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 REGARDING THE BOUNDARIES 
 
 OF THE 
 
 I»«OVIIVOE OlH-r OIVT^mo 
 
 PREPARED BY 
 
 HUGH MACMAHON, Q. C, 
 
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 EEGARDING THE BOUNDARIES 
 
 OF THE 
 
 PR^OVUVOE OiT OIVTA.III 
 
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 FREPARED BY 
 
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 Counsel for the Dominion. 
 
 
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AHHRKVTATIONS. 
 
 Ont. Poets. StattiU's, T)<)ctiinonts aixl Pn|K'rs ri'spcotiiig the Noitliom ami NVL'.stern 
 
 Hoiiiidaiics of Ontariii, coiiipilfil liy "iiicctioii <>( tlir (ii>vi'rniiifiit of Oiitnrio. 
 
 Rtvisi'tl Ilfport lor the |»ui|Mist' of tlif Ailiitiatinii iM'twcon tin' Doiiiiiiioii of 
 Canada and I'lovinci- of Ontario, \>y David Mills, Kstj., M. P. 
 
 Papers prcsontj'd by command of H<t Maji'sty to the Houhu of Commons in 
 (I lln'ul'i o7 Com I'lU'^uancu of an addn-ss ii-spcctinm' the Toriitoiy, Tmd<', Taxation and (loVi'in- 
 iiions. nu'nt t'laimt'd or t'Xficisfd liy the liiidsoii's Buy Company. (Onleri-d liy House 
 
 of Conmions to be printed, 12tli •July, 18.50,; 
 
 Mill*. 
 
 rii|)ci> relating ti> 
 
STATEMENT OF THK CASE 
 
 OK THE 
 
 GOVERNMENT OF THE DOMINION OF CANADA 
 
 RK(iARDINO THE 
 
 BOUNDARIES OF THE PROVINCE OF ONTARIO. 
 
 The limits assigned to the Province of Ontario hy the British North America Act, 1807, 
 Sect. (3, are such part of the Province of Canada as at the pas.sa<fe of the Act formerly constituted 
 the Province of Upper Canada. 
 
 The claim of the Dominion of ( 'anada is, that the meridional line ilrawn due north trom the 
 junction of the Ohio and Mississippi rivers (ascertained to l)e 89° D' 27" west) forms the western 
 boundary of Ontario, and that the land's lu'ight of the nortliern water-shed of the St. Lawrence is 
 tlie northern boundary.' 
 
 The Government of Ontarin contend that the western limit of that Province is the Rocky 
 Mountains ; that the north-western limitary line lies north of the Saskatchewan ; and that the 
 north-eastern line lies in the vicinity of Hud.son's Baj-. (Mills, p. 1.) 
 
 The claim of Ontario to extend the western limit of the Province to the Rockj' Mountains 
 rests, it is assumed, u})on the supiiosed title of Fiance to that country, as having been the first 
 discoverers theri'of. It was stated by M. de Callieros, when writing to M. de Seiguellay in 1085 
 (N. Y. His. Doc, Vol. IX, p. 205), that the French were the first to discover Hudson's Bay, and 
 that nation was therefore entitled to the whole country to the base of the Rocky Mountains ; 
 and the rule of international law on which this is claimed is thus .state<l by M. de Callieres : " It 
 is a custom establisheil ami a right recognizeil by all Christian nations that the first who dis- 
 covers an urknown country not inhabitetl by Europeans, and who plant in it the arms of their 
 prince, secure the property thereof to that prince in whose name they have takeji possession of it." 
 
 L'Escarbot, in l(il7, stated that " ."Vew 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 Hespaniola ; on the «'ast by the 
 Northern Sea, which bathes New France ; and on the north that land called ' Unknown ' towards 
 the icy s^-a as far Jis the Arctic Pole.' (Ont. Docts., j). 53.) So that the whole of the north-western 
 portion of the continent was claimed as liehmging to France. 
 
 It will be necessary briefly to show upon what these claims are founded; and then to considt;i 
 if they have any value as bearing on the question to be decided by the arbiti-ator v 
 
a 
 
 111 102(.>, Louis XIII. granted to the Company of New France a charter wliich, it is ausertud, 
 included the whole of the country about Hudson Bay and west of it. 
 
 The Indians from the vicinity of Hudson's Bay came to Montreal to trade ; hence it is said 
 there was no necessity for erecting forts and trading posts. (Mills, )>. 127.) 
 
 It is stated that Jean Bourdon, the Attorney-General in 165G, explored the entire coast of 
 Labrador and entered Hudson's Bay. 
 
 It appears that in the year IfiSG there was an order of the Sovereign Council of Quebec 
 authorizing Sieur Bourdon, its Attorney-deneral, to make a discovery thereof. 
 
 There is no record whatever of his having attempted to make the discovery in the same year 
 in which the ortler was passed by the Council. There is a record, however, of his having made 
 the attempt in the year following (IG')7), and he may then have designed carrying out the onler. 
 He sailed on the 2nd day of May and returned on 11th August, 1057; and it is not pretended that 
 hecould have made a voyage to Hudson's Bay and return between these dates. (Journal des Jesuites 
 pp. 209-218.) As to the extent of this voyage there can be no doubt, as in the Rel. de Jests., Vol. 
 III., Rel. 1058, p. 9, it is thus reported : — 
 
 " Le 11 (AuguKt) |)anit la. barque de Monsieur Bonrdon leqiiel estant descenrlu sur le grand flenve 
 du Cos*d du Nord voyagea jtisqiies au S.*) degre an il rencontra un ijrand banc de glace qui le fit remonter 
 aiant penhi deu.v Hurons (jli'il avail pris pour guides Les Esipiiiuaux sauvages du Nord lesniassacr^rent 
 et blesserent un Frangois de trois coups de fleches i^t d'un coup de couteau." 
 
 The Jesuits would have known if Jean Bourdon liad entennl the Straits of Hudson, and 
 woidd have inentioned it in their Relations. On the contrary, they never mention it, and it is to 
 be taken from that the assertion that that he ever entered Hud.son's Bay is a myth, because he 
 was of the Province of Quebec, and was a man well known and trusted by the Jesuits, and 
 went with Father Ja([ues on an embassy to Governor Dongan of New York. 
 
 It is asserted that Father l)al)l<m and Sieur de Valliere were in 1001 ordered by Sieur 
 d'Argennon, Gov(!rni>r of Canada, to proceeil to the country about Hudson's Bay, and they went 
 thither accordingly, and the Indians who then came l>ack with them to Quebec declared that they 
 had never seen any Europeans there before. 
 
 In Shea's Charlevoix. Vol. III., ))p. W and \(), it is stateil that he (Blather Dablonj attempted 
 to penetrate to the Northern Ocean by ascending tlie Saguenay. Early in July, two months after 
 they set out, they found themselves at the head of the Nekauba River, 300 milt^s fron) Lake St. 
 John. They could not proceed any fintlier, being warned by the ai)proaeh of the Iroquois. 
 
 Rev. Claude Dalilon arrived in Caiuida in 10.')"), and was immediately sent missionary to 
 Onondaga, where he continued witli a brief interval untd 10.18. In 1001 he set out overland for 
 Hudson's Bay, but succeeded in reaching only the head waters of the Nekauba, 300 miles from 
 Lake St John. fN. Y. His. Doc, Vol. IX , \y !)7, note 2.— Ed.) 
 
 In the Ret de Jesuits, Vol. Ill (1001), p. LS, there is an account of this voyage, which is 
 called "Journal du iu'emier voyage fait vers la mere du, Nord. (12 Aout, KiOl.j' The account 
 is dated from the highest point they reached, Nekauba, 100 lieues de Tadousac, 2 Juillet, KiOl : 
 
 " 1661 Juillet le 27 retournfeiuut ceux qui estoieut aliea ou pretendoient aller h la uier du Nord au 
 Kiristinons P. Dablou &c." (Journal du Jesuits, p. 300.) 
 
 An as,sertion is made that .som-j Indians came from aliout Hudson's Bay to Quebec in 1003, and 
 that Sieur la Couture with rive men proceeded overland to the Bay possessions, whereof they took in 
 the King's name. 
 
 There is no record of this voyage. No mention is made in Charlevoix or in the Relations of 
 the Jesuits respecting Couture or his expedition. 
 
 Sieur Duquet, King's Attorney for Quebec, and Jean L'Anglois, a Canadian colonist, are said 
 to have gone to Hudson's Bay in 1 0(53 by order of Sieur D'Argenson and renewed the act of 
 taking possession by setting up the King's arms there a second time. 
 
Viscaunt l)'A.rgeiiHon,who is stated by Mr. Mills at p. 12!) of his Revised lleport to have given 
 tlie order to Diuiuot to proceed to Hudson's Bay, left Canada on Kith September, lfi(il, two years 
 prior to the yiviiij,' of thf order, which it is stated Sieiir Duquet received. (Shea's Charlevoix, 
 Vol. III., p. ()-), note .-) and p. 17. N. Y. His. Doc'ts, Vol. IX., p. 17.) 
 
 In KHifi or l!i()7, Uadisson and des Gro.sellii;res were roamins; anion<f the Assiiiniboines in the 
 region of Lake Winnipeg, and were conducted by nieinbgrs of that tribe to the shores of Hudson's 
 Bay. (Mills, )). 8.) 
 
 Father Albanel and Sieur St. Simon were, in November, 1(»71, sent l)y M. Talon to Hudson's 
 Bay, which they reached in 1072. 
 
 In the Relations of the Jesuits, Alliaml gives an account of his trip, and shows that the English 
 Company were already in ])nsse.ssion of Hudson's Bay, liaving <'ntered there iinder their charter. 
 
 It is quite apparent from the Relation that no one had on l)ehalf of France vi.sited Hudson's 
 Bay jtrior to his visit in 1(J72. Father Albanel says : - 
 
 ".JiiHqiies icy on avoit estime ce voyage iiiqiosKihle aux Francois, qui apres 1' avoir entrej)ri8 d^ja par 
 trois fois, et ii'en ayiint ]»ft yniiicre 1«h ol'stiiclcR. H'estoicnt \e\i ohli^jez de raltiiiidnnnpr dims le despspoir du 
 Huccez. ('e qui paroist iuqtossihie, ue tmuve iiise quaiul il plmst h Dieu. I, a coinhiite lu'eii estoit detie, 
 apies dix huit ans lie poursnites (pie j'en avois faite, et j'avoiH des pienves asscz seiisjIdcH (]\w Dieti in 'en 
 reservoit 1' execution, ajue. la favi'ur iiisii^n" d' uhh H;aerison soudaiiie et marveilleusf. pour ue point dirp 
 inii'HCuli'Use, ipip je rect'UH des que Jp me tus devoiie ^ cetti! mission, ii la sollieitaiiou dv mon Su|i(^rienr." 
 (Hel. JeslH. 1072, y.r}C^.) 
 
 Up to this time (1(572) the Jesuits do not appear to liave heard of any prior expedition 
 havii'g reached Hudson's Bay. 
 
 What is relied upon l)y the Proviace of Ontario as furnishing evidence of F'atlier Dablon 
 and Sieur Couture having visited Hudson s Bay is a memoir of .M. de Callieres sent to the .Marquis 
 de Seiiiuelay in lOM (N. Y. His. Doct., Vol. IX., p. 2().S), and M. de Denonville, on 8th Nov., KiSCJ, 
 by a memoir sent to M. de Seiquiday, appears to have copied the statement made by M. dti ('allieres. 
 (Sc(! ibid, p. SO^. ' But in his letter wliich accompanies the memoir M. de Denonville says: "I 
 annex to this letter a memoir of our rights to the entire of that country of which our registers 
 ought to be full, but no memorials of them are to l)e found." (N. Y. His. Doc, Vol. IX., p. 2!l7.) 
 M. de Deiionville therebj' a<lmits that documentary evidence could not even at tliat time be ail- 
 duced in support of these visits having been made to Hudson's Bay. 
 
 At the time that M. de Callieres and M. de Denonville wrote (in KiXi and KiiSd) it was most 
 important to show if ])()ssil)le that Dablon and Couture had been at Hudson's Bay. The French, 
 before that time, had dcivi-n the Kngli.sb from a number of their Forts; and in March, l(iS(j, Can- 
 adian troops were sent by Denonville who suii)rised and captured Forts AHiany, Hayes and Rupert, 
 belonging to the Hudson's Bny Ctmipany ; and it tlierefoie became necessary to show a color of 
 right for these proceedings, ami these memoirs were prejiared with that view. 
 
 ENGLISH DISCOYERY. 
 
 1517 
 
 Sebastian Cabot, who sailed to Hudson's Bay and Straits under a commission from Henry 
 VII. of England, entered the Bay, which, in lOK), took the name of Hudson. This isatlmitted by 
 Mr. Mills, pp. 122 and 123. (See Bacon's History of Henry VII. Hakluyt, Vol. Ill, pp. 25, 20 
 and 27.) 
 
 1576, 1577 and 1578. 
 
 Sir Martin Frobisher, it is said, made three voyages to Hudson's Bay. He entered Hudson's 
 Bay in l.')7(), and gave the name to Frobisher's Straits. (Mills, p. 123. HaJcluyt, Vol. III., pp. 55 
 to 95. Pinkerton's Collection, Vol. XII., pp. 490-521.) 
 
-WP^^^^PI 
 
1608-1610. 
 
 According to the narrative of Prickett (who was with Hudson durinj; the voyage), to be 
 found in Harris's Voyages, Vol. II., pp. 248-4, Hudson sailed on 17th April, IGIO, reached the 
 Bay now known as " Hudson's " in July of that year and wintered in the Bay, and remained 
 there until late in the summer of 1611. 
 
 16U. 
 
 It was desired to provSecute the discoveries made by Hudson, and in IGll His Royal High- 
 ness Henry Prince of Wales was applied to by j)erson3 concerned in the project, and he resolved 
 to send Captain Button, wIkj penetrated to the Hudson's Bay and sailed 200 leagues to the north- 
 west. He wintered there at Nelson River. (Harris, Vol. II., pp. 2+5-4()+.) 
 
 1631 
 
 It appears that the English nation had been trading with Greenland, and those trading 
 finding that " other nations were interfering with this trade " found themselves under a necessity 
 of having recourse to the ('rown for protection and assistance, as well for defending their fislieries 
 as for prosecuting their discoveries, and they accordingly addressed themselves to King Charles I., 
 who furnished them with a frigate called " Tlie Charles," under command of Captain Luke P\^x, 
 who sailed in the spring of KiSl, in order to make discoveries towards the North-west. Captain 
 Fox and Captain James met at Fort Nelson in August, 1031. 
 
 Capt. Thomas James undertook his voyage in 1031 for the satisfacti(mof Charles I. at the ex- 
 pense of the merchants of Bristol. The account of the voyage was written by himself and 
 published in l()33. Captain Jam.es left England in May and met Captain Luke Fox on :i9th 
 August near Port Nelson. He wintered in Hudson's Bay. (Harris's Travels, Vol. II, pp. 407, 40!J 
 and 413.) 
 
 1667 and 1668 
 
 Des Grosellibres and Radis.son (who it is supposed were Coureiirxde^hois) were roaming among 
 the Assinniboines and were conducted Ity them to Hudson's Bay. 
 
 Des GroicUieres and Railisson went to Quebec for the purpose of inducing the merchants there 
 to conduct trading vessels to Hudson's Bay. The proposal was rejected, as the project was looked 
 upon as chimerical by the Quebec merchants. (Out. Docts. p. 280.) (This does not accord with the 
 pretentious of the French that Jean Bourdon had ruade a voyage tliere in lOoO or 10.57.) 
 
 Des Grosellieres was in London in 1007, and before going there had been in Boston and Paris 
 in search of persons willing to fit out an expedition to explore Hudson's Bay. He met with a 
 favorable reception, and the London merchants em|)loyed Z. Gillain, a person long use<l to the 
 New England trade, to perfect this discovery. Gillam sailed in the " Nonsuch " in 1007, and on 
 his arrival built Fort Charles, ,sai<l to have been the first fort erected in the Bay, and upon his 
 return those engaged in the enter|)rise applied to Charles II. for a patent, which was i.ssued on 2nd 
 May, 1(570, to Prince Rupert and others. (Hariis's Voyages, Vol. II., j). 28(i.) 
 
 1669 
 
 Captain Newland was sent out in lOOi) by the same parties who in 1(567 sent out Z. Gillam. 
 
 As far as the Hudson's Bay territory is concerned the English were first, both as to discovery 
 and occupation. So long as the English were not there the Indians came to Montreal and 
 Quebec, and the French derived the benefit of the trade, which was all that was required, and they 
 could then afibrd to treal as chimerical the statements of Radis,son and Des Grosellieres that 
 Hudson's Bay coiild be reached with ships. But once the English occupied the territory, erected 
 forts and created settlements, wliereby the French fur trade was cut ofi" from the west anrl north, 
 then it became necessary for them to claim title by discovery. Hence the memoir of M. de 
 Callitres to M. Seiquelay, which is shown cannot be relied upon, and which De Denonville says 
 there are no memorials to support. 
 
-A 
 
If poftieHHiou "iH to form a claim tn the country, the evidence that the Knglish rirst n»a<le a 
 Histtlemont and tlius took possession is of the clearest cliaracter, for it is not seriously {)retonded 
 that any actual possession was t»iken nor any settlement made until Gillam w<'nt to Hudson's 
 Bay an<l Imilt Fort (Jharles in 1()(J7. 
 
 What, then, did En^dand olttain Viy takin;,' possession and making a settlement for the pur- 
 pose of oocu|)ancy liy huildiiiif the ininierons forts on Hudson's Bay in the year l()(i7 and durinjj 
 8ul>se(iuent yeai"s ;* Accordinij; to Vattel, Hook I., ("hap. l.S, Sect. 207, "Navigators i^oin«,M)n voyages 
 of di.scovjry furnished with a commission from their Sovereign, and meeting with islands or other 
 lands in a desert state, have taken pos.session of thcjui in the name of their nation ; and this 
 title has been usually respected, provided it was soon after followed h}' real jjossession." 
 
 " vVhen a nation takes possession of a country, with a view to settle there, it takes pos-session 
 of everything iiickuied in it, as lands, lakes, rivers, ^c. " (Il>id, Chap. 22, Sect. 22().j 
 
 " In the negotiations between Spain and the United States respecting the western Ixtundary 
 of Louisiana, the latter country laid down with accuracy and clearness certain proj)ositions of law 
 upon this sidijeet, and wliich fortify tlie opinion ailvanced in the foregoing j)aragraphs. 'The 
 principles (America said on this occasion) wliich are applicable to the case are such as are dictated 
 by reason and have been adopted in practice l>y European Powers in the discoveries and aciiuisi- 
 ti(ms which they have respectively made in the New World. They are few, simple, intelligible, 
 and, at the same time, fmiuled in strict justice. Tlie first of thes*; is, that when any European 
 nation takes possession of any e.xteiit of sea coast, that possession is understooil as e.Kteiiiiiiig into 
 the interior country t.i the sources of the rivers emptying within thit coast, to all their bianihes, 
 and the country they cover, and to give it a right, in exclusion of all other nations, to the .same. 
 (See Memoire de rAmeriipie, p. 11(5.) It is evident that some rule or principle must govern the 
 riglits of European Powers in leganl to each other in all such cases; and it is certain that none can 
 be ado|)ted, in those to whicJi it api)lies, more iea.sonal)le or ju.st than the present one. Many 
 wiiighty considerations show the propriety of it. .Nature seems to have destined a range of ter- 
 ritory so described for the same society to have connected its several parts together by the ties 
 ot a common interest, and to have detached them from others. If this principle is departed li'om 
 it nui.st Ite by attaching to such discovery and po.'sse.ssion a more enlarged or contracted .scope ot 
 ac(piisition ; but a slight attention to the subject will demonstiate the absurdity of either. The 
 latter would be to lestrict the rights of an European Power who discovered and took pos.session 
 of a new country to the sj)ot on which its troops or .settlement rested — a doctrint^ which has lieeu 
 totally disclaimetl liy all the Powers who ma.le discoveries and acipiired possessions in America.' 
 (Phillimore's Intl. Law, 2 ed.. Vol. I., pj). 277-«-i).) 
 
 Sir Francis Twiss, in his discu.ssion on the Oregon <iuestion, at page 300 states that " (Jreat 
 Britain never considered her right of occupancy up to the Rocky Mountains to rest U|ion the fact 
 of her having established factories on the shores of the Bay of Hudscm, i. c, upon her title by 
 mere settlement, but upon leer title hy discovery confirmed by settlements in which tlie French 
 natian, her only civilized neighbor, acquiesced, and which tltey subse<iuently recognized by treaty." 
 
 The British nation, theretore, ac([uired, by discovery and by settlements made on Hudson's 
 Bay, the possession of the country extending into tne interior to the .sources of the rivers em|)tying 
 within that coast, which would include the Saskatchewan and Engli.sh Rivers to the west, having 
 their sources at the foot of the Rocky Mountain's, and extending south and east to the sources of 
 all the rivers flowing into James's Bay. 
 
 The law entitling England to this has been stated not only by V^attel, but has been adojjted 
 as correct by the United States, and is recognized by the highest anthorities on International Law 
 in England — Dr. Twiss and Dr. Phillimore — as being the correct princij)le to apply in such cases. 
 
 If England acquired the territory claimed within the limits stated, it may for some purposes 
 be necessary to consider what the Hudson's Bay Company took under their Charter. The Charter 
 
will l)c touiid in Out. Ducts., pp. 2!) -37, and at p. SJl will he t'ouiid what the Kin^ ^ranU* to the 
 Fftidson's Hay (Jo. under the name of " KupeitH Land." First is ^'runteil the s.dii trade and cnni- 
 nieire of all those seas, liays, lakes, rivers, creeks, ite. Then the Company are created the 
 absolute lords and pioprietors of the sdnw htrrifm'!/, limitx and [Aucch, itv., ifci;., in Ji'ie and 
 coiimum soaufr," with powcir to erect oulonienand pliinttitiouH, Aic 
 
 ThtM Charter is very wide; ami althouj>h it appears to have lioen concede*! hy the htadin^ 
 counsel in Knylatid f^Ont. Docts., p|t 1!(.S to 2()2i whose opinions were obtained that the Charter 
 ;,Mantin<^ a monopoly to the Company to trade nuiy have heeii void l)ecause not sanelioned liy 
 Parliament, yet that the tevritoi'idl (/r<tnf in }udid,Mu\ the only diHerence in th« opinions apjtears 
 to be to the extent of territory covered by the yrant. 
 
 In l.S4!l, on an address of the Kouse of Commons |irayin^' that Her Majesty would l)e j^raci- 
 ously plea.sed to direct that means be taken to ascertain the legality of the powers in respect to 
 Tkukitoky, Tlt/VDK, T,v\ATit)N, and (JoVKUNMKNT, which are, or have been, claimed by the 
 Hud.son's Bay Company, the Directors of the Company were reijuestud to reucler their a.ssist- 
 ance in complying,' with the address of the House of Commons, which they did on the IMtii of 
 Septemi)er, bSH), l)y enclosin^f to Karl (Jray a stateunMit as to their llliiilTS as to 'ri;iiulT iliv 
 TIUUK, \:c., which will he found in full in Out. Ducts., pp. iHH-'J and 'JKO. 
 
 Anno.Ked to this statainent was a map shuwia>^ the territory claimed by the Company 
 as included within their Charter; and a copy of this nuip was likewise proiliu'ed in \Hii7 to the 
 Select iJommittee of the House of Commons, and is attached to the Report of that C'ommittee. 
 This nuip shows that on the south the Company clainuid to the laud's height, and on the west to 
 the foot of the Rocky Mountains. 
 
 On HOth Oct., IHt!), Karl Orey enclosed tu the then law-utticers of the Crown the statement 
 ami map fur>ii.sJied by the Comitany, i«. juesting an o|iinion as to the ri;,dits of the Company. 
 
 The opinion furnished is as follows: — 
 
 Copy of a Letter from Sir John Jircin and Sir John Roniilh/ to Karl (riri/. 
 My Lord, Temple, .January, I.S3U. 
 
 We were honored with your Lordship's conunands contained in Mr. Hawes's letter of the 3()th 
 October last, in which he stated that he was directed l>y your Lordship to transmit to us the copy 
 of a Resolution of the Htjuse of (yoinmous, that an Aildress i)e prtisented to Her Majt^sty, prayini; 
 that measures may l)e taken for ascertaininjjf the Icjicality of tiie powers which are claimed or 
 exerci.sed by the Hud.son's Bay Company on the Continent of North America. 
 
 Mr. Hawes then stated that he was to enclose the co[)y of a letter from the ('hairman of the 
 Hudson's Bay Company, tofjjether with a statement ami map, prepared under his din^ction, of the 
 territories claimed iiy the Company in virtue of the Charter granted to them by King Charles 
 the Second. 
 
 Mr. Hawes also sent the co|)y of a letter, dated the 3()th September last, from Mr. A. K. 
 Isbister, inipiirini,' in what mode Her Majesty's Government intend to give eHect to the Resolution 
 of the House of Commons, and whether, in the event of any reference to a judicial tril)unal, it 
 will be necessary for the parties interested to appear by counsel or otherwise, or to furnish 
 evidence, and, if so, of what nature. 
 
 Mr. Hawes concluded by stating that ycmr Lordship recjuested that we would take these 
 payters into our early consideration, and inform you whether we are of opinion that tin; rights 
 claiiiied by the Company do properly belong to them. In the event of our entertaining a doubt 
 on any point raised in these {)a{)er.s, Mr. Hawes was to request that we would advise yuur Lurd 
 ship iu what manner the opinion of a competent tribunal can be obtained on the subject. 
 
 In obedience to your Lordship's command, we have taken these papers into our considera- 
 tion, and have the honor to report that, having regard to the powers in respect to territory. 
 

' tradu, taxation, aiul ^overnnH'iit, claiintHlhy tin* HiiiImoh'h Bny ( 'innpany in tlit- HtatoiiifiitH fur- 
 nislitMl to your Loril.slii|i liy thu (Hiairniaii of tlint ('oin|iaiiy, wo are of opinion that tlic ri^litM ho 
 clainitxl liy the Company ih> |)ro|»c'rly Itclon^' tn tlicni. 
 
 lJ|ion this Hiili)fct we t'litcrtain ii<> i|<inl>t ; Imt as it will l>t> nioiv satiHtactorv to the coni- 
 phiinants a'^ainst thuCouipany, to tht> proniott'i's of tin> <liHcuH.sion in thu Houhu of CoinnioMH, and 
 possibly to the Company thcmstilvi's, if the (|Ufstions aro piililicly a^^,'U('(l and solfninly di'citied, 
 Wf himiltly advisi' your Linlship to ndinr these ijtiestions t( a cumpctent trilxuial for CMnsidiMa- 
 tion and deuision, and to iid'orm Mr. Isliistcr tinit ht; may ap|MHr as cumplainaiit, and tht- < 'mnpany 
 that they may lu> huanl &s rt>sp<mdents upon thu ar^'iinient 'I'iiu proper niiHli> of r.iisiiif^ tiie 
 (pu'stiiin for disciissicm will, wt; presnoie, be for Mr. Ii>ist4'r, or some other persun, to endiody in a 
 Petition ti> Her Majesty the cnmpluints nryed against tlie lliid.son's Hay Cuiiipany ; and such a 
 I'etition may lie referred by Her Majesty either to the Jtidieiary Committee, under the kh 
 Heetion of tile Statute M ami + Will. IV., c. H,or to the (.'<»nunitteeof Trade, a.s involvin^Mpu'stions 
 within their jurisdiction. The Judicial Committee, fr<>ni its constitution, is the l»est titU'il for 
 the discussion of a case of this description, and we recommend that to that tribunal th)> propo.sud 
 Petition should be refenvil. 
 
 l^PapiMs lelatin.; to H. B. Co., pre.stiuted to House of Commons, pp. 7 N.j 
 
 On (5th June, !(S.')(>, Karl (Jrey caused to be sent to Sir .lohn Pelly a letter, from which the 
 followinjif extracts are taken : — 
 
 Kxtract ot' a Letter from If ffiiw'x, Ks(p, to Sir Jnlni l*rlhf, Fiart., dateil Downinj,' street, (Uh 
 
 June, IfS.'.l!. 
 
 " With lefereuce to your (d»ei-vation, ' that it would be of the utmost importance if tlie deci- 
 sion of tiio Privy Council on the rif,dits and privile<^es of the Company wer«' sent to Hudson's Bay 
 by one of the ships a|>|)ointed to sail on the Hth instant,' I am to rennnd you that the proeecdinj^s 
 for the puipose of j^iviiiLT I'H'ect to the UHSolution of the House of (.'ommons of .")th July, l!Si!>, 
 have not leil to any reference to the Privy Council, ami that the i|Uestion raised in that Resolution 
 stands in the following position; — 
 
 " Steps having lieen taken, as you are aware, to olitain from the Hudson's Bay Company a 
 statement of its claims, that statement was duly suinnitted to Her Majesty's Law Advisers, and 
 Hei' Majesty's Government received fiom them a report that the claims of the Company were 
 well foiuidcd. It was observed in that report that, with a view to the fuller satisfaction of the 
 House of Commons, and the parties interested, it would be advisable to refer the irupiiry to a 
 competent tribunul, and that the proper method of raising a discussi(ui upon it would lie for some 
 person to ad(hvss a Petition to Her Majesty, which Petition migiit tiien be referred either to the 
 Juilicial Committee, or the Committee of Privy t'ouncil for Trade and Plantations. 
 
 " Such a Petition was, therefore, e.s.seatial to the comj)lete prosecution of the inipiiry ; Lord 
 Grey accordingly gave to certain parties in this country, who had taken an interest in the con- 
 dition of the inhabitants of ttu^ Hudson's Bay ( 'ompany's Teiritorit^s, anil had (jnestioned the 
 validity of the Company's Cliaiter, an c)ppiirtunity to prefer the ueces.sary Petition if they were 
 ■ so disposed ; but, for reasons which it is unneces.sary to repeat, they respectively declined to flo 
 so. Lord (Jrey luiviug, therefore, on behalf of Her Majesty's Government, adopted the mo.st 
 ett'ectual means open to him for JFinswering the re(piiremeuts of the Address, has been (ddiged. in 
 the al)sence of an}' paities pre[)ared to contest the rights claimed by the Company, to a.-isumo the 
 o})iniou of the Law-OtHcers of the Crown in their favor to be well founded." 
 
 (Papers relating to H. B. Co., presented to House of Commons, p. 15.) 
 The law-ofiicers of the Crown — Sir Richard Betliell, Attorne}--General, and Sir Henry S 
 Keating, Solicitor-General gave an opinion in liS.")7 (Out. J)octs , pp. 2()()-lj, " That the validity 
 and construction of t!»e Hudson's Bay Company's Charter cannot be considered apart from the 
 
9 
 
 enjoyment which has been had under it during nearly two centuries, and the recognition made ot 
 the rights of the Coni}>any in various Acts both of the Government and the Legislature." 
 
 " We l)eg leave to state, in answer to the questions submitted to us, that in our oj)inion the 
 Crown could not now with justice raise the question of the general valitlity of the Charter; but 
 that, on evei-y legal principle, the Company's territorial ownership of the lands and the rights 
 necessarily incidental thereto (as, for example, the right of excluding from their territory per- 
 sons acting in violation fo their regulations) ought to be deemed to be valid." 
 
 " The remaining subject for consideration is the question of the geographical extent of the 
 territory granted by the Charter, and whether its boiindaries can in any and what manner be 
 ascertained. In the case of grants of considerable age, such as this Charter, when the words, as 
 is often the ca.se, are indetinitt! or an\l>iguous, the rule is that they are constnied by u.sage and 
 enjoyment, including in these latter terms the asHertion uf vivnersltip hy fhr Cornj)aay on im- 
 poiiaat public occasions, such as the Treaties of Ryswick avd Utrecht, and aijain in I7h0." 
 
 Now, what were the Hudson's Bay Company claiming as their teiritorial rights at the time 
 of the Treaty of Ryswick (1(197) and after the Treaty of Utrecht (1713), and also in 17')() ? 
 
 By the 7tii aud 8th Articles of the Treaty of Ryswick certain things were to be done — (1) the 
 Treaty was to he ratifieil, and (2) after the ratification Commissioners were to be a))p.)inted who 
 were " to examine and determine the rights and pretenticms which either of the said Kings had 
 to the places situate in Hudson's Bay." (Cut. Docts., [)p. 15 and l(i.) And although Commis- 
 sioners were ai)i>.)inteil, and although claims were at different times advanced by the Hudson's Bay 
 Company (as will presently be stated), nothing was done l)y the Commis.sioners to determine 
 such rights and j)retensions. 
 
 " After the Commi.ssiouers have doterminedtho-e differences and disputes, the Articles the said 
 Commissioners .shall agree to shall be ratified by l)oth Kings, and shall have the same force and 
 vigor as if they were inserted word for word in the jjresent Treaty." (IVeaty of Ryswick, Art. N, 
 Ciialmers' Treaties, Vol. 1„ j). :}.S5.) 
 
 The English and French Governments wei\t on negotiating, under the Treaty, until 1702, 
 when the war of succession broke oi.c and all negotiations were at an end. 
 
 It has been stated, and urged as a ground against the latter pretentions of the Hud.son's Bay 
 Co. that in July, 1700, they were willing to contract their limits. While willing to do this tor 
 the purpose of effecting a settlement, and only on condition of their not l)eing able to obtain "the 
 whole Straits and Bay which of right belongs to them." (Out. Docts., p. 123.) 
 
 Nothing was done under this, and tlie Hudson's Bay Co. were again addressed l»y the Lords 
 of Trade and Plantations in January, 1701, when they again insist on their rights to the whole 
 Bay and Straits, but are willing to foiego their rights to a certain extent if by that means they 
 can .secure a settlement. "But should the French refuse the limits now ])ro])ose<l by the Com)iany,the 
 Comi)any think themselves not bound by this, or any former concessions of the like nature, but 
 must, as they have always ilone, insist upon their prior and umloubted right to the whole 
 Bay and Straits of Hudson which the French never yet would strictly dispute, or suffer to be 
 examined into (as knowing the weakness of their claim), though the first step in the said Article 
 of Ryswick directs the doing of it." (Ont. Docts., pp. 121-.^.) 
 
 In May, 1709, the Comi)any were reijuested by the Lords of Trade and Plantation to .send 
 an account of the encroachments of the French on Her Majesty's Dominion in America within 
 the limits of the Company's Charter. To which the Company replied, .setting forth their right 
 and title, and praying restitution. (Mills, pp. 1.t2-.S.) 
 
 A further petition was .sent by the Hudson's Bay Company to the Queen in 1711. (Ont 
 Docts., pp. 126 7.) 
 
 Nothing was done by the Commissioners towards the determitiation of the ditterences aud 
 disputes up to the time, when Count ile Torey, on behalf of France, made a proposition, in Aj^ril, 
 
to 
 
 1711, with a view ot bringing about a general peace between England and France, and while 
 these negotiations were in progress, and on 7th Fei)ruaiy, 1712, the Hudson's Bay Co. set forth 
 what they desired should be sti[)ulated for them at the ensuing treaty of peace. (Ont. Docts., 
 pp. 128-}).) 
 
 For reasons thought very cogent, it is not supposed the ([uestiou of post iiminiy. will require 
 much, if any, consideration; but as no point should be overlooked which ought, or even might, be 
 considered in the case, the subject is therefore shortly considered. 
 
 Vattel, Book III., Cap. l^. Sec. 20, defines the right of pont llmiuiij. to lie "that in virtue of 
 which |)ersous and tilings taiien l)y the enemy are restoj-ed to tlieir former estate on coming again 
 into tlie power of the nation to which they belonged." 
 
 " The Sovereign is l)ounil to pri>tect the persons and pi-operty of liis subjects, and to defend 
 them against the enemy. Wlien, theiel'ore, a subject, or any part of his pro|>erty, has fallen into 
 the enemy's po.ssession, should any fortunate event l)ring them back again into the Sovereign's 
 power, it is undoubtedly liis duty to restore them to their former condition — ^to re-estal)lish the 
 persons in all their rights and obligations — to give l>ack the ettects to the owners — in a word, to 
 replace everything on the same footing (tn which it stood previous to the enemy's capture. (Ibid, 
 Sec. 205. 
 
 " Provinces, towns and lamls, which the enemy restores l)y the treaty of peace, aie certainly 
 entitled to the light of pod liminium ; for the Sovereign, in whatever manner he recovers them, 
 is bimiid to restore them to their former condition, as soon as he regains po.sse.ssioa of them. 
 (Ibid, Sec. 20;').) The enemy in giving Imck a town at tlie peace renounces the right he had 
 acquire 1 by arms. It is just the same as if he had never taken it ; and the transaction fuinishes 
 no reason which can justify the Sovereign in refusing to reinstite such town in the po.s.sessioii of 
 all her rights, and restore her to her former condition." (Ibid, Sec. 214.) 
 
 It is submitted, however, that, as between the Dominion and Province of Ontario, the 
 question whether the Hudson's Bay CJonqiauy were entitled to demand the right of /;<«/ llmiidiim 
 is of no couse«iuence whatever. 
 
 The late Chief Justice Draper, when acting as agent for the Province of Canada, delivered to 
 the House of Commons Cyommittee, on the 28tli of May, 18-57, a paper relative to the boundaries, 
 wherein it is stateil, 
 
 " The 8th article of the Treaty of Kyswick. .shows that the French at that time set up a 
 claim of right to Hudson's Bav, though that claim was abandoned at the peace of Utrecht, and 
 was never .set up afterwards." (» )nt. Doets., p. 2M).) 
 
 Lord Dartmouth's letter of the 27tli May, 1713 :0 it. 1) lets., p I2;l), iMiclosing the petition of 
 the Hudson's Bay (Jompany, shows what was the design in not accepting an "A.et of Cession" 
 from the French King ; and Her Majesty the Queen " insisted only upon an order from the 
 French Court for delivering possession ; Inj fiiis meaitu the fitl<t of the Oompany i» acknowlcibjed 
 and they will eoiiu; into the immediate enjoyment of theii' property, without further trouble." 
 
 The Sections of Treaty of Utreclit having any bisaring upon the (piestion are the lOtli and 
 15th, to be found in Ont. Docts., pp. 16 and 17. 
 
 Under Sec. 10 the King of France was " to restore to the Queen of Great Britain, to be pos- 
 sessed in full right forever, the Bay and Straits of Hudson, together with all lands, seas, 
 coasts, rivers, and places situate in the .said Bay and Strait.s, and which lieloHg thereunto ; no 
 tractn of hind or of sea heiny excepted tvhich are at present possesseil Ijy the sahjects of France." 
 ♦ »♦**#**" 'pi^j. same Cominissaries shall also have orders to describe and settle 
 in like manner the boundaries lietween the other British and French Colonies in tho.se parts." 
 
 In the wording of the lOtli Article a great deal of discussion arose as to whether the word 
 " restore " or the word " cede " should bt; used. Count de Torey, in January, 1713, .says : " The 
 Plenipotentiaries now make no ditlerence between places ' ceded ' and places ' restored.' " (Boling- 
 
n 
 
 broke's Oorrcsixmdence, Vol. Ill,, p. 001.) But in March, 1713, he says that the truth is so 
 evident that tlu' Plenipotentiaries of Great Britain at Ttreeht always niaki^ a distinction l)et\vecn 
 places that should he "c(!ded" and those that should he "restored." i^Bolinghroke's Corres- 
 pondence, Vol. Ill,, p. (i()5.) 
 
 Great Britain was contendinff that as France had dispossessetl liei- of Hudson's Bay Terri- 
 tories the French should " restore " them, while the French desired to use the word "cede," as if 
 the territories hail belonged to the French, and they were for the first time ceding them to Great 
 Britain. The word " restore " was u.sed, and it is important to examine the original text of the 
 Treaty, which is in Latin. The words u.sed in that Article, " .spectantihus ad eadem," show 
 clearly that France was to restore to England all the lands looking towards tlie Hud.son's Bay : in 
 other words, the whole water-shed of the waters running into the Hud.son's Bay. 
 
 The first part of the lOth Section does away with any exception, and left nothing foi' the 
 French to hold possession of in Hudson's Bay. 
 
 Mr. Mills, at p. lo'J of his Report, after quoting the portion of the 10th Section ahove referred 
 to, says: "The words of the Treaty just ([uoteil and the atteinlant circumstances show that 
 what was claimed by England and yielded by France was the Bay and the country upon its 
 margin. Nevertheless, the language of the Treaty did not viakc it ivii)omible for Eiujland, if 
 she loere so disposed, to insist upon the possest^iori of the whole coiuitry to the land's heiijht. 
 France, too, consented with reluctance to the use of tiie word ' restoration ' instead of ' cession.' " 
 
 The Treaty not only made it possible for England to insist uium the posse.ssion of the whole 
 country to the land's height, Init from the very moment Conmiissaries were a]»poiuted as jirovided 
 by the Treaty she alwa3s iusi.sted that she was entitled to the whole co\iniry, and it will be 
 apparent that France assented to this contention as being the correct interjiretation of the Treaty. 
 
 Although C(jmraissaries were appointed as provideil by the Treaty, and notwithstanding the 
 Commissaries failed to define the boundaries between the territorie.s of each of the Governments, 
 it was in some manner assumed that the boundary had been settled by the 49th jiarallel ; and 
 this was looked upon by the Americans and l)y the English themselves as being tlie southern 
 boundary of the Hudson's Bay Company's Territory. And we find that in the discussions which 
 took place in regard to the boundary line from the north-west angle of the Lake of the Woods to 
 the Rocky Mountains, the United States asserting on the one haml and Great Britain not denying 
 on the other that the i!)th parallel was the boundary between their respective countries, because 
 it was the southern boundary of the Hud.son's Bay. 
 
 •• B'roni the coast of Labradi^r to a certain point north of Lake Su])Ci'ior those limits were 
 fixed according to certain metes ami liounds, and from that point the line of demarcation was 
 agreed to extend indelinitel^due west ahmg the 4:!)th parallel of north latitude. It was in conformity 
 with that arrangement that the United States did claim that parallel as the northei-n boundary 
 of Louisiana." ((irenshaw's Oregon, 2nd ed., p. 4(i().) 
 
 Whether a boundary was ever agreed upon, or whether it was merely assumed that the 
 boundary above stated had been assented to, cannot now be of much importance, as in 1700 the 
 Manjuis de Vaudreuil did not pretend that the Canada of the French exteudetl in a north- 
 -westerly direction beyond the Red Lake. 
 
 On the 4th August, 1714, the Huilson's Bay Corajiany sent a memorandum to the Lords 
 Commissioners of Trade and Plantations, accompanied by a map in which they claimed that the 
 eastern boundary should be a line running from Cfrimiugton's Island through Lake Wiscosinke 
 or Mistas.sinnie, and from tlie said lake by a line run south-wistward into 4!) degrees north latitude, 
 as by tlie red line vuiy more particularly appear, and that that latitude be tlie limit ; that the 
 French do not come to the north of it nor the English to the south of it. (Ont. Docts., pp. 131-2.) 
 
 When, in 1719, Commissaries were appointed the in.structions given to Mr. Pultney and Col 
 Bladen, the British Commissaries, were explicit to claim to the 49th of north latitude where 
 
aiKithor lino was to begin and extend westward upon tlie iOtli of north latitude, over which said 
 lines the Freneli were to he |>roliil)ited from passing. (Unt. Docts., p. 'Mi'l.) 
 
 In order that there might ho no mistaking the full extent of the demand of the British 
 Government, and to show that undtsr the Treaty, England was claiming the whole territory 
 northward' to the height of land and westward to the Rocky Mountains, the English (.'ommis- 
 saries in 171!' sent to the French Comiuissaries a memoir on tluf sul)ject of the boundary, in which 
 they set forth thit "the French since the Treaty of Utrecht had made a settlement at the source 
 of the River Albany, the Commissaries of His Britannic Majesty insist that the French shall quit 
 the said settlement, and that the Fort, if there lie any such iiuilding, shall be given up to the 
 Company of English nusrchants trading in Hudson's Bay aforesaid. " 
 
 "The said tJommissaries further demand that the subjects of His Most Christian Majesty shall 
 not Imild forts ov foand settlements upon any of the rivers which empty into Iliulson's Bay 
 under any pretext wh<itsoevi'r, anil that the stream ami the entire nav'njation of the said rivers shall 
 he left free to tJi,e (jompany of English merchauUs trailing into Hudson's Bay and to such Indians 
 as wish to trattic with them." (Ont. Docts., p. o(J5.) 
 
 Sir Travers Twiss, says : — 
 
 " The oliject of the 10th Article of the Treaty of Utrecht was to secure to the Hudson's Bay 
 Company the restoration of the forts and other possessions of which they had been deprived at 
 various times by French expeditions from (Canada, and of which .some had been yielded to France 
 by the 7th Article of the Treaty of Ryswick. By this lattei' Trenty Louis XIV. liad at last recog- 
 nized William III. as King of Great Britain and Ireland; and William, in return, had consented 
 that the principle of at l possidetis ^\nmh\ be the basis of the negotiations between the two (.'rowns. 
 By the 10th Article, however, of the Ti'eaty of Utrecht, the French King agreed t(» restore to the 
 Queen (Anne) of Great Britain, " to be possessed in full right forever, the Bay and Straits of 
 Hudson, together with all lands, seas, sea coasts, rivets and places situate in the said Bay and 
 Straits, attd which belong thereto ; no tracts of land or sea being excepted which are at 
 present |)0»f*eHsed by the subjects of Franco.' The otdy (juestion, therefore, for Commissaries to 
 settle wore the limits of the Bay and Straits of Hudson, coanlwardn, on the side of the French 
 Province of Canada, as all the country drained by streams onteinng into the Bay and Straits of 
 Huilsou were, hy the terms oi the Treaty, recognized to lie part of the possessions of Great 
 Britain." 
 
 "If the coast boundary, therefore, was once understood by the parties, the head waters of the 
 streams that em[)ty themselves into the Bay and Straits of Hudson indicate the line which at 
 once .satisHed the other conditions of the treaty. Such a line, if connnenced at the eastern ex- 
 tremitv of the Straits of Huils(jn, would havo swept along through the sources of the streams 
 flowin"' into the Lake Mistassinuie and Alibitibis, tlie Rainy Lake, in 4S' :?()', wiiich empties itself 
 by the Rainy River into the Lake of the Woods, the Red Lake, and Lake Travers. '' 
 
 " This last lake would have been the extreme southern limit in about lo" 40', whence the line 
 would have wound upward to th(> n irth-west, pursuing a serpentine course, and resting with its 
 extremity upon the Rocky Mountains, in about the 4(Sth parallel of latitude. Such would have 
 been the boundary line between the French possessions and the Hudson's Bay district ; and so we 
 find that in the limits of Canada, assigned by the Marquis de Vaudreuil himself, when he sur- 
 rerdered the Province to Sii J. Amherst, the Red Lake is the apex of the Province of Canada, or 
 the point f)f departure fronr which, on the one side, the line is drawn to Lake; Suiierior ; on the 
 other, ' follows a serpentine course southward to the River Oubache, or Wabash, and along it to the 
 junction with the Ohio.' This fact was insisted upon liy the Briti.sh Governmont in their answer 
 to the ultimatum of France, sent in tm the 1st of. September, 17C1, and the map which was pre- 
 sented on that ()ccasi(jn by Mr. Stanley, the British Minister, embodying those limits, was assented 
 to in the French memorial of the 0th of September." (Historical Memorial of the Negotiations of 
 
1H 
 
 \il 
 
 ¥vM\co and E)ij,'lan(l from Marcli 2(Jth to Sei>t. :i(»th, 1701. I'liblislied at Paris l»y autliority). 
 (Twi.ss' Oreyan l>oiiii(laiy, \)]>. 2()!l-211). 
 
 "By the Treaty of (Ttrecht, tl\e British possessions to the north-west of Canada were acknowl- 
 odye<l to extend to the head-waters of tlie rivers eniptyinj,' t'lieiuselves into the Bay of Hudson ; 
 l)y the Treaty of I'aris they were united to the Britisli |)ossessions on tlie Atlantic hy the eession 
 of Canada and all her dependeneies ; and Kranee contraeted iier dominions within the rij,dit liank 
 of the Mississippi. That France did not retain any territory after the Treaty to the north-west 
 of the .sources of the Mississippi will he obvious, when it is kej>t in mind that the sources 'of the 
 Mississipjii are in +7" I^.i', whilst the sourei^s of the Ked River which Hows throiij^h Lake Winiiipei;, 
 and ultiuiately finds its way hy the Nelson River into thj Bay <»f Hudson, are in Ijiike Travers, 
 in ahout 45° 40'." (Twiss' Oref,'on, ]> iH).) 
 
 It has not been thouj^ht necessary to refer to the numerous maps described in the Ontario 
 Document-*, as, uni.-ss a map has lu'cn made use of in connection with a treaty, or a iiouiidary has 
 been define<l thereon, but little reliance can l>e placed u|)on it. Sir Travis Twiss says : "The 
 claim, however, to the westwardly exttwision of New France to the Pacific Ocean re(juires some 
 better evidence than the maps of Fiencli ifoogiapheis. A map can furnish no proof of territorial 
 title : it may illustrate a claim, l)ut it cannot prove it. The proof must l>e derived from facts 
 which the law of nations recoifni/es as founding' a title to territory. Maps, as .such, that is, when 
 they have not had a special character attached to them by treaties, merely reprt^sent the opiuioas 
 of the (jenyraphcrs who have constructed them, which o|)inions are frequently foumled on fictitious 
 or erroneous stateir.ents : c. //., the map of the discoveries of North America liy Ph. Buache and 
 J. N. De'Lisle in 17.">(), in which poi'tions of the west coast of America weri' d<'lineated in accor<l- 
 ance with J)e Fonte's story, and the maps of North-west America at the end of the seventeenth 
 and beginning of the eighteenth centmies, which represent California as lately a.scertaiiied to 
 be an island. (Twiss' Ore^^on, pp. :\{)'}-i].) 
 
 When ncM' Commissaries were aiipointe(l in 17.')(', tiie Loi'dsof Trade and Plantations re(piested 
 the Hudson's Bay (Company to furnish a memoi'andum showing the limits claimed, wliicii was 
 done on the 3rd of October in that vear, and is substantially as claimed by them in 17l!>. (Mills, 
 pp. 170-7.) 
 
 It were well to consider what territory was comprised within the limits of Louisiana, as this 
 will prove a help to arriving at a [)ro[)er conclusion as to what Kngland claimed as being com- 
 prised in "Canada,' or "New Fiance.* 
 
 According to extracts ^Ont. Docts., pp. 41 i) copieil from the Charter of Louis XIV. to Mr 
 Crozat, Sept., 171*2, it will l)e seen that Louisiana " was the country watered by the Mississippi 
 and its tributary streams from tlie .sea-siiore to the Illinois," i e., the Illinois River was the 
 northern boumlary of Louisiana according to this "authoritative document of the French Crown.' 
 By the same public document all the rest of the French pos.sessions were united under the 
 Government of New France. (Twiss' Oregon, pp. 2l!)-22().) 
 
 In the course of the negotiations respecting the limits of the Provinces of (,'anada and 
 Loui.siaua the Marquis de Vaudreuil, who signed the .surrender, published his own account of what 
 passed between Sir J. Amherst and himself, of which he ct)nsidered the Engliah account to he 
 incorrect. " On the officer .showing me a map which he hail in his hand 1 tqld him the limits 
 were not ju.st, and verbally mentioned others extending Louisiana on one side to the carrying- 
 place of the Miamis, which. Is the height of the l<iii<ls whose rivers run into the (Eaabdche ; and 
 on the other to the liead of tlie river of the lUinois." (Annual Registtsr, 17(51, p. 2(J8.) Even thus, 
 then, all to the north of the Illinois was admitted to be (Janada." (Twiss' Oregon, pp. 220-221.) 
 
 What took place at the various ( Conferences respecting the limits of Canada has been pro 
 cured from the records of the Foreign (Jftice. 
 
 On the 18th August, 1701, M. de Bus.sy, the French Minister at London, furni.shed to Mr. 
 
u 
 
 Pitt a iiirini)raii<luia U|i<iii tlie liiiiitM of LuuiHiana, whicii Iton- upon tlio liiitits ot'Cauada, and ran 
 thuH: 
 
 " SiU' lefl lii^'teH (i« la Louiniiine. Pour flxor Ion liniiteH do in I.nuiHiano dii cotd den oolonieH An^loiHOR 
 et (111 Caiiitdn, mi tin-ni ui'h fiij^iic (|ui H'ctondni d('|>niH IJio I'tToido ciitre In Hayf do In Moliilo »'t cidlo do 
 PeriHacolii, on paHHaiit |)ar lo Fort 'roiiloiiHO clioz Ics AliiiuihouN, ot i|ui, ho proloii^'OHut jiar la point ocoi- 
 doutalo (III Lac Kri»f onf'oriuora la lUvicro dtH iMiamis, ot par I'extroniit^ orientalo du Lao Huron, iraalioutir 
 & la haiitotir doH TorroH du coto <le la Hayo d' liiidHon vorH lo i^ic do I'AliitibiR, d' oil la Ligno sora con- 
 tinuiio ilo r Kst ;i 1' OiioHt jiiHiimm ot coinj)riH lo Lac Siipoiioiir." (ruli. Moo . OH". Vol 4H3. ) 
 
 Instructions, howovcr, acroinpaniod l)y an ultiinatuin, were transniittoil umlor date of the 
 27th Auj^nst, 17*) I, tu Mr. Stanloy, in wliicli it was laid down that those limits could not be 
 acceded to; and Mr. Pitt, in Hlhiding to the conduct of France, stated that anion<( the reasons 
 whereby Britisli contidencc had lieen shaken was " the elaiinin^', as Louisiana, with an etfrontery 
 unpanUleled, vast rei^qoiis whieli tlie .VIan|uis de Vaudreuil had surrendered to (Jeiieral Amherst as 
 Canada, and detiiied himself, with his own hand, as comprehended in th(! ;,'overmiient of that 
 Province where he commanded," and Mr. Pitt yave the followinj,' deHnition of the lioundaries of 
 Canada, as set forth by M. <ie Vaudreuil : — 
 
 " Lo (Janada. selon la liigno do kos liniilcs tracoc par lo Jbircpiis do Vaiidronil liiinieino. (jiiaiid co 
 (louvornoiir-( Jeiicral a roiidii, par capitulation, la dito Province an (ieneial ritaiinicpni U; (Mii^vulic^r 
 Aniliornt, coiiiprtMid, d'lin cote, los Lacs Huron, .Nricliiyan et Siipfrioiir, ot la ilitc l,ij;iio, tiioe dojniiH Lac 
 Rouge oniln'asso par iin coiirs tortnou.x, la RiviL-ro Onabacho ( al)ash) jUMpi' .\ s i jdiiction avec !'( )iiio, et do 
 Ih so pro|()n<,'e lo lon<{ do cotto dorniero Kivici'o iiuOnsiveinont, jusipies h son contiiiont iluns la .M is -issippi; " 
 aud on this elolinitiou of clio liniiis of C.oiada its oossioii was I'laimod -a copy of .M. d(^ Vaiiilrt'iiirs map 
 b.iin<'seat to Mr. Stanli-y for reference, togothor witli an extract of a letter from (leiieial Anilierst, ilated 
 4tli October, 1700, t>eariiij,' upon that subjtict. (Pub. Roc, (^H'. Vol. 483.) 
 
 Annexed will be fomnl a copy of that maj) of M. de Vaudri-uil to which Mr. I*itt I'eferreil, 
 whicli lias been iiunle from the original enclosed by (Jeneral Amherst in his despatch ni' Hh Oct., 
 1760, from which document also the following extracts have been taken : — 
 
 "The Government of Canada includes Lakes Huron, Michigan and Superior, as you will see 
 by the enclosed sketch, the red line being marked liy the Manjuis de Vaudreuil." 
 
 "The Cloveriuneut of Quebec begins with Troudines on the noi'th- west and de Chailloii on 
 the south-east, and* takes in all the parishes from them down the River St. Lawrence." (Pub 
 Rec, Otf. Vo\. !)k Ama and \V. Indies.) 
 
 It is further reeorde 1 on the I'nd September, I7<il,tlie Mar(piis d(! V'aii InMiil's maj> was 
 shown to the Due de Choiseul by Mr. Stanley, and that the bounds of ( !anada were agreed upon 
 as therein stated. This fact is further substantiated by a passage in Mr. Stanley's despatch of 
 the -ith of tliat month, which runs as follows : — 
 
 " The Due de CJhoiseul complained that the bounds of Canada were laid down very un- 
 favorably to France, in the description which your memorial contains, alledging (sic) that there 
 had beeu dis[)utes between the Manpiis de Vaudreuil and the (iovernor of Louisiana with regard 
 to the limits of their two Provinces, wherein the former, being the more able and the more active, 
 had greatly enlarged his juri.sdiction ; he added, however, that though many such objections 
 might be mad(!, it had lieen the intention of the King, his master, to make the most full and 
 conipleat cession of (Janala, and that he consented in his name to those limits. I then jiroduced 
 the map you sent me, and it was agreed that this Province should remain to Great Britain 
 as it is there delineated." (Minutes of a Conference at Paris, Sept. 2nd, 17<iL Pub. Rec, Off. 
 Vol. 483, France.) 
 
 The last Memoire of France to England in these negotiations is dated 9th Sept., 17(il, and 
 was delivered by M. de Buasy to Mr. Pitt on the 1-ith. 
 
Iff 
 
 Thi' first artidt' fully confiniiM tlio accoptniK f Fraiict' of the tic VaiidnMiil inap, *an(l statt'H hh 
 
 follows; — 
 
 " Lo Itoi. a (lit iIudh hoii |iiiuiiinr memoir il<> |iro|>(>HittnnR nt iliiim Non ultttnatum, <|ii'il ct^liM-iiit nt 
 giiriintiroit h I' A nglntPi-n* In poHHCHHion ilii ('aniulu iIhiir In forino la pliiH otcmliio : Sa MajeRtc |MirHinti) <Ihiin 
 ct'tto ollVd ; «'t saiiH (liHcuUcr Hiir la iij;ii(i ilt'H limitt'H. tnnH' iIuiih uiui ciirlo proHi'iitcr |iiir M. Stniilfy, oommti 
 ci'ttc ligiiti iiiMiiiiiiil<-(j piir I'Aiif^lctiTrt', cut shiim iliniti- In lortiin In pluH cttMiiluo (jiic I'ltii piiiMHP iloiuit'i' h In 
 oeiRion le Koi votit bion I'nccoriler." (Muiiioirt) lfiHtoi"i(|Uo siir In Nogotintioti li' in Kiaiico et do 
 ,^_ rAngleterre, 17(il, p. 52. F. (). Lili. 4to, No. I.'M.) 
 
 TliiMi caini' till' Ticaty of Paris, concliKli'l oil lOtli Kclniiary. l7<iS, l>y wliicli tin- i'aiuula of 
 the Frciifli \va.s (H'iIimI to (iicat liiitjiiii. 
 
 By th(i 7tli section of thi.s Treaty, " It i.s ai^rcfil that for tho fiitiiro thi> contliifs hotwtu'H the 
 DoiniiiiotiM of His liritaiuiic Maji'sty and those of Mis Most Christian Miijesty in that part of the 
 world shall he fixed irrevoeahly I'V a line drawn aloiii,' the middle of the lliver Mississippi from 
 its souree to the river Iherville, aiul from theiico l>y a line drawn aloni^' the middle of this river 
 and the lakes Mauropas and Pontchartrain to tho sea." fOnt. Doc., pp. IH-I!).) 
 
 As the Honrce of the River Mississijipi was lied Lake, amlas it was from that point that ih*- 
 Marcpiis de Vaudreiiil directccl the red line to lie drawn, there can he no dilfieidly in coming to 
 conclusion as to what was included within the hounds of the " l"ana<la" of the French. 
 
 Now, the j)rochimation of the Kin^' on 7th OcXoiiir, 17<ili, created four separate (Governments 
 viz.: Quehec, Jtast Floritla, West Florida and (Jrenada. 
 
 Al! th" lands not within the limits of the fivA (Joverunients, and not wltiiin ilie limits of vlic 
 territory j^ranted to the llud.sons Bay, were tor the present reserved for the prtiteetion and 
 dominion of the Indians (Unt. J)octs., p. 'H\.) 
 
 Qy 
 
 X: ACT, 1774. 
 
 When the (.^uehoe Act of 1771- was introduced it was desiLjned to extend the hounds ot the 
 Province of Quehec tar lieyond those cieateil hy the Proclamation of the Kin^', issued in Octoher 
 17().S. By tho Act, as orit,nually introduced, it was evidently intended to inchule in the Province 
 of C^uehec " all the territories, islands and countries heretoloru a part of tho territory of Cmtnthi 
 in Norfk A)n.cric(i c.rtrixli n</ smiflnvard fi> tin- hit dI'h of tlu: MiH^lsK} itji'i and northward to thy 
 .southern boundaiy of tlie territory grantt.'d to the Merchant Ailventiirers of Knj,dand tradini' to 
 Hudson's Bay, ami which said territories, islands and countries ait; not within the limits of the 
 other British ('Olonies as allowed and contirined Ity the ( 'rowu, or which have since the jdth 
 Fehruary, I7(»."}, heen made a part and parcel of the Province of Newfoundland." (Mills, pp. 77 JS.) 
 
 Now, in the Act as passed the words " kcrcfofore <i part of tlw lcrnli>rij of Cdiuiilti" art! 
 left out, anil the Act included " all tho territories, i.slands ami countries in North America helontf- 
 iuL,' ti tluMJrown iif Great Britain," hstween certain deKned limits alony the western iKiundary 
 of the then Province of Peun.sylvania until it strike the River Ohio; and alonjf the hank of the 
 said river westward to the lianksof tlu; Mississippi, and northward to the southern houndarv of the 
 territory granted to the Merchants Adventurers of Kngland trading in Hudson's Bay ; and all the 
 territories, islands and countries which have since the 10th February, 17<):{, l)een nun le part of the 
 Government of Newfoun<lIand, by, and they are hereby, during Her Majesty's j)leasure, annexed 
 to and made part and parcel of the Provincts of Quehec, as created ami established by the said 
 Royal Proclamation of 7th day of October, 1708. (Out. Docts., j). S.) 
 
 * Vc-t on the 30tli Nov., Wfcks after the cessation of these neijoliations, .\I. de Vaiidreuil addressed a letter to the Due dc 
 Clioiseul, wliich was [i-.iblished, as stated in the Annual Rejjister of 1761, " to (|uiet the minds of the iieopie," and in which the 
 Marquis stated that what lie was charge<l with hy the English as rejjards the limits of Canada was entirely false and groundless 
 and that nothing |)assed in writing on tliat head, nor was any line drawn on any map. An Keg., 1761, pp. 267-8. (Sec M 
 de Vaudreiiil's letter, Ont. Ducts., p. 159.) 
 
1(> 
 
 On n-'tding tliis description it will be seen that the east bank of the Mississippi could not 
 have l)cen intended as the western limit. ' 
 
 Whenever the bank of a river or lake is cioated a boundary', the Act expressly stat(!S such to 
 be the case, as " the eastern iiank of the River Connecticut," ' the eastern bank of the lliver St. 
 Lawrence," "thence along tiie eastern ani'. south-eastern bank of Lake Erie," anil "along the bank 
 of the said river (Ohio) until it .strikes the Mississippi." Now, when the River Mi.ssi.ssippi is 
 reached the description does /lo^proceeil "along the bank of said river," as in the other descriptions, 
 but describes the remaining limit as "northward to the southern boundary of the territory 
 granted U) the Merchant Adventurers of England." 
 
 It is said that the word " northward" in the Act cannot mean "north," ami that, therefore 
 a line diawn north from tlie junction of the Ohio and Mississippi rivers to the southern iMtundary 
 of the Hudson's Bay ('ompan^'s lands would not conform to the descrii)tion in the Act. 
 
 The meaning of the expression " northward," as used in this Act, received judicial interpri'ta- 
 tion in the year bSilS, on the occasion of the trial of Charles de Reinhard for murder counnitted 
 at the Dalles; and also during the trial of Archibald McLennan, in the same year, for a like 
 offence. 
 
 The Judges of the Court of Queens Bench, in Lower Canada, in giving judgment in th(!se 
 cases (Out. Docts., pp. :2i(i-7-(S) were clearly of opinion that the western limit of Cpper Canada 
 was a line drawn du(! north from the junction of the Ohio and Mississippi rivers. 
 
 In the Treaty between (Ireat Britain and the United States, in 184(J, the term " westward " 
 was used, an<l it was interpreted to mean "due west." (U. S. Treaties ami ('onveiitions, p. .S7")). 
 
 Because the Commission which issued to Sir Guy Carleton in 1771' extended the boundary 
 of the Province "along the eastern bank of the Mississii)pi river to the southern lioundary of the 
 territory granted to the Hud.son's Bay Ci)ni])any," it is as.serted that the Commissiim should 
 govern. 
 
 The fact of a Connnission having been issued, with this extension not authorized, cannot be 
 made to extend tlie boundaries created by the Act. These Commissions, being mere instructions 
 to the tJovernor Cieneral, can have no effect in altering territorial boundaries. 
 
 The Commission to (Jovornor Andros, of Connecticut, gave him authority to the South Sea. 
 
 Lord Elgin's (!onnnission as Governor-Oeneral, issued in LSK), aiijiarently gave him jurisdic- 
 tion to tlie .shore of Huiison's Bay; but it never was claimed or pretended that the Commission, 
 extended the boundaries of Canada to the shore of that Bay. (Km- ( 'ommi.ssion, rit/e Out. Docts. 
 pp. :A-rrl). 
 
 1791 
 
 THE CONSTITCTIONAL ACT. 
 
 What is kmiwn as tlie ( 'oiistitutinnal Act of I7!H ;.'{! Ceo. 111., ca]). 'M was |)assi'd to repeal 
 certain p irts of an Act passed in the fourteenth year of Hi.-- Majesiy's reign, entitleil "An Act 
 for making more elfectual provision foi' the government of the Brovinc<; of QueViec, in N'firth 
 America,' and to make further provision for the goveriiiiient of the said Province. 
 
 " Whereas, an Act was pastel in the fi)urteenth year of the reign of his present Majesty, 
 entitled 'An Act i'or making more ettecttial |irovision for the government of the l*ro\ince of 
 Quebec, in Noith America;' and whereas the said Act is in numy respects inapplicable to the 
 present condition ami circumstances of the said Province; and whereas it is expedient and neces- 
 sary that further provision shoidil now be mcde for the good government and prosperity thereof: 
 may it thenfore please you\' most excellent Majesty that it may be enacted; and be it enacted by 
 the King's most excellent Maj(!sty, by an<l with the advice and con.sent of the Lords Spiiitual and 
 Temporal, and Coujmons, in this present Parliament assemliled, and l)y the authority of the .same, 
 that .so nnich of the said Act as in any maimer relates to the appointment of a Council for the 
 affairs of the said Province of Quebec, or to the power given by the .said Act to tlu; .said Council, 
 
17 
 
 or to the major part of them, to make ordinances for the peace, welfare, and good government of 
 tlie said Province, with the consent of His Majesty's Governor, Lieutenant-Governor, oi' Com- 
 mander-iu-chief for tlie time being, sliall bo and tiie same is lu'reby re[»ealed. 
 
 " And wliereas His Majesty has been pleased to signify, l>y his message to both Houses of 
 Parliament, liis royal intention to divide his Province of Quebec into two separate Provinces, to 
 be called the Province of Upj)er Canada and the Province of Lower Canada, &c." (Ont. Docts.i 
 p. 4.) 
 
 The Proclamation of November, 17!)1 (Ont. Docts. p. 27), declares that l>y an Order-in- 
 Council of August it was ordered that the Province of Quebec shouhl be divided into two distinct 
 Provinces. But it is argued tliat tliis Proclamation annexed to Uppei- Canada territories not 
 included in the Province of Quebec. This argument is based upon thi' use of the woni "Canada" 
 at the end of the tirst paragra])h of the Pi'oclamation. 
 
 It is stated the 14th Geo. 111. " is in many respects inap))lioable to the present cimdition and 
 circumstances of the said Province." To what Province is it ina])plieable ( Wby, to the 
 Province of Quebec. The Act .says the intention of the King was "to liivldc lux Procliu'e of 
 Quebec into two separate Provinces." 
 
 His Majesty, on the 24tli day of August, 17!'l, "was pleased l>y and with the advice and 
 consent of his Privy Council to order that the Province of Quebec be divided into two distinct 
 Provinces, to lie called the Pi-ovinee of Upper Cana<la and the Province of Lower Catiada, by 
 separating the said two Provinces according to the line of division insertc<| in the said order." 
 ((Jut. Docts., p. :38!).j 
 
 The Act of Parliament was that alone upon which the Order-in-('()iincil could lie based <n- the 
 Proclamation issued; and it isi^uite evident that neither the Order-in-Counei) noi the proclama- 
 tion intended to do more than the Act made jirovision for, /. e., to divide the Province of Queiiec. 
 
 The construction jiut upon this Act i)y the Court of Queen's Bench in Lower Canada, in De 
 Reinhard's case and in M. Leniian's case (Ont. Docts., pp. 22() 7-'Sj, was that " Upper Caiuula could 
 include only that part of the Province so divided as was not contained in Lower Canada, l)ut it 
 could not extend beyond tho.se limits which constituted the Province of Quebec." 
 
 In the Conuni.ssion i.ssut'd to Lord Dorcliester, September 12, I7!)l,as < 'aptain-tJenerai and 
 General-in-Chiet of the Province of LTpper Canada and Lower t'anada (wherein the Or<ler-in 
 Council of tilth August, 17!)1, is recited), it states the intention to divide the Province of Quebec 
 into two separate Provinces, " tht; Province of Upper ( 'anada to comprehend all said lands, ttirri- 
 tories and islands lying westwaid of the .said line of division as were part of our said Province of 
 Quebec." (Ont. Docts., j). 48.) 
 
 The Commission i.ssued in 171I4 to Henry ('aldwell, E.scpiire, Receiver-General of the Province 
 of Lower Canada, contains a bowndarv description of Upper (Janada similar to that in the Com- 
 missioi; of Lord Dorchester. (Ont. Docts., pp. ;iS!l -:J!)().j 
 
 The ten Commissions issueil to tht; (iovernors-General of tiit; Provinces of Ui)[)er and Lower 
 Canada between December, 171K5, and Lst July, 1<S,"J."), contain boundary-line descriptions similai- 
 to that of Lord Dotchester in September, 17!)L 
 
 On Kith December, LS.'J.S, a Commi.ssitm was issued to Sir John Colborne as U(jvernor-iu- 
 Chief of the Province of Upper Canada, in which, after descril)ing the otlier boundaries of the 
 Pi'ovince, it proceeds : " On the west by the Channel of Detroit, Lake St. Clair, up the River St. 
 Clair, Lake Huron, the west slujie of Drummond Island, that of St. Jo.seph and Sugar Island, 
 thence into Lake Superior." (Out. Docts., p. .'$!)().) 
 
 The Conniiission to the Right Hon. Sir Charles Paulett Thomp.son, date<i Gth September 
 L*S8'J, contains boundary discriptions similar to al)ove. (Ibid, p. JflH).) 
 
 2'Jth august, 1840. 
 
 The Act of Union (Impl. Act S, 4 Vic, cap. 35j wa.s pa.ssfid to make " provision for the good 
 
IS 
 
 government of the Province of Upper Canada and Lower Canada, * » » * which, after the 
 passing of this Act, shall form and be one Province under the name of the Province (jf Canada.'' 
 (Ont. Docts., p. 10.) 
 
 After the i)assing ot the Union Act, an<l on 2!)th August, 1840, a Commission was issued to 
 Lord Sydenham as Governor-in-Chief of the Province of Canadti. The Commission gives the 
 western boundary oi the united Provinces, as in the Commission to Sir John Colborne, (Ont. 
 Docts., p. 51.) 
 
 The Commission to Lord Metcalf in Kel)ruary, lHi:\, and tliat to Earl < 'athcart in March, 
 184-0, and the one issued to Lord Klgin on 1st (October, 1840, contain l)ouiidary-line descrij)tions 
 of Upper Canada similar to that issued to Lord Sy<lenliam in 1840. 
 
 it will be .seen that, l)etween l)ecem])er, 18:}8, when Sir John Colborne was appointed 
 Governor-Ceneral, until 18.32 or 18."),S, when Loid Elgin's term as representative of Her Majesty 
 expired, the British Government understood and treated the western boundary ot Ujjper C'anada 
 as being on the shore of Lake Superior ; and it is fair to infer that the Imperial authorities were 
 not ignoi'ant that a line drawn north from the junction of the Ohio and Mississipj)! wouhi strike 
 the shore of Lake Sujjerior, and they no doubt intended that where the line so struck .should be 
 the limit of the jurisdiction of the Governors-General, and consequently the westerly limit of the 
 Province of Upper Canada. 
 
 Then, in ordei' to reacii otlenders for crimes committed in the Indian territory (reserved for 
 the Indians by the Proclamation of October, 17(i'ij, the Act of 43 Geo. lll.,caj). loS (11th Augu.st, 
 1803), was passed. (Out. Docts., pp. 4-5.) 
 
 As doubts existed as to whether the provi.sions of 43 Geo. III., cap. 138, extended to the 
 Hudson's Bay Territory, the Acts 1 and 2 Geo. IV., cap. 0(i (2iid Jidy, 1821;, was passed, incUiding 
 the Hudsoji's Bay Company's Uduls and territor'tes keretofDre granted to the Hudson's Bay V'ww- 
 pany, and under the fourteenth section oi that Act the rights and }»rivileges of the Hudson's Bay 
 Company are to remain in full force, virtue and eti'ect. (Ont. Docts., pp. (i-7-lO.J 
 
 So that in all these Acts tiiey were making provision for the government, or at least for the 
 judicial control of large territories claimed as belonging to the crown of ( Jreat Britain, and which 
 were not included in the Prcnince of Ui)per Canada. 
 
 The sixth clause of the British Morth American Act, 1807 (Imperial Act, 30th Vie., ca[). 3), is 
 as follows : 
 
 •' The parts of th: Province of ' anada (as it exists at the pa.ssing of this Act) which 
 formerly constituted respectively the Provinces of L'i)per Canaila and Lower Canada shall l)e 
 deemed to be severed, and shall foini two se])arate Provinces. The part which formerly con.sti- 
 tuted the Province of Upper Canada shall C(justitute the Province of thitario ; and the part which 
 formerly constituted the Pruvince of Lower Canada .shall constitute the Province of Queliee.' 
 (Ont. Docts., p. 11.) 
 
 And tht; 140th Section nf the .same Act under which Rupert's Land and the North-western 
 territory could be admitted into the Union is as follows : — 
 
 " It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honoraljle 
 Privy Council, on addresses from the Houses nf Parliament of Cana<la and from the Houses of 
 the respective Legislatures of the Colcmies or Provinces of Newfoundian<l, Prince Edward Island 
 and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and 
 on address from the Houses of the Parliament of Canada, to admit Rupeit's Land and the N(uth- 
 western Territory, or eitiier of them, into the Union on such terms and conditions, in each case, 
 as are in the addresses e.Kj)res-ed, and as the Queen thinks tit to approve, subject to the pro- 
 visions of this Act ; and the provisions of any Order-in-Council in that behalf shall have effect 
 as if they had been enacteil by the Parliament of the United Kingdcmi of Great Britain and 
 Ireland." (Out. Docts. p. 404.) 
 
19 
 
 On the 17tli Deceinbur, l<M7<i, the Senate and CJoinmons of the Dominion of Canada adopte<l 
 an ad(h'ess to the Queen, praying Her Majesty to unite llujiert's Land and the North- weHtcrn 
 Tt^rritory witli this Dominion, and to grant to the Parliament of Canada authority to legislate for 
 their future welfare and good government. (Ordeis-in-Couucil, Dom. Stats., 1S7-, j). Ixvi.) 
 
 In compliance with the terms of the above address the Rupert's Land Act, l(S(i8 (Lnperial 
 Act, :U and 32 Vic, cap. lOo), was passed, and under the second seetiim of that Act the term 
 " Ru|)ert's Land" should include the whole of the lands and territories Iwhl, or dainytl fo he held, 
 by the said (jovernoi' and Company. 
 
 On the 19th November, iSlil), the Hudson s Bay Company executed a deed of surrender to 
 Her Majesty of Rupert's Land, which included the whole of the lands and territories held, or 
 claimeil to be held, by the Com|iany, excepting the lands meiitione<l in the second and tiftli para- 
 graphs. Under the secon.l paragraph the Company might within twelve months select a block of 
 land adjoining each of their station.-.. The schedule of the lands .selected is attache<l to the sur- 
 render, and include . about 40,000 acres of land. 
 
 Under paragraph No. ') "the Company may witiiin tiftv years after the surrender claim in 
 any towi\.slii]) or district within the Fertile Belt, in which laud is set out foi' .settlement, grants of 
 land not exceeding one-twentieth part of the land so set out. " 
 
 ((>.) " For the purpose of the present agreement the Fertile Belt is to be bounded as follows: 
 On the .south by the United States boundary; on the west by the Rocky Mountains ; on the 
 north by the northern branch of the Saskatchewan ; on the east by Lake Winnipeg, the Lake of 
 the Woods, and the wateis connecting them." (Orders in Council, Stats, of Can., 1872, |). Ixxix.) 
 
 Such surrender was accepted by Her Majesty by an instrument under her sign juanuel, and 
 signed on 22nd day of June, L"s70. 
 
 On the 2.'hd June, 1N70, Her Majesty, l)y an Orderin-Couneil, ordered that, ni'Un- the L")th 
 July, the .said North-western Territory in Rupert's Land should be admitted and become |)art of 
 the Dominion of Canada, on the Dominion paying to the ('omi)any £300,000, when Rujtert's 
 Land should l)e transfeired to tiie Dominion of Canada, which transfer has been niaile and the 
 consideration UKmey paid. (Out. Docts., pp. 40.')-(i-7-8j. 
 
 On the very threshold of Confederation Ontario knew the terms upon which Rupert's Land 
 and the North-western Territory might be admitted into the Union; and duiing the negotiations 
 that were peniling between the Lnperial authorities and the Dominion respecting the surrendei' 
 by the Huds(m's Bay Co. ot their lanils and territories, rights atid privileges, the Ontario (Jovern- 
 ment never interfered or claimed that what was ai)out l)eing surrendered to Her Majc^sty for the 
 ])urpose of admission into the Dominion had at any time formed a |)art of the Province of Upper 
 Canada — although, Ontario nuist be as>sunu'd to have known that the Hudson's Bay Company 
 wa.s, in LSr)7, claiming under its Chai'ter that the southern i)oun<lary of the ("ompany's territory 
 was the height of land dividing the waters which How into the Hudson's Bay from those 
 emptying into the St. Lawrence and the Great Lakes, and that the western boundary was the 
 base of the Rocky Mountains. 
 
 In thus lying by while the DomiTdon was purchasing this territory, and without forbidding 
 the purchase or claiming any interest whatever in the I'ights and jn'ivileges about being ac(|uired 
 that Province is now esto))ped from setting up that its western boumlary extends lieyond the 
 meridian passing through the point of junction of the Ohio and Mississippi rivers north of the 
 United States and south of the Hudson's Bay Territories. All the remaining territory was "h(dd, 
 or claimed to be held, by the Governor and Company," and was, as such, paid for by the Dominion. 
 (Greuo v. Wells, 10 A. and E., 90.) 
 
 The acceptance by the lmj)erial Government of a surrender of wliat the Hud.son's Bay Com- 
 pany ciai Jed as territory belonging to them was an admission that no portion of these teiritories 
 
20 
 
 were over included in tlic I'lovince of TTp^iei' ('ana<l<i. The British Ciovornnient l)oin<^ Ixmiid l>y 
 tliis admission, surely Ontario in\ist he. 
 
 In 1871 a Comtnissioner was appointed by each of the Governments of the Dominion and 
 Province of Ontario for tlie scittlcnient of tlie nortlierly and westerly boundaries of the Province- 
 
 The insti'uctioiis Ljiveii to the (Aiminissioners on behalf of tlie Dominion wei'e tliat — 
 
 1. Tile boundary in (luestion is clearly identical witli the limits of the Province of Quebec, 
 accordinjf to the 1 l-tli Oeo. III., ch. H',], known as the " Quebec Act," and is described in tlu' said 
 Act as follows, tliat is to say : Havinj^ set forth the westerly position of the southern boundary of 
 the Province as extendiiie; aloiii; tlie River Ohio "wcfthuurd to the hankx of the Misulsfiippi" the 
 description continues from tlience 0- ''•. the junction of the two rivers) "a»t/ northxHird to the 
 soathrrn lioitndarij of th.e tfn-itorj/ (jmnted, to the Mirchdiit Adventurers of J'Jujlaiid trad'iuy to 
 the Hudson's Buy." 
 
 Havinj^' determined the precise longitude, west of Greenwich, of the extreme point of land 
 makine; the junction of the north and cast banks respectively of the said river, you will proceed 
 to ascertain and define the correspondiiij;' point of loii;L;itude or intersecti(jn of the meridian passing 
 throvigh the said junction witli the international boundary between Canada and the United 
 States. 
 
 Looking, however, to the tracing enclosed, niaiked A., intending to illustrate the.se intersec- 
 tions, it is evident that sucli meridian would intersect the international liouiularv in Ijake Superior. 
 
 Presuming this to be the case, you will iletermine and hjcate the said meridian, the same 
 being the westerly portion of the boundary in question, at .such a point on the northerly .shore of 
 the said lake as may be nearest to the said international boundary, aixl fi'om tlience survey a line 
 due south t(j dee]) watei', making the .same upon ami across any and all points or islands which 
 may intervene, and from the point on the main shore formed as aforesaid, draw and mark a line 
 due north to the southern boundary of the Hudson's Bay Territory before mentioned. This will 
 complete the survey of the westerly boundary line sought to be estal)lished. 
 
 You will then })rocee<} to trace out, survey and mark, eastwardly, the aforementioned .s(j/////rr'rt 
 hounddvy of the territory <jrantvd to the Merchant Advent iirer'i of EmjLand tnulhuj to Hudson's 
 Hay. 
 
 This is well understood to be the height of land dividing the waters which How into Hudson's 
 Bay from those emptying into the valleys of the Great Lakes, and forming the northern ixiundary 
 of (Ontario ; and the; same is to b(> traced and surveyed, following its various windings till you 
 arrive at the angle therein lietween the Provinces of Ontario and Quebec, as the latter is at 
 present bounded, haying accomplished which, the same will have been completed. 
 
 The Privy Council of Ontario on receiving a copy of above instructions advise the Dominion 
 " that the Province of Ontario claims that the boundary line is very ditferent from the one 
 defined by the said instructions, and cannot cimsent to the prosecution of the Commission for the 
 purpose of marking on the gi'ound tlie line so defined, and that the Commissioner appointed by 
 the Government of Ontario .should be instructed to abstain from taking any further action under 
 his commission. (Out. Docts., pp. '}4()-l.) 
 
 The boundaries the Ontario was willing to accept are set forth in an Order-in-Council. 
 (Ont. Docts., p. 2-tJ!.) 
 
 Until the boundaries could be definitely adjusted, provisional boundaries were agreed upon 
 on the .Srd of June, 11S74', as follows: On the west, the meridian liiK! passing through the most 
 easterly point of Hunter's Island, run scmth until it meets the Boundary Line between the United 
 States and Canada, and north until it intersects the fifty-first parallel of latitude ; and the said 
 fifty-first parallel of latitude .shall be the Conventional Boundary of the Province of Ontario on 
 the north. (Out. Docts., p. 347.)