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Tous les autres exemplaires originaux sont film6s en commen^ant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbols — »► signifie "A SUIVRE ", le symbols V signifie "FIN ". Les cartes, planches, tableaux, etc., peuvent dtre film6s i des taux de n duction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul cliche, il est film6 6 partir de Tangle sup6rieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 6 1 \9 PP A REPORT on THE BOUNDARIES OF THE PROVINCE OF ONTARIO. BY DAVID MILLS, M.P. TORONTO: FEINTED BY HUNTER, iiOSE >rting thereon. In May last, with a view to enable the Government t<> pro|)08e a conven- tional line as a boundary, in case the Canadian Government were disposed to agree to an etinitable settlement, I placed in their hamla a general state- ment of the conclusions at which I had arrived from the investigations that, in HO short a period of time as six weeks, I had been abK' to make. I had reason to believe that further enquiry would contirm the conclusions then reached. Tliat conventional boundary was proposed, and 1 am nut aware that the Govenimont of Canada has either accepted or rejected tlio proposal ; and as the Government of Canada have sought to give to this Province boundaries more restricted than were ever before proposed, it waH all the nioro necessary that the Government of Ontario should have the lullest possibK' information upon the subject. I obtained what information I could from the library of Congress, and from the Department of the Secretary of State at Washington ; I also ex- amined, in the libi:ary of Parliament, at Ottawa, whatever seemed to have an important bearing u^. ju the subject, as well as some works in private libraries. There are a few Maps and other Documents referred tendix F.— Proclamation of the 7th of Octolwr, 1763 . .. 192 Appendix O. — Extracts from Captain Pitman's account of the Illinois settlements in 1768 198 Appendix H. — Extracts from Colonel Crogan's diary, «fec., showing the extent of the French settlements of the West 203 Appendix I. — Extiucts from the correspondence between Pitt and Choiseul relative to the boundaryljetween Canada and Louisi- ana. Also Dumas' suggestions Jis to the same boundary, which seem to have l)een the basis of Due de Choiseul's pro- positions 209 Appendix J. — Extracts. — Boundaries between Canada and Louisi- ana under the French 228 Apjieudix K. — Report of the Council of Marine on a north-west expedition %o explore and colonize the country, 1717 231 VI CONTENTH. l! Appendix L. — ExtractH from McKen/ie'H HiHtory of tlio Fin- Trade, and Carver's Travels 232 Ap|>endix M. — Kxtracts from Paris Documents, found in the N. Y. Historical Collection, relative to French explorations 242 Ap|)endix N. — Two letters of Sir (ieorgt- E. Cartier and the Hon. W. McDougall to Sir F. Rogei-s, of the 16th of January and the 8th of February, 1 8GU, respectively 247 Apjiendix O. — Corrcs|)ondonce of the Hudson's Hay Company ... 284 Appendix P. — Extracts from th(! letters of Bolingbroke, Prior, and De Torcy u|»on the construction of the 10th Article of the Treaty of Utrecht 319 Appendix Q.-- Lease from George the Fourth to the Hudson's Bay and North W.-st ( 'ompauies. :)tli December, 1821 ... 322 Api>endix R — Memorandum to the SeciH^tary of Statt^ for the Colonies, (Ith May, 18r)7, by Chief Jiistice Di'ai»er Paper relative totlie boundaries, 28th May, 1857, by Chief Justice Draper... 327 Apjwndix S. — Memoraiulum of the Commissioner of Crown Lands, 1857. Appendix B — in a])pendix No. 17, 1857 345 Appendix T. — Opinions of eminent lawyers upon the charter of the Hudson's Bay Company 401 11 MAPS. No. 1. — John Senox's map, A.i>. 1710. No. 2. — Map of N. America, by William Delisle. First Ueoj^rapher to the King, Amsterdam, a.d. 1739. No, 3.— Jeffery's map of the North part of North America, A.D. 1762. No. 4. — Peter Bell's map of the British Dominions in North America, according to the Treaty of 1763. Date a.d. 1772. No. 5. — Mr. D'Anville's map of North America, with the boundaries as laid down by the King in Council, &c. Date A.D. 1775. No. 6. — Governor Pownall's map of North America. Date a.d. 1776. No. 7.- Kitchen's map of North America, showing the boxindaries of Canada a,fter the Treaty of 1783. Dat«3 1794. No. 8. — Map of North America, showing the territories claimed by France in 1756, with the French forts marked. No. 9. — Map of the boundary line between the northern colonies and the Indians, established by the Treaty of Fort Stanwix, 1 768. No. 10. — Map of the French settlements in Illinois, by Thomas Hutchins, Captain in His Majesty's 60th Regiment. \m U^ REPORT ON THE BOUNDARIES or TUK T^ROVIJSrCE OF ONTiVRIOi gart L WESTERN BOUND Alt Y OF OvTARIO. Ditfereiiccs havini? arisen betvvcon th (Jov 'rnmer ( of On- tario and the Government ol' Canada, as to tb' boundaries betv of^,* the Province oi" Ontario and the Territories of Canadp, vfiich were formerly in the jwssession ol "The Company of Merchant A'h'enturers of Enj^land, tradin*,' in Hudson's IJay," I puri)ose to consider the boundaries in diKi)ute separately, as the law and the facts by which they must be determined ar'> quite distinct. The Western limit of Ontario is to be ascer- tained, and located by the proper construction of an Act ol' tlie Imperial Parliament, of Treaties with the United States, of Orders in Council, of Proclamations and lloyal Commissions interpreted by the aid of contemporaneous facts. The location of the Northern limit can be ascertained with an approximation to exactness, by the facts of history, by acts of State, and by well established principles of Public Law. It will not be necessary, in order to determine the location of the "Western boundary of Ontario, to state with any great degree of minuteness the limits of Canada, while in the posses- sion of France. Before its conquest by England, and its cession under the Treaty of Paris in 1703, the undisimted i>oss(!s,sions of France in North America may be stated, in general terms, to have been all that part of North America lying North of the St. Lawrence, the great Lakes and the lliver Illinois — except a small portion of Territory, about the trading posts of the Hudson's Bay Company, in the vicinity of Hudson's Bay— B 8 WESTERN BOUNDARY OF ONTARIO. Part I. and nearly the whole of the Western half of the ^ alley of the Mississippi. The French authorities denied the right of Eng- land or her Colonies to any territory w* st of the Alleghany Mountains, or north of the watershed of the St. Lawrence. At lirst, the French undertook to extend their possessions by force of arms. In this they failed. Subsequently guided by the good sense of Frontenac and Calliers, they sought to establish friendly relations with the Indians. The French settlers in North America gave but little attention to agricul- ture, being mostly engaged in the Fur Trade. Many allied themselves with the Indians, arid were governed by Indian usages. The Government of Canada, in order to prevent mis- chief, maintain peace, and preserve some of the elements of a Christian civilization, subjected these courenra des bois to its control in the most distant parts of its extensive Territory. No Canadian was sullerod to trade with the Indians, but by license from his Governor, and under such regulations as that license ordained. The Government divided the country into hunts, as it was divided amongst the Indians themselves. No license extended beyond the limits of a single hunt ; and the Canadian hunter strictly conformed to the practice of the tribe to whose hunt his license extended. He was their partner or companion in the chi^se, and their agent in the disposal of their furs. His license forbade him, under severe penalties, to trade or to hunt, on any account whatever, beyond the limits assigned him. In this way the French authorities, at a very early day, acquired a regular and exact knowledge of a very great extent of country. When the Governor had issued for any hunt as many licenses as its commerce would bear, it became necessary, as the number of French Canadian hunters and fur traders increased, to extend the sovereignty of France by new discoveries, and to make constantly fresh acquisitions of territory. It was in this way, as well as by the expeditions of La Salle, Tonti, Marquette, Joliet, Alouez and other explorers, that the authorities of France, in Canada, acquired a knowledge of all Part I. WESTERN BOUNDARY OF ONTARIO. ihe waters, portages, passes, and posts which they believed would enable them to establish their supremacy in North America. While the coureurs des bois were pursuing their own interests, they acquired, for the Government of Canada, a military knowledge of the ground ; and as their interests were identical with the interests of the various Indian Tribes, with whom they mingled, they enabled the Canadian Governor to make every trading post a fort, and put a garrison into it when he deemed it necessary. The policy of the French had been such as to secure the good will of the Indians ; and while a few Frenchmen spread themselves, unmolested, over a great portion of the continent, the English colonists could not safely travel far from their settlements into the interior, and the servants of the Hudson's Bay Company, for more than eighty years, never ventured away from the forts which the company had erected ux)on the shores of that Bav. '* * (Jovernor Pownall thus classifies the Indian tribes in the English and Frouch interest in 175G:— In the French interest: Nortliern Indians. Eastern Indians, Esquimeaux. St. John's. Micmacs. Penobscots. Norridh'walks. Abenakiius. St. Francis. Caughnawagas. Shawanese. Oswegatchie. Delewares, Shawenese, except ' a few upon the Suscjuehuna river. ; Western Indians. Siotix. Nadouesseries. Illinois. Tawigtwies. Pianknshawaes. Wawyactaes. PicqiH's. Kaskaskies, Creeks. { Assinipoh's. Adriondacks. Algi)ii()uins. Otiawiis. Hurons. Missasagues. Outogomies. Miscontinis, Hakis. Christeneaux. Alini])ogies. Nipisaenes. Southern Indians. Osages. Arkansawf. Choctaws. PaKsiniacs. Adages. Mohawks. Mehikanders. Cawtabas. Indians in the English interest : Cherokees. Chickasaws. The Five Nations. -Pownall on the Coloinea, vol, 2, p. 205. WESTERN BOUNDARY OF ONTARIO. Part I. At Detroit, Mackinaw, Green Bay, St. Josephs, and in the Illinois country, colonies were formed, and the country was taken possession of, in the name of the King of France. As eaily as 1682, La Salle explored the jvalley of the Mississippi, to the mouth of that river, and took formal possession of the country, which he desij^nated the country of Louisiana. * The wars in which France was soon after engaged upon the Continent of Europe, and the murder of La Salle, checked for a time, French colonization in North America. In 1688, a census of all the French upon this continent showed a population of only 11,249. The English colonists at that time, were at least twenty times as numerous. The coun- try of the Illinois, or, as it was then frequently called by the French, Upper Louisiana, seems to have been occupied, with- without interruption, by French Canadians, from the time of La Salle's first visit in 1679. On account of the hostility of th^ Iroquois, the earlier French explorers were cut off from Lakes Ontario and Erie, * " A process verbal " saj's Albach, " in the French Archives describes the ceremony with wliicli possession wa-s taken of the country, in the name of the French King. It thus procei'i'.s : " ' We lauded on the bank of the most Western Channel, about thiee leagues from its mouth. On the 7th, M. de la Salle went to reconnoitre the shores of the neigh- liouring sea, and M. de Tonti likewise examined the great middle channel. 'J'hey found these two outlets beautiful, large, and deej). On ilie 8th, we reiuscended the river, a little above its confluence with the sea to find a dry jjlace, beyond the reach of inundations. The elevation of the Nortli I'ole was here about twenty-seven degrees. Here we prepared a column and cross, and to the naid colvunn we affixed the arms of I'rance with this inscription : ' Loris i.k GkaM), ikii i>k Fuance kt de Navauke, UEONE, I.K Nki'vieme Avhil, 1082.' " ' The whole party under arms chanted the Te Deum, the Exaudiat, the Domine Sah-inn fqr Rci/um : and then after a salute of firearms, and crie.s of Vive h Rni, the column was erected by M. de la Salle, who standing near it said with a loud voice in Fieuch : 'In the name of the Most High, Mighty, Invincible and Victorious Prince, Louis the (Jreat, by the grace ot (}od. King of France and of Navarre, Fourteenth of that name, this the !lth day of April, 1(!82, I, in virtue of the Commission of his Ma- jesty which 1 hold in my hand, and which may be seen by all whom it may concern, have taken and do now take in the name of his Majesty, and of liis successors to the Crown, i)ossession of this country of Louisiana, the seas, harbours, ports, bays, adjacent straits, .and all the nations, peoples, provinces, cities, towns, \ villages, mines, minerals, fisheries, streams, and rivers within the extent of the said Louisiaima, from tlie mouth of the great river St. liOuis, otherwise called the Ohio, &c., and this witli consent of the i nations) with whom we have made alliance, as also along the river Coll)crt or Mississippi, and the rivers which discharge themselves therein, from its noiirrc hei/ond the roiiiitrii of the Sioux. * * * • As far as its m-)uth at tlie sea or Oulf of Mexico, and also the mouth of the river of Palms, u])on the assur- ance we have had from the natives of these countries, that we are the first F, F vlu >ner'a Miidi:jjippi Spark's Life of La Salle; and Parkman's Discovery of the Great West. m -I ,; WESTERN BOUNDARY OF ONTARIO. Part I. upon Lakes Superior and Nipigon, but also upon Lake of the Woods, Lake Winnipeg, the upper Missouri, the Red River of the north, and the Saskatchewan. Agriculture was neglected, except at Detroit, and at the colonies in Illinois. Forts were built at many other points to protect the traders, and to make secure the ascendancy of the French over the Indians. As early as 1721, Charlevois pre- dicted that the posts in Illinois would become the granary of Louisiana; and in 1746, there were sent from these colonies to New Orleans fifty tons of flour, besides a large quantity sup- plied to the Indians.* Two years later M. Vaudreuil enu- merated its productions, among which were flour, corn, bacon, hams, and various other edibles. I make these statements for the purpose of showing that small colonies of French were scattered over various parts of the continent, from the Gulf ol'St. Lawrence to the Mississippi, advantageously planted to secure the fur-trade, to form the nuclei of larger settlements, and to keep the English colonies conflned within their settled limits, south of the water shed of the St. Lawrence, and east of the Alleghany mountains. The policy of France in extending her possessions, ne- cessitated cautious watchfulness on the part of England and her colonies. The French rested their claim to the whole valley of the Mississippi upon the explorations of Marquette and La Salle, upon actual occupation, and upon the construc- iion they gave to the Treaties of Ryswick, Utrecht, and Aix-la- Chapelle. With characteristic negligence, the British plenipo- tentiaries, at Aix-la-Chapeile, had left their boundary along its whole line, determined only by the very vague agreement, that it should be, when peace was restored, what it had been before the war began. Previous to the war it had, for a quar- terof a century, been a matter of dispute. The Treaty simply postponed a settlement. In this doubtful condition of unde- termined limits of sovereignty, the two peoples made haste to * Imlay says that 800,000 pounds of flour— a quantity equal to 4,285 barrels- ported in 174G from Illinois to New Orleans. -was ex- Part I. WESTERN BOUNDARY OF ONTARIO. occupy as much of the disputed territory as possible, "without flagrantly violating their treaty obligations. The English claimed all the country lying west of their colonies upon the coast. They based their claim upon prior occupation of the coast, upon opposite constructions of treaties, and upon the cession to them of Indian rights by the Indians themselves. The charters granted by the kings to all the old colonies, ex- pressly extended their grants westward to the South Sea. These claims, though held in abeyance, were never relinquish- ed. The English colonies being fixed agricultural communi- ties, seeking to draw their wealth from the soil, rather than by profits upon trade with the Indians, were, for this reason, not likely to explore the country further than they were pre- pared to colonise it; yet they were not willing that their opportunity for indefinite expansion should be destroyed, by a loss of a large part of the territory covered by their charters. The French colonies were trading, military, and missionary establishments, and it is easy to understand why they became fa- miliar with the whole valley of the Mississippi, before the Eng- lish colonists passed the J\lleghanies. The country beyond the momitains was not, however, wholly unknown to the English. Explorations had been made by means of individual enter- prise, and efforts were put forward at a very early day to induce the English Government to colonise the valley of the Mississippi. Charles I., in 1630, granted to Sir Robert Heath all the continent between thirtv-one and thirtv-six degrees north latitude, from the Atlantic to the Pacific Ocean. In 1638, it was consigned to the Earl of Arundel. It was afterwards transferred to one Coxe.* It is related by his son, that in the prosecution of this claim, the valley of the Mississippi was ex- plored by Col. Wood and a Mr. Needham between 1654 and 1664; that in 1698, several persons went from New England nearly five hundred miles west of the Mississippi ; that Dr. Coxe • See Coxe's Memorial to King Wil)i»m, 1699. 8 WESTERN BOUNDARY OF ONTARIO. Pakt L had fitted out two vessels under Cnptain Barr, one of which as- cended the Mississippi, in 1608, a hundred mih^s; and that they designed to establish there a Huguenot settlement ; but the project was frustrated by the death of its chief promoter, Lord Lonsdale. The south pass over the Rocky Mountains is described. The country west of the Mississippi is said to be well suited for the use of camels, and the gold of California is noticed. The statements in this remarkable book, being without contemporary corroboration, were never relied on as the basis of any right to the Povince of Carolana.* As early as 1710, Alexander Spottswood, the Governor of Virginia, induced the Legislature of that province to make an appropiiation to defray the expenses of exploring the country beyond the Alleghanies, and to discover, if possible, i pass to the Ohio or Mississippi valley. He presented a memorial to the English Government in which he described the French plan of military occupation, and pointed, out with wonderful sagacity, the effort that would be made to keep the English east of the mountains.! The chief ground upon which the British claimed the coun- try west of the Alleghany mountains was, that they had pur- chased the country from the Iroquois nations. The Iroquois held the country by original possession, or by conquest, from the Ottawa to the Mississippi. They had left most of the tribes they conquered to manage their internal af- fairs as they chose, but they claimed, as conquerors, the right to dispose of the country. On this right thus acquired the Iroquois confederacy sold to the British Government what is now Western Virginia, Kentucky, and a large part of Illinois. In 1684 they made a deed of sale to the British authorities, at Albany, of the country from the Illinois river eastward into Ca- nada,$ and in 1726 they conveyed all their lands in trust to • Coxe's DeBcription of Carolana, called by the Spanish Florida, and by the French Louisiana, London, 1772. + See Graham's Colonial History. t Plain Facts : Philadelphia, 1781, pp. 22-3. Part I. WESTERN BOUNDARY OP ONTARIO. 9 England to be protected and defended by his Majesty to and for the use of the grantors and their heirs. =* f t * Pownall's Administration of the Colonies, vol- 1. t In 1073 Allouez ami Dablon found the Mianiis upon Lake Michi(,'an dreading a. visit from the New Y(/rk Confederates. In 1G80 La Salle found them upon the Illinoia, and Tonti was in the country when they drove the Illinoia beyond the Mis8issii>pi ; but through the influence of the French, confederacies were formed against them, and their title to such extended regions became very questionable. See Colden's History of the Iroquois ; Early History of Pennsylvania ; and Parkman'a Discovery of the Great West. t The French nation, having always been desirous to extend their dominion in Ame- rica, have lost no opportunity of encroaching upon their neighbours there. And al- though your Majesty and your royal ancestors have an uncontestable right as well by discovery as possession to the several British colonies in America ; yet the French Kings have at sundry times made grants thereof to their subjects. Such were the letters patent of Louis the 13th, in favour of the French West India Company, bearing date the 29th of April 1627 ; and those of Louis the 14th to Monsr. Croisot, sometime since surrendered to the United India Company of France, upon which they build their title to the Mississippi. Many other instances of like nature might be given, were they necessary to the present purpose ; but these two, which comprehend almost all your Majesty's dominions in America, may be sufficient to shew the unlimited incli- nation the French have to encroach upon your Majesty's territories in those parta. However, as the French are convinced that a charter without possession can never be allowed by the law of nations to change the property of the soil ; they have employ- ed another artifice, and without embarrassing themselves about former discoveries made by the subjects of other Princes, have built small forts at the heads of lakes and ri- vers along that vast tract of land from the entry of the River St. Lawrence to the embou- chure of the Mississippi into the Bay of Mexico ; not so much with the intention pro- bably to bound their own territories, as to secure what they have already got, till a more favourable juncture shall give them occasion to make further intrusions upon their neighbours. And if the late war in Europe, where the Allies made so successful efforts against the exorbitant power of France, had not found Louis the 14lh employ- ment at home, it is very likely the French would have been much more formidable than they now are in America. Notwithstanding the treaty of neutrality for those paiiis made in London in lC80,ought to have secured to Great Britain the several colonies whereof your Majesty's royal jjredecessors stood possessed at the time of making the said treaty, but the little regard tlie French have had to that treaty will evidently appear by the evasions and frivolous pretences set on foot by their Ministers during the debate in the year 1087 at London,where the lords Sunderland, MidiUeton and Godolphin were appointed by King James to confer with the then French Ambassadors, Monsr. de Bar- rillon and the Sieur Dusson de Bonrepeaux concerning the boundaries of the Hudson's Bay Company, and although that Conference terminated in the^aforesaid treaty of neutrality, together with a resolution of settling the boundaries between the English and French colonies in America by proper commissaries, which resolution has since been enforced by the 10th article of the Treaty of Utrecht ; yet the French could never be induced to enter sincerely upon so necessary a work, notwithstanding commissaries were lately appointed for that purpose, and met with others deputed by the French Court at Paria. -London Doc. 22 ; Sept. 8,1721 ; N. Y. Hist. Col. vol. 5. pp. 619-20. M 10 WESTERN BOUNDARY OF ONTARIO. Part I. In 1744 the Treaty of Lancaster, and in 1752 the Treaty of Logstown, were made, renewing the provisions of former trea- ties between England and the Iroquois, and large tracts of land were granted to various companies for purposes of colo- nization in the Valley of the Ohio. =* Upon the 10th of May 1744, Vaudreuil wrote to the Gov- ernment of France, pointing out the danger to the French pos- sessions of allowing the English to build trading houses among the Creeks. In the summer of 1749, Grallissoniere, who was then Governor of Canada, resolved to place in the valley of the Ohio, eviden- ces of the French possession of the country, sent Louis Cele- ron with a company of soldiers to bury lead plates, in the mounds, and at the mouths of rivers, on which were written the claims of the King of France to the river and land on both sidos, as a possession enjoyed by preceding kings, main- tained by their arms, and by treaties ; especially by the trea- ties of Eyswick, Utrecht, and Aix-la-Chapelle. When the English colonists crossed the mountains, the French were collecting military stores on Lake Erie. They erected a fort at Presqu'Isle in the north western part of Penn- sylvania, Fort Le Bceufon French Creek, Fort Venango at the junction of French Creek with Alleghany river, and nearly opp osite to Fort Venango, Fort Michault, and Fort Du Quesne at the junction of the Alleghany and Monongahela rivers. All these forts were erected in 1753 and 1754. Washington w^as sentbyDinwiddie, the Governor of Virginia, to the commander of the French forces in the wilderness of North-western Pennsylvania, to demand from them a statement of their object in invading the British possessions ; to ascertain their numbers on the Ohio ; how they were likely to be assisted from Canada; what forts they had erected, and where; how they were garrisoned ; and what had given occasion to the expedition.! These instructions were given in Oc- * Early History of Pennsylvania, App. 12. + Spark's Washintrton, Vol. 2. Plain Pacts, pp. 22-3. Tart I. WESTERN BOUNDARY OF ONTARIO. 11 tober, 1753. Durinpr Washington's absence, the Ohio Company, which had, live years before, received from the British Government, a large grant of land, west of the mountains, had taken measures to fortify and settle the point of land be- tween the Alleghany and Monongahela rivers upon which FortDu Quesne was soon after erected. But when "Washing- ton returned with the letter of St. Pierre, the commander of the French troops, it was evident that he was come to hold the country by force, and victory alone could restore it to the Eng- lish colonists. The Virginians prepared for active hostilities, but the legislatures of New York and Pennsylvania, when called upon ibr aid, began discussing the question whether the French had really invaded his Majesty's dominions.* In the spring of 1754, Contrecceur, who had become commandant of the French forces upon the Ohio, demanded the surrender, without delay, of the unfinished fort of the Ohio Company. He asked by what authority they had come to fortify them- selves within the dominion of the king, his master; he declared their action to be so contrary to the treaty of Aix-la-Chapelle, that he knew not to whom to impute such usurpation, as it was incontestible that the lands along the Beautiful (Ohio) ri- ver belonged to the King of France. Ensign Ward, w^ho, with a few troops, was then in charge of the fort, was ordered to retreat peacefully with his men, from the lands of the French King, and not to return. f Ward surrendered the fort, and re- tired up the Monongahela. The fort of the Ohio Company was completed by the French, and w^as, while in their possession, known as Fort Du Quesne. After this came the defeat and death of Jumonville, and the surrender of Fort Necessity by Washington.^ Both the governments of England and France expressed * Proud's History of Pennsylvania : New York Colonial Documents : London Do- cuments. t The letter of Contrecceur will be found in Craig's History of Pittsburg, also i the Pownall Manuscripts in the Library of Parliament, Canada. X Spark's Life of Washington, Vol. 2. 1 12 WESTERN BOUNDARY OF ONTARIO. Part I. their desire for peace. In January, 1755, France proposed to restore everything? to the state it was in before the last war, and to refer all disputes to the Commissioners at Paris. On the 22n(l, England replied that the we.stof North America must be left as it was at the treaty of Utrecht. On the Cth of Febru- ary, France answered that the claims formerly put Ibrward by England were untenable, and proposed that the English should withdraw east of the Alleghany mountains, and the French to the west of the Ohio river. No answer was made to this proposition until the 7th March, when it was agreed to by England, provided France would destroy all her forts upon the Ohio and its branches. This the French Government re- fused to do.* It was at this time rumoured, that, in case of war, the Indians, heretofore allies of England, would side with France ; and French forts along the Ohio and its tributaries, would have enabled both French and Indians to overawe the more western of the English settlements. This was a propo- sition to make the country between the mountains and the Ohio, neutral territory, which France wished to remain in a condition to control. The two Governments failing to agree upon a conventional boundary, the English Government stood by what they regarded as their rights, recognized by France in the treaty of Utrecht, in which the Five Nations are declared to be under the protection of Great Britain ; and in a memo- rial delivered to the Duke Mirepoix on the 7th of June, 1755, they observe : " As to the exposition which is made in the French memorial of the loth Article of the Treaty of Utrecht, the Court of Great Britain does not think it can have any foundation, either by the words or the intention of the Treaty. " The Court of Great Britain cannot allow of this article as relating only to the persons of the savages, and not to their country. The words of the Treaty are clear and precise, that is to say, the Five Nations or Cantons are subject to the * Stanley to Pitt. Thackeray's Chatham, Vol. 2. p. 581. Instructions to Varin, N. Y. Paris Documents 11, 2. Instructions to Vaudreuil, N. Y. Paris Doc, 10, 8. Pakt I. WESTERN BOUNDARY OF ONTARIO. 18 dominion of Great Britain, which, by the received exposition of ail treaties, must rehite to the country as well as to the ptTSons of the inhabitants ; it is what France has acknow- ledged in the mo/st solemn manner. She has well weighed the importance of this acknow^nlgment at the time of sign- ing the Treaty, and Great Brit.in can never give it up. The countries possessed by the.e Indians are very well known, and are not at all so undetermined as it is pretend- ed in the memorial ; they possess and make them over, as otlier proprietors do in all other places Whatever pretext might be alledged by France, in consider- ing these countries as the appurtenances of Canada, it is a certain truth that they belonged, and (as they have not been given up or made over to the English) belong still to the same Indian nations, which by the 15th article of the Treaty of Utrecht France agreed not to molest : nuUo in posterunt impedimenta, aut molesl'ia aidant. " Notwithstanding all that has been advanced in this arti- cle, the Court of Great Britain cannot agree to France hav- ing the least title to the River Ohio and the territory in <|uestion. " Even that of possession is not, nor can it be alleged on this occasion, since France cannot pretend to have had £iny such before the Treaty of Aix-?a-Chapelle, nor since, unless it be that of certain forts unjustly erected lately on the lands which evidently belong to the Five Nations, or which these have made over to the Crown of Great Britain or its subjects, as may be proved by treaties and acts of the greatest au- thority. "What the Court ol' Great Britain maintained, and what it insists upon, is, that the Five Nations of the Iro- quois acknowledged by F'rancc are, by origin or by right of conquest, the lawful proprietors of the River Ohio and the territory in question. And as to the territory which has been yielded and made over by these people to Great Bri- tain, which cannot but be owned must be the most just and lawful manner of making an acquisition of this sort, she re- h:. 14 WESTERN BOUNDARY OP ONTARIO. Pakt I. clainiH it as Ix'lonunim; to her, havina^ continuod cultivatint'' it lor above twenty years past, and havini^ made settlements in several jiarts of it, I'rom the Hources even of the Ohio to the richjuvillanes, in the centre of the territory, between the Ohio and the Wabaehe." In the war whiih followed, the French proved that they kn«'W best how to manai^e the Indians, and they succeeded in a way tlm l!lnt,dish were never able to rival, in attachinir the Indians to their caUKe. The Indians said that the French treat«'d them kindly, while the I'jnylish settled upon their lands for their own bcnelit, spoiled their huntinir nch could not come to their assistance, that they were disposed to make peace. f It was not until the close of Pontiac's war that the Entflish could accept the surrender of the Illinois country. The loni»*-continued complaints of the Indiana before the war of Pontiac made a stroni^ impression upon tlu> mnuls of Kni^lish statesmen, and led to a change in the conduct of In- dian affairs. They had been before removed from the super- vision of the Colonial Governments ; and when the conquest of Canada was completed, and the Treaty of Paris ratified, there were men in lilnsland, among whom was Lord Ilillsbo- roupfh, who were (both to avoid trouble in the future with the Indians, and because of the spirit of independence manifested by the coloni.sts,) opposed to permitting- settlements to be formed beyond the Allefrhanies ; and this was declared, by the proclamation of the 7th of October, 1703, to be, for the pre- sent, the policy of the Government. That proclamation * One only of the forest garrison.s escaped, by the j,'()0(l conduct and addrcsH of its commandant. Lieutenant Gorell, in command of Green Bay, devoted himself to the task of conciliating the neighbouring savages. The Menemonies were sharers in the conspiracy, but they were attached to Gorell, and delayed the execution of the work assigned to them. On hearing of the fall of ATnckinaw, (iorell called a council of their chiefs, told them he was going thither to punish the enemies of his Jcing, and offered to leave the tort in the meantime in their care. The chiefs were divided. The warriors weie waiting to strike the meditated blow ; but providentially at this juncture a depu- tation of the Dacotahs appeared to denounce the vengeance of that powerful confede- racy against the enemies of the English. The Menemonies laid aside their warlike design-s. Gorell and his garrison passed down the bay, and along the lake to Macki- naw, under their escort, ransomed Ethrington and twelve of his men, and passed, by way of Lake Huron and the Ottawa river, to Montreal.— .4 iiac/i's Annals of the West, pp. 168, 169. t See Bancroft's History of the United States, vol. 5, chap. 7, and Parkman's His- tory of the Conspiracy of Pontiac, where the authorities are cited. Gayarre attacks Noyen for his humanity. 16 WESTERN BOUNDARY OF ONTARIO. Part I. carved out of Canada the Province of Quebec. It annexed Oape Breton and Prince Edward's Island to Nova Scotia. It divided the Province of Florida, which had been ceded by Spain, and added to the western part, territory acquired from France by the Treaty of Paris. It added to the Grovernraent of Grenada the Grrenardines, Dominico, St. Vincent and Tobago Islands. It annexed to the Province of Georgia all the lands lying between the Rivers Altamaha and St. Mary's. Greneral Murray advised the English Grovernment to make Canada a military colony, and to extend it westward to the Mississii)pi, in order to overawe the older colonists.* Shel- burne favoured the boundaries which were aiterwards set forth in the proclamation.! Egremont rejected the proposi- tion, and insisted on the Mississippi as the western bound- ary.J Shelburne adhered iirmly to his opinion, and after consi- derable delay, his view for a time prevailed. § The Earl of Egremont, on the 19th of September, informed the Lords of Trade that " His Majesty is pleased to lay aside the idea of including within the government of Canada the lands which are to be reserved, for the present, for the use of the In- dians."** Col. George Crogan, the Deputy of Sir "VYm. Johnson, the Northern Superintendent for Indian affairs, having gone to England in 1764, was recommended by Sir William Johnson to the Lords of Trade and Plantations as a person whose tho- rough acquaintance with Indian matters, would enable him to impart to the Board much valuable information. ff I find among the papers of the Lords of Trade and Plantations, a lette high forth dian be m front i the IJ ties ill shoiik tions, reaso2i ginal oast o effectc( of us. " Th< bee, CO] of the I of the I * M. Frances au Due de Choiseul, 2 Sep., 1708. + liords of Trade to Secretary of State, 8th June, 17C.3. X Secretary of State to Lords of 1 rail;-, 14th July, 1703. § Lords of Trade to the Secretary of State, 5th Aujjust, 1703. Secretary of State to the Lords of Trade, 19th Sep., 170.3. ** The king said Lord C. J. Mansfield had advised him to show favour to Shelburne in order to play him and I'igremout a ,'ainst each other, and by that means keep the power in his own hands. — Orenville papers, vol. 2, j). 238. •\-\ See Simcoe Papers, Mas., vol. 1, Library of Parliament, Canada. Part I. WESTERN BOUNDARY OF ONTARIO, IT IS, a state letter from Col. Crosran, which is not dated, but which, it is highl , prohiil lo, was written at this time. Ho therein sets forth whiit he considers the best phn of (healing A\ith the In- dian Territories. He saj's, " That a natural boundary should be made between them (/. i'. the Indians,) and us across the frontieis of the British Middle Colonies, from the heads of the liiver Delaware to the mouth of the Oliio, where it eni])- ties into the Missis.dppi ; that the lands west of Siich a line should b ■ reserved for 1 le huntinu' urouiids of the Six Na- tions, and the several tribes dependent on them, and that a reasonable consideration be given them as they are the ori- ginal proprietors of that tract of country, for all the land east of such boTjndary. This, in all probability, may be efTected, and is the likeliest method to remove all suspicions of us. " The Indians, before the late war or the conquest of Que- bec, considered us in the light of a counterpoise to the power of the French, their ancient enemies, and were steady i'riends of the Eno'lish on that account;* but since th(^ reduction of Canada, they consider us in a very dilferent and less i'avour- able lig'ht, as they are now become exceedingly jealous of our growing power in that country. It is not necessary to enter into any part of our conduct towards them since the reduction of Canada, v.hich might have raised their jealous- ies, or whether the French used any measures to spirit them up to vvhac they have done; we know them now to be a very jealous peoi)le, and to have the highest notions of liber- ty of any people on earth, and a people who will never con- sider consequences where they think their liberty likely to 1)6 invaded, though it may end in their ruin; so that all that can be done now is to pievent such a defection of the In- dians for the future, by the boundary and good treatment. " By the concessions made by his Majesty, at the late Treaty of Peace, the country lyiiiii; tvest of the Ohio to itn mo'th, and upthc .}fississi/)/)l to its source'^, ap/>ears to be the houn/lar// be- * Mr- (.'ro^'an here refers to the Iroquois, Delaware and Shawaiiese Indiiiiis. C 18 WESTERN BOUNDARY OP ONTARIO. Part t. II ttveen the French and ms, in that part of the country, and of course become our frontiers ; as the west side of the Mississippi will no doubt bo settled by the French.* I would offer to your Lordship's consideration whether it would not be good policy at tliis time, while we certainly have it in our power, to se- cure all the advantages we have got there by making a pur- chase of the Indians inhabiting the country along the Mis- sissipi from the mouth of the Ohio up to the sources of the River Illinois, and there plant a respectable colony in order to secure our frontiers and prevent the French from any at- tempt to rival us in the fur trade with the natives, by draw- ing the Ohio and Lake Indians over the Mississippi which they have already attempted by the last accounts we have from Detroit. From planting this new colony, many great advantages would arise to i.iis kingdom, as well as to his Majesty's subjects in North America; it would extend trade and commerce with the furthermost nations of Western Indians hitherto unknown to us, which would enable the trad- ing people in the colonies to import more of the manufactures of this kingdom than they have heretofore done, which is an object of the greatest consequence to a trading people; it would extend his Majesty's settlements in America and make his subjects appear more formidable in the eyes of the Indians, which is now become abolutely necessary, in order to preserve the peace between them and us; it would cut off all the communication between the French and those na- tions settled over the large tract of country on this side of the Mississippi and gives us the absolute dominion over all the Up- per Lakes — Huron, Michigan and Superior, and bids fair to give a lasting peace to all his Majesty's southern col >nies : be- sides, from this colony, in a very few years we should be able to supply with provisions of every kind the several posts or marts that may be erected for trade with the natives on much easier terras, than they have or can be supplied * This observation fixes the date of this coiumunication, as it became known in 1765 that France had ceded the country west of the Mississippi to Spain. Part I. WESTERN BOUNDARY OF ONTARIO. 19 m from any of onr colonies. At present it may be objected that the establishing such a colony, so far from the sea, w'll be at- tended with too great an expense to the nation, which may be easily answered. The fertility of the country and the fine- ness of the climate is now known to us which is sufficient to encourage industrious people to settle in it in a very little time without any expense to the nation, or hindrance to the growth of the present colonies, and I dare say that people enough will be found that will undertake it." * There is one part of Col. Crogan's recommendation which was scarcely practicable at the time it was made — that relat- ing to the Indian reservation, and it is evident that he was not aware of the extent to which the Crown had already alie- nated lands within the limits he proposed to reserve lor the Six Nations. Immediately alter the treaty of Logstown, in 1748, Lee and Washington of Virginia, Hanbury of London, and others, formed an association, called the Ohio Company, and petitioned the king for a grant beyond the mountains. The application w^as approved of, and the Government of Vir- ginia was ordered to make a grant of 500,000 acres, within the bounds of that colony. Of this 'grant, 200,000 acres were to be at once located by the Company; and if one hundred fami- lies were settled within seven years, the grant was to be free from quit rent for ten years. The Company agreed to build a Fort sufhcient for the protection of the settlement. Other com- panies were formed, about the same time, within the Province of Virginia, to colonize the AVest. On the 12th of June, 1749, 800,000 acres were granted to the Loyal Company, frotn the line of Canada on the North and West. In October, 1751, 100,000 ficres were granted to the G-reen Briar Company. In 1757, the books of the Secretary of Virginia show that three millions of acres had been aUenated beyond the Alleghaney Mountains. The report of Blair, the Clerk of the Virginia Council (1768 or 1769^ states that most of the land grants, west of the mountains within that Province, were made before 1 754.1 * New York Historical Documents, vol. 7, pp. G03, C04. + Quoted by Albach Western Aiinals, p. 12i). 20 WESTERN BOUNDARY OF ONTARIO. I'AKT r_ As soon as Fort Dii Quosno had fallen, the border settlers of Pennsylvania and Virginia, who had been driven from their homes, returned. In 17G0, the Ohio Company began ag-ain to carry out their plan of settlement. They once more sent to lllng'land, for such directions to be. g-j von to the Cloverument of Virginia, as would enable them to do so. At this time, (leneral Monkton, by a, treaty at Fort Pitt^ obtained leave from thf Indians to (>.stal)lis.h posts within their nnceded territories, with land enough about each post to raise corn and veg-etables for the subsistence of the garri- son.''^ In the year 17(U, the English Ministry had in contemplation an Act for the proper regulation of trade with the Indians, and for raising a fund, by a duty upon the trade, for the support of the officials of the Indian Departments. They also proposed where and how the trade was to be carried on. Tht^y had re. solved on acquiring mor(» ter'*itory from the Indians, so as to remove the boundary between the colonists and the Six Na- tions beyond the lands upon which any white man had a claim. Upon the Indian side of this new boundary, no settlements were to be pi'rmitted. In consequence of this determination, instructions were transmitted to Sir William .lohnson, direct- ing him to call a council of the Indians, and informing him that a bounX. t Lewis & Walker to Lord Botetourt, in Botetourt to Hillsborough, 11th Fcb'y, 1769. Bancroft, vol. 5, ch. ;kS. Part I. WKSTKRN nOTTNDARY OF ONTARIO. 25 tho geiior.il mauan-onient of Indian allairs to the ditlbrent Colonies, subject to the kinp-'s disallowance. lie then addressed himscli'to the sul)ject of establishinj*- new colonies, lie says: " His Majesty likinvise commands me to reler to youv Lord- shijVs extracts from several letters of Sir' Jeffrey Amherst and Creneral Gaue, recommendini>' the estaldishment of fur- ther new governments, on the Mississippi, the Ohio, and at Detroit, at one or more of which i)laces a considerable body of French have been suffered lo remain since the peace, ivilhoiil any form of government ; also, dillerent proposals from private people for undertakinii' establishments in these parts. Your Lordships will consider the force of the several arguments which are broii,i,'"ht in lavour of these settlements, setting ibrth that they will secure to his Majesty's subjects the com- mand of the Fur and Peltry Trade, in preference to the French and Spaniards, preventing any smuggling with them, wliich, as appears, by the extracts of General Gage's and Mr. Crogan's letters, amounts to so considerable a sum annually as to become a national ol)ject ; that they will be an ellectual check to the intrigues of those nations, for gaining the ailec- tions of the Indians ; that they will promote the great object of population in general, and increase the demand lor the consumption of British manufactures, particularly by allord- ing to the Americans an opportunity of following their natural bent for the cultivation of the lands, and oll'ering a convenient reception and cultivation for their superiluous hands, who otherwise cooped up in narrow bounds, might be forced into manufactures, to rival the mother country — an event, which, any other way, it might be dilficult to pre- vent ; that by raising provisions of all sorts to supply such interior garrisons, as it may still be found necesary to keep up, they would greatly contribute to lessen the extraordinary expense accruing, not only from the establishment of the different Forts and the various contingent charges, but also from the necessity of transporting provisions as well as stores to supply the garrisons from the Provinces on the coast, by 26 WESTERN BOUNDARY OF ONTARIO. Tart (. the rivers and by thn groat lakes as well as by the land portag-e, all which not only occasions an accumulated ex- pense, but also, ol'ten reduces the garrisons to great distress, and ui case of an Indian war, when alone thev can be useful, leaving them in a very precarious situation ; that these new Colonies will prove in elFect a protection and a security to the old, ibrmini^ of themselves an exterior line of defence, rendering most of the interior Forts useless, and equally contributing to reduce the present Indian and Military Ex- pense ; that being situated behind the oth(!r Provinces, they will be of singular use to keep the Indians in awe, and pre- vent their hostile incursions upon the frontiers to the east- ward, while those savages who are hemmed in by our settlements on both sides, must either become domiciliated, and reconciled to our laws and manners, or be obliged to retire to a distance. " In case your Lordship should think it right to advise his Majesty to establish these new governments, you will consider whether it will be practicable to fall upon such a plan, as will avoid a great part of the expense incurred by the esti- mates of the new governments established after the peace."* William Franklin, son of Benjamin Franklin, the Governor of New Jersey, Sir William Johnson, the Northern Superin- tendent of Indian Affairs, Greneral Grage. and several fur-traders of rhiladelphia, proposed to acquire, for colonization, a great portion of the North West Territory, embracing all the country from Lake Erie to the Mississippi, North of the Wabash and Miami rivers, and south of Fox river and the Wisconsin, The tract was estimated to contain sixty-three millions of acres. Frank hn, who had gone to England to promote the Walpole Grant, South of the Ohio, acted as the agent of those who wished to undertake the colonization and government of this vast extent of territor5\ And in his letters to his son, extend, ing over a period of two years, from April 1766 to April 1768, he puts us in possession of the views of Lord Shelburne, Gene- * N. Y., Hist, Doc. vol. 8. Part I. WESTERN BOUNDARY OF ONTARIO. ST ral Conway, Lord Clare, ami Lord Hillsborough, on the pro- priety of establishing new Colonies in the country, acquired irom France.* We learn from these commimioations that lilarl Shelburn(^ who lavoured the enterprise, delayed ])ringing' the matter up in Council, for more than a year, until he thought the Lords of Trade could be induced to make a IsvA'ourable report. The subject was brought under their attention in ()ctol)er, but no report was made until the March following. In the mean time the affairs of the Colonies were taken irom under the control of Lord Shelburne, and consigned to a separate Department of State, and Lord Hillsborough was made the iirst Colonial Secretary. The changes which at that time took place in the Ministry, indicated a change in the Colonial policy. The report of the Lords of Trade, when made, was decidedly adverse to the policy of establishing new Colonies, and pointed towards the adoption of the A'iews expressed by Hillsborough, Murray, and Egremont in 1763 — the extension of the Province of Quebec to the Mississippi. They say that " the proposition of forming inland Colonies in America is, we humbly conceive, entirely new, it adopts principles in respect to American settlements different from what have hitherto been the policy of this kingdom, and leads to a system w^hich, if pursued through all its consequences, is, in the present state of that country, of the greatest importance. " The great object of colonising upryn the Continent of North America, has been to improve and extend the commerce, naviga- tion, and manvfactures of this kingdom, njjon which its strength, and security depend. " 1. By promoting the advantageous Hshery carried on upon the northern coast. " 2. By encouraging the growth and culture of naval stores, and of raw materials to be transported hither in exchange for perfect manufactures and other merchandise. * See Appendix B. , consisting of extracts from these letters. 28 WESTKUN BOUNDARY OK ONTARIO. Pitt I "3. By socuiiiii;- a Hupply oi" luinher, provisions, and other necossarios lor the Nupport olour ostahlishnients in the Ame- rican Islands. " III order to answer those salutary purposes, it has been the policy of this kinifdom to conline her settlements as much as pos.«il)le to the sea coast, and not to exteml them to places inaceessilile to shipping, and consequently more out ol' the reach of commerce; a plan, which, at the same time that it secured the attainment of these .jmmercial ohjects, had the further political advantage of ii'uardinu' ay-ainst all interfering of forei**'!! powers, and of enabling this kingdom to keep up a sujx'rior naval I'orce in those seas, by the actual possession of such rivers and harbours as were proper stations for lleets in time of war It was upon these prin- ciples, and with these views, that Govermnent undertook the settUng of Nova Scotia in 1741); and it was from a view of the advantages represented to arise from it in these dillerent articles, that it was so liberally supported by the aid of Par- liament. " The same motives, though operating in a less degree, and apj)lying to fewer objects, did, as we humbly conceive, in- duce the Ibrming the Colonies of Georgia, East Florida, and West Florida, to the south, and the making those provincial arrangements in the proclaj nation of 17G3,* by which the interior country was left to liic vossession of the Indians." This policy the Lords of Trude goon to state would be frus- trated by ibrming settlements in the interior. " More especially, where every advantage, derived from an established government, would naturally tend to draw the stream of population ; fertility of soil and temperature of climate offering superior incitements to settlers, who, exposed to few hardships, and struggling with few difficulties, could, with little labour, earn an abundance for their own wants, but without a possibility of supplying ours with any considera- ble quantities. Nor would these inducements be confined * See Appendi.x F. HtIT I. in their choice* w the in ha I •Majestv's the oppo; tempted liarly adaj Mature (lei without t U])on, othe The ><)!■ of the enij month of t ahounded at an immt at that j)t»r aware olit.- to further t i settlement very great c iTeat commi <'f the north tliat purpost I'rovijices to the iisheries tlif West Iiu Province of twenty-one t XovaMcotia; couragement ill the Islan Floridas. Th the encourag America is 1( 'icy ; as we fi that policy ar( HiBT I. WKSTKllN HOUNDARY nF ONTAUIO. 29 30111 lidera- ifined in thoir oporatioi) to loroii^n imininrunts, di'tonniuiny their clK^icc wht'i"' to Hcdlc, hut would act most iwwcrl'ully upon the iidiiihitaiits of ///- norl!'> n nuft s ifdirrn Inlitudrs ol" your Majosly's American dominions: who, ovt-r suHcriiii;- under tho opposite oxtvenics ol ht-at and fold, woidd ho oqually temi)t('d hy a moderate climate to ahaudon latitud(\s pecu- liarly a(hjpted to the production ol' those tliini>'s which are ])y nature denied to us, and lor the whole ol' which we sliouhl^ withour their assistance, stand indebted to, and tU'pendeiit upon, othcM' countries." The Lords of Trade observe that before 174!>. the sea coast of the emi)irt' in America, from the Province of Maine to the mouth of the St. Lawreuce, had been neglected, althoun'h it abounded in every species of naval stores: that !<' ranee had, at an immense expen.se, attempted, by the war which ended at that period, to wrest the country from (Ireat Ih-itain ; that aware of its great commercial value, the country was held, and to further this end, and make the possession more sure, the settlement of Nova Scotia had ])een promoted, thouuh at a very g'real expense to the kiiii>dom : that in conseciuence of the irreat commercial advantages to be derived from the settlement (if the north eastern coast, associations had been formed lor that purpose. Ten thousand persons had a'one irom the other rrovi}ices to settle in Nova Scotia, who had either engaged in the lislieries or become exporters of lumber and provisions to the AVest Indies, and that many of the principal persons of the Province of Pemisylvania were engaged in the settlement of twenty-one townships of one hundred thousand acres each in Nova Scotia ; that the success of these settlements had given en- jcouragement to like settlements in Elaine and Massachusetts, jiu the Islands of St. John and Cape Breton, and in the Floridas. They say " they are therefore fully convinced, that [the encouraging settlements upon the sea coast of North iiiierica is founded in the true principles of commercial po- llicy ; as we lind upon examination, that the happy effects of [that policy are now beginning to open themselves, in the es- i ^ so WKSTERN BOUNDARY OF ONTARIO. Part 1. tablishtnent of these branches of commerce, culture, and navigation, upon which the strength, wealth, and security of this kingdom depend ; we cannot be of opinion, that it would in any view he advisable, to divert your Majesty's subjects in America from the pursuit of those important objects, by adopting measures of a neio policy, at an expense to this kingdom, which in its present state it is unable to bear.^' The Lords of Trade next proceed to consider the arguments in support of the particular establishments recommended by Lord Shelburne, which they say are reducible to the following propositions : — " 1st. That such colonies will promote population, and in- crease the demand for and consumption of British mannfac- tures. " 2nd. That they will secure the fur trade, and prevent an illicit trade, or interfering of French or Spaniards with the Indians. " 3rd. That they will be a defence and protection to the old colonies against the Indians. "4th. That they will contribute to lessen the present heavy expense of supplying provisions to the different forts and garrisons. " 5th. That they are necessary in respect to the inhabitants already residing in those places where they are proposed to be established who require some form of civil government. " We admit as an undeniable principle of true policy, that with a view to prevent manufactures it is necessary and proper to open an extent of territory for colonization pro[iortioned to the increase of people, as a large number of inhabitants, cooped up in narrow limits, without a sufficiency of land for produce would be compelled to convert their attention and industry to manufactures ; but we submit whether the en- couragement given to the settlement of the colonies upon the sea coast, and the effect which such encouragement has had, have not already effectually provided for this object, as well tish ] ion, T beinc fifteei: the h shippi to paj led to perien( gree ei opinio) tlement which t( colonies line wit wards, of encou of new I the meci extent commer Britain, tracts of posed th trade, ai This gr; Trade on tli ^ The coll indigo, pitcl hides, skin.s, Britain, not tercolonial t not purchast The printing sent from on riftge for con a tilt hammt to Shirley. TW^ Part I. WESTERN BOUNDARY OF ONTARIO. 81 eiit. that )per iiied mts, for land en- the has It, as well as increasing the demand for, and consumption of Bri- tish manufactures, an advantage which, in our humble opin- ion, would not be promoted by these new colonies, which being proposed to be established, at the distance of above fifteen hundred miles from the sea, and in places which, upon the fullest evidence, are found to be utterly inaccessible to shipping, will, from their inability to find returns wherewith to pay for the manufactures of Great Britain, be probably led to manufacture for themselves : a consequence which ex- perience shews has constantly attended in greater or less de- gree ever}/ inland settlement, and therefore ought, in our humble opinion, to he carefully guarded agahwt by encouraging the set- tlement of that extensive tract of sea coast hitherto unoccupied ; which together with the liberty that the inhahitants of the middle colonies will have (in consequence of the proposed boundary line with the Indians) of gradually extending themselves back- wards, will more effectually and beneficially ansiver the object of encouraging population and consump)tion, than the erection of new governments ;^ such gradual extension might through the medium of a continued population, upon even the same extent of territory, preserve a communication of mutual commercial benefits between its extremest parts and Great Britain, impossible to exist in colonies separated by immense tracts of unpeopled desert.f As to the efiect which it is sup- posed the colonies may have, to increase and promote the fur trade, and to prevent all contraband trade or intercourse be ' This gradual settlement Hillsborough opposed in 1772, See llejiort of Lords of Trade on the application of the Ohio Company. Vol. 10, North American Pamphlets. t The colonists were inhibited by law from exporting sugar, cotton, rice, molasses, indigo, pitch, tar, turpentine, wool, ginger, masts, yards, bowsprits, beaver, p<;ltry, hides, skins, whalefins, and other products of their industry, to any place but Great Britain, not even to Ireland. Foreign ships were excluded from oionial ports. In- tercolonial trade in wool, or woollen goods was forbidden. An English sailor must not purchase woollen clothing beyond the value of two pounds in a colonial port. The printing of the Bible in English was prohibited. No American hat could be sent from one colony to another, nor could it be loaded on any horse, cart or car- riage for conveyance. Slitting mills, steel furnaces, and plating forges to work with a tilt hammer, were prohibited. Bancioft, Vol. iv., chap. 12. Franklin's Letters to Shirley. 32 WESrKRN BOU.VDARY OF ONTARIO. I'AKT I. tweeii the Iiuliuns under your Majesty's protection, and the French or Spaniards ; it does appear to us that the extension of the I'ur trad*; depends entirely upon the Indians being un- disturbed in the possession of their hunting grounds ; that all colonizing does i)i its nature, aiul nuist, in its conseqiuMi- ces, operate to the prejudice of this branch of commerce, and that the French and Spaniards would be left in possession of a great part of what remsuned, as New Orleans would still continue the best and surest market. " As to the protection which it is supposed these new colo- nies may be capable of atibrding to the old ones, it will, in our opinion, appe;ir, on the slightest view of their situation, that so bn- irom allbrding protection to the old colonies, they will stand most in need of it themselves. " It cannot be denied, that new colonies would be of advan- tage in raising provisions for the supply of such forts and garrisons as may be kept up in the neighbourhood of them, but as the degree of utility will be proportioned to the num- ber and situation of these forts and garrisons which upon the result of the present enquiry it may be thought advisable to continue, so the force of the argument will depend upon that event. "The present French iidiabitants in the neighbourhood of the lakes will, in our humble opinion, be sufficient to fur- nish with provisions whatever posts may be necessary to be continued there ; and as there are also French inhabi- tants settled in some parts of the country, lying upon the Mississippi between the Rivers Illinois and the Ohio, it is to be hoped that a sufficient number of these may be induced to lix their abode, where the same convenience and advantage may be derived irom them The settlements already existing' as above descril)ed, which being formed under military establishments, and ever subject to militarij authority, do not, in ur h'tiithh opinion, rcf/uire any further superintendence tlian that of the military officers commanding at these posts'' No one can read over tlie various reports of the Lords of Trade H4RT I and '. out I betw Most coun: centr intere neigh Coun( which utility the jTT your I great j eountr; that it ' /"are an ■tt Part I. WESTERN BOUNDARY OF ONTARIO. 87 y of law dill that Major Farmer had drawn £30,000, as extraordinary charges, on going to take possession of the Government of Illinois.* In April, "1769, we find Colonel "Wilkins, of his Majesty's 18th Royal Regiment of Ireland, Grovernor and Commandant throughout the Illinois country," making ex- tensive grants of lands to several of his friends in Illinois and elsewhere, "for the better settlement of the Colony, and the Governor agreed to he interested to the extent of one-sixth part thereof."! Wilkins was the last Governor of Illinois ajD- pointed by the Commander-in-Chief, at all events, the last of whom I have been able to find any account. After 1774, the Governor of the Illinois country was Lieutenant under the Governor of the new Province of Quebec. In November, 1773, the year prior to the passage of the Quebec Act, the people of Illinois, failing to obtain from Ge- neral Gage the reforms in their government which they desired, addressed themselves directly to Lord Dartmouth, if the Secretary of State for the Colonies. He pronounced their demand " very extravagant." A plan of government was sketched out by the Ministry for the Colonies of the west. The people of Illinois protested against it. "Should a plan of government so evidently tyrannical be established," said Blouin, the agent of Illinois, to Lord Dartmouth, " it could be of no long duration." About the same time the French inhabitants of old Quebec were petitioning the king for a restoration of their ancient laws, the toleration of their religion, the removal of their civil and political disabilities, and the restoration of its ancient limits. The English inhabitants petitioned his Majesty for the main- tenance of the English law, and the election of a General As- sembly, " as there is a sufficient number of Protestmit subjects residing in and possessed of real property in this Province, * Franklin's letters to his son, October 11, 17G7. See extracts in appendix B. t See American State papers, vol. 2. Public Lands, page 180. This volume con- tains complete plans of the French settlements in Illinois. X Dartmouth to Gage, 4 Nov. 1772 ; Gage to Dartmouth, 6 January, 1773 ; Dart- mouth to Gage, 3 March, 1773 ; Daniel Bluuin to Lord Dartmouth, 4 Nov. 1773. 38 WESTERN BOUNDARY OF ONTARIO. Part I. and who are otherwise qualified to be members of a General Assem))ly.'' =^ The people in every part of the territory conquered from France, were asking* for a change in the systems of govern- ment, which had been established by the English. At the conquest, the French population of Illinois was about three thousand, f At Vincennes, upon the Wabash, there was a colony of between four and five hundred.^ Many from the villages alongthe east shore of the Mississippi, joined their coun- trymen on the other side, before they learned of the cession to Spain. II Those that remained remonstrated to General Gage against the corruption and favouritism of Wilkins. They asked for institutions like those of Connecticut, and declared that no irresponsible government could give satisfaction. " A regular constitutional government for them," said Gage to Hillsbo- rough, " cannot be suggested. They don't deserve so much attention." " A regular government for that district," rejoined Hillsborough, "would be highly improper." Hillsborough suggested their removal to some place within the limits of any established colony. § This, however, was impracticable ; as any attempt to carry out such a policy would haA^e led to their settlement beyond the Mississippi ; and an expatriated population upon the frontier was to be dreaded. Towards the colony at Vincennes the Government could act upon this policy with less hesitation, as the inhabitants were farther * See volume 12, North American Pamphlets, Library of Parliament, where both petitions will be found ; and also the Masscres' Papers. t Martin estimated the population of Louisiana, in 1763, at 13,5-38. Of whom 891 were in that part of Illinois, west of the Mississippi. I^ast of the Mississippi, and before the Frencli crossed the river to avoid British rule, the population of the several posts and villages was 3,000. X 427. Gape's state of the settlement on the Wabash, 6 January, 1769. II St. Louis was founded by La Clade, 17(j4 ; D'Emegrant by Florissant in 1766 ; Portage des Sioux, eight miles above the Missouri river, in 17C6 ; Les Petites Cotes (now St. Charles) by Blanchette in 1769 ; and Carondelet, six miles below St. Louis, by De Targette in 17C7. § No impediment stood in the way of colonising Illinois after 1769. In that year an Illinois Indian assassinated Pontiac, and the Illinois Indians were in consequence exterminated by some of the northern Tribes. • « Part I. WESTERN BOUNDARY OF ONTARIO 89 lis 891 bstB Ites by |ear nee away from the border. A proclamation was accordingly issued in April, 1772, commanding them to retire within the jurisdicvion of some one of the colonies. But the people were unwillin:*' to expatriate themselves from a country where they or their friends had resided for seventy years. Hills- borough resigned in August, and his successor. Lord Dart- mouth, being a humane man, left them in quiet possession of their western homes.* As the breach between England and her old colonies widened, the ill-will harboured by English officials towards those who had encouraged Pontiac to begin his war, died awav. The petition from the French inhabitants of the old Province of Quebec asked, among other things, to have " restored to Ca- nada the same limits which it had before, and to include the coasts of Labrador in the I'rovince of Quebec, and those parts of the upper country which had been taken from it ; since it cannot maintain itself without itis usual commerce."f By the Proclamation of 1763, the Province of Quebec was carved out of Canada, with the following boundaries : "Bound- ed on the Labrador coast by the Biver St. John, and from thence by a line drawn from the head of that river through the Lake St. John to the south side of the Lake Nippissim ; from whence the said line crossing the River St. Lawrence and the Lake Champlain in 45 degrees of north latitude, passes * " The King having become convinced that Hillsborough had weakened the reapect of the Colonies for a royal government, was weary of him ; his colleagues disliked him and conspired to drive him into retirement. The occa.sion was at hand. Franklin had ntgociated with the Treasury for a grant to a company of about twenty-three millions of acres of land south of the Ohio and west of the Alleghanies. Hillsborough, from fear that men in the back-woods would be too independent, opposed the project. Franklin persuaded Hertford, a friend of the King's ; Gower, the President of the Council ; Camden, the Secretaries of the Treasury, and otliers, to become shareholders in his scheme. By their influence the Lords of Council disregarded the adverse report of the Board of Trade, and decided in favour of planting the new province. Hills- borough was too proud to brook this public insult His system remained behind him. When he was gone, Thurlow took care that the grant for the western province should never be sealed."— Bancroft, vol. 5, ch. 47. See also Spark's Life of Franklin, vol. 4. tNorth American Pamphlets, vol., 12 ; also Masseres' Papers. 40 WESTERN BOUNDARY OF ONTARIO. Part 1. alongthe High Lands which divido the rivers that empty them- selves into the said River St. Lawrence Irom those which fall into the sea ; and also alon<^ the north coast ol the Bnye den Chdleun. and the coast of the Gulf of St. Lawrence to Cape Ro- siers, and from thence crossing the mouth of the River St. Law- rence by the west end of the island of Anticosti, terminates at the River St. John." The remaining portion of the terri- tory acquired from France, and not added to West Florida, nor to Greorgia, was declared, by the same proclamation, " to be re- served for the present, under the King's sovereignty and pro- tection, for the use of the Indians." The only provision made by the proclamation lor the government of persons in the In- dian country, is that contained in the concluding paragraph, which reads as follows : — " And we do further expressly en- join and require all officers whatever, as well military as those employed in the management and direction of Indian affairs within the territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all persons whatever who stand charged with treasons, murders and other vio- lence or misdemeanors, ivho shall Jiij from justice and take re- fuge in the said /< rritory ; and to send them under a proper guard to the colony where the crime was committed, where they shall stand accused in order to take their trial for the same." This was simply a provision for the extradition of t^e criminal to the province in which the crime had been committed, where the accused would be best known, and where the evidence by which he might be convicted or excul- pated, would be most likely available. About the government of the few scattered colonists nothing is said. They had mili- tary governments provided ibr them by the Commander-in- Chief of the army in North America. This system was con- tinued north of the Ohio river, until the country was united to the old Province of Quebec under the Act of 1774. The Quebec Bill was introduced by the Earl of Dartmouth, into the House of Lords, on the second of May of that year. It was declared that " a very large part of the territory of Canada Paht WFSTKUN irUNDARY OF ONTARIO. 41 within which there were several colonies and settlements, subjects of France, who claimed to remain therein under the faith of the said treaty, v^ere left loithoul any provisio)i being made for Ike ndministrali no/ civil f/overnment therein* Be it enacted that all the said territories, islands and coun- tries, heretofore a part of the terr-tory of Canada, in North America, extending southward to the banks of the Kiver ()hio,t and westward to the banks of the Mississi])pi, and northward to the southern boundary of the territory (granted to the Merchants Adventurers of England trading to Hud- son's Bay, and which said territories, islands, and countries are not within the limits of the other British Colonies, as al- lowed and coniirmed by the Crown, or which have been, since the 10th of February, 17hts as Sovereign, and it re- mained a Colony of the Crown, until it ceased to be a British Province. I have given elsewhere so much of the debate on the Que- bec Bill, as relates to the proposed extension of the limits of the Province, that I need not here say anythnii? more to show that there was, from the beginning- to the close of the discussion upon the Bill, no evidence of the abandonment of the clearly exi)ressed intention of the Ministry, and the law ofRcers of the Crown, to embrace all the country between the Atlantic and the Mississippi, the Ohio and Hudson's Bay terri- tories, in the new Province of Quebec.:]: Mr. Burke declared, that under the Bill, " the Crown has the power of carrying the greatest portion of the actually settled part of the Province of i^ew York into Canada;" that the boundary line might be lixed at the very gates of the City of New York, " and subject that colony to the liability of becoming a Province of France.'' Mr. Burke is careful to put his advocacy oi'the interests of New * It is highly probable that what the rrovince of New York fuan-tl from an un- ck'temiiiu'd boundarj* on the side of Canada was, that the territory reserved to the Six Nations by the Treaty of Fort Stanwix would be included in Canada. The map will Bliew wliat New York would have lost. + With regard to the grants heretofore made by the Governors of Canada adjacent to I^ake Chanii)lain, and by the Governor of New Hampshire to the west of CJonnecti- cut river, I do not conceive that the titles of the present claimants or jmssessors ought to have been discussed or determined u\>' (if \vi' cou- .sidered such a commission to be still in force) ".' " yfr. Mevlralc tUeii utatcd thai hi: mix dircctal to ifnbjuiii i( i>iijnr ichich nun druwn n/i ■ihortlj/ before the passing of the Art. 12 and l.S Viet., fjjt/analoi';/ of the rmnonsfor itx introdiictiuii. The prurixioii merit iuntd at the end of that paper, for the tramsmiimion of these pemo as rharijcd witli the.ie offenrex from one riihinn In imo/hi r ar to h'n(/land h-iik wit/i- lirawn in the conrse of the dixeusnion on the Hill. In obedience to your Lordship's commands we lain inrnned the xeceral doenrnvntu trans- mitted to «.v, and we have tlie iioiiour to rej)ort that the I2th and l.'ltli Vie., e. !(ii, ap- pears to be an enal)ling stiit\Uf. not reiiealing any authority iiosses.sed by the t'row n prior to it ; and we are then fore of i.pitnon that, since the [)assing of that Act, it re- mains in Her Majesty's [lower to issue commissions, as was custimiarily done under the 4(jth Geo. •>. c. 54, for the trial of offences specified in this Act, and that connnissions issued before that Act, are still in foi-ce. We think that if the persons mentioned in the despatch of tne President of T(»rtoia eonunitted an offence which could be tried by the maritime courts of that island, such persnus should now be tiiedbysucii court; but if the Governor is conviueedi if the impossibility of obtainmy an impaitial trial in the cohmy, we think that it is eoni[)etent for him to transfer such persons for trial to another colonv where there is a I'oinnussion in force. ■ f. l)ul))Sl(.\, John lioMiLLV, A. i^. <'0CKIUK\. The Right Hon. Earl (Jrcy, iVc, &c., &c. 50 WESTERN liOUNDAllY OF ONTARIO. Part I. that any formal statement of the policy of a proposed measure, relating- to theg-overnment of any part of the empire, by Minis- ters, is, at least, prima facie evidence of the intention of Parlia- ment, in the passage of the measure. And it can hardly be sui)posed, that a paper, which was of use to the Law Officers of the Crown, in arriving at a proper understanding of the law, would be inadmissible in a court to enable a judge to do the same thing. Whatever rules, then, courts may have seen fit to adopt, not deduced from the " law^'>" of language, but established lor rea- sons of public policy, in the exposition of private contracts, or in the construction of laws intended to reguhite the private affairs of men, they have never been regarded as applicable to a law, international in its character, as a statute defining the boun- daries of a country must be considered. Holding this opinion, I have deemed it not improper to state briefly the circum.stances which ttltimately led to the introduction of the Quebec Hill, and which serve to make obvious, the end aimed at by the Min- isters and the Parliament that carried that measure.* Two things are stated in the preamble of the Quebec Act, • The Quebec Act has always lieeiiiimlerstood as extendinj,' that Province to the Mis- sissippi. It was so un(lei'sto(.(l in JCiiglaml liy Ministeisas is sliowii l)y Sir (iuy Car- letoii's cdinniission. It was so midcr.^toiMl hy tl.e Opiioi-ition, as will be seen from the speeches on tlie proposed repeal of the measure ; and it was so understood at the time by the colonists. Bancroft says " 'I'lic fifth statute (which alarmed and offended the color.iits) proposed to rejjulate the govei'unient of the Province of (Quebec. The n.'i.M..n, which would not so much as lej^ally recognize the existence of a Catholic in Ireland, for political considerations sanctioned on the St. Lawrence "the free e.\trcise of till' ri-ligion of the Church of Pome, and coniirniid to the clergy of that Church their acc\;stcimed (hies and ri;,dits." So far the Act was merciful ; hut it extended the boun3 if we leave out the detailed description of the line by whi(^h the enlarged Province is bounded on the south, the manner, in which the framers of this section, intended to indicate its lim- its, will be more apparent. The section will then read — " that the territories, islands, and countries in North America, be- longing to the Crown of G-reat Britain, bounded on the south by a line drawn from the Bay of Chaleurs . .to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the Merchants Adven- turers of England trading in Hudson's Bay, and also all such territories, islands and countries which have . . . been made part of the Grovernment of Newfoundland be and they are hereby made part and parcel of the Province of Quebec." It is clear, when we take the primary parts of the sentence, that the word " northvdrcr is used to indicate the extension, in that direction, of all the country ivhich is bounded on the south by the line described. If the use of the words " bounded on the south" were not alone sufficient to preclude any other con- struction, the absence of any words of departure, such as thence or along, would be sufficient to show that the word *^ noiiJivjard'' is not intended to indicate the direction of a line drawn from " the banks of the Mississippi.'" But if it were conceded that the word " novthvjard" is used in the lirst section of the Quebec Act. for the purpose of locat- ing the western boundary line, neither the usages of our lan- guage nor the principles of legal interpretation, would war- rant the conclusion, that it makes the western boundary ol' Quebec a meridional line. If " northward'" or even north indicated an invariable direc- tion, we never would have had in our language such expres- sions as directly north, and due north. When we speak of a line running westward, we do not mean due west ; such a line may diverge to the north or to the south of a due west line. All that we mean to affirm, is, that such a line is carried, as it is produced, farther away from the prime meridian, in a direction more nearly vjest than it is north or south. And so, too, when 54 WESTERN BOUNDARY OF ONTARIO, Part I we speak of a northward line, we mean aline proceeding from a more southern to a more northern latitude ; it is not necessa- rily a straight line ; nor a due north line ; it is a line, which, if sufficiently produced, must pass through every degree of lati- tude. Webster, upon the usage of Bacon and Dryden, defines northward as being towards a point nearer to the 7iorth than the east and the west points ; and this is undoubtedly the sense in which it is most commonly used. And it is because this is the sense in which this and similar words are used, that we may and often do designate by words derived from the cardi" nal points of the horizon, the different parts of a country, how- ever irregular its boundaries. The word northivard is indefinite, and requires some quali- fying word or circumstance to indicate, with precision, the di- rection intended. Did it mean due north, then the expression " northward along the Mississippi" would be a manifest sole- cism. But we find in the Act the expression " locstward along the banks of the Ohio" which is a wider departure from a due west line, than northivard along the Mississippi is from a due north line. If the word northivard, then, is admitted to indicate the di- rection ol the western boundarv line, whether that line is a straight or meandering one, whether it inclines to the east or to the west of a given meridian, must be determined by the manner in which it is employed, and by the intention of the law. We have in this section the words " directly tvesf applied to a line along the forty-fifth parallel. We have the word " westward'^ applied to a line along" the bank of the Ohio. These words so used, give us the ideas of the framers of this section as to their proper use ; and they indicate in a manner, in which there is no room for doubt, what form of expression would have been employed had they undertaken to make a mer- idional line, the western boundary of the Province.* * In the treaties between Great Britain and the United States the words due vxst. are used in those of 1783, 1818 and 1842, to indicate a line produced directly west Wtstioard is used in the treaty of 1846, in the sense of dM west, and this is the only F»1RT I. WESTERN BOUNDARY OF ONTARIO. 55 The southern limitary line is carried forward to the banks of the Mississippi, and if the ordinary meaning of northward was directly north, still the Mississippi river would be held to be the boundary, as it is a well settled rule that both course and distance yield to natural and ascertained objects.* And when a natural boundary is once reached it is to be lollowed, unless it can be clearly shown that a departure was intended. The Proclamation of 1763, by which the old Province of Quebec is described, sets forth the limits as follows : — " The Government of Quebec, bounded on the Labrador coast by the River St. John, and from thence by a line drawn from the head of that river through the Lake St. John, to the south end of Lake Nipissim ; from whence the said line, cross- ing the River St. Lawrence, and the Lake Champlain in forty- five degrees of north latitude, passes along the highlands which divide the rivers that empty themselves into the said Ri- ver St. Lawrence from those which fall into the sea ; and also along the north coast of the Baie des C/haleurs and the Gulf of St. Lawrence to Cape Rosiers, and from thence crossing the mouth of the River St. Lawrence by the west end of the Island of Anticosti, terminates at the aforesaid River St. John."t This description continued to mark the limits of Quebec for eleven years. As the diffisrences between the Government of Great Britain and the old Colonies increased, the feeling ol" hostility to the French, as I have already stated, died away. The attitude assume-'^ by the scattered settlers in the territo- ries of the west, in the war with Pontiac, was forgotten ; and the Bill as introduced shows that the intention was to go to the Ohio on the south, and the Mississippi on the west ; and although the phraseology was changed to give to New York instance in which I have found it so used ; but it has this precision given to it by the qualifying words " along the Adth parallel of north latitude." In the commission given to Lord Dorchester due west is used to define the direction of the southern boundary, west of Lake of the Woods, and northward to define the direction of the western boundary. ♦ Preston v. Brewer, 6 Wheat, 680 : 5 Bani and Ad. 43. t Appendix F. .56 WHSILKN HOUNIMUY OF (»NTARI<). Part I. a fixofl boundai7 on tho wost, so that there could he no doubt KM to its location : no intention was dificloscd. durinp' the de- bates upon tiie Bill, or in the Bill as it ultimately passed, to ffi\e to the Province other boundaries than those named i)i the Bill as it came down from the Mouse ol' Lords. On the contrary, when we look carefully at the language of the Act, we see that it accurately describes the limits which the iJill, in its orijL;inal form, shows that Ministers wer(» resolved to establish. The entire section of the Act. de- seribing the limits of the Province of Quebec, reads as fol- lows : — "1. That all thi^. h'rri tor irs. idaads and aniittnes \\\ North America, belonging to the Crown of Great Britain. hmnideH (n> the snutli, by n line from the Bay of Chaleurs {(i) " Along the highlands, fvvhieh diAide the rivers that empty themselves into the Kiver St. Lawrence, from those which fall into th»> sea.) to a point in forty-live degrees ol' northern latitude, on the eastern bank of the River Connec- ticut : ih) '• Keeping the same latitude direvtln n'esi through the Lake Champlain. until, in the same latitude, it meets the River St. Lawrence : (c) "From thence uj) ihi' cisfeni bank of the said river to the Lake ( )ntario : [d] " Thence througli the Lake Ontario, and the river com- monly called the Niagara ; {e) ' And thence along by the eastern and south-e;i *er Ixmk of Lake Erie following the said hank until the sai Ai be intersected by the northern boundary, granted the chaTt:er of the Province of PeniLsylvania, in case the .- ime shall be so intersected ; (,/') "And from thence along the northern and western boundaries of the said Province, until the said western boun- dary strikes the Ohio : (e. 2.) " But in case the said bank of the said lake shall not be found to be so intersected, then following the said bank Tart I. WKHTKKN BOUNnARY OK ONTARKV 57 until it Khali arrivo at that point of tho said honk which shall be nearest tho north-western angle of the said Province ; (/ 2 ) " And thence along the western boundary of the said Pvovince. until it strike the river Ohio ; ^g.) '• And alontr the hank of the said river westward to the hn iiks of the Mississippi ; " And iioiilivard to the southern boundary of the territory v^ranted to the Merchants Adventurers of England trading to Hu l«on's Bay ; and also all such territories, islands and coun- tries, which have, since the tenth of February,=i'^ one thou- sand, seven hundred and sixty-three, been made part of the uovernment of Newfoundland, be and they are hereby, du- riaff His Maji'stys pleasure, annexed to, and made part and parcel of the Province of Qu»^bec, as created and established by the said Koyal Proclamation of the seventh of October, one thousand, seven hundred and sixty-three." It will be ol)served that the southern boundary extends along the hank oi the St. Lawrence, the hank of Lake Erie, and the hank of the Ohio river, and to the hcuiks of the Mississippi. Now there must have been some reason for using the plural form of the word in this one instance, and when we look into the definitive Treaty ol Paris, the intention, I think, becomes ob- vious. By that Treaty the middle of the Mississippi was made the boundary between the English and the French possessions, but the navigation of the whole river I'rom bank to bank was tree to the subjects of both Crowns ; each had, for purposes of navigation and commerce, an easement in the waters of the other's half of the river, and a servitude upon its own. The Grovernment of each nation could regulate the navigation of the river so far as its own subjects were concerned, as abso- lutely as if the river had been wholly within its own territory- Had t .u' framers of the Bill proposed to exclude the Mississippi as they did the Ohio, they would have used the same form of expression, and said " to the bank of the Mississippi." Had it ♦ '"bis date is obviously a mistake. It is the date of the Treaty of Paris, by which the country was ceded to Great Britain. 58 WEclTERN BOUNDARY OF ONTARIO. Part I. been proposed to do nothing more than to make the middle ot the Mississippi the western boundary, the southern boundary would have been extended " along the bank of the Ohio to the MiLsissippi, and thence to the middle of the said river ;" but the authors of the Act used another Ibrm of expression, and they evidently used it for the purpose of placing the navi- gation of the river, so far as British subjects were concerned, under the Government of Quebec. The English Government were resolved to prevent, if possible, the colonization of the country. They had been ibrced to abandon the policy of ex- patriating the French They did not look for French emigra- tion, and they hoped to prevent a further increase of the mischief, or what they regarded as such, by preventing the colonists from the east of the Alleghanies settling north of the Ohio. They felt that two things were necessary to give them success —the extension of French law over the entire country, and the exclusion of the old colonists from the fur trade of the north-west. It was said that the western trade was, contrary to law, carried on with New Orleans. This the English Mi- nistry were refidy to permit, as a lesser evil than colonization. They did not feel sure that settlement could be prevented, unless the English colonists were excluded from che navigation of the Mississippi. They wall knew that p a Imperial statute would be as|impotent for this purpose, as the Kin^^'s Proclama- tion had been against the settlement of the valley of the Ohio. Thoy knew that the French colonists of the Illinois country, wished to retain to themselves the fvir trade of the upper Mis- sissippi. They had, not long before, shown a desire to have the Indian war renewed, to prevent the other colonists I'rom engaging in it ; and no other people would have the same in- terest in enforcing any measure necessary to this end. As no colonial law has any extra-territorial force, had the Quebec Act done nothing more than extend the boundary of the Pro- vince to the centre of the Mississippi river, the Government of Quebec could have had no eflective control over the navi- gation of the river, as the easement secured to British subjects Part I. WESTERN BOUNDARY OF ONTARIO. 5& in the whole river, would have been beyond its reach in the western half. What the Act clearly points to is an intention not only to extend the limitary line on the west to the inter- national boundary, but also to embrace within the jurisdic- tion of the Government of Quebec the navigation of the Mis- sissippi river. This view of Imperial policy, is confirmed by the correspondence which passed between the Colonial Office and various officials in America.=^ If this policy was never carried out, it w^as because the Imperial authorities at last saw that war w^ith their colonies was imminent, and triey were not disposed to widen the breach by giving further cause for offence. The same Government that carried the Quebec Act through Parliament, advised the King to commission Sir Guy Carle- ton in the following year. Thurlow and Wedderburn were still the law officers of the Crown; and it was evident from the boundaries laid down in the Governor's commission, that they understood the Quebec Act as extending the Province to the Mississippi river. The boundaries of the Province, as set forth in the com- mission to Sir Guy Carleton in 1775, w^ere the following-: " Our Province of Quebec in America, comprehending all our territories, islands, and countries in North America, bounded by a line from the Bay of Chaleurs along the highlands which divide the rivers that empty themselves into the River St. Lawrence from those which fall into the sea, to a point in forty-five degrees of Northern Latitude on the eastern bank of the River Connecticut ; keeping the same latitude directly west through the Lake Champlain, until in the same latitude it meets with the River St. Law- rence ; from thence up the eastern bank of the said river to the Lake Ontario ; thence through the Lake Ontario and the river commonly called Niagara ; and thence a^ong by the eastern and south-eastern bank of Lake Erie, following the said bank until the same shall be intersected by the north- ■ Numerous letters of Hillsborough, Dartmouth, Wri>,'ht, Gage, and others. 60 WESSKRN BOUNDARY OF ONTARIO. Part I. em boundary granted by the charter of the Province ol Pennsylvania, in case the same shall be so intersected, and from thence along the said northern and western bounda- ries of the said Province until the said western boundary strikes the Ohio ; but in case the said bank of the said lake shall not be found to be so intersected, then following the said bank until it shall arrive at the point of the said bank which shall be nearest to the north-western angle of the Pro- vince of Pennsvlvania : and thence bv a right line to the said north-western angle of the said Province ; and thence along the western boundary of the said Province until it strikes the River Ohio, and along the bank of the said river westward to the banks ol' the Mississippi, and northward along the eastern bank of the srtid river to the southern bou)!- dary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay; and also all such ter- ritory, islands, and countries which have, since the tenth of February. 1 768. been made part of the Government of New- foundland as aforesaid." In this commission the word so7ith. which is i'ound in the Act. is omitted ; so that, the boundary of the country, which Sir (ruy Carleton had authority to govern, could be specifi- cally laid down upon the west as well as upon the south, and this we see was done with but little departure from the words ol' the statute. I hav(^ already stated that the Act would not accomplish the object sot forth in ihe jireamble — of making provision for the administration of civil government in the several colonies and settlements of French who were not included in the Pro- vince of Quebec, established by the Royal Proclamation of October. 1763, unless the Mississippi was made the western boundary. There were at least live, and according to the French view six, settlements of French on the east side of the Mississippi, in what was called the Illinois country, which, though not included in the capitulation at Montreal, were ceded by the deiinitive Treaty of Paris to Great Britain. These were b'loridt r*rr I. WESTERN BOUNDARY OF ONTAHIO. 61 Cahokia, at the mouth ol" a creek of the same name, about three miles from the site of St. Louis ; St. Philip, forty-live miles below Cahokia on the Mississippi ; Fort Chartres, about seven miles below St. Philip ; Prairie du Rocher. near Fort C'hartres; Kaskaskias, on a river of the same name, six miles* from its mouth and tifteen miles south-east of Fort Chartres : and Vincennes upon the Wabash. According to the repre- sentations made by Mr. Pitt to M. Bussy, Vincennes was in- cluded in tlie country surrendered by the Marquis of Vaii- dreuil to Greneral Amherst. It is certain, however, that in was under the government of the French commandant of the Illinois country, and regarded by the French as being withui that section of the Province of Louisiana, which, before the con- ([uest, was made subordinate to and dependent upon Canada. All these places, except Vincennes, are west of a line drawn due north from the junction of the Ohio and Mississippi rivers, and they formed a majority of the people who were, by the Act, declared to have been without any civil government — a l)enefit which the preamble of the Act declares it w^as desiun- I'd to confer upon them by annexina- them to the old Pro- vince of Quebec. The English Ministry were in possession of information as to the population of the principv; French settlements. Oap- liiin Pitman, a military engineer, was sent by the British Gro- \ ^n'nment to survey the forts, munitions ol' war, and town.s in Florida, when the British took possession of that country. Having surveyed the fortilications of Pensacola and Mobile, he proceeded to survey the posts on the lower Mississippi, and reached Illinois in 1766. H*' published, in London, in 1770, a ((uarto volume, entitled, " The Present State of the hhiropean Settlements on the Mississippi."" lie describes \hv Illinois country as the territory which is bounded on the north bv Illinois river, on the south by the Ohio, on the west by thi' Mississippi, and on the east by the Wabash and Miaiuis. He describes the soil, climate. Indian tribes, and the French settle- ments; and also the agricultural and commercial pursuits of the i . ,1; i; 62 WESTERN BOUNDARY OF ONTARIO. part i. people. Tie j^ives the population of the villages along" the Mississippi as follows : Fort Chartres forty families ; Kaskas- kias sixty-five families, besides merchants and slaves, and a small garrison of twenty-one soldiers ; Prairie du Rocher twelve families; St. Philip sixteen families, and Cahokia forty- five families.* Alter the English went into possession of the Illinois coun- try, many of the French abandoned their residences, and re- moved to the west side of the Mississippi. "When the census was taken in 1768, it is probable that more than half the popu- lation had left. The population of Fort Chartres had dimin- ished from 300 in 1764, to 15 in 1708, and St. Philip from 150 to the same number. The census then taken shows the num- ber of inhabitants in the settlements of the west to have been as follows : Kaskaskias !)03 Cahokia 300 St. Philip 15 Prairie du llocher 125 Fort Chartres 15 Total upon the Mississippi* 1358 Yiiicennes upon the Wabash* 427 Oiatenoii upon the Wabash 126 St. Joseph's, S E. of Lake Michigan 90 Detroit f 572 There were a few settlers at Michilimackinac, and a larger number in the north-west, beyond Lake Superior, but their numbers were not known. These statistics show that the most populous of the French colonies west of the old Pro- vince of (Quebec was that in Illinois, upon the east bank of the Mississippi river, whose people had petitiojied for the es- tablishment of a civil government, whose last Governor, Roch* blave, was Lieutepant-Governor under Sir Guy Carleton, and was made by him subordinate to Lieutenant-Governor llamil- • .-ee Ai>i)eudix G. t See A));)en(iic(!8 G. uiul \J. ; also Rogers' Acct. N. A. p. 1G8 ; Mante's History of the War, p. ii2b ; Craig'n Olileu Time, 414 ; Gen. Gage to Hillsborough, 15th May 17(i8, iind Otn .Tii!\uary, 17(i<). upon *HeeH + Mr. NdTK. aimed at iiicliidiiii. aldliy- the fiuireiider, sion (if til Mr. Pitt, rcmlrr |,y "lit, tlicivi •>f--lieve th KiiLdaiid Part I. WESTERN BOUND AEY OF ONTARIO. 63 ton, of Detroit. They all dwelt west of a line drawn due north from the junction of the Ohio and Mississippi rivers.* It has been suggested that the western bonndary under the Act of 1774, was neither the Mississippi nor a due-north line, but the line marked upon a map which General Amherst said he had received from the Marquis of Vaudreuil, and which was in the possession of Mr. Hans Stanley, when at Paris, in 1761. Mr. Pitt in a letter to M. Bussy thus describes the western limitary line of the country surrendered by the capitulation of Montreal : " Canada, according to the line of its limits, as traced by the Marquis de Vaudreuil himself, when that Governor surrendered the said Province by capi- tulation to the British General, Sir J. Amherst, comprehends on the one side the Lakes Huron, Michigan and Superior; and the said line drawn to the Red Lake takes in, by a serpen- tine progress, the River Ouabache ("Wabash) as far as its junc- tion with the Ohio, and thence extends itself along the latter river as far, inclusively, as its influx into the Mississippi."! It is only necessary to observe, that, had it been intended to make any such line the western boundary, there would have been no propriety in extending the southern limitary line fur- ther westward than the mouth of the Wabash. That part of the line referred to by Mr. Pitt, from the "Wa- bash to the Mississippi, could have been drawn but for one purpose — to surrender to the English the valley of the Ohio upon the south side of that river. According to the represen- * Hee llutcliiu's Map. + Mr. I'itt to M. Bussy, 17th August, 1701. See Appendix I. NoTK.— This passage is ob.«icure, but I have understood it as he.^t suits tlic olijoct aiiiii'il at by I itt— the surrender of the valley of the ( )liio. If the line is nii(li'i> ood as ilicluiliiig the Wal>a,'h. &e., on its course to ]\ri\ ],akc, then it must cxtiiid nortliu .ird alou,' the ^Mississippi ; but this would be excluding the valley of the Ohio froin the surrender, which Mr. Pitt was most anxious to seciire, as it was the contested ])osse8- siou (if this valley which gave rise to the war. The use of the word " inclusively" by Mr. I'itt, shows th.at the Uhio, from the mouth of the Wabash, was included in the sur- render by a boundary along its northern bank. The country west of the Wabash was not, therefore, includ d in the surrender to General Andierst. There is no reason to believe this line was thought of by the framcrs of tht; l^ueliec Act. The treaty gave Kngkmd a better boundary than she had by Vaudreuil's capitulation. I,.l. 64 WESTERN BOUNDARY OF ONTARIO. I' ART I. tations of Mr. Pitt the whole valley of the Ohio on both sides of the river, as far as the Wabash, and the southern half of the the valley, from the Wabash to the Mississippi, was surren- dered to General Amherst. Had it been intended to make this line the western boundary, the southern boundary would not have been extended beyond the Wabash, for by producing the southern boundary to the Mississippi along- the Ohio, if this line, referred to by Mr. Pitt, marked the western limit of the Province, the western boundary would return upon the south- ern as far as the Wabash river. It is unnecessary to say any- thing' further to show that no such line was intended, as the western limit, by the authors of the Quebec Act. From what I have so far stated, it will be seen that, before the seven years' war, the colonists were encouraged to settle west of the Alleghany mountains ; that after the Treaty of Pa- ris the prevailing policy was to prevent any settlement beyond the Ohio : and the intention of removing the French colonists who were settled upon the banks of the Wabash and the Missis- sippi, was seriously entertained, and was only abandoned by the retirement of Hillsborough from the Grovernment ; that the ostensible object of the Quebec Act, was to enlarge the boun- daries of Quebec upon the west, by embracing those vast re- gions in which French colonists remained, and who had been K'ft without any civil government ; that to accomplish this object it became necessary to extend tho western frontier to th»^ Mississippi river ; that the only boundary described in the Act, is the one upon the south, \^'hich is a line drawn from the sea to the frontier of the possessions of a foreign state ; that a boun- dary at once natural and political being reached, it ought to be followed, unless a different intention is clearly expressed ; that when a line on the south is drawn to a natural boundary, and it is stated that all the country to the northward is to be em- l)raced within a state or province, it would be a forced con- struction which would depart from that natural boundary, be- cause some parts of the territory which would be included by it, he* farther to the west than the most western limit of the south- t<> Spain 17«r), and * See ah 1842. F Part I. WESTERN BOUNDARY OF ONTARIO. m ern boundary ; that when the Bill came down from the House of Lords to the House of Commons, the Mississippi was named as the limit upon the west; that the phraseology was changed, not to give to the Province more contracted limits, but to give the exact location of the southern boundary in the Act ; that the colonists understood the Act as embracing the whole country from the ocean to the Mississippi ; that Lord Shelburne and others who moved the repeal of the Act in the following year so understood it; and that the Ministers and Law OfRcers of the Crown so construed the Act is clear from the boundaries named in the commission of Sir Guy Carleton. Spain, at the time the Quebec Act was passed, held all the country west of the Mississippi.* The old English colonies were on the brink of revolution, and, contrary to the preamble of the Bill, and contrary to the avowed declaration of its sup- porters, it is scarcely reasonable to suppose that the Parlia- ment of Great Britain would deliberately leave a strip ol ter- ritory seven hundred miles in length, and for a considerable distance not one hundred miles in width, without any civil government being provided, and that too upon ijie border of a country whose Government had been long hostile to Great Britain, and whose population were of the same nationality as our own subjugated colonists wilhin this narrow territory. By the second article of the Treaty of 1788, the south-west- ern part of Quebec was ceded to the United States. The boun- dary in the north-west is delined as extending " through Lake Superior, northward of Isles Royal and Philiippeaux to Long Lake ; thence through the middle of the said Long Lake, and the water communication between it and Lake of the Woods, 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 western course to the River Mi^'Sissippi/'t * By a .secret Treaty with Spain in 1702, but made public in 17(J4, France ceded to Spain all the country known as Louisiana. This transfer was promulj^ated in 171)5, and Spain went into jjossession in 17(JU. * See also Treaty of Ghent I8i4, Cov.ventiou of 1818, and the Ashburton Treaty 1H42. F M 66 WESTERN BOUNDARY OF ONTARIO. Part I. iff When a new commission came to be issued in which the boundaries of Quebec were laid down after this larg-e sec- tion of territory was taken away, it was necessary to follow the new international boundary as far as it ext(>nded. If the western limit of Quebec under the Act of 1774, was aline due north from the junction of the Ohio and Mississippi rivers, the western limit of the Province would have begun where this meridian cuts the international boundnry in Lake Su- perior, and the boundary of the Province upon the frontier would not have been carried westward beyond this point. On the other hand, if the Mississippi was held to be the western limit, it would be still necessary to go westward along the new southern boundary, until the line of the Mis- sissippi was reached. On the 22nd of April, 1786, the King issued a commission to Sir Guy Carleton, " as Captain-Gene- ral and Governor-in-Chief in and for the Province of Quebec, in America, comprehtmding all the territories, islands and countries in North America, bounded on the south by a line from the Bay of Chaleurs along the highlands which divide the rivers that empty themselves into the River St. Law- rence, from those which fall into the Atlantic Ocean to the north-easternmost head of the Connecticut river ; thence down along the middle of the river to the forty-fifth degree of north latitude. From ihence by a line due west in the said latitude, until it strikes the River Iroquois at Cataraqui; thence along the middle of the said river into Lake Ontario ; through the middle of the said lake until it strikes a com- munication by watgr between that lake and Lake Erie ; ti. rough the middle of the said lake, until it strikes the water communication between that lake and Lake Huron ; thence along the middle of the said water communication into Lake Huron, thence through the middle of the said lake to the w^ater communication between that lake and Lake Superior ; thence through Lake Superior, northward of the Isles Royal and Phillippeaux to the Long Lake; thence throuQ-h the middle of the said Long Lake and the water Part com then norti COUTH boun ersoi tories 1763, He] the w than t to hav possibJ Quebei Carletc be dou of the I Was es Council continu been ar< Words, 1 Was to r Act, or proclami the Crovj boundarf 1791, tht Lower does noti power tol ^ing hasf is necessi: * Ohisholir t By tlie Ti King and Urol Part I. WESTERN BOUNDAIIY OF ONTARIO. 67 communication between it and Lake ol' the "Woods, and thence throuijh the said Lake ol' the Woods to the most north-western point thereof; and from thence in a due west course to the river Mississippi, and nnrfhivard to the southern boundary ol" the territory granted to the Merchant Adventur- ers of England trading to Hudson's Bay; and also all such terri- tories, islands and countries which have since the 10th ol' April, 1763, been made part ol'the government ol' Newfoundland."* Here we see the Mississippi was made the limitary line upon the west, and I know of no other reason for so regarding it than the one which I have already stated— that it was beli(!ved to have been made such by the Act of 1774. But were it possible to suppose otherwise, still the southern boundary of Quebec is extended by the King's commission to Sir Gruy Carleton westward to the Mississippi river, and it can scarcely be doubted that if the King wished to enlarge the boundaries of the Province he had the power to do so. The old Province was established by proclamation based upon an Order in Council, and the limits of the Province as enlarged was to continue only during his Majesty's pleasure. It might have been argued, that according to a literal construction of these words, all the power reserved to the Crown in the matter was to retain the boundaries as they were set forth in the Act, or revert to those which were lirst established by the proclamation. It was not so, however, that the advisers of the Crown understood the law. The King lirst chanued the bottndaries by the Trt^aty of 1763; and on the lOth of April, 1791, the Province of Quebec was divided into Upper and Lower Canada, by an Order in Council. The Act of 179] does not divide the Province of Quebec. It assumes that power to do this is vested in the Crown. It declares that the King has expressed his pleasure to make the division, and it is necessary to provide a government for each Province.! « Chisholm Papers, MSS., p. 110. t By the Treaty of Paris, 1703, the Island of t'apu Breton was ceded by France to the King and Crown of Great Britain. By Proclamation issued by the King in Octoh I 68 WESTERN BOUNDARY OF ONTARIO, Pabt I. Tai T I The Province of Quebec was divided into Upper and Lower Canada by an Order in Council passed on (he 19th August, 1791 , 17C3, the iHlandti of (Jape Breton and St. Johns were annexed to the Government of Nova Scotia, and the Proclamation authorized the Governor to call General Assemblies in the siiid governments, as soon as the circumstances of the colony would admit. In 1784 a separate government, l)y Iloyal (Commission, was given to (Jape Breton ; and in IS20 the Crown, hy a commission to the (jovernor of Nova Scotia, annexed CJape Bre- ton to Nova Scotia. The inhabitants of (Jape Breton petitioned the Crown, complain- ing of the illoLfality of the re-annexation by the act of the Crown alone, without their consent, or without an Act of the Imperial Parliament, as contrary to the Proclama- tion of 17(i3, and the (Commission of 1784. Held by the Judicial Committee of the Privy Council that the union was lej^al, and that the iietitioiiers were not entitled to a separate constitution under the (Jonunission of 1781. In re (Jape Breton In/nixJ, 1840, ."> Moore'nP. G. Reports. " The Kin,' had no jurisdiction over boundary within the realm; without, he had in all his dominions as the absolute owner of the territory from whom all title and power must flow, (1 Bl. CCom. 241 ; Co Litt 1 ; Ho))b. ;i22 ; 7 D. C. D. 7(5 ; Cowp, 204-11 ; 7 Co. 17 h.) as the supreme legislator— save a limited power in Parlia- ment. He ccmld make or unmake boundaries in any jiart of his dominions, except in proprietary provinces. He exercised this power by treaty, as in 17();?, by limiting th»' colonies to the Missis.sippi, whose charters extended to the South Sea ; by proclamatioH which was a supreme law, as in Florida and Georgia, (12 Wheat ■'>24 ; 1 Laws of U. S. 44;i-.')l ;) by Order in Council, as between Massachusetts and New Hampshire cited in the argument (1). But in all cases it was by his political power, which was com- petent to dismend)er royal, though it was not exercised on the chartered or proprietary provinces. (Mclntyre r. Johnston, 8. Wheat 580.) In Council the King had no origi- nal power (I Ves. Sr. 447). He decided on appeals from the colonitvl courts, settled boundaries in virtue of his prerogative where there was no agreement : but if there is disputed agreement, the King cannot decree on it ; and therefore, the Council remit in to be determined in another place,on the footing of a conti-act (1 Ves. Sr. H47); Baldwin, J. ill Rhode Inlitnd r. I\fnssavhii.iettii-~12 Peters, S. C. Beporfs. Before the Treaty of Paris, 170.S, the territory claimed by England in North America extended southwardly to the 2',)th degree of north latitude as is evidenced by her charters to the Lords proprietors in ltJ77, {Kil)-")) and by the same instrument .she in- terfered with the province of Louisiana by extending her southern line to the ocean. The country of Florida south of the 2!)th degree X. L., and west to the Mississippi was a con(iuest on the seventh of October, 17(W, the King establishe 1 the northern boundary of the Floridas at M degrees N. Ij., taking off a strip two degrees in width from the original colonies. Tiiis became a subject of dispute between the United States and Spain after the treaty of 178.1. The original title of South ('arolina, under the grant to tlie lord's proprietors, was unquestionable ; and she contended that she had never been legally divested of the soil or sovreignty. (ieorgia founded her claim upon the commission to her governor, Wright, which comjmsed within its jurisdiction the territory in (pu'stion, and the United States claimed it as a conquest from the British I'rovinee of West Florida. While Spain insisted that it was either a iiart of Louisiana or Florida, and as sucli was ceded to hi'r by tlie Treaty of 1783. South Carolina , by theTreaty of Beaufort, relinquislieil ln'r elaini to ( leorgia, and the United Tamt I. WESTERN BOUNDARY OF ONTARIO. 69 undin the commission to Lord Dorchester, formerly Sir Guy Car- leton, bearing date the 12th of September i'ollovving, the boun- i>/,l7 AiKjiint, 1701. As the Court of England has added to the first article of their answer to the entire and total cession of t'anada as agreed between the two Courts the word dependenciss, it is necessary to give a specific explanation of this word, that the cession might not in the end occasion difficidties between the two Courts with regard to the meaning of the word ih/iciidciiritn. Choiseul, !) Sep., 1701. The reason is obvious, for otherwise it woidd include all Louisiana. fras s Huds the T iiada : posses the P the m ered t westw reliabf session wrote New F as i'ar a C^mcer directio norther that Ian arctic p to the mt Englan< as far ns of Amer tion wh There i^ tion sin( France Canada, under tl harnois, l^nowJed other tht As ear Indians * Mofras, t Baucro >fl Fart I. WEHTKim BOUNDARY OK ONTAHK). 71 fnis suyH: " II th*' })oiui(liiricH botwct'ii Now Franco and the Hudson's Bay Company wero not clearly dolinod ovon alter the Treaty of Utrecht in 1713 and thnt of the cession of Ca- nada in 1703, it is undeniable, that, either New iM'ance or the possessions of the Hudson's Bay Company extended as far as the Pacilic ocean ; and that if the Spaniards iirst explored the north-western coast of America, the French Iirst discov- ered the interior of the continent proceeding* from the east westwards. All the old maps, in this, in accord with the most reliable authors, only place the boundary of the French pos- sessions in Canada at the southern sea. L'F]scarl)ot, who wrote in 1617, amoni^ others, states as follows; — 'Thus our New France has for its limits, on the western side the lands as far as the sea called the Pacilic, on this side the tropic of (Jancer ; on the south the islands of the Athmtic sea, in the direction of Cuba and the island of Hispaniola; on the east the northern sea which bathes New France, and on the north that land called unknown towards the icy sea as lar as the arctic pole.' Lustli/, in a map efi^miied in 17o7, and altnched to the memorinia of the Commissioners of the Kings of France and England in America it mai/ he observed that New Frunce extended as far as the Pacific ocean, and it shows on the western coast of America, at the 4fith degree, a large river running in a direc- tion which corresponds exactly with that of the llio Columbia. There is moreover nothing surprising in this specilic descrip- tion since from 1711 to 1754, the Captains Cleneral of New France sent out numerous expeditions to the western part of Canada, and after thirty years of uninterrupted explorations under the enlightened Government of the Marquis de Beau- harnois, an officer, M. de la Verendrye, acquired a thorough knowledge of the river and the western sea, which were no other than the Pacilic Ocean and the Columbia."* As early as 1641, Jogues and Raymbault preached to the Indians at the outlet of Lake Superior.-)- Shortly after this the * Mofras ' Exijlomtion de I'OiVij'on et des tJalifornies. + Bancroft, vol. 2, c\\i\.\). 'Hi. 72 WESTERN BOUNDARY OF ONTARIO. Part I. ?:l; Iroquois war began, and many of the Hurons and Ottawas lied to the western shore of that hike. In 1654, two young- fur traders joined a hand of those In- dians who were then at Quebec, and were absent for two years. They returned in 1656, accompanied by 250 Indians. They gave information in regard to the great lakes beyond Lake Huron. They described the Sioux of the west nd the Knisteneaux of the north, and other tribes who dwelt in the region about them. The Indians asked to have their commerce with the French renewed, and missionaries sent amongst them. In 1659 some fur traders went to G-reen Bay, and two of them passed the winter upon the shore of Lake Superior. They re- turned to Quebec the following summer with an escort of sixty canoes and 300 Indians. Between 1660 and 1672 the whole country about Lake Su- perior was explored by Mesnard, Allouez, Dablon, Marquette, and Andre. In 1671 the Hurons and Ottawas who dwelt at La Pointe near the western extremity of Superior, and whose emigration thither facilitated the explorations of the French, were sud- denly attacked by the Sioux, and returned to their ancient country.* The Illinois tribes, who had at one time dwelt near Lake Micb'gan, but who had been driven by the Iro([uois beyond the Mississippi, were yearly visitors at La Pointe, inlormed ^Marquette and others of the existence of the Mississippi and the intervening country. t Daniel Cfreysolon du Lhut, in 1678, ex- ]>l()red the counti'y l)etween Lake Superior and the Mississippi. He hao. been two years \u those regions w'hen met l)y Henne- pin. He sought to establish relations of friendship betw^een the Sioux and the >issiniboines. In the summer of 167.'), he visited three towns of the Sioux, and planted in their country the arms of the French King.J He, with the four Frenchmen who * I'arkmiin's Discovery "f the (ireat Wost, p. M. t Diilln n. Jlcliitioii, 1(171. J Du Lhnt to }[. Friuiliiiar, He left Qu>-'l)ec on the 1st of Se|iteiiiljei', 1(178, for tho purpose of discoveiiiij,' the XiuU'H.sioux (Sioux) aiul .VssiniiHiulak.s (Assiniboiim). On Part I. WESTERN IIOUNDARY OF ONTARIO. in were with him, accompanied Hennepin down the Mississippi to the Wisconsin, and thence to Oreen Bay, He built a tradinpf post near Thunder Bay on the north-west shore of Lake Super- ior, called Camanistii2:oyan. The Intendant, Duchesneau, de- nounced him as a leader of the amreurs des hois, ol" whom the missionaries complained, and who were trading with the In- dians without licenses. In all this he acted in a public cajmcih/, and under the authority of the Grovernor of Canada.* The French, about this time, established forts at the river Nipigon and other places upon Lake Superior ;t and it would seem that a trading post was erected north or north-west of Lake Nipigon.J^ Li 1716, Messrs. Vaudreuil and Began addressed the French Grovernment in favor of extending the explorations westward to the I'aciHc ocean. The Government of France, the following year, approved of the plan. M. de Vaudreuil was instructed to establish three posts without any expense the2ncl July, 1070. ho ciui!. t See M. de Beauhai'nois to (Jountde Maurepas, 8th Oct., 1741. See Apjiendix M. X Uu Jihut's brother who has recently arrived from the rivers above the l^ake of the AUenenipigons a.ssureH me that he saw more than l.")00 persons coLie to trade with him. They were very sorry that he had not sufficient goods to satisfy them. They are of the tribes accustomed to resort to the English of I'ort .\elsoii or Uiver IJourbon, wliere they .say they did not go, through Sieurdii I, hut's influence. It remains to be .*een wiiether they speak the truth, 'i'he overland route to them is frightful, on account of its length and of the difHculty of tinding food. He says there is a multitud'; of poo- pl'- beyond these, and that no trade is to be e.xpected except by sea, for by the rivers the expense is too great. Denonville to Seignelay. August 1087. S The North- West ("omjiany had a fort (Ft. Duncan) at the north end of Lakt Xipi- gon. described by Harmon in his journal. Employing the Coiircnrg leu Itoix, fornierly in the .service of the French, they occupied the trading posts which had been established liy tie' French. The old commanders hail returned to the army, and the trade was for a few years suspended. This is evident from the statement made by the Indians to (!arver. When the wai- was over the wood runners remained, but the commanders returned no more. li It! 74 WESTERN BOT^NDARY OF ONTARIO. Part i. to the King- ; as it was thoug'ht that those who founded them would liiid a sufficient remuneration in the Indian trade. In Jufy 1717, M. de Vaudreuil caused Sieur de la None, lieu- tenant, to set out with eight cannons to prosecute this scheme of discovery. Re instructed Lieutenant de la None "'to estab- lish the first post at the River Kanastigoya," to the north of Lake Superior, after which he was to go to Takancamiononis near the Christianimx lake, to establish a second,* and to acquire throuuh the Indians the information necessary for the establishment of the third at the Lake of the Assenipoles.f It is said that while this expedition will cost the King- nothing, it is absolutely necessary that the King should bear the ex- pense of those who continue to explore the country, after these posts have been established, as they will be obliged to give up all idea of trade. They estimate that fifty good voj;/- ageurs will be required; twenty-four to occupy the three posts, and twenty-six others to prosecute the exploration of the country from Lake Assenipoles to the western sea.-f- The next expedition of which I have been able to find any authentic account, is that of M. Verendrye. He formed a trading partnership with some Montreal merchants. Thciy supplied goods, or funds wherewith to purchase such as were suited to the Indian trade. They also furnished the equip- ment for his journey. He set out for Lake Superior, accom- panied by Pore Messager, a missionary priest. He was au- thorized to take possession, in the King's name, of all countries he should discover ; also to examine them attentively, inord»;r to form an idea as to what faciiUies they might possess lor establishing a route across those western regions, by which Canada and Louisiana might ))e connected with the South sea. To enable him to perform this important service no public aid was accorded to him, and, as a consequence, he found it necessary to linger about Michilimackinac and Lake • Lake St. Joseph's, north of Nipigon, and at the hcail of Albany rivi;r. t Lake Winnipeg. X See .Minute uf (."ouueil. .-Vppendix K. m Part I. WESTEEN BOUNDARY OF ONTARIO. 75 Superior until 1733. In the year 1731 some of those in the emploj^ment of M. Verendrye, startinj^ from Kaministi<^oya, a fort constructed by Lieutenant Robert de la Noue, passed on to Eainy lake, where they built Fort St. Peter. They then proceeded westward to Lake of the vVoods, where they erected Fort St. Charles the following- yeir. They subsequently fol- lowed the course of Winnipeg river, upon the north bank of which they constructed Fort Maurepas in 1734. " They took," snys G-arneau, "possession of the country for a two-fold pur- pose — to fuliil the obligation they owed to the King, and to esMbi.sh fortified posts, useful to themselves, for tlie prosecu- tion of their private traffic. They crossed Lake Dauphin and Swan Lake ; they recognized the River -.'5 katchewan river, in 53^ north latitude and longitude 102" west."* " It may be proper," says McKenzie, " to observe that the French had two settlements upon the Saskatchewan long- before and at th(; conquest of Canada ; the first at the Pas- quia, near Carrol; river, and the other at Nipawi, where they had agricultural instruments and wheel carriages, marks of both being ibund about these establishments, where the soil is excellent"! All the posts in the north-west were un- der the control of the Governor of Canada, and were recog- nized as being within its hmits. In the yeai 1746, when a number of French traders had been murdered by the Indians, Gallissoniere (the Governor) suggests the propriety of abandoning the northern and west- ern posts, so as to compel the Indians " to come to Michili- mackinac, and even to Montreal, in search of what they want." He informs Lieutenant St. Pierre that he is at Uberty to determine, according to circumstances, as to whether the diiferent licenses to the northern posts shall be carried into execution or not. They were ; and the only reason for not undertaking to coerce the Indians in the manner suggested was, that the trade of the north-west would pass into the hands of the English at Hudson's Bay. J Between the period of the fall of Quebec, and the year 1766, the trade by the lakes and the St. Lawrence was greatly in- terrupted. Few, if any, of the old " commanders" remained. They were men of education, with strong national feeling, and, for the most part, officers of the army ; and they with- drew, when New France became a British poss^ession.H Carver, who visited the country north ol Lake Superior, in 1767, says that, on the waters which iall into Lake Winnipeg, * HiHtory of the Fur Trade, pp. v. vi. Sir A. McKenzie, 178!M»;i. I /''(■(/. J). Ixxiii. Ni|ia\vi is in 104*' went l(iii:,'itu(le, aiifl seems to have been esta- bliished by ("apt.aiu de la ( 'orne, some time prior to 174(5, See Appendix L. + See extracts from N. Y. Hist. Doc, appendix M. II See Sir W. Johnson to Lords of Trade ; also, extract? from Sir A. McKenzie'ii History of tlie Fur Trade. ings gan * S.' tS( T>ascow them, pa survivors who fire tlieni hii "lie of til with evci I 11 I'ART I. WEST Eli N BOUNDARY OF ONTARIO. 77 " the neiffhbouriiiff nations take "reat numbers of excellent furs, some oi' these tlu*y rurry to the factories and settlements belonging- to Hudson's Bay Company, situated above the en- trance of the Bourbon riVer ; but this they do with reluc- tance on several accounts; for some of the Assinipoils and Killistinoes, who usually traded with the Company's servants^ told me that, if they could be sure of a constant supply of goods from Michilimackinac, they would not trade anywhere else."* The Canadians who had liyed long with the Indians con- tinued to reside amonif them after the conquest. They had done so from the time of Du Lhut. They enjoyed the confi- dence of the tribes among whom they dwelt. There had al- ways been many bordi' men in the old colonies, who engaged in the Indian trade. I i the year 1746 eight of them, led by a Canadian, succeeded in passing from the Ohio to north shore of Lake Superior.! They were, however, generally ig- norant of the north-west ; and they knew, after Canada be- came a dependency of England, by recent experience, that the Ibrmer allies of the iTidians had iauglit them to cherish feel- ings of hatred to Englishmen.^ When, then, the English be- gan to engage in the fur trade of the west, they employed the coureurs ties bols, as thcnr intermediate agents, in dealing with the Indians. The trade, by the way of the lakes, was rapidly resuscitated, and extended from the Missouri river to the Polar sea, and west to the Rocky Mountains. § One of the * See extracts from Carver's Travels, xYppendix L. t See extracts from New York Hist., Doc, iipinmclix M. + I'arkmiin's war of Pontiac, ainl I'aris tlocuments in the N. Y. Hi.st.. Doe. ;} " Tiio northeni Iii'e eontracteii the small i)ox -which has carried oH' iiini'-ti-iiths of them, particularly those people who compose the trade at < 'hurchill Factory, The few survivors follow theexample of their si-nthern neii,;hliours and trade \\ itli the ( 'anadi."ns, who are settled in the heart of the Athapascow couiitry. I was informed hy some nor- thern Indians that the few who remain of the fopfier 'J'rihe have found their way U> one of the ( )anadian houses in the Athapascow Indiaiis" country, where they get sn|)plie(l with evi^-ythin^' at less, or about half the )>rice they were formerly oblit,'ed to t^dve : so 78 WESTERN BOUNDATIY OF ONTARIO. Part I Enj]flish tradfirs, Thomas Curry, in the autumn ol" 17G6, accom- panied by several i^uides and interpreters, went to Fort Bour- bon, on the Saskatchewan, and returned alter a most fortunate adventure, the Ibllowing sprina'.^ Within a very short period ol" time, an animated competi- tion prevailed amonji- the I'ur traders, and occasional conflicts ensued which pointed to the necessity of union, f In 17H8, the North- West Company was formed at Montreal, with a capital which was divided into sixteen shares, but no portion of it was deposited. In the spring* of the following year, two of the shareholders went to the G-rand Portag-e, near the head of Lake Superior, for the purpose of seeing the prin- cipal traders, whom it was proposed to embrace in the com- pany. The arrangements which had been made, were agreed to, and conlirmed by all, except a Mr. Pond, who was not sat- isfied with the share allotted him. He and a Mr. Pangman, who seems to have been overlooked, came to Montreal to or- ganize another company, intending, if successful, to return again to the north-west for the purpose of superintending the trade. Pond united with the first company. But Pangman, being joined by Gregory, McLeod and McKenzie, formed a separate oru'anization. These rival companies soon came into conflict, and Sir A. McKenzie, says, — "Alter the murder of one of our partners and the laming of another, and the narrow escape of one of the clerks, who received a bullet through his powder horn in the execution of his duty, a union of the two Companies was effected in July, 1787."]: The X. Y. Company which had several forts, and lor a time carried on an extensive trade in the north-west, united with the North-West that the few .smvivinj,' northfiii Indians, as well as the Hudson's Bay Company have now lost every shadow of any future trade from that (juarter, unless the ( Company wiU estaWish a Hettlement within the Athapascow country and undersell the Canadians." — Hearne'» Joiwuul, 1771. * History of the Fur Trade— P. viii. Sir V. McKenzie. t McKenzie's History of the Fiu' Trade. X History of the Fur Trade, p. i.ui. Sir A. McK. n This , the House united wit It is t Hist t Han r'Oc, Hon. Edw mittee of J tion ■'if(i)2. II McKj i'onell and Part r. WESTERN BOUNDARY OK ONTARIO. 79 (;ompany in 1803.* " The Hudson's Buy Company, who, in the year 1774, and not till then, thonaht proper to move from home to the east bank of Sturj^eon Inke, in latitude oS*^ 56' north, and lonoitude 102^^ 15' west, and became more jealous of their fellow su})jects, and perhaps with more cause, than they had been of those of France. From this period to the present time, they hare been following- the Canadians to their difl'erent establishments, while, on the contrary, there is not a solitary instance that the Canadians have followed them; and there are many trading' posts which they have not yet attained. This, however, will no longer be a mystery, when the nature and policy of the Hudson's Bay Company is compared with that which has been pursued by their rivals in the trade."t There seems to have been no misun- derstandings or conflicts between the two Companies until after the arrival of Lord Selkirk. $ The North-West Company extended their posts beyond the Rocky Mountains, and up- wards of three hundred Canadians were employed in carrying on a traffic over the country between California and Russian America. § At some seasons of the year not less than three thousand traders were assembled at Fort "William, which had become the chief entrepot of the North-W^est Fur Trade. The Hudson's Bay Company did not enter the Valley of the Saskatchewan before the year 1780, nor the Valley of the Red river before 18 J5. || They followed the North-West * A Jonrnal of fifteen years' residence amonff the IndiauH. Daniel Harmon. This does not agree with the statement of Sir E. HUice, ht fore tlie Committee of the House of ( 'omnion.-i, 1857. He says these Companies remained scpai'atc until both united with the H. E. Comiiany. (^Hiestiou oZrti. It is probable he had partly forgotten the circumstances. + History of tlie Fur Trade, p. ix. Hir A. McK. X Harmon's Journal. «;" Occurrences in North Americii," p. 12o. Tliis book was written by the Right Hon. Edward EUice and Wm. McGillivray. See statement of Ellice before Com- mittee of House of (Jommons, enquiring into affairs of H. B Company, \Ku. Ques- tion f.(t!)2. li McKenzie's History of the Fr.r Trade. Harmon's Journal. Testimony of Mc JJonell and Dawson before a Committee of the Legislative Assembly of Canada, 1857. ai 80 WESTERN BOUNDARY OF ONTARIO. Part ; Company as they extendod their posts to the north and west, and I'or a time the traders of the two companies remained on the most friendly terms. With the accession of Lord Selkirk to the head of the H. B. Company's affairs, a policy of violence and lawlessness was adopted.* The period from 1811 to 1820 was one of conihct })etwe('n the North- West and Hudson's Bay Compaiiies. A grant was made of several thousand square miles to Lord tSelkirk l»y the Hudson's Bay Company in the lied river district, six years after that company lirst entered that part of the country, and one hundred and forty years after they had obtained their charter. Lord Selkirk, acting- in the interests of the Hudson's Bay Company, at once set to work to expel the Canadian traders. Many of their pos*^s and forts were taken, and some of them destroyed. Their su])plies were seized. Forcible possession was taken of their letters and correspondence, and an attack was made upon a band of their traders, in which the people of the Hudson's Bay Company were defeated and upwards of twenty lives were sacrihced. Representations were made, by leading partners of the North-West Company, both to the Imperial and Canadian Governments, of the actual condition of affairs, in which the conduct of Lord Selkirk and his agents was denounced, and the pretensions to exclusive possession denied.! On the 12th of February, 1817, Jilarl Bathurst ad- dressed a despatch to the Governor General, in which he said: — "You will also require, under similar penalties, the restitution of all forts, buildings, or trading stations, with the property which they contain, which may have been seized or taken possession of by either party, to the party who originally estal)lished or constructed the same, and w^ho were possessed of them previous to the recent disputes between the two Companies." * The variouH placos wlu're tliuse companies luiil forts or otliur posts aro uimuMi in Hariiion's .Touviiiil. t Occuni'iices ill North Aiuerica, 1817. Vart « ■> Vart I WESTERN BOUNDAliY OF ONTARIO. 81 "You will also require the rcmoviil of any blockade, or im- pediment, by which any party may have attempted to pre- vent, or interrupt, the free passai>e of traders, or others of his Majesty's subjects, orf the natives of the country, with iheir merchandise, furs, provisions, and oth(M- cllecis throu<^h- out the lakes, rivers, roads, and every other usual route or comraimication heretofore used for the purpos(\s of the fur trade in the interior of North Ameri -a ; and t e lull and free permission forall persons to pursue their usual and accustomed trade, without hindrance or molestation." Propositions were made by the Ncn-th-West Company, be- fore this time, for the union of the two comjianies, the Cana- dians receiving two-thirds nnd iheii- rivnls oiie-third of the profits, and that each should I'urnish in that proiiortion the means and capital, or to give the II. B. Company two-thirds of the trade over which they claimed their chartered rights extended, upon the condition that they refrained from en- croaching upon the northern and western slopes of the conti- nent. These olfers for an arranuement were declined. The company, through Lord Selkirk, submitted a counter-propo- sition in which they stated " that they would not interl'ere with the Athabaska posts if the Canadians would give up all trade in the countries through which any waters passed, flow- ing towards the Hudson's Bay ;" that in the event of the North- West Company acceding to this stipulation, thi'y would be per- mitted to retain some of their own posts along the line to the Arthabasca country, if they would agree to leave the ques- tion of right to arbitration, which, if it decided in favour of the Hudson's Bay Company, then 'the North-West Company should pay an adequate rent to their rivnls as landlords.* This counter-proposal the North- W^est Company declined to entertain. The Governor-G-eneral a])pointed a Mr. Coltman, in 1816, a commissioner, to enquire into and report upon the causes and extent of the dislurbancesin the North-AVest. Mr. Coltman made his report in which he recommended a union of * Occurrences in North America 1817, p.p. J)il, (JO, 01. O ■■s. t il:! 82 WKSTERiV BOUNDARY OF ONTARIO. Pakt I i the intovestH of tho various I'ur-tra'ior.s in that country. Both compan i»'.s had lost larcfoly. Th(^ stock of tho Hudson's liay Com- pany fell, durini>' the contest, from 280 to 5i> per cent. " In this state of thinus," says the llight Hon. Va\. l*]llice, " I think about 1 819 or 1820, Lord Hathurst, then Secretary of State for the Co- lonies, sent lor nie to consult mo whether it was possible to do anything" towards promotinn' a union between the com- panies I undertook that matter, not only at his request, but from obvious considerations of interest, havini>' become under considerable eng'auements for om^ of the companies; and after a very difHcult negotiation I succeeded in uniting the interests of the various parties and inducing- them to agree to carry on the trade after that agreinnent under the charter of the Hud- son's Bay Company. At the same lime, I auiXi^-eated to Lord Bo- fhurst to propose sent Hudson's Bay Company, which is more in fact a Canadian company than an English company. The Act then passed under which the company have since carried on the fur trade throughout the Indian territories beyond their boundaries exclusively by virtue of the license."* An Act w^as then passed for regulating the fur trade ; and a Royal license for the privilege of trading with the Indians to the exclusion of other parties was obtained. This license does not embrace the territories granted to the Hudson's Bay Company ; and ivhile it secured, to the neiv company a monopoly of the trade, it made it impossible for them to improve their title to the disputed territory by lapse of time. From 1811 until 1820 the Hudson's Bay Company claimed the North-West, as a part of their grant which had neverthe- * Question 5784 — answer to Committee on H. B. (Jo. Tlie House of Commons. * Sec CdjI t McKuif \V.u. Gilli tG.H. tee of the {A. 1). 18oJ ronce witlil i" the uridij thoir chart(i Vitutajje.s th| fi'oquented I'f the couni TheH. bI '^'jmpensatej 'litference ii I'ART 1. WESTERN BOUNDARY OF ONTARIO, 88 loss 1)0011 in the possession oi" others I'or a period of 11!) years. Duriiii'' the nine years oi' hostility between themselves and the Canadian company, thoir pretensions wore enern-etically re- sisted ; then came a union of the rival parties and the i^rant ot" an exclusive firense. It can hardly be seriously ar^'uisd that il'their claim to the North- West was bad in 1811, "it would bo oi>posed to the spirit of our law," to try the validity ol" that claim by princiiiles which minse, could not, any more than other tenants set up an adverse claim which would be strengthened by lapse oi' time.* From this brief historical sketch of the North-West country, it will be observed that it was explored by Du Lhut in 1071, and from that time down to the fall of Quebec in 1759, the French carried on an extensive trade with the Indians be- yond Lake ^Superior ;-f- that from 1717 until the country was ceded to Grreat Britain, it was under the authority of the G-o- vernors of Canada, and was recognized as a part of Canada by the French Government ; that the trade from Montreal and Quebec which was I'requently interrupted between 1759 and 1765, at the end of the Pontiac war, began ag'ain to revive and was carried on exclusively by traders from Canada until the beginning of this century; | that the French half-breeds * Sei! copy of the License — Apiieiulix O. t McKeiiiiie's History of tlie Fur Trade. H.annon's Journal. Evidence of the Hon. \Vm. Gillivray. N. W. Trials at York, U. C, 1818. + G. H. Pelly, Governor of H. B. Company, in a letter to the Lords of the Commit- tee of the Privy Council for Trade, 7th February, 18S8, says that " Up to tliis period (A. D. 1800) the Hudson's Bay Company had no^Teat cause of complaint for interfe- rence with their inland trade, and if they had been left uimiolested or been pnjtected in the undisturbed possession of it, and of the rights and privilejjes vested in them by their charter, they would in all probability have continued in the enjoyment of the ad- vantages they were deriving? from their labours and exertions in those remote and little frequented wilds." That is up to the period that they became aware of the existence uf the country and wasted their resources in seeking to expel the (Janailian traders. The H. B. Company paid their servants fixed salaries while the (.Canadian CVjmpany (.'umpensated theirs by a share of the dividend, and Mr. Harmon refers to the marked ilitference in the zeal of the two classes for the welfare of their employers. m •^ ^^\ ^9^/^''^ ^>. IMAGE EVALUATION TEST TARGET (MT-3) /. 1.0 I.I : ^ a t tig 111112.0 1.8 1.25 1.4 1.6 ^ 6" — ► .^ V] &. ^ / VI % >^ #v^ o 7 Photographic Sciences Corpordtion s. \ i^ ^ ^ o 23 w£ST MAIN STREET WEBSTER, NY. 14S80 (716) 872-4i03 A 1^ c^ -rA 84 WESTERN BOUNDARY OF ONTARIO. Part I. in the North-West, (tht^ descendants of the wood-runners and traders who intermarried with the Indians,) from the time of th:» conquest, looked upon themselves as the law- fal proprietorsof the country, and demanded compensation for permission any. To say that the company's charter is valid, is beside the question. The charter, in one re*!pect, must be regarded as a commis- sion to make discoveries, and to take possession of unknown reirions, on behalf of tbe Eiij^lish C'rown.t It could not be ht'ld to convey a country seven hundred miles away from the nearest point visited by a company, that had never made any explorations in the territory, and that had in no way attempted to establish their authority over it. The grant of the territo- ries nanied in the charter of the Hudson's liay Company, was not a grant of laiuls in the actual possession of the Crown ; it was a prospective conveyance of a country to be acquired bv discovery and settlement, or occupation, and it can be conclu- sively shown, that the whole North-West country was in the actual possession of the French for nearly a century before it • An inipn'snioii is attempted to \>v inatU- [l)y Lord Selkirk and his friends,] that tliCHe latter jK-ople, [the French hftlf-ljreeds] are a race only known since the establish- nieiitof the North-West L'oinpany ; but the fact is, that when the traders first pene- trated into th:\t country, after the conquest of C^anada. they found it overrun by pe.-- suns of this description. Some of whom were then chief leaders of the different tribes <>{ Indians in the plains, ami inherited the names of their fathers, who had been the jirincipal Fn-nch commandants, and tradei-s of the district. A K'cntleman who was f'-rmerly ent,Mged in the Indian Trade, and who was lately in London, informed the author, that when he first visited tiie Red river in the year 17.S4, he Wiis stopped mar the Forks by some of these half-breeds, or Brulee Chiefs, >\'lio told him that he could only trade in that country by their permission ; and as the price of such permission, they exacted from him goods, to the value of al)ove i'lOO. This ir. ntleman found at tin- Upper Reil river, Mr. Grant, the father of the halt-breed (Jrant, mentioned in the Narrative, who had paid a similar tribute for permision to tr.Mle ; so that it appears the right now claimed by the half-breeds, to the possession of the country, is at lea.st no novelty. Note p. l-V), Orriirrcnrc» in North Amtrica, 1817. t Many of the early charters were commissions to explore and take possession of countries to be discovered ; ami the ri^fhts of tra'le, Ac, gr.tnted, were the reward 'J'hey gave the grantees an interest in pro:n'>'Jng the interests of the Crown. Part I. WESTERN BOUNDARY OF ONTARIO. 85 was ever visited by any one on behalf of the Hudson's Bay Company. The Sovereii^ns of Itln^-hmd granted many charters ill North America, oonveyinir very extensive territories — scum* of them embracinjj; the continent IVom the Athnitie ocean to the South sea, b* tween certain parallels of latitude Yet they were never reirarch^d as furnishinu' a i^ootl irround for exclud- intr the French from th»' banks of the ?!"ssissii)i>i, or the Spaniards iVom the Western coast, bctwiMMi the same parallels. I am not awari' that tlicy have ever been referred to in any (•orresi)ond<'nce between those Iviropean nations, that claimed extensive possessions upon this I'ontineiit, covered by such charters. Dilferences arose between lilngland and Holland, and between Kimland an«l France, as to tlie limits of their respective possessions in North America; but in no instance did any one of the trovernments commit the lolly of rel'errin<;- to the charters which it had granted to its own subjects, for the piirpose of establishinu' its superior claim to the territory in dispute. It is true that tin? charter irranted by Charles the Second to •The Merchant Advt'iiturers of Fiiiiland tradinir in Hudson's Bay," does not [)rofess to irrant territory in the possession of another State, but upon irli((( prinrip/e of ri}i;hl, if ofpuhltr law, can it he maintniufd, th. 7.'> ; Hakhiyt, vol. ;<, p p. :<0, .'{] ; tlie Patent by Elizabeth to SSir Hnniprey (Jilbert, l.'^iTS ; Hakluyt, vol. H, 17417(i ; Charters to noblemen, &r., of London, and knights, 4c., of the west, lUCMt ; Hazard't* HiHt. Col. vol. 1 ; pp. .')l-58 ; and many otherH of a prospi -tive character. To adsunie that the lanil« granted were actually claimcfl by the Crown at the time is a niist.^ke. It was by the act of the adventnrerM that the Crown expected to acquire a title. li! Part I. WESTERN BOUNDARY OF ONTARIO. 87 4| «wan rivers, was to the British Government and peopii'. an unknown land, and the maps of that country, published by British Geographers, were simply copied from the maps ol" the French.* Had the Hudson's Bay Company acquired (h»" possession of the North- West country, by establishing forts and trading posts there, before the country was in the actual possession of the Canadians, they might have claimed it with sume reason under their charter. They did not do so. Thero had been no act, formal or informal, of any EngHshman, which gave to the Crown of England any basis upon which it could found a claim to the sovereignty of the North-West. The company rested upon the rights which a contested claim to the exclusive possession of the bay itself, gave ; and while they did so, another people, against whom the rights conferred by their charter had no force, in fact, or in law, occupied the in- terior. No discoveries were made by the company until the time of Hearne, nine years after Canada became a Province of Great Britain. Before concluding this part of my report, I would invite your attention to the maps published by British Geographers during the period which elapsed between the Quebec Act of 1774, and the treaty of peace with the United States in 1788, in all of which, the Mississippi river is marked as the western boundary of the Province, from its junction with tho Ohio to its source.! Nor can I omit all allusion to the position uni- formly taken by the Government of the Province of Canada upon the subject of the western boundary, as set forth in several public documents and acts of the executive. I have appended to this report the memorandum submitted to the House of Assembly in 1857, on the rights of Upper Canada to the North-West territory, by the then Commissioner of Crown Lands ; the memorandum and papers submitted to a * See Htatement of Jeffries' in hiH geography, \> 19. 8ee aUo n letter from C. ('olden, Surveyor General, cobny of New York, t«) (Jovemor Clarke. New York. Col. Doc. vol. A, |) 177. t See Governor I'ownairu Map in Appendix of Mapn. r 88 WKSTERN BOUNDAKY OF ONTARIO. Part r m Committor of thiis>ht to assijrn to the Province of Ontario; that a pait of the District of Algoma, which re- turns a representative from the Province of Ontario to the House of Commons, lies in the disputed territory; and that the present limits of that district were assigned to it by those who now maintain that it iucludes territory whicli lorms no pait of tins rrovimc* I have also appended two ollicial letters, addressed by Sir (n'oro-e Cartier and the Hon. William McDouiial, to Sir 1*'. Rogers, Ijearim*- date the IGth ol January .md the Nth of h'cbruary, 1«(J;), respectively, I'^rom the facts which I have stated in the foregoing pages, it is clear that New France extended westward to the Rocky Mountains, if not to the racilic ocean ; that, of this territory, the Province of Quebec included all eastward of the Missis- sii)pi to its head waters, and from thence to the Hudson's Bay territories, it included all eastward of a line drawn from the source of the Mississippi sutiiciently far to the westward to embrace all the French settlements and posts in the North- VVi'st, that is, to the forks of the Saskatchewan river ; that by the Order in Council of 1791, all that part of Canada, to its utmost limits, west of the boundary between Upper and Lower Canada, is declared to be included in Upper Canada. This would extend the boundary on the west to the Rocky Mountains. It would carry the boundary of the Province wertward beyond the limits of Quebec under the Act of 1774; and where that Order in Council placed the boundary, it, in my opinion, still remains. The commission to Lord Dorchester * The ilecisiDii of the Court in de lleinhard'8 case was not then so much regarded by the Premier of Canada as it is now. Pakt I. WESTERN BOUNDARY OF ONTARIO, 89 extended his authority over so much of Tipper Canada as was inchided in the Province of Quebec as altered by the treaty of 178'J, and the limits of which are set forth in the commission of 1780. I have no doubt but that the Province of Manitoba has been formed within the legal limits of Ontario. It is to be rea:retted that no protest was made by the Government of <.)ntario at the time that Manitoba was being established. It\'ould have been to the advantaue of thi»i Province had her Just claims to tht' North-West })een asserted while tht* ne- gotiations between the Imperial and Canadinu Governments, for the transfer of Prince Rupert's land and the Indian ter- ritories, were pending. This was not done. I will not say tliat the rights of the Province to thf territories west of Mani- toba have been greatly prejudiced by the failure of a former Government to assert them The ditficulty oi procuring an equitable arrangement has certainly been increased. The Province of Manitoba exists by the sanction of the Imperial Parliament. The British North America Act of 1871 recog- nizes and sanctions the establishment of that Province. The claims of Ontario to the country which is included within its boundaries, having regard to existing facts, can now be met only by adequate compensation. REPORT ON THE BOUNDARIES or TUB Province of Ontario. ?art IL NORTHERN BOUNDARY OF ONTARIO. The sovereignty of the territory, upon the shore of Hud- sons Bay was a matter in dispute, between the Crowns of (rreat Britain and France, from the year 1670 until the sign- ing of the Treaty of Utrecht, when the French claims to the possession of the coasts of the bay were definitely yielded to Great Britain. The location of the boundary line between ( )ntario and the Hudson's bay country, can be determined only by the facts of history and the recognized principles of public law. Hudson Bay and Straits were discovered by Sebastian Cabot, who sailed thither under a commission from Henry VIII. of England, in 1517. He then entered the bay, which ninety- three years later took its name from Henry Hudson.* It is stated in a paper prepared by the Hudson's Bay Com- pany, for the purpose of establishing the right of the Crown of Great Britain to this bay at the timo they obtained their charter, " that Sir Martin Frobisher, in Queen Elizabeth's time, made three voyages to the said bay, in 1576, 1577, and 1578, and gave English names to several places there ; and that Cap- tain Davis made also three voyages, and named other places in the bay.'' This statement is inaccurate. In the year 1576, • Sir H. Gilbert, in Hackluyt, vol. 3, pp. 49, 50 ; Eden and Willis' History of Tra- vayles in the Eaat and West Indies, fol. 22:5 ; Anderson's Hi«t'iry of Oimmerce, ann. 1496. " In a map publisbed by Ortelins," says the aurh<)r of the Memoir of Cabot, "Hudson's Bay is laid down with singular precision. Ortelius was in possession of a map of the world by Sebastian Cabot."— Memoir of (.'abot, p. 29. 92 NORTHERN BOUNDARY OF ONTARIO. Part II. Frobishor, who had long dosirod to start on a voyoffo lor th»^ discovery of a north-vvosi passage to th»» east, reganling it, as he hiins«>ll"d strait which bears his name, and took formal possession of it for J*]lizai)t'th, and returned to I'hjgland. A slou" was brought back from this island whicli, it was said, contained gold. A lleet was at onci; litted out. Elizaheth, who had done nothinu more than express her good wishes at th<' hr.st voyage, sent a large ship. This licet which went in search for Ihe northern El- dorado, did not advance westward as far as Frobishcr had done in his little })ar<|ue of twenty-live tons burden the year before. In his third voyage, a Ih'ct of lilteen .sail left upon the adven- ture, with one hundred persons as colonists. He reacheil the strait now called Hudson's. Frobishcr thouiiht that this strait led to the Pacilic. As he was not .seeking for ueogra- phical knowledge, but for the rich mint's which were sup- posed to have been discovered upon his lirst voyage, he did not feel himself at liberty to sail further westward. He and his companions voyaged northward through dense fogs, amidst mountains of ice, again and again escaping destruc- tion, they scarcely knew how ; so that, by the time they had reached the point of destination, those who were to colonise the islands, between Hudson's Bay and Davis Straits, were most willing to return to England. The sailors were ready to mutiny. A cargo of the black ore was carried back. The avaricious were disappointed, and science gained nothing by the adventure. Frobishcr, perhaps, would have found his way into the bay, had he not felt that his duty as a mercantile FAItT II, NOUTHKHN nOUNDARV OF ONTARIO. 03 aj^ont forbndo him Kiiilins' thither. lie did not do so, nud 1 fail to di8cov«'r in what way th»'so voyajrfs of Frol»isht'r can ♦'stablish a titlo to torritorit^s which strotchod aloiiff a shore at least a thousand miles away.* The discoveries ol Davis were 8till more distant. The bay was explo.ed l>y '' Frederic Anschild, who had set out from Norwav or Yc'andia some vears before with a de- sif^n to find out a pas.saire to Japan. He entered a strait, which twenty or thirty years later, was called Hudson's Straits. Re wintered in Hudson's liay, and returned the next sprinpf to Denmark.! Captain Hudson entered the bay in ITjIO, in search of a north-west passau^e. Jie is often credited with bcinir the dis- coverer ; and the Knglisli claim to the i)ossession of the bay has been in part based upon his supposi'd (liscov(«ry. Haron La Hontan says that he was in command of a Dutch ship, and when he left the bay returned to Holland. In this La Hon- tan is in error. Hudson made four voyag-es in search of a hijrhway to the east The first was in 1(507, under the direc- tion of a company of London merchants. He coasted the eastern shore of Greenland, and visited Spitzber^en. Jle sailed north to within eight degrees of the pole, and was compelled, on ac- count of the ice, to return. In 1608 he sailed a second time, and attempted to reach the East Indies by passing between Spitzbcrgen and Nova Zcmbla, but failed. The ardour of the London merchants was dampened by these failures, and they were not willing to in- cur further expense. Hudson repaired to Holland, where he was engaged by the Dutch East India Company, through the inlluenci'of Mouche- ron, and in April, IGOO, the Crescent, under his c(»mmand, manned by a mixed crew of Dutch and linglish, put to sea in search of a north-west passage. This time he sailed along the coast of Nova Scotia to Sandy Hook, passed through the Nar- » Uackluyt, vol. 3, pp. 62-129. + lift Hontan'8 Memoirs. M NORTIIEUN BOUNDAUY OF ONTAUIn. I'AM II. |i t t^f rows, discoNerod and «'Xi)lored tho Iludson river, and gave to Holland a claim upon the country which sulwiMjutMitly hocanu* th(^ Province ol" New N»'thcrlandH. He sailed from America to Dartmouth. From ihenco he sent " a brilliant account ol" his discoveries," to the Dutch Company, but they refused to search further for a north-western passai^e to southern Asia. In 1010 Hudson made his fourth voyage under the direc- tion of a company of liliiiilish merchants. He entered the straits which l»ear his nam*'. He supposed when he came upon the wide gulf that h(^ had indeed gained his object. He voyaged along the coast, and found himsc-lf within an inland sea. He still hoped to discover a vvest»'rn strait, and resolved to winter in thi' bay. For this no adequate preparation had been mad(^ When spring opened, the ships supplies were exhausted, and he was comi)elled to make ready for a return. The ship became encompi ssed with vast lields of ice. The crew, who were discontentetl before, nov; mutinied. Hudson, his oidy son, and seven others were placed in a boat. Four of th«' seven were sick at the time. Philip Stalle. the ship's car- penter, asked leave to share the fate of his captain, and the request was granted him. Just when the ship made its way from the icC; the boat, with the ten who had been placed in it, was sent adrift, and was never after heard of Such is a brief abstract of the voyages of Captain Hudson. The lirst two and the last of which were made under the patronage of Eng, lishmen.* It is recorded that Sir Thomas Button, in 1612, entered the bay and erected a cross at the mouth of Nelson river, and took poss«»ssion of the country on behalf of the Crown of Eng- land ; that Captains Baffin and Bylot entered the bay in 1615 ; that Captain Fox, by command of Charles the First, made a voyage to Hudson's Bay, in 1631, and iinding the cross erected by Sir Thomas Button, with the inscription nearly worn out. renewed the inscription and again took formal possession ; and •N. Y. Hist. Doc., vol. 1, p. 61, 14C-188. Ftn II. NORTHERN BOUNDARY OF ONTARIO. 95 that Captain James explored the southern part to which hi» gave his name, the samo year.* For more than thirty years at't»'r Fox's voyaj^o, we have no account of the bay havini? W^ar 1669, another voyage was undertaken by the same adventurers, ana one Captain Newland was sent by them to the mouth of Nelson river. In 1070, those persons who were engaged in fitting out these expeditions applied to the King (Charles Second) for a char- ter, conferring upon them the exclusive property and trade of the Straits and Bay of Hudson and its coasts, which charter was granted them in May of that year. This charter professed to grant them in free and common socage, " all the lands and territories upon the countries, coasts, and coniines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid, that are not already actualli/ possessed by, or (/ranted to, any of our subjects, or possessed by the subjects of any other Christian Prince or State." These words imply the following proposi- tions : — That the grant to the Hudson's Bay Company should not be held to include : — Ist. Any portion of the country granted to any other British subject. * Robtton'B account of Htidson's Bay, Appumlix 1, p. 4. In many of the maiw pub- lished early in the last century the greater part of what in now called Hudson's Bay wan then called Button's Bay. Hudson's Bay was, upon the west, but little more than wliat is now called James Bay. The company by extending the name, have increased the limits embrac>.<< l>y their c'uarter. i m NOKTHERN BOUNDARY OF ONTARIO. Tart II. 2nd. Any portion of the country in the possession of any other British subject. 3rd. .^ny portion possessed by. any other Christian Prince or State. That it should inchule : — 1st. Any territory in possession of the Crown, not included in the above exceptions. 2nd. Any territory not in the possession of any European nation, to which, the Crown, through the diligence of the company, might acquire a title. The words imply, too, that the King was not prepared to deny the right of France, to a part of the country about the bay ; and that he was not rest- ing any right of the Crown upon prior discovery ; but that he was disposed to look at the actual condition of things at the time the charter was granted. In this particular the position of the King was a proper one. Ninety-three years intervened between the voyages of Cabot and Hudson ; sixteen years betw^ecii the voyages of Baffin and Fox ; and thirty-six years between the voyages of Fox and Gilham; that is one hundred and fifty years intervened between the lirst and seventh voy- age. It will not be difficult to show that title, according to the usages of nations, cannot be bai?td upon discovery made at some period long past. There must be, besides discovery, such acts of occupation or settlement accompanjnng the act of discovery, or following it within a ri'asonable time, as will serve to show that the authority oi the sovereign has had a potential existence over the territory so claimed. Now there were no such relations existing between the explorations of Cabot, of Hudson, of Button, or of Fox, and any subsequent act of the English Sovereign as would indicate that he, from the lirst, intended making it a part of his dominions. The charter to the Hudson Bay Company asserted only a conditional right in the King founded upon the then recent acts of his subjects, and related back to the voyages of Gilham in 1667 and no further. It is worthy of note that the Company of New France had Paht II. NORTHERN BOUNDARY OF ONTARIO. 97 t received a similar charter in the year 16"20 from Louis XIII., which included the whole country about Hudson's Bay. In 1656, an order of the Sovereisrn Council of Quebec autho- rized.Tean Bourdon, its Attorney-Greneral, to make the discovery of Hudson's Bay. lie went thither in a barque of thirty tons, and took possession in the name of the French Kinii'. While there, he made treaties of alliance with the Indians.* "In 1661, Father Dablon, a Jesuit, and SieurdeValliere were ordered by Sieur d'Arjrcnson, at that time (fovernor of Canada, to proceed to the country about the Hudson's Bay; they went thither accordin<5"ly, and the Indians who then came back with them to Quebec, declared that they had n.'ver seen any Euro- peans there, f " The Indians, anxious to continue their trade with the French in Canada, sent a party who returned with Da])lon to Quebec, to invite the Cansulians to estal)lish trading posts on the Bay, and to send missionaries amonii' them. Ui)on their way back, they seemed to have repented of what they h:id done, and refused f-> cotidurf the Mis.'sloNARlES to the Bay." X "In 1663, the Indians from about Hudson's Bay returned to Quebec in i'urthtM" quest of traders, and D'Avangour sent 1 hither Sieur de la Couture with live men, who proceeded overland to ihe said Bay, possession whereof he took in the King'.N name, noted the latitude. i>lanted a cross, and deposited at the foot ol'a large tree, his Majesty's arms engraved on copper and laid l)i'tween two sheets of lead, the whole being covered with some bark of trees." "In the same year (166-^^ Sieur Duquet, Kinu's attorney to the Prev<»te of Quebec, and Jean L'Anglois, a Canadian co- lonist, went thither again, by order of Sieur D'Argenson, and re- newed the act of taking possession by setting up his Majesty's * L'alJiers t.i M. Ue Sei!,aiu.ay. N. Y. Hi.st. Col., vol. <.). p. '208. t Ibiil ; al.so M. di- Deiioiivillf t<> M. de St'igiiflny. p. 'M\\ A, ;">. ;. Mfuioir of tlu' Fiviich in I'auada froui 1504- IToti. I'aris Doc. 6. N. Y. Hist. C'A. Vol. '.) p. 784. H ir 98 NOKTHKUN BOUNDARY OF ONTARIO. Part II. arms there a socond time. This is proved by the arret of the said ►SovereiiT'u Council of Quebec, and by the orders in writ- ing of the said Sieurs D'Arfr-enson and D'Avangour."' * In 1067, Radisson and des Grossilliers traversed the country from the St. Lawrence to the Ui)per Lakes and thence to tlie Bay — crossing' from Lake Superior, of which the French had possession at the dme. They returned to Quebec, and proposed to the merchants there to conduct ships to Hudson's Bay — the proximity ol which, to the principal fur district, was now ascertained. This proposal was rejected. They then went to Pari.sand explained the matter to the King's Ministers, but with no better success. They were persuaded by Lord Preston, the English Ambassa- dor, to goto ]jondon, and to hiy their scheme before certain per- sons there. They did so, and were favourably received, f The London merchants, who entertained the project of the two Canadians, entrusted the prosecution of this discovery, not to them, but to Zachray C.ilham, who had long been engaged in the Newfoundland trade. lie sailed thither in a small ves- sel named the jXane iSuch. The discovery I here refer to is the one made known to them by Radisson and Des (frossii- li(;ro— that the fur tratle north of the great lakes might be car- ried on, advantau'eouslv, from Hudson's Bav. It is highly probable that they were not the first French- men to cross from Lake Su]>erior to the Bay, but that they were, as has been suggested l-y Henonville, led thither by the old coureufs des boh, with whom they had ibrmerly carried on trade. In November 1070, Talon wrote to Colbert: — " I learn by the return of the Algonquins, who will winter this year at Tadousac, that two Euroj)ean vessels have been seen very near Hudson's Bay, where they wigwam, as th»; Indians ex- press it. After rellecting on all the nations that might have • Memoir of the Fnnch in Canada. N. Y. Hist. Col. Vol. 9 p.p. ;«)3, 4, 5. Charlt- xois'n, VoL 3. Book 10. t Ibid. P»RT II. N'OUTHKHN BOUNDARY OF ONTARIO. 09 ►y •V penetrated as I'ar north as that. I can lig-ht only on the Knj^lish who, under the etvve«Mi the two seas, the North and tSouth, either by Davis Straits, or by Magellan, which he thinks more certain. Alter haviug doubled the opposite coast of America, as lar as Califoruia, he will take the westeru winds aud favoured by these, re-enter lludsou's l5ayor Davis Straits. 1 have giveu him a letter which he is to present to you if he have uot altered the plan, which would be to peuetrat«» as far as China by one or the other of these passages. If you desire to hear him, my secretary will have him repair to you."* lu November, 1071. Talou writes to the King — "Three mouths airo I despatched with Father -Vlbauid. a Jesuit, Sieur de SaiutSimou.a young Canadiaugeutlemiui recently honoured by his Majesty with a title. They were to penetrate as far as Hudsous Bay; draw up a memoir of all they will discover; drive a trade in furs with the Indians, aud especially reconnoitre whether there be any means of winterinti" shii)s in that quarter, in order to establish a factory, that might when necessary supi)ly provisions to the vessels that will possibly hereafter discover, by that channel, the communicaiou between the two seas — the north and the south. Since their departure, I received letters •N. Y. Hist. C(.l. Vol. !> p. »7. 100 NORTIIKUN BOUNDARY OF ONTARIO. Part II. 3 !Pffst' ' from thorn three times. The last, hroui^ht IVom one hundred leajrues from here, informs me that the Inlians, whom they met on the way, have a.ssured them that two English vessels and three barques wintered in the neighbourhood of that bay, and made a vast collection of beavers there. If my letters in reply are safely dehvered to the said father, this e.stablishment will be thoroughly examined, and his Majesty will have full infor- nuition about it. As those countries have bi'en long" ago ori- g-inally discovered by the French, I have commissioned the said iSieur do 8t. tSimon to take renewed po.sscssion in his Majesty's name, with orders to set up the eseutcht-on of France with W'hich he is entrusted, and to draw up his proces-verbal in the ibrm I have furnished him. " It is j>roposed to me to despatch a barqut^ of sixty tons hence to Hudson's Bay, whereby it is expected something will be dis- covered of the communication of the two seas. If the adven- turers who from their design subject the King to no expense, I shall L^ive them hopes of some mark of honour, if they suc- ceed ; besides indemnifying from the I'ur trade which they will carry on with the Indians."'*' In 1073,aJesuit mis.sionary was sent overland I'rom Canada to discover the country and the situation of the 'frading Posts of the Hudson's Bay Company. Under the pretence of friend- ship, he carried with him letters to Des (rrissilliers from his friends in Canada, which led the Governor of the Compajiy to suspect that he was corresponding- with the French to the prejudice of the English interests in that siK^tion. Des Crros- silliers and Ivadisson were dismissed, alter having been in the service of the English nearly six years, and returned to Ca- nada.* In 1676, Radisson and Des Grosilliers having obtained par- don for their defeciion, a company was formtHl at Quebec, who sent them to Hudson's Bay, where they formed a settle- ment north of the said bay on the liiver Bourbon, which is the heard found agroui * N. Y. HiHt. Vol, vol. ii, 1)].. 7'2-r.l + Robson's Hudsoifrt 15jiv A|i|ifU(lix 1. pp. t)-8. Ill . .. 3 %, I'ART II. NORTH KUN BOUNDARY OF ONTARIO. 101 one the Enirlish seized last year (1084), in consequence of a new treachery on the part ol' Radisson, who returned to their service and conducted them thither.* In 1«)T0, fSieur Joliet prepared a narrative and maps of his voyag'e to Hudson's Uay, which the farmers of the revenue of Canada demanded of him. This relation is dated the 27th of October, 1GT9, and signed Joliet.f In October 1081, Duchesneau, the Intendaut of New France, in a letter to iSeigiielay, says : — " The Eiii^lish are still at Hud- son's Bay, on the north, and doo-reat dama<^e to our fur trade. The farmers of the revenue sulfer in consequence by the di- niinution of trad»» at Tadoussac, and throuuhout the entire country, because the Enu;lisli draw off the Ottawa nations for the one and the other design. " They hav*' two forts in the said bay, the one towards Ta- doussac and the other at Cape Henriette Marie, on the side of the Assinnihonctz.l " The Ambassador of the King of England, at Paris, com- plaincnl tiiat the man named Uadisson and other Frenchmen havinugone with two barcpies, called le St Pierre and la Ste. Anne, into the river and port of Nelson in I)»82, seized a fort and some property of wliich the English have been in poss^'ssion for several years. "liadisson and Des Crrossiliers maiiitainjthat tln'se allega- tions are not trtie, but that having lound a spot on the Nelson river adapted to their trade, more than 1 oO leagues distant from the place where the English were settled in Hudson's Bay, they took possession of it in the Kinu's name, in the month of August, 168'J, and had connnenced building a fort and some h. 2(18. t N. V. Hist. CoL, vol. It, I). Tit"). t N. Y. liist. Col., vol.a, p. \m. 102 NOHTHKUN BOUNDARY OF ONTARIO. Pabt II. " That thoso houses had been begun since they had entered the river, and had set about working at their I'ort and building, and, thtn-elore, that they were the lirst oceui)ants. " That since then each having wished to maintain his esta- bUshment, the French were become the masters. " That the ice and bad weather having caused the destruction of the I'luiiJishship, some men belonging to it had died ; but that they had, on their part, treated them with great modera- tion and kindness, and rendered every assistance to the Eng- lish, who appeared satisfied."* The person in command of the English was John Bridger, the Governor ol' the Hudson's Bay Com])any. lie arrived, say the English accounts, a i'ew days before the Canadians. The French established themselves on the south branch, then called Ste. Therese, now Hayes river. They ordered Bridger away IVom the country. He declined to obey. In February ol'tln' following year, the English were seized and sent to the southern end of the bay, with the exception of Gilham and Bridger, who were carried prisoners to Quebec. The son of Des Crros.silliers and hve others were left in possession of Fort Bouibon.f lipon reaching Quebec, Bridger and Gilham were released by La Barre, and their vessels restored. M. de la Barre, the Governor of New France, on the 12th of November, lt)8:2, writes: "As to what relates to Hudson's Bay, the company in Old England advanced some small houses along a river which leads from Lake Superior (Winnipeg), As posstvssion was taken of the country several years ago, he will put an end to this disorder, and report next year the suc- cess of his design." On the 3Uth of April, 1683, M. de la Barre writes: " Two detachments of Frenchmen have proceeded to the north for the purpose of preventing the English of Hudson's Bay enter- ing on French territory, and obstructing the trade the French * I'lu-is Documents, (5, N. Y. Hist, t^ol., vol. 9, 798. + llobson's Hudson'H Bay. Part II VORTHKUX BOUXDARY OF OVTARIO. 108 carried on with the Assillibois, Themiscaming-s, ruisescamins. and Christiiioes." On the 5th ol' Auffust, 1G83, the King- writes to M de la Barre : "I recommend you to prevent, as much as possible, the English establishini^ (hemsclves in Hudson's Bay — posses- sion whereof has been taken in my name several years a<>o ; and as Colonel Dunguent (Dongan,) who is appointed by the King oi" England, Governor of New York, has had precise orders from his Majesty, to keep up a good correspondence with you, carefully to avoid every thing that will possibly in- terrupt it, I doubt not but the ditticulties you have experi- enced from the Eniylish will cease henceforth." On the 4th and I'th ol' November, 1(588, M.de la Barre writes the King, that — "The people who had been at Hudson's Bay have returned, after havinu' encountered extreme datujers. They erected a small fort in which they lelt a garrison of a i'ew men, aboiit lour leagues up a river, 20(1 leagues north of any Enii'lish settlements. It is (»xpected that communication can be had with it overland, as will be seiMi by the maps he sends. He has received his Majesty's instructions respectinu' Hudson's Bay, and has engaged those who have organized that expedi- tion, to form a company, and send and purchase a ship in France." * In 1083. an Ordinance of the King was promulgated to the ell'ect, " That all merchants and settlers ol' New France, who will purchase beaver, moose and peltries, in Hudson's Bay, l*(M-ce Island and other parts of New France, Acadia excepted, shall be bound to bring said beaver and moose to Quebec, that they may be paid for them, and one-fourth retained for the farmers of the revenue."! In April, 1784, the King writes to the Crovernor of Canada, that — "The King of England has authorized his Ambassador to si>eak to me respecting what occurred in the River Nelson, be- tween the English, Radisson and Des Grrossilliers ; whereupon * Paris DocumentH, G. N. Y. Hist. Col. vul. !>. p ).. T'JS'.t. t N. Y. Hist. Col. vol. 9, p. 800. f: ■ i ,,!;.. 1M NORTHERN BOUNDARY OF ONTARIO. Part II I am happy to inform you, that as I am unwilliui!: to aflord the Kiuur ol" jMijihvud any cause of complaint, and as I think it imi)ortant, neverlholess, to prevent the English estal)lishinfi' themselves on that river, it would be well lor you to have a proposal made to the Commandant at Hudson's Bay, that neither the Fn'uch nor the lilnulish should have i)ovver to make any new esta})lishm<'nts, to which I am jn'rsuaded he will give his consent the more readily, as he is not in a position to prevent those which my subjects would wish to form in said Nelson's river." * On the 10th of April, 1G84. the Minister of Marine addressed M. de la Barre, in reference to the restoration of the vessel to Gilham, which had been captured in Hudson's Bay by Radisson and Des Grrossillii'rs. lie sa>s — " It is impossible to imagine what you pretented, when of your own authority, without calliui? on the hit' udant, and submittint*' the matter to the Sovereign Council, you ordered a vessel to be restored to one Guillam ((Jilhani). which had been captured by Radisson and Grossillicrs, and in truth you ought to prevent these sort of pro- ceedings, which are entirely nnwarranted, coming under his Majesty's eyes. You have herein done what the English will i»e able to make a handle of, since in virtueof your ordinance you caused a vessel to be surrendered which ought strictly to he considered a pirate, as it had no commission ; and the English * The King t.. Al. de la Barre, 10 April, 1G84. Paris. Dec. (J, N. Y. Hi.st. i\>\. l>. 799. Note. The aiTaugeiiunt here suggested wiiH made shortly after. The flovernor of New France ways of it, " The cotiventioii eoncluded with England, that the Kiver Bourbon Port Nelson, shall remain in joint occupation of the two Crowns, is not mlvantage- ons to the French, for the voysiges of the EngliHh are too dangerous, on account of their attracting the cnurenrg (/<» Ikhii as much as possible, besides jmrchasing the beaver at a higher rate and furnishing the goods cheaper than the French. In his opinion, it would be more beneficial for the comi)any and colony that the French merchants restore the posts at the heiul of the bay which they took, and that the French should leave them I'ort Nelson or River Bourbcm. If this arrangement were feasible, the Indians could thus lie intercepted by land, for it would be useless to attempt to become masters of the upjier part of the rivers Bourbon and Ste. Therese, inasmuch as it is impos-sible to prevent the Indians trading with the English." — N. Y, Hist. Col. vol. 9. Part It NOUTIIKRN noUNDAUY OF ONTARIO. 105 will not fail to say that you ro fully rPCO!rniz«Hl the rpjrulnrity of this ship's paptTs, that you s»irn'iKl«'nHl it to tho proprie- tors, and they will tlKMice prt'ti'nd to conclude that they have takf'ii loi.'*itiniato i>oss»»ssion of thi' liiv«'r Nelson b«'l'ore Messrs. Radi.sson and l)es Clrossilliers had, which will be very pre- judicial to the colony."* "lladisson having- gone from Canada to France, in the begrin- ninur of the year U)84, went to London and once laore gave in his adhesion to tlie English Hudson's May Company, and returned to Port Nelson with live ships vvliich they gave him, destroyed the French factories that he had himself erected with Des GrrossiUiers, in lOS'i, plundered their stores, ca'*^ed otf sixty thousand weight of beaver, which he took to .don, whither also he conveyed nil the French who liappened to be at Nelson, among whom was Des Grossilliers' son, his nephew, and did the Company 400,000 livres damage. "f " In 1()S4, the Fren(;h Company iitted out two barcjues to proceed to Hudson's Bay under the commaiul of Sieur de La- martiniere. They sailed on the It'th of June, tarried at St. Paul's Bay until the 12th of July, and arrived at Port Nelson in the morning of the 22nd of ^September of the same year ; having entered the Itiver St. Therese, they encountered two, leagues up, a boat coming towards them having live English- men on board, who enquired of Lamartiniere what he was about in that country, which was the property of the King of England, He answered that the river belonged to the King of France ; that he was come to trade there, and that he wished to speak to the English commaiulant. After an inter- view of six hours they agreed to prosecute their trade without troubling each other, and that if any dili'erence occurred be- tween them it would be decided by their masters, and that meanwhile Lamartiniere could pass their fort. Sonu^ F'rench- men perceiving that all preparations were being made * N. Y. Hist. Col., vol. y, p. 80(). t Il>ld. Also N. Y. Hist, t'ol., vol. 9, p. 918. I'aris, Doc. 7. See also Guerin's Maritime History of France, vol. .{. 10(5 NOllTHERN HOITNDAUY OF ONTAUIO. Part II within the i'ort to insult tlio 1^'rencli, aiul that a battery ol" twenty-lour jruns was ereetin*? to sink them whilst passinn-, Lamartiniere re|>roiuhe(l the governor of the fort, of whom he demamhHl six men as hostaires, otlerin;: him as many of his. The Kiiijlish having' refused to ac- cede to this, J^amartiiiiere detaehed durinii' the darkest part of the nijifht followini»' thirty men to suri)rise the Eng- lish, who were alarmed by their sentinels. The French were, in consecjuence, obliged to retire in haste, and resolved to pass from the north to the south branch of that river, and enter another, called La Gdiyussee (( 'artridue river), which was opposite their ship, where they wintered, half a league from the river. " In June, 16H5, they ascended four leagues above the Eng- lish, wheri' they made a small settlement." On the loth of .luly they set out to return to Quebec, having obtained, in six weeks, 20,000 lures' vorth of beaver. "After having j)assed Hudson's Bay, they met in the Strait a vessel of 40 or ,")() tons burden, called 'The Little Pink,' whicli arrived without opposition. She was laden with black to- bacco, merchandise for the trade, and 8,000 weight of powder, some w^oolh»ns, and 400 fusils, all valued with the vessel, at 20,000 livres. This vessel was follow^ed by ' The Great Pink,' which they did not think proper to attack. Two days after- wards they met another vessel, of ten or twelve guns, com- manded by Osier, on board of w^hich was the man named Brig-uere (Crovernor Brid^.?r), who was going to relieve the Governor at the head of the bay. He is the same that Radis- son brought to Quebec three years ago in the ship that M. de la Barre restored to him. This Governor gave them chase, and obliged them at the end of two days to throw themselves into a cove, at the bottom of which w^as a little river, w^here they ran aground. As the English vessel could not do the same, he left at the end of four days. Before leaving, he asked a parley of the commander of the barks, and told him that lladisson had gone with Chouars, his nephew, fifteen li I-ART II NOKTHEltN UoUNDAHY OF ONTARIO. 107 (Inys ao-o, towintor in th«' Ifiver Sto. Tlu'rcsc, vvhtr«^ thoy win- UMt'd a y«»ar. Tin* (lovcrnor luiviiiff It'll, tlu'y lioistt'd sail, and arrivi'd at Quclu'c on tlic linst (tl ( Jctolx-r, ItlHo."* In n memoir on tho I'n'.scnt Statf ol Canada, hy M. df l)«'n- onville addro.s8t»d to AI. d<' Sciynclay. on tl:<' I'Jth ol' N(tv«'m lu'V. 1»)85, he says : '* We al.so see the En>iiish efslahlisluiig th<'m.selves id the North J5ay, Avliere tliey vv;il be mom inju- rious to us than in the direi^tion oi' Aeadia ; lor if tlieir estab- lislimi'nts continue as they have beuunm the three places on that bay which they actually occuj^y. and on the Kiver Bour- )>un, or I'ort N«'lson,we must exptvt to .see all the best olthe heaver trade, both as to (]uality and (juantity in the hands ot the En' in search of the Kn^lish at Port Nelson. They will not have so far to coiiipaiiy ol the siiid )>:iy, loniH'd in CiiMiida, by th«' privilt-uc his Miij«'sty has htM'ii pl<'as«'«l this y»'ar to i^raiit to his siihjt'ots ol" N«'\v Kranc*', and to I'urnish them lor sonic years a lew vessels ol one hundred and twenty tons only, well armed and e(|uipped. 1 hope with tliis aid. our Canadians will ^[)|iort this allair, which will otherwiMc perish ol" itscir ; whilst the lOnii'lish merchants more powerlnl than our Canadians, will, with iiood ships, continue their trade, wherel)y they will enri. three fortH whii'h they wito ocuupyiii); in lIiuliJOu'M Bay. N. V. HJHt. Col., vol. ',<, |). «(ll. (liirneau given the . m PA»t II NOUTHKHN FloUNDAIlY OF ONTAHln. 109 ♦MM dial hiul i>»M'n taken l>y thr Kr»Mich at th«» tiiiif of thf attack upon the lints and Nincf, wtTc j>nt on l>r»ary the French with two Iriyates, un(h'r tlie c(Mnniand ol Dlherville, and wan taloMi. It was at this time that l)'ll)er\ ille del'eated three Miitish shij)s oil the hkmuIi ol" Xelson river, capturinu' one and sinkiny; a second. This victory estahlished lor a time tlie -upromacy ol France in Hudson's IJay. From that lime until alter the sitininu- ol' the Treaty ol' I'trecht, a period ol" twenty years, the possessions ol' Hud- son's IJay (\)m|)aiiy in the bay were conliiuMl to the sinnle Tort at the mouth ol' the Albany river which, by the condi- tions ol' the Treaty ol' J{yswick, they were to liave surren- ti'-red to the l<'rench. Such is a brief sumnuiry of the eontest Ix'tween Fiance and l']iiuland, durinu' the last hall" ol" the seventeenth century, for the .sovereiiiiity ol the Hudson's Hay. The Treaty ol' Uyswick. which was concluded in lii'.tT, pro- vided that : — "Ttii. The Mos! CUiiistian Kinti' shall rest(»re inn'al invasion causi-d a im-i tinj^ at Loniloii of Coininis- 428. t Gameau's History of Canada. 110 NORTHERN BOU.NDARY OF ONTARIO. I'AKT II. m fill countrios, islands, forts, and colonies, wheresoovor situated, which the Fronch did possess l)et'ore the said declaration of war ; and this restitution shall be made on both sides, within the space of six months, or sooner if it can be done. And to that end, immediately after the ratification of this Treaty, each of the said Kings shall deliver or cause to be delivered to the other, or to commissioners authorized in his name for that purpo.se, all acts of concession, instruments, and necessary orders, duly made and in proper form, so that they may have their effect. " 8th. Commissioners ahall be appointed on both sides to examine and deterraine the riu'hts and preten.sions which either of the said king's hath to places in Hudson's Bay ; IikI ike jfossessioii of ///o.sv jildces iciii -li tvere taken h// the French dtt- riuif flic peace that preceded this present irai\ shall he left to On- French hji cirfne of tin' forefjoiiig artir/e.'' By article .s'*;^',;, the principle of reciprocal restitution, .so iar as it related to conquests made during the war, was agreed to. The statu quo ante f)ellinii was to be esta])lished. Lest any doubt should arise as to the forts taken by the French be- fore the war began, artich^ p/.y//< declares that places "taken by the French in Hudson's Bay during the peace that prece- ded this present war.'" shall be left to the French by virtue of the seventh article. This is not simply the application of the principle of iiti possidetis at the close of the war. which would have given France all of the places taken by D'lber- ville and others which she then held ; it is the application of the principle to the condition of things immediately preceding the war. H was saying to France. " What you took from us before the war began, shall be yours and shall be restored to you within the space of six months by virtue of the words : — ' The King of Great Britain shall restore to the Most Chris- tian King all countries, islands, forts, and colonies, wherever .situated, which the English did possess before the declaration of war.' '' Commissioners were appointed under the Treaty ; but I Part II. NORTHERN BOUNDARY OF ONTARIO. Ill at I need not say that they were not at liberty to question the rights of Fr''?e to the possession of those places vvhich had l>een taken from the lilimlish before the war beg-an. 01 these France was made the Sovereign, l)y the Treaty. The duty of the commissioners, it would seem, was to decide after due ex- amination, th<' rights of Fraii'M> ai\d England, respectively, to places other tlian tho;>e which the Treaty mad(> uncondition- ally th(> property of France. It was not impossible ibr the • 'Utire country about the bay, by the decision of the Commis- .sioners, to become the ])roperty of France : it was mipossible that it could so V)ecome a possession of England. Had it been intended to make them the possessio!is ot I'^rance, pendniu'tho decision of commis.sioners only, it would have been so stated, or the latter half of the eighth article would have been embraced in the seventh ; l)ut following as It does a provision for the appointment of commissioners to determine the riii'hts and pretensions of the two kings to /i/ares in Hudson's Bay. it must be regarded as a limitation upon the scop<' of the Commission rather than a provision for the temporary possession of the places rei'erred to, the only t'liect of which woidd have been to throw upon the Eiiiilish ' iovernnicni the oiina of ]iroving a supt^rior title to the country. [t is obvious that as a claimant to Hudson's Bay and the ad- jacent country. Franct^ stood, alter the Treaty of Ryswick, in a more advantageous position than I'iniiland. The Hudson's Bay Company held Fort Albany. It had been captured by the French in a time of peace, and was re-taken by the Eng- lish during the war ; and was therefore by the Treaty itself ii warded to France. In July, 1700, the Hudson's Bay Company addressed a corumunication to the Lords of Trade in rel'erence to their boundaries. They proposed the Albany river, or the 58rd paral- lel of north latitude, as the boundary on the West coast of the bay, and Rupert's river as the boundary on the East coast. Beyond these limits neither Government was to permit its 112 NORTHERN BOUNDARY OF ONTARIO. Part 11. subjects to trade in the territory of the other. They informed the Lords of Trade that " by such limitations the French will have all the country to the south-eastward betwixt Albany Fort and Canada to themselves, whicli is not only the best and most fertile part, but is also a much larger tract of land than can be supposed to be to the northward, and the Com- pany dei)rived of that which was always their undoubted rii^ht." The French, while inaintaininay ; and from the 2t54th to the .'Wdth de,i,'ree of longitude, viz., from the river Mississipjii to ('a))e liace Were I to reckon in all the countries that lie to the Nortli-West of (,'iinaila, T should find it laryer than Eiu'ope ; but I confine myself to what is discovered, kno\ni .and owned I mean to the countries in which the French trade with the natives for beavers, and in which they liavi' forts, ma,i,'a/.ines, missionaries, and small settlements. "Memoirs of Travels in X. America (ltiHI3-',W). As to the situation of the eciuntry posaes.sed by the P^vnch in North America, and Cdunnonly all comprehended under the ))revailing name of Canada, tho scat and resi- dence of their (iovernor-CJeneral beiiiL,' upon the i)lace properly so-called- its .situation is from about .■i4 de;,a-ees of North latitude to the EoMivarJ of Port Nelson, in the country of the Escimoes. extendinjj itself all the way Sonth-West to the mouth of till' Mississippi I'iver, which falls into the Hay of Appalai^ldo. in the Great Bay of Mexico, altiiut the latitude of '2H degrees and '.W minutes, comprehending as it goes, their i)art of Xewbumdiand, the Lsland of St. Peter, Acadia or Nova Scotia, which I)o,'ders ui)on the Hritisli Province of New Hampshire whose boundary ti> the KiiM- mini is the little River St. Cray (as the Erench allege). -Captain Vetch (1708), Pow- uall MSS. , vols. 1 and 4. ti Pam li NORTHERN BOUNDARY OF ONTARIO. 113 with whatever further they may think it advisable to propose in reference to their own affairs, for the more easy settlement of all disputes between the Company and the French in Hud- son's Bay."* The Company on the 12th of February following made the further offer as to the limits between themselves and the French : "1. That the French be limited not to trade by wood- runners or otherwise, nor build any house, factory, or fort to the northward of Albany river, vulgarly called Checheawan, on the West main or coast. " 2. That the French be limited not to trade by wood- runners or otherwise, nor build any house, factory, or fort to the Northward of Hudson's Kiver, on the East main or coast." By Propositions 3 and 4, the English were to be restrained in like manner from trading south of these limits. By Propositions 5 and 6, the islands of the bay were to have been divided in a manner corresponding to the limitary lines upon each coast. •' 7. That neither the French nor the English shall at any time hereafter extend their bounds contrary to the aforesaid limitations, or instigate the natives to make war on or join with either in any acts of hostility to the disturbance or de- triment of either nation." The Company were willing to agree to these terms upon condition, " that the// ivere secured against any claim that hat beet) made, or that may he made on them, under ike Eiyhth Arti' ok of the Treaty of Rt/swick." They were ready to give up Fort Albany, and accept the forts north of the boundary line which they had proposed, but only upon condition that the limits were delinitely settled. They said that if the limits they had proposed " are not ac- cepted, they will not feel themselves bound by this or any former concession of like nature, but must insist upon their right to the whole bay." • Pownall's MS3., see Appendix, O. fr 114 NORTHERN BOUNDARY OF ONTARIO. Habt 11 I need say nothing concerning thiR threat. If the Company ever had any such right, the Eighth Article of the Treaty of Ryswick put it out of the power of the English Government to make so extravagant a demand. When the Company asked to be secured against any claim under this article of the Treaty, they in effect admitted that a claim might be made. It is not difficult to understand what that claim was. I have already stated that the Eighth Article of the Treaty made the forts and settlements which the French had taken from the English before the war, French possessions, which by the Seventh Article were to remain to France, and to be restored to her where, at the close of the war, they were in the hands of the English. By the provisions of the Treaty, Fort Albany became a possession of France. The Company proposed a line of action which could only haA^e been defended had the principle of uti possidetis been the one upon which the Treaty had been based. They were not willing to surrender Fort Albany without an equivalent, which, by the Treaty, they had no right to demand. The feature of the Treaty which impressed itself most strongly upon the minds of the Com- pany, seems to have been this — that no boundary line could be drawn which would exclude the French from the territory that would remain to the Company. The Company sought, not a fulfilment, but an amendment of the Treaty. Their propositions and memorials to the English Government show that they were most anxious to have a boundary of mutual exclusion, which under the treaty was impo^5sihle. They wanted in exchange for Fort Albany the places held by the French north of the line of division which they expressed themselves ready to accept. The motive of the Company is obvious. The French were in possession of the Severn and Nelson rivers. The com- mand of these rivers would have given them the greater part of the fur trade north of the hmitary line proposed. When this lact is remembered, we can fully appreciate their efforts to escape from the stipulations of the Treaty, and to proceed III Part II. NORTHERN BOUNDARY OF ONTARIO. 116 with the Commission as if there had been no agreement on the part of England to leave France in possession of all she held bei'ore the war. On tbi' Uih of January, 1702, the Lords of Trade asked the Hudson's Bay Company " to lay before them whatever they may think fit to offer in relation to the trade and security of the place at this time."=i^ On the 19th of the same month, the Company state "that they have been lelt in such a deplorable state by their great losses by the French, both in times of peace as well as during the late war, together wdth the hardships they lie under by the late Treaty of Ryswick, tb'^'^ may be said to be the only mourners by the peace." Albany Fort — their only possession — IS surrounded by the French on every side,- "by their set- tlements on the lakes and rivers from Canada to the north- wards towards Hudson's Bay, as also from Port Nelson (Old York Fort) to the southward." They say that " the French have made another settlement, at a place called New 8evem, twixt Port Nelson and Albany Fort, where they have hin- dered the Indians coming to trade at the Company's Factory." They ask for " three men of war, ^:ie bomb-vessel, and two- hundred and hfty soldiers besides the crews, in order that the vast tract of land may not be lost to the kingdom. " On the 1 9th of May, 1709, the Lords of Trade " ask the Company for an account of the encroachments made by the French upon the territories and places wuthin the limits of the said Company's Charter." This the Company gave, in a memorial in which they complain of the sacrifice of their rights by the Treaty of Ryswick. They refer to the Report of the Commissioners in 1687 in reference to the damaaros they had sust ir.ied from the French, and repeat the King's resolution thereupo:i ; and in a long communication to the * This was just before the conimencement of the War of the Succession. Each of the communications a.sked from the Company, were sought in view of negociations for peace, at the Hague, 1709, at Gertruydenberg, 1710, and at Utrecht, 1711-12.— Memoirs de Torcy, vol. 2 ; Coke's Marlborough, vol. 3 ; Boliii{{broke'« Lettere on History. 116 NORTHERN BOUNDARY OF ONTARIO. Part II. Queen, in December, 1709, they say that " when your Majesty in your hij^h wisdom shall think lit to give peace to those enemies whom your victorious arms have so reduced and humbled, and when your Majesty shall judg-e it for your people's good to enter into a Treaty of Peace with the French King, your petitioners pray that the said Prince be obliged by such Treaty to renounce all right and pretensions to the Bay and kStraits of Hudson, to quit and surrender all posts and settle- ments erected by the French or which are now in their pos- session, as likewise not to sail any ship or vessel within the limits of the Company's Charter, and to make restitution of the £108,514 IDs. 8d. of which they robbed and despoiled your petitioners in times of perfect amity between the two kingdoms." On the 8th of February, 1712, they addressed a memorial to the Lords of Trade, in which they proposed that " No wood- runners, either French or Indians or any other person what- soever, be permitted to travel or seek for trade beyond the limits hereinafter mentioned. That the said limits begin from the island called Grimmington's Island or Cape Perdrix in the latitude of 58| degrees north, which they desire may be the boundary between the English and the French on the coast of Labrador, tow^ards Rupert's Land on the east main, and Nova Britannia on the French side, and that no French ship, barque, boat, or vessel whatsoever shall pass to the northward at Cape Perdrix or Grimmington's Island towards or into the Straits or Bay of Hudson on any pretenca whatso- ever. " That a line supposed to pass to the south-westward of the Island of Grimmington or Cape Perdrix to the great ; /; ^ Miskosinke at Mistoveny,* dividin<:^ the same into two ^ani, i as in the map now delivered, and that the French nor any others employed by them shall come to the north or * Now called Lake Mistassinnie, or Mistaasin. t Upon all the English maps since this period the boundary is extended to the high- lands south of this lake. Part II. NORTHERN BOUNDARY OF ONTARIO. 117 northward of the said lake, or supposed line by land or water, on or through any rivers, lakes, or countries, to trade, or erect any forts or settlements whatsoever, and the English on the contrary, not to pass the said supposed line either to the southward or eastward. " That the French be likewise obliged to quit, surrender, and deliv-er up to the English upon demand York Fort (by them called Bourbon) undemolished, together with all forts, factories, settlements, and buildings whatsoever taken from the English, or since erected or built by the French, with all the artillery and ammunition in the condition they are now in, together with all other places they are possessed of within the limits aforesaid or within the Bay and tStraits of Hudson." The Company add that their Charter constituted them the lord proprietors of all those lands, territories, seas, straits, bays, rivers, lakes, and soundings withir the entrance of the Straits. On the 19th of the same month, the Lords of Trade write to the Earl of Dartmouth to say " that in obedience to her Majesty's commands, they have considered the petition of the Hudso)i's Bay Company, and that they are of opinion that they have a good right and just title to the whole Bay and Straits of Hudson." They state further that they have received fromj the Com- pany a memorial, a copy oi which they enclose to his Lord- ship, and upon which they observe " that it will be for the advantage of the said Company that their boundaries be set- tled," and they suggest that this, with other matters to which they reler, be " recommended to her Ma,jesty"s Plenipoten- tiaries at I trecht." All these representations of the Hudson's Bay Company were made upon the assumption that the War of the Succes- sion, which began in 1702, would put an end to the Treaty of Ryswick, and that the stipulations therein made by England and France were no longer binding upon either. This is not the rule. " Transitory conventions are perpetual in their na- m 118 NORTHERN BOUNDARY OF ONTARIO. Part II. ture, 80 that being- once carried into effect, they subsist inde- pendent of any change in the sovereignty and I'orm of go- vernment of the contracting parties, and although their ope- ration may, in some cases, be suspended during war, they re- vive on return of peace without any express stipulation — such are treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favour of one nation within the territory of another."* " It is of great importance," says Vattel, " to draw a proper distinction between a new war and the breach of an existinsr treaty of peace, because the rights acquired by such a treaty still subsist, notwithstanding the new war, whereas they are annulled by the rupture of the treaty on which they were founded. It is true, indeed, that the party who had granted those rights, does not fail to obstruct the exercise ol' them du- ring the course of the war, as far as lies in his power, and even may, by the right of arms, wholly deprive his enemy of them, as well as he may wrest from him his other possessions. But in that case he withholds those rights as things taken from the enemy, who, on a new treaty of peace, may urge the restitution of them." The subject matter of the seventh article of the Treaty of Ryswick is of such a nature that it could not be aifected by a declaration of war made five years later. The War of the Succession was adverse to France, and England was enabled to make demands in reference to Hudson's Bay, at its conclu- sion, which the triumphs of her arms may have justified, and it is upon the treaty which followed, that her sovereignty to the shores of the bay must rest Tt is equally certain that be- fore 1713 it was the recognized possession of France. Being unconquered, it w^as, during the war, as much French terri- tory as Normandy. What effect the ratification of the Treaty of Kyswick had upon the Charter of the Company, I shall by and by consider. * Wheaton's Inti-niational T,avv, part 3, sec. 2G8 ; see also Vattel, B. 2, chap. 12, !iec. 192 ; Kent's Com., vol. 1, 420, Society for Propagating the Crospel, v. New Haven, 8 Wheat R., 4(>4. K PlUT U NOKTHERN HOTINDARY OF (ONTARIO. 119 The provisions of the Treaty ol' Utrecht, concluded in 1713, relating to the claims otl^^rance and England in Hudson's Bay, are as i'ollows :* •' X. — The said Most Chvistinn King shall restore to the kingdom and Queen of Grreat Britain, to be possessed in full right, the Bay and tStraits ol" Hudson, together with all lands, seas, sea-coast, rivers, and places situated in the said bay and straits, and which belong thcn-eunio, no tracts of land or sea being excepted, which are at present possessed by the subjects of France. All which, as well as any buildings there made, in the condition they now are, and likewise all fortresses there erected either before or since the French seized the same, shall within six months from the ratilication of the present Tn»aty, or sooner, if possible, be well and truly delivered to the British subjects having commission from the Queen of (Ireat Britam to demand and receive the same entire and un- demolished, together with all the cannon and cannon-ball, and with the other provisions of war usually belonginii' to cannon. It i.s, howcHMMv j)r()vided that it may l)e entirely Iree for the Company of Quebec, and all other the subjects of the Most Christian King whatsoever, to go by land or by sea, whither- soever they please out of the lands of the said bay, together with all their goods, merchandises, arms, and effects of what iiiiture or condition soever, except such things as are above reserved in this Article. But it is agreed on both sides to de- termine within a year by commissaries to be ibrthwith named by each party, the limits which are to bt> lixed between the said Bay of Hiulson and the places apjxMtaining to the French, which limits both the British and French subjects shall be wholly i'orbidden to pass over, or thereby go to each other by sea or by land. The same commissaries shall also have orders to describe and settle the boundaries between the other British and F'rench colonies in tho.se parts " XI. — The above-mentioned Most Christian King shall take care that satisfaction be given, according to the rule of * Chaliner'M Collection of Treaties, vol. 1, i)p. :i78-»-80. 77T 120 NORTHERN BOUNDARY OP ONTARIO. Part II. justice and equity, to the English Company trading to the Bay of Hudson, for all damages and spoil done to their colonies, ships, persons, and goods, by the hostile incursions and depre- dations committed by the French in time of peace, an est'mate being made thereof by commissaries to be named at the requi- sition of each party " On .the 4th of August, 1714, the Hudson's Bay Company renewed their application to the J^ords of Trade for a settle- ment of the boundary between their territory and Canada. They again described from Cape Perdrix to the great Lake Miskosinke at Mistoveny (Mistasin), the boundary asked for in February, 1712 ; but they added to their proposition of that date, the words, " and from the said Lake to run south- westward into 4i) degrees north latitude, as by the red line may more particularly appear, and that latitude be the limit. . " It is quite clear from the correspondence which passed be- tween the two Governments at the time that the Treaty was being negociated, that no such pretension was put forward by the English, and that it was upon the east of the bay alone that the Hudson's Bay Company made any suggestions in reference to the boundary. In August, 1719, in a memorial to the Lords of Trade, the Hudson's Bay Company admit that the bay and straits have been surrendered to them according to the terms of the Treaty ; but they complain that since the conclusion of the Peace — viz., in 17 15 — the French had made a settlement at the head of Albany river,* upon which they have their principal factory, intercept- ing the Indian trade, and will ultimately ruin their factories if not prevented — and they renew the desire expressed in their petition of 1714, that except upon the Labrador coast, the French might be prevented going north of the forty-ninth parallel. The P^nglish Grovernment undertook to refer the " several matters pursuant to the 10th, 11th, and 15th Articles of the Treaty of Peace with France" to the commissaries who had * This may have been the J'ort built by Lieutenant NoUe in 1717, by order of Tau- dreuil. — See Minute of Conseil de Marint. Appendix K. Part II. NORTHEKN BnUNDARY OF ONTARIO. 121 been appointed under the Commercial Treaty ol" Utrecht lor the purpose of ^ivin/ /udf/ed the extent of their h. there vnin no vert/ (/real difference, and that the /Kirlles v^ho determine that dif/ereiice, nmxt he (/niiicd hij the same carte. I fhoni/hf the Article would admit of no ili-^/mte, in case it ho either determined imnu'diately l>y the rienii)oten- tiaries, or reierred to commissioners. I take leave to add to your Lordship that these limilalions are not otherwise advan- tajfToous or prejudicial to Crreat Britain than as we are better or worse witli the native Indians, and that the whole is rather a matter ol' industry than domii.ion.''=* It is manilest Irom this letter ol' Mr. I'riors. that the extreme pretensions ol both (»o\ crnnieiits were marked upon the map referred to, and that when a commission came to be ap- pointed, they could not seek lor a boundary under the Treaty elsewhere than within the country lyinu' between these lines. These letters have no me.inin<^ if it was intended to restore the whoh^ country drained into th:"" bay. to lilngland. This would bo the most extreme d»!many the French, upon the map relerred to by Mr. Prior anJ the Miiniuis de Torcy, luid it cannot for a moment he supposed that upon that map the English drew a lino cominij;' down to the lorty-ninth parallel. It is not at all improbable that the Hritish commissioners were, at the time they put forward th»! <;xtreme claims of the Hudson's Bay Company, unaware of the limitations the re- spective Governments had i)ut upon their claims to dominion over the basin of the bay, by lines drawn upon the map, which was intended to assist in a proper construction of the Tenth Article of the Treaty of Utrecht ; otherwise the con- duct of the British commissioners is inconsistent with good faith on the part of the Uovernmont they represented. Six years had elapsed. Bolingbroke had l)een driven into banish- ment. The men who had come into power upon the fall of Marlborough were displaced, and it is not at all improba})le that they were ignorant of the limitation that the letters of De Torcy and Trior, and the map they refer to, put upon the demands, that otherwise mii>ht, with a little show of reason, be made under a literal construction of the Treaty. The Hudson's Bay Company were called upon in July, 1750, to lay before the Lords of Trade and Plantations a description of the limits of the territories uranted them by the Charter of 1G70. Their knowledge of the geography of the regions they claimed, seemed to have improved since 1714. They enter into a more minute description of the co^autry. They say that the Bay and Straits of Hudson " are now so well known that 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 said grant, are as follows : that is to say, all the lands lying on the east side or coast of the said bay, and extending from the bay eastward to the Atlantic Ocean and Davis' Strait, and the line hereafter mentioned, as the east and south-eastern boundaries ¥ ' rvmmtmmmmmmm 124 NORTHERN BOUNDARY OF ONTARIO. I'AKT IT \li 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 there towards the !^orth Pole ; but where or how these lands terminate is hitherto unknown. And towards the west, all the lands that lie on the west side or coast of the said bay, and extending from the said bay westward to the utmost limits of the said lands ; but where or how there 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 diAided from the places appertaining to the French in those parts by a line from the island called G-rimmington Island or Cape Perdrix, in the latitude of lifty-nine and a half degrees north, which they desire may be the boundary between the English and the French on the coast of Labrador," &c. The remain- der of the description corresponds with the line set out in their proposal of the 4th of August, 1714. This memorial shows that they did not regard their Char- ter as simply covering the territory drained by the rivers falling into the bay — as they claimed tlie territory to the North Pole and to the Paciiic Ocean. They seem to have ad- mitted th ^ claims of the French to the southern part of the basin of l^udson's Bay ; for they say with regard to the southern boundary, that " to avoid as much as possible any just grounds ibr differing with the French in agreeing on those boundaries which lie nearest their settlements, it is laid down so as to leave the French in possession of as much or more land than they can make any just pretension to ; ami at the same time leaves your meniori.dists but a very small district of land from the south end of the said bay necessary for a frontier." This line, as laid down on the maps of Mit- chell and Bell, gave to France the country as far west as the longitude of the head waters of the Mississippi; and this tory • B publifi knowr I'lainei PAar II NORTHERN BOUNDARY OF ONTARIO. 125 was the most extreme pretension put forward by the Com- pany before the conquest of Canada, and the Treaty which confirmed it in 1763. I have not deemed it necessary to detail the voyages and discoveries upon which the French founded their claims to the sovereignty of Pludson's Bay. A memoir of their rights will be found written by M de Denonville, and addressed to M. de Seignelay, from Quebec, on the 8th of November, 1686, at pages 303, 304, and 305, volume 9, of the Neiv York His- torical Collection. The French attempt at continuous occupa. tion of the shores of the bay, dates IVom 1656, and the Eng- lish occupation began eleven years later. The French hold- ing, as they did, the interior country, carried on the I'ur trade with the northern Indians at Temiscaming, Alemipigon, and other posts, did not make any etibrt to establish themselves upon the shores of the bay. Thoy no doubt felt that they could better protect the revenue derived from the licenses granted to the traders, by making the St. Lawrence the exclusive highway to Europe, than by permitting a portion of the trade to escape thither from Hudson's Bay. There is no evidence that Hudson, or any oi" those who succeeded him, was commissioned to take possession of the country about Hudson's Bay, on behalf of the Crown of England. Nor is there any evidence that the English had any intention of seeking to acquire the territory before 1667. If thby had any intention before that time to base a claim to the sovereignty of the country upon the voyages of Hudson, Fox, or Button, there would have been some mention made of it during the negociations of the Treaty of St. Grermain- en-Laye, in 1632, when C'anada was restored to France, and the successes of Kirko were thrown away. But there is no allusion to any British possessions in the north, and that Treaty proves that in 1632 the English laid claim to no terri- tory north of the St. Lawrence.* * Bloine's " Present State of Hin TvlajeKty'H Isles and Territoiies in North America,' published in July, 108G, makes no mention of Hudson's Bay. It waa for years only known as British territory to the Company, and to the Ministers to whom they com- [ilained of French agijressious. liSfc^' I* i m H 1 ■™j H'i .Ml '.I'i 126 NORTHERN BOUNDARY OF ONTARIO. Part II. It is not, however, necessary to determine the merits of the claims of the respective parties in order to arrive at a just con- clusion as to the location of the northern boundary of Ontario. The Treaty of Utrecht gave to England the shores of the bay, and it is my purpose to state where I think the Treaty ol' Utrecht, and the subsequent acts of the Parliament and King of England placed it. During the negociations of the Treaty of Utrecht, long discussions took place between the Plenipo- tentiaries of England and France as to the phraseology oi the Treaty. =^ The French, in surrendering the bay and the adjacent territory, wanted to use the word cede, and the Eng- lish insisted on the use of the word restore. The French were unwilling to admit that when they captured the Eng- lish forts upon the shores of the bay, in time of profound peace, they had been capturing forts which were rightfully erected by British subjects upon British territory. The English seemed to have insisted upon the use of the word restore, to revive, if possible, the rights of the Hudson's Bay Company to the country which had for twenty years been in the possession of the French ; and the letter of Lord Dart- mouth to the Hudsons Bay Company shows very clearly that the transfer was to be made directly by France to the Com- pany, and not to the Government of Great Britain ; so that " by this means, the title of the Company is acknowledged, and they will come into the immediate enjoyment of their property without further trouble."! From the signing of the Treaty of Utrecht to the signing of that of Paris, the Hudson's Bay Company built a few ad- ditional posts, but except Henley House, and a trading post in the direction of Temiscaming, none of these posts drew them away from the shores of the bay. Nor do I see upon what principle that any act of the Company could, at that time, have enlarged their possessions. The fur-traders, under the Government of Canada, had for half a century traversed * Bolingbrokc's CorieBpoiidence, vol. 3. Appendix P. + Dartmouth to Lords of Trade, May 27th, 1714. Appendix O. Part II. NORTHERN BOUNDARY OF ONTARIO. 127 the country between the great lakes and the bay, westward to Lake Winnipeg, and when the French had gone from Quebec, from Mackinac, and from Nipigon, to Hudson's Bay, and captured the forts of the Company, which were subse- quently recognized as rightfully belonging to them, it could scarcely be held that it was possible for the Company to extend their dominion over any part of the country east of Lake Winnipeg and Nelson's river, without encroaching upon Canada. In 1718 the Company built a wooden fort upon the Churchill River, called The Prince of Wales Fort.=^ In 1730 they built one fort upon the Moose Kiver, and another small one on the East Maine. In 1744 they built Henley House, 150 miles up the Albany river, so as to share the trade in a larger degree with the French, who had twenty-seven years earlier built a fort near the source of that river.f They did not enter the Valley of the ^Saskatchewan until the end of the last century, nor that of the Red River until the beginning of this. I have stated in the hrst part of this report, that the Charter of the Hudson's Bay (Wipany was not intended to conier a title to a country already possessed by the Crown. It was, as it professes to bo, and as many ' Heanie says it wa.s built in 1721. t It Heenis the Fri'ueli had liei'ii in tiic iiahit of tradin!,' alKiiit Lake St. .ToKepli's and the Head Waters of the Alhany river long hefore Liiutenant X Nelson, the Albany, or the Severn riA'ers without entering the bay, and to have ibrmed settlements there, which were not reached by the Company for half a century, who will hold that they would have been, from the beginning, trespasser:^ upon the property of the Company ? But whatever doubt might exist in the mind as to other British subjects, in such a case, there can be no douV)t as to the rights of the subjects of a foreign prince. A right of sovereignty attends, as a neces- sary consequenc<% upon the establishment of a nation in an unsettled or barbarous country. A nation may so establish itself either Ijy immigration in a body or by sending forth colonies ; and when a nation so takes possession, the country becomes a part of the parent state* The right of dominion in a nation corresponds to the right * Vattel's Law of Nations, book 1, sections 205-210. i}h mmn Part II. NORTHERN BOUNDARY OF ONTARIO. 131 not lold of property in an individual. When a nation occupies a vacant country, it imports its sovereignty into the country. \ nation ditlers from an individual in this — when an individ- ual settles in a country in which he hnds no previous owner. ho cannot arrogate to himself an exclusive right to the coun- try, or to its government, unless some sovereign authority has delegated to him power to do so.* " The exclusive right," says "Wheaton, "of every uidividual State to its territory and other property, is founded upon the title originally acquired by occupancy, and subsequently con- lirmed by the presumption arising from the lapse of time, and by treaties and other compacts with foreign States.'f To constitute a valid territorial title by occupation, the ter- ritory must be previously vacant, ami Ike State must intend to take and luaintain //OKsession. The claims of European nations to possessions held by them in the New World discovered by Columbus and other adventurers, was originally derived IVom discovery, or conquest, or colonization .| When Mendoza, the Spanish Ambassador, remonstrated against the expedition of Drake, Queen Elizabeth replied : " That she did not understand why either her subjects or those of any other European Prince should be deprived oi' traffic in the Indies ; that as she did not acknowledge tho Spaniards to have any title by the donation of the Bishop of Rome, so she knew no right that they had to any places other than those they w^ere in actual possession ol". For that tht-ir having touched only here and there upon a coast, and given names to a few rivers or capes, were such insigniUcant thinus as could in no wise entitle to a propriety, /(/rZ/nr t/ian in parts where tlie>) act nail /j settled, and continued to inhabit." § Elizabeth, in refusing to recognize the double Spanish title by exploration and investiture, put it out of the power of her * Vattel's Law of Nations, book 2, section 9(>. t Whe,'tt(iii'.s Tiiternationul Law, chap. 4., sec. ItiL + Wheaton's International I^aw, chaii. 4, section l(i.5. § Camden's Annals, anno 1580 (edit Heanie, 1717), p. 360. :li nil Mil, i) 1. j mm t Hi 1 11 if '^' lE^i it 132 NORTHERN BOUNDARY OF ONTARIO. Part II, successors to found any claim upon the discoveries of Cabot, Hudson, Fox, and others who saiJed into Hudson's Bay. In 1824, Mr. Rush, in a letter to Mr. Adams, said that Great Britain " could never admit that the mere fact of Spanish navigators having first seen the coast at particular points, even vs^here this was capable of being substantiated as a fact, without any subsequent or efficient actsoj Hovereignty or settlement following on the part of Spain, was sufficient to exclude alt other nations from that portion of the globe.^'^ The principle recognized and maintained by the United States is "that prior discovery gives the right to occupy, pro- vided that occupancy takes place within reasonable time, and is followed by permanent settlement, and by the cultivation of the soil."t In the discussion that took place between Russia and the United States in respect to the boundary upon the North- West coast of America, the Chevalier de Poletica, the Russian Minister at Washington, laid down the following doctrine as a basis upon which a Government may fairly claim the sovereignty of a country: "The title o^ first discovery, the title of first occupation, and in the last place, the peaceable and uncontested possession lor more than half-a-century." | The same doctrine was stated in 1820 by the British Com- missioners, Messrs. Huskisson and Addington, for the settle- ment of the boundary between the United States and British America. They say : " Upon the question how far prior dis- covery constitutes a legal claim to sovereignty, the law of nations is somewhat vague and indefinite. It is, however, admitted by the most approved writers that mere accidental discovery, or receiving the sovereignty from the natives, constitutes the lowest degree of title."^ "Soon after," says C. J. Marshall, "Great Britain deter- * state Fapers 1825-182G, p. 012. • t Mr. Gallatin, in Appendix to Greenhow's Oregon Boundary ; ako Twiss' Oregon Question, p. 105. X British and Foreign State Papers, 1821-2, p. 485. § Loudon Conference, Dec, 16, 1826, mm Part II. NORTHERN BOUNDARY OF ONTARIO. 133 mined on planting colonies in America, the King granted charters to (companies of his subjects who associated for the purpof^e of carrying the views of the Crown into effect, and of en- riching themselves. The first of these charters was made bifore possession was taken of any part of the country ; they purport generally to convey the soil from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to con- vey the title, which, according to the common law of Euro- pean sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of pur- chasing such lands as the natives were willing to sell. The Crown could not be understood to grant what the Croivti did not nffed to claim, nor uias it so understood.''* It will hardly be contended by the Government of Canada, that, because the Hudson's Bay Company had established cer- tain posts and forts at the mouth of some of the rivers that empty into the bay, that this gave to the Company, or to the Crow^n of Great Britain the right to all the countries through which rivers flow to the bay. A pretension of this kind was put forward by the United States, for the purpose of estab- lishing a claim to the entire valley of the Columbia river and its tributaries, and it was at the time expressly repudiated by Great Britain. It is a principle as well settled as any in international law, that rivers are no more than appendages of the countries through which they run, and a settlement upon the coast * Worcester v. The State of Georgia, G Peter's R. iy^y/c— Gilbert's patent, made the 11th of June, 1.578, authorized him to discorc)' and occupy any remote, heathen, or barbarou.s lands not actually possessed of any Christian prince or people. — Hazard's Hist. Col, vol. 1., p.p. 24-28. 134 Nr)riTHERN HOTTND.VRY (iF ONTARIO. Part II •jives poKsession to tho country in the rear, only ho far as it l)iirs the approach to the int«>rior of the country.* hy the Tenth Article oi' the Treaty of Utrecht, the French re4oted to the Ens^linh, " Hudson's Straits and Bay, and all the lands, seas, sea-coasts, rivers and places situated in the said Bay and Straits, and which beloni>- thereunto, no tracts of land or sea beinii; excepted which are at present possessed by the siihj'eds of France." It is true, that, was it not for the use ol" the word restore in the Treaty, the expressions (Mnployed are very compre- hensive ; but this one word limits all jifeneral words ol de ;cription to what was once in the actual possession ol England. If this were not the case, there would have been no propri(*ty in insertin"- the additional terms ibr the cession o^' tracts of land in the possession of Frencli subjects.! Had t'le word rt'Wow been used instead oi' resfonifion, the terms all lands, seas, sea-coasts, etc., would certainly have been broad enouo-h to have convc^yed the entire coasts of the bay : bul it would s(^em that, for the purpose of maintaining- that CharU's the Second had the rig'ht to make a ijrant of some part of the coast, and in this way to o'ive color to the claims of the l^ompHuy. the word resfomfiov was insisted on, and. * .Sec cipni'siioiiili'iHH' liftwfcii till' ( !i)vc'nimt'iits of En.Lflainl atnl tln' L'liited States, relativi- to the ( >n':j:iiii liiniiuUiry. and the iliscovcry of tho < 'oluinbia River. — State Pajjers, 184.")-(i. j HihIsou^ l>iiy, wliicli was oiir of Canada's iimst hiiTativf ostablishinentw, has Vieen to lud to tlu- Kn^dish l)y tlu' 'I'l-oatv f Utrecht, uiidiT thf denomination or title of restitution. 'I'iiev carry on a prolit!i,l)le trade there ; but tne e.vcessive cold, and difficulty of sub^istence. will never jiennit them to form establishments there capable of atfordiuL,'- any tineasiuess to Canada -and if the strength of the latter country be augmented, ius in-ojio.sed, 'twill possibly l)e in a condition in the first war to wrest Hud- son's l^ay fioni the ?]nglish. The Treaty of I'trecht had provided for the ap|)ointment of conmiissioners to regu- late tie' boundaries of IIudHon's Bay ; but nothing ha.s been done in that matter. The term " i-estitution"" which has been used in the Treaty, conveys the idea clearly that the En;.,'lish can claim only what they have possessed, and as they never had but a few establidiments on the sea-coast, 'tis evident that the interior of the cimntry is consi- dered IS belonging to France. — Memoir on the French Colonies in North America, by M de la (Jallisseioiiiere. Paris, Doc. 10. N. Y. Hist. C.d., vol. 10, p 22ri. kaut n. NOKTHEKN IIOUNDAHY oK ONTAKIO. 135 therefore, further words ol' conveyance became neces8ary to put England in possession of the entire coast. This fact must not be overlooked, that while France con- sented by this Article of th. • Treaty to transfer to England possessions which had not been hers before ; she at the same time refused to agree to it in its present 'brm until the English Government made known theextent of country they claimed, bt'cause she was resolved not to surrender all that might, otherwise, be demanded. The letters of the Marquis de Torcy and Mr. Prior establisii beyond (juestion that the resto- ration referred to was greatly restricted by the lines drawn upon the map, which must be regarded as a necessary part of the Treaty. The French Government had, as Mr. Trior ad- mits, expressed their fears that a large extent of country would be demanded from them under the Treaty. They re- membered the former pretensions of Englajid, and it was to prevent the possibility of her insisting upon being put in pos- f^ession ol all she had ever claimed, that a map was brought into requisition, and lines drawn by the plenipotentiaries of the two governments, showing beforehand how each i)arty to the Treaty understood it. They were drawn to co';stvue the Treaty, not in the interest of England, but in the interest ol France, and in order that she might be protected against a demand for as much territory as the Treaty would, otherwise, seem to entitle England to claim. It is true that FortiHcations and Military Posts are some- times expressly mentioned as having been ceded or restored when there has already been a stipulation for the transfer of the entire country in which they are situated ;* and had the Treaty only mentioned the Posts and Forts in the possession of the French, in addition to the general words of restoration, it might have been very properly argued that they were within the territory to be restored ; but the words of the * See the DiscuBsion Fietween the Governments of England and France, on the Limits of Nova Scotia, as to the effect of mentioning the cession of certain forts, ax well as " uU Acadia."— Yivr Majesty's Rights in Acadie, 17.t(j. 136 NORTHEHN BOUNDARY OF ONTARIO. Part It m M ;!^i 'i4 Treaty show that however comprehensive the terms of resto- ration might be, the English did not think them alone suf- ficient to secure the transler of the entire coasts of Hudson's Strait and 13ay. • I have already quoted the Articles of the Treaty of Ryswick. by which it was stipulated that all Places and Forts estab- lished on the shores of Hudson's and James' bays by the Hud- son's Bay Company, became the property of France. I am of opinion thsit thest^ stipulations extinguished what- ever rights the C'ompany had by their Charter, and that they were not revived by a retrocession of the country to Grreat Britain by the Treaty of Utrecht. As a genmal rule, when a (xovernment comes into posses- sion of property which belonged to its subjects, and which had been captured by an enemy, it restores the property to the original owners. So far as it can, it puts them upon the same footing as that in which th«>y stood before the capture.* It is, too, the rule and thi' practice for the conqueror to re- spect the right to private property in the soil when a country is conquered. But to both these rules there are important ex- ceptions. " Where a territory," says Halleck, " has been ac- quired by conquest, and coniirmed to the conqueror by a Treaty of Peace, the right or title of the new sovereign is not that of the original possessor, and therefore is not subject to the same limitation or restriction. It originated in force, and dates back to the conquest. A subsequent restoration of such territory to its former sovereign is regarded in law as a retro- cession, and carries with it no right of postliminy. When the inhabitants of such conquered territory become a part of the new State, they must bear the consequence of the transfer of their allegiance to a new sovereign ; he is in turn to be regarded as a conqueror, and they cannot claim, as against him, any rights of postliminy. The correctness of the principle of international law is never disputed." f * Vattel, book 3, section 205. t Halleck's International Law, chapter 35, section 9. Part II. NOHTHEHN BOUNDARY OF ONTATilO. 137 Vattel mij^ht seem to a careless reader to lay down a diti'er- ent doctrine, hut when oaverully exumiiu'd, itwill l)e (bund to he suhstantially the same. He says : " I'rovinces, towns, and lands which the enemy restores hy the Treaty oi' Peace are cvriainly entitled to fherif/ltt of postliminium ; lor the sovereign, in whatever manner he recovers them, is hound to restore them to their former condition as soon as he reg-ains possession ol" them (§205). The enemy in giving back the town at the peace, renounces th(> right he had acquired ))y arms. It is just the same as if he had never taken it, and the transaction furnishes no reason which can justify the sovereign in re- fusing to reinstate such town in the possession of all her rights, and restore her to her former condition. But what- ever is ceded to the enemy by a Treaty of Peace is truly and completely alienated. It has no lonuer any claim to the right of postliminium unless the Treaty of Peace be broken and cancelled."* The refttortdion here spoken of is not a retro- cession of territory, the title to which has already been vested in the conqueror, but the restoration of territory at the peace immediately following the war in which the conquest was made ; and in that event the adverse possession is regarded rather as a belJUjerent occvpation than a vonqaest.^ The Hudson's Bay Company were not simply private owners of a great estate, endowed by their Charter with limited powers of Cxovernment. They built forts, and armed them. Their valuable property in the vicinity of Hudson's Bay was such as belongs to a 8tate rather than to a citizen. Had their forts and posts been re-captured during the war preceding the Treaty of Ryswick, and left to the English by the Treaty, it would have been the duty of the Government to have placed the Company in the position they stood before * Vattel's Law of Nations, book .S, sections 214 and 21.5. t 3 Washington C. C. liep. 101 ; 8 Wheaton's R. m\ ; 12 Peter's R. 410 ; Halleck's Int. Law 840, 841 ; 2 Dallas R. 1 ; 1 CJow]). R. 16.5 and 205 ; 2 East R. 260 ; 4 Mod. R. 225. Conquest does not per se give the conqueror plenum dominium et utile, hut a temporary right of possession and government.— 2 Gallis. R. 486. 138 NORTHERN BOUNDARY OF ONTARIO. Part 11. y. i i' 'f.:! :>' the capture.* But this rule does not apply where the rights ol the original owners have been once extinguished.! The Hudson's Bay Company were not recognized by France as or- dinary proprietors of the soil, who continued in possession of their lands under a change of sovereignty. They were re- garded as a great public corporation, acting on behalf of their (Tovernment, whose rights must stand or fall with the autho- rity of the Grovernment which created them a corporation. This may be taken as the Common Law of the European States that were seeking to establish their authority upon this continent. Their conduct and policy, during tlie seventeenth and eighteenth centuries, show conclusively that companies such as this one were looked u])on as great political corpora- tions, whose rights and I'rancliises were created mainly to ex- tend the power and authority of the sovereign who chartered them, and that they had, therel'ore, no rights as private owners which a foreign state was, in case of conquest, bound to re- spect. Tliey were looked upon as the custodians of political powder rather than as private citizens, and were dealt with ac cordino-lv. It was in this wavthat the English dealt with the Quebec C^ompany, and the Treaty of Utrecht recognizes the principle in cx]>ress terms. The case of the Duke oi' York, under the charters granted to him. well illustrates the principle. On the I2th of March, 1664, (). S., the King granted, by Koyal patent, to his brother James. ]3uke of York and Albany- all the lands and rivers from the west side of the Connecticut river to the east side of Delaware bay. His patent also embraced Long Island and the islands in the neighbourhood. Those had before been granted to Lord Stirling, but he had released his title before the grant was made to .lames. This patent conveyed a part of Connecticut and the whole of New Netherhinds. James was at the time Lord High Admiral. He took four ships of war to cive eftect to his paleni, and to put himself in possession of his new * Vattel'M Law of Nations, book U, section 20."). t HalleckV [nl. Law, 840, 1, 2. rhilliniore's Int. J^aw, xol. :i, p.p. 568-.'572. Yakt II. NORTHERN BOUNDARY OK ONTARIO. 139 estate. These were put under the command of Colonel Nicolls, who had associnted with him iSir R. Carr, Colonel (t. Carteret, and Samuel Moverick (who was a commissioner to the New Enii'land colonies), requirino; them to assist in the •'onquest ol' the country g-ranted to tlie Duke. On the 20th (»;■ October, N. S., the conquest of New Netherlands was com- pleted, and James went into possession. Three years later the sovereignty of the country was confirmed to Eng'land by treaty. In 1773, war again broke out between England and rhe United Provinces, and the country was re-conquered by the Dutch. I>y the Sixth Article of the Treaty of Westmin- ster, which was ratified on the /',, of February, 167f, the Tjiited Provinces relinquished their conquest of new Nether- lands to the King of l<]ngland. It was claimed that James' former proprietorship in America revived by the restoration of the Province to the King of P]n2"land, (^s]i(^cially as the Treaty of Westminster r.-established the Articles of Caj^tulation between Nicolls and Stuyvesant. in 1004. The Treaty of Breda coniirmc^d the • •••nquest to li^ngland upon the principle ol titi iioKsu/etis. Thert^ were two grounds upon which the validity of the Charter was (piestioned by eminent lawyers — the one that tlie country was in the possession of the Dutch when the Patent was made ; lh(^ other, that the conquest of the Dutch extinguished the title, ii good before. The opinion of counsel h iving been taken, they advised that " the Duke's rights had been extinguished by the Dutch conquest, and that the Khig alone was now seized of New Netherlands, by virtue of the Treaty of Westminster, The /t/s /los/h'miNii did not obtain where there had been a complete change of sovereignty." A new Patent was accordingly issued on the 20th of June, 1674.* t It mav not be always easy to say whether there * nroadlu'ad's History of New Yorlt, vol. 2, ch. ."i, ti ; 1 Kent's tJoiiimentarieg, \>.\>. 108-111 ; 1! DouKlash, (..p. 2--M'.'(i,S. + The colony of Puiniii|uiil was corKiiuTi'd liy D'Tbervillf in l(i8!i. It Wiix restori'd ti' the EnKli^h 1>y the 'I'l-eaty of 1!\ swick. Imt tlicy did not olitiiin iioxxcHsion, it seenin, 140 NORTHERN BOUNDARY OF ONTARIO. Part II kin: has been a suspension or an extinguishment of a right by conquest and restoration. The principle recognized in this case seems to have been this — that where there has been not only belligerent occupation, but the establishment of ci^'il au- thority, and the people have been so far reconciled to their new masters as vohintarily to recognize their authority, there Imfore the war of 1702. It was re-conquered by General Nicholson, and the law offi- ciTs of the Crown were consulted as to whether the right to the lands was in the Crown, or whether the Charter granted before the conquest, waa still in force. They answered : "As to the question stated in the Case, ajTOU the effect of the conquest of this tract of cotmtry by the French, and the re-comiuest thereof by General Nichol- son, we conceive that the said tract, not liaving been jnelded by the Crown of England to France l)y any treaty, the conquest thereof by the French created, according to the law of nations, only a suspension of the i)roi)erty of the former owners, and not an ex- tinguishment of it ; and that upon the re-conquest by General Nicholson, all the ancient riglit, both of the Province and of private persons subjects of the Crown of (Jreat Britain, did revive, and were restored y»rt' jjostliminii. The nile holds the more strongly, in the present case, in regard it appears by the affidavits that the Pi'o- vince joined tlieir forces to those which came thither under the command of General Nicholson, in this service " P. YORKE. Aug. 11, 17;?1. C. Talbot. "A long possession, accompanied with an equitable government, may legitimates conquest, in its beginning and j)rinciple the most imjust There are modern civilians who explain the thing somewliat differently. These maintain that in a just war the vi<'tor acquires the full right of sovereignty over the vancpiished, by the single title of conquest, independently of any convention ; and even though the victor has other- wise obt.ained all the satisfaction and indeninilication he could requir e. " The principal argument these writers make use of is, that otherwise the conqueror iMuld not l>e certain of the peaceable possession of what lie has taken, or forced the cont|ueror to give him for his just pretensions, since they might retake it from him by tht same right of war. ' ' But this reason proves oidy that the conqueror who has taken possession of an enemy's cou.itry, may command in it while he holds it, and not resign it till he has good seou'ity that he shall obtain or possess, without hazard, what is necessary for the satisfaction and indemnity which he has a right to exact by force. But the end of a just war regarded as his success-or. — See Note 1()!> to the 8th Edition of Wheatou, by H. II, 1 ).vna, :t Bee the opinions of Sir William Jones and Sir Clement Wearg in tlie New Jeraey Historical Collection, i liii W "^ " W\ ' ■ h '■ -■ iisx^^ ? ■fWK M i' \ii 142 NORTHERN BOUNDARY OF ONTARIO. I'ART II. Whatever may be thought of the intentions of Bohng'broke and Dartmouth towards the Hudson's Bay (Jompany, there cannot be much doubt that those who succeeded them, recouf- nized the legal effect of the Treaty of Ryswick upon the claims of the Company. In their instructions to the English commissioners at Paris for settling the boundary between Canada and the territory restored to England about the bay, they direct them " to take special care in wording such Arti- cles as shall be agreed upon with the Commissioners of His Most Christian Majesty upon this head — that the snid bomul- (iriei^ be undei'stood to re(jard the trade of the Hudson's Bav Company onlyy The G^overnment, it would seem, were prepared to restore to the Company a right to trade with the Indians, but were not disposed to recognize in the Company any powers of gov- ernment, or any property in the soil. When the Khig, by an Order in Council, in August, 1791, divided Quebec into Uppt'r and Lower Canada, and extended the separating Ihie -'north- ward to the boundary of Hudson's Bay," he did not recogni/e in the Company any rights of proj^erty or of government which this extension coiild take away. !So, too, when th it portion of Lower Canada which lay between the River St. John and the Atlantic Ocean, was severed from Lowtn- Canada, in 180!), and re-annexed to Newfoundland, it em- braced the country northward to Hudson's tStraits, which did, beyond question, annex to Newfoundland part of the country covered by the Charter of the Company.- Thf action of the Khig in the one case, and Parliament in the other, would seem to show that they did not regard the pre- tensions of the Hudson's Bay Company as presenting any obstacle to the extension of the Provinces upon the south to the shores of the straits and the bay. We have seen that the French posts, forts, and settle- ments extended beyond the water-shed of the St. Lawrence to the head water of the All>any river, to the Saskatchewan. * See 49 Geo. a, c. 27, «ec. 14. Part II. NORTHERN BOUNDARY OF ONTARIO. 143 and to Lake Winnipeg. If the map referred to by Prior and the Marquis De Torcy as the one used by the plenipotentiaries in 1713, and the one mentioned by M. de Mofras, which was used by Bedford and De Choiseul in 1763, cannot be found, still I apprehend a boundary may be laid down in conformity with the Treaty of Utrecht and the Order in Council of the 19th of August, 1791, by a Hue drawn midway between the English posts upon the shores of the bay on the one side, and the French posts upon the head waters of the Albany river and Lake Winnipeg upon the other, which line will lix the western limit of the territory restored by France under the Treaty of Utrecht. In my opinion, the territoiy about James' bay to the south of the Albany river was made a part of Upper Canada by the Order in Council referred to, if it was not so before. The United States, in their discussions with Spain respect- ing the western boundary of Louisiana, mentions, in a case like this, the middle distance between two nations' colonies as the proper location ot the boundary,* and Vattel lays down the same rule.f It is in accordance with the facts here set forth that the principle is to be applied. A letter from the G-overnor ot Canada to Count de Maurepas shows that the French had several posts about Lake Nipigon in 1744. J The * British and Foreign State Papers, 1817-18, p. 328. + Vattel, book 2, sec. 95. + M. de Beauharnois to Count de Maurepa.s. — " In regard U> the imsts on HndflonV Hay, and those they have established on tliis side in the direction of Teniiscaining, and which His Majesty has been pleased to reeoniniend nie to endeavour to netitrali/e iir to utterly destroy, if possible; I have accordingly instructed Sieur Uuillet, wlio furtns the Post of Temiscaming, and ha.s gained the good opinion and contidenee of all tlie nations thereabouts to [irevail on them to as. jnd)le together in the course of this winter in order to fall, at the opening of the spring, .as well on Fort Rupert as on tlie 'pther posts in the ilirection of Hudson's Bay ; I have in like manner, on receiving news of the war, sent orders to Michilimackinac, to be transmitted to Alei)iraig(mand the otlier )»osts in that neighbourhood, so that they may all co-operate in the destruc' lion of the English establishments at the north, and among the rest, of tiiat newly liuilt, aliout twenty leagues above Michii)icoton, by a Canadian refugee, who has con- ducted thitlier seven or eight Englishmen who trade there ; and I have ordered not iinly the forcible destruction of that establishment, but also that the Canadian be "i k 144 NORTHERN BOUNDARY OF ONTARIO. Part II. 1 * ■- '. ( 1 y ■ I: II Treaty of Utrecht itself, and the remonstrances of the Hud- son's Bay Company, bear testimony to the fact that the Quebec Company and other French fur- traders occupied the country from the St. Lawrence and the Great Lakes to the shores of Hudson's Bay. I know of no principle applicable to the case, whether of settlement or of discovery, upon which the Hudson's Bay Company could, after 1713, extend their domin- ion beyond the line marked upon the map of the plenipoten- tiaries, even admittinj]^ their chartered rights to have been un- impaired by the conquest and the Treaty of liyswick. What I have so far written is sufficient to show that if it is admitted that England formed the lirst settlements upon the bay, they would not, by any established rule of public law, give her a right to the entire basin ; that this could only be claimed by a country which possessed both the entire shore,and theonly means of access to the interior ; that the possession of the mouth of a river does not draw with it the entire country drained by the river ; on the contrary, it is the possession of the country that draws along with it the possession of the rivers ; that the Treaty of Utrecht circumscribed the possessions restored to England about tlie Bay within very narrow limits, when com- pared with the modern pretensions of the Company — limits which must have fallen far shori. of the sources of all the great rivers that disembogue their waters into Hudson's Bay ; and that the Order in Council of 1791, by which Quebec was di- vided into two Provinces, included, in Upper Canada, that sec- tion of the country which was restored to Grreat Britain in killt'il if it 1)0 iinptjissible to seize him. I have also given Sr. Giiillet notice that I should, at the very opening of .sin-iug ik'.si)atch a party of Frenchmen and Indians, under the command of an ofiicer and some others, so as to make a simultaneous attack on these posts. Sr. (iuillet is to warn these Indians of this expedition, in order that they may hold themselves in readiness to join it, and, in fact, I calculate on sending it thither as soon as the season will permit, and I beg you, my Lord, to assure his Ma jesty that I will not neglect anything to utterly destroy, if i>ossible, the English estab- lishmentH in that quarter, as well as all those the ditiiculties whereof I shall be able to surmount. -8tli October, 1744."— Paris Doc. 8.— N. Y. Hist. Col., vol. 9, p. 1,105. " Have not been able to make the attack, on account of the want in the King's stores. -June, 1745."'— Paris Doc. 9.— N. Y. Hist. Col., vol. 10, p. 2. L TAur II. NORTHERN BOUNDARY OF ONTARIO. 145 1713, which lies about the south-western part of James' Bay. This extension to the boundary of Hudson's Bay, instead of stopping at the line of the Treaty of Utrecht upon the south, and following it, would seem to point to the establishment of the Albany river, or the 53rd parallel of north latitude, west- ward to the hmitary line under the Treaty, as a contemplated boundary. I am not aware that any such limitary line was ever formally established. But the facts here recounted prove that the most restricted limits which can be given to Ontario on the north, is to run due west from James' Bay to the hiternational boundary of 1713,* thence in a north-westerly direction to the Split Lake, in Nelson's river, thence south- westerly along Nelson's river towards Lake Winnipeg, and thence westerly to the north of the Saskatchewan as far as the jvinction of the north and south branches of that river, moetiug near that point the western limit of Quebec under the Act of 1774. I would earnestly recommend the Government to obtain tracings of the maps used by the English and French pleni- potentiaries in 1713 and in 17G3, and of those sent at different tiinos by the Hudson's Bay Company to the Lords of Trade and Plantations. I would also recommend them to obtain copies of all correspondence between the Governments of England and France upon the subject ; a copy of the instruc- tions given to the English commissioners appointed under both the Treaty of Uyswick and the Treaty of Utrecht, together with any reports which they may have made. These maps and papers, when obtained, will, in my opinion, be found to sustain the views expressed in this report as to the extent of territory the Government of Ontario may fairly claim as being within the limits of the Province. That is the boundary nuvrketl upon th« niaj) referred to by Mr, Prior. L !' :' i ' ^ f L m ' ' ii A.PPEISrDIX. APPENDIX A. The Royal Charter for incorporating the Hudson's Bay Company, granted by his Majesty King Charles the Second, in the 22nd year of his reign, A.D. 1670. Charles the Second, by the grace of God, King of Eng- land, Scotland, France, and Ireland, Defender of the Faith, Sec, To all to whom these presents shall come, greeting : Whereas our dear and entirely beloved Cousin, Prince Rupert, Count Palatine of the Rhine, Duke of Bavaria and Cumberland, Sec. ; Christopher Duke of Albemarle, William Earl of Craven, Henry Lord Arlington, Anthony Lord Ash- ley, Sir John Robinson, and Sir Robert Vyner, Knights and Baronets ; Sir Peter Colleton, Baronet ; Sir Edward Hunger- ford, Knight of the Bath ; Sir Paul Neele, Knight ; Sir John Grriffith and Sir Philip Carteret, Knights ; James Hayes, John Kirke, Francis Millington, William Prettyman, John Fenn, Esquires ; and John Portman, Citizen and Goldsmith of London : have, at their own great cost and charges, under- taken an expedition for Hudson's Bay, in the north-west part of America, for the discovery of a new passage into the South Sea, and for the finding some trade for furs, minerals, and other considerable commodities, and by such their under- taking have already made such discoveries as to encourage them to proceed further in pursuance of their said design, by means whereof there may probably arise very great advan- tage to us and our kingdom : And Whereas the said Under- nr ■tf -M; ! i 148 APPENDIX. im takers, i'or their further encouragement in the said design, have humbly besought us to incorporate them, and grant unto them and their successors the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits, commonly called Hudson's Straits, together with all the lands, countries and territories upon the coasts and confines of the seas, straits, bays, lakes, rivers, creeks and sounds aforesaid, which are not now actually possessed by any of our subjects, or by the subjects of any other Christian Prince or State : Now know ye, that we, being desirous to promote all endeavours tending to the public good of our people, and to encourage the said undertaking, have, of our especial grace, certain knowledge, and mere motion, given, granted, ratified and confirmed, and by these presents, for us, our heirs and successors, do give, grant, ratify and confirm, unto our said Cousin, Prince Rupert, Christopher Duke of Albemarle, William Earl of Craven, Henry Lord Arlington, Anthony Lord Ashley, Sir John Robinson, Sir Robert Vyner, Sir Peter Colleton, Sir Edward Hungerford, Sir Paul Neele, Sir John G-riftith and Sir Philip Carteret, James Hayes, John Kirke, Francis Millington, William Prettyman, John Fenn, and John Portman, that they, and such others as shall be ad- mitted into the said society as is hereafter expressed, shall be one body corporate and politic, in deed and in name, by the name of " The Grovernor and Company of Adventurers of England trading into Hudson's Bay," and them by the name of " The G-overnor and Company of Adventurers of England trading into Hudson's Bay," one body corporate and politic, in deed and in name, really and fully for ever, for us, our heirs and successors, WE do make, ordain, constitute, establish, con- iirm and declare by these presents, and that by the same name of Governor and Company of Adventurers of England trading into Hudson's Bay, they shall have perpetual succes- sion, and that they and their successors, by the name of " The Governor and Company of Adventurers of England trading by AIM'KNDIX. 14!' into Hudson's Bay," be, and at all tinios hfreal'ter shall bepiT- sonablo and capable in law to havo, purchase, receive, ])ossess, enjoy and retain lands, rents, privileq-es, liberties, jurisdictions, franchises and hereditaments, of what kind, nature or quality soever they be, to them and their successors ; and also to o-iyo, ffrant, demise, alien, assign and dispose lands, tenements and hereditaments, and to do and execute all and sinyidar other things by the same name that to them shall or may appertain to do ; and that they and their successors, by the name of " The Governor and Company ol' Adventurers of England trading into Hudson's Bay," may plead and be impleaded, answer and be answered, defend and be defended, in whatso- ever courts and places, before whatsoever judges and justices, and other persons and officers, in all and singular actions, pleas, suits, quarrels, causes and demands whatsoe\'er, of whatsoever kind, nature or sort, in such manner and form as any other our liege people of this our realm of England being persons able and capable in law, may or can have, purchase, receive, possess, enjoy, retain, give, grant, demise, alien, assign, dispose, plead, defend and be defended, do, permit and execute ; and that the said Grovernor and Company of Adventurers of England tradhig into Hudson's Bay, and their successors, may have a common seal to serve for all the causes and businesses of them and their successors, and that it shall and may be lawful to the said trovernor and Company, and their successors, the same seal, from time to time, at their will and pleasure, to break, tliange and to make anew or alter, as to them shall seem expedient : And furthkh we will, and by these presents, for us, our heirs and successors, we do ordain, that there shall be from henceforth one of the same Company to be elected and appointed in such form as here- after in these presents is expressed, which shall be called the Grovernor of the said Company ; and that the said Governor and Company shall or may select seven of their number, in such form, as hereafter in these presents is expressed, which shall be called the Committee of the said Company, which t ■t (> 1 L. 150 AI'PKNDIX. Committee of seven, or any three of thorn, tojrclher with the Governor or De'Hity-Govt'rnor of the said Company i'or the time being, shall have the direction of the voyai^es of and for the said Company, and the provision of the shipping- and merchandizes thereunto belonging, and also the sale of all merchandizes, goods and other things returned, in all or any the voyages or ships of or for the said Company, and th*^ ma- naging and handling of all other business, alfairs and things belonging to the said Company : And wk will, ordain and grant by these presents, for us, our heirs and successors, unto the said Crovernor and Company, and their successors, that they the said G-overnor and Company, and their successors, shall from henceforth for ever be ruled, ordered and governed according to such manner and form as is hiu-eai'tor in these presents expressed, and not otherwise ; and that they shall have, hold, retain and enjoy the grants, liberties, privileges, jurisdictions and immunities only hereafter in these presents granted and expressed, and no other : And for the better execution of our will and grant in this behalf, we have ASSIGNED, nominated, constituted and made, and by these presents, for us, our heirs and successors, WE DO assign, nominate, constitute and make our said Cousin, Prince Ku- PERT, to be the lirst and present Governor of the said Com- pany, and to continue in the said office from the date of these presents until the 10th November then next following, if he, tlie said Prince Rupert, shall so long live, and so until a lU'W Governor be chosen by the said Company in form hereaitiM expressed : And also we have assigned, nominated i appointed, and by these presents, for us, our heirs and succ sors, WE do assign, nominate and constitute, the said Sir John Robinson, Sir Robert Vyner, Sir Peter Colleton, James Hayes, John Kirke, Francis Millington and John Portman to be the seven first and present Connnittees of the said Company, from the date of these presents until the said 10th day of No- vember then also next following, and so until new Commit- tees shall be chosen in form hereafter expressed : And further APPKXDIX. 151 WE WILL and grant by tht^so pro.s«nits, for us, our hoirs and successors, unto the said (jovernor and Company, and their successors, that it shall and may be lawful to and for the said Governor and Company lor the time Ix'infr, or the greater part of them present at any public assembly, commonly called the Court General, to be holden for the said Company, the Governor of the said Company being always one, from time to time to elect, nominate and appoint one of the said Com- pany to be Deputy to the said Governor, which Deputy shall take a corporal oath, before the Governor and three or more of the Committee of the said Company for the time being, well, truly and faithfully to execute his said office of Deputy to the Governor of the said Company, and after his oath so taken, shall and may from time to time, in the absence of the said Governor, exercise and execute the office of Governor of the said Company, in such sort as the said Governor ought to do : And fuktiier we will and grant by these presents, for us, our heirs and successors, unto the said Governor and Company of Adventurers of England trading into Hudson's Bay, and their successors, that they, or the greater part of them, whereof the Governor for the time being or his Deputy to be one, from time to time, and at all times hereafttn-, shall and may have authority and power, yearly and every year, between the first and last day of November, to assemble and meet together in some convenient place, to be appointed from lime to time by the Governor, or in his absence by the Deputy of the said Governor for the time being, and that they being ) assembled, it shall and may be lawful to and for the said Governor or Deputy of the said Governor, and the said Com- pany for the time being, or the greater part of them which then shall happen to be present, whereof the Governor of the said Company or his Deputy for the time behig to be one, to elect and nominate one of the said Company, which shall be Governor of the said Company for one whole year then next followin;. which person being so elected and nominated to be Governor of the said Company, as is aibresaid, before he be ''■rrni M M 152 APPENDIX. admitted to the execution of the said office, shall take a corpo- ral oath before the last Governor, being- his predecessor or his Deputy, and any three or more of the Committee of the said Company for the time being, that he shall from time to time well and truly execute the office of Governor of the said Company in all things concerning the same ; and that imme- diately after the same oath so taken, he shall and may execute and use the said office of Governor of the said Company for one whole year from thence next following : And in like sort we will and grant that as well every one of the above-named to be of the said Company or Fellowship, as all others here- after to be admitted or free of the said Company, shall take a corporal oath before the Governor of the said Company or his Deputy for the time being to such effect as by the said Gover- nor and Company or the greater part of them in any public court to be held for the said Company, shall be in reasonable and legal manner set down and devised, before they shall be allowed or admitted to trade or traffic as a freeman of the said Company : And fuether V\^e 'ViiiL and grant by these pre- sents, for us, our heirs and successors, unto the said Governor aiid CompaJV", and their successors, that the said Governor or Deputy Governor, and the rest of the said Company, and their successors for the time being, or the g^-eater part of them, whereof the Governor or Deputy Governor from time vO time to be one, shall and may froia time to time, and at all times heieaftor, hr.ve power and authority, yearly and every year, be'^ween the first and last day of November, to assemble and meet together in some convenient place, from time to time to be appointed by the said Governor of the said Com- pany, or in his absence by his Deputy ; and that they being so assembled, it shall and may be lawful to and for the said Governor or his Deputy, and the Company for the time being, or the greater part of them which then shall happen to be present, whereof the Governor of the said Company or his Deputy for the time being to be one, to elect and nominate sev en of the said Company, which shall be a Committee of APPENDIX. 153 the said Company for one whole year from then next ensuing, w>ich persons being so elected and nominated to be a Com- mittee of the said Company as aforesaid, before they be ad- mitted to the execution of their office, shall take a corporal oath before the Grovernor or his D*^puty, and any three or more of the said Committee of the said Company, being their last predecessors, that they and every of them shall well and faithfully perform their said office of Committees in all thmgs concerning the same, and that immediately after the said oath so taken, they shall and may execute and use their said office of Committees of the said Company for one whole year from thence next following : And moreover, our will and pleasure is, and by these presents, for us, our heirs and suc- cessors, WE DO GRANT uuto tho said Governor and Company, and their successors, that when and as often as it shall hap- pen, the Governor or Deputy Governor of the said Company for the time being, at any time within one year after that he shall be nominated, elected and sworn to the ofhce of the Grovernor of the said Company, as is aforesaid, to die or to be removed from the said office, which Governor or Deputy Grovernor not demeaning himself well in his said office, WE WILL to be removable at the pleasure of the rest of the said Company, or the greater part of them which shall be present at their public assemblies, commonly called their General Courts, holden for the said Company, that then and so often it shall and may be lawful to and for the residue of the said C. mpany for the time being, or the greater part of tln'm, .v'ithin a convenient time after the death or removing of any such Governor or Deputy Governor, to assemble themselves in such convenient place as thoy shall think fit, for the elec- tion of the Governor or Deputy Governor cf the said Com- pany ; and that the said Company, or the greater part of them, feeing then and there present, shall and may, then and there, before their departure from the said place, elect and nominate one other of the said Company to \w Gov- ernor or Deputy Governor for the said Company IP m 154 APPENDIX, in the place and stead of him that so died or was removed ; which person being so elected and nominated to the office of Grovernor or Deputy Grovernor of the said Com- pany, shall have and exercise the said office for and during the residue of the said year, taking first a corporal oath, as is aforesaid, for the due execvition thereof ; and this to be done from time to time so often as the case shall so require : And ALSO, our will and pleasure is, and by these presents, for us, our heirs and successors, WE do grant unto the said Grovernor and Company, that when and as often as it shall happen any person or persons of the Committee of the said Company for the time being, at any time within one year next after that they or any of them shall be nominated, elected and sworn to the office of Committee of the said Company as is aforesaid, to die or to be removed from the said office, which Committees not demeaning themselves well in their said office, we will to be removable at the pleasure of the said Grovernor and Com- pany, or the greater part of them, whereof the Governor of the said Company for the time being or his Deputy to be one, that then and so often, it sliall and may be lawful to and for the said Governor, and the rest of the Company for the time being, or the greater part of them, whereof the Governor for the time being or his Deputy to be one, within convenient time after the death or removing of any of the said Commit- tee, to asseml)le themselves in such convenient place as is or shall be usual and accustomed for the election of the Go- vernor of the said Company, or where else the Governor of the said Company for the time l>eing or his Deputy shall ap- point : And that the said Governor and Company, or the greater part of them, whereof the Governor for the time behig or his Deputy to be one, being then and there present, shall and may, then and there, before their departure from the said place, elect and nominate one or more of the said Company to be of the Committee of the said Company in the place and stead of him or them that so died, or were or was so removed, which person or persons so nominated and elected to the ^PH APPENDIX. 155 ap- the office of Committee of the said Company, shall have and exer- cise the said office for and during- the residue of the said year, taking first a corporal oath, as is aforesaid, for the due execu- tion thereof, and this to be done from time to time, so often as the case shall require : And to the end the said Governor and Company of Adventurers of England trading into Hudson's Bay may be encouraged to undertake and effectually to prose- cute the said design, of our more especial grace, certain knowledge and mere motion, WE HAVK given, granted and confirmed, and by these presents, for us, our heirs and suc- cessors, DO give, grant and confirm, unto the said Governor and Company, and their successors, the sole trade and com- merce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits, commonlv 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 are not already actually possessed by or granted to any of oar subjects, or possessed by the subjects of any other Christian Prince or State, with the fishing of all sorts of lish, whales, sturgeons and all other royal tisiies in the seas, bays, inlets and rivers within the premises, and the lish therein taken, together with the ^v yalty of the sea upon the coasts within the limits aforesaid, and all mines royal, as well discovered as not discovered, of gold, silver, gems and precious stones, to be found or discovered within the terri- tories, limits and places aforesaid, and that the said land be from henceforth reckoned and reputed as one of our planta- tions or colonies in America, called " Rupert's Laud"' : And FUiiTiiER WE DO by these pres(;nts, for us, oi;r heirs and suc- cessors, make, create, and constitute the said Clovernor and < 'oiiipany for the time l>eing, and their successors, the true and al)solute lords and proprietors of the same territory, limits and places aforesaid, and of all otlun* the premises, 'vVviNG ALWAYS the faith, allegiance and sovereign dominion due to us, our heirs and successors, for the same to iiavk, !^9 156 APPENDIX. I HOLD, possess and enjoy the said territory, limits and places, and all and singular other the premises hereby granted as aforesaid, with their and every of their rights, members, ju- risdictions, prerogatives, royalties and appurtenances whatso- ever, to them the said Grovernor and Company, and their suc- cessors for ever, to be H( "LDEN of us, our heirs and succes- sors, as of our manor of East Grreenwich, in our county of Kent, in free and common soccage, and not in capite or by Knight's service ; yieldino and paying yearly to us, our heirs and successors, for the same, two elks and two black beavers, whensoever and as often as we, our heirs "end succes- sors, shall happen to enter into the said countries, territories and regions hereby granted : And further, our will and pleasure is, and by these presents, for us, our heirs and suc- cessors, WE DO grant unto the said G-overnor and Company, and to their sr.ccessors, that it shall and may be lawful to and for the said G-overnor and Company, and their successors, from time to time, to assemble themselves, for or about any the matters, causes, affairs or businesses of the said trade, in any place or places for the same convenient, within our do- minions or elsewhere, and there to hold court for the said Company and the aflairs thereof ; and that, also, it shall and may be lawful to and for them, and the greater part of them, being so assembled, and that shall then and there be present, in any such place or places, whereof the Governor or his Deputy for the time being to be one, to make, ordain and con- stitute such and so many reasonable laws, constitutions, orders and ordinances as to them, or the greater part of them, being then and there present, shall seem necessary and con- venient for the good government of the said Company, and of all governors of colonies, forts and plantations, factors, masters, mariners and other officers employed or to be em- ployed in any of the territories and lands aforesaid, and in any of their voyages ; and for the better advancement and continuance of the said trade or traffic and plantations, and the same laws, constitutions, orders and ordinances so made, '.Si'i APPENDIX. U7 to put ill, use and execute accordingly, and at their pleasure to revoke and alter the same or any of them, as the occasion shall require : And that the said Grovernor and Company, so often as they shall make, ordain or establish any such laws, constitutions, orders and ordinances, in such form as afore- sidd, shall and may lawfully impose, ordain, limit and provide .such pains, penalties and punishments upon all offenders, contrary to such laws, constitutions, orders and ordinances, or any of them, as to the said Governor and Company for the time being, or the greater part of them, then and there being [)resent, the said Governor or his Deputy being always one, shall seem necessary, requisite or convenient for the observa- tion of the same laws, constitutions, orders and ordinances ; and the same lines and amerciaments shall and may, by their oificers and servants from time to time to be appointed for tliat purpose, levy, take and have, to the use of the said Go- vm-nor and Company, and their successors, without the im- pixliment of us, our heirs or successors, or of any the officers 01' ministers of us, our heirs or successors, and without any account therefore to us, our heirs or successors, to be made : All and singular which law^s, constitutions, orders, and ordi- nances, so as aforesaid to be made, we will to be duly ob- .scvved and kept under the pains and penalties therein to be contained ; so always as the said laws, constitutions, orders and ordinances, lines and amerciaments, be reasonable and not contrary or repugnant, but as near as may be agreeable to I ho laws, statutes or customs of this our realm : And fur- 1 iiEUMORE, of our ample and abundant grace, certain know- ledge and mere motion, ^^ K have granted, and by these pre- sents, for us, our heirs and successors, do grant unto the said Governor and Company, and their successors, that they and their successors, and their factors, servants and ajxents. for them and on their behalf, and not otherwise, shall for ever hereafter have, use and enjoy, not only the whole, entire and only trade and traffic, and the whole, entire and only liberty, use and privilege of trading and trafficking to and from the m : f '■ it 1 ; ; 1 1 , : ' 1 1 158 APPENDIX. territory, limits and places aforesaid ; but also the whole and entire trade and traffic to and from all havens, bays, creeks, rivers, lakes and seas, into which they shall find entrance or passage by water or land out of the territories, limits or places aforesaid ; and to and with all the natives and people inhabiting, or which shall inhabit within the territories, limits and places aforesaid ; and to and with all other nations inhabi- ting* any the coasts adjacent to the said territories, limits and places which are not already possessed as aforesaid, or whereof the sole liberty or priv.lege of trade and tratlic is not granted to any other of our subjects : And we, of our further royal favour, and of our more especial grace, certain knowledge and mere motion, HAVE granted, and by these presents, for us, our heirs and successors, do grant to the said Governor and Company, and to their successors, that neither the said territories, limits and placos hereby granted as afore- said, nor any part thereof, nor the islands, havens, ports, cities, towns, or places thereof or therein contained, shall be visited, frequented or haunted by any of the subjects of us, our heirs or successors, contrary to the true meaning of these presents, and by virtue of our prerogative royal, which we will not have in that behalf argued or brought into question : We STRAITLY charge, command and prohibit for us, our heirs and successors, all the subjects of us, our heirs and successors, of what degree or quality soever they be, that none of them, di- rectly or indirectly do visit, haunt, frequent, or trade, traffic or adventure, by way of merchandize, into or from any of the said territories, limits or places hereby granted, or any or either of them, other than the said G-overnor and Company, and such particular persons as now be or hereafter shall be of that Company, their agents, factors and assigns, unless it be by the license and agreement of '^he said Grovernor and Company in writing first had and obtained, under their com- mon seal, to be granted, upon pain that every such person or persons that shall trade or tratHc into or from any of the coun- tries, territories or limits aforesaid, other than the said Go- APPENDIX. 169 vernor and Company, and their successors, shall incur our indignation, and the forfeiture and the loss of the goods, mer- chandizes and other things whatsoever, which so shall be brought into this realm of England, or any the dominions of the same, contrary to our said prohibition, or the purport or true meaning of these presents, for which the said Governor and Company shall find, take and seize in other places out of our dominif .1, where the said Company, their agents, factors or ministers shall trade, traffic or inhabit by virtue of these our letters patent, as also the ship and ships, with the furni- ture thereof, wherein such goods, merchandizes and other things shall be brought and found ; the one-half of all the said forfeitures to be to us, our heirs and successors, and the other half thereof WE do by these presents clearly and wholly, for us, our heirs and successors, give and grant unto the said Governor and Company, and their successors : And FURTHER, all and every the said offenders, for their said con- tempt, to suffer such other punishment as to us, our heirs and successors, for so high a contempt, shall seem meet and con- venient, and not to be in any wise delivered until they and every of them shall become bound unto the said Gcvernor for the time being in the sum of One thousand pounds at the least, at no time then after to trade ortrafhc into any of the said places, seas, straits, bays, ports, havens or territories aforesaid, contrary to our express commandment in that behalf set down and published : And further, of our more especial grace, we have condescended and granted, and by these presents, for us, our heirs and successors, do grant unto the said Governor and Company, and their successors, that we, our heirs and successors, will not grant liberty, license or power to any person or persons whatsoever, con- trary to the tenour of these our letters patent, to trade, traffic or inhabit, unto or upon any the territories, limits or places afore specified, contrary to the true meaning of these presents, without the consent of the said Gove"^nor and Company, or the most part of them : And, of our more abundant grace i^^ • ; M 160 APPENDIX. and favour to the said Governor and Company, we do hereby declare our will and pleasure to be, that if it shall so happen that any of the persons free or to be free of the said Company of Adventurers of England trading into Hudson's Bay, who shall, before the going forth of any ship or ships appointed for a VOYAGE or otherwise, promise or agree, by writing under his or their hands, to adventure any sum or sums of money towards the furnishing any provision, or maintenance of any voyage or voyages, set forth, or to be set forth, or in- tended or meant to be set forth, by the said Governor and Company, or the more part of them present at any public as- sembly, commonly called their General Court, shall not within the space of twenty days next after warning given to him or them by the said Governor or Company, or their known officer or minister, bring in and deliver to the Treasurer or Treasurers ai)pointed for the Company, such sums of money as shall have been expressed and set down in writing by the said person or persons, subscribed with the name of said Adventurer or Adventurers, that then and at all times after it shall and may be lawful to and for the said Go- vernor and Company, or the more part of them present, whereof the said Governor or his Deputy to be one, at any of their General Courts or General Assemblies, to remove and disfranchise him or them, and every such person and persons at their wills and pleasures, and he or they so removed and disfranchised, not to be permitted to trade into the countries, territories and limits aforesaid, or any part thereof, nor to have any adventure or stock going or remaining with or amongst the said Company, without the special license of the said Governor and Company, or the more part of them pre- sent at any General Court, hrst had and obtained in that be- half, any thing before in these presents to the contrary thereol' in anywise notwithstanding : And our will and pleasure IS, and hereby we do also ordain, that it shall and may be lawful to and for the said Governor and Company, or the greater part of them, whereof the Governor for the time be- APPENDIX. 161 ing or his Deputy to be one, to admit into and to be of the said Company all such servants or factors, of or for the said Company, and all such others as to them or the most part of them present, at any court held for the said Company, the Governor or his Deputy being one, shall be thought lit and acreeable with the orders and ordinances made and to be made for the government of the said Company : And fur- ther, our will and pleasure is, and by these presents for us our heirs and successors, WE do grant unto the said Governor and Company, and to their successors, that it shall and may be lawful in all elections and by-laws to be made by the General Court of the Adventurers of the said Company, that every person shall have a number of votes according to his stock, that is to say, for every hundred pounds by him sub- scribed or brought into the present stock, one vote, and that any of those that have subscribed less than One hundred pounds, may join their respective sums to make up One hun- dred pounds, and have one vote jointly for the same, and not otherwise : And further, of our special grace, certain know- ledge, and mere motion, we do, for us, our heirs and succes- sors, grant to and with the said Governor and Company of Adventurers of England trading into Hudson's Bay, that all lands, islands, territories, plantations, forts, fortiiications, facto- ries or colonies, where the said Company's factories and trade are or shall be, within any the ports or places afore limited, shall be immediately and from henceforth under the power and command of the said Governor and Company, their suc- cessors and assigns ; SAVING the faith and allegiance due to be performed to us, our heirs and successors, as aforesaid ; and that the said Governor and Company shall have liberty, full power and authority to appoint and establish Governors and all other officers to govern them, and that the Governor and his Council of the several and respective places where the said Company shall have plantations, forts, factories, colonies or places of trade within any the countries, lands or territo- ries hereby granted, may have power to judge all persons be- 162 APPENDIX. lonjrincr to the said Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of this kingdom, and to execnto justice accord- ingly ; and in case any crime or misdemeanour shall be com- mitted in any of the said Company's plantations, forts, facto- ries or places of trade within the limits aforesaid, where judi- cature cannot be executed for want of a Governor and Coun- cil there, theji in such case it shall and may be lawful for the chief Factor of that place and his Council to transmit the party, together with the offence, to such other plantation, fac- tory or fort where there shall be a Governor and Council, where justice may be executed, or into this kingdom of Eng- land, as shall be thought most convenient, there to receive such punishment as the nature of his offence shall deserve : And moreover, our will and pleasure is, and by these pre- sents, for us, our heirs and successors WE do give and grant unto the said Governor and Company, and their successors, free liberty and license, in case they conceive it necessary, to send either ships of war, men or ammunition unto any their plantations, forts, factories or places of trade aforesaid, for the security and defence of the same, and to choose commanders and officers over them, and to give them power and authority, by commission under their common seal, or otherwise, to con- tinue or make peace or war with any prince or people whatso- ever, that are not Christians, in any places where the said Company shall have any plantations, forts or factories, or ad- jacent thereunto, as shall be most for the advantage and bene- fit of the said Governor and Company, and of their trade : and also to right and recompense themselves upon the goods, estates or people of those parts, by whom the said Governor and Company shall sustain any injury, loss or damage, or upon any other people whatsoever, that shall in any way, con- trary to the intent of these presents, interrupt, wrong or in. jure them in their said trade, within the said places, territories and limits granted by this Charter : And that it shall and may be lawful to and for the said Governor and Company, and APPENDIX. 163 their successors, from time to time, and at all times from heiieelorth, to erect and build such castles, fortifications, forts garrisons, colonies or plantations, towns or villag^es, in any parts or places within the limits and bounds granted before in these presents unto the said Governor and Company, as they in their discretion shall think fit and requisite, and for the supply of such as shall be needful and convenient, to keep and be in the same, to send out of this kingdom, to the said castles, forts, fortilications, garrisons, colonies, plantations, towns or villages, all kinds of clothing, provision of victuals, ammunition and implements necessary for such purpose, pay- ing the duties and customs for the same, as also to transport and carry over such number of men behig willing thereunto, or not prohibited, as they shall think lit, and also to govern them in such legal and reasonable manner as the said Go- vernor and Company shall think best, and to inflict lumish- ment for misdemeanors, or impose such hues upon them for breach of their orders, as in these presents are formerly ex- pressed : And further, our will and pleasure is, and by these presents, for us, our heirs and successors, we do grant unto the said Governor and Company, and to their successors, lull power and lawful authority to seize upon the persons of nil such English, or any other our subjects which shall sail into Hudson's Bay, or inhabit in any of the countries, islands or territories hereby granted to the said Governor and Com- pany, without their leave and license, and in that behalf first had and obtained, or that shall contemn or disobey their orders, and send them to England and that all and every per- son or persons, being our subjects, any ways employed by the said Governor and Company, within any the parts, places, and limits aforesaid, shall be liable unto and suffer such pun- ishment for any offences by them committed in the parts aforesaid, as the President and Council lor the said Governor and Comi)auy there shall think fit, and the merit of the offence shall require, as aforesaid ; and in case any persoM or persons heing convicted and sentenced by the President and Council of the said Governor and Company, in the countries, lands or i 164 appp:ndix. ' J:!1 ii ■m' i! |j -Im' ' ' ii B '-'' II B lii 1 B ii m '^'^ limits aibresaid, their factors or agonts there, for any oflence by them done, shall appeal from the same, that then and in such cnse it shall and may be lawful to and I'or the said Presi- dent and Council, factors or agents, to seize upon him or them, and to carry him or them home prisoners into England, to the said Governor and Company, there to receive such con- dign punishment as his cause shall require, and the law of this nation allow of ; and for the better discovery of abuses and injuries to be done unto the said Governor and Company, or their successors, by any servant by them to be employed in the said voyages and plantations, it shall and may be law- ful to and i'or the said Governor and Company, and their re- spective President, Chief Agent or Governor in ihe parts aforesaid, to examine upon oath all factors, masters, pursers, supercargoes, commanders of castles, forts, fortifications, plant- ations or colonies, or other persons, touching or concerning any matter or thing in which by law or usage an oath may be administered, so as the said oath, and the matter therein contained, be not repugnant, but agreeable to the laws of this realm : And we do hereby straitly charge and command all and singular our Admirals, Vice-Admirals, Justices, Mayors, Sheriffs, Constables, Bailiffs, and all and singular other our officers, ministers, liege men and subjects whatsoever to be aiding, favouring, helping and assisting to the said Governor and Company, and to their successors, and to their deputies, oiHcers, liictors, servants, assigns and ministers, and every of them, in executing and enjoying the premises, as well on land as on sea, from time to time, when any of you shall thereunto be required ; any statute, act, ordinance, proviso, proclamation or restraint heretofore had, made, set forth, or- dained or provided, or any other matter, cause or thing what- soever to the contrary in anywise notwithstanding. In WITNESS WHEREOF we have caused these our Letters to be made Patent. "Witness ouuself at Westminster, the second day of May, in the two-and-twentieth year of our reign. By Writ of Privy Seal. Pigott. AIM'ENDIX. Ulo AITENUIX B. •'ti EXTRACTS FROM IJK.VJAMIX FltANKLINS LETTERS TO IITS SON. — !See Sf>nrl/s ''Frmild'n,'' vol. 4. M((y 10, 1706. — I like the project of a colony in Illinois country, and will forward it to my utmost here. Aitff. 25, 176(5. — 1 can now only add that I shall endeavor to accomplish all that you and your friends desire relating to the settlement we.stward. Sept. 12, 1760. — I have just received Sir William's open letter to Secretary Conway, recommending your plan lor a colony in the Illinois, which I am glad of. I have closed and sent it to him. He is not now in that Department ; but it will of course go to Lord Shelburne, whose good opinion of it I have reason to hope for — and I think Mr. Conway was rather against distant Posts and settlements in America. We have, however, sulFered a loss in Lord Dartmouth, who I know was inclined to grants there in favour of the soldiery, and Lord Hillsborough is said to be terribly afraid of dis- peopleing Ireland. Gen. Lyman has been long here soliciting such a grant, and will readily join the interest he has made with ours ; and I should wish for a body of Conncctieut set- tlers, rather than all from our frontiers. I purpose waiting on Lord Shelburne on Tuesday, and hope to be able to send you his sentiments by Falconer, who is to sail about the 20th. A good deal, I iiiuigine, will depend on the account when it arrives of Mr. Croghan's negotiation in that country. This is an alfair I shall seriou.sly S(>t about ; but there are such con- tinual changes here that it is very discouraging to all applica- tions to be made to the Ministry. I thought the last set to be well established ; but they are broken and gone. The pre- sent set are hardly thought to stand very firm, and God only knows whom we are to have next. The plan is, I think, well drawn, and, I imagine, Sir William's approbation will go a great way in recommending it, as he is much relied on in all i 166 APPENDIX. I ■ '11 i'l' aH'airs that may have any relation to the Indians. Lord A.dam Gordon is not in town, but 1 shall take the first oppor- tunity of ccnferring with him. I thank the Company for their willingness to take me in, and one or two others that I may nominate. I have not yet concluded whom to propose it to ; but I suppose our friend Sr;»- ^ent should be one. I wish you had allowed me to name more, as there will be in "^he proposed country, by reckoning, near sixty-three millions of acres, and therefore enough to content a great number of reasonable people ; and by numbers we might increase the weight of interest here. But perhaps we shall do without. Sept. 27, 1766.— I have mentioned the Illinois ailair to Lord Shelburne. His lordship has read your plan for establishing a colony there, recommended by Sir William Johnson, and said it appeared to him a reasonable scheme ; but he found it did not quite rate with the sentiments of people here ; that their ol)jections to it were, the distance, which would make it of little use to this country, as the expense on the carriage of goods would oblige the people to manufacture for themselves; that it would for the same reason be difficult both to defend it and to govern it ; that it might lay the foundation of a Power ill the heart of America, which in time might be troublesome to the other colonies, and prejudicial to our government over them ; and the people were wanted both here and in the al- ready settl-'d colonies, so that none could be spared ibr a new colony. These .aruuments, he said, did not appear of much weight, and I elldea^•oured l)y others to invalidate them en- tirely. But his lordship did not declare whother he would or Avould not promote the undertaking, and we are to talk iur- ther upon it. I commu)ucat(^d to him twsal to the Board of Trade, who called for the opinion of the merchants on two points, namely whether the settle- ment of colonies in the Illinois country and at Detroit might not contribute to promote and extend the commerce of Great Britain ; and whether the regulation of the Indian trade might not be best left to the several colonies that carry on APPENDIX. 169 such trade — both which questions they considered at a meet- ing, where Mr. Jackson and I were present, and answered in the affirmative unanimously, delivering their report accord- ingly to the Board. Nov. 25, 17 07. — As soon as I received Mr. G-alloway's, Mr. S. Wharton's, and Mr. Crogan's letters on the subject of the (Tii'Lan) homidari/, 1 communicated them to Lord Shelburne. He invited me next day to dine with him. Lord Clare was to have been there, but did not come. There was nobody but Mr "VTnelean. My lord knew nothing of the boundaries having l»een agreed on by Sir William ; had sent the letters to the Board of Trade, directing search to ])e made there for Sir William's letters ; and ordered Mr. Maclean to search the Secretary s office, who found nothing. We had much dis- course about it, and I pressed the ira])ortance of despatching orders immediately to Sir William to complete the alliiir. His lordship asked who was to make the purchase, that is, who should be at the expense. I said that if the line included any lands within the grants of the charter colonies, they shoiild pay the purchase-money of such proportion. If any withhi the proprietary grants, they should pay their propor. tion. But what was within lloyal governments, where the King granted the lands, the Crown should pay for that pro- portion, llis lordship was pleased to say he thought this reasonable. He finally desired me to go to I^ord Clare as from him, and urge the busi)ioss there, which I undertook to no "^ ^ ^ I waited next morning on Lord Clare, and pressed the mat- ter of the boundary closely upon him. ^^ * * Ho agreed upon settling it, but thought there would ho some dilhculty about who should pay the purchase-money ; for that this country was already so loaded, it would bear no more. We then talked of the new o/onles. I found he was inclined to think one near the mouth of the Ohio might be of use in se- curing the country, but did not much approve that at Detroit. Aiid, as to the trade he imagined it would be of little conse- m 170 appp:ndix. % fjuence, ii' we had it all, but supposed our traders would sell the peltry chiefly to the French and Spaniards at New Orleans, as he had heard they had hitherto done. March 13, 1768. — The purpose of settling the new colonies seems at present to be dropped, the change of American ad- ministration not appearing favourable to it. There seems rather to be an inclination to abandon the posts in the back country, as more expensive than useful. But counsels are so continually fluctuating here that nothing can be depended on. The new Secretary, Lord H., is, I find, of opinion that the troops should be placed, the chief part of them in Canada and Florida. * * * On the Colonization op the Illinois Country. — Extract. [Sir William Johnson to the Lords of Trade and Plantations.] Johnson's H\ll, Jan. 31, 1776. My Lords, — * * * j have received the agreeable news of our being in actual possession of the Illinois, the Indians, in consequence of their engagements to Mr. CrogaU' having given no obstruction to Captain Stirling or his party, who arrived at Fort Chartres in October last, and were well received. As the possession of this fine country has been earnestly de- sired and often in vain attempted since the reduction of Canada, and now proceeds from the late negociations of my Deputy with the Indians in that quarter, it may not be amiss to ofier my thoughts on the best manner for possessing so valuable an acquisition, and render it of real use to the Crown. It will be needless to enlarge upon the natural ad- vantages of soil and situation which this country peculiarly enjoys, these being matters pretty well known ; but to avail ourselves of these advantages, it is highly necessary that we should do all in our power to keep the Indians contented, easy and reconciled to our mamiers and government, without I ;•; APPENDIX. 171 which we can neither keep up the communication, or retain it ibr an 3' time, and the difTiculties and obstructions which have hitherto prevented our possessing^ it by way of the Mississippi, are convincing proof of this. Neither is it in our power, with any force to be spared for tliat service, to ascend the river or cross the country by land to that settlement, if the Indians are at aJl disposed to obstruct their progTcss.* The settlements at the Illinois extend for many miles above the Kaskaski river along the Mississippi ; the land is ex- tremely fine, and capable of raising anything. Some of the present inhabitants may possibly incline to go home, and our traders will, I dare say, choose to purchase their rights ; this may be a foundation for a valuable colony in that country, which, once established, wouLl prove very beneficial to Great Britain, as well as a great checi to the large cessions obtained of the natives. But to effect this, and every other purpose, their jealousies and dislike must be conquered, and they must be convinced b;, a series of good management and occasional o-enerosity that their suspicions are groundless. — iV. Y. Hist. Due, vol. 8. APPENDIX C. So MUCH OF THE DeBATK IN THK Hoi'SE OF C )MMi)NS ON THE Quebec Bill as Relates to the Boundauies. Mr. T. Townslienfi,jun. — Althouiih I bow very low to all great authorities, I must venture to mention one thing, that when 1 was calling for regulations lor Canada, little did 1 think, that I Vt'as callinir for regulation^ for a tountry much larger than Canada, a country " extendinu',' in the words of the Bill, " southward to the banks of the River Ohio, westward to the banks of the Mississippi, and northward to the southern •joundary of the territory granted to the Merchants' Adven- Thf cxin'ilitioii.s of Lord Duiimore and Colonel Boqutt would seem to warranl; different cimchiaion. iff ^ m IK . . 172 APPENDIX. turers of Eng^land trading* to Hudson s Bay." I say, Sir, that when I was calling for regulations for Canada, little did I think that I was calling for an arrangement which, I will venture to say, is oppressive to the English subject, and dis- agreeable and hateful to the Canadian. * * * j J^now there prevails an opinion that the best thing you can do with this country is to make it a French colony, to keep the English out of it as much as possible, that they may not mix with the Canadians. * * * Now, for what purpose are they (the Enylish settlers) to be placed under P>ench laws, unless it is meant to be laid as a foundation that, for the future, French laws are to be the laws of America ? If this is to be the case, Sir, that may be a good reason for extending French law to the whole of Illinois, and to all that is inter- mediate between Illinois and Canada. You have given up to Omdda almost all that country ivhich was the subject of dispute, and for ivhich we loent to tvar. We went to ivar calling it the Province of Virgin i((.. You tell the French it was only a pre- text for going to war ; that you knew then, you know now, that it was a part of the Province of Canada. * * * | should wish to know why Canada may not be reduced to some less Imiits ; why not the same limits England and France have ever given it ; why not within some l)ounds, a little less than that which is given to it here ? Lord North. — * * * fhe first thing objected to by the honourable gentleman is the very great extent of terri- tory given to the Province. Why, he asks, is it so extensive ? There are added undoubtedly to it two countries which were not i)i the original limits of Canada, as settled in the procla- mation of 1708 : one, the Labrador coast, the other, the coun- try westward of the Ohio and Mississippi, and a few scattered posts to the west. Sir, the addition of Labrador coast has been made in consequence of information received from those best ac(juainted with Canada and the lishery upon that coast, who deem it absolutely necessary, for the preservation of that lishery, that the Labrador coast should no longer be APPENDIX. 173 consiclored as a 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 well known that settlers are in the habit of going to the interior parts from time to time. Now, however undesirable, it is open to Parlia- ment to consider tvhether it is fit there should he no government in the country, or, on the contrary, separate and distinct govern- Vicnts ; 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 is the desire of all those who trade from Canada to those countries, that there should be some government, my opinion is that if gentlemen will weigh the inconveniences of separate governments, they vnll think the least inconvenient method is to annex those spots, though few in population, great in extent of territory, rather than to leave them ivithout 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. Mr. T. Townsend, Jan. — * * * Near the Illinois and Fort du Cane, I am informed there are at this time upwards of tive-and-tvventy thousand British settlers. Mr. Dunning. — * * * "IXxKi first object of this Bill is to make out that to be Canada, which it was the struggle of this country to say was not Canada. Now, Sir, if this Pro- vince should ever be given back to its old masters — and I am not without a)i inclination to think that the best vjag would he to give it hack to its old masters — if it should ever become right to give back Canada, with w'hat consistency can its I'utiire nego- tiator say to Franco, We will give you back Canada ; not that Canada which you asserted to be Canada, but that stated in the proclamation, havnig discovered that we were mistaken in the extent of it, which error has been corrected by the highest authority in this country ? Then, suppose Canada -rr 174 APPENDIX. WV' i thus extended should be given back to France, the English settled there will tht'n have a line of frontier to an extent uii- deiined by this Bill ; lor this country is bounded by the Ohio on the west — God knows where ! I wish God alone may not know where. I wish any gentleman would tell us where. I observe in this description of frontier a studied aml)iguity of phrase. I cannot tell what it means ; but I conjecture that it means something bad. The Ohio is stated as a bound- ary conlirmed ])y the Crown ; but what act, what confirma- tion by the Crown has passed upon this subject ? I know of no such act, of no such coniirmation. I know, by the terms of the Charter, the colonists suppose, and I think they are well grounded in the supposition, that they are entitled .0 settle back as far as they please to the east (V West) to the sea, their natural boundary. They did not like a dif- ferent barrier. I know some assert this right, and others content themselves with a less extensive claim. "Whether so extensive a claim has been allowed, I know not ; but I do understand, in point of fact, that there has been long subsisting a dispute about the western frontier, which w^as never discussed, still less decided ; and when this Bill shall become a law, those colonists will then learn that this Parlia- ment, at this hour, have decided this dispute without know^- ing what the dispute was, and without hearing the parties. Looking, Sir, at the map, I see the Kiver Ohio takes its rise in a part of Penn.sylvaiua, and runs through the Province of Virginia ; that, supposing myself walking down the river, all the country to the right, which is at this moment a part of the Province of Virginia, has been lopped off from this part, and has become instead a part of Canada ; for, we tell them, the instant they pass that river, which by the terms of the Charter they may pass, that matter is now for ever at rest ; the moment, say we, you get beyond that river, you are in the condition in which this Bill professes to put Canada — the Indian iinds himself out of the protection of that law under which he was l)red. Sir, do we trent the proprietors of APPENDIX. 175 Indiana well ? Some of them are resident in this country I apprehend, at this very hour they are unapprised of this Bill to stop them. To decide upon questions without exactly knowini^ whether such questions are existing", is an obvious injustice. # # # I should be glad to learn what is the good intended to be effected by this extent of territory ? The noble lord says it is to comprise a few straggling posts under some form of crovernment. If I should admit the necessity of so comprising a lew straggling posts, does it follow that this is a form of government lit to be establishf'd ? Does it follow from any local reasons why Canada should be so ex- tensive, or that the English settlers should be likewise in- volved ? What objections are there to making more settle- ments ? "Whatever they are, they will be found trivial, com- pared to the consequence of involving this whole region in this form of government. =^ # # Aftoriiey-General Thurloiv. — # ^ # The honourable gentlemen complain that the bounds of Canada extend a great way beyond what they wore acknowledged to do formerly, and that it was peculiarly bad policy, as far as it regarded the French, to give the limits so great an ex- tension. Now, the House will remember that the whole of Canada, as we allowed it to extend, was not included in the proclamation ; that the bounds were not coequal with it as it stood then, and that it is not includeil in the present Act of Parliament, if that were material. But I will not, Sir, consider it as the Province that formerly belonged to France, nor as called by the mme name ; it is a new scheme of a constitution adapted for a j^art of the country, not that part only which was under French government, but embracing many other parts of great extent which were for- merly not under French government, but were certainly oc- cupied in different parts by French settlers, and French settlers only. The honorable gentlemen are mistaken if they suppose that the bounds described embrace in point of fact any English settlement. I know of no English settlement 176 APPENDIX. i:l i S:)- embracod by it. I have heard a great deal of the commence- ment of English settlements ; but, as far as I have read, they all lie upon the other side of the Ohio.* I know at the same time, that there have been for nearli/ a century p'lst, ^settlements in different parts of all this tract, especially in the .southern parln of it, and in the eastern {? western), bounded hy the Ohio and Missis- si)>pi ; but with regard to that part, there have been diti'erent 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 w^ants foundation. ^ * ^ It is undoubtedly true, if you read the French history, that the bounds prescribed neither are nor ever were the bounds of the Province of Canada, as stated by the French ; and therefore the argument is not itself a proper one to proceed upon. # •* # With regard to the more southern part of the country, I do not take it that Vir- jiinia has ever made a single claim within more than a bun- dred miles of the bounds prescribed for tlie prese:it Province. The most extensive claim I ever heard of went to wiiat is ciiUed The EndlcLS Mountains, 'ust in a nook of the Province of Virginia {? Pennsylvania). I know of none that ever pre- tended to exceed that, nor ever heard that some new settle- ments which were applied lor, between these mountains and the Ohio, have ever ])een lookt^d upon as an invasion of the rights ol' those who have claims upon the Province of Vir- ginia. ■" * ■'^' I have always understood, also, that it was under that authority, and in conformity with the rule and measure of law, that in every instance, through every period of English history, the King has given to newly-con(pxenHl countries their constitution ; subject to be corrected by the joint interposition of the Kinff, Lords, and CN^m'mons of this country ; and that such a constitution uiight be reformed, by 1 i ii 1 \ I ■ : L i * There wei-e at this time iia English settlements west of the Ohio river. Fninivlin, in his reply to the Lords of Trade, refers to a settlement of 3i),00l) on the Ohio ; but it was on the other side — and this is probably tiie one that Mr. Towushend and others refer to, but they had forgotten the locality. APPKNDIX. 177 nice. iit i« viiice pra- ttle- iuul the Yii- was and riod leri'il the tliis 1)V corTectin^- the ill advice, if any ill advice had been £?iven, under which the King had acted, in giving them a constitu- tion upon the event and at the moment oi' the conquest. Col. Barre. — * » ♦ ^he honourable and learned gen- tleman was not precise in stating the limits of our colonies, lie seemed unwilling I'or the House to think that any one of the colonies, especially Pennsylvania and Virginia, had a right to settle beyond the Endless Mountains ;* as if the honorable and learned gentleman could be ignorant of the fact that many thousands of English subjects are established some hundred miles beyond the Endless Mountains, upon the very spot which you are now going to make a part of this country of Canada. * * * it was, says the noble lord, necessary to take in and to annex the scattered Posts in the neighbourhood of Detroit and Lake Michigan. If the noble lord will be so good as to look at the map, he will find he could have taken in every one of those Posts, and never thrown out any doubt about the shape of Canada ; at the same time that all that part between the Lake and the Ohio would have been kept out by this Bill — and all the purposes of the Bill, except the reference to settling upon the Ohio, would have been answered by his taking that boundary. If there had been any doubt, what would have removed that doubt, would have been looking at the course pur- sued between the English and French negociators, when the French offered to withdraw from that part of the country which they had taken possession of on the south of the Ohio, and retire to the north side, making that river the boundary of the colony. The English Minister said, " No ; we will not submit to those terms. They are not the boundaries ; the Iliver St. Lawrence and the lakes are our boundary — wo will agree to no other." Their language now is, the River St. Law- rence is the centre, not the frontier ; we will not be deprived of our property in the country. * For the positioa of the Endless Mountains, see Pownall's map. the northern part of Pennsylvania. N They are near ^. A % v%^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ;? s* iM I.I [2.2 M 1.8 1.25 1.4 1.6 -m 6" - ► V] <^ /} ^^ si A >^ Photographic Sciences Corporaiion ^ fV #^ V \\ % v 6^ 1" 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4S03 TiT-- C/j •^1 k .|-ynr 178 APPENDIX. t Mr. Serjeant G'ynne. — ♦ ♦ * You are incompetent tc» decide upon the limits of the country, or whether the descrip- tion of it in the Bill is most conformable to the claim of the French or to our claim before the war ; but I shall take it as I find it slated on both sides of the House, namely, that there is to b«» a newly-erected Province, comprehendincf a great part of North America, partly inhabited, partly luiinhabited ; that such parts are to he erected into a Province, in hopes that the population will increase, and that all those parts by degrees will become peopled. * * * In times past, a Minister of the Crown was censuri'd for proposing an arbi- trary form of govennnT.t lor the colonies. However objec- tionable that proposed form of government may have been,, we do not find that the jiowers given to the Governor, on that occasion, were so extensive as those vested in him by this measure The principles which prevailed in the days of Charles the Sec; nd will not, I trust, receive the sanction of the legislature of the present day. Solicitor-General Weddcrhurn . — // is one object of this measure that these persons {the Eni,Ush) should not settle in Canado. The subjects of this country, in Holland, in the Baltic, and in dif- ferent parts of the world, whero they mav go to push their commercial views, look upon England as their home ; and it should be our care to keep alive in their breasts this attach- ment to their native soil. With regard to the other portion of the inhabitants of North America, I think the consideration alters ; if the geographical lin?its are rightly stated. I think one great advantage of this exten.sion of territory is this, that they will have little temptation to stretch themselves nortii- ward. I would not say, " Cross the Ohio ; you will find the Utopia of some great and mighty empire." I wonld saVr " This is the border beyond which, for the advantage of the whole empire, you shall not extend yourselves." It is a reiru- lar government ; and that government will have auth<»rity to make inquiry into the views of native adventurers. As tc British subjects within the limits, I believe that there are not t tc* APPENDIX. 17S> five in the whole country. 1 think this limitation of the boundary will be n b«'tter mode than any restriction laid upon IX. 181 Goveimor Johnstone. — » » • My objection to it is, you are going to extend a despotic government over too large a surface ; and that you are going to establish a boundary line with a pretence of bringing it within the line of justice where God and nature are against you. The pretence that is held out to induce this House to accede to the measure, is, first, that with the former government of Quebec, Canada did extend so far, and that as we are about to give the Cana- dians back their old la ,vs, we ought at the same time to give them back what has been asserted in this House to have been their ancient territory. * • * Now, Sir, as I had the honour of being appointed Governor of West Florida, it be- came my duty to make myself ac(iuaintetl with the bounda- ries of Louisiana, and 1 accordingly endeavoured to obtain the best information upon that subject. I was surprised, there- fore, 1o hear it given in evidence, not directly, but insinuated, that the former Government of Canada extended as far as you propose to make it. One of the reasons given by General Carleton for this extension of country, was that the inhabi- tants of these remote parts might be under the direction of the government of Canada. Mr. Edmund Burke. — If we had originated this measure above stairs, where maps might have been laid upon the table, no doubt the whole dispute of this day would have been avoided. I shall ask for the attention of the Committee, partly that they may understand me ; partly that I may un- derstand myself. In the first place, when I heard that this Bill was to be brought in on the principle that Parliament were to draw a line of circumvalation about our colonies, and to establish a siege of arbitrary power, by bringing round al)out Camida the control of other people, diilerent in man- ners, language, and laws from those of the inhabitants of this colony, I thought of the highest importance that we should endeavour to make this boundary as clear as possible. I con- ceived it necessary for those who are to be besieged in this manner ; and also necessary for the British subject, who I fi! •I'j 'V, ■'1 :il- !! V. 182 APPENDIX. should be restricted, and not be allowed unknowingly to ven- ture into the colony and disturb its possessors. I wish these liinity to be ascertained, and fixed with precision, for the sake of both parties. Having this object in oiy view, I shall first consider the line drawn in the proclamation of 17G3. It was drawn from a point taken in the lake called Nipissim ; that lake stands to the north of this point. I entreat the attention of the Committee ; for the escape of a word is the escape of the whole argument. Sir, this boundary was fixed by a line drawn obliquely from Lake Nipissim, which line crossing the St. Lawrence and the Lake Champlain, formed an angle in the latitude of forty-five degrees. This constituted the south-west boundary of Canada ;* beyond that the Province was to extend no further — and confined within this limit it remained from the year 1768 to this time. That was then the boundury of Canada ; and when that boundary w'as formed, that was the boundary of the government — and that bound- ary was fixed th^re because it was the boundary of the pos- session. There was then no considerable settlement to the south-west of that line. This line the people of Canada acquiesced in. They have since come bel'ore his Majesty's government, and have laid Ijcfore it a complaint in which they state that this was a line drawn especially for the pur- pose of territorial jurisdiction, and the s(>curity of property ; but they represent that it is a line ill-suited for a growing country. They do not complain that they have not the legal limits, but they coraplain of the climate to which they are re- stricted. " Th(» Province," they say, '• as it is now bounded, by a lin<' passing throusih the forty-fifth degree of north lati- tude, is confined within too narrow limits ; this line is only fifteen leaiyues distant from Montreal and yet it is only on this sid:^ that tlie lands of the Province are I'ertile, and that agriculture can be cultivated to much advantage." Sir, if no injustic<> will thereby be done to any one. I don't know a more reasonable request than that their complaint should be • Burke, like many other spuakeni, coiifouiulH Canada witli (Juebec. APPENDIX. 183 attended to. * * * The noble lord showed me the amendment, which by no means relieved my apprehensions. Tlie reason why I feel so anxious is that the line proposed is not a line of geographical distinction merely ; it is not a line between New York and some other English settlement ; it is not a question whether you shall receive English lav: and English 'government upon the side of New York, or whether you sha.! receive a more advantageous government upon the side of Connecticut ; or whether you are restrained upon the side of New Jersey. In ail these you still lind EngHsh laws, English customs, English juries, and English as^v^mbUes, wherever you go. But this is a line which is to separate a man from the right of an Englishman. First, the clause pro- vides nothhig at all for the territorial jurisdiction of the Prov- ince. The (hown has the p>wer of carrying the greatest portion of the actually settled portion of the Province of New York into Canada. * * * Xhe Bill turns freedom itself into slavery. These are the reasons that compel me not to acquiesce by any means, either in the proposition originally ill the Bill, or in the amendment. Nay, the proposition in th» amendment is a great deal worse, because you therein make a saving of the right of interference with, and may fix your boundary line at the very gates of, New York, perhaps in the very town itself, and subject that colony to the liability of be- coming a province of France. It was this state of things, Sir, that made me wish to establish a boundary of certainty. The noble lord has spoken upon this subject with a great deal of fairness. He says that if any gentleman will liiid a bound- ary of certainty, he will accept it. Whether, if we shall be able to find such a boundary, the colony of New York will be satisfied with it, I know not ; but speaking'* here as a Member of Parliament, I do think the colony had better have a boundary much less in extent, yet reduced to such a cer- tainty that they may exactly know when and where they cease to be English subjects. The bounc'^iry originally settled between Canada and New York was entitled to contest with i mmi ">'s 184 APPENDIX. 1 ll the Crown under the first proclamation. That was given tip. I am glad the noble lord has got a map before him. They gave up a Vast extont of country. I recommended them to give up for peace all that part which lies between that coun- try and the river St. Lawrence, and to take their departure from a line drawn through Lake Champlain in forty-five de- grees of latitude, as far as the River St. Lawrence, then fol- lowing the course of that river through Lake Ontario and Lake Erie, to make it the western bound of the colony of Pennsylvania. These limits and bounds would give New York a territory sufficient to enable it to meet every exigency of government. It would give the Crown a boundary of certainty ; it would give the people of Canada a certainty of knowing upon what side of the water their territory began ; and it would give the subjects of Great Britain the power of knowing where they can be free. * * * He does not know enough of the state of that country to be able to adopt the line which he has drawn ; whereas nothing can be more geographically distinguished than water and land. This boundary is physically distinguished ; it is astronomically distinguished. It has been fixed by actual observation, and agreed upon by the surveyors. We have everything that geography, astronomy, and general convenience, stronger sometimes than either, can give to make this boundary defi- nite. I shall therefore now move the boundary which I have proposed, viz., by a line drawn from a point on the east side of Lake Champlain in 4.5 degrees north latitude, and by a line drawn in that parallel west to the Kiver St. Lawrence, and up that river to Lake Ontario, and across that lake to the River Niagara, and from Niagara across Lake Erie to the north-west point of the boundary of Pennsylvania, and down the west boundary of that Province, by a line drawn from thence till it strikes the Ohio. If the noble lord admits this propo.sition, the Committee will no doubt be able to express it in proper words ; if not, I must beg that we may receive in- formation from a gentleman who can abundantly inform the APPENDIX. 185 House, and who is as ready to communicate it as any man I ever knew.* Lord North. — We agree in principle, and I hope we shall succeed in drawing a clear boundary line ; but I am doubt- ful whether a clear boundary line can be drawn by Parha- ment. It strikes me that the only method is to leave it to be drawn after the passing of the Act, leaving it in such a man- ner that the line where drawn shall actually form a clear line between the Province of Canada and New York. The line as far as it appears by the map is very distinct. The objec- tion I have is precisely what the honourable gentleman has mentioned. I am not clear whether there are not on the south-east part of the lliver St. Lawrence, Canadian settle- ments, I have been informed there are. I am sure there are no New York settlements in that part of the world. I think it more prudent to have the boundary lino settled upon the spot, reserving, in the Act, all those lands that have been granted under any authority the old settlers. ♦ * * Jt is my opinion that all this uninhabited country added to Canada or added to New York should not be immediately considered as country which the Grovernment are to grant away. * ♦ * j j-ise up at present to confirm the declara- tion I have made, that if a clear line can be made to the satis- faction of gentlemen, so that they are not likely to involve themselves by drawing a line in Westminster which would be better drawn in America, I shall not opiniatre it, but shall be very thanklul to the gentleman who can draw that line. Mr. Burke. — * * * If Canada is in future to have boundaries determined by the choice of the Crown, the Crown is to have the power of putting a great part of the subjects of England under laws which are not the laws of England. The government of France is good — all govern- ment is good — but compared with the English government, that of France is slavery. * * * The parties here are • Mr. Pownall, the Under-Secretary for the American colonies. ygjUyHj 1 186 APPENDIX. U English liberty and French law ; and the whole Province ol' New York, lurthi-r than it is defined by actual bound, is in the power oi' the (hown, not to adjudicate, but to grant, and band over to the French. J do not suppose il" the Crown were under the necessity ol" adjudging, that it would adjudge amiss ; but it is in the power ol the Crown to grant even its power ol' adjudging. Where put on the English side, they are put in the power ol' the laws ; where put on the French side, they are put out of the jwwer ol' the laws. Let us con- sider, then, whether it is not worth while to give a clear boundary, and let the man know whether he is or is not an Englishman. I shall take the sense of the Committee upon it. 1 am as much in earnest as ever I was in my life. I have produced a practical idea ; I can produce practical words. After a long and desultory conversation, the words pro- posed by Mr. Burke were inserted. The words — " Until it strike the Ohio ; and along the banks of the said river, west- ward to the banks of the Mississippi, and northward to the southern boundary of the territory to the Merchants' Adven- turers of Fngland trading to Hudson's Bay ; and also all such territories, islands and countries, which have, since the 10th of February, ITO-], been made part of the government of Newfoundland, be, and they are hereby, during his Majesty's pleasure, annexed to and made part and parcel of the Prov- ince of Quebec" — were next read. On June 10th, 8ir Charles Whitworth reported to the House the amendments which the committee had made to the Bill. The lirst clause being read, ther«> was much puzzling about settling the boundary line. Mr. Edmund Burke, Mr. Jack- son, Mr. Barker, and Sir Charles Whitworth went up stairs, in order to settle it, while the House was supposed to be pro- ceeding upon it. The House continued lor at least half-an- hour, doing nothing in the meantime. The ditierence was, whether the tract of country not inhabited should belong to New York or Canada ? At Jive o'clock, Mr. Burke returned with the amendments, some of which were agreed to, others AIM'UNDIX. 18; not. The Ibllowing is the cUiuso, as hnally agreed to by the House : " That all the territories, ishuidH and countries in North America, helonj^iuy to the Crown of Great Britain, hounded on the south by a line from the Bay ol' Chaleurs, alonjr the islands which divide the rivers that e npty themselves into the River »St. Lawrence, Irom those which Tall into the sea, to a point in lorty-iive di'grees ol" northern latitude on the west- ern bank ol" the Kiver Connecticut, keepini; the sam«' latitude directly west, throuji^h the Lake Champlain, until, in the same latitude, it meets the Kiver St. Lawrence ; from thence up the eastern bank of the said river to the Lake Ontario ; thence throug-h the Lake Ontario and the river commoidy called Niagara ; and thence along by the eastern and south- eastern bank of Lake l<]rie, following the said bank until the same shall be intersected by the northern boundary granted by the Charter of the Province of Pennsylvania, in case the same shall be so intersected ; and fr APPENDIX D. {Lard MduxJuJil to the liiiflif Hon. 0. Grenville.) BliOOMSiJURY, Dec. 24, 17G4. Dear Sir, — Since I saw you, I have heard from the King in general, and afterwards more particularly, but very indis- tinctly, from some persons who visited me last night, of a complaint concerning a civil government and a judge sent to Canada, Is it possible thai we have abolished their laws and customs and forms of judicature all at once ? — a thing never to be at- tempted or wished. The history of the world don't furni.sh an instance of so rash and unjust an act by any conqueror whatever, much less by the Crown of England, which has always left to the conquered their own laws and usages, with a change only so far as the sovereignty was concerned. Where other changes have happened, as in Ireland, they have been the work of great length of time, many emergencies, and where there was a pale of separation between the con- querors and the conquered, by their own laws at first, Berwick, the conquest made by Edward III., and yielded by the Treaty of Bretigny, retained their own municipal laws. Minorca does now. Is it po.ssible that a man sansnveu, with- out knowing a syllable of their language or laws, has been sent over w'ith an Engli.sh title of magistracy unknown to them, the powers of which office must consequently be inex- plicable and unexecutable by their usages ? For God's sake learn the truth of the case, and think of a speedy remedy. I was told la.st night that the penal statutes of England concerning Papists are to be held in force in Canada. •This section excluded the English colonists from the St. Lawrence, the Great Lakes and the Mississipi. APPENDIX. 189 The lundamontal maxims ar«» that a country conquerod, keeps her own hiws, till the conqueror expressly j^ives new. A colony which ijoes from hence to settle in a waste coun- try, if they have an express constitution by charter for so far us that i^ silent), carries with them such a part of the common law of Itlns^land as is adapted to and proper for their situation. A very small part of the common or statute law of Kng"- hiud is law, there, hy this maxim. Ecclesiastical laws, revenue liivvs and penal laws, and a thousand other heads, do not bi.id these hy implication, thoui?h in Ibrce here at the time of their settlement. I'erht ps the princinal parts of this report may he untru* ; }»iit I am so startled ut it that I cannot h<'lp writinu: to you. You may eu. ;Iy learn from the IJoard of Trade whether there has been any act from hence to send them over in a lump a new and unknown law,* I have thout^ht of the observation you made yesterday, IVom looking into the charters of some of the charter govein- iiients. Though the question does not want this or any other au- thority, yet it will be a striking- attestation to ignorant people, and an unanswerable argument ad homines ; and therefore I wish you would employ somebody to look with this view into the origin of their power to tax themselves and raise money at all. As to the charter and proprietary governments, it can only be found in the letters patent from which it must be derived. As to the King's commission and instructions to the gov- ernors of an early date, which may be found at the C'ouncil Ollice or the Board of Trade, I would particularly look into that of New York, w^hich was taken from the Dutch, and in a few years afterwards changed her master. Their tirst com- mission by a King of England is by Charles the Second. i; * The remaiuinji; part of the letter refers to the right of Parliament to tax the colo- nies ; but I du not, as it is brief, suppress it. ^'nrr^ T 190 APIM NDIX. !*^ 1 . !■ i}| ;. ' i \m ,.ll I am just going out of town for the holidays. I could not help troubling you, for which I hope you will forgive rne. Yours most affectionately, • Mansfield. — Grenville Paper, voK 2, p. 476. APPENDIX E. Captain Stirling, who was despatched in 1765 by G-eneral Gage to take possession of the i)osts and settlements of the French in the Illinois country east of the Mississippi, upon his arrival, St. Ange surrendered Fort Chartres, and retired with the garrison of twenty-one men, and a third of the i?i- habitants of that settlement, to St. Louis, where he exercised the duties of commandant by the general consent of the people, till he was superseded by the Spanish governor, Piernes, in 1770. Upon assuming the government of the country. Captain Stirling published the following proclama- tion from General Gage, who was at this time the Com- mander-in-Chief of the British forces in North America : " "Whereas, by the peace concluded at Paris, the tenth day of February, 1763, the country of Illinois has been ceded to his Britannic Majesty, and the taking possession of the said country of the Illinois l)y the troops of his Majesty, though delayed, has been determined upon. We have found it good to make known to the inhabitants — " That his Majesty grants to the inhabitants of the Illinois, the liberty of the Catholic religion, as has already been granted to his subjects in Canada. He has consequently given the most precise and ellective orders to the end that his new Roman Catholic subjects of the Illinois may exercise the worship of their religion according to the rites of the liomish Church, in the same manner as in Canada. " That his Majesty, moreover, agrees that the French in- habitants or others who have been subjects of the Most APPENDIX. 19t Christian King- (the King of France), may retire in full safety and freedom wherever they please, even to New Orleans, or any part of Louisiana ; although it should happen that the Spaniards take possession of it in the name of his Catholic Majesty (the King of Spain), and they may sell their estates, provided it be to the subjects of his Majesty, and transport their effects as well as their persons, without re- straint upon their emigration, under any pretence whatever except in consequence of debts or of criminal processes. •' That those who choose to retain their lands and become subjects of his Majesty, shall enjoy the same rights and privi- leges, the same security for their persons and effects, and the liberty of trade, as the old subjects of the King. " That they are commanded by these presents to take the oath of fidelity and obedience to his Majesty, in presence of 8ieur Stirling, Captain of the Highland Regiment, the bearer hereof, and furnished with our full powers for this purpose. " That w^e recommend forcibly to the inhabitants to con- duct themselves like good and faithful subjects, avoiding, by a wise and prudent demeanour, all causes of complaint against them. " That they act in concert with his Majesty's officers, so that his troops may take possession of all the forts, and order be kept in the country. By this means alone they will spare his Majesty the necessity of recurring to force of arms, and will find themselves saved from the scourge of a })loody war, and of ail the evils which a march of an array into their country would draw after it. " We direct that these presents be read, published, and posted up in the usual places. " Done and given at head-quarters, New York, signed with our hands, sealed with our seal at arms, an<' countersigned by our Secretary, this 30th of December, 1704. " Thomas G-age. " By his Excellency, Cr, Mastuuin " 'i '' ' 192 APPENDIX. ArrENDIX F. (By the King.) A rUOCLAMATlO.V. George R. "Whereas, we have taken into our Royal consideration the extensive and vahiable acqni.sitioiis in America, secured to our Crown by the late delinitive treaty of peace concluded at Paris the lOth oT February last ; and being" desirous that all our lovinj^ subjects, as well of our kini^doms as of our colonies in America, may avail themselves, with all con- venient speed of the great })enelits and advantages which must accrue therefrom, to their commerce, manufactures and naviiration, we have thought lit, with the advice of our Privy Council, to issue this oar Royal Procbimation, hereby to pub- lish and declare to all our loviny subjects that we have, with the advice of our said Privy Council, griinted our letters pa- tent under our great seal cf Great IJritain, to erect within the countries nnd islands ceded and confirmed to us by the said treaty, lour distinct and separate governments, styled and called by the names of Quebec, J']ast Florida, West Florida, and Clrenada, and limited and bounded as follows, viz. : " First, The Government of Quebec, bounded on the La- brador coast by the River tSt. John, and irom thence by a line drawn from the head of that river, through the Lake {St. John, to the south end of the Lake Nipissim ; from whence the said line, crossing the River St. Lawrence and the Lake Cham- plain., in forty-live degrees of north latitude, passes along the islands which divide the rivers that empty themselves into the said river St. Lawrence, irom those which fall into the sea ; and also along the north coast of the Bale des Chaleurs, and the coast of the Gulf of St. Lawrence to Cape Rosieres, and from thence crossing the mouth of the River St. Law- rence by the west end of the Island of Anticosti, terminates at the aforesaid River St. John. •' Secondly, The Government of East Plorida, bounded on APPENDIX. 193 the w«*stvvard by the CruH' ol' Mexico and the Appalachicola river ; to the northward, by a line drawn Irom that part of the said river where th«» Chatahouchee and Flint rivers meet, lo the source of St. Mary's river, and by the course of the said river to th»' Atlantic Ocean; and to the east and south bv ih«; Atlantic Ocean and the Crulf of Florida, includina* all islands within six leagues of the sea coast. " Thirdly, the Cfovernnient of West Florida, bounded to the southward by the Uulf of Mexico, including all islands within six leagues of the coast from the River Appalachicola to Lake I'oiitchartrain ; to the westward, by the said Lake, ihel^ake Mauri)as,and the River Mississippi; to the northward, by a line drawn due east from that part of the Mississippi which lies in thirty one degrees north latitude, to the River .\pl)alachicola or Chatahouchee ; and to the eastward by the said river. " Fourthly, The Government of Grrenada, comprehending the island of that name, together wMth the CJrenadines. and the islands of Doniinico, 8t. Vincent and Tobaga. ■ And to the end that the open and lice lishery of our sub- jects may l)e extended to, and carried on. ui)on the coast of Labrador and the adjacent islands, we have thought lit, with the advice ol' our said Privy Council, to put all the coast, from the River St. John's to Hudson's Straits, together with the islands of Anticosti and Madeline, and all other .smaller islands lying upon the said coast, under the care and inspec- tion of our (jrovernor of Newfoundland. '• We have also, with the advice of our Privy Council, ihouiiht lit to annex the islands of St John and Cape Breton, or Isle Royale, with the lesser islands adjacent thereto, to our Cxovernment of Nova Scotia. " We have also, with the advice of our Privy Council afore- Kaid. annexed to our Province of Georgia all the lands lying between the rivers Altamaha and St. Mary's. " And whereas, it will greatly contribute to the speedy settling our said new governments, that our loving subjects o ;*»'■ '■ S TT( 194 APPENDIX. i:(:! should be informed of our paternal care for the security of the liberties and properties of those who are and shall become inhabitants thereof, we have thought fit to pubHsh and declare by this our proclamation, that we have, in the letters patent under our great seal of Great Britain, by which the govern- ments are constituted, given express power and direction to our governors of our said colonies respectively, that, so soon as the state and circumstances of the said colonies will admit thereof, they shall, with the advice and consent of the mem- bers of our Council, summon and call General Assemblies within the said governments respectively, in such manner and form as is used and directed in those colonies and prov- inces in America which are under our immediate govern- ment. And we have also given power to the said governors, with the consent of our said councils and the representative of the people, so to be summoned as aforesaid, to make, con- stitute and ordain laws, statutes and ordinances for the public peace, welfare and good government of our said colonies, and of the people and inhabitants thereof, as near as may be agreeably to the laws of England, and under such regulations and restrictions as are used in other colonies ; and, in the meantime, and until such Assemblies can be called as afore- said, all persons inhabiting in, or resorting to, our said colo- nies, may confide in our our Royal protection for the enjoy- ment of the benefit of the laws of our realm of England ; for which purpose we have given power under our great seal to the governors of our said colonies respectively, to erect and constitute, with the advice of our said councils respectively, courts of judicature and public justice within our srid colo- nies, for the hearing and determining of all causes, as well criminal as civil, according to law and equity, and as near as may be agreeably to the laws of England ; with liberty to all persons, who may think themselves aggrieved by the sen- tences of such courts, in all civil cases, to appeal, under the usual limitations and restrictions, to us, in our Privy Council. " We have also thought fit, with the advice of our Privy APPENDIX. 195 Council as aforesaid, to give unto the governors and councils of or.r three new colonies upon the continent, full power and authority to settle and agree with the inhabitants of our said new colonies, or to any other person who shall resort thereto, for such lands, tenements and hereditaments, as are now, or hereafter shall be, in our power to dispose of, and them to grant to any such person or persons, upon such terms and under such moderate quit-rents, services and acknowledg- ments as have been appointed and settled in other colonies, and under such other conditions as shall appear to us to be necessary and expedient for the advantage of the grantees, and the improvement and settlement of our said colonies, " And whereas, we are desirous upon all occasions to testify our Royal sense and approbation of the conduct and bravery of the officers and soldiers of our armies, and to reward the same, we do hereby command and empower our governors of our said three new colonies, and other our governors of our several provinces on the continent of North America, to grant, without fee or reward, to such reduced officers as have served in North America during the late war. and are actu- ally residing there, and shall personally apply for the same, the following quantities of land, subject at the expiration of ten years to the same quit-rents as other lands are subject to in the Province within which they are granted, as also subject to the same conditions of cultivation and improvement, viz.: " To every person having the rank of a lield-officer, live thousand acres. " To every captain, three thousand acres. " To every subaltern or statf-officer, two thousand acres. " To every non-commissioned officer, two hundred acres. " To every private man. fifty acres. " We do likewise authorize and require the governors and commanders-in-chief of all our said colonies upon the conti- npnt of North America, to grant the like quantities of land, and upon the same conditions, to such reduced officers of our navy of like rank as served on board our ships of war in ■i\i M i M- f 196 APPENDIX. North America at the times of the reduction of Louisburg and Quebec, in the late war, and who shall personally apply to our respective governors for such grants. " And whereas it is just and reasonable and essential to our interest and security of our colonies that the several nations and tribes of Indians with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominions and territo- ries as, not having been ceded to, or purchased by us, are re- served to them, or any of them, as their hunting grounds ; we do, therefore, with the advice of our Privy Council, de- clare it to be our Royal will and pleasure that no governor or commander-in-chief in any of our colonies of Quebec, East Florida, or West Florida, do presume, upon any pretence whatever, to grant warrants of survey, or pass any patents for lands beyond the bounds of their respective governments, as described in their commissions ; as also that no governor or commander-in-chief of our other colonies or plantations in America, do presume lor the present, and until our further pleasure be known , to grant warrants of survey, or pass pa- tents, for any lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the west or north-w^est ; or upon any lands whatever which, not havini' been ceded to, or purchased by us, as aforesaid, are reserved to the said Indians, or any of them. " And we do further declare it to be our Royal will and pleasure, for the present, as aforesaid, to reserve under our sovereignty, protection and dominion for the use of the said Indians, all the lands and territories not included within the limits of our said three new governments, or within the lim- its of the territory granted to the Hudson's Bay Company ; as also all the lands and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west as aforesaid ; and we do hereby strictly for- bid, on pain of our displeasure, all our loving subjects from making any purchase or settlements whatever, or taking pos- I(> APPENDIX. 197 as session of any of the lands above reserved, without our special leave and license for that purpose first obtained. " And vv^e do further enjoin and require all persons what- ever, who have either wilfully or inadvertently seated them- selves upon any lands within the countries above described, or upon any other lands tohirh, not hivinff bf-en ceded to, or purchased hy us, are still reserved to the said Indians as afore- said, forthwith to remove themselves from such settlements. " And whereas, great frauds and abuses have been commit- ted, in the purchasing lands of the Indians, to the great pre- judice of our interests, and to the great dissatisfaction of the said Indians ; in order, therefore, to prevent such irregulari- ties for the future, and to the end that the Indians may be convincedof our justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice of our Privy Council, strictly enjoin and require, that no private person do presume to make any purchase from the said In- dians, of any lands reserved to the said Indians, within those parts of our colonies where we have thought proper to allow settlement ; but that if at any time any of the said Indians should be inclined to dispose of any of the said lands, the same shall be purchased only for us, in our name, at some public meeting or assembly of the said Indians, to be held for that purpose by the governor or commander-in-chief of our colony respectively within which they shall lie ; and in case they shall lie within the limits of any proprietaries, conform- able to such directions and instructions as we or they shall think proper to give for that purpose. And we do, by the ad- vice of our Privy Council, declare and enjoin that the trade with the said Indians shall be free and open to all our sub- jects whatever, provided that every person who may incline to trade with the said Indians, do take out a license for carry- ing on such trade, from the governor or commander-in-chief of any of our colonies respectively where such person shall reside, and also the security to observe such regulations as we shall at any time think fit ; by ourselves or commissaries t k i:i I' 198 APPENDIX. 1 I be appointed for this purpose, to direct and appoint for the benefit of the said trade. And we do hereby authorize, en- joui and require the governors and commanders-in-chief ot all our colonies respectively, as well as those under our im- mediate government, as those under the government and di- rection of proprietaries, to grant such licenses, without fee or reward, taking especial care to insert therein a condition, that such license shall be void, and the security forfeited, in case the person to whom the same is granted, .shall refuse or neg- lect to observe such regulations as we shall think proper to prescribe as aforesaid. " And we do further expressly enjoin and require all officers whatever, as well military as those employed in the manage- ment and direction of Indian alfairs within the territories r* - served as aforesaid for the use of the said Indians, to seize and apprehend all person. s whatever who, standing charged with treasons, misprisions of treasons, murders or other felonies or misdemeanors, shall fly from justice, and take refuge in the said territory, and to send them under a proper guard to the colony where the crime was committed of which they shall stand accused, in order to take their trial for the same. " Given at our Court of St. James's, the seventh day of October, 17(i.S, in the third year of our reign. " God Save the KirKjr ArPENDIX G. Extracts from The Present State of the European Settle- ments on the Missistiippi, BY Captain Philip Pitman, 4/0, London, 1770. " Fort Charthes, when it belonged to France, was the Seat of Government of the Illinois. The head-quarters of the English commanding-officer is now here, who, in fact, is the arbitrary ijovernor of this country. The fort is an irregular APPENDIX. 199 quadran<^le ; the sides of the exterior polygon are 490 feet. 1 1 is built of stone, is plastered over, and is only designed as a defence against tlie Indians The walls are two leet two inches thick, and are pierced with loop-holes at regular dis- tances, and with two port-holes for cannon in the faces, ana two in the Hanks of each bastion. The ditch has never been finished. The entrance to the fort is through a very hand- some rustic gate. "Within the walls is a banquette raised three feet, for the men to stand on vvlien they fire through the loop- holes. The buildings within the fort are — a commandant's and a commissary's house, the magazine of stores, corps de garde and two barracks ; these occupy the square. Within the gorges of the ibrt are a powder - magazine, a bake- house and a prison, in the lower floor of which are four dungeons, and in the upper, two rooms, and an out-house be- longing to the commandant. The commandant's house is thirty-two yards long, and ten broad, &c. The commissary's house (now occupied by oflicers) is built on the same line as this, and its proportion and the distribution of its apartments are the same. Opposite these are the store-house and the guard-house ; they are each thirty yards long and eight broad. The former consists of two large store-rooms (under which is a large vaulted cellar, a large room, a bed-chamber, and a closet for the store-keeper ; the latter, of a soldiers' and ofH- cers' guard-room, a chapel, a bed-chamber, a closet for the chaplain and an artillery store-room. The lines of barracks have never been finished ; they at present consist of two rooms each for officers, and three rooms each for soldiers. They are each twenty feet square, and have betwixt them a small passage. There are live spacious lofts over each build- ing, which reach from end to end ; these are made use of to lodge regimental stores, working and entrenching tools, &,c. It is generally believed that this is the most convenient and best-built fort in North America." In 1756, Fort Chartres was rebuilt by order of the French G^overnment, in view of the war with England. It was then m 200 APPENDIX. half-fumile I'rom the Mississippi. In 1766 it was hut oiffhty yanls from the hank. In 1768, Captain Pitman writes • " The hank of the Mississippi, next the fort, is continually falling in, heiiig worn away hy the current, which has heeii turned from its course hy a sand-hank, now increased to a considerahlc island, covered with willows. Many experi- ments have heen tried to stop this irrowinf;^ evil, hut to no purpose. Eight years ago the river was lordahle to the island ; the channel is now forty feet deep. "In the year 1761', there were ahout forty families in thf tillage near the fort, and a parish church, served hy a Fran- ciscan friar, dedicated to Ste. Anne. In the following year, when the English took possession of the country, they ahan- doned their houses, except three or four poor lamilies, anil settled in the villages on the west side of the Mississippi, choosing to continue under the French Grovernment." In 1772, the channel of the river reached the fort and thf wall, and two hastions upon the wcvst side were undermined, and fell, and the British garrison ahandoned the place, and Kaskaskia hecame the Seat of Government for the Illinois country.^ " The Village of Notre Dame de Cascasquias is by far Ihc most considerable settlement in the country of Illinois, as well from its number of inhabitants, as from its advantageou.s situation. " Mons. Paget was the first who introduced water-mills in this country, and he constructed a very fine one on the river Cascasquias, which was both for grinding corn and sawing boards. It lies about one mile from the village. The mill proved fatal to him, being killed as he was working in it, with two negroes, by a party of Cherokees, in 1764. * For A very minute and interesting description of Fort (.'hartres, see Dr. Beck'.') Gazftfer of Illinois, 1820 : "Over the whole Fort, there in a considerable growth of trees, ."uid in the hall of the houses, there is an oak ahout eighteen inches in diameter. • . . . Trees more than three feet in diameter are within the walls. It is a ruin in the midst of a dense forest, and did we not know its history, it might furnish a fnntftil theme for antiquarian speculation. ! APPENDIX. 201 ilS " Thft principal huildinj^s are the church and .Tesuits'- houso, which has a small chapol adjoining it ; these, as well as some other houses in the villafre, are built of stone, and, con- sidering this part of the world, make a very p^ood appearance. The Jesuits' plantation consisted of two hundred and forty arpents of cultivated land, a very good stock •.)f cattle, and a brewery : which was sold by the P'rench commandant, after the country was ceded to the English, for the Crown, in conse- (|uence of the suppression ol the Order. " Mons. JJeauvais was the purchaser, who is the richest of the English subjects of this country. He keeps eighty slaves ; he furnishes eighty-six thousand weight of flour to the King's magazine, which was only a part of the harvest he reaped in one year. " Sixty-live families reside in this village, besides merchants, other casual people and slaves. The fort, which was burnt down in October, 17(56, stood on the summit of a high rock opposite the village, and on the opposite side of the Koskas- kin river. It was an oblongular quadrangle, of which the exterior polygon measured two hundred and ninety feet by two hundred and fifty-one feet. It was built of very thick scjuared timber, and dovetailed at the angles. An officer and twenty soldiers are quartered in the village. The othcer go- verns the inhnbitants, under the direction of the commandant at Chartres. Here are also two companies of militia." " La PRAiiiE BE KociiE."^ is about seventeen miles from Cascasquias. It is a small village, consisting of twelve dwel- ling houses, all of which are inhabited by as many families. Here is a little chapel, formerly a chapel-ol-ease to the church at Fort Chartres. The inhabitants here are very industrious, and raise a great deal of corn, and every kind of stock. The village is two miles from Fort Chartres. It takes its name from its situation, being built under a rock that runs parallel with the river Mississippi, at a league distance, for forty miles up. Here is a company of militia, the captain of which regu- lates the police of the village." 202 APPKNDIX, il< " Saint Phillipfh is a small village about live miles from Fort Chartres, on the road to Kao(iuias. Then; are about six- teen houses and :i siuiill church staiidiuj?, All the iuhabitants- except the captain ol' the militia, deserted it, in 1705, and went to the Krenidi sid«*. The captain ol' the militia has about twenty slaves, a good stock ui cattle and a water-mill lor corn and plaiiks. This villagt.' stands in a very tine meadow, about one mile Ironi the Mississippi." '• The village ol' 8aintk Famillk dk Kauquia (Cahokiaj is generally reckoned lil'teen leagues irom Fort Chartres, and six leagues below the ni nith ol' the Missouri. It stands near thf side of the Mississippi, and is marked from the river by an island of two leagues long. The village is opposite to the centre of this island ; it is long and straggling, being three- (juarters of a mile from one end to the other. It contains forty-live dwelling-houses, and a church near its centre. The situation is not well chosen, as in the Hoods it is generally »>verilowed two or three feet. This was the lirst settlement on the Mississippi. The land was i)urchased of the savages by a few Canadians, som<; of whom married women of the Kaoquias nation, and others brought wives from Canada, and then resided there, leaving their children to succeed them. The inhabitants of this place depend more on hunting, and their Indian trade, than on agriculture, as they raise scarcely corn enough for their own consumption ; they have a great l)lenty of poultry, and good stocks of horned cattle. The Mission of tSt. JSulpice had a very line plantation here, and an excellent house built on it. They sold this estate, and a very good mill for corn and planks, to a Frenchman who chose to remain under the English Government. They also dis])osed of thirty negroes, and a good stock of cattle to dilferent people in the country, and returned to France in 1764. What is called the Fort, is a small house standing in the centre of the village. It differs nothing from the other houses, except in being one of the poorest. It was formerly enclosed with high palisades, but these were torn down and burnt. Indeed, a fort at this place could be of little use." AFPKNDIX. 20» APPENDIX II. EXTRACTH FROM THE DiAKY OF (.'OLONKI. ('itoOIIAN, Deputy-Supekintendknt ok the Northeun Indian- Department. Colonel George (.'roghuii, the CoinmiHsioiier ol' Sir VVilliain .)ohii8on, went to the west to leurn the diKi)osition of the French inhabitanth, antl to secure, it' [)ossible, their adhesioji to the English interest ; and to prevent a second Indiiin war. He lelt Fort Pitt on the l,'>th of May, ITlIt, and was taken prisoner on the 8th of June by a party of Indians, and wns carried to ViNCENNKS. He says : " On my arrival there, I found a village of about eighty or ninety French faniilifs set- tled on the east side of this river, V)eing one of the linest situations that can be found. The country is level and clear, and the soil very rich, producing wheat and tobacco. I think the latter preferable to that of Maryland or Virginia. The French inhabitants hereabouts are an idle, lazy people, a pai- cel of renegaders from Canada, and are much worse than the Indians. They took a secret pleasure at our misfortunes, and the moment we arri\'ed, they came to the Indians, exchanging trifles for their valuable plunder. As the savages took from me a considerable quantity of gold and silver in specie, the French traders extorted two half-johannes from them for one pound of vermilion. " Here is likewise an Indian village of the Pyankeshaws, who were much displeased with the party that took me, tel- ling them, ' our chiefs and your chiefs have gone to make peace ; and you have begun a war, lor which our women and children will have reason to cry.' F'rom this post, the Indians permitted me to write to the Commander, at Fort Chartres, but would not sutler me to write to anybody else (this, 1 ap- prehend, was a precaution of the French, lest their villainy should be perceived too soon), although the Indians had given me permission to write to Sir William Johnson and Fort Pitt m 204 APPENDIX. on our march, before we arrived at this place. But immedi- ately after our arrival, they had a private council with the French, in which the Indians urged (as they afterwards in- formed me) that as the French had engaged them in so bad an affair, which was likely to bring a war on their nation, they now expected a proof of their promise and assistance. They delivered the French a scalp and a part of the plunder, and wanted to deliver some presents to the Pyankeshaws, but they refused to accept of any, and declared that they would not be concerned in the affair. This last information I got from the Pyankeshaws, as I have been well acquainted with them several years before this time. " Post Vincent is a place of great consequence for trade, being a fine hunting country all along the Ouabache (Wa- f)a,sh), and too far for the Indians, which reside hereabouts, to go either to the Illinois or elsewhere to fetch their necessaries. ^^ June 23. — .... The distance from Post Vincent to OuiCATANON is 210 miles. This place is situated on the Oua- bache. About fourteen French families are living in the Fort, which stands on the north side of the river. The Kickapoos and Musquattinees, whose warriors had taken us, live nigh the fort, on the same side of the river, where they have two villages ; and the Ouicatanons have a village on the south side of the river. At our arrival at this post, several of the Wavvcattonans (or Ouicatanons), with whom I had been for- merly acquainted, came to visit me, and seemed greatly con- cerned at what had hai pened. They went immediately to the Kickapoos and Musquattinees, and charged them to take the greatest care of us till their chief's should arrive from the Illinois, where they were gone to meet me some time ago, and who were entirely ignorant of this afiiiir, and said the French had spirited up this party to go and strike us. " The French have a great influence over these Indians, and they never fail in telling them many lies to the prejudice of his Majesty's interest, by making the English nation odious and hateful to them. I had the greatest difficulties in romov- X -i APPENDIX. 205 iiig these prejudices. As these Indians are a weak, foolish and credulous ij^^ >ple, they are easily imposed on by a design- ing people, who have led them hitherto as they pleased. The French told them that as the Southern Indians had for two years past made war on them, it must have been at the insti- gation of the English, who are a bad people. However, 1 have been fortunate enough to remove their prejudice, and in a great measure their suspicions against the English. The country hereabouts is exceeduigly pleasant, being open and clear lor many miles, the soil very rich and well watered, all plants have a quick vegetation, and the climate very tempe- rate through the winter. This post has always been a very considerable trading place. The great plenty ol furs taken in this country, induced the French to establish this post, v'hich was the hrst upon the Ouabache, and by a very advan- tageous trade, they have been richly recompensed ibr their labour. " August 1. — The Twiotwee village is situated on both sides of a river called the St. Joseph. Tliis river, where it falls into the Miami river, about a quarter of a mile from this place, is about one hundred yards wide, on the east side of which stands a stockade fort, somewhat ruinous. " The Indian village consists of about forty or lifty cabins, besides nine or ten F'rench houses, a runaway colony from Detroit, during the Indian war ; they were concerned in it, and being afraid of punishment, came to this post, where, ever since, they have spirited up the Indians against the Eng- lish. All the French residing here are a lazy, indolent people, tbud of breeding mischief and spiriting up the Indians against the English, and should by no means be suliered to remain here. The country is pleasant, the soil rich and well watered. Ai>er several conferences with these Indians, and their dehv- ering me up all the English prisoners they had, on the Oth of August we set out for Detroit, down the Miami river, in a canoe. " August 17.— In the morning we arrived at the fort, which 206 APPENDIX. is a large stockade, inclosing about eighty houses ; it stands close on the north side of the river, on a high bank, com- mands a very pleasant prospect for nine miles above and nine miles below the fort ; the country is thickly settled with PVench ; their plantations are generally laid out about three or four acres in breadth on the river, and eighty acres in depth ; the so 1 is good, producing plenty of grain. All the people here are generally poor wretches, and consist of three or four hundred French families, a lazy, idle people depend- ing chiefly on the savages for their subsistence ; though the land, with little labour, produces plenty of grain, they scarcely raise as much as will supply their wants, in imitation of the Indians, whose manners and customs they have en- tirely adopted, and cannot subsist witho"t them. The men. women and children speak the Indian tongue perfectly well. In the last Indian war, the most part of the French were con- cerned in it (although the whole settlement had taken the oath of allegiance to his Britannic Majesty) ; they have there- fore great reason to be thankful to the lilnglish clemency in not bringing them to deserved punishment. Before the late Indian war, there resided three nations of Indians at this place — the Putawatimes, whose village was on the west side of the river, about one mile below the fort ; the Ottawas, on the east side, about three miles above the fort ; and the "Wyandottes, whose village lies on the east side, two miles below the fort. The former two nations have removed to a considerable distance, and the latter still remain where they were, and are remarkable for their good sense and hospitality. They have a particular attachment to the Roman Catholic re- ligion ; the French, by their priests, have taken uncommon pains to instruct them." Rogers says, in his Accoutit of North America : " When T took possession of the country (Detroit) soon after the surren- der of Canada, they were about 2,500 in number, there being near 500 that bore arms, and near 300 dwelling-houses." (p. 168.) ii APPENDIX. 207 " In 1764 there were but men enoueh to form three compa- nies of militia." — Kante's IliMory of the War hi North Auicrim- p. 525. In 1768, the census, when taken, showed the population to be 572. Bancroft says that he has a MS. in his possession contain- ing the recollections of Madame Catherine Thibeau, in which it is stated that " about sixty French families in all when the the English took possession of the country ; not more than eighty men at the time. Very few farms ; not more than seven or eight farms settled." " Jvbj 18, 1765.— I set off for the Illinois with the chiefs of all those nations, when by the way, we met with Pondiac. together with the deputies of the Six Nations, Delawares and Shawanees, which accompanied Mr. Frazer and myself down the Ohio, and also deputies with speeches from the four nations living in the Illinois country, to me and Six Nations, Delaw^ares and Shawanees, on which we returned to Onitn- non, and there held a conf^>-ence, in which I settled all mat- ters with the Illinois Indians, Pondiac and they agreeing to everything the other nations had done The French had informed them that the English intended to take their country from them, and give it to the Cherokees to settle on, and that if ever they suffered the English to take posnes- sion of their country, they would make slaves of them, that this was the reason of their opposing the English hitherto from taking possession of Fort Chartres they de- sired that their Father, the King of England, might not look upon his taking possession of the forts which the French had formerly possessed, as a title for its subjects to possess their country, as they had never sold any part of it to the French, and that I might rest satisfied that whenever the English came to take possession, they would receive them with open arms." — Croghnn's Diary ; also N. Y. Hist. Doc. vol. 8, p. 781. 'I I '• 208 APPENDIX. ! r Ml ■' Thouqht.s on Indian Affairs, by Colonel Broad STREET. — Extract. " I am assured, by persons lately from Illinois, that exclu- sively of the French garrison there, the inhabitants are six hundred lighting- men, have one thousand negroes, well ac- customed to the use of arms, averse to our taking of the country, and having painted us in such colours to the nume- rous savages near them, that the latter will certainly endea- vour to prevent the troops getting there by the Mississippi, even should the Indians near the sea allow them to pass, which they think they will not, unless well paid for it, which will not answer, what may perhaps be expected. They add that this is their opinion also, that all attempts to get posses- sion of the Illinois with less than three thousand men will fail. and that those troops should go down the Ohio river, and that the expedition be carried on with such secrecy, that they may enter the Mississippi ninety miles below Fort Chartres, before the inhabitants can have intelligence of it, and time to apprize all the savages."— iV; Y. Hist. Doc, vol. 8, p. 693. These statements differ very widely. This difference may in some measure be accounted for by remembering that the men were nearly all fur-traders, and that after the war with Pontiac was over, many went to Mackinac, to Nipigon, Grand Portage, G-reen Bay and other pohits, to carry on the trade of the north-west. Some families went beyond the Mississippi, to avoid becoming subjects of Great Britain, not knowing that France had ceded Louisiana to Spain. i^im APPENDIX. 209 APPENDIX I. [This docuintnt f eems to have governed the conduct of the Dtic de Choiseul in liis propositions Krst made to Mr. Pitt ; and I append as serving to elucidate that corres- pondence. ] Extract. — Paris Documents XVII. (page 1131.) Memoir on the Boundaries of Canada. By M. DuMA8. 'Tis supposed that the plenipotentiaries named for the future Congress, are incapable of adopting the frivolous ideas entertained in France respecting ^'i-- possessions in Canada ; statesmen have notions different from the simple vulgar. The French are too volatile and too superficial to trouble themselves about the future ; but Ministers whom wisdom has selected and ability directs, will of themselves observe that the interests of commerce, the progress of navigation, the good of the State and the King's glory necessarily require that the restitution of Canada be laid down as a preliminary in the Treaty of Peace. In more favourable conjunctures, \v^ would be justified in demanding of the Engliish, damages corresponding to the enormous depredation of our marine, as well commercial as national ; but the circumstances which will exist at the con- clusion of the peace, are to decide the sacrifices we shall be obliged to make, or the advantages which are possibly to re- sult therefrom. Commerce has changed the face of Europe ; it is now evident that, in the long run, the more commercial nation will become the more powerful. We can no longer dispense with America, without falling sensibly from our state of splendour. On the restitution of Canada depends the fate of the rest of our colonies. These principles, clearer than the day, once admitted, that i^estitution ought to form the basis and foundation of the Treaty of Peace. ^11 ', jT^l' 210 APPENDIX. 1^ But will the work of our Ministers be durable ? For want of local knowledi^e, will they be in a condition to manage benelicially the interests of the King and nation in this re- gard ? Will they prevent the subterfuges in which English trickery will not fail to envelop them ? If the English desire peace, do they desire it to be lasting ? Will they renounce that system of maritime despotism which constitutes the sole ol)ject of their policy ? Will they not preserve a constant hankering to render themselves masters of the whole of America ? And will they not allow it to appear when we shall be least on our guard ? Incapable of accomplishing that project now, in consequence of the exhaustion of their finances, will they not renew it at another time ? In front of an enemy so active, so ambitious, so enterprising, conjectures are as good as demonstrations ; the past cannot render us too cautious for the future. By a fatality which cannot be comprehended, the English were better acquainted than we before the war, with the topographical map of our possessions. Aided by similar help, what advantage do they not possess to cheat us ? To this ob- ject, then, should be directed all the prudence and sagacity of our plenipotentiaries. BoUiNDARIES. I limit their labours, respecting Canada, to four general ob- jects : 1st. The entire property of both shores of the River and the appendaf^p of tho Enu:lish. ( )ur < loarancos, our settlements, our villaii^es, will be so much fruit to be gathered by them whr>n they have arrived at maturity. Let the heiffht of land and the Apalachies be the limits between the two peoples ! Nature appears to have marked them expressly. The caprice of man cannot change that barrier, always per- manent, and always ready' to protest against the usurper. People aspire to ayWctitious peace when they seek to establish it on arbitrary lines which the revolutions of time or the interests of men can destroy. 'Tis, perhaps, a fault into which have fallen our ablest negotiators, yet 'tis the most important object of a treaty of peace, since it destroys or foments the fatal germ which is tho occasion of most wars. The height of lands and the Apalachies once determined on as the line of reparation between the two Colonies, the modilicatious, the compromises I propose neutralizing certain districts, may be admitted accordiiigas circumstance will be more or less favour- able to France, when peace will be concluded. One reflection more remains to be submitted, which, al- though not bearing directly on tho boundaries, is, nevertheless, very intimately connected with them. Considering the enormous expense entailed on us by the .service of Indians in the war, I have always thought that the King would maintain at much less expense in Canada, a per- manent corps of troops, capable of defending it at all times, and when I have weighed, with reflection, the utility of thcnr assistance, I have found it to be only one of opinion and preju- dice. But this prejudice is founded on the terror inspired by their cruelty and barbarity in their customs ; it consequently will preserve its power. This terror will always be very useful to the nation which will be best able to mraage the alliance and attachment of these people. We pojses one real advantage over the English in this regard ; let us carefully avoid doing it the smallest 218 APPENDIX. damage by any convention with our enemies which would cause the Indians to suspect our alliance and good I'aith. However simple and natural such an accord might be, the English would not fail to present it to the Indians in the light that would render it odious to them. These people are proud, jealous, suspicious, and vindictive ; an appearance of defection on our part, after all the blood they have 'poured out in oiir defence, would render these irreconcilable to us from generation to generation, and that would be the greatest of misfortunes for both our Colonies. Our plenipoteniaries ought to be distrustful on this point. I am fully convinced that the British Ministers will set snares for them on this point, which is of more importance lor them in America than the gain of many battles. As for the rest, a Governor-Greneral, instructed and atten- tive, will know how to maintain the alliance of all the people of this continent in peace as in war, without those enormous expenses which knavery conducts ignorance tolerates. (Signed) Dumas. Paris, oth April, 1761. Definitive Treaty of Paris, 1763. Article 4. — His most Christian Majesty renounces all pre- tensions which he has heretofore formed, or m ight form, to Nova Scotia or Acadia in all its parts, and guarantees the whole of i'. and with all its dependencies, to the King of Great Bi.tain; moreover, his most Christian Majesty cedes and guarantees to his said Britannic Majesty, in full right, Canada, with all its dependencies, as well as the Island of Cape Breton, and all the other Islands and coasts in the Gulf and liiver St. Lawrence, and in general, everything that depends on the said countries, lands, islands and coasts, with the sovereignty, property, possession and all rights, acquired by treaty or otherwise, which the most Christian King and the Crown of France ha\e had till now over the said countries, islands, lands, places, cciots and their inhabit- ma m 'i£i APPENDIX. 219 ants, so that the most Christian King cedes and makes over the whole to the said King and to the Crown of Great Britain, and that in the most ample form without restriction, and without any liberty to depart from the said cession and guaranty under any pretence, or to disturb Great Britain in the possessions above mentioned. ***** Article 7. — In order to re-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 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 Ponchartrain to the sea ; and for this purpose the most Christian King cedes in full right, and guarantees to his Britannic Majesty the river and port of the Mobile, and everything which he possesses on the leftside of the River Mississippi, except the Town of New Orleans, and the island in which it is situated, which shall remain to France ; provided that the navigations of the River Mississippi shall be equally free as well to the subjects of Great Britain as to those of France, in its whole breadth and length from its source to the sea, and expressly that part which is between the said Island of New Orleans and the right bank of the river, as well as the passage both in and out of its mouth. It is further stipulated, thvi* the vessels belonging to the subjects of either nation shall not be stopped &c., &c. In the negotiations which took place between France and Great Britain in the year 1761, in reference to the cession of of Canada the following projwsitions were made: — On the 15th of July, 1761, France proposed : — I. The King cedes and guarantees Canada to the King of England, such as it has been, and in right, ought to be pos- sessed by France, without restriction, and without the liberty r ; ■ '■ ' ' 1 i-i % 220 APPENDIX. of returning upon any pretence whatever against this cession and guaranty, and without interrupting the Crown of England in the entire possession of Canada. II. The King in making over his full right of Sovereignty over Canada to the King of England, annexes four con- ditions to the cession. First, that the free exercise of the Roman Catholic religion shall be maintained there, and that the King of England will give the most precise and effectual orders that his new Roman Catholic subjects may, as heretofore, make public profession of their religion, accord- ing to the rites of the Roman Church. Secondly, That the French inhabitants or others, who have been subjects of the King in Canada, may retire into the French Colonies with all possible freedom and security ; that they may be allowed to sell their effects and to transport their property as well as their persons, without being restrained in their emigration, on any pretence whatever (except for debt) ; and the English Grovernment shall engage to procure them the means of transportation at as little expense as possible. Thirdhj, That the limits of Canada, with regard to Louisiana, shall be clearly and firmly established, as well as those of Louisiana and Virginia, in such >nanner that after the execu- tion of peace there may be no more difficulties between the two nations, wnth respect to the construction of the limits with regard to Louisiana, whether with respect to Canada, or the other possessions of England. N. B. — M. Bussy has'a memorial on the subject of the limits of Louisiana, which gives him power to come to a final treaty on that article with the Ministry of his Britannic Majesty. Fourthly, that the liberty of fishing, and of drying their cod- fish may, on the banks of Newfoundland, be confirmed to the French as heretofore ; and as this confirmation would be illusory, if French vessels had not a shelter in those parts appertaining to their nation, the King of Great Britain, in consideration of the guaranty of his new conquests, shall restore Isle Royal, or Cape Breton, to be enjoyed by France APPENDIX. 221 in entire Sovereignty, It is agreed to fix a value on this restitution, that France shall not, under any denomination whatever, erect any fortifications on the island, and shall con- fine herself to maintain civil establishments there, and the port for the convenience of the fishing vessels landing there. On the 27th of July 1761, the answer of the British Court to the memorial of French propositions was forwarded to Mr. Hans Stanley, the English Envoy at Paris. The first two of which relate to Canada are the following : — I. His Britannic Majesty will never recede from the entire and total cession on the part of France, of the Isle of Cape Breton, and of all the other Islands in the Gulf or in the River of St. Lawrence, with the right of fishing, which is inseparably incident to the possession of the aforesaid coasts, and of the canals or straits which lead to them. II. With respect to fixing the limits of Louisiana with re- gard to Canada, or the English possessions situate on the Ohio, as also on the coast of Virginia, it can never be allowed that whatever does not belong to Canada shall appertain to Louisiana, nor that the boundaries of the last province should L'f-tend to Virginia, or to the British possessions on the borders of the Ohio ; the nations and countries which lie intermediate, and which form the true barriers between the aforesaid pro- vinces, not being proper, on any account, to be directly or by necessary consequence ceded to France, even admitting them to be included in the limits of Louisiana, Ultimatum of France in Reply to that of England, REMITTED TO THE DUC DE CHOISEUL BY Mr. STANLEY. T. The King consents to cede Canada in to England Ihe most exclusive manner, as specified in the Memorial of Pro- positions, but his Majesty will not recede from the conditions which he has annexed to the same memoria', relative to the Catholic religion, and to the power, facility and liberty of emi- gration for the ancient subjects of the King. With regard to the Fishery in the Gulf of St. Lawrence the King means to 222 APPENDIX. maintain the immemorial right which his subjects have of fishing in the said Grulf ; and of drying their fish on the banks of Newfoundland, as it was agreed by the Treaty of Utrecht. As this privilege would be granted in vain if the French vessels had not some shelter appertaining to France in the Gulf, his Majesty proposed to the King of G-reat Britain the restitution of the Island of Cape Breton ; he again proposes either that Island of St. John, (Prince Edward's) or such other port without fortilications, in the Gulf, or within reach of the Gulf, which may serve the French as a shelter, and secure to France the liberty of fishing, from whence his Majesty has no intention to recede. 11. The King has, in no part of his Memorial of propositions, attirmod that all which did not belong to Canada, appertained to Louisiana ; it is even difficult to conceive such an assertion could be advanced. France, on the contrary, demands that the intermediate nations between Canada and Louisiana, as also between Virginia and Louisiana, shall be considered as neutral nations, independent of the Sovereignty of the two Crowns, and serve as a barrier between them. If the English Minister would have attended to the instructions of M. Bussy on this subject, he would have seen that France agreed with England as to this proposition. The Answer of England to the Ultimatum of France, 11 Ih August, 176L I. The King will not desert his claim to the entire and total cession of all Canada and its dependencies, without any new limits or exceptions whatsoever ; and likewise insists on the complete cession of the Island of Cape Breton and of the other Lslands in the Gulf and River of St. Lawrence. Canada, according to the line of its limits as traced by the Marquis de Vaudreuil himself, when that governor surrender- ed the said province by capitulation to the British General, Sir J. Amherst, comprehends on one side the lakes Huron, Michigan and Superior : and the said line drawn to the Red APPENDIX. 223 Lake takes in, by a serpentine progress, the River Ouabachi, (Wabash) as far as its junction with the Ohio, and thence ex- tends itself along the latter river as far inclusively as its influx into the Mississippi. It is in comforraity to this state of the limits, made by the French Governor, that the Kinr claims the cession of Canada, a province which the Court of France moreover has olFered anew by their Ultimatum to cede to his Britannic Majesty, in the most extensive irumner, as expressed in the Memorial of Pro- position of Peace of the \Zth July. As to what concerns the public profession and exercise of the Roman Catholic religion in Canada, the new subjects of his Britannic Majesty shall be maintained in that privilege without interruption or molestation ; and the French inhabi- tants, or others who may have been subjects of the Most Christian King in Canada, shall have full liberty and power to sell their effects, provided they dispose of them to the sub- jects of his Britannic Majesty, and to transport their property, as well as their persons, without being restrained from their emigration under any pretence whatever (unless in case of debt, or for the breach of the criminal laws), it being always understood that the time granted for the said emigration shall be limited to the space of one year, to be computed from the day of the ratification of the Definitive Treaty. II. As to what respects the line to be drawn from Rio Per- dido, as contained in the note remitted by M. Bussy, of the 18th of this month, with regard to the limits of Louisiana, his Majesty is obliged to reject so unexpected a proposition, as by no means admissible, in two respects : 1. Because the said line, under colour of fixing the limits of Louisiana, annexes vast countries to that province which, with the commanding posts and forts, the Marquis de Vaudreuil has by the most solemn capitulation ^ incontes- tably yielded into the possession of his Britannic Majesty, under the description of Canada, and that consequently however contentious the pretensions of the two Crowns 224 APPENDIX. If" s may have been before the war, and particularly with re- spect to the course of the Ohio, and the territories in that part since the surrender of Canada, and the line of its limits has been traced as aforesaid by the Marquis de Vaudreuil ; all those opposite titles are united, and become valid without contradiction, to confirm to G-reat Britain, with all the rest of Canada, the possession of those coun- tries on that part of the Ohio which have been heretofore contested. 2. The line prop • o fix the bounds of Louisiana, can- not be admitted, V^v. , .. .; iit would comprise hi another part, on the side of the Caroliiras, very extensive countries and numerous nations, \vl 'hi < always been reputed to be under the protection of the King, a right which his Majesty has no intention of renouncing ; and then the King, for the advantage of peace, might consent to leave the intermediate countries under the protection of Grreat Britain, and particu- larly the Cherokees, the Creeks, the Chicasaws, the Choctaws, and another nation, situate between the British settlements and the Mississippi. The Last Memorial of France to England, Sejptemher 9, 1761. L The King has declared in his first Memorial, and in his Ultimatum, That he will cede and guarantee to England the possession of Canada, in the most ample manner. His Majesty persists in that ofler, and without discussing the line of its limits marked in a map presented by Mr. Stanley, as that line on which England rests its demand, is without doubt the most extensive bound which can be given to the cession, the King is willing to grant it. His Majesty has annexed four conditions to his guaranty ; it seems that England agrees to them. The King only con- ceives that the term of one year for the sale of the French effects, and for the emigration, is too short, and his Majesty :M I '.m ■ '" r-ii APPENDIX. 225 desires that it may be agreed to extend the terra of one year to eiffhteen months at least. As the Court of England has added to the first article of their answer to the entire and total cession of Canada as agreed between the two Courts, the word dependencies, it ia necessary to give a specific explanation of this word, that the cession miffht not in the end occasion difficulties between the two Courts with regard to the meaning of the word " de- pendencies." II. The first paragraph, with respect to the limits of Louisi- ana, contained in the second article of the Answer from Eng- land, is agreed to by France. The second paragraph is neither just nor explicit, and it is finally proposed to express it in the following terms : The intermediate snv ige nations between the Lakes and the Mississippi, and within the line traced out, shall be neuter and independent, under the protection of the King, and those without the line on the side of the English, shall be likewise neuter and independent, under the protection of the King of England. The English traders also shall be prohibited from going among the savage nations beyond the line on either side ; but the said nations shall not be restrained in their freedom of commerce with the French atui English as ihey have exercised it heretofore. * * It may be collected from this Memorial that the first Article of the English Answer was granted in the full extent which the Court of London required ; France only desired eighteen months, instead of a year, for the emigration. By granting the first part of the second Article, luhich cedes the whole current of the Ohio to England, France proposed in regard to the second point of that Article, to agree upon the nations which should be reputed neutral between Canada, Carolina, and Louisiana. This proposition was the more reasonable, because that by agreeing on this division of the possession of the two nations, an equitable system was adop- ted, discussions about thejimits were prevented for the future, and France did not incur the risk of losing the colony of 226 APPENDIX. Louisiana whenever it pleased the Court of London to invade it. In the Piiwite Memorial of France, of July 15, 17G1, Melatin;/ to Spain, the Due de Choiseul proposes that Spain should be invited to guarantee the future Treaty of Peace. He says ; " The King will not disguise from his Majesty that the differ- ences of Spain with England fill him with apprehensions, and give him room to fear that, if they are not adjusted, they will occasion a fresh war in Europe and America. The King- of Spain has communicated to his Majesty the three Articles which remain to be discussed between his Crown and the Crown of Britain, which are : " 1 . The restitution of some captures which have been made during the present war upon the Spanish Flag. " 2. The privilege for the Spanish nation to fish upon the Banks of Newfoundland. " 3. The demolition of the English settlements made upon the Spanish territories in the bay of Honduras." * * * Extract from M. Bussy's Note to Mr. Pitt. Since the Memorial of the Propositions from France, was formed, and at the instant that the courier was ready to set out for London, the King received the consent of the Empress-Queen to a separate peace with England, but upon two conditions : 1. To keep possession of the countries belonging to the King of Prussia. 2. That it shall be stipulated that the King of Great Britain, neither in his capacity of King or Elector, shall afford any succour, either in troops or of any kind whatever to the King of Prussia ; and that his Britannic Majesty will under- take that the Hanovarian, Hessian, Brunswickian and other auxiliaries in alliance with Hanover, shall not join the forces of the King of Prussia, in like manner as France shall engage on her part not to yield succour of any kind to the Empress- Queen nor her allies. -#■ m APPENDIX. 227 to the the Both theso conditions appear so natural and equitable in themselves, that his Majesty could not do otherwise than acquiesce in them, and he hopes that the King of Great Britain will be ready to adopt them. Extract from Mr. Pitt's Letter to M. Bussy, July 2i, 1761. * * * It is my duty to declare further to you in plain terms, in the name of his Ma.jesty, that he will not suffer the disputes with Spain to be blended in any manner whatever in the negotiation of peace between the two Crowns ; to which I must add, that it will be considered an affront to his Majesty's dignity, and as a thing incompatible with the sin- cerity of the Negotiation, to make further mention of such a circumstance. Moreover, it is expected that France will not at any time presume a right of intermeddling in such disputes between G-reat Britain and Spain. These considerations, so just and indispensable, have determined his Majesty to order me to return you the Memorial w^hich occasions this, as wholly inadmissible. I likewise return you, Sir, as totally inadmissible, the Me- morial relative to the King of Prussia, as implying an attempt upon the honour of Great Britain, and the hdelity with which his Majesty will always fullil his engagements with his Allies. M. DE Vaudreuil to the Due DE C'hoiseul, October 30, 1761. My Lord, — I was astonished to see, by the historical ac- count of the Memorial of the negotiations between France and England, what I am charged with by the English, with regard to the limits of Canada, as it is entirely false and groundless. I shall give your grace a true account of what passed between Mr. Amherst and me on that head. When I capitulated, 1 traced out no limits whatever, and in all the messages that passed between the English General and me. 228 APPENDIX. I made use of the word " Canada" only. Eight or ten days after the surrender of the country, he sent an officer to me for maps, to inform him of the extent of the colony. I re- turned i'or answer, that I had none, my maps having been taken away with my baggage at Quebec, in breach of the ca- pitulation of that place ; and the officer then showing me a map which he had in his hand, I told him the limits marked on it 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, which rivers run into the Oaabache ; and on the other, to the head of the Illinois. What I have the honour to tell you, my lord, is strictly true ; I am not al'raid that the English can produce any proof of the contrary — for nothing passed in writing, on this head, nor was any line drawn on any map. I take the first oppor- tunity to acquaint you with this, to prevent any further im- position* m APPENDIX J. Extract from the Chautkr Granted to M. Crozat, 1712. BouN^iARY OF Louisiana and Nevi France. In the Grrant of Louisiana to Crozat made by Louis XIV., in September 1712, he is empowered " to carry on exclusively the trade in all our territories by us possessed and bounded by New Mexico, and by those of the English in Carolina ; all the establishments, ports, harbours, rivers, and especially the port and harbour of Dauphin Island, formerly called the Massacre Island, and the River St. Louis, formerly called the Mississippi, from the sea shore to the IlUnois; together with the River St. Philip, formerly called the Missouri river, and the 8t. Jerome, formerly called the Wabash, (the Ohio) with all the countries, territories, lakes inland, and the rivers emptying directly or indirectly in that part of the River St. Louis. All * For an account of the negotiations which led to peace, see Bedford Correspondence, volume 3. m- APPK.NDIX. 229 the said torritories, countries, streams and islands, we will to he and renuiiii corni)rised under the name oi'the government of Louisiana, w/tirh sIkiU be if^jiendent on Iheijeneral (jovernment of Neio Fnit/ce, and remain subordinate to it ; and we will moreover that all the territories which we possess on this side olthe Illinois (country) be united, ms lar as need, to the jrenenil i>ov(M-nnientorNew France, and lorm a part thereof, reserving to ourselves to increasi? if we think proper, tlu' extent of the government of the said country of Louisiana." In the Gran., made to the Mississippi Company, upon ti.e surrender by M. Croznt of his grant, the boiuidary of Louisi- ana was extended northward to the Illinois river, and beyond this, I am not aware that, by any act of the French Cloveru- ment, it ever had more extensive limits given to it. Mr. Parkrnan, in his "Discovery of the Crreat West" says, " the boundaries are laid down on the great map of In'anquc- len, made in 1(584, aiul preserved in the Depot des (Jartes of the Marine. Thc^ line runs along the south shore of Lake f]rie, and thence follows the heads of the streams llowdng into Lake Michigan. It then runs north-west and is lost in the vast unknown of the now British Territories. On tho sotiih it is drawn by the heads of the streams llovving into the Gulf, as far west ns Mobile, after which it follows the shore of the (rulf to a little south of the l{io Grande, then runs west, north- west, and finallv north alony- the rano-(> of the Kockv Moun- tains." Note on /ja<:ce -84. This map is obviously founded on the Proceti Verbal, by which La Salle took possession of the Valley of the Mi!^sissii)pi on behalf of thelving ol' France. As a subordinate province carved out of Canada, and made dependent upon it, Louisiaiui could extend no further than is expressly stated in the instrument, which gives it a political existence. It never extended further north than the Illinois. The question of the extent of Louisiana was orgued at the l)eace of 1762. Canada was ceded to Great Britain. 2.'iO Al'PENDIX. i "i I 1^ m A ri :i:[- The official maps usod l)y Franco in iicr iieHotijitioiis witJi (treat Britain incontestihly jnovc that the country north and north-west ol' the Mi.sKisKij)pi was coded as tho Provhico ol' ( 'anada. T. Falconer on tin- North Wrxl Jioundari/; pp. «7, 8.S ; Mofxis JCxploraliojiS in Oregon unil (hiiifomia ; Frcnrh's Docu' mc.iifs rr/afi/iii to the llisionj of Louisiana. Extract from Mofras' " Camfornia." " Tho treaty roc()gnizinf»' the independence ol' the United States, signed by England in 17H-2, those ol' the 20th January and 30th September, ITSS, as also tho treaties of 1794 and 1795, make no mention in the article, frontiers of the territories situated to the west of the Rocky Mountains. The latter only stipulates that the possessions of the Hudson's Bay Company shall not be accessible to citizens of the United States. Now if the boundaries between New France and that Company were not clearly defined, even after the treaty ol'Utrecht in 1713, and that of the cession of (Janada in 1703, it is undeniable that oither New France or the possessions of the H. B. Company extended as far as the Pacilic ocean, and that if the Spaniards Krst I'xplored the north-western coast of America, the French first discovered the interior of the continent proceeding from the east westwards. All the old maps, in this in accord with the most reliable authors, only place the boundary of the French possessions in Canada at the Southernsea. L'Fscarbot who wrote in 1617, among others, states as follows: — Thus our 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 Cuba and the island of Hispaniola ; 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. Lastly, in a map engraved in 1757, and attached to the Memorials of the Commissioners of the Kings of France and of England in America, in may be observed that New France extended as far as the Pacific Ocean, and AITHNDIX it shows oil the vvcstprn coast ol' America, at the 40th decree a hirije river ruimiiiii' in a divection wliich correspond exactly with that of the Rio Columbia. There is, moreover, nothinaf surprisintr in this speciiic description since, I'rom 1711 to 1754, the Ca]>tains General of New France sent out numercus exptnlitioiis to the western ]v,n't of Canada and after thirty years of uninterrupted "xplorations under the enlightened government of the Mar([uis de Beauharnois ; an ulhcer, M de la Vereiidrye, acquired a thorough knowledge of the river and of the western sea, which were no other than the Pacific Ocean and the Columbia. APrExNDIX K. Gonseil de Marine, 7th December, 1717. Messieurs de Vaudreuil and Begon having written last year that the discovery of the "Western Sea would be advantageous to the colony, it was approved that, to reach it M. de Vaudreuil should establish three posts, which he had proposed, and he was instructed at the same time to have the same established without any expense accruing to the King, — as the person establishing them would be remunerated by trade, — and to send a detailed schedule of the cost of continuing the discov- ery. In reply it is stated that M. de Vaudreuil in the month of July last caused the Sieur de la Noue, Lieutenant, to set out with eight cannon to carry out this scheme of discovery. He gave him instructions to establish the first post at the River Kamastiquoya, to the north of Lake Superior, after which he is to go to Takamamiononio, near the Christianaux Lake to establish a second, and to acquire through the Indians the information necessary for the establishment of the third at the Lake of the Assenipoelles. This journey costs the King nothing, because those engaged in it will be remunerated for their outlay by the trade which they will engage in ; but to follow up the discovery it is abso- ^1 - ;il j ' 'ill''' '1 i . sh|^^ >lllll 1! i ll 1 1 ► i ll 1 232 APPENDIX. lately necessary that his Majesty should bear the expense^ because the persons employed m it will have to give up all idea of trade. They estimate that 50 good canoemen (voyageurs) will be required ; of these, 24 will occupy the three posts, and the 26 others will be engaged in making the discovery from the lake of Assenipoelles to the Western sea. They calculate the wages of these men at 300 francs a year each, and estimate that the expenditure as well for provisions and canoes, as for goods for presents will amount to /. 29,023 10 There will have to be added, for supplementary outfit, 600 francs for each of the 6 officers employed in the discovery 3,600 10 Total 32,623 20 As it will take about two years to make this journey, they estimate that the expenditure may amount to fifty thousand francs.=^ ^1 APPENDIX L. McKenzie's Geneeal History of the Fur Trade from Canada to the North "West. The Indians, to procure the necessary supply, were encour- aged to penetrate into the country, and were generally accom- panied by some of the Canadians, who found means to induce the remotest tribes of natives to bring the skins which were most in demand, to their settlements, in the way of trade, (p. 1.) At length, military posts were established at the confluence of the different large lakes of Canada, M'hich, in a great measure, checked the evil consequences that followed from the improper conduct of these foresters, and, at the same time protected the trade. Besides, a number of able and respect- able men retired from the army, prosecuted the trade in •Library of Parliament MbS., 3rd serieB, vol. 6, pp. 529, 530. APPENDIX. 23a person, under their respective licenses, with great order and regularity, and extended it to such a distance, as, in those days was considered to be an astonishing effort of commercial enterprize. (p. 3.) The Missionaries "were, during their mission, of great service to the commanders who engaged in those distant ex- peditions, and spread the fur trade as far west as the banks of the Saskatchewan river, in 53 '^ North latitude and loiig- titude 102" west. (pp. 5, 0.) But notwithstanding all the restrictions with which com- merce w^as oppressed under the French government, the fur trade was extended to the immense distance which has been already stated ; and surmounted many most discouraging difficulties which will be hereafter noticed ; which at the same time, no exertions were made from Hudson's Bay to obtain even a share of the trade of a country which, according to the charter of that Company, belonged to it, and from its proxi- mity, is so much more accessible to the mercantile adventurer, (p. 6.) For some time after the conquest of Canada, this trade was suspended, which must have been very advantageous to the Hudson's Bay Company, as all the inhabitants to the west- ward of Lake Superior were obliged to go to them for such articles as their habitual use had rendered necessary. Some of the Canadians who had lived long with them, and were becoming attached to a savage life, accompanied them thither annually, till mercantile adventurers again appeared from their own country, after an interval of several years, owing, as I suppose, to an ignorance of the country in the conquerors and their want of commercial conlideuce in the conquered. There were, indeed, other discouragements, such as the im- mense length of the journey necessary to reach the limits, beyond which this commerce must begin ; the risk of property ; the expenses attending such a long transport: and an ignor- ance of the language of those who from their experience must be necessarily employed, as the intermediate agents between m ■g m 234 APPENDIX. them and the natives. But notwithstanding these difficulties, the trade by degrees began to spread over the different parts to which it had been carried by the French, though at a great risk of the lives, as well as the property, of their new possessors, for the natives had been taught by their former allies to entertain hostile dispo.sitions towards the English from their having been in alliance with their natural enemies the Iroquois ; and there were not w^anting a sufficient number of discontented, disappointed people to keep alive such a notion; so that for a long time they were considered and treated as objects of hostility. To prove this disposition of the Indians, we have only to refer to the conduct of Pontiac at Detroit, and the surprise and taking of Michilimackinac, about this period, (p. 7.) Hence it arose that it was so late as the year 1766, before which the trade I mean to consider commenced at Michili- mackinac. The first who attempted it were satisfied to go the length of the River Caministiquia, about thirty miles to the eastward of the G-rand Portage, where the French had a principal establishment and was the line of their communi- cation with the interior country. It was once destroyed by fire. Here they w^ent, and returned successful in the followhig spring to Michilimackinac. Their success induced them to renew their journey, and invited others to follow their exam- ple. Some of them remained at Caministiquia, while others proceeded to and beyond the Cxrand Portage, which since that time has become the principal entrepot of that trade. * * * One of these, Thftmas Curry, with a spirit of enterprise superior to that of his contemporaries, determined to penetrate to the furthest limits of the French discoveries in that coun- try ; or at least till the frost should stop him. For this pur- pose he procured guides and interpreters who were acquainted with the country, and with four canoes arrived at Fort Bourbon, which was one of their posts at the west end of Cedar Lake, on the waters of the Saskatchewan. His risk APPENDIX. 235 go and toil were well recompensed, for he came back the follow- ing spring" with his canoes filled with fine furs, with which he proceeded to Canada and was satisfied never again to return to the Indian country, (p. 8.) In a few years an animated competition prevailed, and the contending parties carried the trade beyond the French lim- its, though with no benefit to themselves or neighbours, the Hudson's Bay Company, who in the year 1774-, and not till then, thought proper to move from home to the east bank of Sturgeon Lake, in latitude 53° 56' north, and longitude 102° IV west, and became more jealous of their fellow-subjects, and perhaps with more cause than they had been of those of France. From this period to the present time, they have been foUoiving the Canadians to their different establishments, while, on the contrary, there is not a solitary instance that the Canadians have followed them ; and there are many trading posts which they have not yet attained. This, however, will no longer be a mystery, when the nature and policy of the Hudson's Bay Company is compared with that which has been pursued by their rivals in this trade, (p. ft.) Joseph Frobisher, one of the gentlemen engaged in the trade, determined to penetrate into the country yet unex- plored, to the north and westward, and in the spring of the year 1775, met the Indians from that quarter on their way to Fort Churchill, at Portage de Traite, so named from the cir- cumstance that on the banks of the Mississippi or Churchill river, latitude 55° 25 north, longitude 103° 15' west, it was with some difficulty that he could induce them to trade with him, but he at length procured as many furs as his canoes could carry, (p. 11.) He sent his brother to explore the country still further west, who penetrated as far as the lake Isle a la Croix, in latitude 55° 26' north, and longitude 108° west. (p. 12.j Peter Pond, as representative of a joint-stock company, was directed to enter the English river, so-called by Mr. Fro- bisher, to follow his track, and, if possible, to proceed still 1 286 APPENDIX. I ';if m A farther ; if possible, to Athabasca, a country hitherto un- known but from Indian report. In this enterprise he at length succeeded, and pitched his tents on the banks of the Elk river, l»y him erroneously called Athabasca river, about 80 miles from the Lake of the Hills, into which it empties itself. Here he passed the winter of 1778-9, saw avast concourse of Knistineaux and Chippewyan tribes, who used to carry their furs annually to Churchill, the latter by the barren grounds, where they suffered innumerable hardships, and were some- times even starved to death. * * * Mr. Pond's reception and success were beyond his expecta- tion ; and he procured twice as many furs as his canoes would carry. They also supplied him with as much provi- sion as he required during his residence among them, and sufhcient for his homeward voyage. Such of the furs as lu; could not embark, he secured in one of his winter huts, and they were found the following season, iu the same state in which he left them. The improper conduct of some of the Canada traders made it dangerous to remain among the natives. Those who passed the winter at the Saskatchewan, got to the Eagle Hills, where, in the spring of 1780, a few days previous to their in- tended departure, a dose of laudanum was given to an Indian, from which he died ; the accident producetl a fray in which one of the traders and several of the men were killed, and the remainder saved themselves by precipitate flight. (p. 13.) Pond tried at Montreal, 1781, for the murder of Wodin, who was shot in the latter part of 1780. Murder high up the Mississippi, or English river, at Lake La Rouge, (p. li'i Wodin was a Swiss gentleman, of strict probity and known sobriety. In 1781-2, Canadians, who were much reduced in nnmber, became confined to two parties, who began to think seriously of making permanent establishments in the country on the Mississippi river, and at Athabasca. For this purpose, they V'm Ul APPENDIX. 237 selected their best canoe-men. They got to the portage be- tween the Mississippi and Elk rivers. Found small-pox everywhere. Grot but seven packages of beaver. Traders returned next y«ar, found things better, fp. 17.) Merchants in 1783-4 formed the N. W. Compapy, divided the stock into 16 shares. No capital was deposited. In the spring, two of the shareholders went to Grand Portage with their credentials, which were confirmed and ratified by all parties except Mr. Peter Pond, who was not satisfied with the share allotted him. Accordingly, he and another gentleman, Peter Pangman, who had a right to be a partner, but for whom no provision was made, came to Canada with a determination to return to the country, if they could find any person to join them and give their scheme a proper support. The traders in the country, and merchants in Montreal, en- ti!red into a co-partnership ; successful. Pond joined them ; hut Pangman, Gregory and Macleod formed a separate busi- ness. McKcnzie was five years in Gregory's counting-house. Set up then for himself at Detroit. Admitted a partner, and sent to the Indian country. After the murder of one of our part- ners, the laming of another, and the narrow escape of one of the clerks, who received a bullet through his powder-horn, in the execution of his duty, union in July, 1787, consisted of 22 shares. In 1788. gross adventure for the year, ^£40,000. In 1798, the number of shares was increased to 42. The French had several trading establishments upon the islands and banks of Lake Bois Blanc, before the conquest. (p. 63.) The French had several settlements in and about Lake du Hois. (p. 57.) Lake du Bois — latitude 49° 37', longitude 94° 31' ; Mississippi —latitude 47° 38', longitude 95° 6'. (p. 68.) On the Saskatchewan are three principal forts for trade — Fort Dauphin, which was established by the French, before m HaU; '■'t 238 APPKNDIX. the conquest, Red Deer river and tSwan river forts, with oc- casional detached posts from these. The inhabitants are Knistineaux, from the north of Lake Winnipic ; and Algon- quins, from the country between Red River and Lake Supe- rior, (p. 65.) Upon the Saskatchewan there are five principal factories for the convenience of the trade with the natives. Nipawi House, South Branch House, Fort Georc^e House, Fort Augus- tas House and Upper Establishment, (p. 69.) There have been many others, which for various causes have been changed for these. It may be proper to observe that the French had two settle- ments upon the Saskatchewan long before, and at the con- quest of Canada — the first at the Pasquin, nepr Carrot river, and the other at Nipawi, where they had agricultural instru- ments and wheel-carriages, marks of both being found about those establishments, w^here the soil is excellent, (p. 73.) Till the year 1782, the people of Athabasca sent or carried their furs regularly to Fort Churchill, Hudson's Bay ; some of them have since that time repaired thither, notwithstand- ing they could have provided themselves with all the neces- saries which they required * * * At present, however, this traffic is in a great measure discontinued. * * (p. 91.j Carver's Travels. The latter end of July I arrived, after having coasted through West Bay, at the Grand Portage, which lies on the north-west borders of Lake Superior. Here those who go on the North "West Trade, to the Lakes DePluye, Dubois, &c., carry over their canoes and lugi>ag(» about nine miles, till they come to a number of small lakes, the waters of some of which descend into Lake Superior, and others into the River Bourbon. Lake Superior from West Bay is bovmded by rocks, except to- wards the south-west part of the bay where I first entered it, there it was tolerably level. * * * Here I met a large party of KiUistinoe and Assinipoil rt' ■s .'( APPENDIX. 2S^ Indians, with their respective kings and their families. They will come to this place in order to meet the traders from Michillimackinac,who make this their road to the North West. From them I received the following" account of the Lakes that lie to the north west of Lake Superior. Lake Bourbon, the most northern of those yet discovered, received its name from the French traders who accompanied a party of Indiana to Hudson's Bay some years ago ; and was thus denominated by them in honour of the Royal Family of !<' ranee. It is composed of the waters of the Bourbon river, which, as I have before observed, rises a great way to the southward, not far from the northern heads of the Mississippi. This lake is about 80 miles in length, north and south, and is nearly circular. The land on the eastern side is very good ; and to the south-west there are some mountains. In many other parts there are barren plains, bogs, and morasses. Itslatitudeis between fifty-two and fifty-four degrees north, and it lies nearly south-west from Hudson's Bay. As through its north- ern situation the weather there is extremely cold, only a few ani- mals are to be found in the country that borders on it. * * * (p. 107.) Lake Winnipeck, or as the French write it. Lake Ouinipique, which lies nearest to the foregoing, is composed of the same waters. It is in length 200 miles, north and south ; its breadth has never been properly ascertained, but is supposed to be about 100 miles in its widest part. This lake is very full of islands; these are, however of no great magnitude. Many considerable rivers empty themselves into it, which, as yet, are not distinguished by any names. * * * The lands on the south-west part of it is very good, especially about the entrance of a large branch of the River Bourbon, (Assiniboine), which flows from the south-west. On this river there is a factory that was built by the French, called Fort La Reine, to which the traders from Michilimackinac resort to trade with the Assinipoils and Killistinoes. To this place the Mahahs who inhabit a country 250 miles south-west, r 1 1 1 ^1 1 ; . 4 n 240 APPENDIX. come also to trade with them ; and bring great quantities of Indian corn to exchange for knives tomahawks, and other articles. * * * Lake Winnepeck has on the north-east some mountains and on the east many barren plains, (p. 109.) On the waters that fall into this Lake, the neighbouring nations take great numbers of excellent furs. Some of these thoy carry to the factories and settlements belonging to Hud- son's Bay Company, situated above i he entrance of the Bourbon river ; but this they do with reluctance on several accounts ; for some of the Assinipuils and Killistiiioes, who usually traded with the Company's servants, told me that if they could be sure of a constant supply of goods from Michillimacki- nac, they would not trade anywhere else. They shewed me some cloth and other articles that they had purchased at Hudson s Bay, with which they were much dissatisfied, thinking that they had been greatly imposed upon by the barter. Allowing that their accounts were true, I could not help joining in their opinion. But this dissatisfaction might proba- bly proceed, in a great measure, from the intrigues of the Canadian traders ; for whilst the French were in possession of Michillimackinac, having acquired a thorough knowledge of the trade of the north-west countries they were employed on that account, after the reduction of Canada, by the English traders there, in the establishment of this trade, with which they were themselves quite unacquainted. One of the methods they took to withdraw these Indians from their attachment to the Hudson's Bay Company, and to engage their good opinion in behalf of their new employers, was by depreciating on all occasions the Company's goods, and magnifying the advantages that would arise to them from trafficking entirely with the Canadian traders. In this they too well succeeded, and from this, doubtless, did the dissatisfaction the Assinipoils and Killistinoes expressed partly proceed. But another reason augmented it, and this was the length of their journey to the APPENDIX. 241 til Hudson's Bay factories, which, they informed me, took them up three months of the summer heat to go and return, and from the smallness of their canoes they could not carry more than a third of the beavers they killed. So that it is not to be wondered at, that these Indians should wish to have traders come and reside among them. # * # The French always kept a small schooner on Lake Superior whilst they were in possession of Canada, (p. 134.) Two very large rivers empty themselves into this Lake on the north and east side : one is called the Nipegon river, or, as the P'rench pronounce it, the Allanipegon, which leads to a band of the Chipeways, inhabiting a lake of the same name ; and the other is termed the Michipicooton river, the source of which is situated towards James' Bay, from whence there is but a short carriage to another river, which empties itself into that bay, at a fort belonging to the Company. Tt was by this passage that a party of French from Michillimackinac in- vaded the settlements of that society in the reign of Queen Anne. Having taken and destroyed their forts, they brought the cannon which they found in them to the fortress from whence they had issued ; these were small brass pieces, and remain there to this present time. (p. 137.) At the upper end of the Straits of Ste. Marie stands a fort that receives its name from them, commanded by Mons. Cadot, a French Canadian, who, being proprietor of the soil, is still permitted to keep possession of it. (p. 141.) The banks of the River Detroit, both above and below these towns, are covered with settlements, that extend more than twenty miles; the country being exceedingly fruitful and proper for the cultivation of wheat, Indian corn, oats and peas. The inhabitants, who are chiefly French that submitted to the English Government, after the conquest of these parts by General Amherst, are more attentive to the Indian trade than to farming. It is badly cultivated, (p. 151.) B 242 APPENDIX. ! , 'X APPENDIX M. (N. Y. Hist. Col., Vol. 10.) Paris Documents, IX. Extract from an Abstract, in form of a Journal of the most interesting occurrences in the Colony, in reference to mili- tary movements, and of the various intelligence received, since the departure of the ships in November, 1746. (Page 117 of the iV. Y. Hist. Col.) August 13. — Captain de Noyelle and Sieur de La Veren- drye arrive from Michillimackinac, and deliver to the G-eneral a letter dated at that post, on the 23rd July, and addressed to him by Sieur de Noyelle, junr., commanding, in the absence of Mr. de La Corne, senior, and by other officers, who arrived from the upper posts, and happened to be then at Michilli- mackinac. The Greneral is informed by this letter of the confusion that prevails among all the nations of that post and neighbourhood, Outaouais, Sauteurs and Mississagues. The Outaouacs of Sagni- nam have killed three Frenchmen who were coming from Detroit to Michillimackinac. Two French canoes which had gone en prime from Montreal to the West Sea,=^ have been attacked by the Sauteurs, about the place called La Cloche,t near Lake Michigan ; one, containing eight men, has been wholly defeated ; the second, by striking out into the Lake and throwing its cargo overboard, escaped to Michillimackinac. Another Frenchman has been stabbed by the Sauteurs at a place called La G-rosse Isle.J only two leagues distant from the post. These Indians have offered divers insults and threats * La mer de I'Ouest. In Carver's Map, the head of Lake Superior is called the West Bay. t An Island north of the Great Manitoulin, in Lake Huron. X An Island immediately north of Mackinaw Liland; map of St. Mary's Straits, i» Charlevoix, id. APPENDIX. 248 at the fort, and in the vicinity ; they killed all the horses and other cattle that they could not catch ; they designed to sur- prise the fort, but were discovered and obliged to leave, by ringing the bell and beating the tap-too, as usual, and even by making some defensive demonstrations. There had been greater reason for presuming bad intentions on the part of the Indians, inasmuch as a crowd of young men had armed themselves with knives, in a council which had been held at their request, on the 3rd July, and which terminated in recrimination. The Indians have not been permitted to enter the fort, except under certain restrictions. Some Frenchmen from Point Chagouamigon, and Mr. de Noyelle, senr., on his usual return from the West Sea, arrived a few days after. Certain intelligence had also been received there from Detroit. This reinforcement will somewhat tranquillize the fort, which contained, before their arrival, only twenty-eight men. An Outaouas Indian, named Neguiouamin, arrived on the 2nd .July at the post, to communicate in secret to the Commandant and the Missionary that the Iroquois, the Huron and the Flat- head, had come to an understanding with the English to destroy the French and drive them to the other side of the Sea ; that the Outaouais of Detroit is in the plot ; that the Poutouatami will co-operate; that the Mississagues andSauteurs are gained over ; that the Outaouac of Saguinam lias already struck ; that the Outaouas of Micbillimackinac would have taken part against us had it not been for the portion of the village which is at Montreal, and that they would yet possibly declare against us on the arrival of seventy men from Saguinam, who are to be reinforced by the Sauteurs of G-rosse Isle; that they were to leave in a few days, and to come in the night to speak to the Outaouas of the post, and that it were well to allow no person to go hunting, and to keep strict watch. Mr. (le Noyelle, junr., adds that he will detain, until further orders, a1 Michillimackinac, the canoes which were to come from Montreal to the different posts, unless affairs changed, and it became certain that the dispositions of the Indians at those If '«! 244 APPENDIX. posts were altered. We are co-operating in the adoption of the most effectual measures, either to restore tranquillity at the post of Michillimackinac, oral least to place it in a proper state of defence against all attacks of the Indians. (Page 129 of N. Y Hitt. Col., Vol. 10.) October 14th. — Sieur Masse, who has been the whole year at Cape Chat, has returned. We received letters from Michillimackinac informing us of the arrival of Chevalier de La Verendrye, who has found that post very quiet ; the Outaouacs are beginning to be sorry for what occurred last year. Paris Documents, X. Occurrences in Canada during the year 1747-S. Extract of whatever occurred of interest at Quebec in re- gard to the operations of the war, and the various intelli- gence received there since the sailing of the ships in No- vember, 1747. (Page 137. News from Michillimackinac.) Nov. 10. — We are in receipt of letters from Michillimacki- nac. Lieutenant de St. Pierre, who had been selected to command the convoy sent to that post, arrived there, without any accident, in 45 days. Captain de Verch^res, appointed Commandant at the Bay,* and who was to remain at Michilli mackinac with his traders from Montreal, had taken his de- parture thence for his post, with his voyageurs. Mr. de St. Pierre w^rites us on October 22nd that he has not been able to speak to the Indians, who were, when he arrived, all gone to their winter quarters, without having given any token of their repentance for the outrajye they had perpetrated. It is, hence, to be presumed that they persist in their evil disposi- * Green Bay. APPENDIX. 245 tions ; that the Marquis de Beauharnois' order, sent with Sieur de La Verendrye, in the month of August, has heen badly executed ; that 'twas the only means of reducing those nations ; that he does not anticipate success otherwise than by depriving them of the supplies they derive for the support of their families, and which they cannot dispense with. This might have been effected, were the traders prevented going to the different posts, according to the Marquis de Beauhar- nois' intentions ; and this officer takes this occasion of saying, that it would be well not to allow the canoes to leave Mon- treal next spring for Michillimackinac and other posts, until he have informed us of the sentiments in which the nations of that country Will then be, and as soon as he shall have learned their intentions, he will take occasion to report them to us. Paris Docitvients, X. Extracts from a letter from M. de Berthet, Commandant at the Illinois, to Sieur Lachine, trader at the Ourfatanons, dated Cahos, 20th October, 1747, whereof he sends us a copy. (Page 154. N. Y. Hist CoL, Vol. 10.) Sieur de La Verendrye. March 29. — Sieur de La Verendrye, junr., has returned to Montreal with the Cristinaux and other warriors of his party. In the neighbourhood of Corlac he fell in with a party of Mohawks and Dutchmen, who were coming to Sarastan, on a outing party. He brought two ]VTohawk scalps, among which is that of the principal chief of that nation; one of a Dutchman, and a Dutch prisoner, who reports nothing of in- terest — on' says that there is considerable talk about peace. This first blow on the Mohawks will not fail to frighten them. (Page 167. N. Y. Hist. Col, Vol. 10.) Convoy to Michillimackinac. June 20. — Count de la Galissoniere orders the despatch from Montreal of the convoy for Michillimackinac, under the 246 APPENDIX. command of Lieutenant de St. Vincent. This convoy is well escorted and sufficiently well provided with provisions and merchandise to supply the post abundantly. The (General writes to Lieutenant de St. Pierre, Commandant there, that the convoy was delayed in the hope of receiving news from Michillimackinac, but that the advanced season obliged him to order its dispatch, though he is uninformed of what is passing at that post ; that should the troubles continue, nothing re- mains to be done than to abandon, as already proposed, those posts which are exposed to danger, in order to oblige the guilty to come to Michillimackinac, and even to Montreal, in search of what they want ; that he must exact the surrender of the murderers, and, should circumstances force him, grant peace on the same conditions as those accorded to the Hurons of Detroit, who were to bring two English prisoners for every Frenchman they had killed ; the promises must, lirst of all. be performed, in order that these nations may not betray us, as the Hurons have done. The Greneral leaves this officer at liberty to determine, according to circ mstances, the carrying into execution ^^he different licenses granted for the northern posts, and observes to him, nevertheless, in regard to the West Sea and Nipigon, that in case these posts were ab aidoned, it would be to be feared that the English might irretriewibly mo lopolise the entire of that trade which they now share with sufficient advantage. Demand some Panis, in order to indemnify *he Indians who have surrendered some English prisoners. Ensigns Laronde and Chevalier de La Verendrye have also taken their departure ; the first for Point Chagouamigon, and the second for the West Sea. :|-i J APPENDIX. 247 APPENDIX N. Sir Georfje E. dirtier and Mr. McDougall to Sir F. Rogers. Westminster Palace Hotel, London, January 16, 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 Grranville to transmit to us a copy of a letter which his lordship had received from the Deputy- Chairman of the Hudson's Bay Company, relating to some steps which have been tnken under the authority of the Canadian Government, and from which the Company appre- hend 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 ex- tracts from the letters of Governor McTavish, and have much 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 informa- tion 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 'Vom 12,000 to 15,000 souls, were in imminent danger of star- vation during the winter about to set in. 2. Numerous and earnest appeals for aid had already been made to the Canadian public by writers in the newspapers, and by clergymen and others acquainted with the country. The Right Reverend Robert Machray, Lord Bishop of Ru- pert's Land, a member of the Council of Assiniboia, and so tar a representative of the Company, visited Ottawa, and urged upon members of the Canadian Government the duty of prompt assistance to avert the threatened calamity. ii ) i| ¥' : li ^1 248 APPENDIX. 3. No steps had been taken (so far as the Government could learn) by the Hudson's Bay Company to provide sup- plies, and aware that a few days' delay at that season might render it impossible to get provisions to Red river in time to afford relief, the Canadian Government appropriated the sum of twenty thousand dollars (|20,000) towards the construc- tion of a road from Lake of the Woods to Fort Garry. The Minister of Public Works (one of the undersigned) was di- rected to expend the principal part of this sum in the pur- chase of provisions, which were to be forwarded with all possible despatch to the Red River Settlement, and offered to the settlers, not as alms, but in exchange for their labour on a public work in their own vicinity, and of the highest utility to their settlement. 4. A confidential and experienced agent proceeded at once to St. Paul's, Minnesota, and succeeded in forwarding a con- siderable supply of provisions before the close of navigation. A further quantity had reached Fort Abercrombie, an Ameri- can post in Dakota territory, from which point it can be sent to the settlement early in the spring. 5. Information has reached the undersigned since their arrival in England, that the Government Agent had, in ac- cordance with his instructions, conferred with the local autho- rities on his arrival at Fort Garry ; that he had received their . approval and promise of assistance ; that his timely aid wfs a cause of much joy and thankfulness in the settlement ; and that he had proceeded with a large force of labourers to the limit of the prairie country, some thirty miles from Fort Garry, towards Lake of the Woods, and had there com- menced the construction of the road. 6. The immediate object of the Canadian Government in taking the steps complained of, was to supply food to a starv- ing community about to be imprisoned for six months in the heart of a great wilderness, without roads or means of com- munication with their fellow-subjects, and to supply it in the way most acceptable to a high-spirited people, viz., in ex- '■i \ I . ILiJI APPENDIX. 249 change for their labour. It was thought that even the Hud- son's Bay Company might look with favour upon a public work which, when completed, will prove a valuable protec- tion to those under their government, against similar dangers in the future. On behalf of the Canadian Government, we deny that a " trespass" has been committed, or that our action in this matter was intended to forestall or embarrass negotia- tions, which the Imperial Parliament had directed to be un- dertaken for the transfer of the North-Western territories and Rupert's Land to the Dominion of Canada. The foregoing explanation may perhaps be deemed suffi- cient to enable Earl G-ranville to answer the complaint of the Hudson's Bay Company against the Canadian Government ; but the undersigned beg leave to add one or two observations which, in their opinion, this extraordinary demand for the " intervention of her Majesty's Government," both invites and justifies. If the Hudson's Bay Company, who claim the right to hold and govern the t(;rritory in which the alleged " trespass" has taken place, had performed the first duty of a government towards its people, by providing them with easy means of communication with the outer world, or if they had shown themselves either able or willing to meet the threat- ened calamity by a prompt effort to forward sufficient sup- plies to the settlement before the close of navigation, the Canadian Government would have rested happy in the belief that neither humanity nor public policy required or justified their interference. The assertion of the Deputy-Governor of the Hudson's Bay Company, that the country between Lake of the Woods and Red river is " the freehold territory of ihe Company," and that the so-called " trespass" of the Canadian Govern- ment in sending provisions to the starving settlers, and assist- ing them to make a road for their own convenience and safety hereafter, is " an actual encroachment on the soil of the Com- pany," might, if unnoticed by us, be claimed as another proof or admission of the rights of the Company in that part of the rU 250 APPENDIX. m : i continent. We, therefore, beg to remind his lordship 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 south- ward" of the " boundary line of Hudson's Bay, to the utmost 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 oi the evidence in the case can doubt that it extended to, and included, the country between Lake of the Woods and Red river. The Government of Canada, therefore, does not admit, but, on the contrary, denies, and has always denied, the preten- sions of the Hudson'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, kc, (Signed) Sir Frederic Rogers, Bart., &c., Colonial Oflice. G-. E. Cartier. Wm. McDouoall, '^ffii ;i;j Letler from Sir Stafford H. Northcote to Sir Frederic Rogers, Barf. 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 Com- pany, 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 Com\)any's territory between Fort Garry and the Lake of the Woods. Alter the distinct statement contained in Sir Curtis Lamp- son's letter of the •22nd December, that the Company, while APPENDIX. 251 protesting against a trespass on their land, were prepared favourably to entertain any application for permission to make such a road, either on the part of the Imperial or of the Cana- dian Grovernment, the Committee think it unnecessary (o dis- cuss the greater portion of the letter of the Canadian Minis- ters. Their objection is not to the road being made, but to its being undertaken by the Canadian Government as a mat- ter 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 Cani)d,v, and taken by a Grovernment which openly disputes their title to this portion of them, could not have been allowed to pass unchallenged without derogating from the Company's rights. The Canadian Government themselves seem to have been alive to this. Mr. McTavish states that the agent of that Government (Mr. Snow), on arri- ving at the Red river, communicated to him his instructions Irom the Commissioner of Public Works in Canada, contain- ing the expression of " a hope on the part of the Commis- sioner, that the Company's Agent here would offer no opposi- tion to Mr, vSnow's operations, but would leave the matter en- tirely in the hands of the Imperial Gov«'rnment." Governor McTavish, upon this» very properly allowed Mr. Snow to commence his operations ; and so far as this Company is con- cerned, no impediment 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 circumstances tinder 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 ^ams, both by direct grants and by sub- scriptions 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 ! ' 1 ' P » F ' ^ Ss 1 : fi^ 1 ' B • , 11 J: If 1 ;| h ■V'i ' 'egards any portions of land lying outside those limits I i ^1 1 '1 I ' m ! i ■! 1 ] : I: : f I. 266 APPENDIX. which may possibly be sold, the Committee think it very im- probable that such sales will take place except for mininp purposes, in which case the payment of a shilling per acre could hardly be deemed excessive. 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 favourable 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 Com- mittee were willing to confine their claim lor reserves to the limits defined by Sir Edmund Head's letter of the 11th No- vember, 186B ; that they were prepared to 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 arrangement 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 them entirely A'^alueless, 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 in proportion to the quantities sold from time to time by the Government, the Committee desire to call Lord Granville's attention to the reasons given in Sir E. Head's letter of the 13th April, 1864, for adopting this mode of reservation in pre- ference to that of " setting apart beforehand a number oi 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 I a* APPENDIX. 257 to sales in the fertile belt only, and it never entered into their minds to contemplate such contingencies as those suggested by- Mr. Adderley's letter. In order, however to obviate all cavil upon this point, they would have been quite willing to limit the Company'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 honajide carrying on of agricultural or mining operations. As regards Mr. Adderley's proposal that the right of selection should be conhned to live 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 terri- tory 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 1 3th May, viz., that until the stipulated sum of ill, 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 greatimport- ance. If it had been proposed by the Canadian Grovernment to make a direct purchase of the Company'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 G-overnment have sold otf 20,- s ]\r ■m i 2r)8 APPENDIX. " ^^1 li 000,000 acres ol' lh<» land, or have realized a considerable? sum by the produce ol' mining- operations, it is reasoiialile that the pressure ol" the iiscal burdens, which would I'all almost ex- clusively upon the Comi)any's trade, should be suspended also. ()therwise it might happen that, in consequence ol" the neglect or the inabihty olthe Canadian Government to pro- ceed with the settlement oi' the territory, the Company would be subjected to very heavy contributions to the colonial treasury without receiving the smallest benefit in return. As an illustration oi' the extent to which they might thus be in- jured were no limitation placed upon the colonial power ol' titxation, I may observe that, according to the present Canadian tariii, the duty upon the value oi" the Company's imjwrts alone would amount to aV)uut £20,000 a-yeav, while any export duty tliat might be laid upon their furs would operate still further to th,>ir disadvantage, The Committee feel confident that Lord Granville will acknowledge the reasonableness of their taking precautions against such a contingency. The Committee have desired me to oiler to Lord Granville these explanations of their proposals, in order to show that they have done their best to comply with the desire of her Majesty s Government, that they should submit a scheme founded on the principles of the negotifitions of 1 804. They have not, however, failed to perceive Irom an early period of the lengthened correspondence which has taken place between them and the Government, that those principles necessarily gave rise to many dilKciilties ; and they have felt this the more strongly since the negotiations originally commenced between the Company and Her Majesty's Government have virtually become negotiations between the Company and the Govern- ment of Canada. They cannot disguise from themselves the danger which exists that arrangements so complicated, and involving so many topics for future discussion, are likely to lead to the Company's being placed in a position of antagonism to the Government of ( anada, and to the creation of a state ot things injurious not only to their own interests but to the APPENDIX. 2.->9 wdt'are of the country itself. They are sincerely anxious to co-operate with th^ Canadian Government in the settlement, (It'Vflopment and imi)ro\'ement oi' the territories with which they have been so long connected, and they believe that, if the arrangement between them can be placed on a satisfactory footing, it will be in their power to render material assistance to the Colonial authorities in this respect. They bc^lieve that, if a simpler arrangement than that which has recently been under discussion could be adopted, and if the Canadian Crovernment were prepared to complete the purchase of the territory at once, by the payment of a sum of money or by the delivery of bonds, it would conduce to a more satisfactory result than the prolongation of a controversy as to the minute points of such a scheme as has been under consideration. Should Lord Granville be of this opinion, and should his Lordship think it desirable to recommend any proposal of tin- kind to the Canadian Delegates, this Committee will gladly place themselves in fuller communication with him on the subject. I have, le princi- ples which have uniformly governed the British Crown in its dealings with the aborigines. The above were the oidy terms and conditions which, in the opinion of the (*anadian Parliament, it was expedient to insert in the Order in Council, authorised by the 146th section. His Grrace the Duke of Buckingham and Chandos, on rt- ceiving the address of the Canadian Parliament, consulted the law otiicers of the C rown, who advised, among other things, " that there would be much difficidty created by the existence of the charter" of *\\e Hudson Bay Company, to " putting into execution the powers of the 140th (146th) section ol' the British America Act, 1867, assuming that the Hudson's Bay Company were adverse to the union." A bill was thereupon carried through the Imperial Parlia- ment, apparently to remove the " difficulties " which the law officers had discovered. It reverses the o^der of procedure contemplated by the Act of 1867, and observed by the Cana- dian Parliament in its address, and makes the assent of the Company a condition precedent to the transfer. The Canadian Crovernment were not consulted as to the terms of this Act ; they could not understaijd why it was necessary, and greaty doubted the expediency of passing it. The Puke of Buckingham and Chandos, having opened necfotiatics 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 underwgned, duly commissioned lor that piirjwse, repaired to London in October last, and had frequent interviews with his Grace before his retirement from office. The proposals submitted to the Company by the late Govern- ment 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 APPENDIX. 26S accepted them, the Canadian 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 pro- posed by the late (jrovernment, but sugg-est a new and sum- raai method of closing the negotiations, by demanding that th*' Canadian G-overnment .should, by a payment in cash or bonds, " complete the purchase of the territory at once." No sum is mentioned, and no data given from which it can be inferi .'d. Lender tliese circumstances, we are asked, us repre- sentatives of the Canadian (lovernment, to communicate to Earl Granville any observations we may wish to offer on this reply .md proposition of the Company. Hib Lordship will readily perceive from the foregoing recital, that, as representatives of the Canadian (xovernment, we arc 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, respoiisible for its initiation and bound by its results. Without undertaking, therefore, that our views on every point will be approved by the Canadian Cxovernment, we proceed most respectfully to offer a few observations on 8ir Stafford Northcute's reply to the recent proposals of the Im- perial Govermnenf. It will be observed that two things are assumed in these proposals to the Company, which the Canadian G-overnme)it 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. •Jnd. That Rupert's Land includes the .so-called " Fertile Belt,'' extending from the Lake of the Woods to the Rocky Mountains. The law officers of the Crown in England have, on two or three occasions, given their opinion in favour of the Hrst assumption, but never, so far as we are aware, in favour of the p'' III r ! 1 'L...; l\ 264 APPENDIX. I second. The report of the law officers in 1857 admits that the geographical extent of the territory granted must he de- termined hy excluding the country that " could have been rightfully claimed hy the French as falling within the bound- aries of Canada," (which the Charter itself excludes by express words), and states that "the assertion of ownership on im- portant public occasions, as at the treaties of Ryswick and Utrecht," should be consit'ered; and also "the effect of the Acts of 1774 and 1791." The most recent opinion of the law ollicers of the Crown which we have seen (January 6th, 1868). as to the rights of the iT.udson'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 Ru|jert's Land with Canada is effected, that the true limits of the territory and possessions held under the charter should be accurately defined.' An assump- tion, therefore, which covers so much ground, and is unsup- ported by any competent legal authority : which ignores thf repeated protests and claims of Canada, and seeks to supply ii basis upon which a surrender lor 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 l)efore remarking on Sir Stafford Northcote's reply, to prevent the possible inference that we have acquiesced in them. Sir Stafford Northcote assures Lord llranville that the Com- pany " continues sincerely anxious to promote the object with a view to which the Company was re-constructed five and a-half years 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 cours*' ol'olHcial inquiries during the last fifty years, that their territorit^s (in which they included the Red river and the Saskatchawan districts) are totally unlit for colonization. The 'wc^ APPENDIX. 265 evidence of Sir G-eorge vSimpson before the House of Commons Committe of 1857, is a fair sample of the views heretofore entertained and avowed by the representatives of the Com- pany. {Vide Commons Repor', 1857 ; Questions 716, 717, 71is. 719, &c.) Mr. Ellice, for many years the ruling spirit of the Company, declared before the same committee that the Red river settlement w^as an " unwise speculation," and " had failed ; " that " the climate is not favourable ; " that the Saskatch- awan is a country capable of settlement only when " the popu- lation of America becomes so dense that they are forced into situations less fit for settlement than those they occupy now;" that the winters are "rigorous," and the country '"badly ofl" tor fuel," &;c. (Questions 5,840 and 5,847). With such views of the unti'uess of the country for settle- ment, and avowing their belief hat colonization and the fur- trade could not exist together, it is not surprising that the Company have always cherished the latter, which was profit- able, and disvouraged, and, as far as possible, prevented the tbrmer, which had proved an •' unwise speculation." It is true that the Company was " re-con str noted" in 1868, with loud promises of a new policy. A great road across the conti- nent was to be made, a telegraph line was to bt> put up, and Immigration 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 gt^ntlemen who effected the re-construction, that he wrote despatches to the Canadian Government on their behalf, and evidently believed that i new era was about to open in the North-West, and the wild animals and fur traders retreat h.'fore the march of "European settlers. The stock of thf old Company, worth in the murket about i;i,000,000, was bought up, and by some process which we are unable to des- cribe, became ^£2,000,000. A show of anxiety to open postal and telegraphic communication was made, and " heads of proposals " were submitted to the Governments of Canada and British Columbia, which on examination were found to r;r' 266 APPKNDIX. w 9 attf 3 I 'i J' ft. I; embrace a line of telegraph only, with the modest suggestion that the two (xovernments should guarantee 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 accordingly. The surplus capital of the re-constructed Company, which was called up for 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 purpose. 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 made. Sir t^tatfbrd Northcote was not probably aware, when he vouched for the bona jido^ 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 reason stated, to concur in Sir Stafford Northcote's assurance that the Hudson's Bay Company are anxious to promote colonization, we are gratilied to learn that they "adhere" to tfie resolution of 28th August, 1868, that 1 he time has come when it is expedient that " the authority executive and jtidieial over the Red fiiver Settlement and the South- Western portion of Rupert's Land, should be vested in otHcers deriving such authority directly from the Crown." The lirst remark w^e have to make upon this reference to the resolution of 1863 is, thtit it admits the conthiued incapa- city of the Company as a ii;overtiing power ; the second, that if this was true in 1868, — if at that time it became 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 of government which their Charter imposes, and which they admit they do not and caimot properly discharge, compensation should be made, net to the Company, as is claimed, but by the Comi)any to those who take the burden off their shoulders. «%« APPENDIX. 2(3- We confess we have tailed to discover any evidence, nnil therefore cannot believe, that the Company have "cheerfully " accepted the decision of her Majesty's Government, " thnt the whole of the Company's territory should, under proper conditions, be united with Canada." A brief notice of the i/cts in contrast with the professions of the Company, will, we think, accomt for the ill success of our researches and justify onr incredulity. The representatives of the Company, while declaring before the House of Commons Committee in ISnT (as we h; ve already shown) that their territories were " im/it for settlement," pro- fessed their readiness to surrender any portion of them that might be desired by the Imperial or Canadian Government for that purpose. Mr. Ellice decl.ired in the most unqualified terms, not only that the Company was willing- to surrender, but that it wns the duty of the Government to see that no mere trading cor- poration obstructed " for one moment." nor to the extent of • one acre of land fit for settlement," the " dominion of the actual settlers " (Commons lli'port, 1857 ; questions -5,859, 5,860 and 5,983) The Governor of the Company informed the Colonial kSecre- tary (18th July, 1857,) that any inquiry into the "geographical extent of the territory granted by their Charter." which the law otKcers had recommended, was of little importance, be- ( ause, 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 he 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 Com- mittee, that the question of boundary was 'of no importance •it all," because " if the province of Canada requires any part of the territory, or the whole of it, for purposes of settlement, 3i )5 f I E'V^^ "-^ H 268 APPENDIX. ■'i ^ i % 1,1 B '1 ; ii 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 i.idemnify the Hudson's Bay Company for any claim which they could have on giving up any dis- puted part of their territory." These assurances induced the Committee to negative pro- positions 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 oi local administration." The Committee "trusted that there w^ould be no difficulty in effecting arrangements as between he: Majesty's Government and the Hudson's Bay Company for ceding the territory on equitable principles." It may be proper to remind Earl Grranville, 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 the representatives imported, strongly opposed the recommendation to leave the question open for "amicable ad- justment " upon " equitable principles," with the certainty of protracted negotiations and a chance of ultimate disagreement. Mr. Gladstone accordingly submitted resolutions for a prompt and definite settlement of the whole question. He proposed — 1st. " That the country capable of colonization should be withdrawn from the jurisdiction oi the Hudson's Bay Con?- pany." 2nd. " That the country incapable of colonization should re- main within their jurisdiction." He proposed that in the country remaining within their jurisdiction power should be reserved to her Majesty'-^ Gov- ernment to make grants " for the purposes of mines and fisheries, but with due regard to the immunities and trade of the company." No "immunities" were even suggested APPENDIX 269 with respect to the country which was to be withdrawn for colonization. He proposed to ignore the Charter, by declarino- 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 wilUngness of the Company to accept in principle the arrangement" he pro- posed, 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 viev/ of ascertaining the legal rights of the Company." The propositions of Mr. Grladstone 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 moment, has attempted to carry out the recommendation of the Com- mittee, with the assent of 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 (Lord Lytton) characterised the offers of the Company during his administration as " illusory,"' and declared that they " by no means met the exigencies of the case." He expressed his regret at a determination on their part 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 recommeded) it would be his duty to consider whether negotiations with the Company can be resumed or whether in the last resort her Majesty's Grovernment must take the matter into their own hands and proceed on their own account." (Mr. Merivale's letter to H. H. Berens, 9th March, 1859.) Sir Edward remained in office long enough to put an end to the Company's license of exclusive trade in British Columbia and the Indian territories, but not long enough to carry out his policy of " coimecting the two sides of British ili F W? f*f 1 1 i ( 1 1 ^ 4 .9 ; 1 I V •'F \ 270 APPENDIX. North America without the obstacle interposed by a proprie- tary jurisdiction between them." The Duke of Newcastle opened negotiations with the Com- pany in 1 803-4 with much vij^our. But after various propo- sals and counter-proposals, includin;^ the " reconstruction" ol the Company, he was obliged to treat their proi)Ositions as " inadmissible." Mr. Cardwell, during his administration, could not accept their proposals " without considerable modilications." The Duke of Euckiuuham, after many discussions with the representatives of the Company, regretted to perceive that their jiroposals " did not afford much prospect of an arrange- ment 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 terms demanded by the Company. Our notice of what, in Sir Stafford Northcote's opinion, constitut(^s a " cheerful" acceptance of the decision of her Majesty's Government, would be incomplete, if we did not remind Earl U-ranville that the Company's " proper condi- tions" for the surrender of that portion of the North- Western territories, for which they can show no title but such as may be aerived from the possession of a few trading posts, estab- lished there within the last fifty years, 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 the subject" (House ot Commons lleport. Question 5,834), to the retention, in 1868. in fee-simple, of half the land proposed to be surrendered, 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 1864, these conditions took the form of a demand, first, to be paid -£l,()')0,O00 sterling, from sales of lands and mines, with large reservations " to be selected by them," &c. ; and, secondly, to be paid .€1,000,000 sterling in cash, with other terms and reservations favourable to the -Company. A.1'PKM)1X. 271 In 1868, thoso conditions ibr the .surrender oi' territorial and cfovcrninii' riparently merged iu one grand proposition to sell out " the territory at once for a sum of monev," in cash or bonds, the amount of which JK not stated. We content ourselves under this head with the observation, that whatever others may be able to see in all these transac- tions, we are utterly unable to discover either a cheerful acceptance of the decision of any Ciovernment, or an honest dis- position to fullil the solemn pledges made to Parliament in 1857, on the faith of which the Company was unquestionably saved from judicial or legislative extinction. Sir Statibrd Northcote claims credit Jbr the Company be- cause 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 with a view to their colonization." Our information is (and we can give Earl Granville names and dates, if the point is deemed of any im- portance) that the only '• overtures' of the kind mentioned which the Company have received, were not merely ' encou- raged," but siiggested and concocted by prominent members of the Company, for the purpose of protlucing an impression on the Grovernment, and with a view, not to colonization, but to negotiation and tlie Stock Market. We are not sure that we understand the statement of Sir Stafford Northcote that the Company " have taken no step which would give rise to fresh complications or place any now difficulty in the way of the admission of their territory into the Confederation." The sale of land to private parties |i| •11 IMAGE EVALUATION TEST TARGET (MT-3) /. {/ / /* ^ %> Si i/x V. 1.0 I.I 1.25 3^; |2 8 1^ 18 14 11.6 6" — P / <^ /a 4;^J- c^^ *» A /^ '/ >!^ Photographic Sciences Corporation 33 WEST ...AIN STREET WEBSTER, i4Y )4SB0 (716) 87J-4503 m. 4^ iV \ \ ^9) V 6"^ '-C' <^ '^^ '^\%,<^ ^0 WJx % . ^O ^> 272 APPENDIX. %!■ 'i for colonization (assuming that bona fide offers have been re- ceived from such parties) could not give rise to much compli- cation, except in the affairs of the Company. If Sir Stafford hints at the negociations which were lately reported to be going on with certain American speculators in London for de- nationalizing and Americanizing the Company with a view to the " admission of thoir territory" into the United States, in- stead of the Confederation, we respectfully submit that while such a difficulty might indeed be " new," the proper person to solve it would be ^ler Majesty's Attorney-General, with the aid of a court and jury of competent jurisdiction. We do not undt li tand that Earl Granville expects us to de- fend in detail the L*uke of Buckingham's proposals, or to answer all the objections made to them by Sir Stafford North- cote. The Government of Canada, as we have already re- minded his lordship, neither suggested the Act of Parliament nor the terms of the negotiation, which the late Secretary ot State for the Colonies attempted to carry out under its au- thority. The Canadian plan of dealing with the question ol the North-Western Territory and Rupert's Land, is set forth in the address of the Canadian Parliament to her Most Gra- cious Majesty, and we do not feel at liberty, as representa- tives, 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 con- duce to a more satisfactory result, is, we believe, the point upon which Earl Granville specially desires to have onr views. Assuming that by " territory," he means the wfwie territory to which the Company 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 Kimbei- ley, we have to observe : 1. This proposition involves an abandonment of the priti- I' 1^1 APPENDIX. 273 ciple which two Secretaries of State (and it must be presumed, two successive administrations) declared, after much conside- ration, and in view of the transactions of 1857, was properly and justly applicable to this case, viz. : That the compensa- tion should be derived from the future revenue of the terri- tory itself, and payable only as it came into the hands of Gro- vernment. 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 fix- ing a money value upon the territorial rights of the Company " in the British territory east of the Rocky Mountains, and north of the American and Canadian lines,'" and of extin- guishing those rights by a payment " at once," was sugges- ted, in 1865, by a delegation from the Canadian Government of that day, and assented to by Mr. Cardweil, then Secretary of State for the Colonies, and his colleagues. If the latter principle and mode of settlement is now to be adopted, it is obvious that the Krst question is. What is the nature of these " rights," and what territories do they affect ? and the second, What are the rights, separated from the du- ties and burdens attached to them by the Charter, fairly worth { 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 t?ssential ele- ments in any calculation which may be attemi)ted 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 Ameri'^a which was not then (1070) subject to the Crown of England. 2. The Charter expressly excluded all lands, &c , then " possessed by the subjects of any other Christian prnice or State." 3. By the treaty of St.-Germains-en-Laye (1632), the King T r ii; 274 APPENDIX of England resigned to the King of France the sovereignty of Acadia, New France and Canada generally, and without limits. 4. " La Nouvelle France " was then understood to include the whole region of Hudson's Bay, as the maps and histories of the time, English and French, abundantly prove. 5. At the Treaty of Ryswick (1697), 27 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 commissioners were appointed (but never came to an agree- ment) to " examine and determine the pretensions which either of the said Kings hath to the places situate in the Hudson's Bay," and with "authority for settling the limits and confines 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, established in Hud- son'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 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 ol 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 French in the interior and the Eng- lish 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 APPENDIX. 275 jlong tween Eng- when ent of )d, say ds the ary. that ►untry known as the Winnepeg 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 Winnepeg, until many years after the cession of Canada to England. y. 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 ex- cluded 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 Grranville 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 ol law, or justice, or public policy, with which we are acquainted, to estimate the amount which ouglit to be paid under such cir- cumstances. The only basis of computation we can discover, applicable to such a case, is the cosloU the legal proceedings, 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 conii)elled to bring an action. He is artful, stubborn, wealthy and inlhiential. 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 save yourself the cost and trouble of a law suit? Compro- mises of this kind are not unknown in private life, and the motives and calculations which govern them may be applica- ble to the present case. We recommend this mode of comput- ing the amount of the payment to be made for the surrender of the North-West territory, as distinguished from Rupert's Land, with ail the more confidence, because it has already 276 APPENDIX. !' r •j! been suggested by one of the ablest and most trusted of the repre- sentatives of the Company. (Videe\'idence of Right Honourable E. Ellice, House of Commons Report, 1857, question 5,834.) With respect to Rupert's Land, or the " lands and territories,' " upon the coasts and confines of the seas, bays," &c., that lie •'within the entrance of the straits commonly called Hudson's Straits'' " not possessed by the subjects of any other Christian prince oi state," a different rule, we admit, may be held to apply. Giving to the words of grant the widest construction, territorially, that could posssibly be admitted by any judicial body with the facts ol' the case in evidence before it, or, giving to these words the construction which the Company them- selves applied for a hundred years from the date of their Charter, the " rights " they propose to sell are of little commer- cial value. No revenue, we feel assured, will ever be derived from them. The fur trade is the only industry the country off'ers as a source of profit, and this, if we rightly understand Sir Stafford Northcote's suggestion, the Company wish to retain. It has never been alleged, even by the most sanguine advo- cates 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 ob- struct the ])rogress of Imperial and Colonial policy, and put in jeopardy the sovereign rights of the Crown over one-third (and as some think, even a larger portion) of the North Ameri- can Continent. "What is it worth to have this obstruction quielhj removed ?" This is perhaps the true question ; but the answer, we submit, belongs rather to Her Maj esty 's Government — which has the power, in the event of resistance, to remove irable APPENDIX. 277 the evil by a summary process — than to those who are little more than spectators of the negotiation. Earl G-ranviile is aware that several attempts have been made since 1857 to arrive at a definite agreement on the sub> ject 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 deek I 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 compensati-/n 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 r f the country west of Lake Winne- peg was il250,000. But the payment was subject to the follow- ing conditions : — 1. X 150,000 was to be derived from the sale of lands by Government within the territory. The payment was to be made at the rate of Is. per acre sold, but to be entirely de- pendent on the Government's receipts. 2. Payments were to cease whenever they reached X150,- 000 ; and absolutely at the end of fifty years. 3. The Company was to be paid one-fourth of the sum received by 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 jG 100,000. 4. The payment of any part of the iJ250,000 was contingent on the ability of the Company to place Her Majesty's Govern- ment 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 con- dition into a stipulation that, in case it should be found 278 APPENDIX. ra'1 i til. advisable, the territory eastward of a line passing through Lake Winnepeg 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 the conditions and contingencies specified, would be very difficult to ascertain. The revenue from export duty on gold and for licenses would probably be nil. The revenue from land sales, if the costs of surveys, mai'igement, and necessary roads were deducted, would be nil also. It is very doubtful whether, if these deductions be made, the re\ enue from land sales in the provinces of Canada from the cession in 1763 to the present time would show a surplus. Sir Stafford Northcote quotes the price of land in Minnesota, and thenceinfers the value of li.ndsin theRedHiverandSuskat- chawan districts, which lie from five to ten degrees further north, and are still in the possession of the wild Indians of the plain. But we think it will be found that the lands in Min- nesota, which sell for "one pound per acre," are either private landsiii the neiffhbourhood of towns, or the property of railway companies, on or near which millions of dollars have been expended to make them saleal)le. They are certsiinly not public lands unimproved by public expenditure. Sir Stafford ought to have mentioned at the same time a fact, which we believe is known to every emigrant who leaves the British Isles for America, that in the Western States of the Union, and in the Provinces of Canada, wild lands are now given to settlers as "free grants,'' and we may add, this policy is more likely to be extended than reversed. To talk of the value of public lands as a source of revenue, distant from one to two thousand niilcs from available markets, and without roads or navigable waters by which to approach them, is to contradict all experience, or to assume that the cost of surveys and man- agement, and of canals, roads, or other improvements for their development and settlement, will be supplied by those who do not own them, for the benefit of those who do. APPENDIX. 279 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 piiid within 50 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 iJ5,000 per annum for fifty years 1 That value, we submit, is the highest amount in cash which can be claimed as an equivalent for the offer made to the Com- pany in 18t34 by his Grace 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 Buck- ingham and Chandos, on the 1st December last. It differs Irom the previous offer in several important particulars. 1. It embraces the whole of the territory claimed by the Company. 2. It proposes to allow the Company to retain their "posts" and certain allotments of lands 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 Is. per acre), and one quarter of the sum received by Government as an export duty for gold and silver. 4. It limits th'; amount to be received under these heads conjointly, at iJ 1,000,000 sterling. The other stipulations are unimportant for the purpose of ascertaining the cash equivalent 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 jmyportion 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 Is. per acre, and it is doubtful if, under the proposed arrangement, the price would ever be found to exceed that sum. There is one term still to be ascer- 280 APPENDIX. '% # tained — the average number of acres per annum likely to be sold and jo^ranted. A crude guess is all that thu case admits of. If we 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 22 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, &c., is maintained in the North-West Territories (which all the old Hudson Bay authorities who know the country would pronounce a bold assumption), we have reduced the question to a simple refer- ence to the annuity tables as before, viz., What is the present value of an annuity of £3,575 per annum for 280 years ? We have omitted from the last term the one-fourth of the Government receipts from gold and silver, for two reason.*'. 1st, It has not been shewn that there are gold or .silver mines in the territory, that will pay for working. 2nd, All tho attempts heretofore made to obtain a revenue from such sources in Canada have failed, and public opinion has forced the local governments to adopt the policy of what may be called " free mining," or cheap lands for the miners, and aboli- tion of royalties and imposts, except to meet the cost of pre- serving the peace, and of surveys and necessary supervision There is another projwsition on the Clovernnunt side, which bears on the question of "compensation." It results from the agreement between the representatives of the (Jo- vernment of Canada, and Her Majesty's Government in \M5. and containing fewer elements of uncertainty than i*iopt)sitions which involve questions of Government policy, emigration. land sales, &c. ; it can be reduced to a cash value with greater exactitude. Mr. Card well describes the agreement as follows : — "On the fourth point, the subject of the North-Western Territory, the Canadian Ministers desired that that territory should be made over to Canjida, and undertook to negotiate with the APPENDIX. ni 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. With the sanction of the Cabinet, we assented to this proposal — undertaking, that if the negotiation should be successful, we on the part of the Crown, being satisfied that the amount of the indemnity was reasonable, and the security sutticient, would apply] to the Imi^erial Parliament to sanction the agreement, and to guarantee the amount." The Canadian delegates reported on the subject with a little more detail. " We accordingly proposed to the Impe- rial Ministers that the whole British territory east of the Kocky Mountains, and north of the American or ( 'anudian 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 compensation to that Company (if any were found to be due) should be met by a loan guaranteed by Great Britain. The Imperial Government consented to this, and a careful in- vestigation 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 Com- pany ; 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 in- cluded in our arrangement, 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 £\,(\'2'>^,iy^^U. The value of the territorial 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 Go- vernments 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 282 APPENDIX. 11(1^; due," import that, in the opinion of lx)th parties, it was pes sibic, il" not probablo, that aitor makinju^ the deductions, no compensation would be " due ' The basis of the calculation which seems to have been made, or aa^reed upon, is very simple. The old Hudson Iky Company had recently sold all the rii^hts and property of the Company, of every description, for the sum of X 1,500,000. An inventory, ajjrreed to by both sellers and purcha.sers, sot down th(^ assets, exclusive of " Territorial Hij^hts," as loUows : " 1. The assets (exclusive of Nos. 2 and 3) of the Hudson's IJay Company, recently and specially valued by comi>etent valuers, Xl,023,56'' " 2. The landed territory (not valued) " 3. A cash balance of i;37O,000 je 1,393,569" On the face of their own statement, <£!, 500,000 less the above sum, or jG 106,431, was the amount which the new purchasers actually paid lor the " Landed Territory." Under the ai^ree- nient of 1H65, this seems to be the highest sum which Mr. Card well and the representatives of the Canadian Govern- ment thought could ill any event be demanded by the Com- pany 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 otfers made to the Company since 1857 by the Imperial Government, and to ascertain the amount of the indemnity contemplated by Mr. Cardwell and the Canadian delegates in the arrongements of 1865. To arrive at any re- sult, we have had to assume iigures 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 w^e believe would have imposed considerable expense upon the Company. APPENDIX. 288 There in another mode of estimatincf the amount to bo paid, on the principle of compensating lor actual loss only, which remains to be con8idereeen quoted at an average of l.S J. The capital is, nominally, je2,000,000, 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 .€1,850,000, or i:+3,r)(>!> less than the value, according to their own estimate, in 1803, of the Company's assets, pnhisive of the • landed territory." The money obtained Irom th i»ublic lor shares, beyond the jCI, 500,000 paid to the old .shar-'liolders, will no doubt be amply sulficient to make good a^ deliciency in the valuation of 1803. From a coii^iueration of these dati, we submit tb;it, .i' the validit; if the Charter is not now to be questioned ; if the territorial extent of the country affected by it is not to be de- lined ; if the claim of Canada to include within her bounda- ries a large portion, if not the whole, of the country occupied by the French at the time of the cession ui 1703, is not to be investigated, and finally detennined ; if the admitted incapa- city and the notorious n«^glect of the Company to perform the duties of government (which were part of the consideration for the riijhls conceded by the Charter), are not to be taken as sufficient on public grounds to justify cancellation, and re- entry by the Crown — then the very highest indemnity which ought to be paid, in cash, for a surrender of the territorial claims of the Company, with the reservations and other privi- leges offered by His Grace the Duke of Buckingham and C'handos, is the sum indicated by the foregoing computations. We must, in conclusion, express to Earl Granville our strong conviction that no money offer, which either the Impe- rial or the Canadian Government would deem reasonable, will be accepted by the Company, and that to delay the orga- nization of constitutional government in the North-West Territory until the Hudson's Bay Company consent to reason- able terms of surrender, is to hinder the success of Confede- tii M^ ! i. :ll i 4 ;* t'l i;f !. '1 284 APPENDIX. ration in British America, and to imperii the interests and au- thority of the British Crown in the territories now occupied by the Company. We therefore respectfully feubmit for Earl Granville's con- sideration, whether it is not expedient that the Address of the Canadian Parliament be at once acted upon, under the autho- rity of the Imperial Act of 1807. But, if his Lordship should see any sufficient legal or other objection to that course, then we ask, on behalf of the Domin- ion Goveriiment, for the immediate transfer to that G-overu- ment of the " North-West Territory," or all that part of Brit- ish North America, from Canada on the east, to British Colum- bia, Alaska, and the Arctic Ocean, on the west and north, not heretofore validly granted to and now held by " The Gover- nor and Company of Adventurers of England trading into Hudson's Bay,'' by virtue of a Charter of King Charles the Second, issued about the year 1670. We have the honour to be, Sir, Your obedient servants, (Signed) Geu. Et. Cartier. Wm. MacDougall. Sir Frederic Rogers, Bart., &c., Colonial Office. Arn^NDlX O. Extract from Vol. I., Pownall's Manuscripts, "Tuadk" (Page 64). A Deduction of the Right and Title of the Crown of Great Britain and therein, of Our Most Gracious Sovereign Lady, Queen Anne, to all the streights, bays, seas, riA'^ers, lakes, creeks, islands, shores, lands, territories and places whatso- ever within Hudson's Streights and Hudson's Bay, and of the right and property of the Hudson's Bay Company, de- rived from the Impeiiivl Crown of Great Britain by letters- w APPENDIX. 285 patent of incorporation, and a free grant of all the premises from King Charles ye Second, Ao. 1670. That Hudson's Bay (with all that belongs thereto, within Hudson's Streights, in North America), was first discoverpd by Sr. Sebastian Cabbat, Grrand Pilot to King Henry the Seventh, who gave English names to several places of the said Bay. Sr. Martin Furbisher. in Queen Elizabeth's time, made three voyages to the said Bay in 1576, 1577 and 1678, and gave Enghsh names to several places there. Captain Davis made three voyages thither in the year 1585, 1587 and 1588, and gave English names to several parts of the said Bay. Henry Hudson, an Englishman, sailed to the Streights and Bay, from him called Hudson's Streights and Hudson's Bay, and keeps that denomination to this day in all the authentic maps in ye world, and even in the maps of the best geog- raphery of France. The said Hudson stayed a whole winter there, took possession thereof in the name of the King of England, traded with the salvages, and gave names to several other parts of the Streights and Bay. Sir Thomas Button pursued the discovery and possessions of the aforesaid Hudson, sailed into the Streights and Bay with two ships, and particularly into Port Nelson, where he wintered, and buried the commander of his ship there, in memory of whom he gave it the name of Port Nelson, and called that particular bay Button's Bay (as it is still called in ^he maps), took possession thereof in the name of his master. King James the First, and gave several other English names to other places in the Bay, and erected a cross there, declaring thereon the right of the Crown of England. Captain Luke Fox, by command of Kii j Charles the First, made a voyage to Hudson's Bay, and amongst other places entered Port Nelson, and finding there the cross erected by Sir William Button, with the inscription defaced, and almost worn-out, he erected it again with a new inscription, declar- If -r^ . 286 APPENDIX. I i! 'i III L ':!! '. ing the right and possession of his then Majesty King Charles the First, named the adjacent country New North Wales, and published a Journal of his voyage. Note. — That the troubles and civil wars which soon after broke out in England, might be one principal cause why those voyages were not prose- cuted, trade in general then failing, and navigation and discoverys v> anting the encouragement of the Government — till after the Restoration of King Charles the Second. Yet it is observable that all that while (lor so many years) that those places and countries lay neglected and unfrequented of the navigation or commerce of any European nation. The French do not in the least pretend to have then visited those parts, to have formed a possession, or attempted any commerce with any people upon those coasts, nor do they pretend that ever any French vessel sailed Hudson's tStreights or Hudson's Buy till of late years. It was, thou, after the happy Restoration of King Charles the Second, that trad'^ and commerce began to revive, and in particular that from noblemen and other public-spirited Eng- lishmen, not unmindful of the discovery and right of the Crown of P]ngland to those parts in America, designed at their own charge to adventure the establishing of a regular and constant trade to Hudson's Bay, and to settle forts and factories, whereby to invite the Indian nations (who lived like savages, many hundred leagues up ih the country), down to their factories, for a constant and yearly intercourse of trade, which was never attempted by such settlements, and to reside in that inhospitable country, before the aforesaid English Adventurers undertook the same. Wherefore, after a long time of consultation, and the neces- sary preparations for so great a charge, in the year 1667, one Zachary Grilham was provided of a ship and goods in London, sailed through Hudson's Bay to the bottom of the Bay, settled a trade, and built a fort there, which he called Charles Fort, on a river which he named Rupert's River, in honour to Prince Rupert, who was pleased to be concerned with, and APPENDIX. 287 [•ts and was one of those Adventurers ; in which place the Hudson's Bay Company continued a trade, and had there a factory, until the same was unjustly taken from them by the French, in time of peace. Another voyage was undertaken by the same Adventurers, and one Captain Newland was sent, who entered Port Nel- son, settled there, and anew declared right and title of his Majesty to that river and the countrys adjacent, and there fixed up his Majesty's Arms, as a mark of his sovereignty over the said places. After the charge of those voyages, and the experience by these settlements, that a great trade might be brought to Eng- land by beavers, i'urs and other commodities, for the just en- couragement of so good and public a benefit, and the persons that had laboured in it, his then Majesty King Charles the Second was graciously pleased, in the year 1070, according to the undoubted and inherent right of His Imperial Crown of England, by his Royal letters-patent to incorporate the said Adventurers, and to grant unto His Highness Prince Rupert, the Duke of Albemarle, Earl of Craven, Lord Arlington, Lord Ashley and divers others and their successors for ever, all the lands and territories aforesaid, to be reckoned and re- puted as one of His Majesty's plantations and colonies in America, by the name of Rupert's Land, and further, to create and constitute them and their successors the true and absolute lords and proprietors of the so^ne ; and of all the territories, limits and places thereto belonging, to have, hold, possess and enjoy the same for ever, as of His Majesty's manner of East G-reenwich, in free and common soccage, &c. In the same year the Company so incorporated sent out one Charles Baily as Governor of their factories and settlements in the Bay, with whom Monsieur Frontenac, then Governor of Canada, by letters and otherwise, entertained a good corres- pondence, not in the least complaining in several years of any pretended injury done to the French, by the said Companies settling a trade and building of Forts at the bottom of the Bay- 'F. II II l\ 1 288 APPENDIX. The said Charles Baily (as the Company's G-overnor) sent a ship from the bottom of the Bay, called the Imploy, to Port Nelson, to settle a trade there with the natives. As did also Captain Draper, with the ship Albemarle. But after about 15 years' labour and charge, continual voyages, Factorys and Settlements, and the trade with the natives established ; the French began to annoy this new and growing Trade, and thought it worth their while to study some pretences to invade and rob the English, and to deprive them of some part of the said country. When the English Company were building a Fort and settling a Trade at Port Nelson,the French, having formed a private ex- pedition at Quebec, inCanada, by confederacy of one La Chana\ . and other private persons, came suddenly with two ships into the said river of Port Nelson, and with a stronger force sur- prised the said Company's men, and dispossessed them of the'" place and settlement, carried them prisoners to Canada. and pretended to settle a Trade there themselves ; but this was the first time that ever the French did sail a vessel into the Hudson's Bay since the beginning of the world. This was a piratical expedition, and the authors of it were prosecuted as such, by frequent memorials from hence at the Court of France. where the same was disowned by His most Christian Majesty. and satisfaction promised by him accordingly. But as the French seldom want assurance for their preten- sions or claim to anything for their advantage ; so they never fail of artihce or force (when they can) to back such their pretences ; and when by violence, rapine and murder, they got themselves into an unjust possession, as aforesaid, then they pretended to expostulate all by a treaty, (as if they were upon an even foot with the right possessor,) and they seconded this injurious in^ asion and assault, a year or two after, and by taking a ship of the Company's, one Edward Humes, Com mander, with the goods, and carried the men away prisoners. and for above a year fed them on bread and water. They formed a greater design, and went with a considerable ■^^ APPENDIX, 289 ireteu- never . their r, they then ly were conded and by C'om isoners, force overland, from Canada to the bottom of the Bay, and by force or treachery, surprised and took all the Company's factorys, therewith all the amunition, goods, stores, and mer- chandize therein, to a very great value, murdered and des- troyed many of His Majesty's subjects ; and all these invasions, seizures and depredations were in a time of peace, and the best correspondence between the two Crowns ; which is an action scarce to be parallelled by any civilized nation ; when the way is open for complaints to the Prince on either side. Upon these repeated injuries, the said Company complained several times to His then Majesty King James the Second. Several memorials were presented at the French Court by the public Ministers then there. My Lord Preston, Sir Wm. Trum- lial, and Mr. Skelton ; at last his most Christian Majesty did appoint Commissioners to meet at London, to treat of those matters, and Monsieur Bonrepos was sent over hither, to be joined with Monsieur Bascillon, the French Ambassador in that affair, whereas many papers were exchanged on both sides (but were in that reign so advantageous to the French interest), they did not obtain one inch from the right of the Imperial Crown of Great Britain, nor from the property of the Hudson Bay Company, But on the contrary His then Majesty did declare, that his honour and the Company's interest were concerned therein and would have reparation for both. At His late Majesty, King William Third, his happy acces- sion to the Throne the said Company put in a fresh petition and memorial to His Majesty, of their grievous sutfering from the French, which His Majesty was greatly pleased to resent so far, that he made it one of the articles and grounds of a declaration of war against France. And then by the late Treaty of Ryswick, Commissioner* Were appointed on both sides to examine and determine the rights and pretentions which either King had to the place, situated . Hudson's Bay ; before which Commissioners the right and title of the Crown of England to the whole Streights and Bay of 290 APPENDIX. 1 Hudson was then clearly made out, which the French could never disprove ; yet they still most unjustly keep possession of the greatest part thereof, which if they be permitted to enjoy, they will become sole masters of all Her Majesty's dominions and territorys in those parts, which are of great extent, and the undoubted right of the Crown of Great Britain and of very great concern to all Her Majesty's subjects, especially to those that inhabit or trade to the Northern parts of Her Majesty's plantations in America. rii fl '^'l tl Extract fkom Vol. 1, " Trade," (page 79,) Townall's Manuscripts. A Memorial of the Hudson's Bay Company, Shewing : That the French, in a time of perfect amity between the two Kingdoms, viz.: 1682, did arbitrarily invade the Company's Territorys at Port Nelson, burn the houses and seize their eflfects. That in the year 1684 and 1685 they continued their depre- dations. That in the year 1686 they forcibly took from the Company three factorys, viz. : Albany Fort, Rupert Fort, and Moose River Fort, which violent proceedings they continued the year 1687 and 1688 ; the whole damages done to the Company by the French in time of peace amount to jG 108,5 14 19s. 8d., as the Company are ready to make appear, besides interest for the same. That in the year 1685 they supplicated His then Majesty King James the Second, to interpose on their behalf; and, by His Ambassador at the French Court, to demand reparation for the damages done to the Company, and restitution of their places unjustly taken from them by the French in time of peace : Whereupon Commissioners were appointed by His Majesty, viz. : The Earl of Sunderland, the Earl of Middleton, iii APPENDIX. 291 and the Lord Godolphin, (now Lord High Treasurer of Great Britain) to treat with the French Commissioners, before whom the Company clearly made out their right to the whole Bay and Streights of Hudson, to the satisfaction of the English Commissioners, who on the 16th of November, 1687, reported the right of the Company ; upon which King James was pleased to declare that he conceived the Company well Ibunded in their demands, and therefore did insist upon his own right and the right of his subjects to the whole Bay and Streights of Hudson, and to the sole trade thereof; as also upon the demand of full satisfaction for the damages they had received, &c. The copy of which report, and of His Majesty's resolution thereupon, is hereunto annexed. This was trans- acted and declared towards the latter end of 1687, at which time, the Lord Churchill (now Duke of Marlborough) was Governor of the Company, and memorials were repeated by the said King's command at the French Court so pressingly lor satisfaction and restitution, that the Company had certainly been relieved and restored to their rights, but for the war, which soon after broke out between the two Kingdoms. That upon His late Majesty King William's accession to the throne, the Company renewed their claim to their terri- tories, and for reparation of damages suffered from the French in times of full peace ; of which His said Majesty was so sensible, that he was plensed to make the proceedings of France in that aflairone of the causes and articles of his declaration of war, against the French King in hccc verba. But that the French King should invade our Charibee Islands, and possess himself of our Territories of the Province of New York and of Hudson's Bay in a hostile manner, seizing our forts, burning our subjects' houses, and enriching his people with the spoil of their goods and merchandize, detaining some of our subjects under hardship of imprisonment, causing others to be inhu- manly killed, and driving the rest to sea in a small vessel, without food or necessaries to support them ; are actions not becoming an enemy ; and yet he was so far found declaring n ■Eiy ,1 K| i H -te i ?nH f^ i 1^ H' ' I H 292 APPENDIX. himself 80, that at that very time, he was negotiating here in England, by his ministers, a treaty of neutrality and good correspondence in America, so that the said Company did patiently wait for the end of that war, not doubting but to have justice done them when a peace was concluded. But so it was, that the Company found their interest not com- prehended in the treaty of Ryswick, which they are far from attributing to any want of care in that gracious Prince, of his Kingdom's honour and trade, and rather think their right and claim was then overweighed by matter of higher consequence depending in that juncture ; for by the said treaty they found their condition much worse than it was before, by the 8th article, whereof the French were to be left in possession ot such places situated in Hudson's Bay, as had been taken by them during the peace which preceded that war. That at a meeti ng of Commissioners on both sides (as directed by the said treaty to adjust these differences) the ( ^ompany did again set forth the undoubted right of the Crown of Eiio- land to the whole Bay and Streightsof Hudson, against which nothing but sophistry and cavils were offered on the Freni h side, and the matter remained undetermined. That the only settlement now remaining to the Company in those parts (of seven they formerly had) is Albany Fort, or Checheowan, where they are surrounded on every side by the French, viz. : by their settlement on the lakes and rivers from Canada to the northward towards Hudson Bay — as also from Port Nelson (also York Fort) to the southward. The French likewise have lately made another settlement between Port Nelson and Albany Fort, whereby the Indians are hindered from coming to trade with the English factory at the bottom of the Bay, and if they are suffered to hx and fortify in those parts, beyond all question they will deprive Her Majesty's subjects of that tract of land, which is so large a part of her American dominion and rightfully belongs to the Crown ol Great Britain. That not only Her Majesty's glory is concerned to preserve m APPENDIX. 298 those plantations, but it very much imports the general trade of her kingdom, since the Company, notwithstanding the losses and discouragements they have laboured under and during the war, have brought from thence between 80,000 and 40,000 skins per annum, and doubt not, if they were re- instated in their right according to their Charter, to bring the said importation to 100,000 skins per annum. • That the said country does abound with several other com- modities (of which the company have not been able to begin trade, by reabon of the interruptions from the French), as with whale-oil, whalebone (of v.hich last Her Majesty's sub- jects now purchase from Holland and Germany, to the value of c£26,000 per annum), which might be had in her own plan- tations, besides many other valuable commodities which in time may be discovered. That if the French come once to be entirely possessed of Hudson's Bay, they will undoubtedly get up a whale-fishing in those parts, which will greatly tend lo the increase of their navigation, and to their breed of seamen. That there is carried thither and consumed there, nothing but of the product and manufactures of England, the Com- pany encouraging a daily bringing the Indians to wear coarse cloth instead of skins, which in process of time will consider- ably advance the woollen trade at home. That it must needs reflect on the honour of Britain, to re- linquish to the French that territory, of which their violent usurpation in a time of peace, was alleged as a main Article in the first Declaration of War against that kingdom. That if the French could pretend to any right to the said territories by the Peace of Kyswick, this right must needs be determined by their notorious infraction of the said Treaty. The premises considered, when Her Majesty in her high wisdom shall think to give peace to those enemies, whom her victorious arms have reduced and humbled, and when Her Majesty shall judge it for lier people's good to enter into a Treaty of Peace with the French King, the Company pray F Ji Hi 294 APPENDIX. that the said Prince he obh|:fed by such treaty to renounce all right and pretentions to the Bay and Strei^hts, to quit and surrender all Torts and settlements erected by the French, or which are now in their possession, as likewise not to sail any ship or vessel within the limits ol" the Company's Charter, and to make restitution of the i;i08,514 198. 8d. ol which they robbed and despoiled the said Company in times of per- fect amity between the two kin<:r(loms. Kepoiit of the English Commissioners appointed to treat with the French, concerning damages sustained by the Hudson's Bay Company, kc, 1G87. Together with His Majesty's resolutions thereupon. The Efifjlish Commissioners' Report made in the Year 1687. We your Majesty's Commissioners appointed to treat with the Ambassador and Envoy Extraordinary of His Most Christian Majesty concerning the dili'erences that have hap- pened, or may, to your Majesty or the French in America, have had frequent conferences with the said Ambassador and Envoy Extraordinary, in order to obtain satisfaction for the damages your Majesty's subjects have lately sustained from the French in Hudson's Bay, with restitution of the three forts which by surprise were seized on by them ; as also touching several other differences depending between the two Crowns ; and as to the business of Hudson's Bay, having already acquainted your Majesty with our proceedings therein. AVe do further add, as our humble opinion, that it plainly appears your Majesty and your subjects have a right to the whole Bay and kStreights of Hudson, and to the sole trade thereof, so it may be fit for your Majesty to support the said Company of Hudson's Bay in the recovery and main- tenance of their right, since otherwise that trade will be totally lost, and fall into the hands of the French, if they be permitted to continue in the possession of those forts, or of any fort or place within the said Bay or Streights. «i:t=i APPENDIX. m His Majesty's Resolution Thereupon. Whereupon His Majesty did declare, that having maturely considered his own rii^ht and the right of his subjects to the whole Bay and Streights of Hudson, and having been also informed of the reasons alleged on the part of the French, to justify their late proceeding in seizing th«e forts, which for many years past have been possessed by flie English, and in committing several acts of hostility, to tlie very great damage of th«' English Company of Hudson's Bay. ILis Majesty upon the whole matter did conceive 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 8treights of Hudson, and to the sole trade thereof, as also upon the demand of full satisfaction for the damages they have received, and restitution of the three forts surprised by the French, in the bottom of the Bay. Hudson's Bay. Jnnuari/ \<)th. — Representation from the Board relating to Forts, (Sec, on the continent of America. Vide New York D. fo. 79. January 2'2nd — Proposals of the Governor and Company of Hudson's Bay about their boundaries, with the French. Jour- nal E. fo. 326. N. fo. 87. The limits which the Hudson's Bay Company conceive to l)e necessary as boundaries between the French and them in case of an exchange of place.s. and that the Company cannot obtain the whole Streights and Bay, which of right belongs to them, viz. : 1. That the French be limited not to trade by wood-runners, or otherwise, nor build any House, Factory, or Fort, beyond the bounds of .53 degrees, or Albany river, vulgarly called Chechewan, to the northward, on the west or main coast. 2. That the French be likewise limited not to trade by wood- runners, or Fort, beyond Rupert's River, to the northward, on the east main or coast. 296 AIM'KNDIX. »' 111 r 8, On th«» contrary, the Enjrli«li shall be oblim-d not to trad»» by wood-ninners, or otherwise, nor building House, Factory, or Fort, beyond the aloresaid latitude ol' 68 degrees, or Albany river, vulgarly called Checheawan, south-east towards Canadii. on any land which belongs to the Hudson's Bay < 'ompany. 4. As also the English be likewise obliged not to trade by wood-runners, or otherwise, nor build any House, F'aetorv, or F'ort, beyond Itupert's river, to the south-east, to\\ards Canada, on any land which belongs to the Hudson's bay Company. 6. As likewise, that iieither the F>ench or English shall atany time hereafter extend their bounds contrary to the aloresiiid limitations, nor instigate the natives to make war, or Join with either, in any acts of hostility to the disturbance or detriment of the trade of either nation, which the French may very reasonably comply with, for that they by such limitations will have all the country south-eastward betwixt Albany F'ort and Canada to themselves, which is not only the best and most fertile part but also a much larger tract of land than can he supposed to be to the northward, and the Company deprived of that wlfich was always their undoubted right. And unless the Company can be secured according to thef»e propositions they think it will be impossible for them to con- tinue long at York Fort, (should they exchange with the French) nor will the trade answer their charge ; and therefore if your Lordships cannot obtain these so reasonable proposi- tions from the French, but that they insist to have the limits settled between Albany and York, and Albany Fort, as in the latitude of 55 degrees or thereabouts, the Company can by no means agree thereto, for they by such an agreement will be the instruments of their own ruin never to be retrieved. By order oi' the Grovernment Court, (Signed) Wm. Potter, Secretary. Confirmed by the Court ) of the said Company, S lOth July, 1700. \ APPKNMIX. 297 January 'ISrd. — Letter to tho Governor, tScc, of Hudson's Hay. relating to settlonnMit of the hounJarios with tho Fronch. '/'<< th<' Govcniot' (liuf hepnfif (iormntf of thr ^Itlli^^^>ll Ihii/ Com- fxiini or citJii'i' of tlirm. Jouriinl I*]. .^27. Ans. fo. 07. CtKNTLEM kn : — Upon con.sidoration of what was thisday ofior- od to the Lords Coinmissionors for Trade and Plantations, by yourselves and other members of the Hudson's 13. ly Company, their Lordships have commandod me toac(|uaint you with their de.sire, that the Uesolution of your Court may be taken and communicated to them, whether(in case the French cannot be prevailed with to consent to the settlement of the boundaries proposed by your Court of the 10th of July la.stj, the said Court will not think tit to consent, that the limits on the east side of the Bay be "xtended to the latitude ol52J degrees, with whatever further that Court may think advisable to propose, in reference to their own affairs, for the more easy settlement of all disputes between the Company and the French in Hudson's Bay. Whitehall, January 11ml 170^ W. P. 11 February V2th. — Proposals from the G-overnor and Company of Hudson's Bay for settling the limits with France. To the Right Honourable the Lords Commissioners for Trade and Plantations. Journal E. 354. The Hudson's Bay Company having lately exhibited to your Lordships their Resolution of their Court, the 10th of July last, concerning limits between them and the French in Hudson's Bay, and though the Company cannot but still insist upon their undoubted right to the whole Bay and Streights of Hudson, as has been clearly made out by them* Fo. 73. Fo. 81. Yet in obedience to your Lordships' letter of the 22nd inst.. it"') ,:,f : 4.. ^k;' £ 108,514 19s. 8d., of which they robbed and despoiled your petitioners in times of perfect amity between the two Kingdoms. And your petitioners, as in duty bound, shall ever pray. m 808 APPENDIX. !fi? mu.^U: Memorandum from the Hudson's Bay Company, containing what they desire may be stipulated for them at the ensuing Treaty of Peace. To the Right Honourable the Lords Commissioners of Trade and Plantations. The Memorandum of the Governor and Company of Ad- venturers of England trading into Hudson's Bay. That for avoiding all disputes and differences that may in time to come arise between the said Company and French, settled in Canada, they humbly represent and conceive it necessary : That no wood-runners, either French or Indians, or any other person whatsoever, be permitted to travel, or seek lor trade beyond the limits hereafter mentioned. That the said limits begin from the island called Grimington's Island, or Cape Perdrix, in the latitude of 58i north, whicli they desire may be the boundary between the English and French, on the coast of Labrador, towards Rupert's Land, on the east main, and Nova Britannia on the French side, and that no French ship, burque, boat or vessel whatsoever, shall pass to the northward at Cape Perdrix, or Grimington's Island, towards or into the Streights or Bay of Hudson, on any pretence whatsoever. That a line supposed to pass to the south-westward of the said Island of Grimington, or Cape Perdrix, to the great Lake Miskosinke at Mistoveny, dividing the same into two part.N (as in the map now delivered), and that the French nor any others employed by them, shall come to the north or north- westward of the said lake, or supposed line, by land or water, on or through any riv« rs, lakes, or countries, to trade, or erect any forts or settlements whatsover, and the English, on the contrary, not to pass die said supposed line either to the south- w^ard or eastward. That the French be likewise obhged to quit, surrender and mtaining J ensuing Trade and ly of Ad- uy. at may in 1 French, onceive it IS, or any r seek for iraingtons rth, which nslish and ■rt's Land, h side, and ever, shall •imington's son, on any vard of the great Lake I two part.N ch nor any h or north- id or water, tde, or erect ■lish, on the ;o the south- rrender and APPENDIX. 300 deliver up to the English, upou^demand, York I'ort (by tluMn railed I?ourl)on), nndemolished ; together with all forts, faetories. settlements, and huildiuffs whatsoever, taken from the Eii'jflish, or since erected, or built by the French, with all the artillery and ammunition, in the condition they are now in ; together with all othi»r i)laoes they are possessed of within the limits aforesaid, or within the Bay and Streights of Hudson. These limits being first settled and adjust 'd, the Company are willing to refer their losses and damages formerly sustained hy the French in times of peace, to the cons'deration of Com- missioners to be appointed for that purpose. By order of the Governor and Company of Adventurers of England trading into Hudson's Bay. Hudson's Bay House, 1th Februnri/, 17I.L Note. — The said Company are by]their Charter constituted Lords Proprietors of all those lands, territories, seas, streights, hays, rivers, lakes and soundings, within the entrance of the streights, to hold the same, as of Her Majesty's manor of East Crreenvvich, in the Countv of Kent, To the Riffht Honourable the Earl of Dartmoutl My Lord: — In obedience to Her ^Lij'sty's commands, siirnified to us, we have considered the enclosed P 'tition from the Hudson's Bay Company to Her Majesty, and are humbly of opinion, that the said Comi)any have a good right and just title to the whole Bav and Streights of Hudson. Since the receipt of which petition, the said Company have delivered us a memorial, relating tothe settlement of boundaries between them and the F'rench of Canada, a copy whereof is enclosed, and upon which we take leave to offer, that as it will be for the advantage of the said Company, that their bound- aries be settled, it will also be necessary that the boundaries between Her Majesty's colonies on the continent of America 'MO APPENDIX if 1 an I tho said Fronch of Canada be likewise ajyreed and settled : vvherelore we humbly otier these matters may be recommended to Her Majesty's Plenipott'iitiaries at Utrecht. We are, My Lord, Your Lordships most obedient, and most humble servants. \VlN(!HKLSKA. Ph. Meadows. Chas. Turner. Geo. Baillie. Arth. Moore. Fra. Gwyn. Whitehall, February im, n\l Kight Honourable Earl of Dartmouth. if. Letter from the Earl of Dartmouth, 27//t Mai/, 1713, referring to the Board of Petition of Hudson's Bay Company, about taking- possession of the places and territories belonging to the said Company, which were late in the power of tho French. 7o the Right Honourable the Lords Commissioners of Trade and Plantations. 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 theseveral particulars mentioned. In the meantime I am to acquaint you that the places and countries therein named, belongingof right to British subjects, Her Majesty did not think fit to receive any Act of Ces- sion from the French King, and has therefore insisted only upon an order from that Court for delivering possession to such p }rsons as should be authorised by Her Majesty to take it; by this means the title of the Company is acknowledged, and \ii .V: APPENDIX. 811 thpy will come into the immediate enjoyment of their property without further trouble. I am, My Lords and Gentlemen, Your most humble servant, Dartmouth. Whitehall, Mat/ 11th. 1713. June Ls/, 1713. To the Queen's Mont Excellent Majesty. The humble petition of the Governor and Company of Ad- venturers of England trading in the Hudson's Bay, Shkweth : That your petitioners, being informed that the Act of Ces- sion is come over, whereby (among other matters thereby ooncertedj, the French King obliges himself to restore to your Majesty (or to whom your Majesty shall appoint to take possession thereof i the Bay and Streights of Hudson, together with all the lands, seas, sea-coasts, rivers and places situate in the said Bay and Streights, as also all forts and edifices what- soever, entire, and not demolished, together with guns, shot, powder and other warlike provisions (as mentioned in the 10th Article of the present Treaty of Peace), within six months after the ratification thereof, or sooner, if possible it may be done. Your petitioners do most humbly pray your Majesty will be graciously pleased to direct the said Act of Cession may be transmitted to your petitioners, as also your Majesty's commission to Captain James Knight and Mr. Htairy Kelsey, Gfentleman, to authorise them, or either of them, to take pos- session of the premises above mentioned, and to constitute Captain James Knight to be Governor of the fortress called Port Nelson, and all ot^ier forts and edifices, lands, seas, rivers and places aforesaid, and the better to enable your petitioners to recover the same, they humbly pray your Majesty to m -T- i' if' 312 APPENDIX. M.^ give orders that they may have a small man-of-war to depart with their ship, by the 12th day of June next ensuinir, which ship may in all probability return in the month of October. And your petitioners as in duty bound, shall ever pray. -By Order of the Company. per Wm. Potter, Secretary. Letter from the Lord Viscount Bolingbrooke, of 13^//, Aitril. 1714, referring to the Board a memorandum of the Hud- son's Bay Company ; a petition on behalf of the inhabitants of Mountserrat ; and an extract of a letter from Mr. Fleet- wood, consul at Naples. To the Riijht Hoiwurahh' the Lord>^ Commissioners of Trade and PI rutations. My Lords, — I send your lordships enclosed, by the Queen's command, a memorandum of the Governor and Company of Hudson s Bay, and a petition of several persons on behalf of themselves and the inhabitants of Mountserrat. It is Her Majestj^'s pler^sure that your lordships should con- sider the soid memorandum and petition, as likewise the seve- ral matters which are referred to commissaries by the tenth, eleventh, and fifteenth Articles of the late Treaty of Peace with the Most Christian King, and upon the whole make your ■••'^presentation, to be laid before Her Majesty, for her furtht . pleasure therein. By the enclosed extract of a letter from Mr. Fleetwood, Her Majesty's Consul at Naples, your lordships will see th;tt he desires to have leave to come to Enuland ; but the Queen has thought lit, before she grants his request, to direct your lordships to inquire whether his coming away will be of pre- judice to trade in those parts. I am. My Lords, Your most humble s rvant, ' ' BOLINOBROOKE. Whitehall, Aprl/ 13^^, 1714. "•^^r «k APPENDIX. 313 April 14th. Memorial from the Hudson's Bay Company. To the Qaeen'ii Most Excellent Majesty. The humble memorial of the GoV^ernor and Company of Adventurers of England trading- into Hudson's Bay. That the said Company do with the utmost gratitude return your Majesty their most humble and hearty thanks for the great care your Majesty has taken for them by the Treaty of Utrecht, whereby the French are oblii^ed to restore the whole Bay of Hudson and the Streights, being the undoubted right of the Crown of G-reat Britain. And whereas by the 11th Article of the said Treaty, satis- faction is to be made to the said Company for all damages sustained from the French in times of peace, for which com- missaries are to be nam^d on both sides to adjust the same. The said Company humbly presume to acquaint your Majesty that whenever your Majesty in your great wisdom shall think lit to name commissaries for that purpose, they are ready to make out their demand of damages sustained from the French, according to the said 11th Article. All which they nevertheless submit to your Majesty's wis- dom and goodness. The Hudson's Bay Company, ^VM. Potter, Secretar)/. To the Ritjhi Hmiom'dhle the Lord Vinrounf Bo/highmoke. My Lord, — In obedience to Her Majesty's commands, sig- iiitied to us by your Lordship's letter of the 13th of the last month, we have considered the Memorial of the Governor and Company of Hudson's Bay, and the Petition relating to Mouhtserrat, and thereupon take leave to otfer, that Her Ma- jesty be pleased to signify to the Court of France the neces- ■r^' li. ' 1 314 APPENDIX. sity of appointing commissaries to treat of several matters pursuant to the 10th, 11th, and 15th Articles of the Treaty of Peace with France, we being informed that the French com- missaries who are here, have not full powers to treat on those matters ; and as soon as we have their answer, we shall lay it before your lordship. My Lord,, Your Lordship's most obedient and most humble servants, Guilford. r. monckton. Arthur Moore. J NO. Cotton. J NO. Sharpe. Samuel Pytts. Thos. Vernon. June 18th. To Wm. Popple, Esq. Sir, — I, being one of the Commissioners for the Hudson's Bay Company, give me leave to take this opportunity to inform you we are sending a gentleman to take possession of our country very speedily. If the Lords have any commands touching the memorial lately presented to Her Majesty by us, relating to the damages the French did us in times of peace, this gentleman who was in Hudson's Bay at that time, can give their Lordships some information in that matter. I am, Your very humble servant, Jno. Pery. June Srd, 1714. August Srd. Abstract of the damages the Hudson's Bay Company have sustained by the French in time of peace. A. 58. APPENDIX. 316 Memorandum from the Hudson's Bay |(Jompany describing limits which they desire may >)e fixed between them and the places appertaining to the French, 6zc. To the Right Honourable the Lords Commissioners of Trade and Plantations. The humble representation of the Governor and Company of Adventurers of England trading into Hudson's Bay, Sheweth: That pursuant to the 10th article of the Treaty of Utrecht, they did, the beginning of June last, send a ship for Hudson's Bay, and therein a Go.vernor, one Captain Knight, and his Deputy, one Mr. Kelsey, to take possession of the whole Bay and Streights of Hudson, together with all other places relating thereto, as mentioned in the said articles, they having not only her late Majesty, (of blessed memory) her commission for the same purpose, together with one from the Company, but like- wise the most Christian King's order, under his hand and seal, with a power from the Canada Company, to deliver up the same according to the said treaty, which ship, at the request of the said Canada Company, is not only to bring away the French settled in Hudson's Bay, but likewise their effects, pursuant to the aforesaid treaty, they paying freight for the same, which ship may be expected the latter end of Septem- ber, or beginning of October next. They further represent to your Lordships, that, according to a memorial formerly delivered, this honourable board, relating to the limits or boundaries to be settled by commissaries 'twixt the English and French in those parts, they humbly prayed, that for avoiding all disputes and ditferences that may in time arise between the Company and the French settled in Canada, that no wood-runners, either French or Indians, or any^ other person whatsoever be permitted to travel, or seek for trade beyond the limits thereafter mentioned. 316 APPENDIX. if That the said limits begin from the Island called Grriminsr- ton Island, or Cape Perdrix, in the latitude of 58J north, may be the boundary between the English and the French, on the coast of Labrador towards Rupert's Land, on the coast main, and Nova Britannia on the French side. That no French ship, barque, boat or vessel, whatsoever, shall pass to the north-w^estward of Cape Perdrix, or Griming- ton's Islnnd, towards or into the Streights or Bay of Hudson, on any pretence w^hajhsoever. That a line supposed to pass to the south-westward from the said Island of Grimington, or Cape Perdrix, to the great lake Miscosinke, at Mistoveny, dividing the same into two parts, (as in the map now delivered), and from the said lake, a line to run south-westward into 49 4«igreos 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 Enghsh to the south of it. That the French nor any others employed by them shall come to the north or north-westward of the said lake, or sup- posed line by land or water, on or through any rivers, lakes or countries, to trade, or erect any forts or settlements whatsoever; and the Ensrlish, on the contrary, not to pass the said supposed line, either to the southward or eastward. The said Company having already delivered to your Lord- ships an abstract of the damages sustained by the French in times of peace, amounting to ^6100,543 13s. 9d., according to the direction of the 11th article of the aforesaid treaty, which they humbly entreat your Lordships to take care of, to the relief of the great hardships they have so long laboured under. By order of the G'overnor and Company of Adventurers oi England, trading into Hudson Bay. Hudson's Bay House, Afh August, 1714. Wm. Potter, Secvetai^. I f; '^ti. APPENDIX. 317 n's of August 14th. To the Right Honourable the Lords Commissioners of Trade, Sfc. My Lords : — The Lords Justices desire to have an account forthwith laid before them of what has beeu done since the peace, relating to Hudson's Bay, Nova Scotia, and St. Christo- pher's. Some things have passed in my office, others I believe in the treasury, and a considerable deal I doubt not has been done by your Lordships ; wherefore if your Lordships please to collect a perfect state of the whole, I will furnish you with what you may want from me. I am likewise on this occasion to put your Lordships in mind of the point referred to by the Treaty of Peace with France, to the discussion of commissaries, that their Excel- lencies may be acquainted with the orders given to the com- missaries of commerce in those matters, and their proceed- ings thereupon. Your letter of the 30th July, relating to Captain Van Estegle, has been laid before the Lords Justices, and the orders their Excellencies have been pleased to give there- upon, have been sent to the Treasury and Admiralty. It \8 likewise thought fit that your Lordships, in your stition, should advertise the governors and other officers in the plan- tations, of their duty in the particvdars mentioned in your letter, both with respect to the trading to the French settle- ment, and to the illegal landing of goods from thence. I am, My Lords, Your Lordship's most humble servant, BOLINGBROKE Whitehall, Avgust I2th, 1714. 318 APPENDIX. To the Viscount Bulinffbroke. f^ ^ r ■;} H Vi J! My Lord, — In obedience to Iheir Excellencies the Lords Justices' commands, signified to us by your Lordship's letter of the 1 2th inst., requiring to know what has been done since the Peace relating to Hudson's Bay, Nova Scotia, and St. Christopher's, we take leave to represent : That upon your Lordship's letter of the 22nd July, requiring- us to prepare proper instructions for the British commissaries who are appointr'i to treat with those of France, upon the iOth, 11th, vrnd . Articles of the Treaty of Peace, we wrote letters to Sc\eai persons concerned in the Leeward Islands, and se-'^eral pifts of the continent, for what they might have to O'Ter i su< i. [.arts of the said Articles as did relate to them respectively, and have received answers from some of them. "VVe pray your Lordsliips will please lay the enclosed copies thereof before their Excellencies the Lords Justices, as follows : Copy of a memorial' from the Hudson's Bay Company, do- scribing the limits which they desire may be fixed between them and the French in those parts, as also an abstract of the damages they have sustained by the French in times of peace. In relation to St. Christopher's, we further take leave to re- present that upon several references from Her late Majesty in Council, from the Lord High Treasurer and from the Secre- tary of State, we prepared a representation relating to the set- tlement of the French part of that Island, as also a letter to the late Lord Treasurer upon the same subject, copies whereof are here enclosed, which your Lordships will please also lay before their Excellencies the Lords Justices. Since which time we have received some other petitions froi^ French refugees, also referred to us of the same nature rs those mentioned in our above said representation, which we have not been yet able to consider so as to be able to make a report thereon. We shall take care by the first opportunity to send direc- i' n ^^«k APPENDIX. 3j9 tions to the governors and other officers in the Plantations, in relation to the illegal trade between the said Plantations and the said French settlements. We are, My Lord, Your most obedient and humble servants. Ph. Meadows. Arthur Moore. Jno. Sharpe. Samuel Pytts. Thos. Vernon. Whitehall, Aug. Uth, 1714. ■HI' APPENDIX P. Memorial from M. de Torcy, 1th January, 171 1, ibr Mr. Prior. The 9th (10*^h) article of the plan imports, that the King shall give up to the Queen of Great Britain, Hudson's Bay &c , in the manner they are now possessed by the King and the French. The plenipotentiaries of Great Britain insist that it shall be expressed, that France shall restore not only ivhat has been taken from the Emjlish, but also all that England has ever possessed in that quarter. This new clause differs from the plan, and would be a source of perpetual difficulties ; but to avoid them, the King has sent to his plenipotentiaries the same map of North America, as had been furnished by the plenipotentiaries of Great Britain. His Majesty has caused to be drawn upon this map, a line which describes the boundaries in such a manner as he has reason to think they easily may agree [upon] this point on both sides. l\\ however, there should be any obstacle which the pleni- potentiaries cannot remove, the decision must be referred to commissaries to be named for the adjustment of the bound- aries of America. The same article says that the King's 320 APPENDIX. 'S i:i subjects shall be at liberty to depart from their lands, in places ceded by his Majesty to the Crown of Great Britain, to carry with them their goods and moveables and to go wherc- ever they please by sea or land. The plenipotentiaries of France have also reserved to them the right of disposing of their immoveable eti'ects in the space of three years. ♦ ♦ * The plenipotentiaries of G-reat Britain agree to one year * * * * Under the name of places ceded they include Acadia and the Island of St. Christopher. Under the name of places restored, Hudson's Bay and Straits, and the Island of Newfoundland. Upon Vrticle 10 (11) the plenipotentiaries of France de- mand, that the English, obtaining the right to prefer their complaints of lo^s su.stained in Hudson's Bay before the com- missaries, the King's subjects should have the same right with regard to the business at Nevis and Gambia. This mutuality, which the plenipotentiaries of Great Britain have not yet been willing to grant, seems just, the English shall have the same liberty to represent their losses at Montser- rat, and to soiicit a reparation, which shall be granted to them. Extract. ill [til Marquis de Torry to Lord Bolingbroke, December 29//*, 1712. In the name of God, sir, order your plenipotentiaries to be less excellent grammarians Ours, who also understand the force of Latin expressions, are out of patience when they see difficulties, which have been long adjusted, started again, and the difier- ence between cession and restitution, and the meaning of those terms. In truth, sir, such questions ought not to be the amuse- ment of honourable men. They are at best excusable only to those to whom we may apply amantium tree. Finish these disputes, which, if they continue longer, will only proht our enemies. APPENDIX. 821 Extract. Lord Bolinrjbroke lo Marquis de Torcy, 1th Januarfj, o. s., 171 ii. There are certain thing's which derive their consequence purely from being dispnted; the difference between the expres- sions cedendh and restituendis, between assumpsit and usurpavit or arrocjavil is not very essential ; the mind was, however, not a little heated in the dispute, and it required some trouble to convince certain people that the matter was not worthy of attention. Memorial concerted with Marquis de Torcy, IDth .Taimary, 1713, and forwarded to Lord Bolingbroke, by the Duke of Shrewsbury. The inhabitants of Hudson's Bay, subjects of the Queen of Grreat Britain, who have been dispossessed of their lands by France, in time of peace, shall be, entirely and immediately after the ratiftcation of the treaty, restored to the possession of their said lands ; and such proprietors shall also have a just and reasonable satisfaction for the losses they have suffered, with respect to their goods, moveables and effects ; which losses shall be settled by the judgment of commissaries, to be named for this purpose, and sworn to do justice to the parties in- terested. 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 ce que V Anglelerre a jamais possede de ce cote hi, (which they assert to be wholly new, and which 1 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 answered, that since, according to the carte 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 w m n . lijj .if.;. I 322 appp:ndix. theirs, there was no very great difference, and that the parties who determine that difference, must be guided by the same carte. I thought the article would admit no dispute. In case it be either determined immediately by the plenipotentiaries or referred to commissioners, I take leave to add to your Lordship that these limitations are no otherwise advantageous or prejudicial to Great Britain than as we are better or worse with the native Indians, and that the whole is a matter rather of industry than dominion. If there be any real difference between restitution and cession, quaritur? Yet since, in either case, the right of the inhabitant as to transferring his goods and effects, or disposing of his person and family is always provided for in treaty, I leave it to your Lordship's better judgment if a fixed time in either case, (suppose eighteen months or two years) does not put the subject, who is to have the benefit which restitution or cession grants him, upon a more equal foot, &c. — Prior to Bolingbroke, 8^/i January, n. s., 1713, Hard. St. P. Vol. 2, p. 500. APPENDIX Q. License of Exclusive Trade to the Hudson's Bay Company. GEORGE R. (L. S.) George the Fourth, by the Grace of God of the United Kingdom of Great Britain and Ireland King, Defender of the Faith. To all to whom these presents shall come, greeting : Whereas an Act passed in the second year of our reign, intituled, " An Act for regulating the Fur Trade, and for es- stablishing a Criminal and Civil Jurisdiction within certain parts of North America ;" wherein it is amongst other things enacted, that from and after the passing of the said Act, it APPENDIX. 323 Bay reign, for es- certaiu things Act, it should be lawful for us, our heirs or successors, to make (Jrants or give our Royal License, under the hand and seal of one of our Principal Secretaries of State, to any body corpo- rate or company, or person ;>r persons, of or for the exclusive privilege of trading with the Indians in all such parts of North America as should be specified In any such Grants or Licenses respectively, not being part of the lands or territo- ries heretofore granted to the Governor and Company of Ad- venturers of England, trading to Hudson's Bay, and not being part of any of our provinces in North America, or of any lands or territories belonging to the United States of America, and that all such Grants and Licenses should be good, valid, and effectual, for the purpose of securing to all such bodies corporate, or companies, or persons, the sole and exclusive privilege of trading with the Indians, in all such parts of North America (except as thereinafter excepted) as should be specified in such Grants or Licenses, any thing contained in any Act or Acts of Parliament, or any law to the contrary notwithstanding ; and it was in the said Act further enacted, that no such Grant or License made or given by us, our heirs or successors, of any such exclusive privileges of trading with the Indians in such parts of North America as aforesaid should be made or given for any longer period than 21 years, and that no. rent should be required or demanded lor or in respect of any such Grant or License, or any privi- leges given thereby, under the provisions of the said Act, for the first period of 21 years ; and it was farther enacted, that from and after the passing of the said Act, the Governor and Company of Adventurers of England trading to Hudson's Bay, and every body corporate and company and person, to whom every such Grant or License should be made or given as aforesaid, should respectively keep accurate registers of all persons in their employ, in any parts of North America, and should once in each year return to our Principal Secretaries of State accurate duplicates of such registers, and should also enter into such security as should be required by us for the I . I ill I < 824 APPENDIX. li«l due execution ol" all criminal processen, and of any civil pro- cess in any suit where the matter in dispute shall exceed jC200, and as well within the territories included in any such Grant as within those granted by Charter to the Governor and Company of Adventurers of England trading to Hudson's Bay, and for the producing and delivering into safe custody for the purpose of trial, all persons in their employ, or actinn- under their authority, who should be charged with any crimi- nal offence, and also for the due and faithful observance of all such rules, regulations and stipulations as should be contained in any such Grant or License, either for gradually diminish- ing and ultimately preventing the sale or distribution of spiri- tuous liquors to the Indians, or for promoting their moral and religious improvement ; or lor any other object which we might deem necessary for the remedy or prevention of any other evils which have been hitherto found to exist : And whereas it was also in the said Act recited, that by a Conven- tion entered into between his late Majesty and the United States of America, it was stipulated and agreed, that every country on the north-west coast of America to the westward of the Stony Mountains should be free and open to the citi- zens and subjects of the two powers for the term of ten years from the date of the signature of that Convention ; and it was therefore enacted, that nothing in the said Act contained should be deemed or construed to authorise any body corpo- rate, company, or person, to whom his Majesty might, under the provisions of the said Act, make or grant, or give a license of exclusive trade with the Indians in such parts of North America as aforesaid, to claim or exercise any such exclusive trade within the limits specified in the said article, to the pre- judice or exclusion of any citizens of the said United States of America who might be engaged in the said trade : Pro- vided always, that no British subject should trade with the Indians within such limits without such Grant or License as was by the said Act required. And whereas the said Governor and Company of Adven- H APPENDIX. 325 turers of England tradino; into Hudson's Bay, and certain Associations of persons tvadini*- under the name of the '• North-west Company of Montreal," have respectively ex- tended the fur trade over many parts of North America which had not been before explored : And whereas the com- petition in the said trade has been found for some years past to be productive of g-reat inconvenience and loss, not only to the said Company and Associations, but to the said trade in general, and also of great injury to the native Indians, and of other persons our subjects : And whereas the said Governor and Company of Adventurers of England trading- into Hud- son's Bay, and William M'Gillivray, of Montreal, in the Pro- vince of Lower Canada, esc[uire, Simon M'Gillivray, of Suf- folk Lane, in the City of London, merchant and Edward EUice, of Spring Gardens, in the County of Middlesex, esquire, have represented to us, that they have entered into an agreement, on the 26th day of March last, for putting an end to the said competition, and carrying on the said trade for 21 years, commencing with the outfit of 1821, and ending with the returns of 1841, to be carried on in the name of the said Governor and Company exclusively : And whereas the said Governor and Company, and Wil- liam M'Gillivray, Simon M'Gillivray and Edward Ellice, have humbly besought us to make a Grant, and give our lioyal License to them jointly, of and for the exclusive privilege of trading with the Indians in North America, under the restric- tions and upon the terms and conditions specified in the said recited Act : Now know ye, That we, being desirous of en- couraging the said trade and remedying the evils which have arisen from the competition which has heretofore existed therein, do grant and give our Royal License, under the hand and seal of one of our Principal Secretaries of State, to the said Governor and Company, and William M'Gillivray, Simon M'Gillivray and Edward Ellice, for the exclusive privilege of trading with the Indians in all such parts of North America to the northward and the westward of the lands and territo- 1/ m\ }l't m 1* '! • IS <[■■ ' ' , ?"■; > iM 326 APPENDIX. ries belonging to the United States of America as shall not form part of any of our provinces in North America, or of any lands or territories belonging- to the said United States of America, or to any European government, state or power ; and we do by these presents give, grant and secure to the said Grovernor and Company, William jVPCrillivray, Simon M'Gil- livray and Edward Ellice jointly, the sole and exclusive privi- lege, for the full period of 21 years from the date of this our Grant, of trading with the Indians in all such parts of North America as aforesaid (except as thereinafter excepted) ; and we do hereby declare that no rent shall be required or de- manded for or in respect of this our Grant and Licoise, or any privileges given thereby, for the said period of 21 yeart;, but that the said Governor and Company, and the said Wil- liam M'GilHvray, Simon M'Gillivray and Edward Ellice shall, during the period of this our Grant and License, keep accu- rate registers of all persons in their employ in any parts of North America, and shall once in each year return to our Secretary of Stale accurate duplicates of such registers, and shall also enter into and give security to us, our heirs and suc- cessors, in the penal sum of .£5,000 for ensuring, as far as in them may lie, the due execution of all criminal processes, and of any civil process in any suit where the matter in dispute shall exceed =£200, by the officers and persons legally em- powered to execute such processes within all the territories included in this our Grant, and for the producing and de- livering into safe custody, for purposes of trial, any persons in their employ, or acrting under their authority within the said territories, who may be charged with any criminal offence. And we do also hereby require, that the said Governor and Company, and William M'Gillivray, Simon M'Gillivray and Edward Ellice shall, as soon as the same can be conveniently done, make and submit for our cc isideration and approval such rules and regulations for the management and carrying on the said fur trade w^ith the Indians, and the conduct of WT APPENDIX. )27 the persons employd by them therein, as may appear to us to be effectual for g^radually diminishing or ultimately pre- venting the sale or distribution of spirituous Hquors to the Indians, and for promoting their moral and religious improve- ment. And we do hereby declare, that nothing in this our Grrant contained shall be deemed or construed to authorise the said Governor and Company, or William M'Gillivray, Simon M'Grillivray and Edward Ellice, or any person in their em- ploy, to claim or exercise any trade with the Indians on the north-west coast of America to the westward of the Stony Mountains, to the prejudice or exclusion of any citizens of the United States of America who may be engaged in the said trade : Provided always, that no British subjects other than and except the said Governor and Company, and the said "William M'Gillivray, Simon M'Gillivray and Edward Ellice, and the persons authorised to carry on exclusive trade by them on Grant, shall trade with the Indians within such limits during the period of this our Grant. Given at our Court at Carlton House the 5th day of Decem- ber, 1821, in the second year of our reign. By His Majesty's command, (l. s.) Bathurst. i^ Ull APPENDIX n. Memorandum enclosed in Chief Justice Draper''.'^ Letter of May 6th, to the Secretary of State. It is not proposed at present to discuss the validity of the Charter of the Hudson's Bay Company. A careful perusal of it will suggest many doubts whether it be not altogether void. But assuming that it may be sustainable for every or for any of the purposes for which it was intended, and for the moment conceding that the indefinite description of the 328 APPENDIX. l!;J' ■M territory purporting to be granted, does not vitiate the grant, there is a question as to the limits of that territory in which the province of Canada is deeply interested. The parts of the Charter bearing on this question are as folloM's : 1. " All the lands and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid" (stated in a preceding part to be those which lie within the entrance of the straits, commonly called Hud- son's Straits, in whatsoever latitude, such bays, &c., should be), " that are not already actually possessed by or granted to any of our subjects, or possessed by the subjects of any other Christian prince or State, with the fishing of all sorts of fish, whales, sturgeons, and all other royal fishes in the seas, bays, inlets and rivers within the premises ; and the fish therein taken, together with the royalty of the sea upon the coasts within the limits aforesaid, and all mines royal, as well dis- covered as not discovered, of gold, silver, gems and precious stones, to be found or discovered within the territories, limits and places aforesaid ; and that the said land be from hence- forth reckoned and reputed as one of our plantations or colo- nies in America, called Rupert's Land : And, further, we do by these presents, for us, our heirs and successors, make, create and constitute the said Grove rnor and Company for tlie time being, and their successors, the true and absolute lords and proprietors of the same territory, limits and places afore- said, and of all other the premises hereby granted as afore- said, with their and every of their rights, members, jurisdic- tions, prerogatives, royalties and appurtenances whatsoever, to them the said Governor and Company, and their successors for ever, to be holden of us, our heirs and successors, as ol our manor of East Greenwich, in our county of Kent, in free and common soccage." And, 2. " And furthermore, we do grant unto the said Gov- ernor and Company and their successors, that they and their successors, and their factors, servants and agents, for them APPENDIX. 329 Gov- their them and on their behalf, and not otherwise, shall for ever hereafter have, use and enjoy, not only the whole, entire, and only trade and traffic, and the whole, entire and only liberty, use and privilege of trading- and trafficking to and from the terri- tory, limits and places aforesaid, but also the whole and entire trade and traffic to and from all havens, bays, creeks, rivers, bays and seas into which they shall find entrance or passage, by water or land, out of the territories, limits or places afore- said, and to and with all the natives and people inhabiting within the territories, limits and places aforesaid, and to and with all other nations inhabiting any of the coast adjacent to the said territories, limits and places which are not granted to any of our subjects." Prior to this Charter, there was little or nothing done within Hudson's Bay in the way of taking any actual posses- sion of the territory granted. The bay had been discovered, several ships from time to time had entered it, and probably some interchange of commodities with the 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 terri- to y which the discovery of the Straits and Bay could confer oil the British Crown. The French Crown in like manner had claimed, by reason of their actual settlement of Canada and of their progressive 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 had, in 1670, actually penetrated, so far as appears, within many hundred miles of the Red River. The settlements made by the Hudson's Bay Company were at first confined to those on the shores of James Bay, and at the Churchill and Hayes Rivers. Henley House, which is about loO 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 about 200 or 230 miles from the mouth of Churchill River, and the fort at Split Lake, 330 APPENDIX. Mli # 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 8'* ents, for more than a century after the date of the Charter, these, together with the forts on or near the shores of the bays, were the only settled posts of the Hudson's Bay Com- pany. 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, in reference to or for the purpose of securing which, the grant of territory was made to them. In a petition addressed by the Hudson's Bay Company to Charles the Second, in 1682. they say that His Majesty was graciously pleased to incorporate them, and to grant to them for ever all the said Bay, and the Straits leading thereunto, called Hudson's Straits, with all the lands and territories, rivers and islands in and about the said Bay, and the sole trade and commerce there ; and, referring to a letter of Monsieur de la Barre, the Grovernor of Canada, threatening to drive them out, they observe, they doubt not but that by the King's Royal authority and protection, they will be enabled to defend his undoubted right and their own within the Bay, *' wherein never any nation but the subjects of your Imperial Crown has made discoveries or had any commerce." In a letter dated January 25, 1696-7, they urge, " whenever there be a treaty of peace between the Crowns of England and France, that the French may not travel or drive any trade beyond the midway betwixt Canada and Albany Fort, which we reckon to be within the bounds of our Charter." In 1698, in a letter written by their deputy-governor to the Lords Commissioners of Trade, they repeat the same desire. In a memorial, dated in June, 1699, they represent the Charier as constituting them the true and absolute proprie- tors of Hudson's Bay, and of all the territories, limits and APPENDIX. 331 1 aland places thereto belonging. They further set forth the attacks made in 1G82 and 168G by the French from Canada, and their applications for redress, and the declaration made by James the Second that he, upon the whole matter, did conceive 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; and they pray the then King, William the Third, to insist upon the inherent right of the Crown of England and the property of his subjects not to be alienated, that so con- siderable a trade might not be lost, and the Hudson's Bay Company " be left the only mourners" in the peace of Ryswick. At this time all their forts but one (Albany Fort) had been taken by the French ; some of them, indeed, w^hile the two Crowns were at peace ; an act of aggression specially referred to by His Majesty in the declaration of war in 1689. In January, 1700, being called upon by the Lords of Trade and Plantations, they offered proposals for limits between them and the French in Hudson's Bay, insisting at the same time upon their undoubted right " to the whole Bay and Streights of Hudson." The proposed limits were, to confine the French from trading or building any house, factory or fort to the northward of Albany River, situate in about 53® of north latitude on the west main coast, or to the northward of Rupert's lliver, on the east main or coast of the Bay, bind- ing themselves not to trade or build any house, factory or fort to the southward of these two rivers " on any ground belong- ing to the Hudson's. Bay Company." They urged that these limits should be settled ; stating, that if the French refused, they must insist upon their prior and undoubted right to the whole Bay and Straits of Hudson, which, they observed, the French never yet would strictly dispute or suffer to be ex- amined into, though the first step of the eighth article of the Treaty of Ryswick directs the doing of it. These limits would have given the French access to the Bay by the Moose River. v» 332 APPKNDIX. i !■ Ill ^i il ,1 'i ■I The French Ambassador did, however, in March 1698-9, set forth the claims of his sovereijrn in a long answer to the Eng- lish memorial, amon^ other thing's observing that the differ- ent authors who have written about Canada or New France, g-ave it no limits northwards, and that it appeared by all the grants or letters of corporation made at several times by the Kings of France to the companies settled in New France, and particularly in 1628, that all the Bay of the North is compre- hended in the limits mentioned by the said grants.* He also further suggested, that if the English had had any knowledge of the Bay, or any claim thereto, they would not have failed to have insisted on it, and expressly to mention it in the treaty of 1632 (that of St. G-ermain-en-Laye), M'hen they restored to the French, New F'rance. Admitting that the French neither then nor for a long time afterwards had any forts on the coasts of the Bay, he explains it by saying, that being masters of the inland country, the savages, with whom they had a continual trade, brought their furs over lakes and rivers. In April, 1714, the Hudson's Bay Company thank the Queen " for the great care your Majesty has taken for them by the Treaty of Utrecht, whereby the French are obliged to restore the whole Bay and Streights of Hudson ; the undoubted right of the Crown of Great Britain." In August, 1714, in reference to the same treaty, the Hud- son's Bay Company proposed that the limits between the English and F'rench on the coast of Labrador, should com- mence from the island called Q-rimmington's Island or Cane Perdrix, in the latitude of 58J° N., which they desin^ may be the boundary between the French and English on the coast of Labrador ; and that a line be drawn south-westerly, * L'Esearbot describes Canada at the period of the appointment of De la Roche, in 1598, thus: " Ainsi notre Nouvelle France a pour limites du c0t6 d'ouest les terica jusqu'a la Mer Pacifique au dela du Tropicpie du Cancer, au midi les iles de la Mer Atlantique du c6t6 de Cuba et Tile Espagnole, au levant la Mer du Nord qui baiipie la Nouvelle France ; et au septentrion cette terre qui est dite inconnue vers la Mer Glacfie jusqu'tl la Pole Arctique." -M^L APPENDIX. 333 to pass through the centre of Lake Mistassinhie ; and from that lake a line to run south-westward into 49" north latitude ; and that such latitude be the limit, that the French do not come to the north nor the English to the south of it. In another paper of about tho same period, they give the following account of the motives which induced the forma- tion of the Company : " It was, therefore, after the happy restoration of King Charles II. that trade and commerce began to revive, and in particular that some noblemen and other public-spirited Englishmen, not unmindful of the dis- covery and right of the Crown to those parts in America, de- signed at their own charge to adventure the establishing of a regular and constant trade to Hudson's Bay, and to settle forts and factories there, whereby to invite the Indian nations (who lived like savages many hundred leagues up in the country) down to their factories. ' In August, 1719, the Hudson's Bay Company acknowledges the surrender by the French of the Straits and Bay, in such manner that they had nothing to object or desire further on that head. But they urged the settlement of tho limits be- tween the English and French territories without delay, since the French subsequently to the conclusion 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 Com- pany's factories. It was 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 the latitude of 49°, except on the coast oi' 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 boun- 4 I If ^ ill W 334 APPENDIX. dary between the territories they claimed and those forming part of Canada, settled by some delined 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 ride by which they could insist that the extent of their terri- tories 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 as follow : "All the lands lying on the east side or coast of the said Bay, eastward to the Atlantic Ocean and Davis's Straits, and the line hereafter mentioned as the east and south- eastward boundaries of the said Company's territories. And towards the north, all the lands that lie on 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 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 oi' those lands, but where or how those lands terminate to the westw^ard 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," &c., describing the line from Cape Perdrix to the 49th parallel, and along that parallel westward, as in their proposals of August, 1719, ex- cepting 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 to leave the French in APPENDIX. 335 line 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 small 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 f^ven to France the south- erly 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 considered their territorial rights in refe- rence to their connexion with and proximity to Hudson'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 asserting 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 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 ex- tending to the Pacific ; assuming that the word " power" was used to designate the exclusive right of trade, and not the ownership of the territory. For if the Charter gives the fee- 830 APPENDIX. f 'V i I ■ii -it 1,11 simple of the lands to the Rocky Mountains, the Pacific is a " Sea," and Frazer's and McKenzie's are " rivers," into which " entry or passage by water or land out of the territories' actually granted may be found ; though in such case the ap- plication for a license for the exclusive trade would, if the Charter be in this respect valid, have been unnecessary. The French Grovernment, it appears, would not agree to the proposal which would have limited them to the 49th parallel. Colonel Bladen, one of the British Commissioners under the Treaty of Utrecht, wrote from Paris in lolO in re- ference thereto, " I already see some difficulty in the execu- tion of this afiair, there being at least the dili'erence of two degrees between the best 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 negociation, there can be no doubt it would have been resisted even more strenuously than the oftbrt 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 name, and after the dissolution of that Company had, in 1627, organized a new company, to which he conceded the entire country called C Canada. And this was before the Treaty of St. Grermain-en- Laye, by which the English restored Canada to the French. In 1668 this Company surrendered their Charter, and the King, by an edict of March in that year, established a council for the 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 re- ported from Quebec that the " Sieur du Lusson is returned. APPENDIX. 337 after haviui^ advanced as far as 500 leaiTiios from here, and planted the cross, and set up the king's arms in presence of 17 Indian nations assembled on the occasion from all parts, all of whom voluntarily submitted themselves to the domin- ion of His Majesty, whom alone they regard as their sovereiy designated one inconsistent with their present preten- sions, and which, if it had been accepted by France, would have left no trifling portion of the territory as part of the pro- vince 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 ad- vanced until the time that the Company took the opinions of ' In the e\-idenee given by the Honourable Wm. M'GiUivray, on one of the Xorth- WfSt triivls at York (now Toronto), in 1818, he stated that there were no Hudson's Bay traders established in the Indian country about Lake Winnipeg or the Red River for ei(,'ht or nine years after he had been used (as a partner in the North-west Company) to ttade in that country. X 1 I; '« t '! ' ( S38 APPENDIX. ii: the late Sir Samuel llomilly, Messrs. Cruise, Ilolroyd, Scarlett and Bell. Without presuming in the slightest degree to ques- tion the high authority of the eminent men above-named, i t may be observed that Sir Arthur T*igott, Serjeant Spankie, Sir Vicary Gibbs, Mr. Bearcrol't, and Mr. (now Lord) Brougham took a widely different view of the legal validity of the Char- ter, 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 territory granted to the merchants' adventurers of Eng- land 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 Temis- camary " 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 boun- daries which the tw^o separate Pr ovmces of Upper and Lower Canada had ; the northern boundary being the territory granted to the Hudson's Bay Comjjany. 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 aovi cultural settlements, and for opening new fields for commei enterprise, are all, more or less, dependent upon or aft'ec I by this question, and it is to Her Majesty's GTovernment 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 assigned 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 APPENDIX. 339 \l ;ijesty'.s Government that the Province appeals to take such eps as in its wisdom are deemed tittinur or necessary to have his important question set at rest. 1 Paper delivered in by Mr. Chief Justice iMiper, 28th May, 1857, relative to Canadia.v Bdundariks. Boundaries. On the 2oth January, 1G96-7, not long before the Treaty of Ryswick (which was signed on the 20th September, 1697), the Hudson's J3ay Company expressed their " desire that when- e ver there should be a treaty of peace between the Crowns of Kuffland and France, that the French may not travel or drive any trade beyond the midway betwixt Canada and Albany Fort, which we reckon to be within the bounds of our 'barter."' The 8th 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, ;iiid was never set up afterwards. In 1687, James the Second declared to the French Commis- sioners, MM. Barilloii and Bonrepos, that having maturely 'onsidered his own right, and the right of his subjects, to the hole Bay and Straits of Hudson, and having been also in- rmed of the reasons alleged on the part of the French to >tify their late proceedings in seizing these forts (Fort Nel.son and Fort Charles), which for many years past have been possessed by the English, and in committing several other acts >f hostility, to the very great damage of the Eng- lish 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 owm right and the right c his subjects to the whole Bay and Straits of Hud- son, and to the sole trade thereof. I.. 340 APPENDIX. !: i '.-. I I. " The gran s 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 what the King is rightfully and truly possessed of or entitled to, for nenio dat 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 Hud- son's Bay Company to the French Answer left with the Eng- lish Commissioners, 5th June, 1699, under Treaty of Uyswick. 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 part of the Hud- son's Bay Company as follows : " It shall not be the fault of the Company of Hudson's Bay, if their agents and those of the Company of Canada do not keep within their respective bounds, the one pretending only to the trade of the Bay and Straits above-mentioned, whilst the other keeps to that of Canada ; and that the forts, habitations, factories and estab- lishments of the English Company be restored, and their limits made good, as the first discoverers, po^isessors and traders thither." The Company having already waived the establishment of a right tc Hudson's Bay and Straits " from the mere grant and conc.\*sions of the King, which, indeed, cannot operate to the prejnuice of others that have the right of discovery and con- tinued possession on their side, it is again averred that His Majesty's subjects only are possessed of such a right to the coasts, bays, and straits of Hudson." " The lludsoii's Bay Company havhig 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 land.s and territories thereto adjoiiiing, in which is oomprehendt^d Port Nelson as part of the whole."— 10 July, 1700. The Hud- son's Bay Company proposed the folio v»'ing limits between ^^«ic. appii:ndix. 841 1 themselves and the French, in case of an exchange ol places, T,nd that they cannot obtain the whole of the Straits and Bay which of rijrht belongs to them. 1. That the French be limited not to trade or build any factory, &c., beyond the bounds of 58° N. or Albany River, to the northward on the west or main const, and beyond Rupert's River, to the northward on the east main coast. 2. The English shall be obliged not to trade nor build any factory, &c., beyond the aforesaid latitude of 53° or Albany River, or beyond Rupert's River, south-east towards Canada, on any land which belongs to the Hudson's Bay Company. 3. As likewise that neither the French nor English shall at any time hereafter extend their bounds contrary to the afore- said limitations . . . which the French may very reasonably comply with, for that they by such limitations will have all the country south-eastward betwixt Albany Fort and Canada, to themselves, which is not only the best and most fertile part, but also a much larger tract of land than can be sup- posed to lie to the northward, and the Company deprived of that which was always their undoubted right. By this document it appears the French were insisting on ha\ ing the limits settled between York and Albany Fort, as in the latitude of 53° or thereabouts. 22 January, 1701-2.— The Lords of Trade and Plantations asked the Company to say " whether, in case the French can- not be prevailed with to consent to the settlement proposed ' n the 10th July preceding by the Company, they will not consent that the limits on the east side of the Bay be the lati- tude of 52J°." This proposal would have given the Eest 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, they add, should the French refuse the limits now proposed by the Company, the Com- i !' ' J'. ■ili nil /•' I '. ' "■ It: ■. :* 342 APPENDIX. pany think themselves not bound by this or any ibrmer con- cessions of the Hke nature, but must (as they have always done) insist upon their prior and undoubted right to the whole Bay and Straits ol" Hudson, which the French never yet would strictly dispute, or suller to be examined into (as knowing the weakness of their claim), though the first step in the 8th Article of the Treaty of Ryswick directs the doinjr of it. If either proposal had been accepted, the French would have had access to James' Bay. The first propositions left them the Moose River ; the second appears to have given up Rupert's River. In February, 171 1-1 i!, prior to the Treaty of L'trecht, the Hudson's Bay Company proposed that the limits between them and th# French in Canada should begin " at Grrim- mingtou's Island, or Cape Perdrix, in the latitude of 5H^' north, which they desire may l)e the boundary between the Knglish and French, on the coast of Labrador ; towards Rupert's Land on the East Main, and Nova Brittannica on the P'rench River." That a line be drawn from Cape Perdrix to the Grreat J^ake Mistassing, dividing the same into two parts, beyond which line the French w^ere not to pass to the north. nor the English to the south. In August, 1717, they renewed their application for the set- tlement 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 this boundary. In August, 1719, hi a memorial, they say, that " the surren- der of the Straits and Bay aforesaid has been made according to the tenor of the treaty, at least in such manner that the Company acquiesced therein, and have nothhig to object or desire further on that head." But they even then complained that since the conclusion of the peace, viz., in 171;'), "the French had made a settlement at the head of Albany River, upon which very river our principal factory is settled, I 1:1 Hj «1^ •■ ' !l APPENDIX. 343 I whereby they intercept the Indian trade from cominc^ to the Company's 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 the latitude of 49", except on the coast of Labrador ; unless this is done, the Company's factories at the bottom of Hudson's Bay cannot be secure, or their trade preserved." This shows that the Company 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 Com- pany, and to such of the Indians as desired to trade with them. The precise terms of the instructions to the Commissioners hardly seem to have contemplated the latter part of the de- mand, for they (the instructions rtf 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 Com- missioners of His Most Christian 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 dilfi- culty in the execution of this ali'air, there being at least the dilference of 2° between the best French maps and that which the Company delivered us, as your Lordship will per- ceive by the carte I send you herewith." ^ '/I ' 1 ," ' t i I 844 APPENDIX. ..IW m' Colonel Bladen was right. Alter receiving the English demands, the French Commissioners, the Marechal d'Estrees and the Abbd Dubois, never met the English Commissioners 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 2oth 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 land and countries lying round the same, comprised, as your memorialists conceive, in the said grant, are as follows : that is to say, all the lands lying on the east side or coast of the said Bay, and extending from the Bay eastward to the Atlantic Ocean and Davis' Strait, and the line hereafter mentioned as the east and south-eastern boundaries of the said Company's territories ; and tovrards 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 towards the west, all the lands that lie on the west side or coast of the said Bay, £:nd extending from the said Bay westward to the utmost limits of those lands ; but where or how the^e lands terminate to the westward is also unknown, though probably it will be found they terminate on the Grreat South Sea ; and towards the south," they propose the line already 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 linal conclusion ; but they urged that the limits of the territories granted to them, and of the places appertaining to the French, should be settled upon the footing above mentioned. ^^ APPENDIX. 345 APPENDIX S. Memorandum. The Commissioner of Crown Lands submits the following remarks on the North- West Territories of Canada, Hudson Bay, the Indian Territories and the Questions of Boundary and Jurisdiction connected therewith, to accompany the other Documents : The question now under special consideration has more particular reference to the subject of the renewal of a Lease held by the Hudson's Bay Company for the '■'■Indian Territories, which are not considered to be within the boundaries ol Canada, though subject to Canadian jurisdiction. But the Hudson's Bay Company's " Map and Statement oi llights," under the original Charter, as sulunitted to the Im- perial Government in 1850 by Sir J. H. Pelly, the Chairman o the Company, has also however to be considered in connection with it. i: l)ecomes necessary therefore to expose the fallacies of the '■ Ht.it(-ment of Rights and Map " referred to, in order that the rigLf> of tlie Province may not be misunderstood or the pre- tensiojis of the Company taken for granted. The rights of the Hudson's Bay Company and the effect of their oi)erations upon the interests of Canada, will best be con.sidered under the following separate heads, viz. : First— With respect to their opf'rations under the original Charter on the territories atfected thereby. Second. — With respect to their operations within the bound- aries of this Province, on what has been termed the Indian Territories, now under lease to them. Third. — With respect to their operations. Fourth — Arising out of the ibregoing, the more important question of the Boundaries of the above Territorial Divisions and ^T Bti ( B'-' '' 1 ^- "M IK/' "% ■■ ^ pi 1 if I 1 ifj i 346 Fifth. — With respect to jur sanctioned by law. APPENDIX. isdiction as exercised and as Operations of the Company on their own Territories. On the tirst head, as regards their operations under their Charter on the territories which, if vaHd, it would cover, it i,s a matter of very secondary importance to Canada. The terri- tories of the Hudson's Bay Company, taken at the largest extent which any sound construction of their Charter in con- nection with international rights would warrant, if not in point of distance so very remote, are nevertheless so situated, that it can only be when all the localities to the south and west, more available for purposes of agricultui'e and settlement, have been hlled to overllowing, that settlers may be gradually forced into that vicinity from the superabundant population of more favoured countries. The most direct interest that Canada could have in the matter at the present moment, being responsible for the administration of justice there, would be rather of a moral and political than of an interested or commercial character. But as the necessities of the Company, in whose hands a mono- poly of the trade has practically existed since the Treaty of Utrecht, together with the powers which they profess to derive from their Charter, has induced them to establish a jurisdiction which, for the moment, seems to have been successful in maintaining tranquillity and order, Canada has had no special reason to intervene, though if any complaints had been made on this score she would of course have felt called upon to exercise the powers vested in her by Imperial Statutes. It is not indeed to be denied that the freedom of the trade, consisting of furs and fisheries, would be of advantage to this country ; but as this involves a question of the validity of the Charter, and whether or not, if valid in respect of the territory really allected by it, it would also affect the open sea of the Bay, and seeing that the question is not now raised of any APPENDIX. 347 further leiiisla.tion to give effect to the powers it professes to confer, the consideration of this point is immaterial at the pro- sent moment compared with the more important subjects that have to be treated of Operations of the Company on Canadian Territoru s. The Seconal point to be taken into consideration, and which is of a more important nature, is that which affects the opera- tions of the Company within the boundaries of Canada, and on this head it must be admitted that they have had every facility they could possibly enjoy in their own territories, if such exist : whether on the coasts of Labrador, Lakes Huron, Superior or Winnipeg- ; whether on the Saguenay, the 8t. Maurice, the Ottawa, the Red River, the Assiniboine or the Saskatchewan ; wherever they have operated within the bound- aries of Canada, they have had precisely the same scope as within their own territories on the shores of Hudson's Bay: not indeed but what if opposition had sprung up, the same facilities must necessarily have been afforded to any rival traders, had they not been effectually protected from such rivalry by their unlimited means, their extensive ramifications and complete organization, with which no rival traders were able to compete, unless indeed to a very limited extent in the immediate vicinity of the settlements. There are indeed parts of the Province so remote from estab- lished settlements, and having so little direct intercourse with them, that in former years it might have been to some extent a tax upon the country to have established tribunals sufficient to enforce the laws over regions inhabited only, with one exception, by the servants of the Company and the Indians, though it may now be reasonably (questioned whether corres- ponding benefits would not have accrued from such a course, while it must be admitted that the Company have at all events reaped a profit, taking together the costs they have been put to from the want of legalj tribunals and the monopoly of the 3*8 APPENDIX. I \t u trade which the non-org-anizalion of |such tribunals has practi cally been the means of enabhng them to enjoy. The exception referred to, where a considerable settlement exists, besides the employees of the Company and the Indians, is the Red Kiver Country. But the time has passed when any considerations of expense or temporary inconvenience, even if proved to exist, can be allowed to stand in the way of opening up those territories, when indeed the necessity for expansion compels the Pro- ^ancial Government to create further facilities for it ; and as an additional reason why the Government should no longer permit the present state of things to continue, it must be added that rumours have been gaining ground of late years, with a force and clearness that almost compel conviction, that the jurisdiction actually exercised in those remote localities has been as contrary to the wishes of the people as it has been manifestly without the sanction of the law, all which has created a necessity for early investigation and action on the part of the Canadian Government. With this view preparations were made in the Crown Lands Department last summer for a preliminary survey from the head of Lake Superior westward, preparatory to the opening of free grant roads, which have been so successful 'in other parts of the country, for the purpose of forming the nucleus of a settlement which would gradually penetrate to the valley of the Red River and the prairies beyond ; besides which a first-class thoroughfare would be necessary to afford easier means of communication with the navigable waters flowing to the west, &:c., to facilitate the administration of justice in the distant settlements, and the necessary intercourse generally between those parts and the more populous districts of the country, and which would at the same time throw open to emigration, agriculture and commerce a far larger area, with at least an equal average mildness of climate, and susceptible of more rapid development (a known characteristic of prairie countries), than all other parts of the Province heretofore rendered available for settlement. -PW^. APPENDIX. 349 The question of the renewal of the license of exclusive trade on the Indian Territories does not, of course, affect the country above referred to, any more than it does the lands, whatever they be, for they have never been defined upon authority, which the original Charter of the Hudson's Bay Company may, upon investigation, be construed to cover. Operations of the Company on the Indian Territories. The third point is, for the moment, of less importance than the last, though within the period of another such lease as the Act 1 & 2 G-eo. 4, cap. 66, authorises, as it would be impossible to calculate the immense influence it must have upon the future of this country, and the British institutions which have taken root so deeply and thrive so nobly on its soil. The present operations of the Hudson's Bay Company on these " Indian Territories " are conducted on the same principle precisely as within the boundaries of Canada, the jurisdiction they exercise having heretofore had the excuse of necessity, if not the sanction of law, and so far as it can be shewn to have been exercised to the benefit of those countries, the Com- pany might fairly claim indemnity for the consequences, should that become necessary, and there is no reason to doubt either the generosity or the justice of the Legislature if called upon to ratify such a measure. It now becomes necessary, under the fourth head, to treat the questions of boundary arising out of the three foregoing ; and these questions have, heretofore, been so little understood, that it will be necessary to enter into the subject at some length. The difficulty of describing definite boundaries in countries which at the time were but very imperfectly or partially known, has always been a 'matter of serious embarrassment. In the present instance, however, the difficulties can only be in matters of detail, and it may be safely assumed that they will be still further lessened by the fact, that wherever uncertainty M. 350 APPENDIX. can be supposed to preA'ail in any point of real importance, it can only be between the Province of Canada on the one hand, and the •' Indian Territories " on the other (not between Canada and the Territories of the Hudson's Bay Company, unless at a point of comparatively little consequence) ; and it would be difficult to conceive that it could be adverse to the interests of the Crown or the community, if the principal question of bovindary were sunk altogether, and the whole of the " Indian Territories " incorporated with this Province. Boundary of the Company's Territories? under Charter OF 1670. y I i\ ii In the hrst place, then, with respect to the Territory affected by the Charter of the Hudson's Bay Company, it may be ad- mitted that it would not only be difficult but absolutely im- possible to define it ; it is therefore fortunate that its limited extent renders the question of little importance further than that it becomes necessary to consider and rebut the very large pretensions of the Company. The extent of the territory affected by the Charter is subject to two distinct conditions : First — It is confined to all such territory as was then the property of the donor. Second — It is confined to all such unknown territories as by the discoveries of the Company, his subjects, might become his property. These distinctions, though not directly expressed, are never- theless conditions resulting from the circumstances, and neces- sary to a proper understanding of the case. With respect to the first, viz., the territory which was the property of the donor, it is necessarily limited by usage and by common sense to what was known or discovered, for the unknown and undiscovered could not be his property and might never become his property, that being dependent upon circumstances then in the future : it is further limited by spe- i APPENDIX. 851 cific condition, expressed in the Charter itself, to such portions of what was then known as did not belong to any other Christian Prince, which condition, it must be admitted, was an acknowledgment on the part of the donor that some part of the territory he was describing was not his, and of doubt as to what did or did not belong to him. With respect to the extent of territory that mipht have been affected by the second condition above stated (that is, as re- gards exclusive trade, the grant of soil being less extensive and more ambiguous), it has no particular limit, for it embraces all countries which could be reached either by " water or land" through Hudson's Straits, and to limit or extend it merely to the sources of rivers discharging into Hudson's Bay would be a construction which the Charter will in no sense admit of. But w^hile it extends to all unknown or infidel nations, which the Company could reach through Hudson's Straits or Bay, it is at the same time inferentially and necessarily/ restricted from extending to any of those unknown parts which might be first discovered and possessed by the sub- jects of any other Christian Prince or State. This is not indeed expressed 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 so careful, at least in the wording of the document, not to infringe upon the rights of others alrendy o.cquired, 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 supposi- tion 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 dis- covery as well as trade, &c. ; the advantages granted to the ■' adventurers " are incidental and subordinate to that greater object, but there could be no discovei-y on their part wherever V * ,1 J i 352 APPENDIX. they were preceded by prior discovery and possession on the part of the sul)jecf8 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 extravagant to ailirm that he could convey a right of property to territories not then, but which might afterwards hemme 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 ter- ritories now claimed under the Charter which were not dis- covered 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 Coas^ii and Confines of the Bay (to which perhaps they at that time justly considered their rights restricted) for upwards of a hundred years after the date of their Charter, and that when they did so jDcnetrate, the only discovery they made was that the whole country in the interior had been long in the peace- ful 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. i The early discovery and occupation of the country in and v about Hudson's Bay are, as in many other cases, shrouded in a good deal of obscurity. The British claim as the first dis- coverers 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 | ^'*i'^. APPENDIX. 353 I on the 10 right horover vatched itton on ti could ions, or iver and isiderod ")roperty come his ►u ot" the to dwell ' the tor- not dis- cards the icoverers company le Coaf>fs hat time rds of a at when was that le peace- ince. te of the Iv as an Charter. y in and ouded in first dis- lerica, in ear 1497 ; scoveries hich still retains the name they f^ave it, and which they 8ui>poKed to form part of the main land. II is mhl indeed that the Cabots penetrated to a very hij^h latitude far to the north of the iStraits now bearing the name of Hudson ; but it must be remarked that there a[)pear to be no authentic records of the two voyatrpg of the Cabots, their journals or observations. There appears to be only heana;/ evidence of what they did, or whore they went, told afterwards at second-hand to third parties. The voyaj^es of the Cabots, therefore, although they are matters of history, not admitting of any reasonable doiibt, in a general way, as to their having reached the coast of America, lose much of their Ibrce as the bases of specific territorial claims, from the want of any record of their proceedings. Did they ever land ? If so, where ? What observations did they make 1 Did they take formal possession ? &c. The French claim through lisherraen of Brittany wlio estab- lished Ksheries on the coast as early as 1504, and through a map published by Jean Deny, of Ilondeur, 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 pre- cisely the spot where their trade was carried on, though a British geographical work, published in 1671, with a map at- tached, fixes it at Hudson's Straits, naming the cotmtry after them, on the south side of the Straits and within the Bay. The next navigator through whom the French claim is main- tained is John Verezzani, who visited the country by order of Francis the First of France, in 1523-4. This is the first voyage, in behalf of either France or England, of which any authentic and circumstantial record exists, as written by the navigator 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 that the Cabots' voyages, unsustained hy any authentic record affording no means of basing even a 354 APPENDIX. I ■ i II probable surmise as to whether so much as a landing was effected, formal possession taken, or any act done to constitute the assumption of sovereig-nty or of terntorial dominion, com- prise the only grounds on which England can base a claim to the country north of Newfoundland, prior to the voyage of .lacques Cartier. Apart, therefore, from the question of " bene- Jicial interests" (to use the expression of a British diplo latist) v/hich were acquired by France, commencing with the dis- coveries of Cartier, the preponderance of admissible evidence is 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 unauthenti- cated discoveries 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 first place, it is a circumstance not to be lost sii,'ht of, that it (the discovery by Gray) was ncjt for several years followed \i\^ by any act which could give it value iii a national point of view : it was not in tmth made knoivti to the world cither b^ the dis- cooerer himself or by his Government." The next English attempts at discovery commenced in 1558. when Willoughby penetrated to the north of Hudson's Bay. which, however, he did not discover or enter. This was nine- teen years after Jacques Cartier's first voyage,and was followed by varous other attempts at ftnding a north-west passage, all apparently directed to the north of Hudson's Straits, until 1610, the period of Hudson's voyage, in which he 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 appointment in 1608, as follows : APPENDIX. 355 ^riod " Ainsi notre Nouvelle Franco a pour limites du c6ti(' of Chancer : on the south the Islands of the Atlantic towards Cuba and the ■Spanish Island or Hispanolia ; on the east the Northern sea which washes its shorec, fiiiliriw'ing on the north the lands called unknown, towards the frozen sea, up to the Arctic Pole. ru I 356 APPENDIX. peltries, how readily they amalgamated with the Indians, who in that locality were in friendly aUiance with them, and when it is also considered what extraordinary journeys the Indians undertook, as instanced by the war carried into the enemy's country at the Sault 8t. Marie, already referred to, the presumption is that the fur traders of Tadousac not only eiijoyed the trade of the g'reat bay, but must also have pene- trated very far in that direction, if not to the Bay itself, a Journey at the most of less distance and not greater difliculty than that which Chamj^lain successfully accomphshed 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 Co^ircurs des Bo is haying been in communication with the great northern Bay before the visit of Hudson in IGIO, or of Button, who succeeded him in 1612, it is not necessary to base any argu- ment thereon ; nor is it necessary to dwell on the reputed voyage of Jean Alphonse, of Saintonge, in 1545, vv'hich, 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 being their sole object ; but waiving even this point, it will be found that the rights of France were made good by internationo.1 treaty long before the Charter of Charles the tSecond was granted. It will be seen from L'Escarbot's description, and those con- tained in the commissions of the Governors already referred to, that France claimed the whole country 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 unquestioned authen- T9^; \" APPENDIX. 357 ticity, to which they had added, when L'Escarbot wrote in 1611, the title resulting from actual possession in the shape of permanent settlement. England, on the 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 settlements of her own, in which she W!'< successful at a period somewhat later than the French. The fact is, each was trying to grasp more than she could take actual possession of; and if mere discovery of parts of a continent without actual possession or setth^ment were made the bii.^is of perrrianent 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 d .'A'i; r.ito a sort of intelligible shape, though without any vei) distinct boundaries, the most northerly of the Eiiglish possessions being known as New lilngland, and all the country to the north thereof being known as new France or Canada, where the French only were in posses^sion, there being no possession or settlement of any kind to the north of them. Still, had lingland 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 extraordinary energy in trying to find a north-west passage there can be no doubt, nor does ii appear that France, though publicly claim- ing the country, made any objection, but neither country made the most distant attempt at settlement or occupacion 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 Bylot. In 1627, the Quebec Fur Company was formed under the auspices of Cardinal Richelieu, and an exclusive Charter granted to thera for the whole of New France or Canada, described as extend- ing to the Arctic Circle. In 1620, Quebec was taken by the British, as were also most of 'lie other principal towns founded by the French in Acadia and Nurembegia (now Nova Sootia and b If! 358 APPENDIX. phi; M New Brunswick), which were then Provmce:j of New France, the two nations being then at war. In 1681, Fox and James, on two diflt'erent 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 in 1610, Button in 1612, Bylot and Baffin in 1615, and Fox and James in 1681 ; the numerous other expeditions having been all apparently directed to tlie north of Hudson's Straits. At tlie same time the extent of New France or Canada, as claimed by the French, was pub- licly known throughout the civilized nations of Europe. It is not necessary to say that that claim was admitted by Grreat Britain; it is sufficient that it was known. British authorities even of a later period, it must be observed, have contended that the French were intruders in America altogether, in violation of the title accrued through the discoveries of the Cabots, and had no right whatever to any part of it until ax- quired hy 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. Ger- main-en-Laye, Canada or New F^rance 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 England, this Treaty sets the matter at rest as regards all tliat was at that time called by the name of New France or Canada. There is mdeed no getting behind this treaty, of which the Charter afterwards granted by Charles the Second was in fact, but for *'^:.._ V'' APPENDIX. 359 th<- saving" clause it contains, a violation, and Canada might well be content to rest lior case here as against a Charter which, referring to a counUy previously guaranteed by the treaty to a foreign power, is expressly conditioned (as a Charter of discoveryj 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. Grermain-en-La^, e, 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 \is entered into, he published a work, containing a map of lew France, by which Hudson's Bay was included in the country so called. Can it then for a moment be sux>posed, 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 Grovernment and the Diploiriatisits who negociated 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 pre- vious date indicated, and with which the descriptions of other French writers whose works were known throughout Europe coincided ? Can it be supposed that in the negociations pre- ceding the Treaty, Champlain's views of the extent or bound- aries of his Viceroyalty were wholly unknown, or that the British Diplomatists meant something (>lse by the appellation than what was known to be tmderstood by France V It, in- deed, something less than the known extent of the country called New France had been agreed upon, some explanation would undoubtedly have been contained in the Treaty, or. if there had been any misunderstanding on the subject, the map which issued the same year, in Champlain's work of 1032, would at once have been made a cause of remonstrance, for, M I t 360 APPENDIX. coming i'rom the Chief Officer of the Colony, who was re- appointed to or continued in his office after the Peace, and published in Paris 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. Grermain-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 them ; and if she had no rights before, the Treaty created them ; and in either case, the effect was as great in the one locality as the other. Every further step, however, in the history of the country will only tend to show that even if there had been no such treaty as that of St. Ger- main-en-Laye, the Charter could not be sustained in opposi- tion to the rights of France. The provisions of the Treaty of 1G32 seem to have been respected for a period of 3G years, when in 1G08 the next English expedition entered the Bay, which w^as the first tmd- in(j voijdffc ever made by British subjects to the Bay, and which resulted in tiie formation of the Hudson's Bay Company and the grant of th« Charter two years afier. In saying that tliis was the first purely commercial enterprise of the British in Hudson's Bay, it is not meant to be implied that no trade was had with the Indians by those engaged in the former expedi- tions, but that such enterprises were undertaken with the definite object of reaching the Pacific, and without the least idea of any practical occupation of, or trade with th<^ country. The British having ceased any attempt upon Hudson's Bay from the time of Fox and James' voyages and the Treaty of St. Germain-en-Laye for a jieriod of 3t) years, it now remains to be seen 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 durmg that period is uidisputable ; -^Tt APPENDIX. 361 the French published maps of these times leave no donbt upon the subject; and whon 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 and 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 preferred it was considered to have been abrogated by the Treaty. In 1650 the first exclusively commercial sea voyage was made into Hudson's Bay by Jean Bourdon, who found the trade in furs so prolitable that others immediately followed. The lirst missionary establishment was made in 10G3 by l^a Couture, who went overland by direction of D'Avangour, Grovernor of Canada, who had been twice solicited by depu- tations of Indians from the Bay to send them missionaries; and now the French being iully 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 counten- ance of two Canadians, De Groztlier and Kadisson, who having been already engaged in the trade of the Bay, and having failed in procuring certain privileges they desired from their own Grovernment, went to England and induced some Englishmen to join them in a trading voyage in 16(38, which was so suc- cessful 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 ol the Gulf of Mexico, known and unknown, may be said to have been covered by them, and some of it doul)ly so if the vague and ambiguous descriptions, of which this was the most vague, could be said to mean anything. % Ji :i 362 APPENDIX. This was tho, origin of the Hudson's liay Company, and they immodiatoly commenced to build Ibrts and establish them- selves in the trade, bnt no soner was this known in France than orders were given to expel them. Accordingly a desul- tory 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 strength- ened their position when it became necessary to take more effective means for their expulsion. Troops were accordingly despatched from Quebec overland for that purpose under the Chevalier De Troyes, who commenced his work very effectu- ally 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 mp de a cause of war, which in itself would strongly imply an admitted right on the part of France 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 the 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 the Treaty in this particular other- wise than as a justification of the a^t. Moreover, commissioners were to be appointed in pursu- ance of the Treaty, to determine the rights and pretensions I MJ APPENDIX. 363 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 "r////*/.s" and which were '^ i^retoisionur The commissioners must, however, have been bound by the text of the Treaty wherever it was explicit. They migld have decided that France had a rig-ht to the whole, but they would not have decided that (ireat 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 discretion. The following are the words of the Treaty: "But the possession of those places which were taken by the French, diiriiig 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 recognised and confirmed the right of F" ranee to certain places in Hudson's Bay distinctly and definitely, but 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 this 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 Company re- tained possession of Fort Albany onlij from that time up to the Treaty of Utrecht in 1713. Now, whatever the commissioners might have done, had they ever passed judgment 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 F'rench during tht^ preceding peace and retaken by the British during the war, and therefore adjudged hi direct terms of the Treaty to belong to France. ' r 864 APPENDIX, hA Thus tlitMi it will be seen, that the only possession hold by the Hudson's Bay Company during the sixteen years that intervened between the Treaty ol" 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. Jlere, therefore, for the second time an International Treaty interposes a barrier against the pretensions of the Company. By the Treaty of Utrecht in 1718, the whole of the Jludsoiis Bay was ceded to Great Britain without any disthict definition of boundaries, for the determining of which commissioners were to be appointed. No official statement of the action of such commissioners is at i)resent 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 dispute so long pending on what was called the North Eastern boundary question between G-reat Britain and the United States, which was finally com- promised by the Treaty of Y/ashington, concluded by Lord Ash burton ; and again the difficulties arising out of the same ambiguous description, and which so many Commissions en- deavoured 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 France 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 ))oundary ran along the high lands separating the waters that discharge into the St. Lawrence from tliose that discharge into Hudson's Bay to the sources of the Nipigon River, andthence along the northerly division of the same range of high lands di\iding the waters flowing direct to Hudson's Bay from those flowing into Lake Winnipeg and crossing the ■«e APPENDIX. 365 Nelson, or rather (as it was then known) the Bourbon River, about midway b«'tween the said l^ake and Day, thence passing to the west and north by the sources ol' Churchill Kiver, &c., no westerly boundary ])ein<^ anywhere 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 audits immediate environs, but what- ever the legitimate interpretation ol" the Treaty, the actual acceptation of it gave to France at least all to the south of the dividing high lands above described, for she remained in un- disputed possession thereof until tlie final cession of Canada in 17G3; while on the other hand the acceptation of it on the part of Great Britain, as proved by the same test of occujxition, confined her at least to the north of the said high lands, if not lo the very shore of the Bay, beyond which her actual pos- session never extended. It must here be observed, however, that the Treaty of Utrecht conferred nothing upon the Hudsotis 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 w^as his (if anything) to grant in 1670, but it would have required a new Charter to have granted 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 con- ferred no territorial rights upon them, the territory it conferred on Great Britain was then inaccessible to British subjects by any other route than through the Bay and Straits of Hudson, over which (if anything) the Company's Charter gave exclu- sive 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 50 years more, when Canada was ceded to Great Britain by the Treaty of Paris in 1763. During this period the Hudson's Bay Company occu- i lAAAGE EVALUATION TEST TARGET (MT-3) 'V V :/. 1.0 I.I 1.25 lAo mil 2.0 1.4 1.6 V] ^ /a e-. ^^M ^W e, ^A ^ ^ ^ o^ ///. Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY )4580 (716) e72-4503 1^ ^7^ >^ 866 APPENDIX. : It wm ~~li pied the posts on the coasts of the Bay, and IheHe only, having made no attempt to penetrate into the interior or occupy even what the Bi'ttiah (h;oir opponents. It is only nec<'.s- sary to refer to it here as the lirst 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 the principal partner and acquired a predominant ': 868 APPENDIX. h' \t f 3,*-- ■;.i; inlluoncc in the affairs of the Hudson's Ray Company, it was determined to assert the assumed privilej^os of the Company to an extent never before attempted, and for this purpose a grant of the country on the Ued lliver was made to his lord- ship, who commenced in 1811-12 to plant a colony there.* A Governor was appointed, the colonists and the servants of the Company were armed and drilled, and in 1814 the cKiims of the Company to soil, jurisdiction and exclusive trade were openly asserted, and for the lirst time attempted to be enforced by the actual expulsion of the North-west Company, several of whose forts were surj^rised and taken, their people beinij made prisoners, their goods soi;?ed, and the channel of their trade obstructed by tlie interception of their supplies. Over- awed 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: 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 linal catastrophe occurred in the spring of 181>), while in the meantime Lord Selkirk vvjis orga- nizing a more formidable force than had hitherto taken the Held. Having procured a commission of the peace from the Governmeiit of Canada, he engaged a large force of the tlis- banded DeMeuron soldiers, 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 Government of Canada to have pursued to per- mit such a force to be organised ; but w^hen it is considered that great ignorance prevailed as to the state of those remote * '' wild haw luvn the .'v;,'Krf.s^ors in tlieir (liffercnt (inarrt'l.x, I ani not able t<) ileter- niino ; liowover. i)iTvionH to 1811, at wliicli tiino Lonl Selkirk lu-came connt-iteil witli the company tradii!^ in Hiulxon's ['ay, ami ncnt settlers from Kuro|)e to that eoinitry, no (,'reat differenceH existed hetwet ;, the servantH of that Company and the f\ir tratlern of Canada. There might l>e ditfieidties between ilitTerent |M>sts, Init seldi'ln attemled with serious lonsequencus." Duttpati'h of Li«ut«nant-(Jrovernur Gror« to Eail Bathuret, !Hh Se|)tember, 1816. i \IPENDIX. .WA looalities, that it was known that there had been disturbances and bloodshed the previous year, when also Lord Selkirk's |K)silion is considered, and that he went as a pacificator pro- fessedly to maintain peace, it may not be deemed so extra- ordinary that so much confidence should have been placed in him, for he was even granted a sergeant's guard of regular troops. It is not the object here, however, to enter into a discnssion of the unfortunate occurrences of that period, or the particular action of the provincial government, and the cir- cumstances are only referred to. to show that Canada actually exercised the jurisdiction, that Lord Selkirk's destination was the Hed River Colony, and that he deemed it necessary to fortify himst'lf doubly with commissions as a Canadian magis- trate, first lor Canadian territory, and second (under 43 Ueo. ■■}rd) for the '• Ind'viu teri'itoi'i''.>*.'' so that those who resisted his authority on the ground that they were in Canada, he could judge under the on*' commission, and those who resisted on the ground that liiey were in the Indian territories, he could judge under the other, while the judicial and uovernmental attribute.s claimed for the Company would have served as a third basis ol Operations : and thus with th»' actual force at his disposal there was a pretty fair prospect ( f the Hudson's Bay Company biding made the absolute masters of the north-west country. At the Sault Ste. Marie, however, Lord Selkirk met intel- ligence of the death of Governor Semple and the dispersion of his colony ; nevertheless he still proceeded with his force AH far as Fort William, on Lake Superior, where he arrived ;il)out the 11th of August, IHIO, and soon after arrested the partners of the North-AVest Company, who were there at the time, and took possession of the whole establishment, including tht* merchandise and stores of the Company. The course pur- Hued on this occasion, as appears by documents published at the time, shews the chararacter of the pretensions set up at that period — pretensions which were then and not till then presumed upon. 370 APPENDIX. if-; ■i ■ :■ r^ Jll It will be observed that Fort Williuui was the principal depot of the Canadian merchants, through which all their supplios for and peltries from the north-west had to pass. By seizin'j: on this ix>int therefore Lord Selkirk had possession ol the key of their whole trade, and was enabled to permit or refuse the transmit of th«*ir goods as he saw lit. For whatever purpose, therefore, he obtained his two commissions of the peace in Canada, the expedition simply resolved itself into a continuation of the attempt to destroy the North-west Com- pany of Canada, the rivals in trade of the Hudson's Bay Company, for, however desijable it might be to arrest and bring to trial all parties implicated on either side in the death of Governor Semple. there cuuld be no excuse for seizing the persons of those gentlemen who were known not to ha\c been at the time within hundredsof miles of the scene of that catastrophe, merely because they were partners in the North- w«'st Company, nor. even if there were cause for Uieir arrest, did that justify the taking possession of their property without the sanction or the lorm of law.* The o!>ject of entering upon this brief record is, to point out that all this occurred at Fcrf William, on the shores of Lake Superior, within what the Hudson's Bay Company, by their map and statement of •' rights,'" now admit to be within the boundaries of Canada. And thus it will be seen that, while the pretension of extending the privileges of the Charier be- yond the " coasts and conlines' of the bay to the western ter- ritories of Canada, was a mere invention of that period, to further their own ends and to destroy the rival company of Canada, they were as ready to employ force at Fort Wilhaui as in the valley of the lied Kiver. In further proof that the transactions at Fort William were openly done in violation of Canadian law and in delianoe of • " Fn)Ui thene l»<>ciimi'ntj» it apix-aw, thiit tho K.iii of Selkirk, acting; in hU own eauie, aidt^d by an aniutl fom-. liaH not only iiiatle tin- I'artni'rn of the Noitliweii* Oiopany piisonvnt, but h«rs and I'roperty.'' - Litut.-(>uv. Oorf tn Barl Bitthurtt, 'Mh tk/it., 1816. APPRNDIX. 371 Canadian authority, it is only necessary to add that when Lord Selkirk's proceedinj^s became known, warrants were issued for his ai>prehension and a party of constables sent to arrest him. and that refusing obedience to the laws of this country and presuminsjj upon the force for the moment at his command in that remote locality (remote then as reufards the time it took to reach it, th(r\^h at our doors to-day), he caused the con- stables to be taken prisoners themselves, and treated the De- puty tSherill of the western district, who afterwards made the attempt, in like manner. This war between the Companies, though injurious to both, failed to exterminate either, and the final result was a com- promise by which they entered into partnership ; and thus the trade has been carried on since, under the name indeed of the Hudson's Bay Company, but expresaft/ in conjunction with the North-west Comi)any of Canada, so that Canada can at no tinm l)e said to have been out of possession of her western ter- ritories within the limits occupied by the French at the time of the con(juest, nor out of possession of the " Indian Terri- tories" beyond, which, after the conquest, were first discovered l)ythe Canadian traders, and for which the license of exclusive trade was granted to the pirtnersof the North-west Company of Canada, as such, in conjunction with the Hudson's Bay Company. It i; true that after the amalgamation of the (Companies and the license of exclusive tradi' granted in 1821, competition became ille'^al in the " Indian Territories," beyond the boun- daries of Canada, as indeed it had always proved im/irnrtirnble on the part of minor traders eilher ^^ itliin or beyond the remote |)arts of the province, small traders being altogether unable to cope with the two great Conipa)iies. It is true also that after they, the two great ( V)mi>anii's, had been for some time united, ajul when by the policy pursued by them the trade had ceased to he benelicial lo, and hail been lost sight of in, Canada, an arrangement was eliected between the two sections of the auiled Company by which the name of the North-west Com- 372 APPESniX. ;) ■-m pany was dropped entirely, the lease relinquished, and a new one obtained in which the name of the Hudson's Bay Company alone api)eared ; but it must be observed that this new arrange- ment was accepted and entered into by the British govern- ment by consent of the partners representing the original Canadian Company, for although this lease or license only aflects the Indian Territories beyond the actual boundaries of Canada, it can scarcely be supposed that the government would have agreed to give it. had Canadian traders still remained in the field The policy of the Companies, when joined, has however been so far successful that they have managed heretofore to secure themselves against opposition. many no doubt being imposed upon by the pretentious but erroneous construction put upon their Charter, and the public in general kept in the dark respecting a trade which, though partly carried on in the very centre of Canada and within range of steam navigation, is so managed as to p»ss by a cir- cuitous route, by means of the primitive canoe and over por- ages on men's backs, away hundreds of miles into the intt- rior and round by Hudson's Bay. But the time hasccm«* vvh«»n Canada must assert her rights, not only from that necessity for expansion which her growing popu- lation and trade require, but also because if she does not now begin to provide for the future by opening up her remote ter- ritories to colonisation, and securing the loyalty and attach- ment of the people by extending to them the rights and privi- leges of her laws and institutions, there is a moral certainty that a power far more formidable than the Hudson's Bay Com- pany miist in a very short period acquire the actual possession of those countries. This brief chronological sketch of the history of the ( 'om pany and of the circumstances connected therewith, must suf- ficiently shew that they have acquired no territorial grant v\ hatever under either of the two conditions stated to which their Charter was subject : first as regards the countries then known uf>on the " coasts and confines " of Hudson's Bay, be- APPENDIX. 373 cause they were already in the possession of the subjects 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 penetrated into the interior, 104 years after the date of their i^Charter, they found the country and a long-established trade in the liands of others. — unless indeed as regards some discoveries to the north which are of no special importance to Canada, such as the Copper Mine River discovered by llearne under the aus- pices of the Company. Under the first head the most sanguine advocate of the Com- pany, upon a full investigation of all the circum.stances, could only I'.rge on their behalf a claim to certain points, or stations, on the sea coasts of the bay, and even to these a doubt- ful and disputed title. The high legal authorities that may be quoted >in favour of the claims of the Compiuy cannot be held as of weight against the conclusions inevitably resulting from a fuller investigation of the subject, inasmuch as theyjare merely opinions ufxm the cases submitted. The latest opinion given upon the subject is that of Sir John Jervis and Hir John Ro- milly in their letter to Earl Grey, of January. I80O, in which they give it as their opinion, " That the rights claimed by the Company do properly belong to them." Before arriving at this conclusion, howeve , these learned irentlemen are care- ful to specily precisely what papers they had then under con- sideration, and to which alone they refer as the ba.sis of their opijiion. The.se pn]>ers were simply the " Statement of lUj^hls and the Map " submitted by the chairman of the Company, Sir J. II. Pelly. This opinion, therefore, can only be taken as affirmative of the power of the King to grant such rights and privileges as the Charter specifies, and that the Charter would cover all the territory claimed, but the question of whether that terri- tory belonged to the King to grant was not before them. With respect to the territory which the wording of the Charter m m 374 APPENDIX. :f'1 it ^'4 —it 'I won]d cover, it would be ditticull to say what it would not cov<*r;and with rcspoct to the validity or tho prant oi' such powerh, it is to be remarked that very high authoritit's have given a directly oi)pvi8ite opinion ; and it may Ix? asked why. if the ^"barter was valid, did the Company i)rocur»' an Act ot Parliament to confirm it in 1000, and why when that Act ex- pired, which was limited to seven years, did they again ask for an Act to continue it ? It is worthy oi' notice, too, that the »even years Act was passed during war with France, when it appears that Parliament did not scruple to grant or conlirm a Charter for countries to which Great Britain had, at host, but a disputed title, based only upon a very i>artia], and, even darini^ jM^ace, a very precarious possession ; nor is it lose worthy of remark, that, when Parliament r<'luscd to re-grant or continue the Charter the Treaty of Ryswick had interv»Mied, by which the rights of France were recognised, and tho.se of Great Britain left, at most, in doubt, and when, therefore, any »tich Act would have been a direct violation of an interna- tional Treaty. Another opinion appears to have been obtained l)y tht> Hudiion'M Bay Company at an earlier period, from Koinilly Holroyd, Cruse, Scarlett and Boll, equally upon the case drawn and without reference to the real points at issue, merely affirming that the grant of the soil contained in the Charter is gooivrts throuu-h Hudson's Lay than through Canada. The question they submitted therefore was solely in regard to the validity of the Charter in respect of the naviga- tion, trade and fisheries of the l)ay itseli". The North-west Com- pany as little dreamt of asking an opinion respecting the lega- lity of thv^ir trade in the interior as the lludsoji's Hay ( 'ompany thought, at that period, of attempting its forcible restraint. In the case put it is to be remarked that no reference is made to the early possessions of the French on the coasts of the bay, and consequent possession of the bay itself in communicating therewith, and yet. and e^-en without this, these opinions are entirely adverse to the exclusive privileges claimed under the ('barter. After the difficulties occasioned by the more recent assumjv tion of power in virtue of the Charter to expel the North-west Company from th«« Red River country, uny would have resorted to force at such a lavish ex- pense (and it must be added, involvinu >io small amoinit ol bloodshed) when the (piestion could have been so easily de- ten. ined by tin' legal tribuiuds. at an (»xpense altogether in- considerable as compared with the actual losses and costs incurred. They have indeed attemjited to shew that they had not an e(jual chance with their rivals in the courts of thi.'^ I'rovince : but not to speak of the injustice of such an insi- nuation in itself the objection is unt(Mial)le while tht^t/ had Iht ri^ht of tifi/)f(i/. and to suppose that they were deterred from takiiiir such a course from any dilUculty attending the proceeding would be simi»ly absurd, when wo iind them organising an (inn// to defend their claims in tho.sc remote loca- lities, and thus voluntarily removing the venue from the courts of law. by a far more difficult and expen.sive i>rocess. to the arbitrament of force, where the interference of law conld not be so readily invoked to check their proceedings. And if any justification of this course could be based on the supposed validity of tiieir Charter, and on the ground that it could be construed to cover that locality, why, when they ■"1-^ APPENDIX 377 fftilod to maintain thoir position by forcp, when tho North- west Company, even after the temporary interruption of their trade throucrh the seizure of Fort William by Lord Selkirk, still continued in the ascendant, why did they not then resort to a trial at law, which, if U had resulted in their favour, would at once have secured a power exactly commensurate with the emerj^ency to maintain their riifhts ? for then, ii the civil power had proved insufhcient the whole power of the empire would have been available as far as necessary. But insteatl of tryinir the issue in a Court of Law they iinally amali^'imated with their rivals, aflbrdinjr thereby a clear proo<' that they had no hope of beiusf able to treat them otherwijo than as possessinj:^ e(ju ! j ights, thus consenting to their opponents sharing with them what they had previously con- tended to be their private proi>er*y. To conclude the question of the Hudson's Bay Company's territories under their Charter, therefore.it is ditticult to arrive at the result that they have any territorial rights at all, for in the lirst place the country was practically occupied by the French before the date of the ChartiT and consequently ex- cluded from it ; and in the second place, because the whole country, iucludint'- Hudson's Bay, was known as New France or Canada, as per maps and descriptions publicly known throughout Europe previous to that date, and therefore, if not .so before, became the property of France by the Treaty of St. (Jermain-en-Laye. in lt)82. and as such neressari/i/ could nof bf and expresaly was not granted by their Charter ; and in the third place, because by the Treaty of Ryswick the right of France to expel them as trespassers on her soil was manifestly admitted. And hnally, even assuming that (Jreat Britain originally had acquired a divided right with France, each to the extent of the establishments which their subjects respec- tively were the first to form, the Hudson's Bay Company would only have a right, under their Charter, to those par- ticular posts, or forts, which they were the first to take pos- session of in locaUties previously unoccupied, for the Treaty M 378 APPENDIX. ''I of Ryswick conferred nothing upon them (if it even permitted them to retain anything, which is doubtful) ; the Treaty of Utrecht, although it gave Hudson's Bay to the British, con- ferred nothing upon the Company, apart from other British subjects ; and the Treaty of Paris (although it gave Canada to Great Britain) conferred nothing upon them, except rights in common with other British subjects ; while until eleven years after the last named treaty they never occupied any- thing beyond their original establishments on the coast, and those (also on the coast) conquered from or ceded by France at the Treaty of Utrecht, but which could not, by subse- quent Conquest, or cession, be made subject to their Charter Boundaries of Canada. Having thiis disposed of the boundaries of the Hudson's Bay Com^ any's Territories —if such can be said to exist — the boundaries of Canada next come to be considered, and a divi- sion of the subject will naturally suggest itself into two head'<. First, the original boundaries of Canada as acquired under the French; and second, the boundaries of Canada as acquired by (ireat Britain in 1763. The southerly boundaries, when not affecting the present question, need not of course be particularly referred to. It will not be necessary to enter at length into the question of the original boundaries under the French, as they have already been sulFiciently indicated. Thry vinimed all to the north of the f^t Lawrence, and were the lirst to occupy Hud- son's Bay. H" the British, besides their visits in search of a north-west passage, had seen fit to occupy the country for any practical purpose and been the first to do so, they might no doubt have claimed it for their own. Had any such actual occupation followed the voyages of Hudson and Button, not- withstanding the French footing on and claim to the whole continent north of the St, Lav^'rence, it must be admitted that a valid title would have been created. But when such occu- APPENDIX STP* pation was only first attempted some fifty or sixty years later, in support of a commercial project of two Frenchmen who had been already engaged in the trade, and when France was in formal and actual pof session, it cannot be denied that the French title VA'as the prel'?rable one. Of the original territories of Canada, Great Britair^ therefore acquired a part by the Treaty of Utrecht, the residuo remaining to France for fifty years later. On this head the: e seems to be no dispute, for British authorities designate a part of what they claim to have been acquired by that treaty as Canada. It now remains to be considered what were the boundaries of the country finally acquired by the Treaty of 1703, which, according to French and other authorities, was much largev than according to British authorities ; but it will perhaps be most satisfactory for the present to adopt the latter. One of the most circumstantial British accounts of the westerly possessions of the French is to be Ibund in a geo- graphical and historical work published by Thos. Jefterys in 17G0. After giving the French account of Canada, he pro- ceeds to give the English version of its boundaries in the following words : "Canada, accordin;,' to the English atconnt, is hounded on the nortli hy the hiifh lands which separate it from the country about Hudson's Hay, l,al)rao.sse3sions, the boundary from the source of the Mississippi westward being left undetermined, a question which had ultimately to be settled with the United States instead of with France. If 882 APPENDIX. I iff i ) \ '1 he system adopted and industriously followed up by the two rival Companies after their union had indeed so disseminated an erroneous appellation, that the country north and north- west of the Mississippi had come to be commonly called the Hudson's Bay Company's Territories ; but when diplomatists and statesmen came to consider the subject, tracing up from history and iact their respective claims, as bearing upon the Oregon question, they did not stultify themselves by the use of such an erroneous term ; accordingly we find Mr. Bu- chanan, now President elect of the United States, using the following language, in concluding a proposition made by him on 1st July, 1846 : " The line proposed will carry out the principle of c '^itinuity equally for both partiei>, by extondini,' tlio limits botii of nnricnt Louisiana ami Canada to the Pacific along the same parallel of latitude which divide thtm east of the Rocky Mountains." The samo line of argument sustains the British plenipoten- tiary when, in urging the pretensions of his Government to Oregon, he traces the progress of the Canadians westward across the Rocky Mountains to the Pacific. The next step in the natural progress of events is the des- cription of Canada under British sway. The first step after the Treaty of Paris was to provide lor the government of the settled parts of the country, for which purpose the Govern- ment of Quebec was organised, comprising however a very limited portion of Canada, as per proclamation of 7th October, 1708, the rest of the country being therel>y reserved from survey or settlement, for the moment, for the protection of the Indians. The description ol' Canada, however, of that period took in the country to the westward of Pennsylvania, l)y the Ohio River, to the Mississippi. And the Imperial Statute of 1774, commonly called the "Quebec Act," describes the Pro- vince as extending " Northward to the Southern Boundary of the Territory granted to the Merchants Adventurers of Eng- land trading to Hudson's Bay," buf (hws not sperif// what their houndarits are, and it will be seen, by what follows, that the ir"t. e des- after of the ivcrn- vcry |tober, om A' the icriod y the lite of Pro- ry of i':iig- (heir X the APPEiNDIX. 383 construction put upon this Act by the British Government, nine years later, was adverse to the present pretensions of the Company. The Treaty of Independence of the United States provided a new southerly boundary for Canada, a part of what had formerly gone under that name having been ceded to the United States ; and by the commission issued to Lord Dorchester — the first after this Treaty — the same words are used in describing the boundaries of Canada, as in the Treaty, viz. : " ThrouBh I^ake Superior iiDrthwardH of tht Isles Royal and Philipeaux to the Long Lake ; thence, through the uiiiUUe of the .said Long Lake .and the water coniniunica- tion between it and the l^ake of the Woods, to the said Lake of the Woods ; thence, through the said liake to the most north-western point thereof, and from thence, in a due west course to the lliver Mississipiii and noi-thwfird to the southeni boundary of the territories granted to the Merchants Adventurers of England trading to Hudson's Bay." This description, it will be seen, loaves the boundaries be- yond the sources of the Mississippi indeterminate. On the supposition that a line due west from the Lake of the Woods would intersect the Mississippi, the King was obliged to limit the extent of Canada on such line to the Mississippi proper, because by the Treaty of Paris, France retained the whole country to the west of the Mississippi from its source down- wards. Had the King's Commission said from the intersec- tion of the due tvest Ihie with the Mississippi " due north" it might have been argued that it provided a westerly boun- dary, but it simply says " northerhj',' l)ecause althougli it was necessary to limit it to the Mississippi, where Louisiana com- menced, there is no need for being specific beyond tlu* sources of that river where the westerly boundary of Canada was yet unknown. Of the extent of Canada to the north by this des- cription, it is enough to say that it was the same a^ by the Act of 1774, and recjuired the boundaries of the territory j,'raiited to the Hudson's Bay Company to be defined /?/-.v/, and il that failed it had no other limit, short of its original extent ander the F jnch. At the " dehnitive Treaty of Peace " with the United States I ^ 384 \PPENDIX their territory did not extend at any point to the west ol" the Mississippi, until they acquired l-.ouisiana in 1803. It will be remembered tiiat Mr. Pitt objected to the northerly boundary ol" Louisiana comini^ so I'ar north as the southerly boundary of Canada in 17«J1, that nevertheless it was so settled in 17(W that the Mississipi)i should b»^ th*' boundary to its source. This result seems to have been a compromise by which Louis- iana was conhned almost entirely to the west ol' the Missis- sippi. Great Britain thus irainini,'' her point on the east, which came more nearlv in contact with her old possessions, and givinuf to France entire scope on thf west to the very source^; ol the Mississippi, the boundary Ironi thence westward beir.i; U'lt undetermined This point had accordingly to he alter- wards settled with the Inited rotates, who had in the mean- time acquired the riirhts ol" France. This settlement ultimately admitted the 4'.'th parallel of latitude as the northerly boun- dary of Louisiana, and as such necessarily the southerly boun- dary of Canada irom the Lake ol' the Woods due west to the Rocky Mountains, pa.ssini^ north of the source of the Missi>- sippi proper, thouirh intersectino- some (jt its tributary streani.v the only error in which ^^ as that the line should not havf been north of the source of the Mississippi, an error resultiiiii from a previous treaty with the United 8tates, at a time when it was sup{>osed that the parallel of latitude aureed upon eaxt of the Mississippi would inteisect that river Were the Kiny s letters patent to Lord Dorchester indeed taken literally at the pre.seni day in regard to the southerly Itoundary of Canada, the due west line of the description, not intersectinjr the Mississippi, would ixo on as far as British ter- ritory, not otherwise ortranised. would carry it, which would be to the Pacihe :or if limited at all it would be by the tirst waters of the Mississippi which it did intersect, which would be the White Earth River, and this would in fact corresjwnd with the extent of Canada previously know^n to the French taking in all the old forts already mentioned and leaving out the •' countries and nations hitherto luidiscovered," that i^ ai ii Al'l'KNDIX. 386 the tinip of the conqiieit, though at the period when that des- cription was made the North-west Company were carryinnsion of Canada from its southerly boundary. The otficinl descrip- tion, corresponding with the Act of 1774, carries it to tlie boundary olthe Hudson's; Ray Company's Territories, but the same ofKcial description iiiiioros the boundaries they claim, \fhus proving so far the nnistrnrtion then put up m the Act of 1774,) for it carries the southerly boundary of Canada down the watershed of Hudson's Hay from two to three hundred miles to the Lake of the Woods, and thence due west, tliiis making the starting point far within what the Hudson's Ray Company claim, and thus, frofii a point within wh," the probability is that Great Britain would now hold no continuous possessions across this con- tinent, if she even held any isolated localities on the Pacilic in virtiu' of her discoveries by sea. Lewis and Clark, Americans, descended the southerly branch of the Columbia River, 1805, and in 1811, Mr. Thomp- son, of the North-west Coinpany.'came down the main branch from the north, whose discovery is thus referred to by the British Plenipotentiary : "Ititlie year 1811, Thompson, the Astronomer of the i\r,)H/t-!»f«< Company, dis- covered the northern head water.** of the ('olunihia, and following its course till joined liy the rivers previou.sly discovered by Lewis and Clark, he continued hi.f journey to the I'aciHc." And again : " Thompson, of tho North-west Companii, was the first civilized person who navigated the northern, in reality, the main branch of the ( 'olumbia, or traversed any part of the country drained by it." This is the title by which Great Britain has been enabled to retain the main branch of the Columbia to its intersection with the 49lh parallel of north latitude, and the free navigation for her subjects of the whole river from that point to its dis- charire in the Pacihc Ocean, as secured by the Treaty of Ore- sron, 1846. I 3H8 APPENDIX. I lif. I! ^H j w With respect to McKenzie's discoveries to the north, no diplomatic reference thereto can be quoted, inasmuch as there ban iK'en no disputed title on the part ol' any Ibreifj^n Power to give rise to any controversy upon the subject. It may fairly be urged therefore, that these " Indian Ter- ritories." orij^inaily the fruits of Canadian enterprise, persever- ance and industry, should no lonnrer be shut out from the Cana- dian |>eople, but should in fact be united to ( 'unada as a i)art of the British Dominions, which Canadian subjects have had the merit of acquirinj; and retainin«r for the Hritish Crown. JUIIISDICTION. The question of jurisdiction next comes under consideration. and in this, as regards the Hudson's Bay Company, it is ap- prehended that the actual exercise of it is widely different from what exi.sting laws would sanction. The mystery with whicli this Company have managed to iibroud their operations in the interior renders it difficult to say what they do or what they do not do, but it is generally imderstood that they actually exercise luilimited jurisdiction in every resj>ect, civil, criminal and governmental, and that not only in what has been considered their own t<'rritories. hut also in the Indian Territories and those i>arts of Canada not immediately contiguous to settlement, all which existing law positively forbids them to do, it need not be said in ( 'anada. hut either in their own territories or in the Indian Territories. By the Imperial Statute 43 George 8, chapter 138, the juris- diction over the Indian Territories and all " parts of America not within the limits of the provinces of Lower or Upper Canada. or either of them, or within any civil government of the United States of America," is vested in the said provinces. It is a curious circumstance that the very words of this Act, which seem to have been intended to deny all claim to any jurisdiction on the part of the Hudson's Bay Company, should hare been taken hold of as the means of questioning its refer- ence to them The preamble of the Act, in giving the reason APPKNIUX. 389 for the pnactmcnt, states that offences not committed within the limits of the Canadas or the United States, as ahove, " are therei'ore not cognisable by any jurisdiction whatever" This the Company argut'd could not mean th»'ir territories, because jurisdiction did exist there. The Act, they saii, could not mean all British America not within the limits of the C'lmadas, for the assertion that no jurisdiction existed was not true of Nova Scotia or New Brunswick, and therefore might not be true of Hudson's Bay. Thus, in fact, it appears that the framers of the Act having their minds directed to the north- west, where the olfences referred to had occurred, forgot to exclude the provinces lying on the opposite side of Canada, on the Atlantic coast, from its operation ; and this omission, when the war was carried on between the two Companies in the interior, Lord Selkirk turned to account to throw doubt on the ;>i)plicability of the Act to the Company's Territories. But the assumption that this Act does not atlect their preten- sions is turn the same, or try such issue, and for that purpose to hold courts, &c." These courts are most dis- tinctly m:\de subordinate to the Courts of Canada, &c., and can in fact be created by and exist through them only. By the 11th and 12th clauses, however, the Crown is em- powered to create Courts of Kecord, without the intervention of the Canadian Courts (but without limiting the power to be exercised throuoh them), for tJie trial of small causes and petty olfiiices, the former being' limited to civil cases not allecting a larger amount than i;200, and the latter to cases in which the oil'ence does not subject the person committing the same to capitiil i)uni.shment or transi)ortation. By this Act it is repeatedly declared and enacted in the most emphatic manner, that its enactments shall have ett'ect " notwithstanding anything contained in any Charter granted to the Governor and Company of Adventurers of England trading to Hudson's Bay." It is true the last clause of the Act reserves to the Company in the most ample manner all rights and privileges they " are hi/ law entitled to claim and exercise under their Charter." This it will be observed is what the "Statement of Rights" refers to when claiming a ^'concurrent jurisdiction " with the Canadian Courts. Now, when it is observed that Llie Legis- lature has refrained from expressing any opinion as to what the rights or privileges ot the Company really are, and cautiously abstained from recognising any but what they already had " ii/ laiv" it is difhcult to suppose that it was the intention of the Act to recognise in them those very powers which it was making the most ample provision for the exer- 392 APPKNniX. K 1} ': cise of by a totally diffi^rent authority in strong and repeatedly expressed abiieg-ation of their pretensions. It is also to be observed that the previous Act, 43 G^eo. 3, which denies their jurisdiction is still in force, unrestricted in every particular, and not denying its force from the subse- quent statute, which is merely declaratory in that particular of its proper construction. The question of whether the Company can exercise any legal jurisdiction within their own territories,— limited to their just extent, — loses its importance however in face of the more serious question of its actual exercise both in Canada and the Indian Territories, and that even to the extent of life and death, while the intention of the Imperial Legislature in creating a jurisdiction for these territories, reserved all im- portant cases, either civil or criminal, for trial by the regularly- constituted legal tribunals of an organized community, where the Charter cf British rights would be held as sacred as the interests of a commercial company who assume to be them- selves the Judges where (without any reflection upon them collectively or individually) cases must, in the very nature of things, arise in which they ought to be judged. It therefore becomes of very great moment to ascertain the truth of certain statements that have been made to the effect thf-t their principal officers at the Red River hold their com- missions from the Crown, and if so, under what form, for what extent of territory, and how described. Such commis- sions might no doubt havt been issued under the statute 1 and '1 Geo. 4, for the Hudson's Bay Company's Territories and for the Indian Territories, for the trial of small causes and offences of a minor nature as already described, without in the least infringing upon or limiting the right of Canada to intervene ; but if the British Grovernment has expressly in- cluded the Red River country in any such commissions, it can only have been through a misapprehension of boundaries, which is not to be wondered at from the policy pursued since the union of the Companies, and the erroneous view of the APPENDIX. 398 case Ihey have so constantly disseminated, and no doubt any such powers, if th*»"^ had been granted, would be withdrawn as soon as the case has been brought fully under the consider- ation of the Imperial authorities. In conclixdinir the question of Jurisdiction, it is necessary to observe that the Imperial Statutes herein quoted, which vest the jurisdiction in Canada to the shores of the Pacific, have been repealed in so far as they relate to Vancouver's Island by the Act i^-VS Vic, Cap. 48, which re-invests the jurisdiction of Vancouver's Island in the Imperial Govern- ment until the establishment of a local Legislature, which the Act contemplates. At the same time, a charter was granted to the Hudson's Bay Company for the colonization of the Island, conveying a grant of the soil. Neither the Act nor the Charter, however, confers any juris diction upon the Company. The Company were required by the terms of the grant to colonize the Island within five years, iailing 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 Territories upon payment to the Company of the expenses they might have incurred, the value of their establishments, &c. i< i! GENERAIi REMARK!"!. Before concluding this Report it is desirabk' 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 vmder three separate titles, the first of which is the Charter of Charles II., granted in 1670, for ever. The second is the lease originally granted in 1821 to them in conjunction with the North-west Company of Canada for the Indian Territories. The third is their title i my ^rf'Ii"'' :■, "yrr 394 APPENDIX. S (-.1 ^1 P'U 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 Hud- son'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 along the 49th parallel, to the south of which those rivers take their rise. Under the second, 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 yenrs, and it is a renewal of this lease for a further period of 21 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 La vc Winnipeg, etc., which they claim under their Charter, absolutely belongs to Canada ; and it will be observed that the abstract right, not the value of the territory, has been dwelt upon, but unfor- tunately the latter has been as little generally understood as the former, the result of the means the Company have taken to conceal it, for seldom if ever has the wisdom and foresight of man devised a policy better calculated to the end for which it was intended than that adopted snice the union of I he Com- panies in 1821. Before that union the Canadian Fur Trade gave employment to some thousands of men as mere carriers, or " Voyageun " as they were termed. In endeavouring to depreciate the national services ren- dered by the North-west Company during the war of 1812, at the capture of Michilimacinac, &c.. Lord Selkirk alludes to this body of men as forming the " Voyageurs Corps" but denies credit to the Company for their important services, which he admits "in a great measure secured Canada," be cause they were not constantly employed by the Company, and effected this service at a season of the year when the Company did not require them. Assuming this to be the fact, rn^i APPENDIX. 395 s reii- 512, at des to " but vices, ," be pany, 11 the e fact, however, had there been then, as now, no such Company and no such trade, there would have been no such body of men ready for action in the hour of danger. Had the circumstances of the trade continued the same to the present day, settlement must have followed the route of such a line of traffic, and the continual intercourse between this country and the fertile plains of the " far West " would have placed us as I'ar in advance of our American neighbours in the colonization of those countries, as we are now behind them. But the policy of the united Companies has been so admir- ably carried out in all its details, that an erroneous impression respecting the country and everything- connected with it had gradually got possession of the public mind, and it is wonderful with what tact such impressions may sometimes be conveyed without any statement being made contrary to tfuth. The very appellation ol' " IIu(hons Ba/j Territory^' as applied for instance to the Red River country, carries a false impression with it, for the waters of the Mississippi and the Red River, the Assiniboine and the Missouri, interlace with each other there, and thereiore the designation of " Gulf of Mexico Territory " would just be as correct. But what a dilierent impression it would convey as regards climate. Again, almost every men- tion of the available parts of the Western Territories, which are well known to possess a soil and climate adapted in the highest degree for successful settlement, is interwoven with some reference to ice in some shape or other, which no doubt the Company truly encounter in carrying the trade some eight hundred miles due north through Hudson's Bay. An admirable specimen of this kind of policy, by which erroneous impressions may be conveyed, is to be found in Sir J. H Felly's letter to Lord Glenelg, of 10th February, 1837 :— " For many years prior to the conquest of Canada, French subjects had penetrated by the St. Lawrence to the frontiers of Rupert's Land ; but no competition had occurred between the traders of the two cottiitries within the territories of the Hudson's Bay Com- pany previous to the cession of Canada to Great Britain. ■■'* m^ 396 APPENDIX. il " Subsequent to that period, the greater capital and activity of British subjects led to a competition, /rw< on the frontier parts, then in the interior, and at last to the forma- tion of a Company, combining all the individuals at that time engaged in the trade, to countries bordering on and west of Lake Superior, imder the firm of the North-west Company of Montreal." This when discussed is a significant paragraph. Where are " the frontiers of Rupert's Land" if the French, whose Forts were all around Lake Winnipeg, had not reached them before the cession of Canada to Great Britain ? This is an important corroboration of the views of the boundary question explained in the present report. That " no competition had occurred within the Territories of the Hudson's Bay Company " up to that time may be very true, because the Company had never come up from the shores of the Bay, and the French had not gone down — from their places on Lake Winnipeg — to the Bay. The second paragraph above quoted may also be substantially true, but yet it is so framed as to convey to the general reader that the competition arose from the inhabitants of Canada advancing beyond where they had been before ; whereas it was the Hudson's Bay Company who then came up, for the first time, from the shores of the Bay, which led to the competition " first on the frontier parts " of Rupert's land, " then in the interior," on Lake Winnipeg, the Saskatchewan, &c., where the Cana- dians had long enjoyed the trade without competition. Such is the system and policy pursued by the Company to exclude from view and create erroneous impressions respect- ing the Western portion of this Province, than which there is perhaps no finer country in North America. The same course marks their proceedings at the present moment, for no inti- mation has been given to this country of their intention to apply for a renewal of the lease of the Indian Territories, though, exercising the privileges they do in countries subject to the Canadian Government, it would not have been unrea- sonable to expect a different course. Neither does it appear that they have taken any means to inform the inhabitants of those countries whose rights and interests are most deeply APPENDIX. 897 affected by the action to be taken, that they were to make this early application for renewal of their lease. Had it been effected in the quiet manner they seem to have desired — a consummation which the thanks of the country are due to the Imperial Government for having refused to sanction — they only would have been heard in their own case, and the result would have been, alike to the people here and in the more remote territories, a surprise. Canada has no quarrel with the Hudson's Bay Company, and desires no harsh measures towards them. It would be alike ruinous to them and injurious to the countries over which they hold either legal or illegal sway, to put a sudden stop to their operations, but it is an error to suppose that the governing of those countries is a task of uncommon diihculty. The state of anarchy which prevailed in those countries dur- ing the warfare of the Companies was the result of the strife between them, where there was no sort of authority, except what they seemed equally to wield, and not arising from any turbulent or ungovernable spirit on the part of the native population. On the contrary, the moment a recognized au- thority stepped ill to control both Companies, implicit obedi- ence was at once yielded to it throughout those vast territories, and either party would have found itself powerless to com- mand followers for any purpose of further aggression. This was the occasion of the withdraw^al of all commissions of the peace, previously granted to the leading people of the two Companies, the appointment of two si)ecial Commissioners ;^one of them a member of the Executive Council of Lower Canada), and the issuing of a proclamation in the name of the Prince Regent, by authority of a despatch from Earl Bathurst of 6th February, 1817, requiring the mutual restitution of all the places and property captured during the strife, to the party who had originally possessed the same, and the entire freedom of the trade to each party, until further adjudicated upon. Galling as this restitution must have been in numerous instances, where party feehng, embittered by the loss of many i^ m 11 11 398 APPENDIX. lives, had reached the highest pitch of excitement, it was im- mediately complied with. The proper course to pursue, therefore, would be to lay before the Imperial Groveriimeiit tne expediency of annexing the Indian Territories to Canada, shewing- that by this means only can tho.se countries be retained long- in the possession of (jrreat Britain. For colonized they must ami will be ; it is only a question of who shall do it. If we do not, the Americans will, and that in spite of anything the Company can do to prevent it. That these Territories are fit fields for settlement it is useless to disj ute, for one physical fact upsets all theories to the contrary. Where a country is found to sustain animal life to such an extent that hundreds of thousands of wild cattle find subsistence there both in summer and winter, there man also can find a home and plenty. Nor is the country possesshig this characteristic confined to a narrow strip along the frontier, but continuing to widen to the westward it is found that the climate, even on the east side of the Rocky Mountains and at a depth of seven degrees North of the American Boundary, is milder than the average of the settled parts of U]>per Canada. On the west side of the Rocky Mountains the climate is mild to a still higher latitude, but Vancouver's Island together with the contiguous main land is perhaps one of the finest countries in the world for colonization. The only drawback is the difficulty of access, a difficulty which the present system will never remove, for it looms larger now than it did forty or fifty years ago, when the North-West Company of Canada prs'-V"-:' a continuous stream of traffic across the continent. i^ ■:: . >.l cannot now of course be annexed to Canada on . ! " • •! . .t' ills as the other Indian Territories, as the existing Ci-; er w^hich the Island is held (a different and dis- tmct thing, be it remembered, from either the old Charter or the expiring Lease) entitles the Hudson's Bay Company to payment of the value of their establishments if the grant be rescinded, which Canada would naturally be expected to pay if APPENDIX. 399 the Island were conceded to her, and it might be well to see now upon what terms this could be done, because it seems that if it be not done at the expiration of the Lease of the " Indian Territories," it could not be done afterwards, unless indeed the Company have failed to fuliil the conditions re- quired within the lirst five years. Twelve years ago the United States had no communication with their territories on the Pacific except by sea, and during the Oregon negociations, when proposing strenuous measures upon the subject, the President in his message to Congress, 2nd December, 1845, says: " An overland mail is believed to be entirely practicable ; and the importance of establishing such a mail at least once a month is submitted to the favourable conside- ration of Congress." How different the circumstances now, and how " entirely practicable ", it has proved, need not be dwelt upon, but it must be remarked that at no other point, north of the Gulf of Mexico, are the facilities for communication across the con- tinent anything like equal to what they are through Canada, there })eing good navigation three-fourths, if not more, of the whole distance ; first to the head of Lake Superior, from whence the navigation is broken to Lake Winnipeg (though about 150 miles of this distance is navigable), then through that Lake to the Saskatchewan, on which there are obstruc- tions, in the lower part near the Lake, from whence the navi- gation is impeded to the very base of the Rocky Mountains. It would be very desirable, therefore, and quite practicable, ir the British Government will consent to annex the Indian Tt'rritories, extending to the Pacific and V'ancouVer's l.sland, to Canada, to establish during summer a monthly communi- cation across the continent. It is of incalculable importance that these measures should be most forcibly impressed upon the Imperial Government at the present juncture, for on their i^nlution depends the question of whether this country shall ultimately become a Petty State, or one of the Great Powers of the earth ; and not only that, but whether or not there • I r! I Wi^ 400 APPENDIX . 1 'ifi.;: ■ '/* shall be a counterpoise favourable to British interests and modelled upon British institutions to counteract the pre- ponderating influence — if not the absolute dominion — to which our great neighbour, the United iStates. must otherwise attain upon this continent. No reference has been here made to the controversy between the Company and those who accuse them of exercising a per- nicious influence over the Indian population, nor is it neces- sary to enter into the subject further than to point out the erroneous impression the Company strive to inculcate, to the ett'ect that they are necessary to the Indians. It may well be that the state of things is better under them than it was when the two powerful Companies were in hostile array against each other ; and it may be that their affairs are as well conducted, with reference to their effect upon the native population, as could well be expected of a Commercial Com- pany, having the primary question of profit and loss as tho object of their association. But the question really comes to be, whether those countries .shall be kept in statu quo till the tide of population bursts in upon them, over an imaginary line, from a country where it has been tiie rule that the Indian must be driven from the lands the white man covets ; or be opened up under the influence of the Canadian Grovernment' which has always evinced the greatest sympathy towards the Indian race, and has protected them in the enjoyment of their rights and properties, not only in their remote hunting grounds, but in the midst of thickly-peopled districts of the country. Joseph Cauchon, Commissioner of Croiun Lands. Crowx Lands Department, Toronto, 1857. A. APPENDIX, 401 APPENDIX T. No 1. Mi'.Bearcjioft's Opinion as to the Validity of the Charter of the Hudson's Bay Company. Q. 1st. Whether the King,withoutthe co-operation of the other Leg-islative powers, can grant to any company an exclusive trade for ever, together with a right of seizing the person and goods of a fellow-subject, without legal process ; and if not, whether his having illegally granted such advantages and power, doe.s not annul the charter^ A. I am of opinion that the King, without the assent of P rliament, cannot legally grant to any company, or to any individual, an exclusive trade lor ever, together with a right to seize the person and goods of subjects, without process of law ; and that such a grant, if made, is illegal, void, and with- out etfect. Q. 2nd. If this Charter is not valid upon the principle above stated, whether it is not voidable by the Company's neglecting to fullil the views the King had when he granted it ? A . If such a Charter could be considered legal and valid in its commencement, yet it will be voidable by Sci. Fa. if the grantees neglect to endeavour, by reasonable and adequate means, to carry the purpose of it into ettiect. Q. 3rd. Whether the grant to them, ol the right of lishing, is exclusive, or whether the Greenland lishermen, who have a right to lish at G-reenland and the seas adjacent, have not a right to lish at Hudson's Bay ^ A. The Charter in question, as to so much of it as affects to grant an exclusive trade and inilict penalties and fori'eitures, being, as I conceive, illegal and void, I am of opinion that the Greenland Hshermen, who have a right to hsh there, have also a right to Hsh in Hudson's Bay. ^.4th. If an individual invades the Charter, by fishing or trad- BB 402 APPENDIX. m I r^' '^f: ■': W'r incr in any of the places granted to the Company, and they seize his people, ship or goods, whether they have any and what remedy ? A. If the Hudson's Bay Company, or those acting under their authority, shall venture to seize the person, ship, or goods of a British subject fishing there, the action is by act* n of trespaiss against the Company, or against the persons \vho do the act complained of, which action may be brought in any of the courts of Westminster Hall. Q. 5th. If you should be of opinion that the Charter is in its present form illegal, which is the best way of attacking it — bv invading the patent, and permitting them to seize or bring an action, and complaining or defending, according to tae cir- cumstances, or by applying to Parliament ? A. It is obvious that the safest way of attacking the Chartor is by applying to Parliament or by Scl. Fn., though in case ol' seizure, I cannot help thinking an action of trespass by the party injured would be successful. Q. 6th. And generally to advise the parties proposing the pre- sent case, who wish to fish and trade in and near Hudson's Bay ^and have sent out a ship which means to winter there. unless cut off" by the Company's engines, and only wait for year opinion whether to send several more), for the best ^ A. Upon the whole of this case, I am strongly inclined to think that the parties interested, if it is an object of importance to them, may venture to carry on the proposed trade imme- diately. The case of the East India Company and Sandys. determined at such a time, and by such Judges as it was, I cannot take to be law ; and as to the length the said Charter has been granted and enjoyed, it is a clear and a well-known maxim of law, that which is not valid in the beginning can- not become so by lapse of time. (Signed) Edward Bearcroft, *?f APPENDIX. 403 No. 2. Mr. Oibbs' Opinion. Ist. Such a Charter may certainly be good in some cases, but I am of opinion that the Charter in question was orii^inally void, because it purports to confer on the Company exclusive privileges of traduig which, I think. tht> Crown could not grant without the authority of Parliament. In Sandys against the East India Company, Skinn. 182, IGf), 197, 223, the argu- ments used against their Charter, which was not then con- lirmed by Act of Parliament, appear to me decisive upon the subject; and although both J. Jeiferies and the other Judges of the King s Bench decided in favour of the Charter, I have understood that their judgment was afterwards reverse! in Parliament. Adam Smith, in his Wealth of Nations, treats it as an ad- mitted point, that the Charter granted to the Hudson's Bay Company, and others of the like sort, not being confirmed by Parliament, are void, which I mention, not as a legal author- ity, but only to shew how the question has been generally un- derstood. 2nd . A Charter may be forfeited on this ground. 3rd. I should doubt whether they had by this acquiescence tbrfeited their exclusive privilege, if it ever existed ; but this question is immaterial after my answer to the lirst. 4th. If the former were legal, this would be so likewise. I think them both legal, on the ground of my answer to the first query. 5th. Probably they might prosecute the captain ; but if this question were material, it would be necessary that I should see a copy or abstract of the Charter before I could answer it. 6th. He might, if there were any legal cause of prosecution. 7th. I hardly think that they would be held to fall yathin this Act, nor does it signify whether they do or not. If my opinion is well founded, the North-West Company may im mi Li 404 APPF.NDIV. uaviu^ato Hudson's Hay and (tarry on their trade ah thoy please, without any lear ol" legal molestation in consecjuenceol the rnon()i)oly claimedby the Hudson's Hay Company under their Charter, and I think they may act as ilno such Charter existed. (Signed) V.Omus. hineoln'.s Inn, June Till, 1«04. No. 8. In Ike luatkr of the Ili(art ol the reiy-n of Charh's the Second, and in the reijjn of James the Second, and to those is to be attributed the frequent recourse which, after the Uevolution, was had to letrishitive authority on such cases, and parti(nUarly in the very case of this (^ompany, evidenced by the temporary Act of the 2nd of William and Mary, " for conlirmintr to the (rovernor and Company trading to Hudson's Kay their i)rivileg'es and trade ;" a confirmation the duration of which the l^effislature expressly limited to seven years and the end of the then next session of Parliament, and no lonoor : and part of the preamble of that Act is, in ellect, a ley-islative declaration of the insutticiency and inadequacy of the Charter for the purposes professed in it. without the aid and authority of the Legislature ; which legislative aid and authoritv entirelv ceased soon after the expiration of seven years after that Act passed. In 174.), indeed, the 18th Geo. II., cap. 17, for granting a reward for the discovery of a North-west Passage throiigh Hudson's Straits, enacts, " that nothing therein contained shall any ways extend, or be construed to take away or prejudice any of the estate, rights or privileges of or belonging to the Governor and Company of Adventurers of England trading into Hudson's Bay ; " but this provision gives no validity whatever to the Charter, and only leaves its effect and au- thority as they stood before that Act, and entirely unaffected by it. These parliamentary proceedhigs may at least justify the inference that the extent of the prerogative in this matter was considered as a subject which admitted of great doubt, in times when the independence of the judges insured a more temperate and impartial consideration of it. They may, how- ever, be perhaps considered as too equivocal to afford any certain and conclusive authority on the strict question of law . ImI r.i 406 APPENDIX. Such rights, therefore, as the Hudson's Bay Company can derive from the Crown alone, under this extraordinary Char- ter, such as it is, may not be affected by these proceedings or declarations, and they may now rest entirely upon, and stand or fall by, the Common Law Prerogative of the Crown to make such a grant. Upon the general question of the right of the Crown to make such a G-rant, perhaps it may not be necessary for the present purpose that we should give any opinion. The right of the Crown merely to erect a company for trading by char- ter, and make a grant of territory in King Charles the Second's reign, may not be disputable ; and on the other hand, besides that this Charter seems to create, or attempt to create, a Joint Stock Company, and to grant an exclusive right of trading, there are various clauses in the Charter, particularly those empowering the Company to impose fines and penalties, to seize or confiscate goods and ships, and seize or arrest the persons of interlopers, and compel them to give security in .£1,000, &c., &c., which are altogether illegal, and were al- ways so admitted to be, and among other times, even at the time when the extent of the Prerogative in this matter was maintained at its height, to grant an exclusive right to trade abroad ; and even if, by virtue of their Charter, they could maintain an exclusive right to trade, we are clearly of opinion that they and their officers, agents or servants could not justify any seizure of goods, imposition of fine or penalty, or arrest or imprisonment of the persons of any of His Majesty's sub- jects. Pro' -^bly the Company would have some difficulty in finding a legal mode of proceeding against any of those who infringe their alleged exclusive lights of trading, or violate their claimed territory ; for we hold it to be clear, that the methods pointed out by the Charter would be illegal, and could not be supported. But we think that the Hudson's Bay Company and their grantee. Lord Selkirk, have extended their territorial claims much farther than the Charter or any sound construction ot ->*^'i^. APPENDIX. 407 it will warrant. Supposing it free from all the objections to which we apprehend it may, in other respects, be liable, the words of the G-rant, pursuing the recital of the petition of the grantees, with a very trifling variation, and with none that can affect the construction of the instrument, are of " the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in whatever latitude they shall be, that lie within the entrance of the Straits, commonly called Hudson's Straits, together with the lands and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, creeks and sounds aforesaid : " that is, wuthin the Straits — and these limits are frequently referred to in the subsequent parts of the Charter, and always referred to throughout the Charter as " the limits aforesaid." There is indeed (p. 10,) ,an extension of the right of trade, and His Majesty grants that the Company " shall for ever hereafter have, use and enjoy not only the whole entire and only liberty of trade and traffic, and the whole entire and only liberty, use and privilege of trading and traffic to and from the territories, limits and places aforesaid, but also the whole and entire trade and traffic to and from all havens, bays, creeks, rivers, lakes, and seas into which they may find entrance or passage by water or land, out of the territories, limits and places aforesaid, and to and with all the natives and people, inhabitants, or which shall inhabit within the territories, limits and places aforesaid, and to and with all other nations inhabiting any of the coasts adjacent to the said territories, limits and places aforesaid, which are not already possessed as aforesaid." It is plain, therefore, that the Territorial G-rant was not in- tended to comprehend all the lands and territories that might be approached through Hudson's Straits by land or water. The Territorial Grant then appears to be hmited by the rela- tion and proximity of the territories to Hudson's Straits. The general description applying to the whole, is the seas, &c., that lie within Hudson's Straits, and the lands, &c., upon the I i ? m' 408 APPENDIX. coimtries, coasts, and confines of the seas, &c., that is, Redden- do Singula Sinyulis, the lands upon the countries, coasts, and confines of each of the seas, rivers, &c., naturally including such a portion of territory as might be reasonably necessary for the objects in view ; but it is not a grant of all the lands and territories in which the seas, rivers, &c., lie, or are situ- ated, or which surround them to any indefinite extent or dis- tance from them. Still less is it a grant of all the lands and territories lying between the seas, straits, rivers, kc, though many hundred or thousand miles or leagues of lands and ter- ritories might lie between one sea, strait, river, lake, &c., and another sea, strait, river, lake, »fcc., and though the quantity of land comprised in this interior situation, and far distant from any coast or confine of the specified waters, might exceed in dimensions the extent of many existing powerful Kingdoms or States. Within the straits, must mean such a proximity to the straits as would give the lands spoken of a sort of attinity or relation to Hudson's Straits, and not such lands as, from their immense distance (in this case the nearest point to Hudson's Bay being 700 miles, and from thence extending to a distance of 1,500 miles from it), have no such geographical affinity or relation to the straits, but which are not even ap- proached by the Canadians through or by the straits in ques- tion. The whole Grrant contemplates the straits as the access to the lands and territories therein referred to ; and as there is no boundary specified, except by the description ol the coasts and confir.^s of the places mentioned, that is, the coasts and confines of the seas, &c. Within the straits, such a boundary must be implied as is consistent \Aith that view, and with the professed objects of a trading company intending, not to found Kingdoms and establish States, but to carry on fisheries on those waters, and to trade and trafiic foi* the acquisition oi" skins and peltries, and the other articles mentioned in the Charter ; and in such a long tract of time as nearly 150 years now elapsed since the grant of the Charter, it must now be, and must indeed long since have been, fully ascertained by the APPENDIX. 409 actual occupation of the Hudson's Bay Company, what portion or portions ol' lands and territories in the vicinity, and on the coasts and confines of the waters mentioned and described as within the straits, they h&\e found necessary for their purposes, and for forts, factories, towns, villages, settlements or such other establishments in such vicinity, and on such coasts and con- fines, as pertain and belong to a Company instituted for the purposes mentioned in their Charter, and necessary, useful, or convenient to them within the prescribed limits for the prosecution of those purposes. The enormous extensions of land and territory now claimed appears therefore to us not to be warranted by any sound construction of the Charter ; and if it could be so, we do not know where the land and territory of the Hudson's Bay Company, granted by this Charter, terminates, nor what are the parts of that vast Con- tinent on which they have taken upon them to grant 116,000 miles of territory exempted from their proprietorship under their Charter. Indeed, there may be sufficient reason to suppose that the territories in question, or part of them, had been then visited, traded in, and in a certain degree occupied by the French settlers or traders in Canada, and their Beaver Company erected in 1630, whose trade in peltries was considerable prior to the date of the C'harter. These territories, therefore, would be expressly excepted out of the Grant ; and the right ol' British subjects in general to visit and trade in these regions would follow the national rights acquired by the King, by the conquest and cession of Canada, and as enjoyed by the French Canadians previous to that conquest and cession. No territorial right, therefore, can be claimed in the districts in question ; and the exclusive trade there cannot be set up by virtue of the Charter, these districts being remote from any geographical relation to Hudson's Bay and to the Straits, and not l)eing in any sense within the straits, and not being approached by the Canadian traders, or other alleged inter- lopers through the interdicted regions. Of course no violence V r ( 9 I ■i 410 APPENDIX. to or interruption of trade could be justified there und( r these territorial claims. 2nd. Whether the Hudson's Bay Company were warranted in making a G-rant to Lord Selkirk, as one of their own body, of the immense district of territory described in G-overnor M'DoneU's Proclamation, notwithstanding the opposition of part of the Proprietors of Stock ; and after making such G-rant, has the Company any right to exercise their jurisdiction in appointing Governors and other officers over that district ; or can they grant or transfer such power to his lordship? If you should be of opinion that the Grant to his lordship is illegal, unwarrantable by the Charter, what measures ought to be taken to set aside the same ? The validity of the Grant to Lord Selkirk may be consid- ered both as it affects the members of the Company and the public at large. If, contrary to our opinion, the land and territory in ques- tion were within the Grant, then the Grant of so large a por- tion of territory as that to Lord Selkirk, being not less than 116,000 square miles, might perhaps seem an abuse of the Charter, which might jusl^ify the interference of the Crown. Because, though the Company might have a right to make grants of land, such Grant must be for the promotion of,oratleast must be consistent with, the object of the Institution. But the Grant to Lord Selkirk tends to an establishment indepen- dent of the Company, inconsistent with the purposes of their Institution and its effects ; erecting a sub-monopoly in one person, to the detriment both of the Company and of the pub- lic. The Company could confer no power upon Lord Selkirk to appoint Governors, Courts of Justice, or exercise any inde- pendent authority, nor could they, directly or indirectly, trans- fer their authority to him, to be exercised by him in his own name. Supposing the Grant of land to be such a Grant as falls within the powers of the Company to make, their supe- rior lordship and authority would continue as before, and must be exercised throuijh them. rf--> APPENDIX. 411 3rd. Whether the jurisdiction given by the Act of 43rd Geo. III. to the Canadian Courts of Criminal Judicature, extends to the Territories of the Hudson's Bay Company, so as to en- title those Courts to try and punish offences committed within those territories ? And whether Grovernor M'Donell, and Mr. Spencer, his Sheriff", can legally be tried before the Canadian Courts for the offence with which they now stand charged ? There seems no reason to doubt that offences actually com- mitted in the territories and districts in dispute, where n(^ Court of Judicature is or ever has been established, might, in point of jurisdiction, legally be tried by the Courts of Canada, under the 43rd G-eo. III., Cap. 138 ; and indeed, unless this district was within the provisions of that Act, we cannot dis- cover what territory was meant to be included in it ; but we think that though the jurisdiction might be capable of being supported, the acts done by Messrs. M'Donell and Spencer could not be deemed larceny, and that they, or others acting in similar circumstances, ought not to be indicted or brought to a trial for the crime of larceny. They acted, perhaps erro- neously, upon a claim of territorial dominion and of exclusive commercial privilege, and may be liable to be proceeded against as for a trespass or other injury to persons or property ; but we think they could not be properly convicted on a charge of felony. 4th. Is it competent to the Governors and other officers already appointed, or that may be appointed by the Hudson's Bay Company, to seize and bring to trial before their Courts of Judicature, His Majesty's Canadian subjects who may be found trading within the Company's territories, for infringing the Company's monopoly, or for committing any other alleged crime or offence ? Supposing the Charter of the Company valid, and the dis- tricts in dispute to be within their limits, we should still doubt whether the Governor and Company have lawful power by the Charter to establish courts lor the trial by the laws of England of offences committed therein. That power the hi 4il ;l^5 ■'-I ':[■.} S 412 APPENDIX. Company have never yet attempted to exercise, though nearly 150 years have elapsed since they procured their Charter. But if they should still possess the extraordinary power with- out further authority, leaislative or regal, we should never- theless think that no Courts there established would have authority to try and punish as an oftence the act of going there simply ; which, if the Grrant be legal, could amount at the most only to a misdemeanour or contempt of the King's lawful authority, to be prosecuted at the suit of His Majesty. But the Charter itself seems to take the offence, as far as the Company are concerned, out of the jurisdiction of the local Courts by (illegally i '") prescribing certain forfeitures, and declaring (page 'i i^at every the said offenders, for their said contempt to suffer such punishment as to us, our heirs and successors, bAail ^em » -^t or convenient, and not to be in amprize (query, mainprise :) delivered until they and every of them shall become bound unto the said Grovernor for tl\e time being, in the sum of .£1,000 at least, at no time there- after to trade, " &c. A subsequent clause (page 16) authorizes the seizing and sending to England those who come into their territories without authority. It seems, therefore, that the Courts in question would have no power to try as an offence at common law the mere coming into the Company's territories contrary to the prohibition in the Letters Patent, which point out other modes of proceeding, and legally confer no other powers applicable to the case. If the question w^ere merely a question of boundary be- tween two acknowledged adjacent colonies or provinces, it might perhaps be determined by the King in Council, where we apprehend such a jurisdiction is vested, and has been ex- ercised, but that probably would not set at rest the principal points, or prevent interference. The validity of the G-rant of an exclusive trade might, we apprehend, be tried directly by Srire Focins, or incidentally in actionsof trespass, which. how- ever, misrht still leave other main pomts undecided ; and the Company might perhaps he capable of retaining some part of m 01 w te( th »a APPENDIX. 413 what has been granted to them, and might fail as to many others. In these circumstances, it appears that interests and pretensions so opposite, and which may be productive of so much confusion and disorder, and of consequences so danger- ous and destructive to the persons and properties of those who, bv reason of the failure of the ordinary means of pro- tection afforded by the law, may be said to be peculiarly under the safeguard of Grovernment, can only be effectually and satisfactorily adjusted and reconciled by Government, with the aid and authority of Parliament ; and by that authority (after causing such an investigation into them as Government would, in such a case, probably feel it indispensable to make, and are fully possessed by the law officers of the Crown, and otherwise, of all the means of making,) due allowance would be made for such rights of the Company as were deemed legal and well founded, and protection and freedom secured to the Canadians as well as to the rest of the King's subjects, in the prosecution of that commerce which the Canadians have long enjoyed, and which the rest of the King's subjects have frequently, and whenever they have thought proper, carried on, and which, it is stated to us, they have never been hitherto attempted to be interrupted in by the Hudson's Bay Company. i No. 4. Opinion of Richard Bethell, A.G., and Henry S. Keat- ing, S.G., upon Various Matters Connected with THE Charter of the Hudson's Bay Company. Lincoln's Inn, Jult/, 1857. Sir, — We are favoured with Mr. Merivales letter of the Itth of June ultimo, in which he stated that he was directed by you to transmit to us copies of two despatches from the Governor of Canada, hiclosuig the copy of a Minute of his ^ si 31 ^ w 414 APPENDIX. Executive Council, and extract from another Minute of the same in reference to the questions respecting the affairs of the Hudson's Bay Company, then under investigation by a Com- mittee of the House of Commons. "We were also requested to observe from the former of those Minutes that the Executive Council suggest, on the part of Canada, a territorial claim over a considerable extent of coun- try, which is also claimed by the Hudson's Bay Company, as owners of the soil, and with rights of government and exclu- sive trade under their Charter. We were also requested to observe by the annexed Parlia- mentary Papers of the 12th of July, 18»0, that the statement of the Hudson's Bay Company's rights as to territory, trade, taxation, and government, made by them to Earl Grrey, as Secretary for the Colonies, on the 13th 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, but suggested, at the same time, a mode of testing those claims by petition to Her Majesty, which might be referred to the Judicial Committee. Mr. Merivale was further to annex a Parliamentary Return made in 1842, containing the Charter of the Company, and documents relating thereto ; and another of 23rd April, 1849, containing, among other papers, an Act of 2nd William and Mary, " for confirming to the Governor and Company trading to Hudson's Bay their privileges and trade." The rights so claimed by the Company have been repeatedly questioned since 1850 by private persons in correspondence with the Secretary of State, and were then questioned to a certain extent, as appears by those despatches, by the present local Government of Canada. Mr. Merivale was also to request that we should take those papers into our consideration, and report — Whether we thought the Crown could lawfully and consti- tutionally raise, for legal decision, all or either of the follow- ing questions : — K'K APPENDIX. 415 The validity at the present day of the Charter itseli. The validity of the several claims of territorial right of government, exclusive trade, and taxation insisted on by the Company. The geographical extent of this territorial claim (supposing it to be well founded to any extent). And if we were of opinion that the Crown could do so, we were requested further to state the proper steps to be taken, in our opinion, by the Crown, and the proper tribunal to be resorted to ; and whether the Crown should act on behalf of the local Government of Canada, as exercising a delegated share of the Royal authority, or in any other way. And, lastly, if we should be of opinion that the Crown could not properly so act, whether we saw any objection to the questions being raised by the local Government of Canada, acting independently of the Crown, or whether they could be raised by some private party in the manner suggested by the law^ advisers in 1850, the Crown undertaking to bear the expense of the proceedings. In obedience to your request, we have taken the papers into our consideration, and have the honour to report — That the questions of the validity and construction of the Hudson's Bay Company'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 Company in various acts, both of the Government and the Legislature. Nothing could be more unjust, or more opposed to the spirit of our law, than to try this Charter as a thing of yester- day, upon principles which might be deemed applicable to it if it had been granted within the last ten or twenty years. These observations, how^ever, must be considered as limited in their application to the territorial rights of the Company under the Charter, and to the necessary incidents or conse- quences of that territorial ownership. They do not extend to the monopoly of trade (save as territorial ownership justi- kji 1 I I I! ! ;{' 1 r 1 1 1 ' 1 • J' J I t p j. ^Ui API'KVDIX. tien tho •'xr-lusion of iutrudprs), or to the rip:ht of an t^xf lusive a/lrninistration of justice. Hut we do not understcuul the lludsoii's J{ay Company as claitnintr anything" beyond the tevvitorial (»vviiership of the country they are in possession of, and the rii>ht. as incident to Huch ownership, of excluding' j^ersons who would compete with them in the iur trade carriiid on with the Indians resort- intf U) their districts. With these prehminary remarks we beg- leave to state, in answer U) the questions submitted to us, that in our opinion the Crown could not, with justice, raise the question of the (general validity of the Charter ; but that on every legal prin- ciple the Company's territorial ownership of the lands, and the rig:hts necessarily incidental thereto (as, for example, the right of excluding from their territory persons acting- in viola- tion ol their regulations), ought to be deemed to be valid. Hut with respect to any rights of government, taxation, ex- clu>»ive administration of justice, or exclusive trade, otherwise than a« a consequence of the right of ownership of the land. Mich rights could not be legally insisted on by the Hudson's Hay Company as having been legally granted them by the (>ovvn. This remark, however, requires some explanation. The (Jompany has, under the Charter, power to make ordi- nances (which would be in the nature of by-laws) tor the gov- ernment of the persons employed by them, and also power to exercise jurisdiction in all matters, civil and criminal ; but no ordinance would be valid that was contrary to the Common Law, nor could the Company insist on its right to administer justice as against the Crown's prerogative right to establish courts of civil and criminal justice within the territory. We do not think, therefore, that the Charter should be treated as invalid because it professes to confer these powers upon the Company ; for to a certain extent they may be law- fully used, and tor an abuse of them the Company would be amenable to law. "L-i APPKNDIX. 417 The romainiii<^ subject for considoration is the qu«'stion oi" the geographical 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, when the words, as is often the case, are indefinite or ambiguous, the rule is, that they are construed b) usage and enjoyment, including in these latter terms the assertion of ownership by the Company on important public occasions, sach as the Treaties of Ryswick and Utrecht, and again in 1750. To these elements of consideration upon this question must be added the enquiry (as suggested by the following words of the Charter, viz., " not possessed by the subjects of any other Christian prince or state "), whether, at the time of the Charter, any part of the territory now claimed by the Hudson's Bay Company could have been rightfully claimed by the French as falling within the boundaries of Canada or Nouvelle France, and also the effect of the Acts of Parliament passed in 1774 and 1791. Under these circumstances, we cannot but feel that the im- portant question of the boundaries of the Hudson's Bay Com- pany might with great utility, as between the Company and Canada, be made the subject of a quasi-judicial inquiry. But this cannot be done except by the consent of both parties, namely, Canada and the Hudson's Bay Company ; nor would the decision of a Committee of the Privy Council have any effect as a binding judicial determination. But if the Hudson's Bay Company agree to the proposal of the Chief Justice of Canada, that the question of boundaries should be referred to the Pri^^ Council, it being further under- stood by both parties that the determination of the Council shall be carried into effect by a declaratory Act of Parliament, we think the proceeding would be the best mode of deter- mining that which is, or ought to be, the only real subject of controversy. 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I tsa ro s ISLANDS jVTIC > / ^:\ .•;*Lucayo \he Hole in the Hock Ele»1rtl«c'rn T NORTH AM wherein are paTlirulaTi] The BRITISH D THE UNITE I) jand THEADJACE:NT SPAN. ,r _-v:\ J?r THOMAS KJ '""""lW«"d«% Hydrographer to HI JBerini luiesi c t: ^ N t IT H AMERICA re paTlic ulaxljcliftiTigiiirhed RITISH D OMINIOWS, 57 UJVITEI) STATES, \TMENT SPANISH TERRJTOBlES^j By THOMAS KITCHIN drographer to HIS HAJESTr. I &r liAlTRlE ft WHITTLE ]VP33Ff. m the Act directs n^KMay- I'/ 9^. -^' SCALES. BriiUh StatuteMles. 10 30 00 1)0 II) f50 ISO 2fauticLeatfueii. 5 to •!(> 30 -W 50 bO jipmiish Leagues. 30 , •• J.'.MiiWW' '*S^t^,i«''!^.;^i^t*4- ':■■•■■ ., >4';'-,-;.''3,r;Sf, :.iV:^.;-.»',<». -i5S; 5 V 5 ^ fSsaBajKfflWSMBWi u j:?^ "^M, y Frobisher Sir >a it 'CH' .J X^^ >' So« iK Hop' Aiv**' .c«' .0^ ■ m \ MA NORTH Skewing the po bj Fr «Trfft ^i '■^i^^^knnrmt^ir: i^.'A^tmf hp»*^Uw»^^v^ Cr.li MMurl of'fhfSrrriri/\''\\{\\\V'A ill flic ;ii,.i.i:v{)i*i I'orix'rKr, irithl'dilnf- 'III ^ .^'^ ■ . fii/i/iiiii iii^/ir '/I'/fM/' ■ /mil/. ■sfiliU I 4 J \