTING THE VALIDITY OF HUDSON BAY CO.'S CHARTER, 1850. 347 to give their claim, General, but we concluded that it was not necessary to have them printed, as part of them appear in the Ontario Documents. The letter I will now read is addressed to Mr. Isbister, rlatr-^ April 30, 1850, and will be found at pages 12 and 13 of the Hudson's Bay Corn- par. TJocuments : — "Downing Street, April 30, 1850. "Stb, — In answer to your letter of the 16th of this month, I am directed by Earl Groy to ftute to you, with as much distinctness as possible, since there appears to have been some misunderstanding on the subject, the course which Her Majesty's Government have adopted and propose to pursue relative to the charges against the Hudson's Bay Company. (2) In pursuance of the address of the House of Commons, praying Her Majesty to take such means as might seem most fitting and effectual to ascertain the legality of certain powers claimed by that Company, Lord Grey called on the Company for a statement of those claims, and laid it before the Attorney and Solicitor-General for their opinion. You are acquainted with their opinion, which was to the effect that the rights so claimed by the Company properly belonged to them. (3) They added a sugges- tion that yourself, or any other party dissatisfied with their opinion, might be recommended to prosecute complaints against the Company by means of a petition to the Queen, which might be referred to the Judicial or some other committee of the Privy Council. (4) This offer was accordingly made to yourself. You now appear to suppose that Her Majesty's Government, in making the offer, intended to defray out of the public funds the expense which must attend such an investigation. (5) This, however. Her Majesty's Government cannot consent to do. Having hcz^ advised by their own law officers that the claims of the Company are well founded, they cannot impose on the public the expense of proceedings which, in the opinion of their own regular advisers, will prove ineffectual. All that 'ij in their power is to recommend that those who are disijatisfied with that opinion should pursue the course pointed out by the law advisers for questioning it, and to assist as far as they may lawfully do in having the question so raised brought to a legal deter- mination. (6) But the expense of the steps necessary for this purpose must be borne by the parties Ivho undertake them ; and if none of those who have brought under the notice of Lord Grey, and cf Parliament, their exceptions to the jurisdiction and power claimed by the Company, are willing to incur such expense. Her Majesty's Government must con- sider that there are no further steps which it is in their power to adopt for the purpose of ascertaining the legal validity of the claims of the Company." Now, here was the British Government being advised by their own legal advisers that anysteps theymight take in order to test the territorial rights (which I suppose itwas designed to test by anything that might go before the Privy Council) would be ineffectual; and at that early date Mr. Isbister, who was moving either on behalf of himself or somebody interested, was told that the Government would not assume the responsibility. And we are told in 1850 that the only way of testing the validity of that charter, or the extent to which the rights of the Company might be narrowed down, was by the legal interpretation to be put upon the charter by the Privy Council. Nei her then nor in 1857 did Canada think it proper to test in any way — particularly as suggested by the law officers of the Crown on both of these occasions — the validity of that charter. Following that, there was further correspondence. In 1850, Sir John Pelly, who was then Governor of the Hudson'^ Bay Company, had written to Lord Grey. The following is an extract from his letter, dated at the Hudson's Bay House, May 31, 1850 : " Permit me at the same time to state that the Company's ships for Hudson's Bay are appointed to sail on the 8th June, and that it would be of the utmost importance if the decision of the Privy Council, on the rights and privileges of the Company, were sent out by that opportunity, and the Government directed to issue a Proclamation agreeable to the tenor of the decision, which would in my opinion greatly tend to allay the excitement in which a portion of the half-breed inhabitants have been kept." Now, there the Governor of the Hudson's Bay Company invites Her Majesty's Government to have it decided, and to have the excitement allayed. The reply of Lord Grey will be found at page 8 of the Dominion Case. After pointing out what had been done, Mr. Hawes says that a petition to Her Majesty was suggested, and he goes on to say : " Such a petition was, therefore, essential to the complete prosecution of the '1 /. 348 ARGUMENT OF MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878 ; It,. 1, J i/' 1 l' if ■ i*"-, , ■■■ ■■ m inquiry. Lord Grey accordingly gave to certain parties in this country, who had taken an interest in the condition of the inhabitants of the Hudson's Bay Company's Territories, and had questioned the validity of the Company's charter, an opportunity to prefer the necessary petition if they were so disposed ; but, for reasons which it is unnecossary to repeat, they respectively declined to do so. Lord Grey having, therefore, on behalf of Her Majesty's Government, adopted the most effectual means open to him for answering the requirements of the Address, has been obliged, in the absence of any parties prepared to contest the rights claimed by the Company, to assume the opinion of the law oliicers of the Crown in their favour to be well founded." Lord Grey at that time was Colonial Minister, and he, on behalf of Her Majesty's Government, was obliged to assume that the opinion of the law officers of the Crown in favour of the Hudson's Baj Company was well founded, and Her Majesty's Goven.'ment refused to interfere any further with it, as they were perfectly right in doing. Chief Justice Harrison — ^Theso questions, however, were all questions as to certain rights, more than questions as to boundary. Mr. MacAfahon — The trade, taxation and territory were all included. Chief Justice Harrison — But the question as to the boundary really never came up, because the persons who were then attacking the Hudson's Bay Company said that the Company had no right to any part of the territory. If the question of boundary had come up, they must have looked to the Quebec Act and to these other Acts. But the question then was not a question of bo mdary at all ; it was a question of whether the Com- pany had any rights. Mr. MacMahon — They were claiming certain rights, and a certain territory as being incident to or connected with those rights. The whole went together. Chief Justice Harrison — ^TLere was no opinion from the law officers of the Crown as to the boundary , Mr. MacMahon — The Company claimed those boundaries ; their own position sup- plied boundaries. In 1857 the very same question came before Sir Richard Bethell, and, as reference has been made to the distinguished lawyers who gave opinions on the other side, I may say that I presume Sir Richard Bethell's opinion as Attorney-General would be authority as high as could be got from any source in regard to what was covered by the charter. •Sir Edward Thornton — I do not see that there can be the least doubt that the com- plaints made in 1850 were from Winnipeg, from the same people who were dissatisfied for a great number of years with the Hudson's Bay Company. Mr. MacMahon — The question a? to territory, as to that portion of the territory at least, must have got before the law officers of the Crown in some way. Chief Justice Harrison — These people at Red Biver said the Hudson's Bay Company had no rights in any part of this territory, and the law officers were against them. Mr. MacMahon — We have not the petition presented to the House of Commons, but if Mr. Isbister was acting on behalf of those who were known as the Red River settlers, and if he was their representative, then as far as regards the territory that they were dis- puting, as being controlled by the Hudson's Bay Company, when they had no right to control it at that time, that must have been a question the law officers considered, and in regard to which they gave an opinion. Chief Justice Harrison — The Attorney-General, for the sake of this argument, admits that the Hudson's Bay Company had some rights, but that as a matter of boundary they did not extend to certain points. Mr. MacMahon — The question of boundary must have been considered in regard to that territory, as to whether the Hudson's Bay Company were exercising rights outside of the boundaries that they were entitled to under the charter. Chief Justice Harrison — The case was not put on that ground ; the higher ground was taken that the Company had no right there at all. Sir Edward Thornton — If I am not mistaken, the territory oi Assiniboia was granted to the Earl of Selkirk. It is marked upon this map as the territory of Assiniboia. Mr. MacMahon — Yes. In 1857 — the Arbitratoi-s will remember that that was after OPINION OP THE LAW OFPICFRS ON THE HUDSON BAY CO.'s CHARTER, 1857. 3*9 tions as to certain )f the territory at a lengthened investigation had been gone into by the House of Commons — whon Chief Justice Draper was acting as agent for Canada. Sir Edward 2'hornton — That is the tirsit time that Canada as a country appeared in the matter at all ; I mean the late Province of Ca lada. Mr. MacMahon — Yes. When Chief Justice Draper went to England as the agent of Canada, the whole matter as to the rights of the Company was supposed to have received very clo'^'> attention by the home authorities, and the strongest possible argu- ments were adduced l»y the agent of the Province in order to curtail the rights of the Hudson's Bay Company, territorially ; and at that time the law othcers of the Crown, Sir Richard Bethell and Solicitor-General Keating, were asked for an opinion ; the whole of which is in Ontario Documents, 200, 201. In that op'nion they say, — "That the validity and construction of the Hudson's Bay Company's charter cannot bo considered apart from the enjoyment which has been had under it during nearly two centuries, and the recognition made of the rights of the Company in various Acts, both of the Govern- ment and the Legislature." In their statf ment of rights the Hudson's Bay Company say in 1850 — " It may be right here to mention that although the original title to the terri- tory and trade in question was derived under the charter above referred to, the rights of the Company have in various instances received the recognition of the Legislature." Chief Justice JJurrisou — Just confirming what I said ; the whole dispute was as to the rights of the Company, not the boundary, Mr, MacMahon — They also say, — " It may be right here to refer to several Acts of the Legislature which have recognized the general rights and privileges claimed and exercised by the Company : — "An Act passed in the sixth year of the reign of Queen Anne, c. 37, intituled ' An Act for the Encouragement of the Trade in America,' and this Act contains an express proviso that ' nothing therein contained shall extend or be construed to take away or prejudice any of the estates, rights or privileges of or belonging to the Governor and Company of Adventurers trading into Hudson's Bay.' " In like manner, in 1745, when an Act was passed (18 Geo. II. c. 17) for granting a reward for the discovery of a north-west passage through Hudson's Straits, it was ex- pressly provided that nothing therein contained should extend or be construed to take away or prejudice any of the estates, rights or privileges of or belonging to the Hudson's Bay Company." One of the contentions in regard to the rights and privileges of the Hudson's Bay Company was that they had not fulfilled the intent of their charter — that they had not been making any endeavours to discover a passage to the North Pole ; that if the charter was ever valid, they had forfeited it by not fulfilling certain conditions. I refer to that to show that during all that time their rights and privileges were being expressly accepted and held valid by these Acts of Parliament during the reigns of Anne and the Georges — so that they were not to be infringed upon in any way — and that they had been recognized up to the very day when Rupert's Land was surrendered by the Hudson's Bay Company to Her Majesty. At this point the Arbitrators adjourned until ten o'clock the next morning. m lered in regard to Saturday, August 3rd, 1878. Arbitrators and Counsel all present. Chief Justice Harrison — Before the argument is proceeded with, I would state, with- out having any desire whatever to unduly hurry the argument, that if there is any probability of its being concluded by one o'clock or so, there is a prospect of the Arbitra- tors being able to agree this afternoon. Mr, MacMalion — I will shorten my argument very much. Before commencing the regular course of the argument, I wish to refer to that matter of Radisson and Des Gro- sellieres. In the printed Case the word " chimerical " is used to express the way in which the merchants of Quebec looked upon the statement of these men. My learned friend the Attorney-General said that that was a statement of Mr. MacMahon's. I thought n 350 ARGUMENT OF MR. MACMAHON, Q.C, HEFORE THE ARBITRATORS, 1878 ;•« that that statement would be found in Mr. MHIh' book, but I see that I was mistaken in that ; the statement is to be found in Harris' Travels, page 286, vol. 2 ' -'(^s the pas- sage), so that it was not a statement of my own. Th« Attorney-General — The authority is then leas than that oi ^uj learned friend himself would be. Mr. MacAfahon — Not at all. Chief Jicstice Harrison — The difference is that Harris is not an advocate. Mr. MacMahon — Harris is about the t^st authority that we could get for the state- ment ; his work was published in 1760. I was referring the Arbitrators last evening to the opinion delivered by Sir Richard Bethell, afterwards Lord Westbury, and Sir Henry S. Keating, delivered in 1857 (Ont. Docts., 200, 201). It will be remembered that at the time the whole evidence, and all the correspondence that could be got together in regard to this question, had been submitted to the Committee of the House of Commons, and therefore the law officers of the Crown were fully advised of everything that could be brought to bear upon the subject ; and I may say here, as the matter was referred to by the Hon. Chief Justice yesterday, that although, perhaps, the question of boundary did not come up as a square issue at that time, nor in 1850, still the question of boundary must have arisen incidentally when each of these opinions was given, so that the law officers of the Crown at that time were dealing incidentally with the question of boundary, and they could not avoid dealing with it in some way. They say : — " We beg leave to state, in anawer to the questions submitted to us, that in our opinion the Crown could not now with justice raise the question of the general validity of the charter ; but that, on every legal principle, the Company's terri- torial ownership of the lands and the rights necessarily incidental thereto (as, for example, the right of excluding from their territory persons acting in violation of their regulations) ought to be deemed to be valid." They likewise say, — "Nothing could be more unjust, or more opposed to the spirit of our law, than to try this charter as a thing of yesterday, upon principles which might be deemed applicable to it if it had been granted within the last ten or twenty years." lu another part of the opinion they say : " The remaining subject for consideration is the question of the geographical extent of the territory granted by the charter, and whether its boundaries can in any and what manner be ascertained." That is the question they were discussing. " In the case of grants of considerable age, such as this charter, when the words, as is often the case, are indefinite or ambiguous, the rule is that they are con- strued by usage and enjoyment, including in these latter terms the assertion of ownership by the Company on important public occasions, such as the Treaties of Ryswick and Utrecht, and again in 1750." They refer to these three different periods as points of time in order to ascertain what ought to be the boundaries allowed to the Hudson's Bay Com- pany in 1857, and show that the enjoyment under that charter, the assertion of rights under that charter, aud the claims made by virtue of the charter, must and ought to be taken into consideration when dealing with the question ; and the law officers, in giving their opinion, dealt with the subject in that view. The Treaty of Ryswick I will only refer to very shortly. The Attorney-General, in his arfjument, referred to the forts that had been taken by the French, and to the effect of the Treaty of Ryswick in regard to the possession of these forts. But although the question is somewhai discussed at page 9 of >iir printed Case, I do not think it necessary that I should elaborate it at all, because in 1857 Chief Justine Draper, acting as agent on behalf of Canada, stated what was in effect in a very few words his view of the Treaty of Ryswick, and it was this : " The eighth Article of the Treaty of Ryswick shows that the French at that timu set up a claim of right to Hudson's Bay, though that claim was abandonbd at the peace of Utrecht, and was never set up afterwards."* (Ontarib Docu- ments, at page 340.) So that at the peace of Utrecht — and this is nearly the last stage in the argument — any rights that the French might or could have had were abandoned in 1713, and at one bound we get to what was the position of the Government of Great Britain and the Hudson's Bay Company at that time. * [See note «, p. 38, ante.—G. E. L.] JRS, 1878 : LIMITS CLAIMED BY THE HUDSON'S BAY CO., 1700-1713. 351 1 was luistaken in 2 ' "'<\h the pas- iUj learned friend dvocate. 1 get for the Htato- red by Sir Richard red in 1857 (Ont. videnco, and all the lad been submitted icera of the Crown iho subject ; and I ice yesterday, that [uare issue at that lientally when each at that time were b avoid dealing with [uestions submitted the question of the e Company's terri- Bto (as, for example, )f their regulations) >08ed to the spirit of es which might be ;wenty years." In insideration is the larter, and whether the question they this charter, when that they are con- ertion of ownership IS of Ryswick and ds as points of time [udson's Bay Com- assertion of rights t and ought to be V officers, in giving torney-General, in and to the effect But although the think it necessary acting as agent on 5w of the Treaty of ick shows that the ;h that claim was (Ontarib Docu- irly the last stage were abandoned in '■ernment of Great It is stated that at a certain time, in 1700, the Company were willing to contract their limits, and the statement is made that ))eoause of that they were precluded at a later date from setting up that they were entitled under the charter to all that the charter could give them. What do they say in 1700 — about the earliest date at which they made a ulaim after the Treaty of Ryswick 1 They say, " We are willing to contract our limits; hut although we are willing to do that, we are entitled of right to the whole Bay and Htraita of Hudson." This is like a man who has a suit of ejectment, who, in order to avoid the expense and trouble of a lawsuit, says, " I will be willing to allow you certain bounds, but if you do not accept that I will insist on getting all my rights and all that I am entitled to." There was another statement made at that time to the Lords of Trade and Plantations in January, 1701, when the Hudson's Bay Company again "insist on their undoubted right to the whole Bay and Straits," but are willing to forego their rights to a certain extent if by that means they can secure a settlement. " But should the French refuse the limits now proposed by the Company, the Company think themselves not bound by this, or any former concessions of the like nature, but must, as they have always done, insist upon their prior and undoubted right to the whole Bay and Straits of Hudson, which the French never yet would strictly dispute, or suffer to be examined into (as knowing the weakness of their claim), though the first step in the said Article of Ryswick directs the doing of it." (Ontario Documents, pp. 124-5.) In May, 1709, the Company were requested by the Lords of Trade and Plantations to send an account of the encroachments of the French on Her Majesty's dominion in America within the limits of the Company's charter ; to which the Company replied, setting forth their right and title, and praying restitution. (Mills, pp. 152-3.) A further petition was sent by the Hudson's Bay Company to the Queen in 1711. (Ontario Documents, pp. 126-7.) On February 7, 1712, the Hudson's Bay Company set forth what they desired should be stipulated for them at the ensuing Treaty of Peace. (Ontario Documents, 128.) In this memorandum the Hudson's Bay Company ask " that a line be supposed to pass to the south-westward of Grimington Island, or Cape Perdrix, to the great Lake Mis- kosinke, aliaa Mistoveny, dividing the same into two parts (as in the map now delivered), and that the French nor any other employed by them shall come to the north or north- westward of the said lake, or supposed line, by land or water." I believe that the plan now produced is marked as having been prepared in 1709. I refer the Arbitrators to it. There is the Island of Grimington, and they ask that a line be drawn through that lake until it passes south of the 49th parallel ; showing that at that time, in 1712, when they were presenting their petition to Queen Anne, that is what they were claiming as their rights at that time. I do not intend to refer to the question of post liminy at all, because the assent of Chief Justice Draper prevents the necessity of our having to discuss that question.* Now, Lord Dartmouth's letter after the Treaty of Utrecht, addressed to the Lords of Trade and Plantations on May 27th, 1713, will be found in Ontario Documents, 129. He says : " My Lords and Gentlemen, — The Queen has commanded me to transmit to you the enclosed petition of the Hudson's Bay Company, that you may consider of it and report your opinion what orders may properly be given upon the several particulars mentioned. In the meantime I am to acquaint you that the places and countries therein named, belonging of right to British subjects, Her Majesty did not think fit to receive any Act of Cession from the French King, and has therefore insisted only upon an order from that Court for delivering possession to such persons as should ^e authorized by Her Majesty to take it ; by this means the title of the Company is acknowledged, and they will come into the immediate enjoyment of their property without further trouble." Now, the object of that will be seen when we consider that the whole course of these negotiai/icus had been impeded by the French ambassadors claiming that the word " cede " should be used, whilst the English f>mbassador3 refused to accept it with the word "cede" * [There was no assent on the part of Chief Justice Draper to the view that there had been a retro- cession in favour of the Hudson's Bay Company ; and if there had been such assent, it would not be binding uyon Ontario.— G. E. L.] 352 AIIOUMKNT OF MR. MACMAHON, ().(',„ HKPOKK THK \RBITHATORS, 1878; m . i I ^ Lit! used at all ; they inmsteil on the '^ord " rentore." They naid that the territory waa hoing roHtorwl to them, claiming that the French never were there, never had a right to be there, and therefore could not cede it, for it waa not theirs to cede ; but that having taken poH- Heasion of a part of it in the time of peace, aa claimed by the Hudaon'H Day Company, the word " restore " waa the proper word to use ; and a great deal of correspondence took place between the ambaflsadors in regard to it. Under section 10 of the Treaty of Utrecht, the King of France was " to restore to the Queen of Great Britain, to be possessed in full right forever, the Bay and Straits of Hudson, together with all lands, seas, coasts, rivers, and places situate in the said Bay and Htraits, and which belong thereunto ; no tracts of land or sea being excepted which are at present posHessed by the Hubjects of France." In reference to the discussion just spoken of, Bolingbroke says, in March, 1713, that the truth is so evident, that the Plonipotentiariea of Oreat Britain at Utrecht always make a distinction Iwtween places that should bo coded and those that should be restored. (Bolingbroke's Correspondence, vol. 3, 601.) Then we come to the question of the extent of country. Mr. Mills, who prepared this case for the Province of Ontario,''' was compelled to admit that all was claimed for England under the Treaty which possibly could be claimed ; and that is an admission which my learned friends cannot get over. Mr. Mills, at p. 159 of his Report, after quoting the portion of the lOtli section above referred to, says : "The words of the Treaty just quoted and the attendant circum- stances, show that what was claimed by England and yielded by France was the Bay and the country upon its margin. Nevertheless, the language of the Treaty did not make it impossible for England, if she were so disposed, to insist upon the possession of the whole country to the land's height.^ France, too, consented with reluctance to the use of the word 'restoration* instead of 'cession.'" Now, what was England doing from the very time of the passing of the Treaty, from the very time when Commissioners were appointed 1 I will show that she com- menced to claim, and that she did claim in 1713, the restitution of these lands to the Company itself ; because Lord Dartmouth says that the order was required so that the Company might be placed in possession ; and England went on claiming to the very height of land, and she insisted that France should send her subjects out of that country, or prevent them from building forts or places whereby they could trade in the Hudson's Bay Territories. Although it is stated that Commissioners were appointed as provided by the Treaty, it was in some way assumed that the boundary had been settled at the 49th par- allel. Everybody seemed to be impressed with the idea that the 49th parallel had been settled by the Treaty of Utrecht. In the United States this was urged. When the States were settling the parallel as to the northern boundary of Louisiana, it was claimed that the 49th parallel was settled at the Treaty of Utrecht, and that the United States, as the p prietors of Louisiana, were entitled to come up to that parallel as the territory of Lonir dna. And in this country it was assumed : in a letter that will be found from the late Bishop Strachan to Lord Selkirk it is stated that the 49th parallel had been settled upon. In some way or other that seemed to be understood, and we find that many of the maps of very early date show that, as will be fully borne out by a reference to the list of the maps in the Ontario Documents. Many of these maps have the 49th parallel upon them as being the bounds between the English and French possessions under the Treaty of Utrecht. There is no doubt it was assumed at that time that that was the parallel ; it was insisted upon by the United States and not denied by Great Britain. The law officers of the Crown in Great Britain at that time seemed to have the idea, whether derived from maps or from what source I do not know, but they appeared to have fully believed that the 49th parallel had been settled upon. The reason is, I suppose, because the Hudson's Bay Company always assumed that the height of land was their southern boundary ; | and Mitchell's map will show that the height of land was about the 49th par- ♦ [By this is meant Mr. Mills' revised Report, published some time previously. The "Case" of Ontario was prepared by the Attorney General of the Province.— G. E. L.] t [See note *, p. 287, anU.—G. E. L.] ' • '< >,: J:[Seenote*, p. 345, on««.— G. E. L.] ' ' ^J'" ORS, 1878 ; NKOOTIATIONS FOR THE CESSION OF CANADA, 1^61. 853 1 1 territory was being 1 a right to be there, having taken pon- ]Jay Company, tho pondonco took place aty of Utrecht, tho « poHRessed in full 8(!aH, coasts, rivers, eunto ; no tracts of cts of France." In rch, 1713, that the rocht always make ihould bo restored. lills, who prepared all was claimed for lat is an admission if the lOtli section e attendant circum- ce was the Bay and ity did not viake it isession of the whole i to tho use of tho ling of the Treaty, ihow that she com- I these lands to the squired so that the to the very height )f that country, or the Hudson's Bay as provided by the id at the 49 th par- parallel had been When the States t was claimed that United States, as as the territory of be found from the 1 had been settled 1 that miny of the rence to the list of 9th parallel upon under the Treaty was the parallel ; iritain. The law tho idea, whether red to have fully suppose, because las their southern lOut the 49th par- |ly. The "Case" of •I- ■. I'-.: allel ; and therefore it wan taken an if the 49th parallel was about the proper line to be drawn. Now, whether that was the case or not, whotiier it was ever agreed upon or not, is of very little importance. . The Attorney-General — You admit that it was not, I suppose, Mr. Mui'Mahon — I admit that it was not. It was never decided upon, md in fact France never intended it. It is stated in Anderson's History that Franco never desired to settle the boundaries at all under the Treaty of Utrecht ; and it was only when she was compelled, after tho war of 1759, that any settlement could lie got. But it matters very little just now. If the Commissioners will look at the map attached to the Dominion ase, which was furnished at the tinu) of the surrender of Quebec — and that is taken f rom tho map that was sont over by General Amherst to the British Qovornment, fur- nished to General Haldimand by the Marquis do Vaudreuil — they v/ill find there what France was claiming. She never claimed anything beyond the Red Lake. There never was any pretence, as far as France was concerned, of claiming as Canada anything north or west of the Red Lake. That is what the Marquis de Vaudreuil at that time consid- ered was the boundary of Canada upon the north and the west.'" ^Some conversation took place over the maps, in the course of which Chief Justice Harrison pointed out that there were two Red Lakes.) The Attorney-Oeneral — ^The Red Lake referred to by Mr. MacMahon is a little south of Turtle Lake. Mr. MacMahon — It is hardly south ; it is more west than south. But for the pur- poses of my argument it does not matter, because I am addressing myself to that part of the argument of the Attorney-General which lays claim to all that north and west coun- try as belonging to the French, and being part of New France. The map shows that there never was any such claim ; and the correspondence which took place with regard to the boundaries shows that after that map was delivered in 1761, France was claiming, as being part of Louisiana, a large part of the territory that was ceded as part of Canada — claiming it as being part of the Illinois country. The correspondence shows how anxious the French Government and the French Administiation of that day was in regard to acquiring the territory south, or at least retaining the territory south, as part of Louisiana. On the 18th August, 1761, M. de Bussy, the French Minister at London, furnished to Mr. Pitt a memorandum upon the limits of Louisiana, which bore upon the limits of Canada, and ran thus : " Sur les limites de la Louisiana. " Four fixer les limites de la Louisiane du cdt^ dea colonies Angloises et du Canada, on tirera uno lignc qui s'etendra depuis Rio Perdido entre la Baye de la Mobile et cells do Fensacola, en passant par le Fort Toulouse chez les Alibamons, et qui, se prolongeant par la pointe occidentale du Lac Eri6 enfermera la Riviere des Miamis, et par I'extremit^ orientale du Lac Huron, ira aboutir k la hauteur des terres du c6t^ do la Baye d' Hudson vers le Lac de I'Abitibis, d'oii la ligne sera continu^e de I'Est 4 I'Ouest juaques et compris le Lac Superieur." (Pub. Rec, Off. Vol. 483.) Mr. Pitt, the Prime Minister of that time, states in an ultimatum which he for- warded to Mr. Stanley at Paris, the following definition of the boundaries of Canada, as Bet forth by M. de Vaudreuil : " Canada, according to the line of its limits traced by the Marquis de Vaudreuil himself, when this Governor-General surrendered, by capitulation, the said Province to the British general. Chevalier Amherst, comprises, on one side. Lakes Huron, Michigan and Superior ; and the said line, drawn from Lac Rouge, embraces by a tortuous course the River Ouabache (Wabash) up to its junction with the Ohio, and from there extends the length of this river inclusively until its confluence into the Mis- sissippi." Then on page 8 of the Supplement will be found what was stated by the Due de Choiaeul, when the map was ahown to him by Mr. Stanley. Mr. Stanley's despatch says : " The Due de Choiseul complained that the bounds of Canada were laid down very * [The correspondence (Mills, pp. 61-4) shewg that Vaudreuil set no such limits. (And see note X, p. 288, intc.) Red Lake is in about the same longitude tM Turtle Lake ; and it is notorious that the French not only claimed but were in actual posseuion lon^ before this period of the whole region— as well to the west as to the east of this longitude— drained by the waters of Lake Winnipeg. (See Jefferys, already quoted^ pp. 21-!i, onte.)-G. E. L.] 23 .Ml ^1 lii!.-. '., \.\\\ ARGUMENT OJb' MR. MACMAHON, Q.C., BEFORK THE ARBITRATORS, 1878 : ■C ' ' unfavourably to Franco, in the description which your memorial contains, alleging faie) that there had been disputes between the Marquis de Vaudreuil and the Governor of Louisiana with regard to the limits of their two Provinces,, wherein the former, being the more able and the more active, had greatly enlarged his jurisdiction ; he added, how- over, that though many such objections might be made, it had been the intention of the King his master to make the most full and complete cession of Canada, and that he oonfiented in his name to those limits. I then produced the map you sent me, and it was agreed that this Province should remain to Great Britain as it is there delineated." (Minutes of a Conference at Paris, September 2nd, 1761. Pub. Rec, Off. Vol. 483, Prance.) So that was the Province as understood both by the French and English at that time ; and according to the claim made at that time, it had not any greater limits or any wider extent. In 1714 the Hudson's Bay Company sent a memorandum to the Lords Commissioners of Trade and Plantations, accompanied by a map in which they claimed that the eastern boundary should be a line running from Grimington's Island through Lake Miscosinke or Mistassinnie, and from the said lake by a line run south-westward into 49 degrees north latitude, as by the red line may more particularly appear, and that that latitude be the limit ; that the French do not come to the north of it, nor the English to the south of it. (Ontario Documents, 131, 132.) In 1719 Commissioners were appointed, and they set forth that "the French since the Treaty of Utrecht had made a settlement at the source of the River Albany ; the Commissaries of His Britannic Majesty insist that the French shall quit the said settlement, and that the fort, if there be any such building, sliall be given up to the Company of English Merchants trading in Hudson's Bay aforesaid. "The said Commissaries further demand that the subjects of His Most Christian Majesty shall not build forts or found settlements upon any of the rivers which empty into Hudson's Bay under any pretext whatsoever, and that the stream and the entire navigation of the jaid rivers shall be left free to the Company of English Merchants trading into Hud;ion'8 Bay, and to such Indians as wish to traffic with them."* (Ontario Documents, pap J 365.) The Attorney-General stated that it was merely the freedom of the rivers which was required by the English Commissioners at that time. But Lord Dartmouth, in his letter to tae Lords of Trade and Plantations, appeared to be anxious in regard to the property that the Hudson's Bay Company had acquired under their charter, and which he wished to be given back to them, in order that they might continue to occupy it. The, Attorney-General — That is not mentioned in the instructions that Lord Dartmouth gave ; it was the notion of the Commissioners themselves. Mr. MacMahon — The Commissioners, I suppose, were instructed. Thf, Attorney-General — We have their instructions. Mr. MacMahon — This is the demand they were making. They were insisting that the French should not continue there, and that they should give up all their settlements, and not trade or build forts, and that they should cease to occupy this country altogether. The demand will be found in Ontario Documents, 365. Sir Travers Twiss says in regard to that : " By the 10th Article, however, of the Treaty of Utrecht, the French King agreed to restore to the Queen (Anne) of Great Britain, 'to be possessed in full right forever, the Bay and Straits of Hudson, together with all lands, seas, sea coasts, rivers and places situate in the said Bay and Straits, and which belong thereto ; no tracts of land or sea being excepted which are at present possessed by the subjects of France.' The only question, therefore, for Commissaries to settle was the limits of the Bay and Straits of Hudson, coastwards, on the side of the French Province of Canada, as all the country drained by streams entering into the Bay and Straits of Hudson were, by the terms of the Treaty, recognieed to be part of the possessions of Great Britain, t "If the coast boundary, therefore, was once understood by the parties, the head waters of the streams that empty themselves into the Bay and Straits of Hudson indi- • [See as to this the arf(ument of the Attorney-General liefore the Arbitrators, ante, pp. 317, 31 8.- j [See notfl t, p. 288, ant«. -G. EI,.] -G.E.LI r . ORS, 1878 : LIMITS CLAIMED FOH THE H. B. CO.'S TERRITOUIES AT VARIOUS PERIODS. 355 tains, alleging faie) id the Governor of L the former, being on ; he added, how- ihe intention of the !anada, and that he gent me, and it was s there delineated." Rec, Off. Vol. 483, ind English at that ;reater limits or any indum to the Lords which they claimed ;on'3 Island through run south-westward .rly appear, and that of it, nor the English >ners were appointed, i made a settlement mnic Majesty insist : there be any such trading in Hudson's His Most Christian ers which empty into the entire navigation rchants trading into (Ontario Documents, the rivers which was ■tmouth, in his letter igard to the property ,nd which he wished •y it. Ithat Lord Dartmouth were insisting that lall their settlements, Is country altogether. ] Twiss says in regard it, the French King Issessed in full right |as, sea coasts, rivers thereto ; no tracts of subjects of France.' inits of the Bay and ^f Canada, as all the [udson were, by the it Britain, t le parties, the head lits of Hudson indi- Ll)p.317,318.-«.E.L1 liil cate the line which at once satisfied the other conditions of the Treaty. Such a line^ if commenced at the eastern extremity of the Straits of Hudson, would have swept along through the sources of the streams flowing into the Lakes Mistassinnie and Abbitibis, the Elainy Lake, in 48° 30', which empties itself by the Rainy River into the Lake of the Woods, the Red Lake, and Lake Travers." These are the bounds that Sir Travers Twiss places on the rights of the Hudson's Bay Company, saying that all that extent of country to 48* 30', at w^hich the sources of these rivers commence, of right belonged to the Hudson's Bay Company under the Treaty, and that they could claim it, and were claiming it, under the Treaty of Utrecht. Nov, speaking of Lake Travers, he says : — "This last lake would have been the extreme south- ern limit in about 45° 40', whence the line would have wound upward to the north-west, pursuing a serpentine course, and resting with its extremity upon the Rocky Mountains, in about the 48th parallel of latitude. Such would have been the boundary line betweeli she French possessions and the Hudson's Bay district ; and so we find that in the limits of Canada, assigned by the Marquis de Vaudreuil himself, when he surrendered the Province to Sir J. Amherst, the Red Lake is the apex of the Province of Canada, or the point of departure from which, on the one side, the line is drawn to Lake Superior ; on the other, 'follows a serpentine course southward to the River Oubache, or Wabash, and along it to the junction with the Ohio.' This fact was insisted upon by the British Govem- Q)ent in their answer to the ultimatum of France, sent in on the 1st of September, 1761, and the map which was presented on that occasion by Mr. Stanley, the British Minister, embodying those limits, was assented to in the French memorial of the 9th of September.* (Historical Memorial of the ]Si egotiations of France and England from March 26th to September 20th, 1761, published at Paris by authority ; Twiss' Oregon Boundary, pp. 209-211.) , " By the Treaty of Utrecht, the British possessions to the north-west of Canada were acknowledged to extend to the head waters of the rivers emptying themselves into the Bay of Hudson ;t by the Treaty of Paris they were united to the British possessions on the Atlantic by the cession of Canada and all her dependencies ; and France contracted her dominions within the right bank of the Mississippi. That France did not retain any territory after the Treaty to the north-west of the sources of the Mississippi will be obvious when it is kept in mind that the sources of the Mississippi are in 47"' 35', whilst the sources of the Red River, which flows through Lake Winnipeg, and ultimately finds its way by the Nelson River into the Bay of Hudson, are in Lake Travers, in about 45° 40'." (Twiss' Oregon, p. 226.) I have not referred to any of the maps, for the reason stated by Sir Travers Twiss, that it was an impossibility at that time to get any correct maps, few or no surveys hav- ing been made. In 1 750 — and that date is referred to in the opinion of Sir Richard Bethell and Sir Henry Keating — the Hudson's Bay Company were claiming as their bounds just what they were claiming in 1857. The claim of the Company in 1750 will be found in Mills, 176, 177 : — "The line to begin from the Atlantic Ocean on the east side of Grimington's Island, otherwise Cape Perdrix, in the latitude of 58^°, on the Labrador coast, and to be drawn from thence south-westward to the Great Lake Misco- sinke, otherwise called Mistoseny, and through the same, dividing that lake into two parts, down to the 49° of north latitude, as described in the said map or plan delivered herewith, and from thence to be continued by a meridian line of the said latitude 49* westward." So that they have been claiming that all along ; and, as stated by Sir Richard Bethell and his associates, that is what ought to be taken into consideration in viewing the question. I think I have gone over the whole of the ground as far as regards the treaties, and I have shown that no part of that territory to the north and the west ever belonged to France, nor was it claimed by France at the time of the cession of Canada to Great Britain in 1760. In fact, the French wanted to contract the limits of Canada, and to claim as part of Louisiana the territory up to the line which in 1760 the Marquis de • [See notes, §, p. i«S, ante, and ♦, \>. 353, unte.—G. E. L.] t fSee noU t, p. 288, ante. U. K. i,.] Rv 356 ARGUMENT OF MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878 ; W' '^ '/•■I niiv.v Vaudreuil had marked out as the limits of Canada ; and there was no pretence, no claim' of any kind made by France to the northerly and westerly territory,"" when she could have made the olaim if it was in her power to do so. The other point is in reference to the Quebec Act. Sir Francis Hincks — The learned counsel has been speaking for a long time upon the respective claims of the French and English. But it is an important thing to see what the English Government has done with regard to the boundaries of the Province since the whole territory became English. That is what we want to see particularly. Mr. MacMahon — The Proclamation of 1763 created four separate governments Quebec, East Florida, West Florida, and Grenada — and provided that all the lands not within the limits of these governments, and not within the limits of the territory granted to the Hudson's Bay Company, should be received for the present under the royal pro- tection and dominion for the use of the Indians. The Attorney-General — The old Province of Quebec is marked on Devine's map in accordance with the Proclamation. Sir Francis Hincks — Then the boundaries marked on Devine's map are agreed to as representing that Proclamation f Mr. MacMalwn — Yes. I consider there is no point which turns on the Proclamation of 1763: we are both agreed as to the correctness of that. We come now to the Quebec Act of 1774, and that is where the first difficulty occurs, but I think I will be able to show to the Commissioners that there is no difficulty in deciding that question. If we look at the circumstances under which the Act was brought in, and take into consider- ation the statement, as made by the Attorney-General, of what the object of the Act was, and what the bill was as originally brought into the House, and how it was amended, we will easily see that the claim of Ontario in regard to the western boundary cannot be Bupported at all. Assuming that the claim made by the Province of Ontario is the correct claim, what territory could they possibly acquire by taking the Red Lake — by running through the Red Lake, which is on the boundary there t Sir Francis Hincks — I do not think you need trouble yourself about the Red Lake ; that is not the point ; it is the boundary to the north and west of Hudson's Bay j the question of the boundary running to Hudson's Bay. Mr, MacMahon — I will confine myself to that altogether. If the Commissioners will look at page 77 of Mr. Mills' book, they will find the clause of the Act as originally introduced ; and I would draw special attention to it, in order to show what was the design of the Legislature at that time in settling the western boundary of the Province. It reads in this way, " Be it enacted, that all the said territories and islands and countries heretofore a part of the territory of Canada, in North America, extending southward to the banks of the river Ohio, and westward to the banks of the Mississippi." Well now, the House of Commons, or the committee of the House of Commons, at that time under- stood that if the description of the Act read in that way, when once the river Ohio was reached the use of the word "westward" would make it on a due west course to the river Mississippi. Sir Francis Hincks — I think you do not appreciate our difficulty. You are still at the westerly boundary. It is the northerly boundary we want to get at. Mr. MacMalion — You are not troubled about the westerly boundary? Sir Francis Hhicks — Not so much as the northerly. Whatever the westerly boun- dary line may be, there is no doubt that it runs northerly until it reaches the southerly boundary of the Hudson's Bay Company. We want to know what the southerly boun- dary of the Hudson's Bay Company ia Mr. MacMahon — In 1703, 1750, and 1857, the Hudson's Bay Company were claim- ing that the height of land was the southern boundary of their territory. They always ■claimed tiiatf Sir Francis Hincks — What you have got to deal with is whether any Acts of Par- ♦ [See note •, p. .353, ante.— G. E. L.] t [Se« note *, p. 345, atUe.-G. £. L.] EFFECT OF THE ACTS OF THE CROWN AND PARLIAMENT OF 1791. 357 ler any Acts of Pftr- liament, proclamations, or commissions to Governors, established other boundaries. You are avrare of the points in that branch of the case. Some of the commissions, for instance, expressly say " to the shore of Hudson's Bay." Mr. MacMahon — Then, dealing with the question of the commissions. First we have to look at the Constitutional Act of 1791, because it is asserted that the Proclama- tion of 1791 enlarged the boundaries of what was previously the Province of Quebec. The Act of 1791 does not itself give boundaries, but the Proclamation follows and givei boundaries. My learned friend says it does not matter whether the boundaries were extended by the commissions into the Hudson's Bay Territory or not ; that that is not a question for the consideration of the Arbitrators ; but I say that it is. The Hudson's Bay Company had a government of their own under the charter as it existed, and the King could not of his own mere motion take from them the proprietary government, that which had been granted to them by the charter, unless they had forfeited the charter in some way. Chief Justice Harrison — That is assuming that the charter gives them definf e l)Oundaries. Mr. MacMahon — What took place by the acquisition of Rupert's Lund, by the Rupert's Land Act, must define the boundaries as far as Great Britain and as far as the Hudson's Bay Company are concerned; and when we come to look at what was being stipulated for by the Hudson's Bay Company under that Act, and the surrender made in consequence of the Act, we shall find exactly what the British Government were doing and assenting to only ten years ago. Chief Justice Harrison — What are the boundaries in the Proclamation under the Act of 1791 1 Mr. MacMalion — The boundaries under that Act have received judicial interpreta- t'.on. Chief Justice Harrison — We want to give them an interpretation. Mr. MacMahon — The Proclamation will be found in the Ontario Documents, 27 ; and I may say here that the whole trouble results from the use of one word, and it is upon that the Province of Ontario are building their right to go to the west and north of what was the Province of Quebec. 'The last word in the first clause of the proclamation 'v\ "Canada," when it should have been " Quebec."* It is altogether in relation to that word ; and before we know anything about what was comprised in Canada, we have to ascertain what was comprised in the limits of Quebec ; that is, if the Commissioners think it proper that I should discuss what was proposed in the Act of 1774. That is what I was doing when Sir Francis spoke of the boundaries under the Acts of the Govern- ment as by proclamations, commissions, etc. I considered it necessary to argue that point under the Act of 1774, in order to show that the use of that word in the Proclamation -of 1791 was a mistake. air Francis Hincks — Refer to that, please. Mr. MacMahon — I say that the Act of 1791 in all its provisions is merely for the purpose of dividing the Province of Quebec, and that the use of the word Canada in the Proclamation was simply a mistake. The commission to Lord Dorchester in 1791 will be found on page 48, Ontario Documents ; that is the first commission issued after the Act ; it issued certainly before the Proclamation. But the commission that was issued in 1796 speaks of the Province of Quebec ; it does not speak of Canada at all. The third para- graph of Lord Dorchester's coinmission is this : — " And whereas, we have thought fit by our order made in our Privy Council on the nineteenth day of August, one thousand seven hundred and ninety-one, to divide our said Province of Quebec into two separate provinces, to be called the Province of Upper Canada and the Province of Lower Canada, by a line to commence at a stone boundary on the north bank of the Lake St. Francis, at the cove west of the Point au Baudet, in the limit between the Township of Lancaster aud the Seigneurie of New Longueuil, running along the said limit in the direction of * [There is no authority for the assumption that the word should be " Quebec." The word " Canada " waa used not only in the Proclamation, but also in the Royal Message to Parliament in 1791, referred to in the Act and Order in Council of that year. The same word " Canada" was also used in the Proclamation of Iiieutenant-Govemor Simooe, dated 16th July, 1792, dividing Upper Canada into counties, — G. E. L,] ,1 358 ARGUMENT OF MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878 ; , 1 I I; lit' i Ml north thirty-four degrees west to the westernmost angle of the said Seigneurie of New Longueuil ; thence along the north-western boundary of the Seigneurie of Vaudreuil, running north twenty-five degrees east, iintil it strikes the Ottowas River, to ascend the baid river into the Lake Tommiscanning, and from the head of the said lake by a line drawn due north untii it strikes the boundary line of Hudson's Bay ; the Province of Upper Canada to comprehend all such lands, territories and islands, lying to the westward of the said line of division, as were part of our said Province of Quebec, and the Prov- ince of Lower Canada to comprehend all such lands, territories and islands lying to the eastward of the said line of division, as were part of our said Province of Quebec." Now, if we are to consider the Quebec Act and the Commisbions under it, it in necessary to understand what was comprised in the Province of Quebec under that Act ,: and it was for that purpose I was referring the Commissioners to what took place on the introduction of the Act in 1774. Sir Francis Hincka — That is very importat. ... Mr. MacMahon — The Quebec Bill, as introduced into the House of Lords, contained these words — " Be it enacted, that all the said territories, islands and countries heretofore a part of the territory of Canada, in North America, extending southward to the banks of the River Ohio, and westward to th') banks of the Mississippi," etc. I stated that that would mean, from the point at which the line struck the Ohio, a due west course until it reached the Mississippi. What do we find was done in regard to thatt The Legislature felt that that was the interpretation which would be put on these words, and they made an amendment. The amendment will be found in Cavendish's debates on the Act. They made this amendment, " Until it strike the River Ohio, westward to the banks of the Mississippi." But they inserted after the word Ohio, "And along the bonks of the said river," showing that they intended that the bank should be followed. And if the Commissioners read the whole of that Act, they will see that in every instance the phrase "Along the bank of the river" is used. » The Attorney-General- -The Act only professes to describe the south line. Mr. MacMahon — But when it comes to the junction of the Mississippi and Ohio it describes it in another way, showing that the eastern bank of the Mississippi was not intended by the Legislature at that time to be the eastern boundary of the Province of Quebec. If they had intended that, an amendment would hav3 been made, as was made in regard to the Ohie ; they would have put " northerly, along the bank of the Mississippi," just as they did " westerly along the bank of the Ohio." But when it came to the junction of the Ohio and Mississippi, they said " northward ;" and it is alleged that because they used that word " northward," it must mean northerly along the banks of the Mississippi River, because a commission was issued to one of the Governors con- taining in it words to that eflect. But the commission of 1796 describes what was intended to be contained as the territorial jurisdiction of the Governors, and contains no hach words.* In looking at De Reir jardt's case, it will be found that the whole of that question was very elaborately argued. Sir Francis Hincks — Yes, we understan.i the whole of that question. You will see that there is a line drawn in this map of Devine's, professing to be the boundary according to the commission to Lord Elgin. Ttie Attorney-General — That is the last commission. The other commissions were substantially in the same terms. One spt of commissions says " shore," and the other set says " boundary line " of Hudson's Bay. Sir Francis Hincks — The Proclamation of 1791 says, " untilit strikes th? boundary line of Hudson's Bay." Now, what is the boundary line of Hudson's Bay 1 Chief Justice Harrison — Can you strike the boundary line of Hudson's Bay without- going to the shore ? Mr. MacMahon — It is not the Bay which is meant, it is the territory. * [The Commission of 1786 or that of 1791 is probably meant. In neither of these could the words '\rt question have properly fonnd place, the MisBissippi having pae-ied from the British under the Treaty ir, if it wan, that the C'rown, which luade the grant under its prerogative, uoidd, by virtue of the 8aiue pre- rogative, mmlify or change it.— G. E. L.] i;^:;i Si^i .?:« ttt . S60 ARGUMENT OF MR. MACMAUON, Q.C., BEITORE THE ARBITRATORS, 1878; Hudson's Bay, and to what extent north. That is one of the points in controversy. All these documents throw light upon it. Mr. MacMahon — My learned friends do not claim that they are entitled to any land north of the height of land. The Attorney-General — I thought I had oooupied a good deal of time in showing that I was /Claiming that. Chief Justice Harrison — I understood the Attorney-General to claim to the Arctic Ocean. Mr. MacMahon — I did not know that he meant that. Sir Francis Hincks — Do I understand that you have no difficulty about the north- ern boundary 1 Mr. MacMahon — The northern boundary is of no great consequence : the trouble is with the western boundary. Then came the Act of Union in 1840, and we will see what was the boundary under that. The first oommission to Lord Sydenham is dated August 29, 1840. By that commission, after the line reaches Lake Temiscaming, it is "due north front the head of the said lake until it reaches the shore of Hudson's Bay, and being bounded on the south, beginning at the said stone boundary between Lancaster and Lon- gueuil, by the Lake Saint Francis, the Kiver Saint Lawrence, the Lake of the Thousand Islands, Lake Ontario, the River Niagara which falls into Lake Erie, and along the middle of that lake ; on the west by the Channel of Detroit, Lake Saint Clair, up the River Saint Clair, Lake Huron, the west shore of Drummond Island, that of Saint Joseph and Sugar Island ; thence into Lake Superior." I think you stop there ; it just takes you where the due north line of 1774 would strike, and shows that Upper Canada is bounded by that northern line running from the junction of the Ohio River to that point in Lake Superior which would bo intersected.* The Attorney-General — The commission does not say that. Mr. MacMahon — No, but that is declared to be the whole extent of Canada in 1840, and all that was claimed for it by the British Government. ChieJ Justice Harrison — Yet that same commission dri.ws a dividing line between • the two parts of Canada, Upper and Lower — a line running due north from Like Temis- caming to the shore of Hudson's Bay. Mr. MacMahon — Yes, that is a description in that commission — that wrong reading appears to have got into it in some way or other — but no matter what the commission was, the King had no right to draw that line as against the Hudson's Bay Company, if we satisfy you that the Hudson's Bay Company's Territory extended south of the Hudson's Bay to the height of land. The commission that was issued to Lord Elgin in 1846 is somewhat similar: "Thence into Lake Superior." Lord Elgin left in 1852 or 1853; showing that up to that time the jurisdiction of the Goveruors-Geneial of Canada ended on the shores of Lake Superior, and must have ended just about at the point where the due north line strikes. The Province of Canada afterwards bought from the Indians the territory south of the height of land, I have argued the question about as fully as I can, in regard to the commissions, and in regard to the extent of territory under the juris- diction of the Governors in 1840, and down to the last commission issued to Lord Elgin in that year, and up to the time he loft in 1852 or 1853. The British Government must have been aware at that time where a line drawn from the junction of the Ohio and Mississippi Rivers would strike in Lake Superior, and no doubt they intended Upper Canada to be included within that line.* We come now to Confederation. The 146th section of the British North America Act is as follows : — " It shall be lawful for the Queen, by and and with the advice of Her Majesty's Most Honourable Privy Council, on addresses from the Houses of Parliament of Canada and from the Houses of the respective Legislatures of the Colonies or Provinces of New- foundland, Prince Edward Island and British Columbia, to admit those Colonies or Pro- Tinces, or any of them, into the union ; and on addresses from the Houses of the Parliament # [See note *, p. 294, ante. -G. E. L.] TERMS OF SURRENDER OF RUPERT s> LAND AND H. B. CO. 8 TITLE. 861 Ity about the north- b of Canada in 1840, sh North America of Canada, to adiuit Rupert's Laud and the North-western Territory, or either of them, into the union on such terms and conditions, in each case, as are in the addresses expressed, aud as the Queen thiulcH fit to approve, subject to the provisions of this Act ; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland." (Ont. Docts., p. 404.) After or about that time the agents of the Government of Canada went to England and made representations in regard to the expenditure of some $20,000 which the Govern- ment of Canada thought proper to expend on roads in the territory of Hudson's Bay. In the letter that was addressed to the British Government — by Sir Stafford Northcote, I think, who was then the Governor of the Company — he complained, on behalf of the Com- pany, of trespasses having been committed by the Canadian authorities ; and although the Canadian authorities denied that they were committing any trespass whatever in going to the Red River country, still they stated that the people there were in a starving condi- tion, and that as an act of humanity alone the Government was prompted to make this expenditure, so as to give the people employment. That correspondence shows conclusively what was being asserted on the one hand by the Canadian authorities, and being denied by the Hudson's Bay Company on the other — denied with all the force which could be given to a denial. The result was that the British Government, by whom this charter to the Hudson's Bay Company was granted, or at least confirmed — because they did confirm it in effect, if not in express words, by stating in the numerous Acts of Parliament from 6 Anne to 48 George the Third, c 138, that all the rights and privileges of the Hudson's Bay Company should be respected — the result was that the British Government took legislative action. What do we find them doing 1 We find that an Act, known as the Rupert's Land Act, was passed in 1868, after the presentation of an address from the Senate and House of Commons of Canada on Dec. 17, 1866 (Ont. Docts., 404 to 407). What was the agreement between the parties to this transaction 1 It is necessary to understand what was being surrendered, because the fact of the surrender, and the accept- ance of that surrender by Her Majesty, was a confirmation of everything that the Hud- son's Bay Company had been claiming under their charter ; and that is a point which I am sure the Arbitrators will not lose sight of in dc_^J"g with this question. The sur- render itself, the Act of Parliament itself, the agreement which was come to, not only between the British Government and the Hudson's Bay Company, but between the Canadian authorities, — these all prove the same thing. Under paragraph No. 5. of the Hudson's Bay Company's Deed of Surrender, " the Company may, within fifty years after the surrender, claim in any township or district within the fertile belt, in which land is set out for settlement, grants of land not exceeding one-twentieth part of the land so set out," etc. (6) " For the purpose of the last Article the fertile belt is to be bounded as follows : on the south by the United States boundary ; on the west by the Rocky Moun- tains ; on the north by the northern branch of the Saskatchewan ; on the east by Lake Winnipeg, the Lake of the Woods and the waters connecting them." Now, here are the boundaries of the fertile belt, and there can be no mistaking them. Under the second section of the Rupert's Land Act, it is declared that, for the purpose of this A.ct, the term " Rupert's Lajid " should include the whole of the lands aud territories held, or daimed to be held, by the said Governor and Company. So that all that land which in 1719 and 1850 the Company were claiming, the British Government admitted that they had a right to ; and the Dominion accepted the surrender of all that. Chief Justice Harrison — Of course the British Government, when accepting the surrender, were willing to accept a surrender not only of all that the Company had, but of all that they claimed to have. Mr. MacMaho7i — The Company claimed the fertile belt, and were allowed to partici- pate afterwards in its lands as their own ; they were allowed to hold lands there. Mr. Hodgins — The same as squatters on Crown lands. Mr. MacMahon — They claimed it as lords of the soil, as entitled to the domain. The Commissioners will see from the map of 1850 what they were claiming. They were claiming down to the 49th parallel, and when they came to the height of land again thoy went north, showing that they were claiming all that extent of territory to the height of ; ill! i ; hK m 862 ARGUMENT OF MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878. 4J^ K Ri ' it. land at the very last monrent. Ontario, aa a part of the Dominion, know of all that was going on ; knew that the Dominion was entering into these negotiations ; but she sat by, and never said a word — never said, " No matter what you do, wo are going to claim this land." They said nothing, blit agreed that all this should be surrendered. It was sur- rendered, and paid for by a million and a half of the Dominion's money, and the surrender was accepted by the Dominion and British authorities as being a part of what was granted to the Hudson's Bay Company. It does not matter whether the Company had a right to it or not — they were claiming it, and claiming to be paid for it ; and there is whore 1 say that the Province ot Ontario can have no right now to claim any portion of that lard that was surrendered — to claim it as being part of the Province. If she had a right to claim it, then was the time to intervene, and say, "This is part of our Province, and if you accept the title to that land you do so at your peril." I need not quote the numerous authorities in support of the proposition as to the Province now being excluded.* ^ ^' The A ttorrtey-General — I should like very much to see them, if there are any. Mr, MacMahon — I cite Story's Equity, sec. 1,546. " In a late case before the House of Lords, on appeal from the Court of Session in Scotland, the Lord Chancellor discusses this question of estoppel in fact, or acquies'^ace in adversary's claim o/ right, somewhat in detail. He is reported thus : ' It is a universal law that if a man, either by words or by conduct, has intimated that he consents to an ant which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct ;' and again ; * If a party ht j an interest to prevent an act being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had it been done by his pi'evious license.'" Chief Justice Harrison — That is quite clear as between individuals ; can you show ns that that is part of the law of nations 7 Mr. MacMahon — I do not think that the Province can possibly stand in a better position than an individual. Chief Justice Harrison — One nation is not bound by what two other nations do, unless the third nation is a party to what is going on. Mr. MacMahon — Ontario is a part of the Dominion. •; Chief Justice Harrison — It was no party to these negotiations. Mr. MacMahon — No. Chief Jitstice Harrison — Then the arrangement was something that took p]ao« between other parties that were strangers to the Province. Mr. MacMahon — The Province is part of the Dominion ; and, knowing that the Dominion was acquiring rights from the Hudson's Bay Company, if the Province had any claim to that territory they should have made the claim then, when the matter was about being settled. The instructions subsequently (1871) given to the Commissioner on behalf of the Dominion, when it was proposed that the boundaries should be settled, will be found on page 20 of the Dominion Case, from which I will read an extract : — " 1. The boundary in question is clearly identical with the limits of the Province of Quebec, according to the 14th Geo. III., ch. 83, known as the 'Quebec Act,' and is described in the said Act as follows, that is to say : Having set forth the westerly position of the southern boundai-y of the Province as extending along the River Ohio ' loestward to the banks of tlie Mississippi,' the description continues from thence {i.e., the junction of the two rivers), ' and northvnrd to the southern boundary of the territory granted to tJte Merchants Adventurers of England trading to Hudson's Bay.' " Now, what the terri- tory of the Merchants Adventurers of England trading to the Hudson's Bay was, has been fully set forth by them ; and, although on the side of the Province of Quebec the line of the Province of Quebec may have struck the shore of Hudson's Bay, still that has nothing to do with this western limit. It can have nothing to do with that, because ♦ [Seo the Attorney-Generfcl'i remarka before the Arbitrators, in reply, post.— G. E. L.] ARGUMENT OP MR. MONK BEFORE THE ARBITRATORS, 1878. 36JJ r stand in a better other nations do, that took p]ao« on the western limit there ia no line at all named ; and Ontario may get as much from the Province of Quebec, on the easterly side, as they can. My learned friend, Mr. Monk, will follow me ; and if there is anything that strikes me after my learned friend the Attorney-General has replied, perhaps the Arbitrators will allow me a few words. Arouhbnt of Mr. Monk. Mr. E, C. Monk, of the Quebec Bar, followed, on behalf of the Dominion. — I have great difficulty in adding anything to the able and exhaustive argument of ray friend and colleague, Mr. MacMahon. I shall limit myself as briefly as possible to a reference to some of the portions of my learned adversary's case upon certain points which, to say the least, are well open to controversy. I find on the third page of his case — and I know that he laid groat stress upon it in addressing the Commissioners — a letter written by Sir George E. Car tier and Mr. McDougal! to Sir P. Rogers. I find on the fifth page of the Case the following in reference to this letter : — " Ontario claims that the official views of the Government of the Dominion, as thus expressed, should prima facie be carried out as between the Dr anion and the Province, unless the Dominion proves that the assertions »o made by its Ministers were false or mistaken, and that the claim to which they led was unfounded." The second assertion in this letter is that the charter of the Hudson's Bay Company "expressly excluded all lands, etc., then possessed by the subjects of any other Christian prince or state ; " and the next paragraph states that " by the treaty of St. Germain-en-Laye (1632) the King of England resigned to the King of France the sovereignty of Acadia, New France and Canada generally, and without limits." That, I submit, is unfounded. The Treaty of Ryswick is quite diflerent in its terms. The word " resign," or " give up," is not a correct translation for the French version of it as I find it in the Treaty of St. Germain at page 11 of the Ontario Documents. The French words inserted between brackets there are "rendre" and "restituer " — to give back or restore — implying unquestionably a previous possession on the part of France of these territories. New France, Acadia and Canada could not have included Hudson's Bay. The Hudson's Bay territories were never in the possession of France at that time, and, as Mr. MacMahon kas established, were not even known or discovered in 1632 by the French.* The Attorney-General also laid particular stress on the memoir of M. De Calli^rec, and I may therefore be allowed to refer the Commissioners to a few notes that I have made on the subject. The first French voyage alluded to by Mr. Mills is that of Attorney-General Bourdon, and Mr. Mills makes the statement upon the authority of a memoir from Sieur De Callieres to the Marquis De Seignelay and another memoir from the Marquis De Denonville. This memoir says that in 1656 Jean Bourdon, the Attorney- General of Quebec, explored the entire coast of Labrador and entered Hudson's Bay ; and this M. De Calli6res says is proved by an extract from the ancient registry of the Council of New France of 1656. Jean Bourdon was a man thoroughly well know)i in the Province — better known, no doubt, in that part of the country than would be the Attorney- General of the Province to-day — and was a man with whom the Jesuits were on intimate terms, and who is mentioned on almost every page of the Relations written at that time. Yet, notwithstanding these facts, no mention whatever is made in the Relations d'S Jesuites — and I have read them over with care — no mention whatever is made of Jean Bourdon's voyage to Hudson's Bay. At page 9 of the Relations for 1658, mention is made of an attempted journey which Bourdon made with the intention of reachinir Hudson's Bay. Under date of August 11th, we lind an entry in which the Father Jesuit, who is reported as keeping the journal at that time, says that the barque of M. Bourdon returned. We have in the Relations no particular date of Bourdon's starting on this Toyage ; but in the Journal des Jesuites, pages 209-218, the Commissioners will find that he left in the middle of May in the same year. He returned on August 11th ; and, as is not controverted, it would have been perfectly impossible for him to have made the voyage m ill i 1 ■ ' SDii Chaitiplain'g map of that year, 1632, Hudson's Bay and Straits and the adjacent territories, together e w.-vter cotnmntiication between the Bay and the St. Lawrence, by the Saguenay and Rupert with t Riveri, are correctly delineatei!. (S?e Book Arb. Docs., p. IS.'i.j-G. E. L.] .304 ARGUMENT OF MR. MONK BEFORE THE ARBITRATORS, 1878 ; kfj %^ to Hudson's Bay in ao short a time. But the learned counsel stuted that there was no reason why this particular voyage should have been the one mentioned by De Calliores. The voyage to which I r«fer was made in 1667 ; the extract from the register to which De Calli^res refers is dated 1656 ; clearly indicating that what De Calliuies took as <'vidence of a voyage having been made was simply an order, an instruction given by the Council to Siour Bourdon to att«)mpt this voyage.* There can be no doubt whatever that the Relatiotia des Jesuites, whatever may have been said of them since, were the only correct record which was kept of the early doings of the colony, and there can be no doubt whatever that had Sieur Bourdon in 1C56, as is claimed, made a voyage of this kind, a record of it would have been kept, as I propose to show in a moment. The next voyage to which M. De Callieres refers ir. his memoir is that of Father Dablon, a Jesuit, who in 1661, as Mr. Mills states in his Ileport, was ordered by Sieur D'Argenson, Governor of < /anada, to proceed to the country about Hudson's Bay. It is stated that Dablon went there with Sieur De Valliere, and that the Indians who came back with them to Quebec ileolared that they had never seen any Europeans there before. Mr. Mills, in a note on the next page, 127, explains the Relationa of the Jesuits not mentioning Bourdon's voyage by the assertion that they were naturally anxious that members of their own society should be the pioneers in discovery, and that therefore many important discoveries were never brought to light in their Relations because they were not made by Jesuits. Of course an argument of this kind cannot apply to the voyage of Dablon, as he was a Jesuit, a man in whom the interests of the society were centred ; and if a voyage had been made by him, no doubt a great deal of prominence would have bten given to it On the contrary, in the third volume of the J suit Relations, 1662, we find this Jesuit, Father Dablon, describing an unsuccessful voyage that lie made. There can be no doubt that he attempted a voyage. A portion of this relation is written by himself, and he calls it, "Journal du Premier Voyage Fait Vers la Mer du Nord." This first portion of it is most important and conclusive as showing that De Callieres, in his memoir to M. De Seignelay twenty-one years afterwp js, must have been speaking from hearsay, and without any authentic documents 0{i which to base his assertions. Dablon says that the highest point which he did reach was Nekauba, a hundred leagues from Tadousac, and that subsequently he returned ; and this is from a report of this journey written by himself. I noticed that the Attorney-General attempted to raise a doubt as to the identity of the Dablon in De Callieres' memoir with the Dablon of the Relations des Jesuites. I have examined with care, and I find at the end of one of the volumes a complete list of all the Jesuits, pioneers both of the faith and in the way of discovery, and I find that there is only one Dablon mentioned. Another inaccuracy of this memoir is as to the trip of Duquet, under an order said to have been given by Sieur D'Argenson. There can be no doubt that at the time this pretended order was given D'Argenson had left Canada. The Attorney-General must admit now, although he attaches so much importance to this memoir, that it is inaccurate in most important particulars : first as to the voyage of Bourdon, which is shown nev er to have taken place at all ; next as to the voyage of Dablon, which is shown also not to have taken place ; then as to the trip of Duquet, under the special instructions of a Superior who could not have given them since he had left the country two years before. f My learned friend has attached a great deal of importance, apparently, to the fact that in 1627 a Charter had been gmnted by Lonis XIII. to a number of adventurers sent to discover new lands to the nortli of the River St. Lawrence. But my learned friends have omitted to verify the fact that in this Charter to the French Company, which the Commissioners will find in the first volume of Edits and Ordonnances, at page 6, the only portions of land granted to the French Company are the lands or portions of lands which had already been occupied by the Kings of France, and the object of the Charter was simply to give them an exclusive right of trade therein. The clause of the Charter reads as follows : — " Le fort et habitation de Quebec, avec tout le pays de la Nouvelle France dite Canada, tant le long des Cotes depuis la Floride que les predecesseurs Rois de Sa ♦ [See note *, p. 278, ante.—G. E. L.] t[S«e M to these several expeditions the notes pp. 278, 279, 280, antt.—G. E. L.] LIMITS UNDER ACTS OF 1791 CONSinRRKD. SOi^ Majeste ont fait habitor on rangeant les Cotes do la Mar jusqu'aii CercJo Artiquo pour latitudo, et do longitude dopuis I'lle de Terroneuve tirant i\ I'ouest au Grand Iac dit la Mer douce et au de\&. que de dana los terres, et le long des Rivieres qui y paHsent et se dechargent dans lo fleuve dit St. Laurent, ou autremont la grande Rivi6re du Canada, et dans tons les autres fleuves qui se portent t\ la mer ;" thereby clearly indicating that the Charter did not go further than the land occupied by the predecessorR of Louis XIV.* In the Case for the Province it is stated at page 3, " La Nouvelle France was then under- stood to include the whole region of Hudson's Bay, as the maps and histories of the time, English and French, abundantly prove." This is a broad assertion, which is not supported by the early discoverers nor by the historians of that time. Charlevoix described New France as being an exceedingly limited territory. (Reads extract from Charlevoix, in French.) I find also in I'Escarbot, a description which shows that at that time the whole territory known as New France extended but a few miles on each ^ide of the St. Lawrence ; and Charlevoix regrets it, and says at that time the giving up of thia territory did not amount to much, as New France was circumscribed by very narrow limits on either side of the St. Lawrence. t My learned friends say that the right of ihe French to places in Hudson's Bay was acknowledged by the Treaty of Ryswick. Tl'e Commissioners will see, on reference to this Treaty of Ryswick, that a special provision was made, quite distinct from the provision in the Seventh Article of the Treaty. By Article Eight it was specially provided that Commissioners should be appointed with full powers to settle the limits of the territories of the conflicting nations around Hudson's Bay. The fact of these Coiomissioners never having met to settle the limits, renders, I respectfully submit, the provisions of the Treaty, so far as the territories around Hudson's Bay are concerned, a dead letter. J Having shown that Sir George E. Cartior and Mr. McDougall were mistaken in most important points, I think that the pretension of my learned friends that the Dominion should be bound by this letter of its Ministers is unfounded. On referring to a map attached to the report made by Mr. Ramsay to the Dominion of Canada some time ago, I find a line which corresponds with the one the Chief Justice referred to at the time, where the Rod Lake is shown immediately to the north-west of Lake Superior, at the height of land. I understand that the Commissioners have much less difficulty about the western boundary than the other. Chief Justice Harrison — It is the northern boundary that we want now to ascertain. Mr. Monk — My learned friend seemed to attach considerable importance to the Con- stitutional Act of 1791. The Commissioners were alluding a few minutes ago to the fact that in the Proclamation which followed the Constitutioi:al Act (Ontario Documents, 27), the words " until it strikes the boundary line of Hudson's Bay " are to be found. Now, this Proclamation was simply declaring when the Constitutional Act would come in force ; so that if the Commissioners would take notice of the Constitutional Act itself, which is in Ontario Documents, page 4, they will perceive a frequent recurrence of the words, " Government of the Province oj Quebec" It is to be found in the second line of the second paragraph, and is continually mentioned, thereby indicating that by that Consti- tutional Act there was no intention whatever to enlarge or vary in any manner the old limits of the Province of Quebec, as stated in the Quebec Act of 1774. I may be allowed to refer to the remarks of Chief Justice Sewell in De Reinhardt's Case, which do not apply to the western boundary, but show that no increase of the limits of the Province of Quebec could have taken i^ lace. I am citing from the mintites taken in shorthand under the sanction of the court, printed in a book which I obtained from the parliamentary library, in which the point specially set forth by Mr. Stuart, then representing the prisoner, is fully reported. I i\ lii a * [This very qudtation shows that the Charter of the French King covered the country as far north m the " Arctic Circle."— G. E. L.] + [Charlevoix thra referred to the settled districts only of New France ; and as to L'Esoarbot, see hb description, p, 10, ante, wherein New France is stated to be limited on the west by "the Pacific Ocean," and on the north by the "Frozen Sea."— G. E. L] t [But by this eighth article of the Treaty certainplaces in the Bay were confirmed to France, without regard to any action of the CommisBionerB. (See the Treaty, Book Arb. Doca., p. 15.)— G. E. L.] M :\m AllOUMKNT OK MR. M(»NK BKFORE THE AIUHTRATOIIH, 1878; pi is-, Thu oann came up apooially on two or three occasionH. It camo up on a motion for airast of judgmont after the verdict had been rondored. On this q'.jstion an to whether tho Gonntitutional Act of 1791, owing to the U8e of thin word "Canada," might directly or indireotly ho accepted oa showing what was the Province of Queb.imed by tiie Company ; and they remained, with several others in the same region, in possession of France till the cession of Canada. And yet the Company professed themselves satisfied with what had been delivered up to them : " The surrender of the Bay and Streights aforesaid has been made according to the tenour of the Treaty, at least in such manner that the Company acquiesce therein, and have nothing to object or desire further on that head." (H. B. Co.'s Memorial of 1719, Book Arb. Docs., \>. 359.) -G.ErL. ] . . \ I M 368 ARGUMENT OF MR. MONK BEFORE THE ARBITRATORS, 1878 : 1 . Bladen raaintaining his position as far as these limits are concerned. The limits, as con- tained in these instructions, are a line " drawn from the south-western point of the Island of Grimington, or Cape Perdrix (so as to include the same within the limits of the Bay), to the Great Lake Miscosinke, alias Mistoveny, dividing the said lake into pai-ts (as in the map to be delivered to you) ; and that where the said line shall cut the 49th degree of northern latitude, another line shall begin and be extended westward from the said lake, upon the 49th degree of northern latitude, over whicli said line, so to be described as above mentioned, the French, and all persons by them employed, shall be prohibited to pass to the northward of the said 49th degree of latitude." There can be no doubt whatever that at that time the 49th parallel seemed settled upon as corresponding about with the height of land. Further on in the instructions of the commissary are these words : " But you are to take especial care in wording such articles as shall be agreed on with the commissary of His Most Christian Majesty upon this head, that the said boun- daries be understood to regard the trade of the Hudson's Bay Company only," clearly recognizing in these instructions to their commissary that the charter of the Hudson's Bay Company, such as it had been granted to them, according to their interpretation and recognition of the charter, extended down to the 49th degree of latitude. Ghief-Juatice Harrison — For the purposes of trade only. Mr. Monk — I would respectfully submit that their charter for the purposes of trade did not extend farther than their territorial right went. In 1719 a memoir on the sub- ject of the limits of the Hudson's Bay was sent to the English commissioners through Lord Stair to the Marquis D'Estrees, one of the French commissaries. It states: — "The commissaries named by His Britannic Majesty demand that the said limits may be defined in the following manner, viz. : That the limits shall commence from the north cape of Davis Bay, in latitude 56 degrees 30 minutes, which shall serve as limits between the English and the French on the coast of Labrador." It then describes the coast of Labrador and the 49th parallel as being the limits on which the English commissaries would insist ; and proceeds to state that these limits were to be insisted on solely as regards the trade, and that His Britannic Majesty did not thereby accede to the right of the French to any lands in America in the said boundaries. I submit that this was an act on the part of His Majesty's Government clearly showing that in 1719 the interpre- tation of the Hudson's Bay Charter, and the limits as understood then, were the 49th parallel, or what was corresponding to it, the height of land, as understood at that time. I will not detain the Commissioners any longer on this portion of the case. If there is any difficulty as to whether this northward line should be drawn due north from the confluence of the Ohio and the Mississippi, or should follow the course of the Mississippi, I would refer the Commissioners most particularly to the judgment, a ver " exhaustive one, which was rendered by Chief Justice Sewell and his colleagues upon the motion on arreot of judgment in the De Reinhardt case which I have above referred to. It is not reported in full in the Ontario Documents, and is very imperfect as an extract The point was a most important one, the life of a fellow-being depended on it, and the gentlemen on the bench to whom was entrusted the decision were men of the highest reputation and standing in the legal world. Chief Just^ '^ Harrison — Notwithstanding the adjudication, the point supposed to be adjudicated upoii 'eems to have been considered so doubtful that the sentence was never acted upon. Mr. Monk — But the reason I lay some stress upon this is that my learned friend Adeemed to think that this question at the trial had simply come up incidentally. The iact is that it was argued at great length on the motion for arrest of judgment, and a decision come to after mature consideration of all the documents and treaties, and after as much historical research as was possible. Chief Justice Sewell says : " We have been compelled to give a decision upon the question, not from any wish on our part, but because it has been brought before us and wo had no way of evading it." '* It is impos- sible for us to do otherwise ; it is a fixed and certain boundary (speaking of the due north line from the confluence of the Ohio and Mississippi), and according to the statute we have to the best of our knowledge decided it. In the decision we have made we are supported by the authority cf Lord Hardwicke in the disputes between Penn and Balti- THE ATTORNEY-GENERAL OF ONTARIO BEFORE THE ARBITRATORS IN REPLY. 369 more " — where a similar difficulty arose. I have the case at length, but there is no use in detaining the Commissioners any longer upon it, if I may be allowed to leave this book with them. The discussion about this northward line is very amply shown in these notes which I hold ; much more so than in the Ontario Documents. 1 do not know from what report that extract was taken. The book I have contains every point brought up and adjudicated upon, and every argument used in favour of the pretension which my friends are urging, that the Mississippi should be the boundary line. The Attorney-General of Ontario in Reply, ^i' -? ft'Urf? mse. uld be drawn due )llow the course of ,0 the judgment, a lis colleagues upon avo above referred y imperfect as an depended on it, II were men of the The Attorney-General in reply said : — Most of the arguments of my learned friends which are not covered by the observations that 1 addressed to the Arbitrators in my opening, have been already considered and answered in Mr. Mills' report, and the docu- ments of which the Arbitrators have been put in possession ; and, to avoid prolonging the present discussion, I shall confine my reply to the estoppel which my learned friend Mr. MacMahon finds in the settlement made by the Dominion with the Hudson's Bay Company, and in the Imperial Act under which the settlement was effected. My learned friend has pointed out that an individual who with full knowledge acquiesces by liis silence in what is done by others to his prejudice, cannot afterwards hold the thing so done to have been as against him illegal or void. I do not desire to hold the transaction between the Company and the Dominion to have been illegal or \c?d. It was the pressure from the people of Upper Canada that brought it about; but when all the Company's claims became vested in the Dominion, both those claims that there is a question about and those that there is no question about were expected to enure, and I submit did clearly enure, for the benefit of whatever portions of the Dominion were really entitled thereto as against the Company. The Dominion was acting in the settlement as trustee for all the Provinces which constituted the Dominion, The new territory not within any of the Provinces is in the common interest to be divided into provinces as it becomes settled. Ontario did not suppose that any statute obtained from the Imperial Parliament, or anything done by the representa- tives of the Dominion, was to estop her from claiming whaL belonged to her as a Prov- ince. But there is no proof that Ontario as a Province even knew anything about the matters which are said to estop her, before these matters were finally concluded. In fact, they all took place without any reference to the Local Government. The Dominion Government was understood to be acting for all in good faith, and without prejudice to the rights of the Provinces among themselves ; and the Province of Ontario had a right to assume that the Dominion, after settling with the Company, would take the same view of the boundary question which the Dominion had always previously taken, namely, that Canada, and therefore Ontario, extends to the Rocky Mountains on the west and far north of the height of land, no intimation to the contrary having been given to the Pro- vincial Government until long after the acquisition of the Company's claims. The Com- pany had some territory in regard to which there was no dispute ; it really did belong to the Hudson's Bay Company ; it was thought important that Canada should ai- j Ire this territory ; and it was desired also to get a clear and undisputed title to both that which the Hudson's Bay Company cercainly had, and the further territory in. regard to which there was the dispute. The settlement with the Company was not on the assumption that the whole belonged to the Company ; the £300,000 paid to the Oompany would have been a mere bagatelle as purchase money for all that the Company pretended to claim ; it would have required several millions to buy all if their title had been clear ; but there was a controversy about the title, and it was thought worth while to give that amount of money and certain other advantages to the Company, for the purpose of getting all doubt removed without further delay. The arrangement was a compromise, and understood to be so. Chief Justice Harrison — You wens acquiring, in fact, a quit claim. The Attorney-General — That was all. There is another point with reference to my learned friend's o'^toppel. He says that we stood by and concealed our rights from the Dominion Ministers. But, on the contrary, they knew our rights better, perhaps, than Si ^'1 ■f:i m aw AWARD OF THE ARBITKATORS, 1878. m % tlie new Provincial Ministers did. It was Dominion Ministers who had been stating our •case against the Company ; everything they had stated against the Company was in favour of Upper Canada ; whatever they claimed to the north and west as belonging to (Janada was in fact a claim for Ontario. Some of these Ministers had indeed been the very agents through whom the facts in our favour had been brought to light and pressed, officially and otherwise, upon public attention. In consequence and by means of this contention they got the surrender from the Company for a comparatively small sum, and they prevented the Province from negotiating on its own account with the Company. If there is any estoppel in the case, it is the Dominion that is estopped from resisting our <'laim, instead of the Province being estopped from making the claim. AWARD OF THE ARBITRATORS.* h Hi ^^i To ALL TO WHOM THK8K PRESENTS SHALL COME : ,:>■'•■ The undersigned having been appointed by the Governments of Canada and Ontario its arbitrators to determine the northerly and westerly boundaries of the Province or ■Ontario, do hereby determine and decide that the following are and shall be such boun- daries ; that is to say : — Commencing at a point on the southern shore of Hudson's Bay, commonly called James' Bay, where a line produced due north from the head of Lake Temiscaming would strike the said south shore ; thenoe along the said south shore westerly to the mouth of the Albany River ; thence up the middle of the said Albany River, and of the hikes thereon, to the source of the said river at the head of Lake St. Joseph ; thenoe by the line to the easterly end of Lao Seul, being the head waters of the English Piver ; thence westei-ly through the middle of Laa Seul and the said Englisli River to a point where the «ame will be intersected by a true meridional line drawn northerly from the international monument placed to mark the most north-westerly angle of the Lake of the Woods bv the recent Boundary Commission ; and thence due south, following the said meridionnl line to the said international monument ; thenoe southerly and easterly following upon the international boimdary line, between the British possessions and the United States of America, into Lake Superior. But if a true meridional line drawn northerly from the said international boundary at the said most north-westerly angle of the Lake of the Woods, shall be found to pass to the west of where the English River empties into the Winnipeg River, then, and in such case, the northerly boundary of Ontario shall continue down the middle of the said English River to where the same empties into the Winnipeg River, and shall continue tlience on a line drawn due west from the confluence of the said Euglish River with tlic ttaid Winnipeg River, until the same will intersect the meridian above described; and tlience due south, following the said meridional line to the said international monument : tlience southerly and easterly, following upon the international boundary line, between the British possessions and the United States of America, into Lake Superior. Given under our hands, at Ottawa, in the Province of Ontario, this third day of August, 1878. RoBT. A. Harrison. i', Edwd. Thornton. Signed and published in the presence of ¥. Hincks. E. C. Monk. Thomas Hodoins. ♦ Sess. Papers, Ont., 1882, No. 23. foms. Committee, 1880, p. 480. Report of Proceedings before the Arbitrators, p. 67 ; Report Hn, * [For the orders of reference by the respective Governments, 12th November, 1874, see ante, pp. 24fi, 24" and 249. For the orders dated Slst July, 1878, see ante, p. 266. The latter Orders were for givinK effect -to arrangements, lon^ before made, for substituting Chief Justice Harrison for Chief Justice Richards, who had resigned ; and Sir Francis Uincks for Hon, L. A. Wilmot, who had died ; und for appointing Sir Edward Thornton as third arbitrator. The throe arbitrators had been communicated with accordingly, long before they met in Ottawa to hear counsel, and the papers and documents bearing on the question naii from time to time l)een sent to them, for perusal and consideration, as they were got ready. When the arbitrators nHsembled in Ottawa by appointment to hear counsel, the formal Orders of Slst July, 1878, wer« made.— G.E.L.] CORRESPONDENCE RESPECTING LEGISLATION TO GIVP} EFFECT TO AWARD, 1878. 371 ,d been stating our Company was in ist as belonging to id indeed been the ) light and pressed, I by means of tluK irely small sum, and I the Company. If from resisting our The Provincial Secretary to the Secretary ok State.* Canada and Ontario of the Province of shall be such boun- ,y, commonly called Temiscaming would irly to the mouth of r, and of the lakes jph ; thence by tho iglish Piver ; thence to a point where the )m the international ke of the Woods by I the said meridionnl erly following upon the United States of jrnational boundary oil be found to pass Elver, then, and in le middle of the said and shall continue glish River with tlu' )ove described; and lational monument -, ndary line, between Superior. io, this third day of . A. Harrison. Thornton. INCKS. Ltors, p. 67 ; Report H". B74, Bee anU, pp. 240, 247 iTB were for pvinK effect Lf Justice RichardH, wh" Jiind for appointing Sif loated with accordingly, ■ring on the question had le got ready. When the ] of 3lBt July, 1878, wew J ' : . !. . f M !. *> / . Toronto, 8l8t December, 1878. * Sir, — I am directed by His Honour the Lieutenant-Governor to intimate that a measure will be introduced during the approaching session of the Legislature to give effect, by way of declaratory enactment and otherwise, to the award made by the arbi- trators appointed by the Governments of Canada and Ontario to determine the northerly and westerly boundaries of the Province of Ontario. The Act, I presume, may be in substance the same as B. S. 0., chapter 4, with the variations necessary in consequence of the award having now been made. No proclamation was issued, as had been con- templated, when the Act was passed. See section 8. I am further directed respectfully to remind the Government of Canada that the territory which was in dispute before the award was made, extends on the easterly side of Ontario from, say, the Rocky Mountains to aline drawn due north from the confluence of the Ohio and Mississippi, and extends on the northerly side from, say, the height of land to the most northerly limit of v anada ; that the award assigns part of this territory to the Dominion, and part to Ontario, and that the administration of justice will continue to be surrounded with difficulties and uncertainties, especially in the matter of jurisdic- tion, until the award is confirmed by express legislation at Ottawa and here; and that the subject assumes unusual importance in view of the construction of public works witliin tho territory and the consequent influx of an unsettled and migratory population. His Honour the Lieutenant-Governor will be glad to learn that such legislation as may be necessary to give effect to the award will be had at Ottawa at the next session of the Parliament of Canada ; as the legislation should, it is respectfully submitted, be as nearly as possible simultaneous and identical. His Honour will be glad to receive and consider any suggestions in connection with tills object, and also to receive as soon as possible the maps, field notes, ete., etc., relative to so much of the territory assigned to Ontario as ha'' been surveyed under the authority of the Dominion. ' " ■ ' I have the honour to be, Sir, ' '' '*' '• '• ''''"'*■ , Your obedient servant, ' .' ' ': 'i:'i.!- if s ■ Arthur S. Hardy, Hon. J. C. Aikins, Secretary of State, etc., etc., Ottawa. Secretary. l;.-; •!..-• "4 The Under-Secretary op State to the Provincial Secretary.* -. ■ u ; Department op the Secretary op Statk, • ' Ottawa, 8th January, 1879. Sir, — I have the honour to acknowledge the receipt of your letter of the 3 Ist December last, addressed to the Honourable the Secretary of State, respecting legislative enactment to give effect to Award made J:»y the Arbitrators to determine the northerly and westerly boundaries of the Province of Ontario, and am directed to state that the same will not fail to receive all due consideration. I have the honour to be, Sir, Your most obedient servant, EnouAUD J. Langevin, . ,' Under-Secretary of State. The Honourable A. S. Hardy, Provincial Secretary, Toronto. Se88. PaperB, Ont., 1879, No. 80; iff*k. 372 ONTARIO ACT RESPECTING NORTHERLY AND WESTERLY BOlTNDARIES, 1879. J Extract from the Speech of His Honour the Lieutenant-Governor of Ontario , , ON the Opening of the Legislature, 9Tn January, 1879.='= It is also my pleasing duty to call your attention to the settlement by arbitration o£ the northern and western boundaries of Ontario, since you last assembled. The decision of the Arbitrators declares the boundaries of the Province to extend to the waters of Hudson's Bay on the north, and to the north-west angle of the Lake of the Woods on the west, these limits embracing an area of many thousand square miles beyond the limits to which the claim of the Dominion since 1871 would have confined us. You will be invited to approve of a measure having for its object the preservation of order, the administration of justice, and the encouragement of settlement and enterprise in this territory. I have reason to believe that the outlay necessary to secure these objects will be more than compensated by the revenue to be derived from the country. I '' An Act respecting the Northerly and Westerly Boundaries op Ontario.! Whereas the northerly and westerly boundaries of the Province of Ontario were not determined until lately ; And whereas pending the determination ihereof certain provisioiaal lines, which for certain purposes were to be regarded as such boundary lines, were agreed to by the Governments of the Dominion and the Province ; And whereas it was agreed by the Governments of the Dominion of Canada and the Province of Ontario that the true boundaries should be determined by reference to arbitration ; And whereas one of the arbitrators named in the Revised Statutes of Ontario, chapter four, died, and the other resigned without having made any award ; And whereas the Governor-General of Canada in Council afterwards named as arbitrator the Honourable Sir Francis Hincks, of the City of Montreal, Knight, and the Lieutenant-Governor in Council of this Province named as arbitrator the Honourable Robert Alexander Harrison, Chief Justice of Ontario ; And whereas the two Governments further agreed that the Right Honourable Sir Edward Thornton, Knight, should be the third arbitrator, and that the r'etermination of the award of the said arbitrators or a majority of them in the matter of the said bound- aries should be taken as final and conclusive ; And whereas on the third day of Aiigust, in the year of our Lord one thousand eight hundred and seventy- eight, the said arbitrators made their award in writing, in the words following : — [Here is given the text of the Award, which see in order of date 3rd August, 1878, ante p. 370.] And whereas the effect of the said award is to give to this Province less territo)^ than had been claimed on behalf of the Province, and more territory than the Government of Canada had contended to be within the limits of the Province, or than was contained within the provisional boundary lines aforesaid ; And whereas by chapter twenty-eight of the Acts of the Parliament of the United Kingdom of Great Britain and Ireland, passed in the session held in the thirty-fourth and thirty-fifth years of Her Majesty's reign, and intituled " An Act respecting the establish- ment of Provinces in the Dominion of Canada," it is enacted that the Parliament of Canada may, from time to time, with the consent of the Legislature of any Province iu the Dominion, increase, diminish, or otherwise alter the limits of such Province upon such terms and conditions as may be agreed to by the saiu Legislature, and may with the like consent, make provision respecting the effect and operation of any such increai^e, or diminution, or alteration of territory in relation to any Province affected thereby ; And whereas it is proper that the boundaries determined by the said award lie adopted and confirmed ; ♦ Journals Leg. Ass., 1879, Vol. 12, p. 2. t Ontario Statutes, 42 Vic, cap. 2. Assented to llth March, 1879. mi 3ARIKS, 187D. TKANSMISSION OF BOUNDARY DOCUMENTS TO DOM. GOVERNMENT, 1879. 373 "he n !iij Therefore Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. The Legislature of the Province of Ontario consents that the Parliament of Canada may declare that the boundaries which by the award of the arbitrators aforesaid were decided to be the northerly and westerly boundaries, respectively, of this Province, shall be and are the northerly and westerly boundaries thereof, whether the same increase, diminish, or otherwise alter the true northerly and westerly limits of the Province. ES OF Ontario, t ice of Ontario were The Assistant Provincial Secretary to the Secretary of State.* Toronto, 2nd May, 1879. -ni ,,^». Sir, — As in the report of the proceedings in the House of Commons of 1st instant» appearing in the newspapers, it is stated that the papers relating to the North-West boundary question have been mislaid, I am instructed, in order that no time may be lost in introducing the legislation necessary to set at rest aqy doubts as to the boundaries of Ontario, to forward to you the following documents : — 1st. A copy of the printed collection of Statutes, Documents and Papers bearing on the question. 2nd. Printed statement of the Case of the Government of Canada. 3rd. Printed statement of the Case of the ProA'ince of Ontario. 4th. A manuscript copy of the Order in Council of the Lieutenant-Governor of Ontario with reference to the appointment of arbitrators. 5th. A manuscript copy of the Award. 6th. Printed copy of correspondence between the Secretary of State of Canada and thp Secretary of this Province respecting legislation with reference to the Award. I am further desired to say, that in order to facilitate the consideration of this matter, copies of the printed documents above mentioned have been forwarded to each member of the Dominion Government. I have the honour to be. Sir, • ' • Your obedient servant, I. R. Eckart, Assistant Secretary. ■ The Honourable the Secretary of State (Canada), Ottawa. - i^; ! The Assistant Provincial Secretary to the SK' uetary op State.! Toronto, 23rd September, 1879. Sir, — I am directed by His Honour the Lieutenant-Governor to call the attention of the Government of Canada to mv despatch dated 31st December last, respecting the legislation needed to put beyond dispute, in civil and criminal cases, any question as to the western and northern limits of Ontario. The measure therein referred to as intended to be submitted to the Legislature of Ontario was, as you are aware, passed at its last session ; but no like Act was passed by the Parliament of Canada at its recent session. I am to remind you that a report on the subjef-t, by a Committee of the Honourable the Privy Council, was approved by His Excellency the Governor-General in Council on the 12th November, 1874, and that in this report it was set forth that, in a memoran- il m * SegB. Papers, Ont., 1880, No. 46, p. 2. ilbid., p. 3. I 'I 374 CORRESPONDKNCE RESPECTING LEGISLATION TO GIVE EFFECT TO AWARD, 1879 ; I'i m . Richards, then Chief Justice of Ontario, named as referee on behalf of that Province, but who was substv quently replaced by the then Chief Justice, the Honourable R. A. Harrison, and to tlie Honourable Sir Francis Hincks, who had beon named on behalf of the Dominion, aiul that subsequently to the action taken under the Order in Council of 12th November, 1874, it had been mutually agreed between the Governments of the Dominion and < )ntario that the Right Honourable Sir Edward Thornton should be selected as thir' referee, and the Committee recommended that such selection should be confirmed by Minute of Council, and that the determination of such three referees should be final and conclusive upon the limits to be taken as and for such boundaries respectively. Corresponding Orders in Council were made by this Province. T am directed to respectfully suggest that an award having, on the 3rd August, 1878, been duly m'ade in pui-suance of the reference, it it is just that there should le nc further delay in formally recognizing the award as having definitely settled the matters submitted to the arbitrators. The Government of Ontario, on its part, acquiesced in the award, not because it was believed to have accorded to this Province all that was claimed on its behalf, or all that the Province might within its strict legal rights have had awarded to it, but because the tribunal appointed jointly by the two Governments was one to whose competency and character no one could take exception, and because according to the judgment of the people of Ontario neither party to the arbitration could consistently with good faith refuse to abide by the decision. The Government of Ontario does not doubt that the Government and Parliament of C'anada will ultimately take the same view, and I have respectfully to represent that the delay in announcing the acquiescence of the Dominion authorities, and in giving full effect otherwise to the award, has been embarrassing and injurious. Tlie present Government of Canada has already been made aware that before the arbiti-tors met an exhaustive collection had been made by the Governments of Canada and IJntario, severally, of all the facts, documents and evidence bearing upon the con- troversy ; that evp'.' 'thing material had been printed, and in a form which facilitated to the greatest practical degree the full and prompt examination of the question at issue ;; tliat cases had been prepared on both sides, containing a summary of the respe'ctive claims and the reasons therefor ; that these cases also had been printed ; and that the whole matter had been argued before the arbitrators by counsel. With respeci/ to the arbitrators it is manifest that no three persons could havp been selected whose judgment would be entitled, in such a case, to more unqualified respect than that of the three arbitrators appointed. Sir Francis Hinoks, as a Canadian publicist and statesman, is acknowledged to have few equals in shrewdness, industry or TO AWARD, 1879 : GROUNDS OF ONTARIO S CLAIM TO THK LIMITS OF THE AWARD, 375 ripe experience ; the late Chief Justice Harrison was a lawyer of the first rank, and fi judge whose method of reasoning was always distinguished for its practical and common sense character; and Sir Edward Thornton, Her Majesty's Minister at Washington , l)rought to the consideration of the case, not only the aid of the very high abilities, but the absolutely independent judgment of one who could have no partialities or inclina tions in favour of either side. If the merits of the award have been considered by the Government of Canadii. they will have observed certain preliminary things in connection with the question which were and are beyond controversy. Amongst these are the facts that Ontario is entitle matters. It was reserved for tht) signification of the pleasure of His Excellency tlie (fOvernor-General thereon. It was not assented to. I append an extract (marked " B ") from the approved report to Council from this Department upon the Bill. In 1877 an Act was passed by the Province of Ontario intituled " An Act respect- ing the Territorial and Temporary Judicial Districts of the Province and the Provisional County of Haliburton." This Act gave to stipendiary magistrates referred to therein, and to the Division Court of the District of Algoma, certain extended jurisdiction. The Act was left to its operation, but not without the attention of Council being called to its provisions. I append an extract (marked " C ") from the approved report of the Department to Council respecting the same. The Act now under consideration goes a step further, and practically provides for the whole administration of civil justice, for some time to come, within the territory referred to in the Act, by a court, the judge of which is appointed by the Lieutenant- Governor, and the salary and allowances of whom are fixed by the Provincial Legislature-. The 6th sectioii gives to this court, in the District of Algoma, the following jurisdiction : — 1. In all personal actions where the amount claimed does not exceed $400. 2. In all actions and suits relating to debt, covenant and contract, where the amount or balance claimed does not exceed $800. Provided always, as to the additional jurisdiction so hereby conferred, that the con- tract was made within Algoma, or the cause of action arose therein, or the defendnnt resides therein. i 3. For the recovery of the possession of real estate in the said District. . 4. " In replevin, where the value of the goods, or other property or efiects distrained, j taken or detained, does not exceed the sum of 8400, and the goods, property, or effects. { to bo replevied are in the said District." Previous to the Act its jurisdiction was confined to personal actions where the debt or damages claimed did not exceed 8100 (see Revised Statutes of Ontario, chapter 90, ; section 16), except by consent of the parties, when the stipendiary magistrate could, on ; their written consent, try cases to the extent of $800. 1 Section 8 gives to the stipendiary magistrate holding courts in certain remote dis- tricts therein mentioned the following jurisdiction : — 1. In all personal actions where the amount claimed does not exceed $100 (except as in the next section excepted). 2. " In all cases and suits relating to debt, contract, and covenant, where the amount or balance claimed does not 'cixceod $200, or if the amount is ascertained by the signa- ture of the defendant to the sum of $400. " Provided always that the contract or covenant was made within the said portion j of the District of Thunder Bay or Nipissing in which the court is held, or the cause of '. action arose therein, or the defendant resides therein. 3. " In certain actions for the recovery of the possession of lands or other corporeal liereditaments situated in the said portion of the District r.foresaid in which the court is held, and the yearly value of which lands or hereditaments, or the rent payable in respect whereof, does not exceed $100, that is to say : — (a) " Where the term and interest of the tenant of any such corporeal hereditaments has expired or has been determined by the landlord or the tenant by a legal notice to quit. | (6) " Where the rent of any such corporeal hereditaments is sixty days in arrear, and the landlord has the right by law to re-enter for non-payment thereof. " And in respect to such actions the said courts shall have and exercise the same powers as belong to and may be exercised by the Superior Court of Common Law, in and in respect to actions of ejectment. 4. *' In replevin, where it is made to appear that the value of the goods or other property or effects distrained, taken, or detained, does not exceed the sum of $100, and the goods, property or effects to be replevied are in the said portion of the District in which the court is held." Section 10 provides for the appointment of an officer for the District of Algoma, ta m 380 REl'OHT OF M1N18TKU OF JUSTICE, 1880 ; \)n called the Deputy Clerk for Thunder Bay, and power \h jfiven to him to iHoue writHfor the conimencemont in the District of Thunder Hay, of actions in the DiHtrict Court. ProvJHion in made for a ;ieal for the court with which all writs and proceHWH are to lie Healed. An appeal is given from the stipendiary Tniigistrate's order or deoision to tlio judge of Hault Hte. Marie. The 14th section is as follows : — 14. " Where the amount claimed in any action in the said District Court, or where, in the case of ejectment or replevin, the subject matter of the action as appearing in thi' wriL in ejectment, or in the at&davit filed to obtain the writ in replevin, is beyoml the jurisdiction of the County Courts in other parts of Ontario, costs to a successful defendant shall be *axed upon the Superior Court scale. 2. '• In like manner, where the plaintiff recovers in respect to a cause of action beyond the jurisdiction of the said County Courts, costs shall be taxed to him on the Superior Court scale, subject, however, to his obtaining the certificate or order of the judge, where, under the Common Law Procedure Act, such certihcate or order is recjuired in the Superior Courts. 3. " In respect to any action within the provisions of the first part of this section, the attorney of a successful plaintiff shall be entitled to charge his client County Court costs only, unless he was instructed in writing by such client to sue in respect to a matter bevond the jurisdiction of the said County Courts, in which case the said attorney shall be entitled to charge costs upon the Superior Court scale. 4. " Either party may, as of right, upon giving twenty days' notice to the opposite party, have the taxation of costs by the deputy clerk revised by the clerk at Sault Ste. Marie." The 15th section provides for the appointment of a sherifi'of the District of Thunder Bay, and for the execution by him of writs and of other processes issuing out of the District Court. The 16th section empowers the stioendiary magistrates, upon the trial of any cause where the amount claimed is over $200, or where the matters in dispute relate to the title of real estate, to state a special case for the opinion of the Court of Appeal in Ontario. The 18th and 19th sections are as follows : — 13. "Every judgment of the said Division Courts may be enforced by writs or other process framed in accordance with the requirements of the case and similar in form to writs or other process for like purposes issued out of the Superior Courts. 19. "Every stipendiary magistrate of the District of Thunder Bay, or Nipissing, may exercise the authority conferred upon County Court judges by the revised .statute respecting over-holding tenants." The Legislature unquestionably has authority to constitute a court possessing the jurisdiction of the courts referred to in this Act, but I submit to Council whether this Act, which seems to encroach upon the powers of the Dominion Government with respect to the appointment of judges, and which goes far beyond any previous Act of a similar character, should be disallowed, notwithstanding that other Acts, equally objectionable on principle, but less objectionable in degree, have been left to their operation. In my opinion the Act should be disallowed, unless the same be repealed within the time for disallowance. Jas. McDonald, Minister of Justice. <" DISALl-OWANCK OF ACT FOU ADMINIHTIIATION OF JUSTICE IN DISPUTED TEUU'y. 3MI ter of Jimtice. rilt "A." (Memorandum by J. JS. Dennis, Estjuire, as to Boundary, ) [Annexed to the foreKuinv Report of the Minister of JuHtice, dated 20th January, 1880.] . Devaktment of the Interior, Ottawa, 2l8t January, 1880. The undersigned has the honour to Hubniit for the information of the Honourable the Minister of Justice, that on the 8th July, 1874, an Order in Council was passed, agreeing upon a conventional boundary between the Province of Ontario and the Dominion in the following terms : [Hero follow sections 1, 2, 3 and 4, of the agreement of 26tii June, 1874, respecting a provisional boundary lino. See p. 244, ante.'\ The undersigned has further the h' our to submit for the information of the Min- ister of Justice, a map showing the i itory included in the s<> oral descriptions in HBCtionn 1, 2, 3 and 8 of the Act of the ntario Legislature, passed at the last session thereof, chapter 19. Respectfully submitted, J. S. Dennis, DejiUty of Ike Minister of tlm Interior, B." ( Extracts from a former Report on a Bill passed in British Columbia for establishing Mining Courts.) [Annexed to the foregoing Reriort of the Minister of Justice, dated 20th January, 1880.] In addition to the above Acts of the Legislature of British Columbia, a Bill w&a passed intituled " An Act to r.raend the Gold Mining Amendment Act, 1872," which Bill was reserved by His Honour the Lieuteimnt-Governor for the signification of the pleasure of His Excellency the Governor-General thereon. The Act is as follows : " Every Mining Court in this Province shall in addition to its present jurisdiction, have jurisdiction in all personal actions arising within the limits of its present district, and the Gold Commissioner presiding in any such court shall have the like powers to enforce any judgment, decree, rule, or order of such courts as are conferred by section lis of the Gold Mining Amend- ment Act, 1872. The provisions of this Act shall only have effect in the Electorial Dis- trict of Kootenay, and in that part of the Province known as Cassiar," The Attorney-General of the Province reported upon this Act to the Lieutenant- Groveruor as follows : " This Act gives jurisdiction in all personal actions to the Gold Commissioners in Kootenoy and Cassiar, and appears to trench upon the provisions of the 96th section of the British North America Act, which vests the appointment of the Supreme and County Court judges in the Governor-General alone, inasmuch as it pro- vides that the paid employees of the Local Government in the district aforesaid shall have and exercise almost as much power as a Supreme Court judge. As I think this Legis- lature has not the power in effect, to make these appointments, I would suggest that the Act be reserved for the consideration of His Excellency the Governor- General." I refer to the remarks made upon the Mining Court in connection with the 11th section of Act No. 14. This Bill is an illustration of the danger I have above alluded to, as, if it became law, tl jurisdiction of :he Mining Court in the districts referred to will be greater than the jurisdiction of the County Court, and equal to that of the Supreme Court. i 1 ill:;:: i ^ 'I't; 11 :y 382 REPORT OF THE MINIHTER OF JUSTICE, 1880 : t I It It might be convenient that a somewhat extended jurisdiction should be given to a District Court or magistrates in the Districts of Kootenay and Cassiar, thereby avoiding the expense and delay attendant upon a judge of the Supi-eme Couit travelling to these •distant parts of the Province for the purpose of holding Assizes, and it is probable that this Bill was passed with that object in view. I would mention however, that eveu were this Bill assented to, it would be necessary for a Supreme Court judge to proceed to the district mentioned for the trial of criminal cabcs. Upon the whole, I recommend that the assent of the Governor-General be not given to this Bill, which, in fact, should have been disposed of by the local authorities them- selves. The following are the remarks above alluded to : The sections of the Act now under consideration further extends the powers of Gold Commissioners as judges of the Mining Court. The 96th section of the British North America Act, 1867, empowers the Gov- ernor-General to appoint the judges of the Superior, District and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. Bv the 92nd section the Provincial Legislature' have power to make laws in relation to the administration of justice, including the coiutitution, maintenance and organization of Provincial Courts, both of civil and criminfii jurisdiction. They have also power to legis- late respecting the establishment and tenure of Provincial officers, and the appointment and payment of Provincial officers. If there be power in the Legislature of British Columbia to establish this so-called Mining Court, and appoint and pay ' he judges thereof, it must be found in the section 1 have just quoted. I think, however, that this court, which is declared to have original jurisdiction, to be a court of law and equity, and a court of record with a specific seal, and for the purpose of enforcing its judgments, orders and decrees, to have (with certain exceptions), the same powers and authority, legally and equitably, as are exercised in the Supreme Court of Civil Justice of British Columbia by any judge thereof, whicli has power also to summon a jury to assess damages, may be considered a court within the meaning of the 96th section of the Confedera>-;on Act. It is not in my opinion necessary to bring a Provincial Court within the provisions of ttiis section, that it should be called by the particular name of Superior, District or County Court. The exception to that section itself indicates that the Courts of Probate in Nova Scotia and New Brunswick would, unless specially excepted, have come within the defini- tion of Superior, District or County Courts. It will be readily seen how easy it would be for the Local Legislature, by gradually extending the jurisdiction of these Mining Courts, and by curtailing the jurisdiction of the County Courts or Supreme Courts as now established, to bring within their own r(iach, not only the administration of justice in the Province, but also practically tlic a])pointment of the judges of the courts in which justice is administered. Inasuiurli however as legislation of a similar nature to that contained in the section now under con- sideration, has been left to its operation in previous years, and as the provisions of thi' section appear to be convenient, I do not recommend a disallowance of the Act (. Extracts from a Report on a former Act of this Province^ respecting Algoma.) \ Annexed to' the foregoing' Report of the Minister of Justice, dated 20th January, 1880.] " \Ver3 this the first enactment of a similar nature passed by a Provincial Le^'isla- ture, I would hesitate long before recommending that it should be left to its operation, as it appears to intrench upon the powers conferred upon the Governor-General of Canada by the 96th section of the British North America Act, 1867, which section is as follows : — " The Governor-General shall appoint the judges of the Superior, District and Counir I'ourts in each Province, except those of the Courts of Probate in Nova Scotia and Npv> Brunswick." Inasmuch however, as Provincial legislation has been previously left to its operation, whereby certain judicial powers in civic matters have been conferred upon stipendiary magistrates, and whereby courts presided over by the stipendiary magistrates and having in effect the powers of the Division Courts of Ontario ha' e been constituted, I do not feel at liberty to object to the provision of the present Act, provided the jurisdiction conferred by the former legislation upon the subject, which has been left to its operation, has not in effect been substantially extended. In a report dated 29th September last, upon the Acts of last session of the Legisla- ture of British Columbia, I had occasion to remark at some length upon legislation of a nature similar to that now under consideration, and I then pointed out the danger which might ensue from this class of legislation. I refer to that report, the Act, 31st Vic, 1868, Ontario, chap. 35, which was passed to provide for the organization of the Territorial District of Muskoka, and under which the stipendiary magistrate of that district was appointed, declared that certain provisions of chapter 128 of the Consolidated Statutes of Upper Canada, intituled " An Act respect- ing the administration of justice in unorganized tracts," should extend and apply to the said District of Muskoka. Similar provisions are contained in the Act SSi-d Vic. (1869), Ontario, chapter 24, whirh provides for the organization of the Territorial District of Parry Sound, and in the -Act oi Vic. (1871), Ontario, chapter 4, which provides for the organization of the Terri- torial District of Thunder Bay. The provisions of the Act of the Consolidated Statutes, thus made applicable to these territorial districts, in effect provided for the holding of a court of civil jurisdiction in each district under the name and style of the first (or other as the case may be). Division Court for the District of D. C. over which the stipendary magistrate should preside and be the sole juu^*^ in all actions brought in such Division Oourt, and determine all questions as well of iact as of law in relation thereto, in a sum- mary manner, with power, should he think fit, to summon a jury of five persons to try tlie fact controverted in a case. For every such court provision is made for an appointment of a clerk and one or more l)ailifi8. The jurisdiction of the court is declared to be over all personal actions, save certain excepted ones where the debtor's damages claimed is not more than $100. Each court is to have a seal with which all summonses and other processes shall be sealed or •tampc' Sui .3 are to be commenced by summons to the defendant issued by the clerk, con- taining the particulars of the plaintiff's demand. Provision is made for the subpoenaing of witnesses ; the judgment of the court with certain exceptions to be final and conclusive. Provisions are made for the enforcement of the judgments by execution. Proceed- ings and suits against absconding debtors are provided for. The magistrate is given jurisdiction on the consent of the parties to try and determine cases up to $800 in amount. In addition to the Act in the Consolidated Statutes above referred to, which has been made applicable to the three districts mentioned, certain pro- ^i8ions of the Act respecting Division Courts, being chapter 19 of the Consolidated Stat- utes of Upper Canada, and of the Act to amend the Acts respecting Division Courts, being cliapter 23 of 32 Vic. (1868-9), Ontario, are made applicable to the Districts of Parry Sound and Thunder Bay. The provisions of the Act respecting Division Courts referred to, relate to examination of judgment debtor's claims of landlords to goods seized in execution. The provisions of the Act 32 Vic. (1868-9), Ontario, amending the Acts respecting Division Courts, provide that all judgments in the Division Courts shall have and continue to have the same force and effect as judgments of courts of record. Provisions are made for the entry of final judgments by the clerk where the claim is not disputed, and proceed- ings for the garnishment of debts are provided for. It will be thus seen that the juris- diction of the courts presided over by the stipendiary magistrates of the three districts al)Ove mentioned, was, befom the passing of the Act now under consideration, practically as extensive as the jurisdict'on of the various Division Courts in the Province, and in some Ciises was more extensive. The present Act does not therefore seem to extend to any substantial extent the jurisdiction previously possessed by those courts. i J I \ I il ,!■ i \. p-4 384 CORRESPONDENCE RESPECTING DISALLOWANCE OF ONTARIO ACT OP 1879. ifek' I ft- ■ The section now under consideration however, not only declares that the stipendiary magistrate, as Division Court judge, shall have the like jurisdiction and powers as are now possessed by the County Court judges in Division Courts in counties, but goes on to provide that the provisions of law from time to time in force, in Ontario relating to the Division Courts in counties and the officers thereof, etc., shall apply to the Division Courts of these districts. This provision is, I think, objectionable, inasmuch as although it may be quite within the legislative authority of Ontario to increase the jurisdiction of the Division Courts in counties, as such courts are now presided over by judges appointed by the Dominion, yet their jurisdiction might be increased to an extent that might be objec- tionable in the case of these District Division Courts, the judges of which are appointed by Ontario. Were the section limited in its operation to the jurisdiction and power, etc. of the County Court judges in Division Courts and counties as now existing, I would not for the reasons above mentioned, recommend any interference with the Act. I recommend, however, that the attention of the Lieutenant-Governor be called to the objection referred to, with a request that his Government may promote, at the next session, and before the time expires for determining as to the disallowance of the Act, amendatory legislation. Report of a Comuittee of the Privy Council, approved by the Governor-Gek. ERAL ON THE 12th FEBRUARY, 1880.* • ■ The Committee have had under consideration a report dated 20th January, 1880, from the Honourable the Minister of Justice upon an Act passed by the Legislature of the Province of Ontario at its last session, intituled " An Act respecting the Administra- tion of Justice in the Northerly and Westerly parts of Ontario."t In concluding his report, the Minister submits whether this Act, which seems to encroach upon the powers of the Dominion Government with respect to the appointment of judges, and which goes far beyond any previous Act of a similar character, should be disallowed, notwithstanding that other Acts equally objectionable on principle, but less objectionable in degree, have been left to their operation ; and he states that, in his opinion, the Act should be disallowed, unless the same be repealed within the time for disallowance. The Committee concur in the opinion above stated, and submit the same for your Excellency's approval. Certified, J. O. Cot^, Clerk, P. C. The Under-Secretary of State to the Provincial Secret ary.J Ottawa, 14th February, 1880. Sir, — I am directed to transmit to you herewith for the information of His Honour the Lieutenant-Governor of Ontario, a copy of an Order of His Excellency the Governor- General in Council on the subject of an Act passed by the Legislature of that Province at its last session, intituled " An Act respecting the Administration of Justice in the North- erly and Westerly parts of Ontario." I have the honour to be. Sir, Your obedient servant, . , ' Edouard J. Langevin, Under-Secretary of State. The Honourable the Provincial Secretary, Toronto. • Sess. Papers, Ont., 1881, No. 30, p. 9. fOnt. Stat., 42 Vict., cap. 19. Assented to 11th March, 1879. , tSess. Papers, Out., 1881, No. 30, p. 9, IliiH E Govbbnor-Gen- the same for your ADDRESS OK THE LEGI8LATIVK ASSEMBLY OF MANITOBA TO THE GOV,-GEN. 385 Address op the Legislative Assembly op Manitoba to the Govkknor-General.* To His Excellency the Right Honourable Sir John Douglas Sutherland Campbell (com- monly called tlie Marquis of Lorne), one of Her Majesty's Most Honourable Privy Vouncil, Knight of the Most Ancient and Most Noble Order of tfie Thistle, ami Knight Grand Cross of tlie Most Distingtiished Order of St. Micliael and St. Oeorge, Governor-General of Canada and Vice-Admiral of tfie sam-e, etc., etc., etc. Mat it Please Your Excellency, - )1- We, Her Majesty's most dutiful and loyal subjects, the Legislative Assembly of Manitoba, in session assembldd, huu^bly approach your Exceliency for the purpose of representing — That in the opinion of this Legislature the boundaries of the Province of Manitoba are too circumscribed, and that the same could be extended easterly, westerly, and northerly with advantage to the Dominion of Canada ; That this Legislature has already, at the suggestion of the Privy Council of Canada, passed an Act to provide for the enlargement of the limit of the Province, 37 Vic, cap. 2, Statutes of Manitoba ; That the sum placed at the disposal of the Province for the ordinary expenses of government is utterly inadequate to meet the just requirements thereof ; That in view of a readjustment of the financial relations of the Province with the Dominion being made to accord with the census returns of 1881, this Legislature deems the present a fitting time to respectfully request the Privy Council of Canada to take steps for the immediate enlargement of the Province, and that in connection therewith, such terms and conditions shall be granted and made as will be just and equitable, and will enable the executive authorities of the Province to provide for the suitable adminis tration of its affairs, and to attend to the various public needs of the community, in- creased as these are by a rapidly augmenting population. We, therefore, humbly pray that your Excellency will be pleased to take such steps afl may be necessary to carry out the views of the Legislature. G. McMioken, Speaker. Legislative Assembly, Winnipeg, Uth February, 1880. I '■ The Uhdbr-SbcrBtary op State to the Provincial Secretary, t Ottawa, 17 th February, 1880. Sir, — With reference to my letter of the 14th inst., I am directed to transmit to you herewith for the information of His Honour the Lieutenant-Governor of Ontario, a copy of a report of the Minister of Justice and of its appendices, A, B, C, on the subject of the Act passed by the Legislature of Ontario at its last session, intituled " An Act respecting the Administration of Justice in the Northerly and Westerly parts of Ontario." I have the honour to be, Sir, Your obedient servant. 'Hie Honourable the Provincial Secretary, Toronto. Edouard J. Lanoevin, Under-Secretary of State. * Return to an Addreee of the Ho. of Coma., Can., dated 16th March, 1882, nunib«re<1 (82a), p. 7. t Bew. Papers, Ont., 1881, No. 30, p. 10. 25 386 HEHOLUTIONS OF THK LEOI8LATIVK ASSEMBLY OF ONTARIO, 1880. SI" i r ■ - Rbsolutions of tur Leoislativk A8SKM111.Y OF Ontario, pasued on the 3rd March 1H8U.* Ia^- That by an agrecmoiit r'ade between the Government of Canada and the Govern- ment of Ontario, it was decided that, subject to the approval of the Parliament of Canada and the Legislature of Ontario, the questions which hiul arisen concerning the northerly and westerly boundaries of the Province of Ontario should be determined by arbi- tration ; and that by Orders in Council, passed by the respective Governments, it was declared, that the determination of the Arbitrators appr '^ted to make such award should be " final and conclusive." That in accordance with the agrecunent entered into by the respective Governuioits, the Right Honourable Sir Etlwar'l Thornton, Her Majesty's Minister at Washington, the late Hon. R. A. Harrison, Chief Jusiice of Ontario, and tlie Honourable Sir Francis Hincks, were agreed upon by Orrlers in Council of the respective Governments, as Arbi- trators to determine the northerly and westerly boundaries of the Province of Ontario. Thai on the 3rd day of August, 1878, the said Arbitrators delivered their award, wherein they declared and determined what are the northerly and westerly boundaries of the Province of Ontario. That in a despatch dated 31st Decoiiiber, 1878, from His Honour the Lieutenu.t- Qovern?T of Ontario, to th«5 Secretary of State for Canada, His Honour intimated to the Govcr; ment of Canada, thai durint^- the approaciiing session of the Legislature a measure vvcuid i>c ir.! roducod " to give ettect by way of declaratory enactment or otherwise, to the award made by the Arbitrators to determine the northerly and westerly boundaries of the Province of Ontario ;" and that His Honour, in the same despatch, also stated he would be glad to learn that such legislation iw might be necessary to give effect to tlie award would be had at Ottawa in the next session of the Parliament of (Janada. That in a despatch dated 8th January, 1879, the Government of Canada acknow- ledged the receipt of the despatch last mentioned, and stated that the same would not fail to receive all due consideration ; and that no intimation was given, in reply to His Honour's communication, that the Government of Canada would refuse to be bound by the award of the Arbitrators, or to submit to the Parliament of Canada a measure giving effect thereto. That by an Act of the last session, the Legislature of Ontario did consent that the boundaries of the Province, as determined by the s-'id award, should be declared to be the northerly and westerly boiuidaries of the Province of Ontario, and by a further Act made provision for the administration of justice in the northerly and westerly parts of Ontario. That on the IGth January, 1869, the Government of the Dominion of Canada, through its members and representatives, contended before Her Majesty's Imperial Gov- ernment that the western boundary " extended to and included the country between the Lake of the Woods and Red River," and that the northern boundary included " the whole region of Hudson's Bay." That the boundaries then claimed by the Government of the Dominion, on half of Cauada, as against the pretensions of the Hudson's Bay Company, would, on the same grounds, be the boundaries of the Province of Ontario, and would give to Ontario a ter- ritory vastly in excess of that embraced in the award of the Arbitrators. That by an Order in Council, approved on the 28th November, 1871, the constitu- tional advisers of His Excellency the Governor-General of Canada, obtained the sanction of the Crown to the statement that " it was of much consequence that the ascertaining and fixing on the ground of the boundary line in question, should be, as far as possible, expedited ;" that by anoth. ■ < *■ Jer in Council, approved on the 9th April, 1872, His Excellency's advisers obtained the assent of the Crown to the opinion that both Govern- ments would " feel it thair duty to settle, without delay, upon some proper mode of determining, in an authoritative manner, the true position of such boundary ;" that by another Order in Council, approved on the 7th November, 1872, His Excellency 'f advisers .Tnumals Leg. Ass., 1880, Vol. 13, p. 160. m < m , 1880. THE 3kd March, and the Govern- iainentof Canada ing the northerly bermined by arbi- veruments, it was luch award should tive Governiiicita, or at Washington, arable Sir Frsincis ernments, as Arln (vince of Ontario, ered their award, jsterly boundaries r the Lieuten.. t- ir intimated to the nslature a measure it or otherwise, to westerly boundaries ispatch, also stated to give effect to the of Canada, f Canada acknow- ,he same would not fn, in reply to His iise to be bound by a a measure giving lid consent that the be declared to be d by a further Act |d westerly parts of .pinion of Canada, laty's Imperial Gov- lountry between the lary included " the iiinion, on half of TOuld, on the same Ive to Ontario a ter- brs. 1871, the constitu- Ltained the sanction It the ascertaining as far as possible, fth April, 1872, His that both Goveru- jie proper mode of fboundary ;" that by Excellency'^ advisers RKSOLUTIONS OF THE LEGISLATIVE ASSEMBLY OF ONTARIO, 1880. 387 obtained the further sanction of the Crown to the statement that " the importance of obtaining an authoritative decision as to the limits, to the north and to the west, of the Province of Ontario had already been atlirmed by a Minute in Council," and "that the establishment of criminal and civil jurisdiction and the necessity of meeting the demands of settlors and miners for the acquisition of titles to lands, combined to render such a decision indispensible." That although so long since as the 12th November, 1874, and as the result of pro- tracted negotiations, the Government of Canada, by Order in Council, consented to concur in the proposition of the Government of Ontario to determine the northern and western boundaries of Ontario by means of a reference ; and although information was from time to time given to Parliament by the Govei-nment of Canada -^^ the progress of the arrangements for such reference, no action was taken, nor was any effort made by or in the Parliament of Canada, previous to the award being given, to arrest or prevent the reference agreed upon by the respective Governments of Canada and Ontario ; that in May, 1878, the Parliament of Canada granted $15,000 to defray the expenses of the Ontario Boundary Commission. That this House regrets that, notwithstanding the joint and concurrent action of the respective Governments in the premises, and the unanimous award of the Arbitrators, the Government of Canada has hitherto failed to recognize the validity of the said award, and that no legislation has been submitted to Parliament by the Government of Canada for the purpose of confirming the said award. That nevertheless it is, in the opinion of this House, the duty of the Government of Ontario to take such steps as may be necessary to provide for the due administration of justice in the northerly and westerly pai ts of Ontario, and that this House believes it to be of the highest importance to the interests of this Province, and to the securing of the peace, order and good government of the said northerly and westerly parts of Ontario, that the rights of this Province, as determined and declared by the award of the arbitra- tors appointed by the concurrent agreement and action oi the Governments of Canada and Ontario, should be firmly maintained. That this House will at all times give its cordial support to the assertion, by the Government of Ontario, of the just claims and rights of this Province, and to all neces- sary or proper measures to vindioite such just claims and rights, and to sustain the award of the Arbitrators by which the northerly and westerly boundaries of this Province have been determined. ,, The Resolutions were carried on the following division : Yeas. — Messieurs Appleby, Awrey, Badgerow, Ballantyne, Baxter, Bell, Bishop, Blezard, Boulter, Broder, Calvin, Cascaden, Chisholm, Creighton, Crooks, Dryden, Field, Fraser, Freeman, French, Gibson (Huron,) Gibson (Hamilton), Graham, Hardy, Hawley, Hay, Jelly, Kerr, Laidlaw, Lauder, Livingston, Long, Lyon, McCraney, McKim, Mc- Laughlin, McMahon, Mack, Meredith, Metcalfe, Monk, Morgan, Morris, Mowat, Nairn, Near, Neelon, Pardee, Parkhill, Paxton, Richardson, Robinson (Card well), Ross, Sinclair, Springer, Striker, Tooley, Waters, '.Vatterworth, White, Widdifield, Wigle, Wood, Young — 64. yay.—Mr. Miller— 1. The Secretary op State to the Lieutenant-Governor.* Ottawa, 13th March, 1880. Sir, — Adverting to the letters of Mr. Under-Secretary Langevin to the Honourable the Provincial Secretary of Ontario, under date the 1 4th and 17th ultimo, and their respective enclosures, I have the honour to request that you will inform me whether your •"'I' t '><• * Sess. Papera, Ont.. 1881, No. 30, p. 10. 388 ItEPORT OF ATTORNj-nr-OEN. ON ONT. ACT RESPECTING ADMIN. OF JUSTICE. K^ 1p ^M' P'l ^^^ ; 4- HeI^.^^i 1 Klf ' \ Wi ml- W'"' ' m^> ¥"'' !'•'- W'' fe sR- w. sif 1". ■ J'i rt l4 ^f If'f f*' p ^i i'f h' r- w Ik Government intends to address to this Government any communication with reference to the Act, cap. 19, 42 Vic. (1879), "An Act respecting the Administration of Justice in the Northerly and Westerly parts of Ontario."* I have the honour to be. Sir, Your obedient servant, , J. C. His Honoo' 'ho Lieutenant-Governor of Ontario, Toronto. AlKINS, Secretary of State. Report op the Attorney-General op Ontario, 16th March, 1880, oh the Ontario Act rbspectino the Administration op Justice in the Northerly and West- erly Parts op Ontario.! The undersigned respectfully submits the following observations on a despatch of the Under-Secretary of State, dated the 14th day of February ultimo, transmitting a copy of an Order of His Excellency the Governor-General in Council, concurring in a Report of the Honourable Minister of Justice, wherein it is stated, that, in the opinion of the Minister, an Act passed by the Legislature of this Province at its last session, entitled "An Act respecting the Administration of Justice in the Northerly and Westerly parts of Ontario," should be disallowed, unless the same were repealed within the time for disallowance. The undersigned has also had under consideration a copy of the said report, transmitted in a subsequent despatch, dated the 1 7th day of February. The objections suggested to the Act, in the Report of the Minister of Justice, are these : — (1) That the Act is "based on the assumption that the award of the Right Honou. able Sir Edward Thornton, the Honourable Sir Francis Hincks, and the late Chief Jus- tice Harrison, respecting the northerly and westerly boundaries of Ontario, settles such Boundaries;" and (2) that (independently of that question) the Act "seems to encroach upon the powers of the Dominion Government, with respect to the appointment of judges, and goes far beyond any previous Act of a similar character." With respect to the first objection, it is matter of profound disappointment that, after >:iz exhaustive investigation which the question of our northerly and westerly boundaries received, and the unanimous decision, eighteen months ago, by the distin- guished and able gentlemen selected as arbitrators, the Government of the Dominion is not yet prepared to abide by the award, or to recognize the just rights of the Province which the award established ; but the Honourable the Minister of Justice appears to have overlooked that the Act in question (while making no allusion whatever to the award) assumes no more with regard to the extent of our territory than that we have aoine v,erritory west of " a line known as the provisional westerly boundary line of Ontario," iind same territory north " of the height of land separating the waters which flow into Hudson's Bay from those which flow into Lake Superior and the Georgian Bay." Now, independently of a mass of other proofs in favour of Ontario's claim, our right to terri- tory as far west as the Lake of the Woods, and as far north as the boundary or shore of Hudson's Bay, is demonstrated by the terms of the Royal Commissions, from the 27th December, 1774, to Sir Guy Carle ton, Captain-General and Go vernor-in- Chief of the Province of QueVec, and the subsequent commissions to successive Governors-General, to the commission to Lord Elgin, of the Ist October, 1846, being the last of the com- ♦ [See, in order of date, pp. 378, 384, 385 and 387, ante, the Report of the Minieter of Justice, dated February, 1880 ; and the all relating to the disal- 20th January, 1880 ; the Domin'.on Ordei in Council approving thereof, dated l'2th February, 1880 ; and the communications of 14th and 17th _i''ebruary, and l.^th March, 1880, respoctively- lowance of the Act in queatio'.i. — G. E. L.J + SesB. Papers, Ont., 188t, No. 30, p. 11. F JU8TICR. BKPORT OP ATTOKNKY-GKN. ON ONT. ACT RESPKCTINO ADMIN. OF JUSTICE. 389 ?ith reference to }n of Justice in etary of State. )N THR Ontario SRLY AHD WK8T- )n a despatch of ), transmitting a concurring in a it, in the opinion its last session, 5 Northerly and 9 repealed within lideration a copy day of February, aister of Justice, le Right Honoui le late Chief Jus- tario, settles such eems to encroach appointment of ppointment that, y and westerly by the distin- the Dominion is of the Province ustice appears to whatever to the lat we have some ine of Ontario," which flow into ian Bay." Now, jur right to terri- idary or shore of IS, from the 27th in-Chief of the jvernors-General, last of the com- ter of Justice, dated ruary, 1880; and the ilatingto the disal- missions to our Governors-General which contained boundary line descriptions. There is far more reason for maintaining that the award gavo us too little, than for maintain- ing that it gavo us too much ; and it gave us considerably less than Dominion Ministers had claimed before the purchase of the rights of the Hudson's Bay Company. The Minister of Justice does not, however, advise the disallowance of the Act -on this ground, but advises its disallowance upon the ground of the other objection which he suggests, namely, that the Act "seems to encroach upon the powers of the Dominion Government with respect to the appointment of judges, and goes far beyond any previous Act of a similar character." The undersigned is respectfully of opinion that this objection has arisen from inad- vertence, as he will now proceed to shew. The Minister refers altogether to tho 6th section of the Act, and to the jurisdiction which it confers on the District Court of Algoma — "a Court," ho observes, "tho judge of which is appointed by the Lieutenant-Governor, and thf salary and allowances of whom are fixed by the Provincial Legislature." Now, the fact is, that by the British North America Act, it is provided that the Govrrnor- General has the appointment of the judges, not only of Superior and County Courts, but of District Courts also ; and the 100th section provides that the salaries and allowances of the judges of District Courts are, like those of the Superior and County Court judges, to be fixed and provided by the Parliament of Canada. These sections have always been held to apply to tht^ judge of the District Court of Algoma ; and accordingly, ever since Confederation, his salary has been provided by the Parliament of Canada, and not by this Province. The present judge was appointed previous to Confederation ; and it has not before been suggested that the Lieutenant-Governor has the power of appointing his successor, or that the Provincial Legislature has anything to do with his salary or allowances. The undersigned respectfully submits that there is no ground whatever for either suggestion. The Minister refers also to the 10th, 14th, and 15th sections of our Act. The 14th section relates to the costs in the District Court; and the 10th and 15th provide for the appointment of certain additional officers for the transaction of the business of the same Court ; namely, a Deputy Clerk and a Sheriff. The undersigned assumes that the right of the Province to pass these sections was not intended to be questioned by the Minister or by the Dominion Government. The only other suggested encroachment " upon the powers of the Dominion Govern- ment with respect to the appointment of judges," is the jurisdiction which the Act gives to stipendiary magistrates, these officers being appointed by the Lieutenant-Governor. The Minister observes that several of the Provinces " of Canada have, since Confedera- tion, provided for the appointment of officers called Magistrates, Stipendiary Magistrates, Commissioners, etc., and have given to these officers certain judicial functions." As illustrative of this statement, he Minister refers to an Act of the Legislature of British Columbia, respecting the Gold Commissioner's Court in that Province ; which Act pur- ported to give to the Gold Commissioner, who was a local officer to be appointed by the Lieutenant-Governor, very extensive jurisdiction in civil matters. But, as respects this Province, the office of stipendiary magistrate was not created since Confederation, but had existed under our laws for many years previously. These officers are for unorganized tracts, where the population is too sparse, and the transactions are too limited, to require or justify the holding of Courts of Assize or County Courts ; and the object or policy was, and is, to provide by such means for the due administration of justice in such terri- tories until the population and transactions should become such as to require and justify other judicial arrangements. Under the law in force for this purpose at the time of Con- federation (C. S. U. C, chap. 128), a stipendiary magistrate had part of the jurisdiction which, in the more settled portions of the Province, belonged to County Court judges, and part of that which, in the more settled portions, belonged to the Superior Courts. By the 1 3th section of the Act, Stipendiary Magistrates were authorized to hold Division Courts, which, elsewhere in the Province, were held by County Court judges ; and by the 23rd section, jurisdiction was given to them in all personal actions (save as therein- after excepted) where the debt or damages did not exceed $100. In Division Courts, presided over by County Court judges (C. S. U. C, chap. 19, sec. 55), it was only as to ;, ;ifl I 11 1 i'^ »'■ . I V ".r ' { .'WO REPORT OF ATTORNEV-GEN. ON ONT. ACT RESPEtTINQ ADMIN. OF JUSTICE. m- m m '•i,,, ■'ill claima and demauda of a specitied kind that tho jurisdiction existed to try cases of that amount ; while in other personal actions, the jurisdiction was confined to cases where the debt or damages claimed did not exceed $40. By the 74th and 75th sections of C. S. U. C, chap. 128, a stipendiary magistrate had jurisdiction, Ly consent of parties, to refer to arbitration matters in dispute, " within the jurisdiction of the Court as to subject-matter, but irrespective of amount, if not exceeding $800 ;" the arbitration to be "to such persons, and in such manner, and in such terms, as he may think reasonable and just." The stipendiary magistrate had jurisdiction also to set aside the award, or to enforce it as a judgment of his court — an authority which, in the case of so large an amount, belonged, elsewhere in the Province, to a Superior Court or judge only. Such was the jurisdiction of these temporary officers when the British North America Act was passed ; and yet, their appointment, or the duty of providing for their salaries and allowances, was not given to the Dominion authorities, and therefore fell to the Province. Whether, if the office were a new one, unknown before Confederation, or if a stipendiary magistrate had, by law, before Confederation, no part of the jurisdiction which was exercised elsewhere by judges of the Superior or District or County Courts, the Legislature would have had jurisdiction to create the office, or to give to the holder of it the jurisdiction mentioned, is another question altogether ; but it is plain, under the British North America Act, that, as respects our distant outlying and sparsely popu- lated territories, it is no encroachment on Dominion authority to assign to stipendiary magistrates some of the authority belonging elsewhere in the Province to Courts the appointment of whose judges, and payment of whose salaries, are given to the Dominion. Before Confederation, the provisions of the Act last mentioned were in operation in the District of Nipissing. Immediately afterwards, the opening up and partial settle- ment of Muskoka and Parry Sound rendered desirable the extension of the same pro- visions to these territories. This could, under the Act, have been legally done by proclamation of the Lieutenant-Governor, without further legislation ; but an Act of the Legislature in each case was preferred, and was passed (31 Vic, chap. 35 ; 33 Vic, chap. 24). Subsequently, similar provisions were in the same way extended to Thunder Bay, by 34 Vic, chap. 4. These statutes were passed by the first Legislature of Ontario, and while the late Honourable John Sandfield Macdonald was Attorney-General of Ontario, and Sir John A. Macdonald was Minister of Justice. The report on the Act now in question does not name these Acts, but names a subsequent Act of Ontario, passed in 1877, by which similar provisions had been applied to the Provisional County of Haliburton. With reference to these Acts, it may be observed here that the legislation of the Parliament of Canada respecting Keewatin and the North-West Territory, shews that the Parliament of the Dominion agrees, as well with the Parliament of the old Province of Canada, as with the Legislature of Ontario in 1868, 1869, 1871, and 1877, that exceptional legislation is required for territories so thinly populated as those in question. The jurisdiction which the Ontario Act of last session conferred upon the stipendiary magistrates therein mentioned is not nearly bO great as that conferred by Dominion statutes upon similar magistrates in the territories of the Dominion. The undersigned further respectfully submits, that, as the administration of justice in the Province, including the constitution, maintenance, and organization of Provincial Courts, belongs exclusively to the Provincial Legislature, it is to this Province alone that the right belongs of determiniiig what the extent, from time to time, should be of the jurisdiction of these temporary officers. The Act in question, however, did not extend their jurisdiction in our undisputed t^^rritory in case of money demands, but merely gave a muuh-needed authority in a few other matters as to which otherwise the people would have no practicable remedy. Thus the 19th section gave to the stipendiary magistrates the authority which is conferred upon County Court judges elsewhere by the statute re- specting over-holding tenants, an authority ordinarily exercised by those judges in Cham- bers. A reference to R. S. 0., chap. 137, sec. 3, will show that this jurisdiction only exists where tenants over-hold without colour of right, and the 6th section provides for the action taken being subject to the supervision of the Superior Courts. With respect to any territory which Ontario may have west of the pravisional boun- JUSTR'E. L-y cases of tliat to casea where 5th sections of sent of parties, the Court as to rbitration to be tiink reasonable le the award, or i of so large an 56 only. North America or their salaries fore fell to the federation, or if the jurisdiction County Courts, ve to the holder is plain, under d sparsely popu- a to stipendiary e to Courts the o the Dominion. 3 in operation in d partial settle- if the same pro- legally done by ut an Act of the ). 35; 33 Vic, ided to Thunder iture of Ontario, »rney-General of port on the Act Act of Ontario, )visional County ;gislation of the tory, shews that ;he old Province and 1877, that lose in question, the stipendiary d by Dominion ration of justice DU of Provincial >vince alone that hould be of the , did not extend but merely gave le people would iary magistrates f the statute re- judges in Cham- urisdiction only ion provides for tovisional boun- IIKIMJUT OV ATT(JKNEY-UKN. ON ONT, AOT RESPECTIXQ ADMIN. OF JUSTICE. 301 (Iary line or north of the height of land, tlie jurisdiction given to the stipendiary magis- trate sitting in a Division Court is by the 8th section increased from |lOO to $200 in certain classes of cases, namely, in suits relating to debt contract and covenant, or to S400, where the amount is ascertained by the signature of the defendant ; provided, however, that the contract or covenant was made within the limit for which the Court is held, or provided the cause of action arose therein, or the defendant resides therein. The purchasing power of $200 in this tenitory now is less than of $100 when that sum was named. Jurisdiction is also given in minor cases between landlord and tenant, and in replevin, where the value of the goods claimed does not exceed $100 ; an appeal is provided for from the decision of the magistrate where the amount claimed is $200 or upwards, or where title to land or other corporeal property is in question (section 16, sub-section 4) ; and, on the other hand, various matters are excluded from the jurisdiction of the Magis- trate, namely, actions for gambling debts, for spirituous or malt liquors, for malicious prosecution, libel, slander, criminal conversation, seduction, or breach of promise of mar- riage, and actions against a justice of the peace for anything done by him in the execu- tion of his office, if he objects thereto. These provisions show that the Legislature has carefully refrained from trusting to the decision of the stipendiary magistrate matters likely to be of an important nature, and has guarded the rights of parties by providing a convenient mode of appeal where the money or property in question appears sufficient to justify an appeal. These considerations make it plain that the present Act bears no analogy to the Britisli Columbia Act, which purported to confer upon Mining Courts jurisdiction in all personal actions arising within the limits of their respective districts. The undersigned trusts that, in view of these considerations, the Government of Canada will perceive that the Act in question is not objectionable on any ground urged against it, and that its disallowance is not necessary, and would not, under all the circum- stances, be a proper exercise of Dominion authority. The despatch was received when the recent session of the Legislature was far ad- vanced, and it appeared necessary therefore to provide at once for the contingency of the disallowance, it being assumed that the Dominion Government, in common with the Prov- ince, felt and would recognize the propriety of some provision being made for the admin- istration of justice, instead of the territory in question being left to utter lawlessness and anarchy. A new Act was accordingly passed, which is not to go to into effect unless and until the former Act is disallowed. The new Act confines the jurisdiction of the stipen- diary magistrates, as legards subject-matter and amount, to the limits provided for by the law in force before Confederation, and avoids any disputable reference to the extent of territory .vithin which the Act is to operate, leaving that question to be wholly de- termined, as may be, by the law and the right. As the territory in dispute is included in the ten itory which the Province of Canada before Confederation claimed as part of Canada, and therefore of Canada West, or Upper Canada ; and in the territory to which the Dominion, through its Ministers, after Confed- eration, and until the purchase from the Hudson's Bay Company, made the same claim, and on the same grounds ; and which territory the Province of Ontario continued after- wards to claim ; and as the territory, still it seems in dispute, was eighteen months ago solemnly awarded to the Province as its rightful property by the unanimous decision of three arbitrators of the highest character ant to be covered by the prohibition. As the jurisdiction in regard to criminal procedure in every part of the Dominion belongs to the Dominion Parliament, I suggest as, on the whole, the more, convenient course with respect to the disputed territory, that, in the territory west of what was formerly the provisional boundary, ordinary criminal cases be disposed of according to the procedure in force at Keewatin, and in the territory east of the line according to the procedure in force in other parts of Ontario. I suggest this as a rule to be acted upon as far as practicable without being embodied in a legislative enactment ; authority to be given to justices, ate, of Keewatin and of Thunder Bay or Algoma, to )\ct in any part of the disputed territory. A Bill now before Parliament provides for the committal of criminals to gaol either at Prince Arthur's Landing or at Winnipeg. To provide for cases where the summary procedure applicable to Keewatin is not considered sufficient, you might enact that any person charged with crime may be tried in either Manitoba or Ontario, and in any county or district of either of these Provinces. You are aware that a man named Horn is in custody at Prince Arthur's Landing, charged with murder. I do not at present know svtficient of the facts of the case to • Seeg. Papers, Ont., 1881, No. 30, p. 17. t [For this draft Bill, see p. 397, po««.-G.'E.»L.] ISLATION, 1880: DRAFT BILL PROVIDING FOR ADMIN. OF JUSTICE IN DISPUTED TERRITORY. 397 1 WITH RESPECT TO ril 23rd, 1880. determine whether it will be more convenient to try him where the murder took place or at Prince Arthur's Landing. If the latter course is decided upon, the trial had better be before Commissioners of Oyer and Terminer. The Chief Justice o' Manitoba would not care to come so far east from Winnipeg in order to try the case. I do not know what ordinances have been issued for the administration of justice in Keewatin, but I assume that a murder case ought to be tried by a judge. In case you issue a commission for this purpose, we would issue a commission to the same Commissioners and in the same terms, according to the course taken under preceding Govenaments, to avoid unnecessary ques- tions as to the pi'oper authority for issuing such commissions. The Court of Queen's Bench, in the case of Begina vs. Amer (42 U. C. R., 391), decided that the District Judge of Algoma could be commissioned to hold a Court of Oyer and Terminer and General Gaol Delivery, but Mr. Justice Cameron was counsel for the Amers, and was not satisfied with the judgment ; he might take the same view as a judge J and there is a possibility that the Supreme Court might not decide as our Court of Queen's Bench did. The point taken was, that the Act C. S. U. C, cap. 11, sec. 2, prevented the Crown from issuing a Commission of Oyer and Terminer addressed to any one not named in that section, and that as a District Judge is not expressly named. Judge McCrae, the District Judge, could not be nominated. At. it is not likely that qur Superior Court judges will go so far west to hold Assizes for some years to come, I sug- gest an Act settling this question so far as Parliament has jurisdiction to do so. I send a short Bill for this purpose. In regard to civil matters, to tistume or declare that the Keewatin law as to civic procedure shall be in force in any part of the dhputed territory would put it in the power of any suitor to raise the boundary question, as, if our claim of boundary is correct, such an enactment would be ultra vires. I think, therefore, that for the determination of civil rights, you will find it the convenient and indeed only practicable course, to confirm, in reference to the disputed territory, the jurisdiction of our stipendiary magistrate (sec. 43, Vict. cap. 12, sec. 3), and to provide that matters beyond his jurisdiction shall be determined in the District Court of Algoma where the cause of action is within the juris- diction of that Court (lb. sec. 5). Where the matter is beyond the jurisdiction of the District Court of Algoma, authority to try in any Superior Court of Ontario, and in any county, should be given. I presume, since your Government declines to admit our title, you will pay the ex- penses of the administration of justice in the disputed territory so long as it is disputed. Yours truly, O. MOWAT. The Honourable James McDonald, Minister of Justice, Ottawa. ■j m Draft Bill,*^enclosei) in the Letter of the Attorney-General of Ontario to the Minister of Justice, 23rd April, 1880.* [Such of the provislona of this draft Bill ns are printed in the ordinary Kuman character were adopted by the Minister of Justice and incorporated in the Dominion Act, 43 Vic, cap. 36: those provisions wnioh are printed in Italics were not so incorporated. The Dominion Act in question will be found at p. 400, post rx.E.L.l DRAFT BILL. An Act for the Ad?r returned forthwith to the said gaol from which he was taken, as the said judge or cou i may consider proper, and the terms of the said order shall bo duly obeyed ; provided that the judge, or any other judge of the same court, or the court, may, at any time, upon application made in that behalf, vary the terms of the said order. 6. T/ie District Court of the District of Algoma and Division Courts Jieretofore establisJted or which may he hereafter established Jor the District of Thunder Bay, and ty judges and officers of such courts, and the sheriff of the District of Thunder Bay, shall liave authority and jurisdictmi within and over the said territory, hi the same maimer and to the same extent as such court, judges, sheriff, and officers would have authority and jurisdiction within and over such territory if the right of Ontario thereto was undoubted and undisputed ; and the process of' the said courts miy be executed therein. 7. Causes of action arising within the said territory, but not within the jurisdiction of tlie said District or Division Courts, may be prosecuted and tried in any Superior Court of tlis Province of Ontario, and in any county or district in the said Province, and t/ie pro- cess of the said courts may he executed tMrein. !D TERRITORY. DRAKT BILL PROVIDING FOR ADMIN. OF JUSTICE IN DISPUTED TERRITORY. 399 lie dispute is deter- of the Senate and »ry, may be inquired of Ontario, or the le or offence shall be trates, or justice or es of the like nature crime or offence is stice or justices, or ivestigation, and to offence, in the same I county or district , whether it is laid any sentence which nmitted either in an lay be imposed upon )r offence heretofore in the said territory, me or offence within he Province of On- ae or offence, and it n the Province in a ice, then any judge er is confined, having alf of the Minister risoner is in custody ult Ste. Marie, then make an order upon ned in such order to order, convey such tody subject to the y other court which any gaol or lock-up )ntario or Manitoba the judge or court id in the said order, ce, or on bail, f^r said judge or cou i obeyed ; provided may, at any time, Goiirls Jieretofov under Bay, and th'' Thunder Bay, shall the same manner have authority awJ reto was undoubted rein. hiti the jurisdiction my Superior Court vlnee, oml tlie pro- 8. In ail matters of controversy in the courts mentio7ied in the tioo next precodinij sections, the laws of Hie Province of Ontario in force in the said District of Thunder Bay shall govern. 9. The seventy-fourth section, headed " Prohibition of Intoxicants," of tJie Act passed in the thirty-eighth year of Her Majesty's reign, entitled '^ An Act to amend and consoli- date the laws respecting the North- West Territories," sJtall, with the substitution of " the Lieutenant-Governor of Ontario," for " the Lieutenant-Governor of the, said territories or of the Lieutenant-Governor of Manitoba, under regulations to be from time to time made by the Governor in Council," where such words occivr in the said section, as amended by the Act passed in the thirty.-ninth year of Her Majesty's reign, and cltaptered twenty-two, apply to and be in force in all that portion of the said territory hereinbefore described lying west of (In case preceding section does not apply to all the territory mentioned in the schedule, add the following :— ) 10. The pr< Isions of the Revised Statute of Ontario, entitled "Jn Act respecting the sale of Fermented or Spirituous Liquors" shall, so far as the same are in force in t/ie District of Thunder Bay, be in force in that part oft/ie territory fiereinbefore described lying east of as if such p^'ovisions were re-etMcted herein with respect to such territory ; and the License Commissie')iers appointed by the Lieutenant-Governor of Ontario for the District of Thun- der Bay, or for any part thereof, shall liave authority to issue licenses having force in the said last described territory. 11. Every stipendiary magistrate and justice of tJie peace heretofore or hereafter appointed by the Lieutenant-Governor of Ontario, having authority within the District of Thunder Bay, shall have tJte like authority within tlie said territory for Jie enforcement of laws in force therein, in respect of which a stipendiary magistrate or justice of tlie peace lias jurisdiction, as he possesses within the said District of Thunder Bay for the enforce- ment of laws in force in the said district ; and every stipendiary magistrate or justice of the peace having authority within the District of Keewatin sludl have the like authority within the said territory for the enforcement of laws in force tlierein, in respect of which a stipendiary magistrate or justice of the peace lias jurisdiction, as he possesses within, the said District of Keewatin for the enforcement of laws in force in the said district. SCHEDULE. All that territory west of the meridian of the confluence of the Ohio and Mississippi, and described as follows, that is to say : Commencing where the Albany River is inter- sected by the said meridian ; thence up the middle of said Albany River, and of the lakes thereon, to the source of the aid Albany River at the head of Lake St. Joseph ; thence by the nearest line to the easterly end of Lac Seul, being the head waters of the English River ; thence ^^esterly, through the middle of Lac Seul and the said English River, to a point where the same will lie intersected by a true meridional line drawn northerly from the international monument placed to mark the most north-westerly angle of the Lako of the Woods, by the recent Boundary Commission between Great Britain and the United States ; and thence due south, following the said meridional line to the said inter- national monument ; thence southerly and easterly, following upon the international boundary line between the British possessions and the United States of America, into Lake Superior ; but if a true meridional line drawn northerly from the said international boundary at the said most north-westerly angle of the Lake of the Woods is found to pass to the west of where the English River empties into the Winnipeg River, then and in such case the boundary line of the territory claimed by Ontario continues do'?n the middle of the said English River to where the same empties into the Winnipeg River, and continues thence on a line drawn due west from the confluence of the said English River with the said Winnipeg River until the same intersects the meridian above described ; and thence due south, following the said mt-ridional line to the said in- ternational monument ; thence southerly and easterly, following upon the international boundary line between the British possessions and the United States of America, into ij HI I '11 400 ACT RESPECTING THE ADMIN. OF JUSTICE IN DISPUTED TERRITORY, 1880. i^ Lake Superior ; and thence, in either case, through Lake Superior, along the '.nteruational boundary line, to the said line drawn due north from the confluence of the said Rivers Mississippi and Ohio ; and thence along the said due north line to the place of beginning. m MM Av Act respbctino the Administration op Ckihinal Justice in the Territory in dispute between the governments of the province op ontario and op the Dominion of Canada.* Whereas certain territory on the western and northern boundr-ry of Ontario is claimed by the Government of Ontario as being within the said Province, and whereas Euch claim is disputed ; and whereas the Parliament of Canada is desirous of making suitable provision for the administration of criminal justice within the salt' territory until the dispute is determined ; Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : — L Every crime or offence committed in any part of the said territory may be inquired of, tried and punished within p.ny county or district in the Province of Ontario or the Province of Manitoba, or in the District of Keewatin, and such crime or otfence shall be within the jurisdiction of any court, judge, magistrate or magistrates, or justice or justices of the peace, or other functionary having jurisdiction over crimes or offences of the like nature committed within the limits of the county or district in which such crime or offence is prosecuted ; and such court, judge, magistrate or magistrates, justice or justices, or otlier functionacy, shall proceed thereon by way of preliminary investigation, and to trial, judgment and execution, or other punishment, for such crime or offence, in the same manner as if such crime or offence hau been committed within the county or district where such trial is had. 2. Such crime or offence shall be sufficiently laid and charged, whether it is laid and charged to have been committed in Ontario or in the District of Keewatin, and any sentence which might have been imposed upon the offender had the offence been com- mitted either in an undisputed part of Ontario or in an undisputed part of Keewatin, may be imposed upon an offender convicted under this Act. 3. The next preceding two sections shall apply to any crime or offence heretofore committed, as well as to every crime or offence hereafter committed, in the said territor} . 4. Where any person charged with the commission of any crime or offence v, ithin the teiTitory above described is in custody in any gaol within the Province of Ontario, or within the Province of Manitoba, charged with the said crime or jffenre, and it is intended that such person shall be tried in a province other than the prov'nce in a gaol of which he is confined, or in a different part of the same province, then ^n/ judge of any Superior Court of the province in a gaol of which such prisoner is confined, having criminal jurisdiction, or any such court, on application by or on behalf of the Minister of Justice of Canada, or of the Attorney-General of Ontario, or in case the prisoner is in custody at Prince Arthur's Landing vnd it is intended to try him at Sault Ste. Marie, then the judge of the District of Algoma, on application as aforesaid, may make an order upon the keeper of such gaol to deliver the said prisoner to the person named in such order to receive him ; and such person shall, at the time prescribed in such order, convey sucli prisoner to the place at whicli he is to be tried there to remain in custody, subject to the order of the court by which it is intended he shall be tried, or of any other court which may have jurisdiction to try him. In case the prisoner is confined in any gaol or look-up in the said disputed territory, any judge of a Superior Court of Ontario or Manitobii having criminal jurisdiction may make the like order. The judge or court, on granting the said order may, if the judge or court thinks Ht, direct that unless the prisoner is tried within a time limited in the said order, Le shall be * Stats. Can., 43 Vic, cap. .%. A«8ente trial of civil matters ; nor does it set at rest the very important question as to wl iPtner the license law of Ontario or the prohibitory law of Keewatin governs in this temiory. In my letter of' 23rd April last, I suggested that Parliament should be requested xo make some provision in respect of these matters ; and I also suggested ',hat authi ity . hould be given alike to the justices v» ' .igoma to act in any part of the disputed 'ct Court of the District of Algoma, and ' 7, and the judges and officers of such bi. yuVl have authority and jurisdiction ♦^^ed last session, under the hope su of the pee t of Keewatin and Thunder territory ; and that the jurisdiction of of the Division Courts established for '1 i . courts, including the Sheriff ov Thundei • • within this territory. The dral't Bill whion that you would introduce it into Parliament, dealt v '.th these matters ; the sections relating to them were not in the Bill which you introduced ; they seem to me far more important for the due administra'jion of justice than those which the Bill did include ; and indeed the latter, to be op(;iative to any great extent, required the aid of 3ome of the omitted provisions. I do not f,ee what valid objection can be urged against the Intro- duction of these provisions. Th° <:'act. of reciprocal rights being given to the officers of Keewatin and of Ontario would learly show that you were not by this legislation admitting the right of Ontario. On account of the omission of the provision giving to the Sheriff of Thunder Bay authority in this territory, it was found necessary, at very heavy expense, to bring the prisoner Horn, who was accused of murder, down to Sault Ste. Marie for trial. I send you a copy of the clauses in the draft Bill to which I refer above. You are doubtless bearing in mind that th Act of last session expires by limitation upon the rising of Parliament. I also send herewith for your c msideration a new draft Bill* embodying the omitted provisions, and containing some further words which, to prevent possible misapprehension on the part of anybody, you may perhaps think it useful to employ. I trust also that authority will be given to the Ontario Government to deal with the land and timber in the disputed territory, subject to our accounting therefor in case our right to the territory should not be maintained. Though the Parliament of Canada has not yet recognized the award, the award certainly gives to us meantime such a prima facie interest as makes it most reasonable that we should have the necessary means of giving titles to the settlers within the territory, so long as what you deem the possible rights of the Dominion are duly protected in the manner proposed. I remain, etc.. The Honourable James McDonald, O. Mowat. Minister of Justice, Ottawa. Draft Bill enclosed in the poeegoing Letter of the Attorney-General of Ontario to the Minister op Justice, Ist February, 1881. DRAFT BILL. [This proposed Bill was not passed by the Parliament of Canada.— G. E. L.] An Act to make further provision respecting the Administration of Justice in the Territory in dispute between the Governments of Canada and op Ontario. Whereas it is expedient to make firther provision for the duo administration of justice within the territory in dispute betA^een the Dominion of Canada and the Province of Ontario until the dispute is determined ; * [Being the next succeeding document.— G. E. L. ] DRAFT BILL SUBMITTED BY THE ATTORNEY-OEIJBRAL TO MIN. OF JUSTICE. 405 Therefore Her Majesty, by and with the advice of the Senate and the House of Commons of Canada, enacts as follows : — 1. Nothing in this Act shall bo construed as admitting, by implication or otherwise, the right of the Province of Ontario to the territory so in dispute, or any part thereof. And thiH Act may be repealed or amend jd by any Act passed during the present or any future session of the Parliament of Canada. 2. The eleventh section of the Act pabsed in the forty-third year of Her Majesty's reign, chaptered thirty-six, and intituled " An Act respecting the Administration of Criminal Justice in the Territory in dispute between the Governments of the Province of Ontario and of the Dominion of Canada," is hereby repealed. 3. Pending the said dispute, and until the same is decided, and a proclamation is issued by his Excellency the Governor-General declaring such dispute to be at an end, and this Ace no longer in force, or until this Act is repealed, the District Court of the District of Algoma, and the Division Courts heretofore established or which may be hereafter established for the District of Thunder Bay, and the judges and officers of such oourts, and the Sheriff of the District of Thunder Bay, shall have authority and jurisdic- tion witiiin and over the said territory in the same manner and to the same extent as such courts, judges, sheriff and officers would have authority and jurisdiction within and iver such territory if the right of Ontario thereto was undoubted and undisputed ; and the process of the said courts may be executed therein. 4. Pending the said dispute as aforesaid, or until this Act is repealed, causes >?. action arising within the said territory, but not within the iurisdiction of the s District or Division Oourts, may be prosecuted and tried in any Superior Court of tae Province of Ontario, and in any county or district in the said Province, and the process of the said courts may be executed within the said territory. 5. Pending the said dispute as aforesaid, or until this Act is repealed, the laws of the Province of Ontario in force in the said District of Thunder Bay shall govern in all matters of controversy in the courts mentioned in the next preceding two sections. 6. Pending the said dispute as aforesaid, or until this Act is repealed, the seventy- fourth section, headed " Prohibition of Intoxicants," of the Act passed in the thirty- eighth year of Her Majesty's reign, entitled " An Act to amend and consolidate the laws respecting the North- West Territories," shall, with the substitution of " the Lieuten- ant-Governor of Ontario " for " the Lieutenant-Governor of the said territories," where such words occur in the said section, apply to and be in force in all that portion of the said territory lying west of A line drawn due north and south through the most easterly point of Hunter's Island, heimj the line formerly known, as the Provisional Westerly Boundary Line of Ontario, OB, A line drawn^ due north from the confluence of the Rivers Mississippi and Ohio, OE, Such other line as it may be thought proper to adopt. If the line adopted does not prohibit the sale of intoxicants throughout all the disputed territory, then provision sho'xld be mnde for the issue of licenses to sell liquors, as in next section. If the prohibition is extended to the entire disputed territory, this section will, of course, be omitted. 7. Pending the said dispute as aforesaid, or until this Act is repealed, ine provisions of the Revised Statutes of Ontario, entitled "An Act respecting the sale of Fermented or Spirituous Liquors," shall, so far as the same are in force in the District of Thunder Bay, he in force in that part of the territory hereinbefore described, lying west of [Insert here th^ line adopted above.] as if such provisions were re-enacted herein with respect to such territory ; and the License Commissioners appointed by the Lieutenant-Governor of Ontario for the District of Thunder Bay, or for any part thereof, shall have authority to issue licenses having force in the said last described territory. hi' J 400 RESOLUTIONS OF LEO, ASS. REQARDINO NON-CONFIRMATION OF AWARD, 1881. 8. Pending the said dispute aa aforesaid, or until this Act is repealed, every stipendiary magistrate or justice of the peace having authority within the District of Keewatin shall have the like authority within the said territory for the enforcement of laws in force therein, as he possesses within the said District of Keewatin for the enforce- ment of laws in force in the said district ; and every stipendiary magistrate and justice of the peace heretofore or hereafter appointed by the Lieutenant-Governor of Ontario having authority within the District of Thunder Bay, shall have the like authority within the said territory for the enforcement of laws in force therein, aa he possesses within the said District of Thunder Bay for the enforcement of laws in force in the said district. y; j. The Minister of Justice to the Attorney-General of Ontario.* Ottawa, 7th February, 1881. The Honourable O. Mow at, Attorney-General, Toronto. Dear Sir, — I am in receipt of your letter of 5th instant, enclosing copy of a Bill to make further provision respecting the administration of justice in the territory in dispute between the Governments of Canada and of Ontario, which shall receive my best consi- deration. II Yours truly, Jas. McDonald. lii' syf Eesolutions of the Legislative Assembly of Ontario, passed on the 3rd March, 1881.t Resolved, — That this House deeply regrets that notwithstanding the unanimous award made on the Brd August, 1878, by the Arbitrators appointed by the joint and con- current action of the Government of Canada and the Government of Ontario to deter- mine the northerly and westerly boundaries of this Province, no legislation has been submitted by the Government of Canada to the Dominion Parli iment for the purpose of confirming that award, nor has the validity of the award yet been recognized by the Government of Canada. Resolved, — That the omission of the Government and Pavliament of Canada to con- firm the award is attended with grave inconvenience, has the effect of retarding settle- ment and municipal organization, embarrasses the administration of the laws, and inter- feres with the preservation of the peace, the maintenance of order, and the establishment of good government in the northerly and north-westerly parts of the Province of Ontario. Resolved, — That it is the duty of the Government of Ontario to assert and maintain the just claims and rights of the Pro\'nce of Ontario as determined by the award of the Arbitrators ; and this House hereby ^e-affirms its determination to give its cordial support to the Government of Ontario in any steps it may be necessary to take to sus- tain the award, and to assert and maintain the just claims and rights of the Province au thereby declared and determined. The resolutions were carried on the following division : — Yeas — Messieurs Appleby, Awrey, Baker, Badgerow, Ballantyne, Baxter, Bell, Bishop, Blezard, Bonfield, Boulter, Broder, Caldwell, Calvin, Cascaden, Chisholm, Cook, Creigliton, Crooks, Deroche, Dryden, Ferris, Field, Fraser, Freeman, French, Gibson (Huron), Gibson (Hamilton), Graham, Hardy, Hawley, Hay, Hunter, Jelly, Kerr, Laid- law, Lauder, Lees, Livingston, Long, Lyon, McOraney, McKim, McLaughlin, MoMahon, ♦ Sess. Papers, Ont.. 1882, No. 23. t Journals Leg. Ass., 1881, Vol. 14, p. 161. IWARD, 1881. ACr OF MANITOBA PRGVIDINQ FOR EXTENSION OF ITS B0UNDAHIK8, 1881. 4)07 repealed, every 1 the District of 6 enforcement of I for the enforce- Srate and justice rnor of Ontario, B lilce authority t, as he possesses force in the said NTARIO.* ruary, 1881. copy of a Bill ta rritory in dispute e my best consi- McDONALD. ) ON THE 3rd the unanimous \ie joint and con- Ontario to deter- ilation has been for the purpose ecognized by the ■ Canada to con- retarding settle- laws, and inter- he establishment vince of Ontario. Brt and maintain )y the award of give its cordial y to take to sus- of the Province e, Baxter, Bell, Ohisholm, CJook, French, Gibson elly, Kerr, Laid- hlin, MoMahon, Meredith, Merrick, Metcalfe, Monk, Morgan, Morris, Mowat, Nairn, Near, Neelon, Pardee, Parkhill, Paxton, Peek, Robinson (Oardwell), Itobinson (Kent), Robertson, (Halton), Rosevear, Sinclair, Springer, Striker, Tooley, Waters, Watterworth, Wells, White, Widdifield, Wigle, Wood, Young— 75. Nay — Mr. Baskerville — 1. Act of the LBaiaLATURB of Manitoba to Provide for the Extension of tub Boundaries of that Province.* (Extract.) Whereas by chapter twenty-eight of the Acts of the Parliament of the United Kingdom of Great Britain and Ireland, passed in the session held in the thirty-fourth and thirty-fifth years of Her Majesty's reign, intituled "An Act respecting the establish- ment of Provinces in the Dominion of Canada," it is enacted that " the Parliament of Canada may from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with tlio like consent, make provision respecting the effect and operation of any such iucrease or diminution or alteration of territory in relation to the Province affected thereby ;" And whereas it is expedient and desireable that the boundaries of the Province of Manitoba should be increased on terms and conditions of a just character ; Therefore the Legislative Assembly of Manitoba enacts as follows : 1. The Legislative Assembly of Manitoba consents that the Parliauent of Canada may increase or otherwise alter the limits of the Province of Manitoba upon the terms and conditions set out in this Act, and may make provisions respecting the effect and operation of any such increase or alteration of territory ; the increase or alteration of the limits of the Province to be so that the b mndaries thereof shall be as follows : com- mencing at the the intersection of the International boundary dividing Canada from the United States of America, by the centre line of the road allowance between the twenty- ninth and thirtieth ranges of townships lying west of the first principal meridian in the system of Dominion land surveys ; thence northerly following upon the said centre line of the said road allowance, as the same is or may hereafter be located, defining the said range line on the ground across townships one to forty-six, t both inclusive, to the intersection of the said centre line of the said road allowance by the centre line of the road allow- ance on the twelfth base line in the said system of Dominion land surveys ; thence east- erly along the said centre line of the road allowance on the twelfth base line, following the same to its intersection by the easterly limit of the District of Keewatin, as defined by the Act 39 Victoria, chaper 21, that is to say, to a point where the said centre line of the road allowance on the twelfth base line would be intersected by a line drawn due north from where the westerly boundary of the Province of Ontario intersects the afore- said international boundary line dividing Canada from tLe United States of America ; thence due south, following upon the said line to the international boundary aforesaid, and thence westerly, following upon the said International boundary line dividing Can- ada from the United States of America, to the place of beginning." Statr.J The Lieutenant-Governor to the Secretary of Toronto, March 4th, 1881. Sir, — I have the honour herewith to transmit a copy of the Resolutions adopted yesterday by the Legislature of this Province with regard to the delay, on the part of ♦ Man. Stat., 44 Vic, Cap. 1. Assented to 4th March, 1881. t [In the Dominion Aut, 44 Vic, cap. 14, providing for the extension of the boundaries of Manitoba, this line is described as being drawn "across townships one to forty-four." See the Aot, po»t, p. 412.— G.E.L.I JSess. Papers, Ont., 1882, No. 24. 408 PROTKST OF ONT. AOAINST PROPOSED MODK OF KXTKN. OF LIMITS oF MAN., 18HI. tlie (}overniuunt of Canada, in giving etfect to the Award of tho Arbitratorn appointed to detorniinn tht» northctrly and wontorly houndarioH of ()nta«'io. For thn KoHolutioiiH [fi Hov«nty-fiv« nmnilmrH vottHJ Yoa, whil«« but onn vot«d Nay. In view of t\w intoroHtH concornod, and of tho unanimity of the LegiHlature now for the Hecond time recorded, my (iovornment uxpreHH t)ie liopo tiiat the prenent HeHnion of the Dominion Parlinmont will not bo permitted to uIoho without tho legiHlation contirming the Ftaid Award. ' ' I have the honour to be. Sir, ' , Your obedient aervant, The Honourable the Sucretary of State, Ottawa. John Bkvkkley Roiunhon, LitutenantOovenior of Ontario. The SkORETARY OP StaTB TO THK LiBUTKNANT-GoVBRNOK.* Ottawa, 7th March, 1881. SiH, — I am directed to acknowledge the receipt of your despatch of the 4th inst. enclosing a copy of the Resolution adopted on the 3rd inst. by the Legislature of the Province of Ontario, with regard to the delay in giving effect to the Award of the Arbitrators appointed to determine the northerly and westerly boundaries of Ontario, and expressing the hope of your Government that the said Award may be confirmed during the present Session of the Dominion Parliament. I have tho honour to be. Sir, Your obedient servant, ' . His Honour the Lieutenant-Governor of Ontario, Toronto. Edouaud J. Lanqevin, Under-Secretary of State. Tub Lieutenant-Governor to the Secretary op State, with rbspbot to the Bill FOR Extending the Boundaries of Manitoba. t m ft, Toronto, 15th March, 1881. Sib, — My Qovernment have had their attention called to a Bill introduced into the Dominion Parliament by tho Government of Canada, providing for the extension of the boundaries of tho Province of Manitoba, The terms of this Bill, so far as regards the proposed easterly limit of that Province, my Government regard with the greatest concern, and consider as in the highest degree objectionable. So far as the territory to be comprised within the limits of the Province of Manitoba is clearly and indisputably within the jurisdiction of the Parliament of Canada, my Government rejoice nt the extension of that Province, as affording a wider scope for the energies of its people and Government, and as giving to a ' rge number of settlers in Keewatin and the North- West Territories the direct benehts of Provincial and Municipal government. But while the extension of the boundaries in directions as to which there is -no dispute is a matter of congratulation, tba terms in which the new eastern boundary of the Province is described in the Bill appear to my Government to call for an earnest and vigorous protest on behalf of the Province of Ontario. jiff- ♦ SesB. Papers, Ont., 1882, No. 24. + Sess. Papers, Ont., 1882, No. 23. I OK MAN., IHHI. PROTEST OF ONT. AOAINHT I'UOFOSKI) MODE OF EXTEN. OF LIMITS OF MAN., 1«81. 400 OT TO THE Bill According to tbo proviaionH of tho Bill, tlio otistern boundary of Manitoba in to be iho western boundary of tlie Provinoe of Ontario, wherever that boundary may hereafter bo dt)termined to be, though u very large part of our torritory in that direction is still ii) disputo on tho part of tho Government at Ottawa, notwithstanding that more than two years ago it was found and declared to be ours by the unanimous award of three distinguished gentlemen mutually ohosen to determine the question. My Government desire to call the attention of tho Government of the Dominion once niorf^ — (1) to the great and obvious injury occasioned to the interests of Ontario by the rutusal or delay of the Dominion Government to recognize and confirm that award; (2) to the inconvenionoe and embarrassment, in an adr min rative sense, incidental to the delay; and (B) to the facts that, whilst the Governm^ it < the Dominion bavQ failed to procure or propose the legislation necessary to tho conhrmation of the award, and treated tho rights of Ontt rio to the boundaries determined by the Arbitrators as boing still open to question, thty have not been pleased up to this moment to enter into any clisoussion of the subject with this Government, or '""■< to make any official communica- tion of the grounds on which a recognition of tho avi ^^^, by which tho matter in question was intended and suppuaed to bo settled, has been declined or delayed ; and that the only answer wLi(;h has boon hitherto given to the repeated representations made on this subject has beeb that the communications would receive consideration. Under these ciroumstanoes, my Government can only regard this new step, of intruding a third party into the existing controversy, as an act of direct antagonism and hostility to the interests and rights of the Provinoe of Ontario. Hitherto the assent of the Dominion of Canada to a settlement of the question has been necessary for that purpose, and would be sufficient. The Dominion has no consti- tutional interest in withholding that assent, and the people of Ontario have a voice in its councils. But, by the measure which baa received its first reading in the House of Commons, it is proposed to give to another Province a now, direct, and strong interest adverse to that of the Province of Ontario, and to invite Manitoba, as a contiguous Province, with a growing and active population, to claim jurisdiction over every portion of the territory to which the Dominion of Canada has thought fit to question the right of Ontario. The proposed measure would also make the consent of the Province of Manitoba as well as the Goveniment at Ottawa to bo hereafter essential to any settlement, or even to any step towards a settlement, of the existing controversy ; and would place that Province in such a position with reference to the territory as may make almost, if not ({uitd, impossible an amicable settlement of the question, or any settlement founded on tlio ground of the just obligation that an award made in good faith imposes on Nations, Dominions, or Provinces which, through their representatives, were parties to the arbitration. Serious and* most vexatious dil^oulties cannot fail to arise from the conflicting interpretation of their rights v\ the premises by any of the three authorities claiming jurisdiction within an extended aree if territory, •where it is of the utmost importance to peace and good order that the pov. er of the law should be paramount and beyond question. In this view, it has been repeatedly, and hitherto vainly, urged that if our right to the territory is not ackuowledg'd, a provisional arrangement should be made, with the sanction of Parliament, in regard to the law which is to regulate the rights and obligations of the inhabitants with respect to civil rights and property, and kindred matters, until the question in dispute should be settled. In short, my Government look upon the proposed measure as calculated to aggravate all existing difficu'tiet;, and to prove most prejudicial to the harmony and accord which should prevail between the Provinces of the Dominion. Under all the cu'cumStances, my Government desire respectfully to urge that, in fair dealing with the Province which they represent, the measure in progress should define the easterly boundary of the Province of Manitoba, so as not for the present to extend in an easterly direction beyond the boundary of Ontario as determined by the Arbitrators ; leaving the further extension of Manitoba eastward to be provided for by ill 410 AMENDMENTS PROPOSED TO BILL FOR EXTEN. OF LIMITS OF MAN., 1881. 1! r> f, ■•;<: future legislation, should any competent authority decide that Ontario is entitled to less territory than by the award is declared to belong to this Province. The resolutions of the Legislative Assembly, passed in the session of 1880, and the resolutions passed in the session which has just terminated, and which received the unanimous support, with an individual exception, of the whole House, were sufficient to show that if the measurd should be passed in its present form it would be deemed by almost the whole people of Ontario as a violation of the rights of the Province, and as an act of gross injustice towards it. The Ontario Government trust that, in view of the representations made, the Government of Canada may even yet see fit so to modify the measure before Parliament as to deprive it of its objectionable features, while still conceding all necessary advan- tages to the Province of Manitoba, in whose rapid progress and development this Province, as a portion of the Dominion, feel profound satisfaction. I have lue honour to be. Sir, Your obedient servant. To the Honourable the Secretary of State, Ottawa. J. B. Robinson. The Umder-Skcrbtarv of State to the Lieutenant-Governor.* Ottawa, 16th March, 1881. SiE, — I am directed to acknowledge the receipt of your despatch of the 16th instant, on the subject of the Bill Introduced into the Dominion Parliament providing for the extension of the b..r adaries of the Province of Manitoba. I have the honour to be, Sir, Your obedient servant, Edouard J. Langevin, Under-Secretary of State, His Honour the Lieutenant-Governor of Ontario, Toronto. Amendmen'" to the Bill to Provide for the Extension of the Boundaries of the ± jvince op Manitoba (44 Vic, cap. 14), moved in the House of Com- mons, Ottawa, 18th March, 1881. t Sir John A. Macdonald moved, seconded by Mr. Langevin, and tlie Question being proposed. That the Bill be now read the third time ; Mr. Mills moved, in amendment, seconded by Sir Richard J. Cartwright, That all the words after "now " to the end of the Question, be left out, and the words "recom- mitted to a Committee of the Wliole House, with instructions that they have power to so amend the same as to provide that pending the final settlement of the western boundary of Ontario, the eastern boundary of Manitoba be not extended eastward of the limit declared by the award of the Arbitrators appointed by the Governments of Canada and Ontario, to be the western limit of the Province of Ontario," inserted instead thereof ; And the Question being put on the amendment, the House divided ; and tlie names being called for, they were taken down, as follows : — Yeas — Messieurs Bain, Blake, Brown, Cartwright, Casey, Cockburn (Muskoka), Fleming, Gillies, Holton, Macdonell (Lanark), McDougall, Mills, Paterson (Brant), Robertson (Shelburne), Rymal, Scriver, Snowball, Sutherland, Thompson, and Trow— 20. * Sbbb. Papers, Ont., 1882, No. 2.S. + Journals Ho. of Corns., 1881, Vol. 1.5, p. 370. See the next followini,' document. is entitled to less e Question being AMENDMENTS PROPOSED TO BILL FOR EXTEN. OF LIMITS OF MAN., 1881. 411 Nays — Messieurs Allison, Arkell, Barnard, Beaty, Beauchesne, Bergeron, Bill, Bowell, Bunting, Cameron (Victoria), Carling, Caron, Costigan, Coughlin, Coursol, Cuth- bert, Daly, Daoust, Dawson, Desaulniers, Drew, Elliott, Farrow, Ferguson, Fitzsimmons, Fortin, Gault, Gigault, Girouard (Kent), Hackett, Haggart, Hay, Hesson, Hooper, Houde, Hurteau, Jones, Kilvert, Kranz, Lai^e, Langevin, Lantier, Little, Macdonald (King's), Macdonald (Vic. B.C.), McDonald (Pictou), Macmillan, McCallum, McConville, McCuaig, Mclnnes, McLennan, McRory, Manson, Massue, Memer, Mongenais, Montplaisir, Mous- seau, Muttart, O'Connor, Ogden, Orton, Ouimet, Patterson (Essex), Plumb, Pope (Compton), Pope (Queen's), Poupore, Riche/, Ross (Dundas), Rouleau, Royal, Ryan (Marquette), Ryan (Montreal), Schultz, Sci forty-six." See the Act, anU', p. 407.— G. E. L.] INTIMATION OF DESIGN TO INCLUDE RAT PORTAGE WITHIN MANITOBA, 1881, 413 id as ii'. the last resolved in the [E Pkovince of and the boundaries thereof had, in the first instaiice, been fixed and defined as is done by this Act — subject, however, to the provisions of section three of this Act. (6) The said increased limit and the territory thereby added to the Province of Manitoba shall be subject to all such provisions as may have been or shall hereafter be enacted, respecting the Canadian Pacific Railway and the lands to be granted in aid thereof. 3. All laws and ordinances in force in the territory hereby added to the Province of Manitoba at the time of the coming into force of this Act, and all courts of civil and criminal jurisdiction, and all legal commissions, powers and authorities, and all officers, judicial, administrative and ministerial, existing therein at the time of the coming into force of this Act, shall continue therein as if such territory had not been added to the said Province ; subject, nevertheless, with respect to matters within the legislative authority of the Legislature of the Province of Manitoba, to be repealed, abolished or altered by the said Legislature. 4. This Act shall come into force only upon, from and after a day to be appointed in that behalf by proclamation of the Governor published in the Canada Gazette. An Act to continue in force foe a limited time the Act forty-third Victoria, CHAPTER thirty-six.* Her Majesty, by and with the advice and consent of the S( nate and House of Com- mons of Canada, enacts as follows : — 1. The Act passed in the forty- third year of Her Majesty's reign, chapter thirty -six, and intituled " An Act respecting the Administration of Criminal Justice in the Terri- tory in dispute between the Governments of the Province of Ontario and of the Dominion of Canada," shall continue in force until the end of the now next ensuing session of Parliament. townships one t. ' , when the sessions of Parliament were held at Toronto, under the alternate system, I have been a compara- tive stranger among you, although I have had frequent opportunities of seeing several of my old fellow-pioneers, and have had the gratification of being invariably met with a friendly greeting, not only by my old friends, but by those with whom I had had differences of opinion on what may now be properly termed dead issues. Having several years ago entirely withdrawn from party connection, a political ad- dress would be wholly repugnant to my feelings ; but circumstances seem to me to render it desirable that the public should be better informed on a subject which {?■ generally sup- posed to be imperfectly understood, while it is due as well to my own character, as to the memory of the late lamented Chief Justice Harrison, that a full explanation should be given of the grounds on which the Arbitrators appointed to determine the true boun- daries of the r.-ovince of Ontario arrived at their decision. Such an explanation is, I think, likewJ:^ i''!-; to the Right Honourable Sir Edward Thornton, Her Majesty's Min- ister at Washington, who was g.>od enough, at the joint request of the Governments of the Doiiiiiiion and of Ontario, lo act as third Arbitrator on the occasion referred to. While it is no ptTt of mv duty to defend the a ration of the Dominioii and Provincial Governmentt in i^greeing to leave the disput'^l l.;)undary of the Province of Ontario to be determined by Arbitr. or . i may rnnark that there are many precedents for such a *Se88. Paper.:, Or',.. 18i"', No. 23. + The Northerly and V'-'st :•' 'v ■•. iidaries of the Province of Ontario, and the Award relating thereto, as discusBed ana explainetl by :) Voa, Sir Fr.'^ucis Hincks, K.C.M.G., in his Public Lecture at the Edu- cation Department, Toroijtr. Mr "th^ 1881. Toronto : Printed by C. Blackett Robinson, 1881. # RY AWj^RLV r-GENKRAL.* ril 30th, 1881. REVIEW OF ADVERSE f'RIT'rCISMK. 415 mode of settling conflicting claims. It is fortunate that there is no danger of this ques- tion, complicated though it is at present, leading to the fearful consequences which his- tory, as well as our daily observation, teaches us to be the result of territorial disputes. A very large proportion of the wars which have occurred during past centuries, and #hicV have entailed such immense losses of blood and treasure, must be attributed to quarrels regarding boundaries ; and in modern times the expediency of resorting to arbi- trvJon as the best mode of settling such disputes, has been very generally admitted. CRITICISMS ON THE AW\RD. I; . In the case of the Ontario boundary arbitration in 1878, the unanimous award made after a most careful and conscientious examination of the voluminous papers sub- mitted to the Arbitrators, together with the cases of the learned counsel on both sides, has been severely criticized, not only by the Select Committee of the House of Com- mons in 1880, but by the leaders of the Dominion Government in the Senate and House of Commons during the last session. It has been stated as an objection to the cf-oipe- tency of the Arbitrators, that two of the three were not members of the legal profession, but I have been unable to iind any precedent in analagous cases for confining the choice of arbitrators to lawyers. In one of the most recent cases, when arbitrators were ap- pointed to determine the boundaries between Zululand and the Transvaal in South Africa, there was one lawyer, the Attorney-General of the Cape, joined with a civilian, and an officer holding the rank of Lieutenant-Colonel. I own that I fail to discover the value of special legal attainments in such a case ; and, moreover, there were before the Arbitrators conflicting opinions given by eminent judges and lawyers. The greatest judges are far from being infallible, and are themselves always desirous of the assistance of counsel, whose duty is to submit every point of law, and every fact, in support of their respective clients. Let me, for argument's sake, suppose that in a trial before a judge, a clause in an Act of Parliament had a special bearing on the case in controversy, and that the counsel, whose client would be benefited bf that clause, were to fail to bring it to the notice of the Court, and that the judgment afforded proof that this important clause had not engaged the judge's attention, surely it would not be contended that, however emi- nent the judge might be, his judgment ought to carry as much weight as that of a non- professional arbitrator whose opinion had been formed after a full consideration of cir- cumstances, which had never been brought under the notice of the judge. I shall have to make a practical application of this suppositiourj case to the disputed boundary of Ontario on the south-west, and as bearing on the judgment of Chief Justice Sewell in the De Reinhardt case, which was concurred in by his colleagues. I must, before doing S' notice as briefly a«! possible some statements, which appear to me to be a sufficient justifica- tion of 'my placing on record the reasons which induced the Arbitrators to make the award which is now the subject of controversy During the session of Parliament held in 1880, a Select Committee was appointed by the House of Commons to inquire into and report upon all matters connected with the boundaries between the Province of Ontario and the unorganized territories of the Dominion. The report, concurre ' in by nine out of thirteen members of that Committee, declares that " the award docs not declare the true boundaries of Ontario," adding, " it seems to your Committee to be in- consistent with any boundary line ever suggested or proposed subsequent to the Treaty of Utrecht." One of the principal witnesses, Mr. William McD. Dawson, a portion of whose evidence is embodied in the report, stated that the Arbitrators had adopted a boundary " which was not a possible one." Sir John Macdonald is reported in Hansard to have said : — " We have only to read the written statement of one of those Arbitrators, Sir Francis Hincks, in which he admitted they did not settle the true boundary, tr be convinced." Sir Alexander Campbell was reported to have made substantially the sai:e statement in the Senate. It has seemed to me that such allegations as I have cited, render it desirable that the public should be put in possession of the grounds, on which the Arbitrators concurred in an award, which, although adverse to the claims of the Ontario Government, was promptly accepted by it, and subsequently by the Provincial Legislature. "4 \ !' *^-«p 41G LECTURK OK SIR FRANCIS HINCK8 ON THE SUBJECT OF BOUNDARY AWARD : a X m' »'N SOUTH-WESTKRN BOUNDAHY. . , ^, , I shall first consider the South- Western Boundary. It is evident from the report of the Select Committee, that its framer attached much greater weight to Commissions to Governors as affecting boundaries, than the Arbitrators did. Commissions may be of iissistance in interpreting obscure language in an Act of Parliament, but where the mean- ing of an Act is free from doubt, it cannot be set aside by a Commission. The south- western boundary of Ontario depends on the construction of the Imperial Act of 1774, on the effect of the subsequent treaty with the United States of 1783, and on the procla- mation issued under the Act of 1791. It is important to consider the circumstances under which the Act of 1774 was passed. In the year 1763 a treaty was concluded at Paris, between England and France, which contained the following provision : " In order to establish peace on solid and durable foundations, and to remove forever all subject of dispute with regard to the limits of the British and French territories on the continent of America, it is agreed that for the future the confines between the dominions of His Britannic Majesty, and those of His Most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the River Missis- sippi from its source to the River Iberville, and from thence by a line drawn along the middle of that river and the lakes Maurepas and Pontchartrain to the sea .... pro- vided that the navigation of the Mississippi shall be equally free as well to the subjects of Great Britain as to those of France in its whole breadth and length from its source to the sea." Tlie treaty from which I have just quoted was concluded on the 10th Feb- ruary, 1763, and on 7th October, 1763, a proclamation was issued erecting four new Governments, one of which was Quebec, the western boundary of which was fixed at the south end of Lake Nipissing. In the year 1774, in consequence of urgent representa- tions, as to the necessity of establishing a settled government in territories where no government of any kind existed, a bill was introduced by the Gov nment of the day, the object of which was clearly stated b]' Lord North in language which I shall quote. " It i» well known that settlers are in the habit of going to the interior parts from time to time. Now, however undesirable, it is open t.-> Parliament to consider whether it is fit thei i.hould be no government in the country, or, on the contrary, separate and distinct governments, or whether the scattered posts should be annexed to Canada. The House of Lords have thought proper to annex them to Canada, but when we consider that there must be some government, and that it if ^he desire of all those who trade from Canada to those countries, that there should be soiiie government, my opinion is that, if gentle- men will weigh the inconveniences of separate governments, they will think the least inconvenient method is to annex ohose posts, though few in population, great in extent of territory, rather than to leave them without government at all, or make them separate ones. Sir, the annexation likewise is ihe result of the desire of the Canadiaife, and of those v^ho tiade to those settlement^,, who think they cannot trade v/ith safety as long as they 'e nain separate." Now, it must. bi» bo/ne in mind, that the principal posts in the unorganized territories, wher, the Act ■■? 1774 was passed, were situated on the River Mississippi, and of course in rit^tifh territory by the Treaty of 1763. The pretension of the advocates of the due nort^' lino, ."hich i i the boundary claimed by the Dominion, is that Parliament deliberately abandoned ''le ., .tural boundary of the Mississippi, thereby excluding from the benefit of the Act, thv; vai- persons for whom it was specially intended, and that it adopted, without a single jor'.eiv^ai''e motive, a conventional line running due north from the junction of the Ohio with the Mississippi. It is well known that the Bill was introduced in the HouFie of Lords, in 1774, and that as sent down by that House to the Commons the descriptic. was "all .'e said territories, islands and countries, hereto- fore a part of the territ'n v of Canada in North America, extending southward to the banks of the River Ohio, vestwanl to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay, and which said territories, islands and countries are not within the limits of some other British Colony a.s allov/ed and confirmed by the Crown." Now it has never been pretended that there was any ambiguity in that description as to the western boundary, but a discussion was raised in the Commons by Mr. Edinund Burke, V AWARD : INTENTION OF THE ACT OF 1774. 417 then agent for the SUite of New York, who had doubts whether under the description Canada might not encroach on territory on the north-east of that State, which had actually been in dispute, and which by amicable agreement had been made over to New York, reserving the rights of Canadian settlers in the disputed territory. The territory on the Mississippi had never been in dispute t'uring the protracted wars between the British and French regarding boundaries in the Ohio valley. INTENTION OP AOT OF 1774. provision : "In There is not the slightest reason to suppose that a single member of the House of Commons desired to alter the natural boundary of the Mississippi, on the banks of which were the principal settlements, for the inhabivmts of which the Act was specially intended to provide a government. Mr. Burke, as appears from a report of hid remarks in a book entitled " The Cavendish Debates," insisted very strenuously on defining the boundaries more precisely. I am not unaware that the framer of the report of the Commons Com- mittee has, on the authority of Mr. Justice Johnson of Montreal, pronounced the Caven- dish Debates as of no authority, but the Hon. Wm. McDougall has given most satis- factory reasons for considering them a valuable contribtion to the history of the period. "* There is however a letter in existence, addressed by Mr. Burke to the Legislature of New York, in which he explains with great precision the object of his amendments, and from which it is clear that it never was contemplated to interfere with the Mississipji boundary. The change in the description of the boundary was made while the Houee was in Committee on the Bill, four members, one of whom was Mr. Burke, having left the House in Committee to arrange the new description. It is tsaid " the diflerence was whether the tract of country not inhabited should belong to New York or Canada," and most assuredly this difference could not possibly apply to territory on the Mississippi River. I shall now cite the boundaries us finally agreed to by the House, and I request your most particular attention to the first words, which seem to me to deserve much more consideration than has been given to them by the advocia^s of the due north line, from the confluence of the Ohio and Mississippi Rivers. " That all the territories, islands and countries in North America, belonging to the Crown of Great Britain, bounded on the south by a line from the Bay of Chaleurs, along the high lands which divide the rivers that empty themselves into the River St. Lawrence from those which fal uto the sea, to a point in forty-five degrees of northern latitude on the eastern bank of tne River Connecticut, keeping the same latitude directly west through the Lake Champlaiu, until in the same latitude it meets the River St. Lawrence, from thence up the eastern bank of the said river to the Lake Ontario, thence through the Lake Ontario and th( river commonly called the Niagara, and thence along by the eastern and south-eastern bank of Lake Erie, following the said bank until the same shall be intersected by the northern boundaiy granted by the Charter of the Province of Pennsylvania, in case the same shall be so intersected, and from thence along the said northern and western boundaries of the said Province until the said western boundary strike the Ohio ; but in case the said bank of the said lake shall not be found to be so intersected, then following tlu> said bank until it shall arrive at that point of the said bank which shall be nearest to the north-western angle of the said Province of Pennsylvania, and thence by a right line to the said north-western angle of the said Province, and thence along the western boundary of the said Proviticc until it strike the River Ohio, and along the bank of the said river westward to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay." You will not fail to observe that the intention of the framers of the amendment, as of the original Bill, was to include all the territories belonging to the Crown of Great * [The Report of the Cavendiah Debater whose authenticity has been questioned by Mr, Justice John- son and Mr. 8. J. Dawson, was published in 1839, the original MS., which is in the British Museum, having been discovered only in the early part of that year. In 1837, two years before this liscovery, another and independent account of the proceedings upon the Quebec Bill of 1774, which was tne subject of these Debates, was published in the American Archives ; which account is in perfect accord with the Cavendish Report. (American Archives, vol. 1, pub. by authority of Congress.) — G. E. L.] 27 ^1! u:. 41M LKCTURE (W Sm F. HINCKH ON THE SUBJBXVr OF THE BOUNDARY AWARD Britain in the newly constituted Province, which were not already included in the ol(' ProvinccH. You will notico liow precise the definition is until the Ohio is reached, after which there was no territory regarding which there could be a dispute. You will like- wise bear in mind that the last clause of the description is precisely the same as in the original Bill, viz., " Westward to the banh.s of the Mississippi anc noit!.ward to the southern boundary of the territory granted to the Merchants Adventurer.^ ot England trading to Hudson's Bay," and that in that Bill " northward " could not have had the meaning which has been claimed for it, and which is that it must necessarily mean "due north," although the meaning of the word is really " towards the north." lii ^ THE DB REIM'.ARDT CASE. Great strea, las V)een laid on a decision given in the year 1818 by the Court of tjueen's Bench at Quebec, presidtd over by Chief Justice Sewoll, on the trial of a person named De Reinhardt, for a murdei committe'' at a plac.- called Dalles, in the vicinity of the Lake of the Woods. Some jua,'^ea who gave evidepje before the Select Committee on the boundaries in 1880, referred to this judgment as conclusive in favour of the due north line. Judge Johnson said that " Chief Justice Sewell, who tried the case, is looked upon as the greatest luminary of the law we ever had in Lower Canada. It may almost be said that he made our laws." Again, Mr. Justice Armour said : — "There is a judicial decision as to the meaning of the word ' northward ' in the Quebec Act. The decision was that 'northward' evidently meant 'due north.' That is the De Reinhardt case. """ ^ doubt about it, it is a clear decision, and were I deciding judicially I would be bound to toUow that decision," As Mr. Justice Armour proceeded to state, that if asked his individual opinion as a person looking into the matter, he would determine that " 'northward' had reference to the territory and not to a limitary line," I do not think that his evidence is much in favour of the due north line. I shall state the reasons which led me, and I believe ray co- Arbitrators to attach no importance whatever to the judg- ment in the De Reinhardt case. Tho question of boundary was never fairly brought before the Court in 1818. It is well known that very high authorities, including the eminent counsel by whom De Reinhardt was defended, the Honourable Messrs. Gartier ;«nf) McDougall, the Honourable 1-avid Mills, who has made a most valuable report on the subject, the Messrs. Dawson, up to a recent period, and the learned counsel who repre- sented Ontario before the Arbitrators, have all held that the language employed in the Order of Council and the Proclamation of 1791, "including all the territory to the westward and southward of the said line to the utmost extent of the coutitry called or known by the name of Canada," must be interpreted as giving to Ontario, then Upper Canada, a much more extensive territory to the west, than what it would be entitled to according to the interpretation placed on the Act of 1774 by those who hold that the Mississippi River was the boundary of the old Province of Quebec, and that the Act of 1791 was intended to divide that Province, but not to extend it, I refer to this differ- ence of opinion here to show that the view taken by the Arbitrators was never presented to the Court in 1818. Had it been pointed out to the eminent judges who presided on that occasion, that the language of the Act of 1774 made special provision for including in the new Province " all the territories, islands and countries in North America belonging to the Crown of Great Britain," before defining the boundaries, it might havp been pre- sumed that the intention of the Act would have been so manifest, th»t even if the language had been deemed ambiguous, its meaning could scarcely have been misunderstood. To my own mind there is no ambiguity in the language. The object of the Act was to provide for the government of all the territories not included in the old Provinces, and not south of the Ohio River. W^hen the Mississippi was reached, the word "northward" was quite sufficient, as the western boundary was that established by the Treaty of 1763. How any one could have imagined that Parliament would have been guilty of the absurdity of excluding the settlements on the river from the benefit of an Act chiefly intended for them, and of abandoning a natural boundary like the Mississippi in order to run a line due north, without any conceivable object, is incomprehensible to me. Tho point which strikes me as important is that De Reinhardt's v ounael resteund to exiat. The first Commission issued under the Act of 1774 to Sir Ouy (-arleton proves oon- cluHivoly what was understood at the time to be its meaning. Immediately after the word "northward" the words " along the eastern bank of the said river" wore added in the Commission. It really looks as if it had occurred to the framer of the Commission that the hastily prepared amendment to the original Act might create doubt at some future time, and yet Mr. Burke, the framer of the description, thus explained his inten- tion : *' My idea was to get the limits of Quebec, which appeared to many as well as to myself intended to straighten the British Colonies, removed from construction to ■ctrtainty, and that certainty grounded on natural, indisputable, and immovable barriers — rivers and lakes whore I could have them, lines where lines could be drawn, and where reference and description became necessary to have them towards an old British Colony, and not towards this new and, as was thought, favourite establishment." Is it conceivable that the author of this passage I have quoted could have intended to abandon such a natural boundary as the Mississippi for uiie without sense or meaning, and the adoption of which would have left without any government the very settlements which it was specially intended to include t I need only observe further that I believe that those who uiiiintain that the boundaries were enlarged by the Proclamatioi\ issued under the Act of 1791, concur with the Arbitrators in the opinion that by the Act of 1774, the Mississippi W.V8 the western boundary of the old Province of Quebec. EFFECT OF TREATY WITH UNITED STATES ON THE BOUNDARY. I have now to draw your attention to the efl'ect of the Revolutionary War on the Tjoundary of the old Province of Quebec, When tho treaty of peat;e was concluded at Paris, on 3rd September, 1 783, boundaries were established to which I shall briefly refer. It is sufficiently evident that there was a desire to find natural boundaries, if practicable, and accordingly the line of division was carried through Lake Superior to the Long Lake, thence by water communication to tho most north-western point of the Lake of the Woods, and from thence on a due west course to the River Mississippi. In a paper dated in 1876, written Mr. S. J. Dawson, the Chairman of the Commons Committee, of 1880, he argued that the diplomatists who framed the Treaty of 1783 had in view, not the Mississippi proper, but " the main artery of the vast river system to which the comprehensive name of the Mississippi was applied in those days." He maintained that " the diplomatists, who framed the treaty, knew perfectly well that the northerly waters of the Mississippi were far to the south, and that they must have meant a branch or tributary of the Mis- souri, called the White Earth River, which would intersect the due west line at a point over 450 miles west of the Lake of the Woods." Mr. Dawson held that " it is impossible to avoid the conclusion that the true intent, meaning, and spirit of the Treaty of 1783, was that the western boundary of Canada and the United States, and the eastern limit of Louisiana on the due west line, should be at a point upwards of 450 miles west of the Lake of the Woods." I have referred to Mr. S. J. Dawson's opinion so late as 1876, to estab- lish that he recognized the north-western angle of the Lake of the Woods, as within the Canadian territory, and further, that he recognized the Mississippi as the western boundary. Mr. DawMon, wl.i n he stated with such confidence, that the diplomatists, in 1783, *' knew perfectly well " that the northerly waters of the Mississippi proper were far to the .south of such a line, must have l>een unaware that, eleven years after the treaty from which T have quoted, viz., in 1794, another treaty was concluded, which commences as follows: — "Whereas it is uncertain whether the River Mississippi extends so far to the r.orthward as to be intersected by a line to be drawn due west from the Lake of the Woods in the m? iner mentioned in the treaty of peace between Her Majesty and the United States, it is agreed," etc. The agreement was that the two nations would make a joint survey of the said river from one degi-ee of latitude below the Falls of St. Anthony to the principal source or sources of the said river, and if the result should be that the river would not be intersected by such a due west line, then the two parties would proceed to -establish a boundary by amicable negotiation. This was subsequently accomplished by i * !l I IMAGE EVALUATION TEST TARGET (MT-3) // v.. 1.0 IIIIIM I.I 12.0 1.8 1.25 1.4 1.6 -^ 6" ► V] Wa °^i ^l %^^^^^^' ^5 Phote)graphic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 4> V :\ V \ V ;\ 422 LECTURE OF SIR i. HINCKS ON THE SUBJECT OF THE BOUNDARY AWARD : the Treaty of 1818, establishing the 49th parallel of north latitude. At that time, thirty- five years after the period when Mr. S. J. Dawson thought that diplomatists " knew per- fectly well " all about localities, it was not known whether the Lake of the Woods was- north or south of the 49th parallel, and it was accordingly provided that a line should be drawn due north or due south from the north-western angle to the 49th parallel. The Mississippi of the treaty between England and France, of the Act of 1774, and of the treaty with the United States, has its source almost due south of the Lake of the Woods, where the international boundary is fixed. It seemed to the Arbitrators that under all the cir- cumstances of the case, the true south-westerly boundary of Ontario should be held to be at the international boundary, rather than at a point due north of the source of the Mis- sisaippi. The latter would have been in nearly the same meridian, I may observe, and would have entailed much useless expense in surveys, besides disputes as to which was- really the true source of the Mississippi, which according to Mr. S. J. Dawson, is to be found " in numerous brooks and countless lakekts." ' . HORTH-EASTERy BOUNDARY. ?■■ i!'' ■^' ■■V, •>(..;-•>;, :v- i-, . I shall now proceed to state the grounds on which the Arbitrators arrived at their decision as to the true boundary on the north-east. Up to the time when it became ray duty to study the question as an arbitrator, I had been under the prevailing impression that the height of land was the southern boundary of the Hudson's Bay Territory. It would be impossible, on such an occasion as this, to state all the arguments which have led me to think that the pretensions of the Hudson's Bay Company were without foundation. I may, however, refer to the able papers, which the late Chief Justice Draper prepared, regarding the claims of the Company, and likewise to a memorandum from the Hon. Joseph Cauchon, who was Commissioner of Crown Lands in 1857, and which is printed in the appendix to the report of the Commons Committee as the memorandum of Mr. W. McD. Dawson. I presume that the cause of the action taken at that particular time was the approaching termination of the lease of the Indian territories. The claim of the Hudson's Bay Company, under their original charter, was described in the memorandum prepared by Mr. Dawson under the Commissioner's instructions, to be " to government, jurisdiction, and right of soil over the whole country watered by rivers falling into Hud- son's Bay." I have been unable to discover any authority for so extensive a claim. There can be no doubt that the Hudson's Bay Company themselves proposed, after the Treaty of Ryswick, that the French should not trade or build any house, factory or fort to the north of the Albany River on the West Main Coast, or north of Rupert's River on the East Main Coast. It is true that under the Treaty of Utrecht the French were to restore to Great Britain a number of forts, but it does not appear to me that this restoration was ever completed. It was provided by the treaty that " within a year " Commissaries to be named by both parties were to determine the limits between the British and the French, and it is notorious that such Commissaries never did determine the boundaries, while the French King, many years after the Treaty of Utrecht, declared, with reference to the pre- tensions of the Hudson's Bay Company, that he was " firmly resolved to maintain his rights and his possessions against pretensions so excessive and so unjust." The Proclama- tion under the Act of 1791 establishes the north-east boundary at the termination of a line drawn due north from the head of Lake Temiscamingue, until it strikes the boundary line of Hudson's Bay, and it is contended by the very same parties who insist, contrary, as I think, to common sense, that in the Act of 1774, northward must mean due north, that the meaning of words which seem to me sufliciently clear, must have been to the boundary of the Hudson's Bay Territory, a. ^ not to the bay. Now, in the Act of 1774, when the territories were really meant, and not the bay, the language is not susceptible of misconstruction. The words are, " the southern boundary of the territory granted to the Merchants Adventurers trading to Hudson's Bay." But, as in the case of the western boundary, the Commissions to various Governors afford a clue to the meaning attached to the language of the Proclamation by the Imperial Government. For a considerable time the Commissions were in the precise words of the Proclamation, " to the boundary of Hud- son's Bay," but in 1838 Lord Durham's Commission contained the words, " until it strikes- '■AV-: \ OPINION OF THE LATE CHIEF-JUSTICE HARRISON. .\\< 423 '111 hat time, thirty- ists " knew per- the Woods was a line should be h parallel. The ind of the treaty e Woods, where inder all the cir- dd be held to be irce of the Mis- lay observe, and m to which was^ )aw8on, is to be arrived at their an it became ray kiling impression ,y Territory. It ents which have ihout foundation, draper prepared, a from the Hon. which is printed ndum of Mr. W. rticular time was The claim of the he memorandum " to government, ailing into Hud- e a claim. There after the Treaty ry or fort to the •t's River on the were to restore restoration wa^ mmissaries to be and the French, aries, while the rence to the pre- to maintain his The Proclama- termination of a cea the boundary insist, contrary, mean due north, ave been to the ;he Act of 1774, ot susceptible of granted to the of the western ning attached to nsiderable time lundary of Hud- " until it strikos- the shore of Hudson's Bay." Now, I wish it to be clearly understood, as Mr. W. McD. Dawson seems to imagine, that the deoisicT^ of the Arbitrators was founded on the C!om- miasion, that such was not the case. In accordance with the Statute of 1791, an Order in Council was passed authorizing the proclamation, which fixed the north-eastern boundary at the boundary line of Hudson's Bay, and that I hold to be a sufficient description of the shore, although it was satisfactory to the Arbitrators to have the additional evidence afforded by the Commissions. I have already adverted to the Albany River having been proposed by the Hudson's Bay Company as their southern boundary, and it seemed to the Arbitrators that a natural boundary, following the course of that river, left to the repre- sentatives of the Hudson's Bay Company quite as much territory as they could justly claim. It would be wholly impossible for me, within the limits to which I am necessarily confined, to refer at any length to the numerous documents which led the Arbitrators to reject the pretension of the Dominion Government, that the height of land svas the southern boundary of the Hudson's Bay Company's territory. The original charter limited the territorial grant to territories not in the possession of any other Christian prince, and although the subsequent Treaties of Ryswick and Utrecht affected the boundaries between France and England, yet there is no evidence of any new grant having been made to the Hudson's Bay Company. In his very able report on the boundaries, the Hon. David Mills has maintained that the effect of the. Treaty of Utrecht was not to restore to the Hudson's Bay Company what it had lost by the Treaty of Ryswick. There was a warm controversy between the two Governments as to whether the term " cede " or " restore " should be used, and it is far from improbable that the British Minister may have been inspired by the Hudson's Bay Company to contend for the word " restore " while the French Minister was very urgent for the word "cede." It appears, from a letter of Mr. Prior, that according to the cartes sent by both plenipotentiaries, "there was no very great difference " between the claim of Great Britain and what France was willing to concede, and it is quite certain that the French never contemplated surrendering the territory claimed by the Hudson's Bay Company to the height of land. As a matter of fact, the boundaries under the Treaty of Utrecht were to have been settled by Commis- saries, who never acted in the matter, and, fifty years later. Great Britain acquired the French title. Chief Justice Draper furnished a number of extracts from documents bearing on the question of title, on which he observed : " They certainly show that neither after the Treaty of Ryswick, nor that of Utrecht, when they stated the boundaries they were either willing to submit to or were desirous of obtaining, nor yet in 1 750, when they set forth what they thought themselves entitled to claim under their charter, did they ever think of asserting a right to all the countries the waters of which flow into Hudson's Bay. Their claim to lands lying both northward and westward of the Bay is entirely at variance with any such idea." , ,, . , ^' " OBJECTIONS TO AWARD ANSWERBD. ' "' I could not treat the important subject under your consideration with entire satisfaction if I failed to notice the numerous criticisms to which the award of the Arbitrators has been subjected. I shall dismiss very briefly that class that I believe to be numerically the most formidable, whose opposition to the award is based, not on its merits, but on the extent of territory to which Ontario is entitled under it. The decision of thts Arbitrators had scarcely been announced in 1878, when an anonymous writer, over the signature " Britannicus," published several letters on the subject, in which he contended that the award was " open to grave objeotions," the first being that " the region is worth millions." He was told in an article, that I contributed to the press, that " the Arbitrators were appointed to decide on boundary lines, on principles of law and justice, and ought not to have been influenced by the extent or the vahie of the territory in dispute." „, ; , , CHIEF JUSTICE HARRISON ON AWARD. I shall offer no apology for citing a few extracts from letters of the late Chief Justice Harrison addressed to me in August, 1878, on the subject of the criticisms made on the 424 LECTURE OF SIR P. HINCKS ON THE SUBJECT OF THE BOUNDARY AWARD : award : " I feel satisfied that you can give an answer to all and sundry who attack the award. I believe there never was an award made in a matter of such importance that is so little open to honest criticism. * * * Singular to say, since the award was made I have received from Judge McDonald, of Guolph, an old lithographed map, without name or date, but evidently made long before the Constitutional Act of 1791, which indicates the northern boundary of Upper Canada to be on the precise line where we have placed it. * * * I also received the Gazette (Montreal) of the 15th< August, containing the second letter of ' Britannicus.' These attacks, with the exception of the last, are puerile, and the last is a perfect absurdity. Assuuie that all which ' Britannicus' says about the territory awarded to Ontario, is true, hew does that affect the validity of the award t Our duty was judicial, we had little or nothing to do with questions of policy. By the light of the evidence adduced, and the arguments propounded, we unanimously decided upon certain boundaries, for the north and west of the Province. Whether the land thus given to the Province was full of diamonds, or only of worthless rocks, was no business of ours. The surveyor who finds the boundaries of two lots of land is never influenced by the con- sideration that one piece is intrinisically more valuable than the other. None of the able counsel who addressed us veutured so far to take leave of his senses as to attempt to take such untenable ground." JEALOUSY OF ONTARIO. I .. .., ., .' .> ,i '? "Britannicus" is a representative of the class of whose opinions Mr. Royal, M.P., is one of the latest exponents. He was a member of the Select Committee of 1880, and while Mr. S. J. Dawson is the avowed advocate of the formation into a new Province of a large portion of the Province of Ontario, Mr. Royal contends that Manitoba should obtain ports on Lake Superior and Hudson's Bay. The masses outside of Ontario take no other interest in the subject than to oppose the extension of her territory, without the least reference to her legal rights. I may notice in this connection an extraordinary assertion in Mr. W. McD. Dawson's evidence, to the effect that Quebec would not have consented to enter Confederation had thei legal boundaries of Ontario been believed to be, where they were placed by the award of the Arbitrators, or, perhaps I should rather say, where the witness himself stated them to be in his report in 1857. There is a very simple answer to Mr. McD. Dawson, and all who share his opinions. The boundaries of Ontario depend on the construction placed on the Statute of 1774, the Treaty of Peace of 1783, and the Proclamation in conformity with the Statute of 1791. Th»claim of the Dominion, as well as that of Ontario, is based on the construction of the law. Mr. McD. Dawson's recent pretension, which I need scarcely remind you is at complete variance with the former assertions both of himself and of his brother, is based on the omission to define the western boundaries in the Commissions of the Earl of Durham in 1838, and in subse- quent Commissions, which, so far as I have any knowledge, is not deemed to have any legal effect by any of the disputants on the boundary question with the exception of the Messrs. Dawson.* ; , , ,, „ , CLAIMS TO MORR BXTBNDBD BOUNDARIES. Having noticed those opponents of the award, who do not pretend to appeal to the law in support of their pretensions, I shall swivert very briefly to the views of those who contend that the Proclamation issued under the Statute of 1791 extended the territories of Ontario beyond the boundaries of the Province of Quebec as established by the Statute of 1774. The Act of 1791 declares that a message had been sent to both Houses of Par- liament, signifying the royal intention to divide the Province of Quebec, and it then ma.ies provision for the future government of the two Provinces to be created out of the old Province of Quebec. It is true that the Proclamation uses the term Canada insteoil of Quebec. I have already stated that although a Governor's Commission cannot be invoked jii opposition to an Act of Parliament, it may fairly be referred to when the language is jat all ambiguous. It seems to me that the Proclamation of 1791 could not be construed to give an extension of territory not contemplated by the Act, but the first Commission • [.See, as to thi-i pretension, note ♦, p. 294, antp, — G. E. L.] y AWARD ; " THK BOUNDARY LINK OF HUDSON'S BAY. 426 f who attack the nportance that ia award was made, ap, without name , which indicates e we have placed )t, containing the ) last, are puerile, s ' says about the the award T Our cy. By the light isly decided upos le land thus given ) business of ours, enced by the con- None of the able :o attempt to take r. Royal, M.P., is itee of 1880, and a a new Province Manitoba should le of Ontario take itory, without the an extraordinary !c would not have sen believed to be, should rather say, re is a very simple idaries of Ontario |of Peace of 1783, of the Dominion, McD. Dawson's (variance with the amission to define 138, and in subse- |emed to have any exception of the to appeal to the lews of those who led the territories )ed by the Statute Houses of Par- iiud it then ma.ie8 led out of the old lanada insteaul of lannot be invoked the language is I not be construed Ifirst Commission issued under it to Lord Dorchester, describes the territory comprised in Upper Canada to be all lying to the westward of the line from Lake Temiscamingue to the boundary of Hudson's Bay, " as were part of our said Province of Quebec." The Arbitrators con- curred so far with the judgment of the Lower Canada Court in 1818, m to confine the western boundary to that established by the Act of 1 774. I have now to refer to a mild criticism, which I notice merely to draw attention to what I consider a very reasonable view of the south-western boundary. Shortly after the publication of the award, a writer in the Monetary Times, of Toronto, criticised the decision to adopt the north-western angle of the Lake of the Woods as the south-western boundary, on the ground that the true boundary was a point on the meridian of the source of the Mississippi, due west from the international boundary. The writer took precisely the same view as the Arbitrators — that under the Statute of 1 774 the western boundary was the Mississippi River, and it must be obvious that such was the view of the diplomatists who negotiated the Treaty of Peace between Great Britain and the United States. Moreover, he admitted that the award " cannot be impeached as inequitable," although he gave it as his own opinion that the Arbitrators had "stumbled" on a decision which, "if the work had to be done over again, we fail to see in what respects it could be materially improved." I admit that there ia much to be said in favour of the view taken by the writer in the Monetary Tirnet, which I believe was likewise the view of the Hon. Wm. McDougall, who has studied the ques- tion very carefully, and who has pronounced himself strongly in favour of the Mississippi having been the western boundary of the Province of Quebec, .under the Act of 1774. Practically it is a matter of no importance whether the south-westerly boundary is at the international boundary or at a point, a few miles farther west, that would be intersected by a line on the meridian of the source of the Mississippi. ' . ■■ !' ■'•'•' ■. . - ■ : HON. WM. M'DOUOALIi's OPINION. ' ' . ' .' '■■'.'; t ' I have noticed Mr. McDougall's opinion on the south-westerly boundary, and it may be convenient to advert here to his criticism on the award as to the north-easterly boundary. In his speech on the subject in the House of Commons in 1880, Mr. McDougall stated that he had become satisfied that the words "be mdary line of Hudson's Bay " had been a clerical error of the Attorney-General, but &h he did not state the grounds for that opinion, I am unable to judge whether they are entitled to any weight. It appears, however, from his evidence before the Committee, that when in England in the year 1869, he took a great deal of trouble to ascertain whether the description was a clerical error. He searched the records of the Colonial Office without success, and then went to the Privy Council Office where he procured the Attorney-General'c fiat, which, he said, he opened " with a good dea' of anxiety," only to find the same language as in the original Proclamation, " to the boundary line of Hudson's Bay." He still, however, clings to his opinion that "it was an error of the Attorney-General, who, being human in those days, as in these, was liable to err." May it not be possible that Mr. McDougall himself h&s erred in his conclusion that an error was committed by others t The Arbitrators, I need scarcely add, did not feel themselves justified in assuming that the Proclamation issued in conformity with an Act of Parliament contained an important error. Mr. McDougall likewise stated that the Arbitrators "had found in some commuriications between the Imperial Governmt nt and their officers in this country, the words ' to the boundary line of Hudson's Bay.*" This seems to mean extraordinary mode of describing a Proclamation issued on the authority of the King in Council for the division of the Province of Quebec in accordance with an Act of Parliament. Mr. McDougall took no notice of the Com- missions in which the shore of Hudson's Bay was declared the boundary, nor does he seem to have recollected that on every occasion when the territorial boundary was meant the description was invariably " the territory belonging to the Merchants Adventurers trading to Hudson's Bay." Mr. McDougall has acknowledged that the Hudson's Bay Company had at one time agreed to accept the Albany River as the southern boundary of their territory ; and although it was never agreed to by the high contracting parties, still the fact that the Hudson's Bay Company at that period made no claim to any country south of the Albany River is confirmatory of the correctness of the award. i M 426 LECTURE OF SIR F. HINCKS ON THE SUBJECT OF THE BOUNDARY AWARD I ) MR. W. M'D. DAWSON'b OPINIOM. ! If rli ¥ 1 -iJi ■n:'rHv>-.5i I shall now proceed to bhe consideration of another view of the boundary question. In the report of the Select Committee of 1880, the evidence of Mr. W. McD. Dawson is prominently brought forward as that of the person •• who was the first to investigate the case on the part of Canada, in 1857, than whom no one should have a more thorough knowledge of the subject." Mr. McD. Dawson himself states in his evidence that he wrote a report in 1857 for the Commissioner of Crown Lands, which, he adds " has been the cause of all the controversy that has since taken place in relation thereto." He gave an interesting account of the circumstances under which he wrote this well-known report, having assured Mr. Cauchon, who w-s then his chief, " that there was no authority whatever for such a boundary " as the northern watershed of the St. Lawrence. I may state, before noticing Mr. Dawson's evidence further, that it ought to be carefully read together with his own report of 18oi, and I shall be much surprised if any differ^it opinion from my own is arrived at, and that, I must acknowledge, is that it is a mass of inconsistency. Mr. Dawson informed the Committee that " the case presented by the Dominion was no case at all," that the learned Counsel, " after a great deal of desultory reading failed to seize the true facts of history bearing on it," and he then referred to the prevailing ignorance of the subject, which he illustrated by a quotation from the evidence of his esteemed friend. Col. Dennis, Deputy Minister of the Interior, which I shall have to notice later. CHAi.oK AOAINST DOMINION COUNSEL. Mr. DawHon has not only made the very serious charge against the learned counsel for the Dominion, which I have just cited, but in his answer to a question whether he had hirnself been consulted, he declared ihat " it very often seems to be the habit of Governments not to consult those who know most about the case that has to be dealt with." I shoulb feel that an apology was due from me to the learned counsel for the Dominion, Mr. MacMahon, Q.C., of Ontario, and Mr. Monk, of Montreal, for noticing such a charge, were it not that it enables me to define clearly Mr. W. McD. Dawson's peculiar position as to this question. It will not, I presume, be denied by a single member of the legal profession, or indeed by anyone else, that the duty of the learned counsel for the Dominion was to advocate the claim of the Government which they repre- sented, to the utmost extent of their ability. The Dominion claim which was formally made in March, 1872, was to a boundary on the west on the meiidian due north from the confluence of the Ohio and Mississippi Rivers, and on the north, to the height of land dividing the waters which flow into H\idson's Bay, from those emptying into the great lakes. Such was the Dominion claim made in 1872, in the form of a diuft of instructions for a Commission to be appointed to survey and locate the boundaries. If the Dominion counsel had neglected to support the pretension, which they were retained to defend, they would of course be liable to censure, but it has never been pretended by any one, until very recently by Sir John A . Macdonald, that they failed from want of zeal. I am sure that the Arbitrators would have unanimously borne testimony to their exertions in support of the boundaries, which they were instructed to contend for. But then they did not consult Mr. W. McD. Dawson. Now it is quite true that is a very wide divevgence between Mr. Dawson's opinions in 1857 and in 1880. Most assuredly no lawjer who had read Mr. Da jvson's report of 1857, would have called on him to support the Dominion claim, and if the learned counsel could have made a forecast of Mr. McD. Dawson's evidence in 1880, he was the last person to whom they would have applied for aid in support of their case. An extract or two from Mr. McD. Dawsrn's evidence will suflice. He said, " I think, therefore, that in commencing their description at the shore of Hud- son's Bay, the Arbitrators were correct." Then having referred to Lord Durham's Commission in 1838, which only dedned the boundary into Lake Superior, Mr. Dawson states in his evidence : " From that date the Province of Upper Canada no longer sub- sisted as a divisional part of the old Province of Quebec." The Messrs. Dawson avow that they hold the opinion that the language in the Commission of a Go>erior can f >.*?. '• r.wledge it as their guide. The Messrs. Dawson repudiate it altogether, and claim that the Province of Canada had been deprived, by virtue of the language of a Commission, of territory over which it ha'' exercised jurisdiction during many years. I feel assured that on one point there can be no difference of opinion, and that is, that Mr. Mackenzie's Government acted wisely in instructing their counsel to maintain the Dominion Claim precisely as it had been put forward by the Government of Sir John Macdonald. Even if Mr. Dawson's view of the question were as sound, as I believe it to be the reverse, it would have been most improper for counsel to have entertaired it. Their duty was to defend the Dominion claim, not that of the Messrs. Dawson ; and they performed it faithfully. MR. WM. M"L». :>aWSON's INCONSISTENCY. In his report in 1857, Mr. Dawson had taken the onost extreme •view of the claim of Ontario, then part of United Canada, and he felt it necessary to endeavour to reconcile that opinion with the one which he subsequently adopted in 1880. He declares in his last evidence : " I claimed these countries as the birthright of the people of United Canada," but he soon after admitted that " the claim put forward by me would have inured, if properly and eflSciently maintained, to the benefit of Upper Canada, but that was not a point of special importance at the time. We were one Province, under one Government and one Legislature, and every acre of those vast regions was as much the property of the one as the other portion of the United Provinces." This is a specimen of Mr. McD. Dawson's mode of reasoning. The claim was either in accordance with the Act of 1774, or it wan without foundation. In 1791, Mr. Dawson must admit, that all the territory in the old Province of Quebec, which was not comprised in Lower Canada, became part of Upper Canada. The disputed territory, as I will call it for the sake of convenience, was, of course, part of the United Province, and when the Provinces were again separated, Ontario retained the precise boundaries of Upper Canada. To do the Dominion Government justice, they have never pretended that Ontario was not entitled to her true boundaries, but have merely disputed what those boundaries really were. Mr. Dawson asserts that the decision of the Arbitrators "has no basis whatever of history or fact to sustain it," and he then gives it as his opinion that they had " one of three things isnen to them to declare," viz. : 1st, " That Ontario embraced the whole North- West Territory under the Proclamation of 1791, which I have just dismissed as untenable." The Arbitrators dismissed it likewise, although Mr. McD. Dawson's report of 1857 was calculated to induce them to adopt that boundary. 2nd, " That it was bounded by the line prescribed by the Quebec Act of 1774." That was precisely what the Arbitrators did dfci'le, although the precise boundary was necessarily governed by the terms of the * [See the note *, p. 204 ante, already referred to. — G. E. L.l 428 LECTURE OF SIR F. HTNCKS ON THE SUBJECT OF THE BOUNDARY AWARD ; treaties between Great Britain and the Unitevl States, negotiated during the interval. 3rd, " That a more recent definition, which they seemed to have intended to adopt in part, should prevail." Mr. Dawson is completely mistaken if he imagines that the north- eastern boundary was adopted on the ground of the language in the Commissions of Lord Durham and of other Governors. The Proclap"'Uon issued under the authority of the Statute of 1791, and of an Order in Oouncil, was the ground of the decision, although the Commissions were held to be corroborative of language not quite so clear as might have been wished. It appears, then, that although Mr. W. McD. Dawson stated in his evidence that the decision of the Arbitrators " had no basis whatever of history or fact to sustain it," the south-western boundary was decerm'.ned on one of the three grounds which he himself stated in his evidence it was " open to them to declare," viz. : " that it was bounded by the line prescribed by the Quebec Act in 1774," while, as regards the north-eastern boundary, his own language in his evidei.ce is : — " I think, therefore, that in commencing their description at the shoies of Hudson's Bay, the Arbitrators were correct." I think that it will be generally admitted that the evidence of Mr. W. McD. Dawson has no weight whatever, and I shall therefore proceed to consider the course which the Dominion Government has adopted with reference to this boundary dispute. POLIOY OF DOMINION OOVERNMBNT. m It will, I presume, be at once admitted that the Province of Ontario is entitled to precisely the same territory west of the Quebec boundary line to which united Canada was entitled prior to Confederation. I have already referred to Mr. Cauchon's report of 1857, which Mr. McD. Dawson claims as his own, and which is published aa his in thft Appendix to the Report of the F> vt Committee of 1880. That report, which was adopted by the Government of the d icludes a long historical statement in the following words: — "This brief chron. -^cal sketch of the history of the Company, and of the circumstances connected therewith, must sufficiently show that they have acquired no territorial grant whatever under either of the two conditions to which their Charter was subject : first, as regards the countries then known upon < the coasts and confines ' of Hudson's Bay, becaaao they were already in possession of another Christian prince, and were, therefore, excluded from the grant in terms of the Charter itself ; and second, as regards discoveries, because when they first peneti'ated into the interior, one hundred and four years after the date of their Charter, they found the country, and a long- established trade, in the hands of others, unless indeed as regards some discoveries to the north, which are of no special importance to Canada." In his evidence before a committee in 1857, Mr. McD. Dawson stated that for "the boundary designated for us by the Hudson's Bay Company, viz., the water-shed of the St. Lawrence, there is no eai^thly authority except themselves." Mr. Dawson's view, which gave Canada, now represeni»d by Ontario, much more territory than was given to it by the Arbitrators, was deliberately adopted by the Government of the day. On the 16th January, 1869, a letter was addressed to the Colonial Department by the late Sir George E. Cartier and the Hoa William McDougall, from which I shall make a brief quotation : — " Whatever doubt may exist as to the ' utmost extent ' of old or French Canada, no impartial investigator of the evidence in the case can doubt that it extended to and included the country between the Lake of the Woods and Red River." The chief opposition to the award of the Arbitrators has been raised by the professed admirers of Sir George Cartier, who declared that " no impartial investigator " would hesitate as to giving Ontario a greater extent of territory than that awarded by the Arbitrators. It is evident from another part of the letter, that Sir George Cartier and Mr. McDougall held the same views as the counsel for the prisoner in the De Reinhardt case, as the counsel for the Ontario Government, as the Hon. Mr. Mills, and as both the Messrs. Dawson, so late as 1876. I shall now advert to the negotiations in 1872 between the Governments of the Dominion and of Ontario. On the 14th March of that year, the Hon. Joseph Howe, the Secretary of State, transmitted to Lieutenant-Governor Howland a draft of instructions to be given to the Commissioner who was to be appointed to locate the boundary line. The instruc- tions prescribed as the westerly boundary the meridian of the confluence of the Ohio Y AWARD : REPLY TO ADVERSE CRITICISMS. 429 ring the interval, indod to adopt in 68 that the north - [imisaiona of Lord authority of the sion, although the ar as might have ion stated in his of history or fact bhe three grounds •e," viz. : " that it le, as regards the ik, therefore, that Arbitrators were of Mr. W. McD. insider the course undary dispute. and Mississippi Rivers, known as the due north line, and as the northerly boundary the height of land. This was objected to by Ontario, and the boundary has remained ever uince in dispute, although, in a report made by Sir John Macdonald on the 1st May, 1872, the importance of establishing it withouc delay was forcibly urged. It is to be inferred from the evidence of Col. Dennis, Deputy Minister of the Interior, that the Dominion claim made early in 1872, and which was at complete variance with the previous pre- tensions of that Government, was based on a report from himself to the Minister of Justice, Sir John A. Macdonald, dated Ist October, 1871. In that report it is expressly stated in section 18, that the Charter of the Hudson's Bay Company described their grant " as extending over and including all lands and territories drained by the waters emptying into Hudson's Bay," and reference is made to a copy of the Charter, marked F. On this Mr. W. McD. Dawson remarks ; — " Whereas there are no such words in it, nor anything that, as I would translate that very absurd document, could possibly bear such a construction." Mr. McD. Dawson did not, when pointing out the mistake into which Col. Dennis had fallen, advert to the fact that this misquotation from a document which, it may be presumed. Sir John Macdonald accepted without ascertaining its correctness, was made the ground of a territorial claim which, although nearly ten years have elapsed, is still in dispute. ^1 bario is entitled to ch united Canada auchon'a report of shed as his in tha which was adopted t in the following Company, and of ley have acquired I to which their ' the coasts and another Christian barter itself ; and the interior, one luntry, and a long- discoveries to the >efore a committee ted for us by the lere is no earbhly now represeni^d was deliberately 69, a letter was ier and the Hon. Whatever doubt irtial investigator country between le award of the bier, who declared greater extent of other part of the ws as the counsel » Government, as 76. I shall now Dominion and of the Secretary of tions to be given ne. The instnic- nce of the Ohio AWARD SHOULD BE ADOPTED OR SET ASIDE ON APPEAL. The question at issue between Ontario and the other Provinces comprised in the Dominion is so important that I feel that it would be unbecoming in me to make any complaint of the treatment of the Arbitrators, who faithfully discharged a public duty which they were called upon to perform. Their unanimous award, arrived at after a careful study by each Arbitrator of the evidence in the case, and without previous con- saltation or communication of any kind with one anotb-^r, has been attacked in a manner wholly without precedent, to the best of my belief. I am persuaded that no Government in Great Britain would repudiate an agreement entered into by its predecessors to leave a disputed question to arbitration. This, however, is a point which I have no intention of discussing. I merely vish to state that my own anxious desirt would be that there should be an appeal to set aside the award to the highest judicial tribunal. In the meantime I desire to record my entire dissent from the statement of Mr. S. J. Dawson, as reported in Hansard, that " the ftward was made in the absence of anything like full information on the subject, and even without a due consideration of the information that was available ; " and having by your indulgence been permitted to explain the grounds on which the award was made, I rely with implicit confidence on the judgment of an enlightened public as to its merits. ' ■■ ' ' " SUMMARY OP CHARGES — DEFENCE OF COUNSEL. ''"^ I shall be as brief as possible in summing up. I think the charges may be stated as — 1st, "The whole case was thrown away — it looks almost as if it was deliberately thrown away." " It was most wretchedly managed on the part of the Dominion." 2nd, " They, the Arbitrators, did not affect to set up the true boundaries according to law ; they laid down a mere conventional or convenient boundary." I have given the utter- ances of Sir John Macdonald in the House of Commons on the 18th March last as I find them in Hansard. lr» support of the first charge. Sir John Macdonald referred to the Imperial Act anth:,*i..'nig the surrender of Rupert's Land and the North- West to Canada, and siated chat " the contention was not raised that the Act says that Rupert's Land shall be I.eld to be whatever was in possession or deemej to be in pocsession of the Hudson'* Bay Company ;" and again, " to show how inef? ; V i'. <• REPORT OF THE ATTORNEY-OENERAL OP ONTARIO ON THE BOUNDARY QUEHTION, iHT NOVEMBER, 1881.* The undoraigned bau tbo houour to submit tlie followiog report on the controversy of the last few years with respect to that largo part of this Province to which the Domin- ion Government persistently refuse to acknowledge our title, notwithstanding the unani- mous award, tliree years ago, l8rd August, 1878,) of the Right Honourable Sir Edward Thornton, Her Majesty's Amoassador at Washington, the Honourable Ohief Justice Harrison, and the Honourable Sir Francis Hincks, K.C.M.G., mutually choson by the two Govornments to decide the njattor. The territory in question consists of two parts, standing on a difToront footing from each other : (1) Territory lying north and west of the Height of Land which divides tbo waters flowing into the Great Lakes from those flowing into Hudson's Bay ; and (2) the ter- ritory lying south and east of the same Height of Land. By an Act passed at its last sob- sion, the Fedcrnl Parliament transferred to the Province of Manitoba (so far as regards Pro- vinoial jurisdiction) the claim which the Federal Government made to the territory south and east of the Height of Land, comprising an area of about 7,000 square miles, aud to so much of the territory north and west of the same Height of Land as lies between the Province of Manitoba and the Province of Ontario, comprising a further area of about 82,000 square miles. The territory lying to the north and west of the Height of Land is claimed on behalf of the Dominion, as having become entitled to it in 1870, under a transfer or release of the interest theretofore claimed by the Hudson's Bay Company therein, under their Charter dated 2nd May, 1670. The disputed territory lying to the aoutk and east of the same Height of Land was not claimed by the Hudson's Bay Company under their Charter, nor was there any ground or pretence for so claiming it. Before 1870 this part had been treated at all times, and for all purposes, as belonging to this section of Canada. As suoh it had before Confederation been the subject of grants, licenses and other transac- tions on the part of the Provincial Government. So much of the territory as was from time to time settled or occupied by a white population was governed, without any ques tion on the part of anybody, by the laws, courts and officers of Upper Canada : and since Confederation the same territory has uninterruptedly been governed by the laws, courts and officers of Ontario ; it has had municipal organization as part of thi^ Province ; the Ontario District of Algoma has for all purposes of the Dominion and Province been considered to include it ; and Provincial money has from time to time been expended in making surveys and bridges and other improvements, and in admin- istering justice and maintaining peace and order in the territory. The land on this side of the Height of Land is part of certain tei^itory which was the subject of an Order in Council of the Government of Canada, and of a treaty by that Government with the Indians, as long ago as I860. On the 11th January, 1850,t tlic Government of Canada, by this Order in Council, which was approved by His Excellency the Governor- General, authorized the Honourable W. B. Robinson " on the part of the Government to negotiate with the several tribes [of Indians] for the adjustment of their claims to the lauds in the vicinity of Lakes Superior and Huron, or of such portions of them as may be rejuired for mining purposes." In pursuance of this authority, Mr. Robinson, *• on behalf of Her Majesty the Queen," on the 7th September, 1850, entercil into an agreement -with " the principal men of the Ojibbeway Indians, inhabiting the northern shore of Lake Superior, in the said Province of Canada, from Batchewanaung Bay to Pigeon River at the western extremity of said lake," whereby, in consideration of £2,000 in hand paid, •' and for the further perpetual annuity of £500 to be paid and ♦ Sess. Papers, Ont, 1882, No. 23. t Book of Arbitration Domiments, p. 23. ,J5 i UK8TI0N. AREA OK OKTARIC AS COMPARED TO THAT OK oTHKil PROVINCI-X. 433 i BOUNDARY the controversy lioh the Domiu- ding the unani- iblo Sir Edward le Ohief JuBtioe y oboBon by the ont footing from hioh dividefl the ; and (2) the ter- jod at its last 80b- ,r aa regards Pro- e territory south ]|Uare miles, aud i as lies between i further area of laimed on behalf sfer or release of rein, under their Height of Land larter, nor was B part bad been of Canada. As id other transac- ory as was from rithout any ques pper Canada : governed by the as part of thit^ le Dominion and om time to time 8, and in admin itory which was a treaty by that luary, 1850,t the ' His Excellency ^n the part of the justment of their such portions of IS authority, Mr. Br, 1850, entereil . inhabiting the JBatcbewanaung in consideration to be paid and delivered to tho aaid chiefs and their tribes at a convenient season of each summer, not later than the Ist day of August, at Miohipiooten and Fort William, they the said ohiefa and principal men [did] surrender, cede, grant and convey unto Her Majesty, her heira and Buoceasors, all Uieir right, title aud interest in the territory " therein described ; and thereby, ' on behalf of Her Majesty aud the Qovernmeut of this Province," it waa agreed to make the siid payment, " and, further, to allow the said chiefs and their tribes tho full and free f "' *'. - to hunt over the territory now ceded by them, to fish in the waters thereof as I ■• " .. v ) heretofore been in the habit of doing, saving and excepting only Buoh portions Oi ..a i '.aid territory as may from time to time be sold or leaeed to individuals, or companies of individuals, and occupied by them with the oonsent of the Provincial Government." The agreement also contained provisions with respect to the ralu of mining locations or other property by " the Qovernment of this Province." The (Government of the Province acted on this treaty, with the consent and approval of Her Majesty's representative, the Goveruor-General, up to the time of Confederation ; and the Governments of Canada and Ontario continued to act upon it afterwards. Assuming that this territory, south and east of the Height of Land, is not within Ontario, the l3omiiiion had no claim to it until an Order ^as made by Her Majesty in (/'ouncil, on the 81st July, 1880, whereby it was ordered and declared that "from and after the lat of September, 1880, all Britiah territories and possessions in North Amerioa, not already included within the Dominion of Canada, and all islands adjacent to any of such territories or possessions, shall (with the exception of the Colony of Newfoundland and its dependencies) become and bo annexed to and form part of the said Dominion of Can- ada, and become and be subject to the laws, for the time being, in force in the said Dominion, in so far as such laws may be applicable thereto."* The claim to the territory north and west of the Height of Land, as well as to tlie land south and east, is not new. All which is now in dispute, and more, were always claimed as part of Upper Canada by the Province of Canada, in its contests with the Hudson's Bay Company and otherwise, long before the Confederation Act was thought of, and up to the time that that Act went into effect. The same claim was continuously insisted on afterwards by the Government of the Dominion, until the contest with the Company was put an end to in 1^70, by its interests on this continent (whatever they were) being transferred to Canada. To prevent the recognition of the award by members of the House of Commons from constituencies lying within the other Provinces, the award has been represented as giv- ing to this Province an extensive territory to which it had no right ; while the trnth is, that the right of Ontario to all the territory awarded was established by an immense mass of evidence. The further fact is kept in the background, that the territory awarded to this Province is less than the Governments of the country had, up to the year 1870, justly claimed to belong to this section of Canada. With the same view, it has been suggested that this territory, if confirmed to Ontario, would, in the not distant future, give to this Province undue weight in the Dominion. With this territory Ontario has an area of about 200,000 square miles ; but British Columbia has 890,844 square miles ;f Eeewatin District (as limited by the recent Manitoba Act), about 260,000 ; and Quebec is admitted to have 198,855, f and probably has considerably more, as the estimate of that area appears to assume that the Prov- ince of Quebec does not extend to the shore of Hudson's Bay. Outside of its present Provinces, the Dominion has still an estimated area of more than 2,000,000 square miles for new Provinces. The loss of the territory in dispute would reduce the area of Ontario to 109,480 square miles, f Why should the area of our Province be reduced to half that of Quebec ? or to less than half the area of Eeewatin ? or to less than one-third the area of British Columbia ? The addition of the same territory to Manitoba would give to that Province an area of 154,411 square miles.f Why is the area of Ontario to be i-educed, and that of Manitoba extended, until Manitoba shall have an area one-half greuter than Ontario ? * [This Order iu Council is printed ante, p. 402.] t Senate Debate on the Manitoba Bill of 1881, pp . 607, 608. ■■'■], 28 'i m 434 REPORT OF THE ATTORNEY-GEN. OF ONT. ON THE BOUNDARY QUESTION : 1^1 ,1' h Having reference to the figures tb-as given, the notion of Ontario h. ing in the iulore undue inftuence in the Dominion, as oompared with its other Froviuces, is absurd, even if the Provinces were represented in the House of Oommone as Provinces ; which they are not. The members of that body represent the counties, ridings, districts, and cities of the Dominion, and would ];epre8ent their t-ipective constituencies whether these, for Provincial purposes, were in one Province or another. The undersigned has said that our claim to the territory awarded to us is not new. A few of the many faets which illustrate this statement may be mentioned. On the 4th December, 1856,* the Secretary of State for the Colonies a^'^ '^ssed to the Governor- General of Canada a despatch respecting the Hudson's Bay Com, ; and respecting certain important questions which the Company bad raised, ' K^ '-eps which Her Majesty's Government had in contemplation regarding them. J'^Hp xHa. referred, amongst other things, to the Company's claim to " all the region ' itish Dominion watered by streams flowing into Hudson's Bay;" and l d Her Majesty's Government had " determined on bringing the whole subject '' i^^he ii„?esti- gation of a Committee of the House of Commons at the earliest conve^ . ^ime ;" that the inquiry would be mainly directed to the question of the renewal of a certain license granted to the Company in 1888, but that " it must incidentally embrace the general position and prospects of the Hudson's Bay Company ; and, as many poiniis might arise in the course of inquiry which might affect the interests of Canada, His Excellency was instructed to consider, with the advice of his Council, 'the question whether it might be desirable to send witnesses to appear before the Committee, or in any other manner to cause the views of the Provincial Government, and the interests of the Canadian com- munity, to be represented before the Committee. In reply, on the 17th January, 18{i7, a Minute of Council,} approved by His Exoellcucy, was transmitted to the Colonial Secretary, in which it was stated, amongst other things, that " the general feeling here is strongly that the western boundary of Canada extends to the Pacific Ocean ;" that the Committee of Council were most anx- ious that Canadian interests should be properly represented before the proposed Com- mittee of the House ; and that opportunity should be afforded for carefully and closely watching any evidence which migh^ be adduced before that body ; that the Committee would take the earliest occasion to suggest to His Excellency the manner in which they conceived this could be best accomplished ; that situated as Canada is, she necessarily hi an immediate interest in every portion of British North America ; and that the questiv ^ of the jurisdiction and title claimed by the Hudson's Bay Company is to her of pariiiaourxt importance. All official paper by the Commissioner of Crown Lands of Canada was prepared, J claiiiiing, on grorn 33 therein elaborately set forth, that the westerly boundary of the Prov- ince erteridea " i s British territory, not otherwise organized, would carry it, which would V « to tlie Pttc >': -', if limited at all, it would be by the first waters of the Missis- sippi vHch a due is xiric from the Lake of the Woods intersected, which would be tho White iii>.rth Riv»'/i ;" and with respect to the northerly boundary, the Commissioner pointe i ov oliat " ti - . v" possible conclusion is, that Canada is either bounded in that directioi: ^j i '«w 'j:.itud posts on the shore of Hudson's Bay, or else that the Com- pany's ten itor^ J ... a myth, and consequently that Canada has no particular limit in that direction." The Honourable William H. Draper, Chief Justice of the Court of Common Pleas of Upper Canada, was appointed by the Government of Canada as a special agent to represent " Canadian rights and interests before the proposed Committee of the House of Commons." Instructions for his mission were communicated to him by letter on the 20th February, 1857.§ I * Sessional Papers, Canada, 1867, Vol. 15, No. 17. [The despatch is printed ante, p. 1. ] + Seisional Papers, Canada, 1857, Vol. 16, .'' o 17. [The Minute in Council is printed ante, p. 2.] X Book of Arbitration Documents, p. 243 ; Journals of Legisltttive Assembly, Canada, Vol. 16, No. 17(B). [This document is printed an<«, p. 6.] § [Printed ante, p. 4.] f''m '\i UESTION : CHIEF JUSTICE DRAPER'S OPINION AS TO THE WESTERN BOUNDARY. 435 10 b. lug in the duceii, is absaid, 'rovinces; which igB, distriots, and uenciee whether to U3 is not new. led. niea afi*^ '^used to ,y Com ; and lod, ' afi 'eps 1, "S .j'^.Hp xh. ion ' itish : d Her y bbeu.f'eBti- , ume ;" that : a certain license ibrac<^ the general >oin'o8 might arise is Excellency was lether it might be r other manner to he Canadian com> approved by Ilis ;S stated, amongst stern boundary of ^il were most anx- e proposed Com- 'ully and closely at the Committee ner in which they , she necessarily loa ; and that the ompany is to her ia was prepared,} dnryoftheProv- d carry it, which era of the Missis- wfaich would be le Commissioner bounded in that 86 that the Corn- has no particular of Common Pleas a special agent to ttee of the House him by letter on «i P.l.] nted ante, p. 2.] Canada, Vol. 15, Mo. All these papers were brought down to the Legislative Assembly as Returns to Addresses of that honourable body, dated respectively the 2ud and 16th March, 1857, and are to be found in the appendix to the Sessional Papers of that year (No. 17). The Government of Canada thus sent Chief Justice Draper td England for the par- pose of resisting the very claim of the H' dson's Bay Company which the Dominion afterwards made and ''till makes as the transferees of that Company ; and that dis- tinguished jurist resisted the Company's claim accordingly before a Committee of the House of Commons, and otherwise, in that year. In the same session, viz., on the 11th May, 1857, the Legislative Assembly appointed a Select Committee to receive and collect evidence and information as to the rights of the Hudson's Bay Company under their charter, and as to other matters relating to the territory. The only evidence taken was against the claim then made .by the Company, and now made by the Federal authorities. The Committee made their report on the 8th June, 1857, submitting the evidence to the consideration of the House. The House was prorogued on the 10th June. Meanwhile, viz., on the 28th May and 4th June, 1857, Chief Justice Draper was «xamined before the Committee of the House of Commons in England ; and, on the subject 'of the -Him of the Hudson's Bay Company, stated (among other things) as follows : "At piobr. Mt is understood by us that the Hudson's Bay Company claim, as a legal right, all the land which is drained by any streams, no matter how remote their sources may be, which flow into either the Hudson's Bay Straits or Hudson's Bay. Wo consider that that is an ill-founded claim, principally upon this grounc) — that it is a claim of which we can find no trace until a very modern period, and is quite inconsistent with the claims advanced by that Company for nearly a century and a half. To save time, I have prepared extracts from various documents emanating from the Company themselves, with some few other documents. It is a paper which it would save a great deal of time to put in, because I can give every place where the extracts are taken from, and therefore reference to the original documents can always be had. I would also desire to say that in every extract which I have made, I have made it a complete extract of all that is stated on the question ; and if it involves anything favourable to the Hudson's Bay Company, it will be found in those portions of which I have made the extract."''^ The paper thus referred to as containing, not merely what favoured the Canadian claim, but also everything favourable to the Hudson's Bay Company, was amongst the papers before the Arbitrators in 1878, having been printed in the Book of Documents for the purposes of the arbitration. (Pages 285 and 240.) Afterwards, viz., on the 12th of June, 1857, the learned Chief Justice communis oated to the Government of Canada his opinion, that if the matter were submitted to the Privy Council, its decision would give " to Canada a clear right west to the line of the Mississippi, and some considerable distance north of what the Hudson's Bay Company claim,"! though not the " territory west of the westernmost head of the Mississippi."! The Chief Justice thought that the Canadian Government had claimed too much in claiming beyond that point, to the Bocky Mountains. The award which the Federal authorities refuse to recognize has assigned to us part only of the territory described by the Chief Justice as territory to which we had a ♦' clear right."! It is further to be noted that public money was from time to time expended by the Province of Canada in opening roads, and otherwise in the now disputed territory.} After Confederation, the same views were taken of the territorial question, and the like course of action was pursued by the Dominion Government and Parliament, as had been adopted by the Goverrment and Parliament of the Province. Thus, in 1868, the sum of $20,000 was appropriated by the Dominion for the construction of a road from the Lake of the Woods to Fort Garry, on Red Eiver ; and * Hudson's Bay Report, Corns., Eng., 1857, p. 212, Question 4066, p. 374, etc. [See the paper in ques- tion, p. 37, ante, and another paper submitted by the Chief Justice to the Secretary of State for the Colonies, p. 32, ante.] I Book of Arbitration Documents, p. 391. [The letter is printed ante, p. 47.] X See Sessional Papers, Canada, 1864, No. 62. . I .'11 m ■lull 436 REPORT OF THE ATTORNEY-QEN. OF ONT. ON THE BOUNDARY QUESTION ; M> the money was spent accordingly. The whole of this road was in territory which the Dominion authorities now say was then no part of Canada. Again, in au official letter of the Canadian Ministers, Sir George E. Cartier and the Hon. WiUiam MoDougall, to Sir Frederic Rogers, Bart., Under-Secretary of Stats for the Colonies, dated 16th January, 1869, they pointed out that " the boundaries of Upper Canada on the north and west were declared, under the authority of the Constitutional Act of 1791, to include 'all the territory to the westward and southward' of the ' boundary line of Hudson's Bay, to the utmost extent of the country commonly called or known by the name of Canada;'" and they added that "whatever doubt may exist as to the ' utmost extent ' of old or French Canada, no impartial investigator of the evidence in the case can doubt that it extended to, and included, the countrv between the Lake of the Woods and Eed River. The Government of Canada, therefore, does not admit, but on the contrary denies, and has always denied, the pretensions of the Hudson's Bay Company to any right of soil, beyond that of squatters, in the territory '* between the Lake of the Woods and Red River," that being the territory to which the matter which called forth the letter referred.'^ The Federal Government thus claimed for us a western line beyond the line which the Arbitrators have awarded to us, and insisted that no " impartial investigator " of the evidence could doubt our right to it. So much as to the views and acts of the Province of Canada and Dominion of Canada until the year 1870. In that year the Federal Government ceased to be " impartial investigators of the evidence." Having obtained a transfer of the interests of the Hudson's Bay Company, that Government soon afterwards reversed the position always theretofore taken in this country with regard to the extent of Canada. They now insist that Canada had more contracted limits than even its old antagonists, the Hudson's Bay Company, had argued .or; and that the views maintained and acted upon by Canadian Governments and public men up to 1870 were so utterly and clearly unfounded, that, though confirmed as to part of the territory by solemn award, the award must be resisted both passively and actively, regardless of consequences. The particulars of this transfer of 1870 may here be stated. By the British North America Act (80 and 81 Victoria, ch. 8, sec. 8), the Provinces. of Canada, Nova Scotia and New Brunswick were formed into one Dominion under the name of Canada. By section 6 it was enacted that " the parts of the Province of Canada . . . which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form two separate Provinces — the part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario; and the part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec." And by the 146th section it was enacted that the Queen, by the advice of Her Majesty's Privy Council, might " admit Rupert's Land and the North-Western territory, or either of them, into the Union, . . . subject to the provisions of this Act ; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parlia- ment of the United Kingdom of Great Britain and Ireland." By a joint Address to Her Majesty from the two Houses of the Canadian Parliament, in December, 1867, it was prayed that Her Majesty would be graciously pleased " to unite Rupert's Land and the North-Western territory with the Dominion of Canada," and it was therein stated " that, upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement would be considered and settled in conformity with the equitable principles which have uniformly governed the Crown in its dealing witli the aborigines." I By another joint Address to Her Majesty from the two Houses of the Canadian Parliament, in May, 1869, it was again prayed that Her Majesty would be graciously pleased " to unite Rupert's Laud on the terms and conditions " therein mentioned (but * P.iiok of Arbitration Documents, p. 323. [Printed ante, p. 155.] tJouina'o, Canadian Senate, 1867, p. 144. [Printed ante, p. 128.] ONTARIO SETTLEMENTS WEST OF DUE NORTH LINE. 437 rritory whioh the not material to the present question), " and also to unite the North- Western territory with the Dominion of Canada," as before prayed.'' Accordingly, by an Order in Council, dated 28rd June, 1870, it was ordered and declared by Her Maj<^sty, by and with the advice of Her Privy Council, that from and after the 15th July, 1870, " the said North-Western Territory shall be admitted into and become part of the Dominion of Canada" upon certain terms and conditions therein referred to, and that " Eupert's Land shall, from and after the said date, be admitted into and become part of the Dominion of Canada" upon certain other terms and conditions in the said Order mentioned, t It has of late been argued, or asserted, that this Order deprived Ontario of any territory theretofore claimed by the Hudson's Bay Company. No contention could be more unfounded. (1) Her Majesty had no power to deprive Ontario of any part of its territory, the British North America Act having expressly declared that the territory " which formerly constituted the Province of Upper Canada shall constitute the Prov- ince of Ontario ; " and the enactment as to the annexing of the North- Western Territory by Her Majesty in Council was expressly " subject to the provisions of this Act." ^2) The Order in Council did not intend to take away any part of our territory. < A year after the claims of the Hudson's Bay Company had been disposed of, viz., on the 17th July, 1871, His Honour the Lieutenant-Governor of this Province, by a despatch addressed to the Secretary of State for the Provinces, called the attention of the Federal Government " to the necessity which exists for the settlement of the true boundary or division line separating the Province of Ontario, from what is known as the North- West Territory," observing that "the importance of accomplishing this object (had) been recognized both by the House of Commons and the Legislature of this Province, and appropriations made by them for defraying the expense of a Commission for that purpose, one member of which to be appointed by His Excellency the Governor- General, and the other by" the Lieutenant-Governor. The despatch referred to "the necessity of having the boundary line in question ascertained without delay." t Accordingly, in July, 1871, the Government of the Dominion appointed their Commissioner, and in September, 1871, the Ontario Government appointed theirs. § These Commissioners were to co-operate with one another in determining the boundary. On the Ist of October, 1871, J. S. Dennis, an officer in the service of the Dominion Government, at the request of its Premier, made a report to him on the question of the boundaries "between the Province of Ontario and the Dominion lands, or North- West Territories."!! In this report Mr. Dennis maintained — contrary to all Canada's past contentions with the Hudson's Bay Company, and in opposition to all past acts of the succesriive Governments of Canada — that Ontario did not extend in the west beyond the meridian of the confluence of the Ohio and Mississippi Bivers (longitude about 89°) ;1T thus excluding not only " the country between the Lake of the Woods and Bed Biver," but also the Lake of the Woods itself and a breadth of some hundreds of miles between that lake and the said meridian, to which territory the award has declai-ed Ontario to be entitled. The territory thus said not to belong to this Province includes the village of Prince Arthur's Landing and the Township of Mclntyre, with a population of 2,500 ; the Township of Oliver, with a population of 500 ; the Village of Fort William and Township of Neebing, with a population of 1,260 ; Mattawan, with a population of 250 ; and Sibley, 750. There is a further population along the line of the railway works.** The report of Mr. Dennis further alleged that the northern boundary of Ontario was the Height of Land already mentioned. In support of these views, the report contained a statement that the charter of the * Journals, Canadian Senate, 18G9, p. 126. [Printed ante, p. 183.] t Book of Arbitration Documents, pp. 405 «« «f(/. [Printed onfe, p. 200.] t Sessional Papers, Ontario, 1873, No. 44, p. 3. [The despatch is printed ante, p. 206.] § Book of Arbitration Documents, p. 340. [The Orders in Council are printed ante, pp. 207, 208.] n Report of Boundary Committee, House of Commons, Can., 1880, p. 1. [Printed ante, p. "09.] ir [The exact longitude is stated to be 89' 9' 27" 16, west of Greenwich.— G. K. L.] ••See Senate Debates for 1881, p. 607. i -j 'V > i>li m l 't- 438 REPORT OF THE ATl'ORNEY-OEN. OF ONT. ON THE BOUNDARY QUESTION 'i4 Hudson's Bay Company (dated 2nd May, 1670,) described the grant to the Company as. " extending over and including all lands and territories drained by the waters emptying into Hudson's Bay." The report was made ex parte, aad without any communicatiou with the Government of Ontario. The haste with which it was prepared is manifest from the fact that the charter contained no such description as the report thus professed to quote. That description was merely the construction which had in recent times been placed on the charter by the Company itself, and which as well the companies contending with the Hudson's Bay Company, as the Province and Dominion of Canada, had always repudiated. The report makes no reference to, and no doubt was prepared without its author being aware of, some of the most important documents and other proofs on which the rights of Ontario are based. No copy of the report appears to have been communicated to the Ontario Government; and the report was not known to this Government until after it had been produced by Mr. Dennis to the Committee of the House of Commons of Canada in 1880. By an Order in Council, approved on the 28th of November, 1871,"' the con- stitutional advisers of HIb Excellency the Governor- General of Canada obtained the sanction of the Crown to the statement that " it was of much consequence that the ascertaining and fixing on the ground of the boundary line in question should be as far as possible expedited." On the 9th of March, 1872, t the Hon. William McDougall, the Commissioner of the Ontario Government, reported that he had not yet been put in communication %\ th the Commissioner appointed on behalf of the Dominion, but had conferred with certain officers and members of the Dominion Government, and had reason to believe that the Commissioner of the Dominion would take the ground that a Hue due north from the junction of the Ohio with the Mississippi is the legal western boundary of Ontario, or that the height of land west and north of Lake Superior is the utmost western limit of the Province. Mr. McDougall further stated that his own opinion was that the limit was much further west. A few days afterwards, viz., on the 14th of March, 1872,| a communication was made by the Secretary of State to the Lieutenant-Governor of this Province, claiming in effect, and for. the first time, that the westerly boundary of the Province extended only to the more limited of the two boundaries mentioned by Mr. McDougall, viz., to the meridian of the junction of the Ohio and Mississippi, and that the northern boundary extended only to the height of land dividing the waters which flow into the Hudson's Bay from those emptying into the valleys of the Great Lakes. This claim was embodied in a draft of instructions prepared by the Dominion Government, to be given to their Commissioner. The claim was promptly repudiated on behalf of this Provmce by an Order in Council, passed on the 25th of March, 1872,§ approved by the Lieutenant- Governor, and communicated at once to the Federal Government, to the effect that the Province claimed that the boundary line was very different from the line so defined by the said instructions ; that the Province could not consent to the prosecution of the Commission for marking on the ground the line so defined ; and that the Commissioner appointed by the Government of Ontario should, therefore, be instructed to abstain fiom taking any further action under his commission. By an Order in Council, approved on the 9th of April, 1872, !| the Federal advisers of His Excsllency the Governor-General obtained the assent of the Crown to the opkiiou, that " It is of the greatest consequence to the peace and well-being of the country in the vicinity of the dividing line that no question as to jurisdiction, or the means of preven- tion or punishment of crime, should arise or be allowed to continue," and that "both * Sessional Papers, Ontario, 1873, No. 44, p. 6. [Printed ante, p. 213.] t lUd,, p. 8. [Mr. McDougall's letter is printed ante, p. 21i5.] t Ibid., pp. 14, 15. [Printed ante, p. 219.] § Jbid.,i>. 17. [Printed ante, p. 226.] " ^ M^ ?* Arbitration Documents, p. 342 ; Sensional Papers, Ontario, 1873, No. 44, p. 18. cnUCf p. 228. J [Printect REFUSAL OF DOM. TO NEGOTIATE FOR CONVENTIONAL BOUNDARIES, 1872. 439 , p. 18. [Printed Governments would feel it their duty to settle without delay upon some proper mode ' t' determining, in an authoritative nf.anner, the true position of such boundary." On the 26th of April. 1872,* the Federal Government applied to the Govemmeiit of Ontario for payment of certain accounts, amounting to $4,086.76, for the maintenance of a police force at Thunder Bay, and for cash advances for the Oourt House at Prince Arthur's Landing, the said localities being west of the due north line. On the 26th of June, cheques in favour of the Dominion Government for the sums of $216.02 an I $798.81 respectively were transmitted by his Honour the Lieutenant-Governor to the Government at Ottawa, in di!>charge of items in connection with the Court House at Prince Arthur's Lauding ; and with reference to the other items, for the maintenanct^ of a police force at Thunder Bay, His Honour requested information as to the authority, from the Province of Ontario, upon which the Province was asked to pay therefor. Thi:i information does not appear to have been given, and no further payments appear to have been made. By another Order in Council, approved on the 16th of May, 1872,+ His Excellency':} . Federal advisers obtained the assent of the Crown to the further statement, in reference to the disputed territory, that " it is very material that crime should not be unpunished or unprevented ;" and " in this view," the Government of Ontario was " invited to con- cur in a statement of the case for immediate reference " to the Judicial Committee of the Privy Council of England. It was further stated that "this is the more necessary, as no conventional arrangement between the two Governments as to boundary can cor fer criminal jurisdiction on the Courts of Ontario, unless the place where any crime may be committed is by law within the Province ; " and that *' the mineral wealth of the north-west country is likely to attract a large immigration into those parts, and with n view to its development, as well as to prevent the confusion and strife that is certain to arise and continue among the miners and other settlers so long as the uncertainty as to boundary exists," the Government of Ontario was "urged to arrange with that of the Dominion for some joint course of action as to the granting of land and of mining licenses, reservation of royalties, etc.," and for this purpose it was suggested that the Government of Ontario should " appoint a Commissioner to meet the Hon. J. C. Aikins, and arrange some joint system; and that any such arrangement, when ratified by the two Govern- ments, shall be held to bind both, and shall be subject to the decision of the Judicial Committee of the Privy Council upon the question of boundary ; and that, after such decision, titles to lands or mining rights shall be confirmed by the Government, whether of Canada or of Ontario, as shall, under the decision of the Judicial Committee, bo the proper party to legalize the same." By an Order in Council, approved by His Honour the Lieutenant-Governor, on the 31st day of May, A.D. 1872,^ regret was expressed that the Government of Canada did not propose in any respect to modify its views with reference to the boundaries, opposed as those views were to the general tenor of the expressions and conduct of the Govern- ments of the late Province of Canada and of the Dominion in the past. Begret was also expressed that the Government of Canada was not prepared to negotiate for the purpose of arriving at a conventional arrangement as regards the boundaries. It was inferred that the Government of Canada disapproved of that course, in consequence of the difficulty stated in the following extract from a memorandum of the Minister of Justice : — " No con- ventional arrangement between the two Governments as to boundary can confer criminal jurisdiction on the Courts of Ontario, unless the place where any crime may be committed is by law within the Province ; " and attention was called to the third clause of the Act of the Imperial Parliament, passed 29th of June, 1871, cap. 28, which is in these words : " The Parliament of Canada may, from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legisla- ture, and may, with the like consent, make provision respecting the effect and operation * Book of Arbitration Documents, p. 346 ; Seaaional Papers, Ontario, 1873, No. 44, p. 26. [The letter and papers are printed ante, pp. 231, 235-7.] t Sessional Papers, Ont., 1873, No. 44, p. 20 ; Book of Arbitration Documents, pp. 343,344. [Printed antf, p. 232.] X Book of Arbitration Documents, p. 344. [Printed ante, p. 233. ] ■ HUB 440 REPORT OF THE ATTORNEY-QEN. OF ONT. ON THE BOUNDARY QUESTION ; of any such inorease, or diminution, or alteration of territory in relation to any Province affeoted thereby." It was observed, that " under the operation of this clause, it is quite possible to arrive at a conventional settlement of the question by the joint action of the Executive and Legislative authorities of the Dominion and of the Province ; " and that, with reference to the emergency arising out of the expected immigration during the spring and summer, " a short Act of the Parliament of Canada — providing that the boundaries of Ontario should, for the purposes of criminal jurisdiction, and so far as the Parliament of Canada can provide, be deemed, pending the settlement of the question, to extend as far as the limits which are specified in the memorandum transmitted to the Government of Cauada by this Government — would, though open to some objection, afford the best practicable solution of that difficulty." With reference to the proposed submission to the Judicial Committee of the Privy Council, it was remarked that "the solution of the boundary question depends upon numerous facts, the evidence as to many of which is procurable only in America, and the collection ox vrhicli would involve the expenditure of much time ; " and the opinion was expressed that " upon the whole, the more satisfactory way of settling the question,- should the Government of Canada still decline to negotiate for a conventional boundary, would be by a reference to a Commis- sion sitting on this side of the Atlantic ; " and, " without for the present dealing definitely with the proposal of the Government of Canada for a reference to the Judicial Com- mittee," this counter- suggestion was made to that Government. A " strong conviction " was expressed " that it is the duty of the Government of Ontario to retdn, in the mean- time, the control of the lands within the boundaries claimed by it ; but, as it is anxious that the policy of the Government of Ontario with reference to the disposition of these lands should, so far as practicable, conform to the views of the Government of Canada, it was agi^eed "that an effort should be made to avoid the possible difficulties arising from the claims put forward by that Government," and with this view, the Honourable B. W. Scott was requested to confer with the Honourable J. C. Aikins, as proposed by the despatch of the 16th May. By another Order in Council, approved on the 7ih November, 1872,* His Excel- lency the Governor-General's Federal advisers obtained the further sanction of the Crown to the statement that " the importance of obtaining an authoritative decision as to the limits to the north and to the west of the Province of Ontario had already been affirmed by a Minute in Council," and that " the establishment of criminal and civil jui'isdictiou, and the necessity of meeting the demands of settlers and miners for the acquisition of titles to lands, combi^>ed to render such a decision indispensable." On the 18th March, 1878, T. K. Eamsay, Esq., Q.O., who had previously been employed for this purpose by the Dominion Government,! made a report, giving what xie called " the strictly legal view " of the question, and setting forth elaborately and ably whatever could be found or said in support of the limits suggested in Mr. Dennis' report. Mr. Bamsay's investigations and report were made without the knowledge of the Ontario Government, and without his having seen some important documents in favour of the claim of Ontario which came to hght afterwards, and were submitted to the Arbitrators. | The report was addressed to the Hon. A. Campbell, Postmaster-General, and has appended to it the foUowiug memorandum with reference to the territory south aud east of. the height of land : " In the report submitted, the strictly legal view hrs alone been considered, because it alone seemed to be within the scope of my instructions ; but from the course of my investigations I could not fail to see that, beyond this, ^-ve is another consideration not less important, and that is, the equitable side of the question. In creating the Province of Ontario, it is not possible to conceive that the Imperial Legislature intended to convey to that Province, and to the Province of Quebec, less territory than the late Province of Canada actually enjoyed. Now, it is incontestable that up to 1867 the Government of Canada, de facto extended to the height of land which forms the water shed of the water system of the St. Lawrence and the Great La'-^s. This is made ■ . -hi! J * Sessional Papers, Ontario, 1873, No. 44, p. 23. [Printed ante, p. 238.] ,. „,„, .s- . * ■''. ' ■ t Report of Boundary Com., House of Commons, Can., 1880, p. 209. ,'■ , '\ t Book of Arbitration Documents, pp. 17, .388, 402, 411-419, etc. ■ .,,. •, :. , ' . ■ >«r/?l PROVISIONAL ARRANGEMENT AS TO dALE OF LANDS, 1874. 441 apparent by the regist<> -i of the Executive Oounoil, by which we find that a Commis- sioner was appointed to obtain the surrender of the claims of the Indians to the lands iu the vicinity of Lakes Superior and Huron, or of such of them as may be required for mining purposes. The Commissionet executed a treaty by which he obtained a portion of the very territory that wo ^e cut off from the Province of Ontario, if the dispositions of the Act of 1774 were literally ^lerved ; ' from the Batohewanoning Bay to Pigeon River, at the western extremity of the said lake (Superior), and inland to that extent to the height of land which separates the territoiy covered by the charter of the Honourable the Hudson's Bay Company from tbo said tract, and also the islands in the said lake within the boundaries of the British possessions therein.' There are doubtless other Acts of authority beyond the meridian indicated in -the foregoing report In the De Beinhardt trial, Mr. Coltman, a Magistrate for the District of Quebec, and a Commissioner in the Indian Territory, in his evidence, said : — ' II est notoire que les writs des magis- trates du district ouest du Haut Canada sont emanes pour etre executes k Fort William.' It would, therefore, seem that in fairness to the Province of Ontario the old line of the height of land should be adopted as the western as well as the northern boundary of the Province oi Ontario." The Federal Parliament vrsz in sessioa at the date of this report, and way prorogued on the 18th of August foUowiug. Parliament again met on the 23rd October, and was prorogued on the 7th November, a change of Government having in the meantime taken place. A general election was held in January, 1874, and Parliament again assembled on 26th March, and was in session until 26th May. During these occurrences the negotii tions between the Dominion Government and the Government of Ontario made no material progress. On .he 26th of June, 1874, a provisional arrangement was made Tor the sale of lands in the disputed territory, by the adoption of a conventional boundary on the west and uorth.^ It was agreed, that thiR conventional boundary should, on the west, be the meridian line passing through the most easterly point of Hunter's Island, run south until it should meet the boundary line between the United States and Canada, and north until it should intersect the 51st parallel of latitude ; and that the Slst parallel of latitude should be the conventional boundary of the Province on tbe north ; that until the true boundaries should be ascertained, all patents for lands in the disputed territory to the east and south of these conventional boundaries should be issued by the Government of Ontario; and all patents for lands on the west or north of these conventional boundaries should be issued by the Dominion Government ; that when the true west and north boundaries of Ontario should be definitely adjusted, each of the respective Governments should confirm and ratify such patents as might be issued by the other for lands then ascertained not to be witiiia the territory of the Government which granted them ; that each of the respective Governments should also account for the proceeds of such lands as the true boundaries, when determined, might show to belong of right to the other ; that the Government of the Dominion should transfer to the Government of the Prov- ince all applications for lands lying to the east and south of the conventional boundaries, and also all deposits paid on the same ; that tbe Ontario Goven ment should transfer to the Dominion Government all applications for lands lying to the west or nox-th of the same boundaries, and likewise all deposits paid thereon ; that such of the said applica- tions as are bona fide and in proper form should be dealt with finally according to the priority of the original filing ; and that where applications for the same lands have been filed in the Departments of both Governments, the priority should be reckoned as if all had been filed in one and the same office. The westerly provisional line thus agreed Ul»cn is iu longitude about 91 ".t *Book of Arbitration Documents, p. 317. [See the agreement p. 244, ante.'] t [The longitude of the Westerly Provisional Boundary line of the Province, being the meridian of the most easterly point of Hunter's Island, is variously shewn on the several maps consulted as ranging from 91° 4' 3S" to 91 18', probably due to the cinfiguration of the island not being perhaps accurately known. Mr. Thompson, the N. \V. Co.'s astronomer, who was also a principal surveyor to the international boundary commissioners under the Treaty of Ghent, appears to ; lace the most easterly point of the island in the' longi- tude first above mentioned — viz.: 91° 4' 33"; Mr. Dawson in his map of the Dawson Route, etc., places it at about 91° 14'; and the Ontario Boundary Map in about 91° 18'. The difference between the two extremes would not in that latitude exceed 12 miles.— G. E. L.l f^i|i" .11 442 REPOBT OF THE ATTORNEY-GEN. OF ONT. ON THE BOUNDARY QUESTION : This arrangement continued in force until the award waa made. Since the making of the award this Government has refrained from making any grants of land in the dis- puted territory. It ia said that the Dominion has taken a difiTerent course, and has made grants, or promises of grants, on which parties have acted. This Government lias repeatedly and courteously, but vainly, asked the Federal Government for informa- tion, and there seems no oonueivable reason for not giving it, unless such grants or promises have been made and there is a desire to keep back the facts as long as possible from the Government and people of this Province. The despatches from this Govern- ment requesting the information are mentioned hereinafter. On the 12th of Noverabor, 1874, the Government of the Dominion, by Ordorin Council,* consented to concur in a proposition theretofore made by the Government of Ontario, to determine the northerly and weaterly boundaries of the Province by means of a reference to arbitrators. Information waa from time to time givpu to Parliament by the Govern- ment of Canada, and to the Ontario Legislature by the Government of the Province, with respect to the progress of the arrangements for this reference. In May, 1878, the Parliament of Canada granted $16,000 to defray tha expensee of the Ontario Bouudai-y Commission, meaning thereby the said reference. From the year 1874 both Governments occupied themsdlves in making an exhaus- tive collection of all the documents, facta and evidence boaring upon the controversy, including all that had been relied on upon either side m past discussions. All were printed for the purpose of the arbitration, and in a form which facilitated to the greatest practicable degree the full and prompt examination of the quo^itions at issue, f Cases- also were prepared on both aides, containing a summary of the respective claims and the reasons therefor ; and these oases likewise were printed. On the Slst July, 1878, formal Orders in CouncilJ were passed, embodying and giving effect to arrangements theretofore made in regard to lue arbitration. By an Order of ttie ^ivy Council, approved by His Excell icy the Governor-General on the said day, after reciting in effect that under previous Orders in Council the subject of the uortheiu and western boundaries of the Province of Ontario had been referred to the Hon. Wm. B. Richards, then Chief Justice of Ontario, and named as referee on behalf of that Province ; that that gentleman having subsequently resigned as arbitrator, the Hon. K. A. Harrison, who had been appointed by His Excellency the Governor- General to suc- ceed him in the Chief Justiceship, was appointed by this Government as arbitrator in bis place ; that Sir Francis Hincks had been named on behalf of the Dominion us another arbitrator ; and that subsequently to the action taken under Order in Council of 12th November, 1874, it had been mutually agreed between the two Governments of the Dominion and Ontario that the Bight Honourable Sir Edward Thornton, Her Majesty's Ambassador at Washington, should be selected as third referee ; such selec- tion was by this Order of the Slst July, 1878, confirmed ; and it was declared that the determination of the three referees should be final and conclusive upon the limits to be and taken as and for each boundary respectively. An Order in Council of the same dato, and to the same effect, was passed in this Province and approved of by His Honour the Lieutenant-Governor of the Province. Counsel for the two Governments having been heard by the arbitrators, the arbi- trators, on the 3rd August, 1878, delivered their award,§ wherein they determined and decided what " are and shall be the northerly and westerly boundaries " of the Province. The award so made negatived the claim of the Federal Government to confine our westerly boundary to the meridian of the junction of the Ohio and Mississippi, and our northerly boundary to the Height of Land already mentioned; but the awwrd confined the westerly and northerly parts of the Province to limits narrower than had theretofore * [Printed p. 247, atUe.] (■ See Book of Arbitration Documents, pp. 1-448 ; Report of Boundary Commission, Jour. House of Commons, Canada, 1880, pp. 237-.'<01. t Sessional Papers, Ontario, 1879, No. 42. [These Orders are printed ante, p. 266.] § Report of Boundary Committee, House of Commons, Can., 1880, p. 480. [Tlie arguments of counsel are printed at p. S04, an(«, and the award of the arbitrators at p. 370, ante.] [JE8TION : MERIDIAN OP THE SOURCE OF THE MISSISSIPPI AS A BOUNDARY LINK. 443 inoe the mak'.ng land in the dis- oonree, and lias Qovernm ant lias nt for informa- a such grants or long as possible om this Govern- rdorin Council,* ment of Ontario, ms of a reference t by the Govern- of the Province, 1 May, 1878, the utario Boundary liking an exhaus- the controversy, sions. All were d to the greatest it issue, t Gages )ctive claims and , embodying and 1. By an Order of on the said day, t of the northern the Hon. Wm. behalf of that ktor, the Hon. K. General to sue- as arbitrator in le Dominion us Order in Council Governments of Thornton, Her ree ; such selec- eolared that the the limits to be of the samedato, lis Honour the brators, the arbi- determined and of the Province. it to confine our sissippi, and our uiWiird confined had theretofore ion. Jour. House of rguments of counsel been claimed for them, determining the same to be in effect as follows : Our v/aaterly boundary was declared to extend to the most north-westerly angle of the L.ake of tliA Woods ; and our northerly boundary was declared to be a line therein described, and extending from a specified point on the southern shore of James' Bay to .Ubany Biver ; thence up the middle of Albany Biver and of the lakes thereon ; theuoe to English Bivor ; and through that middle of that river to a point where the line would be inter- sected by a true meridian line drawn northerly from the most north-westerly angle of the Lake of the Woods. The most no^il:! westerly angle of this lake is in longitude 95" 14' 88" W. That the territory of Ontario on the west extended at least as far as the award thua assigned to the Province, was demonstrated by a mass of evidence which there appeara no danger of ever seeing overcome. The only point upon which there could be rea- sonable doubt was, whether our true boundaiy was not still farther west ; and if so, how much farther west. The reason of the doubt may be shortly explained. By the Act of 1774 (14 Gao. Ill, o. 88, and commonly called the Quebec Act) — aa interpreted by its history and known objects, by the surrounding circumstances, by the- Boyal Commissions issued thereunder shortly afterwards, and by the oontemporaueoua ofiicial and unofficial expositions of the Act — the Province was to extend, on the west, tO' the banks of the Mississippi Biver "to its source."* Subsequently, viz., in 1788, the southerly part of this territory was ceded to bhe United States, that is, to a line through the middle of Lakes Ontario, Erie and Huron ; thence through Lake Superior, Long Lake, and the Lake of the Woods, to the " most north-western point thereof; and from thence on a due west course to the Biver Mississippi."! The arbitrators having given to Ontario a boundary no farther west than " the most north-western point of tlie Lake' of tiie Woods," the boundary so given is clearly not beyond the true limit. But the line was to go from that point '*on a due west course to the Biver Mississippi." There is no river noyr called the Mississippi which this due west line would intersect ; but there are tributaries west of Manitoba which such a line would touch, the first of them being the White Earth Biver, the waters of which flow into the Biver Missouri, a branch of the Mississippi. The White Earth Biver, or some other stream falling into the Missouri, and thence into the Mississippi* might very well have been held to be the Mississippi referred to in the Act of 1774, in the Treaty of 1783, and in the Boyal Com- mission issued afterwards (22nd April, 1786,) to Sir Guy Carleton as Governor- Genei-al. But, as between Great Britain and the United States, by the joint effect of the subse- quent treaties of 1794, 1814, 1818 and 1842, | the source of the Mississippi was in effect taken to be, as between the United States aud the British possessions, in Turtle Lake, at a point south o! the most north-western point of the Lake of the Woods and in nearly the same longitude ; and it was agreed that the boundary (in that direction) between the United States and the British possessions should be a line drawn due south from this point to the 49th parallel of north latitude, and along that parallel to the Bocky Mountains. Manitoba, lying east of the White Earth Biver, was set apart by the Federal Parliament as a separate Province, without protest from the then Government or Legislature of Ontario. The Arbitrators have confined the western boundary of On- tario to the meridian of the north-western point of the Lake of the Woods ; thus decid- ing in favour of a westerly line the least favourable to Ontario that on the facts and evidence was possible. With respect to the northern side of the Province, the claim of Canada up to 1870 had been that, either our only limit north was " a few isolated posts on the shore of Hudson's Bay," or that " Canada has no particular limit in that direction," and extends to the Arctic Ocean. § But writers on the subject hava always felt more or less difficulty in saying where exactly, to the north of the Height of Land, the true northerly boundary could be said to be, there being less that is definite to determine it than in the case of «Book Arb. Docs., 3, 18, 'J7, 43-66, 135-140, 235-278, 299, 322, 323, 376, 384, 388-391, 402, 409-419, eto. tBook Arb. DooB., p. ls>. %Pnd., pp. 20, 21. 3 Seas. Papora, Can., 1857, Vol. 16, No. 17. ' . 444 REPORT OP THE ATTORNEY-GEN. OP ONT. ON THE BOUNDARY QUESTION ; the western boundary ap to the limit assigned to us there by the award. The question as to the northern boundary is of less conEequenoe to either party than the question of the western boundary, the territory on the north being of considerably less value thiiu the territory on the wea'j ; and the Government of Ontario had, in 1872 (10th April),* intimated that they would consider any proposal which might be made by the Federal Government for thp establishment of a conventional line to the north, provided that the latter would agree to its being somewhere north of the watershed of the St. Lawrence system. In assigning to the Province the territory as far as J&uxf.s' buy, the Arbitrators followed (he Act of 1791, the Order in Council and Proclamation of thb same year, and several Iloyal Commissions ; and if the claim, made by Canada on our behalf and ita own before 1870, and by Ontario for itself afterwards, to the whole region of Hudson's Bay, was tco extensive^ and if there is any ground for maintaining a less favourable limit to the Province on the east side of the northerly boundary than the Arbitrators awarded, thero is strong reason for maintaining a much more favourable limit on the western side of the same boundary assigned to us — a limit which would include within Ontario a larger though less conveniently shaped area of territory on the north than has been assigned to us by the award. Under all the circumstances, Ontario accepted the award, not because it assigned to the Province all that was claimed on its behalf, or all that the Province might within its strict legal right? have had awarded to it, but because the tribunal appointed jointlj^ by the two Governments to decide the matter was one to whose competency and char- acter no one could take exception ; and because, according to the judgment of tho people of Ontario, neither party to the arbitration could, consistently with good faith, refuse to abide by the decision. A technical objection has been made to the award, by some of its Federal assail- ants, that, instead of finding "the true boundaries," the Arbitrators had declared a " conventional or convenient boundary." Sir Francic Hincks, in a lecture on the arbi- tration, delivered by him by request on the 6th May, 1881, shewed how unfounded in fact this objection is: — " The duty of the Arbitrators was to find the true boundaries of Ontario, and they are charged with declaring 'a mere conventional or convenient boundary.' Now, for my present purpose, I shall refer merely to those pretensions which specially engaged the consideration of the Arbitrators as affecting the south-western boundary. On the claim under the Proclamation of 1791, which the Arbitrators held to be valid, notwith- standing the able arguments of counsel, of the Hon. Mr. Mills and others, including the Messrs. Dawson, one of whom, the Chairman of the Committee of 1680, fixed the boundary at the "White Earth River, 450 miles west of the Lake of the Woods, they con- curred in the judgment of the Quebec Court in 1818 that no territory could be awarded to Ontario that was not comprised in the old Province of Quebec as created by the Act of 1774, modified by the Treaty of 1788 with the United States, and by subsequent treaties. They entirely rejected the Dominion claim to a boundary on what is known as the due north line, and having no doubt whatever that the Mississippi Eiver was the western boundary of the old Province of Quebec by the Act of 1774, and that by the Treaty of 1788 the south-western boundary must be either at the international boundary Qt the north-western angle of the Lake of the Woods, or still farther west, they decided ?n fiEivour of that boundary which they were clearly of opinion Ontario was entitled to. On the rorth-east they were clearly of opinion tuat the Height of Lac boundary could not be sustained, and that the true point of departure was the point on James' Bay due north from the head of Lake Temiscamingue. " The sole ground for the charge that they adopted a conventional or convenient boundary is, that the line connecting the north-oastern and south-western boundaries was adopted for the sake of convenience. The Arbitrators were guided in their decision solely by Acts of Parliament, Proclamations authorized by Orders in Council on the authorily of Acts of Parliament, and international Treaties. They found in the Proclamation of ♦ Sess. Papers, Ont., 1873, No. 44, p. 18 ; despatch of that date, ante, pp. 229, 230.] Book Arb. Docs., p. 343. [See the Order in Council »nd LROIBLATION IN CONFIRMATION OF AWARD UROED ON DOM. OOVERNMBNT. 445 1791, that after reaching James' Bay, the desoription proceeded thus : ' inolading all the territory to the westward and southward of the said line to the utmost extent of the ooxm- commonly called or known by the name of Canada.' If the critics of the award , ,elieve such language sueceptible of the construction that it lays down a precise spot on the north-west ns a boundary, then their charge might have some foundation ; but the fact is that the language would have justified the Arbitrators in extending the boundaries of Ontario very considerably. They were strongly urged by Col. Dennis, one of the per< manent staff of the Department of the Interior, after their decision as to the south- westerly and north-easterly boundaries became known, to connect the two points by a natural boundary, and being aware of the fact that the Albany River had been formerly suggested by the Hudson'M Bay Company as a satisfactory southern boundary, they adopted it. It is not a little singular that the award was promptly accepted by Ontario, although the only questions of doubt were decided in favour of the Dominion. Both on tlie west and north the doubts were whether Ontario should not have had more territory. * * ♦ " The objection made to the award of the Arbitrators is, that thoy did not find the true boundaries, but adopted a convenient boundary. I need not repeat my refutation of this allegation ; but even on the assumption that it had any force, it would not apply to the western boundary, regarding which the Arbitrators were clearly of opinion that the inter- national boundary at the north-western angle of the Lake of the Woods was the true point of departure. The northern boundary, owing to the vagueness of the language employed in the Proclamation issued under the Act of 1791, is more open to doubt. * * *' The western boundary is not only the most important, but the least open to doubt, as I think I have already clearly demonstrated. I will only add, in conclusion, that the Arbitrators were of opinion that, having reference to all the facts of the case, the boundaries set forth in the award were supported to a larger extent than any other Une by these facts, and by the considerations and reasons which should and would guide and govern tlie determination of the questions by any competent legal or other tribunal." In a despatch dated 81st December, 1878, from this Government to the Secretary of State for Canada, it was stated that during the approaching session of the Legislature a measure would be introduced " to give effect, by way of declaratory enactment or otherwise, to the award made by the Arbitrators to determine the northerly and westerly boundaries of the Province of Ontario;" * and His Honour, in the same despatch, also stated that he would be glad to learn that such legislation as might be necessary to give effect to the award would be had at Ottawa in the next session of the Parliament of Canada. By this despatch, the Government of Canada was respectfully reminded that the territory which was in dispute before the award was made extends on the westerly side of Ontario from a line drawn due north from the confluence of the Ohio and Missis- sippi, to ^say) the Bocky Mountains, and extends on the northerly side from (say) the Height ot Land to the most northerly limit of Canada ; that the award assigned part of tins territory to the Dominion and part to Ontario ; that the administration of justice would continue to be surrounded with difficulties and uncertainties, especially in the matter of jurisdiction, until the award should be confirmed by express legislation at Ottawa and here ; that the subject assumed unusual importance in view of the construc- tion of public works within the territory, and the consequent influx of an unsettled and migratory population ; that His Honour the Lieutenant-Governor would be glad to learn that such legislation as would be necessary to give effect to the award would be had at Obtawa at the next session of the Parliament of Canada ; and that the legislation should, it was respectfully submitted, be as nearly as possible simultaneous and identical. The despatch further stated that His Honour the Lieutenant-Governor would be glad to receive and consider any suggestions in connection with this object; and also to receive, as soon as possible, the maps, field notes, etc., relative to so much of the territory assigned to Ontario as had been surveyed under the authority of the Dominion. In a despatch, dated 8th January, 1879, the Government of Canada acknowledged th3 receipt of the despatch last mentioned, and stated that the same would not fail to in Council uid *SeH«ional Papers, Ontario, 1879, Vol. 11, No. 80. [The despatch is printed ante, p. 371.1 '■iy|| 44C RKPORT or THE ATTORN'BY-OKN. OF OtTT. ON THE HOUNDAHY QUESTION ; receive all due ooDBideration. No intimation was gtTan, in reply to His Honour's oom- munic^tion, that the Government of Canada would refuse to be bound by the award of the Arbitrators, or would not Hubmit to the Parliament of Canada a measure recognizing the same or giving effect thereto,- * nor did this Oovernment receive the maps, field notes, etc., or any communication with respect to tho request made therefor. The Legislature of Ontario, by an A.ct of the Hession of 1879, f consented that the boundaries of the Province, as determined by the said award, should bo declared to bo the northerly and westerly boundaries of the Province of Ontario. By a further Act of the same session | the Legislature made provision for the admin- istration of justice in the northerly and westerly parts of Ontario. This Act was the subject of subsequent correspondouce between the two Governments, hereinafter set forth. The Ontario Legislature was prorogued on the 11th March; the Federal ParUament remained in session until the 16th May. From the newspaper report of the proceedings of the House of Commons of 2nd May, 1879, it was found to have been stated in the House, on behalf of the Government of Canada, that the papers on the subject of the arbitration and award had been mislaid. No communication to thjs effect had been made to the Government of Ontario, nor any application for fresh copies ; but in order that no time should be lost in introducing the legislation necessary to set at rest the question of the boundaries, thin Government forwarded to the Secretary of State, at Ottawa, other copies of all the papers so stated to have been mislaid. Copies of such of them as were in print were forwarded also to every member of the Dominion Government personalIy.§ A despatch was on the same day sent to the Secretary of State, referring to these documents. No action, however, during tlie said session, was taken by the Government or Parliament of Canada with 1 espect to the boundarieB.|| On the 28rd of September, 1879, a further despatch was a.liress&' by this Govern- ment to the said Secretary of State,** calling the attention of the Government of Canada to the despatch of 81 et December previous, respecting the legislation needed to put beyond dispute, in civil and criminal cases, any question as to the western and northern limits of Ontario ; pointing out that, an award having been made in pursuance of a reference by. the two Governments, it was just that there should be no further delay in ill formally recognizing the award as having definitely settled the matters submitted to the Arbitrators ; that the Government of Ontario did not doubt that the Government and Parliament of Canada would ultimately take the same view, but it was respectfully represented that the delay in announcing the acquiescence of the Dominion authorities, a id in giving full effect otherwise to the award, had been embarrassing and injurious. The despatch stated some of tho leading evidences of the right of the Province to the territory awarded, but it was observed that " if it were less clear than it is, that the award does not give to Ontario more territory than the Province was entitled to, and if the reasons which justify tli conclusions of the Arbitrators were far less strong and clear than they are, it is respectful 7 submitted that the award demands the active acquiescence and recognition of the parties to the reference. The question of boundaries was in controversy; it was referred by mutual consent to the distinguished gentlemen named ; they have made their award, and the fact is conclusive in regard to all questions on the subject." F,ih ■*■ Sessional Papers, Ontario, 1879, Vol. 11, No. 80. [The letter of acknowledgement is printed ante, p. 371. On the 9th March, 1879, the subject was referred to iu the House of Commons : " Mr. Mills enquired whether the Government purposed, this session, to introduce a Bill to confirm the boundary between the Province of Ontario and the Territories of Canada as declared in the award of the arbitrators ; and if not, why not ? " Sir John A. MAonoNALD : All the papers on this important subject are now in the hands of a mem- ber of the Government, and the matter is under serious consideration." (Debates, Ho. of Corns., 1879, p. 167.)-G. E. L.] , . , ;, ,. + 42 Vic, chap. 2, (Ontario.) J lb., chap. 19. § Sessional Papers, Ontario, 1880, No. 46. [See the letter of 2nd May, 1879, p. 373, ante,] II [In the House of Commons, on 14th May, 1879, " Mr. Mackenzie asked if the Government had decided not to introduce an Act to confirm the Ontario Boundary Award this session ? " Sir John A. Macdonald: Yes." (Debates, Ho. of Coms., 1879, p. 2011.)— G. E. L.] ♦* Sessional Papers, Ontario, 1880, No. 46. [Printed ante, p. 373.] fESTlOK : BOUNDARY COMMITTBK OF H0U8)' OF CX)MM0N8, 1880. 447 Honoar's oom- by the award of mre recognizinK the maps, field efor. laentod that the declared to bo 1 for the admin- bis Act was the inafter set forth, eral ParUamont ommons of 2nd \he Government ad been mislaid. Ontario, nor any introducing the \i\n Govemaaent pers so stated to rwarded also to was on the same ution, however, of Canada with by this Govern- ment of Canada I needed to put n and northern nirsuance of a urther delay in )rs Ruhmitted to bhe Government woB respectfully lion authorities, ind injurious. Province to the that the award to, and if the ; and clear than cquiescence and in controversy J they have made bject." nt is printed ante, Bill to Confirm the n the award of the le hands of a mem- of Corns., 1879, p. ante.] e Government had The Oovernment of Canada was reminded that the settlement of the controversy, M well as the oxplorationa for railway and other purposes, had drawn public attantion to the territory north and west of Lake Superior ; that Hettltiinent thnrein was proceeding ; that various t'utvrpri.ius were establiHliing theniHelves ; that speculation wus likely to be directed to thi>> region ; and that various causes were at work favourable to an influx of population, both of a settled and floating character ; that in view of these considerations, the Oovernment of Ontario trusted that the Oovernment of Canada would recognize the propriety of ani.ouncmg without further delay their intention to submit to Parliament, next session, a Bill declaring the boundary established by the Arbitrators to be the true northerly and westerly boundaries of Ontario, and to use the influence of the Government to have the measure accepted by both Houses, and assented to by His Excellency the Governor-General. The request contained in a former despatch was renewed, '* that the Govemmei t of Canada would be pleased at once to forward to this Government the maps, field notes, etc., etc., relative to so much of the territory assigned to Ontario as had been surveyed under the authority of the Dominion." On the 25th S4)ptember, 1879, the Under-Secretary of State acknowledged the receipt of this despatch, and stated that the subject would be submitted to His Excellency the <3overnor-General.* But from that day to this no intimation has been communicated to this Government that the subject had been submitted to His Excellency as then int-x QUESTION : DISALLOWANCE OF ONT. ACT FOR ADM'oN OF JUSTICE IN DISPUTED TERRITORY. 449 nown, invariably jdings before thia lis Province, by a J effect : current action of f the Arbitrators, of the said award, iment of Canada, ! the Government lue administration House believes it to the securing of J parts of Ontario, he award of the 3 Governments of e assertion by the rtd to all necessary 3tain the award of his Province have nd the proceedings vincial Act of the the northerly and [h provision should f the Province as, kn the event of the [a new Act* (5th [ce in the Districts iional stipendiary 'hunder Bay and and amount, was [per Canada before le of the Act, the lin which the Act the Law and the dominion Govern- |5th March, 1880, lonour in Council |at it was a matter jh the question of decision, eighteen 1 Arbitrators, the W, or to recognize kposed to disallow , the disallowance J)roper exercise of leceived when thf ^sessary, therefore, I., c. 12, Ont. to provide at once for the contingency of the disallowance, it being assumed that the Dominion Government, in common with the Province, felt and would recognize the propriety of some provision being made for the administration of justice in the still disputed territory, instead of its being left to utter lawlessness and anarchy ; that a new Act had accordingly been passed, which was not to go into effect unless and until the former Act should be disallowed ; that the new Act confined the jurisdiction of the stipendiary magistrates, as regards subject matter and amount, to the limits provided for by the law in force before Confederation (the extension of their jurisdiction in these respects having been one of the objections made to the former Act), and that the new Act had avoided any disputable reference to the extent of the territory within which the Act was to operate, leaving that question to be determined as might be by the Law and the Bight. The report contained the following further observations : — "As the territory in dispute is included in the territory which the Province of Canada, before Confederation, claimed as part of Canada, and therefore of Canada West, or Upper Canada ; and in the territory to which the Dominion, through its ministers, after Confederation, and until the purchase from the Hudson's Bay Company, made the same claim, and on the same grounds ; and which territory the Province of Ontario continued afterwards to claim ; and as the territory, still it seems in dispute, was, eighteen months ago, solemnly awarded to the Province as its rightful property, by the unanimous decision of three Arbitrators of the highest character and competency, who had been mutually chosen by the two Governments — it is obvious that the prima facie right to the territory, if not (as we insist) the certain and absolute right, is, and must be taken to be, in Ontario ; and it is the consequent obvious duty of the Province to make such reason- able provision as may be practicable for the administration of justice among the popula- tion of the territory. The dispute or delay on the part of the Dominion with respect to the award causes uncertainty, and its daily increasing and grave evils, in connection with the administration of justice ; and if the dispute or delay is to continue, the undersigned is respectfully of opinion that the evils referred to, which all must regret, will be intensified by the disallowance of the provisional legislation, and that their removal, or partial removal, calls rather for provisional legislation by the Dominion (without prejudice to the matter in dispute), expressly giving to the laws of Ontario, and its officers, authority in the territory, pending the dispute by the Dominion, or pending the settle- ment and recognition of the true boundaries." * A copy of the report, and of the Order in Council concurring therein, was transmitted by your Honour to the Secretary of State at Ottawa, on the 15th March, 1880. On the 17th of the same month, f the Federal Minister of Justice made his further report, admitting, in view of the observations of the undersigned, that part of the former Act was not open to the objections which the Minister had previously urged against it, but affirming that the objections to other portions, which referred to the stipendiary magistrates and to the Courts presided over by them, still remained ; and he advised the disallowance of the Act. The Minister, in this report, observed that it was unnecessary to reply to the arguments adduced by the undersigned with respect to the boundaries of Ontario, as any discussion of this kind would, he observed, seem to be inopportune. The Government of Canada has not hitherto found any occasion when such a discussion wit)) this Government did not seem to be inopportune. On the 22nd March, 1880, the Act in question was disallowed. On the 19th of April, 1880, the Committee of the House of Commons not having yet made any report, an Order was passed by His Excellency the Governor-General in Council,! under the authority of the Act of the Dominion Parliament, 39 Vic, c. 21, by which Order it was declared that a certain building in or near Rat Portago was in the District of Keewatin, and the Order purported to establish and declare this building to be a common gaol for the District of Keewatin, and authorized and empowered the ♦ Sessional Papers, Ontario, 1881, No. 30, p. 10. tSesBional Papers, Ontario, 1881, No. SO, p. 15, LPrinted a»i unanimous award made on the 3rd August, 1878, by the Arbitrators appointed by the joint and concrrrent action of the Government of Canada and the Government of Ontario to determine the northerly and westerly boundaries of Ontario, no legislation had been submitted by the Government of Canada to the Dominion Parliament for the purpose of confirming that award ; nor has the validity of the award yet been recognized by the Government of Canada. " That the omission of the Government and Parliament of Canada to confirm the award is attended with grave inconvenience, has the effect of retarding settlement and municipal organization, embarrasses the administration of the laws, and interferes with the preservation of the peace, the maintenance of order, and the establishment of good government in the northerly and north-westerly parts of the Province of Ontario. "That it is the duty of the Government of Ontario to assert and maintain the just claims and rights of the Province of Ontario, as determined by the award of the Arbi- trators ; and this House hereby re-affirms its determination to give its cordial support to the Government of Ontario in any steps it may be necessary to take to sustain the award, and to assert and maintain the just claims and rights of the Province a^ thereby declared and determined." On the 4th March, 1881, the Provincial Legislature was prorogued ; and immediately afterwards, viz., on the 7th March, a Bill was introduced into the Senate by the Federal Government providing for the extension of the boundaries of Manitoba, in a way which further complicated the difficulties connected with the administration of justice in th(> territory, and with the settlement of its lands, and the development of its resources. This Bill was put through its several stages in great haste, and was passed (by the Senate) on the 11th March.! Meanwhile, the stipendiary magistrate of this Province appoi'-.ed to the said territory reported, 23rd February, 1881 (received at Toronto 5th March), that the explorers and miners on the Lake of the Woods were thrown into a state of despondency from the apprehension that the boundary question would not be settled at this session of Parliament. The communication proceeded to state further, as follows : — " You can have but little conception of the difficulties and disappointment those people have met with here. They have expended all their money in exploring and in surveys, expecting an early return for their investment and toil, which they felt sure they would if the boundary question was settled, so that deeds could be procured for their locations. Without a title nothing can be done with mining capitalists, who require to have an undisputed title to the lands in which they risk their money. ♦ Journals, Legislative Assembly, Ontario, 1881, p. 160. [Printed ante, p. 40G.] t Journals of Senate of Canada, pp. 196, 212, 216. PROTEST AGAINST DOM. BILL FOR EXTENDIXQ BOUNDARIES OF MANITOBA. 453 hat the Act of icd resolutions, it award ; nor ay the Senate) " The delay of another year in settling the question of the boundary will ruin many, and they will be driven from the locality never to return, causing loss to the merchants and others who have made advances with a fair prospect of an early return. The people of the locality are suffering in many ways from the unsettled condition of affairs. There is no civil court to collect debts, no land agent to locate settlers, no registry office td record deeds, no timber agent to protect the forest. There are timber locations to be had, but there is no security for the expense of exploring and surveying them. All is uncertainty and confusion. The mineral lands will be so mixed up before long, that the men who own locations will not be able to recognize their own property. Some places have been surveyed several times, and the surveys cover each other, and there is no doubt but there will be fighting, and perhaps murder, over those claims. Some persons are armed now to defend their rights against wealthier claimants. " The water privileges here are of great value. There are several places near this place where the water can be let out of the Lake of the Woods with but Utile expense, and -a fall of from sixteen to eighteen feet secured without any expense fot a dam. There is scarcely any limit to the .propelling power to be had here, and immediately on the line of the Canadian Pacific Eailway. Trains can be run to the mill door without leaving the right of way. The privileges are being claimed and applied for by persons, for speculation, who have nothing ; and the same confusion is likely to arise here that has taken place in the mines. If unworthy persons get those valuable privileges, who will do nothing with them themselves, and will only sell at exorbitant prices to those who wish to use them, it will be a great injury to the milling prospects here. They should be sold by the Government to persons who would erect mills within a specified time. The wheat crop of the great North-West can be ground at this point in transit to an eastern market, and Rat Portage would soon become a second Minneapolis. Its natural advantages are superior. " The whiskey sellers are applying their illicit calling with great success, much to the injury of the district." A copy of the material parts of this important communication was transmitted to the Dominion Government by the Provincial Secretary on the 8th March, 1881, but nothing was done to remove the evils to which the communication called attention, nor has any reference thereto been since made by that Government. As soon as a copy of the Manitoba Bill had been received, your Honour, by the advice of your Council, addressed a despatch to the Dominion Government, stating that this Government had had their attention called to the Bill ; that its terms, so far as regarded the easterly limit of Manitoba, were regarded by this Government with the greatest concern, and were considered as in the highest degree objectionable ; that, so far as the territory to be comprised within the limits of the Province of Manitoba was indisputably within the jurisdiction of the Parliament of Canada, your Government rejoiced at the extension of that Province, as affording a wider scope for the energies of its people and Government, and as giving to a large number of settlers in Keewatin and the North- West Territories the direct benefits of Provincial and Municipal government. Your Honour proceeded to observe as follows : — " But, while the extension of the boundaries in directions as to which there is no dispute is a matter of congratulation, tlie terms in which the new eastern boundary of the Province is described in the Bill appear to my Government to call for an earnest and vigorous pi-otest on behalf of thi Province of Ontario. "According to the provisions of the Bill, the eastern boundary of Manitoba is to be the western boundary of the Province of Ontario, wherever that boundary may hereafter ta determined to be, though a very large part of our territory in that direction is still in dispute on the part of the Government at Ottawa, notwithstanding that more than two years ago it was found and declared to be ours by the unanimous award of the three distinguished gentlemen mutually chosen to determine the question. " My Government desire to call the attention of the Government of the Dominion once more — (1) to the great and obvious injury occasioned to the interests of Ontario by the refusal or delay of the Dominion Government to recognize and confirm that award; (2) to the inconvenience and embarrassment, in an administrative sense, incidental to 454 REPORT OF THE ATTORNEY-GEN. OF ONT. ON THE BOUNDARY QUESTION : ^H> the delay ; and (3) to the fact that whilst the Government of the Domircion have failed to procure or propose the legislation necessary to the confirmation of the iward, and have treated the right,' of Ontario to the boundaries determined by the Arbitrators as being still open to question, they have not been pleased up to this mome-^* to enter into any discussion of the subject with this Government, or even to make any ofhcial communication of the groundp on which a recognition of the award by which the mixtcer in question was intended and supposed to be settled has been declined or delayed ; and that the only answer which has been hitherto given to the repeated representations made on this subject has been tb ^ the communications would receive consideration. " Under these circumstances, my Government can only regard this new step, of intruding a third party into the existing controversy, as an act of direct antagonism and hostility to the interests and rights of the Province of Ontario. " Hitherto the assent of the Dominion of Canada to a settlement of the question has been necessary for that purpose, and would be sufficient. The Dominion has no consti- tutional interest in withholding that assent, and the people of Ontario have a voice in its councils. But) by the measure which has received its first reading in the House of Commons, it is proposed to give to another Province a new, direct, and strong interest adverse to that of the Province of Ontario, and to invite Manitoba, as a contiguous Province, with a growing and active population, to claim jurisdiction over every portion of the .territory to which the Dominion of Canada has thought fit to question the right of Ontario. " The proposed measure would also make the consent of the Province of Manitoba, as well as of the Government at Ottawa, to be hereafter essential to any settlement, or even to any step towards a settlement, of the existing controversy ; and would place that Province in such a position, with reference to the territory, as may make almost, if not quite, impossible an amicable settlement of the question, or any settlement founded on the ground of the just obligation which an award made in good faith imposes on Nations, Dominions, or Provinces which, through their representatives, were parties to the arbi- tration. " Serious and most vexatious difficulties cannot fail to arise from the conflicting interpretation of their rights in the premises by either of the three authorities claiming jurisdiction within an extended area of territory where it is of the utmost importance to peace and good order that the power of the law should be paramount and beyond question. In this view it has been repeatedly, and hitherto vainly, urged that if our right to the territoiy is not acknowledged, a provisional arrangement should be mado with the sanction of Parliament in regard to the law which is to regulate the rights and obligations of the inhabitants with respect to civil rights and property, and kindred matters, until the question in dispute should be settled. In short, my Government look upon the proposed measure as calculated to aggravate all existing difficulties, and to prove most prejudicial to the harmony and accord which should prevail between the Provincos of the Dominion. " Under all the circumstances, my Government desires respectfully to urge that, in fair dealing with the Province which they represent, the measure in progress should define the easterly boundary of the Province of Manitoba so as not for the present to extend in an easterly direction beyond the boundary of Ontario as determined by the Arbitrators, leaving the further extension of Manitoba eastward to be provided for by future legis- lation, should any competent authority decide that Ontario is entitled to less territory than by the award is declared to belong to this Province." Your Honour further stated that, ' ' The resolutions of the Legislative Assembly, passed by them in the session of 1880, and the resolutions passed in the session which has just terminated, and which received the unanimous support, with an individual exception, of the whole House, were sufficient to show that if the measure should be passed in its present form, it would be deemed by almost the whole people of Ontario as a violation of the rights of the Province, and as an act of gross injustice towards it. " This Government trusted that, in view of the representations made, the Govern- ment of Canada might even yet see fit so to modify the measure then before Parliament as to deprive it of its objectionable features, while still conceding all necessary advantages ACTION OF MANITOBA IN REGARD TO EXTENSION OF I " BOUNDARIES. 455 to the Province of Manitoba, in whose rapid progress and development " your Honour's despatch justly stated that " this Province, as a portion of the Dominion, felt profound satisfaction." The receipt of this despatch was acknowledged on the 16th of March, 1881, but no answer was given to any of its statements or appeals, and no change was made in the Bill. The transfer to Manitoba of the disputed territory was not contemplated by the first Act passed by the Manitoba Legislature (40 Vic, cap. 2, sec. 1 ; Revised Statutes of Manitoba, cap. 2, sec. 2), consenting to an extension of the boundaries of that 'Province by the Dominion Parliament, the extension thereby agreed to not including any part of the disputed territory. But this (it is presumed) not suiting the policy of the Federal Governinent, a special session of the Manitoba Legislature was convened, and a new Act obtained (4th of March, 1881), consenting that the new limits should include the whole of the disputed territory. Two reasons were suggested for accepting tbe territory, but having reference to the whole act it is apparent that neither of these reasons oould have much real weight with the people of Manitoba. They are stated in a resolution passed by the Manitoba Assembly in this session :* — " Resolved, That it is desirable that the boundaries of the Province should be extended eastwards, to correspond with the line marked as the west boundary of Ontario, near the eighty-ninth meridian of west longitude ; that the requirements of the prairie portions of the Province could be supplied with the timber of the eastern portion ; besides which, a port on Lake Superior would thereby be secured to the Province." Under the Bill as introduced, and afterwards passed, the Crown Lands and Timber were not to belong to the Province of Manitoba. As the Premier explained : " By extending the boundaries of Manitoba, [the Bill] does not affect the proprietorship of the land. The land in the extended boundary belongs to the Dominion. . . We cannot afford to give [the territory] to Ontario, if it belongs to the Dominion, because the lands would belong to Ontario. Keeping it as a portion of Manitoba, the lauds belong to the Dominion." i This being so, it is manifest that " the requirements of the prairie portions of the Province " would be supplied with the timber equally well whether the jurisdiction over the territory should belong to one Government or the other. As for " a port on Lake Superior," all the ports of the Dominion, in whatever Prov- ince situate, are open to the people of all the Provinces equally ; the people of the Province in which such ports are situated having no advantage over others. It is also to be observed that Manitoba could only have a port on Lake Superior by annexing the terri- tory east and south of the height of land, which was never claimed by the Hudson's Bay Company, and was xintil after Confederation an acknowledged part of Upper Canada. That Manitoba could not have desired, and did not desire, the extension of its territory on the easterly side of that Province so as to include what wa.s in dispute, is sufficiently apparent from what has been already said ; and there are other facts which show the same thing. Manitoba is a comparatively new Province, having, by the census of the present year, a population of less than .50,000. Before the Act it had an area of 13,969 square miles. The Act gave additional undisputed territory to the extent of about 91,000 square miles. The enormous addition was all that for tbe present that Province could possibly need. The further addition of about 39.000 square miles of disputed terri- tory, the land and timber of which the Federal authorities reserved to the Doininion, was a mere burden, and was no pecuniary or financial benefit to Manitoba. The whole annual revenue of that Province at this time did not much exceed $100,000 ; and its necessary annual expenditure was such as to leave no mai'gin for its new territory. On the other hand, Ontario had (its opponents must admit) at least a strong prima facie claim to the territory. Up to 1870 (as has already been shown) the Dominion Government itself had insisted on the claim as being clear ; and subsequently it had been awarded to us by a competent and impartial tribunal. With respect to the organized part of the territory, the right of Ontario is so strong that (as the undersigned has already stated) the counsel of the Federal Government, Mr. Ramsay, had, in his official report to that * Quoted in Debates of the House of Commons, 1881, p. 14r»0. t Debates of the House of Commons, 1881, pp. 1450, 1456. 46G REPORT OF THE ATTORNKY-GEN. OF ONT. ON THE BOUNDARY QUESTION : Government, pointed out that, though according to his argument the legal view was against us, yet equity and fairness reqiiired that Ontario should have the territory "to the height of land which forms the watershed of the water system of the St. Lawrence and the Great Lakes;" that "in creating the Province of Ontario, it is not possible to conceive that the Imperial Legislature intended to convey to that Province, and to the Province of Quebec, less territory than the late Province of Canada actually enjoyed ; and that it was incontestable that up to 1867 the Government of Canada c^e /acto extended to the height of land which forms the watershed of the water system of the St. Lawrence and the Great Lakes." The undersigned has also shown that, up to 1867, this part of the now disputed territory had been invariably dealt with as being an undisputed part of Upper Canada, and that since Confederation it has been dealt with as part of Ontario. If it formed no part of the Province of Upper Canada, or of Ontario, as is now contended, it follows that no man in it has any title to the land which he occupies ; that all the acts of the courts and officers heretofore exercising jurisdiction have been illegal ; and that all concerned in them are liable to actions for damages ; as the Federal Ministers proclaimed in the debate on the Manitoba Bill. If this part of the territory is really in point of law not in Ontario, or if the question is doubtful, the jus*^i method of dealing with the subject was for the Federal Parliament to confirm the title of Ontario to this portion, whatever ' became of the rest, of the disputed territory, and to confirm all grants and governmental acts which want of title would or might otherwise invalidate, to the great injury of the population. But so far from this being done, the people of the locality were almost invited to resist the laws and courts to which tl-ey had always lived in peaceable subjection, *' The people of Prince Arthur's Landing," said the First Minister, " may resist the pro- cessses of law ; they may say to the sheriff he is committing an illegality. A man may say to another who brings a suit against him, ' This is the process of an Ontario court, and Ontario laws do not extend here, because we are not part of that Province.' The same thing might happen with regard to every process of law and every title, whether the boundary is settled or not." As to the remainder of the disputed territory, this Province had, before the passing of the Manitoba Act, assumed the duty obligatory on its Legislature and Government, of administering justice and maintaining order in this part of the Province. If the territory is in Ontario, as the arbitrators declare it to be, and as our people justly believe that it is, and if the Province wei-e not to establish courts and appoint magistrates and other officers in it, the territory would practically be without law or lawful authority, and peace and order therein would depend on illegal force. It appears from the Journals of the Canada House of Commons, that during the debate on the Bill resolutions were moved in vain to the effect, that in the meantime the eastern boundary of Manitoba should not include the disputed territory ; and that at all events the Act should " provide some definite eastern limit, beyond which Manitoba shall not be deemed to extend, pending the settlement of the western boundary of Ontario." A party majority defeated these motions, and the Act, with its objectionable provisions unchanged, was passed by the House of Commons on the 21st March, 1881.* It was the duty of the Federal authorities to protect the just rights of all its Prov- inces ; to render unnecessary interprovincial conflicts for the maintenance of such rightsj to employ the constitutional powers of the Dominion Parliament and Government respec- tively ill minimising the evils of a disputed boundary pending the dispute ; and to take steps for determining such evils at the earliest possible date. Unhappily, the present Federal authorities have not chosen to discharge these manifest duties ; and by this Act, two sets of Provisional laws were to distract settlers in both the organized and the unorganized parts of the territory ; two sets of Provincial courts and officers were to be set in array against one another everywhere ; it was to be impossible for anybody to obtain a sure title to any land or timber in the territory ; squatters and trespassers were to be the only settlers ; and legitimate Authority was only to be maintained by a conflict between the people of two friendly Provinces and of the disputed territory, in which con- , '"at*:; :S • Stats. Can., 44 Vic, ch. 14. printed ante, p. 410.] [The Act is printed ante, p. 412. The Resolutions in amendment are MANITOBA JURISDICTION IN DISPUTED TERRITORY. 457 hat during the fliot Manitoba vas, as against Ontario, to have the countenance and aid of the Federal authorities, with their contractors and armies of workmen. The former armed contests of trading companies for the possession of other portions of the territory were thus, at the instance and by the compulsion of Federal authority, to be renewed. Many lives were sacrificed in those old conflicts ; more might be sacrificed in the new. In the debate in the House of Commons, on the 18th of March,''' the leader of tho Government avowed as an object contemplated by transferring to Manitoba the interest of the Dominion in the disputed territory, that it would "compel" this Government not to insist on the awarded boundaries ; and be assured the House that the Government of Ontario would "come to terms quickly enough when they find they must do so." No terms had ever been proposed to this Government, nor had this Government ever been asked to propose any to the Federal Government. Afterwards, viz., on the 1st April, 1881 (the Committee of the House of Commons on the Boundaries not having yet reported), a petition, which appears to have been sent to the Dominion Government from Eat Portage, praying that a Court of Civil Jurisdiction might be established by the Dominion at that place, was replied to by the Under-Secretary of State, who stated in such reply, f for the information of the petitioners, that as Rat Portage would shortly be included ..ithin the Province of Manitoba, when the Act extending the boundaries of that Province should be brought into force (unless it be already ■within the limits of Ontario), and as the administration of justice and the establishment of Provincial Courts devolved upon Provincial authorities, it would not be proper for the Government to take action upon their petition. The suggestion that the Province of Manitoba should or might establish a Court at Rat Portage, without waiting the deter- mination of the right to the territory, was not communicated to this Government, nor did this Government come to the knowledge of the letter of the Under-Secretary until the month of June following, when a copy of it was obtained and sent to this Government by their officer at Rat Portage. It is evident from this letter, as well as from the whole course of the Dominion Government in connection with the matter, that the intention was, that, in defiance of the rights of Ontario, the Province of Manitoba should at once assume jurisdiction in the disputed territory, establish Courts, appoint officers and magistrates therein, and thus enter into a conflict with Ontario, and thus bring about perhaps the withdrawal of the officers of Ontario, and our leaving the territory for an indefinite time in the control of Manitoba and the Dominion. A further communication, dated April, 1881, was received from the same stipendiary magistrate, and extracts embracing its material parts were, on the 25th April, transmitted to the Secretary of Stale at Ottawa, with a request that he would be good enough to state, for the information of this Government, what the facts really were as to the matters therein mentioned as having occurred since the award, and since the determination of the provisional arrangements which had been theretofore made with reference to the territory in question. On the 27th April, the receipt of the despatch of the Provincial Secretary was acknow- ledged, but the information asked for was not given, nor was any reason suggested for not giving the same ; nor has the information been given since, or any reason stated for not giving it. The communication stated to the effect, that in the year 1873, certain persons, therein named, entered into possession of a timber limit, which they had previously obtained from the Dominion Government, containing one hundred square miles ; that the limit was surveyed, comprising several blocks ; that those blocks were marked on a map issued by the Dominion Government, and coloured yellow, and showed all the timber lands the parties were entitled to ; that during the summer of 1880, the senior partner had an interview with Sir John Maodonald, and asserted that when his Company obtained their limit they were allowed the privilege of selecting the quantity in several blocks, those blocks not to contain less than twenty-five miles each ; that another firm named in the communication had secured a limit on the Lake of the Woods and its tributaries, n amendment are ♦ Debates of the House of Commons, 1881, p. 1452, t [Printed ante, p. 413.] 458 REPORT OF THE ATTORNEY-OEN. OF ONT. ON THE BOUNDARY QUESTION 4 and hatl been allowed the privilege of selecting their limit in much smaller blockn ; that the firm first mentioned asked to be allowed to relinquish their claim to at least one-half of their limit, and to be allowed to select an equal quantity in blocks of any size, wher- ever they could be found, and would suit their Company best ; that their demands were assented to, accompanied with the remark that they nad better get their limit arranged to suit themselves at once, as it might not be in the power of the Dominion Governnieut to do them the favour in a short time hence ; that this firm had occupied their limit for several years, and cut timber sometimes on their limit and sometimes in other places out- side of it, and had (it was said) paid no dues to the Government for the timber, with the exception of what was cut last season ; that duri^ig this time they discovered blocks more thickly timbered, of better quality and larger jjrowth than the blocks originally selected and operated on by them, thereby obtaining an advantage not contemplated when they secured their limit, and securing a privilege not usually accorded to those enjoying timber limits ; that one of the partners (named) had made strong representations to the Dominion Government of injuries sustained by them when the water broke into the canal last summer, and had claimed that the water privilege f,t Fort Frances had been destroyed by the canal being cut where it is, and (it was said) had obtained a promise from the Government at Ottawa of one of the most valuable water privileges on the Lake of the Woods, at Kat Portage, in lieu of the pretended damage to the one at Fort Frances ; that all that was required to close the water out of the canal was a small dam across the mouth of the canal, which might cost from one to two hundred dollars, and then the privilege would be as good as it was formerly ; that the said firm had also represented that their milling operations were delayed by the water breaking into the canal, while he fact is they sawed double the quantity of lumber in the same time that they had in any previou^; season ; that it was also reported that a member of the House of Commons (named in the com- munication) had got a timber limit during the past year on the Winnipeg River, within the territory awarded to Ontario. These were the statements made known to the )omimon Government, with the names of the parties referred to ; and, from that day to this, the people and Government of Ontario have had no information from the Federal Government on the subject. It appears from another communication of the same oflBcer, that he held his first Court at Rat Portage on the 16th May, 1881 ; that a number of cases were tried and disposed of; that in some of them the money was paid by the judgment debtor before execution, and in others after execution ; and that no question of jurisdiction was raised by, or on behalf of, any of the persons sued except Manning, McDonald & Co., contractors with the Dominion Government for a portion of the Pacific Railway. A judgment was given against these contractors, execution was issued, and a seizure made by the bailiff; that the bailiflT was thereupon assaulted by an agent of the defendants ; that he was sub- sequently arrested by a Dominion constable, and without being brought before any magistrate was put into the gaol so established by order of His Excellency the Governor- General in Council ; that he was afterwards brought before the raugistrate of the Dominion and fined one dollar or one day in gaol, and as he did not immediately pay the fine he was committed to gaol for performing his duty. Partly for want of a sufficient police force, and partly to avoid bloodshed, no further proceedings have been taken on the execution in his hands. It appears, also, that no new suits have been entered for the sittings of the Ontario Division Court at Rat Portage, on account of the question of jurisdiction having been raised by Messrs. Manning, McDonald & Co., as already mentioned, and of the process of the Court not having hitherto been enforced against them. It is the opinion of the stipendiary magistrate that it will henceforward be impossible to enforce his judgments without the assistance of a considerable force, and that it is evidently the intention of the said contractors and others, henceforward to resist all pro- cess issued under the authority of this Province. The same course will no doubt be taken, whenever convenient, with reference to any process issued under the authority of the laws of Manitoba. The Act which provided for the extension of the boundaries of the Province of Manitoba was to come into force on a day to be appointed by Proclamation by the Gov- ernor, to be published in the Canada Gazette. Such Proclamation was issued accordingly LAWLESSNESS IN DISPUTED TERRITORY CONSEQUENT ON UNSETTLED BOUNDARY. 459 on the 18th June, 1881, and (1ec1areme to consider themselves as not belonging to Ontario ; and the lands and limits which they occupy will have, for title, grants, licenses, contracts, or permits from another Govern- ment To change the jurisdiction over the territory after its principal accessible parts have become populated under such circumstances, may be found to be most inconvenient, and even to involve insuperable complications and difficulties. Should these results not follow, we cannot conceal from ourselves that it has been proved by long experience that a Government on this continent cannot, if it would, ignore occupants of Crown Lands, though they may be occupants without title ; and that (generally speaking) the occupancy is ultimately clothed with the title, either without compensation, or on terms different from those which might properly be imposed if the possession were vacant. A fortiori might this be found to be the case in the present instance, as respects occupants who should receive grants or licenses from the Government of the Dominion or of Manitoba. * Debates, House of Commons, 1881, page 1452. SUUOESTION OF CONFERENCE WITH DOMINION GOVERNMENT. 461 state of things, be created by k«s government of their title to rather like a re deterred by it. Again, if ithdrawal from rmanently drift Manitoba ; will ad limits which mother Govern- accessible parts it inconvenient, ese results not experience that Crown Lands, the occupancy terms different nt. A fortiori occupants who r of Manitoba. Dominion Miniators, speaking for the Dominion Government, said and shewed that the Hudson's Bay Company were mere " squatters " on the lands they occupied ;* and yet the Dominion foi'.na it expedient afterwards to pay to the Company a considnrahlft com-> pensation to get rid of their claims, though the compensation was smali as compared with value of the territory. In the present case the obtaining of damages against the Dominion would lie no adequate compensation to this Province fur wrongs done by Federal legisla- tion, or by the acts of the Federal Government. Such damages would come principally out of the pockets of Ontario taxpayers, as \mng the chief contributors to the revenue of the Dominion ; and any indemnity we could receive would practically be paid to a large extent with our own money. An appeal to the electors of the Dominion for the rights of the Province has been suggested. Such an appeal may not be practicable in time to prevent irremediable evila resulting from delay ; the first general election for the Dominion may not take place until the autumn of 1883 ; and at this election, whenever it occurs, the question as to the territory in dispute may be overshadowed by other issues which in Dominion politics divide parties, and with which the htsgislature and Government of Ontario have nothing to do. Notwithstanding that the Federal Government, since the award, has repeatedly declined to discuss suggestions made by this (Jk)vernment for an adequate provisional arrangement to be acted upon pending the dispute, and has proposed no other provisional arrangement, and has made no official communication whatever as to any mode of deter- mining the question of right, still, in view of all the circumstances, and especially of the- very serious evils, present and prospective, which the course of the Federal Government has created, and of the absence of any means of peaceably pre\ enting such evils, — the undersigned ventures to recommend that he may receive authority from Your Honour in Council to endeavour once more, by personal confei'ence or otherwise as may be found expedient or useful, to ascertain for the information and action of this Government, and of the Legislature of Ontario at its next session, whether the Federal Government and the Government of Manitoba can now be induced to concur in any mode of accomplishing a permanent settlement in relation to the dispute'^ territory, in connection with adequate and proper provisional arrangements ; and if so, wnat the bobt terms appear to be to which those Governments may be prevailed upon to accede. , . All which is respectfully submitted. ; . V , . > - Q^ MowAT. November 1st, 1881. H The Lieutenant-Governor to the Secretary op State. + -■■•'• '■'■' \ . Government House, Toronto, Slst December, 1881. Sir, — I beg to call your attention to the unfortunate condition of that large portioa of this Province to which the Federal authorities dispute our right. I desire specially to refer to that part of the disputed territory, comprising about 39,000 square miles,, which lies on the westerly side of this Province, and to which, by the Act of last session for the extension of the boundaries of the Province of Manitoba (44 Vic, cap. 14), the Federal Parliament transferred to that Province the claim of the Dominion, so far as relates to the Provincial jurisdiction therein. I beg to remind you that the importance of having settled without further delay all questions in regard to the boundaries of the Province was repeatedly stated, and even insisted upon, by your Government as long ago as the year 1872. Thus in an Order in Council, approved by His Excellency the Governor-General on the 9th April, 1872, it was affirmed to be "of the greatest consequence to the peace and well-being of the • Letter to Sir F. Rogers, 16th January, 1869, Book Arb. Doc., p. 324. t SeBB. Papers, Ont., 1882. No. 23. [Printed ante, p. 149.] 462 DESPATCH OF THE LIEUT.-GOV. RESPECTING THE QUESTIONS IN DISPUTE, 1881: country in the vicinity of the dividing line, that no question as to jurisdiction, or the means of prevention or punishment of crime, should arise or be allowed to continue;" and it was not doubted "that both Governments would feel it their duty to settle, without further delay, upon some proper mode of determining, in an authoritative manner, the true position of such boundary." On the 1st of May in the same year. Sir John A. Macdonald, the Premier, and then Minister of Justice, made a report, which was approved by Order in Council, in which report it was stated, in reference to the disputed territory, that " it was very uiaterial that crime should not be unpunished or unpre vented;" and in this view it was suggested that " the Government of Ontario be invited to concur in a statement of the case for immediate reference to the Judicial Committee of the Privy Council of England." It was furtJior stated that "the mineral wealth of the North-West country is likely to attract a large immigration into those parts ; and with a view to its development, as well as to pre- vent the confusion and strife that is certain to arise among the miners and other settlers so long as the uncertainty as to boundary exists," it was recommended that a course of joint action should meanwhile be adopted by the Dominion and the Province "in regard to the grants of lands and of issuing licenses, reservation of royalties, etc." By another Order in Council, approved on the 7th of November, 1872, His Excellency the Governor-General's Federal advisers obtained the sanction of the Crown to the statement ^^p' "the importance of obtaining an authoritative decision as to the limits to the nort . .au to the west of the Province of Ontario had already been affirmed by a Minute in Otfi* .oil," and that " the establishment of criminal and civil jurisdiction, and tii? necesdi^j r.' meeting the demands of settlers and miners for the acquisition of titles to laud, combiied to render such a decision indispensable." On the 26th of June, 1874, a provisional arrangement was made for the sale of lands in the disputed territory, which arrangement was in force from its date until 3rd August, 1878, whfin the award was made. By the award so much of the territory theretofore in dispute as was situate east of the meridian of the most north-western angle of the Lake of the Woods (say longitude 95° 14' 38" W.), was awarded to Ontario, and the claim theretofore made on behalf of this section of Canada to the territory beyond that meridian, to either the White Earth River or the Rocky Mountains, was negatived by the Arbitrators. I beg to remind you that from that day to this the Federal Government has made no official communication to the Government of this Province of their intention to reject the award, but my Government has been left to gather this intention from the omission of the Federal Government for the first two sessions of Parliament to bring in any measure for the recognition or confirmation of the award ; and from the speeches made in Parliament by Ministers during the last two sessions ; and more distinctly from the transfer made last session to Manitoba by the Act already mentioned, and which Act, passed notwithstanding the remonstrance^- of this Government, had the effect of putting it out of the power of the Dominion to cor^'rm the award without the concurrence of that Province. My Government cannot doubt that the Federal authorities are aware, and will admit, that the progress of the country in the last nine years, and the realization during this period of the condition of things wh'-h in 1872 was only anticipated, have immensely increacod the duty tlen perceived aad ^.pressed by your Goverment, that "no question as to jurisdiction or the means of prevention or punishment of crime should be allowed to continue ;" and that there is a " necessity of meeting the demands of settlers and miners for the acquisition .. f titles to lands." Immigrants and others have, as anticipated, been attractad to the territory in dispute, in common with the rest of the North-West Terri- tories ; numerous settlers, miners and lumberers have nov/ gone into the territory ; a large floating population is there ; also a considerable number of persons who desire to be settlers ; and the lands, mines and timber of the territory are in active demand. With respect to the timber, enormous quantities of it are being cut and removed by trespassers and others. Some of those engaged in the work assert that they have licenses, permits, or the like, from the Federal Government ; and this Government has, in consequence, applied to your Government for information as to how far their pro- DISPUTE, 1881: CONDITION OF THE DISPUTED TERRITORY. 463 ceedings have had the sanction of the Dominion Government ; but the information has not been given, nor has any notice been taken of the application for it. A communication from our stipendiary magistrate in the territory (a copy of which, or of its material part, was transmitted to you on the 8th March, 1881,) shows — what also appears from other quarters — that the explorers and miners on the Lake of the Woods had suffered great disappointments and losses from the continuance of the territorial dispute ; that some of them had expended all their money in exploring and surveys, expecting an early return for their investments and toil, but that nothing could be done with mining capitalists because a sure title to lands could not be procured ; that the delay of another year would ruin many ; that many would be driven from the locality never to return, causing loss to merchants and others who had made advances to them ; that the people of the locality were suffering in many ways from the unsettled condition of affairs, there being no civil court of acknowledged jurisdiction to collect debts, no land agent to locate settlers, no registry office to record deeds, and no disinterested timber agent to protect the forests ; that all was uncertainty aud confusion ; that the claims to mineral lands had become so mixed that those who claimed locations would soon be unable to recognize their own property ; that some places had been surveyed several times, the surveys covering each other; that the magistrate had no doubt there would be fighting, and perhaps murder, over these claims ; that some persons were then armed to defend their supposed or assumed rights against wealthier claimants ; and that whiskey- sellers were plying their illicit calling with great success, and much to the injury of the district. Since the date of this communication, the Manitoba Act referred to has intro- duced new elements of confusion aud disorder. Two sets of Provincial laws, and two sets of Provincial officers, distract the inhabitants of both the unorganized and the organized parts of the territory. As regards the organized portions, which lie south and east of the Height of Land — and where, up to the time of Confederation, and for many years before, the authority of the laws, courts and officers of Upper Canada had always been assumed, by the Government and the population, without dispute or question, and where, since Confedera- tion, the authority of Ontario had continued to be assumed in the same manner — the unfortunate position of the inhabitants now, was, (in the debate on the Manitoba Bill), pointed out by the leader of the Government to bo this : "The people of Prince Arthur's Landing may resist the processes of law ; they may say to the Sheriff that he is committing an illegality. A man may say to another who bring a suit against him, ' This is the process of an Ontario Court, and Ontario laws do not extend here, because we are not pa? of that Province.' " The same things may be said in respect of the officers and courts of Manitoba in the same territory. I have further to remind you that since the award wm made, the Government of Ontario have repeatedly called the attention of your Government to the serious practical evils which were attending the dispute, and to the importance and duty of not delaying a settlement of the question, or of making adequate provisional arrangements if the award was not to be recognized by the Federal authorities ; but no measure has ever been recommended to Parliament to remove or alleviate, with reference to civil rights or the trial of civil matters, the evils thus arising from varying laws and disputed jurisdiction. In criminal matters only has something of a provisional kind been done, namely, by the Dominion Statute 43 Vic, cap. 46, continued until the end of next session by 44 Vic, cap. 15 ; and this legislation is so defective that no magistrate or justice of the peace acting in this disputed territory can feel any assurance that his jurisdiction will not be disputed, or his officers set at defiance or sued in trespass. An authoritative determination of the right might be accomplished at once, by the Parliament of Canada and the Legislature of Manitoba passing Acts for this purpose, under the authority of the Imperii Act 34 and 35 Vic, cap. 28 ; and otherwise. But ray Government are aware that the policy of the present Federal Government and Parliament forbids any expectatioix of that course being adopted. In 1872 your Government proposed an immediate reference to the Judicial Com- mittee of the Privy Council; and it was suggested in a communication to the Government 464 DESPATCH OF THE LIEUT.-GOV. RESPECTING THE QUESTIONS IN DISPUTE, 1881 of Ontario that " no other tribunal than that of the Queen in Council would be satisfac- tory to the other Provinces of the Dominion, in a decision of questions in which they have a large interest, the importance of which is by current events being constantly and repeatedly augmented." My Government have observed also that in the debate in the Senate en the Manitoba Bill last session. Sir Alexander Campbell, speaking for the Government, said : " The boundary line will have to be settled. It will be settled I suppose, by some reference to the Judicial Committee of the Privy Council of England or some other tribunal. No particular burden will be thrown on Manitoba to procure a settlement." Speaking of the boundary line, the same Minister further observed : "Its location is a matter of dispute ; and all we can do is to endeavour to get Ontario to agree to some tribunal by which it can be settled." In the House of Commons' debate on the same Bill, at a subsequent time, the Premier said, speaking of his predecessors : " The Government were peculiarly bound to see that the question was left to a tribunal that could speak authoritatively ; and I do not see, unless they were afraid of their case, why they [the Ontario Government] should have objected to the Imperial tribunal, to which it must go finally. That is the only way of settling the case. All must submit to that, the highest tribunal in the Empire." Having reference to these observations, and remembering that the award of the distinguished gentlemen who were chosen by the two Governments as Arbitrators, and whose ability and impartiality have always been acknowledged, has not been satisfactory to the Federal authorities, I do not suppose that any tribunal constituted by agreement of the parties would, under all the circumstances, be proper or satisfactory. A reference to the Judicial Committee of the Privy Council, or to any other tribunal, would involve much loss of time ; and meanwhile the advices received from the territory indicate that the timber therein is being destroyed; that enormous quan- tities of it are being practically lost to the Province ; and that the development of the territory is arrested, to the permanent injury of this Province, by the continued absence of undisputed authority to enforce order, administer justice, and grant titles. The evils arising from this state of things are so great, and are increasing so rapidly, and it is so important that the Province should without further delay secure peaceable possession of whatever limits it is entitled to, that my Government would be willing, with the con- currence of the Legislature, to submit the matter to the Privy Council, on condition of consent being given by the Dominion Government and that of Manitoba, and by the Parliament of Canada and the Legislature of Manitoba, to just arrangemunts for the government of the territory in the meantime. Without such provisional arrangements, this Province may as well wait for the confirmation of the award, which (so far as concerns the rights and powers still remain- ing to the Dominion) my Government confidently expect from another Parliament, as go to the expense, and have the unavoidable delay of a second litigation. From the time that it became manifest that the Dominion Government did not contemplate an early recognition of the award, provisional arrangementji have from time to time been suggested by this Government, and by the Attorney-General on its 1 lehalf. I beg to refer you to the communications containing these suggestions ; and I may add that your Government has not hitherto made any of them the subject of com- munication to this Government ; nor have any counter propositions hitherto been suggested. It may bp convenient here to state the substtince of these suggestions : (1) By reason of the award, and of its accordance with the contentions of the Province and Dominion of Canadr* up to 1870, the prima facie title to the territory must be admitted to be in the Province of Ontario; and it was therefore proposed that, pending the dispute, this Province should have the authority of the Dominion to deal with the lands and timber (as in the other parts of the Province), subject to an account if the title is ultimately decided to be in the Dominion, and not in the Province. (2) As (without a state of practical anarchy) there cannot continue to be two systems of law in this great territory of 39,000 square miles, the law of Ontario should, by proper legislation, be declared to govern in regard to matters which, by the British 13PUTE,1881 DOMINION ASKED FOR TERMS OF SETTLEMENT OF DISPUTED BOUNDARY. 465 ould be satinfac- 18 in which they constantly and e debate in the peaking for the ill be settled, I icil of England, oba to procure a observed : " Its Ontario to agree equent time, the uliarly bound to ly ; and I do not ernnient] should t is the only way le Empire." he award of the Arbitrators, and been satisfactory bed by agreement ory. ar to any other es received from t enormous quan- velopment of the ontinued absence titles. The evils )idly, and it is so >le possession of ig, with the con- on condition of toba, and by the gemonts for the reW wait for the ers still remain- arliament, as go ernment did not aents have from y-General on its ggestions ; and I subject of com- hitherto been ns: ntentions of the le territory must ' proposed that, lominion to deal ;ct to an account rovince. [tiuuB to be two Ontario should, 1, by the British North America Act, are within Provincial jurisdiction. This, or any other arrangement with regard to these matters, will now require legislation by Manitoba. (3) It was further proposed that, pending the dispute, the jurisdiction of our Courts and officers should be recognized and confirmed ; and that the jurisdiction of our stipendiary iviagistrates in the disputed territory should be increased to the extent contemplated by the disallowed Act, 42 Vic, cap. 19, Ont. 'This extended jurisdiction, it may be observed, would not be so great as the jurisdiction which has been conferred by Dominion Statutes upon similar magistrates in the territories of the Dominion. To prevent doubts, there should be legislation by the Federal Parliament, and by the Legislatures of both Manitoba and Ontario. The Manitoba Act of the last session of Parliament has rendered necessary the concurrence of the Government and Legislature of Manitoba in the provisional arrange- metrts referred to. But it is presumed that such concurrence would, if now desired or approved by the Federal Government, be given gladly ; for it is not to be supposed that that Province — with its small revenue, and with the enormous additional demands upon it for the government and development of its undisputed territory, increased by the same Act from 13,464 to upwards of 100,000 square miles — can desire to have the further expense and responsibility of the temporary government of 39,000 square miles of disputed territory, which may never be theirs, and to which such of the people of Manitoba aa may take the trouble to learn the facts, must feel it not improbable that Ontario has the right ; since such was in effect the view taken and acted upon in every way by the successive Governments of Canada up to 1870 ; and since such highly competent referees as the Right . Honourable Sir Edward Thornton, then Her Majesty's Ambassador at Washington, and now her Ambassador to the Court of St. Petersburg, the late Honour- able Chief Justice Harrison, and the Honoui-able Sir Francis Hincks, K.C.M.G., declared and awarded the disputed territory to be within the boundaries of this Province. I have called the Ontario Legislature to meet for the dispatch of business on the 1 2th of January. I perceive that the Parliament of Canada is to meet in the following month, and I would respectfully urge the great importance of my being o^.cially informed, before the meeting of our Legislature, whether the Dominion Government is now williiig, with the concurrence of the Legislature of Manitoba, so far as such concurrence is necessary, to agree to the arrangements which have been suggested, and to obtain from Parliament at its approaching session the Dominion legislation necessary to give effect to such arrangements. Or, if the Dominion Government is not willing to agree to the arrangements suggested, my Government would be glad to be informed what the best tjerms are to which your Government is prepared to agree, for the final settlement of the question of right, and for the provisional government of the territory in the meantime. I beg to remind you once more that since the award, no terms have ever been proposed to this Government with reference to either matter, unless it may be in the informal, and so far nugatory, negotiations which have recently taken place with the Attorney- General. I beg also to renew the request made in a former despatch, but not hitherto nouictd by your Government, for Information as to the transactions of your Government with respect to the disputed territory since the date of the award. What my Government desire to have is, information of all transactions with respect to the timber and lands respectively, including copies of all grants, licenses, permits, regulations, instructions, letters, documents and papers of every kind relating to the same. This iiiormation my Oovernment submit that they are entitled to receive, whether there is to be a provisional arrangement or not. It has recently been stated in the public journals that the Federal Government had assumed authority to grant to the Pacific Railway Company land for their line of road through the disputed territory, and for timber purposes, a breadth of twenty miles on each side of this road throughout its whole length. No communication on the subject has been received from the Federal Government. If the newspaper statement is correct, my Government respectfully submit that, as the right to the territory is in dispute, no such grant should have been made without the concurrence of the Provincial authorities ; and that if their concurrence was not cared for, they should at all events have had 30 466 PROPOSED ADDRESS IN REPLY TO LlEUT.-GOV.'s SPEECH, AND AMEND'tS., 1882, previous notice of what was contemplated, that they might have had an opportunity by negotiation or expostulation, of seeing that, if possible, the interests of the Province were not set at naught. I have respectfully to request copies of the Orders in Council and other documents (if any) relating to the transaction. I have the honour to be, Sir, '^ Your obedient servant, '■• J. B. Robinson. To the Honourable the Secretary of State, Ottawa. ;v^,"y,v!' ;, ■* Extract from the Speech of His Honour the Lieutenant-Governor on the Opening OF the Ontario Legislature, 12th January, 1882.* I regret that since your last Session no progress has been made towards a recognition of the right of the Province to that extensive portion of its territory, our title to which, notwithstanding the award of the distinguished Arbitrators appointed by the two Governments, the Federal authorities have continued to dispute. The grave practical evils resulting from the dispute have, since you last met, been greatly increased by an Act of the Federal Parliament transferring to the Province of Manitoba, so far as relates to Provincial jurisdiction, the claim of the Dominion to the most valuable part of the disputed territory, including our organized municipalities south and east of the Height of Land. While the Bill was before the House of Commons, I addressed to the Federal Government a despatch protesting, on behalf of Ontario, against this part of the intended Act. A copy of my despatch, with other papers relating to the territory, will be laid before you. -•• ^;j jui" -■■»>*• ^ it i , r..f_ Paragraph Three of the Proposed Address, in Reply to the Lieutenant- Governor's Speech at the opening of the Ontario Legislature. Moved 13th January, 1882.t 3. That we agree with His Honour that it is to be regretted that since our last Session no progress has been made towards a recognition of the right of the Province to that extensive portion of its territory our title to which, notwithstanding the award of the distinguished Arbitrators appointed by the two Governments, the Federal authorities have continued to dispute ; and that the grave practical evils i-esulting from the dispute have, since we last met, been greatly increased by an Act of the Federal Parliament transferring to the Province of Manitoba, so far as relates to Provincial jurisdiction, the claim of the Dominion to the most valuable part of the disputed territory, including our organized municipalities south and east of the Height of Land ; and we are glad to learn that while the Bill was before the House of Commons His Honour addressed to the Federal Government a despatch protesting, on behalf of Ontario, against this part of the intended Act, and that a copy of his despatch, with other papers relating to the territorj% will be laid before us. On the 26th January, 1882, Mr. Meredith, seconded by Mr. Morris, moved in • " " ' amendment to the third paragraph of the proposed address,! That the third paragraph be struck out, and the following substituted therefor :■ — " That while we regret the delay which has occurred in the final settlement of the ' * .TournalB Leg. Ass., 1882, Vol. 13, p. 3. ■[Ibid, p. 9. tlOid, pp. 21-3. ind'ts., 1882, PROPOSED ADDRESS IN REPLY TO LIEUT.-GOV.'S SPEECH, AND AMEND'TS., 1882. 467 •portunity by the Province 3TB in Council L0BIN80N. Northerly and Westerly Boundaries of the Province, and while we are prepared at all times to maintain by all lawful and constitutional means its territorial and other rights, we deprecate the taking of any course in the enforcement of those rights which is calcu- lated to disturb the peace of the Dominion, and we desire to express our regret that your Honour's advisers have not taken the only lawful and constitutional means which in the absence of the approval of the award by the Parliament of Canada are open for the determination of the question in reference to such boundaries." Mr. Sinclair, seconded by Mr. Hagar, moved in THE Opening 3 a recognition title to which, I by the two practical evils [ by an Act of as relates to ie part of the of the Height to the Federal >f the intended y, will be laid LlEUTENANT- URB. Moved since our last le Province to the award of fral authorities )m the dispute lal Parliament irisdiction, the including our glad to iearn iressed to the lis part of the the territorj'. I moved in Lss,t Id therefor : — jment of the AMENDMENT TO THE AMENDMENT, '^ -f^^. That all after the first word " That " in the amendment be struck out, and in lieu thereof, there be inserted these words, " that part of the original resolutions under con- sideration by the House be amended by adding thereto the words following : — And we avail ourselve j of this, the earliest opportunity at the present session, to reiterate our determination to give our cordial support to any steps which may be necessary for ascertaining and maintaining the just claims and rights of Ontario, as by the said award found and determined ; and in the name of the people of Ontario we emphatically insist that any absence of prior legislation on the part of the Dominion to give eflfect to the conclusions which should be arrived at by the Arbitrators, can neither justify nor excuse the action of the Dominion authorities in now repudiating the said award, and refusing to give to Ontario her just rights as thereby ascertained and determined." And a debate having arisen. Ordered, That the debate be adjourned until to-morrow. ■ .^ * # On the 27th January the Amendment to the Amendment, having been put, was carried on the following f; ' DIVISION : Yeas — Messieurs Appleby, Awrey, Badgerow, Ballantyne, Baxter, Bishop, Blezard, Bonfield, Caldwell, Cascaden, Chisholm, Crooks, Deroche, Dryden, Ferris, Field, Fraser, Freeman, Gibson (Hamilton), Gibson (Huron), Graham, Hagar, Harcourt, Hardy, Hawley, Hay, Hunter, Laidlaw, Livingston, Lyon, McCraney, McKim, McLaughlin, MacMahon, Mack, Miller, Mowat, Murray, Nairn, Neelon, Pardee, Peck, Robinson (Card- well), Robinson (Kent), Robertson (Halton), Sinclair, Snider, Striker, Waters, Watter- worth. Wells, Widdifield, Wood, Young — 54 Nays — Messieurs Baker, Baskerville, Bell, Boulter, Brereton, Broder, Creighton, French, Jelly, Kerr, Lauder, Lees, Long, Macmaster, Madill, Meredith, Merrick, Metcalfe, Monck, Morgan, Morris, Near, Richardson, Robertjon (Hastings), Tooley, White — 26. THE THIRD PARAGRAPH, A8 AMENDED, '> was then read as follows : — * That we agree with His Honour that it is to be regretted that since our last session no progress has been made towards a recognition of the right of the Province to that extensive portion of its territory our title to wh'^h, notwithstanding the award of the distinguished Arbitrators appointed by the two Governments, the Federal authorities have continued to dispute ; and that the grave practical evils resulting from the dispute have, since we last met, been greatly increased by an Act of the Federal Parliament transferring to the Province of Slanitoba, so far as relates to Provincial jurisdiction, the claim of the Dominion to the most valuable part of the disputed territory, including our organized municipalities south and east of the Height of Land ; and we are glad to learn that while the Bill was before the House of Commons, His Honour addressed to the Federal Government a despatch protesting, on behalf of Ontario, against this part of the I, * Journals Leg. Ass., 1882, Vol. 16, p. 23. 468 DESPATCH FROM DOM. OOV'T WITH PROPOSALS FOR SETTLEMENT, 1882. intended Act, and that a copy of his despatch, with other papers relating to the territory, will be laid before us. That we avail ourselves of this, the earliest opportunity at the present session, to reiterate our determination to give our cordial support to any steps which may be necessary for ascertaining and maintaining the just claims and rights of Ontario, as b^ the said award found and determined ; and in the name of the people of Ontario we emphatically insist that any absence of prior legislation on the part of the Dominion to give etfect to the conclusions which sliould be arrived at by the Arbitrators, can neither justify nor excuse the action of the Dominion authorities in now repudiating the said award, and refusing to give to Ontario her just rights as thereby ascertained and determined. ' ■.,,■«■ -. •. v.i !^.t,v'l niH " ' Agreed to, on the same division. t ; ,,: -■ ,'. <>.- ! \- The Secretary of State to I' 'if-. A' , iA^hii ".'•.''v :■■■:'.]} ^'"'V TUB LiBUTBNANT-QoVERHOR.* Ottawa. ?7th Januarv, 1882. Sir, — I have the honour to inform you that His Excellency the Governor-General has had under his consideration in Council your despatch bearing date the Slst Decem- ber, 1881, relating to the disputed territory west and north of the Province of Ontario. I have now to state for the information of your Government as follows :* 1. The position of His Excellency's advisers has been uniform from the beginning. They have on all occasions been anxious to obtain from the highest tribunal approachable, an authoritative decision of the question in dispute, but have been unwilling, and have considered it inconsistent with their duty to treat the matter as one which might be dealt with by arbitration. 2. There is a legal bo'indary between Ontario and the recently acquired North-West Territories ; and as representing the various Provinces of the Dominion who have acquired that territory, it is the duty, it is conceived, of the Government of the Dominion not to give away any part of it, nor to agree to arbitration upon its boundary, but to ascertain what its legal extent is. 3. This disposition on the part of His Excellency's advisers was also the conviction of the Government in office at the time the territory was acquired, and for some years afterwards, and the anxiety which is felt now was expressed then by the several Orders in Council which are referred to in your Honour's despatch. 4. The North-West Territories were acquired in 1 870, and on the 9th of April, the 1st of May, and the 17th of November, 1872, the importance of settling the boundary, and of settling it as a question of law, which could be determined by a Judicial Tribunal, was pressed upon the consideration of His Excellency's predecessor, and communicated to the Government of Ontario by the several Orders in Council referred to in your despatch. 5. Had the proposal then made for the submission of the dispute to the Judicial Committee of the Privy Council been accepted by Ontario, the delays and inconveniences alleged in the communication under consideration to have occurred would have been avoided. The matter would long since have been settled by the highest authority in the Empire, and the boundary between Ontario and the then recently acquired North- West Territories authoritatively and finally settled. 6. His Excellency's advisers believe that it is much to be regretted, in the interest of Ontario, as well as of the Dominion at large Jat a proposal so reasonable in itself, and which would have brought to the consideration of the legal question involved the most lea.ned and accomplished minds in the empire, and given every assurance of a speedy and satisfactory decision, and one which would have commanded universal assent, was not accepted by the Government of Ontario. m.- * SesB. Papers, Ont., 1682, No. 23; Return, Ho. Comg,. dated 14th February, 1882. [There being A'ci'bal differences between the printed copies of tliiH despatch, the original despatch has been followed in the copy here Kiven, except as to one word hereinafter noted.— G. E. L.] DESPATCH FROM DOM. GOV't WITH PROPOSALS FOR SRTTLKMENT, 1882. 46[> /f^ ',.7, It does not appear that any response was made by the Government of Ontario to the proposal to submit the question to the Judicial Committee of the Privy Council. 8. The proposal of 1874, referred to in your despatch, that the question in dispute should be referred to arbitration, does not seem to have been treated by either Govern- ment as a mode of seeking an authoritative decision upon the question involved as a matter of law, but rather as a means of establishing a conventional line without first ascertaining the true boundary. In corroboration of this view it is to be noted, that of the three gentlemen who made the award referred to in your despatch under the reference of 1872, two were laymen, and only one of the profession of the law. 9. His Excellency's advisers are of opinion that in advance of Parliamentary sanc- tion it was not only highly inexpedient, but transcended the power of the Government of the day to refer to arbitration the question of the extent of the North-west Territories acquired by the Dominion by purchase from the Hudson's Bay Company. 10. That territory had been acquired on behalf of, and was in fact held for, all the Provinces comprised in the Dominion, and the extent of it was a question in regard to which, if a dispute arose. Parliament only could have absolved the Government of the day from the duty of seeking an authoritative determination by the legal tribunals of the country. Suoh a decision having been once obtained, if it had been found that it promised to be to the convenience of Ontario and the adjoining Province that a conventional boundary should be established in lieu of the legal boundary, authority might have been sought from the Legislatures of those Provinces and from the Parliamefit of the Dominion for the adoption of such a conventional line. 11. That the course pursued was not intended as a means of seeking a legal boundary is further shown by the course pursued by the Legislature of Ontario, who, under th- provision contained in the Imperial Act 34 and 35 Vic, Cap. 38, enabling the Parliament of Canada to increase, diminish, or otherwise alter the limits of a Province, with the assent of its Legislature, passed an Act giving their assent to the limits of their Province being changed by Parliament to meet the award, whatever it might be. The passage of such an Act shows that it was not sought that the true boundary line should be ascei-tained, but that a conventional one should be laid down. 1 2. It must further be observed that a Committee of the House of Commons has reported as follows, viz. : — " In reference to the award made by the arbitrators on the 3rd day of August, 1878, a copy of which is appended (p. ), your Committee are of opinion that it does- not describe the true boundaries of Ontario. It seems to your Committee to be inconf sistent with any boundary line ever sugges ted or proposed subsequent to the Treaty ol Utrecht (1713). It makes the Provincial boundaries run into territory granted by Roya Charter in 1670 to the Merchants Adventurers of England trading into Hudson Bay, and it cuts through Indian territories which, according to the Act 43 Geo'-ge III., Cap. 138, and 1 and 2 George IV., Cap. 66, formed 'no part of the Provinces o» Lower Canada or Upper Canada, or either of them,' and it carries the boundaries of Ontario within the limits of the former colony of Assiniboia, which was not a part of Dpper Canada," showing how unwarrantable it would have been for the Government of the Dominion to have undertaken to ask Parliament to adopt the award as one defining the true boundaries. 13. On assuming office, His Excellency's px'esent advisers found that no authority had been obtained from Parliament for the reference made in 1874 of the dispute to arbitration. They themselves were opposed to that mode of disposing of the question, conceiving it to be inexpedient and lacking in legal authority, and that the duty of the Government was to seek for the disposal of the matter as a question of 4aw. 14. It is to be borne in mind that when the proposal of the reference to the Judicial Committee of the Privy Council was suggested, and its expediency enforced by the Dominion Government in 1872, the Supreme Court of Canada had not been brought into existence, and thcvo was therefore no high tribunal other than the Judicial Com- mittee of the Privy Council in England by which the question in dispute could have been authoritatively settled. 15. In 1875 the Act creating the Supreme Court was passed by the Parliament of i 470 DESPATCH FROM DOM. QOV'T WITH PROPOSALS FOR SETTLEMENT, 1882. Canada, the British North America Act, 1867, authorizing that Court to be created inter alia for the purpose of dealing with inter-Provinoial and constitutional questions, and upon the creation of that Court it would seem to have become the tribunal to which both Federal and Provincial Governments should have resorted for the decision of the question now under discussion. 16. As in 1872 the Government of the day was anxious to submit the question to the then highest tribunal, so now His Excellency's present advisers would readily con- sent to use the influence of the Dominion Government with that of Manitoba to obtain a submission of the whole question as to the boundary to the Supreme Court of Canada, under the 52nd section of the Act of 1875, establishing the Court. They trust with con- fidence that their exertions with the Government of Manitoba would be attended with success, and that such submission would be agreed to by that Government. 17. Another method of obtaining an authoritative decision was pointed out to the Attorney-General of Ontaiio at an interview souj^ht for that purpose with him by Sir John Macdonald and the Minister of Justice, who, on the 21st of November last, pro- posed to Mr. Mowat, at his office in Toronto, that the Government of the Dominion and that of Ontario should unite in soliciting the good offices of some eminent English legal functionary for the purpose of determining the true boundary line. The names of Lord Selborne, who was then, it waa reported, likely to seek relief from the fatigues of his office, and of Lord Cairns, were suggested by Sir John Madonald, who proposed that one or other of these noblemen, or some other distinguished legal functionary, should be invited to come to Canada, to sit in Toronto or elsewhere, for the purpose of hearing the evidence and deciding upon the boundary question as one of law, susceptible of being determined by evidence as other important questions are. 18. The great advantage in such a submission would be that whilst legal ability and learning of the highest character would be secured for the decision of the question, it would have given both parties the opportunity of submitting such evidence as they might think proper, and the difficulty of agreeing on facts, and settling a case to be submitted to the Privy Council, would have been avoided. Evidence would be heard upon the spot, and the fact of the hearing and the arguments of counsel taking place in the country would have tended to command general assent. 19. This proposition was taken into consideration by Mr. Mowat, and it is only recently that he conveyed to the Minister of Justice his indisposition to accede to that proposal; but it is one which His Excellency's Government is still ready to adopt, if their previous suggestion of a submission to the Supreme Court of Canada should not command the assent of the Government of Ontario. 20. As regards the assertion in Your Honour's despatch, that the enlargement of the boundaries of Manitoba has complicated the present question, this Government are unable to adopt the view put forth in the despatch. The original confines of Manitoba were very small, and the rapidly augmenting population of that Province had made the fact a ground of continued complaint, and the Local Government had urged upon the Government of the Dominion that the limited extent of their Province paralyzed their efforts in the development of the Province, in the establishment of municipalities, and the crea- tion of means of communication, and otherwise. It was uncertain how long the disputed boundary question might remain open, and His Excellency's Government felt themselves constrained, finally, to recommend the enlargement of the boundaries of Manitoba, but Parliament did so in suoh a manner, and in such language, as carefully guarded against the step constituting any interference with the disputed question of the western limits of Ontario. 21. It is bedieved that the Government of Manitoba would readily acquiesce in the question of the boundary line being brought for decision either before the Supreme Court of Canada or the high legal functionary, as suggested by Sir John Macdonald and the Minister of Justice, to Mr. Mowat, on the occasion referred to. 22. His Excellency's advisers look upon this question as one which should be con- sidered rigidly as one of Law, on account of the fiduciary character which they hold in regard to the various Provinces of the Dominion, whose money was expended in the acquisition of the territory, and who are now largely exerting and taxing themselves for DESPATCH FROM DOM. QOV't WITH PROPOSALS FOR SETTLEMENT, 1882. 471 the purpose of constructing a line of railway through it, to which tlie Government of Ontario (although the railway passes for upwards of 600 miles through its territory) have refused to contribute any aid in land, as has so largely been done out of the North- West Territories by the Dominion. 23. The Government of the Dominion believe that the interests of Ontario are con- sidered br the action which they advise as much and as strongly as the interests of any other Province. Their only anxiety is that a legal question in which Ontario is inter- ested by itself, and in which it is interested also as a member of the Confederation, should be disposed of by a Legal Tribunal. 24. They heartily wish that the proposal urged by the Dominion Government in 1872 for a submission to the Judicial Committee of the Privy Council had boen accepted by Ontario, and they cannot but attribute much of the inconvenience and delay alleged in your despatch to have occurred to the refuspl of Ontario to unite in such a sub- mission. 25. To the arbitration of 1874 His Excellency's Government was unable, for the reasons assigned, to give their adhesion ; but, with Ontario, they believe it to be of the greatest importance that the dispute should be settled, and they will be anxious to fur- ther in every way in their power the submission of the question either to the Supreme Court of Canada or to an eminent legal functionary, to be mutually agreed upon ; or, if it be prefer-red by the two Provinces of Ontario and Manitoba, to the Judicial Committee of the Privy Council, although His Excellency's advisers would prefer that it should be decided in Canada, either by the high legal functionary, as suggested, or by the Supreme Court, with the right of applying to the Judicial Committee of the Privy Council for an appeal to the Queen from any decision which may be arrived at, should either Province desire it. 26. The question of the title to the land in the disputed territory should not be confused nor mixed up in any way with that relating to the boundaries. 27. The Indians, and the Crown, and those claiming under them, have rights which can* be decided by the ordinary tribunals of the Province within which the land in dispute may finally be found. 28. With respect to the timber, of which it is said in Your Honour's despatch that enormous quantities are being cut and removed by trespassers and others, this Govern- ment have ascertained that no licensee have been issued to cut timber east of that boun- dary since the establishment of the Conventional line in 1870. Information regarding all permits, licenses, and other transactions would be readily furnished to the Govern- ment of Ontario at any time. 29. The assumption in your despatch that the Conventional boundary terminated on the 3rd August, 1878, the date of the award referred to, seems to be without founda- tion; but if the Conventional line is to be considered as having been then abrogated, it must be considered as at an end for all purposes, leaving both parties to assert their own rights in reference to. all the questions involved. 30. As regards the Government of the country, and the enforcement of law and order in the meantime, it was intimated to Mr. Mowat, at the interview above referred to, that the Government of the Dominion would be ready to agree to such measures as were necessary to prevent confusion in these important respects. The suggestion was then made that all Justices of the Peace residing in the disputed territory should receive commissions from both Ontario and Manitoba, and that all the judges of Ontario and all the judges of Manitoba should be put in a joint commission as regards the disputed territory. The laws of Ontario and Manitoba being alike in most respects, no confusion would probably arise. That in criminal matters the Act 43 Vic, Chap. 36, haid made, it was thought, satis- factory provision; or if there was anything deficient, the Government of the Dominion ^ould be ready to ask Parliament to supply it. That where there was found to be a practical difference between the laws of Ontario and those of Manitoba, the Government -of the Dominion would use its good offices with the Government of Manitoba to induce * [In the original despatch the word " cannot " is here used. — G. £. L.] f 472 LIEUT.-OOV.'S DESPATCH IN REPLY TO DOM. PROPOSALS FOR SETTLEMENT, 1882 them to consent that the law to be administered should be that of Ontario, as regards all matters of Provincial jurisdiction, until the legal limits of both Provinces sho. i be finally ascertained. I have the honour to be, Sir, /. ,,. j^'„. Your obedient servant, ■\i His Honour the Lieutenant-Governor of Ontario, Toronto. (^ij.'' -.11 lit Ai' "• J. A. MOUSSBAU, Secretary of State. The L'ibutenant-Oovbrnor to the Secretary op State. * .*i ■ .■<) U> ft: !^'.»^»>«*1J;*'>' '♦t.. Toronto, 18th February, 1882. Sir, — I have the honour to acknowledge the receipt of your despatch dated 27tb January last, and, for the information of the Government of the Dominion, I beg to- submit the following reply. My Government are glad that, though the Federal Government have for more than three years refrained from noticing requests and suggestions repeatedly made by the Government of Ontario with respect to the disputed territory, and from making any official communication of the views of your Government as to the question of title, or OS to provisional arrangements necessary for the government and settlement of the country while your Government were pleased to dispute our title, your despatch has at last placed this Government in official possession of the views »of the Federal Govern- ment on these subjects. My Advisers deeply regret to find those views so unsatisfac- tory, and (as they respectfully submit) so unjust to the people of Ontario. But a frank discussion of them may be of service to the interests concerned. Your despatch intimates distinctly, what had been already perceived, though not be- fore officially stated to this Government, that the policy of your Government is to reject and disregard the Award ; and your despatch states the reasons for this course. I notice that among these reasons it is not suggested (as of course it could not be), that the arbitrators were not able and impartial men, well known, and held in high estimation in this country ; or that they had not before them all the known evidence b "taring on the subject with the decision of which they had been entrusted ; or that they did i^ot do their best to come to a correct conclusion. The reasons which you give are of cu entirely different kind, namely ,'that the reference " transcended the power of the Government of the day ; " that the matter should be " considered rigidly as one of law ;" that the duty of the Government was to seek " an authoritative deter- mination by the legal tribunals of the country ; " that the reference " was not intended* as a means of seeking a legal boundary," but that t?ie object of it was that " a con- ventional line should bo laid dowrn;" and that His Excellency's present advisers were " opposed to disposing of the question " by arbitration, conceiving that mode to be " inex- pedient and lacking in legal authority." These seem to my Advisers to be, under the circumstances, unprecedented grounds of objection. A difference of opinion between one set of Ministers and their successors as to the expediency of having settled a con- troversy by arbitration, seems to my advisers to be no sort of justification for the repu- diation of an Award after it has been made in good faith. Awards and Treaties between Governments often require subsequent Parliamentary sanction j but in such cases my advisers claim that, according to the ethics of nations, ' it is the recognized and bounden duty of the Governments to obtain such sanction, or t/5 do their best to obtain it ; nor are chiages in the personnel of either Government allowed to affect the obligation. There are very recent examples of this old-established doctrine. The British Gov- *Ses8. Papera, Out., 1882, No. 23. '- PRlNCrPLE OF SETTLEMENT BY ARBITUATION CONCURRED IN BY DoM. PAR. 473 British Gov- ernment thought it their duty to obtain the prompt sanction of Parliament to the Ala- bama Award, though it waa not, like the present, a unanimous Award, and thougit both the Government and the people regarded the amount awarded as exoeasive and exorbitant. So, on the other hand, in the United States of America, Congress gave prompt effect to the Fishery Award, though it was not a unanimous Award, and though the people and their representatives regarded it as grossly unjust. In the present case a unanimous Award has for more than three years been disregarded by the Federal authorities of Canada ; and, while they contend that it ostiignod to Ontario more extensive boundaries than, as a matter of rigid law, this Province possessed, there is (on the contrary) reason for believing that if the Award errs in that respect, the error is in assigning to Ontario too little territory instead of too much. It appears to my advisers that many circumstances give exceptional force to the considerations which demanded the acceptance of the Award by the Federal authorities. The reference was made with the prr.ctical concurrence of Parliament ; and Ontario had every reason for assuming and relying upon the general acquiescence of the Do- minion. The reference had Heen agreed to in November, 1874. It was embodied in Orders of Council, approved by His Excellency the Govemor-Genersl and by His Honour the Lieutenant-Governor respectively. The three Arbitrators were immediately notified of their appointments, and their consent to act obtained. The reference was publicly known, and seemed to receive general approval. The Legislature of Ontario, in 1875, passed the Provincial Act to which your despatch refers, and, in common with the Dominion Government, proceeded, at considerable expense, to obtain, for the purposes of the arbitration, from Europe and America, all documentary and other evidence bearing on the question in dispute. The Imperial Government was apprized of the arbitration, and its assistance was given in an exhaustive search of the Colonial Office for State Papers. The fact of the reference was communicated by Ministers to Parliament at its first session after the reference had been agreed to, and it was repeatedly alluded to during the Parlia- mentary sessions held before the making of the Award. At no one of the four sessions intervening was any motion passed, or even proposed, in either House of Parliament, disap- proving of the reference ; nor, so far as my advisers are aware, did any member at any one of these sessions contend or suggest that the x'eferenoe " transcended the power of the Gov- ernment of the day," as is now alleged. Two or three members expressed an opinion in favour of a different mode of settlement ; and even this expression of opinion seems to have occurred in the session of 1875 only. In the session of 1878 an appropriation of $15,000 to pay the expenses incident to the reference was voted by Parliament ; and without objection or question by anyone.* The documents and other evidence obtained from time to time were printed ; statements of the case of the respective Governments were prepared and furnished to the Arbitrators ; the question was argued by counsel on both sides ; and the Award assigned to this Province part only of the territory which the Dominion Ministers, before compromising with the Hudson's Bay Company, had claimed as clearly belonging to this section of Canada. The Award was made on the 3rd August, 1878. A change of Government took place on the 17th October following. The new Government on coming into office gave no notice to this Province that the Award was to be repudiated. On the 1st November, 1878, a map of that date was "publishetl by order of the Honourable the Minister of the Interior," marking the boundaries of Ontario in precisely the manner assigned by the Award. On the 31st December, 1878, a despatch to your Government stated that a measure would be introduced during the then approaching session of the Ontario Legisla- ture, to give effect to the Award by way of declaratory enactment and otherwise ; and the despatch suggested that a like Act should be passed by the Parliament of the Dominion, t In answer to this despatch no notice was given that the Federal Govern- ment meant to repudiate the Award ; no warning to refrain from passing, or to postpone passing, the proposed Act ; and accordingly the Ontario Legislature, at its next session, passed an Act consenting that the boundaries, as determined by the Award, should be I * House of Commons Debates, 1878, p. 2628, item 292. + Sessional Papers, Ontario, 1879, Vol. 2, No. 80. "^k 474 LtKUT.-aOV.'s despatch in reply to DOM. PFtOPOSALH FOR SETTLEMENT, 1882: the northerly and westerly boundaries of the Province. ♦ A like Act not having bean passed at the next session of the Federal Parliament, and no reason for the delay or omission having been oomraunicated to this Government, two despatches wore addressed to your Government, dated respectively 23rd September and 19th December, 1879. In the despatch of the 2Srd Heptember, it was, amongst other things, urged that, an Award having been made in pursuance of a reference by the two Governments, it was just that ther< should be no further delay in formally recognizing the Award as a conclusive settlement of tho matters >ubmitted to the arbitrators; that the Government of Ontario did not doubt that the Government and Parliament of Canada would ultimately take the same view; but it was respectfully represented that the delay in announcing the acqui- escence of the Dominion authorities, pnd in otherwise giving t\il\ effect to the Award, had been embarrassing and injurious.! By the despatch of 19th December, 1879, the attention of your Government was called to a former despatch, and it was intimated ** that the arbitrators having made their Award, the Government of the Province under- stand that tho provisional arrangement theretofore in force between the Province and the Dominion" was "at an end, the Award having 'doHnitely settled' the boundaries of the Province and the Dominion," within the meaning of the provisional arrangement | The receipt of these despatches was formally acknowledged, but neither of them was answered otherwise. No exception was taken to the alleged termination of the pro- visional arrangement ; and the Province was still left without any intimation of an intention to repudiate the Award. The first intimation of this intention was given during the session of Parliament hold in the year 1880. Until then there was no known act of the Federal Government or speech of Federal Ministers which did not consiit with an ultimate recognition of the Award by the Government of Canada. The recognition of the Award by the Parliament of Canada is desirable, to prevent doubts and disputes; but my Government do not admit that the Award has no legal force without such Parliamentary action. It is to be remembered that the British North America Act contains no provision giving authority to Parliament to deal with the boundaries of the Dominion or Provinces ; and my Government contend that the reference was within the powers incident to Executive authority. It is admitted in your despatch that a reference to the ordinary legal tribunals would have been within auch authoiity, and it is not easy to see why u reference, made in good faith, and with the acquiescence of Parliament for several years, to a Tribunal created by mutual consent for the purpose, should stand in a different position. Even if the Award is supposed to *have no legal effect until sanctioned by Parliament, still it appears to my Government to be inconsistent alike with reason and justice, with British precedent and practice, that the Federal Government should, at this late date, and after all these proceedings, refuse to ask such Parliamentary sanction, or that His Excellency's present Advisers should seek to excuse a repudiation of the Award, by alleging inability in their predecessors to sanction an arbitration, or by the preference of His Excellency's present Advisers for some other scheme of adjustment. References to arbitration, without previous Parliamentary sanc- tion, of matters involving large sums of money have been frequent ; and, for this pur- pose, between questions of money and questions of territory there is not in reason any solid distinction. If, as your despatch suggests, the Dominion Government occupy a fiduciaiy position with reference to the territory in question, it is equally true that they occupy a fiduciary position in regard to every power which, as a Government, they possess or exercise. It seems to my Government that, under all the circumstances, the Award should have been promptly accepted, even if it had appeared that the arbitrators had not found or awarded what they considered to be the legal boundaries, and, disregarding these, had merely laid down the boundaries which they deemed most convenient and rea- sonable. But it so happens that the surmise in your despatch, that the Governments did not contemplate that the arbitrators should find the legal boundaries, is unsupported by evi- ♦ 42 v., chap. 2, Ont. f Sessional Papers, Ontario, 1880, No. 46. ; Sessional Papers. OnUrio, 1380, No. 46, p. 2 ; lb. 1876, No. 14. KMENT, 1882: THE BOUNDABY DEALT WITFl BKFORK AIMUTRATORS AH QUESTION OV LAW. 475 it having been r the delay or vara addressed ber, 1879. In hat, an Award t wan just that 8 a conclusive lent of Ontario aately take the :ing the acqui- to the Award, uber, 1879, the was intimated ?rovince under- 9 Province and e boundaries of arrangement. | r of them was ion of the pro- timation of an bion was given a was no known did not consist able, to prevent ,rd has no legal e British North t to deal with >ntend that the is admitted in ive been within faith, and with mutual consent i is supposed to iiy Government t and practice, )ceedings, refuse sers should seek ssors to sanction for some other [amentary sanc- ad, for this pur- )t in reason any ment occupy a true that they vernment, they Award should brators had not d, disregarding .enient and rea- srnments did not ipported by evi- dence, and is entirely without foundation. The Order of the Privy Oonncil of 1 2th Novem- ber, 1874,* oxpnissly stated the object to be " to determine by meiinH of a reference thk northern and western bounmendation, " that the Dominion agree to concurrent action with the Province of Ontario in obtaining such legislation as may be necessary for giving binding effect to the conclusions arrived at, and for establish- ing the northern and western limits of the Province of Ontario in accordance therewith." The Order of the Lieutenant-Oovernor in Council was to the same effect us regards this Province. One of the arbitrators who were first named having died, and another having resigned, new arbitrators were appointed in their places — viz.. Chief Justice Harrison and Sir Francis Hincks ; and, these gentlemen having signified their acceptance, they were promptly put in possession of the documentary and other evidence. The formal Orders in Council appointing them were made some time afterwards, and wl the arbitrators met to hear counsel — viz., on the 31st July, 1878. By the Order in ( icil of that date, approved of by His Excellency, it was again provided " that ihe determination of the Award of such three arbitrators, or a majority of them, in the matter pi the said boundaries respectively, be taken as ^na/ anc{ concltisive," with the same agniement as before with respect to legislation.! A like Order in Council was passed by uo Ontario Government. It is not pretended that the arbitrators received any instrn ions Vieyond the Orders in Council. The statements of the case which were prepared .y counsel for the respective Governments, and printed and laid before the arbitrators, discussed the question of boundaries as a matter of law. | The viva voce arguments also of counsel, on both sides, before the arbitrators dealt with the question as a matter of law ; § and the Award affirms that it determines and decides " what are and shall be the northerly and westerly boundaries of the Province. "|| To assume in the face of all this, and without evidns for securing the important objects mentioned. But I am advised that no provisional arrangement would be so satisfactory, or so beneficial to the development and settlement of the territory, the maintenance of order, and the due administration of justice therein, as the just course of obtaining, without further delay, by proper legislation from the Federal Parliament and the Legislature of Manitoba, the recognition of the Award as a final adjustment of the boundaries of this Province. The evils already endured are beyond recall, but the continuance or aggra- vation of then from this time forward is in the hands of your Government. I earnestly commend all these considerations to the best attention of the Federal Government. I have the honour to be, Sir, Your obedient servant, :' ' J. B. Robinson. To the Honourable J. A. Mosseau, Secretary of State, Ottawa. LEMENT, 1S82. sary provisi ins UESOLUTIONS OF LEO. A8SEM, RESPECTINQ THE UOUNDARY QUESTION, 1882. 485 Resolutions op tub Lgqislative Asskmbly op Ontario rbspkotinq thk Boundary Question, and Resolutions Proposed in Amendment, 9th March, 1882.* ,m^ ' The Attorney-General moved, Heconded by Mr. Pardee, the following ,, ;' uc!3i;vr;--.i^M resolutions : r 1. That, having considered the despatches of the Government of Ontario to the Federal Government, dated respectively Slst December, 1881, and 18th February, 1882, and a report of the Attorney-General, dated Ist November, 1881, on the subject of those portions of this Province to which the Federal authorities have assorted an unjust and unfounded claim, this House desires to record its concurrence in the views and repre- sentations which are expressed in the said despatches and report. 2. That the persistent endeavours of the Federal authorities to deprive this Province of one-half of its territory are, in the interest of the people of Ontario, to be opposed by every constitutional resort within the reach of this Province. 3. That this House protests against the conduct of the Federal Government in enforc- ing a pretended ownership in this territory ; in assuming to make sales therein without the concurrence of the Provincial authorities ; in promoting, under colour of Federal grants and licenses, the destruction of its valuable timber ; in inducing the inhabitants to set at defiance the laws and authority of this Province j in prevailing on a neigh- bouring Province to assume jurisdiction in the territory by establishing courts and by other executive acts, and thereby to assist the Federal Government in neutralizing or embarrassing the territorial jurisdiction of this Province. 4. That a unanimous award wp,3 made on the 3rd August, 1878, determining the boundaries between this Province and the teriitories of the Dominion ; that this award was made in pursui ice of a reference designed to be binding and conclusive, entered into by the two Governments in good faith, with the knowledge of the Parliament of Canada, and acquiesced in until long after the proceedings under the reference had terminated ; that this award was made by distinguished Arbitrators of the highest char- acter, after an exhaustive collation of all known evidence bearing on the subject ; that the award assigned to Ontario less territory than His Excellency's present advisers, as well as previous Canadian Governments, had, in other contentions, invariably claimefENT.S TO UES0LUTI0N8 OF LEGISLATIVE ASSEMULV, 1882. 487 cau convoy a logal title aro grants by this Province ; that valid licenses for mining or for cutting timber can be issued by this Province alone ; and that all the acts of the Federal Government in pretending to deal with lands, timber or mines, and all legislative and execul'vo acts of the Province of Manitoba with reference to the territory, are illegal and of no force or validity. In view of these considerations, it has, in the o[ inion of this House, become the duty of this Province to assume without further delay the full gov- ernment and ownership of the territory, without reference to the claims of the Federal Government. 11. That this House is unwilling to believe that the Federal authorities aro so deter- mined to make the territory a prey to unsettled government and disputed jurisdiction, and so determined to " compel this Province to abandon its just and awarded rights, that the Federal Government will offer forcible resistance to the laws and the constituted authorities of Ontario ; and this House is of opinion that, while collision with the Federal authorities is to bo avoided, the stipendiary magistrates and the other officers of this Prov- ince should be instructed to see that as far as possible our laws are enforced, peace and order preserved, and justice duly administered as in other parts of this Province, and that trespassers are not allowed to destroy the property of the Province ; and if the authori- ties of this Province should, in the discharge of their constitutional functions, be resisted by Federal authority, the responsibility is to bo left with the Federal authorities, and the remedy to the people wham the Federal and Provincial authorities respectively represent. io ; that the i land which Mr. Meredith moved, seconded by the Hon. Mr. Morris, by way of PROPOSED AMENDMENT TO THE FOREGOINQ RESOLUTIONS, That all the words in the first Resolution after the word " That " be struck out, and the following substituted therefor : " by the provisions of the British North America Act, 1867, the limits of the Province of Ontario are declared to be those which formerly constituted the limits of Upper Canada. " That neither the Government nor the Parliament of Canada has, or has ever claimed to have, any authority, without the express consent of the Province, to define its boun- daries, or to in anywise interfere with its territorial rights or limits. " That diffeiences having arisen between the Governments of the Dominion and of the Province with reference to the true boundaries of the Province, the Government of •Ontario entered into negotiations with the Government of the Dominion for the determi- nation of the true situation of the northerly and westerly boundaries of the Province, as •defined by the British North America Act, and in the first Session of the year 1874, obtained from this House its sanction for the submission of the questions in dispute either to arbitration or to the Judical Committee of Her Majesty's Privy Council, but the Gov- ernment of the Dominion (then led by the Honourable Alexander Mackenzie) failed to ask or to obtain the like authority from the Parliament of Canada. "That in the year 1874 an agreement was entered into between the two Govern- ments for the administration and disposal of the lands within the limits of the territory dn dispute, and by that agreement conventional boundary lines were adopted, and it was agreed that the Government of Ontario should, ' until the final adjustment of the true boundaries of the Province,' have the charge, management, and disposal of the lands east and south of such conventional boundaries, and the Government of Canada of the lands west and north of them, in each case subject to account when the true boundaries should be definitely adjusted ; and the Dominion authorities have, ever since the agreement was made, and under the authority of it, been and are now in possession of the land west and north of the said conventional boundary lines ; and the Province of Ontario has been and is in undisturbed possession of the lands east and south of the «aid conventional boundary lines, which last-mentioned lands comprise two-thirds of the whole territory in dispute. "That subsequently, and in the same year (1874), an agreement was entered into between the two Governments that, subject to the approval of the Parliament of Canada «nd of the Legislature of Ontario, the matters in dispute between them should be referred to arbitration, and by the terms of that agreement it was provided that concurrent 488 PROPOSKD AMKNDMKNTS TO RK80LUTIONS OF LEOISLATIVE ASSKMBLY, 1882. action «i.. uld bo taken by the two OovernmentH in oljtaining such In^Hslation as might he neceaaary for giving ' binding effect' to tho concluaiona which ahould bo arrived at. " That in purauance of tho agreement laat mentioned, the LegiNlature of thin Province in the year 1874, paaaed an Act for the purpoae of giving eflTt'ct to tlie award of tije Arbitratora when made ; but the Oovernment of the Dominion, then led by the Hon- ourable Alexander Mackenzie, though applied to for that purpose, rofuaod to aak tho Parliament of Canada to pasa a aimilar Act, and claimed to rcaervn, and inaiated upon roaerving, to tho Parliament of Canada, the riglit of approving or diaapproving of the award after it ahould be made ; and tho Government of Ontario aaaented to and acquicaccd in tho poaition taken by the Dominion Oovyrnment, and to the roaervation cf that right to tho Parliament of Canada. " That, notwithstanding that tho agreement of reference was made in the year 1874, and although negotiations were aubsequontlj- entered into between the two Governments for tho odoption of a compromise line (the pArticulara of which ne^^otiationa this House has been unable to obtain), tho caae waa not preHonted to the Arbiiratora for conaidera- tion, and was not adjudicated upon by them until the month of Augant, 1378. " That the Parliament of Canada, in the exercise of the right ao expressly reserved to it, with the full consent of the Government of Ontario, has withheld its asHent to the adoption of the boundariea aa defined in the aaid award. " That while this House regrets that tho Parliament of Canada has not aeen fit to give auch assent, it cannot fail to recognize the right of that body, ir ne exercise of it» powers, to adopt that course which, in tho judgment of its members, sound policy and the rights of tho people of the whole Dominion dictate, and for the adoption of which they are responsible to the people of Canada. " That tho award made by the Arbitrators being, as it now is, by reason of tho premises, wholly nugatory and inoperative, the whole question remains undetermined,, and the parties to tho negotiations are remitted to their original rights and position, and it is now, in tho judgment of this House, in view of the grave difficulties and inconve- niences arising from delay, of paramount importance that an early settlement of the questions in dispute should be come to. " That, in the opinion of this House, it is the duty of the Government of Ontario, under the authority of the resolution above referred to (tho reference to arbitration having proved abortive), to take steps for the immediate submission of the matters in dispute between the two Governments, for decision by tho alternucive mode authorized by the said resolution —a reference to the Judicial Committee of Her Majesty's Privy Council, and a mode which waa proposed by the Government of Canada, led by Sir John Macdonald, as early as the year 1872, and which that Government is still willing (aa shown by the correspondence submitted during the present session) to agree to. " That in view of the statement of Sir Francis Hincks, one of the Arbitrators by whom the award was made, that every doubtful point arising upon the reference was, by the Arbitratora, decided against the claims of Ontario, and the statement of the Attorney-General that the territory awarded to this Province comprises less than one- thirteenth of the territory claimed by her, it is impossible that the result of a reference to the Judicial Committee of Her Majesty's Privy Council will be less favourable than that of the reference to arbitration. "That to postpone action with a view to the final settlement of the matters in dis- pute, in the hope that the electors of the Dominion will reverse the decision of the Parliament of Canada, will be to incur the risk that the questions as to the territoryi n dispute ' may be overshadowed by other issues, v/hich in Dominion politics divide parties;'" and in the very probable event of the Dominion Government being sustained, it wiil then, be necessary to resort co the means now proposed for the aettlemor of the matters in dispute, and the valuable time intervening will have been thrown ay. " "That the legislation of the Dominion Parliament providii for the extension of the boundaries of Manitoba could not, did not, and did not prut'ess to take from this Province any oart of the territory assigned to it by the British North America Act ; but, on the contrarj , expressly provided that the easterly boundary of Manitoba should extend only so far east as to meet the westerly boundary of the Province of Ontario. PROl'OHED AMENDMENTS TO UESOLUTION8 OF LEOIULATIVE ASSEMULY, I8b2. 48D "That the correHpondence with the Dominion authorities fuitiafies this House that the Oovornniont of the Dominion, notwithHtanding that, by the terms of the agrunnuMit for the adoption of the convontional boundaries before referred to, it is entitled to adminiNtor the lands in the territory west and north of the cor. /entional boundaries until the final adjustment of the true boundaries of the Province, is prepared to come to reason- able arrangements for the govornuHmt and administration of all'airs in the territory in dispute ; and, in the opinion of this House, it is the duty of the Oovornniont of Ontario to enter into immediate negotiations with the Oovernm'int of the Dominion with a view to effecting suitable arrangements of that character, including an equitable arrangement for the administration and disposal of the lands in the territory in dispute. "That this House deeply regrets that while a speedy settlement of the matters in dispute, by a reference to the Privy Council, is being pressed on their attention by the Government of Canada, and a willingness expressed by it to arrange ren^onable terms for the government of the territory in the meantime, the advisers of the Crown in Ontario manifest a disposition to retard that reference, reject amicable proposals for the govern- ment of the territory, and invite the House to take the law into its own hands and resort to rash measures, calculated to endanger the peace of the Dominion and imperil the best interests of the Province. " That this House further regrets and deprecates the violent, improper and reckless attitude assumed by the advisers of the Crown in Ontario with regard to the important questions to whfch these resolutions relate, and affirms that the suggested action is not dictated by a desire to promote the best interests of the Province, but by an intention to create political capital at the expense of arousing ill-feeling and animosity between the Province of Ontario and the rest of the Dominion. "That while this House is prepared to firmly maintain, by all constitutional means, the rights of this Pro^ ince, it is compelled to protest, and does earnestly protest, against the action of the advisers of the Crown for Ontario in the premises — action which is inimical to the best interests of the Province, hostile to the Crown, and which will not be sanctioned or tolerated by the loyal people of the Province of Ontario." The Amendment having been put, was lost on the following division: — Tbas — Messieurs Baker, Baskerville, Bell, Boulter, Brereton, Broder, Creighton, French, Jelly, Kerr, Lauder, Lees, Macmaster, Madill, Meredith, Metcalfe, Monk, Mor- gan, Morris, Near, Parkhill, Richardson, Tooley, "White, Wigle — 25. Nays — Messieurs Awrey, Badgerow, Ballantyne, Baxter, Bishop, Blezard, Bonfield, Caldwell, Cascaden, Chisholm, Crooks, Deroche, Dryden, Ferris, Field, Fraser, Freeman, Gibson (Hamilton), Gibson (Huron), Graham, Harcourt, Hardy, Hawley, Hay, Hunter, Laidlaw, Liv-ngstone, Lyon, McCraney, McKim, McMahon, Mack, Mowat, Murray, Nairn, Neelon, Pardee, Patterson, Kobinson (Card .veil), Robinson (Kent), Robei'tson (Halton), Ross, Sinclair, Snider, Striker, Waters, Watterworth, Wells, Widdifield, Wood — 50. The first Resolution having been then again put, was carried. The remaining Resolutions having then been severally put, were carried, each on a division. ' v 490 RESOLUTION OF HOUSE OF COM AS TO SEITLEMENT OF BOUNDARF, 1882. T^K Return (30/) to an Address op the House of Commons, dated 1st March, 1882, For copies of all Timber Licenses and Mining Licenses issued fc cutting timber or mining within the disputed territory west of the meridian of the east end of Hunter's Island ; also copies of all leases or grants of mill sites or other water privileges ; also statement of the number of acres granted in each year, in the same territories, to date. By command. ^/.V J. A. MOUSSEAU, "'^' Department of the Secretary of State, •' Secretary of State. jMl'v^l ,4 14th March, 1882. ..^^^ ^islnoU ,&i*.u'a .iunH ^mi^.iA »;iii^.«t.3lC.-8YAPi ■ [In accordance with the recoinaiendation of the Joint Committee on Printing, only the Schedule to the above Return is printed. 1 Schedule to the foregoing Return, shewing Number op Acres Granted under Lease, with the YiiAR in which Granted. 1875 Fuller »fe Co 38,400 Acres. 1876 Stephen H. Fowler , 64,000 " 1878 \V. J. Macaulay 48,000 " 1880 W. J. Macaular 16,000 " SALE. 1881 Keewatin Lumbering and Manufaoturiog Company 296 I '.ill '!r. .-.r^tn-;! :j?r,!"t> .7;.ii> :;■.»■•: .n; A. ^'iJ^.'• '*■■' 30 «« 1881 Keewatin Lumbering and Manufacturing Company n [The above Return ia given in the form in which it was laid before the House of Commons. — G. £. L.] Resolution moved by Mr. J. £. Plumb in the House of Commons of Canada, 31st March, 1882, aid adopted 4th April, 1882.* That, in the opinion of this House, it is expedient that the western and nor^-^hem boundaries of the Province of Ontario should be tinally settled by a reference to, and an authoritative decision by either the Supreme Court of Canada or the Judicial Committee of the Privy Council in Great Britain, or by the Supreme Court in the first place, subject to a final submission to the Judicial Committee, as the Province of Ontario may choose ; that such decision should be obtained either on appeal in a friendly action brought for the purpose, or by reference to the said courts, or cither or both of them, by Her Majesty, undbr the powers conferred upon her by the Imperial and Canadian Parlia- ments, as the Government of Oiitario may prefer ; and that the said reference should be based on the evidence collected and printed, with any additional documentary evidence, if such there is, and that pending the reference the administration of the lands shall be en- trusted to a Joint Commission appointed by the Governments of Canada and Ontario. The resolution was carried on the following division: — Yeas — Messieurs Abbott, A.i.!ison, A myot, Arkell, Baker, Beaty, Beauchesne, Beohard, Benoit, Bergeron, Bergin, Bill, 3olduc, Boultbee, Bourassa, Bourbeau, Bowell, Brecken, Bunster, Bunting, Cameron (Victoria), Carling, Caron, Cimon (Charlevoix), Cimon (Chi- coutimi), Colby, Costigan, Coughlin, Coupal, Coursol, Cuthbert, Dawson, Desaulniers, * Journals Hu. of Com., 1882. 1882. ACT, 1880, FOR ADMIN. OF GRIM. JUSTICE IN DISPUTED TERRITORY, CONTINUED. 491 [arch, 1882, ing timber or of Hunters vilegos ; also ss, to date. 'J, "i' Ty of State. Printing, only ANTED UNDER Desjardins, Domville, Drew, Dugas, Dumont, Elliott, Farrow, Ferguson, Fiset, Fitzsim, Dions, Fortin, Fulton, Gault, Gigault, Girouard (Jacques Cartier), Girouard (Kent), Grandbois, Guillet, Haggart, Hay, Hesson, Homer, Hooper, Hurteau, Ives, Kaulbacb, Kilvert, Kirkpatrick, Krantz, Landry, Sir Hector Langevin, Lantier, Longley, Mac- donald (King's), McDonald (Cape Breton), McMillan, McCallum, McCuaig, McDougall, McGreevey, McLennan, McQaade, McRory, Malouin, Manson, Massue, Merner, Methot- Montplaiser, Mousseau, O'Connor, Ogden, Olivier, Orton, Ouimet, Pinsonneault, Plumb, Pope (Compton), Poupore, Richey, Rinfret, Roleau, Routhier, Royal, Ryan (Montreal), Rykert, Shaw, Sproule, Stephenson, Strange, Tass6, Sir Leonard Tilley, Tyrwhitt, Valin, Vallee, Vanassee, Wade, Wallace (Norfolk), Wallace (York), White (Cardwell), White (Hastings), Williams, Wright— 116. Nay3 — Messieurs Anglin, Bain, Blake, Borden, Brown, Burpee (St. John), Burpee (Sunbury), Cameron (Huron), Sir Richard Cartwright, Casey, Casgrain, Charlton, Cock- burn, Crouter, Fleming, Geoffrion, Gillies, Gilmor, Gunn, Guthrie, Hoi ton, Huntington, Irvine, Killam, King, Laurier, McDonald (Victoria, N. S.), Macdonell (Lanark), Mclsaac, Mills, Paterson (Brant), Robertson (Shelburne), Rogers, Ross (Middlesex), Rymal, Skinner, Smith, Snowball, Sutherland, Thompson, Trow, Weldon, Wheler, Wiser — 44. 38,400 Acres. 64,000 48,000 16,000 « o()>;- i^-*i An Act to amend and further to continue in force, for a limited time, the Act Forty-third Victoria, Chapter Thirty-six.* 296 " :,/■. ■■■•\r .^ ' 30 " inons.— G. E. L.] a OF Canada, and nor*;hem mce to, and an cial Committee t place, subject Lo may choose ; on brought for them, by Her .nadian Parlia- enoe should be ntary evidence, nds shall be en- ,nd Ontario. lesne, Beohard, jwell, Brecken, c), Cimon (Chi- 1, DesaulnierB, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : — .-•'.'--- • .. - ; - - • > • • •■ • > . - • *- -* 1. The Act passed in the forty-third year of Her Majesty's reign, chapter thirty-six, and intituled " An Act respecting the Administration of Criminal Justice in the Terri- tory in dispute between the Governments of the Province of Ontario and of the Dominion of Canada," is hereby amended by inserting, after the name " Ontario " in the third line of the second section thereof, the words " or in Manitoba," and by inserting in the sixth line of the said section the words "or in an undisputed part of Manitoba," and as so amended shall continue in force until the end of the now next ensuing session of Parliament. * Stats. Can., 45 Vic, cap. 31. Assented to 17th Ma^, 1882. [This is the Act referred to in note *, p. 413, ante, and which it was eventually found possible to insert in this place.— G. £. L.] ;.£■ »-'.,: a ,\. • .:...; ll l, •CJ. ... ;:'! \ 1 ,, . : .i, iroet.:. e ,{:■ ...•;;.,; ■' A .< iH'-'H ■ k V •- Ul (": •■%.-■■ " Kl V. ,'-•■■ ■'•• :_"Il • _-.i , ■-. '.'": eiz'.f 1 • t .-. -vn.' ,, /.'•A. •0 „ T.WA' ;.• ZK. :!r> 3^ .'-^ -i-'J :'.;i:'t:>jH ,Ji ^^i^ v.-< '■-. .i:^;iv' /iv.'":/-;!v^ •» '•:.» .,-. ■■ ■ •;-!'. :i!..!•' , ..■i'j"'".. ■■■\: :■-'- i:. jViH-tU'IC ■' ', •■■'!■' -,^r. . •L':v- ,!;;..Li;-i.c Iaj h- v.'-'U- -.-r^^'-r ■ ■ l> "'c \.nfi:i\i ...;.<.::('' ,!S.-!i:'' ;^i.;i; Vv '"•,{*••;(.: .V ■■';'■ -j,''./ .\-- r,:,'d ,-\>>.j-:-ytjH, ,•;:■-<.•*-..■> ,'o;;-:,'^-'-' "j/r^voU ,j;' W»)i:rr' - nj;:-' '^ ■<■■ \i :f-l'y^ U.';u.»;><,;,v m Ow^vt X a a 'Pi: I -■mi>n:mn^ :a\^t :i':o y}Km.KS{.H T^S}f.A\J.nA^ ^io t/io .i^T?i Vo ,t A r>0ff-j;rp.-C5 .q^?? ^.IIT .ooO ii 'A ;t f'jiyo-'J ^!^c I'j in".:-'fi'>fcr.iiaL [xh'jNiiUi i\itd a/i.i 5*«i:b/irf.x--! lol — ?4'j ,.i«r. ,,TIJ of^D £^ aW.l.'^.'Jx;'.'^ '.i>\i^ ';'-'T rivi.! V G,!>.f» •:.<'> I'T-'r Oil cs^x! tnaq ' " ■•'•'■;■"*: ^^■V>-t.A :V-j;t1 ' !,./ I'^ •■■(;•?' r?: L ;«f «*-, I ,■ ,A ■^..;V)..' -7.'.. i;-j,.;(i ii^iha .<.-i' 1 t-ii^ .' ^ ,*'.'^^; r , V i!.T a'iroqyH, .■^>ii(.a,.- .'.lit, iwi ':>ii-; uu" i.>wi!*h,- a: hm it ai. iiU''.> .1'. ..'JVC'.:'!!'''' ,'l •^ I'f, 'Jlfli --1] .A, .<.•;.■;*. .f'.'.'v.v vojn-.! .r. ..-rV (.r. axj ~.a .'■,if 5f".l' ,'*t'.l' • .1 A' ,,»'l -*l ,-.♦;- ■rjv i - .-,i.i^.>f-'ij;i;./j ?>-si ?>-7Ss;' '-7^•■^ ^.: ■.••■5 ■.■A li .-}'.: v.\ -I v.. ■ k^v^'V <;~; ["■■.. '.rt 0(1 -i '-';<)<:■, ;u .'JfL ■Jil'i iV t.i :/t,"..;,t, • ! ■ !- I 5-:. I, \ :->}.iuuvi.r ■';: • 'r.}t ffh ■ (■--(iii.;iji(rfif>^ !.; ;•.! .'ji '■I'f li- .^Mi" '••».i;rr>-4: ■i,';iiv .•: -'.'i br.«-?;i GT--'(?;.'i;i.''rio* (; '"/ .aao ..DiV >|i br. ■jV Zl \\ INDEX. ! I L^iO fcTO [ .0»0 jri r vA) £1 t;.i, I iq \ii :.!;:■£ > i» PHa .i ?M'kiJ \ OTS OF PARLIAMENT BEARING ON THE QUESTIONS :— U Geo. III., cap. 83— Quebec Act of 1774. 43 Geo. III., cap. 138 — For extending the Imperial Jurisdiction of the CouHs of Justice in the Provinces ut Upper and Lower Canada to the trial and punishment of persons guilty of crimes and offences within certain parts of North America, adjoining to the said Provinces. 1 and 2 Geo. IV., cap. 66 — For regulating the Fur Trade and establishing a Criminal and Civil Jurisdiction within certain parts of North America. 8 and 4 William IV., c. 41 — For the better Ad'-Jnistration 'of Justice in His Majesty's Privy Council. 22 and 23 Vic, cap. 26 — To make further provision for the Imperial regulation of the trade with the Indians, and for the Administration of Justice in the North- western Territories of America. British Columbia Act, 1866. British North America Act, 1867, 30 and 31 Vic, c. 3. Rupert's Land Act, 1868, 31 and 32 Vic, c. 105. 34 and 35 Vic, c. 28 — Respecting the establishment of Provinces in the Dominion of Canada. 32 and 33 Vic, cap. 3 (Dominion) — For the temporary government of Rupert's Land and the North- West Territory when imited with Canada. Manitoba Act, 1870 (Dominion), 32 and 33 Vic, c 3. 39 ^'"ic, cap. 21 (Dominion) — Respecting the North- West Territories and to create a separate Territory out of part thereof. 42 Vic, cap. 2 (Dominion) — To provide for the payment of an additional grant to the Province of Manitoba. 43 Vic, cap. 36 (Dominion) — Respecting the Administration of Criminal Justice in the Territory in dispute between the Governments of the Province of Ontario and of the Dominion of Canada. 44 Vic, cap. 14 (Dominion) — To provide for the extension of the boundaries of the Province of Manitoba. 44 Vic, cap. 15 (Dominion) — To extend for a limited period, 43 Vic, c 36. 45 Vic, cap. 31 — To extend for a limited period, 43 Vic, cap. 36. 494 INDEX. ADDRESSES :— PAGE. The Canadian Parliament to Her Majesty the Queen on the subject of the License of Trade to the Hudson's Bay Company, 13th August, 1868 .... 68 Amendments to, negatived, 13th August, 1858 69 '''''■ Correspondence respecting above Addresses of, 16th August, 1858 71 Order in Council, as to same, 9ih September, 1858 71 The same to Her Majesty on the subject of litigation of the validity of the Hudson's Bay Company's Charter, 29th April, 1859 87 The st.me to the Governor-General, for copies of Maps famished the Govern- ment by the Hudson's Bay Company, 9th December, 1867 128 The same to Her Majesty, for acquisition of the North- West Territory, Decem- ber, 1867 128 The same to Her Mejesty in acceptance of the transfer of the Hudson's Bay Company's Territory, May 29th and 31st, 1869 183 The Legislative Assembly of Ontario to the Lieutenant-Governor, praying for copies of certain papers touching the boundaries, 20th January, 1873 .... 240 The Legislative Assembly of Manitoba to Governor-General, praying the Privy Council of Canada to take steps for the immediate enlargement of the Province, Uth February, 1880 385 ALGOMA :— p. 1^ '»>; ■• Boundaries of, proclaimed, 27th August, 1859 125 Petition for the establishment of a Division Court at Rat Portage 401 Order in Council (Ontario) creating Division Court, 28th May, 1880 402 ARBITRATORS :— Appointment of 249-266 Statement of the case of Ontario 267 "I Statement of the case of the Dominion 277 Supplement to the statement of Dominion case 298 Report of Proceedings before Arbitrators 304 Argument of the Attorney-General before 306 Argument of Mr. Hodgins, Q.C 327 Argument of Mr. MacMahon, Q.C 338 Argument of Mr. Monk 363 The Attorney-General of Ontario in reply 369 ARBITRATION :_ Resolution of the Legislative Assembly of Ontario respecting reference to, March 23rd, 1874 242 Agreement for submission to, and Order in Council, Nov. 10th and 12th, 1874 . . 247 Orders in Council in final approval of Arbitrators and Arbitration, July 31st, 1878 266 Information and documents furnished by the Hudson's Bay Company for other investigations for purposes or 251, 254, 257, 259 '."v - PAGE. t of the 58 ... . 68 69 J58 71 71 Y of the 87 Govern- 128 , Decem- 128 on'a Bay 183 ftying for 873 ... . 240 lie Privy it of the 385 125 401 402 ... 249 -266 267 277 298 304 306 327 338 363 369 •ence to, 242 ,1874.. 247 1st, 1878 266 or othei 54, 257 259 INDEX. 495 ATTORNEY-GENERAL OF ONTARIO :— ,T . . PAGE. HS report recommending that all leases, and licenses, and applications therefor, 1 -^ shall be subject to the stipulations contained in the memorandum agreed ,-'»•■"■-' •- -^ -■ August 3rd, 1878 370 Correspondence respecting legislation to give effect to, December 31st, 1878 371, 374, 377 ■pRITISH COLUMBIA:— ' ; British Columbia Act, August 6th, 1866 122 Act establishing Mining Courts, 1872 381 BRITISH NORTH AMERICA ACT:— , ,, -. . . . > > -. ;.- Extracts from, March 29th, 1867 ' 123 BROWN, HON. GEORGE:— . . , . ' .,;. His report respecting his mission to England on the subject of opening up to settlement the North-West Territories, January 26th, 1865 105 p AN ADI AN PARLIAMENT:— j Address from, to Her Majesty the Queen, etc., August 13th, 1858 '. . 68 Amendments moved to by Mr. Dawson and negatived, August 13th, 1858. ... 69 Address from, to Her Majesty, respecting the litigation of the question of the validity of the Hudson's Bay Company's Charter, etc., April 29th, 1859. . 87 Resolutions of, in acceptance of the transfer of the Hudson's Bay Company's TerritoiJes, May 28th, 1869 182 Address to the Queen in ac* T^i^nce, May 31st, 1869 183 Resolution of House of Commons, April 4th, 1882 490 496 INDEX. CARTIER, SIR GEORGE :— „• . i .,-;:,' kj;n ,. . PAQB. His appointmert 63- Order in Council, in connection with Mr. McDougall, as Delcj^dtes to London re Treaty with Hudson's Bay Company, October Ist, 18P.8 142 Memorandum calling attei.cion to Rupert's Land Act and the British North America Act, and Order in Council, October 1st, 1868 142, 1 ±3 His agreement with the Governor of the Hudson's Bay Company, March 22nd 29th, 1869 177 Report, May 8th, 1869 180 CAUCHON, HON. JOSEPH :— His report as Commissioner of Crown Lands in 1857 6 CHARTER TO H. B. COMPANY 1 COMMISSIONERS :— Their appointment by Canada and Ontario, July 28th, September i9th and 21st, 1871 207, 208, 209 Instructions to Dominion Commissioner, March 11th, 1872 218 Mr. McDougall's letter concerning his action, March 9th, 1872 216 CRIMINAL JUSTICE :— Act for the administration of, in the disputed territory, May 7th, 1880 400 Act continuing same, March 21st, 1881 413 Act continuing same, May 17th, 1882 491 CROOKS, HON. A. :— His report to the Lieutenant-Governor on the appointment of Arbitrators, and naming the Hon. W. B. Richards, November lOfch, 1874 246 CROWN LANDS (CANADA), COMMISSIONER OF:— Memorandum of Hon. J. Cauchon, 1 857 6 Memorandum of, regarding the survey of the section of country between Superior and Dog Lakes, with memorandum of cost of bridging, June 14th, 1867. . 125 DAWSON, WILLIAM McD. :— Evidence of, before Committee of the Legislative Assembly of Canada, 8th June, 1857 40 His amendments moved to proposed Address to Her Majesty respecting the Hudson's Bay Company 69 DENNIS, COL. :— His report on the question of the boundary between Ontario and the North- West, October Ist, 1871 209 INDEX. 497 DEAPER, CHIEF JUSTICE :— .. , i-vvivi/^.r PAOE. Appointment as Special Agent to England, instructions, etc., February 16th, 1857 3-5 ' - Letter to Colonial Secretary, May 6th, 1857 31 " His memorandum, May 6th, 1857 32 ^ Paper delivered by him to the House of Commons Committee, May 28th, 1857 37 Extract from his communication to the Provincial Secretary in June, 1857, as ^ to bonndaries, July 18tb, 1857 47 His final lort respecting his mission to England, 185T . . 51 HINCKS, SIR FRANCIS :— ' ' His lecture on the nortlierly and westerly boundaries of Ontario, and the award made thereon, delivered in Toronto on 6th May, 1881 414 HUDSON'S BAY COMPANY:— Correspondence respecting the affairs of, December 4th, 1856 • 1 Order in Council respecting, January 17th, 1857 2 Governor of the Company to the Colonial Secretary, on the position of the Company in 1857, July 18th, 1857 47, 48 Correspondence respecting the proposed renewal of the Company's license, Janu- ary 20th, 1858 GO Address to Her Majesty from Canadian Parliament on approaching termina- tion of the License of Trade of the Company and its territory, August 13th, 1858 Minute of Council respecting the territory of the Company, September 9tli, 1858 Letter from the Deputy-Governor of the Company, October 12th, 1858 .... Deputy-Governor of the Company to Colonial Secretary, on the subject of ■the above letter, N'ovember 10th, 1858 74 Governor of the Company to the Colonial Secretary, on the subject of the renewal of license, February 8th, 1859 77 Governor of the Company to the Colonial Secretary, declining the proposal of the two years' lease, March 15th, 1859 84 Objections of the Company to the proposed trans-continental road and tele- graph, April 16th, 1862 90 Governor of the Company to the Colonial Secretary, enclosing correspondence ^ on the subject of the proposed road and telegraph, and setting out the objections of the Company, May 19th, 1862 92 Negotiations with Imperial Government, November 11th, 1864 102 Proposed sale of territory to a company of capitalists, correspondence respecting, January 18th, March 6th, 1866 114, 117 Secretary of the Company to Mr. McEwen, on the subject of the sale of part of their territory, January 24th, 1866 1 1 •"> Governor of the Company to the Colonial Secretary, enclosing papers on above subjects, February 6th, 1866 1 1«> 32 68 71 72 498 INDEX. HUDSON'S BAY COMPANY -.—Continued. PAGI Governor of the Company to Under-Secretary, respecting the arrangement for transferring their rights to Canada, March Ist, 1866 116 Governor of the Company to Under-Secretary, referring to the content p of a United States pamphlet recently sent him, July 17th, 1866 120 Governor of the Company to Colonial Secretary, reminding him of the Com- pany's rights, and commei ''ng on proceedings in the * , -".dir ..rliament, January 15th, 1868 131 Position of the Company on proposed transfer to Oaxiada, 18c 132 Proposed terms of surrender, 1868 , . . 1 43 The Company's proposed terms of surrender, 1868 146 The Colonial Secretary's proposed terms, 1868 147 Protest against construction of Red River road, 186S 148 Reply to letter of Canadian Delegates to Colonial Secretary, January 16th, 1869 151 Company's proposed terms of transfer of territory, Jti. lary 13th, 1869 152 Canadian Delegates in review of Company's proposed terms, February 8th, 1869 155 Position of the Cotooany in the matter, 1869 159 Statement of French title to 161 Nature of previous proposals, 1869 163 Counter-proposals of Canadian Delegates, Februaiy, 1*^69 167, 168 New terms of surrender, March, 1869 170 Resolutions of the Governor and Committee of the Company transmitted to Canadian Delegates, March 12th, 1869 173 Negotiations between Canadian Delegates and Company, 1869 174 Provisional agreement between the Delegates and the Company, March 22nd, 1869 176 Further agreement between Sir G. Cartier and the Governor of the Company, March 29th, 1869 177 Acceptance of terms, and conch' sion of negotiations for surrender, April 10th, 1869 178, 179 Deed of surrender, 1869 185 Canadian proposal for postponement of transfer in consequence oi. disturb- ances in the Red River Settlement, December 16th 1869 195 Correspondence as to same, December 28th, 1869 196 Terms of transfer, June 23rd, 1870 201 ^ L' SK; INDIAN TERRITORIES :— Memoranduui of the Hon. Joseph Cauchon, 1857 6 Act for the Preservation of Peace in, 1821 78 J USTICE, ADMINISTRATION OF :— Petition for establishment of a Division Court at Rat Portage, 1880 401 Order in Council creating (Ontario), May 28th, 1880 402 INDEX. \\ 4M ' :' "/■ V( PAOI. gement 116 \p of a 120 10 Com- iament, 131 132 . t . • * 143 146 147 148 th, 1869 151 152 th, 1869 155 159 161 163 ...167, 168 170 litted to 173 174 h 22nd, 176 )mpany, 177 fil 10th, ...178, 179 185 disturb- 195 196 201 6 . -78 . 401 . 402 JUSTICE, ADMINISTRATION OF -.—Continued. I'AOI. Mr. Lyon's letters respecting the jurisdiction, April 15th, 1880, and Sept. 30th, 1881 395-431 Under-Secretary of State to the Petitioners of Rat Portage. April 1 at, 1881 . . 4lS Act respecting the administration of, in the territory in dispute between the Government of Ontario and the Dominion, May 7th, 1880 400 Act continuing same (March 2lBt, 1881.) 413 , ,. do. do. (May 17th, 1882.) 491 Correspondence respecting, March 13th, 16th, 17th, 1880 387, 392 Disallowance of Act, March 22nd, 1880 394 TT'EEWATIN:— Act creating the I'rovince of, April 1 2th, 1876 260 T AIRD, HON. MR. :— His report on conventional boundaries and system of sale of lands in the dis- puted territory, and suggesting appointment of Ontario Commissioner to meet him on the subject, June 2nd, 1874 242 LAKE SUPERIOR :— Protection of frontier lands above Lake Superior S Exploration of the country between the Lake and the Red River, under Mr. Gladraan, 1857 49 Telegraphic and postal communication from Lake to New Westminister pro- posed, 1863 97-8-9 Patents or Mining Licenses at the head of, in 1871 213 LEGISLATIVE ASSEMBLY OP ONTARIO :~ Resolution approving of the reference of the question of the western boundary of Ontario to arbitration, or to Privy Council, March 23, 1874 242 Resolutions re boundaries, March 3rd, 1880 386-7 Resolutions, March 3rd, 1 881 406 Amendments moved to the third paragraph of the Speech, January 26th, 1882. 46(1-7 Resolutions respecting the boundary question March 9th, 1882 485 Mr. Meredith's amendment lost on division, March 9th, 1882 487 Resolutions carried, March 9th, 1882 489 LIEUTENANT-GOVERNOR :— Extract from his Speech from the Throne to the Legislative Assembly of Ontario in 1869, in re boundary line, November 3rd 186 His communication to the Secretary of State, Canada, urging settlement of i boundary line, and the appointment of Commissioners, July 17th, 1871 .. 206 Reply, July 20th 1871 207 500 INDEX. LlKUTENANT-GOVERNOK:-Con^:v ' ■'■u<,nk.t\^ > , PA(I«. Extract from Speech from the Throne in January, 1873 240 ?•! Extract from Speech from the TLrono in the first Session of 1874 242 Extract from Speech from the Throne in the second Session of 1874 248 •. Extract from Speech from the Throne in 1875-6 260 Extract from Speech from the Throne in 1877 252 - ' Extract from Speech from the Throne in 1878 259 Extract from Speeah from the Throne in 1879 372 Extraot from Speech from the Throne in 1880 37^ ' Extract from Speech from the Throne in 1881 403 Despatch of, to the Secretary of State, respecting the question of the disputed territory and its conditions, December 31st, 1881 461 Extract from Speech from the Throne in 1882 466 . . Despatch of, to Secretary of State, in answer to terms of settlement proposed by the Dominion Government, February 18th, 1882 472 MrDOUGALL, HON. WILLIAM:— . - . His report on the subject of the negotiations with the Imperial Government for the transfer of Rupert's Land and the North-West Territory to Canada, December 28th, 1867 130 His appointment wich Sir George Cartier as delegate to London in 1868, re the Treaty with the Hudson's Bay Company, October Ist, 1868 142 Mf-morandum accepting Commission, October Ist, 1868 142 Report, May 8th, 1869 180 His appointment as Ontario Commissioner to determine the boundary line between Ontario and the North-West, and correspondence, September 19th and 20th, 1871 208, 209 His action, March 9th, 1872 216 Prt'lirainaiy memorandum of, on the subject of the Western Boundaryj March 1872 221 MAODONALD, HON. JOHN SANDFIELD :— Mf-morandum of, on the necessity of settling the true boundary separating On- tario from the Nortli-West Territory, and the appointment of a Commis- sioner for the purpose, July 14th, 1871 205 MAN! ; OB A, PROVINCE OF :— Ac. to provide for the government of the Province of Manitoba May 1 2th, 1870 198 Pill posed Imperial legislation for confirmation of Act, and authorizing the estab- lishment of th« limits of the Provinces, December 29th, 1870 203 Act for the definition of the boundaries of February 28th, 1877 252 Address of the Legislature praying for enlargement of boundary, February 14th, 1880 385 An Act of the Legislature to provide for the extension of the boundary ; cor- respondence, March 4th, 1881 407, 408 >>< N' IMD£X. 501 MANITOBA, PROVINCE OP .—Conlin'Md. PAOI. Proteat of Ontario against proi)osed mode of extension of limits of, and oorrespondenoe, March IBth, 1881 40d, 410 A Proceedings in the Parliament of Canada on the third mading of the Bill, ,», March 18th, 1881 410 An Act (Canada) to provide for the extension of the boundaries of, March 2l8t, 1881 412 MINING LICENSES:— At the head of Lake Superior, in 1871 213 Correspondence, 1871 214 Report of Minister of Justice, March 1 1th, 1872 218 MOUSSEAU, HON. J. A. :— His despatch on the N. and W. Boundaries, January 27th, 1882 468-72 \T EGOTIATIONS :— ■*•* Between Imperial Government and the H. B. Company, 1864 102, 107-9 Delegation to England in 1865, Order in Council recommending, March 24th. . Ill Report, July 12th, 1865 112 To England in 1868 (telegrams), September 141 Appointment, and Order in Couuoil on, October lat, 1868, March 1869 . . 142, 175, 177 Their Memorandum, and Order in Council on, October Ist, 1868 142 Correspondence, December, 1868, January 1869, March 1869 149, 155, 173 Reviewing Company's proposed terms of transfer, 1869 155 Counter proposals of (correspondence), February 22nd, 1869 167 Agreements, March 22nd, 1869 176 Respecting proposed terms of surrender, 1869 177 Conclusions of the negotiations for surrender, 1869 179 Report of Delegates on, May 8th, 1869 180 Resolution of Canadian Parliament, May 28th, 1869 182 Address of Canadian Parliament in acceptance. May 31st, 1869 183 NORTH-WEST TERRITORIES :— Hon. Jos. Cauohon's remarks on — 1857 6 Opening up of, correspondence, August 16, 1865 114 Transfer to Canada, in 1868 130 Nature of previous proposals, 1869 16S New terms of surrender, March 9, 1869 170 Accaptance of terms of surrender, April 10, 1869 178-9 Act for temporary government of — June 22, 1869 185 Imperial Order in Council for the admission of into the Dominion, June 23, 1870 200 Col. Dennis' report on the boundary between Ontario and — October 1, 1870 . . 209 Act respecting and creating a separate territory out of part thereof, April 12, 1876 250 502 INDF.X. ORDERS IN COUNCIL (Imperial) :— 1. Uniting Rupert's Land and North-WeHt to the Dominion, June 23rd, 1870. 200 2. Annexing all Britiflh Territories in North America not already included i)i the Dominion (excepting Newfoundland) to the Doioinion, July 31st, 18b0. 402 CANADA:— , ; 1. Respecting claims of Hudson's Bay Company and Boundaries of Canada, January 17th, 1857 2 2. Hespecting appointment of special agent to England, and his instructions, February 16th, 1857 3 3. Respecting Territory of Hudson's Bay Company, September 4, 1858 71 4. On the subject of the proposed Trans-Continental Road and TeUtgraph, April 24th, 1862 91 5. That $50,000 be placed in estimates towards securing Telegraphic and Postal communication westward, February 9th, 1863 97 6. Respecting proposal of Atlantic and Pacific Transit and Telegraph Company, February 18th, 1864 100 7. On the subject of pending negotiations for the cession to the Crown of the rights of Hudson's Bay Company, November 11th, 1864 102 8. On the appointment of the Canadian Ministerial Delegation to England in 18G5, March 24th, 1865 Ill 9. On the opening up of the North-West Territories to settlement, March 27th, 1865 112 10. Protesting against the contemplated sale of a portion of the Hudson's Bay Company's Territory, June 22nd, 1866 118 1 1 . Respecting the construction of a road from Thunier Bay to Dog Lake, June 18th, 1867 126 12. Respecting the transfer of Rupert's Land and the North- West Territories to Canada, December 28th, 1867 129 13. For the acquisition by Canada of Rupert's Land, and appointing Delegates to England, October 1st, 1868 142 14. That the Delegates be authorized to arrange for the admission of the North- West Territories into the union, with or without Rupert's Land, October 1st, 1868 143 15. On report of Canadian Delegates, May 14th, 1869 181 16. On subject of disturbance in Red River Settlement, December 16th, 1869. 193 17. On application of Ontario Government re ar'^ointment of Commissioners, July 28th, 1871 207 18. re Patents and Mining Licenses about the head of Lake Superior, Novem- ber 28th, 1871 213 19. That copy of draft instructions be sent to Ontario Government, March 12th, 1872 219 20. On despatch of Lieutenant-Governor of Ontario, re location of Boundary line, April 9th, 1872 228 INUKX. A()3 CANADA:— ^'«m<»nM«t/. . ^ PAOI. 21. re Land aud Mining Liconms, May lOth, 1862 232 23. r« Subject of Boundarien ; establishiuunt of Criiuiaal and Civil Juriadiction, etc., Novmnber 7th, 1872 238 23. Approving report of Ministor of Interior re Conventional Boundaries, etc., Juno 3rd, 1874 243 24. Approving of provimonal arrangements between MeHsra Laird a d P trdee, July 8th, 1874 245 25. Concurring in propouition of Ontario Goveruinont to determine the boun- darioH by meauH of reference, November 12th, 1874 .... 247 26. Approving of Momoranilum of Minister of Interior reapeciiiig boundaries and ratification of Iod ;.s, April 29th, 1878 262 27. Approving of the appointment of Arbitratorsand Referees, July Slat, 1878 266 28. On the subject of disallowing Ontario Act respecting the Adrainiati-ation of Justice in the Northerly and Westerly parts of Ontario, February 12th, 1880 384 29. Disallowing the Act, March 22nd, 1880 394 ONTARIO :— 1. Mr. McDougall'a appointment, September 19th, 1871 208 2. ri>, Tl)e granting of Patents pending settlement of Boundary Line, January 4th, 1872 214 3. re Claim to Boundary Line, March 25th, 1872 226 4. On the subject of the Boundary Line, April 19th, 1872 229 5. Appointment of Hon. R. W. Scott, May Slat, 1872 233 6. TIk; expenditures of moneys at Thunder Bay, June 26th, 1872 236 7. Approving of provisional agreement, July 9th, 1874 245 8. Approving of the report of Hon. A.. Crooks, November 25th, 1874 249 9. Ri'spectiug Leases and Licenses under Memorandum of Messrs. Laird and Pardee, May 9th, 1878 264 10. Tlcspecting the appointment of Arbitrators, Fuly 31st, i878 266 11. Approving of Report of Attorney -General w th respect to a despatch of the Under-Secretary of State, March 15th, 1880 392 12. Establishing Division Courts in Thunder Bay, May 28th, 1880 402 PROVISIONAL BOUNDARY :— Memorandum of Agreement for, in respect of patents for land, March, 1872. . 224 Extension of to licenses, in 1778 262 Correspondence respecting. May 1st, 1878 262-4 PUBLIC WORKS :— An appropriation of $50,000 recommended by Canadian Government for Tele- graph and Postal Service towards British Columbia, February 9th, 1863. . 97 On Height of Land before Confederation, 1867 126 R ED RIVER SETTLEMENT:— PAOI. Instructions for Exploration of the country between the river and Lake Supe- rior, under Mr. Gladman, in 1867 49 Hudson's Bay Company's Protest against building the Red River road ; and ^ correspondence, December, 1868 148 Correspondence regarding Disturbances in, November, 1869 191 REPORTS:— . ^ ; 1. Of Chief Justice Draper (memorandum). May 6th, 1857 32 2. Of Mr. McD Dawson (before the Legislative Assembly of Canada, June 8th, 1857) 40 3. Of Chief Justice Draper (final) in 1857 51 4. Of Postmaster-General Foley, October 17th, 1862 94 5. Of Hon. George Brown, January 26th, 1865 105 6. Of the Canadian Delegates to England in 1865 112 7. Of the Minister of Public V/orks (Dominion), December 28th, 1867 130 8. Of the Canadian Delegates to England in 1869 180 9. Of the Minister of Justice, December 29th, 1870 203 10. Of Col. Dennis, October Ist, 1871 209 11. Of the Minister of Justice, May 1, 187? 231 12. Of Secretary of State, November 25th, io/2 239 13. Of the Minister of Interior, June 2, 1874 242 U. Of Hon. A. Crooks, November 10th, 1874 246 15. Of Minister of Interior (memorandum), April 24th, 1878 . . 262 16. Of the Attorney-General (Ontario), May 7th, 1878 263 17. Of the Minister of Justice, January 20th, 1880 378 18. Of the Attorney-General (Ontario), March 16th, 1880 388 19. Of the Minister of Justice, March 17th, 1880 392 20. Of the Attorney-General ntario), Novembei' 1st, 1881 432 RUPERT'S LAND:— Order in Council respecting transfer, December 28th, 1867 129 Transfer to Canada, correspondence in 1868 130-138 The Rupert's Land Act, 1868 139 Proposed terms of surrender, correspondence in 1868 143 Act for the temporary government of, 1869 185 Imp 'lial Order in Council for the admission of into the Dominion, June, 1870 200 THUNDER BAY :— Expenditure of moneys at ; correspondence, April and June, 1872. TREATIES :— St. Germain-en -Lay e, in 1632. Ryswick, Utrecht, Paris, " 1763. 231-235 " 1697. " 1713. / 7 PAOI. jake Supe- 49 road; and 148 191 • - . ., U ^ 32 [ada, June 40 51 94 105 112 i67 130 180 203 209 231 239 242 246 262 263 378 388 392 432 129 130-138 139 143 185 rune, 1870 200 • 231-235 .// , '-' »"