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 183XV\ 
 
 •r^*^ 
 
 HON. MR. MILLS' SPEECH 
 
 ON THE 
 
 BOUNDARIES OF ONTARIO. 
 
 HOUSE OF 
 
 COMMONS, 
 
 Friday. SUt March. 1882. 
 
 Mr. MILLS. It is not my intention to undertake 
 to combat the obeiervations made by the hou. 
 member for Niagara in relation to myself. I 
 do not think it is necessary to enter into any defence of 
 my conduct in becoming a Minister of the Crown after 
 having been an agent of the Government of Ontario, in 
 preparing a case in their behalf. I think I need not before 
 this House enter into any discussion of that subject, espe- 
 cially when we have one to important as that submitted in 
 this particular resolution. The subject is one of voiy great 
 interest to the people of Ontario, not only those opposed to 
 the present Government, but to people of every shade of 
 political opinion throughout the Province of Ontario. When 
 the Prime Minister announced, in 1872, that the boundary 
 of Ontario on the west was to be determined by a line drawn 
 due north from the junction of the Ohio and the Mississippi 
 Eivers, and on the north by the watershed which separates 
 the lakes from Hudson's Bay, the country was taken by 
 surprise. The contention was wholly at variance with 
 that put forward by the right hon. gentleman and 
 his colleagues not long before. If the line taken 
 was not the subject of a great deal of controversy, 
 it was because the people of Canada had, from the begin- 
 ning, been led by merchants, by traders, by newspapers, 
 and by public men of every shade of political opinion to 
 believe that the Hudson's Bay Company were trespassers 
 in the North- West, and in the whole interior country, and 
 were at best possessed of but a doubtful title in the vicinity 
 of Hudson's Bay. And the public of Ontario had no doubt, 
 and could have none, as to the conclusions which must ulti- 
 mately be reached. It is true that the highest court of 
 Quebec Lad, at one time, decided that the boundary uf 
 1 
 
 6 
 
 
■^^S" 
 
 Onliirio ii))an tlio west, w.is a moridioiuil lino drawn duo 
 uorlli tVom iho JuncLioii ol' tho Ohio wiLli tlio iMiHsi.><si|)pi; 
 but iL dill HO vviili a viow ot'uphokliiii^ its jurisdictiou in a 
 cuwo which was boforo it. Tho piirposo of tho Act was 
 wholly lost sight ol". Tho truo giuminatical constructioa 
 of tho section ot tho Act undoi' co .hidoration, was wholly 
 ovorlooUo i, both by counsel and by tho court. It can bo 
 conclusively established, by surrounding circumstances, as 
 well as by ii carol'ul examination of tho Act itself, that, if 
 that Act is still to be regarded as maiking the limits of 
 C)nlario, it extends the boundaries westward, at least as far 
 us the luci'idian of Lake Itasca, tho sourcoof tho Mississippi, 
 that if tho word" northward, " as used in the first section 
 of tho Act, applies to the direction of the countries, terri- 
 tories and islands from the boundary on the south, then tho 
 territories ot the Hudson's Bay Company, make tho north- 
 ern boundary. But if it applies to the northern deflection of 
 the southern boundary as a limitary line on the west, thou 
 there is no boundary given to Ontario on tho north, and wo 
 are left to sock for a northern bou!idary from some other 
 sources, and tho present Province of Quebec would still re- 
 tain as its nortlioru boundary the lino drawn by the procla- 
 mation of October, 1703. It is well known to every ono 
 who has studied tho history of the fur trade, that 
 the whole country from Lake -Superior to tho 
 Eocky Mountains, as far north as Lako 
 Athabaska, and eastward in close proximity to Hudson's 
 Bay, was occupied and held by Franco from tho time that 
 she first took possession, down to tho surrender of Canada 
 by the Treaty of Paris ; that after the cession of Canada to 
 Great Britain tho country was, for several years, occupied 
 by numerous fur traders, from Montreal, from Albany, and 
 from Illinois ; that after the United States had acquired 
 their independence, this trade was carried on by merchants 
 of London and of Montreal. That they ultimately 
 formed themselves into a single company ; that they haid 
 in their employment about two thousand voyageurs and 
 traders, who were scattered over this immense region ; that it 
 was not until the beginning of this century that the Hudson's 
 Bay Company ventured away from the shores of the Bay, 
 and began to set up a claim to the whole basin of Hudson's 
 Bay. 1 shall undertake to show you that the Governmant 
 of Canada, having cognizance of these facts, disputed tho 
 
 f>re tensions of tho Hudson's Bay Company, not only to a 
 arge section of country north of the watershed, but to 
 the whole North- West Territories. I shall endeavor to 
 make io clear that the Crown did not possess the territories 
 professedly granted to the Hudson's Bay Company, at iho 
 time the chai'ter waa given j that it was by the dua diii- 
 
8 
 
 gcnco of tlio Company that tho Ci'own oxpoctod to acfiuiro 
 the sovoi'oignty of tho country ; jind that tho Hovoi-oi^rity of 
 tho Crown and tho pi-operty of tlie Comjtany (lo])on(lod 
 entirely upon tho activity and enterprise of tho Company in 
 oxerciKing authority and dominion over the territories for- 
 mally granted. I will undertake to mhow you that not only 
 was there no conveyance of tho country which was in tho 
 possession of any other Christian Prince at tho time tho 
 charier was fjjlven, but there could be no valid exclusion of 
 sFranee, or of any other couniry, fi-om the unocciijdod terri- 
 tories of North America by this ^'rant. I H'iall endeavor 
 to show you that by tho cliartor the Crown i)ro- 
 feased to <^rant a title in fee simple to (»ue poi'tion 
 of the country in the vicinity of tho Bay. That 
 it profcHHod to grant an exclusive right of trade 
 over another portion of the country of which no title to tho 
 soil was given. I shall undertake to show j'oii, tliat tho 
 claim to the whole basin of Hudson's Bay, is u modern 
 claim; and that before the Treaty of Utrceht, the treaty 
 upon which the I'ights of tho Hudson's Bay (..ompany are 
 ■whollj' dependent, they made no claim to any territory 
 south of tho fifty-tirst parallel. I will undertake to show 
 that in a])pointing arbitrators to ascertain and determine 
 tho bountiaries of Ontario, when those boundai'ies were con- 
 tested by the Government of Canada, the (-rown acted 
 •within its authority; that it was propeily advised; that an 
 award was ])roperIy made; that Ontario did not rooeive by 
 that award a larger extent of territory than she was entitled 
 to; and that that award ought to bo affirmed and acted 
 "upon !is setting forth tho true limits of the Province of 
 Ontario. The Government have said, in a recent conimimi- 
 cation to the Government of Ontario, that t!u> territory has 
 been acquired on behalf of Canada from tho Ilu;lson's Bay 
 Company. That is a misstatement of the case. Canada 
 has always disputed tho claims of tho Hudson's Bay Com- 
 pany", not only to the lands now in question, but to the 
 whole North-West country. When the North-VVcst Com- 
 pany amalgamated with tho Hudson's Bay, the disputed 
 territories lying fiir beyond tho bounds of settlement, 
 ceased for a time to bo tho subject of controversy, 
 but it was not because the pretentions of the Hudson's Bay 
 Company were admitted to be well founded, but only because 
 the Province had no present interest in actively enforcing 
 its claim against tho Company. As early as 1857, an 
 elaborate report was made by an hon. member of tho Gov- 
 ernment, of which the present hon. Prime Minister was tho 
 Premier, in which the right of the Hudson's Bay Company 
 to the territories in question was disputed, and the claims 
 of Canada, on behalf of the present Province of Ontario, was 
 
assorted over the whole country to the Pacific Ocean. The 
 Colonial Secretary informed the Government of Canada that 
 an enquiry was to be made by a Committee of the House of 
 Commons into the aifairs of the Company, and into their 
 claims to tho North- West, and that Canada might desire to 
 be rejiresentcd before that Committee. The Colonial 
 Secretary would not have given such an invitation had ho 
 not known that tho people of Canada had long before dis- 
 puted tho claims of the Hudson's Bay Company to tho 
 country. Tho Government acted upon this invitation, and 
 Chief Justice Draper was sent to represent Canada before a 
 Committee of tho House of Commons. He informed tho 
 right hon. gentleman and his colleagues that it was 
 desirable to have a decision of tho Judicial Committee 
 of the Privy Council as to tho western limit of the Pro- 
 vince of Canada, as well as of the northern boundary; 
 and that ho confidently hoped a decision would give to 
 Canada a clear right west to tho line of tho Mississippi, and 
 a considerable distance north of tho watershed. In fact, 
 Chief Justice Draper, who was a most able judge — and com- 
 petent to form a correct conclusion — after a very careful 
 consideration of tho subject, intimated as his view, that 
 the boundaries of Ontario wore those which the arbitrators 
 subsequently declared them to bo by their award. In 1865, 
 a member oi tho Government, of which the right hon. gentle- 
 man was tho leader in tho Legislative Assembly, still claim- 
 ed the countiy as a part of Upper Canada, and only agreed 
 to compensation to avoid the mischiefs of delay consequent 
 upon a protracted suit before the Judicial Committee of the 
 Privy Council. When the Federal Union of tho four Pro- 
 vinces was consummated, tho Government of the right 
 hon. gentleman declared their determination to acquire not 
 only tho territories hitherto claimed as a part of Upper 
 Canada, but those formally granted to the Hudson's Bay 
 Company in tho vicinity of the Buy ; and so little value did 
 ho place upon tho title of the Company that he invited the 
 Government of the United Kingdom to transfer the whole 
 country to Canada, leaving tho Hudson's Bay Company tho 
 privilege of upholding their rights, if thoy had any, not 
 before tho Judicial Committee but in tho Canadian courts of 
 law. The right hon. gentleman knew that the Company 
 were a proprietary Government ; that by their charter they 
 had professedly conferred upon them tho power to govern 
 the country ; and that the Crown had not the power to do 
 what he wanted to have done, in tho manner he proposed. 
 The right hon. gentleman said, in defence of his policy :j | ^ 
 
 "That we wished to take possession of this territory, and would 
 undertake to legislate for it and to govern it, leaving the Hudson's Bay 
 Company no right, except the right of asserting their title in the best 
 
per 
 Bay 
 did 
 the 
 lole 
 the 
 not 
 teof 
 
 •way thev could in courts of competent jurisdiction. And what would 
 their title be worth the moment it waa known tiiat thecountrv belonged 
 to Oanadaj and that the Canadian Government and Oanadian courts 
 had jurisdiction there, and that the chief protection of tlie Hudson Bay 
 Company, p,nd the value of their property, namely, their exclusive 
 right of trading in those regions, was gone forever ? The Oompany 
 would only be too glad that the country should be handod over to 
 Oaaada, and would be ready to enter into any reasonable arrangement. 
 The value of the Company's interest would be determined by the value 
 of their stocis ; and what would that be worth when the whole country 
 belonged to Canada?" 
 
 The right hon. gontlomaii proposed to deal with the rights 
 of the Hudson's Bay Company, whatever they wore, as ho 
 now undertakes to deal with the rights of Ontario. I do 
 not know wliother the right lion, gentleman expected to 
 succeed in the course ho had marked out for his Govorn- 
 mont. Ho was informed that tlio Crown had not the power 
 to do what ho proj)Osc'l, but ho certainly did succeed in 
 incurring the ill-will of Iho Company's agenth, as well as of 
 the settlors, in the North-West. Ho Hucceedod in stirring 
 up a rebellion, which cost tho country more than a million 
 of dollars, and which has impeded tho progress of tho country 
 ever since. The right of the Hudson's Bay Company, to the 
 whole country, was energetically denied by his colleagues ; 
 and if compensation was granted to tho Company it was in 
 order to avoid protracted litigation, and not because it was 
 supposed they had any claim beyond their property in their 
 farms and posts which could be successfully upheld in a court 
 of law. So far waa tho right hon. gentleman from recogni- 
 zing any title in tho Hudson's Bay Company, that, in Jan- 
 nary, 1869, two of his colleagues who had gone to England 
 for the purpose of securing a transfer of Eupert's Land and 
 the Indian Territories to Canada, informed Earl Granville 
 that: 
 
 " The boundaries of Upper Canada on the north and west were 
 declared, under the Constitutional Act of 1791, to include all the 
 territory to the westward aud southward of the boundary line of 
 Hudson's Bay to the utmost extent of the country, commonly called or 
 known by the name of Canada. Whatever doubt may exist as to the 
 utmost extent of Old or French Canada, no impartial investigator of the 
 evidence, in the case, can doubt that it extended to and included the 
 country between Lake of the Woods and Red River. The Government 
 of Canada, therefore, does not admit, but, on the contrary, deoies, and 
 has always denied the pretentiona of the Hudson's Bay Company to any 
 right of soil beyond that of squatters in tho territory through which the 
 road complained of is be<ng constructed." 
 
 This shows very clearly that the right hon. gentleman and 
 his colleagues, down to the time the country was surrendered 
 to Canada, claimed it as a part of tho Province of Ontario ; 
 and that whon compensation was granted to the Hudson's 
 Bay Company, it was not granted to them because they had 
 any proprietary rights in the disputed territories, but in 
 order to get immediate possession of the country. But 
 
■what 1 have said does not apply to tbo territory south of 
 the wntcrnlicd and wast of rrinco Arthur's Landing. The 
 Hudson's Bay Company never made any claim to that 
 country, and it has been uniformly dealt with as a part of 
 the Province of Ontario. As earl}' as 1856 the Government 
 negotiated with the Indians for the surrender of the country 
 westward of Thunder Bay, as far as the source of the 
 Pigeon Biver ; and hefore the Fedeial union ot the Provinces 
 no fewer than 35,000 acj os of the territories so surrendered 
 had been patented to private parties. When representation 
 was given to the Algoma District it was included in that 
 distiict, and the hon. member for Algoma claims to repre- 
 sent those people. The}' are electors within his district, 
 although, il 1 understand his present views upon the ques- 
 tion, ho has no business hero as a renrefcentative from 
 Ontario. As late as April, 1872, I iind the hon. First Min- 
 ister sending accounts to the (iovernmont of Ontario for 
 cash advances made for the erection of courthouses, and 
 for the maintenance of a police force beyond what, ho t^ays, 
 are the limits of the Piovince. lie has also presented ao- 
 counts for the amount due the Indians under the Robinson 
 Treaty, although he holds that the territory does not 
 belong to Ontario, for wliieh he is demanding fiom it the 
 amount promised the Indians for its surrender. In the ninth 
 and tenth paragraj)hsof the despatch sent to the Lieutenant- 
 Governor of Ontario, on the 27th of Jauuary last, tho 
 Secretary of State says : 
 
 " His Rxcellency's advisers are of opinion that, in advance oc Parlia- 
 mentary sanction, it was not only hii>hiy inexpedient, but transcended 
 the jiower of llie GoveiMinent of the day, to refer to arbitration the 
 question of the extent (f tho North- West Territories acquired bj^ tlie 
 Dominion by purchase from tiio Hudson's Bny Company. That territory 
 had b«en acquired on beh:ilf of, and was, in fact, lield for all the Pro- 
 vince^i coniiirim'd in tlie Dominion, and the extent of it was a question 
 in regard to which, if a dispute arose, only Parliament oould have ab- 
 solved the Oovernment of tlie day from the dutv of seeking an authori- 
 tative determination by tiie 1 "al tribunals of the country. ' 
 
 I deny the doctrine laid tiuwn in both these propositions. I 
 will allude to tho second proposition first, and 1 will say 
 that, as to the question of tho extent of tho I^orth-West Ter- 
 ritories, and the fact that they are the common property of 
 the Dominion does not limit the authority of tho Crown 
 with regard to their boundaries any more than it is limited 
 in dealing with the Provinces — if there is a ditt'eronce it is 
 in favor of a Province— and tho right hon. gentleman 
 as First ^Minister did not fail to deal absolutely and finally 
 with the disputed boundary of a Piovince, without tho prior 
 sanction or subsequent ratification of Parliament. The hon. 
 gentleman knows that, in referring a boundary question to 
 the Judicial Committee, he is asking for a decision not from 
 a Court but from a Council of State. 
 

 Sir JOHN A. MACDONALD. Is it not a Court of 
 Appeal ? 
 
 Mr. MILLS. It is govornod by legal principles, but it is 
 a Council ot State and not a Court of Appeal. Tf the bon. 
 eontlcman will look at Mi". Finlayson'M book on this subject, 
 he will lind that very fully JiscusKod, but wbotbor it in ho or 
 not, it proceeds, on all quostions of disputed boundaries, as 
 a Council of State, and tbe hon. gentleman will find, in the 
 cases of tbo dinputcd boundaries of New IlampHbire, Eliodo 
 Ibland, Massachusetts, and the Plymouth Colony, ihat those 
 questions were considered, not by any Court, but by the 
 King in Council. 
 
 Sir JOHN A. MACDONALD. At that time there was 
 no such thing as a Judicial Committee of the Privy Council. 
 
 Mr. MILLS. Exactly so. But the function of the King, 
 in this particular, has never been changed. I remember 
 very well the one case that I mentioned, the New Hamp- 
 Bhire case, the claim of Captain Mason. The Chief Justice 
 of the Common Pleas and the Chief Justice of the Queen's 
 Bench, as members of the Council, gave advice precisely as 
 the Judicial Committee of the Privy Council do now. They 
 entered into an elaborate discussion and proceeded upon 
 judicial principles, but still they sat as a Council of State and 
 concluded by advice and not by a judgment. Will the hon. 
 jjentlomun mention any case in which the Judicial Com- 
 mittee of the Privy Council proceeded otherwise than by 
 advice. 
 
 Sir JOHN A. MACDONALD. The Committee of tho 
 Privy Council is expressly declared to be a Court of Appeal 
 for ail ecclesiastical and all colonial questions. If the Queen 
 passes an Order in Council which is a mere form, tho hon. 
 gentleman ^ays it is but a matter of advice. It is by way 
 «f a solemn decision of a High Court of Appeal, and is 
 unanimous, as decisions in appeal should be; there ought 
 to be no dissenting voice. 
 
 Mr. MILLS. I am not going to discuss tho question as 
 to what ought or ought not to be the custom of Courts of 
 Appeal. 1 am dealing with facts as they are. I stated 
 that the Judicial Committee of tho Privy Council cannot 
 <lo more than advise the Queen. They may possess 
 Bome of the powers of a court, but they are still as 
 they were from the beginning, a Council of State. 
 Tbe Judicial Committee does not render judgments; it 
 gives advice. You do not knov; what the views of the 
 irdi\idiial members of that body are. They hear aiguments, 
 they deliberate in secret. But because its niembers con- 
 stitute a Council, and not a court, there are no ditisentient 
 
8 
 
 opinions pormlKed. Tho conclurtion come to i*h the advice 
 i)f the wholo CoiUK'll. And, wore it nocoHHary, it could bo 
 hiiown timt tho Mottloniont of imlitical boundaries havo 
 aUvayn bcorj regarded us acts of Stale belonging to tho 
 ])()litieul Department of Govornnient, and not as judgments 
 falling within tho cognizance of theCourtH. ThotirHt part 
 of this paragraph is equally untenable, and it in all tho moro 
 remarkable, coniitig irom a First Minister, who has mndo it 
 a point, all his public life, to act upon a wholly different 
 rule. The hon. gentleman was a party to a treaty which 
 coded to tho United States a right to navigate the St. 
 Lawrence Kiver, and who abandoned the right to navigate 
 t^omo of tho rivers upon the north-west coast, and consented 
 to tho restriction of our rights in ihonaviLcntion of others, 
 without tho ])rior sanction, or tho subse(iuont confirmation 
 of either tho Parliament of this country or the Parliament 
 of tho United Kingdom. Ibis well known to tho IIouso 
 that tho boundaries between British Columbia and Washing- 
 ton Territory, as laid down by tho Washington Tieaty of 
 1H46, were in dispute. Tho First Minister was a party to 
 voforring tho question, not to eminent jurists, but to a 
 jioworful potentate, who was authoriijed to give an absolu<o 
 decision by which this country was bound, lie did not 
 then seek Pai luimentary authority or Parliamentary abso- 
 hition for himself or his government. So far was he from 
 referring the ai i do in the Treaty of Oregon to tho Emperor 
 of Germany hv judicial construction, tluit ho was a 
 )»arty to an agreement which prevented the ques- 
 tion coming before tho Kmj)oror on its merits, 
 lie was never r.sked where the provisions of that 
 treaty required the boundary lino to be drawn. Whether 
 it was because tho Emperor was not a jurist, and was not 
 cons'dered competent to construe tho treaty, I cannot say, 
 but I can say, ho was not permitted to do so. Ho waa told 
 that tho English contended that tho boundary between 
 Vancouver Island and tho Mainland should bo drawn 
 through oTiO channel, and tho United States held that it 
 should be drawn through another. Ho was asked to decide 
 which of these two best comports with tho provisions of 
 the treaty. Tho Emperor decided in favor of tho Araori- 
 caa view, but wo know that, had he boon free to havo laid 
 down tho boundary under the treaty, ho would havo fol- 
 lowed neither of those channels; ho would havo taken a 
 line betweeu them, which would havo loft tho disputed 
 island a Canadian possession. The right hon. gentleman, 
 by his statesmanship, made San Juan a possession of the 
 United Slates. In fact, tho Island of San Juan, which, in 
 the opinion of tho Gorman Emperor, was a part of British 
 Columbia, by tho Treaty of 1846, was made a part of the 
 

 ITniiod States, by the Trcnty of 1871. Wo know thut in 
 ovorytliing which upocially conconiotl Cuiiadu, tho other 
 Bi'itiwh CommiHHlonoiH deferred to the wishes — they follow- 
 ed the lead of the ri^ht hon. geiillemaii. Will tho First 
 Miiiirtter contend, that tho Crown may enter into arrango- 
 nonts and compacts by which a Jh'itish posseHHit)n may bo 
 lost— b^ whir'i it may bo transferred to a forei/^n State by 
 ■which it may bo dismembere 1, without tho permission of 
 Parliament, but that it would be unconstitutional, that it 
 would bo beyoud the power of tho Crown to ascertain and 
 determine the boundary between two Provinces of llor 
 Majesty's dominions, without first baving obtained tho ap- 
 proval of Parliament to such a lino of executive action ? I 
 ■will undertake to show that tho late Government did not 
 transcend its authority when it referred the question of tho 
 disputed boundaries to arbitration. Tho Secretary of State 
 suggests, in his despatch to the Lieutenant Governor of On- 
 tario, that there was a conventional boundary formed by tho 
 arbitrators. Now, there is not a shadow of authority for 
 such a suggestion ; neither in the Orders in Council nor in 
 tho corroNpondence between the two Governments, nor in 
 the case stated by each, nor in the arguments by counsel, 
 nor in tho award of tho arbitrators, is there any other 
 boundaries sought for or spoken of than tho legal limitary 
 lines which separate upon tho north and on the west tho 
 outlying torriloriccj of Canatla from tho Province of Ontario, 
 Tho (juestion put in issue by tho case of each party, tho 
 question aiguod by the counsel, the question uj* >n wi ch 
 tho arbitrators gave a decision, was this ono, — wnoro -ro 
 tho legal boundaries of the Piovince of Ontario upo/i "^ 
 north and on the west? They said that the boundary lino 
 of Uudson's Bay mentioned in the proclamation ot 1791 
 meant the shore of Iludson's Bay, and tho law oJljcers of 
 tho Crown of England had before said tho same thing. 'I .loy 
 wore of opinion that tho Act of 1774 made 'he Mississippi 
 the boundary of tho Province of Quebec, in l.kj west as tlir 
 as tho Mississippi River extended, and Lord Camden, Ijord 
 Thurlow, L )rd Loughborough, in England, anl Chief 
 Justice Draper, here, hud also hold 
 
 the same 
 
 view. 
 
 Ln 
 
 starting froiu tho North-west Angle to draw tho western 
 boundary, they started from a point to which tho Inter- 
 national bouiuhiiy of Upper Canada had before been sot out 
 in tho Governor's Comuission. Had the* source of tho 
 Mississippi boon further west tho boundary would havo 
 boon, no (l.)ubt, carried further westward; but the sourco 
 of the Mississi|)pi and tho N'U-th- west Anglo are so noarly 
 upon iho same meridian, hat they may be taken as 
 identical, ai;eordiii to the leg 'I maxim, thut " the law does 
 not take n ace oft. ties." 1 a lall in this con uootion refer 
 
10 
 
 to two classes of cases which involve the same principle aa 
 the action which the Government here contest. The first 
 of these classes may bo held to assert with much greater 
 emphasis, than the action of the 'ate Government in this 
 case, the right of the Executive to deal with all such ques- 
 tions, limited only by the responsibility of Ministers to 
 Parliament. Blackstone lays down the proposition that the 
 Sovereign alone deals with other powers and that there can 
 be no doubt, tiiat at the conclusion of a war, the consent of 
 Parliament is not necessary to enable the Crown to alienate 
 British territory to a foreign &; Late. Whether it has power 
 to alienate territory in time of peace, has been a debated 
 question, but it is, I think, now generally conceded that whore 
 the full dominion is in the Crown, where the torricory has 
 been acquired by conquest or by cession, the Crown has 
 
 ?owor to cede without either the permission or sanction of 
 'arliament. It has been argued by Mr. Forsyth and others, 
 that where the Parliament has extended its authority over 
 the dominions of the Crown, and also whore Provincial 
 liegislatui'cs have been created, that the Cro\vn, no longer 
 having full dominion, hrs not the power of cession. This I 
 "will show you is not in accordance with usage ; and it will 
 be dirticult, on any constitutional theory, to maintain that 
 the Crown possessed, for the purpose of negotiating peace, 
 powers, which, at any other time, would be hold to bo an en- 
 croachment upon the authority of Parliament. The Judicial 
 Committee seemed to favor tho views of those who contended 
 that the power of the Crown in ths particular was unlimited 
 except perhaps with regard to those district'* or colonies 
 in which representative Government was establihlu! I. 
 
 Sir JOHN A. MACDOXA.LD. The power of the Crown 
 is paramount. 
 
 Mr. MILLS. I do not know that the powers of tho 
 Crown paramount are at all ditJeront so fai* as this question 
 18 concornod from tho po'vers of the Crown in olhor re- 
 spects. Where the Crown has full dominion, as it is called, 
 there can bo no question as to its right to cede a torritor3\ 
 There are numerous instances of tho exoi'cise of this power. 
 But even where the power of the Ciown is limit<vi by tho 
 intervention of the Imperial Parliament, or tho creation of 
 a Local Legislature, there are many instances where the 
 Crown has undertaken to deal wit't a territory, and where 
 it has ceded it and altered boundaries without the prior 
 sanction or subsequent ratification of Parliament. 
 
 Sir JOHN A. MACDOXALD Does tho hon. gontleman 
 mean to say that the Crown, on the advice of the Canadian 
 Ministry, could give the Manitoulin Islands to the United 
 States ? 
 
 
11 
 
 Mr. MILLS. I am not arguing that question ; but I shall 
 answer the right honorable gentleman by-and-bye. 
 
 Sir JOHN A. MACDONALD. The Crown paramount 
 could do it, but the Canadian Crown could not do it. 
 
 Mr. MILLS. I am not now discussing what ought to 
 be, but what is the prerogative of the Crown in this par- 
 ticular. There is no doubt a strong tendency in our own 
 day to restrain the prerogatives of the Crown by holding 
 Ministers more strictly responsible for their exercise. Par- 
 liament is more active and moro interested in the work of 
 Administration than formerly. Behind it and outside of 
 it there is the great power of public opinion which 
 will not permit it to remain an indifferent spectator of Ad- 
 ministrative Acts in which the public are deeply interested. 
 Parliament may insist upon being consulted with regard to 
 any negotiations with a foreign State. It may insist 
 upon controlling all negotiations. It may insist upon all 
 matters being submitted to it before they aretinally ratified. 
 It may do this because it is the supreme autiiority in tho 
 State J and if it did so no Ministry would be likely to disre- 
 gai'd its mandates. iBut it has not hitherto in such matters 
 asserted its supreme authority. This has not, heretofore, 
 been the practice. It is not the practice now. Parliament 
 has left the administration of the public business to the 
 Executive just as it has left the interpretation of tho laAV to 
 the courts. The negotiations with the North American 
 Colonies are, in fact, no exception. When the Crown was 
 about to make peace with tho North American Colonies, it 
 sought the authority of Parliament, but if did so because an 
 Act had been passed expressly forbidding negotiations. 
 There were also numerous Acts whioh extended to the North 
 American Colonies forbidding their trade with foreign 
 States. A statute of Charles I. expressly denied that the 
 Crown nad a dispensing power. Parliament legislated in 
 that case, to vest in tho King power to repeal and make 
 void Acts of Parliament relating to America. Tho Crown 
 could not recognize the independence ofAmerica without an 
 immense cession of territory, yet the Act which conferred 
 upon the King power to negotiate did not confer upon him 
 power to cede any territories, much less other portions of hia 
 dominions. lie, nevertheless, did cede the old colonies, as 
 well as other portions, without the sanction of Parliament. 
 Let me invite your attention briefly to what the Crown has 
 done. Dunkirk was sold by Charles 11. to the King of 
 France without the sanction of Parliament. Parliament, 
 when the fact became known, impeached Lord Clarendon, 
 who was held responsible as tho King's principal adviser, 
 but it did not question the validity of the act. By the 
 
12 
 
 Treaty of Breda in IGGT, and by the Treaty of Eyswick in 
 leOt, eCHBions and retrocessions were made by the Crown 
 •without the sanction of Pariiaraont. In 1G83 the Island of 
 Tangie'.s was abandoned by the Crown in time of peace. 
 The Island of Minorca was ceded to Great Britain by the 
 Treaty ol Utrecht, in 1713. It remained a Bi'itish pos- 
 session until 1783, when, by the Ireaty of Versailles, it was, 
 without the authority of Parliament, ceded to the King of 
 Spain. The Island of Tobago was ceded to the Crown of 
 Great Britain by the Treaty of Paris. It remained a 
 British possession for twenty years, when, by the Treaty of 
 Versailles, it was ceded to the Crown of Franco without 
 the sanction of Parliament, the only stipulation being that 
 the King of France should respect and maintain the titles of 
 British subjects to their property within the Island. In 1763, 
 both East and West Florida were ceded by Spain to the King 
 of England, and vvcio, in 1783, retroceded to the King of 
 Spain, for which no Parliamentary sanction was sought. 
 By the Treaty of 1763 the King of France ceded 
 Canada with its dependencies to the King of England. 
 In 1774, the whole of the country to the Mississippi Kivor 
 was brought under the control of Parliament, and a Consti- 
 tution was given to the population by Parliament itself; and 
 yet, in 1783, the King, without the authority of Parliament, 
 coded a largo portion of the Province to the Republic of the 
 United States. While the Floridas were in the possession of 
 the King of England, he established in each a Colonial 
 Government. British subjects were encouraged to settle in 
 East Florida. The Colonization of the Interior of the Con- 
 tinent was prohibited, the better to encourage this object. 
 It was this fact mainly, that induced Lord Loughborough to 
 question the authority of the Crown to transfer the Floridas 
 to Spain. Ho was answered by Lord Thurlow. I shall 
 refer to this subject again at a later period. In 1824, the 
 King of the Netherlands ceded to the King of Great 
 Britain all his establishments in India, an 1 the Town and 
 Fort of Malacca and its dej)endcneic8, and His Britannic 
 Majesty in turn ceded to the King of Netherlands Fort 
 Marlborough, Bencoolen, and all the English possessions in 
 the Island of Sumatra, The cession by the Crown was 
 tacitly admitted by l^arliament. The treaty was recog- 
 nized as valied by (George IV., chap. 85), by which Singa- 
 pore, one of the iw.ssessions ceded by the Dutch, was 
 transfened to the East India Company. I will now 
 refer to the South African case. In 1836, the 
 Dutch Boers of Capo Colony were dissatisfied 
 with the mode of compensation adopted under 
 the Act of Emancipation. They believed the compensation 
 provided was quite inadequate, but they wore disposed to 
 
 I 
 
13 
 
 I 
 
 submit. But when tho Government provided that payment 
 should bo made in London only, and when tho population 
 found themselves obliged to sell their claims to brokers at 
 tho Capo for a mere fraction of tho amount awarded them, 
 they became greatly dissatisfied. Many were so exasperated 
 that thoy were resolved to expatriate themselves from Cape 
 Colony. They took with them their perwonnl property, and 
 retired into tho interior beyond the DrakenlMugli Mountains, 
 so as to get boj'ond tho limits of tho British ])o.ssessionH, 
 Thoy settled in the valley of the Omii;.;o Kiver and in 
 Natal. They occupied Natal with a view to opening 
 up a trade with Holland, and with other countries 
 on the continent of Europe. The British at once took 
 possession of tho Natal coast to control their trade. The 
 JBoers resisted, were defeated, and were driven back into 
 the Orange River country. There could be no question but 
 that the Orange River country was beyond the limit of the 
 Queen's dominions. The Government of Capo Colony had 
 from time to time entered into treaties with Griqua Chiefs, 
 who resided at Orange River, to protect tho northern frontier 
 of tho colony against invasion. When Sir Harry 
 Smith, in 1847, wont out as Governor to tho Cape, 
 he informed Earl Grey, the Colonial Secretary, that 
 both the Boers and natives desired that British 
 rule should be established over them. He intimated that 
 his position at the Capo was like that of many of the Gov- 
 ernors who had gone out to India resolved not to further 
 extend the British dominions ; but who had ended by 
 greatly enlarging the borders of the Indian Empire. His 
 own view, he said, had been against the extension of the 
 British dominions in South Africa ; but ho found its exten- 
 sion demanded both by Dutch and natives, and he recom- 
 mended the Colonial Secretary to annex tho Orange River 
 country to the possessions of the Crown. The Earl Grey 
 acted, contrary to his own judgment, but in deference to the 
 earnest representations of Sir Harry Smith, and advised the 
 Queen to assume the sovereignty of that country. It was 
 soon manifest that the Colonial Secretary had been misled. 
 Lord Grey quitted office before any change of policy could 
 take place, but he left on record his opinion that tho Crown 
 should abandon the sovereignty of that c©untry. Ho sent 
 out Major Hogg and Mr. Owen as Commissioners to report 
 upon the subject, and he awaited their report in order the 
 better to accomplish his purpose. Sir Jobn Pakington suc- 
 ceeded him. He concurred in the views of Lord Grey, but 
 deferred action until the reportof the Commissioners should 
 bo received, which was not done before he quitted office. 
 The Duke of Newcastle was the next Colonial Minister. 
 Holding the same views as his predecessors, he advised the 
 
14 
 
 abandonment of tho Orange Eiver country. Ho took the 
 advice of the law officers of tho Crown, as to the 
 proper method of giving effect to this policy. Tho views 
 of the legal advisers of the Crown are indicated by the 
 course taken. The letters patent, which were issued under 
 the Great Seal in March, 1851, constituting tho Orange 
 Eiver country a distinct Government, wore revoked by 
 other letters patent, and Her Majesty, by Order in Council, 
 approved of a proclamation which 
 
 "Declared, and made kaowa the abandonment and rcnuaciation of 
 Her dominion and sovereignty over the Orange River country, and 
 over the inhabitants tliereof. " 
 
 The question which presented itself for discussion in the 
 two Houses of Parliament was, whether the Crown had the 
 power to divest itself of tho sovereignty of tho country, 
 once that Sovereignty had been ussuraod ? It was admitted 
 by all that the Crown might give up places of arms, mili- 
 tary forts and trophies of war, such as Calais, Dunkirk and 
 Tangicrs ; but it was denied, by Mr. Addorly and others, 
 that this could bo done with an ordinary possession of the 
 Crown. It was argued that if tho Crown could transfer its 
 possessions to a foreign power, it could release parties of 
 their allegiance, it could convert its subjects into an alien 
 population. The J)uko of Newcastle, in a despatch to Sir 
 James Clark, tho then Govortior of Cape Colony, expressly 
 denied that the withdrawal of the sovereignty of Her Majesty 
 from the country at all alfected the allegiance of those who 
 were by birth Her Majesty's subjects. The law officers who 
 advised the Crown at the lime were Sir Alexander Cockburn 
 and Sir Richard Betholl. The Attorney General said that 
 Colonies acquired by conquest or by cession were subject to 
 the absolute and undisputed sovereignty of the Crown, and 
 those who settled in such possessions did not acquire any 
 right to take with them the laws and institutions of Eng- 
 land, and the Crown could code or abandon such possessions 
 without the sanction of Parliament. With respect to terri- 
 tories acquired by occupancy considerable difference of 
 opinion existed as to whether the Crown had tho power of 
 getting rid of those territories otherwise than by an Act of 
 *'.e Legislature. Much might bo said on both sides; but it 
 was not necessary to enter on the question in tho case of 
 tho Orange Eiver Territory, because the mode of proceed- 
 ing in that case rested, not upon tho principle which regu- 
 lated territory by occupancy, but upon those ]n-inciplo3 
 which regulated territory acquired by conquest. Sir Harry 
 Smith proclaimed tho sovereignty of the British Crown over 
 the country which tho Boers occupied. They resisted his 
 authority. They wore subjugated. Tho Crown, without 
 the intervei lion of Parliament, established its authority, 
 
16 
 
 k the 
 ? the 
 views 
 y the 
 under 
 > range 
 od by 
 
 )UQCil, 
 
 itlon of 
 ry, and 
 
 in the 
 lad the 
 )untry, 
 imittod 
 i, mili- 
 rk and 
 others, 
 of the 
 iBfer its 
 rties of 
 in alien 
 1 to Sir 
 :prossly 
 Majesty 
 080 who 
 ors who 
 ackburn 
 iid that 
 ibjoct to 
 )wn, and 
 lire any 
 of Eng- 
 sscssions 
 to terri- 
 •enoe of 
 )ower of 
 
 Act of 
 but it 
 
 case of 
 proceed- 
 ich regu- 
 n'inciplos 
 Vu- Harry 
 I'own over 
 sisted his 
 
 without 
 authority, 
 
 is; 
 e 
 
 i 
 
 i 
 
 and finding that it had been misled and deceived, as to the 
 wishes of the Boer population, abandoned the sovereignty 
 over the country without the intervention of Parliament. 
 Sir Alexander Cockburn said that the legal jjroposition 
 upon which they had proceeded was this, that what 
 the Crown had acquired by cession or by eon- 
 quest, and over which it still retained full dominion, it 
 could deal with without the intervention or co-operation of 
 Parliament. In the same discussion Sir Frederick Thessiger, 
 a distinguished lawyer, said he would not offer an opinion 
 upon tho general question as to how far the Crown could con- 
 stitutionally dispossess itself of any of its dominions without 
 tho assent of Parliament. lie admitted the question was one 
 of very great difficulty. Lord Loughborough had expressed 
 an opinion one way and Lord Thurlow another; but he ad- 
 mitted that in the case before them it was not essential that 
 the sanction of Parlirment should be had in order to give 
 validity to the abandonment. Mr. Phillimore, a very high 
 authority, expressed stiongly the opinion that the Crown had 
 clearly the right to abandon a colony. Tho real check 
 he said against abut>e was the responsibility of Ministers to 
 Parliament. He contended that the point admitted of no dis- 
 pute; that English history furnished so many t xaniples of 
 its exercise, that it was to him a matter of surprise that any 
 lawyer could entertain doubt upon tho subject. During this 
 discussion, Mr. Adderly contended that the Boors were 
 British subjects and <he Crown could not, by virtue of 
 its prerogative, constitute part of its subjects an independent 
 State. That allegiance was a contract between the Crown 
 and its subjects. That its obligations wore reciprocal; and 
 that neither party could relieve itself from those 
 mutual obligations — a doctrine which Sir Fitzjames 
 Stephens expressly repudiated in a most able argu- 
 ment before the Judicial Committee of the Privy 
 Council in an appeal case from the Bombay Presi- 
 dency, and in his view the members of tho Committee 
 seemed to concur. Subsequently, tho Crown entered into 
 treaty obligations with the Boers, dealing with them as a 
 foreign and independent Government ; in this way doing 
 the very thing which Mr. Adderly contended the Crown 
 could not do. I have already referred to the fact that after 
 the acquisition of Florida from Spain, the British Govern- 
 ment put forward special efforts to secure its colonization 
 by British subjects, the more effectually to protect it against 
 the possibility of again falling into the hands of the Span- 
 iards. In February, 1783, the King again ceded it to Spain. 
 The treaty was made a subject of discussion in tho House 
 of Lords. Lord Loughborough concluded an elaborate 
 speech against the terms of tho treaty by particular refer- 
 
16 
 
 onco to tlio copfiion of the FloridaH, denying the right of the 
 Crown, without the authority of Parliament, to alienate a 
 portion of the British Empire, and to transfer the allegiance 
 of Britinh Bubjeets to a foreign State. The report of this 
 
 I)art of Lord Loughborough's speech is very brief, and we 
 earn from the reply of Lord Thurlow, that much of 
 what ho said is not reported, but it is pretty clear 
 that the point which he pressed against the Administiation 
 was this one : " You have encouraged Englishmen to colonize 
 Floiida. You have adopted a policy which led them to be- 
 lieve that they were not laying aside the common heritage 
 of Englishmen when they complied with your wishc. You 
 have by the treaty transfen-ed Florida to the King of Spain. 
 You have undertaken to transmute Englishmen into 
 Spaniaids. The Crown cannot transfer the allegiance of 
 British subjects to a foreign State. That is the doctrine of 
 Lord Loughborough, aa 1 understand him. A doctiiiic from 
 which Lord Cairns seemed to dissent during the argument 
 of the Indian apju'a! case to which I have already adverted. 
 Lcid Thurlow answered Lord Loughborough, and his thun- 
 dering tones and impressive manner produced such an effect 
 on the llouse of Lords at the time that he was long suppos- 
 ed to have efVeciually settled the point against his antago- 
 nibts. Ho said : 
 
 **The noble and learned Lord had thought prc,ier to allege, that the 
 royal iirenigative does not warrant the alienation by a treaty of peace, 
 of territories which were under the allegiance of the Crown of England. 
 If this doctrine be true, I must acknowledge myself strangely ignorantcf 
 the constitution of my country. Till the present day of novelty and 
 miracle I never heard of such a doctrine. I apprehend, however, tbnt. 
 the noble and learned Lord has thrown down the gauntlet on this occa- 
 eiou more from knight-errantry than patriotism, and that he was more 
 inclined to shew the llouse what powers of declamation 
 he posseses in support of hypothetical propositions than aniious 
 gravely to (xamine a power wisely lodged in the Crown, the utility, 
 much less the existence, of which has never hitherto been questioned. 
 One would have thought that when a great, experienced, and justly 
 eminent lawyer hazarded an opinion respecting a most important point 
 relatinijr to the Constitution of this country, he would deem it fit to pro- 
 duce proofs fiom our legal and historical records, or at least that he 
 would aitenipt to show that the common opinion ana cor ^nt of Eng- 
 lishmen went with them ; but instead of this the noble and learned Lord 
 iCEorts to the lucubrations and fancies of foreign writers, and gravely 
 refers your Lordships to bwiss authors for an explanation of the prerog- 
 atives. For my own part, I at once reject the authority of all foreigners 
 en such a subject ; however lull of ingenuity Mr. Valtell and Mr. Fuft- 
 endorf may be on the law of nati<-ns, which cannot be fixed by any per- 
 manent or solid rule, I deny their authority, 1 explode their evidence 
 when they are brought in to explain to me what may or may not be done 
 by the Sovereign I serve. Speaking from my own judgment, from the 
 recoids of Parliament and the annals of ihe country, I do not think 
 the cession of the Floiidas at all a que.'^tionable matter. Let the noble 
 and learned Lord bring forward the subject regularly and I will estab- 
 lish a doctrine clearly contrary to the extraordinary notion now sported 
 by him, or confess my ignorance. I will not combat the noble and 
 learned Lord with vague declamation bnd oratorical flourishes — these I 
 
 I 
 
 I 
 
contentedly J'^ave to him with the plaudits they are rnlonlateil, perhaps 
 intended, to gain — but with iindecorated 3«nse and flini[ile ur^unient. Iq 
 my opinion, it is safer to stick to the process by whicli we tirrive at the 
 conclusion that two an(i two tiiakH four, than to siitU-r our unlerstand- 
 ings to be warped by the f'ushionuble lo^^ic whidi d^li^^lits in words, 
 and which strives rather to confouud what is i)lHiii than to unravel 
 what is intricate." 
 
 Lord Charicolior Cnmpholl observes, tliat in tlio dii^cussion 
 of the Ashburton Treaty, by which the MadawaHkii Settle- 
 ment was ceded to the United fetatos, ho ench'jivorcd to 
 rai^e the question, as to whether an Act of Parliament was 
 necessary to give it validity, but was told that the preroga- 
 tive to effect the transfer had been eslablihhcl by the 
 unanswerable arguments of Lord Thurlow. In 1863, the 
 subject of the cession of the Ionian Islards, which, by the 
 Treaty of Vienna, had been placed under the protection of 
 the British Crown, and which had, by the Ci-own, been 
 transferred to Greece, was discussed. In many respects the 
 Islands had been dealt with as a dependency. Possession 
 of six of them had been obtained by f'oico of arms during 
 the war with Franco. Corfu, which was held by a French 
 garrison, was surrendered shortly after the fall of Napo- 
 leon. While they were in the possession of the British 
 Government, expensive fortifications were erected upon 
 the:n, and for which Parliament had voted the money. 
 They had no external political relations, except through 
 the Government of the constitutional power of ceding them 
 to a foreign nation. He. said nothing as the advisability of 
 Buch a course. All negotiations and conclusions of treaties 
 rested with the Crown. If the Crown abused its authority 
 the advisers of the Crown wore responsible, and were 
 liable to the censure of Parliament, and even to iiBpeach- 
 ment, if they advised the Crown to adopt a measure injuri- 
 ous to the Empire. There were precedents of cession made 
 by treaty. The magnificent Island of Java was thus cedo<l, 
 and, injudiciously, in his opinion, but he believed that in 
 respect of that transaction it never was asserted that the 
 authority of the Crown was overstepped. I will 
 now refer to the most recent transaction of this 
 class, the attempt to extend the authority of the 
 Crown over the Boors of the Transvaal, their resistance, the 
 negotiations of the Government with them, and the agree- 
 ment of Her Majesty to recognize them as a protectorate in- 
 stead of a possession of the British Crown. The history of 
 this transaction bears in every particular a close resem- 
 blance to that of the Orange Eiver Free State. Sir Theo- 
 philus Shepstone misled Lord Carnarvon, as Sir Harry 
 Smith had before misled Lord Grey. The Boers of tbo 
 Transvaal resisted the attempt to treat them as colonists 
 , just as the Boers of the Orange Free State had done 
 2 
 
18 
 
 twonly-Ioiir y«ai,s oarlior, Tiio (lo.ornmont of Mr. Glad- 
 stOMO. whon it li)iU'iH!(i tlio roil I'onliiij^s of tlio lioors, 
 adopUtil towiinls tlioiii Iho snnio polii-y that liu I boon tukcti 
 towards tlioir wostoni tioij^liborn. Tiioy wore more huccoss- 
 ful than thoir iioi^lib')rBi hid bo»)n in n ciiHtini; tho British 
 troops, bnlthin did not ])rovont tlio Cfuvorntnont IVom nioet- 
 inff tlioir wi-^hoH as MOon an it wjvs Icm wn, boyond all doubt, 
 what ihoir wishes were. Her Mujosvy decided that nego- 
 tiations should bo opened, and treaty stipulations wore 
 made with iho-o who wore tochnically her subjects. The 
 policy ot the CTOvornriiont Ims btuMi liorcoly criticised; but 
 the authority of the Crown to in:iI<o those ti-eaty ntipula- 
 tions and to /i^ivo np the couiitiy as a possession 
 ■without the sanction of Parliament, has not been 
 raised, [n the discus.sioD which took place before 
 the Judicial Coinmittco in 1875 (5, hut which was ulti- 
 mately disposed of on other j^rounds, Mr. Forsyth, who was 
 arguing" against the right of the Crown to cede territories in 
 the time ot peace, said, that in order to insure peace the 
 Crown might ce<lo ])0.s^essionrt which had never boon the 
 Bubjoct of l^ariiamontaiy legislation, but could cede no 
 others. Lord Chancellor Cairns asked him if ho had any 
 authority for that ])ropo8ition. lie said nothing bej'ond 
 this fact, that to admit it involved the power to interfere 
 with Parliament. Ho argued that the right to cede a terri- 
 tory at the conclusion of a war, was a right based upon 
 supremo necessity, and ho quoted PulFondorf to the elfoct 
 that the power of a Sovereign is not such as to enable him 
 to transfer his kingdom or his people without their consent; 
 and that in the case of a partial alienation of territory, the 
 consent of both the inhabitants of the parts retained and the 
 parts coded are equally required. When Savoy and Mice 
 were ceded by the King of Sardinia to the Emperor of the 
 French, the people were asked to consent to the cession. 
 Lord Soiborne pointed out to Mr. Forsyth that, if that 
 doctrine wore recogni/.ed, Parliament, no more than the 
 Crown, would have a right to make a cession. Tho people 
 themselves must be consulted. Lord Chancellor Cairns said 
 that— 
 
 " The giat of the authority was this, that, if the inhabitants of a terri- 
 tory, cut adrift, are physically strong enough, they are morally justified 
 in asserting their independence." 
 
 Sir Vernon Harcourt and Sir Fitzjames Stephens 
 cited several cases of colonies for which Parliament had 
 legislated, or in which the colonies had Legislatures of their 
 own, where the Crown had ceded the territory without 
 the sanction of Parliament. There was the case of the 
 cession of Bencoolin to the Dutch, of parts of Nova Scotia 
 and Quebec to the United States, of parts of NewfoundlanJi 
 
 I 
 
1 
 
 19 
 
 [v. Glad- 
 3 Boere, 
 Qx\ takcu 
 
 I fcJUCC088- 
 
 ) British 
 )m nieet- 
 lU doubt, 
 lilt nogo- 
 na wore 
 ts. The 
 sed; but 
 r stipuliv- 
 osseswion 
 ot boea 
 3 before 
 W.*18 tilti- 
 who was 
 •itorios in 
 potico the 
 buet) the 
 cede no 
 3 had any 
 r bej'ond 
 interfere 
 lo a torri- 
 ised upon 
 tbo elioct 
 lable him 
 • consent; 
 itory, the 
 d and the 
 and Mice 
 or of the 
 10 cession. 
 if that 
 tban the 
 ho people 
 lairns said 
 
 t, 
 
 t8 of a terri- 
 iUy justified 
 
 Stephens 
 iment had 
 OS of their 
 y without 
 ise of the 
 ova Scotia 
 foundlan3 
 
 — St. Pierre and Miquelon — to Franco, and of the flold 
 Coast in 18(J7 to the Kothcrlands. Mr. Stophcjw instanced 
 at least twcnty-throo cases in the British Kast Indies where 
 the Governor (Jeneral, not ])oxs(>ssod of that paramount 
 authority which the First .Minister alhidod to, possessed but 
 a limited authority, entered into nr<^oliations with 
 the native pi-inces, nnd, by IranslL'rring territory 
 to them, obtained cessions of lorritorj- irom them, 
 altered boundaiios of States and Provinces which were 
 adjoinin*^, which was estabiis]iin<^ a bettor boiMidary whore 
 nc('.cs!-ary — I savho inst.'»nPO(l twontv-thice cases of tliis sort 
 as havinj^ occurred in India alone, and theio wore many 
 cases where Parliament iiad lc<ijislatedand where Loi^islatures 
 had been established, and where the Ci'own had not para- 
 mount authority. 
 
 Sir JOHN A. MACDOXALL. ILul not jiaramount 
 authority? 
 
 Mr. ]\nLLS, Ccrtainl}' not, because whore Parliament is 
 fully csti'.blished the plenary Jurisdiction is in Parliament 
 and not in the Crown, and that distinction, the hon. gentle- 
 man will rind, is made thi'Oiii^h all those cases. It was 
 upon that, princij)all3', that the parties, who wore denying 
 the power of tlio Crown of its own motion to code 
 territory in the East India cases, relied. Now, there is 
 aruitber class of cases in which the Crown has act«d without 
 the consent of Parliament, and whore its power to act has 
 never boon called in question. I refer to the class of cases 
 to which this one more particularly !)olon:L?s — the class of 
 disputed territory. I will refer briefly to a few of these 
 upon this continent. Tho territories on the north-western 
 coast of America wore, for some time, in dispute boLween 
 the United Kingdom and Russia. The English Govern- 
 ment claimed tho whole coast south of Mount 8t. Elias to 
 tho forty-second degree of north latitude. This claim was 
 based upon prior discovery, and upon tho partial occupation 
 of tho country by Canadian fur-traders. Eussia claimed 
 tho coast as far south as tho Portland Channel, basing her 
 claim upon discovery and actual occupation. In 1S25 the 
 claim of Russia was conceded, subject to the right of the 
 British j^eoplo to navigate tho rivers which flow from the 
 interior country to tho sea. This concession of territory in 
 tho sottlomcnt of tho boundary was made without the prior 
 authority or the subsequent ratification of Parliament. And 
 let me hero call your attention to tho provisions of the 
 Treaty of St. Potorsburgh for another purpose. England 
 and Russia occupy, under the Treaty of St. Petersburgh, very 
 nearly the same position that Franco and England occupied 
 under the Treaty of Utrecht in reference to Hudson's Bay. 
 2i 
 
Upon tlic woatorn coast, undorthoTroatyof St. PotorHbnrghy 
 Rubsia holds tho shore and England tho interior of the 
 country. In tho vicinity of Hudson's Bay, under tho Treaty 
 of Utrecht, England hold the coast and France occupied tho 
 interior of tho country. Let us see what principle was 
 recognized and acted upon in the Treaty of St. Petersburgh. 
 To liiissla was ultimately conceded the coast, on theground 
 of prior occupation, but did this adminsion entitle Eiissia to 
 claim the whole country to the sources of the rivers ? The 
 treaty itself nogativ \>-' any such doctrine. The treaty 
 did not admit the right of liu^'jia to so wide an ex- 
 panse of country. In most cases tho rivers rise 
 far in the interior — beyond the mountain range which girds 
 the coast. Thut range is, in fact, not tho watershed. Tho 
 treaty simply conceded tho priticiplo that the Bussian 
 authorities on!}' could claim a reasonable o.xtont of country 
 in the vicinity of tho shore. In no case was it to pass the 
 coast-hei.Ljht, and if the height was more than thirty miles 
 from the shore, then the boundary was to be drawn at tho 
 distance of thirty miles and not upon the height. I shall 
 undertake to show that the principles of public law which 
 underlie the provisions of the Treaty of St. Petersburgh, 
 are to bo observed also in reference to the respective claims 
 which once existed of the two Crowris to the basin of 
 Hudson's Bay; that Avhat was done in tho Treaty of St. 
 Petersburgh by express words was done at the Treaty of 
 Utrecht by lines drawn upon u map ; and that wholly apart 
 from any express treaty stipulations and from the pi'in- 
 ciplos of public law applied to the varying fortunes or the 
 Company, that the (xovornment of Great Britain, in grant- 
 ing charters by which dominion was to bo acquired for tho 
 Crown, and property and powers of Govoi-nment for those 
 to whom the charter was granted, no matter how extensive 
 the dominions formerly granted might bo, the limits were 
 determined by the actual occupation and dominion of those 
 to whom the grant was made. I will now refer to tho 
 disputed boundaries between tho Provinces of Lower 
 Canada and New Brunswick 
 State of Maine on tho oti;e» 
 the boundary between tho 
 the United States in this region was to be a line drawn 
 directly north from tho source of tho St. Croix Eivor, to the 
 highlands at the north-west angle of Nova Scotia which 
 divides the rivers that full into the Atlantic Ocean from 
 those which fall into the Eivor St. Lawrence; thence south- 
 westerly along tho said highlands to the source of the Con- 
 necticut liiver, and down that river to the 45th parallel 
 of latitude, and thence due west to the St. Lawrence. At 
 an early day, differences arose as to the location of the 
 
 on the one side, and tho 
 
 By the Treaty of 1783, 
 
 British Possessions and 
 
ai 
 
 highhirtls arnl tho north-wost ai)glo loferrod to in this 
 article of ibo treaty. (Jront Britain clnimod that tho high- 
 lands montionod vvcm-o Hotith of tho St. .lohn liiver. Tho 
 United States insisted upon going north to the high- 
 lands roar tho St. Lawrence. Shortly after tho signature of 
 tho treaty, doubts also arose as to the river referred to by tho 
 nomo of tho St. Croix. Jn 1798, it was agreed tho ono now 
 80 designated was tho river meant, and that the north-oast 
 source of that river should bo taken as tho starting y)oint 
 of tho lino which tho treaty req[uired should bo drawn 
 directly north to tho highlands. An exploration of tho 
 country soon made it obvious that a great deal of difficulty 
 would be experienced in finding a lino conformable to tho 
 words of the treaty. During tho (lovornment of Thomas 
 Carleton, about the year 1790, many sottlei's from New 
 Bininswick moved into the Madawaska District, and had, 
 there, grants made to them by tho (Jovernor ot 
 Now Brunswick. The Government of tho United States 
 earnestly protested against the occupation and government 
 of the country by the English. The ])Osition taken by tho 
 British Government was this : disputed territory remains 
 with the original party until tho cession is made absolute. 
 There could bo no doubt that tho territory onco belonged to 
 Great Britain ; that she had not actually transferred more 
 to the United States than she admitted by her own con- 
 struction of the treaty ; that she was, therefore, still vested 
 with the exclusivojurisdiction over the disputed country; 
 and that she could not consent to lay it down until it was 
 shovvn that her construction of the Treaty of 1783 was 
 wrong. She said that neither tho question of title to the 
 sovereignty of the country, nor tho rights of either party, 
 were prejudiced by this rule. Upon those principles she 
 took her stand, and to them she adhered. Tho United 
 States, on tho contrary, maintained that tho disputed terri- 
 tory was wholly unoccupied at the time the Treaty of 1783 
 was made ; that the rule laid down by Great Britain was 
 a rule applicable to ports, military towns and garrisons 
 where t' ^ro was actual occupation, and where because there 
 was actual occupation, there must bo an actual forLaal 
 cession. But this rule has no applicability to an unoccupied 
 country ; that the possession of the Crown of Great 
 Britain to the territory in dispute was at the time of 
 the treaty a constructive possession, because the 
 territory was unoccupied, and tho renunciation by 
 treaty was an adequate transfer of the country ; that tho 
 United States did not acquire their rights to tho territory by 
 the Treaty of 1783, but by a force of arms. The Treaty of 
 1783 recognized, but did not confer territorial rights. It 
 provided for a mutual partition; and tho boundary set forth 
 
22 
 
 simply marked tho limitrt botwocii tho ton'itorics of llio two 
 nutioiiM. Itiu cuHo not lon^ winco, boforo tho Judiciu! Com- 
 mittco of tho Privy Council, Lord CuirnH tixoroHsod opinions 
 in conHoniuu'o with tlio viowrionuiiciatod in tliiMdisciiMHion by 
 the Anicricjins, and thoro can bo littlo doubt that tho light 
 of England to nold tho dispuiod territory was not bocauHO 
 it was not actually ceded until hIio j^avo formal ])O.SMO.sHion, 
 but l)oc;iu.so tho Hottloment was hors. Tho actual dominion 
 ■was hors, and it was necossai-y to prove her to bo in tho 
 wron;^, before she wouUl bo called upon to make u surrondor 
 or to Hubrnit to Joiiii, occupalion. Tho position in this 
 respect of Groat BrlLiiiii in tho valley of tho Upper St. John, 
 is tho position of Ontario in the disputed territories. She 
 has always claimed them, she lias exercised jurisdiction for 
 more than thirty years over tho ])oj)ulati()n. They are 
 represented in this House as bolon!.;in^ to lior, and she has 
 a ri^ht to maintain her authority, apart from any award, 
 against all oncroachmenl, and by whatever moans is nocos- 
 eary to make her delenco of her dominion etl'octivo. In 
 1812, a compromise line was agreed to between 
 the Crovornmont of Groat Britain and that of 
 the United States. Instead of following a height of land 
 they followed tho St. .John River. According to tho English 
 view, a largo extent of toi-ritory was surrendered to the 
 United States. Mr. Campbell, afterwards Lord Chancellor, 
 suggostod that as a large extent of territory which had for 
 half a century been held by tho Province of New Bruns- 
 wick, and legislated for as a purt of that Province, was 
 about to be given uj), the consent of Parliament ouglit to 
 be had. But the law olttcers of tho Crown dissented from 
 his view. Thoy held that such consent was unnecessary, 
 and upon the authority of tho Crown alone, the Maduwaska 
 Settlement, and all that section of country west of tho 
 meridian of tho St. Croix Eivor, and lying between tho 
 St. John and its southern watershed, was surrendered to 
 the United States. Tho territory west of tho liocky Moun- 
 tains, between the forty-socond parallel and the parullel of 
 fifty-four degrees forty minutes north latitude, was, for 
 many years, claimed both by tho United States and tho 
 United Kingdom. By conventions, to which tho Crown 
 alone was a party on the side of Great Britain, tho wholo 
 country was opened to colonization and settlement by both 
 Governments. By tho Treaty of IHiG, tho Government of 
 Great Bi-itain surrendered to the United States her claim to 
 the whole country south of the forty-ninth parallel, without 
 the sanction of Parliament. I might before have referred to 
 the fact that the boundary between Canada and 
 Louisiana under tho Treaty of Paris, between the 
 Mississippi and tho Pocky Mountains was beyond 
 
X3 
 
 all doubt the pnrfllloi of Lnke ItnHcn, and yot by 
 the Convention of 1818, tho Urown n^iood to at Ixmndary 
 noaily ono and u-luilf dcfiieuH furilier lujiili, huii«Mi<loi'in^ to 
 tlie United Stulos b}; ihirt lonxoiition tind by I lie 'J'rcuty of 
 184(i UHtii])ofc'ountiy moro than nin<3ty niilort in widtli, and 
 extending iVom tho Hoiuro of tlio Missirtsippi to Vunroiivor 
 iHland, without any Paiiianientaiy hanction in eitheicuhe. 
 I need not refer 10 other eaHos. Tho itiHianiOH which 1 havo 
 given Hhow, beyond question, what has been the praotito and 
 what has been the hiw in tho tiiho. They Hhow that it waw the 
 buHinoHt) of the AdminiHti-ation to deal wiih tlie (]uestion. 
 That thoprior sanction of Parliament waH not in any of these 
 cafOH deemed necehnary, and that Hubse(iiient rutifn-ation has 
 uovor been nouf^ht. It would havo been an unpieeedcntod 
 COurHoto have taken tho liny which tho right lion, gentleman 
 sayw was the only ono winch wo could constitutionally ibllow. 
 6o fur as I know, there is noi an ipHtance in the whole hislory 
 of tho United Kingdom in which tho views taken by the 
 Prime Winitjter and liicJ Ciovcinment in this case wan ever 
 actc'l u])on. 1 am huro he will not tind a ninglo precedent to 
 8up] orl him, and the uniform u^ngo of two hundred and 
 twe' ty years hao nettled thiw point, at all events, ag.iinst him. 
 I do not ("Uy that what iho Crown may do in the United 
 Kingdom the Crown can do hci«j: but I say tho relation 
 between the Crown and Paii lament is the same heieas there. 
 I have 8hown on this class of questions the Ciown 
 aclM wiihouc the direct sai.ction of Purliament, 
 and so til r as our powers extend the relation is the same. 
 Uut, Sir, even though it were true that tho sanction of Par- 
 liament was neccsstuy to give validity to the aubit ration, 
 that sanction was obtained before tho arbitrators sat. The 
 Government came down to the House and asked tor an 
 appropriation to pay the cxpeni-es which would bo ituuri-ed 
 by ttibitiation. Jf anyone was opposed to ai'bitialion it was 
 open to him to take that line. No one did object, and Par- 
 liament expres-cd its approval of settlement by arbitration, 
 by voting tho ne(ressary monies for tl o )>ur]>ose. At least 
 two years elapsed after that money was voted bcloro tho 
 arbitration eat. It was open to tho right hon. gentle- 
 man, or to any of those who then sat in Parliament, and who 
 now support him, to havo taken exception to that mode of 
 settlement, but it was not done, if tho right hon. 
 gentleman believed that Parliament did not favor arbitra- 
 tion, why oid he not move against it when tho appropi'iation 
 was asked for? \\'as it lecanso be believed it could not 
 succeed ? It raay be so. I havo no doubt ho could not have 
 Bucceeded. But what does this establish ? Why, that Par- 
 liament know what it was doing, That it approved of tho 
 mode of settlement, and voted the necessary means to enable 
 
^'^'^I'^mmmmmm 
 
 24 
 
 the Governmont to give effoct to its policy. The sanction, 
 then, which the right hon. gontleman say.s the Government 
 onght to have had, it in effect did have ; ho that it is obvious 
 that on none of these grounds can the award be suo- 
 cussfuUy attacked. The right lion, gentleman, in press- 
 ing through the Manitoba Bill during the last hours 
 ot last Session, told us that there was no award; 
 that the arbitrators had set out a conventional 
 line ; that this was outside the order of reference; and that, 
 consequently, they had not done what they were alone 
 authorized to do ; and he referred to the award made by the 
 King of the Netherlands in the case ot the Maine boundary, 
 in contiimation of ihe doctrine which he enunciated. Now, I 
 deny tluif there is any similarity between the award made 
 in that case and in this. And I also affirm that if there 
 was, that that case does not t,ustain the line of action 
 which he has taken or proposes tr take. Lot u** look at the 
 facts in that case. On the 29th September, 1827, the Eng- 
 lish Government and the Government of the United States 
 agreed to submit the points of difference between them to 
 an Arbiter ; and by a subsequent convention they agreed that 
 tlie Arbiter sliould bo the King of the Notherhinds. They 
 submitted three points under the Treaty of 1783 to the 
 King lor his decison. I will read them to the House : — 
 
 " 1st. Which is the spot designated ia the Treaty as the north-weat 
 angle of Novn Sjui i, and which Hre the highlands 'dividing the rivers 
 that empty thenjfff I .'3 into the River St. Lawrence from those falling 
 into the Allatitic Cor-an, along which highlands is tu In' drawn the line 
 I if boundary from that angle to tlie north-west head ot the Connecticut 
 Biver? 
 
 " 2nd. Which is the north-west head of the Connecticut River ? 
 
 *' 3rd. Which is the bounilary to be traced fVom the Uiver Connecticut 
 along the parallel ot the 45'' of Jiorth latitude to the River St. Lawrence, 
 called in the TreaUes Catu-'aqui ? " 
 
 The King of the Netherlands decided the second and third 
 points absolutely ; but as to the first, he declared it was im- 
 ])0S8iblc to find a north-west angle conformable to tiie words 
 of the treaty. He held that the highlands souglit for might 
 1)0 simply a summit level from which tne waters flowed in 
 different directions. 2trl. That the ancient boundaries of 
 the North American Provinces were not maintained by the 
 treaty of 175^3; that i hey had never been distinctly ascer- 
 tained, and in no way aided in the determination of the 
 question, 3rd. That the highlands contemplated in the 
 Treaty should divide immediately, not mediately the rivers 
 flowing into tlie St. Lawrence and the Atlantic. That the 
 word "divide" required contiguity in the things divided. 
 That the northern highlands divide rivers falling into the 
 Bay of Chalour, from rivers falling into the Bay of Fdndy. 
 That the southern highlands divide the rivers flowing into the 
 
25 
 
 ,nction, 
 rnment 
 )bvioa9 
 be Buo- 
 
 press- 
 
 hours 
 award ; 
 intional 
 id that, 
 ) alone 
 ) by the 
 andary, 
 Now, I 
 1 made 
 if there 
 
 action 
 k at the 
 he lilng- 
 [ States 
 hem to 
 eed that 
 . They 
 
 to the 
 b: — 
 
 lorth-west 
 he rivers 
 se falling 
 a the line 
 )naecticut 
 
 ver ? 
 
 >nnecticut 
 
 ^awreace, 
 
 nd third 
 was itn- 
 lO words 
 3r might 
 lowed in 
 larios of 
 id by the 
 Ay ascer- 
 •n of the 
 in the 
 he rivers 
 That the 
 divided, 
 into the 
 f Ftindy. 
 g into the 
 
 Atlantic from those flowing into the St. John ; that neither 
 height of land answers the description in the treaty; and that 
 no award can bo adjudged without departing from the prin- 
 ciples of justice as between the two parties. The King ad- 
 judged the St. John River, lying midway between the two 
 heights of land, as an equitable boundary. When the award 
 was made and a copy of it given to Mr. Preble, he addressed 
 a letter to Baron Verstolk deSolen which he concludes with 
 the following observations : — 
 
 " It i? not the intention of the undersigned, in this place, to question 
 in the slichtest degree the correctness of His Majesty's conclusions. 
 But when the Arbiter proceeds to say that it would be suitable to rua 
 the line due north ftom the source of the River St. Croix, not to the 
 higlilands which divide the rivers which fall into the Atlantic Ocoan 
 from those which fall into the River St. Lawrence, but to the centre of 
 the River St. John, thence to pass up the said river to the mouth of the 
 River St. Francis to the mouth of its south-westernmost branch, and from 
 thence by a line drawn west into the point where it intersects the line 
 of the higliltiuds as claimed by the United States, and only from thence to 
 pass along the said highlands which divide the rivers which fall into che 
 Atlantic Ocean from those which fall into the River St. Lawrence to the 
 north-westerniost head of the Connecticut River, thus abandoning alto- 
 gether the boundaries of the treaty and substituting for them a distinct 
 and different line of demarcation, it becomes the duty of the under- 
 signed, with the most perfect respect for the friendly view of the Arbi- 
 ter, to enter a protest against the proceeding as constituting a depar- 
 ture from the power delegated by the High parties interested, in order 
 that the rights and interests of the United States may not be supposed 
 to be committed by any presumed acquiesence on the part of their rep- 
 resentative near His Majesty the King of the Netherlands." 
 
 The award made by the arbiter was submitted by the 
 ProsidonL to the Senate, who declined to confii-ni it, and 
 recotninended furlhur negotiations. The technical ground 
 upon whicii the Senate based their refusal, was, that the 
 decision of the King was outside the oider of reference; 
 that ho had abandoned the charator of aibitor and assumed 
 that of mediator; and that the decision, not being in con- 
 foiiuity with the submission, could not bo carried into effect. 
 The real ground of the Senate's refusal, as stated by the 
 Secretary of State, was, that the State of Maine refused its 
 consent lo any compromise and insisted U])on the boundary 
 given to it by (ho Treaty of 1788, whatever tlmt l)oundary 
 miglit be. 1 refer to this part of the history of that dis- 
 puted lifH'udaty, because the First Minister has undertaken 
 to drag it iiilo the discussion for the purpose of showing 
 that the Government were warranted in repudiating the 
 award made by the arbiters. It in no way sustains his 
 position, Tiie King of the Netherlands was asked to con- 
 strue the Treaty of 178..; he was aske«l to indicate a 
 boundary iii accordance with its jirovisions, and in his 
 award he says: " This cannot bedone, and I advi.^e the parties 
 10 acce|>t homelhing else." The American Scci-etaiy of State 
 docs not object to the King's recommendation ; he does not 
 
26 
 
 say that it is unfair ; but he says, " We cannot get the State 
 of Maine to agree to it ; " and he intimates his regret that the 
 arbiter did not make his award without stating that it was 
 not in conformity with the treat}'. The arbitrators in this 
 case made no declaration like that made by the King of the 
 Isetherlands. They did not say that they could iind no 
 boundary in accordance with the principles of public law. 
 and with acts of State upon which a proper decision must 
 rest. The whole subject was discussed. Everything 
 which could bo found bearing upon the car^c was consid- 
 ered. The contention of the right hon. gentleman 
 and of the Hudson's Bay Company were known. The 
 eases submitted by each party showed bej-ond all 
 question what the issue was. The arbitrators do not sug- 
 gest a conventional boundary. They do not say that they 
 have been unable to find the true legal limits of Ontario. 
 On the contrary, they say they wei e appointed lor this 
 very purj ose,^ and they determine and decide that the 
 northerly boundary is the Albany Eiver, and the meridian 
 of the north-west angle of the Lake of the Woods is the 
 boundaiy ujion the west. They keep themselves strictly 
 within the order of reference. They do not give advice ; 
 they piononiice a decision. It is perfectly clear, then, that 
 this award is in no particular like that made by the King of 
 the Netherlands, and yet in that cai-e the United States 
 Government did everything in ito power to persufido the 
 State of Maine to consent to the line suggested by the ar- 
 biter. It is plain, then, that the contention of the First 
 Minister is wholly erroneous. Let me here, ho\V( ver, i-e- 
 mind him what was done in another case. By tho 
 terms of the British North America Act, tho excess 
 of the debt of old Canada beyond tho amount iissuiiied 
 by tho Federal Government was to be charged to Ontario 
 and Queliec. Each was to appoint an arbitrator, and 
 the Dominion Government was to aj)point athii-d, and tlieso 
 three were to decide what portion of this excess was to bo 
 assumed by each of these I*rovinces. Ttie arbitrators woi'O 
 appointed. They sat, and the >?ul)ject sul)mitted to them was 
 investigated. Quebec wasdissa'i>tied, and ii'.-trncti'd her 
 arbitrator to withdraw ; aiid her Government eaid then, in 
 that case, what the right hon. gentleman says in this, that 
 there was no award. WJwit was ilone ? Did the Govern- 
 ments of the two Provinces throw the award to the winds, 
 and go to the Judicial Committee of the Privy Council for a 
 Becond examination into the merits of the case? Not at 
 all. But they did submit this question: " lias there Ix'en 
 any award, and is it binding upon tho parties?" And tho 
 Judicial Committee of the Privy Council advised tlie Crown 
 that a valid award had been made, and that tho parties 
 
21 
 
 were bound. That is a precedent which the hon. gentleman 
 might follow, if it can bo possible that ho has any doubt 
 upon the subject. I do not say that it justifies an appeal, 
 because that arbitration was not a voluntary one ; but 1 say 
 if he is resolved to break faith and appeal it points to what 
 the issue should bo. I do not speak for the Government of 
 Ontario, but as a member of this House, and I ask the right 
 hon. gentleman why he does not say to Mr. Mowat : 
 
 "I do not regard the award made by Sir Edward Thornton, Sir 
 Francis Hincks and Chief Justice Harrison as a valid award. T do not 
 think th^ Crown had power to appoint arbitratora to denl with this 
 question without the direct and formal sanction of Parliament. I 
 think the aibitrators went outside of the order of reference in mak- 
 ing a decision, and I wish, for these .easone, to linve a decision of the 
 Judicial Committee upon the validity of the award." 
 
 My impression is, his wish would be grutifit d. The right 
 hon. gentleman knows that that is the issiw', and the only 
 issue which ho can raise at this moment, li blocks the way 
 to every other, and if he believes ho is right in his conten- 
 tion, he ought not to hesitate. If the decision is against 
 him, the question is settled. If it is in his favor ho will 
 have cUsnc'd the way to the consideration of the whole 
 question again upon its merits. 
 
 Sir JOHN A. MACDONALD. But Ontario offers to 
 leave that to the Privy Council. 
 
 Mr. MILLS. There may bo some offers made that have 
 not been biougjit down to us. I think the hon. gentleman 
 is mistaken. 
 
 Sir JOHN A. MACDONALD. Eead the last despatch. 
 
 Mr. MILLS. I have read that. The Government in 
 theii' des])attli nforrod to a report made by a Committee of 
 this House, aiici make a paragraph in that report an excuse 
 lor rcpiidiiiting jin awaid which cannot be disiegarded with- 
 out di.>«hoi;()r. I rcgict that time will not permit me to 
 make a niitiuto analysis (jf that report, and to show how 
 utteiiy woilhkss it is. \Vc know that a minority of the 
 Committee declared that they had not even an o])]iortunity 
 of reading it. The chairman again and again put 
 arguments int^tcad of questions, secures from the witness 
 an echo of his oAvn views, and is almost invaiiably wrong 
 both in j)oinl of Jact and in point ol law. The book, too, 
 contains an immense mass of matter uf on p(an1s wholly 
 irrelevant. It contains opinions which are of no value, 
 which are not evidence, and the men who gave them are 
 sepaialed by a hundred years from the events about which 
 they testify. Let me invito the attention of the House, in 
 the first ])lace, to the testimony of some of the witnesses, 
 and I will begin with that of Mr. Justice Johnson. I have 
 
■^^ 
 
 28 
 
 no hesitation in saying that tho ovidonce which he gave 
 before that Committee was in tho highest degree discredit- 
 able to him. He seemed to thinic that it mattered not 
 •whether his statements wci c true or false. Had an ordinary- 
 witness gone before Mr. Justice Joiinson's Court and talked 
 as loosely and as inaccurately, ho would have been utterly 
 discredited. He told tho Committee that Lord Selkirk, in 
 the first instance, acquired his title to the country which 
 he claimed, from the Norlh-West Company. Now, this was 
 not true. Lord Selkirk obtained in June, 1811, a grant 
 from the Hudson's Bay Com|)any for the whole ^^sin of 
 the Eed Eiver. The North-West Company never pretended 
 to have any title to the soil. They contented themselves 
 with denying tho pretensions of the Hudson's Bay Company, 
 who came to the country many years after the North- West 
 Company had been established there. Mr. Justice 
 Johnson infoimod the Committee that the boundary 
 of Upper Canada on tho west was always considered to bo 
 the lino running noi-th from tho confluence of the Ohio and 
 Mississippi. He told tho Committee that the boundaries of 
 Assiniboia extended to tho boundary of Upper Canada, and 
 that that was tho Height of Land, a statement wholly at 
 variance with tho ona which he had made before as to the 
 boundary of Ontario upon tho west, and wholly at variance 
 with the grant. Mr. Justice Johnson said that the two 
 law officers of the Crown in England stated that if tho 
 Crown saw fit it could establish Courts of civil and criminal 
 jurisdiction in Assiniboia; and he argued that this declara- 
 tion \vas entirely at variance with tho possibility of its 
 being a part of Upper Canada, because Upper Canada 
 having Ijoen granted legislative powers, was vested with tho 
 right of constituting Courts for itself Will tho Houso 
 believe that tho law officers of tho Crown do not make the 
 slightest allusion to the colony of Assiniboia. Tho subject 
 was not for one moment under their consideration. The 
 law officers of tho Crown discussed, in the communication 
 refori'od to, tho powers of the Hudson's Bay Company 
 within their chartered limits; but they do not venture to 
 state what those limits are. Mr. Johnson showed himself, 
 indeed, strangely ignorant of tho boundaries of the district 
 which the Hudson's Bay Company in ISll professed to con- 
 vey to Lord Selkirk, and which he again, in 1839, surrendered 
 to the Company. So much of Lord Solkii-k's grant as was 
 north of the United States boundary, they created into a 
 colony, and tho eastern limit was the Winnipeg River. Mr. 
 Johnson says that the Colony of Assiniboia was i-ecognized 
 as a (le facto Crown Colony, and this seems to have been an 
 opinion which tho Chairman was most anxious to elicit from 
 several of tho witnesses. Now, lot me ask what is a Crown 
 
29 
 
 I he gavo 
 discrodit- 
 Ltorcd not 
 1 ordinary 
 ,nd talked 
 on utterly 
 Selkirk, in 
 try which 
 ,v, this was 
 1, a grant 
 } 3i^sin of 
 protended 
 themselves 
 Company, 
 ^orth-West 
 r. Justice 
 
 boundary 
 lored to bo 
 e Ohio and 
 imdarios of 
 lanada, and 
 , wholly at 
 L'o as to tho 
 at variance 
 at the two 
 that if tho 
 nd criminal 
 lis declava- 
 )ility of its 
 )cr Canada 
 Led with tho 
 
 tho IIouso 
 t make tho 
 riio subject 
 ation. Tho 
 iraunication 
 Company 
 t venture to 
 vcd himself, 
 tho district 
 iHsod to con- 
 surrondored 
 
 i-ant as was 
 sated into a 
 ; River. Mr. 
 i recognized 
 
 avo been an 
 
 |() elicit from 
 
 t is a Crown 
 
 Colony ? It is neither a charter nor a proprietary Govern- 
 ment. It is an ordinary Provincial establishment, ruled by 
 a Governor, appointed by a Eoyal Commission, ufid the 
 extent of whose authority is set forth in the Coniraission 
 and in the instructions which usually accompany it ; and he 
 is assisted in the discharge of his duties by a Council 
 appointed by the Crown, but not by a roiircscntative 
 Assembly. This was not tho character of the Colony of 
 Assiniboia. Lord Selkirk had obtained a gi-nnt from the 
 Hudson's Bay Company in 1811, which included 116,000 
 square miles. Tho Company assigned to bim not only their 
 title to the soil, if they had any, but along with it, their 
 powers of government within the limits of the district so 
 conveyed. Could they do this ? Could they, having been 
 made by the Crown a charter government create 
 another charter government tor a part of the 
 territory so convoyed? Was the colony of Lord Selkirk a 
 proprietary colonj', or was it a mere voluntary association. 
 If I wero compelled to choose between the opinions 
 of Mr. Justice Johnson and the hon. member for 
 Algoma upon the ore side, and Mr. Spankie, Sir 
 Arthur Pigott and Lord Brougham on the other. I 
 should prefer to follow the latter. These distinguished 
 lawyers say that — 
 
 "The Company could not confer power upon Lord Selkirk to appoint 
 Governors, Courts of Justice, or exercise any independent authority, nor 
 could they, uirectly or ir'directly, transfer their authority to b'm to be 
 exercised Ly him in his own name. Supposing the grant of land to be 
 such a grant as falls within the power of the Company to make, their 
 superior Lordship and authority would continue as bafore and must be 
 exercised through them." 
 
 This opinion is not only upheld by a consideration of tho 
 legal principles involved, but also by decided cases. In the 
 year 1620, James I made a grant to the Duke of Lennox and 
 others, known as the Plymouth Company of New England. 
 The religious sect known as Brownitcs were driven out of 
 England by persecution. They purchased from the Ply- 
 mouth Company all the country along the coast from three 
 miles north of the Eiver Merimac to three miles south of 
 the Eiver Charles. They obtained from the Plymouth 
 Company not only a transfer of the land, but an assignment 
 of the Company within the limits which they had purchased. 
 They were advised that they could not exercise, legally, the 
 powers of Government which had been conveyed to them 
 them. They applied to Charles I and obtained a charter 
 from him conferring upon them power to govern the colony. 
 In the year 1628, the King granted a charter to Sir Henry 
 Eosewell and others making them a body politic by the 
 name of " Tho Governor and Company of Massachusetts 
 Bay in New England." By their charter they were 
 
30 
 
 to oxorciso their powors of Govornmcnt in England. They 
 transferred thorn to America, to the actaal sottlor.s, which 
 some years later was hold to be ultra vires. Tn 1(52;), Captain 
 John Mason obtained from the Plymouth Company a grant 
 of the country which afterwards was called the Province of 
 Now Hampshire. The Colony of Massachusetts claimed the 
 same country as included within her limits. She established 
 her jurisdiction over it, and governed it for forty years. 
 The contestants brought the case before the King in Council, 
 in 1679. The case was decided against Massachusetts, but the 
 Council advised the King that the Plymoutli Company 
 could not assign or delegate away their powers of (vovern- 
 mont, and that the consent of the Crown not having boon 
 given. Captain Mason had no political authority. The 
 Crown recognized him as proprietor of the territory, 
 and issued a Commission for its CTOvernmont. I might give 
 other cases, but tliese are sufficient. Wliatover, Govern- 
 ment existed tlien in the Eed River settlement was 
 simply a voluntary association. Tnere have been 
 several such within the British domirJons. After the 
 re-assignment of the Red River Company to the Hudson's 
 Bay Company, they might, no douljt, establish a Govern- 
 ment professedly under their charter, which the Crown did 
 not question, just as it did not question the authority of 
 Massachusetts in New Hampshire, or in Maine, nor the 
 authority of Lord Baltmiore in Deleware, until a decision 
 was sought; but I will say hero that its authority never 
 entered there, and if it did it was forleited by an attempt to 
 convey it away. Tlie hon. member for Algoina asked the Hon. 
 D. A. Smith a number of questions and addressed to him a 
 number of arguments, many of which were wholly irrelev- 
 ant. He said : " You, then, consider the height of land on the 
 St; Lawrence watershed to bo the southern boundary of the 
 territory of the Hudson's Bay Company?" — Ans. "The 
 Hudson's Bay Company have always hold it to be so." Mr. 
 Smith no doubt spoke of the contention of the Hudson's 
 Bay Company of late years; but down to the period of the 
 Treaty of Utrecht, they never put forward any such conten- 
 tion, nor did they lor many years later. The hon. member 
 for Algoma has undertaken to show that the whole of the 
 country west of Lake Superior was called the Indian country, 
 and the Act of 43 George III, which gave to the Courts of 
 Ojiper and Lower Canada jurisdiction over crimes com- 
 mitted in the Indian territories, was enacted to meet the case 
 of crimes committed in tho territories awarded to Ontario. 
 But no such instance can bo found : both Lord Selkirk and 
 the Right Hon. Edmund Ellico declare that the Act was 
 passed in consequence of crimes which had been committed 
 in the vicinity of Lake Athabaska. They said it was passed 
 
 « 
 
I 
 
 nd. They 
 dVri, which 
 1;), Captain 
 ,ny a grant 
 Province of 
 jlaimod the 
 established 
 orty years, 
 in Council, 
 )tts, but the 
 I Company 
 of Govern- 
 aving boon 
 i-ity. The 
 territory, 
 mi^'ht give 
 ,-or, Crovern- 
 otnont was 
 have been 
 After the 
 ho Hudson's 
 h a Govern- 
 10 Crown did 
 authority of 
 tiue, nor the 
 il a decision 
 hority never 
 in attempt to 
 deed the Hon. 
 ^ed to him a 
 holly irrelev- 
 of land on the 
 undary oi the 
 —Ann. " The 
 3 be so." Mr. 
 the Hudson's 
 period of the 
 Y such conten- 
 hon. member 
 whole of the 
 idian country, 
 the Courts of 
 • crimes cora- 
 ) moot the case 
 id to Ontario. 
 L-d Selkirk and 
 the Act was 
 eon committed 
 d it was passed 
 
 31 
 
 in consequence of c/^ntosts between tho two Xorth-West 
 Companies. Mr. \\ 'en had boon shot by one Pond, and 
 was acquitted on tho ground (hat tho Court had no jurisdic- 
 tion in the place where tho crime was committed. Lord 
 Selkirk says that tho immediate cause for the ])assago of tho 
 Act was the shootingof oneKingbyLamottein the vicinity 
 of Lake Arthabaska. He describes the event as follows : — 
 
 " In the winter of 1801-2, Mr. John McDonald managed tho aflfairs of 
 tho old North-West Company in the Arthabaaka ccauiry ; Mr. Roche- 
 blave, those of the new company in the same district . Mr. McDonald 
 liii'l under hla command a clerk of the name of Kiup, an experienced 
 man, of u bold Hnd active character, and of a herculean figure. Mr. 
 iJochebliive's assistant wti3 Lamotte, a young man of a re3j)ectable 
 Canadian family, of a spirited and active aispoaition, but much younger 
 and of less experience among tho Indians, and not to be compared to 
 King in point of personal strength. In the course of the winter two 
 Indians arrived as deputies from a band with which both parties had had 
 transactions, to inform the traders that they had furs ready at an 
 encampment at the distance of four or five days march. King was sent 
 with four men to collect those due to the old North-West Company — 
 Lamotte with two men fur those due to the uewCcuiiiany. Holhof them 
 were charged to use the utmost diligence and to defend the rights of 
 their employers with courage. They set out accordinely on their mis- 
 sion, and great activity and address were used by each to get the start 
 of the other, but without success on either side. When they reached tho 
 Indian encampment, both parties proceeded to collect tho furs due to 
 them, but King, by means of the superior number of his assistants, got 
 possession of all the furs exccfit one bundle which was delivered to La- 
 motte by the same Indian who had come as a delegate to the new Com- 
 pany. King then came to Lamotte's tent, accomi)anied by all his men, 
 armed, peremptorily demanding ihat bundle also; threatening violence 
 and declaring his intention to tnke the furs by force if they were not 
 given up to him. Lamotte was determined to defend the i)ro[)erty of his 
 employers to the last extremity, and warned King, that if he ventured to 
 touch the furs, he should do so at his peril. King, nevertheless, was 
 proceeding to put his threats into execution and to seize the bundle 
 when Lamotte pulled out his pistol and shot the robberdeadonthespot. 
 King's men would have revenged his death, but the Indians interfered 
 and exi)res.sed their opinion that he had merited his fate. Though it 
 would be ditficult to quote an instance of homicide more decidedly justi- 
 fiable, all Canada rang with the claims of the old North-West Company 
 against this murder, as they chose to term it. It was upon this occasion 
 that the Act of 1803 w;is obtained, under the ideathat the case could not 
 be brought to trial, .'loughitmight undoubtedly have been tried at West- 
 minster under the Act of Henry VIII." 
 
 I think this is stiflScient to show where the crimes happened 
 which gave rise to the Act 4H George IH, The hon. mem- 
 ber for Algoma refers to the killing of McDonell by 
 Mowat, but that was six years after the ptissage of the 
 Act^, and the question of jurisdiction was not raised. The 
 name Indian Territories was a name given to tho British 
 possessions in North America not included within the limits 
 of any Province. The country between Georgia and the 
 Mississippi was called Indian Territory, and so too was the 
 country beyond the Alleghany Mountains. After tho Prov- 
 ince of (Quebec was carved out of Canada by the proclama- 
 tion of 1763, the remaining portion was called the Indian. 
 
82 
 
 country; and when the Province of Quebec wns enlarged 
 by the Act of 1774 the Indian country wns the British 
 poHBCHHions which lay to the north and north-wc«t beyond 
 it. The Act of 1803 proviJcs for the trial of persons who 
 have committed crime in the possessions of the Hudson's 
 Bay and in the Indian Territories, by the Courts of Upper 
 Canada or Lower Canada. 1 shall not waste the time of 
 the House by discussing the question of jurisdiction under 
 the Act of 1803 or of 1821. Those Acts were passed for the 
 purpose ot providing for the punishment of crime committed 
 in dist.'itit ])artB of North America, and it was no part of 
 the duty of the Courts to enquire into the question of terri- 
 toi'ial limits whore those limits had not boon actually marked 
 out, and espocially when traders going to the unpeopled 
 parts of the Provinces were exposed to the same dangers as 
 in the country for which the Act was intended to pro- 
 vide. It is not by considerations of this sort that wo 
 can arrive at any conclusion as to the boundaries of 
 Ontavio. I purpose now to consider the limits given to 
 the Pi'ovinco of Quebec by ihe Act of 1774. The right 
 hon. gentleman has given to that Act a construction which, 
 in my opinion, it will not bear, and which it can be shown 
 would have dofoatud the object of Parliament, as sot forth 
 in the Act itwolf. It is a sound I'ule of construction that to 
 interpret a law properly, it is necessary to look at all the 
 Hurrounding circumstances. Let us do so in this case. 
 Let us notice how this territory came to be a British pos- 
 session : and how the Government proposed from time to 
 time to deal with it, until they established tho Province of 
 Upper Canada. Both Grei.t Britain and France claimed 
 the country between the Alleghany Mountains and tho 
 Great Lakes. Tho dispute led to a war, and tho war ended 
 in the cession of Canada, — not precisely as it had been held 
 by France, but as it was marked out by the 4th and 7th 
 Articles of tho Treaty of 1763. While Canada was a French 
 possession, it included the country west of the Mississippi 
 and north of the Missouri Hivor. At the cession 
 Franco retained that part of Canada west of the Mis- 
 sissippi River as a ]>tirt of Louisiana, and gave up 
 so much of Louisiana as lay east of the Mississippi, 
 as a part of Canada. But all the territory claimed by 
 France to tho north and west of tho source of tho Mississippi, 
 and over which the Governor of Canada had exorcised juris- 
 diction, was surrendered to Great Britain, and when the 
 Province of Canada is spoken of by the English Govern- 
 ment, or in Acts of the Imperial Parliament, it is the terri- 
 tory that France surrendered, to which this appellation is 
 given. After Canada had been ceded to Gi'oat Britain, and 
 before the King, by his proclan\ation, established the Pro- 
 
 I 
 
I 
 
 ilargod 
 British 
 )cyond 
 iH who 
 iidson's 
 Upper 
 time of 
 I under 
 for the 
 raitted 
 part of 
 f terri- 
 Tiarkod 
 peopled 
 gers as 
 to pro- 
 hat wo 
 iries of 
 iven to 
 e right 
 1 which, 
 
 shown 
 [)t forth 
 
 1 that to 
 all tho 
 
 is case, 
 ish pos- 
 timo to 
 )vinco of 
 claimed 
 and tho 
 ar en' led 
 een held 
 and 7th 
 a French 
 ississippi 
 
 cession 
 the Mis- 
 gave up 
 ississippi, 
 imed hy 
 ississippi, 
 iscd juris- 
 vhen tho 
 
 Govern- 
 
 the terri- 
 
 llation is 
 
 itain, and 
 
 the Pro- 
 
 33 
 
 Tince of Quebec, that is botwoon the 10th Fehrnnry, 1763, 
 and tho 7th of October of tho same year, the country was 
 called the Province of Canada. On the ;^Oth AyvW, 17<J3, 
 the King issued a Commission to Henry Ellis, giaritlng him 
 the officoN of Secioiary and ('Inrlc of the Council ol the Pro- 
 vince of Canada ; and on the li.jrd of Sopfcmhcr Nicholas 
 Turner received a Commission grant it)g him tho office of 
 Provost Marshal of (ho I'roviiice of Canada. In October, 
 1763, the King, by his proclamation, oslahlished the Pro- 
 vince of Quebec, which was caived out of tho Province of 
 Canada with the ibiknving limits : — 
 
 "Bound on the Labrador coast by the Rivpr St John and from thence 
 by a line drawn from the head of that river throi.p;Ii Luke St. John to 
 the south end of Lake Ni|)is9in(f, from whence the S'tid line, crossing 
 the River St. Lawrence and Lake Champlain in 4.'i degroef of northern 
 latitude, paEses along the hit^hlands which diviie the rivers that empty 
 themselves into the said River St. Lawrence from thoie wliich fall into 
 the sea, and also alon;; the northern coast of the Hale Clmlciirs and the 
 coast of the Gulf of St. Lawrence to Cape Rosiera, and from thence 
 crosses i .e mouth of the River St Lawrence hv tho we.*"! end of the 
 Island o> Anticosti, terminates at the aforesaid River St. John.'' 
 
 These were the original boundaries of the Province of 
 Quebec. The intention was to limit as mucli as possible tho 
 territories within which the peculiar laws of France should 
 govern tho population. It was intended that tho French 
 settlements which were scattered over the remaining por- 
 tions of Canada should be put an end to. and tho inhabitants 
 transferred to other colonies. Sir William Johnson, on 
 behalf of the British Government, had promised tho Indians 
 thai this should be done; and the Indians pressed upon 
 them the fulfilment of their engagement. Lord tShelburne 
 had proposed to establish three more colonies, one having its 
 centre at Detroit, one upon the Upper Ohio, and a third in 
 the Illinois country. But this view was resisted by the Jjords 
 of Trade and Plantations. Captain Pittman was sent to the 
 Illinois country to take the Census, and to report upon its con- 
 dition ; and the Commandants at other points were required 
 to give like information. In 1772 proclamations were issued 
 commanding the French to retire within the jurisdiction of 
 the other colonies. A considerable number of the French 
 had retired west of the Mississippi. They built forts; they 
 supplied themselves with ammunition and arms ; and it 
 soon became evident that they could be more easily con- 
 trolled within the territory than outside of it, and the policy 
 of driving them from the country was abandoned. Between 
 1763 and 1791 we have throe distinct phases of J]ngli8h policy. 
 First, the restriction of that arbitrary system of Government 
 which had prevailed during the regime of France and 
 which was confined in the Province of Quebec, within very 
 narrow limits. Second, its extension by the Quebec Act to 
 3 
 
34 
 
 a largo pml, if no' u> iIk^ wholo of Cuiida ; and In tho lliird 
 pluoe, itn liiiiiiutioii iii^jtifi by ilio t>siiUili>htimnt of iho Pro- 
 vince Ot U|)j «•!■ 0!lMM(!:i. [l \V!1S llio pollf^)' of uwst KiiglisU 
 MiniMti'iiss lo contltio tlio lOiigli^ih colotiisttt to Iho oast of tho 
 Allo^hames, and if. wns Jhoiii^ht thiit tliis could in no way 
 bo 80 olVoctnally ac'cuniprusjiod nn by tbe oxti^nsion of French 
 law ovor tlio wlioiocountiy to the Mississippi. Tho French 
 and Enirlisli colonists had, for nearly a century, boon 
 ongagoil in Ixn-diM" warfare, and the piqjiidice of tho En/i^lish 
 colonists had buen intonsitiod by their lon^ animoHitios. 
 Tho Stiit»> papiM's ot tho period also diselose that, as the 
 English colonies o-rew moi'o (iissati^ticd with tho Kn^lish 
 colotdal |)oli(^y, the frn|)eriaKioverninent wero more anxioud 
 lo conciliate the French people. And, as indicatiorm of 
 levolt lirciune more marked, tho CJovernment at home 
 I'esoived, in tlie end, to put thomselvos in a position by 
 which llie iii-iin-eotion could be attacked on tlie one sido by 
 the fleet and in the rear by tho French and their Indian 
 allies. 'J lu> I'ai^li.-sh Cioveiiinient believed what had again 
 and again been said, that, however much tho French 
 dislikeu l']ngland, they dislilced her colonies still more. 
 The policy iijon which the (government had determined is 
 an plain us tnxHulay. 'LMieir i-easons for that ])olicy are 
 equally obvious, and (he ))reamblo to tho (iuobec Act states 
 this explicitly. It says that : 
 
 '* There is a very large extent of country within which there wore 
 several culonie? and Hettlements who claimed to remain there under tho 
 faith of the Trt'aty of Pariti, who were left without any provision being 
 made for the administration of civil government, &c." 
 
 We have hero a distinct indication of tho purpose of tho 
 Act. It was to provide a Civil Government for tho French 
 settlements which were not provided for by tho proclama- 
 tion of nb'3. As tho Quebec Act was carried through tho 
 House of Lords it extended the boundaries of the old 
 Province in this way: 
 
 " All tho said territories, island and countries heretofore a part of the 
 territory of Canada, in North America, extending southward to the 
 banks of the River Ohio and westward to the banks of the Mississippi, 
 and northward to the southern boundary granted to the Merchants 
 Adventurers of England trading to Hudson's Bay, &c., are hereby, 
 during His Majesty's pleasure, annexed to and made part and parcel of 
 the Province of Quebec aa created and established by the said royal 
 proclamation." 
 
 When the Bill reached tho House of Commons two objec- 
 tions were made to it. Tho one was that they admitted in 
 this Bill that the territory which they proposed to annex 
 had formed part of Canada, which they had denied in their 
 controversy with France ; and tho other was, that they 
 might embrace in such an indefinite description portions of 
 
85 
 
 I tliird 
 
 B I'lO- 
 
 ii^lish 
 of tho 
 f) VI ay 
 'Pencil 
 ?'ionch 
 , boon 
 In^lish 
 nhitios. 
 as tho 
 iiii^lish 
 nxioutJ 
 0118 of 
 
 home 
 ion by 
 side by 
 Indian 
 1 again 
 French 
 
 more, 
 lined ia 
 icy are 
 t statoa 
 
 ere wore 
 iiider tho 
 ion being 
 
 of the 
 
 French 
 
 oclamar 
 
 u<^h the 
 
 tho old 
 
 art of the 
 rd to the 
 isaissippi, 
 Merchants 
 e hereby, 
 parcel of 
 said royal 
 
 ro objec- 
 nitted in 
 ,0 annex 
 in their 
 lat they 
 rtions of 
 
 Now Yoilv. Thoio was no alLjuipl whutover to vary tho 
 policy of iho (Jovcrnincnt. Thoro was no attcinitt to ^ivo 
 to iho I'roviiico more ro-iti'icteil liniils thati those which iho 
 Govern meat had resolved on. To ineeL the tii.tt olijeclion 
 they sLriiclc out the words, '• hei'etolore a i)art of Canada," 
 and Hubstituted the words, " behni^^ed to the Crown of 
 (Ireat Britain;" and to meet the second objection, they 
 delinod a boundary on thosoutli throii^'heut its wholeextent 
 and described the eounlry by its dir(jcti<)n from this bound- 
 ary to the country limilin^- it upon the north. .Mr. IJurUe, 
 the a^cnt of Xew Yoi'lc, insisted upon havin^• the souLhern 
 boundary deiined. New York li.'id i. eased i) be a chartered 
 Governr.ieut, and had become a Provincial I'-slublishment. 
 A treaty noL long bef >;e had bcjn made witli tiie Indians 
 which made the whole western piirt oi' tho i'rovince an 
 Indian reservation, and it was to jnevent tho western jiart 
 from being included in the I'l'ovineo of (^'K-'^cc that Mr. 
 Burke insisted upon the boundary being laid down U|ion tho 
 south. Virginia claiinod a large sei'tion oi' country north of 
 the Ohio liiver as being within her charter. But the iJill, 
 in ortler to protect licr claim, provided that — 
 
 " N'otliiiifc therohi contained should in anywise effect tiio boundaries 
 of any other colony." 
 
 There is no room to doubt the meaning of this section as it 
 originally stood. It is tho territories, islands and countries 
 that are e.Klended southward, we-^tward and northwai-d. It 
 will be seen, too, that from the wor(i "Mississipi)i" to Lheenl of 
 thin section, except a proviso of oxclu.sion, no change was made 
 in its original form. Now, to what does this word " north- 
 ward" apply. Is it ajiplied to the direction of a boundary 
 line, or is it applied to the general direction of tho country 
 from a boundary laid down upon tho one side to another 
 British possession upon tho opposite side ? To mo it so 'tns 
 plain that it docs not apply to a boundary lino. Tho lirst 
 proposal wan to describe tho country, by describing its ex- 
 tension towards the lour j)oints of the compass, to ascertain- 
 able boundaries, southward to the Ohio, westward to tho 
 banks of tho Mississippi, and northward to tho Hudson's 
 Bay Territories. Now tho only change made in the descrip- 
 tion, is this — instead of an oxteu:;ion in thi-eo directions 
 you have an extension in one. You have a lino drawn from 
 tho Bay of Chalours, which is to mark tho eastern limit, to 
 tho Mississippi, tho western limit, and between these two 
 limits from the boundary so described upon tho south, to 
 tho territories of tho Hudson's Bay Company, tho ter- 
 ritories, island and countries are to bo annexed to 
 tho Province of Quebec, This gives an ascertainable north- 
 ern boundary to tho whole Province. Any other construc- 
 3f 
 
36 
 
 tlon would K ;ivo the wholo of tho annoxod toriltory with- 
 out any I 'uirdary upon tho north, and would loavo tho Pro- 
 vinco oft^uohec with a boundary fixed by tho prochimution 
 of 17().'{. Lot mo mako this further obHorvution. If tho word 
 '* northward "applicH to a limitary line, it must apply toa lino 
 upon the Houth. No other line is Hjpokon of in tho Hoction. Tho 
 words uro, " bounded on the south by a lino." Now, tho word 
 " northward " applies cither to tho countries, territories an 
 islands in which cn^o tho MissisMippi must bo tho boundary 
 upon ilio west, or it applies to tho diraction of this southern 
 boundary line, tho only one niontioncd. Jf it applies to a 
 lino, then this is the construction, that tho territories, islands 
 and ci'iintrios to bo annexed are hounded on tho south by a 
 line wliieli at tij-st extends westwai'd as far as tho Missis- 
 sippi, and from that point to tho Hudson's Bay Territories 
 it extends i\orthward. lion, i^cntlcmen cannot import into 
 this section words which are not there, for the purpose of 
 
 t jiving to it a moaning, which, without them, it will not 
 )oar. The direction of awesicrn boundary cannot bo given 
 in the Act, for no western boundaiy is named. Wo point 
 out the direction of what is set forth, and not of something 
 not mentionotl. We know that the word " westward " des- 
 cribes the direction of tho southern boundary; and tho word 
 "northward, ' if applied to a lino at all, must describe tho 
 direction of this same line continued, because the Act speaks 
 of no other. It is too plain to require argument that 
 a southern boundary, deflected northward, cannot 
 bo a due north lino ; so that, whether this expression refers 
 to the direction of the country, or to the direction of a 
 boundary line, it cannot mean a line running directly north. 
 To my mind the language of the sectioji is perfectly plain. 
 Tho phai of description in the section is easily understood ; 
 and if a long and parenthetic clause had not been intro- 
 duced, to describe the southern boundary, the mcan'^'r 
 could never have been mistaken. I have already poinicii 
 out that if the wo.id " northward " is applied to the direc- 
 tion of a lino, instead of to the direction of tho whole country 
 from a given base, the Province of Quebec, under the Act, 
 from Lake Nipissing westwaid, would bo left without any 
 boundary upon llie north Now, you have, in a matter of 
 doubt, this rule of consti action, when one interpretation 
 would leave an instrument imperfect or defective, and 
 another would make it perfect, the latter is to bo preferred ; 
 fio that, if there is doubt, tho construction which will give 
 you a boundary upon the north is to be preferred to that 
 which leaves the country on the north wholly undefined 
 1 might let this question rest upon this rule of construe 
 tion ; but I will eay further, that another rule of constru" 
 tion is, you must interpret a law eo as to give effect to the 
 
37 
 
 try with- 
 
 tho Pro- 
 Itunution 
 I ho word 
 y toa lino 
 Aon. Tho 
 tho word 
 itorioH an 
 l)()uiidary 
 1 Houthorn 
 ilios to a 
 3s, islntuls 
 MJlh by u 
 lio MlNwis- 
 orritorioH 
 ipoit into 
 urposo of 
 
 will not 
 L bo given 
 Wo point 
 omothing 
 ard " dcs- 
 1 the word 
 icribo tho 
 Let speaks 
 nont that 
 , cannot 
 Mon refers 
 tion of a 
 •tly nortli. 
 
 tly plain, 
 dornlood ; 
 eon intro- 
 
 raean" j 
 y poiniuvi 
 tho dircc- 
 lo country 
 ir the Act, 
 thout any 
 
 matter of 
 rprotation 
 ctivc, and 
 preferred ; 
 
 will give 
 red to that 
 undefined 
 i" conwtruc 
 ' coiifetru'^ 
 [feet to the 
 
 intention ol" rnrliamont. What was tho inlontion of Parlia- 
 ment in this casc'? It in stated in tho Act itHolt ; it says tho ob- 
 ject in to einbraco, in tho Province of (iuobcc, "all tho Frorxrh 
 colonics and HottlemontH iti British North America who had 
 boon heretofore loft without any civil government." Tho 
 numbjr without civil govornrnent wore 4,<)1.*{. If a merid- 
 ional line wore made tho bouiulai-y, 2,ti00 of this popula- 
 tion would have still boon loft without civil government. 
 By following tl Mississippi i II tho French (tolonios and 
 Bottlemonts are included in tho Province of Quebec. Tho 
 puiposo of tho Act is acicomplishod. Hy drawing a due 
 norlli line more than half of thorn ni'o excluded; tho pur- 
 pose of tho Act is dofoatod. This, too, taken by itself 
 would be sulHciont to dotormiiio tho proper constiuction. 
 Then it is also a recognized imiIo that when a natural boun- 
 dary is reached, it is Lo bo followed unless thero is an ex- 
 plicit direction to the contrary; in other words, natural 
 boundaries are preferred to artificial ones. The Mississippi 
 is a natural boundary, it was also an international boundary, 
 and it is to bo ])roforied to an astronomical line. Tho word 
 ** northward" embraces tho whole sector of u 
 circle, that is, any direction between north-west 
 and north-east; if there is no reason for ])refei'iirg ono 
 point of the compass to another within this sector, then 
 tho middle must bo taken ; but if there is, no matter how 
 slight, tho direction will bo varied witliin those limits 
 accordingly. Now, wo have seen that tho contro of this 
 sector, here, is a due north line, and we have, as reasons for 
 departing from this lino, lirsl, a natural boundary is reached. 
 We begin at tho Mississijipi Kiver. Second, it is rocjuired 
 in order that tho purjiosos of tho law shall not be defeated. 
 And third, this Act diilors from an ordinary SUituto in this 
 — that it is an Act oj State, and reasons of State must be 
 given duo weight in its construction. Now let us remember 
 this fact, that tho Mississippi Jliver was tho boundary 
 between the possessicns of England and of Spain. Can it 
 bo supposed for one moment, that Parliament would have 
 ju'ovided a Government extending tho territories westward 
 for a thousand mi los, to tho very borders of tho Spanish 
 possessions, to tho international boundary at ono point — 
 Avilhin sight of several important colonies and settlements 
 — and yet so draw the boundary lino, as to leave those 
 colonies and settlements without a Government ; leave 
 a strip of country several hundred miles in length 
 and, in many places, not lifty miles in width, wholly 
 without any established civil authority. Such a supposition 
 is possible in conception, but it is not reconcilable with 
 reason, and, therefore, not reconcilable with law, especially 
 tho institutional law of the Empire. 1 hav c 
 
38 
 
 Qiiobec Act is not an ordinary Stalufo, regulating the acts 
 ot private individuals. It is a great Act of State, established 
 by the HU})renie authority, niailcing out limits within which 
 a Government is to be establihhcd and over which it is to 
 exercise authority. The gi'eat officers of State have con- 
 strued the lav,% The King, under the advice of his law 
 office! s and Ministers, declared the boundary upon the west 
 folhnved the Mississippi llivor to its source. When a largo 
 section of this Province wis ceded to the United States, and 
 it became necessary to issue a new Commissioii to the Gover- 
 nor of what remained still British territoiy, the new bound- 
 ary upon the south wms again declared to extend westward 
 to the Mississippi River. I refer to these Commissions to 
 show you how the King and his advisers interpreted the 
 law. I shall say no more U]ion the subject of the 
 western boundarj', I have saitl enough to show you 
 that from the confluence of the Ohio northward 
 to its source the Mississippi was the boundary 
 of Quebec upon the west. Before proceeding to indicate 
 the northern limit it will be neccssar}' to learn something 
 of the dominion of the Iludcon's Ba}' Company. If the word 
 "northward" in the Quebec Act is m:ule to refer to a 
 limitary line, then that line is cai-ricd to the Hudson's Bay 
 Company's possessions, and it there stops. No boundary 
 upon the north is laid down bctAvecn this point, wherever it 
 may be, and the southern shore of Lake Nipissing. Quebec 
 would still be bounded upon the north by a line drawn from 
 the source of the St. John IJiver to the southern shore of 
 this rke, and there Avtjukl I'cmain, south of the possessions 
 of llio Hudson's Bay Company, and north of Quebec, a very 
 large extent of country which was never transferred to 
 Canada until effect was given to the proposal which I had 
 the honor to submit to Parliament in 1878. I might, for the 
 purpose of showing that this construction was never put 
 upon the Act, refer to the separating line by which Quebec 
 was divided. The extension of this line shows that there 
 was a boundary upon the north. The Hudson's Bay Com- 
 pany received from the King a charter which professes to 
 do two things, to give and grant to the Company the solo 
 trade and commerce of all those seas, straits, baj's, rivers, 
 creeks and sounds in whatsoever latitude they shall be that 
 lie within the cnlrance of the straits commonly called 
 Hudson's Straits, together with all the lands and territories 
 uj)on the countries, coasts and confines of the seas, bays, 
 lakes, rivers, creeks and sounds afoi-eaaid, that are not 
 already actually possesocd b^' or gi'anted to r.ny of our 
 subjects or possessed by the subjects of any other Christian 
 Prince or State. 
 
 "And tbaL tlie Fiiiil lands t)f> from thenceforth reckoned find reputed 
 as one of our plantatious or colonies in America, called Rupert's Land; 
 
33 
 
 ig the acts 
 established 
 thin which 
 lich it is to 
 have con- 
 of his law 
 )n the west 
 ben a largo 
 States, and 
 the G over- 
 new bound- 
 l westward 
 missions to 
 pretcd the 
 [»ct of the 
 show you 
 northward 
 boundary 
 to indicate 
 something 
 If the word 
 refci- to a 
 id son's Bay 
 > boundary 
 wherever it 
 Quebec 
 Irawn from 
 srn shore of 
 possessions 
 bee, a very 
 isforred to 
 lich I had 
 [jht, for the 
 never put 
 ich Quebec 
 that there 
 Bu}' Com- 
 :)iofo-se8 to 
 ny the sole 
 iij's, ris'ers, 
 lall be that 
 )nly called 
 1 territories 
 seas, bays, 
 at are not 
 {;ny of our 
 r Christian 
 
 nnd reputed 
 ipert's Land; 
 
 and, further, we do by these presents, for uS; our heirs and successors 
 make, create and constitute the ?flid Governor and Company for thetimo 
 being, and their successors, the true and nbjolute lords and proprietors 
 of the same territory, limits and places aforesaid, and ot all other their 
 premises hereby granted as aforesaid, with their and evt^rj' of their 
 rights, members, jurisdictions, prerogatives, royalties, appurtenances, 
 whatsoever, to them the said Governor and Compiiuy and their suc- 
 cessors, as of our manor of Eist Greenwich, in our County of Kent, in 
 free and common soccape, beside tlie land so granted and beside the 
 privilege of trading, and from the limits and places iitoriSii'd. The 
 charter goes on to say that they are to enjoy the whole and entire trade 
 and traffic to and from all l.aveas, bays, creelcs, rivers and seas into 
 which they find entrance or passage by water or land, out of the terri- 
 tories, limits and places aforesaid, and to and with all the natives aud 
 people inhMbiting within the territories, limits and places aforesaid, and 
 to and with all other nations inhabiting any of the coasts a^j icent to 
 the said territories, limits and places which are not granted to any of 
 our subjects." 
 
 Now, there are two things spoken of: there are "the 
 lands and seas ct)nveyed in foe simple, with t!ie right of 
 exehise ti ado, " and there is " the whole nnd entire trade of 
 other seas and waters, and vviih nations iiihiibititig the 
 coast adjicent to the said Ten itories. " Wo havo these two 
 enquiries: which lands within the Bti-aits of Hudson 
 were convoyd in fee simple by this charter, atssuniiiig it to 
 be valid, and which lands Ho upon coasts adjacent to the said 
 Territories, and ot which no conveyance was made, but over 
 which a right of exclusive trade was gianted ? It is 
 woithy of observation that the Hudson's Bay Company 
 have lor H long time so inierpretid their charier as to 
 leavo no country upon which the second provi>ioii could 
 operate. Thoir claims of tei'ritory granted lias grown 
 luiiior by degrees, until not only the whole coasts of Hud- 
 son's Bay, but also the whole basin drained into the bay has 
 been ab.^oibod. The grant in their charter to the property 
 in the soil, has swallowed up all other jirovisioiis, us the rod 
 of Mr es swallowed up the rods of the Egyptians. We have 
 severul (juestions toconsiiler in order to arrive at a correct 
 conclusion as to the boundaries ol the Hudson's Bay Com- 
 pany's possessions, (yould the Kin-r grant the territories 
 not in bin possession ? It this queslicjii is an-^werod in the 
 affirmative, could he make a gtanl ihaL would stand in the 
 way of any other monarch acquiring posso^.sion and sov- 
 eieignty over any portion of the counuy so granted ? The 
 grant iutelf professedly excludes : 1st, any portion of tho 
 country possessed by any British subject; 2iul, any 
 territory granted to any British subje-t; luid 3rd, 
 any territory possessed by any othur Chiistiau 
 Piince or State. H has been argued that tho 
 Kitr' could not make a valid grant, becau.-e the countiy 
 was not in his possession at the time the grunl was made. 
 When the French Govern mont pointed oui to the English 
 that the French King had many years before granted a 
 
40 
 
 charter to his subjects of the stirae country, the Hudson's 
 Bay Conq)any replied that lie could not make a valid 
 grunt. The maxim ?u'if»o dat quod non habet applied. I do 
 not care to dif<cu.»s just now iho question of the validity of 
 the gram. There can be no doubt of this, that no title 
 passes by such a grant until the sovereignity of the country 
 is acquired. We must look at the object and policy of 
 such grants in order to understand their elfoct. They v\rere 
 invariabl}' accompanied by a grant of political authority; 
 and the jMivato right of pioporty was always held subordi- 
 nate to the public trust which accompanied it. The policy of 
 making thei^ie grants began with Henry VII and were 
 continuetl until the time of George II. In many cases 
 they were powers ralher than grants of property 
 already in the possession of the Crown. Where theCrowa 
 had not already the sovereignty of the country these 
 grants, in form, profess to convey very extensive tracts of 
 countr}' ; but they were held not to convey more than the 
 parties to whom the grant wus made succedcd in reducing 
 to possession. The law and the usage have been so well 
 c>tabli.-hed with regard to those formal grants, that I need 
 but refer to a lew instances to su-stain this principle. In 
 the time of Ilonry Yll, in 1495, the King granted a char- 
 ter to John Cab. >( empowering him or his deputies to sail 
 iiiio the eastern, western or northern sea to search for 
 islands and counii ies betbre unseen by Christian people; to 
 affix the banner of England on any place that ho or thoy 
 might discover, and to possess and occupy the country so 
 discovered as the vassals of the English Crcnvn. The pa- 
 tcjit was one by which Cabot was to acquire a paramount 
 title for his mastoi- and a lordship for himself. At the time 
 America was discovered feudal usages still strongly marked 
 the political and social structure of western Eurone. England 
 had rec<nitly held extensive posset^sions in France connected 
 with her accoiding to feudal princij)les. Ireland and Wales 
 woie subordinate Governments, and within England her- 
 self there were several Palatine counties which suggested the 
 method bv which the dominions of the King were to be ox- 
 tended. Cabt)t sailed along the coast of North America 
 from oG° to 'dS° north latitude. He made no settlement, 
 and his jtatent was not held to hove conveyed to him any- 
 thing. Elizabeth, in 1578, granted a charter to Sir 
 Humphrey Gilbert. By it he was authorized to discover 
 and take possession of all remote and barbarous lands ia 
 North America not occupied by any Christian Prince or 
 people. iJut this was not held to rest in him the whole of 
 the unsettled portion of North America, but so much only, 
 as he secuied to his Sovereign by soitlementand dominion. 
 Under th.s charter ho took formal possession of Nowfound- 
 
 fl 
 
41 
 
 were 
 
 land in the name of the Queen. He and hia associates en- 
 deavored to cany out the objects of the charter. Ho 
 failed ; and he was not regarded as having any right of 
 property in the Island, in consequence of this giant. The 
 grant which was made to tlio Plymouth Company and to 
 the London Company, extending from the Atlantic to the 
 South Sea, were not supposed to convey to tliom more 
 territory than thoy reduced to possession. 'Now York, 
 which was patented to the Duke of York, lay within the 
 limits of the country formerly covered by the 
 charter of other parties. The principle which 1 have 
 stated shows that the title of those parties was not so much 
 the patent from the Crown as their arms and their mer- 
 chandize ; and we must look, not to the charter, but to what 
 they accomplished under it, to ascertain what thoit- title 
 was, for it is not simply the extent of territory which they 
 claimed, but Iho extent of dominion which they secured for 
 the Crown by their oneigy and enterprise, that wo have to 
 consider. The lludson's Bay Company had upon the shores 
 of Hudson's Bay at the time their charter was grunted but 
 one post. Fort lluport,on Eupert Kivor. The King's patent, 
 I suppose, may have conveyed to them this post with a rea- 
 sonable area of territory within its vicinity. What more 
 they acquired down to the time that their possessions were 
 seized by France must be detormiuod by a careful consider- 
 ation of what they did and of what was done by France. I 
 deny altogether that the King could convoy to thorn by this 
 charter a title to territory which was not only at the time 
 not in possession of the Crown, hut of which the company 
 before the TroJity of I\3\swlck had not reduced to possession. 
 From 1(J1)7 to 1713 the country along the coasts was 
 in the possession of Franco. It was not })ossible, 
 after this period, for tho Comptmy to acquire 
 any fresh dominion on their own behalf. iVll the 
 country which they had ovor held looking towards Hudfeon's 
 Bay was to be restored and no more. What thoy had held 
 then at any time before l(Ji)7, was ever after tho extent of 
 heir possessions. Their grant was a grant wiliiin the 
 >; raits of Hudson. They claimed it as extending from 
 <rrinim'ngt()ii Island to Lake Mistassin. Before the Treaty 
 of Utrecht, thoy made no claim to the ownership of the 
 country south of the Bay. Thoy were content with a claim 
 to the exclusive trade. 
 
 Mr, 
 
 gontlom 
 
 BANNIOIIMAN. I would like to a>k tho hon. 
 if this Treaty of Utrocht that ho is talking 
 about was not later than that? 
 
 Mr. MILLS. W^hat I stated a moment ago was a ])ropo8i- 
 tiou of the Hudson Bay Company. It was accordance with the 
 
42 
 
 line drawn upon the map. Tlio instructions of tho English 
 Commissioners wore also in accordanco with a similar line. 
 Tho opinion given by Sir Arthur Pigotf, Mr. Spankio, and 
 Mr. Brougham, is a most carefully considered opinion. Thoy 
 say that llio grant was not intended to comprehend all the 
 lands and torrilorios that could be approached through 
 Hudson's Strait?j; that it is limited by its relation and 
 
 froximity to tho Straits; that it is not a grant of all tho 
 ands and territories upon tho countries, coasts and confines 
 of the seas and rivers within tho Strait, to an indefinite 
 extend<Hl distance. Still less is it a grant of all tho lands 
 lying between tho seas, straits, rivers, &c., hundreds of 
 miles away from the Straits. There is a point stated in tho 
 opinion of Mr. Ilolroyd which is of vital consequence in 
 the consideration of this question, and which has been 
 wholly neglected by those who are woiking to u])hold the 
 authority of tho Hudson's Bay Compan}'. Thoy assume that 
 the whole country mu!?t belong to tho Hudson's Bay Com- 
 pany, unless it was previously held by tho French King. 
 Wow, that is not the fact. If tho doctrine, which 1 bave 
 already stated as the policy of those charters, is well found- 
 ed, then tho charter given to tho Hudson's Bay Company 
 could no more stand in the way of the French sulisoquently 
 acquiring dominion, than tho former charter, given by tho 
 King of Franco, could pieventtho Knglish roducini'; any ])art 
 of the coast to a British posses^ion. .Mr. Holroyd says tho 
 charter will include all the country within tho grant not at 
 the time actutdly ])Ossessod by the subjects of any foreign 
 Prince, and which liave not been subsequently j)()se>so(l by 
 any foieign State previous to actual or virtual possession 
 being taken unler tho charter. The charter could not convey 
 the North- West Territories until iho Comjiany had actual or 
 virtual possession of them on behalf of themselves or the 
 Crown, and so as, by the lawof natioiH,tovest the Sovereignty 
 in tho Crown. It could not staml in the way of France extend- 
 ing her d)minion over this cinuitry. The charier to the 
 Ijondon Company extended from tho Atlantic to tlie Pacific, 
 but whoever heard of that that charter ])ivvcnted Spain 
 from extending hei- sovereignty over Nurtliern Mexico, 
 or Fi'anco fi-om jicquiiing ))ossession of lioui^iana? 
 Who will undertake to show the boundaries of Viiginia by 
 looking to tho charter by which t!io Old Dominion was first 
 constituted? It is absuid to do ^o, Norih Ameiica was 
 open to all Europe to acquiry. Each nation might under- 
 take to cstj.blish its Sovereignty ovv any portion of it, in 
 confornity with the law and usages of nations. Any mon- 
 arch might say to a number of his subjects : " 1 will giveyou 
 an exclusive charter to the whole continent, between certain 
 parallels, subject to rights already acquired by other of n.y 
 
43 
 
 English 
 lar line, 
 kio, and 
 1. Thoy 
 1 all Iho 
 through 
 ion and 
 
 all tho 
 confines 
 idefinito 
 10 lands 
 lieds of 
 J in tho 
 lenco in 
 as been 
 hold tho 
 line that 
 ay Com- 
 h King. 
 I 1 have 
 !1 foiind- 
 )m|)any 
 ;'qnontly 
 
 by tho 
 iitiy part 
 says tho 
 nt not at 
 y' foreign 
 o.>sod by 
 Dssession 
 it cotwcy 
 actual or 
 s or the 
 eroignty 
 oextend- 
 r to tho 
 i Pad lie, 
 I'd Spain 
 .M^'xico, 
 mi^iana? 
 giriia by 
 was tirst 
 lica was 
 it under- 
 of it, in 
 Lny mon- 
 I give you 
 (n certain 
 er of n.y 
 
 subjects, subject to rights already acquired by another 
 Prince and another people." But while he excepted, as he 
 was bound to do, vested interests, his charter had no force 
 against subsequent settlement within these limits bj'' any 
 foreign Government. Another Prince might give a charter 
 of exactly tho same character to his own peoj)lo either 
 before or after; and if, under that charter, his subjects did 
 not enter upon territory in actual or virtual possession of 
 another State, they were acting within their rights. Fi-ance 
 was as free to take possession of the North-West against 
 the charter of the Hudson's Bay Company as she was to 
 take possession of Louisiana within the chartered limits of 
 Virginia. By the Law of Nations a title by discovoiy is an 
 imperfect title; a title recognized by cou'-'o-y, hy forbear- 
 ance, and it must, within reasonable time ho stipported by 
 possession in order to make it valid and to <>-ablish tho 
 sovereignty of the discoverer. This is the docl ine of Eng- 
 land. It was asserted in the time of l^'lizabcth. It was 
 asserted by England in reference to her disputes with 
 France relating to their possessions in !Norih America. 
 Mendoza, the Sj)nnish Ambassador, when he roriotistrated 
 against the expedition of Drake, was told by Elizabeth : — 
 
 "That 3he did not understand why her subjects or those of any other 
 European Prince should be deprived of the traffic in tlie Indies ; that as 
 she did not aclcnowledge the Spaniards to huve any right l>y iti" dona- 
 tion of the Bishop of Home, so she knew no right that they liad to any 
 E laces other than those they wore in actual possession of F>)riluit their 
 aving touched here and there upon a coast and given iiaiui's tj a few 
 rivers and capes, were such insignificant things as c<)uld in no wise en- 
 title tliein to a proprietary further than in parts where they actually 
 settled and continued to inhabit." 
 
 The Lf)rds of Trade deny that the mere grnnt of a charter^ 
 without possession, can be odmitted as having any force. 
 In a communicaiinii to the King in 1721, thoy say that — 
 
 "A charter without posseesion can never bo allowed to change the 
 property in the soil." 
 
 And they point out that the French are now seelcing to ex- 
 tend their teiritory by the erection of forls instead of 
 relying upon tlieir charters. In tho year 1719 Commission- 
 ers were appointed to settle the boundary agreed U])on under 
 the Treaty of Utrecht, and they were sj)ecially instructed- - 
 
 "In wording such articles as shall be agreed on with a Commissary of 
 His Most Christian Majesty upon this head, that the said boundaries be 
 understood to regard tlie trade of tho Hudson's Bay Comjiany only; that 
 His Majesty does not thereby recede from the right to any lands iu Am- 
 erica not comprised within the said boundaries; and that no pretension 
 be thereby given to the French to claim any tracts of land in America, 
 soathward or Boulh west of the siid boundaries." 
 
 This statement is as explicit as it can well be, that tho 
 boundary lino which the Government proposed to draw 
 
•»•* 
 
 under tho Treaty of Utrecht, was not to bo a lino separat- 
 ing tiio dominions of England from thoHO of Franco, but a 
 lino relating to tho trade of each with the Indians. Tho 
 English Government took, in fact, this position that the 
 country between the settlements of Canada and those of 
 Hudson's Bay was still an unoi-cupiod wildorneos, one 
 which was still not so far possessed by either as to be under 
 its dominion, and that this question of dominion was one to 
 be settled by the energy and enterprise of Frenchmen and 
 of Englishmen in the future. Now, with this rule before 
 us, as to tho means of acquiring and extending sovereignty, 
 let me look at the facts dealt with by the Treaty of Utrecht. 
 By the tenth article of that Treaty the King of France 
 agreed to restore to tho King of England, to be possessed in 
 full right forever, tho Bay and Straits of Hudson, together 
 with all lands, !><;i coasts, rivers and places situate in tho 
 said Bay and Siiaits, and which belong thereunto. No 
 tracts of land or ot sea being excepted which are at present 
 possessed by the subjects of France. It is agreed on both 
 sides to determine within a year, by Commissaries to be 
 forthwlih natned by each party, the limits which are to be 
 fixed between the said Bay of Hudson and the places apper- 
 taining to the French ; which limits both the' British and 
 French subjects shall be wholly forbidden to pass over, or 
 thereby to go to each other by sea or by land. These are 
 the provisions of the Treaty of Utrecht which relates to the 
 surrender of the country in the vicinity of Hudson's Bay to 
 the Engli.'^h. Was this to be a division relating simply to 
 trade, or was it a division relating to the sovereignty of the 
 country? I jsliuU assume that the parties to the Treaty 
 intended that tho sovereignty of the country should bo 
 divided and that the surrender to the English was a sur- 
 render of tho sovereignty of the shore of Hudson's Bay, and 
 I shall undertake to show that the places retained by Franco, 
 called in the treaty places appertaining to tho French, were 
 north of the watershed, and the boundary was to be a line 
 drawn between thorn and the English places on the shore 
 of the Biy. The French plenipotentiaries at tirst objected 
 to this clause of the treaty, because it might receive a more 
 comprehonsivo moaning than the parties intended. Mr. 
 Prior, in writing to his Government, said: 
 
 " A3 to the limits of Hudson's Bay Company, and what the Ministry 
 here seem to apprehend, at least in virtue of the peneral expression, 
 tout ce que I' Anylelerre a Jamais posseii de ce cote Id, (which they assert 
 to be wholly new and which I think is really so since our plenipoten- 
 tiaries make no mention of it) may give us occasion to encroach at any 
 time upon their dominions in (Jauada, 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 theirs, there was no very 
 great Iticreuce, and tUi,t the parties who determine that difference 
 
or 
 
 45 
 
 must be puided by the same carte, I thought the article would admit 
 of CO disputes." 
 
 Now this letter assists us in rightly interi)i'eting the tenth 
 article of the Treaty of Utrecht. It sliows tluil the French 
 wore afraid that the English might clnim under the cxpi'es- 
 Bion,*'all that England ever possessed on that coast," a part 
 of their dominions of Canada. They were not nfi-aid that 
 the English would cross the watershed ; but they were 
 afraid that the country between Abbitibbi and the Bfiy ; 
 between their ports upon the Albany and tlic Buy, ancl 
 other sections ot the country which tho French held as part 
 of Canada and the shores of the Bay, would bo claimed by 
 the English. The plenipotentiaries had before them a map 
 by which those who determined the dift'erence, were bound 
 to be guided. They were not to draw a lino nearer to the 
 Bay than that drawn by the French, nor further away than 
 that drawn by the English, Mr. Prior tells us that there is 
 no great difference between those lines. The line drawn by 
 the French is described as follows: — 
 
 "The line of separation should commence at Cape Bouton, pass 
 through the middle of the territory which is between Port Rupert and 
 Lake Nemiskaw, of which P6re Albanel Jesuit and Mr. De Bt. Simon 
 took possession in the name of the Kin^ in 1672, follow at the same dis- 
 tance from the Bay along the eastern side in sucli manner as to divide 
 in the middle the territory between the Lake of the Abbitibbis and 
 Fort Monsipi or St. Louis, continuing aX a similar distance from the 
 shores of the Bay at the western side until beyond the river of St. 
 Therese and Bourbon." 
 
 Capo Bouton is about the 61° of north latitude. The lino 
 drawn by the English was from Grimmington Island in 
 58J° north latitude, south-westward to Lake Mistassan ; be- 
 yond this no line is described. When the negotiations were 
 opened in 1*719 the English Commissioners disregarded 
 their instructions, and demanded that the line should com- 
 mence upon the coast 2° farther south, and should be con- 
 tr "M to the 49th parallel. The negotiations came to 
 nothing, nor was it expected they would. The linos upon the 
 map by which the Treaty of Utrecht was to bo interpreted, 
 were wholly disregarded in the English demands. 
 Mr. Pultney, in writing to Secretary Craggs, admitted that 
 he never expected any success, that the French view were 
 opposed to the English ; that their interests were directly 
 opposite ; and that the French know that they (the Eng- 
 lish) were prepared +o reject all their demands. If wo look 
 at the settlements, or trading ports, it becomes pretty clear 
 that the line which it was proposed to draw, was a line 
 similar to that drawn by the Treaty of St. ^Petersburgh 
 npon the western coast, a line which would leave to the 
 English a moderate extent of country in tho vicinity of the 
 bay for the protection of their post, but which would 
 
46 
 
 not onci'oacli upon tlio French posts in tho interior. 
 Tlio lino wns ono which neither was permitted 
 to cross for tho purpose of trade, but which 
 was not inleudod to interfere with (he freed 'm of trade by 
 the Indians, remaining in tho possession of either party. 
 Tho cluu'tor of tho Hudson's Bay Company was put an end 
 to by tlio Treaty of Eyswiclc. Tho restoration of their 
 possessions would not restore to tliem tho franchises or tho 
 rights of property which that charter gav3 thetn. Tho 
 mere possession acquired by the success of arms during a 
 war tlocs not amount to absolute sovereignty, but when it 
 is followed by treaty thoro is a complete change of sove- 
 reignty and the ]Kjlitical rights, tho special privileges and 
 tho right of ])r()i)erty, whicli reposes upon dominion, all 
 go togoLlier. The Iludson's Bay Company claimed of 
 lato years, the whole Basin of Iludson's Bay; but they 
 have noti ventured to conte^t the possession of tho val- 
 ley of the Eed lliver in Minnesota and Dakotn. The Treat}'- 
 of Byswlck tormiuatod ihelr chartei'ed rights. The 
 restoration of the Bay, and the land upon its border, to tho 
 Crown, could not revive tho charter of tho Company. Tho 
 case of the Diiico of Yorl'' is a case in point. A patent had 
 been given to James, of New York, llo governed tho 
 country under it for nine years. I'ho Dutch obtained pos- 
 session of it, and established there a Civil Government. At 
 tho Treaty of Westminister it was restored to the King of 
 England. Tho Duko again claimed the country, but 
 it was held that his i)roprietorship had been cxtinguibhed 
 by the Dutch conquest and Government; and that the title, 
 after restoration, was in the King alone; and a second 
 patent was necessary to give him any title to tho country. 
 Great polilical corporations are, by the Law of Nations, put 
 upon a wholly dilferent footing from private non-political 
 holders. Their riglit of property and their powers of Gov- 
 ernment are inseparable, and they pass away together. 
 "Whatever dominion the Iludson's Bay Company subse- 
 quently acquired was a dominion for the Crown. I will 
 rest content with simply stating this proposition, which, if 
 time permitted, could, I think, bo easily established. In 
 1809, when the ountry on tho east of tho Hivor St. John, as 
 far as tho Labrador shore, was, by an Act of tho Imperial 
 Parliament, again severed from Lower Canada, and re-an- 
 nexed to Newfoundland, it embraced the whole country 
 northward to the Hudson's Straits. It included the whole 
 coast to the 61° of north latitude. So far as I know, the Hud- 
 son's Bay Company never made any protest against this 
 Act, and yet it included a largo section of country which 
 they have always claimed was granted them by their charter. 
 After the Treaty of Utrecht the Hudson's Bay Company had 
 
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 47 
 
 no other claim than that which actual occupation of certain 
 ]K)sts giivo thotn. Thoy Iwid again and again oflbrcd to 
 accept tho Albany Kiver as a boundary. They nay that 
 rivoiP arc more certain and obvious than lines of latitude, 
 and can bo bettor laid down in a wild country. Thoy had 
 at no time bofoie tho Treaty of Utrecht, proposed to extend 
 thoir buundar}'- further southwai'd than Lake Mistassin, 
 which is in tho latitude of James Bay. They proposed that 
 tho French should not come beyond the fiS'* of north latitude 
 or the Albany River on tho west. When the British Gov- 
 ernment hoped to again so obtain a controlling influence on 
 the North American Continent, thoy proposed to establish a 
 groat Province in which tho people would bo governed 
 according to the principles of the British Constitution. 
 The customs of Paris were to be confined to 
 the country cast of tho Ottawa lliver. A boundary 
 line was extended northward to Hudson's ]?ay, and 
 all that portion of Canada to the westward and southward 
 of this line to its utmo><t extent was to bo included in tho 
 new Province. Tho deadly wound which had been received 
 by the loss of the American colo!iies was, by this now 
 establishment, to be healed. It, was tho first slop in begin- 
 ning colonisation anew, by which a great British power 
 was again to bo founded. The description does not say that 
 all Canada is to bo embraced, but all to the westward and 
 southward of tho boundary named, and you have but to look 
 at the map to soe that tlio Alluiny River is a natural boun- 
 dary upon the nortli. The e:vpressioti is not duo west or 
 duo south, but westward and southward. Duo we>t and due 
 soutli are directions which would exclude tho whole penin- 
 sula west of Cobourg to the Detroit Kivor, and on the north 
 the boundary would cross the Albany River at about its 
 middle distance. But tho rule which I have already 
 mentioned makes tho Albany River, as a natural boundary, 
 preferable to an astronomical line, and justified tho arbi- 
 trators in declaring it to be tho boundary. I shall not 
 detain the House longer. I have said enough to show that 
 the course taken by the arbitrators was a i'oason;;blo one. 
 To show that if they erred at all it was in limiting Ontario 
 on the west to tho meiidian of the North-west Angle; 
 to show that in making the award they set forth what 
 they believed to be the true legal boundaries. The Pro- 
 vince of Ontario will stand by that award. She is entitled 
 to do so. What it gave her the law itself gives her, for 
 that award is final and concludes the parties to it. It cannot 
 be repudiated without dishonor. No man will consent to 
 have his property ruthlessly and illegally taken from him. 
 No more will two millions of people. There is not a man 
 from one end of the Province to tho other who does not 
 
48 
 
 know tlint tho Prime Ministor has boon drivon on in this 
 policy of spoilfltion by his Quebec colleagues. They refused 
 to recognize that we are one Dominion, and that tho growth 
 and pronperity of any Province is an advantage to every 
 other part of tho Dominion. They envy us our rights, and 
 they would filch from us a portion of our heritage. I can 
 tell the First Minister that whether the people of Ontario 
 be for his policy of high taxation or whether they bo 
 against it, whether the}' approve or disapprove of his land 
 policy in the North- West, they will disregard all those to 
 protect their Province against robdery to gratify the en- 
 vious. There will bo no two parties upon this question, 
 and the very same feelings and impulses, which make us 
 all one people to resist foreign invasion, will make us ono 
 eepie to resist to tho death Chis attempt at dismem- 
 ermcnt ; and tho man from Ontario who upholds the 
 olicyot'lhe Government, no matter what his views may 
 e on the question of tho Tariff, wil' be regai-ded as an 
 enemy of his Province, and when the day of election comes 
 will receive at tho hands of tho people an enemy's reward. 
 
 I 
 
 OTTAWA : 
 Printed by MacLkak, Rooer Si Co., Wellington Street. 
 
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