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NYPL RESEARCH UiflAaiiS

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3 3433 08174271 4

THE ONTARIO BOUNDARY GONTROVERSY:

LEGAL AND CONSTITUTIONAL-
POLITICAL AND HISTORICAL:

The Proceedings Before The Imperial Privy Counciu

WITH SELECTIONS FROM THE DOCUMENTS IN EVIDENCE,
A SPECIAL APPENDIX, AND

/ AN ELABORATE ILLUSTRATIVE HISTORICAL MAP.

EDITED, WITH CRITICAL AND EXPLANATORY NOTES,

BY

JOHN P. MACDONELL

¥

Of the Ontario Civil Service.

TORONTO :

THE CARSWELL COMPANY (Limited).

1896.

THE

NEW VORK \i
■PUeuc LBlARyy

13153

••• • ' • • • • •

; : •••

• • , •••• •••

••• : ••i ••• ••

V ^' ^f^K

CONTENTS.

PAGB.

Map, historical and geographical, illustrative of the matters in controversy, and of the

argument , (To face page ly

The Special Case referred to the Judicial Committee 1

Argunteut on the question of the validity of the 'Award : —

Mr. McCarthy, Q.C. , of Counsel for Manitoba 3

The Attorney -General of Ontario, of Counsel for the Province 18

Mr. Scoble, Q.C, of Counsel for Ontario 26

Argument on the question of the Boundaries : —

The Attorney-General of Ontario 32, 404

Mr. Scoble, Q.C 125

Mr. McCarthy, Q.C 163

Mr. Robinson, Q.C, of Counsel for the Dominion , 338

Appendix : —

A.—Award of the Arbitrators, 3rd August, 1878 406

[Note, as to the limitation of the Westerly Boundary of Ontario to' the line

of the Lake of the Woods] 406

B. — Deduction of the claims of the Hudson's Bay Company and the French and

English Crowns, respectively, to the regions in dispute 408

C — ^Imperial Order in Council, 11th August, 1884, embodying Her Majesty's

decision 416

D. — Joint Address of the Senate and House of Commons of Canada to Her
Majesty, asking for Imperial legislation in confirmation of the boundaries
as determined by the Arbitrators and by Her Majesty in Council 418

£.— -Imperial Act, 52 and 53 Vict., chap. 28, (1889), confirming such boundaries

accordingly 420

PREFACE — Continued

and minerals and precious metals, and which promises to be one of the richest
gold producing areas of the world, might have been lost to the Province. This
is generally known and acknowledged ; but it is not so generally known or
realized, that whilst the other Governments committed their interests to the
liands of outside counsel, and paid them fees commensurate with the magnitude
of the matter at stake, his services, whether at the bar or in the study — long-
continued and engrossing, and involving, moreover, the abandonment of a
lucrative professional practice — were wholly gratuitous.

The work should be of interest to the public at large, but of more
especial interest to every student of Canadian history., ranging, as the discussion
does, over the whole period as well of the French occupation as of the
British.

To the professional man it should prove a useful work of reference, as
embodying, with the history, the legal and constitutional principles applicable
to this interesting subject.

The copious notes, critical and historical, illustrate and add to the interest
of the text, and enable even those who may have had no previous acquaint-
ance with the subject to apprehend the bearing of the various points in
argument.

TOBONTO,

June. 1896.

Arctic ivtopc dn thv North ojoi N^rib-wcot*
4trjoto« thftt ti«rt of %ht T«n1tof7 HWhidftd tl^
m Act, 4i TIuL, i«p. U, FUFported to ti*oiA^

hMl tli« ivfte A«t purported to tnTWfer tOi

tvnitofy cbdmvd tram i>ii*

torto 96,307 Bq. Mtltc

' (p^m^ted area of tlimt part of i

I ftvr&rdo^l t*rriton' wWoh \t

Wttt of thcr iii«rJ4tjikn of the

norrflneincu ot the Ohio umI

Out^rtG. 1 Sti.CKW ■*

BitimattfJ «pe* of tb&t p«n of

Che laBt'iii#ntioned t^rflliQfl^

which Uff» &rath ttnct Kuit
'J^ of the HtJKht of Land .... T.OOO '*
|vtiiii«t«d itre« of disputed

ittrrttf>ry claimed for Ctnlft*
' befor*AirMd Hft,000

■>^

j tIo b«for« Ai

\xsri t-'h .

\

; r

'. X

^ r

\

THE PROCEEDINGS

f

BBFOBB HBB MAJSSTT*S IMPKBIAL PBIVT COUNCIL ON THE

SPECIAJ. CASE

BESPECTING THB

WESTERLY BOUNDARY OF THE PROVINCE OF ONTARIO.

IN THE PRIVY COUNCIL.

IN THE MATTER OF THB BOUNDARY BETWEEN THB PROVINCES OF ONTARIO AND MANITOBA,
IN THE DOMINION OF CANADA.

Between THE PROVINCE OF ONTARIO, of the one part,

AND

THE PROVINCE OF MANITOBA, of the other part.

SPECIAL CASE

Referred to the Judicial Committee of Her Majesty^' a Imperial Privy Council.

The Province of Ontario claims that the westerly boundary of that province

is either (1) the meridian of the most north-westerly angle of Lake of the Woods,

as described in a certain Award* made on the 3rd August, 1878, by the Honourable

X Chief Justice Harrison, Sir Edward Thornton and Sir Francis Hincks, or (2) is a

line west of that point.

The Province of Manitoba claims that the boundary between that province
and the Province of Ontario is (1) the meridian of the confluence of the Ohio
and Mississippi Rivers, or (2) is that portion of the height of land, dividing the
waters which flow into Hudson's Bay from those which empty into the valley
of the Great Lakes, and lying to the west of the said meridian line."f-

* For the texc of the Award, see appendix A, hereto.

t The Act of Manitoba, 44 Vict., cap. 1, (1881), and the Dominion Act, 44 Vict., cap. 14. (1881), pro-
vide that the easterly boundary of the Province of Manitoba, shall be '* a line drawn due nortu from where
the westerly boundary of the Province of Ontario intersects the international boundary line dividing Canada
from the United States of America." The alternative claim of Manitoba, to the irregular and sinuous
line of the height of land, is not, it will be observed, in consonance with the due north line provided for by
the Acts. The reference of the Case, however, as agreed upon on behalf of the two provincial governments,
to the Judicial Committee, was concurred in and recommended by the Dominion Government, by Order in
Council, of 6th May. 1888 ;*under which also that Grovemment expressed " their readiness to be bound by
the decision of the Judicial Committee." (Joint App., p. 6.)

1 (B.)

/\

THE SPECIAL CASE.

It has been agreed to refer the matter to the Judicial Committee of Her
Majesty's Privy Council, and an Appendix has been prepared containing the
materials agreed to be submitted with this Case for the adjudication of the
dispute. Each and every of the particulars in the said Appendix is submitted
quantum valeat and not otherwise. »

In addition to the particulars set forth in the Appendix, any historical or
other matter may be adduced which in the opinion of either party may be of
importance to the contention of such party ; and (subject to any rule or direction
of the Judicial Committee in that behalf) such additional matter is to be printed
as a Separate Appendix by the party adducing the same ; and copies are to be
furnished at least ten days before the argument.

The book known as the Book of Arbitration Documents may be referred to
in the argument for the purpose of shewing, in part, what materials were before
the Arbitrators.*

It is agreed that in the discussion before the Judicial Committee of the
Privy Council reference may be made to any evidence of which judicial notice
may be taken, or which (having regard to the nature of the case and the parties
to it) the Privy Council may think material and proper to be considered, whether
the same is or is not contained in the printed papers.

The questions submitted to the Privy Council are the following :

(1) Whether the Award is or is not, under all the circumstances, binding.

(2) In ca^e the Award is held not to settle the boundary in question, then
'what, on the evidence, is the true boundary between the said provinces.

(3) Whether, in case legislation is needed to make the decision on this Case
binding or eflfectual. Acts passed by the Parliament of Canada and the Provin-
cial Legislatures of Ontario and Manitoba, in connection with the Imperial Act,
34^5 Vict., cap. 28, or otherwise, will be sufficie^t, or whether a new Imperial Act
for the purpose will be necessary.

O. MOWAT,

Attorney- OeTieral of Ontario.

James A. Miller,

Attorney -General of Manitoba.

* The Book of Arbitrfttion Documents, printed under the title ** Statutes, Documents and Papers
bearinp^ on the Discussion respecting the Northern and Western Boundaries of the Province of Ontario,
including the principal evidence supposed to be either for or against the claims of the Province. Gompiled
by direction of the Government of Ontario ; with explanatory NoteK,"— is also printed in Seas. Papers,
Ont., 1879, No. 81.

The Cases submitted to the Arbitrators on the part of the Province and the Dominion respectively,
together with a report of the argument of counsel on that occasion, as well as the correspondence
and papers relating to the boundaries, of dates from 1856 to 1882, will he found in Sess. Papers, Ont..
1882, ^o. 69.

THE ARGUMENT.

Council Chamber, Whitehall,

Tuesday, July loth, 1884.
Present :

The Riffht Honourable The Lord Chancellor.
The Right Honourable The Lord President,
The Right Honourable Lord Aberdare,
The Right Honourable Sir Barnes Peacock,
The Right Honourable Sir Montague E. Smith,
The Right Honourable Sir Robert P. Collier.

Counsel for Ontario : — Mr. Mow at, Q.C, Attorney-General for Ontario,
Mr. Scoble, Q.C, Mr. Mills, and Mr. Haldane.

Counsel for Manitoba: — Mr. J. A. Miller, Q.C, Attorney -General for
Manitoba, and Mr. D. McCarthy, Q.C.

Counsel for the Dominion Government : — Mr. Christopher Robinson, Q.C,
And Mr. Hugh MacMahon, Q.C

Mr. Mowat. — My Lords, I appear in this ease for the Province of Ontario.

Mr. McCarthy. — I do not know whether your Lordships have considered
who has the right to begin in this case. I appear for the Province of Manitoba.

The Lord Chancellor. — Substantially, the first question submitted is
whether a certain Award is or is not, under all the circumstances, binding. Who
<lenies its validity ?

Mr. Mowat. — The Province of Manitoba.

The Lord Chancellor. — You affirm its validity ?

Mr. Mowat. — Yes, my Lord.

The Lord Chancellor. — I suppose you would say it, prima facie, is
binding ?

Mr. Mowat. — Yes, my Lord.

The Lord Chancellor. — If so, would not it bear upon the person who
disputes its validity to begin ?

Mr. Mowat. — If your Lordships think ri<;ht.

The Lord Chancellor. — Of course, if both of you agreed it was not binding
that would be a different thing.

Mr. McCarthy. — May it please your Lordships, the first matter probably
in order is as to the validity of the award. I would just state, as shortly as I
can, the history of the case, and the circumstances under which the reference was
made to arbitration, and the award was afterwards made by the arbitrators.
In 1867, the Confederation Act was passed, by which the then Province of
Canada was brought into the Dominion, and became part of the Dominion, as
the Province of Ontario as to one part, and the Province of Quebec as to the
other. The Provinces of New Brunswick and Nova Scotia were also made a part

3

ARGUMENT OF MR. M CARTHY, Q.C.

of the Dominion, and provision was made by the British North America Act
for bringing in at a subsequent date the Province of Prince Edward Island^
the Province of British Columbia, and what was known as Rupert's Land and
the North- Western Territory. These provinces or colonies were to be brought in^
and to become a part of Canada as confederated, upon the joint petition of both
Houses of the Canadian Parliament, and subject to the sanction of Her Majesty
in Council. Immediately after 1867, an agitation sprung up in Canada — ii^
point of fact it is wrong to say it sprung up in Canada, because it had
been initiated before confederation — with a view of doing away with the
right of the Hudson's Bay Company, who claimed to be the owners — and I suppose
in point of fact were the owners — of what is known as Rupert's Land. A con-
troversy was entered into on behalf of the Canadian government, continuing the
controversy that had been initiated before confederation, in which it was attempted
to be shewn that the charter to the Hudson's Bay Company, which was made, as
perhaps your Lordships will remember, as early as 1670, was invalid, and at all
events disputing the geographical limit which the Hudson's Bay Company claimed
for the territory granted to them by that charter. Then the Rupert's Land Act
was passed in 1868. By that Act provision was made for settling the dispute
between the Hudson's Bay Company and Canada, so to speak. An arrangement
was provided by which the Hudson's Bay Company's claims could be settled, and
on their settlement it was arranged and provided that Rupert's Land should, upon
the joint address of both Houses of the Canadian Parliament, be added to the
Dominion. That was done in the year 1870. Shortly after that, the Province of
Ontario set up — or desired at all events, that the boundary upon the west, which
had been in dispute I may say since 1818, if not earlier — that the boundary of
Ontario extended to the point, and perhaps beyond the point, which the arbitra-
tors have since determined as being the limit of Ontario on the west. The
Dominion denied that. The Dominion asserted that the Rupert's Land Act
settled the question, and defined the boundaries of Rupert's Land for the purposes
of confederation ; and that whether that Act did or did not settle and determine
that question, at all events it was determined by the Quebec Act of 1774, by
which the limits of the Province of Quebec were fixed. That province afterwards
was divided into two provinces, called Upper and Lower Canada, in 1791. In
1840, these two Provinces of Upper and Lower Canada were again united and
became the Province of Canada, to be disunited at the time of confederation, and
to be the Provinces of Ontario and Quebec. Thereupon, by certain Orders in
Council of the Dominion of Canada on the one side, and of the Province <^
Ontario on the other, it was proposed to refer the question of the dispute as to
the boundaries to the award of two gentlemen, who were named, and who were
to have power to select a third.

Sir Robert Collier. — At this time had Manitoba been taken into tlie
confederation ?

Mr. McCarthy. — Manitoba was carved out of the new territory.

Sir Robert Collier. — You said it was provided that it should be tak^»
into the confederation on the address of the two Houses — had the address of the
two Houses been presented ?

Mr. McCarthy. — It was to be taken in, but not as Manitoba. Rupert's Land
is a much larger country than Manitoba.

Sir Robert Collier. — ^That is my question, whether the address had beeo
actually presented ?

Mr. McCarthy. — Yes ; that was in 1870, and it was in 1874, after these
differences had arisen between the Dominion and the Province of Ontario, thai
Orders were made referring the point. What the Dominion contends for is this —
the Dominion says the award is not binding.

4

QUESTION OF THE VAUDITY OF THE ARBITRATORS* AWARD.

The Lord Chancellor. — I thought you said you appeared- for Manitoba ?

Mr. McCarthy. — 1 should have explained. Manitoba, as originally formed,
-did not come as far east as it does now. It did not touch the Province of
Ontario, as the Dominion claims the Province of Ontario is. There was a con-
siderable space, some 200 or 300 miles, between the western part of Ontario and
the eastern part of Manitoba, as Manitoba was formed. In 1880, Manitoba was
enlarged so that the eastern boundary of Manitoba goes to the western boundaiy
of Ontario.

Sir Robert Collier. — When was it first called Manitoba in Acts of Parlia-
meot ?

Mr. McCarthy. — When it was created, in 1870.

Sir Robert Collier. — Tou said it was called Rupert's Land in the Act of
1870 ?

Mr. McCarthy. — The whole territory belonging to the Hudsons' Bay Com-
pany was called Rupert's Land.

Sir Montague Smith. — First of all, Rupert's Land annexed to the Dominion,
and then Manitoba carved out of it.*

Mr. McCarthy. — Yes. Manitoba, as originally constructed, was west of the
most north-westerly angle of the Lake of the Woods, which is the determining point.
It was west of that as originally constructed, and did not approach on the eastward
what Manitoba now claims to be the western boundary of Ontario. In 1880
Manitoba was enlarged, and the boundary given to Manitoba by the enlarging
statute was that Manitoba upon the east should meet Ontario. Therefore the
question now becomes between these two provinces, Ontario and Manitoba,
although the question, as it was originally fought, was between the Dominion and
Ontario.

Sir MoNTA?.UE Smith. — When Orders in Council were made referring it, had
Manitoba been enlarged ?

Mr. McCarthy. — No. It was after the award was made that Manitoba was
<inlarored and came to the western limit of Ontario.

The Lord Chancellor. — Which boundary line does the question relate to ?

Mr. McCarthy. — The boundary line between Manitoba and Ontario — that is
the western limit of Ontario and the eastern limit of Manitoba.

The Lord Chancellor. — Then at the time the award was made, Manitoba
had no interest in that question ?

Mr. McCarthy. — No.

The Lord Chancellor. — But the Dominion had ?

Mr. McCarthy. — The Dominion had. Perhaps if your Lordships will look at
one of these maps it will assist you [producing inap].'f All this that is marked in
blue is what is claimed as Rupert's Land. This is Hudson's Bay, and this is what
is claimed as being Rupert's Land. The boundary on this side is the Hudson's
Bay, and it was bounded on the south by the Province of Ontario.

Lord Aberdare. — That is, in fact, what was English territory at the time
that the French held Canada 1

*Fir§t, Rupeit*8 Land and the North-Weatcrn Territory, so-called, admitted into the Dominion, with-
out specification of boundaries of either, and named the North- West Territories, and then Manitoba carved
ont ot the same, not out of Rupert's Land alone. (See Imp. Order in Council of 23rd June, 1870, prefixed
to Stots. of Can., 1872, p. Ixiii ; and the Dom. Act^ 32 and 33 Vict., cap. 3, 1869, and 33 Vict., cap. 3,1870.)
8ec. 1 of the last mentioned Act describes the southern boundary of the new Province as runnimg from 96^
W. loner., on the paralell of 49**, ''due west along: the said parallel of 49^ north latitude (which forms a por-
tion of the boundary line between the United States of America and the said North- Western Territory) to
the meridian of 99^ west loneitude." This is, in effect, a legislative declaration of the Dominion that
Rupert's Land did not extend to the international boundary.

t Namely, the map shewing the territories claimed bv the Hudson's Bay Company, under their charter,
appended to tne Report of the Committee of the Imp. House of Commons on the H. B. Co,, 1857.

ARGUMENT OF MR. M CARTHY, Q.C.

Mr. McCarthy. — That will be a good deal in dispute here. My learned
friends on the other side contend for the French view of the case ; we are con-
tending for the English view of the case, and the dispute was between France
and England as to the Hudson's Bay rights.

Sir Montague Smith. — That, I suppose, was fought out before the arbitrators.

Mr. McCarthy. — It was, and it is again before your Lordships.

The Lord Chancellor. — I have a map,* which may not perhaps be
exactly the same as yours. Here is a square block which is coloured yellow, and'
within which there is a smaller block with an orange margin on which Manitoba
is marked.

Mr. McCarthy. — That was the original Manitoba, the small block.

The Lord Chancellor. — Then comes a block to the east, with two lakes in.
it, Lake St. Joseph and another lake.

Lord Aberdare. — What was done with the territory north of that which-
was assigned to Manitoba, between Manitoba and Hudson's Bay ?

Mr. McCarthy. — Your Lordships see it on Johnston's map ]f it shews
that very plainly. The Manitoba shewn there is the enlarged Manitoba.

Sir Montague Smith. — According to what boundaries is Manitoba shewtt
here ?

Mr. McCarthy. — According to my claim — the Manitoba claim.

Lord Aberdare. — Did the award line carry the Ontario province up to the
Lake of the Woods ?

Mr. McCarthy. — Yes, to the most north-westerly angle of the Lake of the
Woods.

Lord Aberdare. — Then, the Dominion, under its assumed power of re-open-
ing the question, assigned to Manitoba a considerable tract of country beyond
that which was given by the award of the arbitrators.

Mr. McCarthy. — That is to say, if the Dominion view was right. They did
not actually set it out by metes and bounds ; they merely said, Manitoba on the
east shall be where Ontario on the west ends. They left that point to be deter-
mined.

Lord Aberdare. — The Dominion drew no line as to the east ?

Mr. McCarthy. — No. They had originally drawn a line as to the east, but
they did not draw a line to the east as regards that.

The Lord Chancellor. — I understand you to admit that the disputed dis-
trict was not within the limit of Manitoba until the year 1880 ?

Mr. McCarthy. — Yes.

The Lord Chancellor. — That at that tim^, according to your view, it was^
within the Dominion and not within Ontario ?

Mr. McCarthy. — That is so.

Sir Robert Collier. — Where was the line of the award ?

Mr. McCarthy. — The most north-westerly angle of the Lake of the Woods.
[The learned counsel explained upon the map.]

Sir Montague Smith. — What does this boundary mean [pointing to a line
on the map] ?

Mr. McCarthy. — That is the original Manitoba. We claim now to this, and
the arbitrators have given this line. [He shews these on the map]. They have
taken the most north-westerly angle of the Lake of the Woods, and then followed
down here [pointing].

Sir Montague Smith. — What do you claim as belonging to Manitoba ?

Mr. McCarthy. — We claim this line here [pointing].

* The Ontario Government map, prepared for this reference, by Stanford, 1884, and the main featnrea
which have been re-produced in the map accompanying this volume.
t Johnston's map of the Dominion.

6

QUESTION OF THE VALIDITY OF THE ARBITRATORS' AWARD.

Sir Montague Smith. — This bit which is coloured.

Mr. McCarthy. — This would be the District of Keewatin : it was originalljr
Keewatin. It would now be Manitoba. The tract in dispute really goes from
that line to this. That part Ontario is not claiming, and did not claim by the
award.

Sir Montague Smith. — Then this dotted line is the award line, is it ?

Mr. McCarthy. — No. It is the water line — the English River and Albany
Eiver line — that is the award line.

Now it may be as well perhaps at this moment to point out the heights of
land, because these will have a good deal to do with the discussion which we are
about entering upon. This is the northern height of land, which forms the line
of the watershed between Hudson's Bay and the St. Lawrence system. It
goes round Lake Superior. This map* shews all the heights of land. And
this is another so-called height of land in this direction,-}* which was at one time
claimed to be the limit of the Hudson's Bay. territory. This then is the other
watershed line which marks the limits of the basin that drains into Hudson's Bay.
The basin of Hudson's Bay was drained by the Albany River, the Churchill River
and the Nelson River. Then, when you go west of that, the Mackenzie River

f[oes into the Arctic Ocean; and then the StLawrence system takes its rise here, and
alls into those large lakes — Lake Superior and so on — and rolls away to the Gulf
ol St. Lawrence. That is the St. Lawrence system. Then, below that, there is
the Mississippi system. Those are important natural landmarks to be borne in
mind, because they were referred to continually in disputes which arose between
the English and French at the earliest times.

Now your Lordships will see the effect of the award was to completely
ignore the right of the Hudson's Bay Company to any territory whatever.

Sir Robert Collier. — We had better see what the award is.

The Lord Chancellor. — We had better first see under what authority the
award was made, and what the award is.

Mr. McCarthy. — I will just point that out to your Lordships before I come
to the contentions we make upon it. In the Joint Appendix, page 7, your Lordships
will see how the matter, was referred. Mr Crooks, who was then a member of
the Government of Ontario, reports to the executive of that Province, in the
document which is set out on page 7,t reciting the Acts of Parliament, and going
on down to about line 20, where the important matter comes in :

** In view of these objects the undersigned, before his late visit to Ottawa on other
public business, was authorized by the other members of Your Excellency's Council to
propose (subject to Your Excellency's approval) to the Grovernraent of the Dominion, that
the question concerning the northern and western boundaries of the Province of Ontario
should be determined by a reference to arbitrators to be mutually agreed upon, and whose
standing and ability might readily be expected to secure for their decision the confidence
alike of the people of Ontario and the people of the Dominion. Your Excellency's
Council were of opinion that a decision by such arbitrators is likely to be more prompt,
and perhaps more satisfactory, than any other mode of decision which is attainable. The
undersigned was also authorized to suggest the name of the Honourable William Buell
Richards, Chief Justice of Ontario, as one of the arbitrators, subject to your Excellency's
approval. Accordingly the undersigned, while at Ottawa, conferred with the Premier
and other members of the Dominion government on the subject of the said matters, and
made the above suggestions to them. The government of the Dominion concurred in the

• Johnston's Physical Map.

t The height of land dividing the waters that pass through Lake Winnipeg from the north from those
that fall direct into Hudson's Bay.

t Hon. Adam Crooks to the Lieutenant-Governor, 10th Nov., 1874, Sess. Papers, Ont., 1875-6, No. 14,^
p. 14.

ARGUMENT OF MR. M CARTHY, Q.C. :

^iews expressed on the part of the Government of Ontario, and proposed on behalf of the
Dominion the name of the Honourable Lemuel Allan Wilmot, late Lieutenant-Governor
^f Kew Brunswick, to act in conjunction with the said Chief Justice, and that authority
be given to the said the Hon. William Buell Richards and the Hon. Lemuel Allan Wilmot to
agree upon a third person to be associated with them, such third person not being a resi-
lient of Canada, and that the determination of a majority of such referees should be final
And conclusive upon the limits to be taken as and for such boundaries as aforesaid
respectively. The undersigned recommends that the Province agree to concurrent action
with the Dominion" — I draw attention to that particularly — " in obtaining such legislation
AS may be necessary for giving binding effect to the conclusion which may be arrived at,
and for establishing the northern and western boundaries of the Province of Ontario in
Accordance therewith."

The Lord Chancellor. — That is in 1874.

Mr. McCarthy. — In November, 1874. Then, on page 8, there is the formal
Order of Committee of Council of the Province of Ontario acceding to Mr. Crooks*
view,* and following that is the report of a Committee of the Privy Council of
Canada :f

" On a memorandum, dated the 12th November, 1874, from the Hon. Mr.
Mackenzie, stating that he recommends concurrence in the proposition of the Government
of Ontario to determine, by means of a reference, the northern and western boundaries of
that province relatively to the rest of the Dominion ; that the Ontario government hav-
ing name the Hon. William Buell Kichards, Chief Justice of Ontario, as one of
the referees, he submits the name of the Hon. Lemuel Allan Wilmot, formerly Lieutenant-
Oovemor of the Province of New Brunswick, to act in conjunction with him, and advises
that authority be given them to agree upon a third person, not being a resident of
Canada—"!

Following the words I have already read :

" He further recommends that the Dominion agree to concurrent action with the
Province of Ontario in obtaining such legislation as may be necessary for giving binding
effect to the conclusions arrived at, and for establishing the northern and western limits
of the Province of Ontario in accordance therewith."

That was the minute of council, and I fancy from the next document which
appears in the case that that was confirmed by the Governor-General It says :
" Approved by the Governor-General." Then : " I am directed to transmit to
you, for the information of your Government, — " that was from Ottawa to
Toronto — the information that an Order has been passed naming the gentleman
who has been appointed arbitrator for the Dominion. Then, on the 21st Novem-
ber, the Under-Secretary of State for Canada writes to Mr. Wilmot 8 informing
him of his appointment, and at the top of page 9, your Lordships will see what
he informs Mr. Wilmot was the matter remitted to him :

" His Excellency the Governor-General in Council has been pleased, at the instance
of the Government of the Province of Ontario, to direct that the question of the northern
and western boundaries of that Province relatively to the rest of the Dominion, be deter-
mined by means of three referees, of whom one is to be named by the Government of the
Dominion, and one by the Government of Oatario, these two to have authority to agree
upon a third, not being a resident of Canada — "

and so on. Then at line 10 :

" I am to add that the Dominion government agree to concurrent action with the Pro-
vince of Ontario in obtaining such legislation as may be necessary for giving effect to the

♦ Order in Council, 25th Nov., 1874. Sees. Papers, Ont., 1875-6, No. 14, p. 14.

t Order in Council (C»n.), 12th Nov., 1874. lb,

X Here comes in, in the ori^nal, the concluding: portion of the sentence : — " and that the determina-
tion of a majority of such three referees be final and conclusive upon the limits to be taken as and for such
4^undarie8 respectively."

§ Sess. Papers, Ont., 1882. No. 69. p. 248.

8

QUESTION OF THE VALIDITY OF THE ARBITRATORS' AWARD.

conclusions arrived at, and for establishing the northern and western limits of the Pro-
vince of Ontario in accordance therewith."

Nothing, I think, happens now until at the foot of the page your Lordships
will find the Act passed in Ontario in 1874.* It recites :

" Whereas by chapter twenty-eight of the Acts of the Parliament of the United
Kingdom of Great Britain and Ireland, passed in the session held in the thirty-fourth
and thirty-fifth years of Her Majesty's reign, and intituled ' An Act respecting the
establishment of Provinces in the Dominion of Canada,' it is enacted that the Parliament
of Oanada may, from time to time, with the consent of the Legislature of any Province
of the said Dominion, increase, diminish, or otherwise alter the limits of such province,
apon such terms and conditions as may be agreed to by the said legislature, and may,
with the like consent, make provision respecting the effect and operation o^ any such
increase, or diminution, or alteration of territory in relation to any province af2ected
thereby — "

apparently shewing that the arbitrators were appointed to fix a boundary
which both the legislative bodies were afterwards to sanction, whether it
increased, or decreased, or altered the true and proper line of the western
boundary of the Province :

" And whereas the northerly and westerly boundaries of the Province of Ontario
have never been determined ; And whereas, subject to the approval of the Parliament of
Oanada and the Legislature of Ontario, it has been agreed by the Governments of the .
Dominion of Canada and the Province of Ontario — "

and it goes on to set out the agreement, which I need not read. Then, the
first clause of the Act is :

" The Legislature of the Province of Ontario consents that the Parliament of Canada
may declare that the boundaries which, by the award of the arbitrators aforesaid, or of
any two of the arbitrators aforesaid, may be decided to be the northerly and westerly
boundaries respectively of this Province, shall be declared to be the northerly and
westerly boundaries thereof, or, in case the award shall be as to the westerly boundary
alone, the same may be in like manner declared by the Parliament of Canada as afore-
said, and that the Parliament of Canada may thereby increase, diminish, or otherwise
alter the northerly or westerly limits of the Province of Ontario so that the same may
be in accordance with the award."

Then, there is provision made for the death or resignation of the arbitrator,
which is not important. This Act was not to come into eflTect until proclaimed,
and as a matter of fact it. never was proclaimed, because the Dominion govern-
ment and the Dominion parliament never passed a corresponding Act. Although
they had agreed, as your Lordships will see by the Orders in Council to which I
have already refeiTed, to concurrent legislation which would give effect to the
decision or opinion of the arbitrators — and that in point of fact was the basis of
the whole proceeding, the whole reference to arbitration — yet the Dominion par-
liament were never called upon by the government and never did pass an Act.
So that the Province of Ontario, although it passed this Act, stipulated in the last
clause that it was not to come into eflTect until the Lieutenant-Governor in Coun-
cil should issue his proclamation ; and he never did issue his proclamation, because
the other parliament had not passed the concurrent legislation which had been
agreed to.

The Lord Chancellor. — The legislation of Canada was to be an eflfective
and practical legislation, but it only could take place with the consent of the
provincial legislature.

•38 Vict., cap. 6, "An Act respecting the Northerly and Westerly Boundaries of the Province of
Ontario.**

ARGUMENT OF MR. MCCARTHY, Q.C.

Mr. McCarthy. — Yes ; that is in pursuance of the statute of 1871.* Then
from 1874 until 1878, nothing appears to have been done, but in July, 1878, an
Order in Council is passed by Ontariof which your Lordships will find at the
foot of page 10, which recites, upon the report of the Attorney-General, that Chief
Justice Harrison had been appointed in lieu of Chief Justice Richards. Chief
Justice Richards had become the Chief Justice of the Supreme Court of Canada,
and then he resigned his position of arbitrator for Ontario, and Chief Justice
Harrison became arbitrator in his place. It also recited the fact that Mr.
Wilmot had died in the interim, and suggested that Sir Francis Hincks should be
appointed as arbitrator for the Government of the Dominion, and Sir Edward
Thornton, the ambassador at Washihgton, as the third arbitrator — to that extent
departing from the original terms of the agreement, which were that the two
arbitrators appointed by the respective provinces should themselves have selected
the third ; but nothing turns upon that. Then, it further goes on at the foot of
the page :

**And also that the Province of Ontario agree to concurrent action with the
Government of the Dominion in obtaining such legislation as might be necessary for
giving effect to the conclusion arrived at by the said arbitrators, and for establishing the
northern and western limits of the Province of Ontario in connection therewith."

That, your Lordships will see, is dated the 31st day of July.

Sir Robert Collier. — The Committee of Council advised the foregoing.

Mr. McCarthy. — Yes ; that is on the 31st July, 1878. On the same day, at
Ottawa, the Privy Council of Canada adopt a con*esponding Order, which is
set out on page ll.J The arbitrators thereupon proceded to hear the matter,
and on the 3rd August the award was made.

* Imp. Act, 34 and 35 Vict., cap. 28.

t Order in CJouncil (Ontario), Approved by the Likutknant-Governor, the SIst day of

July, 1878.

Upon consideration of the report of the Honourable the Attorney-General, dated 30th day of July^
1878, recommending that the Honourable Robert A. Harrison, Chief Justice of Ontario, be appointed
arbitrator in the matter of the northerly and westerly boundaries of the Province of Ontario in relation to
the rest of the Dominion, in the room and stead of the Honourable William Buell Richards, who, since his
appointment as such arbitrator, was appointed Chief Justice of the Supreme Court, and subsequently
resigned his appointment as arbitrator, the Government of the Dominion having named Sir Francis
Hincks one of tne arbitrators in the room and stead of the Honourable Lemuel Allan Wilmot, deceased^
and the Right Honourable Sir Edward Thornton having been named on behalf of the Governments of the
Dominion and Ontario ; and also recommending that the determination of the award of such three arbi-
trators, or a majority of them, in the matter of the said boundaries respectively, be taken as final and
conclusive ; and also that the Province of Ontario agree to concurrent action with the Government of the
Dominion in obtaining such legislation as might be necessary for giving effect to the conclusion arrived at
by the said arbitrators, and for establishing the northern and western limits of the Province of Ontario
in connection therewith :

The Committee of Council advise that the foregoing recommendations be adopted and approved of
by Your Honour.

Certified,

J. Lonsdale Capr^l,
Assistant Clerk, Executive Council, Ontario.

t Report or a Committee of the Privy Council (Canada), Approved by the Governor-
General ON the 31st July, 1878.

The Committee of Council have had under consideration the subject of the northern and western
boundaries of the Province of Ontario, which, under previous Orders in Council, had been referred to the
Honourable W. B. Richards, then Chief Justice of Ontario, named as referee on behalf of that Province^
but who was subsequently replaced by the present Chief Justice, the Honourable R. A. Harrison, and the
Honourable Sir Francis Hincks, who has been named on behalf of the Dominion ; and whereas subie*
quently to the action taken under Order of Council of 12th November, 1874, it was mutually agreed
between the Governments of the Dominion and Ontario, that the Right Honourable Sir Edward Thornton
should be selected as third referee, the Committee recommend that such selection be confirmed by Minute
of Council, and that the determination of such three referees be final and conclusive upon the limita-to be
taken as and for each boundary respectively.

Certified,

W. A. Himsworth,

Clerk, Privy Council, CanadA.

10

QUESTION OF THE VALIDITY OF THE ARBITRATORS AWARD.

Now, your Lordships have the history of the reference, and of the award which
followed upon that reference. The first point that we make is this : We say, as a
matter of fact, all these papers shew that it never was intended that the award
should be binding or effective until concurred in by both legislative bodies. **

The Lord Chancellor. — Was it possible ?

Mr. McCarthy. — We say not. We say it was not possible as a matter of
law, and we say as a matter of fact it was never contemplated that it should be
effective until concurred in by both legislatures.

I will, in pursuance of this branch of the proposition, point out the different
passages which, I think, establish the fact for which I contend, in addition to
those to which I have already referred. The intermediate pages merely state the
ease for the respective parties and the argument before the arbitrators, to which
I think I need not refer at present. Then we come to page 108, following the
award. The Province of Ontario, by an Act passed in 1879*^— the succeeding
session of Parliament — recites :

" Whereas the northerly and westerly boundaries of the Province of Ontario were
not determined until lately ; And whereas, pending the determination thereof, certain
provisional lines, which for certain purposes were to be regarded as auch boundary lines,
were agreed to by the Governments of the Dominion and the Province ; — "

I may just explain that, pending this dispute, and in order that the timber
might be guarded and regulated, a provisional line was agreed to between the
parties, separating the disputed territory. To the east of the line the Province
of Ontario managed the timber, and to the west of the line the Dominion
managed it :

'* And whereas it was agreed by the Governments of the Dominion of Canada and
the Province of Ontario that the true boundaries should be determined by reference to
arbitration ; And whereas one of the arbitrators named in the Revised Statutes of
Ontario, chapter 4, died — "

Then it goes on to recite that. Then it sets out the award. At pas^e 109,
it says:

" And whereas the effect of the said award is to give to this Province less territory
than had been claimed on behalf of the Province, and more territory than the Govern-
ment of Canada had contended to be within the limits of the Province, or than was
contained within the provisional boundary lines aforesaid — ''

Then it again refers to the Imperial Act passed in 1871, which gives the
Parliament of Canada power to alter the boundaries with the consent of the
legislature of any province.

Sir "Robert Collier. — It recites :

** And whereas it is proper that the boundaries determined by the said award be
adopted and confirmed.''

Mr. McCarthy. — Yes ; and then the enacting clause is :

"The Legislature of the Province of Ontario consents that the Parliament of
Canada may declare that the boundaries which, by the award of the arbitrators aforesaid,
were decided to be the northerly and westerly boundaries respectively of this Province,
shall be and are the northerly and westerly boundaries thereof, whether the same increase,
diminish or otherwise alter the true northerly and westerly limits of this Province.*'

The Parliament of Canada never did confirm these boundaries. I was propos-
ing to refer to what I think without doubt indicates that the intention was,
speaking now of it as a matter of fact, that, unless parliament did confirm the

• 42 Vict, cap. 2, ** An Act respecting the Northerly and Westerly Boundaries of Ontario."

n

ARGUMENT OF MR. M CARTHY, Q.C. :

boundaries, the award should not be operative. The following document, at
pUge 109, is a lecture delivered by Sir Francis Hincks, explanatory of the award.*

The Lord Chancellor. — I think that can hardly be evidence of anything,
can it ?

Mr. McCarthy. — There is a good deal, I am afraid, in this Joint Appendix
which is not evidence of anything.

The Lord Chancellor.— The opinion of an individual, though he was one
of the arbitrators, can neither interpret the award nor settle the question
independently.

Mr. McCarthy. — It was thought perhaps to be useful in this way : Sir
Francis Hincks admitted to some extent that the award did not follow the true
line — that it was to some extent a conventional boundary .f

The Lord Chancellor. — It ought not to be brought in if it is not evidence.
That can only be referred to without prejudice.

Mr. McCarthy. — Then I pass on to page 125.

Sir Montague Smith. — You say the Dominion parliament has never cod-
lirmed it. Has it ever been asked to confirm it ?

Mr. McCarthy. — Yes, repeatedly. I am coming to that now. At page 125,
your Lordships will find that on the 31st of December, 1878, the Provincial
Government in Toronto write to the Secretary' of State for Canada. J At line
25 the Provincial Secretary says :

*' I am further directed respectfully to remind the Government of Canada that the
territory which was in dispute before the award was made, extends on the westerly side
of Ontario from, say, the Hooky Mountains to a line drawn due north from the confluence
of the Ohio and Mississippi, and extends on the northerly side from, say, the height of
land to the most northerly limit of Canada ; that the award assigns part of this territory
to the Dominion, and part to Ontario ; and that the administration of justice will con-
tinue to be surrounded with difficulties and uncertainties, especially in the matter of
jurisdiction, until the award is contirmed by express legislation at Ottawa and here ; and

•"The Northerly and Westerly Boundaries of the Province of Ontario, and the Award relating
thereto, as dincuKsed and explained by the Hon. Sir Francia Hincks, K.C.M.G., in his Public Lecture at
the Education Department, Toronto, May 6th, 1881. Toronto: Printed by C. Blackett Robinson, 1881."
This lecture may also be found in Sess. Papers, Ont., 1882, No. 69, p. 414.

t The reference is to the following parap^aph of Sir Francis Hincks' lecture :

" Chargb of Adopting a CJonvknient Link Rkputed.

"The «ole ground for the charfi^ that thty adopted a conventional or convenient boundary is, that the
line connecting the north-eantern and south-western boundaries was ado[)ted for the sake of convenience.
The Arbitrators were guided in their decision solely by Acts of Parliament, Proclamations authorized by
Orders in Council on the authority of Acts of Parliament, and international Treaties. They found in the
Proclamation of 1791, that after reaching Jamea* Bay, the descriptitm jiroceeded thus : * Including aU the
territory to the westward and southward of the said line to the utmost extent of the country commonly
called or known bv the name of Canada.' If the critics of the award believe such language susceptible of
the construction that it lay<» down a precise spot on the north-west as a boundary, then their charge might
have some foundation, but the fact is that the language would have justified the arbitrators in extending
the boundaries of Ontario very considerably. They were strongly urged by Col. Dennis, one of the per-
manent staff [he was Deputy Minister] of the Department of the Interior, after their decision as to the
south-westerly and north-easterly boundaries became known, to connect the two points by a natural
boundary ; and being aware of the fact that the Albany River had been formerly 8uggei«ted by the HudsonV
Bay Company as a satisfactory southern boundary, they adopted it."

Towards the dose of the argument, as will appear further on, the Lord Chancellor alluded to the
subject as follows: "What we gathered from Sir Francis Hincks' document is this, that the arbitrators
having settled certain points on the strictest principle, according to the best of their judgment, then
the person who represented the Dominion said it would be convenient that those points should be
connected by a goodgeographical boundary, and the arbitrators thought the Albany River line was proper
for that purpose. Tnen, finding some indications in previous documents that that view of the Albany
River line had been at one time entertained by the Hudson's Bay Company, it was adopted. I do not think
it is for the Dominion, I must say, to complain of that. I do not mean that they are bound by it ; of
course they are not ; but inasmuch as it was at their instance that that amount of deviation, if it was a
deviation, from the ascertainment of the exact line took place, they can only blame the agent who then
represented them, who asked for it"

:;: Sess. Papers, Ont., 1879, No. 80.

12

QUESTION OF THE VALIDITY OF THE ARBITRATORS AWARD.

that the subject assumes unusual importance in view of the construction of public wprks
within the territory, and the consequent influx of an unsettled and migratory population.
His Honour the laeutenant-GrOYernor will be glad to learn that such legislation as may
be neceiBsary to give effect to the award will be had at Ottawa at the next session of the
Parliament of Canada, as the legislation should, it is respectfully submitted, be, as nearly
as possible, simultaneous and identical."

Sir Robert Collier. — ^That was written before the Act was passed ?

Mr. McCarthy. — Yes; it promises that an Act shall be passed in the Province
of Ontario, and it is an appeal to the Dominion authorities to pass a concurrent
Act Then we come to page 127, when on the 23rd September, 1879, nothing
having been done in the meantime by the Dominion, the Government of the
Province again brings the matter to the notice of the Government at Ottawa.*
At the end of the page, which is all I need refer to for this matter, for the rest is
merely a repetition of what your Lordships already know, it says :

" The Government of Ontario does not doubt that the Government and Parliament
of Canada will ultimately take the same view, and I have respectfully to represent that
the delay in announcing the acquiescence of the Dominion authorities, and in giving full
effect otherwise to the award, has been embarrassing and injurious/'

Then the gentleman who wrote this goes on at great length to discuss the
merits of the award, and to shew that the conclusion arrived at by the arbitrators
was a proper conclusion. That, however, is beside the present question. Then
at page 130, in a part of the same despatch, he says :

" In view of these considerations the (Jovernment of Ontario trusts that the Grovern-
ment of Canada will recognize the propriety of announcing, without further delay, their
intention to submit to Parliament, next session, a Bill declaring the boundary established
by the arbitrators to be the true northerly and westerly boundaries of Ontario, and to use
the influence of the government to have the measure accepted by both Houses and assented
to by His Excellency the Governor-General."

That met with but bare acknowledgment. No statement at that time was
made by the Government at Ottawa as to the course proposed to be taken or the
advice proposed to be offered to the Parliament of Canada.

Sir RoBBRT Collier. — When did the Act of Ontario come into force ?

Mr. McCarthy. — At once.

Sir Robert Collier. — At what date ? It does not give the date here.

Mr. McCarthy. — It merely gives the year. I think nothing turns on the
date.

Sir Robert Collier. — It was before this ? •

Mr. McCarthy. — Yes, the early part of 1879.t

The Lord Chancellor. — There is nothing done by the Act, except that the
Parliament of Canada may legislate on the sufc^ect. If the Parliament never did
legislate, of course the Act would not have any effect.

Mr. McCarthy. — That is what I submit. Then, following out the matter still
further, your Lordship will find, at page 131, that certain resolutions were passed
by the Legislative Assembly of Ontario on the 3rd March, 1880.J These resolu-
tions are going over the well-beaten ground. It is again an appeal, as it were, to
the Parliament of Canada to legislate, and at page 132, line 27, your Lordships
^ill find these words :

" That this House regrets that notwithstanding the joint and concurrent action of
the respective governments in the premises, and the unanimous award oft he arbitrators,

^ *The Assistant Provincial Secretary (Ontario) to the Secretary of State (Canada). Sesa. Papers
Oiit.,1880,No.46, p. 3.

1 11th March, 1879. t Journals Leg. Ass. 1880, vol. 18, p.. 1«0.

13

ARGUMENT OF MR. MCCARTHY, Q.C. :

the Government of Canada has hitherto failed to recognize the validity of the said award ,
and that no legislation has been submitted to parliament by the Government of Canada
for the purpose of confirming the said award/'

.Then there is a legislative declaration passed in 1880 by the Dominion parlia-
ment that the award is disputed. Your Lordships will find it in the Act, 43
Vic, cap. 36, page 133 :

*' Whereas certain territory on the western and northern boundary of Ontario is
claimed by the Government of Ontario as being within the said province ; and whereas
such claim is disputed ; and whereas the Parliament of Canada is desirous of making suit-
able provision for the administration of criminal justice within the said territory until the
dispute is determined.''

The award was made in 1878. These numerous appeals had been made to the
Government of Canada on the part of the Government of Ontario ; and in 1 880 an
Act is passed declaring that the award is disputed in point of fact.

The Lord Chancellor. — Is there any reference to the award in that Act ?

Mr. McCarthy. — No, except in the part I have read.

The Lord Chancellor. — That does not refer to the award at all.

Mr. McCarthy. — Not in terms. But that was the matter then in dispute ;
it was to provide for the administration of criminal justice in this disputed terri-
tory pending the settlement of that dispute. Then, on the 1st February, 1881,
page 134, the Attorney-General of the province again appeals to the Dominion :*

" 1 hope that the present session of the Dominion parliament will not be allowed to
come to an end without the necessary Act being passed adopting and confirming the
boundary award. If, however, we are again to be disappointed some additional legisla-
tion is absolutely required."

Then comes 44* Vict. cap. 1,-f providing for the extension of the boundaries
of the Province of Manitoba, and giving for the boundary of Manitoba on
the east the western limit of the Province of Ontario.

*Sess. Papers, Ont, 1882, No. 23.

t Act of the Province of Manitoba, 44 Vict., cap. 1, sec 1, (1881).
A.n Act to Provide for the Extension of the Boundaries of the Province.

'Whereas by chapter twenty -eight ot the Acts of the Parliament of the United Kingrdom of Great
Britain and Ireland, passed in the session held in the thirty-fourth and thirty-fifth years of Her Majesty's
reign, intituled "An Act respecting the establishment of Provinces in the Dominion of Canada," it is en-
acted that " the Parliament of Canada may, from time to time, with the consent of the Legislature of any
Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon
«uch terms and conditions as may be agreed to b^ the said Legislature, and may, with the like consent,
make provision respecting the effect and operation of any such increase or diminution or alteration of
territi^ry in relation to the province affected thereby ;" Ana whereas it is expedient and desirable that the
boundaries of the Province of Manitoba should be increased on terms and conditions of a just character :
Therefore the Legislative Assembly of Manitoba enacts as follows :

1. The Legislative Assembly of Manitoba consents that the Parliament of Canada may increase or
otherwise alter the limits of the Piovince of Manitoba upon the terms and conditions set out in this Act,
and may make provisions respecting the effect and operation of any such increase or alteration of terri-
tory ; the increase or alteration of the limits of the Province to be so that the boundaries thereof shall be
as follows: Commencing at the intersection of the international boundary dividing Canada from the
United States of America, by the centre line of the road allowance between the twenty-ninth and thirtieth
ranges of townships lying west of the first principal meridian in the system of Dominion land surveys ;
thence northerly, following upon the said centre line of the said road allowance as the same is or may here-
after be located, defining the said ransre line on the ground across townships one to forty-aix.* both
inclusive, to the intersection of the said centre line of the said road allowance by the centre line of the road
allowance on the twelfth base line in the said system of Dominion land surveys ; thence easterly along the
said centre line of the road allowance on the twelfth base line, following the same to its intersection by the
easterly limit of the District of Keewatin as defined by the Act 89 Victoria, chapter 21, that is to say, to a
point where the said centre line of the road allowance on the twelfth base line would be intersected by a
fine drawn due north from where the westerly boundary of the Province of Ontario intersects the aforemid
international boundary line dividing Canada from the United States of America ; thence due south, follow-
ing upon the said line to the international boundary aforesaid ; and thence westerly, following upon the
said international boundary line dividing Canada from the United States of America, to the place ot
beginning."

• III the Dim Act. 44 V. c. 14 ir\fra, this line is descrlbeJ as being drawn ' across townships one to forty-four."

14

QUESTION OF THE VALIDITY OF THE ARBITRATORS' AWARD.

The Lord Chancellor — That is headed "Act of the Province of Manitoba."

Mr. McCarthy. — Yes ; the two must be taken together — that is the Act of
Manitoba allowing the province to be enlarged, and then follows the Act of the
Dominion, 44 Vict. cap. 14,* to provide for the extension of the boundaries of
the Province of Manitoba. The two must be taken together.

Sir Barnes Peacock. — In those Acts the boundaries are defined, are they ?

Mr. McCarthy. — No, my Lord, not at this disputed place ; it just says, wher-
ever Ontario ends Manitoba commences.

Sir Montague Smith. — It leaves it just where it was.

Mr. McCarthy. — Yes. It is the third line from the bottom. The proposed
•• ^ ly boundary of Manitoba is defined as :

" A line drawn due north from where the westerly boundary of the Province of
Ontario intersects the aforesaid international boundary line dividing Canada from the
United States of America."

Those are the last three lines, page 136.

The Lord Chancellor. — That seems to refer to some definable point :

" To a point where the said centre of the road allowance on the twelfth base line

would be intersected by a line drawn due north."

Mr. McCarthy. — The line has to be intersected *' by a line drawn due north
from where the westerly boundary of the Province of Ontario intersects — "
You have to find out where that point is. That is just what we are troubled
about.

The Lord Chancellor. — One hardly sees how it is to be worked, either in
one view or the other.

Mr. McCarthy. — The United States bounds the country on the south.
Whether the most north-westerly angle of the Lake of the Woods is taken as the
line, or the line I contend for is taken as the line — along that lies Ontario. The
point where the westerly boundary of Ontario first meets the boundary of the
United States is the point of intersection.

Sir Montague Smith. — You must find out the entire boundary.

Mr. McCarthy.-.- Yes.

* Dominion Act, 44 Vior., cap. 14, skc. 1, (1881).
An Aet to provide for the Extension of the Boundaries of the Province of Manitoba,

Whereas, by an Act of the Legislature of the Province of Manitoba, passed during the session thereof
beld in the present year of Her Majesty's reign, and intituled " An Act to Provide for the Extension of
the Boundaries of the Province of Manitoba," the Legislature of that province hath consented to the
increase of the same by the alteration of its limits, as hereinafter enacted, upon the terms and conditions
hereinafter expressed : Therefore Her Majesty, by and with the advice and consent of the Senate aud
House of Commons of Canada, enacts as follows :

1. The Province of Manitoba shaU be increased as hereinafter defined, that is to say, so that the boun-
daries thereof shall be as follows :—" Commencing at the intersection of the international boundary
dividing Canada from the United States of America by the centre of the road allowance between the
twenth -ninth and thirtieth ranges of townships lying west of the first principal meridian in the system of
Dominion land surveys ; thence northerly, following upon the said centre of the said road allowance as
the same is or may hereafter be located, defining the said range line on the ground across townships one to
forty-four,* both inclusive, to the intersection of the said centre of the said road allowance by the centre of
the road allowance on the twelfth base line in the said system of the Dominion land surveys ; thence
easterly along the said centre of the road allowance on the twelfth base line, following the same to its inter-
section by the easterly limit of the District of Keewatin, as defined by the Act thirty-ninth Victoria,
chapter twenty-one, that is to say, to a point where the said centre of the road allowance on the twelfth
base line would be intersected by a line drawn due north from where the westeriy boundary of the Pro-
vince of Ontario intersects the aforesaid international boundary line dividing Cfanada from the United
States of America ; thence due south, following upon the said line to the international boundary aforesaid ;
and thence westerly, following upon the said international boundary line dividing Canada from the IJnited'
States of America, to the place of beginning," and all the land embraced by the said description not now
within the Province of Manitoba shall, from and after the passing of this Act, be added thereto, and the
-whole shall, from and after the said date, form and be the Province of Manitoba.

* In this Act of Man., 44 Y. c. 1, supra, the line is described as bein^ drawn " across townships one to forty-six."

15

ARGUMENT OF MR. M CARTHY, Q C. :

Mr. McCarthy. — Then, my Lords, there are two more despatches to which 1
think I ought to draw your Lordships' attention. The first is dated 31st Decem-
ber, 1881,* and it is a very long document, from the Attorney -General, or rather
from the Lieutenant-Governor of the province, to the Dominion authorities,
going over the whole subject again. It commences on page 137, and at page 141
the Lieutenant-Governor says :

" I have called the Ontario Legislature to meet for the despatch of business on the
12th January. I perceive that the Parliament of Canada is to meet in the following
month, and I would respectfully urge the great importance of my being officially informed,,
before the meeting of our legislature, whether the Dominion Government is now willing,,
with the concurrence of the Legudature of Manitoba, so far as such concurrence ia
necessary, to agree to the arrangements which have been suggested, and to obtain fron>
Parliament, at its approaching session, the Dominion legislation necessary to give effect
to such arrangements.''

There is next a despatch of the 27th January, 1882,f which your Lordship
will find at page 142. Here we have the first response from the Dominion, and
that presents tne view entertained by the Dominion government, who were still
to some extent interested in the matter, and to whom the Lieutenant-Governor
of the Province of Ontario had appealed. I refer especially to page 143, com-
mencing with paragraph 8 :+

"The proposal of 1874, referred to in your despatch, that the question in dispute
should be referred to arbitration, does not seem to have been treated by either Govern-
ment as a mode of seeking an authoritative decision upon the question involved as a^
matter of law, but rather as a means of establishing a conventional line without first
ascertaining the true boundary. In corroboration of this view, it is to be noted that of the
three gentlemen who made the award referred to in your despatch under the reference of
1872, two were laymen, and only one of the profession of the law. His Excellency's advisers-
are of opinion that in advance of parliamentary sanction it was not only highly inexpedient,,
but transcended the power of the government of the day, to refer to arbitration the
question of the extent of the North- West Territories acquired by the Dominion by pur-
chase from the Hudson's Bay Company. That territory had been acquired on behalf of,
and was in fact held for, all the provinces comprised in the Dominion, and the extent of
it was a question in regard to which, if a dispute arose, Parliament only could have
absolved the government of the day from the duty of seeking an authoritative determina-
tion by the legal tribunals of the country. Such a decision having been once obtained, if
it had been found that it promised to be to the convenience of Ontario and the adjoiningp^
province that a conventional boundary should be established in lieu of the legal boundary,
authority might have been sought from the Legislatures of those Provinces and from the
Parliament of the Dominion for the adoption of such a conventional line. That the
course pursued was not intended as a means of seeking a legal boundary is further shewn
by the course pursued by the Legislature of Ontario, who, under the provision containecl
in the Imperial Act, 34 and 35 Yict., cap. 38, enabling the Parliament of Canada to>
increase, diminish or otherwise alter the limits of a province, with the assent of its legis-
lature, passed an Act giving their assent to the limits of their province being changed by
Parliament to meet the award, whatever it might be. The passage of such an Act
shews that it was not sought that the true boundary line should be Ascertained, but that
a conventional one should be laid down."

The Lord Chancellor. — Very bad reasoning.

* The Lieutenant-Govemor of Ontario to the Secretary of State (Canada), Seas. Papers, Ont., ISS2^
No. 23.

t The Secretary of State to the Lieutenant-Governor, Sess. Papers, Ont., 1SS2, No. 69, p. 46S.

X The elaborate answer of the Province to the despatch here cited, is contained in the despatch from the-
Lieutenant-Governor to the Secretary of State, 18th February, 1882, printed in Joint App., p. 146, and
in Sess. Papers, Ont., 1882, No. 23.

16

QUESTION OF THE VALIDITY OF THE ARBITRATORS AWARD.

Mr. McCarthy :

^It must further be observed that a Committee of the House of Commons has
reported as follows, viz. :" — Then it gives an extract from the report of the Com-
mittee of the House of Commons, as follows : — *' In reference to the award,
made by the arbitrators, on the 3rd day of August, 1878, a copy of which is
appended, your Committee are of opinion that it does not describe the true boun-
daries of Ontario. It seems to your Committee to be inconsistent with any
boundary line ever suggested or proposed, subsequent to the Treaty of Utrecht (1713).
It makes the provincial boundaries run into territory granted by Royal Charter, in 1670,
to the Merchants Adventurers of England trading into Hudson's Bay, and it cuts through
In4ian territories which, according to the Acts, 43 Ceorge 3, cap. 138, and 1 and 2
Ckiorge 4, cap. 66, * formed no part of the Provinces of Lower Canada or Upper
Canada, or either of them.' "

The Lord Chancellor. — ^All that it comes to is simply an intimation that
they are disposed to throw over the award.

Mr. McCarthy. — That is all; I am only reading it with that view. I do not
think I need trouble your Lordship with any other observations upon it.

The Lord Chancellor. — If there is anything turns upon it, it does not seem
to me that it comes to anything more than that the arbitrators did not intend to
make the award except on the actual boundaries which there ought to be as between
the parties. But it seems very clear that, prima facie, they had no authority to
do it without legislation, and did not contemplate doing it without legislation.

Mr. McCarthy. — Then, my Lord, that being so (and that is my contention),
the next question to which I propose to direct your Lordships* attention is what
the true line is, the award being out of the way — being treated as so much waste
paper.

Sir Barnes Peacock. — It might not perhaps be inconvenient upon this point
first of aU to hear whether there is really anything to be said on the other side.

The Lord Chancellor. — The award may or may not be amongst other cir-
cumstances material to the consideration of what the true line is, but you have
certainly made a prima facie case that the award should not, as a matter of law,
bind you without legislation, and we should likelio hear whether that is seriously
contested.

Mr. McCarthy. — I might mention to your Lordship, before I withdraw from
the bar, that my friend Mr. Robinson appears for the Dominion. The Dominion
claims to be heard on the question, as the Dominion is interested almost, if not
quite, as much as the provinces. By the Act to which reference has been repeat-
edly made already, no alteration in the limits of a province can be made without
the consent of the Dominion Parliament. In point of fact.it is the Dominion
which makes it, with the consent of the province, and you can well understand
bow the enlargement of one province might disturb the whole scheme of confed-
eration. The different provinces came into confederation having a certain repre-
sentation in the Commons, and a certain representation in the Senate, besides
certain territorial limits.

Mr. MowAT. — My Lords, I think I might shorten this if I say that I agree
that the Dominion has an interest in this question, and I am perfectly willing
80 far as I am concerned, that they should be heard if your Lordships think they
should.

The Lord Chancellor. — We can hear one counsel, if it is desired, for
Manitoba and another for the Dominion, but I suppose they are practically on the
same side.

Sir Barnes Peacock. — As I understand, the only question is as between
Manitoba and Ontario, and I think it is provided somewhere or other that our
decision shall not affect any question between Ontario and the Dominion.
2 (B.) 17

ARGUMENT OF THE ATTORNEY-GENERAL OF ONTARIO:

The Lord President. — That is provided in the agreement. They reserve^
their rights.

Sir Montague Smith. — So that it cannot aflfect the relations of Ontario
with the Dominion. The question before us is simply between the two provinces.

Mr. McCarthy. — I do not so understand it. If your Lordships fix the
boundary, it does fix the boundary of Ontario for the purposes of the Dominioa
as well as for the purposes of the rrovince.

Sir Montague Smith. — I did not understand that.

Mr. McCarthy. — Oh, yes, my Lord, we are all agreed about that I think.

Mr. MowAT. — Oh, yes.

Sir Barnes Peacock. — I think it is stated somewhere that no questioQ
between Ontario and the Dominion shall be afiected by our decision here.

Mr. Mc Carthy. — That is in the agreement between the two provinces.
The two provinces came to a certain arrangement, and in order to prevent there
being any question about it, we put in a clause stating that it was not to be pre-
sumed that the agreement between us was to afiect any questions between the
Dominion and Ontario, and reserving the rights of Ontario as to the same.

The Lord Chancellor. — Then is it agreed between you both, that both
are to be bound by our decision ?

Mr. Mo WAT. — Yes, both have agreed to be bound by your Lordships' decision.
Is it your Lordships' wish that I should now address myself to the point
whether —

Sir Barnes Peacock. — The point whether the award is conclusive.

Mr. MowAT. — If your Lordship pleases.

The Lord Chancellor. — But is it convenient at this point to hear the
learned counsel for the Dominion ?

Mr. Mow AT. — One question put to your Lordships is whether the award is
valid ?

The Lord Chancellor. — Quite so ; but if the counsel for the Dominion
wants to add anything, of course this is the right time. We have intimated how-
ever, that until we hear something on the other side, there is a prvma facie case
made out to shew that legislation was necessary in order to make the award
binding.

Mr. Robinson. — I do not know that I have anything to add. I think it
will be waste of time after the intimation your Lordships have given.

Mr. MowAT. — It seejns to me, my Lords, that there is a good deal to be said
in favour of an opposite view.

The Lord Chancellor.. — Then we will now hear it.

Mr. MowAT. — Very well, my Lord. I think I can satisfy your Lordships,
independently of any statutory enactment, that provinces situated as these
provinces are have a right to enter into an agreement for settling boundaries
between them, and that such an agreement is binding without any legislative
action.

The Lord Chancellor. — ^But here, first of all, the question is not indepen-
dent of any statutory enactment, and, secondly, in determining whether the
award, as it has been made, binds, we must see what the agreement was.

Mr. Mow AT. — Of course. Then, my Lord, perhaps I may addrass myself to the
point, first, as to what the agreement really was — whether it was that the award
should be binding, if the Governments had the power to make it so, without legis-
lative sanction; or whether, though the two governments may have had this
power, it was not intended to exercise it, and the award to be binding was to
require legislative sanction.

18

QUESTION OF THE VALIDITY OF THE ARWTRATORS AWARD.

Addressing myself to the former point, I ask your Lordships' attention
to the terms of the two Orders in Council. The Order in Council passed
in the Dominion and the Order in Council passed in the Province are identical^
Now, what is it that these Orders in Council agree to ? I assume at present that
the two governments had the power .of referring the matter to arbitration,,
the legal power of referring it if they those to do so, and I will say some-
thing subsequently, if your Lordships permit me, to prove that they had the legal
power. Assuming now that they had power to bind both governments, and I say
that that is the effect of what they did, what is the agreement between them
as it is expressed in these Orders in Council ;* as it is expressed, first of all, in the^
Order in Council at page 7, and expressed also in the subsequent Orders ?

The Lord President. — The one at page 7 is a report.

Mr. MowAT. — Yes, but that is the form in which our Orders in Council are
always drawn — a report to the Council, approved by the Committee of Council,
and by the Governor.

Lord Aberdare. — There are Orders in Council given on the next page,
pages. »^

Sir Montague Smith.— That at page 7 is the report.

Mr. Mow AT. — Your Lordships may take it in this way. First there is the
report, and then there is the Order in Council adopting the report. In effect
therefore when a report of this kind is made and it is adopted by an ord er, then
the recommendation so adopted becomes the Order in Council.

What is it then that the Pi-ovince and the Dominion agree to ? It is that —

" The determination " — that is the word used — " the determination of a majority of
sach referees should be final and conclusive upon the limits to be taken as and for suoh.
boundaries as aforesaid respectively."

I say that by the interpretation which my learned friends place upon thia
language, the award is not " final and conclusive ;" the award is to be no.
" determination ;" it is not a** determination " in the slightest degree.

The Lord Chancellor. — But you must read that with the next sentence.
Mr. MowAT. — I quite agree, my Lord, and I was coming to that :
"The undersigned recommends that the Province agree to concurrent action with the.
Dominion in obtaining such legislation as may be necessary for giving binding efiect.
to the conclusion which may be arrived at, and for establishing the northern and'
western boundaries of the Province of Ontario in accordance therewith."

What that sentence was intended to provide was in addition to what had
been agreed to by the previous sentence. By the previous sentence the award
is to be final and conclusive, and by the following sentence any legislation that
may be necessary for giving to the award binding effect is to take place. Observe
the language: " The undersigned recommends that the Province agree."
It was the Government — the Lieutenant-Governor in Council — that was
agreeing, and *'the Province " means the whole people through its representatives in
the Government. The agreement I submit to your Lordships to have been, that
by this Order there was a binding obligation on the Province to concurrent
legislation with the Dominion, as on the other hand, according to the Orders in
Council of the Dominion, there was a binding obligation on the Dominion to
concurrent lejj^islation with the Province.

The Lord Chancellor. — But what of the words " for giving binding effect
to the conclusion."

* The Orders referred to are : — Report of Hon. Adam Crooks, 10th November, 1S74, cited ante
P. 7; Order in OooncU (Ont,) 25th November, 1874, referred to ante^ p. S ; Order in Council (Can.,) 12t£
November. 1874, cited anU, p. 8 ; and the subsequent Orders in Council of the Province ana Dominion
respectively, dated 31st July, 1878, printed ante, p. 10, notes t and t.

19

ARGUMENT OF THE ATTORNEY-GENERAL OF ONTARIO:

Mr. Mo WAT. — That expression was used because it was matter of dispute
"whether governments had the power of acting in such a manner without legislation.
1 have to satisfy your Lordships that the governments intended that the award
-should be final and conclusive if they could make it so. It was a question whether
they covld make it so or not, or whether without legislation the award might not be
binding upon the governments, and yet perhaps not binding for all purposes without
legislation ; whether the award, for some purposes, might not require legislation by
the Dominion and Ontario Parliaments, or by the Imperial Parliament.

There had been a controversy as to the boundary between the Province of
Canada and the Province of New Brunswick many years ago ; and in that case
«,n Imperial Act had been passed to give effect to an award made on a reference
by the two provincial governments. There being that question, both governments
in the present case did all they could by their agreement to make the award final
It would have been a perfectly idle thing, in a great controversy like this, to leave
the question to arbitrators if the award was to have no binding character at all.
The arbitration in that case would be perfectly nugatory. An arbitration would
not advance us one single step towards a settlement. Everybody must at the
time have seen that, and everybody must see it now.

The Lord Chancellor. — The reasonable intention of this clause about
legislation was that the legislation should take place before the award was known,
was it not ?

Mr. MowAT. — My own notion was, that that would be the better course, and
1 manifested that opinion afterwards by getting an Act passed by the provincial
legislature in advance of the award, but the Dominion did not take the same view.

The Lord Chancellor. — Have you evidence that attempts were made to
get legislation when it might have been a matter of common consent ?

Mr. MowAT. — No such evidence appears. The extent of territory which was
then in question was very large. The Dominion had been claiming as part of
Ontario, before the settlement with the Hudson's Bay Company, nearly one million
square miles instead of the 100,000 which the arbitrators have given us.

The Lord Chancellor. — Both parties seem to have been willing to take
their chance, and when that happens it is very natural that each should be willing
afterwards to use his power to recede from the agreement if he could.

Mr. MowAT. — That I hope is not the legal effect of the language employed,
for it certainly Was not what was intended by the two governments at the time.
There has since been a change of government in the Dominion, and different views
«re entertained by the present government from those which were entertained
by the government in power when the agreement was made. We did not at all
suppose that the effect of the reference to future legislation was anything more
than to make it as obligatory as the governments could possibly make it that
the award should be conclusive. In the first place they agree in so many words
that it shall be final and conclusive ; they do not say that any legislation shall
be necessary, and there is no provision for any legislation beyond what is
«kbsolutely " necessary." Whatever could be shewn to be necessary was to be done.
The language is this: " The province agrees to concurrent action in obtaining such
legistion as may be necessary, for giving binding effect ;" but if no legislation was
necessary for giving binding effect, neither, under this stipulation, could ask for
legislation. It was only if it should appear that legislation was necessary that
legislation should be had. By the terms of the agreement, " the Province " and " the
Dominion " were agreeing to be bound ; not merely the governments. By the
Ontario Order in Counul, so far as the government could bind, the Province was
to be bound ; bvthe Dominion Order in Council the Dominion government was
to be bound. What I urge upon your Lordships is that the agreement about
legislation is an additional stipulation, and not a qualifying stipulation.
# 20

QUESTION OF THE VALIDITY OF THE ARBITRATORS AWARD.

Sir Montague Smith. — Do you argue that legislation was not necessary ?

Mr. Mo WAT. — I contend that it was not necessary.

The Lord Chancellor. — It is difficult to separate the two argument^ as ta
what they intended to do, and what they could do. Your proposition is that the^
Governor in Council could alienate the territory of Ontario, or of Canada ?

Mr. MowAT. — No, my Lord, I do not go so far as that.

The Lord Chancellor. — Surely it is necessary for you to say so.

Mr. MowAT. — That is the way the Dominion government argues against ua.
in one of the printed despatches.

The Lord Chancellor. — And without even an Act of the provincial
legislature ?

Mr. MowAT. — But I think I have authority against that view. If your
Lordship will permit me to say so, I think I have direct authority that a settle-
meDt of boundaries between provinces is not to be regarded as an alienating of
territory by the one to the other; that if two provincial governments enter
into an agreement for settling boundaries, it is no answer to the binding character
of that agreement to suggest that it may involve an alienating of part of the land ::
it is the Crown in the one case and the other.

The Lord Chancellor. — How does the Governor in Council get his power ?•

Mr. MowAT. — My authority for it is the case of Penn v. Lord Baltvmore.

The Lord Chancellor. — I know the case. There were two individual
proprietors, under grant from the Crown, of two provinces in North America, and
they made a private contract between themselves as to boundaries, and there the-
English Court of Chancery did have jurisdiction.

Mr. MowAT. — Yes, my Lord. In the Appendix we have printed in full the
charters under which Lord Baltimore and Mr. Penn and their associates acted and
entered into that agreement.

The Lord Chancellor. — But there it was a mere question of private rights.
The whole of the territory was under charter.

Mr. MowAT. — But it was not a mere question of the ownership of land ; it
was a question whether the territory was within the one province or the other.

The Lord Chancellor. — How could the English Court of Chancery have-
any jurisdiction as to the matter except upon the footing of private rights ? Is it
not quite clear that it was only on that footing that the court assumed'
jurisdiction ?

Mr. MowAT. — That court assumed jurisdiction in a matter that involved
government, and legislation as well.

The Lord Chancellor. — You may say that that was the consequence of what
the court did ; but if you cite this as an authority you must take it as you find it.
Lord Hardwicke as Lord Chancellor of England, in a suit in the Court of Chancery,
treated the agreement as a contract between private persons to be enforced by
the Court of Chancery on the principle of compelling people to act conscientiously
in the fulfilment of their contracts — upon the principle that the court acted in
personam and not in rem,

Mr. MoWAT. — Yes, my Lord ; and it was in that way the court was able to^
give effect to the agreement, but the first thing that had to be done was to con-
sider whether the agreement was a binding agreement or not.

The Lord Chancellor. — But you cannot take this as a public authority.

Mr. MowAT. — The case of proprietary governments I submit bears a very
strong analogy to the present.

Lord Aberdare. — You say you are going to prove that two provinces^
can settle their own disputes without the interference of the Dominion parliament. ?'

Mr. MowAT. — Yes, my Lord.

21

ARGUMENT OF THE ATTORNEY-GENERAL OF ONTARIO ;

Lord Aberdare. — But is that the question here ? Is not the question here^
'whether these two provinces can appropriate certain tern tory that belongs to the
Dominion, and does not belong to either of them ?

Mr. MoWAT. — No, my Lord ; we claimed that this territory was ours — was
Ontario's — and that was the question for the arbitrators.

Lord Aberdare. — The Dominion claims that it is its own. How can you
-deal with territory claimed by the Dominion on the plea that two provinces with
recognized boundaries, and recognized existences, are dealing with each other's
territory ?

Mr. MowAT. — I spoke of " provinces" in a general way. The question before
the arbitrators was not between Manitoba and Ontario, but between the Domin-
ion and Ontario.

Sir Montague Smith. — That makes it still more difficult, supposing it is an
alienation.

Mr. MowAT. — But, my Lord, I claim it is not alienation. What the province
is seeking is not to alienate from the Dominion. It is as to who shall have pro-
vincial jurisdiction — whether the territory shall belong to Ontario or to another
province ; and it is the Crown in both cases. But the Dominion may itself assign
this territory away for that purpose.

The Lord Chancellor. — But it seems to me that you are an immense way
from your point. That case of Lord Baltimore's I have always understood to rest
upon private rights, and it is plainly inapplicable to anything of this kind. The
^ourt of Chancery of England would never have dreamt of assuming jurisdiction
to enforce an award of this kind, whether it be properly made or not, and you
have to press not merely that the provinces could settle among themselves their
boundaries and so on, but that the executive government of a particular Province
-and the executive government of the Dominion could do it.

Mr. MowAT. — I have to press that no doubt, and I certainly think that tipon
that point Penn v. Lord Baltimore goes a great way as an authority for it.

The Lord Chancellor. — And you have to do that in the face of an Imperial
Act* expressly saying that they had to do this thing by legislation.

Mr. Mow AT. — That is going to another point, my Lord. T thought that that
Imperial Act* made no difficulty in my way, for this reason. It provides for

* Imp. Act, 84 & 35 Vict., cap. 28.— Thb BBrrisH Nobth America Act, 1871.
An Act respecting the establishment of Provinces in the Dominion of Canada,

Whereas doubts have been entertained reepeotinfr the powers of the Parliament of Canada to ettabUsh
Provinoes in territories admitted, or which may hereiskf ter be admitted, into the Dominion of Canada, and
*to provide for the representation of such Provinces in the said Parliament, and it is expedient to remove
«ucn doubts, and to vest such powers in the said Parliament :

Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the
«ame, as follows :

1. This Act may be cited for all purposes as ** The British North America Act, 1871."

2. The Parliament of Canada may, from time to time, establish new Provinces in any territories form-
ing for the time being part of the Dominion of Canada, but not included in any Province thereof, and may.

Hat the time of such establishment, make provision for the constitution and administration of any auch
Province, and for the passing of laws for the peace, order, and good government of such Province, «id for
its representation in the said Parliament.

3. The Parliament of Canada may, from time to time, with the consent of the Legislature of anv
Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon waxay
terms and conditions as may be agreed to by the said Leg[islature, and may, with the like consent, make
provision revpecting the efifect and operation of any such increase or diminution or alteration of territory in
Illation to any Province affected thereby.

4. The Parliament of Canada may, from time to time, make provision for the adminstration, peaoa,
t>rder, and good government <d any territory not for the time being included in any Province.

5. The following Acts passed by the said Parliament of Canada, and intituled respectively, " An Act for
the temporary government of Rupert's Land and the North- Western Territory when united with Cknadai,''
^uad ** An Act to amend and continue the Act thirty-two and thirty-three Victoria, chapter three, and to

22

QUESTION OF THE VALFDITY OF THE ARBITRATORS AWARD.

•only one case. If a province wants to change its boundaries, or is willing to
•change its boundaries either by diminution or bv increase, and the Dominion is
willing, then certain provision for that pui-pose is made, but it does not provide
for the case of a disagreement between them as to where the legal boundaries are.
The Act does not touch that case at all. If a province is willing or desirous that
its boundaries shall be changed, and if the Dominion is willing too, then by the
Act in question they can carry that out. I submit, my Lord, that whatever
jurisdiction the two governments had before the Act to settle this matter cannot
be affected by that Act, because the Act does not cover that ground. There are
two cases which may arise ; one, where the parties are agreed, and one where they
Are not agreed. If they are agreed, then that Act applies, and renders it unneces-
sary to go to the Imperial ParUament for the purpose of giving effect to any change
of territory desired; but if they are not agreed, that Act does not meet the
diflSculty. I submit to your Lordships that it may be properly said that the
Dominion and Province ought to be treated as having this power a fortiori, if the
power existed in the case of Penn v. Lord Baltimore. The recognized doctrine now
is that all colonial matters should be settled locally as far as possible, without
coming to the Imperial Parliament. That is the principle of all recent legislation
with reference to the colonies, and we have in the British North America Act an
express declaration that the form of government, and the principle of government
are to be those of the British constitution. A question of this kind between
provinces. Lord Hardwicke points out in his judgment, is a question which the
King in Council might decide, anc| would be a proper tribunal for deciding.

The Lord Chancellor. — Where there was no parliamentary government.
You do not mean to say that if the question arose as to the limits between Eng-
land and Scotland, it would be decided by the King in Council ?

Mr. Mow AT. — I do not know how it might be in that case, but I thought what
I have said in regard to the colonies followed from what I find in Lord Hard-
wicke s judgment Your Lordships will observe that there is nothing in the Act
of 1867, and nothing in any Imperial legislation, as to a settlement of disputed
boundaries between a province and the Dominion. Such a case does not fall
within any of the powers given to the Dominion Parliament by the British North
America Act. If it had done so it might be inferred that it was intended that
the matter should be dealt with by the Parliament of Canada, or in any other way
that should be provided, but we do not find any such power given to the Domin-
ion Parliament. If I were fortunate enough to be able to satisfy your Lordships
that as a general rule provinces may, through their executive, settle a matter of
this kind in a binding way, there does not seem to me to be anything in the
British North America Act, or any other Imperial Act, that would make the
Dominion of Canada an exception to that rule.

Sir. Robert Collier.— Where is the authority ?

Mr. MowAT. — This case of Penn v. Lord Baltimore is the only one I have
found. That case is reported in 1 Vesey, senior, page 143. It is stated there that
the first objection for the defendant was :

" That the Court has not jurisdiction, nor ought to take cognizance of it ; for that
the joriadiction ib in the King in Council."

establish and provide for the government of the Province of Manitoba,** shaU be and be deemed to have
been valid and effectual for all purpoeet whatsoever from the date at which thev respectively received
the assent, in the Queen's name, of the GU>vemor-General of the said Dominion of Oanada.

0. Except as provided by the third section of this Act, it shall not be competent tor the Parliament of
Canada to after the provisions of the last-mentioned Act of the said Parliament in so far as it relates to the
Province of Ifanitobik or of any other Act hereafter establishing new Provinces in the said Dominion, sub-
ject always to the rignt of the Legislature of the Province of Manitoba to alter from time to time the
|>rovinons of any law res|)ecting the qualifications of electors and members of the Legislative Assembly,
And to make laws respecting elections in the said Province.

23

ARGUMENT OF THE ATTORN EY-GI;NERAL OF ONTARIO

I ought to mention here that there was a legislative body both in Pennsyl-
vania and Maryland, just as there is in the Dominion and the provinces. The
executive was hereditary. In Maryland the executive authority had been given
to Lord Baltimore, his heirs and assigns ; and in Pennsylvania to William J^enn^
his heirs and assigns ; and the two executives that had entered into the agreement
were not the original grantees but their heirs. These circumstances seemed
to me to bring the case very closely as a precedent for the present case. Each of
the litigant parties there was a colony with both an executive and a legislature,
just as is the case here ; and there was no express provision in the charter of
either of them under which a question of boundaries could be said to be deter*
minable ; and I therefore understand Lord Hardwicke as deciding that in such a
case the power is incident to the office of the executive.

The Lord Chancellor. —Did he decide it upon any ground connected with
public rights at all ?

Mr. MowAT. — I refer to the second objection, which was :

'* That if there is not an absolute defect of jarisdiction in this coart, yet being a
proprietary government and feudal seigniory held of the Grown, who has the sovereign
dominion, the parties have no power to vary or settle the boundaries by their own act ;
for such agreement to settle boundaries and to convey in conseqaence, amounts to an
alienation, which these lords proprietors cannot do ; but supposing they may alien entirely,
they cannot alien a parcel, as that is dismembering.''

The third objection was that the agreement ought not to be carried into
execution by the court. And this is the way in which Lord Hardwicke dealt
with those objections :

" First," he says, " the point of jurisdiction ought, in order, to be considered ; and
though it comes late, I am not unwilling to consider it. To be sure a plea to the jurisdic-
tion must be offered in the first instance, and put in primo die ; and answering, submits
to the jurisdiction : much more when there is a proceeding to hearing on the merits, which
would be conclusive at common law : yet a court of equity, which can exercise a more
liberal discretion than common law courts, if a plain defect of jurisdiction appear at the
hearing, will no more .make a decree than where a plain want of equity appears. It is
certain that the original jurisdiction in cases of this kind, relating to boundaries between
provinces, the dominion, and proprietary government, is in the King and council ; and
it is rightly compared to the cases of the ancient Commotes and Lordships Marchers in
Wales, in which, if a dispute is between private parties, it must be tried in the CommoUt
or Lordships ; but in those disputes where neither had jurisdiction over the other, it must
be tried by the King and council, and the King is to judge, though he might be a party;
this question often arising between the Crown and one lord-proprietor of a province in
America : so in the case of the Marches, it must be determined in the King's courts
who is never considered as partial in these cases."

He seems to treat the matter as common to provinces generally.

The Lord Chancellor. — It is perfectly clear what the grounds were if you
take the judgment as a whole.

Mr. MowAT. — Will your Lordship allow me to read a sentence or two to shew
the way in which Lord Hardwicke deals with the second objection :

" If it was so it would be very unfortunate, for suits and controversies might be, fos
that reason, endless ; and this has subsisted above seventy years. This objection is
insisted on at the bar, and not by the answer. The subordinate proprietors may agree
how they will hold their rights between themselves ; and if a proper suit is before the
Kini( in Oouncil on the original right of these boundaries, the proprietors might proceed
therein without making any other parties except themselves."

This was the passage that I spoke about a moment ago on the subject of
the effect of an agreement as amounting to a possible alienation. His Lordship
said:

24

QUESTION OF THE VALIDITY OF THE ARBITRATORS AWARD.

" To say that such a settlement of boundaries amounts to an alienation, is not the
true idea of it ; for if fairly made without collusion, (which cannot be presumed), the
boundaries so settled are to be presumed to be the true and ancient limits."

The executive in the present case is, in some respects, in a stronger position
than the executive in that case. Here the Governor-General, the representative
of the Crown, is appointed by the Crown, and only holds oflSce during the plea-
sure of the Crown. By the system now prevailing he has, therefore, the confidence
of the Crown and also (in Council) of the representatives of the people — the con-
fidence of his parliament. The case is the same as regards the Lieutenant-
Governor. Your Lordships, I take it for granted, will take cognizance of the
system of government prevailing in the Dominion and Provinca The agreement
in question 1 submit is, a fortiori, a binding and legal one, being an agreement
entered into by parties having the confidence of the Crown and oi the parliament
and legislature in the locality. If proprietors situated as Lord Baltimore and Sir
William Penn were situated have a right of this kind, I do not see on what
ground the power ought to be considered as not possessed by executive govem-^
ments in such a case as the one before your Lordships now.

Sir Barnes Peacock. — Would it not be contrary to the British North
America Act, 1871, * section 3, for the executive government of the Dominion
and the executive government of the province to alter the boundaries of the
province ?

Mr. Mowat. — But I say they have not altered the boundaries. If legis-
lation were necessarv, we thought that under that Imperial Act of 1871, if
Acts were passed by the Dominion and province, declaring the awarded boundaries
to be the boundaries, no objection afterwards could be taken by anybody, because
either they were the true boundaries or they were not. If they were not the
true boundaries, and involved a change of boundaries, the Act of 1871 would, by
its express terms, apply. If they were the true boundaries, and involved no
change, no legislation or agreement was necessary to maintain them.

The Lord Chancellor. — ^The argument then is this, that persons who have
not authority to part with an acre of territory may nevertheless make an award
which they agree to be conclusive evidence of the true boundary, so as to exclude
any inquiry as to whether it was a true boundary or not.

Mr. MowAT. — My argument implies that they have that power. As Lord
Hardwicke said, if the agreement is in good faith, it will be assumed that the
boundaries so agreed upon were the true boundaries, and he would not assume
there was any alienation.

The Lord Chancellor. — By what is this award made evidence, if it would
alienate the smallest part ?

Mr. Mowat. — I put the point as Lord Hardwicke did, " Where two parties *' —

The Lord Chancellor. — Two proprietors.

Mr. Mowat. — Yes, they were, in that case, two proprietors ; but the principle
seems precisely the same. His lordship put his judgment upon the ground that
you are not to assume, in such a case, that there is an alienation, and that if the
agreement between the parties had necessarily involved an alienation it would be
void ; but he said that he could not assume it involved any alienation. The agree-
ment having been entered into in good faith (and the contrary, he said, was not
to be presumed), his position was that it must be assumed that the agreement
stated the true boundaries, and involved no alienation. He answered in that way
the very diflSculty your Lordship suggests.

* Printed at page 22, anU, note.
26

ARGUMENT OF MR. SCOBLE, Q.C. :

Sir Barnes Peacock. — Suppose the Province of Ontario were to legislate
for land within the new boundary, and any one objected to it, could they say
that reference of the Dominion and the Ontario executives would make their acts,
or legislation, or administration of justice, binding ?

Mr. MowAT. — That result would be involved, of course.

Sir Barnes Peacock. — It is not merely the disposal of the lands, but it is
the fixing the territory within which the Province of Ontario is to administer
justice, and for which it is to legislate.

Mr. MowAT. — Yes, my Lord. There must be some authority for fixing it; and
how is it to be done ? It so happens that so far as our westerly boundary is
•concerned, the parties have recently agreed that the question should be referred
here. That required an agreement; and we have not been able to get the agreement
extended to the whole question. Then how is the question to be settled ? I do
not know any method, if there is no legal power of settling by the parties agree-
ing in good faith as to what the true boundary is.

Mr. ScOBLE. — I appear with the Attorney-General for Ontario, and I desire
to add a few observations only to the argument which he has addressed to your
Lordships. And I will first of all take the opportunity of addressing myself to
the remark which fell from his Lordship the Lord Chancellor just now, as to the
question of alienation as involved in this submission to arbitration. My Lords,
if the arbitrators had assumed in any way to diminish or to increase the terri-
tory of Ontario by their award, they would have been acting beyond the limits
of the reference, and any order that they might have given on that point would
have been vltra vires.

The Lord Chancellor. — Do you mean it would be vltra vires if in point
of fact they made the admission ?

Mr. ScoBLE. — No, because there I pray in aid the dictum of Lord Hardwicke,
and contend that if a boundary is referred to arbitration and the limits are fixed
by the arbitrators, that boundary becomes by the action of the arbitrators the
old and true limit.

The Lord Chancellor. — ^It depends on whether the arbitrator has authority
io do it. That is at the bottom of the question.

Mr. ScoBLE. — I submit that as a matter of fact there might be an alteration
of the limit of the province, but as a matter of law there would be none, because
the award of the arbitrators would fix the legal boundary.

Sir Montague Smith. — The difficulty is, has the government any power at
Jill to make such a reference 1 The boundaries are fixed somewhere ; the difficulty
is to ascertain them.
Mr. ScoBLE. — Yes.

Sir Montague Smith. — Courts of law might ascertain them perhaps inci-
dentally, if any question arose ; but could any extraneous authority, short of an
Act of Parliament, do it? Of course'the whole dispute assumes that there is a
true boundary somewhere between these two. It is to be neither increased nor
diminished as regards either, but it is to be ascertained.

Mr. ScoBLE. — In the view I take of the point which this discussion has
reached, legislation is not yet necessary according to the terms of the agreement
between the province and the Dominion. Legislation was not contemplated for
the purpose of enabling the arbitrators to act. Legislation was only contemplated
for the purpose of giving effect to the award the arbitrators might make. In
point of fact it was an agreement that if legislation was necessary —

Sir Montague Smtth. — Thefn the difficulty is, until legislation, how is the
award authoritative so as to have the force of law ?
Mr. ScoBLS. — It is binding in conscience.

26

QUESTION OF THE VALIDITY OF THE ARBITRATORS AWARD.

The Lord Chancellor. — I should like to ask you whether it does not
necessarily result from your proposition that if the C5ouneil* for the Dominion and
the Council* for Ontario had themselves drawn a line upon the map, it would have
been within their power to do so without any reference to arbitration or any
•other proceeding whatever ?

Mr. SCOBLE. — I apprehend it would. It would have been an act of the
-executive authority of the Dominion, concurred in by the province affected by it.

The Lord Chancellor. — Concurred in by the province 1 You seem to me
in this argument to confound the council with the province.

Sir Robert Collier. — You see it is a province with representative institu-
tions. That makes all the difference.

Mr. ScoBLE. — True, but the executive power of the government is reserved
by the Act which constitutes the Dominion and the province.

Sir Barnes Peacock. — Suppose this award included a part of Rupert's Land
which was not formerly part of Quebec, and was given up to the British Govern-
ment, would that be binding ? It would be contrary to an Act of Parliament to
say that it should be binding, because the 6th section of the British North
America Act, 1867, says that the part which formerly constituted the Province of
Upper Canada shall constitute the Province of Ontario. Well, if they put any-
tUng in by the award which was not part of what constituted Upper Canada, it
would be invalid and contrary to this Act.

Mr. ScoBLE. — That may be so, my Lord, but the contention before the arbi-
trators was, and the contention here today is, that no portion of country which
was not formerly Canada, has been dealt with by the award.

The Lord Chancellor. — That is what will hereafter have to be considered,
if we do not admit that this award is to be a binding rule. Of course then we
shall have to consider to the best of our power what the real boundary is.

Mr. ScoBLB. — Yes, my Lord, but the Rupert's Land Act,t if I remember
rightly, does not provide boundaries for the territory of Rupert's Land, which at
all conflict either with the legislation establishing the Province of Quebec, or with
the legislation under which the Province of Upper Canada, now Ontario, was
finally established ; and therefore, if the arbitrators had as a matter of fact
included in their award any portion of the land which is described generally as
Rupert's Land, that would not have been in contravention of any Imperial
statute, but would have been a proceeding entirely unfettered by parliamentary
•enactment.

Sir Barnes Peacock. — My view is that if the award included in it any part
of Rupert's Land, that part not being part of original Canada, then it was not a
part which formed part of Upper Canada. It would be adding to Ontario some-
thing which did not belong to Upper Canada, and that would have been contrary
to the 6th section of the British North America Act.

Mr. Scoble. — Yes, my Lord, no doubt Ontario is restricted to the limits
assigned to Upper Canada by the various acts of authority on that point col-
lected in the evidence before you, The Rupert's Land Act, 1868, is at page
445, and there is no reference there to boundaries whatever.^

Sir Barnes Peacock. — I think it is all the lands and rights which belong
*o the Hudson's Bay Company.

Mr. ScoBLE. — Yes, my Lord, the lands granted under the charter, or purported
to be granted, to the Governor and Company of Hudson's Bay. But my argu-

* The Executive CounoiL t Imp. Act, 81 and 32 Vict., cap. 106— Rupert's Land Act, 186a

X Sec 2 of the Act is : ** For the purposes of this Act the term ' Rupert's Land ' shall include th«
jrhole of the lands and territories held, or claimed to be held, by the said Cfovemor and Company"— vis.,
vne Governor and Company of Merchants Adventurers of Eogland tnding into Hudson's Bay.

27

ARGUMENT OF MR. SCOBLE, Q.C. r

ment upon this question of the power to refer, (for I think it is perfectly clear upon
the correspondence, and upon the Orders in Council, that there was no legislative
action contemplated necessarily by either party except a declaratory Act after
the award had been made), leads me to this point, which has already been referred
to by one of your Lordships, namely, as to the power of the executive govern-
ments of the Dominion and of the province to deal with a question of this kind,
which, I submit, according to Lord Hardwicke^s decision, or rather dictum, in the
case of Penn v. Lord Baltimore, is not a dismembering or alienation of any exist-
ing province, but a mere ascertaining of the true boundaries of two coterminous
provinces. The 9th section of the British North America Act provides that
*' The Executive Government and aathority of and over Canada is hereby declared
to continue and be vested in the Queen."

I apprehend, my Lord, that entirely saved the royal prerogative in regard to mat-
ters of this kind, and left the royal prerogative to be exercised by the Governor-
General in Council.

Sir Barnes Peacock. — But could the royal prerogative give any thing to
Ontario which did not belong to Upper Canada ?

Mr. Scoble. — No.

The Lord Chancellor. — Could vou exercise the royal prerogative to settle
boundaries if it included something which did not belong to the province ?

Mr. Scoble. — The contention is that the provin<^ includes the whole of
North America, up to the Rocky Mountains, and therefore it could not possibly
give any thing which was not contained within the limits of the province as it
stood.

The Lord Chancellor. — That may be right or wrong, but is it an answer ?

Mr. Scoble. — I apprehend that so far as there was no legislation affecting
the powers of the executive, the executive could deal with the whole of the
lands comprised in the Dominion of Canada, whatever they might be. If there
were a legislative enactment fixing the limit of any province, then I admit the
executive power could not operate over the lands contained within the province con-
stituted by that legislative enactment, but otherwise, I submit, the power of the
executive is free over the whole of the lands included in the Dominion not
specifically appropriated.

The Lord Chancellor. — This is the legislative enactment :

" The parts of the Province of Canada (as it exists at the passing of this Act^
which formerly constituted respectively the provinces of Upper Canada and Lower Canada
shall be deemed to be severed — "

and so on. It says " at the passing of this Act."^

Mr. Scoble. — That is, your Lordships will see, as far as the two old provinces
of XJpper and Lower Canada were concerned, and nothing more. It says that
old Upper Canada shall be Ontario, and old Lower Canada shall be Quebec
That is the whole effect of that section.

The Lord Chancellor. — The words," as it exists at the passing of this Act,**^
have reference to a certain state of boundary, and with reference to that the
Province of Ontario is constituted.

Mr. Scoble. — And that province includes the whole of Upper Canada ; and
it is to ascertain the boundaries of Upper Canada, now called Ontario, that the
reference to arbitration was made ; and I submit that was well within the powers^
bf the executive authority.

Sir Montague Smith. — Supposing the arbitrators had taken another view, and
manifestly straitened the boundary, so that it would not be the whole of the
Province of Upper Canada, — would not that have been in the teeth of thift
Act of Parliament ? I mean, is it doubtful ?

28

QUESTION OF THE ViLLIDITY OF THE ARBITRATORS* AWARD.

Mr. SooBLE. — Except upon Lord Harwicke's decision : I perhaps only ought
to call it Lord Hardwicke's opinion, because it was not necessary to the deter-
mination of the question of jurisdiction, which was the main question.

Sir Montague Smith. — If the arbitrators had authority, no one could assert
that that was not the true boundary.

Mr. ScoBLK — The authority to settle it must be somewhere. Wherever
a country is occupied, or claimed, by a government, I apprehend the power to
deal with the lands contained within that government must reside somewhere.
It must reside either in the executive or legislative authority.

Sir Montague Smith. — Suppose the boundaries of two counties in England
were in dispute ?

Mr. Scoble. — They would be settled by an action of ejectment in an
ordinary court of law.

The Lord Chancellor. — Of course the legislature can do anything, so long
as it is a competent legislature.

Mr. Scoble. — I submit that according to the dictum of Lord Harwicke
there is authority residing in the executive government.

The Lord Chancellopl — Those two persons who were the only parties
before Lord Harwicke could bind themselves.

Mr. Scoble. — I think Lord Harwicke goes rather beyond that,my Lord, with
great submission, in the general principle which he lays down. He says there :

"It is certain that the original jurisdiction in cases of this kind, relating to
boondaries between provinces, the dominion, and propietary government, is in the King
and council. . . . Where before the King and council, the King is to judge."

The Lord Chancellor. — That would relate to the crown colonies of course,
where the legislative power resides in the King.

Mr. Scoble. — I apprehend in a case of boundaries between states, the proper
course would be a reference to arbitration. At all events, a legal course would
be a reference to arbitration, without appeal to the authority of parliament.
I will give your Lordship a recent instance, occurring in this very district of
British North America. The question submitted under the treaty of Washington
to the Emperor of Germany to determine the boundary between British
Columbia and Vancouver Island, and the United States of America, in which
the question of the right of —

The Lord Chancellor. — That was between independent states. There is
no common legislature between independent states. It can therefore be deter-
mined by international compact.

Mr. Scoble. — Is not this in the nature of a compact between independent
states, depending no doubt upon one government, but still, as regards their rights
and legislatures, independent — only controllable by the Dominion in certain
respects, but otherwise perfectly free and unfettered in matters relating to their
ewn domestic government and organization. I think the analogy must be
taken to exist between two large provinces having independent rights, and
the case of two independent states, rather than the case between two private
individuals. In the case which is no doubt familiar to your Lordships, though it
was not a question of boundary — the case of The Nawah of the Camatic v.
The East India Company — although the East India Company was then^ a
private company, and subject to the Crown, yet it was held that in its position
in India, it was entitled to enter into agreements with independent states in India,
and it is put upon that ground by, I think. Lord Commissioner Eyre in giving his
Judgment, that in a matter of this kind — ^a matter of treaty as he calls it, although
it was not a treaty, because it was more of an agreement, but he uses the old word
treaty — ^in a matter of treaty of this kind the East India Company must be con*

29

ARGUMENT OF MR SCOBLE, Q: C.

sidered in the light of an independentstate treating with another independent state;.
So I apprehend here. Of course it may be that an action of ejectment may be-
tried to settle this question, but surely this is a more convenient way of settling the-
question once for all, by some inter-provincial agreement, which will prevent
harrassing and troublesome litigation of this kind, and I submit, my Lords, that
unless it can be shewn that it was ultra vire» of the executive governments tO"
refer this matter to arbitration, the whole question fails. I submit that as a
matter of convenience, and as a matter of right, it was imira vires of the execu-
tive to refer this matter to arbitration, and that in the preliminary agreement
which occurred before the reference, nothing more was done in the way of con-
templating legislation than the contemplation of a declaratory Act which should
give effect to the award of the arbitrators, thereby making it perfectly certain
to alt persons interested that the award had become law. It is only since
the award that the objection has been taken, that there was no power to refer^
and I submit that the executive authority being in the Governor in Council of
Canada, the Governor in Council of Canada having agreed to refer, the Province
of Ontario through its constituted authorities having also agreed to refer, and
the arbitrators having proceeded —

Sir Montague Smith. — Your argument goes to thisj that it has the effect of
law before it is confirmed by the legislatures.

Mr. ScoBLE. — I say it is binding on the two governments.

Sir Montague Smith. — It is binding on the two governments ; but the people-
are not bound, and the coui-ts of justice are not bound by it.

Sir Robert Collier. — You may say it is binding on everybody.

Mr. ScoBLE. — It is binding on everybody. The government merely repre-
sented the people for that purpose.

Sir Montague Smith. — What you say amounts to this, that the courts of
justice must be bound when it came incidentally before them.

Mr. ScoBLE. — The Ontario Legislature passed an Act and carried out the
contract on their part.

Sir Robert Collier. — But subject to legislation by the Dominion.

Sir Barnes Peacock. — That would not make the award binding on the^
courts of justice of Ontario.

The Lord Chancellor. — It is rather the reverse, because it shews that the-
Legislature of Ontario did not take your view of the matter.

Mr. Scoble. — Then surely there is something to be gathered from this, that
the Dominion of Canada, which has the power to disallow Ontario Acts, did not
disallow this Act.

The Lord Chancellor. — Why should it have disallowed it, seeing that it
had no operation whatever unless the Dominion Parliament should think fit so to
legislate ?

Mr. ScoBLE. — Then, my Lord, I submit that the duty of the government of
the Dominion was — this award having been made, and, according to the original
terms of the agreements, only requiring a declaratory Act to bring it into eflFect —

Sir Montague Smith. — Nobody can enforce on the legislature a duty. Sup-
posing it is a moral duty that they should pass such an Act, nobody can enforce
their performance of the duty.

Sir Barnes Peacock. — The executive government could not do more than
recommend it to the legislature.

Mr. Scoble. — They have never done that.

Sir Barnes Peacock. — They could not do more than that, and if they did
recommend it, and if the Act was not passed,, the recommendation would not hav^
any eflfect.

30

QUESTION OF THE VALIDITY OF THE ARBITRATOBS AWAKR

Mr. ScoBLE. — But they never submitted to the judgment of the Dominions
legislature the validity of this award. They have never brought forward any
Act at all, or taken any proceeding of a legislative character, as far as I am able*
to find in these papers, submitting the question to the decision of the Dominion^
legislature, and I would submit that that not having been done we are still in^
the dark as to whether or not this award will be accepted by the Dominion. We
have no means of judging. We say that under the agreement between the parties ^
the Dominion and the Province both agreed to take tne necessary steps to procure-
the passing of the declaratory Acts, and the Dominion not having taken any such
%tep up to this time, and the award not having been rejected by the legislature of ~
fche Dominion, it cannot be said that they have carried out their agreement, and I
submit that they cannot be heard to impeach the award. If the Dominion legisla-
tare had had the question submitted to it, as it was submitted to the Ontario
legislature, by an Act brought forward by the executive government, then they
might have passed an Act which probably would have prevented this ; or pos-
sibly I may say — for I do not know what the condition of parties in that part of
the world is suflSciently to say what the chances of passing the Dominion legisla^
ture are — ^but possibly they might have passed an Act which would have saved*
this reference to your Lordships. I say that they cannot be heard to impeach the-
award now, they not having done what they consented to do under the terms of
the reference to arbitration, namely, take steps to get a declaratory Act passed..

Sir Barnes Peacock. — Cannot Manitoba dispute it ?

Mr. Scoble. — No, my Lord.

Sir Barnes Peacock. — You say the Dominion cannot dispute it — cannot
Manitoba dispute it ?

Mr. Scoble. — No, my Lord. Manitoba is not affected by this question at all.
The Act of the Dominion and the Act of the Manitoba legislature which purport-
to alter the boundaries of Manitoba by enlarging them, and which purport to, be
proceedings under the British North America Act, 1871, are not operative, for
this reason, that the preliminary consent of Ontario, which is necessary under the
Act, has never been obtained, and therefore the whole question is at large as far
as Manitoba and Ontario are concerned. The award, so far as it binds the
Dominion, binds Manitoba, which was carved out of the North-West Territories,,
under the Imperial Act, before the award was made, and which the award there-
fore does not touch. As far as any legislation affecting the disputed territory i»
concerned, either Imperial or Dominion, there is no Imperial legislation at all, and
the Dominion legislation is incomplete, because it is not founded on the consent,
of the Province of Ontario.

My Lords, I shortly submit that this is really a question which must be looked
upon not as a simple question between private individuals, but a question
affecting large and important communities, and it is a question which ought to
be settled, I will say, not upon mere technicalities, but upon a question of what is
the right and proper course to be adopted under the circumstances. Looking at
it in that view, I think your Lordships cannot have the slightest difficulty in hold-
ing that in proceeding to a reference on this question of disputed boundary, botb-
the Dominion and the Province were taking what was the best course to be taken
under the circumstances, and that it was within the powers of the executives of
the Dominion and the Province respectively to agree to arbitration. No pre-
liminary consent of the legislatures, either of the Dominion or the Province, was;^
stipulated for in that submission. All the legislative action which was contem-
plated, was subsequent declaratory Acts, giving effect to the award, or rather
carrying out the award, so far as declaratory Acts might be necessary. If that lie
so, if there was this competency to refer, the award is still binding — binding oa

31

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

the Province of Ontario, because it admits it to be binding, and because it has
taken the steps which it was required to take, under the submission, to make it
legally effective throughout the country assigned to it; and binding on the
Dominion as yet, because it was one of the conditions that a declaratory Act
should be obtained. The Dominion is in default in never having submitted to its
legislature any proposition that a declaratory Act of that nature should be passed;
and this Board is therefore in the position of not knowing whether or not such an
Act, if submitted, would not be passed and the whole question set at rest.
* t^Mr. Mow AT. — As the case is a very important one, I wish to ask whether
your Lordships would allow Mr. Haldane, who is with me, to make a few obser-
wations upon this point?

The Lord Chancellor. — Three counsel ?

Mr. Mo WAT. — ^Of course it would be a matter of grace and favour if he is
heard.

The Lord Chancellor. — We cannot make a precedent of hearing three
counsel. 1 have no doubt Mr Haldane would give us useful and great assistance,
but it would be a dangerous precedent.

[The room was cleared, and their Lordships deliberated. After some time
counsel and parties were re-adm^itted.]

The Lord Chancellor. — Their Lordships are of opinion that the argument
must proceed upon the footing that this award has not in itself the force of law.

Mr. Mow AT. — That being so, should I go on now on behalf of the Province
of Ontario ?

The Lord Chancellor. — Of course it is very diflScult indeed to lay down
any principle which should give priority. I think if you could arrange it among
yourselves, that would be a good thing ; if you ccmnot, we must do so.

Mr. MowAT. — The Province of Ontario is first on the record.

The Lord Chancellor.— Then that gives you a prim^ facie right, if you
wish to go on.

Mr. McCarthy. — To that I may just say, my Lord, that the Province of
Ontario claims that they have been in possession of a large portion of this terri-
tory before the British North America Act ; and undoubtedly they were, up to
what is called the height of land.

The Lord Chancellor — The Province of Ontario ?

Mr. McCarthy. — Yes ; the Province of Ontario.

The Lord Chancellor. — Then, there may be several reasons why they
should wish to be heard in defence of their possession.

Lord Aberdare. — Are you going to contend that the Province of Ontario,
or Upper Canada, consisted of that which the arbitration gave them, or do you
contend for more ?

Mr. Mow AT. — Of course I am now to contend for as large an area as I can
establish.

Lord Aberdare. — That opens the whole question t

Mr. MowAT. — Yes, my Lord.

Lord Aberdare. — You do not limit it to the question whether or not the
finding of the arbitrators was a correct one ?

Mr. MowAT. — No, my Lord. We have a stronger case perhaps on one side,
a more conclusive case with regard to the west than with regard to the north ;
and if we are not to have just the very area that the arbitrators gave us, and do
not succeed in getting the northern boundary that they gave us, we want a larger
area in another direction.

Lord Aberdare. — You wish to swallow up the whole of this territory ?

82

ONTARIO CO-EXTENSIVE WITH THE OLD PROVINCE OF UPPER CANADA.

Mr. MowiT. — I do not say the whole, but a further portion. I submit, my
Lords, that there is a very strong case indeed in favour of the position that we
.are entitled to a much larger area than the arbitrators gave us ; but the area that
they gave us was no doubt an extremely convenient one. Their decision gave us
A compact province. They found, as our northern boundary, James' Bay, English
River and Albany River. We were quite content, and, on the whole, are con-
tented now with the area awarded to us. It may be a question whether a larger
Area would be expedient for the province to have ; with regard to that, there may
be a difference of opinion. If the award is not to be regarded as final, I must
lay before your Lordships what there is to be said in favour of much more exten-
sive boundaries. The area actually in dispute now — the area which the arbitra-
tors found, and to which the Dominion disputes our right — consists of something
less than 100,000 square miles ; but the portion of that area in which Manitoba
is interested is only 39,000 square miles, being the western portion. The territory
which, before the award, was claimed as part of Ontario, and had been claimed
by the old Province of Upper Canada, and then claimed, as part of Upper Canada,
by the old Province of Canada, and again, before the settlement with the Hud-
son's Bay Company, claimed by the Dominion itself as part of Upper Canada,
embraces very nearly 1,000,000 square miles, viz., 962,000 square miles. It may
not be for the interest of the Province to have so large a territory as that ; but if
the legal boundaries are to be insisted upon, your Lordships have to find,and will
find, how much of that, as matter of law, must be considered as part of Ontario;
and if the result is to give inconvenient boundaries, it may involve the necessity
of negotiation and so on.

Sir Robert Collier. — ^You would hardly wish to obtain an inconvenient
boundary.

Mr.. Mow AT. — We do not want to obtain inconvenient^ boundaries, but we
must be content with such boundaries as your Lordships hold to be the legal
boundaries, and if these happen to be inconvenient we must subsequently try to
negotiate terms for the purpose of compromising the matter. The whole area of
the province, as limited by the contention of Manitoba, is a little over 100,000
square miles ; making the province the smallest of all the large provinces. Our
area would be 101,000 square miles, while that of Quebec is 188,000 square miles,
or very nearly double, without taking into account any territory to which Quebec
may be entitled to the north of the height of land. British Columbia contains
340,000 square miles, making it between three and four times the area of Ontario.
Even Manitoba, as now constituted under the Dominion Act, contains 123,000
square miles ; so that Ontario would be considerably smaller than even Manitoba.
On the other hand, if we succeed in establishing some such boundaries as the arbi-
trators gave us, we shall still not have much more than half the area of the
Province of British Columbia, and only very little more than the area of the
Province of Quebec.

Sir Robert Collier. — What will it be ?

Mr. Mowat. — If we succeed in getting the arbitration boundaries, Ontario
-would contain about 196,000 square miles. In that case, however, Quebec would
liave far more than 188,000square miles, because if we make out a title, as I think
we can, to territory north of the height of land, Quebec would also be entitled to
territory north of the height of land, so that their 188,000 miles would be en-
larged — I do not know how much. I have no estimate as to that, but it would
be very considerably.

Then what are our true boundaries ? Ontario has the same boundaries as
the old Province of Upper Canada had. Upon that point there is no dispute.
The British North America Act, 1867, united the Provinces of Canada, Nova

8 (B.) 33

ARGUMBNT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Scotia and New Brunswick. By the Union Act of 1840, the two old Provinces
of Upper Canada and Lower Canada were constituted into the new Province of
Canada, so that whatever territory the Province of Canada had was part of
either Lower Canada or Upper Canada.

Then what was the area, and what the extent, of the old Province of Upper
Canada ? That province had been created under the Act of 1791, which contains
a recital that His Majesty was desirous of dividing the Province of Quebec into
two provinces. The Act did not make the division, but provided that if His
Majesty carried out his royal intention, the constitution of each of the two pro-
vinces should be the constitution set forth in the Act. His Majesty did divide
the old Province of Quebec (enlarging it, as we say, at the same time that His
Majesty was dividing it) into the two Provinces of Upper and Lower Canada.

That renders it necessary to enquire what the limits were of the old Province
of Quebec. That province was constituted by a previous Act of the Imperial
Parliament, passed in 1774, which is commonly referred to as The Quebec Act.*
It was passed some eleven years after the cession of all French Canada to
England. The cession took place under the Treaty of Paris, in 1763, Immedi-
ately after the cession, a royal proclamation was issued constituting the Province
of Quebec, but with very narrow boundaries. Nothing turns upon that procla-
mation now.

The first question is as to the Act of 1774, and the limits which it assigned
to the Province of Quebec. I shall have to refer to the language in which that
Act is expressed. The recital is :

** Whereas His Majesty, by his royal proclamation bearing date the seventh day of
October, in the third year of his reign, thought fit to declare the provisions which had

* iMp.tAcT, 14 Geo. 3.. cap. 83, secs. 1 and 2— The Quebec Act, 1774. .
An Act for making more effectual provision for the Government of the Province of Quebec in North America.

Whereas His Majesty, by his royal proclamation, bearing date the seventh day of October, in the
third year of hift reign, thought fit to declare the provisions which had been made in respect to certain
countries, territories and islands in America, ceded to His Majesty by the definitive Treaty of Peace con-
cluded at Paris on the tenth dav of February, one thousand seven hundred and sixty-three ; and whereas
by the arrangements made by the said royal proclamation, a very large extent of country, within which
there were several colonies and settlements of the subjects of France, who claimed to remain therein under
the faith of the said treaty, was left without any provision being made for the administration of civil
government therein ; and certain parts of the territory of Canaofa, where sedentary fisheries had been
established and carried on by the subjects of France, inhabitants of the said Province of Canada, under
grants and concessions from the government thereof, were annexed to the Government of Newfoundland^
and thereby subjected to regulations inconsistent with the nature of such fisheries : May it therefore please
Your Most Excellent Majesty, that it may be enacted, and be it enacted by the King's Most Ezcellent
Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of the same,

That idl the territories, islands and countries in North America, belonging to the Crown of Great
Britain, bounded on the south by a line from the Bay of Clialeurs, along the high lands which divide the
rivers that empty themselves into the River St. Lawrence from those which fall into the sea, to a point in
forty-five degrees of northern latitude, on the eastern bank of the River Connecticut, keeping tne same
latitude directly west, through the Lake Champlain, until, in the same latitude, it meets the River St.
Lawrence ; from thence up the eastern bank of the said river to the Lake Ontario ; thence through the
Lake Ontario and the river commonly called Niagara ; and thence along by the eastern and south eastern
bank of Lake Erie, following the said bank until the same shall be intersected by the northern boundary

? granted by the charter of the Province of Pennsylvania, in case the same shall be so intersected ; and
rom thence along the said northern and western boundaries of the said province, until the aaid weetem
boundary strike the Ohio ; but in case the said bank of the said lake shall not be found to be so inter-
sected, then following the said bank until it shall arrive at that point of the said bank which shall be
nearest to the north-western angle of the said Province of Pennsylvania, and thence, by a right line, to the
said north-western angle of the said province ; and thence along the western boundary ot the said province
until it strike the River Ohio ; and along the bank of the said river, westward, to the banks of the
Mississippi, and northward to the southern boundary of the territory gpranted to the Merchants Adven-
turers of England trading to Hudson's Bay ; and also all such territones, islands and countries which have,
since the tenth of February, one thousand seven hundred and sixty- three, been made part of the Govern-
ment of Newfoundland, be, and they are hereby, during His Majesty's pleasure, annexed to, and made
part and parcel of the Province of Quebec, as created and established by the said royal proclamation of the-
seventh of October one thousand seven hundred and sixty -three.

II. Provided tAwnys that nothing herein contained relative to the boundary e{ the Fteyinoe of Quebec
shall in any wise affect the boundary of any other colony.

34

CONSTRUCTION OF THE QUEBEC ACT, 1774.

been made in respect to certain countries, territories and islands in America, ceded to His .
Majesty by the definitive Treaty of Peace, concluded at Paris on the tenth day of
February, 1763—''

Your Lordships will observe that the proclamation only referred to a very small,
portion of the ceded territory, as I will shew directly :

" And whereas by the arrangements made by the said royal proclamation, a very
large extent of country, within which there were several colonies and settlements of the .
subjects of France, who claimed to remain therein under the faith of the said treaty,
was left without any provision being made for the administration of civil government
therein ; and certain parts of the territory of Oanada — "

That is not material, I think, for our present purpose. We know, therefore, from
the recital of the Act why it was passed. It was passed in view of the cession of
Canada to the British Crown, and for the purpose of providing a government for
a much more extensive territory than the proclamation had provided for. This
was deemed to be necessary because, outside the territory embraced in the prof
clamation,

" — a very large extent of country, within which there were several colonies andt
settlements of the subjects of France, who claimed to remain therein under the faith of
the said treiity, was left without any provision being made for the administration of civil
government therein."

This demonstrates that the purpose of the Act was to include in the extended
Province of Quebec such an extent of country as would embrace all the territory
within which there were colonies and settlements of the subjects of France.

The Lord Chancellor. — Settlements in the Province of Canada.

Mr. MowAT. — Yes ; it is called there " the Province of Canada," although
really there was no Province of Canada. I suppose the reference therefore was
to French Canada, which this Act calls " a province," although I do not think it
had that name under France.

Lord Aberdare. — The French themselves reserved a portion of what was
anciently called Canada, and threw it into Louisiana.

Mr. MowAT. — Yes, my Lord ; I shall have to refer to that in a moment. By
the treaty, the Mississippi was made the line of division between the British and
French possessions, and that part of Canada which was on the west of the
Mississippi, Great Britain did not acquire. It was, in effect, thrown into
Louisianna, and was thenceforth, so long as France governed it, part of
Louisiana.

That recital, I say, is conclusive with regard to the object of the Act ; and
we know, as a matter of fact — which, if it is disputed at all, I am prepared to.
establish, beyond any sort of doubt, by the papers which are printed, and the
maps — that there were those colonies and settlements all along the east bank of
the Mississippi, and further colonies and settlements covering the whole of the
North- West Territories to the base of the Rocky Mountains, and northward to the
Saskatchewan, besides the posts they had beyond the height of land, towards
Hudson's Bay. All through this territory, I say, there were these colonies and
settlements of the French. They had taken possession of the country, they had
traded there, and were in exclusive possession, and had been so for a long period
of 'time. The Hudson's Bay Company's rights I shall have to speak of by and
bye, but I say here that neither the Hudson's Bay Company, nor any other subjects
of Qreat Britain, had gone into that territory until after 1774, with a single excep-
tion perhaps of one point not very far from Hudson's Bay. Up to this period,
and up to some time afterwards, the company confined itself to the margin of
the Bay, and traded with the Indians found there, while the French took
possession and spread themselves all over the country.

36

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

There is to be placed on the Act a construction which will include all that
territory. I will shew other grounds for this construction. Thus, the Act
assigned to the Province of Quebec the whole of French Canada north of the line
which is described — we claim that the Quebec Act assigned to the Province of
Quebec all British Canada north of the southerly line which the Act sets forth.

Mr. McCarthy. — All of French Canada ?

Mr. Mo WAT. — All of French Canada which had been ceded to Great Britain,
north of the described line. Now, what would that include ? It would include
the territory along the Mississippi up to its source, because, by the Treaty of 1763
— the treaty of cession* — the Mississippi was made the boundary between the
British and French possessions. At that time it was not known how far north
the Mississippi had its source, nor was the exact position of its source known, so
that the effect of the treaty was that, as all Canada was ceded to England, all of
Canada that lay north of the source of the Mississippi would pass to England.
That would be the fair construction of the treaty, and that was the construction
which it always received.

The Lord Chancellor. — But the southern line on this seems to be along
the course of the River St. Lawrence. It says :

*' Bounded on the south by a line from the Bay of Chaleurs, along the high lands
which divide the rivers that empty themselves into the River St. Lawrence from those
which fall into the sea, to a point in forty-five degrees of northern latitude on the eastern
'bank of the River Connecticut, keeping the same latitude directly west through the Lake
dham plain until, in the same latitude, it meets the River St. Lawrence ; from thence up
the eastern bank of the said river to the Lake Ontario ; thence through the Lake Ontario
and the river commonly called Niagara; and thence along by the eastern and south-
eastern bank of Lake Erie, following the said bank until the same shall be intersected by
the northern boundary granted by the charter of the Province of Pennsylvania, in case
the same shall be so intersected ; and from thence along the said northern and western
boundaries o! the said province until the said western boundary strike the Ohio : but in
^case the said bank of the said lake shall not be found to be so intersected, then following
'the said bank until it shall arrive at that point of the said bank which shall be nearest to
the north-western angle of the said Province of Pennsylvania ; and thence, by a right

• The Tbkatt of Paris, 1763.

The D^nUiv€ Treaty of Friendship and Peace betM>een Hi$ Britannic Mqjestp, the Most Christian King^
and the King of Spain. Concluded at Paris, the 10th of i^e&rtMiry, J7SS*

Art. IV. His Most Christian Majesty renounces all pretensions which he has heretofore fonned, or
-might form, to Neva Scotia or Acadia, in all its parts, and guarantees the whole of it, ¥rith aU its
dependencies, to the King of Great Britain ; moreover, His Most Uhristian Majesty cedes and guarantees
to his said Britannic Majesty, in full right, Canada with all its dependencies, as well as the Island of
Cape Breton, and all the other islands and coasts in the Gulf and Kiver St. Lawrence, and in general,
everything tnat depends on the said countries, lands, i s l ands, and coasts, with the sovereignty, property,
possession, and all rights, acquired by treaty or otherwise, which the Most Christian Kinv and the Crown
* of France have had till now over tne said countries, islands, lands, places, coasts and tbeir inhabitants,
eo that the Most Christian King cedes and makes over the whole to the said King and to the Crown of
Great Britain, and that in the most ample form, without restriction, and without any liberty to depart
from the said cession and guaranty under any pretence, or to disturb Great Britain in the possessions above
mentioned.

Art. VII. In order to re-establish peace on solid and durable foundations, and to remove for ev^ all
subjects of dispute with regard to the limits of the British and French territories on the continent of
America, it is agreed that, tor the future, the confines between the dominions of His Britannic Majesty
and those of His Most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line
- drawn along the middle of the River Mississippi, m>m its source to the River IberviUe, and from thence
by a line drawn along the middle of this river and the Lakes Maurepas and Pontchartrain, to the sea ;
and for this purpose Uie Most Christian King otdes in full right, and guarantees to His Britannic Majesty
the river ana port of the Mobile, and everything which he possesses or ou^^t to possess, on the left side of
the Mississippi, except the town of New Orleans, and the island in which it is situated, which shall remain
to France ; provided, that the navigation of the Mississippi shall be equally free as well to the subjects of
Great Britain as to those of France, in its whole breadth and length, from its source to the sea, and
expressly that part which is between the said Island of New Orleans and the right bank of that river, as
well as &e passage both in and out of its mouth.

^ which the Kiag of Portagal aoosdtd on the same day.

86

CONSTRUCTION OF THE QUEBEC ACT, 1774.

line, to the said north-western angle of the said province ; and thence along the westenx*
boondary of the said province until it strike the River Ohio ; and along the bank of tha
said river, westward, to the banks of the Mississippi, and northward to the southern
boundary of the territory granted to the Merchants Adventurers of England trading to.
Hudson's Bav."

Mr. MowAT. — Yes. Your Lordship will observe that in the beginning of*
that paragraph the enactment is this :

'' That all the territories, islands and countries in North America belonging to the
Grown of Great Britain, bounded on the south by a line " —

Now, the opening .expression of that indicates the purpose which the Gov-
ernment had in view. The only line which is described is the south line.

What I contend is — and I contend this upon the language of the statute,,
and upon a mass of evidence which I think is admissible for the purpose of
shewing the meaning of the Act, and which seems to me to place the matter^
beyond any sort of doubt ; but in the meantime — I am referring for the moment
to the Act only — what I contend is, that the word "northward" in the
statutory description does not refer to a line at all, but to the extension northward
of the whole territory. Parliament described the south line minutely, and I sub-
mit that the true construction is, that, having so described the south line, the
word " northward " refers to the whole territory north wajrd to the territory of the.
Hudson's Bay Company.

The word "northward" does not necessarily mean due north. We have,
in the description, the word "west" not as meaning due west, but in a
westerly direction, and we have the expression "due west" where due west
is intended. Therefore, there is no presumption that " northward " in the Act
means due north, and the effect of so construing it would be this : If you con-
strue the word " northward " as referring nol to the whole territory north of the
described line, but as referring to a line merely, and if you assume that it means
" due north," this construction cuts away a very large territory, and a consider-
able French population in a number of French colonies and French settlements
along the Mississippi, as well as the whole of the French colonies and French
settlements in the country north of the Mississippi. There is no necessity for
that construction, and I submit it is not the one which the Courts would arrive
at, even without any extrinsic evidence in favour of our contention perhaps,
but certainly without any evidence beyond evidence that there were these
colonies and settlements and places which I have mentioned. Grammatically,,^
we cannot say that the word " northward " refers to a line. Look at the language *
once more :

" That all the territories, islands and countries in North America, belonging to the
Crown of Great Britain, bounded on the south by a line from the Bay of Chaleurs — "

and so on. Now, what are the words which precede "northward." Is it
"bounded northward?" Are we to put in the word "bounded" there? That
cannot be. "Bounded by a line northward," you would have to say. Even the
northern boundary, according to the construction by the other side, is not found
in the description.

The Lord Chancellor. — That boundary carries you to the banks of the
Mississippi. There is a certain boundary " along the bank of the said river,
westward, to the banks of the Mississippi," and then it strikes " northward to the
southern boundary of the territory granted to the Merchants Adventurers of
England trading to Hudson's Bay."

Mr. MowAT. — I may put the point in this way. You may say that the.
language admits, jyrvraa fade, of two constructions; that it meant a line<

37

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY .

Yunning northward from that point to the Hudson's Bay territory, or that it
meant the territory northward from this south line to the Hudson's Bay terri-
tory. The second is the construction which, I will shew your Lordships, was
intended. The Act does not give a northern boundary at all in any view of the
language.

The Lord Chancellor. — No, the line goes "northward to the southern
boundary of the territory granted to the Merchants Adventurers of England
trading to Hubson's Bay."

Mr. MowAT. — Yes ; and if you treat the word " northward " as referring to a
line, you merely get to a point on the territory of the Hudson's Bay Company,
and you have nothing in the Act to shew how our northern boundary is to run
from that point.

Sir Montague Smith. — Do you say the line follows the Mississippi bank
northerly ?

Mr. Mow at. — Yes, that is our construction.

Lord Aberdare. — That would give you the territory which the arbitrators
gave you.

Mr. Mow AT. — Yes, and that is our construction now. The construction in
times past was that " northward " would embrace (to use the language of this
very Act) *' all the territories, islands and countries in North America belonging
to the Crown of Great Britain, bounded on the south " by that line which is
•described. And if so, when you haye got to the source of the Mississippi, the
whole of the British territory north formed part of Quebec. If you draw a due
tiorth line from the source of the Mississippi, that would give us all I need in
order to sustain the arbitrators* award on the merits ; but by such a line you
would leave out the French colonies and settlements in the North-West;
and the statute did not mean to leave them out — it meant expressly to take
them in. That was the very object of the statute. There is no distinc-
1iion between the French colonies and settlements in one part of Canada and the
^French colonies and settlements in another part of Canada. Wherever they were,
it was intended to bring them into the British Province of Quebec ; and if so, the
•only way of construing the Act is that the word " northward " refers to the whole
territory north of the described line up to the territory of the Hudson's Bay
^Company. That construction would embrace them all.

The Lord Chancellor. — Do you read it thus :

** Along the western boundary of the said Province until it strike the river Ohio ; and
along the bank of the said river, westward, to the banks of the Mississippi ; and along those
banks, northward, to the southern boundary of the territory granted to the Merchants
Adventurers of £ngland trading to Hudson's Bay V

Mr. MowAT. — That is a reading which would be sufficient to give Ontario an
"area as large as the arbitrators have given ; but it appears that Parliament did not
-even intend the Province to be limited in that way.

Lord Aberdare, — Your contention is, that whenever you get up to the point
x>i the Mississippi, everything directly northward of that, or northwards of a line
drawn through the source of the Mississippi, which was English territory, and
was not included in the Hudson's Bay territory, was a part of Quebec

Mr. Mow AT. — Exactly so, my Lord.

The Lord Chancellor. — Do you say the Hudson's Bay territory extended
from what is called " northward " of the Mississippi ?

Mr. MowAT. — Yes, from some point to the northward of the source of the
Ifississippi.

The Lord Chancellor. — Is that contended ?

Mr. MowAT. — Yes, that is contended.

38

OONSTKUCTION OF THE QUEBEC ACT, 1774.

The Lord Chancellor. — So this would be intelligible if you follow the banks
of the Mississippi until you come to its source, and then, according to the argu-
ment on the other side, there you meet with the southern boundary of the Hudson's
Bay territory.

Mr. MowAT. — They are not content, my Lord, with that construction, judging
from the observations of my friend Mr McCarthy in. opening. \Vhat he said was
that we are limited by a north line from the junction of the Ohio and the Missis-
sippi, leaving a space between the meridian of the junction and the Mississippi.

The Lord Chancellor. — The source of the Mississippi seems to be on a
line which is nearly due north to, and nearly coincides with, the yellow [referring
to the line of the meridian of the moat north-western point of the Lake of the
Woods as shewn on the Ontario Boundary Map of 1884].

Mr. Mow AT. — The arbitrators appear to have taken that view of it, deciding
that point against the old contention.

The Lord Chancellor. — If the territory of the Hudson's Bay Company
can be brought down to Turtle Lake,* then there could be no difficulty in consider-
ing the Act of 1774 in that way ?

Lord Aberdare. — Unless the southernmost boundary of the Hudson's Bay
Company were brought down also farther west.

The' Lord Chancellor. — According to this preamble, you would stop at the
point you reached when you got to the end of the Mississippi, and for that point
to coincide with the southern boundary of the Hudson's Bay territory, the words
"' northward to the southern boundary " would mean " northward along the banks
the Mississippi until you come to the southern boundary of the Hudson's Bay .
Company's territory," and then you stop ; and there your southern line stops.
You are presumed to have met with the southern boundary of the Hudson's
Bay Company, because it says *' northward to the southern boundary of the"
Hudson's Bay territory.

Mr. Mo WAT. — We must consider for a moment what the treaty of cession
says with respect to that, and what it cedes. I apprehend it to be this clearly :
As all Canada is ceded, and as the Mississippi is to be the division between French
territory and English territory, then you would draw a line due west from
the Mississippi, and south of that would be French, and north of that would be
English, whether it belonged to the Hudson's Bay Company or not.

I have said that unless that construction is adopted you exclude French
colonies and settlements. Further, what alone is sufficient, I submit, to demon-
strate that this territory is to be included is this : there was no other government

Erovided for the British territory which is said by the opposite construction to
e excluded from the operation of the Act. While this Act gives a government
to Ihe Province of Quebec, with the description contained here, neither this Act,
nor any other Act, nor any executive act, gave any government whatever to the
territory said to be excluded.

The Lord Chancellor. — Are you still on the Hudson's Bay territory ?

Mr. Mow AT. — I am dealing with the territory to which the Hudson's Bay
•Company were not entitled.

I am seeking to prove that it is not a due north line from the confluence of
the Ohio and the Mississippi which is contemplated here. If the word " north-
ward " in the Act means a due north line from the confluence of the Ohio and the
Mississippi, then you cut off 7,000 square miles of territory south of the height of
land, of which Upper Canada, and the Province of Canada, and the Dominion of
Canada before the settlement with the Hudson's Bay Company, may be said to
have been in undisturbed possession, granting lands in it, and exercising juris-

* One of the two farthett souroes of the MiMissippi— the other being Lake ItMoa.

39

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO ve QUESTION OF BOUNDARY :

diction over it. It is marked on one of our maps with striped lines in order
to shew what the territory is [prodvAyiTig the Ontario Boundary Ma/p of 1884],
I had this made for the purpose of making the argument a little more easy.

Sir Montague Smith. — Where on the map is the confluence of the twa
rivers ?

Sir Robert Collier. — Down at the bottom of the purple line.

The Lord Chancellor. — If you strike due north from the confluence, it
seems to coincide exactly with the line separating the tract coloured pink, from-
that striped with yellow and pink crosswise.

Mr. MowAT. — Yes, and they have been striped in order to make that clear.

Lord Aberdare. — Was this portion which was granted by the award, ever
claimed as a portion of the Hudson's Bay territory — down to the Rainy River —
down to the United States boundary ?

Mr. Mow AT. — They did claim a portion of it. They never claimed that
portion which was south and east of the height of land — here, in the western
portion of the Province [ pointing on the ma^^J.

Lord Aberdare. — Is that marked here ?

Mr. McCarthy. — It is on the map which I handed in first.

Lord Aberdare. — In this coloured portion. Did the Hudson's Bay Company
claim this as hunting grounds included in their grant of 1670 ? Is that coloured
portion a part of the territory claimed to have been granted to the Hudson's
feay Company ?

Mr. McCarthy. — Part was, and part was not.

Lord Aberdare. — The contention is, that the whole of that which was
northward of the Mississippi belonged to the Hudson's Bay Company ?

Mr. Mow AT. — It is only later in the century that the Hudson's Bay
Company made the claim to that extent.

1 want to shew that the old Province of Quebec was not confined within
these narrow limits of the due north line from the confluence of the Ohio and the
Mississippi, and I have mentioned some things which shew this ; but there are others
also. Immediately after the passing of this Act, a commission was issued to the
Governor-General, Sir Guy Carleton,* and that commission describes the Province
of Quebec which was to be under his government as being bounded by the bank of
the Mississippi to its source. It is at page 375 ; and it appears to have gone, in the
usual course, to the law officers of the Crown, to ascertain whether, as matter of

* Boundary Dkscriptiok in Impkrial Ck)MMi8sioN to Goyernor-Gsnbral Carlxton or Qurrxo,

27th Decimrbr, 1774.

And further know you, that we, reposing especial trust and confidence in the prudence, courage and
lojralty of you, the said Guj Carleton, of our especial grace, certain knowledge, and mere motion, hare thongjht
fit to constitute and appoint you, the said Guy Carleton, to be our Captain-Greneral and Govemor-in-Ouef
in and over our Province of Quebec, in America, comprehending all our territories, islands and countriaa
in North Ameaica« bounded on the south by a line from the Bay of Chaleurs, alon^ the highlands which
divide the rivers that empty themselves into the river St. Lawrence from those which fall mto the sea, to
a point in forty-five degrees of northern latitude, on the eastern bank of the river Connecticut, keeping
the same latitude directly west, through the Lake Champlain, until, in the same latitude, it meets with the
river St. Lawrence ; from thence up the eastern bank of the said river to the Lake Ontario, thence thiough
Uie Lake Ontario, and the river commonly called Niagara, and thence along by the eastern and south-eastern
bank of Lake Erie, following the said Imnk until the same shall be intersected by the northern boundary
granted by the charter of the Province of Pennsylvania, in case the same shall be so intersected, and
from thence along the said northern and western boundaries of the said province, until the said western
boundary strikes the Ohio ; but in case the said bank of the said lake shall net be found to be so intersected,
then following the said bank until it shaU arrive at that point of the said bank wnich shall be neareat to
the north-western angle of the said Province of Pennsylvania, and thence by a right line to the said north-
western angle of the said province, and thence along the western boundary of the said orovince antH it
strikes the river Ohio, and along the bank of the said river, westward, to the banks of Mississippi, and
northward, along the eastern bank of the said river, to the southern boundary of the territory granted
to the Merchants Adventurers of England trading to Hudson's Bay, and also all such territories^
islands and countries which have, since the tenth day of February, one thousand seven hundred ana
sixty-three, been made part of the Gk>vemment of Newfoundland as aforesaid, together with all the rights^
members and appurtenances whatsoever thereunto belonging.

40

BOUNDARY DESCRIPTION IN IMP. COMMISSION TO GOVERNOR CARLETON, 1774.

law, it corresponded with the provisions of the Act. The law officers were
very eminent men : Mr. Thurlow (afterwards Lord Thurlow) and Mr. Wedderburik
(afterwards Lord Loughborough). Your Lordships will find that the language is,
that Sir Guy Carleton was appointed

" Govemor-in-Ohief in and over our Province of Quebec, in America, comprehending
all our territories, islands and countries in North America, bounded on the south — "

and so on. Then follows a description precisely the same as that in the Act,
with this diflference : the language is —

'' — and along the bank of the said river, westward, to the banks of Mississippi, and
northward, along the eastern bank of the said river, to the southern boundary of the
territory granted to the Merchants Adventurers of England' trading to Hudson's Bay.'"

So the commission is expressly that the western boundary was along the
eastern bank of the river ; and it was to include, your Lordships will observe^
and under it the Province of Quebec is expressly declared to comprehend,,
"all our territories, islands and countries in North America," bounded in the
way described. There is no exception of any portion of these territories,. .
islands and countries ; the commission was to include them, wherever they were
to be found.

Now, that was a commission issued immediately after the Act. It shews
the mind of the government and parliament at that time, and negatives the con-
struction which the other side endeavour to place upon the Act. I presume too
there is no ground whatever for suggesting that the commission is not admissible
evidence for this purpose. Further, this being an old Act — over a hundred years
old — I submit that it would be in accordance with authorities to look at, for
example, the debates in parliament, which are Aot usually looked at for the
purpose of construing an Act of Parliament, but which yet has been done in a
large number of cases.

The Lord Chang kllor — I want to get the dates right. I see the date of
Sir Guy Carleton's commission is 27th December, 1774. We do not know when
the Act received the royal assent, but I see the session of parliament in which
it was passed ended upon the 13th of January, 1774 ; at least it seems to be so
stated. If so, the Act must have been passed before Sir Guy Carleton's commis-
sion. It is very possible that the Act may have passed before.

Mr. MowAT. — It was before.

The Lord Chancellor. — Yes, I see it is nearly twelve months before.

Mr. Mow at. — The exact date of the passing of the Act was the 13th
January, 1774.

[Adjourned for a short time].

Mr. Mow AT. — My Lords, I have urged the construction of the Act to be,
that Quebec was to include all territory north of the described south line. I have
urged this upon several grounds. I have urged that it suflBciently appears from
the language of the Act, without any extraneous evidence. Secondly, that it
further appears from the fact that any other construction would exclude the
French colonies and settlements on the east bank of the Mississippi, and also in
the North- West territory. I have urged that that construction is further con-
firmed by the terms of the commission issued immediately afterwards to the
Governor-General ; and I was going to refer then to the proceedings upon the
BiU, contending, in the case of so old an Act as this, that it was proper enough^
and consistent with the authorities, to refer to those proceedings. My reference
will be a very short one, and the proceedings will make it very clear that the
construction intended was the one which I put upon this Act

41

ARGUMENT OF ATTORNEY-GKNERAL OF ONTARIO re QUESTION OF BOUNDARY :

The Lord Chancellor. — We must pause before we allow you to travel
into that line of argument. What authority have you for the proposition that
what was said by any gentleman in parliament is to be admissible as construing
an Act of Parliament ? If the opinion of Sir Francis Hincks is not admissible
to construe an award made by arbitrators of whom he was one, how can the
opinion expressed when a Bill is before parliament by any particular member be
-admissible to construe the Act ?

Mr. MowAT. — What I was going to shew was the terms of the Bill as it
ori^^inally stood, mentioning the changes that had occurred which create the
difficulty, and shewing why those changes had been made, and that the changes
have nothing to do with any limitation of the extent of territory which the
province was to have on the west, and on the north.*

The Lord Chancellor. — You must give us some authority for the use of
such matters as evidence. At least they can only express the views of particular
members as to what they supposed was in controversy.

Mr. MowAT. — My object is rather to point to the changes made in the
matter of the Bill, in its progress through the House and through committee, in
illustration and support of my contention. But, for the present, I will pass that
point.

I have pointed out that no other provision was made for any other part of
French Canada north of that line by means of this Act. I may further mention,
in connection with that observation, that before the cession, and while the terri-
tory was French, it was under the jurisdiction of the Gk)vemor of Canada, which
is a circumstance to indicate that the same course would have been followed by
the English. No reason has up to this moment been suggested, from any source
whatever, why any portion of French Canada should not have been included in
the Province of Quebec. Whatever reason there was for putting any portion in,
applies beyond any sort of doubt to the whole of French Canada — to the whole
of Canada that belongs now to Great Britain, and which was not owned by the
Hudson's Bay Company.

My Lords, these are the principal grounds on which, if we have to rest entirely
on the Act of 1774, without anything further, I submit it appears that the whole
of British Canada, not including anything that was owned by the Hudson's Bay
Company, was included in the Province of Quebec.

But the argument does not rest there. There are other grounds that establish
the same thing. In 1783, the treaty between Great Britain and the United IStates
was entered into, by which a very large part of Canada was ceded to the United

* The description in the Bill as it first stood was : '* all the said territories, islands and countries,
heretofore a part of the territory of Canada, in North America, extending^ southward to the banks of the
River Ohio, westward to the banks of the Mississippi, and north ward to the southern boundary of the territory
granted to the Merchants Adventurers of England trading to Hudson's Bay, and whieh said territories,
islands and countries are not within the limits of some other British colony, as allowed and confirmed by
the Crown, or which have, since the 10th of February, 1763, been made part of the government of New-
foundland."

Mr. Edmund Burke, then a member, objected in the interest of the Province of New Tork,
whose British Agent he was, that this was not a boundary of certainty as between that province
imd Quebec, and he moved the one which he had proposed, as follows, viz. : — '* a line drawn from a point on
the east side of Lake Champlain, in 45 degrees north latitude, and by a Jine drawn in that paraUel
west to the River St. Lawrence, and up that river to Lake Ontario, an 1 across that lake to the River Niiiffara»
and from Niagara across Lake Erie to the north-west point of the boundary of Pennsylvania, and down
the we-tt boundary of that province, b^ a line drawn from thence, till it strikes the Ohio."

^ These words down to and inclusive of ** thence" were inserted ; and the words— *' until it strike the
Ohio ; and along the bank of the said river, westward to the banks of the Mississippi, and northwaixi
to the southern boundary of the territory of the Merchants Adventurers of England trading to Hudson's
Bay : and also all such territories, islands and countries which have, since the 10th of February, 1768,
bemi made part of the government of Newfoundland, be, and they are hereby, during His Maje^y's
pleasure, annexed to and made part and parcel of the Province of Quebec,"— were next read.

These amendments of the committee were reported to the House ; and the clause as finally agreed to by
the House is as it stands in the Act. (See tfoint App. pp. 370-374.)

42

THE TREATY OF VERSAILLES, 1783.

States. The treaty is to be found at pages 533 and 534 of the Joint Appendix.*
This treaty described what should be the southern boundary of British
territory in this quarter. It describes the communications from Lake Ontario to
Lake Erie and Lake Huron, and then through Lake Huron :

" Thence along the middle of said water commanication into the Lake Huron ; thence
through the middle of said lake to the water commanication between that lake and Lake
Superior ; thence through Lake Superior northward of the Isles Royal and Philippeaux,
to the Long Lake ; thence through the middle of said Long Lake and the water communi-
cation between it and the Lake of the Woods to the said Lake of the Woods ; thence
throagh the said lake to the most north-western point thereof ; and from thence on a due
west course to the River Mississippi."

That was the treaty. A difficulty occurred, because it was subsequently
discovered that a due west line from the most north-western point of the Lake of the
Woods would not strike the Mississippi — that the principal source of the Missis-
sippi was at Lake Itasca, or at Turtle Lake, and lay south of the point which was
mentioned there.

The Lord Chancellor. — It is further south ?

Mr. Mow AT. — Yes, my Lord.

Sir Robert Collier, — Then the west line would not go near it.

Mr. MowAT. — No, but then I may mention that there are tributaries of the
Mississippi, or rather of the Missouri, which is itself a tributary of the Missis-
sippi — White Earth River, for instance — which a line due west from the point
would strike. The White Earth River is near the Rocky Mountains.

Lord Aberdare. — May not the Missouri have been in their minds as the
larger ?

Mr. Mow AT. — That is one view of the matter, which we put forward in the
-evidence. White Elarth River is marked on the map ; the longitude is 107^°.

The Lord Chancellor. — Was that settled by the Oregon Treaty, or earlier ?

Mr. Mow AT. — Earlier, my Lord. The Treaty of 1794 (Jay's Treaty) recited
that doubts had arisen, and provided for a joint survey with a view to the ascer-

* Tbratt of Vbbsaillbs, 17S3.

I>^nU%ve Treaty of Peace and Friendship between Hit Britannic Majesty and the United StcUes of America,

signed at Paris the 3rd of September, hSS.
Abtiolb II.— And that aU dispates which might arise in future on the tubieot of the boundarieB of the
«aid United States may be prevented, it is hereby aflrreed and declared, that the foUowin^ are and shidl be
the boundaries, yiz ., from the north-west angle of Novia Scotia, viz., that angle which is formed by a line
drawn due north from the source of St. Croix River to the high lands ; along the highhtads which divide
thoee rivers that empty themselves into the River St. Lawrence, from those which isXX into the Atlantic
^eean, to the north-westernmost head of Ck>nnecticut River ; thence down along the middle of that river
to the forty-fifth degree of north latitude ; from thence by a line due west on said latitude until it strikes
ithe River Iroquois or Gataraq^uy ; thence along[ the middle of said river into Lake Ontario ; through the
diddle of said lake until it strikes the communication by water betw^oen that lake and Lake Erie ; thence
along the middle of said communication into Lake Erie ; through the middle of said lake until it arrives at
•the water communication between that lake and Lake Huron ; thence along the middle of said water com-
munication into the Lake Huron ; thence through the middle of said lake to the water communication
between that lake and Lake Superior ; thence through Lake Sui)erior, northwunl of the isles Royal and
Philippeaux, to the Long Lake ; thence through the middle of said Long Lake, and the water communi-
cation between it and the Lake of the Woods, to the said Lake of the woods ; thence through the said
lake to the most north-western point thereof ; and from thence on a due west course to the River Mississippi ;
thenoebyaline to be drawn along the middle of the said River Mississippi until it shall intersect the
northernmost part of the thirty- first de{?ree of north latitude. South, by a line to be drawn due east from
the determination of the line last mentioned, in the latitude of thirty-one degrees north of the equator, to
the middle of the River Apalachicola or Catahouche ; thence along the middle thereof to its junction with
ithe Flint River ; thence straight to the head of St. Mary's River, and thence down along the middle of St.
Mary's River to the Atlantic Ocean. East, by a line to be drawn alonfj[ the middle of the River St. Oroix,
ix<mk its mouth in the Bay of Fnndy to its source, and from its source directly north to the aforesaid high*
lands which divide the rivers that faU into the Atlantic Ocean from those which fall into the River St.
Lawrence ; comprehending aU islands within twenty lea^pies of any part of the shores of the United States,
«nd lying between lines to oe drawn due east from the points where the aforesaid boundaries between Nova
Scotia on the one part, and East Florida on the other, shall respectively touch the Bay of Fundy and the
Atlantic Ocean ; excepting such dslands as now are, or heretofore have been, within the limits of the said
Province of Nova Sootia.

43

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO Te QUESTION OF BOUNDARY r

tainment of the principal source or sources of the river, and it wa,s in 1818 that
the Convention took place settling the 49th parallel of north latitude as the
boundary from the Lake of the Woods west to the Rocky Mountains. Then, the
treaty as to the boundary line east of the Lake of the Woods was in 1842 ; and
the Oregon Treaty was in 1846.

The settlement with the United States was an arbitrary one ; they did not
attempt to do anything more than agree on what the conventional boundary^
should be. I refer to this for the purpose of calling your Lordships' attention to-
the fact that a large part of Canada, as contained under the Act of 1774, and as
set forth in the commission of Sir Guy Carleton, issued also in 1774, ceased by^
virtue of the Treaty of Versailles to be British territory ; and that in 1786, after
that treaty, a new commission* was issued to Sir Guy Carleton, which describes-
his juriscUction in the same terms as the treaty.

Lord Aberdare. — What is the reference to that commission ?

Mr. MowAT. — Page 387. That commission appoints Sir Guy Carleton —

"To be our Captain-General and Govemor-in-Chief in and over our Province of
Quebec, in America, comprehending all our territories, islands and countries in North
America, bounded " —

and so on, precisely in the same way as the treaty. So that there we have
a commission to the Governor-General expressly up to the most north-western
point of the Lake of the Woods, and thence as far west as should be included in a
line due west from that point to the Mississippi, whatever construction that ex-
pression should receive under the circumstances. That is again further evidence
that there was no intention of stopping at a due north line from the Ohio and
Mississippi. That is one of the governmental acts negativing the notion of that
being intended. In fact there is not one tittle of evidence in any despatch,
in any map, in any governmental act, or in any legislation, in favour of this due
north line. The sole thing on which the whole argument for it rests, is what
may be gathered from the Act of 1774. Everything else that was done, so far as
this point was concerned — every bit of legislation we have, every official paper,
every despatch, every map, and all governmental action, both in England and in
the colonies — is against the due north line as being the western boundary of the
Province of Quebec, or the provinces which have been carved out of it, Upper
Canada, Canada, and Ontario. This is one of the commissions which negatives
any such thing, because it expressly gives to Sir Guy Carleton, as Governor-
General of Quebec, a jurisdiction at all events to the most north-western point of
the Lake of the Woods and so much further —

* Boundary Description in Imperial Ck)Mui8sioN to Governor-General Carleton of Quebec, 22ni>
April, 1786, after the Treaty of Peace with the United States.

And further know ye that we, repoiing especial trust and confidence in the ^radence, courage and
loyalty of you, the said Sir Guy Carleton, of our especial grace, certain knowledge- and mere notion, have^
thought fit to appoint you, the said Sir Guy Carleton, to be our Captain-General and Groveinor-in-Chief in
and over our Province of Quebec, in America, comprehending all our Territories, Islands, and Countries in
North America, bounded on the south by a line from the Bay of Chaleurs, along the high lands which
divide the rivers that empty themselves mto the River Saint Lawrence from those wiiich fall into the At-
lantic Ocean, to the north- westmost head of the Connecticut River ; thence down along the middle of that
river to the forty-fifth degree of north latitude ; from thence hy a line due west on the said latitude until it
strikes the River Iroquois or Cataraqui ; thence along the middle of the said river into Lake Ontario ;.
through the middle of said lake until it strikes the communication by water between that lake and Lake
Erie ; through the middle of said lake until it arrives at the water communication between that lake and
Li^e Huron ; thence along the middle of said water communication into the Lake Huron,: thence through
the middle of the said lake to the water communication between that lake and Lake SSuperior ; thence
through Lake Superior, northward of the Isles Royal and Phillipeauz, to the Loni; Lake ;. thence throogh
the middle of said Long Lake and the water communication between it and the Lake of the Woods to the
said lAke of the Woods ; thence through the said lake to the most north- western point thereof : and from
thence on a due west course to the River Mississippi ; and northward to the southern boundary of the-
territorjr granted to the Merchants Adventurers of England trading to Hudson's Bay ; and also all such
Territories, Islands, and Countries which have since the tenth of February, one thousand seven hundred
and sixty-three, been made part of the Grovernment of Newfoundland, together with all the rights, mMnben..
and appurtenances whatsoever thereunto belonging.

44

IMPERIAL ACT OF 1791 — CONSTITUTION FOR UPPER AND LOWER CANADA.

Lord Aberdarb. — The description in this commission was just as unintel-
ligible as that in the Treaty, because, after describing the line to Lake Superior,
it says this :

'* Thence throup^h the middle of said Long Lake and the water communication between
it and the Lake of the Woods to the said Lake of the Woods ; thence through the said lake
to the most north-western point thereof ; and from thence on a due west course to the River
Mississippi " —

which never would have reached there.

Mr. Mow AT. — But it removes any doubt, if it existed, as to the due north
line from the Ohio and Mississippi.

Sir Robert Collier, — It shewed a great ignorance of geography.

Mr. AIowAT. — Yes. Then it would have to be considered what effect had ,to
be given to the expression " due west." It seems to me on that point, since what
is called the Mississippi is not to be found due west of that point, that there is no
reason why the description should cease until you reach the Rocky Mountains.
The object evidently was to include all British territory there.

The Lord Chancellor. — One would also connect that with the original
commission to Sir Guy Carleton, which evidently supposed that it was drawn
northward from the junction of the Mississippi and the Ohio to a point which
probably they supposed to lie to the west of the Lake of the Woods. They were
wrong in their notion of the point vou have argued. Is it not in substance pro-
bable that they meant as much of the old boundary as remained after the cession to
the United States ?

Mr. MowAT. — I think that is what they did mean.

The Lord Chancellor. — Such territory, bounded in the old way, as remained
After the cession?

Mr. Mow AT. — I agree to that view, though I submit that what was intended
to be given was the whole of the remaining British territory, with the exception
of what was owned by the Hudson's Bay Company.

My Lords, I come now to the Act of 1791, * and to certain matters which
occurred immediately afterwards, and afford further verj' strong confirmation
of the construction for which I contend. 1 have already mentioned that the Act
of 1791 did not give the boundaries of the province. It provided for a govern-
ment in Upper and Lower Canada in case His Majesty should carry out his
intention of dividing the province into two, but did not give the line of division ;
but when the matter was before parliament. His Majesty communicated to parlia-

• Imperial Act, 81 Geo. III., cap. 81 (1791)— The Constitutional Act.

An Act to repeal certain parti of an Act poised in the fourteenth year of ffU Majesty^t reign, entitled An AH
for making more effectual provision for the Oovemment of the Province of l^uebee, in North America ;
and to make further prevision for the Oovemment of the said Province,

II. And whereas His Majestv has been pleased to signify, by his messa^ to both Houses of Parliament,
his royal intention to divide his rrovince of Quebec into two separate Provinces, to be called the Province
•of Upper Canada and the Province of Lower Canada : be it enacted by the auUiority aforesaid that there
«haU De within each of the said Provinces respectively a Legislative Council and an Assembly, to be sever-
ijly composed and constituted in the manner hereinafter described ; and that in each of the said Provinces
respectively, His Majesty, his heirs or successors, shall have power during the continuance of this Act, by
•and with the advice and consent of the Legislative Council and Assembly of such Provinces respectively, to
make laws for the peace, welfare and good government thereof, such laws not being repugnant to this Act ;
■and that all such laws being passed by the Legislative Council and Assembly of either of the said Provinces
respectively, and assented to by His Majesty, his heirs or suocessorsj or assented to in His Majesty's name,
by such person as His Majesty, his heirs or successors, shall from time to time appoint to be the Govemor|
or lieutenant-Govemor of such Province, or by such person as His Majesty, his neirs and successors, shaJl
from time to time appoint to administer the government within the sa^e, shall be, and the same are hereby
declared to be, by virtue of and under the authority of this Act, valid and binding to all intents and pur«
poses whatever, within the Province in which the same shall have been so passed.

45

AfiOUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

ment the line which he contemplated. We have official evidence * of what that-
line was. It contains what is material for our present purpose. I refer your
Lordships to page 393. I need not read the first part because nothing turns on it^
but after giving a description up to Lake Temiscaming, the paper goes on to des-
cribe the line intended in this way :

" And from the head of the said lake by a line drawn due north until it strikes the^
boundary line of Hudson's Bay, including all the territory to the westward and south-
ward of the said line, to the utmost extent of the country commonly called or known by
the name of Canada."

We find several documents in which that lansfuage occurs at that period^
and I refer to it for two reasons. I submit, my Lords, in the first place, it
shews what the Province of Quebec was understood to include and meant to-
include.

The Lord Chancellor. — Where is Lake Temiscaming ?

Lord Aberdare. — It is due south of the easternmost point of James' Bay.

The Lord Chancellor. — That description would include the greater part
if not the whole of Canada, west of the dividing line. It will not help you as
to the western boundary.

Mr. Mow AT. — I am referring to it here for the purpose of calling attention to-
the territory the Crown intended to be included in the Province of Quebec :

" Includiug all the territory to the westward and southward of the said line to the-
utmost extent of the country commonly called or known by the name of Canada."

The Lord Chancellor. — That means the whole of Canada, west of the line
of division, whatever*' Canada" means. The particular boundary divides Upper
from Lower Canada, does it not ?

Mr. MowAT. — Yes, my Lord. We have the same expression in the Order in
Council afterwards made. I desire to prove to your Lordships that the territory
that I want to include was part of Canada, and that being part of Canada, this
expression shews it was to be included in Upper Canada. Then this paper was
the subject of correspondence also between the officials in this country, after the
passing of the Act. Your Lordships will find that at page 397 there is a letter of
the Right Honourable Henry Duudas to the Lord President of the Council-i^
In the second paragraph, your Lordships will see this language :

* Paper presented to Parliament previous to the passing of the Act of 1791, containing the

PROPOSED DESCRIPTION OF THE LiNE OF DIVISION BETWEEN THE PROVINCES OF UpPER AND LoWER

Canada.

[The following is the Copy of the Paper in question, as furnished by the Public Record Offlce, London, and set out in
official documents.]

To commence at a stone boundary on the north bank of the Lake St. Francis, at the cove west of Point
au Baudet, in the limit l)etween the Township of Lancaster and the Seigneurie of New Longueuil, runnine
along the said limit in the direction of north thirty- four degrees west, to the westernmost angle of the said
Seigneurie of New Longueuil, thence along the north-western boundary of the Seigneurie of Yaudreuil,
running north t>yenty-five degrees eas^ until it strikes the Ottawas' River, to ascend the said river, into the
Lake Tomiscanning, and from the head of the said lake by a line drawn due north until it strikes the boun-
dary line of Hudson's Bay, including all the territory to the westward and southward of the said line to the
utmost extent of the country commonly called or known by the name of Canada.

fTHB Right Honourable Henry Dundas to thb Lord President.

{Being the letter referred to in the Imperial Orders in CounoU of t4th August, 1791.)

Whitbhall, 17th August, 1791.
LoBD President,

Mt Lord, ~ An Act having passed in the last session of Parliament, entitled *' An Act to repeal
certain parts of an Act passed in the fourteenth year of His Majesty's Rei^, intituled ' An Act for mZ^^
more effectual provision for the Government of the Province of Quebec m North America,' and to make^
further provision for the government of the said Province," and it being provided by the 48th section of
the said Act, that by reason of the distance of the said Provinces from this countrv, and of the change to
be made by this Act in the government thereof, it may be necessary that there snould be some interval
of time between the notification of this Act to the said provinces respectively, and the day of ite
commencement within the said provinces respectively, it shall and may be lawful for His Majesty, with

FORMATION AND LIMITS OF THE PROVINCE OF UPPER CANADA.

'* I transmit to your Lordship herewith, by His Majesty's command, a printed «op7
of the said Act, together with a copy of a Paper presented to Parliament previous to the-
pasaing of the said Act, describing the linn proposed to be drawn for separating the^
Province of Upper Canada and Province of Lower Canada."

Then the enclosure follows ; and we have the same expression as to what Upper
Canada was to include.

The Lord Chancellor. — It is all Canada, west of a certain line.

Mr. MowAT. — Yes ; so that I must shew your Lordships what Canada didi
include. It is important for me that your Lordships should recognize that we are
entitled to all of Canada west of that line. After the Act of 1791, and the previous
Act, and the interpretation which was put upon it by the Imperial Government,
I think I am entitled to use what I find here — the description as to what the
country is to include — as explaining what the Province of Quebec had included,
under the Act of 1774 ; and if it does not shew that, and if it is not fair to use it
for that purpose, then it shews that it was intended that thenceforward all should
be included. There is nothing in the language that would prevent us from placing
on it that construction. So that if Quebec, previous to this year, 1791, did not
already embrace all of Canada, west of that line, the Orders in Council and
other documents referred to — the Orders in Council particularly — operated to
give such an increase to the country as included all that which was formerly
Canada. The Orders in Council will be found at pages 397 and 399 respectively ;
and the Proclamation referring to them, and bringing the Act into effect within,
the respective Provinces, is at page 401.*

the Advice of His Privy Council, to fix and declare, or to authorize the Governor or Lieutenant-Grovemor
of the ProviBce of (^uebeo, or the person administering the Government there, to fix and declare the
day of the commencement of the said Act withtn the said provinces respectively, provided such day
shall not be later than the Slst December, 1791.

I transmit to your Lordship herewith, by His Majesty's command, a printed copy of the said Act,,
together with a copy of a Paper presented to Parliament previous to the passing of the said Act,,
describing the line proposed to be drawn for separating the Province of Upper Canada and Province of
Lower Canada ; and I am to desire that your Lordship will be pleased to lay the same before His Majesty
in Council, for His Royal consideration with respect to the fixing and declaring the day ef the commence-
ment of the said Act, as well as the boundaries of the said provinces respectively.

I have, etc.,

• Hrnrt Dundas.
[Enclosure in the preceding letter.]

The proposed line of division.
^ To commence at a stone boundary on the north bank of the Lake St. Francis, at the cove west of
Pointe au Bodet, in the limit between the Township of Lancaster and the Seigneurie of New Longueuil,.
running alon([ the said limit, in the direction of north, thirty-four degreef west, to the westermost angle of the
said Seigneurie of New Longueuil, thence alon^ the north-western boundary of the Seigneurie of Vaudreuil,
mnninff north twenty-five degrees east, until it strikes the Ottawa River, to ascend the said river into the
Lake Tomiscanning, and from the head of the said lake by a line drawn due north until it striked the
boundary line of Hudson's Bay, including all the territory to the westward and southward of the said line
to the utmost extent of the country commonly called or known by the name of Canada.

* Imperial Order in Council, 24th August, 1791, bstabushino the Provinces of Upper and Lowbk
Canada, and separating them according to a certain line of division.

[Copy furnished by the Privy Council Office, London.]

At the court at St. James's, the 24th of August, 1791.

Present :

The King's Most Excellent Majestt.

Lord Chamberlain,

Lord Frederick Campbell.

Lord Grenville.

Lord Dover,

Mr. Secretary Dundas,

Mr. Chancellor of the Exchequer.

Whereas there was this dav read at the Board, a Report from the Riprht Honourable the Lords of thft
Committee of Council, dated the 19th of this instant, in the words following, viz. :

" Your Majesty having been pleaded by your Order in Council, bearing date the 17th of this instant^
to refer unto this Committee a letter from the Right Honourable Henry Dundas, one of Your Majesty's
Principal Secretaries of State, to the Lord President of the Council, transmitting a printed copy of an Act
paMed in the last session of Parliament, entitled * An Act to repeal certain parts of an Act passed in the
fourteenth year of His Majesty's rei^, entitled, an Act for making more eflfectual provision fur the gov
emment of the Province of Quebec in North America, and to make farther provision for the governiOMk

47

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY:

* Lord Aberdare. — Is this contested by anybody ?

Mr. MowAT. — Yes ; for if this is correct, then the due north line from the
confluence of the Ohio and the Mississippi is put out of the question, and that fact
makes the great difficulty here, because it is on the west side of the awarded
territory that the land is most valuable. That on the north side is not valuable
now, but will be some day. It is not a very fertile countrj% but still is a
country that may be inhabited.

Lord Aberdare. — What I meant was this. They would of course accept that
all that was west of that line was Upper Canada. Then the question comes, what
is Canada ?

Mr. MowAT. — I shall have to shew that.

The Lord Chancellor. — All that can be inferred from this is, that there is
a line fixed between Upper and Lower Canada to the east, about which there is
no dispute. It can also be inferred that the northern boundary was the Hudson's
Bay territory, but where exactly the western boundary of Canada is, there is
nothing whatever to help you.

Mr. Mow AT. — The expression there is that Quebec includes all that is
•* commonly called or known by the name of Canada." I do not think there is any
room for doubt, with all the proofs we have here, that all north of the prescribed

of the said Province ' ; and also copy of a Paper presented to Parliament previous to the passing of the
said Act, describing the line oroposed to be drawn for dividing the Province of Quebec into two separmt,
provinces, agreeable to Your Majesty's royal intention, signified by Message to both Houses of Parliament
to be called the Province of Upper Canada and the Province of Lower Canada, and stating, that by
jiection 48 of the said Act, it is provided, that by reason of the distance of the said Provinces from this
oountrv, and of the change to be made by the said Act in the government thereof, it may be necessary that
there should be some interval of time between the notification of the said Act to the said Provinces
respectively, and the day of its commencement within the said Provinces respectively, and that it should
be lawful for Your Majesty, with the advice, of your Privy Council, to fix and declare, or to authorize the
Governor or Lieutenant-Governor of the Province of Quebec, or the person administering the govemmnnt
there, to fix and declare the day of the commenoement of the said Act within the said Provinces
respectively, provided that such day shall not be later than the dlst of December, 1791 :

" The Lords of the Committee, in obedience to Your Majesty's said Order of Reference, this day took
the said letter into their consideration, toother with the Act of Parliament therein referred to, and likewiM
copy of the said Paper describing the Ime proposed to be drawn for separating the Province of Upper
Canada and the Province of Lower Canada ; and their Lordships do thereupon agree humbly to report as
their opinion to Your .Majesty, that it may be advisable for Your Majesty, by your Order in Council, to
divide the Province of Quebec into two distinct provinces, hj separating[ the Province of Upper Canada
and the Province of Lower Canada, according to the said line of division described in the said Paper
copy of which is hereunto annexed :

** And the Lords of the Committee are further of opinion that it may be advisable for Your Majesty,
by warrant under your Royal Sign Manual^ to authorize the Grovemor or Lieutenant-Gavemor of 'dSe
Irovince of Quebec, or the person administeniuf the g[ovemment there, to fix and declare such day for
the commencement of the said before-mentioned Act within the said two Provinces of Upper and Lower
Canada respectively, as the said Gk)vemor or Lieutenant-Grovemor of the Province of Quebec, or the person
administering the government there, shall judge most advisable, provided that tuoh day shall not be later
than the 31st day of December in the present year, 1791 :

'* * The Proposed Line of Divuion to commence at a stone boundary on the north bank of the Lake
St. Francis, at ths cove west of Pointe au Bodet, in the limit between the Township of Lancaster and the
Seigneurie of New Longueuil, running along the said limit in the direction of north thirty-four degrees
west to the westermost angle of the said Seigneurie of New Longueuil, thence, along the north-weetem
iMundary of the Seigneurie of Vaudreuil, running north twentj-five deffrees eas^ until it strikes the
Ottawas River, to ascend the said river into the Lake Tomiacanninflr, and from the head of the said lake
by a line drawn due north until it strikes the boundary line of Hudson's Bay, including all the territocy
to the westward and southward of the said line to the utmost extent of the country commonly called or
Imown hv the name of Canada.'"

V His MajeetT this day took the said report into His royal consideration, and approving of what is
therein propoaad, is pleased, by and with the advice of His Privy Council, to order, as it is hereby oitlered,
that the Province of Quebec be divided into two distinct proTinoet, to be oallea the Province of Upper
Canada and the Province of Lower Canada, by separating the said two provinces according to the follow-
tng line of division, viz. :

** To commence at a stone boundary on the north bank of the Lake St. Francis, at the cove west of
Fointe au Bodet, in the limit between the Township of Lancaster and the Seigneurie of New Lon-
goeoil, ninninff along the said limit, in the direction of north thirty-four degrees west, to the westermost
angle of the said Seigneurie of New Longueuil, thence alonjr the north-western boundary of the Seigneurie
^Vaudrouil, running north twentsr-five degrees east, until it strikes the Ottawas River, to ascend the
aaid river into the Li3ce Tomiscanning, and from the head of the said lake by a line drawn due north until

48

FORMATION AND LIMITS OF THE PROVINCE OF UPPER CANADA.

line which did not belong to the Hudson's Bay Company was commonly called or
known by the name of Canada.

Lord Aberdare. — All north ?

Mr. Mo WAT. — Yes. all north of the described line ; it was all "commonly
called or known by the name ofCanada."

The Lord Chancellor. — I should doubt it as a matter of fact, and we have
not had anything at present leading to that conclusion. There is nothing to
shew that Canada extended further north than the land of the Hudson's Bay
Company. Did they go to the North Pole ? I am not suggesting that informa-
tion is to be derived from the physical configuration, when possibly the physical
configuration on these points was totally unknown.

Mr. MowAT. — There is a difficulty from the geography being unknown.

The Lord Chancellor. — If it had been known, such and such boundaries
would have been convenient. As it was not known, there is no presumption
whatever that the boundaries were fixed with reference to any such considerations.

it strikes the boundary line of Hudson's Bay, including all the territory to the westward and southward of
the said line, to the utmost extent of the country commonly called or known by the name of Canada.*"

Whereof the Governor, Lieutenant-Governor, or Commander-in-Chief of the Province of Quebec, and
all other His Majesty's officers in the said Provinces, and all whom it may concern, are to take notice and
yield due obedience to Uii« Majesty's pleasure, hereby signified.

Imperial Order in Council, 24th August, 1791, authorizing the fixing op a day for the
commencement of the aot of that tear within the provinces op ijpper and lower canada
respectively.

[Copy from the Public Record Office, London.]

At the Court at St. James's, the 24th of August, 1791.

Present :
The King's Most Excellent Majesty in Council.

Whereas there was this day read at the Board a Report from the Rip^ht Honourable the Lords of the
Committee of Council, dated the 19th of this instant, in the words following, viz. :

** Your Majesty having been pleased by your Order in Council, bearing date the 17th of this instant,
to refer unto this Committee a letter from the Right Honourable Henry Dundas, one of Your Majesty's
Principal Secretaries of State, to the Lord President of the Council, transmitting a printed copy of an Act
passed in the last session of Parliament, entitled *' An Act to repeal certain parts of an Act passed in the
toorteenth year of His Majesty's rei^, entitled * An Act for making more effectual provision for the ifov-
emment of the Province of Quebec m North America, and to make further provision for the government
of the said Province ' ; and also copy of a Paper presented to Parliament previous to the passing of the
said Act, describing the line proposed to be drawn for dividing the Province of Quebec into two separate
provinces, ag^reeable to Your Majesty's royal intention, signified by Message to both Houses of Parliament,
to be called the Province of Upper Canada and the Province of Lower Canada, and stating, that bv
section 48 of the said Act, it is provided, that by reason of the distance of the said Provinces from this
country, and of the change to be made by the said Act in the government thereof, jt may be necessary that
there should be some interval of time between the notification of the said Act to the said Provinces
respectively, and th^day of its commencement within the said Provinces respectively, and that it should
be lawful for Your Majesty, with the advice of your Privy Council, to fix and declare, or to authorize the
Governor or Lieutenant-G<>vemor of the Province of Quebec, or the person administering the government
there, to fix and declare the day of the commencement of the said Act within the ^aid Provinces
respectively, provided that such day shall not be later than the Slst of December, 1791 :

'* The Lords of the Committee, in obedience to Your Majesty's said Order of Reference, this day took
the said letter into their consideration, together with the Act of Parliament therein referred to, and likewise
copy of the said Paper describing the fine proposed to be drawn for separating the Province of Upper
Canada and the Province of Lower Canada ; and their Lordships do thereui)on agree humbly to report as
their opinion to Your Majesty, that it may be advisable for Your Majesty, by your Order m Council, to
divide the Province of Quebec into two distinct provinces, by separating the Province of Upper Canada
and the Province of Lower Canada, according to the said line of division described in the said Paper."

His Majesty this day took the said Report into His K^al consideration, and approving of what is
therein proposed, was pleased, by and with the advice of His Privy Council, to order that the Province
of Quebec be divided into two distinct provinces, to be called the Province of Upper Canada and the
Province of Lower Canada, by separating the said two provinces according to the line of division inserted
in said Order : And that His Majesty is hereby further pleased to order, that the Right Honourable Henry
Dundas, one of His Majesty's Principal Secretaries of State, do prepare a Warrant, to be passed under
His Majesty's Royal Sign Manual, to authorize the Governor or Lieutenant-Governor of the Province of
Quebec, or the person administering the government there, to fix and declare such day as they shall judge
most advisable, for the commencement, within the Province of Upper Canada and the Province of Lower
Canada respectively, of the said Act passed in the last session of Parliament, entitled " An Act to repeal
certain parts of an Act passed in the fourteenth year of His Majesty's reign, entitled An Act for making
more effectual provision for the Government of the Province of Quebec, in North America, and to make

4 (B.) 49

ARGUMENT OF ATTORNEY -GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Lord Aberdare. — You have the Lake of the Woods constantly mentioned^
but you decline to confine yourself to that.

Mr. MowAT. — Since the award is not to be recognized, I want to go furtlier
if I can.

Sir Robert Collier. — You will be satisfied* with that?

Mr. Mo WAT. — If I also get the north boundary which the arbitrators gave us.

Sir Barnes Peacock. — It is only the western boundary that is now
before us ?

further provision for the Government of the said Province," provided that such day, so to be fixed and
declared for the conimenoenient of the said Act, within the said two provinces respectively, shall not be
later than the thirty-first day of December, one thousand seven hundred and ninety -one.

Steph. Cottrell.

Proclamation ok 18th November, 1791, fixing a day for the commencement op the Act of that

YEAR within UpPER AND LoWER CANADA RESPECTIVELY.

Alured Clarke:

George the Third, by the Grace of God, of Great Britain, France and Ireland, King, Defender of thfr
Faith, and so forth.

To all our loving subjects whom these pre:»ents may concern, greeting :

Whereas we have thought fit, by and with the advice of our Privy Council, by our Order in Council^
dated in the month of Augnist last, to order that our Province of Quebec should be divided into two
distinct provinces, to be called the Province of Upper Canada and the Province of Lower Canada, by
separating the said two provinces according to the following line of division, viz. :—'* To commence at a
stone boundary on the north bank of the Lake St. Francis, at the cove west of Pointe au Bodet, in the
limit between the Townshi{) of Lancaster and the Seigneurie of New Longueuil, running along said Imiit
in the direction of north thirty- four degrees west to the westernmost angle of the said Seigneurie of New
Longueuil, thence along the north-western boundary of the Seigneurie of Vaudreuil. running north twenty-
five degrees east until it strikes the Ottawas River, to ascend the said river into tne Lake Tomiscanning,
and from the head of the said lako by a line drawn due north until it strikes the boundary line of
Hudson's Bay, including all the territory to the westward and southward of the said line to the utmost
extent of the country commonly called or known by the name of Canada." And whereas by an Act
passed in the last session of Parliament, intituled, ** An Act to repeal certain parts of an Act passed in
the fourteenth year of His Majesty's reign, intituled. ' An Act for makiatr more effectual provision f ^r the
government of the Province of Quebec*., in North America,' and to make further provision fur the gov-
ernment of the said Province," it is provided that by reason of the distance of the said provinces from
Great Britain, and the change to be made by the said Act in the government thereof, it may be necessary
that there should be some interval of time between the notification of the said Act to the said piovinces
respectively, and the day of its commencement within the said provinces respectively ; and that it should
be lawful for us, with the advice of our Privy Council, to fix and declare, or to authorize the Governor or
Lieutenant-Governor of our Province of Quebec, or the person administering the G^vernn>ent there,
to fix and declare the day of the commencement of the said Act within the said provinces respectively,
provided that such day shall not be later than the thirty-first day of December, one thousand seven hun-
dred and ninety one. And whereas, in pursuance of the said Act, we have thought fit by another Order
in Council, bearing date the twenty -fourth day of Au^st last, to authorize our Governor, or, in his
absence, our Lieutenant-Governor, or the person administering the Government of our said Province of
Quebec, to fix and declare such day as he should judge most advisable for the commencement of the said
Act within the Province of Upper Canada and the Province of Lower Canada respectively, and to that
effect have, by our warrant to our right trusty and well-beloved Guy, Lord Dorchester, Captain-General
and Go vernor-in- Chief in and over our said Province of Quebec, or in his absence, to our Lieutenant-
Governor or Commander-in-Chief of our said Province for the time being, under our signet and Royal
sign-manual, bearing date at St. James's, the twelfth day of September last, signified our will and pleasure
that he take the necessary measures accordingly :

Know ye, therefore, that our trusty and well-beloved Alured Clarke, Esquire, our Lieutenant-Gov-
ernor of our said Province of Quebec, in the absence of our said Governor thereof, hath judged it most
advisable to fix upon Monday, the twenty-sixth day of December next, for the commencement of the said
said Act within the provinces aforesaid respectively ; and it is accordingly hereby declared that the said
Act of Parliament, intituled, ** An Act to repeal certain parts of an Act passed m the fourteenth year of
of His Majesty's reign, intituled ' An Act for making more effectual provision for the government of the
Province of Quebec North in America,' and to make further provision for the government of the said
Province," shall commence within the said Provinces of Upper Canada and Lower Canada respectively^
on Monday, the said twenty-sixth day of December, in this present year one thousand seven hundred and
ninety-one, of which all our loving subjects, and all others concerned, are to take notice and govmn
themselves accordingly.

In testimony whereof we have caused these our Letters to be made Patent, and the Great Seal of our
said Province of Quebec to be hereunto affixed. Witness, onr trusty and well-beloved Alured Clarke,
Esquire, our Lieutenant-Governor and Commander-in-Chief of our said Province of Quebec, Major-
Greneral commanding our forces in North America, &c., &c., at our castle of St. Lewis in the City of
Quebec, this eighteenth day of November, in the year of our Lord one thousand seven hundred and ninety-
one, and in Ihe thirty-second year of our reign.

Hugh Finlay, A. C.

Actinfj Secretary.

50

\

THE HUDSON'S BAY CO.'S CHAKTER — EXTENT OF THE CO/S TERRITORJ.

Mr. Mow AT. — Yes, and all I haye to make out with reference to the Hudson's
Bay Company is this, that its boundary does not extend to the territory now
claimed hj Manitoba.

Lord Aberdark — That is not so, because according to you this was a por-
tion of old Canada, and not a portion of the Hudson's Bay Co>mpany*s territory,,
and is now a portion of Ontario. It is not a mere question of the western
boundary, but a question of the northern boundary also.

Mr. MoWAT. — With due respect, this Case has not submitted the point. The
Dominion has not concurred in anything being decided now except our western
boundary, and therefore, though part of the argument goes beyond that, that has
not to be decided now.

Lord Aberdare. — A question as to the western boundary is how far north
it extends.

Mr. MowAT. — Yes, and therefore I have to prove that the Hudson's Bay
territory did not come down to the most northern part that is in dispute between
Manitoba and Ontario.

The Lord Chancellor. — ^Until we have direct evidence bearing on it, it is
uncertain that the Hudson's Bay territory included Winnipeg Lake.

Mr. MowAT. — I think it is certain it did not include the Winnipeg Lake.

Sir Robert Collier. — What you want to determine is the boundary
between the two Provinces ; whether north, east, or west, it is the boundary
between the two Provinces. That, you say in effect only makes it necessary to
draw the Wbstem line. That is what we have to determine, the boundary line
between the two Provinces of Ontario and Manitoba,

Mr. Mo WAT. — Yes, and if I make out that the Hudson's Bay Company's
territory did not extend to the old Manitoba, that is all I have to make out. I
want to call your Lordships' attention to the fact, first of all, that this is 700
miles from the Bay, so that unless it can be made out against me that the
Hudson's Bay Company's territory came down as far as that —

Lord Aberdare. — Old Manitoba is the Province included within this line —
I mean the inner one [pointing on the map].

Mr. MowAT. — Yes. In regard to that part, there can be no difficulty,
because the Dominion Act was confirmed by Imperial legislation.

The Lord Chancellor. — Of course, in due order you must shew us
whether light is to be attained from the boundary of the Hudson's Bay grant.

Mr. Mow AT. — Yes ; perhaps I had better go into that now. The Hudson's
Bay Company's charter is to be found at page 341.*

•The Rotal Charter incorporating thk Hudson's Bat Company, 2nd May, 1670.

[Extracts.]

Charles the Second, by the Grace of God, King of England, Scotland, France, and Ireland, Defender

of the Faith, etc.
To all to whom these presents shall come, greeting :

Whereas our dear entirely beloved Cousin, Prince Rupert, Count Palatine of the Rhine, Duke of
Bavaria and Cumberland, etc. ; Christopher, Duke of Albemarle, William Earl of Craven, Henry Lord
Arlington, Anthony Lord Ashley, Sir John Robinson, and Sir Robert Viner, Knights and Baronets ; Sir
Peter Colleton, Baronet ; Sir Edward Hungerford, Knight of the Bath ; Sir Paul Neele, Knight ; Sir
John GriflR%h and Sir Philip Carteret, Knights ; James Hayes, John Kirke, Francis Milliagton, William
Prettyman, John Fenn, Esquires ; and John Portma^, Citizen and Goldsmith of London, liave, at their "
own great cost and charges, undertaken an expedition for Hudson's Bay, in the north-west part of America,
for the discovery of a new passajge into the South Sea, and for the finding somf* trade for furs, minerals,
and other considerable commodities, and by such their undertaking have already made such discoverie*
as to encourage them to proceed further in pursuance of their said design, by means whereof there may
probably arise very great advantages to us and our kingdom.

And whereas the said undertakers, for their further encouragement in the said design, have humbly
besought us to incorporate th<4m, and grant unto them and their successors the sole trade and commerce of
all those seas, straits, bays, rivers, lakes, creeks, and sounds, in whatsoever latitude the^ shall be, that lie
within the the entrance of the straits commonly called Hudson's Straits, together with all the lands,

51

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Your Lordships know that the validity of that charter has been very often
questioned, but it has never been adjudicated upon.

The Lord Chancellor. — I think on this occassion you can have nothing
to do with any question as to its validity.

Mr. Mow AT. — I will assume it is valid, and that the only question is, how far
it extends. The object of the charter was trade. The grant of the lands appears,
from the face of the instrumen.t to have been merely incident to the intended
operations of the Company in the way of trade. It provides however for towns
and villages, and colonies, and so on, on the lands that were granted to them.
The language of the grant is very large ; it is to be found at page 344 :

** And to the end the said Governor and Conipany of Adventurers of England
trading into Hudson's Bay may be encouraged to undertake and elfectually to prosecute
the said design " — that is searching for the north-west passage — " of our more especial
grace, certain knowledge and mere motion, we have given, granted and confirmed, and by
these presents, for us, our heirs and successors, do give, grant and confirm, unto the said
Governor and Company, and their successors, the sole trade and commerce of all the
seas, straits, bays, rivers, lakes, creeks, and sounds, in whatsoever latitude they shall be,
that lie within the entrance of the straits commonly called Hudson's Straits " —

countries and territories upon the coasts and confines of the seas, straits, bays, lakes, rivers, creeks, and
sounds aforesaid, which are not now actually possessed by any of our subjects, or by the subjects of any
other Christian Prince or State. ♦ ♦ • ♦ ♦

And to the end the said Governor and Company of Adventurers of England trading into Hudson's
Bay may be encouraged to undertake and effectually to prosecute the said design, of our more especial grace,
certain knowledge and mere motion, we have given, granted and confirmed, and by these presents, for us,
our heirs and successors, no give, grant and confirm, unto the said i^^ovemor and Company, and their
successors, the sole trade and commerce of all the seas, straits, bays, rivers, lakes, creeks ana sounds, in
whatsoever latitude they shall be, that lie within the entrance of the straits commonly called Hudson's
Straits, together with all the lands and territories upon the countries, coasts, and confines of the seas,
bays, lakes, rivers, creeks and sounds aforesaid, that are not already actually possessed by or granted to,
any of our subjects, or possessed by the subjects of any other Christian Prince or State, with the fishing
of all sorts of fish, whales, sturgeons and all other royal fishes, in the seas, bays, inlets and rivers within
the premises, and the fish therem taken, together with the royalty of the sea upon the coasts within the
limits aforesaid, and all mines royal, as well discovered as not discovered, of gold, silver, gems and precious
stones, to be found or discovered within the territories, limits and places aforesaid^ and that the said land
be from henceforth reckoned and reputed as one of our plantations or colonies in America, called
"Rupert's Land."

And further we do, by these presents, for us, our heirs and successors, make, create, and constltate
the said Governor and Company for the time being, and their successors, the true and absolute lords and
proprietors of the same territory, limits and places, and of all other the premises, saving always the
faitb, allegiance and sovereign dominion due to us, our heirs and successors, for the same, to have, hold,
possess and enjoy the said territory, limits and places, and all and singular other the premises hereby
granted as aforesaid, with their and every of their rights, members, jurisdictions, prerogatives, royalties
and appurtenances whatsoever, to them the said Governor and Company, and their successors for ever, to
BE HOLDEN of US, our heirs and successors, as of our manor of East Greenwich, in our county of Kent, in
free and common soccage, and not in capite or by Knight's service, yielding and paying yearly to us, our
heirs and successors, for the same, two elks and two black beavers, whensoever and as often as we,
our heirs and successors, shall happen to enter into the said countries, territorieb and regions hereby
granted. *********

And furthermore, of our ample and abundant grace, certain knowledge and mere motion, wk havr
granted, and by these presents, for us, our heirs and successors, do grant unto the said Governor and
Company, and their successors, that they and their successors, and their factors, servants and agents, for
them and on their behalf, and not otherwise, shall for ever hereafter have, use and enjoy, not only the
whole, entire, and only trade and traffic, and the whole, entire, and only liberty, use and privilege of
trading and trafficking to and from the territory, limits and places aforesaid, but also the whole and entire
jtr^de and traffic to and from all havens, bays, creeks, rivers, lakes and seas, into which they shall find
' entrance or passage by water or laud out of the territories, limits and places aforesaid ; and to and with
all the natives and people inhabiting, or which shall inhabit within the territories, limits and places afore-
said ; and to and with all other nations inhabiting any the coasts adjacent to the said territories, limits
and places which are not already possessed as aforesaid, or whereof the sole liberty or privilege of trade
and traffic is not granted to any other of our subjects. * « ♦ • ♦

And moreover, our will and pleasure is, and by these presents, fur us, our heirs and successors, wk do
GIVE and grant unto the said Governor and Company, and their successors, * ♦ ♦ ^y^^^ j^ shall
and may be lawful t© and for the said G(»vemor and Company, and their successors, from time to time, and
at all times from henceforth, to erect and build such castles, fortifications, forts, garrisons, colonies or
plantations, towns or villages, in any parts or places within the limits and bounds granted before in these
presents unto the said Governor and Company, as they in their discretion think fit and requisite. * *

In Witness whereof we have caused these our Letters to be made Patent.

Witness ourself at Winchester, the 2nd day of May, in the two-and-twentieth year of our reig^

By Writ of Privy Seal. Pigott.

52

EXTENT OF THE HUDSON S BAY COMPANY S TERRITORIAL GRANT.

So far the grant is of the sole trade and commerce, and I believe it is now well
recognized that to that extent the charter was void, but not in regard to what'
follows :

" Together with all the lands and territories upon the countries, coasts, and confined
of the seas, bajs, lakes, rivers, creeks, and sounds aforesaid, that are not already actually
possessed by or granted to any of our subjects, or possessed by the subjects of any other
Christian Prince or State,"

with the right of fishing, and so on.

Lord Aberdare. — And the right of mines.

Mr. MowAT. — Yes.

The Lord Chancellor. —

'' And that the said land be from henceforth reckoned and reputed as one of our
plantations or colonies in America, called * Rupert's Land.' "

Mr. Mow AT. — ^Yes, and then it goes on :

" And further we do, hy these presents, for us, our heirs and successors, make,
create and constitute the said Governor and Company for the time being, and their
successors, the true and absolute lords and proprietors of the same territory, limits and
places, and of all other the premises, saving always the faith, allegiance and sovereign
dominion due to us, our heirs and successors, for the same. To have, hold, possess and
enjoy the said territory, limits and places, and all and singular other the premises
hereby granted as aforesaid, with their and every of their rights, members, jurisdictions,-
prerogatives, royalties, and appurtenances whatsover, to them the said Governor and
Company, and their successors forever, to be holden of us, our heirs and successors,"

and so on. That is the grant.

The Lord Chancellor. — It is a grant of all unsettled lands, distinctly
described as being upon the countries, coasts and confines of certain seas.

Lord Aberdare. — And rivets too.

The Lord Chancellor.— Yes.

Mr. MowAT. — Your Lordships know that a gi'eat many charters were issued,
about this period, of land in North America, then newly discovered, and in the
possession of savages. The land was unknown, and the charters are very large
in the powers which they give, and in the extent of land which they purport to
grant. Every one of them, I think, was more definite than this charter is ; and
the construction which has been placed upon them is, that they entitled the
grantees to whatever lands they should discover and appropriate, by those means
which are recognized in international law as suflScient for that purpose, in the
case of a desert country. It is not mere discovery which gives property in a
territory of this kind, but it is clearly settled now that more than discovery is
required, — possession, occupation, and other things, are necessary as well.

The Lord Chancellor. — That may or may not be material in an interna-
tional question, but is it material for our present purpose ? We want to know
what is to be settled between these two provinces. Take Sir Guy Carleton'.<?
commission : there the expression is " territory granted."

Mr. MowAT. — Yes, my Lord, and I submit that that means effectually granted.

The Lord Chancellor. — But it does not contemplate any international
question.

Lord Aberdare. — Besides, the "occupation" would be occupation of the
hunters ; who went all round taking beavers and elks.

Mr. Mow AT. — But the Company did not do that — they did not leave the shores
of the Bay. I can shew your Lordship, beyond any sort of doubt, that until a
considerable time after the cession of 1763, when the right to trade in the interior
accrued to them in common with other British subjects, the Hudson's Bay Com--
pany never did that.

53

ARGUMKNT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Lord Aberdare. — They did not occupy all at once.

Mr. Mow AT. — They occupied no part of it. They erected what were called forts,
that is, trading posts, made sufficiently strong to resist attacks by the Indians of
Hudson's Bay. They had a few such posts on Hudson's Bay, and they traded only
ivith those Indians who came there. They did not go into the country at all.

The Lord Chancellor. — But your proposition is that the words of the Act,
which speaks of " territory granted to the Merchants Adventurers of England
trading to Hudson's Bay," really relate to nothing except a few forts upon the
Hudson's Bay — is that it ? What is the subject which these words, according to
the ordinary principles of construction, are intended to describe ?

•Mr. MowAT. — What I say is, that under these words no interest passed which
did not belong to the Crown.

The Lord Chancellor. — But the words are, from the conflux of the
Mississippi and Ohio rivers ** to the southern boundary of the territory granted "
— where do you claim that southern boundary to be ?

Mr. MowAT. — I think it is the southern boundary of such territory as they
may have appropriated under the powers which the charter gave to them.

The Lord Chancellor. — How it is possible that such construction can be
put upon it, I cannot conceive.

Lord Aberdare. — That would be limiting them as much too much, as the
other construction would perhaps too little.

Mr. MowAT. — In any case, there is a difficulty in determining where that
boundary is.

The Lord Chancellor. — But you must point out something definite that
is there, describing it. Supposinsj you can ascertain the boundary which had
been "granted, that would be one thing.

The Lord President. — Do you mean that they lost their grant by not
acting upon it ?

Mr. Mo WAT. — Yes, I do mean that ; or rather that the grant was to be com-
mensurate only with their actual appropriation or possession.

The Lord Chancellor. — But, then, if that were sound in law it would not
have anything to do with us here. This is a boundary dispute.

Lord Aberdare. — Surely when they leave off at this point of the Missinsippi,
And then speak of going north to the Hudson's Bay territory, they mean some-
thing within reasonable limits, not traversing over hundreds of miles.

Mr. Mo WAT. — Which are the words your Lordship refers to ?

Lord Aberdare. — I mean the various definitions which you have given to
us, in order to make out that your western boundary under the Act went westerly
of a line drawn north of the confluence of the Mississippi and the Ohio, and
to a certain point west of the Lake of the Woods, and from thence to the point
of intersection with the southern boundary of the Hudson's Bay territory. Now
the southern boundary of the Hudson's Bay territory would be close to the
Hudson's Bay itself probably.

Mr. Mow AT. — Quite so, my Lord.

Lord Aberdare. — Well, surely, they must have had in their contemplation
fiome other territory than that.

Mr. Mo WAT. — But that expression was used because it was not known how
far the Hudson's Bay territory extended. It was always a matter of question.
The Hudson's Bay Company had never taken possession there.

Sir Montague Smith. — This is as indefinite as it can be.

Mr. MowAT. — It is extremely indefinite ; and, my Lord, it must be made
definite, I submit, by knowing to what extent the Hudson's Bay Company were
jentitled to that territory.

54

EXTENT OF THE HUDSON S BAY COMPANYS TERRITORIAL GRANT.

The Lord Chancellor. — But if it was a grant of everything which had not
been ceded to or was not in the occupation of some other European countries, is
it material whether it was disputed by France or Portugal or any other nation ?
Is that question material here ?

Lord Aberdare. — It was disputed by France.

Mr. MowAT. — Yes, my Lord, it was disputed by France ; and I can shew that
France became the actual owner of all this territory.

Lord Aberdare. — The Treaty of Utrecht speaks, I think, of things being
"" restored " to the English Government, and not " ceded," shewing that the
English Government claimed all these things that France had been claiming.

Mr. Mow AT. — The despatches on both sides shew that they did not attach
any special meaning to the use of the one word rather than the other, and it
was rather a matter of sentiment and prejudice in introducing it than anything
else. The correspondence shews that clearly.*

There are several considerations which, I think, warrant us in the view we
take. I think I can shew your Lordships that all the country, except some of the
territory around Hudson's Bay, did belong to France ; that they did occupy it,
and did possess it, and did own it, and did claim it. and that their right to it was
not matter of dispute between England and France. Then I would submit that
the words to which your Lordship refers, " territory granted," plainly were
intended by parliament to be confined to territory which the Hudson's Bay
Company owned.

Why was the territory excluded from Quebec ? It was because the
Hudson's Bay Company had powers of government within the territory which
belonged to them, and therefore there was no necessity for including such
territory in Quebec. But if the terms of their grant had given them a larger
territor}'- than they had appropriated, or become owners of — if the terms of the
grant were such that it might cover territory which belonged to France, and
which was ceded to England, in 1763, by France, the title to which came to
England through France — that territory would certainly not have been excluded
from Quebec, and the reason for excluding it would not have applied. There
was a reason for excluding territory in which there was government under the
Hudson's Bay Company, but there was no reason for excluding territory which
the Hudson's Bay Company under the circumstances had no jurisdiction over;
and therefore I say that the words should be construed as meaning territory
owned by the Hudson's Bay Company ; territory to which they had perfected
their title ; territory which wa^ theirs, and which therefore would not come
within the cession of territory made in 1763 by France to England. Whatever
was ceded by France to England, whatever was in such a position that the title
to it arose from that cession, was not to be regarded as territory which was to be
excluded under those words from the new Province of Quebec.

Lord Aberdare. — You contend that everything that was not actually
occupied, in the sense in which you limit the word occupation, by the Hudson's
Bay Company, was a portion of French territory.

Mr. MowAT. — ^There was this desert country unoccupied, and by the laws
applicable to such cases,as recognized by European nations, it could be appropriated,
by any nation. The discoverer is entitled to a moderate time for the purpose
of making his title good by occupation and so on, but in this case the Hudson's
Bay Company were not the discoverers or occupiers of any territory which
Manitoba now comprises. The company through none of their agents had
penetrated this territory which is now in dispute. France on the contrary entered

* The TorcT- Prior- Bolingbroke oorreepondence, 1712-13, printed in Joint App., pp. 500-502, and
extracts from whioh are given pott^ p. 118.

55

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUEST[ON OF BOUNDARY :

into the country, erected forts and posts, and in this way, and by its ti-aders and
trading companies, had as effectual an occupation as the circumstances permitted^

Lord Aberdare. — Up to what time do you go on to say the Hudson's Bay
Company never penetrated ?

Mr. MowAT. — They never penetrated until long after 1774. What took

flace was this : — After the cession of 1763 the French abandoned the country^
t had been ceded to England. The French posts were under the com-
mand of French officers generally, and they gave up those posts, some of
them when they were demanded, and others they abandoned without a
demand. Their Canadian engages, however, with many French and Canadian
gentlemen of good family, remained behind in the settlements that had been
formed, and continued, in a certain degree, to prosecute the fur trade. Then
the English people from Canada and the other Provinces went into this
territory, and began trading with the Indians, and re-established some of the
French forts, built others, and occupied the territory even in a fuller way than the
French themselves had done ; and it was not until the effect of all this was very
much felt by the Hudson's Bay Company, that they entered into this territory
at all, or sent any of their servants or employees into it. The English traders
began to form companies, and there was also trading by individuals; but ultimately
they were all united into a company called the North-West Company, whose
operations were very extensive. Then the Hudson's Bay Company followed
these, and after a time began to erect posts where this company had erected them.
Things went on without any serious quarrelling between the two companies, until
the Earl of Selkirk took an interest in the Hudson's Bay Company, somewhere
in the early part of this century. The disturbances then became formidable^
But not until the latter part of the last century, and until after all these acts^
after the cession to England, after England became the proprietor of the
territory — through France, and not through the Hudson's Bay Company at
all — did the Hudson's Bay Company go into the interior. They have ad-
mitted that. We have got proofs from themselves that they had never
gone into the territory at all, but had made use of their posts along the
Bay for the purpose of trading there with such Indians as they could get to
oome to them. On the other hand, the French before the cession, and British
subjects, English and French, after the cession, went into the territory, settled
there, established themselves there in various ways, and traded with the Indians
there.

There were two purposes to be served by the charter. One was the pur-

fose of trading, and the other was the purpose of forming settlements. What
submit is, that the Hudson's Bay Company never made use of the charter for
the purpose of settlement at all. They do not appear to have sold a single foot
of land, or pretended to sell it, or pretended to occupy it for the purpose of
colonization or settlement, from 1670, when their charter was granted, until
a large grant was made by the Company, in 1811, to the Earl of Selkirk,
nearly 150 years after this charter was made.

Now, my Lords, what is it that is contended for as against Ontario ? It is
contended that under the words of this charter the whole of the territory
washed by the rivers that fall into Hudson's Bay became the property of the
company — consisting of about one and a half million square miles ; that they were
entitled to keep out of it everybody else ; that the effect of the charter was to
entitle them to keep it in the condition in which it then was, without settlement
at all. The company did not want it settled ; it was not their interest to have it
settled. I am not blaming them for this ; they had a right to pursue their own
interests in the way best fitted to promote them, but the fact is that it was against^

56

EXTENT OF THE HUDSON'S BAY COMPANY'S TERRITURIAI4 GRANT.

their interest to have the country settled, and they made no attempt, nor pretended
to make any attempt, to settle it until differences arose (juite recently — during the

})resent century. So that for 150 years they had made no use of their charter
or the purpose of settlement, and did not possess themselves of any of these
lands.

This long course of proceeding on their part is sufficient, I submit, under the
authorities, to shew that this land did not belong to them, and that this land is
not to be treated now as belonging to them.

The Lord Chancellor. — Surely that does not bear upon the question. The
question we have to consider here is what is the meaning of the boundary of
Canada, as defined by the Acts of Parliament and the Treaty of 1783.

Mr. Mow AT. — What I submit is, that when the Act of Parliament says that
the boundary of Quebec is to extend to the territorvgranted to the Hudson's
Bay Company, that means eflfectually granted to the Hudson's Bay Company —
territory which the charter, under the circumstances, had the effect of vesting in
the Hudson's Bay Company. I cannot conceive that any other way of construing
the statute is possible. It is not what loose general words may have been used —
more vague than are to be found in any other charter — but what the effect of
those words is. Was the grant effectual? Did the interest pass ? What is the
territory the title to which passed under the charter ? All these considerations
bear upon the point. Under this charter, no territory passed except what the
company chose to appropriate and acquire the sovereignty of for the nation.
There has been no case that I have been able to discover — I have heard of no
case — in which to any of these old charters an effect was given beyond territory
which the grantees themselves acquired by those means. It was never considered,
in dealing with the territory embraced in them, that lands or territories were
included which the company did not appropriate and make their own in that
way. So far from its being considered that those charters granted any territory,
we find English monarchs from time to time granting new charters covering the same
territory, the general effect ascribed to them being that, notwithstanding the
general words contained in them, they were not to be considered as really con-
veying anything beyond what the companies would appropriate in the way
required by international law for the purpose of giviivg a title.

I submit that when we speak of an instrument granting, the necessary mean-
ing must be, efifectually granting ; and if I can make out that this charter did not
effectually grant certain territory, I make out all that is necessary for the purpose
of limiting the territory of the Hudson's Bay Company to what was effectually
granted.

Sir Montague Smith. — It expressly excludes territories occupied by any
other Christian princes — meaning France ; but have you any means of shewing
to what extent the French did occupy ?

Lord Arerdare. — The French constantly occupied : you will see that if you
look at this map [the Ontario boundary map of 1884].

The Lord Chancellor. — [Eaxtming another viop.] From this map it ap-
pears that " Rupert's Land " was the known denomination of a large district in
North America — the same denomination as we have in the Hudson's Bay cliarter.

Mr. MowAT. — But are we to be bound by this map ? It is a map prepared
at the instance of the Company, to shew the territories claimed by them as
Rupert's Land.*

The Lord Chancellor. — I do not say that I look upon this map as proving
the absolute boundary, but it does seem legitimate to refer to it as against tl e

• ArrowBuiith^B '* Map of North America " attached to the Report from the Select Committee of the
House of Commons on the Hudson *8 Bay Company, 1867.

67

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUF^TION OF BOUNDARY ;

extraordinary idea you are suggesting, that we should limit what is described in
the boundary words by considering what might or might not have been the legal
rights of the Hudson's Bay Company if they had been contested.

Mr. MowAT. — But vour Lordship will find a great many more maps which
treat the territory whicK is now Manitoba, as being Canada. You will find per-
haps ten maps describing it in that way for one in which it is called Rupert's
Land.

The Lord Chancellor. — If, we have any map of any antiquity, [ do not
see why we should not look at it. I do not say now what decision we might
come to upon it, but for you to contend that Rupert's Land means nothing at all
is most extraordinary.

Mr. MowAT. — I do not contend that, but I say Rupert's Land does not come
clown to this region.

The Lord Chancellor. — If you can make that out, well and good, but your
general proposition that we can use only maps which shew something which was
actually settled and in colonization by the Hudson's Bay Company is absurd
almost on the face of it.

Mr. MowAT. — Probably that may be stating the case too strongly. What I
meant to put was that the Hudson's Bay territory did not come down to that
now in dispute between Ontario and Manitoba.

The Lord Chancellor. — That is another proposition.

Mr. MowAT. — Then, my Lords, I think it will be convenient if your Lordships
will allow me to shew your Lordships what the evidence is as to this matter.

These old charters are always governed, I apprehend, by the consideration of
what was done under them. The charters referring to the newly discovered
America particularly require a construction of that kind, but I understand that
that is the general rule in regard to all the old grants — that what was possessed
under them is extremely material in determining what they are to be considered
as covering.

Now I wish to shew your Lordships what the Hudson s Bay Company pos-
sessed under this charter, and then your Lordships will consider how far they had
the effect of entitling the other side to say that the land and territories in ques-
tion were effectually granted or not under those words. I think your Lordships,
on consideration, will say that no territory will be excluded from Quebec as
belonging to the Hudson's Bay Company, or included in their charter, if the Hud-
son's Bay Company had not so acted as to entitle themselves to that territory
and to govern it ; otherwise Parliament would be leaving that territory without
any government, and it is perfectly certain that they did not intend to do that.

The Lord Chancellor. — But if it was inhabited only by savages ?

Mr. Mow AT. — It was inhabited by French colonists. It would be conven-
ient if your Lordships would allow me, first to shew what the Hudson's Bay
Company did, and then what the French were in possession of. Upon this point
there is a great deal of evidence, but the result of it all is to make the point verj'
clear — so clear that I think your Lordships will assume it in the remainder of the
discussion. There are proofs of all kinds. There are proofs from the English
standpoint, there are proofs in French documents, and there are proofs also to be
found in the documents of the old Province of Canada, and of the Dominion of
Canada itself.

In the first place, take the Hudson's Bay Company's own statement of their
title, in 1700, after the Treaty of Ryswick. Your Lordships will find it at page
5G0, of the Joint Appendix :

** It was then, atter the happy reBtoration of King Charles the Second, that trade
and cummerce began to revive, and in particular that noblemen and other public-spirited

58

EXTENT OF THE HUDSON S BAY COMPANY S TERRITORIAL GRANT.

EngliBhmen, not unmindful of the discovery and right of the crown of England to those
parts in America, designed, at their own charge, to adventure the establishing of a regular
and constant trade to Hudson's Bay, and to settle forts and factories, whereby to invite
the Indian nations, (who live like savages many hundred leagues up the country), down
to their factories, for a constant and yearly intercourse of trade, which was never
attempted by such settlements, and to reside in that inhospitable country, before the
aforesaid English adventurers undertook the same."

Then, my Lords, at page 580, is this communication from Captain Middleton
to Mr. Dobbs, of January, 1742-3, he says :

'* I have seriously considered your proposition of laying open the Hudson's Bay
trade, and settling the country higher up, upon those gieat rivers which run into the bay,
and though I may agree with you in the great advantage the public would receive from
such a settlement (could it be made), both as to their trade and the cutting off communi-
cation with the Mississippi, yet I must declare my opinion that it is altogether impracti-
cable, upon many accounti^ ; for I cannot see where we could find people enough that would
be willing or able to undergo the fatigue of travelling in those frozen climates, or what
encouragement would be sufficient to make them attempt it, with such dangerous enemies
on every side ; no Europeans could undergo such hardships as those French that intercept
the English trade, who are inured to it, and are called by us wood-runners (or coureura
des hois), for they endure fatigue just the same as the native Indians, with whom they
have been mixed and intermarried for two or three or more generations. As to the
rivers you mention, none of them are navigable with anything but canoes, so small that
they carry but two men, and they are forced to make use of land carriages nearly the,
fourth part of the way, by reason of waterfalls, during that little summer they enjoy.
Out of 120 men and officers the company have in the bay, not five are capable of
venturing in one of those canoes, they are so apt to overturn and drown them. Many of
our people have been 20 years and upwards there and yet are not dexterous enough to
manage a canoe ; so there would be no transporting people that way."

Sir Montague Smith. — But after all, what is this ?

Sir Robert Collier. — It is a statement by Middleton, who was " a Com-
mander in the Royal Navy, who had served as master in the employ of the
Hudson's Bay Company for many voyages.'*

Mr. MowAT. — It is an historical statement.

The Lord Chancellor. — The general fact is not in dispute, that the manner
in which the Hudson's Bay Company acted under their grant was to send hunters
to get furs into the interior, holding certain communications and relations with
the natives, and having certain forts in positions which they found convenient.
I suppose that is so very well known that it is not likely to be brought into dis-
pute. The bearing of the context is what I do not understand.

Mr. Mow AT. — They did not send men into the interior in the way your Lord-
ship suggests.

The Lord Chancellor. — To such places as they thought convenient, whether
in the interior or not.

Mr. MowAT. — Yes.

Lord Aberdare. — Some two or three hundred miles further up I see a fort
erected by them before 1742.

Mr. MowAT. — Yes, Fort Henley, which is stated to have been not more than
half that distance up the Albany River. That is the only one they then had
away from the shores of the Bay.

It is perfectly clear, I submit, that it was not intended to give to the
grantees any power of interfering with other nations. It was not intended
by this charter to grant them any territory which would interfere with other
nations.

The Lord Chancellor.— What was already settled is expressly excluded.

59

ARGUMENT OF Ar!X)RNEY-GENERAL OF ONTARIO ve QUESTION OF BOUNDARY :

Mr. MowAT. — Am I limited to that view of the matter, that it was only what
was then possessed by any European nations ?

The Lord Chancellor. — ^As far as the construction of the charter is con-
cerned, you certainly are. You are at liberty to say if afterwards any European
nations settled and acquired certain territorjr, and it was recognized. The charter
might not stand in the way of that. That is another matter.

Mr. MowAT. — Could it be said of any instrument that it granted what it
did not effectually grant ?

The Lord Chancellor. — What is an effectual grant ?

Mr. Mow AT. — A grant so as to convey a title.

The Lord Chancellor. — There is nothing about title. It is a grant of land
within certain bounds. I think you are travelling into a question which has
little relevancy to the matter in hand, namely, whether or not they did those
things which were necessary to give them a good title to the whole territory
which they claimed.

Mr. Mow AT. — We have been considering those words as meaning effectually
granted.

The Lord Chancellor. — They cannot mean that when used as boundary
words. That would be raising all sorts of law and fact, which would make them
perfectly useless.

Mr. Mow AT. — Taking the other view, it is extremely uncertain how far the
territory extended.

The Lord Chancellor. — The question of fact, investigate by all means;
but we are not assisted, to my thinking, in the investigation of the question of
fact by entering into questions of law, and whether they were guilty of default
or not in not doing things which would be necessary to complete their title.

Mr. Mow AT. — Nothing could be more uncertain than to say that all territory
is conveyed " upon the confines " of a country. What does that mean ? Does it
mean ten miles, fifty miles, or a hundred miles, or what does it mean ?

Lord Aberdare. — I suppose in later days the Hudson's Bay Company entered
their territory from the south ; first, I suppose they entered it through Hudson's
Bay, but afterwards from various parts of Canada.

Mr. Mow AT. — Yes. They always entered it from the north at the time of the
cession by France ; and for more than half a century afterwards they continued
to do so.

Lord Aberdare. — Is there any reason to suppose that that which they in later
years occupied as their Hudson's Bay territory, and which extended to the south
much farther than you would admit, ought not to be considered as Hudson's Bay
territory now for the purpose of this argument ?

Mr. Mow AT. — It was always a matter of dispute, my Lord. After the cession
of 1763, the English people going there from the Province of Canada, and the
other provinces, always claimed a right to go there as to ungranted English
territory. The claim of the Hudson's Bay Company was never acquiesced in.
The reason why, after a time, there was no dispute, was that the Hudson's Bay
Company took in, as partners, all other persons who were engaged in the trade,
and after they united their interests there was, for some time, no longer occasion
for active dispute in regard to the matter.

Lord Abekdare. — Taking your own argument, the land granted by the Hud-
son's Bay Company to Lord Selkirk in 1814 comes to the bend of the Red River,
south of Manitoba.

Mr. MowAT. — At that time they were claiming the whole no doubt.

After the North-West Company had occupied the territory as I have already^
mentioned, the Hudson's Bay Company began to follow tbem, and in that way^

60

EXTENT OF THE HUDSON'S BAY COMPANY'S TERRITORIAL GRANT.

they did have, at a late period, a number of posts throughout that territory, and
they had these at the time they made that supposed grant. Subsequently, in
1821, the two companies united and jointly carried on the trade and held the
posts which before had belonged to each separately.

Lord Aberdare. — Is it supposed the Hudson's Bay Company would have
made grants to Lord Selkirk, and claimed this country as their own, if the limits
of Canada extended to the Lake of the Woods ?

Mr. MowAT. — It was in dispute.

Lord Aberdare. — Was the dispute followed up and enforced ?

Mr. Mow AT. — Yes ; so far that Lord Selkirk had to release to the company
any claim he had under his grant. He could make no use of it in view of the —

The Lord Chancellor. — To what company — to the Hudson's Bay Company ?

Mr. MowAT. — Yes.

Lord Aberdare. — Can it possibly be supposed, when that state of things was
taking place, that that was considered Canada at that time ?

Mr. MowAT. — I think I can shew your Lordship it was so.

Sir Robert Collier. — That this was a grant not acquiesced in but disputed?

Mr. MowAT. — Yes ; disputed from the moment it was known ; disputed
actively.

The Lord Chancellor.— By whom ? Was it disputed by the Government
of Canada ?

Mr. MowAT. — By the Government of Upper Canada, and by the Cana-
dian companies and traders then in the territory. Lower Canada was not inter-
ested. And the claim of the Hudson's Bay Company was not acquiesced in by
the Imperial Government : they treated the Canadian traders and the Hudson's
Bay Company as standing there on equality, as British subjects.

The Lord Chancellor. — Where is that ?

Mr. MowAT. — For example, I may refer your Lordship to page 207 of the
Joint Appendix. This is from the Adjutant-General's office, and is dated at
Quebec, 17th April, 1816. It is one of a number of documents which shew that
the Earl of Selkirk's claim was anything but acquiesced in on the part of the
Government. Some of them go further than others on the subject, but they all
shew that clearly enough :

" Sir, — The Earl of Selkirk having represented to the Administrator in Chief, and
Oommanding General of the forces, that he has reason to apprehend that attempts may be
made upon his life in the course of the journey through the Indian country which he is
about to undertake, His Excellency has, in consequence, been pleased to grant his Lord-
ship a military guard for his personal protection against assassination. This party, which
is to consist of two sergeants and twelve rank and file of the Regiment De Meuron, is
placed under your command, and I am commanded to convey to you the positive pro-
hibition of His Excellency the Lieutenant-General commanding the forces, against the
employment of this force for any other purpose than the personal protection of the Earl
of Selkirk. You are particularly ordered not to engage yourself or the party under your
command in any disputes which may occur betwixt the Earl of Selkirk and his engages and
employes and those of the North-West Company, or to take any part or share in any affray
which may arise out of such disputes.

" By such an interference on your part, you would not only be disobeying your instruc-
tions, but acting in direct opposition to the wishes and intentions of the Government, to
the countenance, support and protection of which each party has an equal claim."

The North-West Company was insisting that the territory belonged to the British
Crown for the general benefit of British subjects, and that the Hudson's Bay
Company had no particular rights in it. The Earl of Selkirk was contending
that they were exclusive owners.

61

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO ve QUESTION OF BOUNDARY:

I may also refer your Lordships to the correspondence between the Imperial
and Canadian authorities, commencing at p. 142 oi the Ontario Appendix.*

The Lord Chancellor. — ^What we want to know is whether when this
arose, and those dL*«putes existed, the Government of Canada alleged that this
territory belonged to them ? I can see no trace of that. So far as this has any
bearing, it has a bearing the other way.

Lord Aberdare. — As I understand, your argument is that these southern
territories were only acquired by the Hudson's Bay Company by the union of
the company with the North- West Company, and therefore could have formed no
part of the Hudson's Bay territory such as is referred to in the definition of the
boundaries of Canada in the Act of 1774.

Mr. MowAT. — I do not know that it is quite that. The North- West Company
were not entitled to the territory except as Canadians and all other British subjects
were. They were merely claiming the common right of all British subjects as
against the exclusive claims made by the Hudson's Bay Company.

When afterwards they united with the Hudson's Bay Company, it was their
common interest to exclude all except those who had united — all the important
traders did unite ultimately. They found it was their common interest to do so.
For a time there was no question raised as to jurisdiction or as to territory,
the interest of the Canadian and Hudson's Bay companies being alike satisfied ;
but by and bye it arose again. That is, it arose when other Canadian
traders entered the country, and the Red River settlers desired to be freed from
the domination of the united companies, and the Government of Canada cast
about for new fields to satisfy the tide of advancing immigration.

Sir Robert Collier. — Perhaps it might be convenient to go on with your
general argument now. I only suggest that.

Mr. Mow AT. — Yes, my Lord.

If it is to be assumed to have been made out, (whatever importance may appear
to be attached to it from the authorities that I may present), that the Hudson's
Bay Company had not gone beyond the shores of the Bay, and that they had not
g6ne into the interior at all, then I need not trouble your Lordships with anything
more upon that point; but I think it should be well understood to be so, whatever
the effect of it may be.

Lord Aberdare. — Up to 1774 ?

Mr. MowAT. — Yes, up to 1774.

Lord Aberdare. —But surely it is a fair argument to say they were in con-
tinued occupation ol territory after 1774, and that was pretty good evidence of
what was originally granted to them by the charter, and understood to be granted
to them by the charter.

Mr. Mow AT. — Anyone might go in in that way after 1774. All Her Majesty's
subjects did go in.

Lord Aberdare. — That is no proof they had a right to go in.

Mr. Mow AT. — Your Lordship is referring to the mere fact of possession and
what it might shew. It was not by virtue of the charter the Company went in.
They, having gone there, in common with others of Her Majesty's subjects, without
interference by anybody, and exercising no more rights than the other subjects
of Her Majesty exercised, would not be held —

Lord Aberdare. — It was the exercise of a right, and a very strong exercise,
when, rightly or wrongly, they granted the large territory to the Earl of Selkirk
in 1814. They were generally presided over by men of high position.

* This is a selection of papers relating to the Red River settlement and to the proceedings of Lord Sel>
kirk to the westward of Lake Superior, 1815-1819, from Parliamentary Papers, Imp. Ho. Coma. 18W, No.
21f, pp. 1, 4, 42, 56, 61, 62, 71, 72 ; Return, Imp. Ho. Coms. June 24, 1819, pp. 379, 280, 284, 285, 286.

62

PRIORITY OF THE FRENCH POSSESSION OF THE NORTH-WEST.

Mr. Mow AT. — No doubt. Latterly, the extent to which they made their claim
was, that they were entitled under a principle of international law. There is no
other ground for it that I know of, but that they were entitled under principles
of international law — that having the mouths of rivers they were entitled to their
banks and to the whole territory they watered.

Lord Aberdare. — More especially as those rivers and their banks were
occupied only by wild Indians.

Mr. MowAT. — That is the claim they made, and there is no other ground I
know of on which they pretended they could claim this territory. The expressions
in the charter might mean anything or nothing, they were so extremely vague,
but the company latterly endeavoured to. give definiteness to these expressions by
taking that ground ; and of course the waters of this territory we are now speaking
of do flow, after running a long distance, into Hudson's Bay.

Charters, too, are to be taken most strongly in favour of the Crown always,
and against the grantees ; and a construction which claims (through the use of
indefinite words of a very general kind, of which the courts have expressed their
suspicion, and which they have limited very much in cases I may cite) that the
Company were entitled to one million and a half of square miles of territory
which they had never entered or gone upon, or used, and which other nations
were occupying and having the advantage of, and which the Company were
excluded from —

Sir Montague Smith. — If you shew that the grant is limited to land that
other Christian people were not occupying, there may be something in that
argument.

Mr. Mowat. — Yes. The actual possession by the French did not extend tu
the whole territory at the date of the charter, but it extended to the whole terri-
tory for half a century and more before the Hudson's Baj' Company pretended to
have got any sort of possession, or to have gone into the territory for any puq)ose
whatever. It was between a century and a century and a half after the French
occupation began before the Hudson's Bay Company sent their men into this
territory. Some of these things were established clearly and by witnesses so long
ago as 1749. A committee of the Housp of Commons was appointed in that year
for the purpose of investigating the whole question in regard to the Hudson's
Bay Company. Witnesses were examined on all these points, and we have their
testimony now.

Lord Aberdare. — I have opened your book upon a letter of Mr. Merivale'b
to the Governor of the Hudson's Bay Company, written in 1858,* where he says,
in dealing with their territory, some limitation must be placed, and Vancouver's
Island must be excluded from their license. Does this not seem almost neces-
sarily to imply that their territory extended enormously to the west, when he
thinks it necessary to exclude Vancouver's Island ? Vancouver's Island is to be
exempted from the license as already constituted into a colony. That is in 18S8,

Mr. Mowat. — I shall be content with what has been awarded to us. I do
not want to contend for anything more, if we get what is awarded on the west as
well as the north. It is very important that we should have the water line on
the north, because an astronomical line is extremely inconvenient. The Hudson '.s
Bay Company itself, in some discussions, declared it an impracticable thing to have
an astronomical line on such large territory. It is a very costly thing to survey,
too. Alaska is divided from Canada by an astronomical line. After it passed
into the hands of the Americans it was proposed that the line should be surveyed
and it was found it would cost an enormous sum to do it. In consequence of

•The Under-Secretary of State for the C<>lonip8 to the Governor of the Hudeun'K Bay Company,
January 20th, 1858, Joint App. p. 221 ; Sees. Pa|>8. Can., ia58, vol. 16, No. 3.

63

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

that a temporary arrangement had to be made. It is important we should have
the natural boundary which the award gives us, if we can establish to the satis-
faction of your Lordships that we are entitled to that or more.

With reference to your Lordship's observation about Vancouver's Island, per-
haps I ought to mention that that was not claimed by the Hudson's Bay Com-
pany under their charter, but under a license to trade, which in fact gave them,
jointly with the North- West Company, exclusive privileges of trade over the
so-called Indian territories in North America — beyond what the charter had given
them.

Sir Robert Collier. — Have they a license to trade, independent of their
charter ?

Mr. Mow AT. — Yes.

Sir Robert Collier. — When was the license to trade ?

Mr. Mow at. — In 1821.

Lord Aberdare. — That was no portion of their territory. That was a portion
of the English dominion over which they had an exclusive license.

Mr. MowAT. — Yes. This matter has been before a Parliamentary Committee.
Your Lordship may wish to refer to the license. It is at page 421.* It was

*LiciCNSE OF Exclusive Tradb to thb Hudson's Bay Company and the North-West Company,

JOINTLY, 5th December, 1821.

[Extracts.]
George R.

George the Fourth, by the Grace of God, of the United Kingdom of Great Britain and Ireland, King,
Defender of the Faith.

To all to whom these presents shall come, greeting :

Whereas an Act passed in the second year of our reign, intituled, "An Act for regulating the Fur
Trade, and for establisning a Criminal and Civil Jurisdiction within certain parts of North America ; "
wherein it is amongst other things enacted that [recites the Imp. Act, 1 and 2, Geo. 4, cap. 66.]
, And whereas the said Governor and Company of Adventurers of England trading into Hudson'^ Bay,
and certain associations of persons trading under the name of the ** North-West Company, of Montreal,*'
have respectively extended the fur trade over many parts of North America, which had not been before
explored : And whereas the competition in the said trade has been found for some years past to be productive
of great inconvenience and loss, not oaly to the said comoany and associations, but to the said trade in
general, and also of great injury to the native Indians, ana of other persons our subjects : And whereas the
said Governor and Company of Adventurers of England trading into Hudson's Bay, and William M'GiUi vray,
of Montreal, in the Province of Lower Canada, esquire, Simon M'Gillivray, of Suffolk Lane, in the City of
London, merchant, and Edward EUice, of Spring Gardens, in the County of Middlesex, esquire, have
represented to us that they have entered into an agreement, on the 26th day of March last, for putting an
end to the said competition, and carrying on the said trade for 21 years, commencing with the outfit of
1821, and ending with the returns of 1841, to be carried on in the name of the said Governor and Company
exclusively : And whereas the said Governor and Company and William M'Gillivray. Simon M'Gillivray,
and Edward Ellice, have humbly besought us to make a Grant, and give our Royal License to them jointly,
of and for the exclusive privilege of trading with the Indians in North America, under the restrictions and
upon the terms and conditions specified in the said recited Act :

Now Know Yb, that we, being desirous of encouraging the said trade and remedying the evils which
have arisen from the competition which has heretofore existed therein, do grant and give our Royal License
under the hand and seal of one of our Principal Secretaries of State, to the said Governor and Company,
and William M'Gillivray, Simon M'Gillivray, and Edward Ellice, for the exclusive privilege of trading with
the Indians in all such parts of North America to the northward and westward of the lands and territories
belonj^ing to the United States of America as shall not form part of any of our provinces in North America,
or of any lands or territories belonging to the said United States of America, or to any European government,
state or power ; and we do by these presents give, grant and secure to the said Governor and Company,
William M'Gillivray, Simon M'Gillivray, and Edward Ellice, jointly, the sole and exclusive privilege, for
the full period of 21 years from the date of this our Grant, of trading with the Indians in all such parts of
North America as aforesaid (except as hereinafter excepted)

And we do hereby declare that nothing in this our Grant contained shall be deemed or construed to
authorize the 8%id Governor and Company, or William M'Gilliv»*ay, Simon M'Gillivray, and Edward Ellice,
or any person in their employ, to claim or exercise any trade with the Indians on tne north-west coast of
America to the westward of the Stony Mountains, to the prejudice or exclusion of any citizens of the
United States of America who may be engaged in th*; said trade : Provided always that no British subjects
other than and except the said Governor and Company, and the said William M'Gillivray, Simon M'Gillivray,
and Edward Ellice, and the persons authorized to carry on exclusive trade by them on (rrant, shall trade
with the Indians within such limits during the period of this our Grant.

Given at our Court at Carlton House, the 5th day of December, 1821, in the second year of our i^ign.

By His Majesty's command,

Bathubst.
64

LICENSES OF EXCLUSIVE TRADE TO H. B. CO. AND N. W. CO. OF MONTREAL, 1821, 1838.

granted on the 5th of December, 1821, when all the companies united in a gen-
eral body, it being a powerful one, and no opposition was made to their getting
an exclusive right to trade over the whole territory ; and this license was renewed
on 30th May, 1838, for another term, and no question of jurisdiction arose for a
considerable time afterward. The new license is at page 423.*

Lord Aberdare. — Suppose that to be the case ; turn to page 223, where you
will see an answer to Mr. Merivale's letter.i* It indicates what they are ready to
give up, and it is giving up not a license but actual territory, because it says :

** In oommunicating this assent on the part of the Hudson's Bay Company, it is,
however, right to notice that the territories mentioned as those that may probably be
first desired by the Govemment of Canada, namely, the Bed River and Saskatchewan
districts, are not only valuable to the Hudson's Bay Company as stations for carrying on
the fiir trade, but that they are also of peculiar value to the company as being the only
source from which the company's annual stock of provisions is drawn."

All that shews they claimed a territorial right over these regions, and attached
importance to their surrender. The Red River and Saskatchewan districts are
both far beyond that region.

Mr. MowAT. — My observation referred to Vancouver's Island.

Lord Aberdare. — I admit that I was surprised to find Vancouver's Island
need not be mentioned; but we come now to the Red River, and to the
Saskatchewan districts, which are far west of Manitoba, and from the letter of Mr.
Merivale one sees the Hudson's Bay Company treat that as part of their territory.

Mr. MowAT. — Yes.

* The new Lioenie, dated 30th May, 1888, iasued in favour of the Hudson's Bay Oompany, which
now, by an amalgamation of inteiests. represented also the North-West Company. After reciting the
Imp. Aiot, 1 and 2 Vict., cap. 66, and the former license, it proceeds :

*'Ana whereas the said Grovemor and Company have acquired to themselves aU the rights and interests
of the said l^^lliam M'Gillivray, Simon M'Gillivray and Edward EUice, under the said recited grant and
the said Governor and Company having humbly besought us to accept a surrender of the said grant,' and
in oonsidwation thereof to make a grant to them, and give to them our Royal License and authority of
and for the like exclusive privilege of trading with the Indians in North America, for the like period and
upon similar terms and conditions to those specified and referred to in the said recited grant ; Now ^ow
ye, that in consideration of the surrender made to us of the said recited grant, and being desirous of
encouraging the said trade, and of preventing as much as possible a recurrence of the evils mentioned or
referred to m the said recited Arrant ; as also m consideration of the yearly rent hereinafter reserved to us *
We do hereby ^rant and give our License, under the hand and seal of one of our Principal Secretaries of
State, to the said Governor and Company, and their successors, for the exclusive privilege of trading with
the Indians in all such parts of Nortn America, to the northward and to the westward of the lan£ and
territories belonging to the United States of America, as shall not form part of any of our provinces in
NOTth America, or of any lands or territories belonging to the said United States of America, or to any
European government, state or power, but subject nevertheless as hereinafter mentioned : And we do by
these presents give, grant and secure to the said Grovemor and Company, and their successors, the sole and
exclusive privilege, for the full period of 21 years from the date of this our grant^ of trading with the
Indians in all such parts of North America as aforesaid (except as hereinafter mentioned) ; . . . .

But we do hereby declare, that nothing in this our grant contained, shiJl be deemed or construed to
authorize the said Governor and Company, or their successors, or any persons in their employ, to claim or
exercise any trade with the Indians on the north-west coast of America to the westward of the Stony
Mountains, to the prejudice or exclusion of any the subjects of any foreign states, who, imder or by form
of any convention fer the time being between us and such foreign states, respectively, may be entitled to.
and snidl be engaged in the same tiade. ^

** Provided, nevertheless, and we do hereby declare our pleasure to be, that nothing herein contained
shall extend or be construed to prevent the establishment b^ us, our heirs or successors, within the territories
aforesaid, or any of them, of an^ colony or colonies, province or provinces, or for annexing any part of the
aforesaid territories to any exbtmg colony or colonies to us, in right of our Imperial Crown, belonging or
for constituting any such fonri of civil government as to us may seem meet, within any such colony or
colonies, province or provinces : ^

** And we do hereby reserve to us, our heirs and suocassors, full power and authority to revoke these
presents^ or any part thereof, in so far as the same may embrace or extend to any of tiie territories afore-
said, which may hereafter be oompribed within any colony or colonies, province or provinces as aforesaid *

'*It being, nevertheless, hereby declared, that no British subjects other than and except the said
GoreteooT and Company, and their successors, and the persons authorized to carry on exclusive trade by
them, shall trade with the Indians during the period of this our grant within the limits aforesaid or witl^
that part thereof whieh shall not be comprised within any such colony or provinee aforesaid.'* '

t The Governor of the Hudson's Bay Company to the Colonial Secretary, 21st January. 18fiR $i^.
Paps. Can., 1868, Vol. 16, No. 3. ^' ^^ ^*^^

5 (B.) 65

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY ;

Lord Aberdare. — That is enough for me ; that goes far beyond the territory
granted to Lord Selkirk.

Sir Robert Collier. — It goes further to the west/

Lord Aberdare. — ^Therefore the Colonial Office at that time must hare
admitted that they had territorial rights in this country.

Mr. MowAT. — But this is a letter from the C ompany to the Colonial Sec-
retary.

Lord Ajberdare. — To the Colonial Secretary in answer to his letter, in which
he suggests that there should be certain surrenders.

The Lord Chancellor. — What is of more importance is Mr. Merivale's own
letter, to which this is a reply, at page 222, in which he says, in the seventh
paragraph :

*' It is stated in the report'' — the report that is referred to ia that of a select com-
mittee of the House of Commons — " that the dbtricts likely to be required for early occupa-
tion are those on the "Red River and Saskatchewan. If that should be the case, the por-
tion of territory thus generally indicated should he rendered free for annexation to
Canada."

Lord Aberdare. — Canada is there being treated as external to this country.

The Lord Chancellor. — That is a report of a committee of the House of
Commons, specially appointed to inquire into this matter, and certainly not in
the special interests of the Hudson's Bay Company.

Mr. Mow AT. — But, my Lords, would that mean anything more than that that
was part of what was claimed by the Hudson's Bay Company?

The Lord Chancellor. — It was certainly not at that time part of Canada.

Lord Aberdare. — It is treated as being external to Canada altogether.

Mr. Mow AT. — It would seem to be treated as being external to Canada ;
but it is an observation which might be made even if it was understood that it
was a part in dispute, but whether in dispute or not that it should be annexed to
Canada. There is nothing in the letter incompatible with the view that, upon a
determination of the boundaries, these districts might be found to be within the
limits of Canada ; and the question of referring the boundary to the Judicial
Committee for decision is actually discussed in the letter. Then if your Lordships
take other passages you will find my construction made clear. For instance, take
the letter of the Colonial Secretary to the Governor-General, at page 224, with
which was transmitted the correspondence between the Colonial Office and the
company already adverted to. We find him stating this:

*' I do not propose to discuss the question of the validity of the claims of the com-
pany, in virtue of their charter, over the whole territory known as Rupert's Land."

Lord Aberdark — Over the whole territory?

Mr. MowAT. — Yes:

" Her Majesty's Government have come to the conclusion that it would be impossible
for them to institute proceedings with a view to raise this question before a legal tribunal,
without departing from those principles of equity by which their conduct ought to be
guided. If, therefore, it is to be raised at all, it must be by other parties on their own
responsibility."

Lord Aberdare.— But the very expression "the whole territory" assumes
that a very large portion of the territory at any rate was their due. It would
be very difficult to hold that that was to restrict them to a very small portion
indeed — the immediate neighbourhood of their own trading forts.

Mr. MowAT. — At all events, it seems clear, taking the whole of the corres-
pondence, that the territorial rights of the company did not go down to what
is in dispute between Manitoba and ourselves, which is 700 miles from the Bay.

66

QUESTION OF TITLE OF UPPER CANADA TO THE NORTH-WEST.

The Lord Chancellor. — It is very important, because the Red River actu-
ally flows through Manitoba into Lake Winnipeg, does not it ?

Mr. MowAT. — Yes.

Lord Aberdare. — And the Saskatchewan runs still further west.

The Lord Chancellor. — Yes. If at that time the Red River territory was.
not part of Canada, the inference of law is prima fade that Manitoba was not.

Mr. MoWAT. — I think your Lordship will find that looking at the whole of the
correspondence — which was not intended on the part of the British Govern-
ment to admit the right of the Hudson's Bay Company, although sometimes
expressions may be found to imply such admission if you look at these expressions-
alone — looking at the whole of the correspondence, I think your Lordships will
come to a diflerent conclusion.

The Lord Chancellor, — Does it not shew that they were not parts of
Canada ?

Mr. Mow AT. — No, I do not think that it does. I think, my Lord, that it is
pretty clear — and I think I can satisfy your Lordship of that before I close my
argument — ^that whatever was not Hudson's Bay territory was Canada.

The Lord Chancellor. — If this part was not occupied by the Company, and'
therefore not to be deemed Hudson's Bay territory, still it seems pretty clear that
even so late as 1858 they were not parts of Canada.

Mr. MowAT. — There are expressions which imply that, but there are also
other expressions in the correspondence against that assumption.

Lord Aberdare. — Expressions which imply it, which were made after the
whole controversy had been fully raised, and with the view of procuring the
cession of lands not required by the Hudson's Bay Company from England to
Canada. Therefore they were expressions made with the whole view of the case
fully before them. I think you may use the time between this and to morrow,
not by fortifying arguments in favour of a possible extension of Canada into these
remote regions, but by narrowing the question in some practicable way.

Mr. MowAT. — If your Lordship pleases.

Sir Robert Collier. — It woulji save a good deal of time, and a good deal of
trouble to yourself, if you did that.

Mr. MowAT. — I will read a sentence or two more from that very same
despatch from the Colonial Secretary to the Governor-General :

'* With regard to the question of boundary, as distinguished from that of the validity
of the charter, Her Majesty's Gov^ernment are anxious to afford every facility towards its
solution, a mode of accomplishing which is indicated in the correspondence, if such should
be the desire of Canada.'*

And so on. At that time Canada was claiming all this territory.

Lord Aberdare. — No, no ; I do not understand Canada as claiming these
territories. The Canadian settlers wished to go into the country, which was said
to be very rich, and from which they were excluded by the Hudson's Bay
Company. I do not understand that they claimed it as a portion of Canada, but
as a portion of the continent, which it was convenient,. and perhaps right, that
Canadian subjects should colonize.

Mr. MowAT. — It was claimed on that ground I agree, but it was also claimed
on the ground of right at the same time. Both grounds are put forward. The
facts with regard to the position of Canada in the matter were shortly these :
The Hudson's Bay Company desired a renewal of its exclusive right of trading.
Their existing license would expire in about a couple of years, and they wished
to know beforehand whether there was likely to be a renewal of this license, which
was over territory which did not belong to them under their charter. So that
having an exclusive right to territory which was theirs, and a right of exclusive

67

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

that the whole of the charter and the claim of the Hudson's Bay Company should
be set aside, but not on the ground that the territory belonged to Canada.

Mr. MowAT. — Is your Lordship referring to the passage which I read from Mr.
Brown's report ?

The Lord Chancellor. — Yes, the passage you were just now reading.

Mr. MowAT. — Well, my Lord, this language may be general, but the founda-
tion of the whole thing, the first step which was taken after the Order in Council
of I7th January, 1857, and the appointment of Chief Justice Draper as special
agent to guard Canadian interests in connection with the proposed renewal of the
Company s license, was Mr. Cauchon's report as Commissioner of Crown Lands,
and he argued the matter from beginning to end; and as to the point that
the Hudson's Bay Company owned no part of this territory, he takes as strong
ground as anybody could take, as your Lordships will find.

Lord Aberdare. — But first look at what occurs after that which you just
now quoted, which is a statement on behalf of Canada. At page 257, Mr. Card-
well sums it up.* It is a communication from the Colonial Secretary to the
Governor-General. It refers to a conference which took place between your
Canadian Ministers, deputed to proceed to England to confer with Her Majesty's
Government on the part of Canada, and the Duke of Somerset, Earl De Grey, Mr.
Gladstone, and himself, on the part of Her Majesty's Government ; and he says :

"On the fourth point, the subject of the North-West Territory, the Canadian
Ministers desired that that territory should be made over to Canada, and undertook to
negotiate with the Hudson's Bay Company for the determination of their rights, on
condition that the indemnity, if any, should be paid by a loan to be raised by Canada
under the Imperial guarantee. With the sanction of the cabinet, we assented to this
proposal."

All that does not look as if it was an admission of the rights of Canada. It
looks rather like an admission of the rights, qualified perhaps, of the Hudson's
Bay Company, under which they were to make over to Canada a country external
to Canada.

Mr. Mow AT. — But if your Lordship finds at the very start, and as the founda-
tion of the whole thing, that the Government of Canada had a report prepared by
their Commissioner — which is set forth at page 168,and is a very long document
— maintaining the very contrary 1

Lord Aberdare. — Look again at this, the report of the Canadian delegates
to England on the same page, 257.i" These delegates, that is to say. Sir John
Macdonald, Sir (Jeorge Cartier^ Mr. George Brown, and Mr. Gait (I think he was
afterwards knighted) say :

" The important question of opening up to settlement and cultivation the vast
British territories on the north-west borders of Canada next obtained the attention of
the conference."

Mr. MowAT. — But then, if you go on to observe towards the foot, it says :
'* The claim of Canada was asserted to all that portion of Central British America

which can be shewn to have been in the possession of the French at the period ' of the

cession, in 1763."

The Lord Chancellor. — That is another matter quite ; at the present we
have not that before us. It is not even evidence which you can offer on that
subject. If it was so in the possession of the French as to be part of the terri-
tory admitted to be theirs, and ceded to the Crown after the war, then a strong
argument could be founded. But that is not the ground, and I observe that in
this same report of the Canadian delegates the minute of the Council approved

* Joumalfl, Leg. Abb,, Can., 1865, p. IS. f Ih, p. 9.

70

ASSERTION OP TITLE OF UPPER CANADA TO THE NORTH-WEST.

by the Governor was referred to, which speaks of the Qovernment of Canada
being ready to co-operate with the Imperial Qovernment for the annexation to
Canada of such portions of the territory as might be available for settlement.
That is the tone of the correspondence at that time.

Mr. Mow AT. — Well, it is the tone of a portion of it, my Lord, but simul-
taneously with all that there is the claim to ownership. And as to the evidence
of the French possession and ownership, the Appendices put in before your Lord-
ships are largely taken up with it.

The Lord Chancellor. — Claim to ownership of that which was in the
recognized and lawful possession of the French I suppose at the time of the
cession in 1763 ?

Mr. MowAT. — Yes ; and I hope to satisfy your Lordship that we are entitled
to all that Was in the possession of the French in 1763.

The Lord Chancellor. — There are various sorts of possession. If the
French possessed it as part of that territory which was acknowledged to be theirs,
and which they conceded in 1763, then I think your argument would be strong
upon that ; but if they had gone merely as squatters into a territory not occupied
by the Company, that would be quite a different thing.

Mr. MowAT. — The Company's territories, whatever they may have been, were
never defined ; the charter itself is silent as to their extent ; the adverse title ol
France to these districts is asserted by Charter, and by actual and sole possession,
and by reason of contiguity ; the Company did not set foot there until 1790, and
then not by virtue of their charter, but of their right in common with all other
British subjects ; and as a matter of fact they found it already in the occupation
of the North-West Company and of other such subjects, Canadian and English.

Since your Lordships are looking at expressions on one side, will you allow
me to point out some on the other ; at page 259 for instance, which is the report
of the Committee of Council.* The paragraph commences :

'' In the first place the committee do not admit that the company have a legal title
to that portion of the North-Western territory which is fit for cultivation and settlement.

" This fertile tract is a belt of land stretching along the northern frontier of the
United States to the base of the Eocky Mountains, and Canada has always disputed the
title of the Company to it." *

Th^n your Lordship will observe the other expressions connected with that.

Lord Aberdare. — Just so:

" Even if it be admitted that the charter of 1670, recognized as it has been by
several Imperial statutes, gives to the company a freehold right in the soil in Rupert's
Land, Canada contends that the cultivable tract in question forms no part of that land."

Does not it carry the company's claim far beyond what you have limited it to ?
Even if you take it as excludingf the right of the Hudson's Bay Company to the
Saskatchewan and the Red River districts, it leaves their claim far greater than
this which you have been arguing about.

Mr. Mow AT. — Perhaps I am ar^ng for a larger extent of territory than I
need have presented to your Lordships ; but this exception which is referred to
here, would embrace all that is important for my present purpose, because the
cultivable portion —

Sir Robert Collier. — We had better confine ourselves to what is important
for your present purpose I think.

Mr. MowAT. — I propose doing so — I will not go beyond that.

Lord Aberdare. — The cultivable portion goes to the Red River and the
Saskatchewan; and they would both be outside that portion of the country
which was given to Ontario by the arbitrators.

* Order in Council, Canada, dated 22 June, 1866, Seas. Papers, Can., 1867-8, No. 19.

71

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Mr. Mow AT. — Yes, beyond it. Your Lordship read the paragraph com-
mencing — " Even if it be ctdmitted that the charter of 1670 — "

Lord Aberdare. — I think that goes strongly against you.

Mr. MowAT.— It meets the suggestion that the claim was admitted, because
the contrary is asserted, so far as regards that portion.

Lord Aberdare. — No, it only says that they do not admit it to be Hudson^
Bay territory, but it does not necessarily admit that it was a portion of Canada
ceded in 1763.

The Lord Chancellor. — They say of the Hudson's Bay Company that, first
of all, they are entitled tc) nothing, that their whole charter and privileges ought
to be swept away, but at all events they say they have not a good title to this
territory.

Lord Aberdare. — And that it ought to be annexed to Canada and made
over to Canada, all which seems to shew that it was not part of Canada.

Mr. MowAT. — The Act of 1774 gave us all the territory bounded on the
north by the Hudson's Bay territory. It does not exclude any portion of the
territory of Great Britain.

Lord Aberdare. — That evidently means up to the line of the Lake of the
Woods. They do not go beyond the Lake of the Woods. It was unknown to
them. We must take the line of the head waters of the Mississippi, and that
strengthens your argument very much, in my opinion, in favour of the line which
is along the Mississippi and Ohio.

Mr. MowAT. — Yes, I see the force of that, my Lord.

\A djourned to to-morrow.]

SECOND DAY.

Wednesday, July 16th, 1884.

Mr, MoWAT. — May it please your Lordships, the point which is now before
your Lordships is the second question in the Special Case, which is expressed
therein these words :

'* In case the award is held not to settle the boundary in question, then what, on the
evidence, is the true boundary between the said Provinces."

The position which the Province of Ontario has taken with reference to the
award, shews your Lordships that Ontario was satisfied on the whole with the
boundaries which the award provided for her. So far as regards the western
boundary, the award assigned as our western boundary, a line drawn from the
north-west angle of the Lake of the Woods northward to English River. That,
according to the award, is the boundary between the two provinces.

The Lord Chancellor. — Anything further north (which is in a different
colour on the map) is outside the boundary which the award has given you.

Sir Montague Smith. — The part shewn by the diagonal lines.

The Lord President. — This red line is the award boundary.

Lord Aberdare. — May T ask a question before you go further. Canada con-
sists of seven Provinces and I think of four Districts ?

Mr. MowAT. — Yes, my Lord.

Lord Aberdare. — ^And then, besides that, there is a great country not pro-
vided for, called the North-West Territories.

Mr. MowAT. — Yes, my Lord ; but that general designation covers also the
districts.

Lord Aberdare. — By what authority were those districts formed ?

72

RECENT DEALINGS WITH THE NORTH-WEST — FORMATION OF MANITOBA.

Mr. MowAT. — They were formed by the authority of the Dominion. They
Me not provinces. They have not the power or jurisdiction of provinces : there
is a Lieutenant-Governor of the North -West Territories, and a Council, with
limited powers, whose jurisdiction extends over the districts. It was found
convenient to set apart certain portions of the territory and to give the names
which your Lordships have been informed of.

Lord Aberdare. — I see them there, Assiniboia, Saskatchewan, Athabasca,
and so forth. Were those constituted by an Order in Council, or by an Act of
Parliament ?

Mr. Mow AT. — By an Order in Council, my Lord.

Lord Aberdare. — Then all this additional part that was not within the
award of the arbitrators was carved as it were out of the Dominion. Indeed the
whole of it may be supposed to be carved out of the Dominion and part of it was
made the Province of Manitoba. Was that done by an Order in Council ?

Mr. MowAT. — No, that was done by an Act of the Dominion Parliament*.

Sir Montague Smith. — Under the British Noi-th America Act, 1867.

Sir Robert Collier — In pursuance of a power given by the British North
America Act.

Sir Barnes Peacock. — The boundary of Manitoba was first laid down by
an Act of the Dominion, Then the Minister of Justice thought there was an
objection to that Act, and thought it was out of the powers of the Canadian
Parliament, and he recommended that an application should be made to the
Parliament here to pass an Act to make the Dominion Act valid.

Mr. MowAT. — That was so.

Sir Barnes Peacock. — That was done by the British North America Act,
1871 ?

Mr. Mowat. — Yes. There had been previous discussions on the subject.
There was a discussion in the Canadian House oi Commons with reference to
whether the Dominion Parliament had a right to pass the first Act with reference
to Manitoba. The Imperial Act was not merely a suggestion afterwards of the
Minister of Justice, but was the result of the discussions.

Sir Barnes Peacock. — He reported upon it that the Dominion Act had
been passed, and recommended that an application should be made to the Imperial
Parliament to pass an Act to render that Act valid ; and that was done by the
British North America Act, 1871.

Mr. MowAT. — Yes, and then that Act further provided that changes might be
made in the boundaries of any province by the Dominion Parliament thereafter,
with the consent of the particular province aflTected.

Sir Barnes Peacock. — And not otherwise ?

Mr. Mow AT. — Yes. The Dominion Parliament has no power otherwise with
reference to existing provinces. Then the same Imperial Act gave to the
Dominion Parliament power also to constitute new provinces out of the territory
not yet formed into provinces. There are about two millions of square miles
not yet formed into provinces.

Lord Aberdare. — So far they have only formed Manitoba ?

Mr. MowAT. — That is the only one.

Lord Aberdare. — And carved out four districts, which are awaiting
adoption ?

Mr. Mowat. — Yes, and which may or may not be made provinces. When they
are made provinces their boundaries may or may not be the same as the so-called
districts. They have now no governor or separate organization as a province.

♦83Vict., cap. 3, (1870).

73

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Sir Montague Smith. — When you get northward to the English River, then
does the award boundary follow that river eastward ?

Mr. Mow AT.— Yes. What we say is that the awarded territory was always
part of our province. I had hoped (there is no harm perhaps in my saying so)
that the whole question of the northern boundary might be presented now,
but we could not arrange that with the Dominion Government, and it
was arranged merely that the western boundary should come before your
Lordships. ,

Sir Robert Collier. — That is the boundary between the two provinces
which I suppose is only the western boundary.

Mr. MowAT. — Our western boundary.

Sir Robert Collier. — By the Act of 1881, by which Manitoba was finally
constituted, their eastern boundary is your western boundary ?

Mr. Mow AT. — That is so.

Lord Aberdare. — There is nothing about this limitation to the western
boundary in the reference to us :

" In case the award is held not to settle the boundary in question, then what on
the evidence is the true boundary between the said provinces ? "

Mr. Mow AT. — ^That means of course between Ontario and Manitoba.

Sir Robert Collier. — But, as they onlv come in contact on the western
side, it only involves the western boundary of Ontario.

Lord Aberdare. — Manitoba would extend northward beyond the limits of
the award of the arbitrators.

Mr. Mow AT. — The Dominion Act has given a territory to Manitoba beyond
the awarded westerly boundary.

Lord Aberdare. — It has given the piece coloured yellow — the portion north
of the portion given* by the award.

The Lord President. — The portion north of the red line, and of the English
River ?

Mr. Mow AT. — ^Yes ; it is given to Manitoba conditionally. [The learned
counsel explained to their Lordships on the mapJ]

The Lord Chancellor. — If the Dominion nas given that part which lies
here [pointing on the map] to Manitoba, then the boundary between the two
Provinces, supposing this [poi/ntingll belongs to Ontario, must be traced here
[pointing to that portion of the awarded westerly boundary which runs along the
English River, etc.]

Mr. Mowat. — At some time.

The Lord Chancellor. — But on the face of this present reference, what is
there to shew that that part of the boundary is not now to be determined ?

Mr. Mowat. — If your Lordship takes that view of it, I am quite willing.

The Lord Chancellor — I do not see what limitation there is.

Mr. Mowat. — I am not anxious that your Lordships should not decide that.
All that I am saying this for now is that your Lordships may see what the
question really is. I do not say so because I have any objection to the northern
boundary — or that portion of our awarded western boundary which follows the
water communications — being examined and adjudicated upon as well as the
other. The first paragraph of the Special Case is this :

" The Province of Ontario claims that the westerly boundary of that Province is
either (1) the meridian of the most north- westerly angle of the lake of the Woods, as
described in a certain award made on the 3rd August, 1878, by the Honourable Ohief
Justice Harrison, Sir Edward Thornton and Sir Francis Hincks, or (2) is a line west of
that point."

74

SCOPE OF THE ARGUMENT ON BEHALF OF ONTARIO.

That paragraph, therefore, refers merely to our westerly boundary. The next
paragraph is:

" The Proymoe of Manitoba claims that the boundary between that Province and
the Province of Ontario is (1) the meridian of the confluence of the Ohio and Mississippi
Rivers, or (2) is that portion of the height of land dividing the waters which flow into
Hudson's Bay from those which empty into the valley of the Great Lakes, and lying to
the west of the said meridian line."

Sir Montague Smiih. — The question refers to those two claims ?

Mr. MowAT. — Yes, my Lord.

Lord Aberdare. — You are not prepared to limit your argument to the
question as to whether the western boundary shall be the one taken from the
Ohio, or shall be the line fixed by the arbitrators, that is, through the north-west
Angle of the Lake of the Woods ?

Mr. Mow AT. — If your Lordships were to say that it was one or other of those
two lines, I should be prepared to accept the latter.

Sir Montague Smith. — You claim the line from the Lake of the Woods up
to the English River ?

Mr. Mowat. — Yes, that is our claim according to the award.

Sir Montague Smith. — The other line is to the eastward a great deal t

Mr. Mow AT. — Greatly to the eastward.

Sir Montague Smith. — ^That difierence is what seems to be really in dispute ?

Lord Aberdare. — It is for the counsel to decide. He does claim a great deal
more.

Mr. Mowat. — I thought I was driven to claim all that just argument would
■entitle me to claim, but if your Lordships say that the question is between
those two lines, that ruling makes a great difference.

The Lord Chancellor. — We cannot limit you to that, except by your own
consent.

Lord Aberdare. — If your argument prevails, the whole Province of Manitoba
would be abolished.

Mr. MowAT. — No, my Lord.

Sir Robert Collier. — The principal part of it.

Mr. Mowat.- The addition made in 1881 would be abolished.

Sir Robert Collier. — The original part also.

Mr. Mowat. — No ; because the original has been the subject of an Imperial
Act, which would override our claim if we had any.

Lord Aberdare. — Up to the limits at that time ?

Mr. Mowat. — In respect of the first limits of Manitoba.

Lord Aberdare. — Which is comprised within the orange line [re/erring
to the map] ?

Mr. Mow AT. — Yes, my Lord.

Lord Aberdare. — How would it be as to the remaining part, coloured yellow ?

Mr. Mowat. — That was the part that was added, so far as the Dominion
Parliament could add it, to Manitoba by the subsequent Act of the Dominion.

Lord Aberdare. — You do not question that — or do you question that ?

Mr. Mowat. — There is one view of the matter in which it is questioned.

Lord Aberdare. — Then, if your argument entirely prevailed, the Province
of Manitoba would be limited to that very small portion of it which is contained
within the orange line ?

Mr. Mowat. — Yes. Would your Lordships allow me a minute to consult with
my associates ? Your Lordships are putting a suggestion to me that I have not
<^onsidered, and I should like to consult with tnem as to whether we should
confine ourselves to the awarded line.

75

AKGUMENT OF ATTORNEY-GENERAL OP ONTARIO re QUESTION OF BOUNDARY ;

Sir Robert Collier. — Very well. You had better make up yoiur mind
whether you do that or not.

[The learned cov/nsel for Ontario con^mlted together for a short timte.]

The Lord Chancellor. — Mr. Attorney-General, what you have lately said
has directed my attention to the Dominion Act of 1870, which did form the
original Province of Manitoba, and which was confirmed as you say by an
Imperial Act.

Mr. Mow AT. — Yes, my Lord.

The Lord Chancellor. — On the face of that, it appears, as distinctly as
words can express the thing, that even the small province, the original Manitoba,
is carved out of Rupert's Land, and was not part of Canada.

Mr. MowAT. — Out of Rupert's Land and the North-Westem Territory, my
Lord ; besides, what the Dominion chooses to say in its statutes cannot take away
the right of a province, or establish the right.

The Lord Chancellor. — I do not follow you. What stronger evidence of
the fact can there be than two Acts, one of the Dominion, and the other of the
Imperial Parliament, that this territory was Rupert's Land and not Canada. I
am only speaking of the small Manitoba.

Mr. MowAT. — By the Dominion Act* it is enacted that this province shall
be formed out of " Rupert's Land and the North-Westem Territory," not out of
*' Rupert's Land " alone. Rupert's Land was claimed by the company under
their charter, but to the North-Westem Territory the company made no pretence
of claim whatever. The one and the other had been transferred by Her
Majesty to the Dominion without specification of the boundaries of either.
Moreover, the Act shews that whatever the southerly limit of Rupert's Land may
be, it did not extend as far Bouthward as the international boundary, for the Act
declares that the parallel of 49 " forms a portion of the boundary line between
the United States of America and the said North-Westem Territory" — not
between the United States and Rupert's Land. The Imperial Actf confirms,
in terms, the Dominion Act, but does not use the name Rupert's Land in that
connection.

The Lord Chancellor. — Plainly on the very face of it, it shews that in the
view of the legislature which passed that statute, it was previously territory
forming part of the Union or Dominion of Cancuia, but not incluaed in any
Province thereof.

The Lord President. — The Dominion Act, section 35, goes on :

" With respect to such portion of Rupert's Land and the North-Westem Territory
as is not included in the Province of Manitoba.''

The Lord Chancellor. — Surely to argue against that Act, confirmed by an
Lmperial Act, is a bold undertaking.

* Dominion Act, 33 Vict., cap. 8, sec. 1, (1870).

1. On, from and after the day upon which the Queen, by and with the advice and consent of Her
•Majeety*8 Most Honourable Pnvy Council, under the authority of the 146th section of the " British North
America Act, 1867," shall, by Order in Council in that behalf, admit Rupert's Land and the North -Western
Territory into the Union or Dominion of Canada, there shall oe formed out of the same a Province, which
shall be one of the Provinces of the Dominion of Canada, and which shall be called the Province of Mani-
toba, and be bounded as follows : that is to say, commencing at the point where the meridian of ninety-six
degrees west longitude from Greenwich intersects the parallel of forty-nine deg^rees north latitude ; thence
due west alonsr tne said parallel of forty -nine decrees north latitude (which forms a portion of the boundary
line between the United States of America and tne said North-Westem Territory) to the meridian of ninety-
nine degrees of west lon^tude ; thence due north along the said meridian of ninety-nine degrees west
longitude, to the intersection of the same with the parallel of fifty degrees and thirty minutes north lati-
tude ; thence due east along the said parallel of fifty degrees and thirty minutes north latitude to its inter-
section with the before-mentioned meridian of nine^-siz degrees west longitude ; thence due south along
the said meridian of ninety-six degrees west longitude to the place of beginning.

t For the Imperial Act, see ante, p. 22, note.

76

ONTAKIO KESTRICTS ITS CLAIM TO THE LINE OF THE AWARDED BOUNDARDEa

Mr. Mow AT.— I would submit one or two observations upon that to your
Lordships. Take the two Acts separately, if your Lordships please. Li the first
place take the Dominion Act, which describes this territory in the way I hare
mentioned. I submit that if the matter had stood alone on that statute, without
having the Imperial Act afterwards, the Dominion Act could not have affected
the province.

The Lord Chancellor. — You may say it would have been uUra vires if
the facts were otherwise.

Mr. MowAT. — That is it, my Lord.

The Lord Chancellor. — But being confirmed by an Imperial Act, you can
no longer say it is ultra vi/rea,

Mr. Mow AT. — ^Then what I submit is this, that all the Imperial Act does is to
confirm the effect of the Dominion Act.

The Lord Chancellor. — Surely that is special pleading.

Mr. MowAT. — I shall be sorry if your Lordship takes that view of it. The
Province of Ontario at that time had not, and has not now, any ol/jection to this
original territory so given to Manitoba forming a separate province.

The Lord Chancellor. — But what stronger evidence can there be than
these Acts of Parliament, and this is a question of evidence ?

Sir Montague Smith. — Have you come to any resolution with reference to
the question suggested to you ?

Mr. MowAT. — Yes, my Lord. I may say we are content with the awarded
boundaries. But I should add, that in order to shew we are entitled to the
awarded boundaries, I may have to lay before your Lordships an argument which
would shew we are entitled to more ; but while the argument would shew we are
entitled to more I claim no more.

Sir Montague Smith. — I quite understood from the first that your argu-
ment might lead to a larger claim than that ; and you do not wish to be precluded
from the argument, as far as it is good, on this narrower claim.

Mr. MowAT. — Yes, my Lord, that is exactly the position I want to take.

Sir Montague Smith. — You do not want it to be objected to that the argu-
ment is bad altogether because it is too large.

Mr. Mow at. — Yes, my Lord.

Sir Montague Smith. — Now, about the westerly boundary. Was anything
more intended to be referred to England ? Your two claims are mentioned in the
Special Case, which is the authority under which we are now acting, as far as con-
sent goes to it, and then you say it has been agreed to refer the matter to the
Judicial Committee. The only matter mentioned in the case is those two claims.

Lord Aberdare. — We must go beyond that. Supposing it should turn out
that we took the same view that the arbitrators did, and considered this {jpoi/rU-
ing on the map to the tract striped with yellow and red crosavnae] a portion of
Upper Canada and Ontario, and at the same time we were of opinion that what
remained of the Province of Manitoba to the north of this place should contioue
in the Province of Manitoba, we should then be dealing with other than the
westerly boundary.

Sir Montague Smith. — The settling the westerly boundary may indirectly
involve the northerly boundary.

Lord Aberdare. — Not the northerly boundary, but this portion of the Pro-
vince of Manitoba to the north.

Mr. Mow AT. — I do not make the slightest objection to that view.

The Lord President. — It would leave all this in the present legal condition,
whatever it is.

Mr. MowAT. — Yes, my Lord.

77

ABGUMENT OP ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Sir Montague Smith. — Of course every word of this Special Case was very
much studied and considered before it was settled ?

Mr. MowAT. — Yes, my Lord. It concerns, no doubt, only that western bound-
ary. The other may be incident to that, and necessarily involved in it when you
are considering the westerly boundary. As I have said, I have not the least
objection to that construction being put upon it. I want to get the matter
decided.

Sir Robert Collier. — If you look at the claims of both sides, they are
claims to and on certain lines. They assume the northern line to be drawn, and
the question is whether the westerly boundary is to go to the one line or to the
other. If you look at the first and second, paragraphs you see Manitoba claims
that the boundary of that province is the meridian of the confluence of the Ohio
and Mississippi rivers, or, as an alternative, that portion of the height of land lying
to the west of the said meridian line. That is all it claims. It does not say any-
thing about the northern boundary. It claims that that is the boundary, and
that that is is where the province is to be taken to end.

Lord Aberdare. — And Manitoba claims to go down to the international
boundary.

Sir Montague Smith. — They are two quite distinct claims, and they are
both intelligible on the map. It looks as if it was intended we should decide
between those two claims.

Mr. MowAT. — Well, my Lord, I am quite content with that construction ;
we want to know what our boundaries are.

Lord Aberdare. — If we decide that this is the line [jpointing on the map to
the awarded line] we do not hand this [pointing to the tract with yellow stripes}
over to Ontario

Mr. Mow AT. — Yes, that would be the effect of it. Then, bearing upon that
point, I would remind your Lordships of the commission to Sir Guy Carleton,
which describes our southerly line up to the most north-western point of the
Lake of the Woods. It goes through the height of land and reaches the most
north-western point of the Lake of the Woods.

Lord Aberdare. — What is the page you are on ?

Mr. MowAT. — It is page 387, my Lord.*

Lord Aberdare. — This is the first commission after the settlement with the
United States.

Mr. MowAT. — Yes, my Lord. It describes the province then as comprehending
"all our territories, islands and countries in North America bounded on the
south" and so on. One need not read the beginning of that until we get to Lake
Superior, which is at line 10 :

" Thence through Lake Superior, northward of the Isles Royal and Phillipeaux,
to the Long Lake; thence through the middle of said Long Lake and the water
communication between it and the Lake of the Woods, to the said Lake of the
Woods ; thence through the said lake to the most north-western point thereof, and from
thence on a due west course to the Hiver Mississippi."

Lord Aberdare. — The Long Lake is a series of lakes.

Mr. MowAT. — Yes, it is a series of lakes.f The he^ht of land has to be
crossed in reaching Lake Superior from the Lake of the Woods. The height of
land runs between them.

Then by the express terms of that commission we get to the most north-
western point of the Lake of the Woods, which is north of the height of land.

* The commiisioQ of 1786, printed ante, p. 44, note.

t YarioiiBly represented on the old maps as connected with Lake Superior by an inlet oonesponding in
Dosition to the estuary of the Pigeon or of the Kamanistiquia river.

78

SOUTHERN BOUNDARY OF UPPER CANADA CARRIED TO LAKE OF THE WOODS, 1783-86.

There will be no dispute that that is north of the height of land. We have that
point ascertained then in that way.

The Lord President. — ^According to your present argument, you do not care
about " on a due west course to the River Mississippi."

Mr. Mowat. — No, my Lord, it is not material ; but I may argue that point in
order to shew what territory I think, as a matter of strict law, the province may
be said to be entitled to. Though this may shew a larger territory than is
awarded, I do not claim a larger territory.

It is no doubt a matter of considerable difficulty to determine where the true
boundaries are, having reference to the charter, and to the various statutes, ariU
all that has taken place. There are considerations, no doubt of considerable
weight, in favour of very diflFerent views. The charter itself is extremely vague.
One can hardly imagine anything more so. It is just possible that it may be
thought to be a matter which one cannot come to any conclusion upon ; one of
those matters which must be the subject of some arbitrary determination, either
by a higher authority than the provinces themselves, or by arbitration. But I
will assume that it can be made out what the legal boundaries are, and I wish to
present a few considerations to your Lordships to shew what they are.

The great difficulty in the case is as to what is to be considered as " territory
granted to the " Hudson's Bay Company. I think your Lordships would not find
much difficulty in coming to the conclusion that all British Canada, north of the
southerly line which is described in the Act of 1774, was intended to be included in
Quebec, if it were not for that reference to *'the territory granted to the" Hudson's
Bay Company. But we have that expression there— the territory is only to go north-
ward to the territory of the Hudson's Bay Company, and therefore we have to find
out what that territory was. Now, what is to be considered as included in that
expression, ** the territory granted to the " Hudson's Bay Company — and for my
purpose I wish to limit the construction of those words as much as possible ? I
wish to make as limited as possible the territory which can be considered to have
been granted to the Hudson's Bay Company, in order that it may not be so con-
siderable as to include territory which I claim on behalf of the Province of
Ontario. I urged yesterday that the construction of those words, " the territory
granted to the ' Hudson's Bay Company, should be the legal construction, because
we are now engaged on a question of law, and that the territory referred to should
be territory effectually granted — not what the instrument purported to grant
merely, if there is a difference between what it purports to grant and what it
actuaJW^ grants.

What the legislature was contemplating was the territory which had
actuallv passed from His Majesty to the Hudson's Bay Company, and I
pointed out the reason why that must have been the object in view. Perhaps I
use too strong an expression when I say " must have been," but I will say, the
reason which makes it almost certain, if not quite certain, to have been the object
in view. The Hudson's Bay Company had powers of government. It was not
necessary, therefore, whatever territories were included in their charter, to provide
any government for them, because that was done already by the charter itself.
What Parliament was doing was providing a government for portions which had
no government before — for the territory which formerly belonged to France,
which had been ceded in 1763, which before had been governed under French
law and under a French Governor, and which now needed provision for govern-
ment under English law and by an English Governor. I do not think your Lord-
ships would hold that it was intended to leave out any part of British North
America, north of the southerly line, from the government. If it was reasonable,
as of course it was, that whatever territory the Hudson's Bay Company had

79

ARGUMENT OP ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

should be governed, namely, by the company, so also it was reasonable^ right and
necessary that the rest of the territory should be governed. I submit therefore
that that single consideration, if there was reasonable doubt about the point,
shews that the words ought to be construed as "effectually granted;" that they
ought to be construed a,s meaning the territory belonging to the Hudson's Bay
Company, the lands which they had the power of disposing of, and in which they
had the jurisdiction to govern, and legislate, and so on, in accordance with the
terms of the charter.

Then, what territory of the Hudson's Bay Company stood in that
position? The charter, I have said, is extremely vague and indefinite, and
what I submit is, that upon the reasonableness of the thing, upon the prac-
tice with regard to all similar charters of that period, and upon principles appli-
cable also to other cases — in construing this charter for the present purpose, in
determining what ought to be considered as having been effectually granted to
the Hudson's Bay Company, we are to look at what was done under it, and at
what land was appropriated under it, by the Hudson's Bay Company, and that
the charter cannot be said to have granted any more than was so appropriated.
There is a difficulty in saying exactly what was appropriated; a difficulty in
point of law. There is no difficulty with regard to the facts. There is no diffi-
culty in ascertaining how much territory the company actually occupied, or how
much territory they exercised control over as proprietors, but then how much
additional territory that might give is a matter of more or less difficulty. I may
mention one or two things here in connection with other charters of the same
period and founded upon the same principle.

The Lord Chancellor. — I do not see how that can have any bearing on the
question which we have to determine. I cannot conceive how other charters not
relating to this territory can have any bearing on the question which we have to
determine.

Mr. Mow AT. — I do not mean that the words of the other charters would have
any bearing, but would not the view ttiat was taken of those other charters, so
far as they are analogous to this one, be material ?

The Lord Chancellor. — If you shew that upon any bounding words of
description, like those we have to deal with, applicable to other charters, a par-
ticular construction has been put, I do not say that may not be in point. If you
prove that a particular territory being said to be bounded by lands granted to a
certain company, has been held to be not applicable to the lands de facto granted
so as to introduce an inquiry as to how far it was a valid grant or not, perhaps it
may have some bearing upon the case. If you merely want to shew that in a
question as to the valiaity of a charter something may have depended upon what
was done under it, I think that has nothing to do with the present question.

Mr. MowAT. — I am not arguing as to the validity of the charter. I am
assuming that it was perfectly valid, and merely inquiring how far it extended,
and how much it can be said to have included.

The Lord Chancellor. — That is a question of parcels upon the construction
of the charter.

Mr. MowAT. — Yes, my Lord, it is ; but it seems, my Lord, to be material here
to know what the parcels were that can be considered to have passed under the
charter.

The Lord Chancellor. — But how you can shew that by shewing that the
parcels were under another charter I do not know.

Mr. MowAT. — I will not urge this point further against your Lordship s
impression ; but it seems to me important that if we find charters as strongly
expressed as this, and perhaps more strongly expressed than this, with regard to

80

EXTENT OF THE HUDSON S BAY COMPANY S TERRITORIAL GRANT.

the territories to be embraced in them, for instance definitely naming the particu-
lar latitudes, and perhaps naming the ])articular points between which the terri-
tory granted lay — if it was found that charters so expressed, relating to the
undiscovered parts of America, have been always treated as if they merely
carried to the grantees, not the whole of the territory, unconditionally, between
those latitudes or points, but so much of that territory only as they acquired
the sovereignty of for England, from whom the charters emanated, I think that
might be material. It is only in that view that I wished to refer to these
charters.

The Lord Chancellor. — For the present moment you may assume that the
grant to the Hudson*s Bay Company was ab initio entirely void, and that they
had nothing whatever effectually granted. De facto various things were done on
the footing of this being a grant alleged to be valid, and amongst other things
done is this description.

Sir Montague Smith. — If I understand, you want to shew that the grant is
only (I do not say whether it is right or wrong) effectual so far as they carried
it into some operation by occupying the country and so on ?

Mr. Mow AT. — Yes, my Lord. This was not territory that was then English.
It did not then belong to England. It was vacant territory — this is not a matter,
I suppose, that can be disputed — which any nation might appropriate, if they took
the proper steps for the purpose, on the principles of international law governing
such matters ; and territory of that sort having been granted by this charter to
the Hudson's Bay Company, the effect of the charter is, I submit, limited in the
way I have mentioned.

The Lord Chancellor. — It may well be so as to the effect of the charters.
That is a very important question, which, as we know, was for many years under
discussion by various parties, as to the Hudson's Bay Company and their rights.
What I cannot understand is its bearing upon the boundary description which we
have to deal with. It is not whether the territory was effectually granted or not,
but whether it was de facto granted under a boundary description.

Mr. MowAT. — Of course, if your Lordships hold that, I cannot proceed with
this part of the argument.

The Lord Chancellor. — What would be the use of bounding descriptions,
if they are to let people into indefinite inquiries as to various facts and law which
can be no assistance whatever in ascertaining the boundary ?

Mr. MoWAT. — But your Lordship sees that even taking the other view as to
the meaning of the charter, it then would be extremely difficult to make out. I
suppose we should differ about it — as to how far the charter would ^aant anything.
It grants all the lands and territories on the confines of the Bay, and so on — what
does that mean ? There would be great doubt then, and you cannot get free of
the doubt.

The Lord Chancellor. — You have got the Dominion Act of 1870, confirmed
by an Act of the Imperial Parliament, which seems to me entirely to relieve that
doubt if there were any, shewing that Rupert's Land included the present
Manitoba, and was recognized as doing so both by the Dominion and by the
Imperial Parliament.

Mr. MowAT. — Of course if your Lordships hold that I must bow to that view.
But I have already pointed out that the statement in the Dominion Act is that
Manitoba was formed out of " Rupert's Land and the North- Western Territory,"
not Rupert's Land alone, and that there had been no definition of the boundaries
of either tract. But I am prepared to shew, beyond any doubt I think, unless
your Lordships hold it to be immaterial, that a large territory there — all that I
care about of course; is the territory I am really claiming, but I am prepared to
6 (B.) 81

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

shew that a large territory beyond that, and therefore necessarily including that —
was French territory.

Sir Montague Smith. — It would be an assistance if you shewed that that
would be excluded from the grant, because that is another matter altogether.

Mr. MowAT. — Very well, my Lord, I can shew that. I do not say that it is
clear that tlie whole of this was French territory, at the moment of the charter
being granted in 1670, but it was French territory at the time it was ceded to
England.

" The Lord Chancellor. — If you prove it was French territory ceded to Elng-
land in 1763, that may be material.

Sir Montague Smith. — That is the limit the charter itself gives; it is not to
include what belongs, say, to the French.
Mr. Mow AT. — No, my Lord.

Sir Barnes Peacock. — Would it not be important on that to shew that
Ontario has exercised jurisdiction over it as representing the French territory ?
For instance, there is a census to be taken every ten years. Have you ever taken
the census in that part which you now claim as belonging to Ontario ?
Sir Montague Smith. — Mr. Mowat is going back long before that.
The Lord Chancellor. — To make it out to be French territory ceded after
the war, you would have to prove, first of all, that there were not merely some
French people within the territory who may have established forts, but that it
was a part of the French dominion of Canada, and then, secondly, if that be not
clearly established, the question of what has been so treated afterwards would be
exceedingly material.

Mr. MowAT. — With regard to the matter of the census, I may say that the
census to which his Lordship Sir- Barnes Peacock referred is taken by the
Dominion.

Sir Robert Collier. — That is at a later date.

Sir Barnes Peacock. — Has the census ever been taken for Ontario in this
territory which you now claim ?

Mr. Mow AT. — *^ e have no jurisdiction about taking the census. Under the
British North America Act, the provision is made that amongst the exclusive
powers of the Dominion is the power of taking the census.

Sir Barnes Peacock. — But have your judicial officers ever exercised juris-
diction for this pai't of the territory before the surrender by the Hudson's Bay
Company ?

Mr. MowAT. — Yes, I can shew that.

Lord Aberdare. — There was a decision of a criminal case, I think, by them ?
Sir KoBERT Collier. — We shall come to that. We are now on whether it
was French territory in 1763. That is the present question.

Mr. Mowat. — There is a great deal of historical matter bearing upon that. I
will not trouble your Lordships with more than a portion of it, but suflScient, I
think, lor the present purpose.

Perhaps I had better first refer to what Governor Carleton says on the subject,
in one of his despatches, dated at Quebec, 2nd March, 1768. It is at page 609,^
my Lords, of the Joint Appendix. T will read a little from that despatch^
commencing at the beginning. Your Lordships will observe that it is addressed
to the Earl of Shelburne :

** I have received your Lordship's letter of the 14th November, and one since, wrote
from the office by your directions, dated the 8th of October last.

" The drawing hereto ^annexed is taken from different maps and the best memoirs and
relations I have hitherto been able to procure. 'TiH intended chiefly to shew the western
posts which the French formerly occupied, and how far they extend beyond Michilimakinac

82

THE FRENCH POSSESSION — GOVERNOR CARLETON'S ACJCOUNT.

This end I believe it answers tolerably well, tho' their exact positions on the globe must
be erroneous, as I have not met with any of those gentlemen who understand the use of
any mathematical instrument, but they all agree that Pascoyat '' — that is one of the
forts on the Saskatchewan — " is two and a half or three months' journey beyond
Michllimakinac, and reckon the distance about nine hundred leagues/'

Lord Aberdare. — Where is Michilimakinac ?

Mr. MowAT. — Your Lordship will see it marked on the map, between Lake
Huron and Lake Michigan.

Lord Aberdare. — It is the fort at the northern portion of that territory
which runs between Lake Huron and Lake Michigan.

Mr. Mow AT. — The despatch proceeds :

"The river on which Pascoyat stands is said to be five hundred leagues long. A
fort was erected one hundred leagues beyond Pascoyat, but I have not information
enough to put either the fort or the full extent of the river in the map."

He writes therefore of two French forts there, on the Saskatchewan :

" The annexed return of the French posts, of the troops for the protection of trade,
with the number of canoes sent up in the year 1754, shews in some measure the extent
of their trade, and the system pursued by the French government in Indian affairs."'

Your Lordships will ob.serve here that it is the government who managed all
these matters, that they are not matters of private enterprise unconnected with
the government, but, throughout, the government takes an active part in them
all — in sanctioning the trading with the Indians, and in erecting posts, and so on :
" They did not depend on the number of tioops, but on the discretion of their officers,
who learned the language of the natives, acted as magistrates, compelled the traders to
deal equitably, and distributed the King's presents."

So there was government ; there were troops to whatever extent was found
necessary ; and then the officers at each post were authorized to act, and did act,
as magistrates, and so on :

*' By this conduct they avoided giving jealousy and gained the affections of an
ignorant, credulous and brave people, whose ruling passions are independence, gratitude,
and revenge, with an unconquerable love of strong drink, which must prove destructive
to them and the fur trade, if permitted to be sent among them ; thus managing them by
address where force could not avail, they reconciled them to their troops, and by degrees
strengthened the posts of Niagara, Detroit and Michilimakinac without giving offence."
The next paragraph is :

" The country was divided into certain districts, and the only restraints laid on the
traders were, first, not to go beyond the bounds of that district they obtained passes for "
— passes, that is, from the Governor of Canada — •* and, secondly, not to carry more
spirituous liquors than was necessary for their own use, nor sell any of that to the
Indians ; the King's posts, or rather the Intendant's, were the only ones excepted from
this general rule."

There was a great advantage in dealing with the Indians if they brought
liquor into use, and while private persons were not allowed that advantage, it
seems that at the King's posts the advantage was permitted :

** Under these regulations the canoes went first to the post of the district, from
whence they had full liberty to go among the Indians and accompany them to their
hunting grounds ; they likewise called on their return. If any were ill-treated they
complained to the commandant, who assembled the chiefs, and procured redress ; the
savages also made their complaints and obtained immediate satisfaction, an exact report
of all which was sent to the governor. This return may be depended on for so much as
it contiins " — the particulars are given afterwards — ** but as the King of France was
greatly concerned in all this trade, a corrupt administration did not think it their interest
that all these matters should appear in a full, clear and lasting manner.

83

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY

" Your Lordship will be pleased to observe that the great inlets to the north-east,
from the Missisipi, are by the Ohio, and from thence up the Ouabach, which leads
towards the sources of the River Miamis and Lik« Erie ; bj the Illinois, that leads to
Fort St. Joseph and Lake Michigan ; and the Ouisconcing, that leads to Fox River and
Bay des Puans ; besides these, the different streams that run into the Missisipi carry
them towards Lake Superior and the western lakes."

Then what follows an the next paragraph has reference to the places on the
^ast bank of the Mississippi, which I suppose your Lordships would think was
clear, and perhaps it is not worth while troubling your Lordships with that.*

The Lord Chancellor. — The only observation which occurs to me on that
next passage is, that the French or Spaniards were there, but I suppose nobody
contends that the Spaniards had any territorial dominion there. It plainly says
that the settlements or posts spoken of are not necessarily such as to imply the
assumption of territorial dominion. But as to the meaning of this description, you
were referring to this document apparently to shew that the French extended
their territorial acquisitions so as to include Pascoyat on the Saskatchewan.

Mr. MowAT. — Yes, my Lord.

The Lord Chancellor. — Then all I point out is that the contents shew that
settlements or posts of a kind not involving territorial dominion are apparently
in contemplation.

The Lord President. — There is a reference to the King's territory at the
bottom of the page.

The Lord Chancellor. — That is of course important as distinguishing the
King's territory — which probably would be Canada — from all these outlying places.

Lord Aberdare. — It seems to contemplate a connection between what is
called generally Louisiana and this district, rather than a connection between
Canada and this district.

Mr. MoWAT. — I shall trouble your Lordships with a short selection only fi-om
the voluminous evidence about the settlement of the French there, and about
Canada extending to the Mississippi.

Lord Aberdare. — If you are not going to insist on this part of it, I suppose
you might pass very lightly indeed over it.

Mr. MowAT. — It was merely with the single purpose which I have spoken
of already, to shew that the territory which may be excepted from our claim
.ou(yht at all events to be considered as not extending so far as to exclude us from
the points which tlie arbitrators thought we were entitled to.

• The two paragraphs of the despatch next succeediag the paragraph here referred to are as follows :

** I shall easily tind in the troops here many otticers and men very ready to undertake to explore any
part of this continent, who require no further encouragement than to be told such Rervice wiU be accept-
able to the King, and if prop -rly executed will recommend them to hia favour : but as they are unac-
quainted with the country, the Indian lauguageii and manners, 'tis necessary to join with them som«
Canadians to serve as guides and interureterti. The gentlemen here are mostly poor, and havn families;
in order to induce them to attach tnomselves thoroughly to th«^ King's interest^i, 'tis necessary they
should be assured of their being taken into his service for life, and in case they perish on these expeditions,
that th**ir widows will enjoy their pay, to support and educate their children.

"Should his majesty think proper to allow the traders to go up to the western lakes, as formerly, I
think a party might winter in one of these |x>st8, set out early in the spring for the Pacific Ocean, find out
a good port, take its latitude, longitude, and describe it so accurately as to enable our ships from the East
Indies to find it out with ease, and then return the year following. Your Lordship will readily perceive
the advantage of such discoveries, and how diflficult attempts to explore unknown parts must prove to the
English, unless we avail ourselves of the knowledge of the Canadians, who are well acquainted with the
country, the language and manners of the natives. '♦♦♦«•

Appended to the despatch is the return therein referred to, headed, "List of the Upper Posts under
the French Government, of the Garrisons thereat posted, and of the number of Canoes usually sent up everr
year." Among the enunierated posts are Detroit and dependencies, Missilimakinac and dependencies.
La Baye and dependencies, Illinois, Temiscamingue, Chagouamigon, Nipigon, Gamanastigouia, Michipi
coton, and Mer du Ouest. The last of these— the Post of the Western Sea -comprised the country extend-
ing from the western watershed of Lake Superior to the Rocky Mountains, and from the ftiiBsouri to the
northern watershed of the Saskatchewan ; with numerous forts established therein.

»4

THE FRENCH POSSESSION — GOVERNOR POWNALL'S ACCOUNT.

The Lord Chancefxor. — This certainly shews that in 1768, according to the
information which the government had obtained, the French had posts extend-
ing as far north as Pascoyat. More than that it does not seem to me to shew.
Those were posts apparently for the purpose*: of trade, where they had their
factors, and their factories, and a certain amount of jurisdiction and authority.

Mr. MowAT. — I do not know of any other way of acquiring sovereignty
over such territory. That is the only way in which it was done.

The Lord Chancellor. — That state of things is no proof whatever of the
acquisition of territorial dominion.

Mr. MowAT. — ^The whole must be taken together.

The Lord Chancellor. — Yes; if you have other instances, that may be
material.

Mr. MowAT. — I do not rely upon that solely, but it is one piece of evidence
shewing that in this North- West territory there were French traders and French
posts. It appears from the evidence that licenses to trade were necessary, and
that the licenses to trade were granted by the Governor of Canada. The French
king also sent troops to these various posts, and appointed magistrates there.

The L/)RD Chancellor. — It does not appear that the magistrates were
placed over anything but the factories and so on. I mean there is no reason at
all to imagine that he treated the Indians as his subjects.

Mr. Mow AT. — May I ask your Lordship to permit me to call your attention
to the account given by another of the English governors ?

Sir Montague Smith. — Yes, you are going on, as I understand, with your
evidence.

Mr. MowAT. — This is only another piece of my evidence; there is a great mass
of it. I am merely picking out a few matters, because it would take a great
deal of time to give to your Lordships the whole of the evidence, and I think it
is only necessary to confirm in substance what I will read to your Lordships. I
will read from the report of Governor Pownall, which you will find at
page 601.* It is his account of what the French did in this territory, and I
beg your Lordships* permission to observe that it was not a csase of the English
being there, or of the Hudson's Bay Company being there, and the French not
being there. The Hudson's Bay Company never went into this region at all
until long after the cession, when there was no doubt of the right of the English
crown to it. This is what Governor Pownall says :

"The French in their first attempts to settle themselves in these parts endeavoured
to penetrate by force of arms " —

Sir Montague Smith. — All this was before the cession ?

Mr. MowAT. — Yes ; shortly before the cession. There was no change in
favour of the Hudson's Bay Company during the interval. The fact is, the
French were increasing their occupation, every year more and more, of the terri-
tory which they had taken possession of, or acquired the sovereignty of, for their
monarch. Governor Pownall says :

*• The French, in their lirst attempts to settle themselves in these parts, endeavoured
to penetrate by force of arms, to fix their possessions by military expeditions. But
. . they fell afterwards into that only path into which the real spirit and nature of the
service led. The native inhabitants (the Indians) of this country are all hunters ; all
the laws of nations they know or acknowledge are the laws of sporting ; and the chief
idea which they have of landed possessions is that of a hunt. The French settlers of
Canada universally commenced hunters, and so insinuated themselves into a connection

* A Memorial stating the nature of the service in North America, and propoeinff a general plan of
operations as founded thereon. Drawn up by order of, and presented to. His Royal Ui^ness the Duke oi
C^imberland, 1756. drd ed. London : 179(5.

85

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY:

^th these natives. While the French kept themselves thus allied with the Indians
AS hunters, and communicated with them in, and strictly maintained all the laws and
rights of sporting, the Indians did easily and readily admit them to a local landed
possession, a grant which, rightly acquired and applied, thejc are always ready to make,
as none of the rights or interests of their nation are hurt by it ; while on the contrary
they experience and receive great use, beneBts and profits from the commerce which Uie
Europeans therein establish with them.''

Let me note there another piece of evidence to shew the course of proceed-
ing followed by the French in order to acquire, and whereby I submit they
did acquire, the sovereignty of this country — no one else being in possession of
it. What they did was this : after conciliating the Indians they obtained from
them grants of a local landed possession. There was no other way by which they
could proceed to acquire sovereignty.

The Lord Chancellor. — The context rather shews the contrary, because it
says that the French possession interfered not with the rights of the Indians.
And then he had said just before that the Indians were in the habit of making
grants of this sort :

" A grant which, rightly acquired and applied, they " that is the Indians " are always
. ready to make, as none of the rights or interests of their nation are hurt by it."

Lord Aberdare. — As long as they were lessees with the full power of hunt-
ing, they did not care where the right to the territory rested.

Mr. MowAT. — That is quite so, and they were willing to grant any rights
(beyond that power of hunting) which the European nations desired from time to
time. It is the cumulative force of these thingrs which makes the point clear,
that this territory had become French territory, and was what was ceded to Eng-
land in 1763. Now, my Lord, if you will allow me, on page 602, 1 will read a
little more on this point.

Sir Montague Smith. — What is the meaning of this.:

** No Canadian is suffered to trade with the Indians but by license from the Grovern-
ment?"

Mr. MowAT. — " But by license." That is the very point.

'* No Canadian is suffered to trade with the Indians but by license from the Govern-
ment, and under such regulations as that license ordains.'*

I think that is in my favour as shewing that all this was done under government
action. I mean, it was not the volunteer action of those who went in there to
trade, but they were all acting under the Government, and by the authority of
the Government :

** The main police of which is this : The government divides the Indian countries
into so many hunts, according as they are divided by the Indians themselves. To these
several hunts there are licenses respectively adapted, with regulations respecting the spirit
of the nation whose hunt it is ; respecting the commerce and interest of that nation ;
respecting the nature of that hunt. The Canadian having such license ought not to trade
and hunt within the limits of such hunt but according to the^above regulations ; and he
is hereby absolutely excluded, under severe penalties, to trade or hunt beyond these limits
on any account whatever.

" It were needless to point out the many good and beneficial effects arising from tJiis
police which gave thus a right attention to the interest of the Indians, which observe
the true spirit of the alliance in putting the trade upon a fair foundation, and which
maintained all the rights and laws of the hunt that the Indians most indispensably
exact."

Will your Lordship allow me to make here this observation, in view of which
ihese different extracts should be read — that this governmental interference by

86

THE FKENCH POSSESSION — GOVERNOR POWNALL*S ACCOUNT.

the French constantly during all this period was never objected to by the Hud-
son's Bay Company as far as regards tne territory in question ; and it was not
objected to by England either. Both England and the company recognized evi-
dently the right of France to occupy this territory, and acquire the sovereignty
of it in that way :

'' But the conBequence of the most important service which arises out of this police,
w a regular, definite, precise, assured knowledge of the country. A man whose interest
and commerce are circumscribed within a certain department, will pry into and scrutinize
every bole and comer of that district When such a hunt is, by these means, as full of
these coureurs des bois as the commerce of it will bear, whoever applies for a license
most betake himself to some new tract or hunt, by which again begins an opening to new
discoveries and fresh acquisitions. When the French have, by these means, established a
hunt, a commerce, alliance and influence amongst the Indians of that tract, and have, by
these means, acquired a knowledge of all the waters, passes, portages and posts that may
bold the command of that country — in short, a military knowledge of the ground — then,
and not before, they ask and obtain leave of the Indians to strengthen their trading
house, to make it a fort, to put a garrison in it."
A garrison, of course, implies troops of the King :

'* In this manner, by becoming hunters and creating alliances with the Indians as
brother sportsmen, by founding that alliance upon, and maintaining it (according to the
true spirit of the Indian law of nations) in a right communication and exercise of the
trae interest of the hunt, they have insinuated themselves into a^a influence over the
Indians, have been admitted into a landed possession, and by locating and fixing those
possessions in alliance with, and by the friendly guidance of, the waters [of the St. Law-
rence and Mississippi, and of the Winnipeg system] whose influence extends throughout
the whole, they are become possessed of a real interest in, and real command over, the
-country."

The Lord Chancellor. — And you say that is annexation]

Mr. MowAT. — I say it is the way in which a desert country of this kind
bicomes possesse 1 by one nation rather than another.

The Lord Chancellor. — It may be a great step towards it, no doubt.

Lord Aberdare. — That is a curious expression if it is annexation, and a very
round about way of saying that they had annexed a country, or that they con-
sidered it a portion of French territory.

The Lord Chancellor. — You might say we had annexed Borneo according
to that.

Mr. MowAT. — All America was acquired in this way; it belonged to the
Indians.

The Lord Chancellor. — It is impossible to deny that such a mode of pro-
ceeding might very easily terminate in annexation ; but that it is annexation in
itself is a different thing.

Mr. MowAT. — These are just some of the steps that are needed for that pur-
pose ; that is the view at least we submit to your Lordships. A report of this kind
is free from any doubt or suspicion as to its accuracy, because it is made by the
English governor, and its purpose is to inform his superiors of what another
nation is doing to acquire the sovereignty of the country.

Sir Montague Smith. — Line 30 seems to be a summary of it all :

** They have thus througout the country sixty or eevi-nty forts.*'

Mr. MowAT. — Yes :

" They have thus throughout the country sixty or seventy forts, and almost as many
settlements, which take the lead in the command of the country, not even one of which
forts without the above true spirit of policy could they support with all the ex|)en8e and
force of Canada ;" — it was from Canada that they were governed — ** not all the power of
France could ; 'tis the Indian interest alone that does maintain these posts."

87

ARGUMENT OF ATTORNEY GENERAL OF ONTARIO re QUESTION OF BOUNDARY:

It is in consequence of always respecting these Indian customs that the
English government has been so successful with the Indians, and contrast*
so favourably in that respect with the United States, where they are always at war
with the Indians and terrible disasters and atrocities are occurring between them :
" Having thus got possession in any certain tract, and having one principal fort, they
get leave to build other trading houses and entrepots, at length to strengthen such, and in
fine to take possession of more advanced posts, and to fortify and garrison them, as little
subordinate forts under the command of the principal one."

Lord Aberdajie. — Suppose the Hudson's Bay Company had pushed forward
and came into collision with these forts, and there had been fighting, there probably
would have been what would have been considered a case of war — do you say
that the French would have considered it a violation of their territory ?

Mr. ScoBLE. — It was one ground of the war that led to the Peace of
Ryswick that the settlements of HudHon's Bay were attacked by the French.

Lord Aberdare. — That is quite another part of the territory. We are now
speaking of places hundreds and hundreds of miles from Hudson's Bay.

Sir Robert Collier. — They speak of Canada in the next line.

Mr. MowAT. — Yes :

" Though these principal forts have subordinate forts dependent upon them, they are
yet independent of each other, and only under the command of the Governor-General ;
there is a routine of Aity settled for these, and the ofl&cers and commanders are removed
to better and better commands. What the particulars of this are, and of the distribution
of the troops, I have not yet learned as to Canada, but in general the present establish-
ment for this service is three thousand men, of which there are generally two thousand
three or four hundred effective." Then he says : — " I have not been able yet to get an
exact list of the forts in Canada."

Sir Robert Collier. — Then he gives a list of what he supposes to be the
forts of Canada.

The Lord Chancellor — As far as I can follow the names, they do not seem
to go beyond the undisputed limits of Canada.

Mr. MowAT. — A good man^^ of them are in the country along the Mississippi ;
others are in the territory of which we have been speaking. For instance, aboat
the middle of page 603 Fort Alibi is mentioned, that is north of the height of land,
near James' Bay.

The Lord Chancellor. — That I suppose is within the undisputed limits of
Canada.

Mr. MowAT. — It is north of the height of land — Fort AbbitibL

Lord Aberdare. — That is within the territory which was conceded expressly
to the Hudson's Bay Company by the Treaty of U trecht, and before the document
of which you speak.

Mr. Mowat. — It in fact continued always in possession of France after the
Treaty of Utiecht.

Sir Robert Collier. — It appears to have been occupied by the French.
They had a fort at Abbitibi.

Mr. Mowat. — Yes ; the map says of it : " Built by De Troyes in 1686." And
of another post on Lake Abbitibi : " French Post founded before 1703."

The Lord Chancellor. — In this list, at page 603, as far as the report of
Governor Pownall is concerned, it might be important, because he says these par-
ticular forts are within what he understood to be Canada.

Mr. Mowat. — Yes, my Lord.

The Lord Chancellor. — Now I want to know whether there are any others
which are outside the undisputed limits of Canada.

Mr. Mowat. — What am I to consider as the undisputed limits of Canada ?.

88

THE FRENCH POSSESSION.

The Lord Chancellor. — ^^I mean Canada as it was after part of it had been
ceded to the United States.

Mr. MowAT. — All north of the lakes remained to Canada.

The Lord Chancellor. — These ten are mentioned — can you point out on
the map any others ?

Mr. Mow AT — There is Fort Abbitibi. Then, in his evidence before the Par-
liamentary Committee of 1749, Richard White says :

**The French intercept the Indians coming down with their trade, as the witness be-
lieves, he having 8een them with guns and clothing of French manufacture, and that an
Indian told him there was a French settlement up Moose River, something to the south-
ward of the west at the distance as the witness apprehends, of about fifty miles."

The Lord Chancellor. — Is the one you pointed out before between Lake
Huron and Lake Michigan ?

Mr. Mow AT. — Michillimackinac ; there is no question about that.

The Lord Chancellor. — That clearly was within the limits of Canada until
it was ceded to the United States.

Mr. MowAT. — Yes, my Lord.

The Lord Chancellor. — Then Du Quesne— where is that ?

Mr. MowAT. — At the junction of the Ohio and Alleghany Rivers. I may
mention generally that the only names in the territory to the north or west
of the height of land with which we have to do in this paper, are Alibi, certain
of the posts dependent on Nepigon and Michillimackinac, and the posts of the
Sioux and St Antoine — the latter on the Upper Mississippi.

Sir Robert Collier. — Are there any of them to the west ?

Lord Aberdare. — None of these are to the west.

Mr. MowAT. — With regard to the others, while the post is in one particular
place yet the territory which is supposed to be annexed to it extends much
lurther. For instance, " Missilimakinak and its dependencies " is the first mentioned
there ; and it is an historical fact, and there is evidence of it in this book, that
the dependencies there extended north and west of the height of land, although
the fort itself was south. And of the six forts grouped here as dependencies of
Nepigon, some were situated beyond the height of land.

The Lord Chancellor. — Is it by Lake St. Joseph ?

Mr. Mow AT. — There is a fort at Lake St. Joseph.

The Lord Chancellor. — That seems to be exactly within the limits of what
was given to Canada.

Sir Montague Smith.— North of the limits given by the award.

The Lord Chancellor. — It is within those limits. It is by the south bank
of the Lake St. Joseph.

Mr. Mow AT. — Y^s, my Lord. I think it is within the limits that the award
gave to us. It is on a river which flows into Lake St Joseph there, and that
river passes through the territories that the arbitrators gave us. Then there is
also Fort Kamanistiquia, near Lake Superior.

The Lord Chancellor. — This list derives importance from this heading,
" Forts in Canada." Anything you can bring into that is certainly described at
that time as being what was understood to be Canada, and I think although he
says just before he has not been able to give an exact list of all the forts in
Canada, yet one may infer that those are all that he had a list of.

Mr. MowAT. — Yes, I think he does not mention any others. 1 shall have to
go to other testimony for the others.

Sir Robert Collier. — Fort St. Joseph — do I understand that to be west of
the line from the confluence of the Ohio and the Mississippi ? I suppose it wa« ;

89

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

therefore I suppose that to be in your favour, as excluding their boundary,
which is the line from the Ohio to the Mississippi.

Sir Montague Smith. — That would carry you to the west of their boundary.

Mr. MowAT. — There is quite a number of forts between the Mississippi and
the due north line.

Sir Robert Collier. — Take Fort St. Joseph: that may be taken as carrying
the boundary west of the line they contend for.

Mr. MowAT. — Yes, my Lord.

Sir Robert Collier. — Are there any others of that kind ?

Mr. MowAT. — Fort Kamanistiquia would be. It also is west of that due
north line. You will see Fort William there, and then the Indian name under
it. The present name is Fort William.

Sir Robert Collier. — Yes, that is not in this list.

The Lord Chancelor. — The value of this is that they are all forts in Canada.

Mr. Movv'AT. — Yes, my Lord. There is another in this list which is on the
Upper Mississippi and west of the due north line — Post Sioux.

Sir Robert Collier. — Where is that ?

Mr. MowAT. — They are not marked with that name, but that is the general
name which they received. Fort St. Croix, built before 1688, your Lordship will
see tliere [pointing on the map].

Sir Robert Collier. — Is that in this list ?

Mr. Mow AT. — It is included in the word Sioux. The word embraces a
number, of which that is one.

The Lord Chancellor. — No doubt that was, I suppose, in Canada until the
cession to the United States. ?

Mr. Mo WAT. — Yes, my Lord.

Sir Robert Collier. — To the west of Lake Superior, no doubt.

Sir Montague Smith.— There is a fort just to the north of Pigeon River —
there is a number of those forts which you say came within the general description
of the Sioux.

Mr. Mow AT. —Yes, my Lord, and Canada at that time was considered to
extend over the Mississippi to the west bank of it, and some of the forts included
under this name were on the west side of the Mississippi, and they were all con-
sidered as part of Canada — but of course that portion west of the Mississippi
was not ceded to the English.

The Lord Chancellor. — Where is Miamis ?

Mr. MowAT. — There were two of the name : one to the south-west of Lake
Erie — a little below the most southerly part of it ; the other on the south-easterly
shore of Lake Michigan.

The Lord Chancellor. — Then it seems clear that the whole of those forts
are within the di>trict which it is not in controversy was Canadian, or
only in controversy in the view ot those who draw the line up from the Ohio.

Mr. Mow AT. — Your Lordship will find several named on the Upper Mississippi.
For instance, St. Antoine is mentioned ; it is spoken of as being a fine one. That is
in the region of which we have been speaking. I shall give your Lordships more
particular information about these posts in the further evidence.

The Loud Chancellor. — It seems to be established that there were these
forts reputed to be in Canada which we have at page 603, and that in the terri-
tories which were treated as Indian territories, for some purposes at all events,
the French had other forts accjuired in the manner which is described in the
documents.

Mr. MowAT. — Then, I may assume for the present —

»Sir Montague Smfth. — ^You hnd better go on with any further evidence.

90

THE FRENCH POSSESSION — EVIDENCE BEFORE HOUSE OF COMMONS COMMITTEB, 1749*

Mr. Mow AT. — There was a committee of the House of Commons in 1749*
before which evidence was taken, and it is satisfactory because the Hudson's
Bay Company was represented, and therefore whatever took place may be relied
upon. It is at page 681. Joseph Robson is one of the witnesses. He

" Thinks that the beavers which are brought down to the company are refused by
the French, from their being a heavy commodity ; for the natives who come to trade
with the company dispose of their small valuable furs to the French, and bring down their
heavy goods to the company in summer when the rivers are open, which they sell, and
supply the French with European goods purchased from the company."

Richard White says :

" The French intercept the Indians coming down with their trade as fhe witnea*
believes, he having seen them with guns and clothing of French manufacture ; and that
an Indian told him there was a French settlement up Moose River, something to the
southward of the west, at the distance, as the witness apprehends, of about fifty miles.
The French deal in light furs, and take all they can get, and the Indians bring the heavy
to us. He never knew any Indians who had met the French bring down any light furs.
The French settlement on Moose River is on Abbitibis Lake. The trade might be
further extended by sending up Europeans to winter among the natives, which, though
the Company have not lately attempted, the French actually do."

The Lord Chancellor. — Is that the Alibi settlement that you were referring
to just now ?

Lord Aberdare. — Yes, I think so.

Mr. MoWAT. — That is referred to ; but I think there was another one there,
on the Moose River. The Moose is another river which flows into Hudson's Bay,
or rather into James' Bay, at the foot of Hudson's Bay. It was upon that river
that this fort was built.

Lord Aberdare. — I think there can be no question that the French did claim
the territory at the south of James' Bay, because it was the subject of continuous
discussion in various treaties.

Mr. Mow AT. — Quite so, my Lord. Then, the witnesses go on to describe the
course of proceeding, and shew that the French really possessed the interior of
the country at that time completely.

The Lord Chancellor.— Where do they shew that? I see a good deal of
-evidence as to trading, but where is there anything about complete possession of
the interior ?

Mr. Mow AT. — It was in that way that they had possession.

The Lord Chancellor. — That is your argument ?

Mr. MowAT. — That is my argument ; but that is the only way in which it
was ever done.

The Lord Chancellor. — These witnesses are certainly speaking of trade,
-evidently.

Mr. Mow AT. — They are telling how the thing occurred, and how it was
managed, and shewing that the whole of the interior trade was in the hands of
the French. Robert Griffin says :

" The French intercept the trade, to prevent which the Company some time ago huilt
Henley House, which did in some measure answer the purpose. '^

That is the only fort that they did build, before the cession, away from the Bay.
Lord Aberdare. — That is to say, up on the river ?
Mr. MowAT. — Yes. The witness continues :
«* But if they would build further in the country, it would have a better effect. The

♦ Report from the Committee appointed to enquire into the state and condition of the countries
^kdjoining to Hudson's Bay, and of the trade carried on there, together with an Appendix. Reported by
liord Strange, April 24, 1749. (Pages 216, 218, 226-7, 234.) ft- *- .r

91

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO te QUESTION OF BOUNDARY :

French went there first and are better beloved, but, if we would go up into the country,
the French Indians would trade with us."

Alexander Brown says :

'*The French intercepting the Southern Indians, and by that means obtaining
the valuable furs. Has been informed by the Indians that the French Canadese
Indians come within sixscore miles of the English factories. The French Indians
come to Albany to trade for their heavy goods. Has heard Mr. Norton (the governor)
say that the French ran away with our trade. If the trade was opened, the French
would not intercept the Indians, since in that case the separate traders must have out-
factories in the same manner the French have, which the company have not ; " and being
asked, '* In /rase these out-settlements were erected, whether the same trade could be
carried on at the present settlements," he said : *' That it was impossible, but the trade
would be extended, and by that means they would take it from the French. That, if
these settlements were near the French, they must have garrisons to secure them against
the French, and the Indians who trade with and are in friendship with them (whom he
distinguished by the name of French Indians). He heard the Indians tell Governor
Norton, in the year 1739, that the French had a settlement at about the distance of a
hundred or sixscore miles from Churchill, which had then been built about a year, and
contained sixty men with small arms."

I think eighty was the number that was usual at the forts, according to the
evidence.

The Lord Chancellor. — Where is Churchill ?

Mr. Mow AT. — It is at the mouth of the Churchill River, on the north- westerly
shore of the bay. Then there is a general account of the proceedings. I now
beg to refer your Lordships to some historical evidence of that distant period,
which you will find at page 64 of the Appendix of Ontario.

The Lord Chancellor. — That is a separate book of documents, is it not ?

Mr. Mow AT. — Yes ; a separate book of documents — the smaller book. I will
read a little from the beginning of this paper It is from Sir Alexander Mac-
kenzie,* and shews the course of proceeding, and confirms what I have said as
to the French having occupied the territory in a way which, according to the
rules of international law, gave them the sovereignty, until the treaty ceded the
territory to England :

" The Indians, therefore, to procure the necessary supply, were encouraged to pene-
trate into the country, and were generally accompanied by some of the Canadians " — this
is telling the proceedings of the French — not of the Hudson's Bay Company — in the
North- West territory, " who found means to induce the remotest tribes to bring the skins
which were most in demand to their settlements in the way of trade. At length, mili-
tary posts were established," — that means by the French — "at the confluence of the
different large lakes of Canada, which in a great measure checked the evil consequences
that followed from the improper conduct of these foresters [coureurs des bois]^ and at
the same time protected the trade. Besides, a number of able and respectable men^
retired from the army, prosecuted the trade in person, under their respective licenses^
with great order and regularity, and extended it to such a distance as in those days wa»
considered to be an astonishing effort of commercial enterprise.'*

Then, speaking of missionaries:

" They were during their mission of great service to the commanders who engaged in
those distant expeditions, and spread the fur trade as far west as the banks of the
Saskatchiwine River, in 53° north latitude, and longitude 102'' west.'*

Lord Aberdare. — From that, would it not seem that all those expeditions
were undertaken by the coureurs dea hois, from the basis of forts erected on the

* "A General History of the Fur Trade, from Canada to the North-West," printed with, and forming^
an introduction to the work : ** Voya«e8 from Montreal, on the River St. Lawrence, through the Continent
of North America, to the Frozen and Pacific Oceans, in the years 1789 and 1793. . . . London : ISOl."

92

THE FRKNCJH POSSESSION — SIR ALEXANDER MACKENZIE'S ACCOUNT.

great lakes ? All this shews that they are hunting, and so on, from the basis of
these forts, and that the forts were there to keep them in order with the natives ;
" At length, military posts were established [by the French] at the confluence of the
different large lakes, which in a great measure checked the evil consequences that
followed from the improper conduct of these foresters [coureurs des 6ow], and at the same
time protected the trade."

Then it was a sort of basis from which these men traded.

Mr. MowAT. — But they did this under the authority of the Government.

Lord Aberdare. — That is only the forts that were erected; they were hunt-
ing into this open country. I do not think it shews any more than that.

Mr. Mo WAT. — I shall shew where these posts are. There is quite a large
number of forts south of the great lakes, then there is a number also north of
the great lakes, and in this North- West territory, which I allude to for the
purpose —

Sir Montague Smith. — Those on the great lakes are most important for us
here.

Mr. MowAT. — But it is not merely those, as will appear as you read along.
The very next paragraph shews it :

" They [the missionaries] were, during their mission, of great service to the com-
manders who engaged in those distant expeditions and spread the fur trade as far west
as the banks of Saskatchewine River ; in 53* north latitude, and longitude, 102* west."

He gives the latitude there, which shews how far they went up :

" Notwithstanding all the restrictions with which commerce was oppressed under the
French government, the fur trade was extended to the immense distance which has
been already stated, and surmounted many most discouraging difficulties which will be
hereafter noticed ; while at the same time no exertions were made from Hudson's Bay to
obtain even a share of the trade of the country which, according to the charter of that
Company, belonged to it, and from its proximity, is so much more accessible to the
mercantile adventurer."

The Lord Chancellor. — This is what the whole book seems to be, the
history of the fur trade.

Mr. MowAT. — "Yes, and the fur trade was the only trade prosecuted in the
territory at that time.

The Lord Chancellor. — There is nothing specially about the possessions of
the company.

Lord Aberdare. — That assumes, " according to the charter of that company,"
that this region, invaded bj' the French chasseurs, or coureurs des hois, was in
fact belonging to the Hudson's Bay Company.

Mr. Mow AT. — Your Lordship sees the words " which according to the charter
of that Company belonged to it." That certainly does assume that, in a sense,
but—

L>rd Aberdare. — Of course if you quote it as an authority, you must take
it altogether.

The Lord Chancellor. — It would seem beyond all reasonable doubt that
the French carried on trade and erected for the purpose of trade certain forts.
There seems no question about that, and apparently that at the same time the
Hudson's Bay Company were not competing in the same territory. If that is
enough to establish territorial sovereignty, you have done it.

Sir Robert Collier. — They seem to have established forts, as shewn here, as
far west as the Saskatchewan River, which is a long way to the west. You will
see at line 30 :

" One of these, Thomas Curry, with a spirit of enterprise superior to that of his
contemporaries, determined to penetrate to the furthest limits of the French discoveries

93

ARGUMENT OF ATTORNEY-GENERA I. OF ONTARIO Ve QUESTION OF BOUNDARY:

in that countrj, or at least till the frost should stop him. For this purpose he procured
guides and interpreters who were acquainted with the country, and with four canoes
arrived at Fort Bourboa, which was oue of their posts, at the west end of Cedar Lake^
on the waters of the Saskatchiwine."
That is a good way to the west I suppose ?

Mr. MowAT. — Yes, a great distance to the west.

Sir Robert Collier. — I see several forts are marked.

Mr. MoWAT. — Yes, all the important ones are marked. The Fort BourboD
bere mentioned is marked near the point of discharge of the Saskatchewan into
Lake Winnipeg. There is quite a number of forts: I have not mentioned them
all yet.

Lord Aberdare. — Is your contention that all these existing places round
Manitoba formed a portion of the district of Upper Canada.

Mr. MowAT. — Yes, my Lord. I am not claiming them now, but they formed
a portion of it. They belonged to Upper Canada, because they were ceded by
France to England.

The Lord Chancellor. — It is quite clear that that is what Sir Alexander
Mackenzie speaks of, because he says in the passage just reterred to :

" For this purpose he procured guides and interpreters who were acquainted with
the country, and with four canoes arrived at Fort Bourbon, which was one of their
posts, at the west end of Cedar Lake on the waters of the Saskatchiwine. His risk and
toil were well recompensed, for he came back the following spring with his canoes filled
with fine furs, with which he proceeded to Canada, and was satisfied never again to
return to the Indian country.*'

Mr. MowAT. — Of course he referred there to the better settled and better
known parts of Canada. If your Lordships would permit me, I should now like to
call your Lordships' attention to a few more passages bearing on this question, as
it is very important. Sir Alexander Mackenzie goes on, at page 65, in this way •

"For some time after the conquest of ^Canada this trade was suspended The

trade by degrees began to spread over the different parts to which it had been carried by
the French, though at a great risk of the lives, as well as the property of their new
possessors, for the nativeshad been taught by their former allies to entertain hostile
feelings towards the English, from their having been in alliance with their natural

enemies the Iroquois Hence it arose that it was so late as the year 1766 before

which the trade I mean to consider commenced at Michilimakinac. Tho first who
attempted it were satisfied to go the length of the River Camenistiquia."

Sir Robert Collier. — We have read the whole of that passage already.

Mr. MowAT. — I beg your Lordship's pardon. — Then there is a report by
Colonel de Bougainville on the French Posts of Canada, 1757, which is at page
26 of the Ontario Appendix.* He deals with some posts that are not material

* From his ** Memoir on the State of New France at the time of the Seven Years* War " (1757).
Louis Antoine de Bougainville was one of the most distinguished French officers in the war which reimlt(H)
in the conquest of Canada. The French original of his Mimoire is given in ^^ Relationt et M4moires InMUty
etc., par Pierre Margry^ Paris, 1867. His account of the Post of La Mer de V Quest is appended at length : —

Post of the Wkstern Sea (La Mer de VOuestJ.— The Post of the Western Sea is the most advanoBd
towards the north ; it is situated amidst many Indian tribes, with whom we trade, and who have inter-
course also with the English, towards Hudson s Bay. We have there seven forts built of stockades, trusted,
generally, to the care of one or two officers, seven or eight soldiers, and eighty engages Canadiens. We can
push further the discoveries we have made in that country, and communicate even with California. The

Et of Z/a Mer d''0ue9t includes the forts St. Pierre, St. Charles, Bourbon, de la Reine, Dauphin, Poskoia,
d]de» Prairies, all of which are built with palisades that can give protection only against the Indians.
*t St. Pierre is situated on the left shore of Lake Tekamamiouen, or Lac de la Pluie [Rainy Lake], at 500
leagues from Michilimakinak, and 300 from Kamanistigoya or les Trots Rivieres^ to the north-west
of Lake Superior. Fort St. Charles is situated sixty leagues from Fort St. Pierre, on a peninsula tiiat
goes far into Lac des Bois [Lake of the Woods!. Fort Bourbon is at one hundred and fifty leagues
from the precediog one, and at the entrance of Lake Ouinipeg. Fort la Reine is situated on the right shore
of the River of the Assiniboels, at seventy leagues from Fort Bourbon : this country is composed of vast
prairies ; it is the route to go through to the upper part of the Miisouri. Fort Dauphin is at eighty leagaes.

94

THE FRENCH POSSESSION — DE BOUGAINVILLES ACCOUNT, 1757.

for our present purpose, I think, but I propose to call your Lordships' attention
to what is said on page 27, commencing with line 30, where he does refer to
posts that are material for our present purpose :

" Post of the Western Sea (La Mer de TOuest).— The Poet of the >Ve8tern Sea is
the most advanced towards the north. It is situated amidst many Indian tribes with
whom we trade, and who have intercourse also with the English towards Hudson's
Bay. We have there seven forts, built of stockades, trusted, generally, to the care of
one or two officers, seven or eight soldiers, and 80 engages Canadiens, We can push
further the discoveries we have made in that country, and communicate even with
California."
So he there states how many forts they then had in that quarter.

Sir Robert Collier. — How do you say this report is given — for whom?

Mr. Mow AT. — I refer to it as a piece of historical evidence ; it is the only
way we can get at the facts relating to this distant period

Sir Robert Collier. — But it is a statement by Colonel de Bougainville, to
whom ? Itis made on what occasion ?

Mr. Mow AT. — It is taken from a " Memoir on the State of New France at
the time of the Seven Years War," (1757). The memoir is in the printed book
here mentioned, and from it I took this extract.

Sir Robert Collier. — Was it addressed to his own government, or what ?

Mr. MowAT. — The book was printed for general circulation.

The Lord Chancellor. — However, the passage you have read speaks of a
particular post, which I suppose is to the south of the territory we are talking
about, because he speaks of communication with California.

Mr. MoWAT. — " The Post of the Western Sea " means all the North- West
territory. What follows shews that.

Lord Aberdare. — Why was this country called " La Mer de TOuest ?"

Mr. MowAT. — It was the name giv^n by the French geographers, of the
period 1695-1763, to a supposed inland sea near the western coast of America,
represented as connected with the ocean at first by one and subsequently by two
passages or straits, its position corresponding, on the later maps, to that of the
Gulf of Georgia, (Straits of Vancouver), and the two passages corresponding to the
two entrances to the latter, respectively north and south of Vancouver's
Island. And it was supposed that from this Post the discovery of this
Western Sea might be accomplished overland and the South Sea (Pacific
Ocean) be reached.

The Lord Chancellor. — Is this particular post marked anywhere ?

Mr. MowAT. — The post includes a number of foi*ts, A post did not mean one
single building ; it means a series of forts .

The Lord Chancellor. — It was a post consisting of several forts ?

from the precedinpr one, on the river Minanghenachequekt^, or Eau Trouble. Fort Poskoia is built on the
river of that name [now Saskatchewan!, at 180 leaden from the preceding one ; it takes ten days from this
fort to reach Nelson River. The Fort aes Prairies is at eighty leagues from Fort Poskoia, on the upper part
of the river of that name. This post has been farmed in consideration of a sum of eight thousand francs;
the commandant is its farmer, with a fourth interest in its trade. The Indians who trade there are the
Cristinaux and the Assiniboels ; these two tribes form each twelve villages inhabited respectively by two
hundred and fifty men (hommes). This post produces usually from three to four hundred bundles of furs ;
we must take into account also ^fty to sixty slaves. Rouges or Panis, of Jatihilinine, a nation situated on
the Missouri, and which plays the same ro/c in America that the negroes do in £urope. This' is the only
post where this traffic takes place.

The post of La Mer d'Quest merits special attention for two reasons— the first, that it is the nearest to
the establishments of the English at Hudson's Bav, and from which their movements can be watched ;
the second that from this post the discovery of the Western Sea may be accomplished ; but to make this
discovery it will be necessary that the voyageurs give up all views of personal interest.

The one who advanced this discovery most was the Sieur de la Veranderie ; he went from Fort de la
Reine to reach the Missouri. Upon this river he first met the Mandanes or Blancs-Barbus, numbering
seven villages, surrounded by forts of staked earthworks, with a moat ; then the Kinongewiniris or Brochets,
composing three villages ; at the upper part of the river he found the Mahantas, also composing three

95

ARGUMENT OF ATTORN EY-GKNERAL OF <.NTARIO re QIESTION OF BOUNDARY :

Mr. MoWAT. — Yes, my Lord, you will see that by the paraorraph beginning :
**The post of La Mer d' Quest includes the Forts of St. Pierre, St. Charles, Bourbon,
De la Reine, Dauphin,^ Poskoia, and Des Prairies."

The Lord Chancellor. — I wanted, if possible, to see them on the map.

Mr. MowAT. — They are all on this map [the Ontario Govei^niiient w.ap\

Loid Aberdare. — This country is called " La Mer d' Quest."

Mr. Mow AT. — All these forts are considered to be included in it, and they are
marked. The Post of the Western Sea embraces the whole of the territory. The
whole of the North-West went under that name.

Lord Aberdare. — On this map the letters *' Western Sea " go through Mani-
toba. It was so called because it was supposed to be on the shores of the Pacific ;
where also California was to be found.

Mr. MowAT. — I may mention here that one of my friends who is with me from
<Janada [Mr. Mills] has given attention for thirteen or fourteen years to this subject,
and is an expert in all geographical matters connected with it. If your Lord-
ships would allow him to address the court, besides myself and my learned friend
Mr. Scoble, on that part of the matter simply, it might help to shorten the discus-
sion.

The Lord Chancellor.— Oh, no. As we said yesterday, w^e cannot hear three
counsel.

Mr. Mo WAT. — Then, my Lord, this goes on to describe all these forts, and
points out where they are situated. Your Lordship has looked at them on the
map, and I suppose I need not read them over ; but at each of them there are offi-
cers, at each of them there are soldiers, at each of them there are n»en employed in
very large numbers — eighty. In this respect much more was done to acquire
sovereignty for France than the Hudson's Bay Company did to acquire sover-
eignty for England over whatever territories they had occupied. Their forts
were comparatively fewer, and they were not manned anything like so exten-
sively. The evidence* shews that they had only 120 men and oflBcera in all
their forts, instead of the very large number that the French had.

Your Lordships asked who Colonel de Bougainville was, and I. menti(»ned
tsome things about him. I should have mentioned also that this memoir was sub-
mitted at the time it was written to General de Montcalm, whose aide-de-camp
he was, and that that officer testified to the correctness of the information which
it contained.

At page 28, speaking of this post. Colonel de Bougainville says :

"The post of La Mer d'Ouest merits special attention for two reasons — the first, that
it is the nearest to the establishments of the English at Hudson's Bay, and from which

viUages, and along the Missouri in descending it to the discharge of the River Wabiek, or to the Coquille,
twenty-three villages of Panis.

To the south-west of this river, and on the two shores of Ouonaradeba, or k )a Graisse, are the
Hactannes or Gens du Serpent. They extend from the foot of a chain of very h^h mountains [the Rocky
Mountains], which run north, east, and south, and to the south of which is the Kiver Karosldou or Cerise-
Pel^, which is supposed to reach California.

He continued his journey, and found in those vast territories, where the Missouri has its sonroee,
opposite to, and about torty leagues from the Mahantas, the Owtlinioek or Beaux-Hommes, four viUagee ;
opposite the Brochets the Macateoualasites or Pieds-Noira [Blackfeet], three villages of about 100 c^ins
each ; opposite the Mandanes are the Ospekakaerenousques or Gens du Plat Cdt^, four villages ; opposite
the Panis are the Gens de I'Arc, named the Atohapcivinioques by the Christinaux, and Utasibaoutchactas
by the Assiniboels, three villages ; after these are found the Makesch or Petits Renards, two villages ;
the Privassa or Grands-Parleurs, three villages ; the Kakakoschena cr Gens de la Pie, five Tillages ;
the Kiskipisounouinini or Gensde la Jarretifere, seven villages.

He could not go further on account of the war which was then being waged between the Gens de la
Jarretibre and the neighbouring nation. I may here observe, that it is perhaps improper to use the term
villages as I have done, for all these nations which inhabit the prairies form, like the Tartars, wandering
hordes, live by the chase, and dwell in huts covered with skins.

♦ Middleton to Dobbs, Joint App., p. 581, line 13, quoted ante, p. 59 : " Out of 120 men and officers
the company have in the Bay," etc.

96

THE FRENCH POSSESSION -DE BOUGAINVILLE'S ACCOUNT, 1757.

their movements can be wat-ched ; the second, that from this post the discovery of the
Western Sea may be accomplished ; but to make this discovery it will be necessary that
the voyageurs give up all views of personal interest."

Then he goes on to say, amongst other things, what steps were taken for the
purpose of discovery. The French always had that matter in view, and were con-
stantly making discoveries and extending their possessions. Then at page 29, we
have the Post of Tabitibi.

'' Tabitibi is a post dependent upon Temiscamingue, situated at 1 20 lea;;ues from the
preceding fort, towards Hudson's Bay. Each post may contain one hundred men. They
subsist on game and fishing. They sow no grain and have no village. All this country
is mountainous, and not at all fertile. The post produces about 120 bundles of furs."

The Lord Chancellor. — Where does that lie ?

Mr. MowAT. — It is a little south of James' Bay. Then he describes, a little
lower down, the method of proceeding. At line thirty he says :

" We call ccnigf. the licenses or permits that are granted by the Governor-General for
a canoe laden with six thousand pounds of merchandizes intended to be sold in one of the
posts indicated. Such a license costs fifty pistoles. The Governor-General, who is at
liberty to give more or less, applies these funds for the maintenance of poor families of
officers. Account is given to the King of only twenty-two licenses. The Governor sometimes
gives as many as forty. The half of the fifty pistoles goes to the King, and the other half
is at the disposal of the Governor for gratuities."

I have collected the evidence here in regard to every one of these forts and
posts. Some of it I have read ; and some of it I have not yet read, as I do not
know whether my learned friends on the other side are going to dispute any of
these things.

The Lord Chancellor. — I should doubt whether they would dispute the
historic account of these things given at the time, in 1757, by a well known
French writer, and as you say (and I daresay correctly) approved by the Govern-
ment of Quebec. I should think the effect of that prooably would not be agreed
upon between you, but the facts I should think would be agreed.

Lord Aberdare. — I suppose the fact that all these various fortresses that
are scattered over these various places were put there by Frenchmen would not
be disputed. The question is, as the Lord Chancellor has said, the effect of that.

Mr. MowAT. — Well, for the present, I shall not trouble your Lordships with
putting together the vast amount of evidence there is bearing upon all these forts.

Then, as your Lordships have asked me what evidence there is as to
how far this territory was claimed by Upper Canada, as belonjiring to it, I will
refer your Lordships to what appears upon that subject. It is necessarily, to a
considerable extent, in historical documents. The first I would mention is at page
412, where there is a petition set forth. It conmences at pa^e 410. It is a peti-
tion by the Earl of Selkirk in reference to an Act of Upper Canada, 59 Geo. 3,
cap. 10, (1818), which is entitled, "An Act to authorize the enquiry and trial of
Crimes and Offences, committed within this Province, without the limits of any
described Township or County, to be had in any District thereof." The Act
itself is at page 409.* The petition is at page 410. The petition is a long

* Sec. 1 of the Act in question is as follows : —

"Whereas by an Act pa«8ed in the thirty-eighth year of His Majesty's reign, entitled, "An
Act for the better division of this Province," large tracts of country are comprehended in the several
Districts of this Province, which are not within the limits of any Township or County therein ; and
whereas crimes and offences have been committed, and may hereafter be committed, in such tracts of
country, which it might be inconvenient to try in the particular Districts wherein the same may have been
committed ; be it therefore enacted by the King's most excellent Majesty, by and with the advice and
consent of the Legislative Oiuncil and Assembly of the Province of Upper Canada, constituted and
aasembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, en-
titled, *' An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's reign,

7 (B.) 97

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY:

one, and the passages that I am going to read to your Lordships are the-
only ones probably that are material for our present purposes.* The Earl of Sel-
kirk complained of this Act, and he wished to have it disallowed.

The Lord Chancellor. — I do not see that he complains of the Act. At page
410 there is a complaint against some legal proceedings m the Canadian courts.

Mr. MowAT. — Yes, but proceedings in connection with this Act; and I have
a statement here which shews that Upper Canada was claiming jurisdiction. It
is one piece of evidence to shew that Upper Canada actively claimed juris-
diction beyond the due north line.

Lord Aberdare. — " Westward to an indefinite distance," he says.

Mr. Mow AT. — Yes, my Lord. At page 412 there are two or three sentences
which will shew what I mean. He complains :

** That the Chief Justice of Upper Canada in defiance of the Act of Parliament, which
declares the western boundary of Canada to be a line drawn northward from the point or
junction of the Rivers Ohio and Mississippi," —

Of course that was his point, that that was our limit, and he says that there
was an Act of Parliament saying so, and that the Chief Justice acted in defiance
of that :

— '* and in opposition to the unanimous decision of the court at Quebec, asserts that
the Western District of Upper Canada extends westward to an indefinite distance."
That is the expression that your Lordship read just now. So that there the
Earl of Selkirk pointed out what it was which in his view the Chief Justice of
Upper Canada asserted on that subject :

*' That in consequence of this extraordinary doctrine, your memorialist is apprehensiTe
that under the provisions of this new Provincial Act the Chief Justice will not hesitate
to issue bench warrants for the purpose of arresting several persons now resident at the
Red River settlement,"

and so on. I cite that as an historical statement of what is said in regard
to that distant period.

The Lord Chancellor. — You cite it as an historical statement, but is it in
your favour ?

Mr. MowAT. — I cannot press it beyond what it says.

The Lord Chancellor. — Because it savs :

entitled, * An Act for making more effectual provision for the government of the Province of Quebec, in
North America, and to make further provision for the government of the said Province,'" and by the
authority of the same, That all crimes and offences committed in any of the said tracts of country or parts
of this province, not being within the limits of any described county or township, may be inquired of and
tried within any District of this province, and may and shall be laid and charged to have been committed
within the jurisdiction of the court which shall try the same, and such court may and shaU proceed thereon
to trial, judgment, and execution, or other punishment for such crune or offence, in the same manner as if
sooh crime or offence had been really committed within the District where such trial may be had, any law»
usage, or custom, to the contrary notwithstanding."

* Petition of the Eabl of Selkirk, 30th July, 1819.

To the Bight Honourable the Lords of the Committee of Prii*y Council for the affairs of Trade and
Foreign Plantations,

The Memorial of Thomas, Earl of Selkirk—
Sheweth :

That in the month of September, one thousand eight hundred and eighteen, a Bill of Indictment waa
preferred ag[ainst your memorialist at Sandwich, in the Western District of Upper Canada, for a conspiracy
to destroy tne trade of certain fur traders calling themselves the North-West Company of MontreaL * *

That as they could not succeed in their endeavours to obtain from the Grand Jury in the Western
District a true bdl against your memorialist for the alleged conspiracy, another bill was, immediately after
the passing of this new Act, preferred against him on the same charge. * * The Bill has been found against
your memorialist and nineteen other persons, most of whose names have been insetted in the Indictanent,
evidently for no other purpose than to prevent them being called as witnesses in yonr memorialiBt't defence.

98

ASSERTION OF TITLE OF UPPER CANADA TO THE NORTH-WEST.

*' That the Chief Justice of Upper Canada in defiance of the Act of Parliament, whicb
declares the western boundary of Canada to be a line drawn northward from the point of
junction of the Rivers Ohio and Mississippi, and in opposition to the unanimous decision
of the court at Quebec, asserts that the Western District of Upper Canada extends west'
ward to an indefinite distance/'

Mr. Mow AT. — Yes, but your Lordship will not take his construction of the
Act of Parliament.

The Lord Chancellor. — If you use it as a statement for any purpose, you
must use it for all. How can it be a statement with regard to the rights ? ,

Mr. Mow AT. — No, not with regard to the rights. I do not cite it for that
purpose.

Sir Barnes Peacock. — You cite it as an historical statement only of the-
assertion of the Chief Justice.

Mr. Mow AT. — Yes, my Lord.

Lord Aberdare. — Were these acts committed in Upper Canada ?

Mr. MowAT. — On the part of the Crown it was so claimed, and that the juris-
diction was therefore in the courts of that province ; but on the part of Lord
Selkirk, they were claimed to have been committed in the "Indian territories,"
and to be therefore, under the Imperial Act, 43 Gteo. 3, c. 138, within the cognizance
only of the courts of Lower Canada, unless relegated for special cause, by instru-
ment under the great seal of Lower Canada, to the courts of Upper Canada ; it
was a Lower Canada court that tried the De Reinhard case.

Lord Aberdare. — As against the " decision of the whole court," and '* in
defiance of the Act of Parliament," he made this assertion ?

Mr. MowAT. — In defiance of the Act of Parliament — that was Lord Selkirk's
assertion. Tfiere was a trial in Lower Canada, in 1818, of persons charged with
murder away up in the disputed territory, and in that case the court held that our
westerly limit was a due north line from the Ohio and Mississippi. This had never
been held before, and never acted upon before, and it appears from these papers in
print before your Lord.ship that the question was referred to England, as to whether
that construction of the Act of Parliament was the correct one, and after a good
deal of correspondence, no opinion of the Law OflBcers appears to have been ob-
tained — at all events after very diligent inquiry and search we have not been able
to find that there was — and ultimately the man was pardoned. That is a single

That your memoriali&t farther submits that Fort William, a trading post occupied by the said North
West Company, and the place where the alleged offences charged against him are stated to have been-
committed, is not situated within the jurisdiction of the courts of Upper Canada, as setfcled by the Act of
Parliament of 14 George 3rd, c. 83, which defines the boundary of that Province, and therefore that these
chanres cannot be legally brought to trial in any court of Upper Canada.

That the Chief Justice of Upper Canada, in defiance of the Act of Parliament, which declares the
western boundary of Canada to be aline drawn northward from the point of junction of the Rivers Ohio
and Mississippi, and in opposition to the unanimous decision of the Court at Quebec, asserts that the
Western District of Upper Canada extends westward to an indefinite distance. That, in consequence of this
extraordinary doctrine, :^our memorialist is apprehensive that under the provisions of this new Provincial
Act, the Chief Justice will not hesitate to issue Bench Warrants for the purpose of arresting several persons
now resident at the Red River settlement, and that if such warrants are submitted to, or enforced, he will
bring away the parties to a distance of two thousand miles, without their having any opportunity of bring-
ing witnesses along with them, or the means for obtaining an impartial jury, or a fair trial. Your
memorialist ought also to observe that as the settlers at Red River have obtained the opinion of several of
the most eminent counsel in England, declaring that the Red River cannot be considered as in Canada, it
is not unlikely that warrants issued (under the new Act) for the apprehension of any of the settlers atthat
place will be forcibly and, as your memorialist conceives, lawfully resisted.

That your memorialist f^r^her submits that as the Provincial enactment above mentioned is of an
unusual and extraordinary nature, your memorialist couoeives that the Ldeutanant-Governor ought not to
have expressed the Royal Assent to the Bill, without seeing that it contained a clause to suspend its opera-
tion till the pleasure of His Royal Highness the Prince Regent should be known. * * •

Your memorialist therefore prays that your Lordship will take the said Provincial Act into considera-
tion as early as possible, and will advise His Royal Highness the Prince Regent in Council to disallow the
same, and your memorialist further prays that when the said Act is to be taken under your Lordships^
consideration he may be heard by counsel on the subject.

SSLKIRK.

99

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

xjase — the only case — in which a decision of that kind was made. There is a great
mass of evidence which we have now, and was not before the court then, to shew
what the true construction of the statute is ; for instance, a vast number of com-
missions, and the judges had not the advantage of those commissions; and the
great argument — the conclusive argument — that the Act of 1774 recites, that its
object was to give a government to those colonies and settlements, namely, the
government of the British Crown, was not brought before the court at all ; nor
was a great variety of other matter. If reliance was placed on that decision, T
could shew how very little material for judgment upon this point the court had;
the judgment was never acted upon ; it was not acted upon in that case, and it
has not been acted upon by any court since.

The Lord President. — Was it not acted upon in McLellan's case ?

Mr. Mowat. — No, he was acquitted ; and on the occasion I am mentioning the
Quebec court charged the jury, and the jury came to a conclusion on whatever evi-
dence was brought before them. No doubt there is that judgment, but your Lord-
fihips will not take the judgment as being correct unless it was right, and I 'argue
that it was wrong.

The Lord Chancellor. — I do not think you can make very much out of a
statement of that kind.*

Mr. MowAT. — I put it in as one piece of evidence. I am asked by your
Lordships what is the position taken in Upper Canada with regard to this territorj,
and that is one of the pieces of evidence that I put forward, and it is only one of
many.

Sir Barnes Peacock:. — The prayer of the memorial is, that their Lordships :

" Will take the Provincial Act into consideration as early as possible, and will advise
the Prince Regent in council to disallow the same."

The Lord Chancellor. — What was done — was it disallowed ?

Mr. Mo WAT. — No, it was allowed.

Sir Barnes Peacock. — What was the Act ?

Mr. Mowat. — It is at page 409.t

The Lord Chancellor. — However, that seems to add very little light, be-
cause that seems to provide for a jurisdiction in parts of the province " which are
not within the limits of any township or county therein," but what the bounds
of the province are it does not say.

Mr. MowAT. — No, my Tx)rd.

Sir Montague Smith. — What does it say — that under these Acts they might
go into these Districts ?

Mr. Mow AT. — That they claimed the right to go, and would go.

Sir Barnes Peacock. — Had they ever done so, before the Hudson's Bay
Company settled theie ?

Mr. MoWAT. — Yes. I will tell your Lordship what CAddence of this there is.
The Hudson's Bay Company also send in a petition, dated 3rd August, 1819, for the
disallowance of the Act. At page 413, the company, your Lordship observes,
informed the Lords of the Committee of the Privy Council for Trade and
Foreign Plantations, that

" By the interpretation which has been put upon it by the Ohief Justice and the Law
Officers in that Province, it has liad the effect of operating as an ex post facto law with
respect to several of your memorialists' officers and servants, contrary to the established
principles of justice, and to the law of England. For, in consequence of such interpreta-
tion,, criminal prosecutions were immediately commenced, and a bill of indictment pre-
ferred, against certain of their officers and servants, for a conspiracy to destroy the trad**

* Namely, the petition of Lord Selkirk. f Sec. 1, printed ante, p. 97, note.

100

ASSERTION OF TITLE OF UPPER CA^IADA TO THE NORTH-WEST.

of the North- West Oompany, in having committed certain acts alleged to have taken place
at Fort William (a trading post of that company) two years prior to the passing of the
add colonial law. Your memorialists further submit that Fort William, where the said
acts were alleged to have been committed, is not in Upper Canada/'

— that is carrying out the idea that it was a due north boundary —
•* being situated to the west of the boundary line of that province (as established by Act
of Parliament, 14 Geo. H., c. 83), and therefore not within the jurisdiction or subject to
the legislature of that province.**

That was their construction.

Sir Barnes Peacock. — Fort William is within this part [pointing on the map] ?

Mr. MoWAT. — ^Yes. It is a little west of the due north line, near the shore.

Sir Barnes Peacock. — This is what is included in Ontario by the award
[pointing] ?

Mr. MowAT. — Yes, my Lord.

Sir Robert Collier. — The object of this Act was to enable the Governor, by
proclamation, to declare that any part of the territories was within the Province
of Upper Canada for the purpose of criminal jurisdiction.

The Lord Chancellor. — No, it assumed that there were certain tracts, not
parts of any described county or township, but which were within the limits of
the province. It did not define any tracts. Assuming that it was within the
province, the Act extended there.

Sir Robert Collier. — " Any of the said tracts of country," it says, " or
parts of this province." I should read " tracts of country " as meaning tracts of
country not being parts of the province, not being within the limits of any pre-
scribed township or county for the purpose of trying prisoners. It is merely for
the purpose of trying prisoners.

The Lord Chancellor. — No, it is not so. The preamble commences :

" Whereas by an Act passed in the thirty-eighth year of His Majesty's reign, en-
titled *An A.ct for the better division of this Province,' large tracts of country are com-
prehended in the several Districts of this Province which are not within the limits of any
township or county therein."

Sir Robert Collier. —

** Which are not within the limits of any township or county.*'

The Lord Chancellor. — Of course, with regard to that Act, we must see
whether there was any such Act, and what was the effect of it.

Mr. MowAT. — The counties were re-constituted by it and grouped into dis-
tricts, certain of the districts comprehending also tracts of unorganized territory
outside the limits of townships and counties. Section 40 reads ;

"And be it further enacted, by the authority aforesaid, that the counties of Essex
and Kent, together with so much of this province as is not included within any other
District thereof, do constitute and form the Western District"
The Act of 59 Geo. 3 is printed immediately preceding, at pafire 409.

Sir Montague Smith. — What you cite this for is to shew that under this Act
they did exercise jurisdiction within these districts, and that they were treated
as being within the Act ?

Mr. Mo WAT. — Yes, my Lord.

Lord Aberdare. — Where are you ?

Mr. Mow AT. — ^The petition I have just read is at page 413, and before parting
with it I want also to read something from Chief Justice Powell's report on this
subject, which is printed at page 416.*

* Report of Chief Justice Powell, of Upper Canada, dated 27 October, 1819. in reference to the-
matters complained of in the petition^ of the Earl of Selkirk and the Hudson's Bay Company; transmitted
to Earl Batnurst by Lientenant-Goyemor Maitland.

101

ARGUMENT OP. ATTORNKY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Sir Barnes Peacock. — Do you shew that under that Act there was ever any
ijrial by the Ontario judicial officers, in that part which is now included in the
jiward, before the Hudson's Bay Company's settlement ?

Mr. Mow AT. — Yes, there is some evidence of that, as I think I shall be able
i^o shew your Lordship ; I do not know whether under that Act or not, but, at all
events, whether it was under this Act or not, there were trials.

Sir Barnes Peacock. — You say there were trials ?

Mr. MowAT. — Yes, my Lord.

Sir Barnes Peacock. — In the part included in the award, before the Hud-
son's Bay Company's settlement ?

Mr. MowAT. — Yes. I shall be able to shew your Lordship that. Will
your Lordships allow me to read what Chief Justice Powell says, in the para-
graph commencing "The outrages," at page 416. This is the statement that he
makes :

'* The outrages at Fort William were presented ia the Western District of Upper

•Canada, that Post " — that means Fort William — " having been ever considered part of

that District by the proprietors of the post, the governments, and the courts, jet the

Sapreme Court of Lower Canada had *adjadged that it was without the Province of

Upper Canada."

He complains there of the adjudication in Lower Canada being contrary to
what it had always been considered — that it was always considered to be in
Upper Canada.

The Lord Chancellor. — The Supreme Court of Lower Canada had adjudged
that it was without the Province of Upper Canada ?

Mr. MowAT. — Yes, my Lord.

Sir Robert Collier. — What became of all this ? Chief Justice Powell com-
plains that " the Supreme Court of Lower Canada had adjudged that it was with-
out the Province of Upper Canada." What finally became of that ? Was it
finally treated as being within or without the province ?

Mr. Mow AT. — In that particular case in which the judgment was pronounced,
And in which the prisoner was found guilty, it was disposed of in this way: The
^Government sent to the Imperial Government the papers, the notes of the trial,
.ftnd the points, in order that an opinion of the Law Officers might be obtained
as to whether the locality was or was not in Upper Canada — whether the judg-
ment of the court on that point was correct. The matter seems to have rested
there for about two years. There was a correspondence about wanting the
opinion, but if any opinion was given there is no record of it ; at all events, we
cannot find it. But we do find that the prisoner, who had been condemned upon
the supposition that the act had been committed without the boundeuries of Upper
Canada, received a free pardon.

Lord Aberdare. — Are you speaking of De Reinhard's case ?

Mr. Mow AT. — Yes, my Lord. The question was whether the spot was situ-
ated in Upper Canada, or in the Indian territories, which would bring it within
the jurisdiction of the courts of Lower Canada. My friend has not cited a case,
or suggested that there was ever a case, in which that view which the Lower
Canadian court held in the De Reinhard case was ever acted upon by anybody.
As I have already said, it was acted upon by no government afterwards, it was
acted upon by no court afterwards, either in Upper or Lower Canada, and what-
-ever law there was required to be acted upon or put in force in this territory
was the law of Upper Canada.

The Province of Manitoba has printed an Appendix in which is set forth a
report of Mr. Ramsay, Q.C., afterwards Judge Ramsay, discussing this question
^l boundaries, and the report so printed has a memorandum added to it ; and it

102

QUESTION OF THE TITLE OF UPPER CANADA — JUDGE RAMSAY 8 CONCESSION.

may shorten the matter a little if I read it, because it really shews what waa
done, and what was well known to have been done, in this territory, west of
the due north line in Upper Canada. This is at page 71.*

Mr. McCarthy. — If my friend will allow me, it might shorten the time if I
admit, as I ought to admit, as a matter of fact, that up to^the height of land — that
is between Lake Superior and the height of land — Upper Canada did exercise
jurisdiction. I leave my friend to point out that which is beyond the height of
land.

Lord Aberdare. — How far ?

Mr. McCarthy. — It is about 40 or 50 miles. Your Lordship will see that
marked on the map.

Lord Aberdare. — That land would not go so far as the Lake of the Woods?

Mr. McCarthy. — No.

Sir Robert Collier. — What do you call the particular height of land ?

Mr. McCarthy. — Your Lordship will see it is marked on this printed map.
IMr, McCarthy pointed out on the map the position of the particular territory.]

Mr. Mow AT. — ^The due north lines are here.

Mr. McCarthy. — Yes, I admit that they exercised jurisdiction between the
due north line which we now claim as the proper line, and the height of land.

Mr. Mow AT. — And that we always did so, so far as the information goes ?

Mr. McCarthy. — I cannot say at all.

The Lord Chancellor. — There is an Act in 1803,

*^ For extending the jurisdiction of Courts of Justice in the Provinces of Lower and
Upper Canada to the trial and punishment of persons guilty of crimes and offences within
-certain parts of North America adjoining to the said Provinces."

Mr. Mow AT. — That is under commission.

The Lord Chancellor. — Therefore, giving an extra-territorial jurisdiction.

Mr. MowAT. — Yes, but not necessarily. The governor might at his discretion
authorize it.

Sir Robert Collier. — You do not say the right to the land was exercised
under that Act.

Mr. Mow AT. — No. The documents here shew, with reference to that Act
of 1803, that it was pas«ied in consequence of murders committed in Athabasca.
I am not quite sure how far my friend's admission extends. If he admits that

• Report of T. K. Ramsay, Esq., Q.O., on the Northern and Western limits of Ontario, dated March,
1873, and made at the instance of the Government of the Dominion. The Memorandum appended to it is
as follows : —

Mbmo.— In the report submitted, the strictly legal view has alone been considered, because it alone
seemed to be within the scope of my instructions ; but from the course of my investigations I could not fail
to see that beyond this there is another consideration not less important, and that is the equitable side of
the question. In creating the Province of Ontario it is not possible to conceive that the Imperial Legisla-
ture intended to convey to that province and to the Province of Quebec less territory than the late Province
of Canada actually enjoyed. Now, it is incontestable that up to 1867 the Government of Oanada, de factor
extended to the height of land which forms the watershed of the water system of the St. Lawrence and the
ffreat lakes. This is made apparent by the refiristers of the Executive Council, by which we find that a
Commissioner was appointed to obtain the surrender of the claims of the Indians to the lands in the
vicinity of Lakes Superior and Huron, or of such of them as may be required for mining purposes. The
Commissioner executed a treaty by which he obtained a portion of the very territory that would be cut off
from the Province of Ontario if the dispositions of the Act of 1774 were literally observed. " From
Batchewanaung Bay to Pigeon River, at the western extremity of the said lake [Superior], and Mnland to
that extent to the height of land which separates the territory covered by the Charter of the Honourable the
Hudson's Bay Company from the said tract, and also the islands in the said lake within the boundaries of
the British possessions therein."

There are doubtless other acts of authority beyond the meridian indicated in the foregoing report. In
the De Reinhard trial, Mr. Coltman, a magistrate for the District of Quebec, and a Commissioner in the
Indian territory, in his evidence, said : *' 11 est notoire que les writs des Magistrats du District Ouest du
Haut Canada sont ^man^ pour 6tre ex^cut^s k Fort William." It would, therefore, seem that in fairness
to the Province of Ontario the old line of the height of land should be adopted as the western as well as
the northern boundary of the Province of Ontario.

Montreal, March, 187S. T. K. R.

103

AUGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

that part west of the due north line up to the height of land is territory in whicb
Upper Canada always exercised jurisdiction, I have nothing more to say. That^
is all that, on this point, is needful for me to make out.

Lord Aberdare. — Oh, no ; it is a very small part indeed which was admitted
by him.

Mr. MoWAT. — But so far as regards that which is west of the due north line^
and up to the height of land, I must ask my friend to give me some admission.

Lord Aberdare. — You made some case as to Foit William and so forth, and
he says " Yes, as to Fort William that is all very well ;" but beyond Fort William
he does not admit anything.

Sir Montague Smith. — He admits that which is beyond the due north line.

Mr. MowAT. — Yes. that we exercised the jurisdiction. There is no doubt at
all that we exercised jurisdiction beyond the due north line.

Mr. McCarthy. — Oh, yes. I think they did continually. I think, so far as
Upper Canada is concerned, different townships have been laid out there under
the municipal jurisdiction of Upper Canada. It is between the due north line
and the height of land ; and Fort William, as your Lordship sees, is in that
territory.

Sir Robert Collier. — Yes.

Mr. Mo WAT. — The jurisdiction so exercised is not only the jurisdiction of the
courts, but also a jurisdiction as to granting land. Grants of land were from
time to time made west of the due north line (there is evidence of that) by the
Province of Canada before confederation, when tho only right of doing so was-
that this territory formed part of Upper Canada ; and very extensive mining
grants were also made.

Sir Robert Collier. — Mining grants ?

Mr. MowAT. — Yes, my Lord.

Sir Robert Collier. — You are able to prove all that I suppose ?

Mr. MowAT. — Yes, my Lord, I can shew it at once.

Lord Aberdare. — If it is admitted up to the watershed, there is no use
shewing it. I think the learned counsel on the other side admitted that town-
ships were also formed there.

Mr. McCarthy. — Yes.

Lord Aberdare. — And that would be exercising territorial jurisdiction also ?

Mr. McCarthy. — Yes.

Lord Aberdare. — But then the argument, as I understand, was this. I
gather, if you once shew that the territory beyond that particular territory was
a part of tipper Canada, that that would apply to the whole of the district
included in the award ; but this admission was limited to a portion of the district.

Mr. McCarthy. — That is so. I think my friend will not be able to shew
any exercise of jurisdiction beyond the height of land. That was the limit.

Sir Montague Smith. — Then you say, beyond that, that there have beei>
grants of land ?

Mr. McCarthy. — Yes, in that same territory.

Sir Montague Smith. — In that same territory ; but do you carry grants
beyond the territory with respect to which the admission has been made ?
Perhaps that also will be admitted.

Mr. McCarthy. — Yes. That they exercised jurisdiction here as regards-
timber, and so on.

The LoKD Chancellor. — Up to the height of land ?

Mr. McCarthy. — Yes.

Lord Aberdare. — On the western side ?

Mr. McCarthy. — No, I do not admit that.

104

WESTWARD EXTENSION OF UP. CAN. — LEGISLATIVE CONCESSION BY THE DOMINION.

Mr. MoWAT. — My friend does not admit it, so I shall have to prove it by
and bye.

Sir RoBKRT COLLIEK. — You say jurisdiction was exercised up to the height of
land. Is the hei^^ht of land spoken of, the boundary of the jurisdiction and
so on ?

Mr. McCarthy. — Yes, I think it is so spoken of in several places ; for instance
in the treaty, which my friend will admit.

Sir Robert Collier. — Is there any Act of Parliament in which what is
called the " the height of land " is mentioned ?

Mr. McCarthy. — Yes. There was a treaty with the Indians in 1850, and
that treaty took in all the land.

Sir Montague Smith. — You are asked whether in any of the documents
relating to the criminal jurisdiction, or in any Act of Parli&ment,it is mentioned ?

Mr. McCarthy. — No, not in any document relating to-criminal jurisdiction.
I am speaking of an official document, and this was an official document.

Sir Montague Smith. — That is another matter.

Mr. Mo WAT. — Jurisdiction is only exercised in any part of Upper Canada
according as population gets into it. There is a large part of the undisputed
territory of Upper Canada which has not yet been surveyed, and which is quite
unoccupied. There being no population there, there is no occasion for the exercise
of jurisdiction.

Sir Robert Collier. — You get from this due north line ; you have got the
jurisdiction beyond it, and you have got grants of land beyond it. You do not
admit that the height of land is the boundary ?

Mr. MowAT. — Oh, no.

Sir Robert Collier. — Then how far back do you go?

Mr. Mow AT. — The commissions — that of 1786 to Sir Guy Carleton
especially* — carries the boundary to a point which is beyond the height of land.

Sir Montague Smith. — And the Quebec Act 1

Mr. Mow AT. — Yes. I rely on the Quebec Act, and the purpose of the
Quebec Act; and I rely on the Order in Council of 1791, which declared that all
Canada was to be included in Quebec, as enlarged for the purposes of the division ;
and then all the correspondence which is printed here shews that to have been
always our contention.

Sir Robert Collier. — We have heard all that.

Mr. Mow AT. — Then there is an admission of the Dominion itself which I think
is of some value. At page 122 of the supplemental Appendix of Ontario, there
is printed the material part of a Dominion statute to readjust the representa-
tion in the House of Commons, and for other purposes. f That appendix is in
two parts.

Mr. McCarthy. — We have not seen that.

Mr. MowAT. — I suppose that does not matter. The Court will I suppose look
at any papers that are material. That is so agreed, even if the papers should not
be printed. This is a statute under which the settlements in the awarded terri-
tory are made part of the Ontario District of Algoma for the purpose of repre-
sentation.

The Lord Chancellor. — This is an Act of 1882.

Mr. MowAT. — Yes.

The Lord Chancellor. — How does that bear on the (juestion ^

♦ Printed ante, p. 44, note.

t45 Vict., cap. 3, (1882), ** An Act to readjust the representation in the Hou^e of Commons, and lor
other purposes."

105

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Mr. Mow AT. — It is an admission by the Dominion — an admission in effect
that the territory in question is part of Ontario, because it is given as a part of
Ontario.

The Lord Chancellor. — Where does that appear ? Is it in the Act ?

Mr. Mow AT. — Yes, it is in the Act. The recital refers to the census which
has just been taken, and declares that the Province of Ontario requires to elect
additional members in consequence of it ; and so on. There is nothing more in
the recital which is material for either of us. Then the first clause declfiures of
how many members the House of Commons should consist, and the second clause
recites :

" The said Provinces respectively shall, for the purposes of the election of members
to serve in the House of Commons, be divided into the electoral distrlcte established by
the British North America Act, 1867, and the Act above cited, readjusting the repre-
sentation, and the addi^ses of the ti;90 Houses of the Legislature of Prince Edward Island
to Her Majesty, on the idmission of that Province into the Dominion of Canada, and
those constituted by this Act — each of the now existing electoral districts remaining
constituted and represented as it now is, except in so far as it may be altered by the
following provisions of this Act."

Then there are some provisions which are not material, but the material one is
this ;

" Ontario.

# # » • ♦

*' The settlements westward of the Provisional District of Thunder Bay, and eastward
of the Electoral Districts of Manitoba, shall, pending the adjustment of the boundaries, be
and the same are hereby made part of the Electoral District of Algoma." * ♦ ♦ ♦

Sir Robert Collier. — It is merely an adjustment of the territories.

Mr. Mowat. — Yes ; but why should it be annexed to Ontario, if it is not part
of Ontario ?

The Lord Chancellor. — What was the date of the award we had before us ?

Mr. Mowat. — 1878. We ask, why, if the Dominion asserted that the award
was wrong, and that this territory was no part of Ontario, why should they s^tate
that it was ?

Sir Montague Smith. — Pending the dispute, they rather adopt the award in
the interval for this purpose.

Sir Barnes Peacock. — It says, " part of the electoral district of Algoma."
What is that ?

Mr. Mowat. — That is an Ontario electoral district.

Lord Aberdare. — It is not down in the map. What is the name by which
this district principally went — Keewatin ?

Mr. Mowat. — Yes. Nothing turns upon it I suppose, but there is a tract
called Keewatin in the North- West Territories. A strip between Manitoba and
Ontario was at first included in Keewatin ; a very narrow strip, assuming the
award to be correct and the original boundaries of Manitoba to remain what they
were.

Further, as bearing upon the point of the English River not being territory
of the Hudson's Bay Company, and being within the bounds of Upper Canada, I
may refer for a moment to the maps. My learned friends rely upon the maps.
Whatever information existed at the time in England about this territory was really
obtainable only from the Hudson's Bay Company, and the maps give such informa-
tion as is understood to have been conveyed to the mapmakers by whom inquiries
were made, by the Hudson's Bay Company, who alone had information on
the subject. When the matter was before the arbitrators, the Dominion applied
to the Hudson's Bay Company for any maps which would throw light upon the

106

LIMIT OF THE HUDSON S BAY CO S TERRITORY — ^WHAT THE ANCIENT MAPS SHEW.

<}uestion of boundaries, and the company furnished four maps. Only two of
those I believe were of any importance or helped to throw any light in any
way on the question in dispute, and unfortunately one of thase two seems
to be missing ; but here is the other, which is called Mitchell's map * and is the
map stated in the evidence to have been before the commissioners when the
Treaty of 1783 was made. This map is very much worn and appears to have
been very much used. It comes as I have said from the custody of the Hudson's
Bay Company, and in this map the boundary line is laid down north of the
Lake of the Woods.

Sir Robert Collier. — Which line ?

Mr. Mowat. — The line which is spoken of on the map as being the bounds of
the Hudson's Bay Company.

Sir Robert Collier. — That is the northern boundary of Canada ?

Mr. MowAT. — Yes.

Sir Robert Collier. — How about the western boundary ?

Mr. Mow AT. — The line in question extends westward to a point north of the
Lake of the Woods, and forms, in that extent, as well the northern limit of
''Canada or New France," as the southern limit of the company's territory.
Moreover, although the line stops in the meridian of the Lake of the Woods, the
westward extension of Canada or New Fronce to the limit of the map, in longi-
tude 103°, is indicated ; but I only refer to it for the other purpose. There are
a number of maps which in the same way give as the boundary a line north of
the Lake of the Woods.

Sir Robert Collier. — But not as far west as the Lake of the Woods t

Mr. MoWAT. — Yes, my Lord, and as far west as the Lake of the Woods.

Sir Robert Collier — Then that is in your favour.

Mr. Mow AT. — Yes, in that respect it is in my favour.

Sir Robert Collier. — Then let us see it. [The map, MitcheWs, was $hewn
and explavned to their Lordships]. If they give a line as far west as the
Lake of the Woods it is in your favour.

Mr. Mowat. — There is the line, and there is the Lake of the Woods [point-
ing them out].

Sir Robert Collier — According to that Canada would go on here [povntivig
to the region of the Lake of the Woods]. Where do they say their own territory,
the Hudson's Bay, lies ?

* '* A nuip of the British and French Dominions in North America . . inscribed to . . the Earl of
Halifax, and the other . . the Lords Commissioners for Trade and Plantations . . by John Mitchell . . .
pablished by the author, Feb. 18th, 1755 . . and sold by Andrew Millar . . Thomas Kitchin, sculp."

It appears from a printed memo, of the author, on the face of the map, that this is the second edition,
and contains matter not in the first edition. In the margin is also printed the following :

"This map was undertaken with the approbation, and at the request of the Lords Commissioners for
Trade and Plantations, and is chiefly composed from draughts, charts and actual surveys of different parts
of His Majesty's Colonies and Plantations in America ; great part of which have been lately taken by their
Xordships* orders, and transmitted to this office by the Governors of the said Colonies and others.

"PlanUtion Office, Feb. ISth, 1765." "John Pownall,

"Secretary/*

In the Convention of the 29th September, 1827, between Great Britain and the United States, this map
is referred to as that "by which the framers of the Treaty of 1783 are acknowledged to have regulated
their joint and official proceedings.*' Their intention was to draw the international boundary line to the
head waters of the St. Lawrence system ; but they committed the blunder of running it through Long and
Rainy Lakes and the Lake of the Woods (which ail appear upon this map as discharging into Lake
Superior), instead of drawing the line through the head stream of liake Superior, which is in reality the
River St. Louis (or du Fond du Lac). Had this been done it would have given to Canada a very
large additional territory. The American commissioners can scarcely have been ignorant of the real
facts, if, as is said to have been the case, they had beside them, and had the benefit of the knowledge
of Mi. Peter Pond, a famous North- West trader, who was familiar with every step of the route
followed by the line in question, and cannot but have known the true position of the western watershed of
Lake Superior. Besides, this information was available, to any one who might seek it, in numerous French
And English maps and books.

107

AKGUMENT OF ATTORNEY-GKNERAL OF ONTARIO re QUJiSTK^N OF BOUNDARY :

Mr. MowAT. — That is the line which marks it on the map. It is differently
coloured. Then there is another height of land which runs away far north, being
that which divides the waters that pass into Hudson's Bay through Lake Winnipeg^
from those that fall direct into the bay, and if you take that as the height of
land it would give us the English River.

Sir Robert Collier. — This is the boundary of Canada, and there is the Lake
of the Woods.

The Lord Chancellor. — It seems exactly so far to correspond with the
boundary which has been laid down, unless the introduction of the smaller map
there [pointing to that engraved on the comer of the larger"] destroys its value.

Sir Robert Collier. — At all events they treat Canada as going as far west
as the Lake of the Woods — perhaps farther. Then they claim to come down near
to the Lake of the Woods. That is not very far from the line drawn by the
arbitrators, is it ?

The Lord Chancellor. — This surely shews it somewhat farther south than
the award does?

Sir Robert Collier. — Somewhat farther.

Mr. Mowat. — The English River is not marked upon the map.

Lord Aberdare. — The waters of the English River found their way Into
Hudson s Bay.

Mr. Mow AT. — Ultimately, after travelling a thousand miles.

Sir Robert Collier. — This {jpointing] would seem to represent the Lake St.
Joseph, and the other lake called the Lonely Lake, pretty much as it is here
[pointing on the Ontaino boundary map].

Mr. McCarthy. — But the Lake of the Woods is too far north on that map.

Sir Robert Collier. — As far as I can understand, that would represent the
Lake of St. Joseph. I suppose this would represent the English River.

The Lord Chancellor. — Which do you say is the Lake of the Woods ? [The
lake was pointed out]. Then it is very inaccurately laid down. But there
is no doubt this would correspond exactly with the awarded boundary.

Sir Robert Collihr. — Thereabouts, I think.

The Lord Chancellor. — The Lake of the Woods seems to be shewn too far
north.

Mr. Mowat. — Yes, and that would afford room for the English River and
some territory to the north of it in Canada.

Sir Robert Collier. — The Hudson's Bay Company treat all this pink as
theirs. Then they treat the brown as Canada's.

The Lord Chancellor. — That chain of lakes exactly corresponds with the
northern boundary of the award. There can be no doubt of the extreme inaccuracy
of the proportions and distances.

Lord Aberdare. — Was that map before the arbitrators ?

Mr. Mowat. — ^Yes, my Lord.

The Lord Chancellor. — Produced by which party ?

Mr. Mowat. — The maps procured from the Hudson's Bay Company were
put in by the Dominion. The idea was, as it is here now, to put in everything.

The Lord Chancellor. — The Dominion will not deny, I suppose then, that
some weight is to be given to it.

Mr. Mowat. — Then there are other maps to the same effect. I have two of
the original maps here. One is " A new map of North America from the latest dis-
coveries." The date is 1763.* That is the very year of the cession, and this
map gives the " Bounds of Hudson's Bay by the Treaty of Utrecht." I shall shew
that that is a mistake ; but it shews what was supposed to be the boundary.

* Map No. 130, in Notes on Maps, Ont. App., p. 121.
108

LIMIT OF THE HUDSON S BAY CO S TERRITORY — WHAT THE ANCIENT MAPS SHEW.

The Lord Chanceller. — There is the Lake of the Woods, but the other
lakes are not laid down at all.

Mr. MowAT. — It shews the boundary line to be north of the Lake of the Woods.
That is all I can argue for from this map.

Sir Robert Collier. — The company put themselves as above the Lake of
the Woods.

The Lord Chanceller. — Is this a Hudson's Bay map ?

Mr. McCarthy. — It was not a Hudson's Bay map.

Mr. Mowat. — No, but it is of value as agreeing with Mitchell's in respect of
this line, and because of its antiquity. Then I have pinned to it another old
map* of about same period, and also shewing the line to be north of the Lake of the
Woods.

Sir Robert Collier. — That is the same thing-
Mr. Mowat. — It is a different map, by a different author, but it really shews
the same thing. There are a great number of maps which shew the line in that
way. I have referred particularly to Mitchell's, because it is the only map of any
value which the Hudson's Bay Company forwarded when they were asked for maps
for the purpose of illustrating the question.

As to the map furnished by the Hudson's Bay Company which has been
mislaid, there is a statement here as to the effect of it. This statement was
not disputed at the time, and no doubt will not be disputed here. It was a map
dated I748.f The statement, your Lordship will find at page 66 of the Joint
Appendix :

" It bears the Royal Arms and the Arms of the Oompany, and seems to have been
prepared by the Company in view of the Parliamentary inquiry of that period, and for
the purpose of shewing the limits which the Oompany then claim ed.'^

Sir Robert Collier. — You are now reading from the proceedings before the

arbitrators ?

Mr. Mowat. — Yes, the map being mislaid for the moment :

** The line which this map gives as the Company's southern boundary is considerably

north of the height of land even as shewn on this map, for the line is therein made to cut

Frenchman's River "

Sir Robert Collier. — Who says this ?

Mr. Mowat. — It is my statement for the arbitrators, and printed now for
the present reference :

" — and several other rivers shewn on the map as flowing into Hudson's Bay. The
Company does not by the map claim to tlie height of land, even so far as these compara-
tively small rivers are concerned. Their southerly line on the map runs to the eastern
shore of a lake called Nimigon ; thence to, and northerly along, the eastern shore of
Winnipeg ; and thence northerly to Sir Thomas Smith's Sound, in Baffin's Bay."

This is a manuscript map, coming from the custody of the Hudson's Bay
Company, and not claiming any part of the territory which the arbitrators have
given to us. We- have the one map (Mitchell's) upon which I have been commenting,
and here is the other one perhaps still more valuable, because it is in manuscript,
and must be presumed to have been prepared for the company itself. I have
mentioned here that it has the company's arms upon it, and the date indicates
that it is the map which was probably prepared for use by the Parliamentaiy
Committee in 1748.

* Map No. 129, in Notes on Maps, Ont. App., p. 121.

t*' A map of North America, with Hudson's Bay and Straights, anno 1748.— R. W, Seale, iculp." It
is numbered 80 in the Notes on Maps, Ont. App., p. 109.

109

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY:

The Lord Chancellor. — It is unfortunate that it is not produced. Can
we draw safe conclusions from a reported argument ?

Mr. MowAT. — There is some difficulty there ; but in addition to the statement
in my argument, we have in evidence the description of what this map contains.
It is in the " Notes on Maps," map No. 80, at page 136o (169 of re-print) of the
Book of Arbitration Documents, and at page 109 of the Ontario Appendix, both
before your Lordships ; and I cannot do anything better. Both sides made search
for these maps, and Mitchell's map was found, but this map ha^ not yet been
discovered. It was left, after the arbitration, in the charge of the Dominion
Government for re-transmission to the Company. Then there are a number of
other maps which shew boundaries that would not include the territory in
question.

Sir Montague Smith. — Boundaries of what ?

Mr. Mow AT. — Boundaries of the Hudson's Bay Company. Some of thete
are in Albany, and I have not been able to produce them.

Sir Robert Collier. — Where do they come from ?

Mr. MowAT. — I will tell your Lordship what they are. We made a list of
the Maps and Notes which we had before the arbitrators, and which your Lordship
will find in the separate Appendix of Ontario.* Page 116 is what I am going to
refer to ; map No. 110."|-

The Lord Chancellor. — There seems to have been an immense number of
maps.

Mr. MowAT. — Yes, my Lord, an immense number. The turn the thing has
taken has been a little different from what we expected or perhaps some of these
maps might have been procured. All I can do now is to refer to the Notes in
regard to them. This is a confirmation of the inference one would draw from
Mitchell's map, namely, that the territory in the award was not claimed by the
Hudson's Bay Company at that time. The note is that the map

"Shews a line exactly the same as that of Mitchell's map of 1755, already mentioned ;
it is engraved and coloured, but has no inscription. The map extends further to the
westward and to the eastward than Mitchell's, but the line stops, incomplete, at either
end, at the same points as on his.''

The Lord Chancellor. — Mitchell's is the one we saw.

Mr. MowAT. — Yes, my Lord.

The Lord Chancellor. — Which seems to make the chain of lakes the
boundary to the north.

Mr. MowAT. — Yes, my Lord. Map 120 is also a map which is at Albany. It,
also, follows Mitchell's, and therefore perhaps it is not worth while to refer
to it particularly. Then 132, on page 121, is another.^

Lord Aberdare. — Were all these maps before the arbitrators ?

Mr. MowAT. — These Notes were before the arbitrators, and some of the maps.

Sir Robert Collier. — Here you state " The western limit of the map is a
little west of the Lake of the Woods."

Mr. MowAT:

" A line, engraved and coloured, and marked * Bounds of Hudson's Bay by the Treaty
of Utrecht,' commences at the point in the western limit where the line on Mitchell's
map of 1755 (hereinbefore mentioned), produced westerly, would end — " so that it con-

*The Notes on Maps, as printed for the arbitrator!, are reprinted in Seas. Papers, Ont., 1879, No. 51, p.
185.

t "Oarte des Possessions Angloises et Francoises du Continent de rAm^riqne Septentrionale, 1766. Ss
Tend )k Londres ches. . . Millar, Rocque et autres. ..."

:(" A new map of North America. . . . 1763. J. Spilsburg, sculpt.*'

110

THE TREATIES OF RYSWICK, 1697, AND OF UTRECHT, 1713.

firms MitchelFs ; only it carries the line further west — " and runs thence easterly in about
the same position as that of Mitchell's, to the eastern limit of the raap beyond Mistassin.'*

Then 'the following, 133, published about 1763, confirms the same view:

" A new map of North America, shewing the advantages obtained therein to
England by the Peace.

" Has a line corresponding to that on Mitchell's map, of 1755 (hereinbefore men-
tioned), as far west as the terminal point of that line, and running thence south-
westerly to the western limit of the map, in about long. 103^ and lat. 49^ 12\ The
name Canada, on the face of the map, applies westward to the same limit. The
sources of the Mississippi are in about their true position. Lake of the Woods has no
^ers."

Then No. 144 :*

"Contains a line marked * Boundaries of Hudson's Bay by the Treaty of Utrecht.'
It follows substantially the height of land from a point west of Lake Mistassin to a point
north of Lake Nepigon* (crossing however a river), whence it runs westerly, passing the
Like of the Woods at a distance of about half a degree north of that lake."

Sir Montague Smith. — North of the lake ?
Mr. MowAT. — North of the Lake of the Woods;
Sir Robert Collier:

" Passing the Lake of the Woods at a distance of about half a degree north of that
lake."

Mr. MowAT. — So it would give to Canada the whole Lake of the Woods and
something more. It was not actually measured.

Lord Aberdare. — That would take it up about to Elnglish River.

Mr. Mow AT. — That is what I contend.

The Lord Chancellor. — Where is Lake Mistassin ?

Mr. MowAT. — It is a lake of considerable size south-east of James' Bay,,
my Lord. The northern part of Lake Mistassin is in a line with the
southern part of James' Bay, and some distance to the east. There are also other
maps to which I will call your Lordships' attention by and bye, and which give
as the line of the *' Bounds of Hudson's Bay," the height of land running up to
Split Lake, which would be north of the English River.

Lord Aberdare. — Split Lake is on the Nelson River.

Mr. Mow AT. — Yes. That line would be quite north of any part of the
awarded territory in this quarter. Split Lake is marked on the map on Nelson
River. Your Lordship will see the line there.

Lord Aberdare. — The line appearing on the English maps of the eighteenth
century.

Mr. MowAT. — Yes. It will not be disputed that that line is on some of these
maps. It is north of the English River, and an authority therefore that the
river would be in French territory. In some of these maps all the ten-itory west
of that line to Split Lake is marked as French Canada.

Then another point as to the limits of Canada is established by Xhe negotia-
tions in respect of the Treaty of Utrecht. The negotiations will be found at page
490. At page 500 the particular memorials on which I rely for this purpose will be
found. Your Lordship will tind at the foot of page 500 a memorial from
Monsieur De Torcy to Mr. Prior. He gives an account of what has been done
upon th3se negotiations. This was before the Treaty of Utrecht, by which the
Hudson's Bay and Straits were given up to the English, and commissaries were
to be appointed for the purpose of deciding how the territory was to be divided.

* "A map of the British Domioions in North America " (1774).
Ill

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

By the previous Treaty of Ryswick * the right of France was recognized to
what was practically all the forts of the bay, with one single exception. Then,
England having recognized the right of France to all those forts, whatever-terri-
tory should be considered as accompanying the forts of course went to France
likewise. Then, in consequence of the success of the British arms, the Treaty of
Utrecht was much more favourable to England, and England insisted upon getting
the whole bay and straits, and insisted also upon France surrendering all the
posts and forts that w^ere on the bay, and, as I have said, commissaries were to
be appointed for the purpose of determining exactly where the line should be.i*
The English Government gave to the Hudson's Bay Company authority to receive
possession from France of these posts and forts on the bay. They were delivered
accordi ngly, and there is a memorial from the Hudson^s Bay Company:!: dedar-

*Thk Treaty of Ryswick, 1697.

VII. The Most Christian King shall restore to the said King of Great Britain all countries, islands,
forts and colonies, wheresoever situated, which the English did possess before the declaration of this preient
war. And in like manner the King of Great Britain shall restore to the Most Christian King all countries,
islands, forts and colonies, wheresoever situated, which the French did possess before the declaration of
war ; and this restitution shall be made on both sides within the space of six months, or sooner if it can be
done. And to that end, immediately after the ratification of this treaty, each of the said Kings shall
deliver, or cause to be delivered to the. other, or to commissioners authorized in his name for that purpose,
all acts of concession, instruments and necessary orders, duly made and in proper form, so that they may
have their effect.

VIII. Commissioners shall be appointed on both sides to examine and determine the rights and pre-
tensions which either of the said Kings hath to the places situated in Hudson *s Bay ; but the possession of
those places which were taken by the French, during the peace which preceded this present war, and were
retaken by the English during this war, shall be left to the Frerfch by virtue of the torching article. The
capitulation made by the English on the 5th of September, 1695, shall be observed acoordmc" to its form and
tenor ; the merchandises therein mentioned shall be restored ; the gfovernor of the fort taken there shall
be set at liberty, if it be not already done ; the differences arisen concerning the execution of the
said capitulation and the value of the goods there lost, shall be adjudged and determined by the said
commissioners ; who, immediately after the ratification of the present treaty, shall be invested with suffi-
cient authority for the settling the limits and confines of the lands to be rcitored on either side, by virtue
of the foregoing article, and likewise for exchanging of lands, as may conduce to the mutual interest and
advantage of both Kings.

And to this end the commissioners so appointed shall, within the space of three months from the time of
the ratification of the present treaty, meet in the city of London, and within six months, to be reckoned
from their first meeting, shall determine all differences and disputes which may arise concerning this matter;
after which the articles the said commissioners shall agree to shall be ratified by both Kings, and shall have
the same fores and vigour as if they were inserted word for word in the present treaty.

+ The Treaty of Utrecht, 1713.
X. The said Most Christian King shall restore to the kingdom and Queen of Great Britain, to be
possessed in full right forever, the Bay and Straits of Hudson, together with all lands, seas, sea-coasts,
livers and places situate in the said Bay and Straits, and which belong thereunto,* no tracts of land or of sea
being excepted, which are at present possessed by the subjects of France. All which, as well as any build-
ings there made, in the condition they now are, and likewise all fortresses there erected either before or
since the French seized the same, shall, within six months from the ratification of the present treaty, or
sooner, if possible, be well and truly delivered to the British subjects having commission from the Queen of
Great Britain to demand and receive the same, entire and undemolished, together with all the cannon and
cannon-ball which are therein, as also with a quantity of powderj if it be there found, in proportion to tht^
cannon-ball, and with the other provision of war usually belonging to cannon. It is, however, provided,
that it may be entirely free for the Company of Quebec, and all other the subjects of the Moat Christian
King whatsoever, to go, by land or by sea, whithersoever they please, out of the lands of the said Bay,
together with all their goods, merchandizes, arms and effects of what nature or condition soever, except
such things as are above reserved in this article. But it is agreed on both sides, to determine within a
year, by commissaries to be forthwith named by each party, the limits which are to l>e fixed between the
said Bay of Hudson and the places appertaining to the French ; which limits both the British and French
subjects shall be wholly forbid to pass over, or thereby to go to each other by sea or by land. The same
commissaries shall also have orders to describe and settle, in like manner, the boundaries between the
other British and French colonies in those parts.

* There were two originals of this treaty, one in Latin, the other in French. This translation is that published by
authority of the English Ooveminent at the time. The expression here rendered " and which belong thereunto," is. in
the Latin copy, '^ s^pfctantibwi ad eadem" and in the French copy " e( lieux qui rn depcndrnt." Cbalmors' Treaties, vol.
1 ; Le Clerq, Recueil, torn. 1 ; Proceedings of the Commissaries, 1719-20, [Note, Joint App., p. 504.J

% Memorial of 1719, addressed to the Ixjrds Commissioners for Trade and Plantations (Joint App.,
p. 579). It deals with (1) '* the surrender of the Straits and Bay," which, it is added, "has been noiade
according to the tenor of the Treaty, at least in such manner that the company acquiesce therein : ''
(2) "the running of a line between the English and French territories," which, it is urged, should be
done "without delay, for that the French have, since the conclusion of peibce, viz., in 1715, made a
settlement at the head of Albany River . . . whereby they intercept the Indian trade from coming
to the company's factories, and will, in time, utterly ruin the trade, if not prevented;" (3)** making
reparations to the company for their losses and damages," as to which it is set forth "that the French
took from the company, in full peace, viz., between the years '82 and '88, seven shii>s with their cargoes,
and six forts and factories, in which they had carried away great stores of goods, laid up for trading with
the Indians . . ."

112

WHAT TERRITOBY PASSED UNDER THE TREATY OF UTRECHT, 1713.

ing — my learned friends, I presume, will not dispute — that the company were
satisfied with regard to the forts which were delivered. They were the forts
which the treaty provided for. But there was no agreement as to how much
territory should go.

It is clear that the territory intended was very near the bay; and it
is very important to observe this, because whatever territory did not go
to England under the Treaty of Utrecht, whatever territory remained to
France after the Treaty of Utrecht, would be part of that Canada which was
ceded to England in 1763. Whatever remained to France by the Treaty of
Utrecht in 1713, went to England under the Treaty of 1763, and will not be
claimed by the Hudson's Bay Company. At all events, it certainly cannot be
claimed successfully. But not alone that : I claim that whatever territory was
actually ceded by France to England under the terms of that treaty, and particu-
larly the forts and territories confirmed to France under the Treaty of Ryswick,
but ceded to England under that of Utrecht, went, not to the Hudson's Bay
Compimy, but to, and they remained with, the Crown of Great Britain also as a
portion of French Canada, and as such were, as to the westerly part, included,
in 1791, within the bounds of Upper Canada.

Now we know there was only a limited amount of territory claimed by
England previous to the Treaty of Utrecht, and for the purpose of the treaty
The papers shew this. I refer to the memorial from Monsieur De Torcy to Mr.
Prior, of 7th January, 1713, at page 500 of the Joint Appendix :

<' The plenipotentiaries of Great Britain insist that it shall be expressed that France
«hall restore not only what has been taken from the English, but also all that England
has ever possessed in that quarter. This new clause differs from the plan, and would be
a source of perpetual difficulties, but to avoid them the King has sent to his plenipo-
tentiaries the same map of North America as had been furnished by the plenipotentiaries
of Great Britain. His Majesty has caueed to be drawn upon this map a line which
describes the boundaries in such a manner as he has reason to think they easily may
agree upon this point on both sides. If, however, there should be any obstacle which the
plenipotentiaries cannot remove, the decision must be referred to commissaries to be
named for the adjustment of the boundaries of America."'^

The Lord Chancellor. — Have you that map ?

Mr. MowAT. — We have not the very map. The lines are drawn, however,
upon the map that we have. The map itself we have very diligently, on both
sides, endeavoured to get.

The Lord Chancellor. — This is of 1703.

Mr. MowAT. — This is De I'lsle's map of 1703, being man No. 33, described in
the Notes, page 101 of the Ontario Appendix, with the lines in question drawn
thereon in manuscript, the whole an exact reproduction of the map, with the

•Mr. Prior, in his despatch to Lord BolinRbroke, of 8th January, 1713, (Joint App. p. 501), saya : **Aj? to
ih» linaite of Hudson's Bay, and what the ministry here seem to apprehend, at least in virtue of the general
expression, tout ee que VAngletcrre a jamais pott^dA de oe cot6 la (which they assert to be wholly new, and
which I think is reaUy so, since our plenipotentiaries make no mention of it), may give us occasion to
encroach at any time upon their dommions in Canada, 1 have answered, that since, according to the carte
which came from our PfeniDotentiaries, 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 difference, and
that the parties who determined that difference must be guided by the same carte, I thought the article
would acunit no dispute. In case it be either determined immediately by the plenipotentiarieu or referred
to commissioners, I take leave to add to your Lordship that these limitations are no otherwise advantageous
or prejudicial to Great Britain than as we are better or worse with the native Indians, and chat the whole
is a matter rather of industry than dominion. If there be any real difference between restitution and
eessionf querUur ? "

As a part of the same official correspondence, may be given the following extract from the despatch
Addressed by the Duke of Shrewsbury to Lord Bolin^broke.. dated Paris, 22nd Feb., 1713 : " The plenipo-
tentiaries of Great Britain had hitherto made a distinction between places ceded . . . and the places
which they denominated restored. . . . The plenipotentiaries now make no distinction between places
ced^ Mid places restored, though the same expression remains in article 14." (See ante^ p. 55).

8 (B.) 113

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY:

manuscript lines inscribed thereon in 1719-20, deposited in the Department of
Marine aad the Colonies at Paris.* I shall be able to shew to your Lordships
published maps of that period, but subsequent to this date, on which there is
printed a dotted line which accords with that upon the map which we bring here^

Sir. Robert Collie k. — A.re you speaking of this map now ?

Mr. MowAT. — Yes, my Lord.

The Lord Chancellor. — 1 see upon the map in my hands a line, coloured^
which is marked as the line alleged by the English, and that seems to go between
Lake Nepigon and Lake Superior. It is impossible to make an exact comparison
between these. It certainly would pass through the territory now given by the
award to Ontario.

Mr. MowAT. — That is one of the English maps.

Lord Aberdare. — I see you have on the map with which you have furnished
us [tJte Ontario Boundary map of 1884] a dotted line shewing the '* Bounds of
Hudson's Bay by the Treaty of Utrecht." On what is that founded ?

Mr. Mo WAT. — I put that on as shewing that some of the maps have that
statement upon them. There is no doubt the Treaty of Utrecht was never followed
by any agreement. I observe my learned friends have put in a memorandum
declaring that it is disputed that the bounds were never settled under
that treaty ; and a sentence is copied from Dr. Phillimore's book on inter-
national law for the purpose of shewing it. But I can shew beyond any sort
of doubt the bounds were never settled under that treaty. The assertion to the
contrary is a mistake which got into a number of the maps and books.

Sir Barnes Peacock. — I think that the old map you produce [Mitcheirs]
has not any date upon it.

Mr. McCarthy. — Yes, my Lord. It is dated the 13th of February, 1755.

Mr. Mow AT. — In several of these maps which have been looked at, and in a
number of other maps, the statement is made that the boundaries were settled
under the Treaty of Utrecht. It is rather curious in connection with those state-
ments that the lines laid down as the boundaries settled by the Treaty of Utrecht
do not agree at all. On some of the maps it is the line of 49"^ ; in others it seems to
follow the height of land ; and in another set of maps, the line so described runs
away north to Split Lake. That fact alone indicates that there must be some
mistake in saying that the boundaries were settled by the Treaty of Utrecht. My
learned friends think it important to make out that they were so settled.

The Lord Chancellor. — What is the clause of the treaty which relates to
this matter ? It is at page 504, is it not ?

Mr. Mow AT. — Yes, clause 10.

The Lord Chancellor :

'* The said Most Christian King shall restore to the Kingdom and Queen of Great
Britain to be possessed in full right for ever, the Bay and Straits of Hudson, together
with all lands, seas, sea coasts, rivers and places situate in the said Bay and Straits,
and which belong thereunto, no tracts of land or of sea being excepted which are at present

*** Carte du Canada ou de la Nouvelle France, par Guillaume de Tlsle, de I'Acad^mie Royale des
Sciences, et premier G^raphe du Roy. A Paris, chez Tauteur. 1703."

At pa^e 101 of the Ontario App. it is stated of these lines : " On an ori^nal proof copy of this map, now
deposit^ m the Bureau de la Marine, at Paris, there appears, as an autograph addition of the author and
his brother, a line marked * Ligne selon le m^moire de M. d'AuteuiL' This line commences at the entrance
to and on the south shore of Hudson *s Strait, and runs thence south-westerly (crossing the Rupert River) to
about lat. 50^^ ; thence due west to a point south-west of Fort St. Louis [Moose Fort] ; thence north-west-
ward on a direct course to the parallel of 60\

" Another autograph addition to the same map is a line, marked * Ligne selon la pretension des Anglois,^
and 'Ligne selon les Anglois ' : it ruos from the north shore of Davis' Inlet on the Labrador coast (in aboat
lat 56A% south-westward, and through Lake Mistassin, to the 49th parallel, which it thence foUowi to the
westerly limit of the map."

A fuller account appears in the Book of Arbitration Documents, p. 186/; reprint, p. 160.

114

THE LIMITS NEVER SETTLED PURSUANT TO THE TREATY OF UTRECHT.

paHsessed by the subjects of France All which, as well as any buildings there made, in
the condition they now are, and likewise all fortresses there erected, either before or since
the French seized the sime, shall, within six months from the rati6cation of the present
treaty, or sooner if possible, be well and truly delivered to the British subjects."

Is thei-e anything about boundaries there ?

Mr. ScoBLE. — In the same article, a little further on.

Mr. Mow AT. — It says that the commissaries should meet for the purpose^
of settling them.

The Lord Chancellor. — I suppose they did.

Mr. Mow AT. — They met, but they came to no conclusion. It is very curious^
that on so many of these maps the statement is made as to the boundary, but it is
a statement that we cannot admit. Tu the Oregon matter it was assumed that
the comuiissaries had met, and had settled on the line 4&° ; and yet it is perfectly
certain that the fact is otherwise. If that line had been settled, it would be an
important element in deciding the present matter, but it is quite clear upon the
documents that nothing of the kind has occurred. I have mentioned one thing
that makes this clear, and that is that we find the boundaries vary on the
different maps. Another thing is that it is not pretended that you can find any
such agreement, and it is nowhere suggested that anybody has been able to find
any such. There is nothing to support the agreement but these maps on which
the statement referred to is to be found.

Sir Montague Smith. — Is the commission to the commissioners published ?

Mr. MowAT. — Yes ; the authority under which they were to act is published,
and is amongst the papers. It is at page 508.* The series commences at
page 506.

Sir Barnes Peacock. — The papers relating to the proceedings under the
Treaty of Utrecht ?

Mr. MowAT. — Yes. There are also some further papers, one of which is now
printed in the Ontario Appendix at page 34. I think the first in date is there.
The title of it is given at page 33 : — " Memorial of the Hudson's Bay Company to
the Lords of Trade and Plantations, 3rd October, 1750."

The Lord Chancellor. — A long time after ?

Mr. MowAT. — Yes, a long time after. My purpose is to shew that up to that
time, 1750, the limits had never been settled. I suppose it may be assumed if it
was not settled in 1750, inasmuch as the treaty was in 1713, it was not likely to
have been settled at all, and it is only a few years alter that that the whole terri-
tory is ceded to England. At the top of page 34 it says :

'* That in pursuance of the said treaty, and the especial commission of Her said late
Majesty Queen Anne, dated 20th day of July, 1713, the said bay and lands,
then in possession of the French, were delivered up to, etc., and commissaries were
appointed to settle the said limits and adjust the damages, etc., and proceedings were
had by the said commissaries towards settling the same, but they were never able to
bring the settlement of the said limits to a final conclusion."

Nobody was so interested in this matter as the Hudson's Bay Company
themselves, and we have that statement of theirs in an official document addressed
to the Lords of Trade and Plantations. Then the next paragraph is :

" The boundary line then proposed by the Hudson's Bay Company, to be settled on the
limits on the continent between them and the places lieLuging to the French at the south
end of the said bay, as appears from the s<^vtMal memorials and a map or a plan then

*The commissaries were D. Pulteney and Martio Bladen, and by the Instructions, dated 3rd Sep
tember, 1719, the;f were em{)owered to act jointly and severally. The limits they were **to endeavour to
get " were to begin at Grimington's Island, or Cape Perdrix, in 58}*" north latitude, on the Labrador coasts
and thence south-westward, by a line passing through Lake Mistassin, to the parallel of 49°, and thence
" westward from the said lake, upon the 49th degree of northern latitude."

116

ARGUMENT OF ATTOENEY-GENERAL OF ONTARIO VC QUESTION OF BOUNDARY :

presented by the said Hudson's Bay Company to the Lords Commissioners of Trade,
And still remaining in your Lordships' office, was the same as the line now proposed by
your memorialists for the south-east and south boundaries ; "

And so on. So there we have this statement, that up to 1750, nothing of the
kind had taken place.

Then again, in 1759, we have another memorial from the Company, printed
at page 587 of the Joint Appendix, in which they state in regard to the limits
that *' proceedings were had by the said commissaries towards settling the same;
but they were never able to bring the settlement of the said limits to a final
-conclusion.'*

The Lord Chancellor. — But the inference to be drawn, seemingly, is that
when they refer to the map in the negotiations which followed the Treaty of
Utrecht, they refer to an English map of that date. It is quite clear, from the
passage at page 500,* that there was such a map.

Mr. Mow AT. — Yes, it is clear ; but unfortunately we have not been able to
find it.

The Lord Chancellor. — And inasmuch as there was a general undertaking
in very large terms to restore what had been considered to have been taken by
the French from this country, in the absence of a settlement by the commis-
sioners, I should suppose that the British map is that which must be referred to.

Mr. Mow AT. — Your Lordship will give it such weight as it is entitled to. We
have not the map. We have some indications of what it contained, but we
have not got either map.

The Lord Chancellor. — We know there was a British map, and we know
there was this general undertaking to restore :

'^ The king has sent to his plenipotentiaries the same map of North America as had
been furnished by the plenipotentiaries of Great Britain. His Majesty has caused to be
drawn upon this map a line which describes the boundaries in such a manner as he has
reason to think they easily may agree upon this point on both sides. If, however, there
should be any obstacle which the plenipotentiaries cannot remove, the decision must be
referred to commissaries to be named for the adjustment of the boundaries of America."

That is the passage.

Mr. MowAT. — It would be hard to bind us by the maps of private parties on
a point of that kind.

The Lord Chancellor. — Not at all. Secondary evidence is receivable in
such a case, where you cannot get direct evidence. It is quite clear when Mitchell's
map was published — the exact date appears. But the view of the Hudson's Bay
Company was that under the Treaty of Utrecht it was within the boundary there
marked. Then there was the map of 1703, when, I suppose, the elements of dispute
were already existing, shewing a straight line, which runs between Lake Superior
and Lake Alemipigon. No doubt there are a great many things laid down with
a certaiu amount of inaccuracy on that map, and in matters of detail it would be
comparatively of little use, but it shews that the then English pretensions were
regarded by France as being to an apparently straight line, parallel and running
beyond the end of Hudson's Bay eastward.

Mr. MowAT. — Mr. Chief Justice Draper's paper, which is printed in the appen-
dix, and which was submitted on behalf of the Province to the House of Com-
mons Committee, pointed out the variations in the position which the Hudson's
Bay Company took from time to time ; and that while there are some maps
mentioning the line your Lordship refers to, there are other maps which give
Another line.

* See the papers, M. do Torcy to Prior, and Prior to Lord Bolingbroke, anUt page 113, text apd note.

116

MS. LINES OF 1719, ON DB l'LISLE*S MAP OF 1703.

The Lord Chancellor. — This is a French map which comes from the
government survey of France, and is stated to be identical with that which m
found in the library of the Ministry of Marine at Paris It is dated 1703, ten
years before the Treaty of Utrecht, and it is a map of Canada, or New France,
and is one from the French point of view, and it lays down this as the line of the
English pretensions. This is before the treaty, and the map shews what the
French, ten years before the treaty, underatood to be the English claim.

Mr. MowAT. — But, my Lord, it is quite impossible that can be the case ; and
you will see this when you consider that by the Treaty of Ryswick the French
had all the posts on the bay, with the exception of one. In 1703, that was not
the English claim.

The Lord Chancellor. — This is your map. Unless the parties had put this
yellow line on it, which is hardly likely, because the words are in the French
language, and are printed, it certainly represents what, in 1703, the French under-
stood to be the English claim of the boundary between the two countries, and, as
I say, that corresponds with an irregular line now drawn no doubt, but it was a
perfectly regular and straight line drawn between Lake Alemipigon and Lake
Superior to a point at the end of Hudson's Bay, and then running oft through
Lake Mistassin to a place south of Davis' Straits and Baffin's Bay.

Mr. MowAT. — The original lines, with their inscriptions, appearincr upon the
copy of the map of 1703 which is deposited in the library of the Ministry of
Marine and the Colonies at Paris, are not printed as suggested by your Lordship.
We have the undoubted evidence in our printed documents, that those lines were
put on in 1719, and in manuscript.*

The Lord Chancellor. — It comes from your own clients.
* Mr. MowAT. — The map was put in for the purpose of shewing the forts that
are there.

The Lord Chancellor. — For whatever purpose it is put in, is or is not " La
pretension des Anglois " part of it ? If it has been put on for the purpose of
this case we must entirely disregard it, but if it belongs to that date it shews
what the French Government thought, ten years before the Treaty of Utrecht,
was the English claim.

Mr. MowAT. — I will have the evidence upon that point collated, and my
learned friend who is with me will mention it to your Lordships.

The Lord Chancellor. — This is a map of some importance with reference
to the Treaty of Utrecht, because the French agreed to give up certain things,
described in very general words, under the name of restitution — not cession. I
think it was your observation, that the success of the English in the war that
preceded the peace of Utrecht led rather to an enlargement of their claim.

Mr. MowAT. — Yes. Ultimately the whole territory had to be ceded, England
wa sso successful.

The Lord Chancellor. — You mean after the great war in Lord Chatham's
time?

Mr. Mow AT. — Yes. I will mention shortly the other evidence that there was
no settlement. The memorial that I have referred to, dated in 1759, states :

" Commissaries were appointed to settle the said limits, and adjust the damages the
company had sustained, which, for the ships and goods of the conipany taken by the
Freooh, appears, by an account stated in the year 1713, and delivered to the then Lords
Commissioners of Trade and Plantations, amounted to upwards of £100,000, besides the
damages the company sustained by the enemies' burning three of their forts and factories
at Charlton Island, Moose River, and New Severn. And proceedings were had by the

* See, as to these lines, ante^ p. 113, and p. 114, note.

117

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

:flaid commissaries towards settling the same, but they were never able to biing the settle-
ment of the said limits to a final conclusion, nor did the said Hudson's Bay Company
ever receive any satisfaction for their said damages.'*

T?hat is what the Company itself said :

" That the papers which were laid before the said commissaries and the minutes of
their proceedings, as also a memorial relative to this matter which, in the year 1750,
after the conclusion of the last war, was presented to your Lordships, remaining, as your
memorialists believe, in your Lordships' office, it is conceived from thence will appear the
best state of the rights of both Crowns, and of the territories and claims of the said
company that can be laid before you Lordships, whereto your memorialists beg leave to refer.

** Your memorialists therefore humbly hope, in case any treaty of peace shall be
set on foot between this nation and France, that your Lordships will intercede with His
Majesty to take the premises into his royal consideration, and that he will be graciously
pleased to cause your memorialists to have full satisfaction made them, pursuant to the
«aid Treaty of Utrecht, for the aforesaid depredations they are thereby acknowledged to
have sustained from the French in time of peace, and for which satisfaction is by the said
treaty agreed to be made to the company, and that the limits of the said company's
territory may be settled as by the said treaty is also agreed."

Then the Dominion Government, for whom my learned friends are presumed to
appear here, in one of their despatches to the Secretary of State for the Colonies,
dated the 8th of Febniarj', 1869,* which is to be found at page 287 of the Joint
Appendix, make this statement (the particular statement I am going to read is at
page 294, and it is a declaration of my learned friends* clients) :

" As no definite boundary was established between the possessions of the French in
the interior, and the English at Hudson's Bay, down to the Treaty of Paris, 1763, when
the whole of Canada was ceded to Great Britain, the extent of the actual possession by
the two nations for some period, say, from the Treaty of Utrecht to the Treaty of Paris,
affords the only rational and true basis for ascertaining that boundary."

That is the very thing I am contending for before your Lordships now.

Then, letters are published in the Joint Appendix, shewing the searches that
have been actually made, and the result of them, for any such decision. For
example : Mr. McDermott was employed by the Dominion Government for this
purpose, and the result of his examination appears at pages 717 and 718 of
the Joint Appendix. He says this :

" The boundaries of the Hudson's Bay Company, as defined by the Treaty of
Utrecht, are shewn on both editions of Mitchell's map as following the height of land
which forms the watershed of rivers running southward to the lakes or northward to the
bay. I do not find, however, in the Records and Correspondence of the Commissioners of
Trade and Plantations (which consists of documents in French, Latin and English), any
mention of a decision arrived at by the Commissioners appointed to fix this boundary
matter and other disputed questions."

That is up to 1877.

The Lord Chancellor. — Those are recent documents ?

Mr Mow AT. — Yes ; they are the recent investigations as to whether there
had been a settlement or not. We have carried them up to a very late date
indeed, and we have all been searching in every possible way ; so that there is no
doubt whatever that the boundaries were never settled. Mr. Chief Justice Draper,
in his paper put in on behalf of Canada before the committee of the House of
Oommons, makes the same statement on pages 196 to 198 of the Joint
Appendix.-!*

* Sees. Papers, Can., 1869, No. 25.

t Memorandum from Chief Justice Draper, Agent for the Province of Canada, submitted to the
Colonial Secretary, 6th May, 1857, printed with the Keport of the Select Committee, Imp. Ho. of Corns.,
^n the Hudson's Bay Company, 1857, p. 374.

118

THE LIMITS NEVER SETTLED PURSUANT TO THE TREATY OF UTRECHT.

The Lord Chancellor. — I thought you described a passage you read at
page 294 as emanating from the Hudson's Bay Company. That seems to have
been from their opponents, when the question was being agitated as to whether
they had any rights or none.

Mr. MowAT. — I did not read it as from the Hudson's Bay Company ; I read
it as being from the Dominion Ministers.

The Lord Chancellor. — They were at that time endeavouring to persuade
the English Government to treat the Hudson's Bay Company as having no rights.

Mr. MowAT. — They are my opponents here.

The Lord Chancellor. — You cannot deduce any argument from that.

Mr. MoWAT. — Your Lordships may very fairly make an inference from that.

The Lord Chancellor. — what I infer is that they were very anxious to get
rid of the Hudson's Bay Company altogether at that time.

Mr. MowAT. — No doubt ; but they would not say what was untrue. They
have not been able to shew since that those statements were incorrect.

Lord Aberdare. — I see that this very document which you have just now
quoted assumes that the possessions of the Hudson's Bay Company are very large,
because they say :

" They are there, however, by at least a show of right. Being there, they obstruct
the progress of Imperial and colonial policy, and put in jeopardy the sovereign rights of
the Grown over one-third (and as some think even a larger portion) of the North
American continent."

Mr. Mo WAT. — I do not know whether the reference there is to the Hudson's
Bay Company's territories claimed under their charter, or to the whole territories
over which they had the exclusive right of trading ; because there was an
enormous territory over which they had the exclusive right of trading under
license, and which was not included in their charter.

Sir Barnes Peacock. — It seems to apply to Rupert's Land.

Mr. MowAT. — Then there is French evidence that there had been no settle-
ment, from the memoir of M. de la Galissonnifere, in the Joint Appendix,
page 514.*

The Lord Chancellor. — I think it may be assumed that if the effect was
that the commissioners never settled anything, England continued to claim to pass,
under the restitution, what they had claimed before at least, if not more.

Mr. MowAT. — But, then, would the Hudson's Bay Company be entitled to it ?
It is one thing for the Crown of England to have it, and another thing for the
Hudson's Bay Company to have it.

In 1750, there was an attempt to settle the question between France
and England, and then M. de la Galissonnifere was one of the commissaries
appointed for that purpose, and at page 514 he expressly states that nothing was
done. At the foot of that page the statement which I refer to is to be found :

" The Treaty of Utrecht had provided for the appointment of commissioners to regu-

*EXTBACT8 FROM M. DE LA GALI8S0NNlfeRK*8 Afemoire ON THE FbENOH COLONIES IN NORTH AMERICA,

DATED DeOEMBRR, 1750.

Having treated of Canada in general, we consider ourBelves bound to enter into some details respecting
its different parts, and shall commence with those of the north.

Hudson's Bay, which was one of its most lucrative establishments, has been ceded to the English by
the Treaty of Utrecht, under the denomination or title of restitution. They carry on a proBtable trade
there, but the excessive cold, and the difficulty of subsistence, will never permit them to form establish-
ments there capable of affording an^ uneasiness to Canada ; and if the strength of the latter country be
affumented, as proposed, it will possibly be in a condition, in the first war, to wrest Hudson's Bay from the
English.

The Treaty of Utrecht had provided for the appointment of commissioners to regulate the boundaries
of Hudson's Bay ; but nothing has been done in that matter. The terra restitution, which has been used in
the treaty, conveys the idea clearly, that the English can claim only what they have possessed, and as
they never had but a few establishments on the sea cost, it is evident that the interior of the country is con«
«idered as belonging to France.

119

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

late the boundaries of Hudson's Bay ; but nothing has been done in that matter. The
term * restitution ' which has been used in the treaty conveys the idea clearly that the
English can claim only what they have possessed."

The Lord Chancellor. — That is a French argument.

Mr. Mow AT. — We have French testimony, in addition to English testimony^
that the matter had never been settled; and there can be no doubt about the fact^
because M. de la Galissonni^re was one of those at that time authorized to
endeavour to come to a settlement. He was himself one of the commissioners.
We have an oflScial French document a little later than that too, namely, the
Instructions to M. de Vaudreuil, dated Veraailles, 1st April, 1755, which are to
be found at page 515 of the Joint Appendix. That is five years later :

" By article 10 of the Treaty of Utrecht, it had been agreed that commissioners
should be named on both sides to settle the boundaries between the French and British
American colonies. On occasion of an expedition that the English fitted out in 1718
against the fishing posts which the French had in the islands of Oanso, the two courts
did in fact nominate commissioners to decide the property of these islands. The com-
missioners met at Paris. At the very first conference, those of the King of England^
who claimed that the islands of Canso were dependent on Acadia, which was ceded to
the English by the Treaty of Utrecht, were convinced, on inspecting the map which they
presented themselves, that those islands were, on the contrary, included in the reserves
expressed in the article of the Treaty of Utrecht containing the cession of Acadia, and
€hat consequently France had retained the property thereof. They withdrew, saying
they required new instructions from their court, and did not again make their appearance.
Although there had been question, on different occasions that since presented themselves,
of naming other commissioners in execution of the treaty, the English had always eluded
it until the last war ; and Sieur de Vaudreuil is better informed than any person how
they abused the moderation," — here he inveighs against the English a little —
** which had always governed His Majesty's proceedings and views, since he has been
a witness of their increasing usurpations in the territory of Canada during the long
peace which followed the Treaty of Utrecht."

Then a little lower down there is this statement :

" As yet the comiaissioners have not entered upon the limits of Canada."

The Lord Chancellor :

" They [the English] have not yet explained themselves respecting the extent they
propose giving their Hudson Bay boundaries ; but it is to be expected that they will wish
to strecch them to the centre of the colony of Canada, in order to enclose it on all sides."

I do not know what value you ascribe to this document. It does not seem
to me to have much.

Sir MoxTAGUK Smith. — You use that simply to shew that no map had been
made, or any boundaries settled.

Mr. Mo WAT. — Yes, my Lord.

Sir Montague Smith. — You have shewn that in various other documents.
I do not know whether the other side deny it.

Sir Robert Collier. — You had better wait till the other side shew there was
a settlement.

Sir Montague Smith. — Because that is what you have been endeavouring to
establish.

Mr. Movvat. — I found amongst their papers indications of their intention
to set that up, and therefore I thought it worth while to select the evidence to
shew that there was nothing in it.

Then there is just one matter more which I will speak of, and I will then
give place to my learned friend who is with me in the matter, that he may
supply what I have omitted. I want to shew to your Lordships the position

120

LIMITS CLAIMED FOR UPPER CANADA BY THE DOMINION, 1869.

taken with regard to all these matters by the Province of Canada, and by the
Dominion. Your Lordships will see it is no new claim that the Province of
Ontario is setting up. Ontario is merely continuing a claim which had been
advanced for a considerable period before Confederation. The territory which
the arbitrators gave us was really only a small part of what had been insisted
on, in the strongest possible language, as belonging' to Canada. I do not say
that Canada had invariably asserted her right 5) so much. I do not say but
that in some despatches expressions are found which imply that those who
happened to be then members of the government, or in charge of the particular
departments, may not have been alive to the rights of Canada, but the general
scope of the position occupied before confederation is very plain from what I
will call your Lordships' attention to. For instance, at page 289, your Ix)rdships
will find a despatch of the Canadian delegates to the Under-Secretary, of the 8th
February, 1869.

The Lord Chancellor. — That is again I suppose part of the controversy
as to Hudson's Bay.

Mr. MowAT. — Yes ; I want to make out that the Hudson's Bay Company
are not entitled to any part of the territory which the arbitrators have given us ;
at all events not to that part which Manitoba and ourselves have a dispute about.
That is all that I am reading this for. This is about the middle of the page.

Sir Robert Collier. — The date of this is 1869.

Mr. Mow AT.— Yes, my Lord, it is so recent as that. It is the Dominion itself
setting its claim up :

" It will be observed that two things are assumed in these proposals to the company,
which the Canadian Goyemment have always disputed.

" 1st. That the charter of Charles II. is still valid, and grants the right of soil, or
freehold, of Rupert's Land to the company.

'* 2nd. That Rupert's Land includes the so-called * Fertile Belt,' extending from the
Lake of the Woods to the Rocky Mountains.

" The law officers of the Crown in England have, on two or three occasions, given
their opinion in favour of the first assumption, but never, so far as we are aware,
in favour the second. The report of the law officers in 1857 admits that the
geographical extent of the territory granted must be determined by excluding the
country that * could have been rightfully claimed by the French as falling within the
boundaries of Canada,' (which the charter itself excludes by express words), and
states that * the assertion of ownership on important public occasions, as at the
treaties of Ryswick and Utrecht,' should be considered ; and also * the effect of the
Acts of 1774 and 1791.' The most recent opinion of the law officers of the Crown
which we have seen (January 6th, 1868), as to the rights of the Hudson's Bay Com-
pany, does not, even by implication, support their present claim to the fee simple of
nearly one-third of the American continent. On the contrary. Sir John Karslake and
his colleague conclude their report with the emphatic statement that it is * very
necessary, before any union of Rupert's Land with Canada is effected, that the true
hmits of the territory and possessions held under the charter should be accurately
defined.' An assumption, therefore, which covers so much ground, and is unsupported
by any competent legal authority; which ignores the repeated protests and claims of
Canada ; and seeks to supply a basis upon which a surrender for valuable consideration
may be made — is, to say the least, a most favourable assumption for the company.
We notice these points in Mr. Adderley's letter before remarking on Sir Stafford
Northcote's reply, to prevent the possible inference that we have acquiesced in them."

Then they present this argument in the same paper, at page 293, which I

adopt, and read to your Lordship as being a correct view of the matter, and it was

the statement of the Dominion itself at the time. Take paragraphs 1, 2, 3 and 4 :

" 1. The charter of Charles II. (and for the present we raise no question as to its

121

ARGUMENT OF ATTORNEY-GENERAL OF ONTARIO Tt QUESTION OF BOUNDARY :

validity) could not and did not grant to the Hudson's Bay Company any territory in
America which was not then (1670) subject to the prown of ]Bngland.

"2. The charter expressly excluded all lands, etc., then * possessed by the subjects
of any other Christian prince or state.'

**3. By the Treaty of St. Gei-main-en-Laye (1632) the King of England resigned
to the King of France the sovereignty of Acadia, New France anti Canada, generitlly,
and without limits. '

" 4. * La Nouvello France,' was then understood to include the whole region of
Hudson's Bay, as the maps and histories of the time, English and French, abundantly
prove."

The Lord Chancellor. — That is not an allegation that Canada had claimed it.

Mr. Mow AT. — That particular sentence is not, but the extract presents con-
cisely the argument against the company having any territory that could come
down to where we are now.

The Lord Chancellor. — No, it goes very much farther than that. It speaks
of the whole territory of the Hudson's Bay Company. It seems to me to have
very little bearing indeed on the particular Question before us.

Mr. MowAT. — In 17C3, my Lord, in all tne maps of that early date, the whole
region of Hudson's Bay is marked as if it belonged to New France or Canada, but
of course when England got part of it that part ceased to belong to New France.
The delegates continue, in paragraph 5 :

" 5. At the Treaty of Kyswick (1697), twenty-seven years after the date of the charter
the right of the French to ' places situated in Hudson's Bay ' was distinctly admitted ; and
although commissioners were appointed (but never came to any agreement) to 'exan^ine
and determine the pretensions which either of the said kings hath to the places situate in
Hudson's Bay,' and with * authority for settling the limits and confines of the lands to be
restored on either side," the places taken from the English (t. e, from the Hudson's Bay
Company) by the French previous to the war, and * retaken by the English during this
war, shall be left to the French by virtue of the foregoing (the 7th) article.' In other
words, the forts and factories of the Hudson's Bay Company, established in Hudson's Bay
under pretence of their charter,and taken possession of by the French in time of peace on the
ground that they were an invasion of French territory, were restored by the Treaty of
Ryswiok to the French, and not to the company."

The Lord Chancellor. — Does this add anything whatever to what you have
pointed out already ?

Mr. Mow AT. — Well, my Lord, I have been asked several times what position
had been taken with reference to this territory, and I shewed that the old Province
of Canada took this grouud, and I shew that the Dominion of Canada has taken
it since.

The Lord Chancellor. — I cannot see in the passages here any suggestion
that this was part of the Province of Canada.

Mr. Mow AT. — Rut that was the object of this statement.

The Lord Chancellor. — No, it was rather that the Hudson's Bay Company
had no right to it.

Mr. Mo WAT. — I quite agree ; but the inference to be drawn from that is that
Canada had the right to it.

The Lord Chancellor. — I do not see that any such inference is to be drawn.

Mr. MoWAT. — Well, I thought so, my Lord.

Another view of the matter occurred to me, which may be stated in a word
or two. Thee were territories in dispute from time to time between France
and England, but France at the time of the Treaty of Ryswick was recognized
by England as the owner of all the territory about Hudson's Bay, with perhaps
the exception of one fort, and whatever territory might be considered as connected
with that fort which England reserved and the company possessed. Now,

122

APPLICATION OF THE PRINCIPLES OF PARTITION.

what is the effect upon legal ownership of a transaction of that kind, when the
limits have not been settled by commissioners, and there is no agreement as to
how much territory is to go with those different forts? It is important to
notice when we come to consider the effect of the Treaty of Utrecht, that very
much more territory was to go to England under that treaty than under the
Treaty of Ryswick ; because under the Treaty of Ryswick nearly the whole of
the territory went to France, while under the Treaty of Utrecht, the bay and
straits, and whatever territory that would command, was given to England.
Commissaries were to be appointed under that treaty likewise, but they never
were appointed.

Now there was a large territory around Hudson's Bay previous to that
treaty belonging to France. How are we to determine now as to the effect
of the Treaty of Utrecht upon that ? Where is the line to be dmwn, and upon
what principle can it be drawn ? It seems to me that it may be regarded as
unpartitioned property. The legal ownership of the property had been in
France at the time of the treaty or the agreement. It was to be divided in
fiome fashion between England and France, and I submit that the principles
of partition would apply. I refer to that for this reason. I understand that
when a court is called upon — or when commissioners are called upon —
to partition a property as to which there is a joint ownership; they consider
all the circumstances, and have a discretion in reference to what it is fair and just
to determine, and where to draw the line. I ask your Lordships — ^if that is a
principle which applies — to draw the line here so as to give us such territory
as under all the circumstances the Province of Ontario mi^ht fairly claim.
Upon all the grounds, I hope your Lordships will see your way to uphold the
lines of the Award.

Sir Barnes Peacock. — Can you tell me whether schedules A and B which
are annexed to the Order in Council are printed ? The order in council is here, but
not the schedules.

Mr. Mow AT. — Your Lordships will find them in this book, in a different form
and in a different order, but the materials are here.

Sir Barnes Peacock.— What is the page ?

Mr. Mow AT. — Does your Lordship mean the addresses of the Houses ?

Sir Barnes Peacock. — Yes, the addresses of the two Houses of the Dominion
Parliament to the Queen, as to the manner in which this land surrendered by
the Hudson's Bay Company was to be decided.

Mr, MowAT. — The address forming schedule A is at page 266 ; and the reso-
lutions and address comprised in schedule B are at pages 312 and 313 respectively.

Sir Barnes Peacock. — Do you contend that if the Hudson's Bay Company
was in possession de facto — I will say only de facto — of this land which is included
in the award, before the company's surrender, that can be now given up as an
addition to Ontario ?

Mr. MowAT. — Will your Lordships find it necessary to consider that ? because
they were certainly not in possession. It is perfectly certain that this territory —

Sir Barnes Peacock. — Is no part of what was surrendered.

Mr. MowAT. — The Hudson's Bay Company were not in possession at the
time of the cession, in 1763.

Sir Barnes Peacock. — I mean at the time of the surrender in 1869.

Lord Aberdare. — At the time of the surrender by the Hudson's Bay Com»
pany to Canada.

Sir Barnes Peacock. — Yes, at the time of the deed of surrender of the 10th
November, 1869, on page 315.

123

ARGUMENT OF ATTORNET-GENERAL OF ONTARIO re QUESTION OF BOUNDARY :

Mr. Mow AT. — They had posts there, but no exclusive possession. They wer
there only in common with the other subjects of Her Majesty. They had als<
same posts in the undisputed part of Ontario.

Sir Barnes Peacock. — It they were then in possession de facto, was not it i
portion of the lands for which the £300,000 were paid by the Dominion ?

Mr. Mow AT. — Not if it already belonged to Ontario.

Sir Barnes Peacock. — The Rupert's Land Act is this :

" For the purposes of this Act " — that is the Rupert's Land Act, 1868, — " the tem
' Rupert's Land ' shall include the whole of the lands and territories held, or claime<i
to be held, by the said Governor and Company,"

and then it authorizes this to be surrendered.
The Lord Chancellor. — What is the page ?
Sir Barnes Peacock. — Page 445 ; and then there is a condition :

•* Provided, however, that such surrender shall not be accepted by Her Majesty until
the terms and conditions upon which Rupert's Land shall be admitted into the said
Dominion of Canada shall have been approved of by Her Majesty, and embodied in an
address to Her Majesty fi*om both Houses of the Parliament of Canada."

Mr. Mow AT. — Well, my Lord, the view that I take of that is this —

Sir Barnes Peacock. — I want to see those addresses if I can.

Mr. McCarthy. — The first joint address of both Houses of Parliament is at
page 266.*

The Lord Chancellor. — That was in 1867. That also seems to me to be a
document very strong to shew that the notion of Rupert's Land and the North-
western Territory being part of Canada was absolutely rejected by the Senate
and the House of Commons of Canada in December, 1867.

Sir Barnes Peacock. — The Act says, at page 446,t that Rupert s Land
shall include all lands " held, or claimed to be held " by the Hudson's Bay Com-
pany; the lands which in fact they were selling for the £300,000.

Mr. Mow AT. — Yes, my Lord.

Sir Barnes Peac(»ck. — Then you find, by the Order in Council, that those
lands were to be legislated for by the Dominion of Canada. If they are put into
the province, then they would come to be legislated for by the province.

The Lord Chancellor. — These passages do not provide for the boundary of
Rupert's Land and Canada, but they shew most conclusively that Rupert's Land
extended into this region, and was ia immediate proximity to this boundary of
Canada.

Lord Aberdare. — But the claim was that Canada extended indefinitely to
the west.

Mr. Mow AT. — Yes, absolutely indefinitely. I do not think that anything
will be inferred from that expression, the lands "claimed to be held" by the
company.

Sir Barnes Peacock. — If they were de jacto in possession, and Ontario was
not in de facto possession, then were they not the lands which were sold for
£300,000 ?

Mr. MowAT. — The land that was sold was just the interest of the Hudson's
Bay Company in the lands before they were surrendered. During the corres-
pondence, there was a dispute as to how much belonged to the Hudson's Bay
Company, and the Province on the whole was willing to give £800,000 for a
surrender — a quit claim in fact. It was only a iraction of the value. of the land.

Sir Robert Collier. — It was whatever they had.

* Address of December, 1867, in prefix to Dom. Stats., 1872.
+ Imp. Act, 31 and 32 Vict., cap. 106- Rupert *8 Land Act, 1868.

124

WHAT PASSE0 UNDER THE RUPERT*S LAND ACT, 1868.

Mr. Mow AT. — Whatever they had ; but it would never do to hold that the
affect of this Act was to take from any province what really belonged to it,
because it had been claimed at some time or other by the Hudson's Bay Com-
pany. Your Lordships will further observe that they had made different claims
at different times.

Sir Barnes Peacock. — Was not 4t intended that you were not to go back to
1763 to see what was a portion of Canada at that time, if the Hudson's Bay
Company at recent dates had been in possession of these lands, and Canada had
not exercised any dominion over them.

Sir Robert Collier. — Their po3session would not be proved by that act.

Sir Montague Smith. — You deny their de facto possession.

Mr. Mow AT. — Yes ; but I do not say they were not there at that recent date in
common Tvith others of Her Majesty's subjects. They had no exclusive possession.

Sir Montague Smith. — I dare say they may have had forts there at that date.

Sir Barnes PteACOCK. — There is no parol evidence to shew what was in pos-
^easion of this company at the time of the surrender, or at the time of the passing
af Rupert's Land Act, 1868.

Mr. Mow AT. — They were in possession, but their right was disputed. Their
possession was not an exclusive one.

Sir Robert Collier. — We shall hear the other side upon this.

Mr. MowAT. — Upon that Act I will add one more word, and then I will say
nothing further. The fifth section, I think, shews what the intention of the Act
was in that respect, namely, that it was not intended to take away from any
province anything that would belong to that province if this Act had not passed
because the fifth section provides this :

" It shall be competent to Her Majesty, by auy such order or orders in council as
aforesaid, on address from the Houses of the Parliament of Canada, to declare that
Rupert's Land shall, from a date to be therein mentioned, be admitted into and become
part of the Dominion of Canada, and thereupon it shall be lawful for the Parliament of
Canada from the date aforesaid to make, ordain and establish within the land and terri-
tory so admitted as aforesaid all such laws," —

and so on. Now whatever territory passed by this, was territory in which the
Parliament of Canada was to have the power of making the laws absolutely — not
merely for provincial, but for all purposes. I submit that we cannot read the
Act as meaning to take away from a province land which belonged to that
province, even supposing the Hudson's Bay Company happened to be there.
For instance, the Hudson's Bay Company had posts in the settled parts of
Ontario with regard to which there is no dispute at all, where they traded with
mch Indians as they could get to trade there.

Mr. ScoBLE. — May it please your Lordships. In the observations which I shall
address to your Lordships in following my learned friend, I shall endeavour to
confine myself as much as possible to simply supplementing those portions of his
argument which, from the very voluminous character of the papers, Jie has not
been perhaps able to state as completely as they may be stated, and to direct the
argument which I shall ofier mainly to the point of supporting the award of the
arbitrators, which of course may be supported by my shewing that there is a
greater line which may have been given us, but which was not in fact given to us.
And as the learned Attorney-General has intimated his consent to this line, which
I think must strike your Lordships as being a very convenient line to establish
from one point to another by natural boundaries, it will be only necessary for me
to call your Lordships' attention to those facts which shew that the award of the
arbitrators is within the rights which Ontario is entitled to set before your Lord-
ships in supporting their claim to a division of the territory.

125

ARGUMENT OF MR. SCOBLE, Q.C., TC QUESTION OF BOUNDARY:

Now, my Lords, I take it to be perfectly clear that the. Province of Ontario
succeeded, by the British North America Act, 1867, to whatever formerly con-
stituted the Province of Upper Canada. I take it to be quite clear that the Pro-
vince of Upper Canada, as established by the Constitutional Act of 1791, had a
perfectly defined and positive limit to the east, that the intention of the Con-
stitutional Act was, as it is expressed in the second section of the Act, simply to
divide the Province of Quebec which before this existed, into two separate Pro-
vinces, one of which was to be called the Province of Upper Canada and the other
the Province of Lower Canada, and with the purpose of making that division by
the Order in Council of the 24th of August, 1791, the limits were settled. The
limit of the Province of Upper Canada was fixed to be (your Lordships will find
the reference at the foot of page 399 of the Joint Appendix) :

" To commence at a stone boundary on the north bank of the Lake St. FranciB, at
the cove west of Pointe au Boudet/' and so forth, '* running along the said limit in the
direction of north thirty-fonr degrees west to the westermost angle of the said Seigneurie
of New Longueuil ; thence along the north-western boundary of the Seigneurie of
Vaudreuil,"

And so on^to the last few words at the end of the page :

<* And from the head of the said lake by a line drawn due north until it strikes the
boundary line of Hudson's Bay, including all the territory to the westward and south-
ward of the said line to the utmost extent of the country commonly called or known by
the name of Canada "

Now, my Lords, upon that there are two points. In the first place, the
northern termination of this eastern division line of Upper Canada was fixed to
be the boundary line of Hudson's Bay. It was not the boundary line of the
Hudson's Bay Company. It was not the boundary line of the Hudson's Bay
territory ; it was the boundary line of the bay itself, and to that I apprehend no
other interpretation can be given. The boundary line of Hudson's Bay was the
coast line of Hudson's Bay; and the limits of Upper Canada, at that part of
its extent, went far over the height of land to which reference has been incidentally
made in the course of my learned friend's argument, and in the argument of
counsel on the other side : far over the height of land, and directly away to the
boundary of Hudson's Bay. We there get the first starting point of the line fixed
by the award of the three commissioners. They begin there, and carry the line
in a south-westerly direction down to the point above the Lake of the Woods
where it touches the new Province of Manitoba.

Then, the second point which arises upon this description of boundaries in the
Orders in Council —

The Lord Chancellor. — Which Order in Council ?

Mr. ScoBLE. — The Orders in Council of the 24th of August, 1791, at pages
3Q7 and 399 of the Joint Appendix.* I say that that fixes, beyond possibility
of cavil, the eastern boundary from which the arbitrators, as I say rightly, made
their boundary line to depart. But the second point which arises, my Lord, upon
this is, that Upper Canada was to include —

'* All the territory to the westward and southward of the said line to the utmost
extent of the country commonly called or known by the name of Canada."

Now we must ascertain what the meaning of that phrase is, and it is a
phrase which occurs not only in the Order in Council, but in the commission
which was issued to Lord Dorchester, the first Governor-General appointed after
this division was made. His commission will be found at page 400,"f and it fol-
lows exactly the words of the Order in Council :

• Printed, ante, pp. 47-49, note.

t Ck>mmis8ion as ** Captain- General and Go vemor-in- Chief of our laid Province of Upper Canadft,.
And of our said Province of Lower Canada, respectively," dated 12th September, 1791.

126

EXTENT OF UPPER CANADA.

"The Province of Upper Canada to comprehend all such lands, territories and
islands lying to the westward of said line of division as were part of our said Province of
Qaehec, and the Province of Lower Canada to comprehend all such lands, territories and
islands lying to the eastward of the said line of division as were part of our said Province
of Quebec."

We have in that commission a clear interpretation of what was intended to be
conveyed by the use of the term Canada in the Order in Oouncil. " Canada " and
the " Province of Quebec " are in these two documents treated as interchangeable
terms ; and your Lordships will find that in all the subsidiary acts of the Canadian
Government which were entered upon in consequence of this division of the pro-
vince into two parts, as for instance in the proclamation of Lieutenant-Governor
Clarke, in 1791, at page 401.* The proclamation states that the country is io
include —

"All the territory to the westward and southward of the said line, to the utmost
extent of the country commonly called or known by the name of Canada."

And Lieutenant-Governor Clarke, noticing the variation between the words
used in the Order in Council and the words used in Lord Dorchester's commission,
communicates with Mr. Dundas, then Secretary of State, upon the subject. His
letter, dated 1st December, 1791, is at page 402, and he says :

" I think it my duty to remark to you, Sir, that the terms in Lord Dorchester's com-
mission describing the boundaries of Upper and Lower Canada, are not the same as those
used in the Order in Oouncil, of the 24th of August."

Mr. Dundas, in reply to that, writes on the 10th of April, 1792. At the
top of page 403 your Lordship will find the passage to which I am referring :

" Upon examination, I observe that Lord Dorchester's commission and the Order of
Council, respecting the boundaries of the two provinces, are not precisely the same ; but
as the difference lies only in what is explanatory, it does not, I conceive, amount at all to
a variance between them, and is therefore perfectly immaterial."

Therefore, I think I may take it, upon this part of the case, that in 1791, when
the Constitutional Act was passed, the Province of Quebec was considered to be
identical with the country called or known by the name of Canada.

The Lord Ch4lNCELL0R. — You mean the province which was divided.

Mr. ScOBLE. — Yes ; the Province of Quebec was precisely the same as the
country known by the name of Canada, and, as Mr. Dundas says, the words were
practically interchangeable.

The Lord Chancellor. — But the proceedings of that date merely give you
the line of division between the two provinces.

Mr. ScOBLE. — Yes, my Lord, but they give to Upper Canada all that is to the
west and south of that boundary line, and the question is how much lying to the
west and south Ontario is entitled to claim under that description.

Lord Aberdare. — Which was the boundary line.

The Lord Chancellor. — It is, in point of fact, far to the east.

Sir Robert Collier. — It is this one [pointing].

Mr. Scoble. — Yes, that blue line.

Sir Robert Collier. — You have all that is west of that.

Mr. Scoble. — We have all that is west of that, but how much it is remains
to be seen. The point I make upon that is, that that boundary line, fixed in 1791,
took us up to the boundary of Hudson's Bay, and gave us all to the west and
south of that, even on the confines of Hudson's Bay. We go up to James* Bay
at all events.

* Printed arUe^ p. 50, note.

127

ARGUMENT OF MR. SCOBLE, Q. C, TC QUESTION OF BOUNDARY :

Then in order to ascertain what the Province of Quebec which was thus
divided in 1791 was, we must go back to the Quebec Act of 1774.

The Lord Chancellor. — We must break otf here. It may be convenient
to counsel to know that the Council will not sit on Friday.

[^Adjourned to to-morrow.']

THIRD DAY.

Thursday, July 17th, 1884.

Mr.ScOBLE. — When your Lordships rose yesterday,! was commenting upon the
operation of the Constitutional Act of 1791, as continuing the Province of Upper
Canada, constituted by that Act, with the same amount of territory as was given
to the western portion of the Province of Quebec under the old description under
the Quebec Act. And before I leave that part of the case, there is one other
document to which I wish to refer your Lordships, and that is the proclamation
of Governor Simcoe, which was published in 1792, consequent upon the promul-
gation of the Constitutional Act. Your Lordships will find that proclamation at
page 403 of the Joint Appendix,* and in that proclamation, after reciting the

* Proclamation of Likutenant-Governob Simooe, dividing Upper Canada into Counties, 1792.
J. Graves Simcoe.

George the Third, by the Grace of God, of Great Britain, France and Ireland, King, Defender of the
Faith, etc., etc. To all our loving subjectH whom these presents may concern :

Whereas, in pursuance of an Act of Pirliament lately made and provided, passed in the thirty-first
year of our reign, and of authority by us given for that purpose, our late Province of Quebec is become
divided into the two Pi evinces of tipper Canada and Lower Canada, and our Lieutenant-Governor of
the said Province of Upper Canada, 1^ power from us derived, is authorized, in the absence of our right
trusty and well-beloved Guy, Lord Dorchester, Captain-General and Governor-in Chief of our said Pro-
vince of Upper Canada, to divide the said Province of Upper Canada into districts, counties, circles or
towns and townships, for the purpose of effectuating the intent of the said Act of Parliament, and to
declare and appoiut the number of representatives to be chosen by each to serve in the Assembly of
the said Province.

Know ye, therefore, that our trusty and well-beloved John Graves Simcoe, Esquire, our Lieutenant-
Governor of our said Province of Upper Canada, in the absence of the said Governor-in-Chief, hath and
by this Our Proclamation doih divide the said Province of Upper Canada into counties, and hath and
doth appoint and declare the number of representatives of them and each of them to be as hereinafter
limited, named, declared, and appointed ; that i« to say : That the first of the said counties be here-
after called by the name of the county of Glengarry, which cour.ty is to be bounded on the east by the
lines that divide Upper from Lower Canada, on the south by the River St. Lawrence, and westerly by
the eatttemmost boundary of the late township of Cornwall, running north twenty-four degrees west
until it intersects the Ottawa or Grand River, thence desceuding the said river until it meets the divi-
sional lines aforesaid ; the said county is to comprehend all the islands in the said River St. Lawrence
nearest to the said sounty, and in the whole or greater part fronting the same. ♦ ♦ ♦

That the seventeenth of the said counties be hereafter called bv the name of the county of Suf-
folk : which county is to be bounded on the east by the county of Norfolk, on the south by Lake Erie,
until it meets the carrying-place from Point au Pins unte the Thames, on the west by the said carry-
ing-place, thence up the said River Thames until it meets the north-westernmost boundary of the county
ofNorfolk.

That the eighteenth of the said counties be hereafter called by the name of the county of Essex,
which county is to be bounded on the east by the county of Suffolk, on the south by Lake Erie, on the
west by the River Detroit to Maisonville's Mill, from thence by a line running parallel to the River
Detroit and Lake St. Clair, at the distance of four miles, until it reaches the River La Tranche or
Thames, thence up the said river to the north-west boundary of the county of Suffolk.

That the nineteenth of the said counties be hereafter called by the name of the county of Kent :
which county is to comprehend all the country, not being territories of the Indians, not already included
in the several counties hereinbefore described, extending northward to the boundary line of Hudson^s
Bay. including all the territory to the westward and soutnward of the said line, to the utmost extent of
the country commodly called or known by the name of Canada. ♦ • ♦

Of which our loving subjects and all others concerned are to take notice and govern themselves
accordingly.

In testimony whereof, we have caused these our letters to be made patent, and the great seal of
our said Province of Upper Canada to be hereunto affixed. Witness our trusty and well-beloved John
Graves Simcoe, Esquire^ our Lieutenant-Governor of our said Province of U[)per Canada, and Colond
commanding our forces m Upper Canada, etc., etc., at our Government House, in the Town of Kingston,
this sixteenth day of July, m the year of Our Lord one thousand seven hundred and ninety-two, ana
in the thirty -second year of our reign.

Wm. Jarvis, Secretary, J. G. S.

128

EXTENT OF UP. CAN. — BEARING OF LIEUT.-GOV. SIMCOE*S PROCLAMATION OF 1792.

^fiect of the Act in dividing the Province into two parts, Upper and Lower
-Canada, it proceeds

— "to divide the said Province of Upper Canada into districts, counties, circles or
townM and townships for the purpose of effectuating the intent of the said Act of Par-
liament, and to declaro and appoint the nuuib«r of npresentatives to be chosen by each
to »erve in the Assembly of the said Province."

The number of the counties apparently constituted by that proclamation
was nineteen, the nineteenth of which is called the county of Kent, and is thus
described :

'^ That the ninetei^nth of the said counties be hereafter called by the name of the
county of Kent, which county is to comprehend all the country, not being territories of
the Indians, not already included in the several counties hereinbefore described,
-extending northward to the boundary line of Hudson's Bay, including all the territory to
the westward and southward of the said line to the utmost extent of the country com-
monly called or known by the name of Canada."

Now, my Lords, that constitution of the county of Kent appears to be
important in two ways. In the first place, there appears to have been certain
territories of the Indians — Indian reserves — which were not intended to be
included in this county for electoral purposes, and the boundary of the county
on the north was taken from Hudson's Bay itself, and westward and southward,
to the utmost extent of the country commonly called or known by the name of
Canada.

The Lord Chancellob. — You will observe that in the Act of 1818,at the bottom
of page 409, there is a reference to an Act of Upper Canada passed in 1798 — that
is six years after this date — for the better division of the province. I referred
to it yesterday, and I find that that contains — it is 38th George III, chapter 5 — a
division into a great number of counties, and the last section, 40, is in these
words :

" That the counties of Essex and Kent, together with so much of this Province as is
not included within any other district thereof, do constitute and form the Western Dis-
trict"

Here, in the proclamation, you have been referring to the eighteenth and
nineteenth counties : are those the two counties of Essex and Kent ?

Mr. ScoBLE. — Yes.

The Lord Chancellor. — In this Act nothing is said that indicates any bound-
ary; but in the proclamation of Lieutenant-Governor Simcoe, there are very
important words indeed : ^

" To comprehend all the country, not being territories of the Indians, not already
included in the several counties hereinbefore described, extending northward to the
boundary line of Hudson's Bay."

You say that " the boundary line of Hudson's Bay " means the sea.

Mr. ScOBLE. — Means the bay itself — the coast of the bay.

The Lord Chancellor. — That appears to me to be a strong proposition from
the words " boundary line."

Mr. SOOBLE. — I apprehend the boundary line of the bay can only be the coast
line of that bay.

The Lord Chancellor. — It does not refer to a natural boundary ; it means a
territory called the Hudson's Bay territory.

The Lord President. — It is an unheard of thing, and, as a geographical
expression, I venture to say, utterly unknown.

9 (B.) 129

ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY :

The Lord Chancellor. — Hudson's Bay territory of course : the words are per-
fectly sensible as applied to it.*

Sir Robert Collier. — You hardly require to take it so high as that.

Mr. ScoBLE. — I require to take it as high as Hudson's Bay on the east.

Sir Robert Collier. — James' Bay ?

Mr. ScoBLE. — That is a portion of Hudson's Bay.

The Lord Chancellor. — That would have no place in the county of Kent
The counties of Kent and Essex are the westernmost part of Canada. f

Mr. ScoBLE. — Under the proclamation, the county of Kent was to include all
the lands of Upper Canada (not being territories of the Indians) outside the
limits of the other counties, and extending to the most northerly and most west-
erly bounds of the province. But it is quite sufficient for my purpose if your.
Lordships should take it in that way.

Lord Aberdare. — You still leave undefined what is the limit of Hudson's
Bay.

Mr. ScoBLE. — Ves. Of course, what I am most concerned about now is the
western and southern portion of the district.

Sir Robert Collier. — In one respect it does go up to Hudson's Bay ; it
reaches James' Bay, which is part of it.

Mr. ScoBLE. — Yes, of course. Then, my Lords, that is all I think I need trouble
your Lordships with, with regard to the arrangement of 1791, and I now must
go back to the state of things established by the Quebec Act of 1774.

The Quebec Act is printed at page 366 of the Joint Appendix, and the
preamble recites a royal proclamation of the seventh of October, in the third
year of the reign of His Majesty King George III — that is 1763 — whereby His
Majesty

— " thought fit to declare the provisions which had been made in respect of certain
countries, territories and islands in America, ceded to His Majesty by the definitive Treaty
of Peace, concluded at Paris on the tenth day of February, 1763 " —

Your Lordships will see that the preamble goes on to state :

** And whereas by the arrangements made by the said royal proclamation, a very large
extent of country, within which there were several colonies and settlements of the sub-
jects of France, who claimed to remain therein under the faith of the said treaty, was
left without any provision being made for the administration of civil government therein."

I shall presently have to call your Lordships' attention to the districts which
were there referred to. Then comes a recital as to sedentary fisheries which is
unnecessary to be dwelt upon, and then the enacting part goes on to declare —

"That all the territories, islands and countries in North America, belonging to the Crown
of Great Britain, bounded on the south by a line from the Bay of Chaleurs, along the
high lands which divide the rivers that empty themselves into the River St. Lawrence
from those which fall into the sea, to a point in forty-five decrees of northern latitude,
on the eastern bank of the River Connecticut, keeping the same latitude directly west
through the Lake Champlain, until, in the same latitude, it meets the River St. Lawrence ;
from thence up the eastern bank of the said river to the Lake Ontario ; thence through
the Lake Ontario and the river commonly called Niagara ; and thence along by the east-
ern and south-eastern bank of Lake £rip, following the said bank until the same shall be
intersected by the northern boundary granted by the charter of the Province of Pennsyl-

* The words " boundary line of Hudson's Bay," appearing in the orders in council, and commission,
of 1791, and in the proclamations of 1791 and 1792, and continuing in the Governors' commissions up to
1S36, were chanfired in the subsequent commissions to the Grovemors— from 183S to 1S46 — to the words,
"shore of Hudson's Bay," thus indicating the true interpretation of the exprepsion used in the earlier
documents. The arbitrators in their award gave effect to this view, and their lordships in the end adopted it,

t The easterly boundary line of the counties of Essex and Kent, or either of them, as then oonsti*
tuted, produced northerly, would intersect the shore line of the Bay.

130

THE WESTERN BOUNDARY — BEARING OF THE ACT OF 1774 AND THE TREATY OF 1763^

vania, in case the same shall be so intersected, and from thence along the said northern
and western boundaries of the said province, until the said western boundary strike the
Ohio ; but in case the said bank of the said lake shall not be found to be so intfrsected,
til* n following the said bank until it shall arrive at that point of the 8ai<l bank which
kH li he nearest to the north-western angle of the said Province of Pennsylvania, and
thence, by a jight line, to the said north-western angle of the said province, and thence
along the westerri boundary of the said province until it strike the River Ohio ; and along^
the bank of the baid river, westward, to the banks of the Mississippi.'*

Now, my Lords, until we come to the point where the boundary strikes the
River Ohio, the long description that I have read refers only to the southern
boundary of the province. The western boundary is commenced to be described
from the point at which the Mississippi and the Ohio meet, and then

— *' along the bank of the said river, westward, to the banks of the Mississippi, and
northward to the southern boundary of the territory granted to the Merchants
Adventurers of England trading to Hudson's Bay."

Now, if } our Lordships look at the map which you have before you, vou
will find that the country between the Ohio and the Mississippi is a sort of trian-
gular space, which appears to have been known in those days by the name of
the Country of the Illinois, and my contention is that as that Country of the
Illinois wa,s entirely ceded to Great Britain by the Treaty of Paris, it must be
taken to be dealt with by this Act. The boundary of it will be, on the one side,
the banks of the Ohio, and, on the other side, the banks of the Mississippi; and I
apprehend the banks of the Mississippi would have to be followed as far as they
extended, until they reached the sources of that river.

The Lord Chancellor. — That bank is expressed in the commission.f

Mr. ScoBLEi—Yes; and it follows as a matter of necessary inference from
the terms of the Treaty of Paris, which this Act of Parliameot is intended to
carry out.

I will refer your Lordships now to the Treaty of Paris, and perhaps it
will be convenient at this point, before coming to the northern boundary, to
deal only with the Act and Treaty, so far as the western boundary is concerned.
The Treaty of Paris is printed at page 530 of the Joint Appendix.*

Lord Aberdare. — It is a fact, I think, that at this time the sources of the
Mississippi were not known.

Mr. ScoBLE. — I will give your Lordships authority for that in a moment. —
Article 4 of the treaty renouncfs all the pretensions of the French to Nova
Scotia or Acadia, and at the top of page 531 your Lordships will find these words :

"His Most Christian Majesty renounces all pretensions which he has heretofore formed,
or might form, to Nova Scotia or Acadia, in all its parts, and guarantees the whole of it,
with all its dependencies, to the King of Great Britain ; moreover his Most Christian
Majesty cedes and guarantees to his said Britannic Majesty, in full right, Canada, with all
its dependencies ; as well as the Island of Oape Breton and all the other islands and
coasts in the Gulf and River St. Lawrence, and in general everything that depends on
the said countries, lands, islands and coasts, with the sovereignty, property, possession and
all ri((ht8, acquired by treaty or otherwise, which the Most Christian King and the Crown
of France have had till now over the said countries, islands, lands, places, coasts, and their
inhabitants, so that the Most Christian King cedes and makes over the whole to the said
King, and to the Crown of Great Britain, and that in the most ample form, without res-
triction, and without any liberty to depart from the said cession and guarantee under any
pretence, or to disturb Great Britain in the po^sesisions above mentioned."

Then the seventh article, I think, becomes very important on the point I am
now addressing myself to :

^Articles 4 and 7 of this Treaty are printed ante^ p. 36, note.
tThe commission to Sir Guy Garleton, of 1774.

131

ARGUMENT OF MR. SCOBLE, Q.(:., Te QUESTION OF BOUNDARY :

" In order to re-establish peace on solid and durable foundations, and to remove for
ever all subjects of dispute. with regard to the limits of the British and the French
territories on the continent of America, it is agreed that for the future the confines
between the dominions of His Britannic Majesty and those of His Most Christian
Majesty in that part of the world, shall be tixed irrevocably by a line dr^wn along
the middle of the River Mississippi from its source to the River Iberville." —

The Lord Chancellor. — Where is the River Iberville ?
Mr. ScoBLE. — It is down south, near New Orleans :

— " and from thence by a line drawn along the middle of this river, and the Lake®
Maurepas and Pontchartrain to the sea."

Now, my Lords, the fixing of this line of boundary between the French and
English possessions in America, from the source of the Mississippi south, extended,
I submit, the British possessions ceded by the treaty to the whole of the French
possessions which were on the east side of the River Mississippi, from its source
southwards, and included therefore, as your Lordships I think will not be asked
to doubt by my learned friends, this Country of the Illinois — this triangular bit
of country between the two rivers, the Ohio and Mississippi.

Sir Robert Collier. — Is it called Illinois in the map ?

Lord Aberdare. — There is a bit called Illinois, but the fact is that the
Illinois is a very large district.

Mr. McCarthy. — I think it is marked on the map.

Mr. Scoble. — I will shew your Lordships presently, the boundary of the
Illinois as given at the time by the authorities.

Lord Aberdare. — Does anything turn upon it ?

Mr. ScoBLE. — I do not think much turns upon it. I do not think it will be
contested that the Illinois country was part of the country ceded to Great Britain
by the Treaty of Paris.

Mr. McCarthy. — There is no doubt about that.

The Lord Chancellor. — Your argument is this, that the boundary line of
Canada, under the Quebec Act, runs up the Mississippi, otherwise there would
have been part of the British possessions omitted, and not included either in
Canada or in any of the States ?

Mr. Scoble. — Yes, a part would have been left entirely out.

The Lord Chancellor. — And that argument is supported by the express
terms of Sir Guy Carleton*s commission ?

Mr. ScoBLE. — It is.

The Lord Chancellor. — And as you say, it is perfectly consistent with a
reasonable interpretation of the Quebec Act itself?

Mr. Scoble. — Quite so ; that is my whole argument on the point. The
proclamation,* as your Lordships may remember, that is printed at page 351

•Royal Proclamation of 1763, establishing Quebec and other Provinces.
Oeorgb R.

Whereas we have taken into our royal consideration the extensive and valuable acquisitions in
America, secured to our Crown by the late definitive treaty of peace, concluded at Paris the lOth day
of February last; and being desirous that all our loving subject!*, as well of t>ur kingdoms as of our
colonies in America, may avail themselves, with all convenient speed, of the ^reat benefits and advao-
toges which must accrue therefrom to their commerce, manufactures and navigation, we have thought
fit, with the advice of our Privy Council, to issue this our Royal Proclamation, hereby to publish and
declare to all our loving subjects that we have, with the advice of our said Privy Council, granted our
letters patent under our j^reat seal of Great Britain, to erect within the countries and islands ceded and
confirmed to us bv the said treaty, four distinct and separate (governments, styled and called by the names
of Quebec, East Florida, West Florida, and Grenada, and limited and bounded as follows, vir. :

First, The government of Quebec, bounded on the Labrador coast by the River St. John, and from
thence by a line drawn from the head of that river, throug^h the Lake St. John, to the south end of the
Lake Nipissim ; from whence the said line, crossingr the River St. Lawrence and the Lake Champlun in
f orty-five degrees north latitude, passes along the high lands which divide the rivers that empty themselvea
into the said River St. Lawrence from those which fall into the sea ; and also along the north coast of Uie

132

THE ROTAL PROCLAMATION OF 1763.

of the Joint Appendix, dealing with the whole territory ceded by this treaty^
divides the newly acquired country into various provinces — the government of
Quebec, the government of East Florida, the government of West Florida, and
the government *of Grenada. The government of Quebec, the first of these four^
is defined at page 352 to be bounded in this way :

** The govemment of Quebec, bounded on the Labrador coast by the River St. John,
and from thence by a line drawn from the head of that river through tlie Lake St John
to the south end of the Lake Nipissim, from whence the said line, crossing the River
St. Lawrence and the Lake Obamplain in forty-five degrees north latitude, passes along
the high land^ which divide the rivers that empty themselves into the said River St.
Lawrence from those which fall into the sea ; and also along the north coast of the Baye
des Chaleurs, and the coast of the Gulf of St. Lawrence, to Cape Ko&iers, and from thence
crossing the mouth of the River St. Lawrence by the west end of the Island of Anticosti,
terminates at the aforesaid River St John."

The Lord Chancellor. — That tells us nothing about the western boundary T
Mr. ScoBLE. — No, it tells us nothing about the western boundary, and it wa&
because the territory contained in the proclamation, or ascribed by the proclama-
tion to the govemment of Quebec, omitted a great deal of territory for which it
was necessary to provide a civil government, that the Quebec Act was passed,.

Baye des Chaleurs, and the coast of the Gulf of St. Lawrence to Cape Rosiers, and from thence crossing the
mouth of the River St. Lawrence by the west end of the Island of Anticosti, terminates at the aforesud
River St. John.

Secondly, Tlie govemment of East Florida, bounded to the westward by the Gulf of Mexico and the
Apalachicola River ; to the northward by a line drawn from that part of the said river where the Catahouchee
and Flint RiverH meet, to the source of St. Mary's River, and by the course of the said river to the Atlantic
Ocean ; and to the east and south by the Atlanta? Ocean and the Gulf of Florida, including all the islands
within six leagues of the sea coast.

Thirdly, The {government of West Florida, bounded to the southward bv the Oulf of Mexico, including
ftU islands within six leagues of the coast, from the River Apalachicola to Lake Pontchartrain ; to the west-
ward by the said lake, the Lake Maurepas, and the River Mississippi ; to the northward by a line drawn
east from that part of the River Mississippi which lies in thirty-one degrees of north latitude, to the River
Apalachicola, or Catahouchee ; and to tne eastward by the said river.

Fourthly, The govemment of Grenada, comprehending the island of that name, together with the
Grenadines, and the Islands of Dominica, St. Vincent and Tobago.

And to the end that the open and free fishery of our subjects may be extended to, and carried on upon,
the coast of Labrador and the adjacent islands, we have thought fit, with the advice of our said Privy Council,
to pat all that coast, from the River St. John's to Hudson's Straits, together with the Islands of Antico-ti
and Madelaine, and all smaller islands lying upon the said coast, under the care and inspection of our
Governor of Newfoundland.

We have also, with the advice of our Privy Council, thought fit to annex the Islands of St. John
and Cape Breton, or Isle Royale, with the lesser islands adjacent thereto, to our government of Nova
Scotia.

We have abo, with the advice of our Privy Council aforesaid, annexed to our Province of Georgia all
the lands lying between the Rivers Altamaha and St. Mary's. ♦ ♦ ♦

And whereas it is just and reasonable, and essential to our interest, and the security of our colonies,
that the several nations or tribes of Indians, with whom we are connect^, and who live under our protec-
^ tion. should not be molested or disturbed in the possession of such parts of our dominions and territories as,
not having been ceded to us, are reserved to them, or any of them, as their hunting grounds ; we do there-
ore, with the advice of our Privy Council, declare it to be our royal will and pleasure, that no governor or
commander-in-chief in any of our colonies of Quebec, East Florida or West Florida, do presume, upon any
pretence whatever, to (rrant warrants of survey, or paxs any patents, for lands beyond the bounds of their
respective governments, as described in their commissions ; as also that no governor or commander-in-chief
of our other colonies or plantations in America do presume, for the present, and until our further pleasure
h« known, to grant warrants of survey, or pass patents, for any lands beyond the heads or sources of any of
the rivers which fall into the Atlantic Ocean from the west or north-west, or upon any lands whatever,
^bicb, not having been ceded to or purchased by us as aforesaid, are reserved to the said Indians or any of
them.

And we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve
under oar sovereignty, protection, and dominion, for the use of the said Indians, all the lands and terri-
tories not included witnm the limits of our said three new governments, or within the limits of the territory
8ff»ited to the Hudson's Bay Company ; as also all the land and territories lying to the westward of the
^ourceg of the rivers which fall into the sea from the west and north-west as aforesaid ; and we do heieby
atnctly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements
whatsoever, or taking possession of any of the lands above reserved, without our especial leave or license for
thatpurpose first obtained. » # « ♦

Given at our Court at St. James'i, the 7th day of October, 1763, in the third year of our reign.

[By Imp. Act, 14 Geo. 3, cap. 83, sec. 4, (the Quebec Act, 1774), the above proclamation, " so far as th»T
J^nae nslates to the said Province of Quebec," was ** revoked, annulled, and made void, from and after th
first day of May, one thousand seven hundred and seventy-five. "]

133

ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY;

extending those boundaries and supplying the civil government for all the sub-
jects of the French who had become our subjects in consequence of the treaty,
and who were residing in the district which is there described as "a very large
extent of country, within which there were several col(»nies and settlements of
the subjects of France;" and that district then unquestionably included the Illinois
country.

Sir Robert Collier. — And part of the Illinois country is to the west of the
line.

Mr. ScoBLE. — Now, my Lords, if the contention of the other side be true,
that the western boundary is a line drawn due north from the confluence of the
•Ohio and Mississippi, you have the Illinois country cut in two. Those who were
to the east got civil government ; those to the west got no civil government at
all. You have, therefore, the very mischief the Act intended to remove
perpetuated by this construction of it, which I submit is neither a necessary
construction, nor a reasonable construction, nor one which is consistent in any
way with the circumstances under which the Act was passed.

Now, my Lords, if I am right in this contention 'ss to the western boundary,
it carries me this far at least, that on the west at any rate, the province of
Quebec extended up to the source of the Mississippi. As far as the source of
the Mississippi at all events, you have, tixed by the Treaty, and by the Act of
Parliament, a boundary which was the natural boundary furnished by that great
river ; and Governor Carleton's commission, as the Lord Chancellor has already
pointed out, gives that effect to the Act. In fact, every contemporary document
gives that effect to the Act. Amongst the subsidiary commissions which were
issued by the King to the Lieutenant-Governors of certain outlying posts of the
Province of Quebec, we have a commission given to the Lieutenant-Governor of
the Illinois country, at page 883.* It is the third commission on that page.
It is dated the seventh April, 1775, and is addre«ssed to Matthew Johnson, Esquire,
Lieutenant-Governor and Superintendent at the Illinois :

'* We, reposing especial trust and confidence in your loyalty, integrity and ability, do,
by these presents, constitute and appoint you to be Lieutenant-Governor and Superintendent
of the Post, and its Dependencies, established, or to be established, within the Illinois
District, in our Province of Quebec."

I do not know whether it will be necessary for me to trouble your Lordships
with any evidence as to the position of the posts in the Illinois district which
were placed under the government of Mr. Johnson by this commission ; but if
necessary, I can shew to your Lordships that many of these posts were on the
west aide of this due north line for which my learned friend on the other side
contends.

Sir Robert Collier. — There are some marked here, I see.

Mr. ScoBLE. — There is no doubt about it — I do not think it will be contested
by my opponents — that there were posts and settlements in the Illinois country to
the west of this due north line contended for on the other side, and, therefore, I
do not think I need trouble your Lordships further with that.

*Georgb thr Third, btc.

To our trusty and well-beloved Matthew Johnson, Esquire, ^rreeting :

We, reposing especial trust and confidence in your loyalty, integrity and ability, do, by these presents,
constitute and appoint you to be Lieutenant-Governor and Superintendent of the Post, and its Dep>endencies,
established, or to be established, within the Illinois District, in Our Province of C^uebec, in America : To
have, hold, exercise and enjoy the bame, from and after the first day of May next, during our pleasure,
with all the rights, privileges, profits, perquisites and advantages to the same belonging or appertaining:
And you are to obey such orders and directions as you shall, from time to time receive from Oar Captnin-
General and Governor-in-Chief of Our Province of Quebec, or from the Lieutenant-Governor or Commander-
in-Chief of Our said Province for the time being.

Given at Our Court at St. James's, the seventh day of April, 1775, in the fifteenth year of Our Reign.

By His Majesty's command,

Dartmoxtth,
134

THE MISSISSIPPI — ITS REMOTEST SOURCES — ERRORS OF THE OLD GEOGRAPHERS.

Here we have it perfectly clear, as I submit, on the right construction of the
statute, and having regard to the whole of the circumstances which attended the
constitution of this Province of Quebec, the line of the Mississippi established as
the western boundary of the Province of Quebec, so far as it went.

Now, my Lords, with regard to the point as to what knowledge at that time
was possessed with reference to the sources of the Mississippi, your Lordships,
yesterday, noted upon Mitchell's map, when it was produced —

Sir Robert Collier. — Do you remember the date of it ?

Mr. ScoBLE. — 1755.

The Lord Chancellor. — That is a date which is different from the date
which I have got on my notes ?

Mr. ScoBLE. — My friend Mr. Robinson says it is 1755.

Mr. Robinson. — Yes, my Lord, that is correct.

Mr. ScoBLE. — I am sorry to say, my Lord, I have not seen that map, and
therefore I am speaking only from my recollection of the impression which your
Lordships seemed to derive from it, that the source of the Mississippi as shewn
on that map is to be the north of the north-western angle of the Lake of the
Woods.

The Lord Chancellor — I do not remember that. What I do remember is
that the northern boundary is shewn to be the whole of the lakes and river,
which seems to me to be, though it may not be laid down iu exactly the same
way, to the north of the Lake of the Woods.

Sir Robert Collier. — It lays down Canada, which is coloured brown, as
going as far as the T^ake of the Woods ?

Mr. ScoBLE. — Yes, my Lord.

The Lord Chancellor. — There is a point which at present we have heard
nothing about, and that is the drawing of the western line, which the award
seems to have done trom Lake Itasca, which seems to be one of the sources of the
Mississippi, though not apparently the northernmost source ?

Mr. Scoble. — That is a point to which I am coming, but I wish first of all
to give your Lordships authority for the statement which I made just now in
answer to Lord Aberdare, that at that time, in the then condition of geographical
knowledge, the source of the Mississippi was unknown, and that it was supposed
to be very far more north than where it actually is. Now, in the Ontario
Appendix, page 56, there is a report of Mr. Thompson, who was astronomer
and surveyor to the North- West Company, and who seems to have travelled
over this country with a view of settling the boundary, in the year 1796, at the
time when the question of the boundary between the British dominions in
America and the United States was under discussion. At line 20, the report
states :

" The services of Mr. Thompson were very acceptable to these gentlemen, that is, to
the Agents of the North- West Company in those parts. They desired to learn the
position of their trading houses with respect to one another and also to the . . bound-
ary line between Canada and the United States. . . The source of the Mississippi
was then known only to the Indians and a few fur traders, and was supposed to be
further north than the Lake of the Woods."

Lord Aberdare. — And it was supposed to be westward from it apparently,
from the description of it given in one of these documents which we have had ?

Mr. Scoble. — Yes, my Lord, I have heard — I do not know of ray own
knowledge whether it is so, but I have heard, and I think one of your Lordships
made the observation — that in that map of Mitchell's, which is really a very
important map historically, because it was the only map before the English and

135

ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARr:

American plenipotentiaries when the Treaty of Versailles was ne^otiated^
the source of the Mississippi is taken to be north of this north-west angle of the
Lake of the Woods.

The Lord Chancellor. — Bow does the map appear to be dated 1756 ? It
was supposed to be dated 1783, or earlier, from which I inferred that the date
was uncertain ?

Mr. ScoBLE. — My learned friend, Mr. Robinson, tells me that the date is ott.
the map.

Mr. Robinson. — Yes, the date is on the map.

Sir Robert Collier. — It is said to be 1755.

Mr. McCarthy. — [After referring to the map] It is dated 1755.

The Lord Chancellor. — Then that becomes a very important map.

Mr. ScoBLE. — Yes, my Lord. Then at page 62 of the same report, your Lord-
ships will find, in the last paragraph on that page, a statement of the origin of
the Mississippi River, in Turtle Lake :*

*' Turtle Lake, the head of the Mississippi River, is about four miles square. Ita
small bays give it the shape of a turtle. This lake was supposed in 1783, to be further
north than the north-west corner of the Lake of the Woods, and this supposition led to
the error in the treaty of that year. The error arose from fhe fur traders who ascended
the Upper Mississippi counting every pipe a league, at the end of which it was the habit
to take a rest. Mr. Thompson found these pipe distances to be as unsubstantial as the
smoke itself, and that each, instead of three, only measured two miles And the error
was, not to make due allowance for the sinuosities of the river. By this false method of
reckoning the notion had arisen that the head waters of the Mississippi were 128 geo-
graphical miles farther north than Mr. Thompson's survey proved them to be. The
north bank of the. lake is in latitude 47'' 38' 20^"

and so on.

Lord Aberdare. — Where is Turtle Lake ?

Mr. ScoBLE. — It is shewn on the map.

The Lord Chancellor. — It is a very small lake.

Lord Aberdare. — Turtle Lake is the northernmost source of the Mississippi,
as Itasca is the furthest point from which it draws its supplies.

Mr. ScoBLE. — I think so, my Lord.

The Lord President. — It is the point furthest north.

Mr. ScoBLE. — The fact of the ignorance which prevailed as to the extent of
the Mississippi River is, I think, somewhat important with regard to this enquiry,
because, as the King of France ceded to England all the country east of the
Mississippi, from the source of that river down to the sea on the south, I
apprehend that the boundary line of Canada, at the time of the treaty, and at
the time of the Quebec Act, was supposed to go very considerably north of the
Lake of the Woods, and that when you got to the source of the Mississippi River,
continuing the western boundary, you would have to take, as that continued
boundary, whatever was the dividing line on the north between Louisiana, which
remained to the French under the Treaty of Paris, and Canada, which by the
treaty was ceded to England, and that therefore the true western boundary of
Canada, as defined by the treaty and the Act of Parliament, was a line which
extended along the banks of the Mississippi to the source of that river, and then
followed westerly whatever was at that time the dividing line between Canada
and Louisiana.

But before I leave this point, of the due north line taken from the confluence
of the Mississippi and Ohio rivers up across the American boundary into Canada^
I think I may here conveniently refer, although I shall not do so at any length,

*3ee ante, p. 39, note.

136

EXTENT OF THE FRENCH POSSESSION — JUDGMENT IN CONNOLLY V, WOOLRICH.

to the state of the judicial decisions on the subject in Canada. Your lordships
have already heard, J think, so much about Reinhard's case, that it is not
necessary for me to go over the facts of that case again. I think my learned
friends are entitled to whatever the value of the. decision of the judge in that
case may be; but I think I ought to mention here that that case has not
been followed even by the courts of Lower Canada. There is a judgment of
Mr. Justice Monk in a case of ConiioUy v. Woolrichy which is at page 687 of
the Joint Appendix.* Mr. Justice Monk was a Lower Canada judge. He
was a Justice of the Superior Court of the Province of Quebec. It is a com-
paratively recent judgment, and was delivered on the 9th of July, 1867. The
question was as to the legality of the marriage of a Lower Canadian at Rat River,
in the Athabasca district (latitude 58^ north, and 111*^ west longitude). One of
the points in the case was whether the place was within the territory of the
Hudson's Bay Company, and the learned judge, after going through a very careful
investigation of the authorities upon the point, held that this Athabasca country
was not included in the limits of the Hudson's Bay Company, but belonged to the
Crown of France, because, he says, " it appears to me to be beyond controversy" —

Sir Montague Smith. — Where are you reading ?

Mr. ScoBLE. — Page 691, at the foot, is the passage which I am reading. I
do not propose to trouble your Lordships with the whole of the judgment, but
merely to give your Lordships the effect of it. He says that this Athabasca is
part of this north-western territory, beyond the limits given us by the award.

The Lord Chancellor. — Athabasca is a good deal to the north-west.

Mr. ScoBLE. — Yes.

Lord Aberdare. — And in another water system ?

Mr. Scoble.— Yes, but still, according to the judgment, it was included
within the limits of Canada, and not within the territories granted to the
Hudson's Bay Company.

The Lord Chancellor. — What do you say — that Athabasca is within the
the limits of Canada ?

Mr. ScoBLE. — Yes, my Lord.

The Lord Chancellor. — That would be, so far as it goes, fatal to the minor
argument which you were going to put forward to me.

Lord Aberdare. — That is to say, within the territory of the Dominion ; not
necessarily within the territory of old Canada, but within the territory of the
Dominion of Canada, out of which Athabasca has been carved as a District ?

Mr. ScoBLE. — Within the territory of French Canada, and therefore excluded
from the Hudson's Bay Company's charter.

The Lord Chancellor. — It is impossible for it to have been in old Canada,
for Rupert's Land comes between ?

Lord Aberdare. — Yes, quite impossible.

Mr. SCOBLK. — But it is held to be within Canada, because it belonged to the
Crown of France, and France was in possession of all the intervening territory,
to the exclusion of the Hudson's Bay Company ?

The Lord Chancellor. — Where is this place ?

Mr. ScOBLE. — It would be somewhere about here [^pointiny on the map].

The Lord Chancellor. — The learned judge seems to have taken a view
which IS in accordance with the widest argument which you submit to us ?

Mr. ScOBLE. — Yes, in accordance with the widest possible argument. I refer
to that, not so much as beincr in any way conclusive upon the point, although the
learned judge did consider Reinhard's case in delivering his judgment here, but as

*Reix)rted in Lower Canada Jurist, vol. xi., p. 197

137

ARGUMENT OF MR. SCOBLF, Q.C., re QUESTION OF BOUNDARY :

shewing that there is no consensus of judicial opinion in Canada in favour of
this due north line, but (hat there is a good deal of authority on the other side,
giving the whole of this country to Canada, under the Treaty of Paris, and under
the Quebec Act.

The Lord Chancellor. — What strikes me at present, about this particular
decision, is that Athaba^^ca would not fall within the line in any conceivable con-
struction of the limit in the Quebec Act. If you take the line from the conjunc-
tion of the Ohio and Mississippi, of course Athabasca would be a great deal
further to the west ?

Mr. ScoBLE. — Yes, my Lord. ,

The Lord Chancellor. — If you take the line of the award, that also would
strike Hudson's Bay much to the east of the Athabasca country ?

Mr. ScoBiE. — Yes, my Lord.

The Lord Chancellor. — And the consequence is, that on no possible
hypothesis can such a notion be reconciled with the boundaries in the Quebec
Act?

Mr. ScoBLE. — Except on the assumption that the intention of the Quebec
4:Ct was to include in the Province of Quebec the whole of the territory which is
ceded by the Crown of France ; and the whole of the French posts and settle-
ments referred to in the preamble of that Act, and w^hich extended to the base of
the l^>cky Mountains.

The Lord Chancellor.— How can you go against the express terms of the
Quebec Act, which beyond all doubt point out the boundaries ? And even if you
take the mention of the Hudson's Bay territory as carryini^ you up to the shores
of Hudson's Bay, that would still exclude this Athabasca territory. It is
impos.sible to suppose that this judgment could have meant that.

Lord AberdaRE. — And all, 1 believe, that was claimed by the Hudson's Bay
Company, were the sources of the rivers which flowed into Hudson's Bay ?

Mr. Scoble. — Tht^y went down to the 49th parallel at one time, my Lord,
the boundary line between Carada and the United States.

Lord Aberdare. — You mean that they passed over the dividing ridge ?

Mr. Scobl-e. — Yes, my Lord ; they varied their claims at various times in
ordei- to su't the exijnrencies of their position, and at one time they went down as
far as the 49th ] arallel.

There is another opinion, of an Upper Canada judge, which is perhaps
not of much more value than either Chief Justice Se well's judgment in the
Reinhard case, or Mr. Justice Monk's judgment, which is the opinion of
Mr. Justice Powell, at page 151 of the Ontario Appendix,* the smaller book,

* Chirp Justicb Powell, op Upper Canada, to Lieutenant-Govkrnor Maitland.

York, May 1st, 1819.

SiR,—I have perused with a lively interest the copy of a letter from the Earl of Selkirk to the Earl of
Liverpool, dated in Grosvenor Place, the 8th of Febiuary last, and beg leave to express my grateful acknow-
ledgement to your Excellency for the communication. On the subject of the bill passed in the last session
of the Provincial Legislature, his Lordship has not only handed unfounded surmises, but has advanced as
fflct that which is not true. He is pleased to say that the Act of the 31st of the King, cap. 31, divided the
Province of Quebec, and makes no alteration in the western limits established by the 14th Geo. III., cap.
83. The Canida bill does not divide the Province of Quebec ; it premises that it was His Majesty's inten-
tion to divide that province into two provinces to be called Upi-er and Lower Canada, and makes provision
for their government when sn divided. His Majesty, by his Order in Council, subseouent to the passing
the Act, did accordingly separate the Province of Quebec into Upper and Lower Canada, and d«>es make a
great alt*»ration in the western limits from those established by the 14th of the King, extending them west-
ward without reference to the limits of Quebec, in such terms as plainly indicate the intention to compre-
hend all the country conquered from France, under the name of Canada, which had not been relinquished
to the United States of America, or secured to the Hudson's Bay Company, or designated as Lower
Canada.

Earl Selkirk is pleased to say that the Chief Justice of Upper Canada declared that his iuriadiction
extended to the Pacific Ocean ; his Lordship must have been misinformed ; I never did pretend to pro-

138

EXTENT OF UPPER CANADA — OPINION OF CHIEF JUSTICE POWELL, 1819.

in which, in reference to the controversy which was pending in the year 1819,
between Lord Selkirk's partizans and the Canadian authorities, he expresses his
opinion in a letter to Lieutenant-Governor Maitiand.

The Lord Uhancellok. — This is not even a judicial opinion ?

Mr. Scoble. — It is not a judgment, but he was called to account by Lord
Selkirk in a letter to the English government, as to certain expressions which
Chief Justice Powell was alleged to have used, and then he was required to
explain, and he does explaiu. He says that the inteation — your Lordships will
find it about liae 15 — of the j^overriment in separating the Province of Quebec
was to extend the western limits of Upper Canada —

— " without reference to the limits of Quebec, in such tprms as plainly indicate the
intention to comprehend all the country conquered from France under the name of
Canada, which had not been relinquished to the United States of America, or secured to
the Hudson's Bay vjompany, or designated as Lower Canada/'

The Lord Chancellor. — Do you mean to suggest that the opinion expressed
in this letter of Chief Justice Powell is to weigh with us without our considering
the grounds of it ?

Mr. ScoBLE. — I mean only this, that De Reinhard's case will no doubt be
relied on by the other side in favour of the contention that the due north lino
ought to be varied from the confluence of the Ohio and Mississippi,and I only cite
this as —

Sir Montague Smith. — As a counterpoise ?

Mr. Scoble. — As shewing that there is no a^jreeraent of judicial authorities
as to that contention.

The Lord Chancellor. — What strikes me is that this passage in the letter
is a reference to a particular Order in Council, the terms of which he says plainly
indicate a certain intention. I suppose we have got the Order in Council ?

Mr. Scoble. — Yes, my Lord, we have.

The Lord Chancellor. — I think we should see whether the terms of it bear
out that contention, and if so how it bears on this controversy ?

Mr. Scoble. — That, my Lord, would be the Order in Council of 1791, which
yon have already had before you.

The Lord Chancellor. — We have seen that, and we have seen plainly that
there is nothing whatever in it about the westward boundary ?

Mr. Scoble — Nothing definitely marking the western boundary, but it
contains the declaration that the easterly boundary of Upper Canada was to run
northward "to the boundary line of Hudson's Bay," and that that Province was
to include " all the territory to the southward and westward of the said line, to
the utmost extent of the country commonly called or known by the name of
Canada."

Of course I do not suppose your Lordships would be influenced one way or
Another by these opinions. I cite them merely for the purpose of shewing that
there has been no consensus of judicial opinion in Canada on this point. Some
of the judges have taken one view and some another view, and I submit, as far
as any judicial authority is concerned, that the authority of Chief Justice SewelFs

nounoe the extent of Upper Canada, but did deem it resp«3cttul to pause, when a deliberate act of the King
in 0«»nncil, contemplatea and referred to by Parliament, was set at nought by a Provincial Majfistrate.

The Earl of Selkirk alluded to legal opinions of the first authority on the jurisdiction of the officers of
the Hudson's Bay Company over offences and oflfenders within ita territory. The Chief Justice of Upoer
Canada has been taught to consider the Parliament of the United Kingdom to be the highest legal authority,
and its Act, 43rd of the King, gives jurisdiction over offences committed in the territory of Hudson's Bay to
the courts of Lower Canada as occasion may require. ♦ ♦ ♦

I have the honor to be, etc.,

His Excellency Sir Peregrine Maitiand. William Dummer Powell.

139

ARGUMEKT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY:

judgment in the Reinhard case is entirely done away with by a reference to the
words of the Act, and to the words of treaty upon which the Act was passed,
and that the Mississippi, as far as it goes, must be taken to be the line which fixes
the western boundary of the Province of Upper Canada.

Well, my Lords, I think that that would be enough to support the award*
If it is presumed, and it was presumed that the rise of the Mississippi was con-
siderably north of the point at which it actually does take its rise — considerably
north, that is, of the Turtle and Itasca lakes, and considerably north also of the
Lake of the Woods — that would carry us, as far as the first natural boundary at
all events is concerned, to the English River, which is the boundary given by the
award.

The Lord Chanckllgr. — At present the only evidence as to that boundary
— the northern bdundary of the award — which we have heard is Mitchell's map.

Mr. ScoBLE. — There is other evidence, my Lord. There is a despatch of
Lord Shelburne to Lieutenant-Governor Carleton of Quebec, in the supplemen-
tary appendix of the Province of Ontario, printed at page 1, dated on the 14rth
November, 1767: "Instructions of the Imperial Government as to explorations
of the territories to the westward of Lake Superior, and of certain northern
territories, as distinguished from the territories comprised in the Hudson's Bay
Company's charter," which I think is of importance on this view of the western
boundary. The last paragraph is :

'* As an accurate knowledge of the interior parts of North America would contribute
much towards enabling his Majesty's ministers to judge soundly of the true interests of
the different provinces, I cannot too strongly recommend to you the encouraging such
adventurers as are willing to explore those parts which have not hitherto been much
frequented, and consequently are scarcely, it at all, known, particularly towards the
territories comprised in the charter [of the Hudson's Bay Company north*] of the Hudson's
Bay Company, northward, and the country beyond the Lake Superior, westward."

The Lord Chancellor.— What is the meaning of that ?

Mr. ScOBLE. — I do not know whether it is a misprint or not.

The Lord Chancellor. — " North of the Hudson's Bay Company " — it can-
not mean that.

Mr. ScoBLE. — I cannot understand it. If it is correctly printed, I cannot
understand what it means —

— " the territories comprised in the charter of the Hudson's Bay Company north of
the Hudson's Bay Company, northward," —

The Lord Chancellor. — What do you refer to the passage for ?

Mr. ScoBLE. — I refer to it to shew that as far as the English authorities^
were concerned it was terra incognita^ though certainly not so far as the French
were concerned. Then the words to which I particularly refer are, " and the
country beyond the Lake Superior, westward." Now, my Lord, that country
" beyond the Lake Superior, westward/' would certainly not be included within
the territory granted to the Hudson's Bay Company by charter. It was in the
contemplation of the government at that time, four years after the treaty, that
there was territory beyond Lake Superior, westwards, which passed to England
under that treaty, and which was not included within the territory of the
Hudson's Bay Company.

The Lord Chancellor. — How does that appear from the context ? It may

*The words which we have put within brackets are in the copy furnished by the Public Record
OflBce, but are manifestly inserted in error, probably in copying into the Register Book. It would seem to
be a case of inadvertent repetition, and that the true reading is : *' particularly towards the territories com-
prised in the charter of the Hudson's Bay Company, northward, and the country beyond the Lake Superior,,
westward." — Public Record Office —Colonial Correspondence, Canada {Quchec^^ 1767, No. 4-

140

EXTENT OF H. B. CO'S. TERRITORIAL GRANT — NORTHERN LIMIT OF FRENCH LOUISIANA.

be SO, but at present I cannot see how that is borne out — "north of the Hudson'g
Bay Company."

Mr. ScoBLE. — Simply on these grounds, my Lord, that the government did
not know much about the country, and wished to have it examined.

The Lord Chancellor. — There is nothing at all to shew that it was not
comprised in the charter of the Hudson's Bay Company ?

Mr. ScoBLE. — They draw a distinction, your Lordships see, between that
country and the country which belonged to the Hudson's Bay Company.

The Lord President. — Yes, it says " and the country beyond the Lake
Superior, westward.'*

The Lord Chancellor. — If the words had been, " particularly towards the
territories comprised in the Hudson's Bay Company's charter, and the country
beyond the Lake Superior, westward," you would be well-founded in saying that
the distinction was drawn, but there come in these words so difficult to under-
stand, which look as if not all the territories in the Hudson's Bay Company's
^charter were intended to be described ?

Mr. Scoble. — I would submit that there is a clear distinction drawn her©
T^etween the Hudson's Bay Company's territory and the country beyond Lake
Superior, westward.

The Lord Chancellor. — That is what I at present do not see. I should see
it if the words " north of the Hudson's Bay Company, northward " were not
there, but there seems to be some error either in the original letter or the print
of it, but I should infer that Lord Shelburne pointed to some particular districts,
whether all comprehended, or not all comprehended, in the charter of the Hud-
son's Bay Company— one of those districts being to the north, and certainly so
-comprised, and the other being westward, which might or might not be so.

Mr. Scoble. — Well, my Lord, I am content to take it on that ground Ifc
was a matter of enquiry whether the country was or was not comprised in the
territory of the Hudson's Bay Company. There appears to have been some
action taken upon this.

The Lord Chancellor. — It seems to me at present to be neutral in that
respect. It merely shews that the country beyond Lake Superior was one not
sufficiently explored.

Mr. Scoble. — ^Then I would ask your Lordships to consider what evidence
there is as to this country which passed to the Crown under the Treaty of Paris,
which gave to the English king all the French possessions in Canada. Canada
at that time was known by the name of Canada, and sometimes by the name of
" La Nouvelle France."

The Lord Chancellor, — Were those convertible terms ?

Mr. Scoble.— Yes, Canada and La Nouvelle France. I think in all the maps
you will find it is called " Canada, ou La Nouvelle France."

The Lord Chancellor. — There was a document yesterday, I think, in which
there seemed to be a distinction drawn between them.

Lord Aberdare. — I suppose the northern limits of Louisiana were very little
known ?

Mr. Scoble. — I apprehend very little known. The way in which the
boundary is defined in the only book that I have come to on the subject is the
very vague description " bounded on the north by Canada."

Sir RoBER r Collier. — What was bounded on the north ?

Mr. Scoble. — Louisiana. I will find your Lordship the reference in a moment.

Lord Aberdare. — Its importance is this, that it might be shewn that that
which is French was Louisiana, but not Canada. It might be French. It might
be shewn Louisiana extended in a north-west direction.

141

ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY :

Mr. ScOBLE. — I do not think that can be contended at all I think that what is
historically true is, that whatever the boundary between Louisiana and Canada
was, whatever was north of that boundary went to England under the Treaty of
Paris ; whatever was south of that line .remained to France under the name of
Louisiana.

The Lord President. — There is a partial boundary line on this map.

Mr. ScoBLE. — There is. This description of Louisiana, to which I promised
to refer, is at page 47 of the Ontario Appendix. Thomas Jefferys, who is des-
cribed as " Geogragher to His Majesty," in a book published in 1761, " History of
the French Dominions in North and South America," gives the boundaries in this
way :

" The Province of Louisiana, or the southern part of N«w France, extends, according to
the French geographers, from the Gulf of Mexico, in about 29 degrees, to near 45 degrees
of north latitude, on the western side, and to near 39 decrees on the eastern. . . It is
bounded on the north by Canada."

The Lord Chancellor. — That at once proves you were too hasty in saying
that New France was equivalent to Canada.

Mr. ScoBLE. — You will tind that in another book, published in the year
1671, which is quoted at page 4(j :* " Canada, as it is taken for one and the
same Province with New France, contains New France properly so called." I
have seen that " Canada ou La Nouvelle France ** occurs constantly in the old
French maps.

But with regard to this limit of Louisiana, your Lordship will see, at page
45, Vaisette, another geographer, whose book was published in 1755, "f after
giving the degrees of latitude and longtitude, goes on to say that it " is bounded
on the north by Canada. "J

The Lord Chancellor. — What was Acadia ?

Mr. ScoBLE. — Acadia is now Nova Scotia.

The Lord Chancellor.— It has been since we had it. It was not called
Nova Scotia by the French. Was not it a part of New France at the time it was
a French possession ?

Mr. ScOBLE. — That I would not undertake to say. My impression is it was
not, but I should be sorry to express any positive opinion on the subject. I think
you will find in the old geographers a distinction taken between Acadia and Canada.

* America, being an accurate description of the New World — with maps and sculptures. By John^
Ogilby, Esquire. London, 1671.

i Geographic historique^ etc., par Dom Joseph Vaisette. Paris, 1766. Vol. IV., pp. 296, 302.

X The Louisiana of the French, as officially set out in the charter to Grozat, comprised the Mississippi
{as far north as the country of the Illinois), with its tributary streams, on either side, to their sources,
including the Missouri. Its northern boundary, to the west of the Mississippi, would thus be along the
head waters of the northerly and easterly tributaries of the Missouri, from the Rocky Mountains to the
Mississippi ; and this agrees with the old maps. The countries of the Upper Missouri, however, from the
great bend, and of the Yellowstone, having been first discovered, explored and taken possession of by
Canadian officers, under commission of the Governor of Canada, proceeding from their establishments on
the Assiniboine, may be looked upon as having, after that date, belonged perhaps more properly to Canada
than to Louisiana. The Ohio was left to Canada, and the Country of the Illinois— extending from the
Illinois River to the NVabache— was within the jurisdiction at times of Canada and at times of Louisiana ;
at the date of the capitulation it was attached to the latter, and had been for some time. The portion of
Louisiana east of the Mississippi was ceded to Great Britain under the Treaty of 1763 ; but its territory was
at the same time augmented by the incorporation with it of such portion of Canada as lay to the west of
that river. Subject to'the above observation in regard to the countries of the Upper Missouri, the northern
boundary of Louisiana became, thus, either (1) the (>arallel of the source of the Mississippi, from Lake Itasca
to the Rocky Mountains, or (2) the height of land dividing the waters that fall into the Mississippi and the
Missouri from those that fall into Lake Winnip^. The line of the 49th parallel, afterwards agpreed upon
by the Commissioners of Great Britain and the United States, as the limit between the respective posses-
sions of the two countries in that quarter, on the erroneous supposition that it had been settled as the limit
between Great Britain and France under the 10th article of the Treaty of Utrecht, was without valid bis
torical or other authority as a boundary of Louisiana. (Joint App. 603, 644, 651, 714; Ontario App. 17, 18^
19 ; also 103-4, 106-7 (De I'lsle's maps) and 109 (Bowen's maps.)

142

WESTWARD EXTENSION OF FRENCH CANADA— JEFFERYS, 1761 ; GOV. POWNALL, 1756.

The Lord Chancellor. — That there is no doubt of, but my impression was
and still is that New France was a general name for all the French possessions.

Lord Aberdare. — This map is an old French map, and you find it there —
*' Canada ou la Nouvelle France."

Mr. ScoBLK. — There appears to have been a good deal of looseness of
description about this country in the 17th century. For instance, Ogilby on
the boundaries of Canada, etc., already quoted, in describing Canada and New
France, says :

•* Canada as it is taken for one and the same province with New France, contains
New France, properly so called, Nova Scotia, Norumbega and some adjoining islands.''

There is a considerable variety of description, but I think that I am right in
Baying that as a general rule " Canada ou la Nouvelle France " is the term used
by French geographers.

The Loud Chancellor. — On the other hand, in this l?ook of Jefferys to
which we have been referred, Louisiana is included as a province.

Mr. ScoBLE. — Yes, that is so.

The Lord CriANCELLOR. — I think probably the largest signification of " La
Nouvelle France" included all the French possessions in N5rth America, and it
became more commonly used for Canada.

Mr. ScoBLE. — This same geographer, Jefferys, in another book^* in a pas-
sage which is quoted in a report of the Canadian Minister of Crown Lands, page
183 of the Joint Appendix, says, at line 21 :

** Canada, accordin^^ to the English account, is bounded on the north by the high lands
which separate it from the country about Hudson's Bay, Labrador or New Britain, and the
country of the Eskimeaux and the Ohristeneaux ; on the east by the River St. Lawrence ;
and on the south by the Outawais River, the country of the Six Nations, and Louisiana ;
its limits towards the west extending; over countries and nations hitherto undiscovered."

I am quoting from the memorandum of the Commissioner of Crown Lands.
I have not the book itself.

The Lord Chancellor — It is an extract ?

Mr. ScOBLE. — It is an extract from the book published in 1760 or 1761, two
or three years before the Treaty of Paris.

The Lord Chancellor. — That is quite indefinite — "over countries and
nations hitherto undiscovered."

Mr. ScoBLE. — Yes, very indefinite.

Lord Aberdare. — Its limits are unlimited.

Mr. ScoBLE. — Then he says, at line 29, describing the country from Lake
Superior westward :

" At the mouth of Les Trois Rivieres, or the Three Rivera, is a little French fort
called Camenistagouia ; and twenty -five leagues to the west of the said fort, the land
begins to slope and the river to run towards the west."

Lord Aberdare. — This Fort Camenistagouia is what we call Fort William,
probably ?

Mr. ScOBLE. — Yes. One gets embarrassed with these double names.

Lord Aberdare. — That is pretty well admitted now to be within the water-
shed, and to be in a certain sense a portion of the territory of Ontario.

Mr. McCarthy. — Subject to the question of the due north line.

Mr. ScoBLE :

*• At ninety-five leagues from this greatest height lies the second establishment of
the French that way, called Fort St. Pierre, in the Lake des Pluies. The third is Fort

• A description of New France ; or the French Dominions in North America. By T. Jeflferys, Geo-
grapher to HiB Majesty. 1761.
* 143

ARGUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY:

St. Oharlea, eighty leagues further, on the Lake des Bois. The fourth is Fort Maurepas,
:a hundred leagues distant from the last, near the head of the Lake of Ouinipigon " — I
suppose we must take that to be Lake Winnipeg — ** Fort La R«ine, which is the fifth,
lies a hundred leagues further, on the River of the Assiniboels."

The Lord Chancellor. — I think all these were the seven forts which are
imentioned as the " Post of the West Sea " in one place.*

Mr. ScoBLE. — Yes, I think they may be taken to be the same :

** Anotherfort had been built on the River Rouge, but was deserted on account of
its vicinity to the two last. The sixth, Fort Dauphin, stands on the west sidft of Lac
des Prairies, or of the Meadows ; and the seventh, which is called Fort Bourbon, stands on
the shore of the great Lake Bourbon. The chain ends with Fort Poskoyac, at the bottom
of a river of that name, which falls into Lake Bourbon. The River Poskojac is made by
De Lisle and Buache to rise within twenty-tive lea<(ues of their West Sea, which they say
communicates with the Pacific Ocean. All these forts are under the Governor of Canada.**

Lord Aberdare. — Lake Bourbon 1 suppose was the French name for Lake
Winnipeg ?

Mr. ScOBLE. — The map gives it as one of the names for Lake Winnipeg.
The Lake of the Meadows, or Prairies, is the lake I understand which is now
known as Lake Manitoba.

Lord Aberdare. — The Meadows Lake is the upper portion of Lake Mani-
toba on this map, near Fort Dauphin, and Swan's Lake is the lower part.

The Lord Chancellor. — It is clear one of the lakes was Lake Bourbon

Mr. ScOBLE. — Now, ray Lord, this book I suppose may be taken as shewing
the popular knowledge, or, in fact, I may say shewing the scientific knowledge
of the geography of this part of the world possessed in England at the time of the
affairs of 1761, two or three years before the Treaty of Paris ; and the British
government, I think, may be taken to have known of the existence of these forts,
and that they were, as the writer says, under the Governor of Canada, that is
under the French government. Now, my Lord, in connection with that, I would
ask to refer your Lordships to a passage in Governor Pownall s report.

Sir Robert Collier. — The Commissioner of Crown Lands goes on to say :
" The above, it will be observed, is the English account of what was still French
Canada, in 1760."

Mr. Scoble. — That was the argument of the Commissioner of Crown Lands,
but I do not ask your Lordships to consider that. I only ask your Lordships to
consider the authority which is cited. Then I would ask, in connection with that,
your Lord^^hips' attention to a part of Governor Pownall's report, in 1756.-f- The
report is at page 601 of the Joint Appendix.

Sir Montague Smith. — What is the date ?

Mr. ScoBLE. — 1756. I am very sorry to have to refer your Lordships in this
way from book to book, but I am afraid it is inevitable. Now, the report begins
at page 601, and is described as " Extra^sts from Governor Pownall's official
account of the French posts and the French dominion in North America, 1756."
It appears to have been drawn up by order of, and presented to, his Royal High-
ness the Duke of Cumberland.

Sir Montague Smith. — It has been referred to.

The Lord Chancellor. — I do not know whether the title is in any way part
of the document — is it ? Whoever drew up the title seems to have distinguished
between French posts and French dominions.

Mr. ScOBLE.— The term used is French dominion, my Lord. I have not seen
the book, and cannot give your Lordship any definite information about it, but the

* AnU, p. 94, note. f Quoted ante, pp. 85-8.

144

GOV. POWNALL ON THB FRBNCH DOMINION, 1756 — THE COUNTRY OF THB ILLINOIl.

original title apparently would be that at foot of the page. It is '' A Memorial
stating the nature of the service in North America, and proposing a general plan of
operations as founded thereon, drawn up by order of and presented to his Royal
Highness the Duke of Cumberland, 1756." The Duke of Cumberland was com-
mander-in-chief in 1756, and I suppose this wa^ in regard to military action. My
friend read extracts, and gave your Lordships a great deal of information with
regard to the forts in Canada which are specified at page 603, and I would only
further call your Lordships' attention to the Illinois forte, with the force assigned
to them, which are mentioned there later on :

^* Thb Illinois .six companies 300

(Oaskaskias.
Fort de Chartres.
Villapre^de St Philip.
Prairie de Rocher.
Cahokias.
Village de Ste. Grenevieve."

Those were all posts in the Illinois country, which was ceded by the Treaty
<if Paris, and some of them I have already mentioned would be excluded from the
operation of the Quebec Act by the due north line which was claimed by my
learned friends. But your Lordships will find, a little further on :

*' As to the posts in the Illinois country, I am not able to describe them particularly ;
but what appears to be of more consequence, I collect from Mr. Yaudreuil's letters (from
1743 to 1752) the general idea upon which the fortifying and securing that country is
founded."

Then he gives the history of the forts ; and at page 604, line 9, 1 think there
is a very important paragraph. He says :

" Thus the French do not only settle the country but also take possession of it, and
by the form, site and police of such possessions, (led on and established by the guidance
of, and in alliance with the waters), a natural foundation of a one command, have they
acquired and become possessed of the command of this country.

" By these means, I repeat it, have they created an alliance, an interest, with all the
Indians on the continent; by these means have they acquired an influence, a command
throughout the country."

Lord Aberdare. — ^That may be a moral command.
Mr. ScoBLE. — Yes.

The Lord Chancellor. — It means a predominant influence, a practical
power, which undoubtedly may lead to possession.

Sir Robert Collier,— "Anascendancy," he goes on to say, with the Indians.

The Lord Chancellor. — Yes, the words which follow are certainly im-
portant:

'• They know too well the spirit of Indian politics to aflfect a superiority, a govern-
ment» over the Indians, yet they have in reality, and truth of more solid effect^ an influ-
ence, an ascendancy, in all the councils of all the Indians on the continent "

Mr. Scoble :

— " and lead and direct their measures, not even our own allies, the Five Nations,
excepted."

The Lord Chancellor. — It is obvious he distinguishes that from territorial
poseession.

Sir MoNTAQUB SMiTa — There is a classification of the different tribes of
Indians, and how they are aflected ?

Mr. Scoble. — Yes.

10 (b.) 146

AKGUMENT OF MR. SCOBLB, Q.C., re QUESTION OF BOUKDABT :

The Lord Chai^cellor. — I see a number of tribes bracketed and marked
" Supposed to be in the British interest/- and there are some " Wholly in the
British interest," and so on.

Mr. ScOBLE. — I think these passages which I have read are the most im-
portant passages, as shewing the condition of English knowledge at the time, or
immediately before the time, of the treaty. There are other reports, a little
subsequent to the treaty, which do not add very b^uch to the information which
is contained in Jefferys and in Gk)vernor Pownall, as for instance a report by
Grovernor Carleton at page 609, as to the French posts of the interior, 1768.*

The Lord Chancellor. — That was read.

Mr. ScoBLE. — That was read. Now, my Lord, the French view of what they
had, and what they ceded, was very much more in favour of actual possession
than the English view contained in the documents which I have read. In fact
the whole contention of the French, from the time the French and British inter-
ests come into conflict in this part of the world, appears to have been that they
were in possession of the country, not only by right of prior discovery, but also
by occupation and settlement.

Lord Aberdare. — This contention gyes to shew the original Province of
Manitoba was wrongly constituted.

Mr. Scoble. — Well, my Lord, if it were necessary to contend that, no doubt
that mii^ht be contended upon these facts.

At page 619, there is a report of the Sieur de St. Lusson, who was sub-
delegate of the Intendant Talon, in 1671,"f" in which he gives an account of the
way in which he proceeded. He says :

* Extracts printed arUCt pp. 82-4.

t Record of the Taking Possession, in the Kino*8 name, op the Countries of the West akd North,
BY THE Sieur de St. Lusson, Sub- Delegate op the Intendant Talon, 1671.

Simon Francois Daumont, Esquire, Sieur de St. Luason, CommiHsioner Subdelejfate of my Lord the
Intendant of New France, to search for the copper mines in the countries of the OataoUais, Nespercez,
Illinois, and other Indian nations, discovered and to be discovered, in North America, near Lake
Superior, or the Fresh Sea.

On the orders by us received, on the third of September last, from my Lord the Intendant of New
France, signed and paraph^ Talon, and underneath by my Lord Varnirb, with paraph., to proceed
forthwith to the countries of the Outaouais, Nespercez, Illinois, and other nations discovered and to be dis-
covered, in North America, near Lake Superior, or the Fresh Sea, to make search and discovery there for
all sorts of mines, particularly that of copper ; commanding us moreover to take possession, m the KIukk
name, of all the country, inhabited and uninhabited, wherever we should pass, plantingin th« first village at
which we land the cross, in order to produce there the fruits ot Christianity, and the escutcheon (6eu) of
France, to confirm Hi* Vlajesty'a authority and the French dominion over it.

We having made, in virtue of our commission, our first landing at the villa^fe or hamlet of St. Mary of
the Fall*, the p ace where the Reverend Jesuit Fathers are making their mission, and the Indian nations
called Chepoes, Malameclis. Noquets and others do actually reside ; we caused the greatest portion poesible
of the other neighbouring tribes to be assembled there, who attended to the number of fourteen nations :

To wit : the Etchipoes, the Malamechs and the Noquets, inhabiting the said place of St. Maiy oC th*
Sault ; and the Banabeoiiiks and Makamiteks ; the Poulxteattemis, Ounabonims, Sassassaotia Cottons,
inhabiting the bay called des Pvants, and who have undertaken to make it known to their neighbouns who
are the Illinois, Mascoutins, Outtougamis and other tribes ; the Christinos, AB8inip«>als, Aumonssonniks,
OutaoUais, Bouscouttons, Niscaks and Masquikoukioeks, all inhabitants of the northern country and near
neighbours of the sea, who undertook to tell and communicate it to their neighbours, who are very numeroui,
inhabiting even the sea coast ; To whom, in the presence of the Reverend leathers of the Ck)mpanY of Jesoi
and of all the French hereafter mentioned, we have caused to be read our said commission, and had inter-
preted in their lan^age by Sieur Nicolas Perrot, His Majesty's interpreter in that part, so that they may
not be ignorant of it ; afterwards causing a cross to be prepared in order that the fruits of Christianity b*
produced there, and near it a cedar pole to which we have affixed the arms of France, saying throe times in
aloud voice and with public outcry, that In the name op the Most IIioh, Most Mighty and Mobt R»-
doubtable Monarch, Louis, the XIVth. of the Christian Name, Kino of Franor and Natabrk, wt
take possession of the said place of St. Mar^r of the Falls, as well aa of Lakes liaron and Superior,
the Island of Caientolon, and of other countries, rivers, lakes and tributaries, contiguous and adjaeeot
thereunto, as well discovered as to be discovered, which are boun led on the one side by the Northern and
Western Seas, and on the other side by the South Sea, including all its length or breadth ; raising at eaoh
of the said three times a sod of earth, whilst cr3ring^ Vive le Rot, and making the whole of the assembly, M
well French as Indians, repeat the same ; declaring to the aforesaid nations that henceforward as from
this moment the^ were dependent on His Majesty, subject to be controlled by his laws, and to foUow hit
•attorns, promising them all protection andsucoour on his part against ths intnrsion or inyasioa of thdr

146

FRBKCH POSSESSION OF COUNTRIES OF UP. MISSISSIPPI, AND N. AND W., 1671, 1689.

"On the orders hj as received on the third of September last, from my lord the
Intendant of New France, signed and paraphed Talon, and underneath by my lord
Varnibr, with paraph., to proceed forthwith to the countries of the Outaoiiais, Nespercez,
Illinois, and other nations, discovered and to be discovered, in North America, near Lake
Superior or the Fresh Sea, to make search and discovery there for all sorts of mines,
particalarly that of copper, commanding us moreover to take possession in the King's
name, of all the ccantry inhabited and uninhabited wherever we should pass, planting in
the first village at which we land, the cross, in order to produce there the fruits of
Ohristianity, and the escutcheon of France, to confirm His Majesty's authority and the
French dominion over it."

He goes on to say that he has caused a number of tribes to assemble, to the
number of fourteen nations, and he gives their names :

** To whom, in the presence of the Reverend Fathers of the Company of Jesus, and
of all the French hereafter mentioned, we have caused to be read our said commission,
and had it interpreted in their language by Sieur Nicolas Perrot, His Majesty's interpreter
in that part, so that they may not be ignorant of it afterwards, causing a cross to be
prepared in order that the fruits of Ohristianity be produced there, and near it a cedar
pole to which we have affixed the arms of France, saying three times in a loud voice and
with public outcry, that in the name of the Most High, Most Mighty and Most Redoubt-
able Monarch, Louis the XlVth."

The Lord Chancellor. — They took possession of the whole continent.

Mr. ScoBLE. — 7es.

Lord Aberdare. — Discovered or to be discovered.

Mr. ScoBLE. — Yes. They acted in much the same way as every nation acted
in those days. They afterwards occasioned disputes and came to wars in order
to maintain their right to territories thty had in an exceedingly free and easy
manner taken possession of ; and to a certain extent, according to international
law as it was then understood, they were perfectly right in doing so. But here
they profess to take possession of the whole of the continent :

— ** as well discovered as to be discovered, which are bounded on the one side by the
Northern and Western Seas, and on the other side by the South Sea, including all its
length or breadth."

Then at page 621, there is another record of taking possession, in the King's
name, of the countries of the Upper Mississippi :* " Nicolas Perrot, commanding

enemies, declaring^ unto all other Potentates, Princes and Sovereigns, States and Republics, to them and
their subjects, that they cannot or ought not seize on, or settle in, any places in said country, except with
the good pleasure of his f>aid Most Christian Majesty and of him who will govern the country in his
behalf, on pain of incurring his hatred and the effects of his arms ; and in order that no one plead cause
of ignorance, we have attached to the back of the Arms of France thus much of the present, our minute <A
the taking possession, Signed by us and the undernamed persons, who were all present :

Done at St. Mary of the Falls, on the 14th June, in the year of Grace 1671, in the presence of the Rev-
erend Fathers : the Keverend Father Claude Dablon, Superior of the missions in this country; the Rev.
Father Gabriel Drouillets, the Kev. Father Claude AUouez, the Rev. Father Andr^, all of the Company of
Jesus ; and of Sieur Nas. Perrot, His Majesty^s interpreter in these parts ; Sieur Jolliet ; Jques. Mograa,
an inhabitant of Three Rivers ; Pierre Moreau dt. de la Touppine, a soldier belonging to the garrison of the
Castle nf Quebec ; Denis Masse, Ffois. de Chavigny, Sr. de la Chevriotti^e, Jques. Lagillier, Jeanne
Ha^Aer^, Nas. Dupuis, Ffois. Bidaud, Jques. Joniel, Prre. Portcet, Robert Duprat, Vital Oriol,
GaillAiune.

* Rboobd of thb Taking Possession, in the King's name, of the Countries of the Upfeb

Mississippi, 1689.

Canada,

Bat dks Puantb.
Beoord of the taking possession, in His Majesty's name, of the Bay des Poants,* of the lake and riven
of the Outagamis,9 and Ma8koutinas,3 of the River Ouiskonche,4 and that of the Miwisoipi, the
ooontry of the Nadouesioux,^ the riven St, Croiz and St. Peter, and other plaoes more remote,
8th May, 1689.

Nicolas Perrot, commanding for the King at the Post of the Nadouedouz, commisioned by the MMtpiis
d« Denonville, Governor and Lieutenant-General of all New France^ to manag* the interest of <

HknmBtM. sFoxRlvei. SLake Winnebaga ^WIscobsId. 'Bloiix.

147

ARGUMENT OP BiB. SCOBLE, Q.C., re QUESTION OP BOUNDARY :

for the King at the Post of the Nadouesioux, commissioned by the Marquis de
Denonville, Governor and Lieutenant-General of all New France/' takes
"possession of all the places where he has hitherto been and whither he
will go." Then he describes the places he has been to, and records that
he has taken possession, " for and in the name of the King, of the countries
and rivers inhabited by the said tribes, and of which they are proprietors." Then
in regard to these matters of taking possession, I may call your Lordships atten-
tion to page 623, line 20, where the pretension to Hudson's Bay is set up in
a letter from Louis XIV. himself to M. de la Barre. It is dated Fontainebleau,
5th August, 1683:

'* 1 recommend you to prevent the English as much as possible from establishing
themselves in Hudson's Bay, possession whereof was taken in my name several years ago."

Lord Aberdare. — That was in the evil days of Charles II.
Mr. ScoBLE. — Yes. Then again, at page 624, writing again to M. de la Barre,
on the lOth of April, 1684, as to the affairs of the Nelson River, he says, at line 11 :

*' As I think it important, nevertheless, to prevent the £ngUsh from establishing
themselves on that river, it would be well for you to have a proposal made to the com-
mandant at Hudson's Bay that neither the French nor the English should have power to
make any new establishments, to which I am persuaded he will give his consent the more
readily as he is not in a position to prevent those which my subjects would wish to form
in the said Nelson's River."

And then, in regard to that same Nelson River, at page 625, on an application
for a grant of the Nelson River, by Gaultier de Comports, in 1684, it is recited
that this

"Gaultier de Oomport^, Pr^vot^ of Canada, has heretofore presented a memoir, by
^which he requests the grant, unto himself and his associates, of the ownership of the River
de Bourbon — de Nelson — in Hudson's Bay, of which possession had been taken in the name
of the King, for as long a time as it should please, with permission to establish three poses in
the river which descends into the said bay, at seventy leagues from the place where the
farmers are settled."

Then, in a report made in 1685 by the Governor of Montreal,* to the Marquia
de Seignelay, the origin of the French claim by settlement is stated to be :

** As regards Hudson's Bay» the French settled there in 1656, by virtue of an arret
of the Sovereign Council of Quebec, authorizing Sieur Bourdon, its Attorney-General, to
make the discovery thereof, who went to the north of said bay, and took possession thereof
in His Majesty's name."

Among all the Indian tribes and peoples of the Bay des Puants, Nadouesioux, Mascoutins, and other w eat eni
nations of the Upper Mississippi^ and to take possession, in the King's name, of lUl the places where he has
hitherto been, and whither he will go.

We, this day, the eighth of Majr, one thousand six hundred and eighty-nine^^ do, in preseooe of the
Reverend Father Mares^ of the Society of Jesus, missionary among the Nadonesioux ; of Mens, de Borie-
GuiUot, commanding the French in the neighbourhood of Guiskonche, on the Mississipi ; Augustin Legar-
deur, Esquire, Sieur de Caumont, and of Messieurs Le Sueur, Hubert, Lemire, and Blein, cbclare to all
whom it may concern, that having come from the Bay des Puants, and to the lake of the Ouidcon^e^
and to the river Mississipi, we did transport ourselves to the country of the Nadouesioux, on the border
of the River Saint Groix^ and at the mouth of the River Saint Peter, on the bank of which were the Man-
tantans, and farther up into the interior to the north-east of the Mississipi as far as the Menohokatoox,
with whom dwell the majority of the Songestikons and other Nadouesioux, who are to the north-east of Um
Mississippi, to take possession for and in the name of the King, of the countries and rivers inhabited by iht
said tribes, and of which they are proprietors.

The present Act, done m our presence, signed with our hand, and subscribed by the RevereDd
Father Mareet, Messrs. de Borie-Guillot and Caumont, and the Sieurs Le Sueur, Hubert, Ijemixe, aod
Blein.

Done at the Post St. Anthony, the dav and ^ear aforesaid. These presents are in duplicate. Signed
to the original : Joseph Jean Marest, of the Society ef Jesus, N. P^rot, Legardeur de Gaumont, Le Saeor
Jean H^bert» Joseph Lemire, and F. Blein.

^ The Sieur deGalli^res, afterwards, on the death of Frontenao, Governor of Ganada. (Joint App.6S95).

148

VBBKCH TTTLB TO HUDSON'S BAY. — LORD CAMDEN'S VIEW OF THE QUEBEC ACTT, 1776^

The Atiomey-General was a very active perswi in those days ; and in these
latter days I have read of an Attomey-Qeneral leading a force in the south of
A&ica for the purpose of repressing attacks by the hostile tribes in that part bf
the world — the Attorney-General of the Cape of Good Hope Jed a force most
gallantly the other day, and I believe came off victorious in his encounters.

I think, my Lord, all these documents, and others with which the Appendix
abounds, shew tolerably clearly that before the time of the Treaty of Paris the
King of France laid claim, according to the fashion of those times, to the whole
of the country to the west and south which constituted Canada as distinguished
from Louisiana. I think it was so understood by the British Government, at the
time of the treaty and subsequently, because there is a rather curious. thing in
the parliamentary debates of the year following the year in which the Quebec
Act was passed. No less a person than Lord Camden brought a bill into the
House of Lords for the repeal of the Quebec Act,* and his objection to the Act-
was put on three grounds. The first ground was the extension of the limits of
Canada ; the other two grounds were the grounds upon which the bill had been
fought in both houses in the previous year, namely : first, they objected to the
establishment of popery in this large region, and in the second place, they objected
to the establishment of a much more arbitrary government than that which pre-
vailed in the other North American colonies. On the point of the first objection
Lord Camden observed :

'* There could be no good reason for so extending the limits of Quebec as to make them
comprehend a vast extent of country two thousand miles in length from north to south,
and bounded on the west only by the South Sea*'

The LoBD Chancellor. — ^A distinguished person speaking in the House of
Lords upon an idea which, without proof, is not to be accepted upon his
authority. Do you suppose Lord Camden knew more about it than we do ?

*Dbbati in the Housb of Lords, on a proposal to rbpbal the Quebbo Act or 1774.
{Parliamentary Regitter, Vol. f, 1776, pp, 234, 1^5, 1S8, 139, I48, W),

17th May, 1776.

Jjord Oamden.—'Hxn Lordship arranged his objections to the Act under the three following heads : —
Ist. The ext^insion of the limits of Quebec.
2nd. The establishment, etc.
Srd. The civil despotism, etc.

Under the first of these heads [the extension of the limits of Quebec] his Lordship proved, that there
•onld be no good reason for so extending the limits of Quebec, as to make them comprehend a vast extent
of country two thousand miles in length from north to south, and bounded on the west only bv the South
Sea. Thai this enlaigement could only bo intended to extend the shackles of arbitrary power, and of popery,
over all the future settlements and colonies of America. That by drawing the limits of that province close
along the interior settlements of all the old English colonies, so as to prevent their further pr^jRress, an
•temal barrier was intended to be placed, like the Chinese wall, against the further extension of civil liberty
and the Protestant religion. His liord^hip then animadverted particularly on the instructions lately trans-
mitted to General Carleton, whereby the regulation of all the Indian trade of North America is put into
the hands of the Governor and Council of Quebec, and the other colonies are obliged, in their intercourse
with the Indians, to submit to the laws, not of the British parliament, but of a despotic, unconstitutional
le^rialature in Canada ; a measure calculated to produce endless contentions and animosities. « • • ^
His Lordship concluded by offeriig the following bill : A bill to repeal an Act made in the last session of
the last Parliament, intituled An Act for making more effectual provision fcr the government of the Province
of Qud>eek, in North America, ♦ ♦ » ♦

Lord Wyeovnhe [Earl Shelburne].— The peltry or skin trade, my Lords, is a matter which I presume
to ftffirm is of the utmost magnitude, and of the last importance to the trade and commerce of the colonies
and this country. The arrangement and regulation of this business has, give me leave to say, cost His
Majeetv's ministers more time and trouble than any one matter I know of. The noble Earl behind me
[Karl of HiUsboroughl it is true, differed from me among other of His Majesty's servants on the regulating
the trade with the Indians ; but it was never so much as dreamed of that the whole skin trade, from Hud-
•on's Bay to the Porks of the Mississippi, should be at once taken from the several American colonies and
transferred to the French Canadians ; or, which is substantially the same thing, that by a royal instruction
the sole direction of it should be vested in the Gk>vemor of Quebec. For I will be bold to contend that
whatever colourable construction ma^ be put upon it, it will operate as a complete exclusion and total
Bonopoly so far as the Protestant British oolomes can possibly be interested.

149

ARaUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY :

Mr. ScoBLE. — I do not suppose he knew as much, or at all events did not
know as much as yonr Lordships will know when you come to the end of this
tsase ; but it shews that according to the means of knowledge he possessed at
that time, and according jO his construction of the Quebec Act, the Province of
Quebec was made to include all the territory France purported to cede, and Eng-
land assumed to take.

The Lord Chancellor. — What are the words in the Quebec Act? It
is an Act containing the boundaries. What are the bounds which shew it
extends to the Pacific ? You do not make much progress by shewing what Lord
Camden said.

Lord- Aberdare. — You seem in this argument to throw away all the
instructions given to Governor Carleton and others to define these boundaries.
You are going far beyond that found by the award.

Mr. ScoBLE. — I think Governor Carleton went far beyond that.

Sir Robert Collier. — If he went as far as that, it is quite enough for you.

The Lord Chancellor. — What strikes me at present is. that the Act speaks
for itself, and shews distinctly that whether the point is that for which your
opponents contend, or that stated by the award, when you have got to that point
you go northward to the southern boundary of the territory granted to the
Hudson's Bay Company : and if we accepted your learned leader s suggestion,
that means northward to Hudson's Bay, and nothing else. Still you cut off an
enormous extent of territory, taking into consideration Lord Camden's view.

Mr. ScoBLE. — If your Lordships construe the word " northward " as referring
to territory, and not to boundary, that would give all that Lord Camden seemed
to think it did.

The Lord Chancellor. — I do not follow you. This Act states what
territories are included, and it gives you, first of all, the line of boundary as far
as the junction of the Ohio and the Mississippi Then you either take north
from that point, or from some point arrived at by going northward along the
Mississippi, and the further boundary is struck northward until it meets the
southern boundary of the Hudson's Bay Company. How can that be? The thing
is simply impossible.

Mr. ScoBLE. — The westward boundary does not carry it further than the
banks of the Mississippi.

The Lord Chancellor. — And from that you strike northward until you
reach either Hudson's Bay, or some territory which is described a^ granted to
*• the Merchants Adventurers of England tradinor to Hudson's Bay."

Mr. ScOBLE. — I submit the Act may be read in this way :

" All the territories, islands and countrit?s in North America belonging to the Crown
of Great Britain bounded on the south by a line, etc., and extending northward to the
southern boundary of the territory granted to the Merchants Adventurers of England
trading to Hudson's Bay."

The Lord Chancellor.— It is to give a southern boundary, an eastern
boundary, a western boundary, and a northern boundary, and how it can include
anything which is not within any possible limits so described seems to be beyond
the power of imagination to conceive.

Lord Aberdare. — And it seems wholly unnece&sary for what is your
substantial contention.

Mr. ScoBLE. — Well then, my Lords, I will leave that part of the case, and in
obedience to your Lordships' view just expressed I will address myself now to
what is the northern boundary established by the Quebec Act. That is stated to be
" the southern boundary of the territorv granted to the Merchants Adventurers
of England trading to Hudson's Bay.' Now no southern boundary of those

150

BOUTHBRN LIMIT OF THE TERRITORIES HELD BY H. B. CO. UNDER THEIR CHARTER.

territories had at that time, or has to this day, been ascertained. It is a his-
torical error to suppose that any boundary was settled by or after the Treaty of
Utrecht. At page 687 of the Joint Appendix, your Lordship will find the
memorial of the Hudson's Bay Company, dated the 6th December, 1759, in
"which, " in prospect of an approaching treaty of peace between this nation and
France " — that is in prospect of the Treaty of Paris of 1763 — they make certain
representations. They state what the French had been doing in Hudson's Bad
before the Treaty of Utrecht, they recite articles 10 and 11 of that treaty, any
then, at line 22, they go on to say this :

" That in parBaance of the said treaty, and an especial commission of her said late
Majesty, Queen Anne, dated the 20th of July, 1713, the said Bay and lands, then in
possession of the French, were delivered up to Governor Knight and Kelsey, who took
possession thereof for the English Hudson's Bay Company, and Commissaries were
appointed, to settle the said limits and adjust the damages the company had sustained,
which for the ships and goods of the company taken by the French appears by an account
stated in the year 1713, and delivered to the then Lords Commissioners of Trade and
Plantations, amounted to upwards of £100,000, besides the damages the company
sustained by the enemy's burning three of their forts and factories at Charlton Island,
Moose River, and New Severn, and proceedings were had by the said Commissaries
towards settling the same, but they were never able to bring the settlement of the said
limits to a final conclusion, nor did the said Hudson's Bay Company ever receive any
satisfaction for their said damages."

It is perfectly clear then that these lines upon the various maps which point
out the limits settled by the Treaty of Utrecht, are lines introduced into these
maps without any historical foundation at all, because no limits were ever settled
from the date of the Treaty of Utrecht, or from the date of the Treaty of Paris,
or since. If that is so, your Lordships have now to determine what ought to be
considered the southern boundary of the territory granted to the Hudson's Bay
Company, at the time of the Treaty of Paris, and of the Quebec Act of 1774. I
think the best evidence as to the condition of the Hudson's Bay Company's
settlements at the time of the treaty is to be found in a letter from the Right
Honourable George G. CJoschen, who was chairman of the company at the time
the letter waa written, which is printed at page 694 of the Joint Appendix. It is
dated 12th December, 1876, and addressed by Mr. Goschen, as Chairman of the
Hudson's Bay Company, to the Secretary of State for Canada. He encloses, first
of all, a map ; then, a statement prepared with reference to the Parliamentary
enquiry which took place in 1857. Then, in the fourth paragraph of his letter,
he toys this :

''At the time of the passing of the Quebec Act, 1774, the company had not extended
their posts and operations far from the shores of Hudson's Bay. Journals of the following
trading stations have been preserved bearing that date, namely, Albany, Henley, Moose,
Eastmain, York, Severn, and Churchill. These journals give no information upon the
subject of the boundaries between Canada and the territory of the company, nor was the
question raised in 1748, when the House of Lords held an enquiry with reference to the
company's affairs as at that time conducted. A map. No. 3, no doubt prepared for that
occasion, and sent herewith, shews the extent of country to which these operations were
then confined."

I do not know whether my learned friends have that map ; but that map no
doubt would shew the Hudson's Bay Company's views of its settlements at the
time of the passing of the Quebec Act.*

Lord Abekdare. — Yes, it would shew historicallv what they occupied then.
It would not shew what was the limit of their actual claims now.

* This IB the Hadson's B»7 Company's MS. map of 1748, referred to »t p. 109 anU,

151

AKOUMENT OF MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY :

Mr. ScoBLE. — I apprehend they could not extend their boundaries subsequent
to the Quebec Act beyond the limits which those boundaries had at the time of
the Quebec Act.

The Lord Chancellor. — The question is, what is meant in the Quebec Act
by the " territory granted to the Merchants Adventurers of EIngland trading to
Hudson's Bay.''

Mr. ScoBLE. — Yes, and that makes it necessary that I should refer, and I
shall .do it very briefly, to the charter of the Hudson's Bay Company.

The Lord Chancellor. — What is important, as bearing upon that, is the use
in that charter of the term " Rupert's Land," as distinguishing territory over
which the grant was meant to extend.

Mr. Scoble. — The first observation I will malce with regard to this charter^
which is printed at page 341 of the Joint Appendix,* is that the King, in granting
it, does not set up any title to the lands that he is granting by right of prior
discovery, but only such title as he might have by occupation and settlement.

The Lord Chancellor. — What are the words which appear to you to indicate
that — the words whereby whatever is actually possessed by the Eang's subjects or
the subjects of any other State is excluded ?

Mr. ScOBLE. — Yes, and I say that excludes also any claim by right of prior
discovery. He purports to grant whatever he Las, that is, all the lands, countries
and territories.

Lord Aberdare. — He assumes all to be his.

Mr. ScoBLK — Then, I apprehend, if he were claiming by right of first
discovery, he would claim to have the whole of it.

Lord Aberdare. — Then surely Ve come back to what is subsequently
admitted to be Rupert's Land ?

Mr. Scoblb. — I do not think anything was subsequently admitted to be
Rupert's Land, because in the Rupert's Land Act,t in which the phrase " Rupert's
Laud " for the first time received legislative sanction, there is an express reserva-
tion of all rights in regard to it.

The Lord Chancellor. — There are some words which indicate what is
meant — are not there ?

Mr. Scoble. — I will give your Lordship the exact words. They are at page
445:

" For the purposes of this Act, the term * Rupert's Land * shall include the whole of the
lands and territories held, or claime<J to bo held, by the said Governor and Oompanj.*'

The Lord Chancellor. — " Or claimed to be held." You see the whole of
the present relations of Canada and Rupert's Land are^ founded upon this.
Mr. Scoble. — But the surrender which was to be made was only of —

" the lands, territories, rights, privileges, liberties, franchises, powers and authorities^
so far as the same have been lawfully granted to the said company.''

The Lord Chancellor. — Where is that ?

Mr. Scoble — In the 3rd paragraph of the preamble, at line 34.

Lord Aberdare. — But practically, although not admitting, and guarding
against, the excessive claims of the Hudson's Bay Company, for the purpose of
the annexation of those territories they were admitted.

Sir Montague Smith. — They seem to me to be left undefined, but they
wished to take a surrender of whatever they had, and whatever they might claim.

Sir Barnes Peacock. — ^The Act speaks of " Rupert's Land and the North-
western Territory," and then it defines what Rupert's Land means.

Mr. Scoble. — For the purposes of the Act, and not otherwise.

* Extraoti printed anU, p. 51. f Imp. Aot, 81 and 82 Yiot., cap. 106.

162

SOUTHERN LIMIT OF TH£ TERRITORIES HELD BY H. B. CO. UNDER THEIR CHARTER.

Sir Barnes Peacock. — The annexation was to be of Rupert's Land and the
North- Western Territory belonging to the Hudson's Bay Company.

■ Mr. ScoBLE. — The North- Western Territory, so called, was territory entirely
external to that granted by charter to the- company ; they had no claim to it
other than that of exclusive tra^le under, and only for the term of, their license.

The Lord Chancellor — When you speak of " for the purposes of this Act,"
the purposes of the Act are, that this territory shall be part of the Dominion of
Canada, and the* whole of the legislation takes place upon that footing.

Mr. ScoBLE. — Upon the footing of a compromise.

The Lord Chancellor. — No, upon the footing of its being treated by the
Imperial Parliament as external to Canada.*

Mr. ScoBLE. — Then, on that presumption we do not get any further as to
what Rupert's Land is.

The Lord Chancellor. — As to the actual limit, but that it was a large territorr
then claimed by the Hudson's Bay Company, and seems to be so, you do get that.

Mr. ScoBLE. — They may have claimed under two rights. They may have
claimed under their charter in regard to land immediately in the neighbourhood of
their settlements in Hudson's Bay, and they may have claimed under the righi
derived from long occupation in regard to other portions of that territory.

Sir Barnes Peacock. — Is not that what was intended to be annexed to
Canada, for which they were to pay £300,000 ?

Mr. ScoBLE. — It was a compromise arrived at between the Hudson's Bay
Company and the Dominion of Canada.

Sir Barnes Peacock. — They purchased from the Hudson's Bay Company all
those rights, with certain exceptions which were reserved to the Hudson's Bay
Company, and they paid £300,000. Then there is a stipulation in the surrender
as to the electric telegraph. Canada was to purchase from the Hudson's Bay
Company their electric telegraph, and that is in the surrender, and in the Order
in Council. Do you know how far that electric telegraph went ?

Mr. ScoBLE. — I do not know, my Lord. My friends will supply your Lordship
with that information by and bye.

The Lord. Chancellor. — Can you point out where the Fort Garry mentioned
at page 447 is ?

Mr. Scoble. — Fort Garry is where the town of Winnipeg now stands.

The Lord Chancellor. — Then that is very important, because you see this
Imperial Order in Council, under that Act of Parliament, distinctly treats the
town of Winnipeg as adjoining the forts of the Hudson's Bay Company. Then
the company, as part of the terms for which they stipulated, besides getting
£300,000, were to select certain blocks adjoining each of their forts in the Red
River limits ; and one of those was a block of 500 acres at the " Upper Fort Garry
and town of Winnipeg, including the enclosed park around shop, and ground at
the entrance of the town," shewing most distinctly that that was within their grant*

Sir Barnes Peacock. — On another page, there is also a reference to " Upper
Fort Garry and the town of Winnipeg."

The Lord Chancellor. — There is no doubt that the Hudson's Bay Company
had settlements in this country at the time of the surrender. In construing the
words in the Rupert's Land Act, " the whole of the land or territories held, or
claimed," it must be taken in connection with the Order in Council. It is quite
clear that this was land so held.*

Mr. Scoble. — And they might hold that by right of occupation and not imder
their charter at all.

* See note to the Award, Appendix A. hereto.

163

ABGUMKNT OF ME. SCOBLB, Q.C., re QUESTION OF BOUNDABY :

The Lord Chancellor. — Supposing they did, this Imperial Act is an instru-
ment which treats that territory as external to Canada * and to be admitted into
Canada, if the Crown should think tit, on certain terms.

Sir Barnes Peacock. — Canada was to purchase it for £300,000.

Mr. ScOBLE. — That was a compromise.

The Lord Chancellor. — And if it has been ascertained that that was part
of Rupert's Land,* how can you say that it is now to be treated as part of Canada?
Of course your argument on the award does not require you to say so, but if you
are going to claim the whole of North America, north of the United States, you
must say so.

Lord Aberdare. — All this argument seems to me to strengthen your claim
for the more limited territory, which is substantially what you are going for.

Sir Robert Collier. — That does not in the least hurt you, if you confine
yourself to the contention which you were confined to sometime ago.

The Lord Chancellor. — You told us yesterday that you meant to lindt your-
self to that, but I suppose further consideration leads you to take a different view ?

Mr. Scoble. — It was rather in consequence of something which fell from
one of your Lordships, because I was going to address myself to the state of
things on the shores of Hudson's Bay at the time the Treaty of Utrecht was
passed, and to shew what the Hudson's Bay Company had at that time, and that
there was a claim on the part of the French King known to, and to a certain
extent admitted by, the English to the land of what is called the bottom of
Hudson's Bay.

Lord Aberdare. — But that is not before us ?

Mr. ScOBLE. — It is important, incidentally, in regard to the argument as to
the height of land. If it is going to be contended that we are limited by the
height of land, then every piece of evidence which shews that we have a right
to go to the shore of Hudson's Bay is of importance to our claim ; if we are to
be bounded by the height of land, we do not get to Hudson's Bay at all.

The Lord Chancellor. — I thought at present we had only to decide the
boundaries between Manitoba and Ontario, and nobody contends that Manitoba
goes up to Hudson's Bay.

Mr. Scoble. — But I understood your Lordship to consider that, to a certain
extent, the question of the northern boundary was involved.

The LoHD Chancellor. — The northern boundary between Manitoba and
Ontario, certainly ; but not the northern boundary of Ontario with reference to
any place not adjoining Manitoba.

Mr. Scoble. — If that is so, of course it is unnecessary to say anything
further with regard to that, but I understood that your Lordships, in considering
the question of the award, would consider also whether the northern boundary
given to Ontario by that award was one which was supported by the evidence.

The Lord Chancellor. — Certainly, but then that is the northern boundary
between Ontario and Manitoba.

Sir Montague Smith. — Where you leave Manitoba, going eastward, is not
referred to us.

Mr. Scoble. — Then it is not necessary for me to address myself to that.
The point I understand your Lordships are Roing to determine is, What is the
proper boundary between Ontario and Manitoba ?

Sir Montague Smith. — Yes. Is there anything else referred to us f

Mr. Scoble. — They do not adjoin on the north at all.

The Lord Chancellor. — Yes they do. I understand that the whole of that
tract [pointiTig on the Ontario Boundary map] coloured with a pale yellowish

* See note to the Award, appendix A. hereto.
154

FKENCH POSTS, AND NORTH-WEST OO'S POSTS, OF THE NORTH-WEST.

"tint and orange coloured lines across it — single orange lines, not double —
had been given by the Dominion to Manitoba.* Is not that so ?

Sir Robert Collier. — Yes.

The Lord Chancellor. — Then, of course, if the Dominion could give that
to Manitoba, and it was not part of Ontario, the boundary there marked by the
English River, Lonely Lake, and Lake St. Joseph, is in it Of course, if it is
admitted on both sides beyond all question, then it will save trouble.

Sir Robert Collier [to Mr. McCarthy], — Do you say it is necessary to
consider the northern boundary?

Mr. McCarthy. — Yes, we say it is necessary to consider it.

Lord Aberdare [to Mr. Mowat]. — If you will pardon me, it seems to me
you should make up your mind whether you are going to insist on the portion
of Manitoba which is north of the tract which was awarded by the arbitrators.

Mr. Mow AT. — We do not claim that.

Mr. ScoBLE. — No, not this cross-barred lattice part — the yellowish lines
[pointing].

Sir Montague Smith. — I understood the Attorney-General of Ontario to
limit his argument to what was within the red.

Mr. Mowat. — Yen, Perhaps, in a word or two I could explain about that
piece of boundary as to which an observation has been made just now. By the
terms of the Dominion Act extending the limits of Manitoba, its eastern
boundary is made to depend upon our western boundary, not merely for the
distance between the two provinces, but for a further considerable distance, so
that whether Manitoba gets that from the Dominion or not depends on the present
question ; but we have no concern with it.

Sir Robert Collier. — You are satisfied with the boimdary in the cross*-
barred lines [referring to the map] ?

Mr. Mowat. — Yes.

The Lord President. — With the award line ?

Mr. Scoble. — Yes.

Lord Aberdare. — Then your argument may as well be addressed to that !

Mr. Scoble. — Quite so : I will not trouble your Lordships with the other.
Now, with regard to the territory which lies between the due north line from the
confiux of the Ohio and Mississippi, which is shewn on the map here, and the
western boundary which the award has given us, in that portion which is north
of the height of land, there is not, so far as 1 am aware, any post of any kind
of the Hudson's Bay Company, or of the North- West Company, to be found
there. But there were some posts within the portion of the territory which the
award has given us, and these posts were not, as I am instructed, Hudson's
Bay Company's posts at all. They were the North-West Company's posts. At
all events they did not become in any way Hudson's Bay Company's posts until
after the fusion of the North- West Company and the Hudson's Bay Company,
in or about the year 1819. They were old French posts, and would be included
within the territory which, under the Quebec Act, was intended to be afforded a
civil government. They were not very important posts apparently.

Lord Aberdare. — Fort St. Pierre is one.
' Mr. Scoble. — Yes, Fort St. Pierre is one, and Fort St. Charles another.

Lord Aberdare. — There is a fort cited, La Maune.

Mr. Scoble. — There is a River k la Maune mentioned in one of the French
documents, at page 624 of the Joint Appendix, and I think that is the fort

*The tract referred to is that bounded by the English River and Lakes Seal and St. Joseph on the
•outb, the dne north line from the source of the Mississippi on the west, the due north line from the oonfluenoe
of the Ohio and the Mississippi on the east, and the parallel of the northerly boundary of Bfanitoba produced,
on tbe north.

165

ARGUMENT OF MB. SCX>BLE, Q.C., re QUESTION OF BOUNDARY :

referred to. There is a letter from the Sieur Du L'Hut to M. de la Barre* in
relation to operations in the neighbourhood of Hudson's Bay. He says, in part
of his letter, at line 38, page 624, after pointing out the success he has had in
interfering with the operations of the English at Hudson's Bay :

" The KIiBtiDOs, the Assenepolacs, the people from the Sapini^re, the Openens-
Dachiling, the Outouboahys, and Tabitibis, which comprise all the nations which are to-
the west of the Northern Sea, have promised to be, next spring, at the fort which I hare
constructed near the River k la Maune, at the bottom of Lake Alemepigon, and next sum-
mer I will construct one in the country of the Klistinos, which will be an effectual barrier.*''

Now the country of the Klistinos, cw it is called here, would be to the north.
The Lake Alemepigon is the same as Nepigon, which your Lordship will see lie»
within the due north line, but the fort Lamaune is north of this Lake
Alemepigon, and it is within the extended boundary which the award has given
us. Then Rainy Lake, your Lordships will see, is within that same contested
district, and a post was established there by the French also.

Lord ABERDARE.~Fort St. Pierre, in 1731.

Mr. ScoBLE. — Yes, in 1731.

Sir Robert Collier.— Is it on the map ?

Mr. ScoBLE. — I will give your Lordship the reference in a moment

Sir Robert Coluer. — It is not mentioned in page 603.

Mr. Scoble. — This one, on Rainy Lake, is on the map, and is one of thos^
mentioned in Jefferys' book, which I have already referred your Lordships to, at
page 183. It is in that extract which I read from the memorandum of the Com-
missioner of Crown Lands, Canada, 1857 :

''At ninety -five leagues from this greatest height lies the second establishment of the^
French that way, called Fort St. Pierre, in the L^ke des Pluies. The third is Fort St.
Oharles, eighty leagues further, on the Lake des Bois. The fourth is Fort Maurepas, a
hundred leagues distant from the last, near the head of the Lake of Ouinipigon.''

Then Fort La Reine is a little farther on. We need not trouble anything about
that It is considerably farther on. It is described as on the River of the
Assiniboels. The only ones that I need trouble your Lordships with are Fort SL
Pierre, on Rainy Lake, and Fort St. Charles, on the Lake of the Woods.

Sir Robert Collier — Is it here on the map f

Lord Aberdare. — Yes, it is on the lake, to the westward ; it appears to be
just outside the district.

The Lord Chancellor. — Fort St. Charles is in Manitoba ?

Lord Aberdare. — The line of the award goes through the lake ; it does not
give the whole.

"Mr. Scoble. — As a matter of fact, Fort St. Charles was within the territory
assigned to the United States. f The order for the erection of these posts in the
territory in question, you will find at page 640 of the Joint Appendix. It appears
to be a report of the Conseil de Marine, dated 7th December, 1717. It says :

" Messieurs de Vaudreuil and Begon having written last year that the discovery of
the Western Sea would be advantageous to the colony, it was approved that, to reach it,
M. de Vaudreuil should establish three posts which he had proposed, and he was
instructed at the same time to have the same established without any expense accruing
to the King, as the person establishing them would be remunerated by trade, and to send
a detailed schedule of the cost of continuing the discovery. In reply, it is stated that
M. de Vaudreuil, in the month of July last, caused the Sieur de la Noiie, lieutenant, to
set out with eight cannon to carry out this scheme of discovery. He gave him instruc-
tions to establish the first post at the River Kamanistiquoya " —

That is just at the boundary.

* Dated 10th Seutember, 1684.

t It wit on the thore of the Lake of the Woods, bat within the present United States boandary lintk.

156

coNDrnoNs of the sxtrrender of Rupert's land.

Lord Aberdare. — Fort William ?
Mr. SooBLE. — Yes. Fort William :

" He gave him instructions to establish the first post at the Riyer Kamanistiqaojfl^
to the north of Lake Superior, after which he is to go to Takamanigen [Takamamioiien] ** —
which is, as I understand, Rainy Lake — " near the Lake of the Ohristineaux, to establish
a second, and to acquire through the Indians the information necessary for the establish-
ment of the third, at the Lake of the Assinipoelles [Winnipeg]."

Lord Aberdare. — [Referring to the Ontario bovmdary Tnap] I observe the
livord " Ohristineaux " is printed in the north-west portion of the territory given
by the award,* as well as being one of the names by which Winnipeg is called.

Mr. ScoBLE. — Winnipeg Lake, I understand, is sometimes called the Lake of
the Ohristineaux. That is the northern part of it. The other part of it is called
the Lake of the Assiniboels, after the adjoining tribe.

The Lord Chancellor. — It seems to be printed to the north-west of the
<5oloured part, and to the end of the uncoloured part.

Sir Barnes Peacock. — Some of the blocks of land reserved to the Hudson's
Bay Oompany is within the Rainy Lake district. At page 317, they retain
certain " posts or stations now actually possessed and occupied by them."

The Lord Ohancellor. — It seems to shew, whether rightly or wrongly, they
had claimed to extend their territory over a portion of what was awarded to
Ontario. They claim it as part of the land of which they were in possession at
the time the Act passed.

Sir Barnes Peacock. — Yes.

Sir Robert Collier. — What they claim to be entitled to under the second
section of the deed of surrenderf* is this :

" The Company to retain all the posts or stations now actually possessed and occupied
by them, or their officers or agents, whether in Rupert's Land or in any other part of
British North America, and may, within twelve months after the acceptance of the said
surrender, select a block of land adjoining each of their posts or stations, within any part
of British North America, not comprised in Canada and British Columbia, in conformity,
except as regards the Red River territory, with a list made out by the Company and com-
municated to the Canadian ministers, being the list in the annexed schedule."

Therefore it becomes a question whether some of the territory set out in the
schedule is comprised in Canada.

Sir Barnes Peacock.— They specify that.

Sir Robert Oollier. — But it does not follow necessarily that they are
entitled to what they specify. Then they give a list of what they claim.

Lord Aberdare. — That is at page 319.

Sir Robert Oollier — Page 319, that is the schedule to their deed of sur-
render, in which they state their claim.

Sir Barnes Peacock. — The British Orown were to take it, and then transfer
it to Oanada after the surrender.

Sir Robert Oollier. — This states all they claim, but it does not necessarilj
•follow that they are entitled to all that they claim. They make very extensive
-claims indeed here. TLey assert this as not belonging to the Dominion of Canada,
but I think that is a subject to be inquired into.

Sir Montague Smith. — They agreed upon £300,000, and then the govern-
ment would take in everything, whether doubtful or not. It does not shew that
iiiis was the Hudson's Bay Company's territory at the time that the government
took the surrender.

♦ Christineauz— Kris—Orees— the Indian tribe of that name.

t Deed of Surrender of Rupert's Land, 19th Noyember, 1869, Ihe GoTemor and Company of AdTto-
rtwan of Bngland trading into Hudson*! Bay, to Her Majesty.— Prefix to SUts. of Can., 1879, P. Izzrtt.

167

ARGUMENT OP MR. SCOBLE, Q.C., re QUESTION OF BOUNDARY :

Sir Robert Collier. — Where is the Act enabling the government to accept
the surrender ?

Mr. Scoble. — Page 445.*

Sir Robert Collier. — I think this Act says : " Whereas a draft
surrender has been submitted to the Qovernment of Canada." I am not
quite sure whether we have had before us the draft surrender which was
so submitted. Here is the Order of Council, and I do not see that the Order in
Council gives them all that they claim in their schedule, as at present advised :

" The size of the blocks which the Company are to select adjoining each of their
forts in the Red River limits shall be as follows : —

Aoree.
Upper Fort Garry and Town of Winnipeg, including the enclosed park

around shop, and ground at the entrance of the town 500

Lower Fort Garry, (including the farm the Company now have under

cultivation) .' 500

White Horse Plain 500."

But I do not see that this Order of Council gives them all that they claim in
their schedule.

Mr. Scoble. — In section 2, on page 448, the next page :

" The Company are to retain the posts they actually occupy in the North- Western.
Territory, and may, within twelve months of the surrender, select a block of land adjoin-
ing each of its posts within any part of British North America, not comprised in Canada
and British Columbia" —

The Lord Chancellor. — It goes on :

— "in conformity, except as regards the Red River territory, with a list made out by the
Company and communicated to the Canadian Ministers, being the list in the schedule of
the aforesaid deed of surrender."

The Order in Council says it is in conformity with a list made out by the company^

Sir Robert Collier. — That is so.

Mr. Scoble. — As I understand, under that clause of the surrender, they have
not claimed any land whatever within the limits of the bit of territory now under
discussion.

The Lord Chancellor — The Order in Council says expressly that the Com-
pany may

— " select a block of land adjoining each of its posts within any part of British North
America, not comprised in Canada and British Columbia, in conformity, except as regards
the Red River territory, with a list made out by the Company and communicated to the
Canadian ministers, being the list in the schedule of the aforesaid deed of surrender."

Lord Aberdare. — If they did get a block at Fort St. Charles, which is with-
in the award.-f- would that be an argument that that was considered as not being
a portion of Upper Canada ?

The Lord Chancellor. — If it was proved that they did actually get it, it
might be an argument, but the learned counsel says they did not get it. I should
like to know whether there is any difference about it. If, independently of this,
we should lind a grant to Upper Canada, and there is any evidence that they
actually got it, and it belonged to Upper Canada, the fact that by deed of surren-
der they claimed it would not at all decide it.

Mr. Scoble. — I understand that the statement I made just now must not h^
taken by your Lordships. My learned friends contest the point.

The Lord Chancellor. — Very well.

* Imp. Aot, SI and 82 Viol, c»p. 106. tSee tmU, p. 156, note f.

158

BOUNDARIES CLAIMED BY THE BRITISH COMMISSARIES AFTER TREATY OP UTRECHT,

Mr. ScoBLE. — I understood there had been no land taken in the particular
region, under this agreement.

My Lord, there is one matter which I may mention here, while we
are upon this, which is a geographical question rather than anything else,
that is, with reference to that map which the Lord Chancellor had yesterday,
dated 1703. There were two lines marked on it, one line marked " Ligne
selon la pretension des Angloia** and the other line marked "Ligne aelon^
le TO^moire de M. d'Auteuil" Those two lines appear to have been put on the*
map at a date considerably subsequent to the date which the map bears,
becau«*e althou<;h the map is dated 1703, the lines " Selon la pretension des^
Anglais'' and the line " Selon le raemoire de M, dJAuteuil " did not come into
existence till 1719. The lines on this map, so far as I can make out, do not ap-
pear to be lines on the orij^jinal map, but lines drawn on the map at a subsequent
feriod. I am told they do not appear on the face of the original map itself, and
think it must be so, for this reason, that it refers to " la pretension des Anglois "
of which there is no evidence whatever at the date on the map, but in 1719,
your Lordship will find it at page 511 of the Joint Appendix, under the head of
" Boundaries claimed by the English commissaries."* The English commissaries
under the Treaty of Peace set forth the line, and at page 512 your Lordships will
find the Memoir of d'Auteuilj-f- combating the "pretension des Anglois** put
forward by the commissaries.

* Boundaries Claimed bt the English Ck)MMiS8ABiE8, 1719.

Memoir on the iubjeet of the Limits of Hudson's Bay, sent by the English Commissaries^ through Lord Stair ^
to the Afarechal d^EatrieSt one of the French Commissaries^ 1719,

His Majesty, the late Moat Christian Kinf?, having stipulated, by Article 10 of the Treaty of Peace oon-
cluded at Utrecht, that Hudson 'h Bay and SStrait, with all the lands, seas, coasts, rivers, and places which
appertain to them, shall be restored to the Kingdom of Great Britain ; and that Commissaries shall be
named on each side to determine the limits of each nation ; which limits, the subjects of each nation shall
not be permitted to pats by nea or land :

The Commissaries named by His Britannic Majesty demand that the said limits may be defined in the
manner following, viz. : That the limits shall commence from the north cape of Davis' Bay, in lat. 56^ SCK,
which shall serve as limits between the English and the French, on the coast of Laboradore, towards Rupert's^
Land on the ea^-it main, and of New Britain on the French side ; and that no French vessel, boat or ship
whatsoever shall be allowed to pass to the north or the west side of the north cape of Davis' Bay, towards
or into the Stnut or Bay of Hudson, under any pretext whatsoever; and furthermore, that a line shall be
drawn from the said north cape of Davis' Bay, towards the great lake MiHco^inke or Mistoveny, dividing-
the said lake into two parts, and that at the place where the said line shall intersect the 49th parallel of
north latitude, another line shall commence, and shall be extended on the west side from the said lake along
the 49th parallel of north latitude ; beyond which Imes thus described, neither the French nor any other
person employed by them shall pass towards the north of the said 49th parallel of north latitude, or towards
the north mrj the north-west of the said lake, or supposed line, neither by land nor by water, nor traverse
any river, lake or country, for the purpose of trading, nor build any fort, nor found any settlement.

And forasmuch as the subjects of His Most Chrintian Majesty have made, since the Peace of Utrecht,
a settlement at the source of the River Albany, the Commissaries of His Britannic Majesty insist that the
French shall quit the said settlement, and that the fort, if there be any such building, shall be given up ta
the < 'Ompanv of English merchants trading into Hudson's Bay aforesaid.

The said Commissaries further demand that the subjects of His Most Christian Majesty shall not build
forts, or found settlements, upon any of the rivers which empty into Hudson's Bay, under any pretext what-
soever, and that the stream, and the entire navigation of all the said livers, shall Deleft free to the Company
of English merchants trading into Hudson's Bay, and to such Indians as shall wish to traffic with them.^

^The demand \n the last paragraph wis not authorised by the commiisaTieH' IrstnictioDs; norwasthatof kt 6Ci*
as the point of oommenoement. They were required to demand that the line should con.mer.ce at Griminffton's Island, or
Cape Perdrix. in lat. 68|<». (Joint App. 608, 574, 578. As late as 1750, the Company sUll adhered to this latter T '~
0Uinorial of 1760, in '* Ontario Boundaries before Privy Council.")

t Memoire OF M. D'Autbuil, RKSPicrriNO the Limits ov Hudsoh'i Bat, 1719-20.
m. d'Autenil was, at the date of the negotiations respecting the boundaries, 1710-20, Procure* rOeneral of CsBada,aM
Iwd been called to Paris at the insUnce of the French Commiuaries, as a eontpetent authority on the question of the bo«Bd-
arieti He was in freqnent coneultation with the Commisearies, one of whom, Abbe Dubois, is kDf>wB to have bad eoastant
refcmce to him in matteri of difflcuKy. Hie two memoire bear ibternal crideDce of baring been prepared la iMwer
%Q thf logUsh demands ; they were so prepared probably for the information of ih* French Cemminailes.]

First Memoire,
• • • Allth6sefMt«b«iDg]aiddown, of which m/Lordi the CommisMriet will BUkke ••€%«■•
smi^mBf Mgt prop«r, I corn* to tb»t which •onoems th« Umit*. Chi th« ivppotition thm% i% but ^

169

ARGUMENT OF MR. SOOBLE, Q.C , re QUESTION OF BOUNDARY :

The Lord Chancellor.— This line was what at that time the British Oot-
erment claimed.

Mr. SCOBLE. — Yes, my Lord, and what the French government would not
agree to, and so far it illustrates, and may perhaps illustrate correctly, the state-
ments to which I have just referred your Lordships ; but as nothing whatever
oame of the reference, I imagine neither party is bound.

The Lord Chancellor. — The line there laid down is a straight line ; the
.boundaries as actually ascertained are irregular.

Mr. ScoBLE. — The French boundary, your Lordships will perhaps remember,
t>uns close round the shore of Hudsons Bay : M. d'Auteuil's memoir locates the
boundary there.

The Lord Chancellor. — The British pretension brings it to the south of
the lakes.

Sir Robert Collier. — It does not claim any territory south of the line
drawn.

The Lord Chancellor. — The lakes now called Winnipeg Lake and Mani-
toba Lake are treated as one large lake, and they also are to the north of the line
marked as the boundary.

Mr. Scoble. — The line appears to have been drawn upon the fa,ce of the map
by some one in the French Ministry of Marine, or whatever public office it is that
the map proceeds from. They were not part of the map as originally drawn by
the geographer. They must have been drawn in or after 1719.

The Lord Chancellor. — They doubtless were drawn for the purpose of
that question.

neoMsary, in Tirtue of the 10th Article of the Treaty of Utrecht, to cede to England Fort Bourbon, and all
the other establishments which are on the shores of the Bay, I say :

Ist. That it is weU to remark that the English, in all the places of the said Ba^ and Strait which
they haTo occupied, have always stopped at the border of the sea, carrying on trade with the savages who
went there to find them ; whilst the 1* rench, from the foundation of the oolony of Canada, have not ceased
to traverse all the lands and rivers bordering on the said Bay, taking possession of all the places, and found-
ing everywhere posts and missions.

2nd. They cannot say that any land, or river, or lake belong^ to Hudson's Bay ; because if aU the riven
which enter into this bay, or whicn communicate with it, belong to it, it might m said that all New France
belonged to them, the Saugenay and St. Lawrence communicating with the Bay by the lakes.

Tnat this being incontestable, it is for France to regulate the limits in this particular quarter (a rtgUr
U$ limites <U ee tote la) ; and that of the little which she may cede, she will always cede that which is her
own, at the English cannot pretend to anything exceot a very small extent of the country adjoining the
forts which they have possessed at the bottom of the Bay. Nevertheless their pretensions amount to noth-
ing lets than to overrun nearly all the north and west of ISew France, as they would also do on the south
ooMt br extending the boundaries of Acadia as far as the Fort of Quebec, these being the proposi-
tioof which the Commissaries named by the King of England have made, but which they have never
signed.

fHo then quotes the English claims as submitted by Lord Stair, ante p. 159.]

The simple reading of these propositions renders it apparent that there can be no other response to make
to them than to reject them absolutely, as not having any foundation which can support them. By what
right indeed, and m virtue of what treaty do these gentlemen break the Treaty of Breda, which placed our
limits at the 60th parallel, in order to place them at the 49th, not only from the shore of the Bay, which
has been ceded to them, but stretching toward the west in every longitude ? The Treaty of Utrecht speaks
only of restitution—let the English shew that which the French have taken from them, and they will restore
it to them; but all that they demand bevond this, they demand without any appearance of ri^ht Article
10 of the Treaty of Utrecht restores Hudson's Strait ; why then wish that the boundary on this side should
commence at the north cape of Davis' Bay, in 56^ degrees of latitude, since this cape is more than 180
leagues from the cape of Isle Bouton, at the 61ttt degree or thereabouts, which is the commencement of
Hudson's Straits? This excessive claim would carry away a large portion of the land of Labrador, which
France has not ceded.

The line of separation should then commence at Oape Bouton, pass through the middle of the territory
which is between Fort Rupert and Lake Nemiskau, of which P^re Albanel, Jesuit, and Mr. de St. Simon,
took possession in the name of the King, in 1672 \ follow, at the same distance from the Bay, along the
eastern side, in such manner as to divide in the middle the territory between the Lake of the Abitibis and
Fort Monsipi or St. Louis ; continuing, at a similar distance from the shores of the Bay, at the western
sida^ nntil beyond the rivers of St. Th^r^i*e and Bourbon.

That if on the territory which by these lines belongs to England, there should be found Frendi eetlle-
meats, they shall be destroyed ; but those that may have been foxmded on our own lands shall be continued,
each one being master of his own.

[Here follows the second memoire, which it is not considered necessary to reproduce.]

160

H.B. CO*S. RIGHTS IN NORTH-WEST, ONLY TliOSE COMMON TO ALL BRITISH SUBJECTS.

Mr. ScoBLE. — Most likely, to shew clearly what the claims ot the parties
were.

Then, my Lord.. 1 submit, with regard to the whole of this territory covered
by the Award, theie is evidence to shew that it was well within the line of what
may be contended to have been ceded to England by France by the Treaty of Paris,
and which having been so ceded is constituted by the Act of 1774 into the Pro-
vince of Quebec. The position of the Hudsons' Bay Company in regard to this
territory after the cession, appears to have been precisely the same as that of any
other person, who chose to come into the country— in fact it does appear upon
the evidence, that after the treaty of 1763 other persons did come into that terri-
tory, in advance of the Hudson's Bay Company, and gradually, by a series of pro-
cesses, established trade rights, and their right to be in this country carrying on
business and settling themselves down in the various districts. Eventually these
traders formed themselves into a company, called the North- West Company,
which for a serias of years carried on practically a civil war in that region with
the servants of the Hudson's Bay Company, who had at length followed them into
this region ; and in the disputes which arose between the North-West Company
and the Hudson's Bay Company's servants in those years, we find from the cor-
respondence, to which I need not refer your Lordship at length, the British Govern-
ment entirely declined to take any part whatever, except so far as was necessary
to the protection of British subjects in these parrs against the Indians, and really
against one another. The position of the Hudson's Bay establishment in that
part appears to have been precisely the same as that of any other adventurers
who chose to come there, and they were not recognized in any way by the
British Government at the time. There is a long correspondence upon that sub-
ject. Lord Bathurst was Secretary of State. Your Lordships will find it in the
Ontario Appendix, beginning at page 142. On that page, at line 36, in a letter
to Sir Gordon Drummond, 18th March. 1815, in reference to an application from
the Hudson's Bay Company for a military force to assist them in resisting an
attack apprehended from the Indian nations in the neighbourhood of the Red
River, Lord Bathurst says :

'* You will i&ke a special care, whatever measures you may adopt for this puipose to
abstain from doing any act or expressing any o^^inion which may tend to affect the ques-
tion in dispute between the Hudson's Bay and North-West Companies ; the sole object of
the present instruction being to secure the lives and properties of Her Majesty's subjects
established on the Red River, from the predatory attacks of the Indian nations in the
neighbourhood, with which they state themselves to be threatened."

Then in the next letter, one from Sir Gordon Drummond to Lord Bathurst, " Castle,
Quebec, August I6th, 1815," the last paragraph is the one to which I call your
Lordship's attention. Sir Gordon says :

'' The question as to the invasion of rights, of which the North- West and Hudson's Bay
Companies mutually complain, appears to me to be entirely one of law, and one in fact
on which the law can alone decide ; it has therefore very properly been referred by the
North- West Company to a legal tribunal."

There is a good deal more correspondence very much to the same eflfect, all treat-
ing the question of the right of settlement and occupation in this part of the
country, about the Red River, as open to everybody after the Quebec Act and the

11 (B.) 161

ARGUMENT OF MR. SCOBEL, Q.C., VC QUESTION OF BOUNDARY ;

treaty with France. Then again, in 1817, page 146, commissioners are appointed
to investigate and report upon the subject of dispute between the Hudson's Bay-
Company and the North- West Company, and a proclamation is issued command-
ing a mutual restoration of all places seized, and the removal of all blockades or
impediments to the free passage of trade and traders by the accustomed communi-
cations.*

The Lord Chancellor. — Are we not getting into an interminable quagmire ?

Mr. ScoBLE. — I merely wished, with reference to this particular part of the
country, to say it really was, except as far as men chose to occupy it, No Man's
Land. It was under the government of England, exercised through the govern-
ment of Canada, and anybody who chose to go and settle there, and establish
posts there, could do so. The North-West Company were establishing positions
there, quarrelling with the Hudson's Bay Company, and the Canadian and
British governments prepared to leave them to settle their disputes in a court of law.

The Lord Chancellor. — All that ended in the Rupert's Land Act

Lord Aberdare — Your argument is -to shew that the mere occupation of
certain hunting posts in this region, which occupation was in common with other
hunting associations, is no proof that it belonged to them ?

_ — — • . i a

* Eabl Bathubst, to Governor-Genebal Sir John C. Shbrbrooke.

Downing Street, 6th February, 1817.

SiR^Since I bad tbe honour of addressing you on the subject of the disputes existing between the
North- West and Hudson's Bay Companies, I have received intelligence from different quarters, of the con-
tinuance of those proceedings which have involved the whole Indian country in disturbance^ and which, ,if
a check be not early put to them, threaten to be utterly destructive of the intercourses subsisting between
that country and His Majesty's dominions. To prevent coDsecjuences so fatal to both parties, and so preg-
nant with danger to the safety of the Canadas, His Royal Highness the Prince Regent has been pleased
entirely to approve of the appointment of Mr. Coltman and Mr. Fletcher, as commissioners to investigate
and ret>ort upon the subjects of dispute between the Hudson's Bay and the North-West Companies. But as
much time must necessarily elapse before their report can be received and properly considered, I am com-
manded to sisrnify to you His Koyal Highness's pleasure that measures should be immediately taken for
puttinfi^ an end to those violent proceedings, which have latterly marked the contest of these two companies ;
and with this view, that each should be restored to the possessions held b]r them previous to the commence-
ment of their recent disputes. You will therefore, upon the receipt of this despatch, issue a proclamation,
in the name of the Prince Reg[ent, calling upon the agents of each party, and upon all those whom either
may have enlisted or engag^ in their service, to desist from ever^ hostile aggression or attack whatever ;
and in order to prevent the further employment of an unauthorized military force, von will require aU
officers and men composing such force to leave within a limited time the service in which they are engaged,
under penalty of incurring His Royal Highness's most severe displeasure, and foHeiting every privilege
to which their former employment in His Majesty's service would otherwise have entitled them.

You will also reauire, under similar penalties, the restitution of all forts, buildings or trading stationa
(with the property wnich they contain) which may have been seized or taken possession of by either party,
to the party who originally established or constructed the same, and who were possessed of them previous
to the recent disputes between the two companies. You will also require the removal of any blockade or
impediment, by which any party may have attempted to prevent or interrupt the free passage of traders, or
others of His Majesty's subjects, or the natives of the country, with their merchandise, furs, provisions and
other effects, throughout the lakes, rivers, roads and every other usual route or communication heretofore
used for the purposes of the fur trade in the interior of North America; and the full aad free permission
for all persons to pursue their usual and accustomed trade, without hindrance or molestation ; declaring at
the same time that nothing done in consequence of such proclamation shall in any degree be considered to
affect the rights which may ultimately he adjudged to belong to either party, upon a full consideration of
all the circumstances of their several claims. I trust that the parties themselves will understand their own
interests too well, not to ^rield a ready obedience to the comm<indi) of His Royal Highness, but in order to
ensure it you will not hesitate to arm the commissioners with such additional authority as you may con-
sider requisite to enforce the proclamation^ and to take every other measure in jrour power for securing the
objects which His Royal Highnees has in view, namely, the cessation of all hostility both in Canada and the
Indian country, and the mutual restoration of all property captured during these disputes, and the freedom
of trade and intercourse with the Indians, until the trials now pending can be brought to a judicial decision,
and the great question at issue with respect to the rights of the two companies shall be dennitely settled.

I have the honour to be, etc.,

Bathubst.
Lieut. -General Sir John C. Sherbrooke, G. C. B.^ etc., etc.

162

i

T^pr

THE AWARDED LINE IN CONSONANCE WITH LAW AND WITH THE FACTS.

Mr. ScoBLE. — No proof that the territory belonged to them.

Lord Abe RD ARE. — You are directing your argument to that particular point ?

Mr ScoBLE.— Yes.

I do not think that there is any 6ther matter that I have to bring to your
Lordships* notice upon this case. I think the evidence amply shews that the
Arbitrators were perfectly justified, by considerations of law and fact, in adopting
the line which they did, which has been admitted to be a convenient line ; and
I ask your Lordships to confirm their Award.

[Their Lordships consvXted.']

The Lord Chancellor, — Their Lordships desire it to be understood that they
will only hear two counsel, and if counsel for the Dominion of Canada and the
Province of Manitoba wish each to be heard, they will settle among themselves
who are to be heard among the various counsel retained ; but it is one case, and
there will be only two counsel heard. Then, secondly, their Lordships do not
desire that you should travel into the question of any indefinite extension of the
limits of Canada, north or west. They consider the true question to be the pre-
sent identification of the boundaries laid down in the Quebec Act.

Mr. McCarthy. — The point, my Lord, uptn which the Province of Ontario
must satisfy your Lordships, in order to sustain the claim to which they have
now limited the demand of the province, is, first, that the due north line is not
the proper line on the west ; that proposition we deny. Secondly, if it be not
the due north line, but that the line taken by my learned friend is the proper
line to follow on the west, along the bank of the Mississippi, then, in order to
get the determining point, it appears to me that the province is bound to shew
where the southern boundary of the Hudson's Bey territory was and is, because,
until you get to that southern boundary, the line is not fixed.' If, for instance,
you follow up the eastern bank of the Mississippi, and you come to the height
of land, and that height of land was the southern boundary of the Hudson's Bay
territory, then the course, in order to find the western boundary, would be to
follow that height of land. If that be not taken as the southern boundary of the
Hudson's Bay territory mentioned in the grant, then I am at a loss to know
where my learned friend would ask your Lordships to stop. The award of the
arbitrators assumed that there was no Hudson's Bay territory ; they penetrated
through this height of land of which I am now speaking ; they went to the north-
west angle of the Lake of the Woods ; and then they went north for a certain
distance to that point of the English River — due north.

The Lord Chancellor. — They adopted apparently the line really laid down
on Mitchell's map.

Mr. McCarthy. — I think I shall be able to shew your Lordships that that
was not treated at any time as being properly or carefully noted. In point of
fact, as to this part of the country, the geographers of that day were in great
ignorance.

The Loud Chancellor. — Are you going to shew us what took place before
the award ?

Mr. McCarthy. — I am going to shew your Lordships that the only theory
upon which the award can be supported is, by penetrating this height of land to
the north-west angle of the Lake of the Woods.

The Lord Chancellor. — We have not anything before us at present which
points to that height of land at all.

163

Wt

m-

ik^-

ARGVMENT OP MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY:

Mr. McCarthy. — My suggestion, if your Lordship will allow me, is, if that
height of land be not taken, where is the line to stop ? That is one of the diflfi-
culties that has always occurred to me.

The Lord Chancellor. — At present, upon the evidence, you have got
certain limits laid down in certain documents, in the Quebec Act, a most authorita-
tive document, and, to identify them, a map is produced giving the line of those
lakes and the English River as the southern boundary of the Hudson's Bay
territory. These seem at all events to lead to the conclusion which the award
has arrived at, and they have to be answered.

Mr. McCarthy. — Yes, my Lord. Your Lordship will see the award first follows
English River, bljen up to Lac Seul, and Lake St. Joseph ; it then takes the
Albany River, and goes to Hudson's Bay.

The Lord Chancellor. — You will observe, if the rest of the territory,
farther east, is assumed to be correctly laid down, it u a consistent water bound-
ary. The water boundary starts from Hudson's Bay, going up the Albany River
to Lake St. Joseph, then on to the English River, and so out on Manitoba terri-
tory. If any natural boundary is to be regarded at all, that seems to be a very
feasible natural boundary.

Mr. McCarthy. — It entirely ignores any rights of the Hudson's Bay Com-
pany. The line by the award is from Fort Rupert on the east, stretching to the
Albany River on the west. Supposing there be any part that the Hudson's Bay
Company were clearly entitled to oetween these two points, it is where they first
settled and where they continuously < ccupied, and yet the award takes from the
company that part of their territory to which beyond all question they are most
clearly entitled.

Lord Aberdare. — The award did not deal with this question of the addi-
tion to Ontario.

Mr. McCarthy. — Oh, yes, my Lord, the award started on the east at Fort
Rupert, and then went along Janftes* Bay until it struck the Albany River.

The Lord Chancellor. — It is not that the arbitrators considered that to
be the b(jundary in that direction; their office was to arbitrate between the
Dominion and Ontario.

Mr. McCarthy. — The Dominion were alone entitled, at the date of the arbi-
tration, to both north and west. Since the award, Manitoba has come in upon
the west, but at the time of the award the Dominion was the owner both to the
north and west. What I am pointing out is this, that if the due north line is
followed to the north, a plain consistent line, of course that would end your
Lordships' labours ; but if the due north line be not followed, and the Mississippi
course be taken, as is urged on the other side, then in order to find out where the
western line is, it is necessary to find where the Hudson's Bay territory ended.
If it ended, as we contend, at the height of land, then your Lordships will see
the effect that will have upon the western limit Where it appeared to me that
my learned friends' arguments were inconclusive, was that they gave your
Lordships no data, assuming the Mississippi was the proper course to take, where
that should stop.

The Lord Chancellor. — This map [MitcheWs] is evidence.

Mr. McCarthy. — Conceding for the moment that that map is some evidence,
and I think I shall be able to shew that it is not, it may not be unimportant, at
the opening, lo point out what were the rival claims, for the Dominion and the
Province, when this reference was made. The Dominion claimed, consistently, all
along, for the due north line, relying upon the construction of the Quebec Act
which we propose to contend for here before your Lordships. The Province, upon

164

L:

BOUNDARIES CLAIMED BY DOMINION AND ONTARIO RESPECTIVELY, 1871-2.

being appealed to to say what boundary they wanted, fixed the limit which
will be found at page 334 of the Joint Appendix. And it is useful in a twofold
sense ; it is useful, in the first place, as shewing — although, as I will point out, it
was subject, if not accepted, to a greater claim being made — what the Province
then was content with, and, secondl}^ as indicating that the Hudson*.s Bay Com-
pany's rights went to the height of land : *

*' The boundary line of Ontario is the international boundary from the month of
Pigeon River" —

The Lord Chancellor — What was the origin of this document ?

Mr. McCarthy. — After Rupert's Lapd had been added to the Dominion, the
Dominion formulated their contention, which was, as I have said, the due north
line. Then the Province is called upon to name the boundary it wanted, and that
is done by the Order in Council of 19th April, 1872, on page 333.

The Lord Chancellor. — This is the Ontario claim, stated by them in 1872 ?

Mr. McCarthy. — Yes :

" The Committee of Council have had under consideration thedespatch from the Secre-
tary for the Provinces, of the 10th instant, on tke subject of the boundary line of Ontario,
and the copy of an approved Minute of the Privy Council of Canada enclosed. In this
Minute the Privy Council regrets * that the ujovernment of Ontario, while expressing their
difference of opinion from that of the Dominion, omitted to give their own views on the
subject, and did not btate what t)heir claim as to the location of the boundary was.' The
committee would observe that the despatch on which their minute was founded did not
contain any invitation to the government of Ontario to express its views, or state its
claim. The government of Ontario is now invited to do so, and the committee advise
that the government of Canada should be informied that this government proposes the
boundary contained in the annexed description/' f

Now we come to the description :

*' The boundary line of Ontario is the international boundary from the mouth of the
Pigeon River, on Lake Superior, to a point west of the Lake of the Woods, where the
international boundary line would be intersected by a line drawn north from the ;Souroe
of the Mississippi River ; th&nce the boundary line of Ontario runs north to the point of
inteisection of the southern boundary of the Hudson's Bay territories; thence the
boundary line of Ontario is the southern boundarv of those territories, to the point where
that boundary would be intersected by a line drawn north from the head of Lake Temis-
caming."

The liORD Chancellor. — Is that the one actually adopted by the award ?

* On the contrary, the government of Ontario, even at this early period, before some of the important
evidence bearing upon the point had yet come to their knowledge, maintained ** that the northern boundary
lies north of the watershed of the St. Lawrence system. " See note t, infra, .

t The two remaining paragraphs of the Order in Council are as follows c

The committee further advise that the government of Canada should be informed, that as to the western
limit, in the opinion of this government,! there are grounds for maintaining the contention of former govern-
ments of Canada, that the limit of Ontario is further west than the one proposed in the description, and
that, while this government is prepared, in view of all the circumstances, to agree to the western limit so

noosed, in case the same is accepted by the government of Canada, this government does not consider
f bound by the proposal in any other event.

As to the northern limit, it will be observed, from the description, that this government maintains the
position, which is supported by the contentions of all former governments, and by the indisputable facts, that
the northern boundary lies north of the watershed of the St. Lawrence system, the line of which watershed
is the northern boundary laid down by the government of Canada ; and the committee advise that the
government of Canada should be informed that, in view of all the circumstances, this government will be
prepared, in case its position as to the northern boundary is agreed to by the government of Canada, to
consider any proposal which may be made by that government fur the establishment of a conventional limit
to the north of that watershed.

165

V^tT

ARGUMENT OF MB. M CARTHY, Q.C., ve QUESTION OF BOUNDARY

Mr. McCarthy. — No. They adopted the western limit at the Lake of ihe
Woods. Instead of treating the Hudson's Bay territory as existing in fact, if at
all, they ignored the Hudson's Bay Company having any claim.

The Lord Chancellor. — I am afraid I do not see the topography exactly.
The Hudson's Bay claim, in 1755, appears, so far as the question now in dispute,
to have been limited to the water line — the water line of English River and the
lakes. That is all we have at present upon it. Farther east, we know nothing
as to the boundary, but I want to know whether that is different in your view
from what is here claimed.

Mr. McCarthy. — Oh, yes, my Lord. The claim, according to that map, would
have been to the height of the land.

The Lord Chancellor. — There is not a word about it.

Mr. McCarthy. — It says the Hudson's Bay territories.

The Lord Chancellor. — We have Mitchell's map laying down the southern
limit of the Hudson's Bay territory.

Mr. McCarthy. — Perhaps I may as well state that we propose to satisfy your
Lordships that the Hudson's Bay territories were either bounded by the 49th
parallel or by the height of land.

The Lord Chancellor. — At present we know nothing about either the one
or the other.

Sir Montague Smith. — ^The proposed boundary, mentioned at page 334, id
what the Dominion proposed ?

Mr. McCarthy. — No, that is what Ontario proposed. The Dominion pro-
posed the due north line. Your Lordships will see by the next sentence of the
letter. It may perhaps be as well, my Lords, to look at this map of Mitchell's,*
which your Lordships think affords some evidence in favour of the view taken
by the arbitrators [producing MitchelVs map to their Lordakipa]. Now this
map, beyond a certain point, may be said to be, I think, so wholly wrong as to
form no guide whatever. The first thing which I find in the map is, that the
height of land is laid down and stated to be the boundary of the Hudson's Bay
territory. That is the first thing I point out to your Lordships. You see it says
" by the Treaty of Utrecht."

. The Lord Chancellor. — The height of land does not seem to be connected
with the words Treaty of Utrecht — " Bounds of Hudson's Bay by the Treaty of
Utrecht." Then you may say that the thing is continued, no doubt.

Mr. McCarthy. — That is what I mean.

Lord Aberdare. — That is not the land's height.

Mr. McCarthy. — ^Yes, at that particular part, that is the land's height. But
what this geographer, or mapper, did not know, or did not mark down, was that
this land's height came down here [indicating the position of the height of land
to the west oj Lake Superior].

Lord Aberdare. — Perhaps that is because* the land's height at that particular
part ceased to be the boundary, and that is perfectly consistent with the descrip-
tions constantly given by the English commissions to go to the north-west point
of the Lake of the Woods. Now the north-west point of the Lake of the Woods
is certainly on the northern side of the watershed. There is the Lake of the Woods,
and here comes the height of land [jpointing on MitchelVa map],

Mr. McCarthy. — From this point here there is then another height of land,
so to speak, not properly speaking what the Americans term, very expressively,
" a divide," but a height of land that runs to Split Lake.f These rivers here all
drain round Split Lake into Hudson's Bay, but this is the sgpai-ating range of hiib.

* See arUe, p. 107, note. t See ante, p. 7, note t.

166

THE AWARDED BOUNDARIES, 1878.

The Lord Chancellor. — This also drains into Hudson's Bay.

Mr. McCarthy. — Yes ; but then this is the division ; the true height of
land comes down here.

Lord Aberdare. — ^That may be admitted, but it does not follow, although
the general rule was that the Hudson's Bay Company should have the height of
land as their limit, that it was universal, when we find that the north portion of
the Lake of the Woods, which clearly was inside the height of land, was claimed
by the British government as the proper boundary of Canada.

Mr. McCarthy. — I think I shall be able to explain that when I come to it.

Sir Robert Collier. — I understand the pink is the Hudson's Bay territory,
and this is Canada [referring to the same map].

Mr. McCarthy.— Yes.

Lord Abebdare. — The descriptions in the commissions seem to be perfectly
consistent with this map, which is older than they.

Mr. McCarthy. — The commissioners of the Treaty of Utrecht, does your
Lordship mean ?

Loni Aberdare. — The commissions of Carleton and Dorchester — not the
Treaty of Utrecht.

Sir Robert Collier. — According to this map, it goes farther west than the
Lake of the Woods, and a little to the north of it.

Mr. McCarthy.— Lake Christineaux is shewn there, but Lake Christineaux
is here [pointing on the map].

Lord Aberdare.— You will find that the name Christineaux extends over a
considerable district.

Mr. McCarthy. — But this is the Christineaux Lake. There is no such lake
as that which is shewn here at all.

Lord Aberdare. — That is a minor matter.

Mr. McCarthy. — Then the Albany River they take as the boundary con-
necting with the Lake of the Woods, which your Lordship will see is hundreds of
miles on that map from the Lake of the Woods.

Lord Aberdare. — The Albany River really, represents the outflow of these
lakes.

Mr. McCarthy [pointing, on the same map]. — There is James' Bay, and
there is the Albany River. This is the English River. That lake theme is Lake
Manitoba. This lake is west of that, and there is no lake there at all corre-
sponding to it on the correct map put in.

Sir Robert Collier. — It is an incorrect map no doubt.

Lord Aberdare. — It does not follow because you may find mistakes here
and there that its main broad lines may not be right.

Mr. McCarthy. — What I want to point out is that the arbitrators could not
have followed that. Here is the Hudson's Bay territory according to that.

Lord Aberdare. — Here where the English River is ?

Mr. McCarthy. — But the arbitrators have followed this course. They have
followed the Albany River. That is their award. They follow from the Lake
of the Woods here ; and there they follow the chain of water ; and then they get
to the Albany River, taking the Hudson's Bay shore to the Frenchman's River,
or the Rupert, which is this point here.

Lord Aberdare. — I thought the point referred to the arbitrators was the
question as between Ontario and Manitoba.

Mr. McCarthy. — No, my Lord; the arbitrators were dealing with the
Dominion. The original Manitoba only was then in existence, whose limits did
not approach the Lake of the Woods, and the arbitrators were finding the

167

ARGUMENT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY :

northern and western boundaries of Ontario, and what they did was to follow up
this chain of lakes here and go to James* Bay, taking from the Hudson's Bay-
Company all that country which uudoubbedly, according to every contention,
was treated as the Hudson's Bay territory, if the charter was good for anything
at all. If I am correct in my contention that you must first find this boundary,
that is the southern boundary of the Hudson's Bay territory, in orders to deter-
mine the western limit, then the arbitrators were all wrong.

Lord Aberdare. — Then, according to your argument, the arbitrators should
have followed the line of the height of the ground.

Mr. McCarthy. — Yes.

Lord Aberdare. — That would have brought them down here [pointing on
the map].

Mr. McCarthy. — That would have brought them to the boundary between
the States and Canada.

Lord Aberdare. — Then the whole of the Lake of the Woods would become
a portion of the Hudson's Bay claim ?

Mr. McCarthy. — Yes.

Lord Aberdare. — Then how is that consistent with the description given in
the commissions ?

Mr. McCarthy. — That I will point out when I come to them, more clearly.

Sir Robert Collier. — This map does determine the southern boundary, if
it is necessary.

Mr. McCarthy. — We do not admit the correctness of that map.

Sir Robert Collier — But taking that map^ this is the southern boundary.
. Mr. McCarthy. — Yes, but then the arbitrators have gone far north of that.

Sir Robert Collier. — That is another thing. I was only dealing with the
necessity of determining the southern boundary.

The Lord Chancellor. — I find on this map which we have been furnished
with — Mitchell's map — the line is laid down just to the south of that chain of
water, and then it goes on eastward.

Lord Aberdare. — Were the arbitrators instructed to find the historical fact
as to this boundary, or entrusted with the power of laying out what they might
think, having regard to the general historical facts, the most convenient
boundary. ?

Mr. McCarthy. — There has always been a doubt on the construction of the
Orders in Council. I suppose the proper construction of the Orders in Council
was that they were to find the true limit, but the Ontario government seems to
have thought it was possible that a different construction might be open, because
the legislature of Ontario passed an Act saying whether it was the true limit or
not, still they assentel to it being made the boundary.

Sir Robert Collier. — That is, they confirmed the award simply*

Mr. McCarthy. — Whether it was the true line or not.

Sir Robert Colliei^. — ^That is to say, it could not be questioned.

Mr. McCarthy. — Now one other preliminary point before I go into the
argument which we propose to advance, and that is as to the territory that my
learned friend told you Ontario had if limited by the due north line, and which
Ontario would have if the arbitration line was accepted as the correct one. My
learned friend has been quite right in stating to your Lordships the territory in
one way and the other, but the extent of territory has but very little to do in a
question of this kind, as between the different provinces of the Dominion. It is
population by which, and properly so, the representation of the provinces in the
Dominion Parliament is regulated, and already Ontario has, out of 211 members,

168

/L

QUESTION OF EXTENSION OF FRENCH CANADA TO THE MISSISSIPPI.

92, although the territory, as my learned friend the Attorney-Genera>for Ontario
pointed out, was much less in dimensions than the other provinces.

Lord Aberdare. — But it has much the larger population.

Mr. McCarthy. — In point of fact it may be called the garden of the Dominion,
and if this territory, as awarded, was given to Ontario, and if it was, which I
have to say frankly it is not, included in the Province of Ontario, it would be
impossible that the confederation could hold together. As a matter of, fact,
between Lake Superior and Fort William, or between the height of land and the
north-west angle of the Lake of the Woods, it is not arable land. This is not
land that can be useful for settlement. There are minerals there, but it is chiefly
valuable to the province I represent here on account of its timber wealth, which
Ontario does not require, but which Manitoba, being a prairie province, does
require for its purposes. That is all I need say abcSut that, because I do not
suppose that your Lordships.will be influenced in the least degree by considera-
•tions as to the extent, when the question really is — and what the provinces of the
Dominion are anxious to ascertain is — what is the true limit, according to the
proper line, and according to the British North America Act, by which all these
provinces consented to come together.

Now a word more about the geographical part of the southern country —
southern so far as this question is concerned — ^before I go into the other consider-
ations. I deny wholly that Canada, so called, ever extended to the Mississippi —
that is, French Canada. ' Between what was, properly speaking, called Canada
and the Mississippi there was the country subsequently called the Illinois
country, so termed by the French, which the English, in the days of Mr. Pitt,
utterly denied belonged to France.* On the Mississippi, undoubtedly, from IGVO,
the French had been penetrating through the Wisconsin Eiver, and by the Ohio
River, and had gone down to the mouth of the Mississippi, and discovered the
Mississippi mouth by sea also, and they then claimed, having made that discovery,
to appropriate out of this continent all the country that was drained by the Mis-
sissippi. When the settlem3nt, after the cession of M^ontreal to General Amherst,
came to be dealt with — and your Lordship will bear this fact in mind — when Mont-
real capitulated, and General Amherst became entitled to Canada, the line marked
down as the western limit of Canada was the Illinois line on one side, and the
apex was this Red Lake, where practically the Mississippi rises,-!* ^^ ^^^
north-west. Then, that left that great country, between the lines which I will
point out more in detail in a moment and the Mississippi ; and both sides were
msistinor that that should be kept as a neutral heltl Perhaps I cannot make my-
self clearer than by saying it was pretty much as England and Russia are to-diay

*It ia an established historical fact that French Canada did axtend to the Mississippi, and indeed
beyond— U) the line separating it in that quarter from Louisiana, viz., the height of land dividing the
waters that fall into the Mississippi proper from those that fall into the Missouri. (See ante^ p. 142,
note t') A chain of forts, establisned oy Canadian officers, extended along the river from the Illinois up-
wards, with some also on its tributaries both westerly and easterly. (Joint App. 643-4.) Fort St. Nicolas
(Prairie du Cbiei), at the junction of the WiBConsin with the Mississirpi, was one of the most important
of these (Ontario App. 89, 98) ; and Fort St. Antoine, hif3:her up the Mississippi, was the post from which
Nicolas Perrot dated his record of the taking formal possession, b^r order of the Marquis de Denonville,
Grovernor of CanadiL of all the countries of the Upper Mississippi, in 1689. (See this record ante^ p. 147,
note). It is among the Canadian posts and settlements enumerated in Governor i^ownall's account, in 1766,
who describes the settlement as *^a fine one." (Joint App. 60S). The Country of the Illinois, so called,
was variously a dependency of Canada or of Louisiana according as the King exercised his pleasure in regard
to it ; it was strongly fortified, and garrisoned by a large force of regulars ; and was as emphatically a
French possession as was Quebec or Montreal (Joint App. pp. 603-4, 641, 614, 651*2) ; and this England
never denied, nor could deny, either in Mr. Pitc's or any other time.

fThe waters of the Red Lake discharge not into the Mississippi, as erroneously shewn on many of the
old maps, but by Red Lake River into the Red River of the Norto.

t The proposed neutral belt did not at all embrace any portion of the territory in question on this
reference.

169

ARGUMENT OF MR. M'CiRTHY, Q.C., re QUESTION OF BOUNDA.EY :

claiming that there should be a neutral belt as it were between the two empires
in Asia. I will point out that correspondence, if it be at all disputed, in detaiL
That went on to 1761, the capitulation of Montreal being in 1759. In 1763, the
treaty was made by which the Frenth ceded Canada, in the first place, and its
dependencies, and finally, for the purpose of establishing a boundary, not merely
for this north country, but, your Lordships will find, down to the Gulf of Mexico.
They fixed the Mississippi's the limit between the British possessions, on the one
side, and the French, on the other. It is not very difficult to understand why
France, having now lost, by the capitulation of Montreal, what is properly called
Canada — that only being claimed — were willing to give up to the Mississippi^
because, by a secret treaty made in 1762, a year before the Treaty of Paris, they
ceded Louisiana to Spain, although that treaty was kept secret. So that it became
unimportant for the French to contend for having an intermediate territory which
it would be utterly impossible for them to hold.

Now, my Lords, we contend that this view is important, with reference to
the construction which has to be placed upon the Quebec Act, and I will point
out very briefly — because my learned friend, Mr. Robinson, who represents the
Dominion, will deal with it more in detail — what on that question our contention
is. Tour Lordships have heard the Quebec Act of 1774 read, and your Lordships
bear in mind that in 1763 a small province had been constituted, by Order in
Council, or by Proclamation, speaking generally, to the east of Lake Ontario. Li
1774, eleven years afterwards, it was proposed to enlarge that province, and we do
not dispute on our side that the recitals in that Act make it abundantly plain
that the object of the enlargement was to take in French colonies and settle-
ments ; but whai we do say is, that the Act never intended to make it — and for
obvious reasons — part of the Province of Quebec, as to which, your Lordships
remember, the French were mainly interested, the Roman Catholic religion being
made the religion of the country — they never proposed, we say, to indude, any-
thing beyond what was properly called Canada.*

The Lord Chancellor. — What do you mean by saying that the Roman
Catholic religion was made the religion of the country? The existing Roman
Catholic establishments were supported and maintained.

Mr. McCarthy. — It goes to this extent, that it permitted representation of
the Roman Catholics, and Roman Catholics to be representatives. It acknow-
ledged the legality of their religion, which at that time was not acknowledged in
this country.

The Lord Chancellor. — There being no rights established beyond what
were found existing.

Mr. McCarthy. — There was a good deal of feeling at the time, judging by
contemporaneous literature, with reference to the extension of that favour to
the Roman Catholic faith.

Now, perhaps, I may prove to your Lordships what I have said by reference
to the correspondence,f which shews what was the true limit of Canada. If

* The claim that Quebec was limited on the west by the due north line, is an acknowledgment that the

greater part of the Illinois country, and therefore something that was not Canada, was embraced in th*t
rovince. See pott^ p. 176, note*.

fTHK VaUDRKDIL-HaLDIMAND AfFAIB, KE8PECTING THE LiMITS OP OaNADA, 1769.

M, de VaudreuU to the Due de Choiteul.

October SO, 1761.
Mt Lord,— I was astonished to see, by the historical account of the Memorial of the neffotiations
between France and England, what I am charged with by the Knglish, with regard to the limits of Canada,
as it is entirely false and groundless. I shall give your Grace a true account of what passed between Mr.
Amherst and me on that head. When I capitulated, I traced no limits whatever, and in all the messages
that passed between the English general and me, I made use of the uord "Canada'* only. Eight or tea

170

LJ

r?^-'?^'*?^'

WESTERLY LIMIT OF CANADA UNDER THE CAPITULATION OF MONTREAL. 1759.

your Lordships will look at pftge 518, your Lordships will see how the difficulty
arose. It is a communication from Vaudreuil to the Minister, complaining of a
publication that had been mada in England with reference to what be had ceded
in Caimda:

*'I was astonbhed to eee, by the historical account of the Memorial of the negotiations
between France and England, what I am charged with by the English with regaxd to the
limits of Canada, as it is entirely false and groundless. 1 shall give your Grace a true
account of what passed between Mr. Amherst and me on that head. When I capitulated,
I traced no limits whatever, and in all the messages iht\t passed between the English
general and me 1 made use of the word ' Canada,' only. Eight or ten days after the

days after the surrender of the country, he sent an officer to me for maps, to inform him of the extent of the
colony. I returned for answer, that I had none, my maps having been taken away with my baggage at
Quebec, in breach of the capitulation of that place ; and the officer then shewmg me a map which ne had
in his hand, I told him the limits marked on it were not just, and verballjr mentioned others, extending
Louisiana, on one side, to the carrying-place of the Miamis, which is the height of the lands whose rivers
run into the Ouabache, and on the other to the head waters of the Illinois.

What I have the honour to tell you, m^ Lord, is strictly true ; I am not afraid that the English can
produce any proof to the contrary— for nothing passed in writing, on this head, nor was any line drawn on
any map. I take the first opportunity to acquaint you with this, to prevent any further imposition.

General Amherst to Colonel Haldimand.

New York, 1st November, 1762.

Deab Sib, —I have been twenty times at the point of writing to you, on a subject which, though of no
consequence, I should be glad to know the exact transactions that passed. When 1 made a report of Canada
to the Secretary of State, I transmitted a copy of the part of the map where the limits between Canada
and Louisiana were marked, which you delivered to me, and which I acquainted the Secretary of State
were done by M. de Vaudreuil. Whether by him, or done in his presence by his direction, comes to the
same thinff, and the thing itself is of no sort of consequence, as the letter and the orders he (Monsieur de
Vaudreuil) sent to the officers commanding at Michilhmakinach, the Bay, Oocciatanon, Miamis, etc., mark
out the boundaries and expressly include those posts in Canada, so that there ciin be no dispute about it ;
yet as I see some altercation has passed in Bngland and France about Monsieur de Vaudreuil's giving the
Doundaries, I should be glad to know whether he marked the map himself, or whether it was done in his
presence, and what passed oh that subject ; that I may hereafter be able to say all that was done regarding
the whole affair.

I am, with great truth. Dear Sir,

Y our most obedient, humble servant,

Jeff. Amhbbst.
Colonel Haldimand to General Amherst,
[Translation from the French of the original.]

Thrbb Rivers, 10th December, 1762.
Despatched 16th do.

Sib,— I have received with pleasure the letter your Excellency did me the honour of writing to me on
the first of December, respecting what passed between Mens, de Vaudreuil and myself on the subject of the
limits of Canada. Several times I thought of forestalling it, but I deemed myself obliged to await these
orders, to which I intend to conform with all the exactness possible.

About five or six days after I had entered Mont R^al, I asked M. de Vaudreuil if he had no plans,
memoim, or instructive maps concerning Canada. I asked him to let me have them in order that I might «
forward them to your Excellency. He replied that he had none, having lost them all at Quebec, and (to
avoid bearing the enumeration he wished to make of his other losses] I contented myself for the time with
this reply ; but having occasion to speak of it again some days after, he told me that he had found a
pouple of maps, and passing into another room he had a large map of North America brought ; it was made
by hand and folded in the cover of an atlas. There were also some bad plans of forts in a separate roll.
Not finding anything instructive on this mat>, and remembering that I had seen it printed, I called
Lieutenant Herring of our battalion, who was in the parlour, and I gave it to him with the other papers,
which he took to my house. Finally, on th? morning of the day that Mons. de Vaudreuil left, this map
came under my notics, and reminded me of the vain attempts I had made to discover from him and from
others the extent of this country, and gave birth to the idea of examining it with Mv. de Vaudreuil. I
immediately went to him, getting Ensign Monin to carry the map. I found M. de Vaudreuil, with several
members of his household, in the room that overlooks the street ; I beg[ged him, without any other preamble,
to be kind enough to shew me the limits of Canada, and conducting him towaitls the table which was at the
end of the room, I opened the map, and after examining it a few moments, I reiterated my request. He
appeared very much surprised, and, as he did not answer me, I passed my finger along the Illinois River,
saying : Here is the Illinois {les Illinois). Then, he replied that the Illinois (les Illinois) had been contested
by the two Governors, but that it had been deciaed they should belong to Louisiana, upon which I took a
pencil out of my pocket, and resting my elbows on the map, while M. de Vaudreuil stood beside me, I
asked him, shewing him the north of the Mississippi, if the line oassed that ; and he having said Yes, I
marked the points from the source of the Illinois, returning up the Mississippi ; and asking him once again
if I marked correctly, he answered me in these words, (he, M. le Marquis de Vaudreuil, having his eyes
fixed upon the map), ** Take all the northj take all the north." Then I pointed to Red Lake, which seemed
to me the natural limit, without his making the slightest objection ; after which, I returned on the other

171

ARGUMENT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY :

surrender of the country he sent an officer to me for maps, to inform him of the extent of
the colony. 1 returned for answer tha* I had none, my maps having been taken away
with my baggage at Quebec, in breach of the capitulation of that place ; and the officer
then shewing me a map which ho had in his hand, 1 told him the limits marked on it
were not just, and verbally mentioned others, extending Louisiana on one side to the
carrying place of the Miarais, which is the height of the lands whose rivers run into the
Ouabache, and on the other to the head waters of the Illinois. What I have the honor
to tell you, ni}^ Lord, is strictly true,"

and so on. Then General Amherst writes to Colonel Haldimand, who is the
officer referred to as havin<?been sent to the French General, and that letter you
will find on page 519. It is simply asking him to state in detail what did take
place at this interview between the French officer and himself, as representing
General Amherst:

" About five or six days after I had entered Montreal, I asked M. de Vaudreuil if he
had no plans, memoirs, or instructive maps •concerning Canada."

I need not read it all down, but he speaks about their being lost. Then, at
line 40 :

" I found M. de Vaudreuil, with several membera of his household, in the room that
overlooks the street. I begged him, without any other preamble*, to be kind enough

side of the Illinois, and not fancying that Loio could even be contested, I said to hhn. Here we andoubtedly
take the mouth of the Wabache ; and putting my pencil upon the confluence of the Loio and the Mississippi,
I traced a line, again coming up this first river and the Wabache, and joining the point where I had com-
menced at the source of the Illmoi». M. de Vaudreuil still stood besiae me and looked at the map with-
out making any objection. This line through its different windings, though made off-hand, still gave him
plenty of time. But whether, being occupied with his departure, he said Yes, indifferently, and withoat
^ving it the necessary attention, or that in giving a tacit approbation, he sought to give me an erroneoas
impression— the account which I have related to you. Sir, is none the less the most exact truth.

M. de Vaudreuil, and all the French who remained at Mont R^al, were to leave this day. The com-
panies of militia having assembled to give up their arms, and to take the oath of allegiance, I had no time
to examine this map, and as I thought I understood what was meant by the naipe of Canada, and that tiie
line was well marked, I closed the map and sent it home by Ensign Monin. Finally, Sir, you may rest
assured that the map which you have in your hands is the same that was given to me by ol. de Vaudrenil
eight or ten days after the taking of Mont R^al, and that Lieutenant Herring, who is, I believe, at New
York, carried to my hou^e ; that it is the same map that was brought back by Ensign Monin to M. de
Vaudreuil on the morning of his departure ; and that when I opened it in his room, there were neither line?,
nor mark?, nor anything to designate the limits ; that the line which now marks them has been traced solely
by myself under the eyets of M. ne Vaudreuil. to whom alone I addressed myself ; and by all that he told
me, I never for a moment doubted that he gave me this line as the true limits of Canada ; and that from
the moment I closed this map in his room until I remitted it to your hands, there has been no alteration of
any kind whatsoever made in this line.

This, Sir, is, on my word, the simple truth of this transaction.

I must own to you. Sir, that being convinced that you would a'^k for intelligence at an earlier date (of
the extent of a country which. I believe, never had any fixed limits) of an authentic act made in virtue of
the capitulation, I did not think it seemly to have the map signed by M. de Vaudreuil, which would have
been as easv a matter as to make him give me the limits of Canada in writing, which he could not have
refused to do in viitue of the capitulation, and which would have renrtered this act incontestable ; whilst
having no signature to shew, he can always make his party believe that we tried to overreach him.

If I have misunderstood Your Excellency, I am very sorry, and make my apologies ; and when I 8«it
the map to Your Excellency, and told you that the limits had been drawn by M de Vaudreuil, I meant
that they had been driwn under his own eye% and received hi^ approbation, which is true to the letter.

I am further much pleased that thi^ ugly piece of chicanery of M. de Vaudreuil does not prejudice our
affii^irs in the slightest ; but, on the other hand, it has given me a good lesson which I will remember, if at
any future time I am fortunate enough to \ e able to put it into practice.
1 have the hrknour to b^*. Sir,

With jirofound respect,

Your Excellency's most humble and most obedient servant,

10th Xbre. Fred. Haldimakd.

General Amherst to Colonel Haldimand.

New York, 25th January, 1768.

Dear Sir,—* * * I am much obliged to you for the particular and exact detail you have sent to
me of what passed between yourself and Monsieur de Vaudreuil. It is almost precisely a? I imagined. It
is of no consequence whatever ; but if it was, there could be none but good proceeding from what you did in
that affair, which has my thorough approbation to every part of it. * * *

I am, with trreat truth, Dear Sir,

Your most obedient and humble servant,

Jeff. Amhbbst.

172

7*1'

WESTERLY LIMIT OF CANADA UNDER THE CAPITULATION OF MONTREAL, 1759.

to show me the limits of Canada, and conducting him towards the table that was at
the end of the room, I opened the map, and after examining it a few moments, L
reiterated my request. He appeared very much surprised, and as he did not answer
me, 1 passed my fius(er along the Illinois River, saying : Here is the Illinois. Then
he replied that the Illinois had been contested by the two governors *' —

that was between the governor of Louisiana and himself as governor.

Lord Aberdare. — As to whether it belonged to Canada or Louisiana ?
Mr. McCarthy. — Yes :

** But that it had been decided they should belong to Louisiana, upon which I took a
pencil out of my pocket, and resting my elbows on the map, while M. de Yaudreuil stood
beside me, I asked him, showing him the north of the Mississippi, if the line passed that,
and he having said Yes, I marked the points from the source of the Illinois, returning up
the Mississippi ; and asking him once a^in if I marked correctly, he answered me in
these words : * l^ake all the north, take all the norlJu^ Then I pointed to the Red Lake,
which seemed to me the natural limit " —

Lord Aberdare. — Is that the Red Lake near the source of the Mississippi 1

Mr. McCarthy. — Yes.

Lord Aberdare. — Are you sure of that ?

Mr. McCarthy. — Yes, I think it is perfectly plain. I will show your Lord-
ship» a map we have — a tracing from a map at the Foreign Office, sent to us by
Sir Michael Hicks-Beach :

"Then I pointed to Red Lake, which seemed to me the natural limit, without his making
the slightest objection ; after which I returned on the other side of the Illinois, and not
fancying that Loio could even be contested," — that is the Ohio, no doubt — ** I said to him.
Here we undoubtedly take the mouth of the Wabiche ; and putting my pencil on the
conBuence of the Loio and the Mississippi, I traced a line, again coming up this drat
river and the Wabache, and joining the point where ^I had commenced, at rhe source of
the Illinois, M. de Yaudreuil still beside me and looking at the map, without
making any objection whatsoever. This line, through its different. windings, though made
offhand, still gave him plenty of time. But whether, being occupied with his departure,
he said Yes, indifierently, and without giving it the necessary attention, or that in
giving a tacit approbation he sought to give me an erroneous impression — the account
which I have related to vou. Sir, is none the less the most exact truth."

The Lord Chancellor. — We shall follow this much better if you tell us for
what purpose you quote this.

Mr. McCarthy. — I am quoting it for this purpo.se, that this line, which is
afterwards insisted upon by the English as the western limit of Canada, was far
to the east of the Mississippi. The French, in the negotiations which took place
afterwards, contended that the lakes were the boundary of Canada — Lake Huron,
Lake Michigan, and Lake Superior. That, they said, was the true boundary of
Canada, and the English indignantly repudiated that, Mr. Pitt saying it was
unbecoming conduct, and that the tracing made at this interview between Colonel
Haldimand and Vaudreuil should be the governing line ; but that governing line
was altogether — as the description I have read, if your Lordships could follow
it, would shew — to the east of the Mississippi.

The Lord Chancellor. — Following the Mississippi up to the Red Lake, you
get to the head waters of the Mississippi ?

Mr. McCarthy. — I will shew your Lordships a sketch from the Foreign Office
which we have on the subject. We cannot say positively this is right, but it is
a record at the Foreign Office, and it shews the line which we say is the line
marked down on that map. That is the sketch from the Foreign Office, and that

173

ARGUMENT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY ;

is the line we say was theu traced, and your Lordships will see the difference
[handiTig sketch to their Lordships].

Sir Robert Collier. — This goes as far as the Red Lake apparently — as far
west as they are now contending for.

Mr. McCarthy. — Yes, but your Lordships will see the difference. We say
it is limited to that. It starts at the Red Lake, then it goes south of Lake
Superior, following the height of land between the Mississippi and the Lakes.

Sir Robert Collier. — But it goes west as far as they contend for.

The Lord Chancellor. — This cannot possibly be what you are now
referring to ; at least, when I say it cannot possibly be, I will not undertake to
say that, but it seems to be so from the dates. This letter of Colonel Haldimand
was dated December, 1702, and what is written at the comer of this map is :

'^ I hereby certify that this a true and faithful copy made by me of the map en-
closed to Mr. Pitt by General Amherst on the 4th of October, 1760."*

That is apparently more than two years before the writing of this letter.

Mr. McCarthy. — But General Amherst stated what had been ceded as Canada
in 1759.

Lord Aberdare. — This refers to the negotiations of 1759 ?

Mr. McCarthy. — Yes, the capitulation of Montreal, whereby Canada alone
was conceded.

It is curious to look at the Physical Atlas, because the line traced on that map
from the Red Lake, as far as it cjoes, corresponds exactly with the watershed. I
am referring now to Johnston's Physical Atlas,showing the water systems of North
America. That line from Red Lake is, as far as it goes to the south of Lake
Michigan, identical with the watershed of the River Mississippi system and the
St. Lawrence system, and therefore was, according to the French contention of
those days, the true boundary of Canada or New Francc-f*

*Thi8 oertificate is from the Foreign Office, and was given for the purposes of the arbitration, in I87a

fThe height of land betweenjthe Missouri and the Mississippi formed, in that quarter, the true boundary
between Canada and Louisiana. The Country of the Illinois was, at this particular period, within the
jurisdiction of the government of Louisiana, and therefore properly excluded from the lunits assigned to
Canada. (See <mte, p. 142, note Xt and p. 1C9, note * ; Joint App. pp 603, 644). Haldimand simply
deceived' himBelf in delineating any other line in this quarter than that of the Missouri watershed h% the
boundary ; and Vaudreuil did not volunteer to correct an error which would have added so largely to the
limits of Louisiana. The language of Haldimand 's letter would seem to indicate that the line marked by
him, from the source of the Illinois to Red Lake, was not drawn along the watershed of the Mississippi
and the lakes, as claimed by counsel, but by or from the River Illinois to the Mississippi, and " up the
Mississippi. . .to the Red Lake," (depicted on many maps of the time— of course erroneously— as the source,
or one of the sources, of that river), and that the sketch produced is, therefore, something quite different
from that referred to by Haldimand . As to the other line, commencing at the junction of the Ohio and
the Mississippi, and in regard to which there is no question, Haldimand's tracing passed up the Ohio to
the Wabash, and up the Wabash to or towards its source, and thence to the other point of commencement,
at the source of the Illinois— the two separate lines thus forming one continuous line, with the effect of
excluding from Canada, to the east of the Mississippi, that tract of country only which lies between the
Wabash and Illinois rivers. A more literal translation of this part of Haldimand!s letter, together with
the French original, are appended :—

"Having found M. de Vaudreuil, with several members of his household, in the room that overlooks
the street, without other preamble I begged that he would be pleased to p^int out to me what were the
limits of Canada, and conducting him towardn the table which was at the end of the room, I opened the
map [viz., a large MS. map of North America], and after examining it a little while, I repeated my request
He seemed very much surprised, and as he did not answer me, I passed my finger over the river of the
Illinois, saying to him, here is the Illinois [country]. Then he replied that the Illinois [country]
had been in contestation between the two governors, but that it had been decided it should remain with
the governor of Louisiana, upon which, taking a pencil from my pocket, and resting my elbow upon the
map, M. de Vaudreuil standing beside me, I a&ked him, pointing to the north of the Mississippi, if the
line passed that way, and he having answered that it did, I marked dots from the source of the Illinois,
going up the MiBsissippi, and having asked him once again if I marked correctly, he gave me for answer
these exact words, (he, the Marquis de Vaudreuil, having his eyes fixed upon the mAp)— Take all the north;
take all the north. Theu I dotted up to the Red Lake, which seemed to me the most natural limit, without
hiti making the slightest objection. Afterwards, returning on the other side of the Illinois, and not

174

\».r.

WESTERLY LIMIT OF CANADA UNDER THE CAPITULATION OF MONTREAL, 1759.

The Lord Chancellor. — It seems' to me to be absolutely impossible that
this can be the tracing to which Colonel Haldimand refers. Colonel Haldimand
speaks of this in this way : ** I marked the points from the source of the. Illinois,
returning up the Mississippi." That would go down the Illinois to its junction
with the Mississippi, would it not ?

Mr. McCarthy. — No, mv Lord. He took a turn to the mouth of the Illinois.

Lord Abbrdare. — The source of the Illinois is near Lake Michigan.

Mr. McCarthy. — Yes.

The Lord Chancellor. — That appears to be his line up to that particular
point, so far as this southern portion of Canada which is now in the United
States is concerned, but it does not seem to settle anything as to the north.

Mr. McCarthy, — No ; I am only using it for the purpose of shewing that
the construction we place on the Quebec Act is the true one. My argument i«
this, that it never was contemplated to take any more than what had been French
Canada to make a French province of it by the Quebec Act.*

Lord Aberdarc. — Then you carry French Canada as far as the Red Lake, on
the north-west.

Mr. McCarthy. — French Canada appears to me to have been, at that date,
all the territory drained by the St. Lawrence.-f

Lord Aberdare. — North of that was the Hudson's Bay land, or the Indian
land?

Mr. McCarthy. —Yes ; we say that draining into Hudson's Bay was Hudson's
Bay land. That not draining into Hudson's Bay was undiscovered land, and wens

imaf^Ding that the Ohio coald be admitted to be even debatable. I said to him. Here, uoquefltionablv, we
take ap toe month of the Wabaohe ; and placing my pencil at the oonfluenoe of the Ohio with the Missis-
rippi, I traced a line, going np this first river ana the Wabaohe, which .went to "meet the point that I had
commenced with at the source of the Illinois."

^ [ Ayant trouv^ M. de Vandreuil dans son cabinet qui donne sur la rue, avec quelques ^rponnes de sa
. maisoD, je le priay sans autre pr^ambule de vouloir bien me montrer qoelles ^taient les Limittes du Canada
et le conduisant vers la table qui ^tait au fond da Cabinet, jWvris la Carte et apr^s Tavoir un pen ex-
aminee, je r^itevay ma demande ; il me parut fort surpris ; et come il ne me r^pondait point, je pasay le
doigt BUT la riviere des Illinois en lui diaant, Voioy les lUinois, alors il me repondit que les lUinois avaient
4t6 en contestation entre les deux Gouvemeurs, mais qu*il avoit ^t^ descid^ qu'ils dependroient de celui de
la Louisianne, sur quoy sortant un crayon de ma poche et m*accoudant sar la Carte, M. de Vaudreuil se
tenant debout aupres de moy, je lui demanday en lui montrant le nord du Mic^ss^py si la ligne passait par
1^ et m*ayant repondu que oui, je marquajr de points depuis la source des Illinois en remontant le Mic^s-
s^y, et lui ajrant demand^ encore une foi si -'e marquois bien, il me repondit ces propres paroles, (lui
Mob ' " ..--... . . - . , ^ . V

r. le Marquis de Vaudreuil ayant les yeux fix^ sur la Oiate)—prenes tout U nord, prene* tout le nord,
aUors je pointay jusquee au Lao Rouge qui me parut la borne la plus naturelle, sans qu*il y eut la moindre
objection de sa part, ensuitte revenant de I'autre cott^ des niinois ; et ne me figurant paa que Loio put
seulement etre mise en conteste, ie lui dis, icy nous prenons sans doutte par I'amDouchure du Wabache, et
posant mou crayon au confluant de Loio avec le Mic^^py, je traoay une ligne en remontant cette pre-
miere riviere et T Wabache qui alloit joindre la poiute que j avois commence 2i la source des Illinois.]

*The Quebec Act, 1774, dealt not with the country surrendered by M. de Vaudreuil in 1759 simply,
but with " a very large extent of country within which there are several colonies and settlements of the
subjects of France," part of ** certain countries, territories and islands in America ceded to His Majesty
by the definitive treaty of peace,'' of 1763, and the name *' Canada " is not mentioned in it except in con-
nection with the sedentary fisheries in the Gulf of St. Lawrence. (Preamble of the Act.) This cession
covered all the French possessions to the east of the Mississippi vand of the lakes Maurepas and Pontchar-
train) from its source to the sea, (Treaty, art vii), and embraced the country of the Illinois, then a depen-
dency of Louisiana, and as such excluded from toe capitulation of 1769. Then, the Act carries the southerly
loimdary of the Province of Quebec *' along the bank of tbe said river [Ohio] westward to the banks of
the Mississippi." If from the point thus reached— viz., the confluence of the Ohio and Mississippi— the
'* northward line of the Act follows the banks of the last named river to its source, as claimed by Ontario,
the whole of the country of the Illinois is thrown into Quebec ; if the '* northward " line is a due north
one, »4 claimed by the learned counsel, even then by far the^ largest part of the territory— though but a
small fraction of the population — of the Illinois is thrown into the Province. In either point of view,
therefore, the province was to include something that was not part of French Canada ; and this is rendered
still more clear by the statements of ministers and others in Parb'ament during the debate on the Bill.
(Joint App., pp. 367 et seq.)

■fThe constant claim of the French was that their Canada extended northward to the Arctic Circle, or
the Frozen Ocean, or —by a sut^gestion of rentriction under the Treaty of Breda— to the 60th parallel ; and
westward to the South Sea. They had a chain of fort;}— combined military and trading posts— extending
from Lake Superior to the base of the Kocky Mountains. (See appendix B hereto.)

175

ARGUMENT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY ;

afterwards known as Indian territory ; but it is a striking confirmation of the
theory that was then put forward, that this line is, as far as it goes to the south
of Lake Michigan, the water limit of the St. Lawrence system. Now, your Lord-
ships will see the line goes, if I remember correctly, along the Wabash to the
Ohio, and then follows the Ohio down till it meets the Mississippi ; and it may
be asked, and properly asked, what was the necessity of going as far south as the
junction between these two rivers, and marking that out as Canada. The answer
is this, and that is shewn upon the map before your Lordships, that south of the
lakes. Lake Michigan and Lake Erie, tJiere was a disputed territory between the
French and the English. They both claimed that territory. The settlements at
that time had not passed the height of land, the Alleghany range ; and beyond
the height of land — between that and the Ohio — there was a disputed ground,
claimed both by the French and the English. Therefore, at this time it was
insisted that they should give up all the parts north of the English settlements,
including the portion claimed by the English north of the Ohio ; and it also
explains the word " dependencies " which is afterwards mentioned in the treaty *.

Lord Aberdare. — May not all this dispute have reference, not so much to
the discussion between Canada and the Hndson*s Bay Company as between
Canada and Louisiana ?

Mr. McCarthy. — No, my Lord, I will point out further that it was not so,
by the correspondence that took place, up to a certain date. Your Lordships
will see the point that was settled after the cession, was this : The French were
claiming that the proper boundary was the lakes. The English were insisting
that the line marked by Colonel Haldimand was the line ; and it was not until a
year before the treaty was signed that this question was apparently settled.

The Lord Chancellor. — That cannot possibly be the case. This is a con-
troversy between the French and the English, and supposing that to signify the
line of boundary at that time, the marquis, having his eyes fixed upon the map,,
said, "Take all the north," which must mean all to the north of that line ; and it
would bring you to the wateis of the Mississippi.

Mr. McCarthy. — Pardon me; if your Lordship reads what follows, that is
not the meaning of the words : " Then I pointed to Red Lake, which seemed to
me the natural limit, without his making the slightest objection ; " which would
seem to include that in the expression, " Take all the north."

The Lord Chancellor. — No, I think not.

Mr. McCarthy. — Yes, my Lord. That bavins: been said to Colonel Haldi-
mand he puts his pencil on Red Lake, as if to say, May I go as far as that ?
"Then I pointed to Red Lake, which seemed to me the natural limit, without his
making the slightest objection."

The Lord Chancellor. — We must understand what it is. The statement
in the letter is that a certain tracing was made, and which I assume to have been
that which you produce from the Foreign Office, and the Frenchman looking at
it said : " Take all the north ; take all the north," at which time nothing had
been said about Red Lake ; and can it mean anything but what is north of that
line?

Mn Mi'Carthy. — That line had not then been traced.

The Lord Chancellor. — Yes, it had, up to the source of the Illinois, and
returning up the Missi.ssippi. I thought you explained that that meant that he
pointed towards the source of the Illinois, and then he did not go back to the

• Thb ifl not apparent on the evidence. 4. reference to the treaty shews that the term occurs in that
iDftrumtiDt, in different connections, several times, and is \ined in the oense of embracing all the i)art8 of or
appertaining to ihe particular country : " Acadia . . with all its dependencies," " Canada, tiith all its
di^pendenciea/* "Florida [etc.], and . . everything that depends on " it

176

'^''-Bm'

WESTERLY LIMIT OF CANADA UNDER THE CAPITULATION OF MONTRBAI, 1759.

main current of the Mississippi, but he followed at a distance the course of the
Mississippi, along the watershed, so as to draw his line on the watershed dividing
the waters which fell into the St. Lawrence system from the waters which feu
into the Mississippi system.

Mr. McCarthy. — That is what I cannot see now by looking at the map. I
do not mean that map [the Ontario boundary map of 1884], but the map [the
Foreign Office map] which is before your Lordships.

' The Lord Chancellor. — But I want to understand this to which you refer.
To me it seems that, "Take all the north, take all the noi*th/* means all that is
north of that line, beyond the Illinois, so to go to England, and all that is south
of it to France; and it is evident that the treaty did not proceed on that footing,

Mr. McCarthy. — Quite so. The treaty proceeded on quite different consid-
<3rations. I am speaking now about Canada. Now, if your Lordships will look
at the map before you, you will find where the source of the Illinois is. It is the
southern part of Lake Michigan. That is the first thing. He says :

" Here is the Illinois. Then he replied that the Illinois had been contested by
the two governors, but that it had been decided they should belong to Louisiana,
upon which I took a pencil out of my pocket and resting my elbows on the map,
while M. de Vaudreuil stood beside, me, I asked him, shewing him the north of the
Mississippi, if the line passed that. And he having said, Yes, I marked the points
from the source of the Illinois, returning up the Mississippi, and asking him once again
if 1 marked correctly, he answered me in these words (he M. le Marquis de Vaudreuil
having his eyes fixed upon the map), * Take all the north, take all the north.* Then I
pointed to Red Lake'' —

that is. having been told about the Red Lake, he points jbo the Red Lake, which
is a tremendous distance north of the source of the Illinois — ^

— '* which seemed to me the natural limit, without his making the slightest objec-
tion, after which I returned on the other side of the Illinois, and not fancying that
Loio could even be contested, I said to him, Here we undoubtedly take the mouth
of the Wabache."

The Lord Chancellor. — That means naturally to the west, because the
tracing is continued.

Mr. McCarthy. — No, my Lord, he is speaking of the Ohio, which he says
<»ould not even be contested. "After which I returned on the other side of the
Illinois, and not fancying that Loio could even be contested " — the Ohio is of
course a long way to the south-oast of the point that he was at, enormously
to the south-east ; then he says, " I said to him, Here we undoubtedly take the
mouth of the Wabache, and putting my pencil on the confluence of the Loio and
the Mis.sissippi," — up to this time he had made no tracing:* he had put his pencil
on the Illinois, then on the Red Lake, and now he takes his pencil and traces :
And where does he start from ? — **And putting my pencil on the confluence of
the Loio and the Mississippi, I traced a line again coming up this first river " —
that is the Ohio — " and the Wabache," — he goes up the Ohio until he strikes the
Wabache — " and joining the point where I had commenced, at the source of the
Illinois." If, your Lordships, we follow up the Ohio and Wabache, then the
Wabache to its source, then joining the point ^t the Illinois, you will have that
line exactly, as far as that goes. Then what follows afterwards rhews quite
<5learly, as I venture to submit, that that is so : "This line through its different

^As regards the section between Red Lake and the sottrce of the lUiBoie, if no tracing had been made
up to this time, Haldimand'd letter shews that it was not made afterwards, the bubsequeot tracing extend-
ing from the mouth of the Ohio, up the Wabash, and from the Wabash to the &ouroe of the Illinoit*, only.
See antet p. 174, note f. «

r<7

12 (B.)

ARGUMENT OF MR. m'CARTHY Q.C.y re QUESTION OF BOUNDARY :

windings, thpugh made off-hand, still gave him plenty of time," and so on. The
rest I have read and I need not repeat it.

Then the subsequent correspondence, I think, plainly indicates that. If your
Lordships, will turn to page 521, you will find that that is the French view, at
line 26 :

** Thirdly, That the limits of Canada, with regard to Louisiana, shall ba clearly
and firmly established, as well as those of Louisiana and Virp^inia, in such manner
that after the execution of peace there may be no more difficulties between the two
nations on the interpretation of the limits relative to Canada or the other possessions
ol England.'*

Then if you will follow that to the next page — at the foot of the next page — the
British answer is given .

**Hi8 Britannic Majesty will never recede from the entire and total cession, on the part
of France, without any new limits, or any exception whatever, of all Canada, with its
appurtenances, and His Majesty will never relax with regard to the full and complete
cession on the part of France, of the Isle of Cape Breton,''

and so on. I need not follow that further. Then at page 523 :

** With respect to fixing the limits of Louisiana with regard to Canada, or the English
possessions situate on the Ohio, as also on the side of Virginia, it never can be allowed
that whatever does not belong to Canada shall appertain to Louisiana, nor that the
boundaries of the last province shall extend to Virginia, or to the British possessions on
the borders of the Ohio ; the nations and countries which lie intermediate, and which
form the true barriers between the aforesaid provinces, not being proper on any account
to be directly or by necessary consequence ceded to France, even admitting them to be
included in the limits of Louisiana.''

To that statement the French replied in the next document, and if your Lordship
will look at paragraph 1, you will see :

*' The King consents to cede Canada to England in the most extensive form, as specified
in the Memorial of Propositions, but His Majesty will not recede from the conditions which
he has annexed to the said Memorial relative to the Catholic Religion, and to the power,
facility and liberty of emigration for the ancient subjects of the Kii^g,"

and so on. That is all appertaining to this point. Then paragraph 2 is :

** The King has in no part of his Memorial of Propositions affirmed that all which did
not belong to Canada appertained to Louisiana ; it is even difficult to conceive such an
assertion could be advanced. France on the contrary demands thttt the intermediate
nations between Canada and Louisiana, as also between Virginia and Louisiana, shall be
considered as neutral nations, independent of the sovereignty of the two crowns, and
serve as a barrier between them. If the English Minister ^^ould have attended to the
instructions of M. Bussy on this subject, he would have seen that France agreed with
England as to this proposition."

Then Mr. Pitt gave an indignant answer, about the interference between England
and other nations, which need not be read with reference to this point. I go on
then to page 524, where the British Minister delivers an ultimatum to France:

'' Article 1. — The King will not desert his claim to the entire and total cession of all
Canada, and its dependencies, without any limits or exceptions whatever, and likewise insists
en the complete cession of the Island of Cape Breton, and of other islands in the Gulf
and River St. Lawrence. Oanada, according to the lines of its limits traced by the
Marquis de Vaudreuil himself, when that governor surrendered the said province, by
capitulation, to the British general, Sir J. Amherst, comprehends, on one side, the Lmkes

178

"f^T^i .

^^' '\

WESTERLY LIMIT OF CANADA UNDER THE CAPITULATION OF MONTREAL, 1759.

Huron, Michigan and Superior, and the said linfe drawn to Red Lake " — that is, it take*
in the watershed of those three lakes — '* takes in, by a serpentine progress, the River
Oaabachi, as far as its junction with the Ohio., and from thence extends itself along
the latter river, as far, inclusively, as its influx into the Mississippi."

The Lord Chancellor. — But then that cannot be the line here, because this
line is prolonged to the confluence between the Ohio and Mississippi.

Mr. McCarthy.— So it is, my Lord.

Lord Aberdare. — These are discussions in 1761, three years before the final
treaty.

Mr. McCarthy.— Yes, my Lord.

The Lord Chancellor. — These documents represent some conferences which
took place in 1759 ?

Mr. McCarthy. — Yes, or rather subsequent to 1759.

The Lord Chancellor. — I thought you said they were in 1759.

Mr. McCarthy. — Tie capitulation was in 1759, and then from 1759 to 1763
they were endeavouring to make the treaty.

The Lord Chancellor. — This document was sent by General Amherst to
Mr. Pitt in October, 1760. You were, I thought, suggesting that it originated in
conversations which were held in 1759. That may be possibly right.

Mr. McCarthy. — So I do, my Lord.

The Lord Chancellor. — Then, that being so, I point out that the tracing-
referred to in this letter to Mr. Stanley, at page 524, cannot be the same, because
that represents the River Wabash as taken into what was to be ceded to Great
Britain, as far as its junction with the Ohio.

Mr. McCarthy. — So it does, my Lord, exactly. That is the course which is
marked on that map.

The Lord Chancellor. — Yes, I see. The Wabash is a separate name, and
then the Ohio comes in.

Mr. McCarthy. — Yes. Then, my Lord, it follows down, you see, to the
confluence of the Ohio and the Mississippi. Well, the only object of that was to
settle this question as to what it was which is called upon the map [the Ontario
bounda'i^j tnap of LS84] ''Territory claimed by both England and France prior to
the surrender of Canada," marked on the map before your Lordships. It was
in order to settle that dispMte. Then, Article 2 is :

" As to what respects the line to be drawD from Rio Perdido, as contained in the note
remitted by M. Bussy, of the 18th of this month, with regard to the limits of Louisiana,
His Majesty is obliged to reject so unexpected a proposition as by no means admissible, in
two respects."

Now I should like to point out that that proposition of the t'rench, has as
many of these things have, a two-fold bearing.

The Lord Chancellor. — At this time, as I understand it, it was not proposed
to cede ad Tiiediiim jUum — to the Mississippi.

Mr. McCarthy. — No. If your Lordships will look at page 43 of the Joint
Appendix, you will see the proposition made, to which the answer I am about to
read is given — at line 33 or thereabouts.

Mr. MowAT. — That is in your Case.

Mr. McCarthy. — Yes it is, but it is a correct quotation. We have copied it
into the Case in full. This is the proposition to which the reply was made on the
other page, which I will read in a moment :

"To fix the limits of Louisiana towards the English colonies and Canada, a line should
be drawn which will extend from Kio Perdido, between the Bay of Mobile and that of

179

augumi:nt of mr. M'cAKTHr, Q.c , re question of boundary :

Pensaoola, passing by Fort Toulouse in the AUbamous, and which, being prolonged by
the western point of Lake £rie, will eaclose the River of the Miamis, and by the eastern
extremity of Lake Huron will go and meet the high lands on the side of Hudson's Bay.''

This is the French proposition.

Sir Robert Collier. — That is the French proposition, to go and meet the
high lands on the side of Hudson s Bay.

Mr. McCarthy. — Yes.

Sir Robert Collier. — Then you will observe that is answered by us at page
524.

Mr. McCarthy. — Yes, I am going to read the answer in a moment. The
French were claiming that that should be the limit of Canada.

The Lord Chancellor. — This is the same passage which you read just now.

Mr. McCarthy. — No, I have not read this before. Tt is not the same.

The Lord Chancellor. — It follows it, I think, exactly. It seems to be the
same passage which you read just now, on page 524.

Sir Robert Collier. — It is a little further down :

** Because the siid line " — that is the line now spoken of — ** under colour of fixing the
limits of Louisiana, annexes vast countries to that province, which, with the commanding
posts and fort?, the Marquis de Vaudreuil has, by the most solemn capitulation, incoatestably
yielded into the possession of His Britannic Majesty, under the description of Canada."

We contended for all that came under the description of Canada.

Mr. McCarthy. — Yes, if I make myself clear to your Lordships, we were
then contending for the line marked on the sketch before your Lordships, and
they were contending for a line passing through the Lakes.

The Lord Chancellor. — A great deal to the east.

Mr. McCarthy. — Yes, my Lord, between Lake Huron and Lake Superior, at
what is known as Sault Ste. Marie, and then to the height of land. I ask your
Lordships to bear that in mind, because there the French themselves spoke of the
height of land as the terminal point of the line which they desired at that date.

Sir Robert Collier. — They say that they wanted Louisiana as large as it
could be, and Canada as small as it could be, but we do not agree to their view.

Mr. McCarthy. — But we agreed to its definitely ending at Red Lake* at that
time no doubt. Then 1 will follow on the correspondence, which shews plainly
that, up to a certain point.

Lord Ablrdare. — You argued for all these contentions as a proof of what
the actual limits were, whereas are not they rather a proof of what they wished
to secure, and vvhat they wished not to cede ?

Mr. McCarthy. — No, my Lord. For my part, I am willing to concede that in
this controversy the English claim was right, and that the watershed line was the
true limit of Canada. What the French were trying to do, as it appears to me
very clearly, at that time, was exactly what the British ministry accused them of
atteinpting to do, namely. Unfairly to cut down what had been ceded at Montreal.

The Lord Chancellor.— That was settled afterwards.

Mr. McCarthy. — That was settled afterwards — after the ceasion to Spain.

The Lord Chancellor. — Then it strikes me that these previous communi-
cations can have but very little bearing upon the construction of the Quebec Act,

•Taking the Haldimand letter. Red Lake, m the supposed aouroe of the Missiasippi, was treated w
the northerly point of the assumed line of division between Canada and Louisiana. Then, the vast tor-
ritories to the noithward of that parallel, or of the northern watershed of the Missouri— whose soutbem
boundary ran westward conterminously with the northern boundary of Louisiana as far as the Rockf
Mountains— was claimed, and held, by France as a part of the Government of Canada.

180

^^w^T*

LIMITS OF FRENCH CANADA ON THE WE^T AND NORTH.

because that was passed after the English Crown had acquired up to the Missis-
sippi * which at the time of these communications it was not contemplated that it
would do."t"

Mr. McCarthy. — There is no doubt, my Lord, that I have, to meet that
point, and I propose to do it. My only object, so far, is, with all deference to
your Lordships, and it does appear to me to be important, to shew where New
France ended, because it was never contended — it was not contended by either of
my learned friends — that beyond New France the Province of Quebec wentj
It was to continue to the French people their French rights. I have to meet
some of the points which of course naturally suggest themselves as to that point.

The Lord Chancellor. — It would seem pretty clear that Canada, as defined
by this map, would have included the whole of the oountiy which has been
awarded to Ontario by the award, so far as it is bounded to the south by the
present United States territory.

Mr. McCart^it. — No, my Lord.

The Lord Chanceixor. — Red Lake is to the west.

Mr. McCarthy. — Yes, my Lord, it goes as far north, but what we say is that
Canada did not go further north than to Red Lake.

The Lord Chancellor. — There is nothing whatever in these letters, or in these
documents, which suggest it ; I should say rather the reverse. The word Canada is
written there [pointing on the tracing], and I should imagine that everything
to the north is Canada, till you get to something beyond Canada.

Lord Aberdare. — That discussion seems to have been as to ihe line of limi-
tation between Louisiana and Canada.

The Lord Chancellor — Or at all events, as between the territories of
France and England, as then contemplated. It appears to me evident that this
tracing is drawn on the principle of following the watershed ; but it ascribes to
Canada everything to the north, including anything that is now in dispute on the
southern boundary.

Mr. McCarthy. — Perhaps if your Lordships would allow me to deal with a
very celebrated gentleman's opinion at this stage of the case, it would assist your
Lordships. I refer to Sir Travcrs Twiss, who has had a good deal to do with
these matters, and who speaks of that question.

Sir Robert Collier. — I do not think you can read that usefully to us.

The Lord Chancellor. — You can only read it as a part of your argument.

Mr. McCarthy. — Yes, that is all I propose to do, but he puts it far better
than I can hope to do. It is at pages 210 and 211 of his book on the
Oregon question. " This last lake," he is speaking of Lake Travers which is
pretty much in the same neighbourhood as the Red Lake, " this last lake would
have been the extreme southern limit, in about 45° 40'."

Lord Aberdare. — But the southern limits of what ?

Mr. McCarthy. — He is now speaking of this particular part of Hudson's Bay,

Sir Robert Collier. — Is this an opinion ?

Mr. McCarthy. — Yes, a discussion and opinion given on this question.

The Lord Chancellor. — I am not sure that we ought to allow it to be referred
to, because it is only an argument.

Mr. McCarthy. — He gives his reasons for it.

*See ante, p. 175, note*.

flf England adhered to the Haldimand view of the capitulation, it appears to have been in contem-
plation to acquire up to the Mississippi, from the Illinois northwards. See ante, p. 174, notef.

t In this counsel is under a misapprehension, for the contention on behalf of Ontario was, clearly, that
the Province of Quebec embraced certain territories excluded from the capitulation of Montreal, but ceded
under the Treaty of 1768. See ante, p. 175, note *.

181

^■^.

ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY :

The Lord Chancellor. — You may give your reasons for any conclusions
which you wish to submit. I think on the whole we had better know nothing
of Sir T. Twiss* opinions.

Sir Montague Smith. — If they are good arguments, you may use them.

Mr. McCarthy. — I thought perhaps the argument would coma with very much
more force from a gentleman like Sir T. Twiss, who knows more about international
questions than I do. But the eflfect of the contention is this, that this was the
northern boundary of New France, and the southern boundary of the Hudson's
Bay territory, or what was English then. Certainly, the claim made by the
English in those days was to what was comprised in the charter granted to the
Hudson's Bay Company, and the efiect of that would be to carry it to a line
between the Hudson's Bay waters and the St. Lawrence system. Now, follow-
ing that on, this discussion appears to have not ended in anything. When the
•discussion ends, we do not find that the English obtained the consent of the
French to the acceptance of their views ; nor, on the other hand, do we find that
the French induced the English to waive their claim. Then there is a certain
lapse, and the negotiations cannot be procured. In the end, we find the treaty,
•ceding Canada and its dependencies, and, for the purpose of fixing a limitary line,
not merely for this country but for the whole continent, they take the line of the
Mississippi. We do not say by that, nor did France say by that treaty, there-
fore the line of the Mississippi is the westerly limit of New France. All France
«ays is : We give up all claim (having already ceded on the west side to Spain,
-and practically having no claim left) which we might have made to the inter-
mediate country which was in dispute between us.*

Now comes the Quebec Act. That Act has been read already once or twice,
but perhaps it will be convenient if I give your Lordships the page : page 36G is
where it is to be found. Now the contention which I advance is, following to a cer-
tain extent the argument of my learned friends on the other side, that the intention
was, by this Quebec Act, to take in w^hat had been the province or country of
New France or Canada, and I agree also with my learned friend who last
xiddressed your Lordships, that those were equivalent or interchangeable terms.
The boundary then goes down to the very point marked upon this sketch : to the
confluence of the Ohio and Mississippi Rivers. That very point marked on the
sketch which I handed up to your Lordships, is the south-western extremity of
the line marked down by the Act. The difficulty arises in finding out what the
western limit was. My contention is, that from that definite point the Act of
Parliament says; a line due north to the Hudson's Bay territories— not due north
but northwards.

Lord Aberdare. — First of all it says: "along the bank of the said river."

Mr. McCarthy. — Yes, first of all, " along the bank of the '* Ohio.

Lord Aberdare. — " To the banks of the Mississippi."

Mr. McCarthy. — " To the banks of the Mississippi,"

Lord Aberdare. — " And northward, along the banks of the Mississippi," we
must take it to be.

Mr. McCarthy. — No ; that is just where the difference comes in.

Lord Aberdare. — That is clear, I should think, beyond controversy, in the
commission to Sir Guy Carleton, w*hich is a contemporaneous document, and must
shew how this was acted upon.

* There was no question of any intermediate country in dispnte between them which in any way
touched the tract, between the due north line and the line of the ^Lidsissippi, in controversy on the present
reference.

182

CONSTRUCTION OF THE QUEBEC ACT, 1774.

Mr. McCarthy. — Undoubtedly.

The Lord Chancellor. — And surely if there were suflScient ambiguity about
it to admit of that construction, you cannot escape from the conclusion that they
"were rightly construed.

Lord Aberdare. — ^ow was this construed immediately afterwards in the
descriptions given in the commissions, when everything was fresh ?

Mr. McCarthy. — I will say a word about that presently. My present con-
tention is this, that if the Act of Parliament is plain and unambiguous, having
learned the geography of the country, and having ascertained where these French
settlements and colonies were, that is all that we are entitled to know in reading the
Act of Parliament. You are bound to know and to take judicial cognizance of
the geographical position of, and where all the Cvolonies and settlements of New
France referred to in the recital were. But having known that, then I take it
that we have got to look within the four comers of the Act of Parliament, and if
there is no ambiguity in the expression then I submit that that Act of Parlia-
ment must govern the question.

The Lord Chancellor. — Of course you are quite right, if there is no ambi-
guity in the expressions : nothing which can reasonably bear more than the sense
which yoj seek to impose upon it. That is the general rulenindoubtedly ; but
can that possibly be maintained here ?

Mr. McCarthy. — That is what I am going to endeavour to argue before your
Lordships.

The Lord Chancellor. — You will observe, it is not to the confluence of the
two streams, but "to the banks of the Mississippi."

Mr. McCarthy. — Now, the first point which presents any ambiguity is, that in
the earlier part of the statute it has been precise in following the bank of the
Ohio.

The Lord Chancellor.— Yes, that is so in several places, and perhaps that
has a bearing against you, as it appears to me.

Mr. McCarthy. — I thought it was the other way. I submit, with all defer-
ence, it has the other bearing, because, when they intended it to follow the bank
of the stream, we have here the legislature speaking in unmistakeable language,
but when they come to this point, if the construction of the other side is the
correct one, we see no explanation of why it should not have said " following the
bank of the Mississippi."

Lord Aberdare. — It does not say bank of the Mississippi, but " banks of the
Mississippi," as if it meant the whole of the entire banks of the river.

The Lord Chancellor. — You read " the bank " as if it was the point of
confluence.

Mr. McCarthy. — Yes, your Lordships will see at that time it was only one
bank that the English had.

Lord Aberdare. — It is only one bank of the Mississippi that they claimed.
They had only talked about the bank hitherto, but when they speak about the Mis-
sissippi the}' speak of the banks.

Mr. McCarthy. — They could not have meant the banks, because that would
have involved crossing the stream, and they have no right to cross the stream.

Lord Aberdare. — No, they cannot have meant that, and therefore there
must be another interpretation, and the other interpretation is that it means
the continuous bank of the whole river.

Mr. McCarthy. — The British legislature is only legislating with regard to
the British line, not with regard to the other bank which is the French line.

ft

183

ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY :

That word " banks " is either a clerical error, or it can only be construed a^
being the bank *

Sir Montague Smith. — You mean that the insertion of the word is a clerical
error ?

Mr. McCarthy. — Yes, possibly.

Sir Montague Smith. — You construe " northward " to be " due north ? "

Mr. McCarthy. — Yes.

Sir Montague Smith. — Is it not capable of two meanings, due north or
northerly ?

Sir Robert Collier. — The Chief Justice declared that " northward " meant
the same as " due north."

Mr. McCarthy. — If the word was *' due north " there would be no room for
doubt.

Sir Montague Smith — " Northward *' may mean due north, or in a northerly
direction. Then is there not an ambiguity to De got over ?

Mr. McCarthy. — Not an ambiguity wiih regard to the meaning of the word,
but with regard to the lie of the ground.

Sir Montague Smith. — There is a latent ambiguity.

Sir Robert Collier. — Supposing it had said, "along the bank of ^ the said
river westward to the banks of the Mississippi, and following those banks north-
ward to the southern boundary of the territory *' — you can hardly deny that it is
capable of being so read.

Mr. McCarthy. — That is my contention ; and I will point out to your Lord-
ship the difficulties which I see in applying the construction which your Lordship
has just suggested. The sources of the Mississippi were not then known, but on
this map of Mitchell's the source of the Mississippi is supposed to be in latitude
60, longitude 106. Now I will ask your Lordships to look at that on the map.

Sir Egbert Collier. — That would take it above the Lake of the Woods.

Mr. McCarthy. — Here is a note on the map which I will read :

"The head of the Mississippi is not yet known. It is supposed to arise about the
50th df-gree of latitude, and western bounds of this map, beyond which North America
extends nigh as far westward as it does to the eastward by all accounts."

Sir Robert Collier. — lb will take it to the Lake of the Woods.

Mr. McCarthy. — That is where they are supposed to be. I am going to
point out that I doubt very much whether in those days that would be a reason-
able construction, I am poiniin^:^ out what appears to me to be the diflSculties in
following the Mississippi, because of course the legislature did not stop short in
its definition where the MLs.sissippi was knowii. If that was the proper construc-
tion, the Mississippi must be followed up to its sources, and from those sources to
the Hudson's Bay territory. On this map it is marked as on the line of oC^, aad
as far west as 106*^.

Sir Robert Collier. — What map are you on now ?

Mr. McCarthy. — I am on Mitchell's map. I have read that frum Mitchell's
map. If your Lordship will look on that, you will see M^here that point is. What
it sa^^s upon Mitchell's map is this : " The head of the Mississippi is not yet knowa
It is supposed to arise about the 50th degree of latitude, and western bounds of

* Ontario shewed that the word "banks" was in the original bill, and had referencd therein to the
extension of the whole territory of Quebec ** westward to the banks of the Mississippi." See ante, p. 42,
note ; poU^ p. 186. notet. But even taking the term "westward" asapplicable to the prolongation of a line^
the word *' banks " would be susceptible, not only of the interpretat?on put upon it by Lord Aberdare, bat
also of that furnished by the fact, pointed out further on, that the navigation of the river, "in its whole
breadth and length," was, under the Treaty of 1763, mvle free to the subjects of Great Britain, the British
interest extending thu-* to both the easterly and the westerly bj^nk.

184

\

Mitchell's map of 1755.

this map." The western bounds of this map go to near 106"^. That was in 1755 ;
the Act of Parliament was in 1774.

The Loud Chancellor. — Very probably, some such idea was in the minds
of those who drew this Act of Parliament, because, if you are going alonof the
banks of the Mississippi northwards to the southern boundary, that would be
perfectly accurate if the Mississippi rises within the Hudson's Bay territory.

Mr. McCarthy. — What strikes me, my Lord; if f may be permitted to say
so, about that, is this : If your lordship will look at the map at that particular
point, it is quite evident, I think, that at that date the Hudson's Bay territory
could hardly be known to extend so far. Mitchell's map, which has been referred
to for other matters, would seem to shew Hudson's Bay did not go as far west as
that territory under the charter. I think the line on Mitchell's map is the line
that went to Split Lake, and if it went to Split Lake, this is several degrees west
of Split Lake. The height of land boundary on Mitchell's map is the height of
land which goes to Split Lake.

Lord Aberdare. — You would argue that when they used the words " the
head of the Mississippi," the}'^ knew at any rate that the sources of the Mississippi
must be on the other side of the height of land.

Mr. McCarthy. — Yes.

Lord Aberdare. — Then, you find it rather more to the south than you
expected ?

Mr. McCarthy. — Yes. and a good deal more to the east.

Lord Aberdare — According to you, you must not take it up to the 50th
degree, where they supposed it to go —

Mr. McCarthy. — I have not made myself clear.

Lord Aberdare. — But you must take it to the watershed, and the watershed
actually turns out to be very much to the south.

Mr. McCarthy. — Ves. I am now speaking only as to the construction of
the Act. We must look, in order to find the construction, at the knowledge of
that day, and we must deal with it in resfard to that knowledge. At that day
the source of the Mississippi was unknown, but the suppjsition was that it went
as far to the west as 106''', and as far north as 50*^.*

Sir Moxtague Smith. — Where is 106*^ ?

Mr. McCarthy. — It is west of the whole thing altogether. It is within a
very short distance of the Rocky Mouniains. My argument is that parliament
would hardly intend to carry the country of Canada west to that point. If we
follow that line, that is the conclusion, for two reasons : in the first place, it is going
far west, as your Lordship will see, of Red Lake, which is supposed to be the
lipait of Canada.

Sir Robert Collier. — Very little to the west.

*It can hardly be maintaiaed that Mitchell '« map of 1755 correctly represented the state of the geo-
graphical knowledj^e of 1774, as respects the point under discussion. The Carte de TAmerique Bepten-
trionale, 1743, by the standard geographer Bellin, in Charlevoix' Histoire de la Nouvelle France, shews the
source'^of the Mispis^ippi in about latitude 47^®, due south of Lac des Bois. In the Memoires des Comrais-
saires du Roi et de ceux de 3a Majeste Britanaique, Pari?, 1755-7, i^ a map, C^rte d:>s Pretentions des
Anglois dans TAmerique Septentrional e, on which the Mi>«si8«ppi is shewn as having its source in Lac
Kouge, about 2** sDutn of the Lake of the Woods; on Jefferys Map of Cmada and theNonh Part of
Louii»iana, contained in bis History of the French Dominions in North and South America, London, 1760,
an atHuent of the Misitissippi issues from Red Lake or \Iissis icaigan. the sources of the main branch being
Mmoet due south of the Lake of the Woods ; and in his Chart of the Atlantic Ocean, with the British,
French and Spanish settlements, (about 1763), the sources of the river bear the same relation to the Lake
of the Woods. With this agree three other maps, published in the sama yaar ; and Bonnes Partie de
rAmerique Septentrionale, of 1773, shows the sources in nearly thsir true DDsition in reference to the Lake
of the Woods. (Ont. App. 118-121, 123). The French, through their explordrs and misaion-^ries, had this
knowledge from an ear^y date, but it must be confessed that it wa^j not alwiyH correctly represented upon
their published maps.

185

ARGUMENT OF MR. M CARTHY, q.C.ve QUESTION OF BOUNDARY:

The Lord Chancellor. — You are reading the Act of Parliament by that
map. That map is very useful for J^ome purposes, but liardly for that. Though
the map may be very useful for some purpos3s, it hardly can be read into the
. Act of Parliament.

Mr. McCarthy. — What I mean is, if we want to find out what was meant
at the time, we must see what the consequence, in the eye of Parliament, would
be in following that reading.

The Lord Chancellor. — If you were to follow the banks of the Mississippi,
the framers of the Act believed they would be led along these banks till you
reached the southern boundary of the Hudson's Bay territory.* More than that
it seems to me, you cannot get from it.

Mr. McCarthy. — If that is so, it gives to the Hudson's Bay territory very
great western extension according to the view of that day. That was the diffi-
culty which appeared to me in taking that construction. Your Lordship will see,
the Hudson's Bay Company had not penetrated to that extent westward at that
time, and although it may have been known there was a watershed to the Hud*
son's Bay, still the other side can hardly blow hot and cold. They can hardly
say the Mississippi was to be followed, and yet the Hudson's Bay territory could
not have been reached by that north line.f Your Lordship will see where the
height of land to Split Lake is. I do not know about the English knowledge,
but in the French maps the height of land is marked down — and as far as Lake
Superior — with marvellous correctness.

The Lord Chancellor. — As far as Lake Superior, likely enough.

Mr. McCarthy. — And other maps, to which reference has been made also,
shew that there was a height of land, which I have spoken of already, which
went to Split Lake. It may be quite possible that was the height of land, at the
time, which was supposed to bound the Hudson's Bay territory. If so, it would
be absurd to follow the Mississippi up to its source, and north to the Hudson's
Bay territory.:!:

Sir Robert Collier. — Nothing at all is said in the Act about north of the
height of land.

Mr. McCarthy. — Now, my Lord, I will point out very briefly what I have to
say with regard to this question, which will be more fully dealt with by my
learned friend. I will not go into it in great detail.

The chief settlements — except three or four — were east of the due north
line. The French colonies and settlements were at Detriot, Michillimackinac,
Sault Ste. Marie, Fort Miamis, Vincennes and other places. Numbers and num-
bers of them, which will be pointed out more in detail, were all' east of this due
north line, except three or four settlements upon the Mississippi, planted there at
the time Le Sueur ascended the Mississippi. The inhabitants of these, as the histori-

*See, as to the inteQtioi of the framers of the Act, p. 42 antc^ text and note.

fThe argument on behalf of Ontario, upon the Quebec Act, relative to this point, was that the word
*' northward" had reference, not to the prolongation of a line, which the grammatical construction would
not admit of, but to the extension, in that direction, of the whole territory dealt with, as shewn by the
history of the passage of the Biil through Parliament, as if the A.ct read : *'A11 the territories, islands and
countries in North America, belonging to the Crown of Great Britain, bounded on the south by a line . .
[and extending] westward to ihe bmks of the Mississippi, and northward to the southern boundary of the
territory granted to the Merchants Adventurers of England trading to Hudson's Bay," (see ante, p. 42,
note, and p. 34. note) ; that even if this view was not to prevail, the lang^a^jfe of the Act did not neces-
sarily require that the Hudson's Bay Company's territory should be met with at the source of the Missis-
sippi ; and that, in any event, the line from that ascertained point -whether drawn due north, northward
by a natural boundary, or deflected to embrace the French posts of the North- We^t — must, since, and by
f >rce of, the orders in council, proclamation, and statute of 1791, and the subsequent oommissiona, be to
drawn as to reach the "boundary line "—that is **the shore " — of Hudson's Bay.

^Not at all absurd, for a line drawn due north from the actual aouroe of the Mississippi woald
intersect this pjtrtiuular height of lani at about the source j of the Severn and Berens rivers.

186

■ TT^W""^ W»-

THE FRENCH POSTS OF THE WEST AND NORTH-WEST.

<3al accounts of the day prove, very naturally, on the occasion of the treaty being
f ublished, abandoned their homes and what had formerly been their country, ana
went to the west bank of the river and founded the present city of St. Louis.*

Lord Aberdare. — What importance do you attach to those num.erous forts
which had been founded to the west of this line ?

Mr..McCARTHY. — That comes in with reference to another point. Those were
not, in any sense in which we should understand the term, posts or forts. These
gentlemen that are spoken of undoubtedly did go there and establish temporary
posts, but there were no settlements. They were really intended to help in the
•discovery of the Western Sea The mission of these men, sent by France, was to
find the Western Sea. They started at Fort William. They would have a fort
here and there, as steps on the journey they were making to the Western Sea. I
will point that out, and prove it from the correspondence to which my learned
friend has referred, but in the sense of their being settlements or colonies the word
•could not be used. The whole number of men in the posts of the Western
Sea, included under one post, are stated as seven in the document referred to,
from the Governor of the State of New York.

Sir Robert Collier. — Seven for how many posts ?

Mr. McCarthy. — For all these seven or eight posta-f

Sir Robert Collier. — One man at each post.

Mr. McCarthy. — They had been abandoned ; they were not posts.J When
the cession took place, Detroit, Sault Ste. Marie and Michillimackihac were all de-

• All the tettleroents of the Illinois country— with perhaps on« exception, that of a »mall settlement
•on the right bank of the Wabash— were to the west of the due north line, and/notwithstanding a consider-
able emigration to the other side of the Mississippi, contained a larger French population at the time of
passing the '^ebec Act than several of those named in the text combined. (Aiills. p. d5.) In 1773, the
inhabitants were agitating for a separate form of civil government, as to wnich Lord- Dartmouth, the
Secretary of State, wrote : *' Some form of government seems esMntially necessary ; and though I cannot
think that a civil establishment independent of any other of the King's colonies ought to be adopted, yet I
-venture to assure you that the interests of His Majesty's new subjects there will not be neglected." ^ (Joint
App. S63.) This promise was fulfilled when their interests were comprehended in the Act of 1774 ; in 1775,
A Lieutenant-Governor of the ** Illinois District, in our Province of Quebec " was appointed by Imperial
Commission ; and under the Royal Instructions to Governor-Greneral Oarleton, of the same year, a local
•court of justice, of inferior civil and criminal jurisdiction, was established, in addition to the courts for
the province at large. The Lieutenant-Governor of the Illinois was commanded to obey such orders as he
miflrnt^ receive from the Governor- General, and his salary, with the salaries of the local judge, the
jMsistant judge or assessor, and the sheriff, were made chargeable upon the revenues of Quebec. (Joint
App. 605-6, 363, 379 81.) And besides the settlements of the Illinoif-, there were also, to the west of the
■due north line, Prairie du Chien, St. Antoine, and other p:>Bts of the Upper Mississippi (Prairie du Chien
Alone contained a French population of 500 at the time of its surrender), Ohagouamigon, Ramanistiquia,
and the posts of the North- West.

f Col. de Bougainville, who served in Canada through the war which ended in its capitulation, is
the best and unquestioned authority on this subject, and he says of these very forts, that ewsh was
trusted, generally, to the care of one or two officers, seven or eight soldiers, and eighty engage* Cana-
diens, or about ninety men, making an aggregate force of over six hundred at that date. He shews that
this Post of the Western Sea, as the forts of the North-West, with their dependent territory, were collect-
ively called, was held in possession, and for purposes of commerce, but that it was of imp>ortance also for two
other reasons, viz., that from it the English of Hudson's Bay cauld be watched, and the discovery of the
Western Sea might be accomplished. Of Fort des Prairies on the Upper Saskatchewan, the most remote
of the seven fores of the North- West enumerated by him. he says it was farmed to its commandant with a
fourth interest in its trade, for a consideration of eight tnousand francs, and that besides a large fur trade,
it bad a considerable traffic in slaves— Rouges or Panis. (See anUt p. 94, note.) After 1ihe cession of
Canada, many of these forts remained in possession of the trading associations which subsequently became
tmited as the North- West Comp:iny, and among them Fort des Prairies, which is described in 1776 as having
** usually from fifty to eighty men for its defence." (Henry's Travels, quoted in Ontario App. p. 62.)

'J he misapprehension of counsel was upon the despatch of Governor Carleton —not of the Governor of
New York -of 1768, quoted ante, pp. 82-4, which had reference to the year 1764 : ** The annexed return of
the French pbsts, of the troops for the protection of trade, with the number of canoes sent up, in the year
1754, shews," etc. The return— relating and professing to lelate to regular troops only — gives one officer,
two sergeants, and four soldiers for each fort of the North- West, but makes, of course, no mention of the
engages, indispensable at every post not excluMvely military. (Joint App. 611.)

X The evidence is that they were posts, and that they were not abandoned but were held by France
until the Conquest. They could not have been abandoned in 1754, the time treated of by Gov. Carleton,
{ante, pp. 32-4), nor in 1757, when Bougainville wrote, {atUe, p 94, note ; supra, note +), nor in 1761, wh«.ii
JefiFerys' account of them was published, {ante, pp. 143-4).

187

ARGUMENT 'OF MR. M CARTHY. Q.C., re QUESTION OF BOUNDARY :

livered up to the King, and, after the Treaty, the posts upon the Mississippi ; but
no one ever heard theie was ever a surrender of these so-called posts and forts in
what we now call the Hudson's Bay territory. Therefore, if we want to give a
meaning to, the Act, which of course the recital is entitled to, and we want to find
what colonies and settlements were to be brought in,&nd to which a civil govern-
ment was to be given, and that a French one, we do find all the settlements be-
longing properly to France. The other alternative, and of course it is not free
from doubt, is to leave these posts upon the Mississippi, such as Caskaskias, Fort
de Chartres, Cahokias — ^these three posts and small settlements about them —
without any civil government. The answer which I make to that, vith a good
deal of confidence, is : Was it intended by the British Parliament that from the
Wabash, where Vincennes is, all that intermediate country, which now forms the
great state of Illinois, and beyond the great state of Illinois, was to be brought
in under the French law and made a French settlement ? Of course, all4ihese three
or four small settlements which were there were being deserted by the people going^
to the French side of the river, because although ceded to Spain ia 1762, that ces-
sion did not become known for three or four years afterward?. That is the proposi-
tion on the facts.* Then, if your Lordships will look at the map, I concede that
what Sir Montague Smith has said is perfectly true, namely, that " northward *'
may mean due north, or in a northerly direction. We have to look at what had
to be reached. The Hudson's Bay territory had to be reached, and, more especially
looking at Mitchell's map, it would be more reasonable to take the Illinois as the
north line than the Mississippi. To go by the Mississippi to the junction of
the Illinois and follows the Illinois would be a far more reasonable construction
in those days of the " northward " line, if the words due north do not apply to it
That would have equally reached the Hudson's Bay territory. It would have
reached it in a much more natural course, and would be much less to the north-west
than the Mississippi as then understood, or even as it exists, would be

^ Sir MoNTAGQE Smith. — Do you contend now for the due north line on this-
map ?

Mr. McCarthy. — Yes. My argument is this. The more difficulty, you have
as to whether you are to bend to the east or the west in order to get to the Hud-
son's Bay territory, the more certain it becomes that you must follow the due
north line. I say that the map, and its history, and the circumstances I have
mentioned, indicate, as I venture to say (with some clearness to 5^our Lordships I
trust), that it would be more in accordance with what we can assume to have been
in the contemplation of the British Parliament at that time, to have followed the
course of the Illinois than it would be to bend to the north-west and follow the
course of the Mississippi. What then is left ? Is there any other left except the
line solemnly determined by the Court of the Queen's Bench, in 1818, as the proper
boundary, that i&, the due north line ? I suppose it would be hardly fair to commit
the Chief Justice to the report of the case, which may not be full. This would be
a reasonable construction to put upon the language. If it would be a shorter line
to take the due north line to Hudson's Bay, that would be a proper reason for
following it.

Sir Egbert Collier. — The due north line would be the shortest.

Mr. McCarthy. — That is what I contend. It depends upon whether the
Hudson's Bay is nearer that point than the other. You might reach the Hudson's
Bay on the west line quicker than upon the due north. But for the present, I
will leave that part of the subject, and come to what I contend on the second
point.

*3€e antet p. 187, note*.
188

JIS TO FIRST EFFECTUAL DISCOVERY AND SETTLEMENT OF HUDSON'S BAY TERRITORY.

The Lord Chancellor.— Your second proposition is that this line, which is
drawn direct to the confluence of the rivers, simply depends on what is the neces-
sary and right construction of the words of the Quebec Act ?

Mr. McCarthy.— Yes.

The Lord Chancellor. — You have nothing else in favor of it ?

Mr. McCarthy. — All the circumstances I have endeavoured to point out are
in favour of it. That is my contention.

The Lord Chancellor. — I do not see it. But except those facts you have
already referred to, there is no fact to shew an actual use, or enjoyment, or pos-
session, or occupation, or government, coinciding with that line at any time.

Mr. McCarthy. — I think there is nothing one way or the other, except that
up to the height of land, at Fort William, the Province of Upper Canada extends
about 30 or 20 miles west of the line,*

Now my second point is. assuming the construction contended for on the
other side is the proper one, and that the Mississippi has to be followed up, we
will follow the course of the Mississippi up to Lake Itasca. Then, if I am right
in apprehending what has already occurred, it seems to be conceded the only
thing to do would be to go direct north to the Hudson's Bay territory.-f-

The Lord Chancellor. — The Act of Parliament seems to be drawn on the
supposition that by following the banks of the Mississippi you would get to the
boundary Ime, and probably cross it This is a mistake in fact — I suppose, on
sound principle, you would then take the next point ?

Mr. McCarthy. — I understand there is no dispute upon that. Then it
becomes a most important question in this view to determine where is the
southern boundary of the Hudson's Bay territory. Until we know that, we do
not know where to stop with the north line. In regard to Hudson's Bay, the
charter has been referred to, and I need not read it again. Our reading of the
charter is, that the King, who had then, we say, unquestionably, according to
history, been the discoverer of Hudson's Bay, and the adjoining territory, had
what is known in international law as an inchoate right to preserve that by
settlement.! To the discoverers of this continent, or part of it, followed by settle-
ment, the country, according to the arrangements made by the European nations,
belonged. I will not trouble your Lordship with that, because I know that it is
unnecessary. It is hardly pecessary in an English court, or for an English
counsel, to contend as to that point with all these facts before us, though the
French did strenuously urge the other view. At that date, what was the posses-
sion of the Crown ? It had discovered, but it had not settled. The discovery
gave it the right to perfect and complete its title, its acquisition of this new
territory by settlement ; but peradventure, somebody else — France — might have
settled, and so in granting the charter, the King gives to the adventurers, as they
were called, the Hudson's Bay, and all the territory draining^ into Hudson's Straits

♦ There is the further important fact, that in 1776, the year after the pas^ge of the Quebec Act, ** the
niinois District, io our* Province of Quebec," with *'it8 dependencies," was organized as a Lieutenancy,
by Bnperial Coinmission and Royal Instruction, under the jurisdiction of the central government at Quebec,
but with a Lieutenant-Governor, localcourts of justice, etc. (See ante, pp. 134, note, and 187, note*). Detroit,
Michillimackinac, and other places, admittedly within the limits of Quebec, were respectively similarly
organized, the same year.

t See anU^ p. 186, note t.

^France claimed, and it was the contention of Ontario, that the circumstances were such that no such
right could accrue to England ; that the French settled on the St. Lawrence, and founded Quebec, before
anv of thb English voyages relied upon in this connection took placej and proceeding from the St. Lawrence
nae, were the first discoverers, and first occupants, of the territory, were, from the first, in the enjoyment
of its trade and in friendly alliance with its native inhabitants, and, moreover, made a disposition of it, by
Charter, some 40 or 60 years before the Charter to the Hudson's Bay Company was graated. See appendix
B, hereto.

§ The charter containM no such words.

180

ARGUMENT OF MR. M CARTHY, Q C, re QUESTION OF BOUNDARY

and Bay, except such portion of that territory as was then actually possessed by
any other Christian people ; and the question is, was there any actually possessed
by any other Christian people at that time. Upon that, also, the facts are hardly
in dispute. The French claim that they had been there, but if they had been
there they had been there as discoverers, and as their so-called discovery was-
subsequent to the English, they took nothing by that ; they had not settled.
Now, there is not a shred of pretence set up in any of the evidence and document*
before your Lordships that, at that date, the French were in possession of any
portion of territory which we say was granted by that charter to the Hudson'^
Bay Company* So that, prima facie, and at all events as far as the Crown
and people of England are concerned, that charter, of its own strength and force„
although not binding upon foreign powers, did give to the Hudson*^ Bay Com-
pany all which on its face it purports to grant. This, I understand, is the differ-
ence between the international view and the municipal view, so to speak. Muni-
cipally speaking, that did give all it spoke of. It might be that as against a
foreign country it only gave what it was in the power of the King to grant, but
so far as the municipal law goes, so far as Great Britain is concerned, it did grant-
all which on its face it purports to grant'f

Now, if I am right in that, that that was the effect of this grant — let us see
what followed ; and I propose to divide my statement into three or four different
periods of time, and to trouble your Lordships as little as possible with references,,
though I have them all here. My first period of time I have now brought to a.
close, and that is the date of the charter. The second period of time is from 1671
to 1686 and during that time, but only commencing after 1680, the French were
fighting (although peace at that time prevailed) with the English in Hudsoh's^
Bay, and in point of fact had captured all their forts but one. They had actually
driven the English out of these forts, having come overland from Canada. .They
had succeeded in driving the English out of their forts, out of their positions, out
of their settlements, and they had occupied them, and were then in possession of
some of them. But I should have mentioned that during the early part of this
period (and it has always been made a strong point in favour of the Hudson's
Bay claims) the French acknowledged and acquiesced in the Hudson's Bay pos-
sessions. They did not dispute it So the claim has been put forward on behalf
of the Hudson's Bay Company on two grounds, first, discovery and settlement,
and secondly, acquiescence by the French,:^: who pretended to be equally

* There is a mass of evidence in the several Appendices, whereon Ontario's contention in favour of
an adverse prior title and possession on the part of France is based. This is dealt with more fully pott ;
but see appendix B hereto.

fOntario claimed that either there was no title that could interfere with the paramount title of Fr%nce ;.
or if it could be held that there had been any sort of title, or semblance of title, on the part of the company,
it had been destroyed by the combined effect of the French military successes and the terms of the Treaty
of Neutrality and Treaty of Ryswick, and the consequent inability of the company to invoke any right
of pDstliminy ; that the after acquirement of the territories by the Crown of Great Britain, as a
result of wars and tieaties— the treaties of Utrecht and of Paris— could not be held to enure to the
benefit of the company, and the Crown, or the Parliament, as the case might bo, was free to dispose of
them in enlarging the limits of (Quebec, or of Upper Canada (a? actually happened), or otherwise, as it
might deem fit, without regard to any claims of the company. Further, an a matter of argument, even if
the Crown had chosen to still recognize in the company a title to the soil, it was competent for it — looking'
at the question as one of boundary merely— to place the territory within the limits of the Province, and to
thus extend to it the provincial laws and government. In this connection it will be remembered that not-
withstanding the charter, the Imperial Acts of 1803 and 1821 extended the jurisdiction of the Caaadian
courts to the admitted territories of the company, the latter Act also providing for the appointment 6^ the •
Crown of justices of the peace within the same territories, and for empowering any such justices, by oom>
mission under the Great Seal^ '* to sit and hold Courts ot Record for the trial of criminal offences and mis-
demeanours, and also for civil causes."

t Ontario shewed that there was no valid claim on the ground of either discovery or settlement, and
that there was no evidence of such acquiescence. On the contrary, the evidence shewed a total denial of^
and armed resistance to, the company's pretensions, by the French. See appendix B hereto.

190

1

'TP^'.?;^.

TREATY OF RYSWICK, 1697.

entitled, and undoubtedly for some years did not disturb, but rather were on
good terms with the En^rlish — there is some correspondence to shew that — during
the time when Bailey was Governor of the Hudson's Bay Company. Not to
delay your Lordship I will put in that afterwards; There is a document from the
French — a correspondence with the Governor of Hudson's Bay — acquiescing in his
possession.* During that period, from 1680 to 1686,1 say tne English were very
much disturbed, and then, in 1686, we have the Treaty of Neutrality, which forms*,
as it seems to me, the first proper line to stop at. The Treaty of Neutrality is at
page 544 of the Joint Appendix. The fourth clause, I think, is the important one.-f-
Then, under that treaty commissioners were appointed, and an attempt was
made to ascertain what was the proper line of demarcation between the French
settlements in Canada and the Hudson's Bay, and they extended over a period
until 1697, or rather they did not go so far as that, because war broke out oefore
that. I*think I can give your Lordship the date when that next war broke out.
It was 1689—1686 wasHhe Treaty of Neutrality— 1689 was the date of the
declaration of war. Durini^ this short period an attempt was made, as the corres-
pondence which is put in as part of the case shews, to settle the dispute which
then existed between the two countries. I will trace it up historically to your
Lordships. I do not know that very much really attaches to it.

The Lord Chancellor. — Unless it tends to shew the southern boundary.

Mr. McCarthy. — It shews the Hudson's Bay people were claiming what
they have all along claimed, namely, that they were entitled to all the terri-
tory drained by Hudson's Bay.; Then comes the Treaty of Ryswick§ followinc^
that. That was ii> 1697.. They were left, to use their own words, *' the only
mourners by the peace." That did to a certain extent leave them in an uncom-

*See arUCf p. 190, notei^U

t Treaty op Nbutr\lity, betwekn Locis XIV. of France and Jamks II. of England, 1686.

XV. It has been agreed that each of the said Kings shaU have and hold the domains, rights and pre-
eminences in the seas, straits and other waters of America, and in the same extent which of right belongs
to them, and in the same way they enjoy them at present.

:;: It ia in evidence that no such claim had then, or for a long period afterwards, been preferred by the
company. Chief Justice Draper, in his memorandum of 6th May, 1857, submitted to the Secretary of
State for the Colonies, (Joint App., 193), collects the authorities on this point, and adds :

•• In all the forecroing documents it will be observed, that whether upon the Peace of Ryswick, when
English affairs looked gloomy, and those of France were in the ascendant, or after the Treaty of Utrecht,
when the power of France was broken, the Hudson's Bay Company sought to have the baundary between
the territories they claimed and those forming p>rt of Canada, settled by some defined and positive line
which was to be the result of negotiation, not then pretending that there was anything in their charter
which gave them a rule by which they could insist that the extent of their territories to the southward
should be ascertained.

'* Even in October, 1750, they entertained the same views, while at that time they were pushing their
pretensions, both to the northward and westward, to the utmost limits. ♦ ♦ ♦

'* Tbe foregoing extracts are deemed suffisient to establish what the company considered their territorial
rights in reference to their connection with and proximity to Hudson's Bay itself, where they had planted
their factories, and desired to attract the Indian trade. They certainly shew that neither after the Treaty
of Ryswick, nor that of Utrecht, when they stated the boundaries they were either willing to submit to, or
were desirous of obtaining, nor yet in 1750, when they set forth what they thought themselves entitled to
claim under their charter, did they ever think of averting a right to all the countries the waters of which
flow into Hudson's Bay. ♦ * ♦

" The French Grovernment, it appears, would not agree to the proposal which would have limited them
to the 49th })arallel. Colonel Bladen, one of the British Commissioners under the Treaty of Utrecht, wrot©
from Paris, in 1719, in reference thereto : ' I already see some difficulty in the execution of this affair, there
being at lea^t the difference of two degrees between the last French maps and that which the company
delivered us.' No settlement of the boundary could be arrived at.

"So far as has been ascertained, the claim to all the country, the waters of which ran into Hudson's Bay,
was not advanced until the time [10th June, 1814J that the company tookthe opinions of the late Sir Samuel
Rorailly. Messrs. Cruise, Holroyd, Scarlett, andBell.(l) Without presuming in tbe slightest degree toquesr
tion the high authority of the eminent men above named, it may be observed that Sir Arthur Piggott,
Sergeant Spankie, Sir Vicary Gibbs, Mr. Bearcroft, and Mr. (now Lord) Brougham, took a widely dif erent
view of the legal validity of the charter, as well as regards the indefinite nature of the territorial grant, aa
in other important particulars."

§ Printed an% p. 112, note.

191

AltGUMENT OF MR. MCCARTHY, Q,C., VC QUESTION OF BOUNDARY ;

fortable position. That went to this exent. It has already been roferred to by
the other side. It specifically stated that the forts that had been taken by the
French from the English, even although in time of peace, and were retaken by the
English during the ensuing war, should be restored to the French. That part of
it is at the top of page 489 :

*'The Most Christian King sball restore to thesaid King of Great Britain all countries,
islands, forts and colonies, wheresoever situated, which the English did possess before the
declaration of this present war. And in like manner the King of Great Britain shall
restoie to the most Christain King all countries, islands, forts and colonies, wheresoever
situated, which th« Frenrh did possess before the declaration of war, and this restitution
sball b^ made on both sides within the Fpace of six months, or sooner if it can be done.
And to that end, immediately after the ratiBcation of this treaty, each of the said Kings
shall deliver, or cause to be delivered, to the other, or to commissioners authorized in his
name for that purpose, all acts of concession, instruments and necessary orders
duly made and in proper form, so that they may have their effect.

*' Oommissioners shall be appointed on both sides to examine and determine the rights
and preten8i(5iis which either of the said Kings hath to the places situated in Hudson's
Bay ; but the possession of those places which were taken by the French during the peace
that preceded this present war, and were retaken by the English during this' war, shall be
left to the French by virtue of the foregoing articles."

That, I think, is all. " The capitulation made by the English on the 5th
September, 1695, shall be observed according to its form and tenor." That, 1 do
not think applies to this point. Then, the Hudson's Bay Company were exceed-
ingly dissatisfied with this condition of affairs, but fortunately for them, this
treaty, I think, never was carried out. These forts never were actually delivered
up.* They continued in that way, the Hudson's Bay Company representing to
their government that all that was intended to be given up were the forts, that
it did not affect the country ; f that if the country was theirs that drained into
Hudson's Bay,J this article of the treaty, and the treaty itself, did not affect it.
That was the English contention, but that the most that was to be conceded were
the identical parts and places which had been taken by the French during the
preceding peace and had been recaptured by the English during the war.

Then follows the next war, which was in 1702, there being about five years
between the two, and during the five years there was an opportunity for the^
Hudson's Bay people to state their claim, and there was also an opportunity for
the English authorities to set forth the view that I have spoken of, whether
rightly or wrongly I do not stop to consider, because I do not think it is of very
much importance.

Now, the Hudson's Bay Company reply to the French claims arising out of
this Treaty of Ryswick. If your Lordships desire to look at it, you will find it at
page 555 of the Joint Appendix. I have stated, I think, the effect of it, and it is
not very important, at all events in the view that I contend for. I will not
trouble your Lordships wdth it, except simply just giving you the reference to it.

Then comes the war of 1702, followed by the peace and Treaty of Utrecht —
the all important treaty, in the view that we contend for, as firmly establishing
the Hudson's Bay Company's claims. And first, perhaps your Lordships will look
at the negotiations which led up to that peace, at pages 490 to 494, so far as it
concerns Hudson's Bay. "The plan of peace, 1712," is at page 494. The pi*o-
position that commissioners should be appointed in order to settle the disputes is

*One only of the forts remained in the company's hands. The others, together with the whole interior
country, were in poiseBsion of the French. (See poitf p. 197, note).

t This contention was really that of the French, and in referetoe to the Treaty of Utrecht

X But no portion of the country, and but one isolated poat, remained theirs.

192

CONSTRUCTION OF TREATY OF UTRECHT, 1713 — NEGOTIATfONS PRIOR TO TREATY.

found at page 495, where the articles are marked 0. 0, . 7, and so on. At the
top of page 495, it says :

**The King will give up the proviace of Aoadia, with the town of Port Rojal, aad
its dependencies, to Great Britain, 'as also the Straits of Hudson^s Bay."

Then, upon that :

'* England demands that the town of Piacentia remain in its present state. That the
cannon and warlike stores in Hudson's Biy remain for England "

Then the reply of France :

'* His Majesty offers to let the fortifications of Piacentia remun as they are, upon
giving up that pkje to England; to consent to the dera\ni mide of the cannon in
Hudson's Bay ; and, besides, to cede the Island of St. Bartholomew,"

and so on. And then article 0. 6 says :

** After the peace, commissioners shall be appointed on both sides, to ascertain, within
the compass of a year, the boundaries of Cmadaor New France, on one side, and those of
Acadia and the lands of Hudson's Bay, on the other, and to settle in a friendly manner
all just and reasonable recompenses,"

and so on.

Sill Robert Collier. — That. I iinder;>tand, they never did.

Mr, McCarthy. — That I shall have to say a word or two about, by and bye.
It is not settled definitely whetiier tliey did or did not. There is a good deal to
be said on both sides, that is certain.* Then, at pago 49tJ, there is this, which
is from the report of the French plenipotentiaries to the King, April 18th, 1712 :

** We have made every possible effort to regain Acadia, or at least to rr»tain Newfound"
land, but it has been impossible for us to conclude the matter. They (&he English pleni>
potentiaries) have protested a hundred tim3s that they had expresi orders to break off the
negotiations rather than to give way on either pDint, or upon thit of Hudson's Bay,
where they claim even the cannon. We should mt hive taken choir word for this if the
Sieur Gaultier had not confirmed what they said.*'

Then, at page 500, comas the correspondence with regard to the use of the words
** restore" and "cede." The English were claiming that the word "restore"
should be used, and the French that the word *■ cede" should be used.f " In
the name of God, Sir, order your plenipotentiarie-? to be less excellent grammar-
ians. Ourfi, who also understand the force of Latin expressions," and so on.
Then " the 9th (lOth) article of the plan imports that the King shall give up to
the Queen of Great Britain, Hudson's Bay, etc., in the manner they are now pos-
sessed by the King and the French." Mark that, my Lords, " in the manner they
are now possessed by the King and the French," that is by both parties :

"The plenipotentiariesofGreat Britain insist that it shall b^j expressed that France^ shall
restpre not only what has been taken from the English, hut aU^ all that England ever pos-
sessed in that quarter. This new clause differs fro.u tht^ pi in, and would be a source of
perpetual difficulties, but to avoid them the Kini^ h%s sent to his plenipotentiaries the
same map of North America as had been furnished by the plenipotentiaries of Great
Britain. His Majesty has caused to be drawn upon this map a line which describes the
boundaries in such a manner as he has reason to think they may easily agree upon this

•The evidence put it beyond controversy that ike limits were never settled. This is admitted by the
Hudson's Bay Company in their memorials of 1760 and 1759, and the Due de Choiseul makes a declaration
to the same effect as late as 1761.

t See extracts antCy p. 113. See also M. de Gali3sonniI>re on this subject, antCy p. 119, note.

13 B. 193

ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY :

point on both sides. If, however, there should be any obstacle which the plenipotentiaries
cannot remove, the decision must be referred to commissaries to be named for the adjust-
ment of the boundaries of America."

Then, passing on to 504. we have the treaty; and the lObh article* of the
treaty is the one in question with regard to this :

"The said Most Christian King shall restore to the Kingdom and Queen of Great
Britain, to be possessed in full right forever, the Bay and Straits of Hudson, together
with all lands and seas, sea coasts, rivers and places situate in the s\id bay and straits^
and which belong thereunto " —

Your Lordships will see, in the note, what the words were. It says :

** There were two originals of this treaty, one in Latin, and the otheV iu French. This
translation is that published by authority of the English government, at the time. The
expression here rendered ' and which belong thereunto,' is, in the Latin copy, * spectarUibus
ad eadenif* and in the French copy, * et lieux qui en dependent,^ "

I render the expression " spectantibiis ad eadem,*' as looking iu that direction.
They first speak of all the lands ; then follows, looking in that direction — looking
that way. In other words it would mean the height of land :

— '' no tracts of land or of sea being excepted which are at present possessed by
the subjects of France. All which, as well as any buildings there mide, in the condition
they now are, and likewise all fortresses there erected, either before or since the French
seized the same, shall, within six months from the ratification of the present treaty, or
sooner if possible, be well and truly delivered to the British subjects having c^mmisiion
from the Queen of Great Britain to demand and receive the same, entire and undemolished,
together with all the cannon and cannon-ball which are therein, as also with a quantity
of powder, if it be there found, in proportion to the cannon-ball, and with the other pro-
visions of war usually belonging to cannon. It is, however, provided that it may be
entirely free for the Oompany of Quebec and all other the subjects of the Most Christian
King whatsoever, to go, by land or by sea, whithersoever they please, out of the lands of the
said bay" —

I call your Lordship's attention to that :

— " out of the lands of the said bay ; together with all their goods, merchandizes, arms
and effects, of what nature and condition soever, except such things as are above referred
to in this article. But it is agreed on both sides, to determine, within a year, by
commissaries to be forthwith named by each party, the limits which are to be fixed
between the said Bay of Hudson and the places appertaining to the French."

Now, with deference, I beg to submit to your Lordships, that the proper
construction of that article in the treaty is, that the true boundary was ascer-
tained, that is the limits were fixed, not upon the ground, but that the rule for
fixing these limits was fixed in the language of the treaty, and that what the
comluissaries were to do was to go upon the land, and, as it were, to mark out
and settle where that particular point was, so that after the Treaty of Utrecht it
was not left to the commissaries to say, " You shall have the height of land," or
*'you shall have a point parallel," or ''you shall have" anything else. I venture
to say, with deference to your Lordships, that the duty of the commissaries was
to settle the height of land, and to fix it.

The Lord Chancellor. — Which are the words you rely upon ?

* Printed ante, p. 112.

194

CONSTRUCTION OF THE TREATF OF UTRECHT, 1713.

Mr. McCarthy:

" The said Most Chrifitian King shall restore to the Kinj^dom and Qaeen of Great
BritaiD, to be possessed in full right forever, the Bay and Straits of Hudson, together
with all lands, seas, sea coasts, rivers and places situate in the said bay and straits, and
which belong thereunto."

The Lord Chancellor. — Supposing these words of description had occurred
anywhere else, would you have said that it included the watershed ? ^"'^

Mr. McCarthy : What other line is there — if I may venture to put Jit in
that way ?

The Lord Chancellor. — I am putting a question for you to answer. Your
opponents answered it by saying that there was a certain territory, known by a
certain denomination, which had been considered or claimed as falling in that
description. No one can possibly say that of necessity it included every stream
that ran into Hudson's Bay.

Mr. McCarthy. — Your Lordship will see, on looking again at the map, what
the position of the parties was at that time. It certainly required that the
French should surrender to the Etiglish all the lands they possessed on that bay.

The Lord Chancellor. — Let me take this as an illustration : In the map
before us there is, coloured — pink or rose colour, — the country immediately to the
north and east of Lake Superior. There runs through that country, just east of
Lake Nepigon, a river which is marked " English River," taking its source in a
lake well within* that pink or rose-coloured country. I do not know whether
your contention is that the whole of that lake* was within the Hudson's Bay
territorj'.

Mr. McCarthy. — Yes.

The Lord Chancellor : — Because it drained into Hudson's Bay ?

Mr. McCarthy. — Yes.

The Lord Chancellor. — Then it was Hudson's Bay territory within a very-
short distance of Lake Superior ?

Mr. McCarthy. — Yes.

The Lord Chancellor. — Practically up to Fort Nepigon ?

Lord Aberdare. — And east of Lake Mepigon, there is a lake from which
this English River proceeds.

Mr. McCarthy. — All from English River was north of what was conceded
to be Canada.

The Lord Chancellor. — There are two English Rivers on the map. The
English River of which I have been speaking is to the east of Lake Mepigon,
It seems to have taken its source close to Fort Nepigon. Your argument is,,
that because that ran into Hudson's Bay it is within Hudson's Bay territory ?

Mr McCarthy. — Yes.

The Lord Chancellor. — And not within Canada ?

Mr. McCarthy. — Not within Canada.

The Lord Chancellor, — Extending up to that, there is a narrow peninsula^
or a narrow isthmus, I should rather say ^

Mr. McCarthy. — Yes, owing to the peculiar formation of the height of
land at that place.

The Lord Chancellor. — That is your argument ?

Mr. McCarthy. — That is my argument.

Then, your Lordship will see that the forts which had been actually settled
by the Hudson's Bay Company, and some of which had been taken by the

* Long Lake, east of Nepigon, the pource of one of the branches (appear. ng on the map as English
River) of the Albany, and within about eight miles of the shore of Lake Superior.

195

^^pf^-

ARGUMENT OF MR. M'cARTHY, Q.C, re QUESTION OF BOUNDARY:

French, all of them, this treaty says, both Frencli and English, are to be restored
to the English.* Fort Rupert, which is at the top of that blue line, at the south-
east comer, was settled in 1667. That was then built. Then there is a fort
<5alled Moose Fort. I will not speak of that, because, perhaps, that was not built
till" afterwards.

The Lord Chancellor. — I did not before know that you claimed, as part of
the Hudson's Bay territory, any part of that \vhich is coloured rose,

Mr. McCarthy. — Perhaps your Lordship will allow me to hand to you this
map, as it shews the height of land more clearly marked upon it. In the map
that your Lordship has, the height of land is coloured, but it is not so clearly
"defined as it is in this one [handltig a copy of the Ontario honndai^ map of 1884
to the^ Lord Chancellor].

The Lord Chancellor. — The argument is that the rose-coloured part in the
interior belonged to the Hudson's Bay Company ? What map is this ?

Mr. McCarthy. — That is the Ontario map, on which the height of land is
more clearly marked.

The Loud Chancellor — The height of land, and the watershed ?

Mr. McCarthy. — Yes, it is more clearly marked, that is all. I will satisfy
your Lordship that my claim in that respect is right.

The Lord Chancellor, — You say so, but your opponent did not concede
that.

Mr. McCarthy. — I do not know that he did concede that.^ I do not know
where exactly he put the Hudson's Bay territory. I listened to his argument,
and I could not make out where he put the line of the Hudson's Bay territory.

Lord Aberdare. — It appears to me that the Dominion, in their enlargement
of this Manitoba province, violated their own original grant.

Mr. McCalthy. — No.

Lord Aberdare. — Did they not ? They gave you a certain portion of the
south side of the height of land.

The Lord President. — Yes, that south-eastern comer.

Lord Aberdare. — Yes.

Mr. McCarthy. — Your -Lordship sees, inst^.ad of stopping short at the
height of land, they took the Pigeon River and Long Lake,-}* and the other water
communications, as being the more convenient boundary .;[:

Lord Aberdare — Then, starting from the Pigeon River, and extending up
to the north, there is a portion of the territory assigned to Manitoba,

Mr. McCarthy. — If the due north line prevails, between the height of land
and the due north line. That is what I spoke of yesterday.

The Lord Chancellor. — However, you have nothing to found the argument
upon, about the height of land, except this Treaty of Utrecht.

Mr. McCarthy. — That is all ; and the claim, which was more clearly and
distinctly made afterwards, I will come to in due course.

Now, your Lordships will see, that at that time the Hudson's Bay Company
had forts at Fort Rupert, at the mouth of this very Albany River, at the mouth
of the Churchill River, much further to the north, and on the Severn River,

* The treaty provided that the "Bay and Straits of Hudson," together with the lands and pUc«
*' situate in the said bay and straits, and which belong thereunto," should be restored, but that commis-
saties should fix the limits *' between the said Bay of Hud •♦on and the places appertaining to the French "
{ante, p. 112). It depended, therefore, on the decision of the commissaries what lands and placeR should be
"restored" ; and the French view is set out in the papers of d'Auteuil and Galiaaonni^re, respectively, {ante,
pp. 119, note, and 159, note f) and of Lam othe- Gad iliac (Joint App. 613).

t Long Lake, on the line of the international boundary. See ante, p. 78.

tSot for convenience, but as a prolongation of their southerly boundary to meet the due ©orth line
for which, in disregard of the height of land, both Manitoba and the Dominion contended.

11)6

CONSTRUCTION OF THE TREATY OF UTRECHT, 1713.

which is between the Churchill and the Albany, so that the line of forts and
posts extended on Hudson's Bay from (I need not trouble your Lordships
with the^ast) this point north of this blue line, which is called Fort Rupert, to
the Churchill or Danish River as it is called, and in point of fact I think, sub-
stantially, they had the raouths of all the important rivers, which drain into the
Hudson's Bay, even at that date.* Also a fort at Fort Bourbon — or York, or.
Nelson — at the mouth of the Nelson. There is one at the mouth of the Churchill,
one at the mouth of the Nelson, and one at the mouth of the Severn, and the
Albany, and Fort Rupert, all which forts had been taken and retaken, and were
then occupied either by the French or the English, and were to be restored
according to this treaty, with all the lands appertaining thereto — " which belong^
thereunto," to use the English translation of the treaty — to the English govern-
ment. I submit,, upon these facts being stated, with the interpretation of the*
treaty, that the result is that that gave, at all events to that extent, to the
Hudson's Bay Company all that was drained into the Hudson's Bay — the terri-
tories which were embraced by these particular limits ; and that all that was left,
by the same article of the treaty, for the commissaries to do was, to mark' out
the limitary line — not'to determine the principle upon which that limitary line
was to be tixed., but to mark out that limitary line, so that it should afterwards
a'ppear that the French should not come north of it, and that the English should
not go south of it. What both parties were struggling for at that time should
not be lost sight of. What they were strucfgling for was the Indian trade. What
the English complained of was, that the French came north here, on the upper
part of the rivers, and the Indians who brought the furs down to our forts and
factories at Hudson's Bay are intercepted by the French, and that the trade is
by that means got by the French. The same sort of thing was said by the
French, " You get the Indians that come to Montreal and Quebec." And I
think this correspondence, which I will refer to presently, proves, that the ouly
duty of the commissaries wf»s to mark that line, so that north of that line the
French would not come, and on the south of it the English should not trespass.
But the boundary, I submit, is to be found in the four corners of the Treaty itself,,
and we are not required to go further.

[Adjourned till Saturday, July 19th.]

FOURTH DAY.

Satuhday, July 19th, 1884.

Mr. McCarthy. — I now produce another map.

Lord Aberdare. — That map is coloured so as to shew the claims of the
Hudson's Bay Company ?

Mr. McCarthy.— Yes.

.The Lord Chancellor. — The part coloured dark purple is that part which
I suppose is disputed ?

* This is a misapprehension. The compaDy then held only one fort, Albany, the French having been
in poBsession of all the other forts for a long series cf years; the French were also entitlf'd to Albany
under article 8 of the Treaty of Ryswick. and it had in fact been in their possession for tome
six years (Joint App. 580), and when it passed from them they paralyzed its trade, leaving it only a burden
on the company's hands. The company, in their memorial to the Lords of Trade, in 1702, and in their
petition to Queen Anne, in 1711, set out these facts, adding that they are " surrounded by the French on
every side, viz., by their settlements on the lakes and rivers from Canada to the northward, as also from
Port Nelson to the southward." (See also appendix B, hereto).

197

?t^'^'

ARGUMENT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY ;

Mr. McCarthy.— Yes.

The Lord Chancellor. — i'ou admit this [pointing] to be Ontario ?

Mr. McCarthy. — Yes.

The Lord Chancellor. — That seems to depend on the theory of the water-
shed?

Mr. McCarthy. — Yes.

Sir Robert Collier. — You {=ay Canada has exercised jurisdiction up to
what is called the height of land ?

Mr. McCarthy. — Yes.

The Lord Chancellor. — We have nothing to do with anything that goes
further east than the boundary of the yellow land claimed by Manitoba ?

Mr. McCarthy. — No. The only object, of course, is to find out the west line.

Now, my Lords, when your Lordships adjourned on Thursday afternoon, I
had reached the point in the historical narrative that I was endeavouring to pre-
sent to you, of the Treaty of Utrecht, and the bearing that treaty had upon the
question as to the limits of the Hudson's Bay lands, so far at all events as that
was determined by the dealings between the French and English. I had made
some reference to mattei's which I had not at the moment perhaps given your
Lordships proof of ; and 1 propose, in the first place, to give your Lordships the
proof, as briefly as I possibly can, of the more important events up to that date.
I had divided my statement, as I thought, in a manner which would make more
-easily understood what I desired to say with reference to those periods of time.
In the first place, up to the time of the charter, 1670, 1 think it is very evident,
and I was willing to take it for granted at all events, that the English had been
the discoverers of Hudson's Bay, and I would just now present to your Lordships
a map called Sanson's map — a very early map prepared by the French. It is
dated 1656. This is a photograph of the map [producing same]. It is important
in this view. It shews that what was regarded in those days as New France or
Canada was in point of fact south of a line which, I take it for granted, and I
think it appears fairly enough on the map, was assumed to be the watershed
line.*

The Lord Chancellor. — The words "Canada ou Nouvelle France" are
written almost up to Hudson's Bay.

Lord Aberdare. — The rivers are all made to flow into the St. Lawrence.

Mr. McCarthy. — Except those going into Hudson's Bay. The copy I think
is much easier to follow, and I am told it is correct. It has been coloured, shew-
ing more distinctly the difference between the two. The colouring is mine.

Sir Robert Collier. — This map is obviously very incorrect.

Mr. McCarthy. — At that time nothing was known west. All I am shewing
is this, that at that date, 1656, the French acknowledged that the English owned
or were possessed of all the north country, by Hudson's Bay.*f-

The Lord Chan'Cellor. — What strikes me at present is this, that they carry
the dotted line, which seems to be the northern boundary to Canada as here laid
-down, close up to, if not in actual contact with the waters of Hudson's Bay.

Mr. McCarthy. — Yes* I do not pretend to say that that accurately lays
down the line.

Lord Abberdare. — It is intended to be a watershed line, up to the western
extremity of Hudson's Bay. Further than that we know nothing.

Mr. McCarthy. — No.

* An examinatioD of the actual photograph, and a comparison with other maps of Sanson, fail to suhtain
^hese deductions of counsel. See poet^ p. 201, note*.

t There was no such acknowledgment. See post, p. 200, note *, and appendix B hereto.

198

FRENCH OFFICIAL BOUNDARY DESCRIPTIONS AND ACTUAL POSSESSIONS.

Sir Robert Collier. — Does it appear on the face of it to be a watershed
line ? I

Mr. McCarthy. — I think so.

Lord Aberdare. — It really is much more a map defining the limits of Labrador
on one side, and Canada on the other.

Mr. McCarthy. — I do not say it is accurate as a map. My object in citing
it is to shew that, at that date, the French seem to have confined their New France
or'Canada to the watershed of the St. Lawrence.* In confirmation of that, if
your Lordships will look at the boundary descriptions in the commissions of that
date, from the French King to the Governor of New France, that view is very
much confirmed."!-

•Throughout the whole evidence there is not one scrap to justify such a contention. The French claim-
ed consistently, throughout, that their Canada had no other limits on the north than the pole or the Arctic
Circle ; and on the west, the Western Sea or the Mer du Sud.

t The commissions and charters do not bear out this contention. The charter of 1627 covered the re^ons
to the Arctic circle, and the commissions in question variously embraced not only the valley of the St.
Lawrence, but also "the places that depend thereon in New France ;" and "the isles and lands adjacent
on both sides ;" and, "on the north, as far as the lands of the said country extend ;" and in one instance,
a special reservation of a portion of these territories is specifically described as extending northward to the
parallel of 52*^: —

Official Descriptions of Boundarirs is Frknch Oommissions and Charters.
Sicur de la RochCt I^th January^ 1598.

*' Our L'eutenant-General in the said countries of Canada, Hochelaga, Newfoundland (Terresneuves),
Labrador, the River of the Great Bay (Riviere de la Grande Baye), of Noremb^^^ue, and territories adjacent
to the said province*: and rivers, these being of great length and extent of country, and not inhabited by
the subiects of any Christian Prince. "

Sicur Samuel de Chariiplain^ 15th October^ 1612.

Champlain was commissioned to build forts, "not only in Quebec, but in other places where our authority
extends, and so far in the interior as he may be able, to e-^tablish and make known the name, power and
authority of His Majesty, and therein to bring un Jer subjectior, submission acd obedience, all the people
of the said territory and the surrounding countries, and by this and all other lawrul means, to invite them
and have them instructed, incited and stirred up to the knowledge and service of God and to the light of
the Catholic, Apostolic and Roman faith and religion, there to establish itj and in its practice and profess-
ion to maintain, g-uard and preserve the said places, under the obedience and authority of his said
Majeoty . . . • f or this purpose to make discoveries and explorations in the said territories, especially
above the place called Quebec, as far in the interior as he can penetrate, whether overland or by means of
the rivers which discharge into the said river, the St. Lawrence, with the view of attempting to find a
practicable road through the (aid country to China and the East Indies, or taking another route, as far a<i
be can penetrate along the coasts and in the interior, making careful search and survey for all sorts of
mines of gold, silver, copper and other metals and minerals, having them excavated, extracted, purged and
refined, for conversion and disposal according to and as prescribed by the edicts and regulations of His
Majesty and as will be by us commanded."

Sieur Samuel dr Champlain^ 15th February^ 1635,

This commission is in pretty much the same terms as that of 1612, but contains in addition special
powers for the exclusion, arrest and punishment, and the confiscation of the vessels and goods, of all per-
sons, whether French or others, found trafficking or communicating with the savages and people, particu-
larly within the region (reserved by the King to the Viceroy and Lieutenant-General of New France)
extending from the latitude of Gaspe in the 48th to the 49th degree as far north as the 62nd degree.
Charter of the Cfrmpanti of the Hundred Associates^ 26th April. 16^.

IV. And to recompense the said Company, in some measure, for the great outlays and advances which
it will be necessary for it to make in order to reach the said people, and for their support and preservation.
His Majeity will tfive in i)erpetuity to the said Hundred Absociates, their heirs andassignc, in all propriety,
right and seigniory, the fort and habitation of Quebec, with all the said country of New France, called
Canada, as far along the coast from Florida, which the kings, predecessors of His Majesty, had caused to
be siettled, ranging along the sea coasts to the Arctic Circle for latitude, and for longitude from the inland
of Newfoundland, drawn to the west, to the great lake called the Fresh Sea, and from there, within the
lands and along the rivers which pass there and discharge themselves into the river called Saint Lawrence,
otherwise the Great River of Canada, and into all the other streams which flow to the sea, lands, mines,
minerals, to enjoy forever the said mines, in accordance with the ordinance, and the forts and harbours,
streams, rivers, ponds, islands and islets, and in short the whole extent of the said country, both in length
and breadth, and beyond so far and as much farther as they can extend and make known the name of His
Majesty, reserving for his said Majesty only the jurisdiction of the faith and homage which shall be borne
him and the kings his successors, by the said Associates, or one of them, with a crown of gold, of the weight
of eight marks, at each change of king, and the appointment of the officers of sovereign justice, who wilibe
nominated and presented to him by the said Associates whenever he will judge it proper to establish any ;
permitting the said Associates, to cast cannon and cannon-ball, forge all manner of offensive and defensive

199

ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY:

The Lord Chancellor. — That is, they laid down their Canada as including
the watershed of the St. Lawrence, and they make all the streams within their
limits flow into the St. Lawrence.

Lord Aberdare. — They acquired a great deal of land with that.

Mr. McCarthy. — I think, with deference, they did not, beyond Louisiana,
In this country, I do not think they acquired anything.

Lord Aberdare. — Not in the hundred years /

Mr. McCarthy. — No, not beyond the watershed.* In point of fact, the
country between the watershed of the St. Lawrence and the north was the

armp, manufacture gunpowder, build and fortify places*, and do generally, m the said plaoeB, all thinga
necessary either for the security of the country or for the nreservation ot commerce.

VII. Fuitheimore, His Majesty will grant to the said Associates, for ever, the trade of all leathers,
skins and furs ot the said New France ; and, for fifteen years only, commencing on the Ist day of January,
of the year 1628, and ending on^the latt day of December, 1C43, all other commerce, whether by land orbea,
which can be crt^ated, derived from, negotiated and carried on, in any manner whatsoever, over the extent
of the said country, or m far as it cmi be extended, reserving the cod and whale fisheries only, which Hi*
Mai^ty wishes to leave free to all his subjects, revokin^r, to this end, all other concessions contrary to the
above, even the afore-mentioned articles granted to William de Caen and his associates; and to these ends
his said Majesty will, for the said time, interdict all the said commerce as well to de Caen as to his otber
■ subjects, under penalty of the coLfiscation of vesbels and merchandize, which confiscation shall belong to
, the said company, and the said My Lord the Grand Matter shall grant no leave, passport or permission to

any others than to the said Associates for the above voyages and commerce to the whole or any portion of
the said places.

Sictir ffuauU de Monimcufny^ 6th June, 2045.
" Governor and our Lieutenant-lieneral representing our person at Quebec, and in the provinces wat-
ered by the River St. Lawrence, and the rivers which discharge into it, and the places that depend thereon,
in New France."

Sicur de Lauzon, 17th January ^ 1651,
"Governor and our Lieutenant- General over the whole extent of the River St. Lawrence, in New
France, the isles and lands adjacent, on both sides of the river and the other rivers that discharge
therein, as far aa its mouth, taking ten leagues near to Miscou on the south, and on the north as far as the
lands of the said country extend {du nord, avtant s'itcridcnt lei tcrrcs du dit pays), in the same manner that
it was held and exercised by the said Sieur Daillebout."

i^icur Vicomte d^Argenson, '26th January ^ 1657.
The description in the commission of Sieuc de Lauzon is repeated, and '*in the same manner that it
was held and exercised by the said Sieur de Lauzon. "

Sieur de Mczy, 1st May, 166S. •

The d*scription in the commission of the Vicomte d'Argenson is repeated, and '*in the same manner
that it was held and exercised by the preceding governors."

Sicur dc Courcelles, 23rd March, 1665,
*' Governor and our Lieutenant -General in Canada, Acadie, and the island of Newfoncdland, and other
countries of Northern France (tt autres pays de la France Septentrionale), in the place, as aforementioned,
of the said Sieur de M^zy."

* Counsel was in error. The Charter of 1627, to ** La Compagnie de la Nouvelle France dite Canada '—
otherwise the Company of the Hundred Associates— covers not only 'the lands watered by the Ist
Lawrence and tribucaiies, but also those on all other rivers in this region which flow to the s>ea;
iu fact, all the territories up to the Arctic circle : it replaced the Montmoreucy (De Caen) company's
charter of the same, granted in 1620. From that time— nay, from the time, 1608, of the founding ot
Quebec- the whole trade was in the hands cf the French, brought overland by the lakes and rivers,
to the posts of the height of land, the great lakes and the St. Lawrence, there being, therefore,
11 no need of building forts on the shores of the Bay. Then, there were formal acts of taking possession,

t by Champlain in 1610 ; by the Company of Canada, 1610 ; by Bourdon, in 1656, when he made

a voyage from Quebec to the Bay, by sea; by Dablon, at the height of land, and in presence of the
northern Indians, in 1661 ; by L'outure, Duquet and L'Anglois, m 1663 ; by St. Lusson, in 1671 ; by
Albanel and St. Simon, in 1672. The said company, in 1661, built Fort Nemiscau on the lake of that
name (on the River Rupert) ; Radisson and Des Grosselliers were in the region of the North- West, and
visited the Bay, in 1666, in the interest of the succeeding company— La Compagnie des Indes Occidentalism
whose servants the^ then were ; which company, later on, in 1673, built other three forts in this region, viz.,
one at the Abbitibi River, one on the Pisgoutagany Lake (otherwise Lake Ste. Anne), on the Albany, and
one between the Outoulibis and the Assenipoels. They had also one on the Moo^e River the same year.
Fort Bourbon, at the mouth of the Nelson, was first built by the French in 1676, and re-established by them in
1682. All theee were north jf the height of land. ( Jomt App. pp. 461-8, 475-80, 566, 567, 619, 625-6, 628,
633, 647-8, etc. ; Ferland, i, 200). Subsequently, from 1684 onwards, the French bui.t sevend oiher fortr,
as Abbitibi, St. Germain, etc., beyond the height of land. Besides these, they had several at, or near, the
same he.'ght of land. They had also captured the establishments of the Hudson's Bay Company on the
shores of the Bay. After the Treaty of Utrecht, they retained a continuous command of the interior snd
U. its trade, still holding their old posts to the north of the height of land and establishing new oner,

1^' and in the North- West they bad a chain of forts in a legion in which the Hudson's Bay Company' had never

' set foot. (See appendix B hereto).

200

•-w^

FRENCH OFFICIAL BOUNDARY DESCRIPTIONS AND ACTUAL POSSESSIONS

Hudson's Bay country, the country on the west was the Mississippi country,
which they called Illinois and Louisiana, and granted that they had Louisiana and
Illinois, which undoubtedly they had up to that line shewn on the copy produced
on Thursday, still there was nothing to the north but Canada and tnie Hudson's
Bay.

Sir Robert Collier. — They go very near indeed to Hudson's Bay.

Mr. McCarthy. — Yes. That was intended to be the water line. If that
was incorrectly laid down, we have to find which the true water liae is ; and
about that there is no dispute.

The Lord Chancellor — That is an ingenious way of putting it — you treat
as the cardinal point here, the water line. It is not said on the other side, that
they mean to relinquish their claim to any territory here pub down as French.

Mr. McCarthy. — 1 do not know, as a matter of fact, that they represented
any river on this map as tiowing into the St. Lawrence, which does not, as a*
matter of fact. How into the St. Lawrence. It is correct as iar as that goes.

Lord Aberdare. — This map does not touch that portion of Canada which is
west of Lake Superior.

Mr. McCarthy. — (t is the foundation of the claim — we must start at the
commencement.

Lard Aberdare. — I think this may be assumed to be a map shewing the
limits between La Nouvelle Brebagne and La Nouvelle France.*

Mr. McCarthy. — If you look at page 649 of the Joint Appendix, you will
find the commissions that were granted by the French King. There is a com-
mission to Montinagny. The Hudson's Bay rights began in 1670. Then the
question is, what had the English a right then to claim as theirs, and what had the
French a right to claim ? I find that in 1645, 1651, 1657 and down to 1663, the
French limited their claim to the territory watered or drained by the St. Lawrence.
Then the English take pos.session of the Hudson's Bay. They claim that having
taken possession of the Hudson's Bay, and having discovered it prior w that,
gave them the right to take all the watershed of Hudson's Bay. The erf^ict would
be, if on the one hand the French had a right to the watershed of tlitj St. Law-
rence, and the English in 1670 became entitled to the watershed of Hudson's
Bay, then, that watershed being ascertained, the proper boundary between the
two countries would be defined. Now these commissions go to shew that what
the French in those days were claiming, was, as I say, the watershed of the St.
Lawrence.*f- That brings it up to 1670. Then your Lordships recollect the lan-
guage of the charter. The first commission gives the words more fully. It is the
one to Montmagny :

— ** and in the provinces watered by the St. Lawrence, and the rivers which discharge
into it, and the places that depend thereon in New France."

* This map of Sanson's would appear to be the same, or at aU events to have the same distinctive
features, as No. 6 in the Notes on Maps (Ont> App. p. 96), and is, in its northerly portions, not a French
original, but evidently a reproduction, in part, of an Bnglish map. Moreover the«ie portions are confessedly
baMd on English, Danish and other relations : '* Ce qui est le plus advanc(^ vers le Septentrion est tir^ de
di verses relations des Anglois, Danois," etc ; and English, Dutch and Danish name^ abound, as ** James
his Bay.""Lland of Good Fortune," "Hollandsche Bay," *' Sadel EyI." **Swarre Hoeck." etc., etc.
Map No. 5a, by this author, of about the same date, as a'so map No. 4, by the same, published in 1650,
have the names "Canada" and '* Canada ou NouvoUe France/' respt^ctively, priatei across Hudson's
Bay, and that country has no limit on the north. (76.) It is, therefore, clear that the line upon the map
in question could not have been intended as a northerly boundary of Canada. It was probably copied from
the sftme English map. East of the Bay, it forms the southerly limit of La Nouvelle Bretagne, as suggpested
by Lord Aberdare. The French always claimed that their Canada or New France extended to the Arctic
circle, or to the Pole ; the only suggestion of a more restricted limit was that of the 60th parallel, in con-
nection with the Treaty of Breda

f It has been already t>hewn that these contentions of counsel were not sustained by the evidence.
See ante^ p. 199, notes* andf ; p. 200, note*.

201

ARGUMENT OF MB. M'cARTHY, Q.C, re QUESTION OF BOUNDARY :

The Lord Chancellor. — " The places that depend thereon," goes further.

Mr. McCarthy. — I submit that meafts the places that depend on the rivers.
It means the land drained by those rivers.

The Lord Chancellor. — I take it the words, " in the provinces watered by
the St. Lawrence, and the rivers which discharge into it," do prima facie relate
to the district so watered; but then, the words "and the places that depend
thereon," mean the places that depend upon those provinces, whether watered or
not.

Mr. McCarthy. — The eflFect of that would be to take in the whole continent,
because pvery place bordered on the provinces.

The Lord Chancellor. — No. If the French had annexed something which
was not, strictly speaking, watered by the St. Lawrence or the rivers which dis-
charged into it, it would become a dependency of Canada.

Mr. McCarthy. — Their claim was confined to the St. Lawrence at that date.

The- Lord Chancellor. — This particular commission strikes me as indicat-
ing something more.

Sir Robert Colliek. — There is a commission of 16C5, which says nothing
about watershed that I can see,

Mr. McCarthy. — No. Will your Lordship look at the second commission,
in 1651 ?

Sir Robert Collier. — I was looking at the more recent one.

Mr. McCarthy. — From time to time the French were increasing in their
encroachments. Of course, it is not everything the French claim that is to be
taken as belonging to them.

The Lord Chancellor. — Nor, on the other hand, is much to be founded on
the argument which says that at a certain earlier date they do not appear to have
claimed as much as they did afterwards.

Mr. McCarthy. — No. We trace it historically, and endeavour to shew the
relative position of the countries at the time.

Lord Aberdare. — They treated a large part of the country within that
{_Hti(l8on's Bay] watershed as theirs.

Mr. McCarthy.— No. I think they really did not.

Lord Aberdare. — Here is the boundary claimed by the French. There are
various French fortresses there.

Mr. McCarthy. — No doubt they are 'encroaching on the Hudson's Bay, and
it was complained of by the English that they were doing so, and that was for-
bidden to them.*

Sir Robert Collier. — Look at the next commission of 1651 on the same
page 649. It says :

*' Over the whole extent of the River St. Lawrence, in New France, the isles and lands
adjacent on both sides of the river, and the other rivers that discharge therein, as far as
its mouth, taking ten leagues near t3 Miscou, on the south, and oa the north as far as th?
lands of the said country extend."

Mr. McCarthy. — It says : ''In the same manner that it was held and exer-
cised by Sieur Daillebout." It is limited, but I do not think we have the limi-
tation. Then, your Lordships will see .that in 1670, when the French began
to be pressed with the encroachments upon their trade, so to speak, of the
Hudson's Bay Adventurers, they put forward claims to the whole of the continent,
and that gave rise to disputes which they attempted to settle by the Treaty of
Neutrality. Now, one important document, as it seems to me, as shewing the

* There is no evidence of any such command.

202

RIVAL CLAIMS TO HUDSON'S BAY AFTER TREATY OF NEUTRALITY, 1686-7.

view then entertained by the English Government, is to be found at pages 480
and 481 of the Joint Appendix. This was in the correspondence between the
French and English after the Treaty of Neutrality, and with a view of settling
their disputes upon this part of the continent, the English in point of fact
claiming all that the Hudson's Bay Company were entitled to, and the French
endeavouring to confine the Hudson's Bay Company to the Bay, and to the
forts they had — in point of fact to drive them from the Bay.

The Lord Chancellor. — This seems to be in 1G87.

Mr. McCarthy. — Yes, at about line 36 it says :

" And it will be sufficient answer to the greatest part of the French paper to assert that
the country of Canada and that of Hudson's Bay, are two different provinces, and have
no relation but th'at of neighboarhood, as may appear by ancient and modem maps, nor
did the English, when they were possessed of Canstda itself, esteem the country of Hudson's
Bay as appertaining to it, and it is to be hoped that it will not now be reputed a depend-
ence of Canada, which would be a pretension not to be advanced between two Crowns
that entertain so good a correspondence together, and which would quite destroy the end
of the late Treaty of Neutrality, since instead of pr'eservinaf peace in time ot* war it will
be looked upon as the occasion of the worst effects of war in the time of peace, if so
notorious an invasion should remain unpunished, or satisfaction refused for the lossefd that
have been sustained."

That is in 1687, after the Treaty of Neutrality.* There are great numbers of
papers here, between the French and English commissioners, upon this disputed
<luestion as to the Hudson's Bay,

Lord Aberdare. — What is the meaning of the expression, " nor did the
English when they were possessed of Canada itself esteem the country of Hudson's
Bay as appertaining to it ? "

Mr. McCarthy. — The English claimed to be the discoverers of Canada, anrl
afterwards to have ceded it for some consideration, which they alleged the French
had not paid, and they were talking of reviving that old claim.^f- This particular
part seems to me to be ^ood as shewing that the claim put forward by the
English at that early date was that the Hudson's Bay was a province.

The Lord Chancellor. — The claim was first made by Sir William Alexander,
Earl of Stirling and Viscount Canada.

Mr. McCarthy. — Now, it is a fact, which is not perhaps unimportant with
reference to these encroachments, that it was charged in this correspondence, or
negotiation, between the English and French that the French King had rather
disapproved of what his Canadian subjects had been doing in the neighbourhood
of Hudson's Bay. He professed at all events to repudiate it. That, your Lord-
ships will see stated at page 484 of the Joint Appendix, and not in any place
denied, that I have been able to find ^

Sir Robert Collier. — That, is the answer of the Hudson's Bay Company.

Mr. McCarthy. — Yes :

" But the said Euglish company cannot but hop=J better from the justice of His Most
Christian Majesty, ^iho having declared his disapproval of his subjects' proceedings in
this aOair, in so plain a case will not infringe the good correspondence that ia between
the two Crowns.'*

All through, your Lord.ship.s will find the Hudson's Bay Company and tl^e English
government are interchanging correspondence. The English government applies

* The French memorial, to which thix is the reply, is at p. 475 of the Joint Appendix, and claims an
absolute right to the lands and shores of Hudson's Bay, upon grounds set out at lengtn.

t The actual facts were, that the English, under Kirk, had conquered and occupied Canada, in 1629, sub-
»equently restoring it, without limits, to France, by the Treaty of St. Germain en Laye, 1632 (Joint App.
17»-4, 453).

Z It was an unsupported allegation of the company, not needing denial. See poit^ p. 201, note.

203

' . •;./ •^■•^

ARGUMENT OF MR. MCCARTHY, Q.C., TC QUESTION OF BOUNDARY :

to the Hudson's Bay Company to know what they are to say, and the Hudson's
Bay Company reply, and one thing is dovetailed into another.

Sir Robert Collier. — What they represent to His Majesty is, " that in case
the French be suffered to be sharers in the Bay and Straits of Hudson, or be
permitted to trade therein, the Company cannot any longer subsist." What they
protested against was the French claiming the trade, or to be possessed of land in
the Bay or Straits of Hudson.

The Lord Chancellor. — That would include Fort Nelson, a long way to
the north.

Mr. McCarthy. — At that time the French had captured many of the forts
on the bay, and the English were claiming restitiition for this outrage, as they
called it, and the French King in answer to the English stated that he did not en-
dorse the conduct of his subjects* Now, at page 484, is a report of the Englisb
commissioneis to the Kmg, tinall}'', upon the result of all this :

** Whereupon their Lordships agree to report their opinions to His Majesty, as fellows :
We your Majesty's Commissioners appointed to treat with the Ambassador nnd Envoy
Extraordinary of His Most Christian Mfljesty, concern iog the differences that have
happened between Your Majesty and the French in America, have had frequent conferi nce»
with the said Ambassador and Envoy Extraordinary, in order to obtain satisfaction for
the damages Your Majesty's subjects have lately sustained from the French in Hudson's
Bay, with restitution of the threes fortp, which by surpiise were seized on by them, as also
touching several other differences depending between the two Crowns, and as to the
business of the Hudson's Bay, having already acquainted your Majesty with our pro-
ceedings therein—" now here is the opinion — ** we do further add our humble opinion,
that, as it plainly appears, Your Majesty and your subjects have a right to the whole Bay
and Straits of Hudson, and to the sole trade thereof, so it may be tit for Your Majesty to
support the Company of Hudson's Bay in the recovery and maintenance of their right,
since otherwise that trade will be totally lost, and fall into the hands of the Fri nch
if they be permitted to continue in the possession of those forts, or of any fort or ^lace
of trade within the said bay or straits."

Sir Robert Collier. — " Within the said bays or straits," that seemed to be
their pretension at the time.

Mr. McCarthy. — It goes further : ** the whole bay and straits of Hudsou.'^
Of course the impoitant thing was the trade. That is to say the trade of the
Indians, which was brought down by the different rivers to Hudson's Bay.

The Lord Chancellor.^ — Then, there is a proposal for settlement of the
boundary.

The Lord President. — Those words there are given more fully at page 484,.
and in the same terms as those found in the Hudson's Bay Company's chai-ter :
** with the rivers, lakes and creeks therein, and the lands and territories thereto-
adjoining." That is at line 9. Those are nearly identical with the terms in the
charter.

Mr. McCarthy.— Yes.

Sir, Robert Collier. — They say it " comprehended Fort Nelson."

* We have only the allegation of the company for this statement, no proof whatsoever beioR adduced^
and there is specific evidence to the contrary. Radisson and L)es Grusoellierd' proceedings of 1682 weie pur-
suant to instructions from the authorities (Joint App, 468, 622). a9 were also the military and naval expedi>
tiona under De Troyes and D'Iberville, in 1686 and subsequent yeara, resulting in the destiuction or capture
of the Hudson's Bay Company's forts, ships and other property. (76., 626, 6^, 634, 636 ; Ontaiio App. 7).
Then, the King, Louis XI v., in a communication to Governor De La Barre, dated Fontainebleau, 6 Angubt,
1688, instructs him '*to prevent the English, as much as possible, from establishing theuiselves in Hudson's.
Bay, possession whereof was taken in my name many years ago ; " and in a despatch from the Minister
of Utate, De Seignela^, to De La Barre, dated 10 Apri', 1684, the latter is severely censured for releasing
An English vessel which had been captured by the French in Hudson's Bay. (Joint App. 623-4).

204

7^1^ *- V ' ^-^

ASSERTION OF ENGLISH TITLE TO HUDSON'S BAY AFTER TREATY OF NEUTRALITY. 1686.

Mr. McCarthy. — Yes, " as part of the whole." Now we have his English
Majesty's sanction for that.

Sir Robert Collier. — It is a long way to the north.

Mr. McCarthy. — There is no doubt part of this that has been awarded, was
Hudson's Bay. That part which, beyond all doubt, the Hudson's Bay Company
had a right to claim, is the part ceded by the award as not being Hudson's Bay
territory.* Now, the memorandum is at page 4?85 :

" His Majesty's commissioners and the commiasioners of France appointed to treat con-
cerning differences in America being met, their Lordships delivered to the French com-
miBsioners a general memorial declaring His Majesty's pleasure touching the several
matters in difference, and that His Majesty had empowered them to treat concerniog the
settling of limits in America, whereupon the French commissioners do promise to return
an answer to such points wherein they are enabled so to do, and to receive the direotions
of the Kinj? their master concerning the others, and do likewise propose that the subjects
of both Kings be restrained from all acts of hostility."

Now, we find the King s resolutions at line 20 :

»* His Majesty's commissioners appointed to treat with the commissioners of the Most
Christian King, for the execution of the Treaty of Neutrality in America, have received
His Majesty's orders to acquaint the said commissioners, that having maturely consiiered
his own right, and the right of his subjects, to the whole B^y and Straits of Hudson, and
having also been informed of the reasons alleged oi the pirt of the French to justify
their late proceedings, in seizing three forts which for m iny years pist have bsen possessed
by the Eoglish, and in committing several other act^ of ho9tility,to the very great dami^e
of the Ens:lish company of Hudson's Bay : His Majesty doth, upon the whole matter,
conceive the said coni^anv well-founded in their demands, and has therefore ordered us
to irsibt upon bis own right, and the right of his subjects, to the whole Biy and Strait'iof
Hudson, and the sole trade thereof, as also upon the demand of full satisfaction for the
damages they have received, and restitution of the three forts surprized by the French.
We are also ordered to declare to the French oommissioaers, that His Mijesty had glvea
us powers and directions to enter into a treaty with the said commissioners for the
adjusting of limits between the dominions of both croons in America, and doing every-
thing cIho that may conduce to the removing all occasion of differences between the two
nations."

The Lord Chancellor. — Which, I suppose, they never did settle.

Mr. McCarthy. — No my Lord. Nothing came of this attempt to settle
these boundaries. This was before the Treaty of Utrecht, and still earlier, before
the Treaty of Ryswick.

Now, the next matter, and it is not unimportant, as I understand your
Lordships' view of this question, is the Act of 2nd William and Mary, 1690, page
348 of the Joint Appendix. It is only important as shewing the recognition
of the Hudson's Bay claim by the Act of Parliament.f I do not know that your
Lord-jhips require me to address you upon that.

The Lord Chancellor — We have already indicated that you may conduct
your argument on the supposition that you need not go into any question as to
the validity of the Hudson's Bay charter.

Mr. McCarthy. — The Act does confirm, in the clearest way, for a limited
time, the charter of the Hudson's Bay Company in every respect. That is in the
year 1690.

Sir Robert Collier. — No, it only takes the very words of the charter, and
recites it.

•See ante, p. 190, notef.

t Imp. Act, 2 W. & M., cap. 15, sesa. 1 (Private Acts). The confirmation of the Charter by this Act
was limited to a pariod of seven yeara.

205

hv\ N

ARGUMENT OF MR. M CAETHY, Q.C., r6 QUESTION OF BOUNDART :

Mr McCarthy. — Then, at page 635, I refer to the statement as to Fort
Nelson being one of the most important forts. Fort Nelson is to the north. One
of the early discoverers died there in the winter, and it was called Port Nelson.
It is a little below the Churchill River, your Lordships will see. I give your
Lordships the reference where it is spoken of as being the most important point
in Hudson's Bay, at page 635. Then, the Treaty of Ryswick I think I men-
tioned to your Lordships on Thursday, and I need not trouble your Lordships
again to take a note of it. The next reference is to page 555 of the Joint
Appendix,''' and it is a very full and clear account of the right of the Hudson's
Bay Company, and as to all the discoveries and so on. It is an answer of the
Hudson's Bay Company. Again, at pages 559 to 562, is another statement,"!'
which is very precise as to dates, places and events. I do not propose to trouble
your Lordships with reading them, but I will first give you the references. That
is in 1700. Then come the papers at pages 562 and 563, which I ought to refer
to.J

*** A dedastion of the Rig-ht and Title of the Grown of Great Britain . . to aU the straits, bays,
seas, rivers, lakes, creeks, island^ Hhores, lands, territories and places whatsoever within Audson's Strait*
and Hudson's Bay, and of the rights and property of the Hudson's Bay Company , . " (1699). The
French answer to this document is at page 637, Joint App.

t Reply of the Hudson's Ba> Ck)mpany to the answer of the French commissaries, June, 1699.

tThese are the company'd memorials of 10 July, 1703, and 29 January, 1701, to the Lords Oommis
aioners of Trade and Plant Jitions, proposing' the Albany River as the boundary on the west tide of the Bay ^
and by the first memorial, the Rupert River, and by the second, the East Main River, as the boundary on
the east side of the Bay. Also a letter, from the Secretary of the Lordd Commissioners, to the company,
22 January, 1701, suggesting the parallel of .52^'' as the line on the east side. They are as follows : —

The Company's Claims aptkr the Treatt of Ryswick.
[2*0 the Ripht Honorable the Lords Commissioner » of Trade and Plantations,] *

The limits which the Hudson's Bay Company conceive to be necessary as boundaries between the
French and them in case of an exchange of places, and that the company cannot obtain the whole Straits
and Bay, which of right belongs to them, viz. ;—

1. That the French be limited not to trade, by wood-runners, or otherwise, nor build any hQuse, factory
or fort bejrond the bound^s of 63 degrees, or Albany Ri' er, vulgarly caUed Chechewan, to the northward,
on the west main or coaBt.

2. That the Fiench be likewise limited not to trade, by wood-runners, or otherwise, nor build any house,
factory or fort beyond Rupert's River, to the northward, on the ea&t main or coast.

3. On the contrary, the Knglish nhall be obliged not to trade, by wood-runners, or otherwise, nor build
auy house, factory or fort beyond the aforesaid latitude of 53 degrees, or Albany River, vulgarly called
Chechewan, southeast towards Canada, on any land which belongs to the Hudson's Bay Company.

4. As aleo the English be likewiFe obliged not to *irade, by wood-runners, or other>tipe, nor build an -
house, factory or fort beyond Rupert's River, to the south-east, towards Canada, on any land which belon
to the Hudson's Bay Company.

5. As likewise, that neither the French or Enf^lirh shall at any time hereafter extend their bounds con-
trary to the aforesaid limitations, nor instigaie the natives to make war, i r join with either, in any acts of
hoFtility to the disturbance or detriment of the trade of either nation, which the French may xery reason-
ably comply with, for that they by vuch limitations will have all the country Eouth-eastward betwixt
Albany tort and Canada to themselves, which is not only the best and most fertile part, but also a much
larger tract of land than can be supposed to be to the northward, and the company deprived of that which
was always their undoubted right.

And unless the company can be secured according to these propositions, they think it will be impossible
for thom to continue long at York Fort (shou'd they exchange with the French), nor will the trade answer
their charge ; and therefore if your Lordnhips cannot obtain these so reasonable propositions from the French,
but that they insist to have the limits settled between York and Albany Fort, as in the latitude of 5^
deg^rees or thereabouts, the company can by no means agree thereto, for they by such an agreement will
be the instruments of their own ruin, never to be retrieved.

By order of the General Court,
Confirmed by the C )urt of the said ) Wm. Potteb,

Company, 10th July, 1700. j Secretary.

To the Governor or DeputihGorern'tr of the Hudson's Bay Company^ or either of them.

Gentlemen,— Upon consideration of what was thi«* day offered to the Lords Commissioners for Trad*
and Plantations, by yourselves and other members of the Hudson's Bay Company, their Lordships have
commanded me to acquaint you with their desire that the resolution of your [Court] may be taicen and
communicated to them, whether (in case the French cannot be prevailed with to consent to the settlement
of the boundaries proposed in your Court of the 10th July la^t), the said Court will not think fit to consentr
that the limits en the east side of the Bay be extended to the latitude of 52^ degrees, with whatever for*

206

Hudson's bay go's proposals for settling limits, 1700, 1701.

Lord Aberdare. — Which is Rupert's River.'

Mr. McCarthy. — It is to the past. It is just north of the blue line. It is the
north-east corner of the awarded territory, practically.

Lord Aberdare. — I see that it was their contention, after the Treaty of
Ryswick, that the French had no right to any poats eastward of Rupert's or of
Hudson's River.

Mr. McCarthy. — I am coming to that, because these are the only documents,
from first to last, that give even the slightest colour of foundation for the award.

Lord Aberdare,— Just tell me this, if that is so. The map we have here,
is the Ontario map ?

Mr. McCarthy. — Yes.

Lord Aberdare. — And therefore you do not accept it, of course ?

Mr. McCarthy.— Yes, my Lord, I do ; but I do not accept all the statements
on it.

Lord Aberdare. — It is with reference lo a statement on it that I wanted to
ask you. If you look to the north portion, along the line olf the Albany, you will
see written there, and across James' Bay : " Southern boundary " — that is, the

ther that Court may think advisable to propose, in reference to their own affMrs, for the more easy settle-
ment of all disputes between the CompjiAy and the French in Hudson's Bay.

Whitehall, January 22nd, 170J. W. P[opple].

To the Right Honourable the Lords Commissioner t for Trade and Plantations.

The Hudson's Bay Company have lately exhibited to your Lordships their re8:>lution of their Courts
the 10th of July last, concerning limits between them and the French in Hadaon's Biy, and though the
Company cannot but still insist up^n their undoubted right to the whole Biy and Straits of Hudson, as has
been clearly made out by them :

Yet in obedience to your Lordship's letter of the 22nd inst., and to she^v how desirous they are to com-
ply therewith an much as in them lies, and is consistent with their future safety, they do further offer to
your Lordships the following proposals of limits between them and the French in Hudson's Bay, viz :—

1. That the French be limited not to trade, by wood runners or otherwise nor build any house,
factory, or fort to the northward of Albany Biver, vulgarly called Checheawan, on the west main or
coast.

2. That the French be likewise limited not to trade, by wood-runners or otherwise, nor build any house,
factory, or fort to the northward of Hudson'd River, vulgarly called Caause River, on the east main or
coast.

3. On the contrary, the English, upon such an agreement, do engage not to trade, by wood-runners [or
otherwise], nor build any house, factory, or fort to the southward of Albany River, vulgarly called
Checheawan, on the west coast, on any ground belonging to the Hudson's Bay Company.

4. As also, the English be likewise limited not to trade, bv wood-runners or otherwise, nor build any
house, factory, or fort to the southward of Hudson's River, vulgarly called Canuse River, on the east coast,
on any grouni belonging to the Hudson's Bay Company.

6. That all the islands in the said Bay and Straits of Hudson, lyiug to the northward of Albany
River, on the west coast, and of Hudson's River, vulgarly called Canuse River, on the east coast, shall be
and remain to the English.

6. Likewise that all the islands in the said Bay of Hudson, lying to the southward of Albany River,
on the west coast, and of Hudson's River, vulgarly called C-inuse River, on the east coast, shall be and
remain to the French.

7. That neither the French or English shall at any time hereafter extend their bounds contrary to the
aforesaid limitations, or instigate the natives to make war, or j jin with either in any acts of hostility, to the
disturbance or detriment of the trade of either nation.

These terms the company are willing to agree to, upon condition they may be secured from any claim
that has been, or may be made on them by virtue of the 8th Article of the Treaty of Ryswick, or by any
other matter or thing relating to the said treaty. And if the French think 6t to accept thereof, the com-
pany are willing to exchange places with them, but not without settling of limits'; for that the said 8th
Article which saith there shall be an exchange of places, doth also say, that limits shall be likewise settled,
and it would seem very unreasonable that one should be psrformsd without the other. As to the company's
naming of rivers as boundaries, and not latituies, the same is more certain and obviousj both to th^ natives
as well as Europeans, and the contrary impracticable ; nor can the latitude be so well laid d >wa in thU wild
country, the Indians well knowing the one, but not the other.

But should the French refuse the limits now proposed by the company, th^ company think themselves
not bound by this or any former concessions of the like nature, bat must, as they have always djae, insist
upon their prior and undoubted right to the whole Bay and Straits of Hudson, which the French never
yet would strictly disj^ute, nor sufftjr to bj examined into (as knowing the weakness of their claim), though
the first step in the said Article of Ryswick directs the doing of it,

By Order of th* General Court of the said Company.

Wm. Potter,

January 29th, 170^ Secretary,

207

ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION O^ BOUNDARY

Albany and the East Main being the southern boundary — *' proposed by the
Hudson's Bay Company, 29th January, 1701 " and another line, that of the
Albany and Rupert, marked " Southern boundary proposed by Hudson's Bay
Company, 10th July, 1700,"

Mr. McCarthy. — Those are the very documents we are now at.

The Lord Chancellor. —You are now rea^linof from documents in 1700 and
1701?

. Lord Aberdare. — But you proceeded to say that neither then nor afterwards
was there anything: to justify the award.

Mr. McCarthy. — I say these are the only documents.

The Lord President. — These documents carry the French up to \he Albany
River.

Mr. McCarthv. — All south of that line the Hudson's Bay Compan^^ proposed
for the French. They said, we do not want the French to come north of it, and
we will not go south. What I say is, that those are the only documents, first to
last.*

The Lord Chancellor. — These may be the only documents, first or last, but
we should like to understand what these documents are.

Mr. McCarthy — They are on pages 562-3 : .

"The Company's Claims after the Treaty of Ryswick.
"The limits which the liudson'a Bay Company conceive to be necessary as boundaries
between the French and them, in case of an exchange of places, and that the Company
cannot obtain the whole straits and bay, which of right belongs to them, viz : '*

It is a document withoufcr prejudice —

•* That the French be limited not to trade, by woodronners or otherwise, nor build any
house, factory or fort beyond the bounds of 53 degrees, or Albany River, vulgarly called
Chechewan, to the northward, on the west main or coast."

The Lord Chancellor. — I see by the map that that name was also the name
of the fort built in 1684 at the mouth of the Albany River.

Mr. McCarthy. — The first forts built there were by the English,+ then the
French took them, then the English retook them, then the Treaty of Ryswick
was passed, which said that notwithstanding the English had captured them
nevertheless the}^ ought to be returned to the French, although they had been
taken from the English by the French during the peace, and therefore the
Hudson's Bay Company said they were " the only mourners by the peace."
Then the second paragraph says :

" That the French be likewise limited not to trade, by wood-runners or otherwise, nor
build any h6use, factory or fort beyond Rupert's River, to the northward, on the east
main or coast. On the contrary, the English shall be obliged not to trade, by wood-
runners or otherwise, nor build any house, factory or fort beyond the aforesaid latitude

* These documents, emanating from the company itself, conceded to the French the line of the Albany
and E&st Main rivers, but that they were the only documents that gave ** colour of foundation " to»the
award of the arbitrators, was so little the case, that they may looked upon as not having tormed even an
element in the evidence upon which the decision of what was Ontario's right was arrived at ; at best they
served but to pugg^st the actual lay, which might be conveniently followed, of a line already determinea
upjn quite different considerations. The title of France did not depend upon any concession of the com-
pany, and that title parsed not to the company but to the Crown of Great Britain— in p.'vrt in 1713, in its
entirety in 17t>3. And that was but one phase of the question, one branch of the argument. Subsequently
came the Acts of the Parliament and of the Crown— the series of Orders in Council, Royal Proclamations,
Commissions, and Instructions— which formed the actual basis of the award. {Seeante, p. 12, notet« p. 190i.
note t. )

t The first forts north of the height of land were built by the French. See, as to those on the Rupert,
Moose, Abbitibi, Albany and Nelson Rivers, an(€, p. 200, note *. See, also, appendix B, hereto.

208

HUDSON'S BAY CO*S PROPOSALS FOR SETTLING LIMITS, 1700, 1701.

of 53 degrees, or Albaay Ri^er, vulgarly called Ohechewan, south east towards Canada,
on any land which belonga to the Hudson's Bay Company" —

treating it still as their land :

" -As also the English be likewise obliged not to trade, by wood runners or otherwise,
nor build any house, factory or fort beyond Rupert's River, to the southeast towards
Canada, on any land which belongs to the Hudson's Bay Compatny."

It is only regulating tradp, after all ; there is no surrender of territory.
Sir Robert CoElier:

'' As likewise that neither the French or English shall at any time hereafter extend
their bounds contrary to the aforesaid limitations."

Mr. McCarthy. — Yes :

" Nor instigate the natives to make war, or join with either, in any acts of hostility,
to the disturbance or detriment of the trade of either nation, which the French may very
rf^asonably comply with, for that they by such limitations will have all the country
south east ward, between Albany Fort and Canada, to theraselvefe, which is not only the
bent and most fertile part, but also a much larger tract of land than can be supposed
to be to the northward."

The Lord President, — I see these are the limits which the Hudson's Bay-
Company conceived to be necessary as boundaries in case ot an exchange of
places.

^Mr. McCarthy. — Yes:

" And unless the company can be secured according to these propositions, they
think it will be impossible for them t'^ continue long at York Fort (should they exchange
with the French), nor will the trade answer their charge, and therefore if your Lord-
ships cannot obtain these so reasonable propositions from the French — " *

Your Lordships see it was to the Lords Commissioners of Trade and Plantations :

— " but that they insist to have the limits settled between York and Albany Fort as
in the latitude of 55 degrees or thereabouts, the company can by no means agree thereto,
for they by such an agreement will be the instrument of their own ruin never to be
retrieved."

The Lord Chancellor. — I see it is Fort York, or Fort Nelson.

Mr. McCarthy.— ^Yes. I omitted to read the last part of paragraph 5. Your
Lordships will obnerve, in the first place that this is a proposition made to the
Lords Commissioner-* of Trade and Plantations.

Sir Robert Collier. — There we have the precise boundary which they
claimed at this particular time, 10th July, 1700.

Mr. McCarthv. — Not what they were claiming, but what they were willing,
for the sake of peace and settlement, to accept.

Sir Robert Collier [ref ending to the Ontario boundary map]. — It is
called *' Southern boundary proposed by H. B. Co., lOth July, 1700." Then, later,
they go a little higher and there is " Southern boundary proposed by H. B. Co.,
29th January, 1701."

Mr. McCarthy. — I find no authority for that line on the map.* If you look
at paragraph 5, you will see what the company say further, line 31 :

*^ Which is not only the best and most ferule part, but also a much larger tract
of land than can be supposed to be to the northward, and the company deprived of
that which was always their undoubted righ^''

* There is authority for the line, viz., the company's memorial of the particular date, ante, p. 207,
Bote.

14 (B.) 209

ARGUMKNT OF MR. M CAKTHY, Q.C., re QUESTION OF BOUNPARY

Now they speak of their right, and make a proposition for settlement to their
own government, and not to the French.

Sir Montague Smith. — Tbey wanted their own government to get that
boundary settled.

Mr. McCarthy. — I say this never w^as communicated to the French.

The Lord Chancellor. -^ What does that signify ?

Mr. McCarthy. — Perhaps not ; I only stated the fact.

The Lord Chancellor. — There have been many documents which do not
seem to have been communicated, which have been referred to as shewing what
the claims or pretensions of particular parties were at different times.

Mr. McCarthy. — I thought I had read the part which made it very clear
that they claimed all, but were willing to make concessions for the sake of peace.

The Lord Chancellor. — You have read enough to shew that they do not
necessarily admit by this that they are conceding something to which they made
no claim. It does not go further than that.

Mr. McCarthy. — They do say, " and the company depvived of that which
was always their undoubted right." They speak of their right, and make a pro-
position for settlement to their own governnient, and not to the French. I do
not know what stronger words could be used.

Sir Robert Collier. — And they also say that they claim the whole Straits
and Bay.

The Lord Chancellor. — They seem to admit by this, that looking to the
actual state of occupation and possession, that would bo a limitation of boundaries
in which they would acquiesce.

Mr. McCarthy. — If that settlement had been canied out at that time, they
would be willing to acquiesce. That came to nothing. It was a proposition
ma'de by them, not communicated to the French, or which, if it was communi-
cated to the French, was never agreed to, and therefore it was like a proposition
made without prejudice, and of course is not to be used against them in any sense.

Then, if your Lordships care to follow this further, I may state I have gone
carefully through it, and I think I can state the effect of it, that nothing came
of all this correspondence. I merely referred to this because I thought it ought
to be explained to your Lordships, and it would hardly have been candid to your
Lordships if I had passed it over.

The Treaty of Ryswick was followed rapidly by the outbreak of war between
France and England, which ended in the Treaty of Utrecht. By that treaty the
Treaty of Ryswick was wiped out, and the English and Hudson's Bay Company
restored to all their rights.*

The Lord Chancellor. — There is a paragraph at the bottom of page 564-f-

* Ontftrio claimed that the Treaty of Utrecht could not enure to the benefit of the Hudaon^s Bay
Company, for the reasons set out ante, p , 190, note f.

fMKMORlAL OF THE HuOSON's BaY COMPANY TO THE LORDS COMMISSIONERS FOR TrADE AND PLANTA-
TIONS, 19 JANUARY, 1702. [Extract.]

[They] shall proceed t3 inform your Lordship* of the present melancholy proapect of their trade and
settlement in Hudson's Bay, and that none of Hi^ Majesty's p'.aotationi are lefc in such a deplorable stato
as those of this company, for by their erreat losses by the French, both in tim^s of peace as well as during
the late war, together with the hardships they lie under by the late Trea:;y of Ryswick, they may be said
to be the only mourners by the peace.

They cannot but inform your Lordships that the only settlement the company have now left in Hudson's
Bay (of seven they formerly possessed) is Albany Fort, vulgarly called Checheawan, in the bottom of the
uaiH Bay, where they are surrounded by the French on every side, viz., by their settlements on the lakei
and rivers from Canada to the northwards, towards Hudioi's Bay, as also from Port Nelson (Old York
Fort) to the southward ; but beside this, the company have, by the return of their nhip this year, receivod
certain intelligence that the French Itave made another settlement at a plac^ called New Severn, 'twixt
Port Nelson and Albany Fjrt, whereby they have hindered the Indiana from coming to trade at the com-
pany's factory, at the bottom of the Bay, so that the company this year have not received above one- fifth

210

L

^v»

THfe HUDSON'S BAY CO'S PETITION TO QUEEN ANNE, 1711.

shewing exactly the state of things, right or wrong, where the Hudson's Bay
Company state :

"That the only settlement the Co^ipany haye now left in Hudson's Bay (of seven
they formerly possessed) is Albany Fort, vulj^jarly called Chetheawan, in the bottom of
the said bay, where they are surrounded by the French on every side, viz., by their
settlements on the lakes and rivers from Canada to the northwards, towards Hudson'a
Bay, as also from Port Nelson (Old York Fort) to the southward."

Mr. McCarthy. — I do not know to what extent that statement is right, but
they (the French) had a settlement on the Albany River, and they had that
settlement on Lake Abbitibi, which is to the north of Lake Temiscaming. When
they say settlement, it does not mean a settlement of cultivated land, but a post
from which they traded, and where they had fortifications I think they had
posts at both those places, on the Albany River and at Lake Abbitibi.

Lord Aberdare. — Your argument would be, that their settlement there would
no more entitle them to the territory than their settlement to the north would
entitle them to the land to the north.

Mr. McCarthy. — In the negotiations for the peace of Utrecht, the English
insisted on having the cannon, and- a good deal of discussion took place as to the
words " restitution ''' and " cede," and one of the points was, that if it had been a
cession, the French would have right to withdraw their ordnance and their public
property. If, on the other hand, it was restitution, the cannon and the public
property went to the conqueror. Then, in view of the Treaty of Utrecht, the war
having occurred in 1702, and having continued to 1713, 1 think, if your Lordships
will look at page 572, in view of the negotiations then pending for peace, the
Hudson's Bay Company presented their claim to the Queen,* and that states —

part of 4he returns they usually had from thence, insomuch that the same doth not answer the expense of
their expeditiop.

The company, being by these and other their misfortunes reduced to such a low and miserable condition,
that, w thout Uh Majesty'i* favour and assistance, they are in no way* able to keep that little remainder
they are yet p issease i of m Hudaoa's Bay, but may justly fe.=vr in a short time to be deprived of all their
trade in those part;?, which is solely negotiated by tne manufacturers of this kingdom.

* The Company's petition to Queen Anne, 1711, whose admissions are so important that it may be well
to group them here in one view : —

[Extracts.]

That the French, in a time of parfect amity bitw«en the two kingdom^ viz., A.nno 16S3, did arbitrarily
invade the company's territories at PorD Nelson, burn their houses and seize their effects.

That m the years, 1684 and 1685, they continued their depredations.

That in the year 168S, they forcibly took from the company three factories, viz.: Albany Fort, Rupert
and Moose River Fort, which violent proceeding they continued the years 1687 and 1688, the whole damages
done by the French to the company in times of peace amounting to £108,511 19:^. 8d. as your petitioners
are ready to make appear, besides interebt for the same. ♦ * * *

But BO it is, may it please your most Excellent Majesty, that the company found their interest not
comprehended in the Treaty of liy^wick which they are far from attributing to any want of care in that
gracious Prince of this Kingdom's honour an i trade, and rather think their rights and claims were then
overweighed by matters of high^jr con^erjuence dep3nding in that juncture ; for by the said treaty they
found their c mdition much worse than it wa'* bif ire, — by the 8bh article whereof, the French were left in
possession of such places situated in Iludjon's Bay, as hvd been taken by them during the peace which had
preceded that war.

That at a meeting of Commissioners on both sides (as directed by the said treaty, to adjust the^e dififer-
enceii) the company did again set forth the undoubted right ot the Crown of England to the whole Bay and
Streights of Hudson, against which nothing but sophistry and cavils were offered on the French side, and
the matter remained undetermined.

That the only setolemeat now remaining to the company in those parts (of seven they formerly had)
is Albany Fort, on the Chechewan, where they are surrounded by ths French on every side, viz.: By their
settlements on the lakes and rivers from Canada to the northward towards Hudson's Bay, as also from
Port Nelson (alias York Fort), to the southward. The French have likewise made another settlement
between Port Nelson and Albany Fort, whereby the Indians are hindered from coming to trade with the
English* factory at the bottom of the Bay, and if they are suffered to fix and fortify in those parts, beyond
all question they will deprive your Majesty's subjects of that tract of land, which is so large a part of your
American dominion^, and rightly belongs to the Crown of Great Britain. * ♦ ♦ *

That the said country doth abound with several other commodities (of which your petitioners have not
been able to begin a trade, by reason of the interruptions they have met with from the French), as with

211

ARGUMENT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY :

"That the French, ia a time of perfect amity between the two kingdoms, viz., aniid
'1682, did arbitrarily invade the company's territory at Port Nelson, burn their houses,
and seize their effects. That in the years 1684 and 1685, they continued their depreda-
tions. That in the year 1686, they forcibly took from the company three factories, viz.,
Albany Fort, Rupert and iVlcose River Fort, which violent proceeding they continued the
years 1687 and 1688, the whole damages done by the French to the company in times of
peace amounting to .£108,514 198. 8d., as your pi^titioners are ready to make appear,
besides interest for the same. That in the year 1685, they supplicated his then Majesty,
King James the Second, to interpose on their behalf, and, by his ambassadors at the
French Court, to demand leparation for the damages done to the company, and restitu-
tion of the places unjustly taken from them by the French in time of peace."

That is a repetition of what your Lordships have heard. Then, they talk, on page
573, about the Peace of Ryswick :

*' But so it is, may it please Your Most Excellent Majesty, that the company found
thrir interest not comprehended in the Treaty of Ryawick, which they are far from
attributing to any want of care in that Gracious Prince [the late King William], of this
kingdom's honour and tradp, and rather think their rights and claims were then over-
weighed by matters of higher consequence depending in that juncture; for, by the said
treaty, they found their condition much wprse than it was before, by the 8th Article
whereof the French were left in possession of puch places situated in Hudson's Bay, as
had been taken by them during the peace which had preceded that war. That at a
meeting of Commissioners on both sidej (as directed by the said treaty, to adjust
these differences), the company did again set forth the undoubted right of the Grown of
England to the whole Bay and Straits of Hudson, against which nothing but sophistry
«nd cavils were offered on the French side, and the matter remained undetermined."

Sir Montague Smith.— The whole bay and straits ?

Mr. McCarthy. — That is used, as I submit, shortly to indicate or imply their
right to the whole country :

" That the only settlement now remaining to the company in those parts (of seven
they formerly had) is Albany Fort, on the Ohechewan, where they are surrounded by the
French on every side, viz , by their settlements on the lakes and rivers from Oanada
to the northward, towards Hudson's Bay, as also from Port Nelson (alias York Fort) to
the southward."

They then speak of the former treaty, and your Lordships have heard that
Then:

** The premises considered, when Your Majesty in your high wisdom shill think fit
to give peace to those enemies whom your victorious arms have so reduced and humbled,
and when Your Majesty shall judge it for your people's good to enter into a treaty of
peace with the French king, your petitioners pray that the said prince be obliged by such
treaty to renounce all right and pretensions to the Bay and Straits of Hudson, to quit
and surrender all posts and settlements erected by the French, or which are now in
their possession, as likewise not to sail any ships or vessels within the limits of the

'whale-oil, whale-bone, (of which last your subjects now purchase from Holland and Germaoy, to the value
of about £26,000 per annum, which may be had in your own dominions) besides many other valuable com-
modities, which in time may be discovered. ♦ ♦ ♦ *

That if the French could pretend to any right to the raid territories by the peace of Ryswick, this right
must needs be determined by their notorious infraction of the said treaty.

The premises considered, when your Majesty, in your high wisdom, shall think fit to fi^ve peace to those
enemies whom vour victorious arms have so reduced and humbled, and when your Majesty shall judge it
for your people s jfood to enter into a treaty of peace with the French King, your Petitioners pray.tbat the
said Prince be obliged by such treaty, to renounce all right and pretensions to the Bay and Streights of
Hudson, to quit and surrender all posts and settlements erected bv the French, or which are now in their
possession, as likewise not to sail any ships or vessels within the limits of the company's charter, and to
make restitution of the £108,514, 19s. 8d., of which they robbed and despoiled your petitioners in nmes of
perfect amity between the two Kingdoms.

212

LIMITS PROPOSED BY H. B. CO., 1712, AND BY THE ENGLISH COMMISSARIES, 1719

cotopaay's charter, and to make restitutioa of the £108,514 19s. 8d., of which they
robbed and despoiled your petitioners in' times of perfect amity between the two
kingdoms. "

And virtually that prayer was acceded to.

Sir Montague Smith. — " "The Bay and Straits of Hudson " again.

Mr. McCarthy. — Yes. They nctver set out the words of the charter in full,
but it does appear from the Ryswick treaty, which was referred to a moment
ago, that they meant the land, because they speak of their land, and they speak
of more valuable land being given to the French by that proposition they then
propose to make than they were retaining.

The Lord Chancellor. — Then, there is a new proposition* in 171 £. What
is the bearing of that ?

Mr. McCarthy. — I do not know that that varies anything that I have read.
It is a proposition as. to limits.

The Lord Chancellor. — Where is Grimington's Island ?

Mr. McCarthy. — To the north-east, on the coast of Labrador.

The Lord President. — That would be taking the French out of the bay
altogether.

Mr. McCarthy. — They proposed, before the Treaty of Utrecht, a line of
demarcation between the two provinces, and your Lordships will find that on the
map, marked substantially in accordance with the height of land :

*' That the said limits bec^in from the island called Grimington's Island, or Oape
Perdrix, in the latitude of 58 J north."

Sir Robert Collier. — That is very far north.

Mr. McCarthy. — On the coast of Labrador.

The Lord Chancellor. — Nobody could possibly say that that would coin-
cide with the height of land/

Mr. McCarthy. — I was wrong in saying that it corresponded : it is a line
drawn below +

The Lord Chancellor. — This line is quite on a different part of hills.

Mr. McCarthy. — The height of land in this part runs up north-easterly. It
is not at all in the same direction.

The Lord Chancellor. — I have the "Boundary proposed by the Hudson's
Bay Company in I7l2." About the middle of its course there is some large river
running into (Jngava Bay, which is inconsistent with the height of land or the
watershed having anything to do with that territory. It may be immaterial for
our present purpose.

Mr. McCarthy. — It is, in this sense. I made a mistake in supposing it was
the height of land. It is the line below that, which goes to Davis' Inlet.

The Lord Chancellor. — That seems to cross the water not far from the
sources of the River Canuse.

Mr. McCarthy. — That is virtually the height of land line ; it is not a
straight line.

The Lord Chancellor.^— Not only not a straight line, but this on the face of
the map goes across the water.

•Memorandum of the company to the Lords Commissioners of Trade ao'l Plantations, 7 February,
1712, (Joint App., p. 674), proposing: for limits a line bejifinainp: at Griminji^ton's liland, or Cape Perdrix, in
68^**, on the coast of Labrador, and passing to the south-westward, to Lake Mistassin, "dividing the fame
into two parts." Nothing is said as to its further extension, but it is claimed that the French should deliver
upaU forts, settlements, etc., " within the limits aforesaid, or within the Bay and Straits of Hudson."

fThe two lines here discuoeed are those set down upon the Ontario Government map of 1884 as (1)
** Boundary proposed by the Hudson's Bay Company in 1712," running from Lake Mistassin to Griming-
ton's Island or Cape Perdrix, and (2) ** Boundary proposed by the English Commissaries under the Treaty
of Utrecht, 1719," running from the same lake to the north capu of Davis' Inlet, on the Labrador coast.

213

ARGUMENT OF MR. MCCARTHY, Q.C., Ve QUESTION OF BOUNDARY :

Mr. McCarthy. — If your Lordship looks at the height of land, you will find
it is as near a straight line as can be.

Sir Robert Collier — The height of laud would not be straight.

Mr. McCarthy. — No, but the line proposed by the second document I mean.

The Lord Chancellor. — That is exactly the same line as the " Boundary
proposed by the English Commissaries under the Treaty of Utrecht, 1710." The
general tendency of the line seems no doubt to be much in accordance with your
view, but at that particular part ot it I do not think it is, and that is not an
unimportant thing. If this is relevant to the present controversy, it shews that
they are not to take too little.

Mi*. McCarthy. — The answer to that is this, that they did not exactly know
where the water line was. What I say to that, my Lord, whether rightly or
wrongly, i« this, that they did not pretend to survey the water line.

Lord Aberdare. — They go to the Lake Miscosinke, which is pretty, nearly
the water line.

Mr. McCarthy. — Of course, I do not mean to say that they found out exactly
the line of the water line, but they adopt the general course of the water line in
the subsequent correspondence, although not in this.*

The Lord President. — I think in this memorandum, the Hudson's Bay
Company call attention to the fact of theii* charter.

Mr. McCarthy. — Yes, in the company's memorandum of 7th February, 1712 ;
it commences at page 574 :

'^Tbat the said limits begin from the island called Grimiagton's Island, or Cipe
Perdrix, in the latitude of 58J north, which th^y desire may be the boundary between
the English and French, on the coast of Labrador, towards Rupert's Land, on the east
main, and Nova Britannia on the French side, and that no Fr ench sbip^ bark, boat, or
vessel whatsoever, shall pass to the northward of Cape Perdrix or Grimiogton's
Island, towards or into the Straits or Bay of Hudson, on any pretence whatever.

"That a line be supposed to pass" —

" Supposed to pass " is the way they put it.

Lord Aberdare. — From that point it goes down to Lake Miscosinke.

Sir Robert Collikr. — It takes you down to that ?.

Mr. McCarthy. — Yes my Lord.

Lord Aberdare. — And then it goes on further.

Mr. McCarthy. — Yes : *' dividing the same into two parts (as in the map
now delivered)."

The Lord Chancellor. — I suppose you have not got that map ?

Mr. McCarthy. — No, my Lord. Afterwards, this becomes important. I
think it is proper to refer to it, but afterwards the line is laid down on the 49tli
parallel. . That is where we get the 49th parallel afterwards.

Sir Robert Collier. — Then, they say that the French boats shall not come
*' to the north or north-westward of the said lake, or supposed line ; " that is to
say, that the French are not to go northward of this Lake Miscosinke.

Mr. McCarthy. — That comes afterwards, after the treaty of Utrecht.

Sir Robert Collier. — What they say is, that the French boats shall not
come to the northward or north-westward of the said Lake Miscosinke.

Mr. McCarthy. — That is th> propo-^ition. That is the memorandum pre-
pared by the company, and suggested to the Lords CommissioDers of Trade and
Plantations,

Lord Aberdare. — These are intermediate negotiations?

•Neither of the two lines discus'^ed is confined to the watershed of Hudson's Bay and Straits. They
|)a8s bsyond, through the height of land, and, by another water system, to the Atlantic coast of Labrador.

214

CONSTRUCTION OF THE TREATY OF UTRECHT, 1713.

Mr. McCarthy. — These are before the peace. These are not negotiations at
all, strictly so called. While negotiations for the peace were going on, the Hud-
son's Bay people proposed to the English negotiators to have that line estab-
lished.

Sir Robert Collier. — That is the line that they claimed at that time ?

Mr. McCarthy. — That is the line they claimed on that side :

" These limits being first settled and adjusted, the company are willing to refer their
losses and damages f-.rmerly sustained by the French in time of peace, to the considera-
tion of commissioners to be appointed for that purpose."

Then they go on :

*' Uhe said company are by their charter, constituted lords proprietors of all those lands,
territories, seas, straits, bayfl, rivers, lakes nnd ftoundx, within the entrance of the Straits;
to hold the same as of Her Majesty's manor of East Greenwich, in the County of Kent."

That means, I take it, that they take the whole from the entrance of the Straits
of Hudson, and all the lands drained by the tributaries to that. That is their
claim. Your Lordships will find that pretty plain when we go on, step by step.
Of course, the land was not of so much importance then as the trade.

The Lord Chancellor. — You are going through the detail of these negotia-
tions, and it may be that it is necessary that you should do so, but as far as I
can make out, the result of it seems to be this, that from time to time various
boundaries were proposed, none of which exactly refer to or coincide with the
watershed, and that no boundary was finally settled. Is not that it ?

Mr. McCarthy. — That is just what I am coming to, but I think it is only
fair to point out *^hese negotiations, because they are rather against the view
which I am contending for. and I shall have no opportunity of replying in case
any statement may be made by my learned friends on the other side, if they
advance anything upon them. Then there follows, what I was very nearly
omitting, the report of the Lords of Trade to the Earl of Dartmouth,* at page
575:

''In obedience to Her Majesty's commands, signified to ue, we have considered the
enclosed petition from the Hudson's Bay Company to Her Majesty, and are humbly of
opinion that the said company have a good right and just title to the whole Bay and
Straits of Hudson."

Sir Montagpe Smith. — That seems to be the phrase adopted at that time
all the way through — the " Bay and Straits."

Mr. McCarTvHY. — Yes. In point of fact, I am inclined to think that the
clearer view of international law, as it is now understood, was on the French
side — as to the watershed I mean — as far as I can gather from the correspondence.

The Lord Chancellor. — Surely there is no international law involved in
the subject ?

Mr. McCarthy. — I propose, my Lord to cite authorities, from writers on
international law, in support of that view, such as Phillimore.

The Lord Chancellor. — It may be that the French had no abstract right to
the possession of these territories.

Mr. McCarthy. — But I mean with reference to how these matters, with
regard more especially to the American continent, were settled ; because they
required to be settled.

The Lord Chancellor. — That is a matter of history rather than inter-
national law.

* Report dated 19th "February, 17ii
215

ARGUMENT OF MR. M CARTHY, Q.C., TC QUESTION OF BOUNDARY :

Mr. McCarthy. — These pretensions were advanced at one time by tbe
.Spaniards, in the cession of thrir territories; they were advanced at another
time in disputes between France and England, and between England and the
United States ; and I would submit that there is now a rule of international law
derivable from what was done on those occasions, and in that sense it is that
I say that questions of international law are involved.

The Lord Chancellor. — If you mean that every treaty and convention may
be said to enter into international law, of course I follow what you mean.

Lord Aberdare. — Will you go on to what was the result of all this ?

Mr. McCarthy. — The result of all this was the Treaty of Utrecht, in which
no lines were fixed ; but your Lordships will remember my argument on the subject.

Now then, coming to that point again, if your Lordships will pardon me for
recurring to it, I say, looking at what your Lordships now know more accurately
than you could from my statement — what is the fair meaning of that treaty ?
Two things are proved, as I say, first, a rule of division, a rule by which the
commissioners were to divide the provinces, for I will so continue to call them,
of Hudson's Bay* and French Canada. The rule provided for their division was,
that the commissioners were not to meet and settle that great question, which no
doubt caused a good deal of trouble, but that that was already determined under
the 10th article of the treaty. And how was it determined ? Now it requires a
great deal of hardihood, after the way my argument was received by your Lord-
ships the other day, to repeat it, but I ask your I^ordships again, what is the fair
meaning of the words, when you speak of land and territory looking to water ?

Lord Aberdare. — "Looking to" is your translation of the original words of
the treaty, " spectantibua ad eadem t"

Mr. McCarthy. — That is what I say.

Sir Robert Collier. — Then, in the French copy, the word is " dependent!* or
" appurtenant,"

The Lord Chancellor. — Everybody knows that the Latin word is capable
of that sense.

Mr. McCarthy. — Is not that the fair meaning of that word, when you speak
with regard to land looking towards the water ? What does it mean if you speak
of the land looking to the Thames ? Would not any one say that that was the
part of the .property that sloped towards the Thames ? '

Lord Aberdare — What is the primary meaning of the word " spectantibus V
I suppose the ordinary meaning of " spectantibua " is " relating to ?"

The Lord President. — The French version is the original one.

Mr. McCarthy.— No, my Lord.

The Lord President. — Well, it is stated that there were two originals.

Mr. McCarthy. — But the English government directed their commissioners
to be guided by the Latin, and not by the French version.

The Lord Chancellor. — Where is the treaty to be found ?

Mr. McCarthy. — At page 504 is the treaty .f

Sir Montague Smith. — The note:!: says there were two originals.

Mr. McCarthy. — Your Lordship is quite right. Now what say the instruc-
tions to the commissioners, at page 509, if your Lordships will turn to that for
a moment.

The Lord Chancellor. — Before we pass from that, let me say —

'*lt would, to say the least of it, be difficult to discover any grounds upon which the uncertain territorte«
of the Hudisou's Bay Company could be held entitled to be dignified with the title of Province. Even as
recently as in our own day, they were tracsferred to the Dominion as unorganized tracts, and were there-
after, without separate identity, officially known as a part of the North- West Territories.

t Printed anUt p. 112. U-e., the sub-note*, ante^ p. 112.

216

CONSTRUCTION OF THE TREATY OF UTRECHT, 1713.

Mr. McCarthy. — I am coming back to it, my Lord, but I want just to refer
to this page 509, because there you will find the instructions to commissioner
Bladen, in 1719, about this treaty :

'* If the French commissary or commissaries should pretend to ground a more extensive
claim upon the French treaty than does appertain to them by the Latin one, you are to
insist upon it that the Litiu treaty is (o be your guide in all cases, though even by the
French treaty they can have no title to any islands lying in the Bay or Gut of Canceau.'^

The Lord Chancellor. — You see, here you want to impo.se on the Latin
word a sense which it does not necessarily bear, and which, in the contempor-
aneous translation, both of the English government and of the French govern-
ment, was not given to it.

Mr. McCarthy. — I just wasn't, if your Lordship will pardon me for perhaps
undue persistence upon this point —

The Lord Chanceli^or. — Both the contracting parties agreed to it in the
sense in which the word is used in the English.

Mr. McCarthy. — That is not signed in English ; the English is a translation.

The Lord Chancellor. — The English is a contemporaneous translation,
accepted by the government, and made by the authority of the English govern-
ment at the time.

Mr. McCarthy. — But what can possibly be the meaning of these words as
applied to land, when you speak of looking to certain rivers ! Your Lordships
will see what he says : " together with all lands, seas, sea coasts, rivers and places
situate in the said bay and straits " — looking towards the said bay and straits.
Now what can that mean ?

The Lord Chancellor. — But you insist on imposing on the word that
literal construction which both the contracting parties at the time rejected.

Mr. McCarthy. — Then, my Lord, let me take the other words—** and which
belong thereunto.'*

The Lord Chancellor — It may be either those words, or the French words.

Mr. McCarthy. — But. my Lords, have not I a right to quote the Latin, when
I have the instructions to the English commissaries, saying, if there is a difference
between the French and the Latin, you are to take the Latin.*

The Lord Chancellor. — We know the English interpretation does not, nor
does the French, give the meaning you seek to impose on the words.

Mr. McCarthy. — It was a translation, not signed by the parties.

The Lord Chancellor. — The notei" says — which note I suppose you agreed
upon — *' This translation is that published by authority of the English govern-
ment at the time." ,

Mr. McCarthy. — Then I will take the words of the treaty: "and which
belong thereunto." What can that mean ? According as I understand, land is
never said to belong to streams or rivers. If you are speaking of a river belong-
ing to a country, it is because the river flows through a country, and the land is
owned by that state. You do not, as a usual thing, speak of land appertaining to
a river, or belonging to a river. Rivers, on the contrary, (and I a^n quoting from
a high authority) are spoken of as being dej)eiKlent ou the ownership of the soil,
so that when you say, " which belong thereunto," I do not know that there is any
great difference in the meaning.

' * The Latin and French texts were not, upon this point, really at variance ; and their Lordships so
decided. Besides, the French, as the power having to make saoritices, would have had the right to take
their stand upon the instrument, and upon the interpretation, most favourable to their interests. ( Vattel,
Book 4. sec. 32).

t Namely the not«» appended to Article X. of the Treaty, at p. 504 of the Joint Appendix. It is
reproduced ante, p. 112, as sub-note *.

217

ARGUMENT OF MR. MCCARTHY, Q.C., rC (?l'ESTION OF BOUNDARY:

The Lord President. — There is no question about belonging to a river ; but
it ii? belonginjor to " the said Bay and Straits."

Mr. McCarthy. — But the same thing applies. How* would you define that ?
Supposing a person called upon you to fix the limits of land " which belongs to
the Hudson's Bay *' — how can you define it ? And should you go ten miles,
or fifty miles, or two hundred miles back, or should you go back to a defined
line, or what are you to do ? Does not the Latin supply the answer, that you are
to go to that line which is looking, or sloping, towards this bay or river ?

Lord Aberdare. — That is not the ordinary use of the word spectdntibus,

Mr. McCari HY. — No ; but " looking toward " would be one use.

Sir Montague Smith. — But rivers wind, and the land looks towards rivers
in all sorts of ways, and that, therefore, can hardly be the proper meaning of
spectantibus.

The Lord President. — My impression is that the, English words convey the
meaning, and that there is no need to argue about the meaning of spectantihvs.

Mr. McCarthy. — Very well, my Lord.

Mr. Mow at. — It would be convenient, perhaps, to mention that the meaning
of this word spectaiitibua, as given in Rolls Abridgement, 95 E., is identical with
** appurtenant " or " appertaining." That is in a grant to the Duchy of ComwaU.

Mr. McCarthy. — The Latin dictionary I have looked at gave the meaning
of the word, when used with regard to land, as being "looking to."

Mr. ScoBLE. — The primary meaning of the word is to ** appertain to " or
"relate to."

The Lord Chancellor. — Every schoolboy knows that.

Mr. McCarthy. — Then if we go to page 575, your Lordship will find the
company's petition for an act of cession. My learned friend advanced an
argument the other day, that although this land was restored by the Treaty of
Utrecht, and this territory was the same that was restored to the crown, that it
(Jid not enure to the benefit of the compan3\

The Lord Chancellor. — You need not trouble yourself about that.

Mr. McCarthy. — That is all that that shews ; that it was so, and the following
pages make that out. They pray that the land be restored to them.

Now, we come to the negotiations under the treaty, and I may state briefly
to your Lordships what I think those shew, so far as it is necessary for the
purposes of this case.

Lord Aberdare. — What treaty do you mean ?

Mr. McCarthy. — Under the Treaty of Utrecht, in 1719. Your Lordships
will remember, that now there was a long peace, from 1713 up to 1746, and in
1719 commissaries were appointed, under this treaty, to mark out this line pro-
vided by the treaty. But, before I pass from the treaty, I want just to draw
your Lordships' attention to this. I stated this as a fact, but I thought perhaps
your Lordships might have thought it was my argument, and not the statement
of the treaty itself. It says :

• *' But it is agreed, on both sides, to determine within a year, by oommissaries to be
forthwith named by each party, the limits which are to be tix^d between the said Bay of
Hudson and the places appertaining to the French, which limits both the British and
French subjects shall be wholly forbid to pass over, or thereby to go to each oiher by sea
or by land. The same commissaries shall also have orders to describe and settle, in like
manner, the boundaries between the other British and French colonies in those parts."

That appears to me to strengthen the argument that it was not intended to leave
the commissioners to do more than just mark down some line, the principle on

218

CONSTRUCTION OF THE TREATY OF UTRECHT, AND, OF THE H.B. CO'S CHARTER.

vhich that line was to be marked being already determined. And the object is
also apparent. It is to present an absolute wall — a sort of Chinese wall — over
which the French were not to go, and below which the English were not to go.
And the purpose is obvious, when we have regard to the trade which was carried
on. By coming up, and interfering with one another's rivers, they were inter-
fering with the trade, which went ori one side to Montreal, and on the other side
to Hudson's Bay.

The Lord Chancellor. — They are

' — "to determine, within a year, by comoiissaries to be forthwith named by each party,
the limits which were to be fixed between the said Bay of Hudson and the places apper-
taining to the French."

Your argument is, that nature had determined that, and that they were only to
go along the line of the hills, or where they found the water divided by hills ?

Mr. McCarthy. — No, my Lord, that is not quite so ; I have not made myself
tmderstood. My argument was, that as a matter of public law, even as under-
stood in those days, the Hudson*s Bay province* was bounded by that watershed
on the one side, and equally so was the French province bounded by it on the
other ; that that principle, which had been disputed up to that time by the two
governments, was practically adopted by the Treaty of Utrecht, and then it would
be an impossible thing — when I say impossible, I mean relatively, with reference
to the expense — to have gone and traced the line of this watershed all through
this great continent, which was a savage wilderness, and therefore they were to
determine some convenient line, which was to be the line of demarcation between
them. That is what I think the treaty says.

Sir Montague Smith. — Which line need not be the watershed ?

Mr. McCarthy. — It need not be the watershed.

Lord Aberdare. — Then, to avoid all the trouble and expense, what really
was proposed, as the exact line of demarcation, was that they should take a
straight line, beginning at one point and ending at the other, in its place ?

Mr. McCarthy. — Yes, my Lord.

The Lord Chancellor. — Then, that may have been a perfectly rational
proceeding, but at present I see no words which indicate one thing or the other ?

Mr. McCarthy. — I need not repeat the argument, if your Lordship under-
stands me ; I cannot put it better than I have done.

The Lord Chancellor. — That would seem to be somewhat important, if you
<;ould make it out ; because, although these people did not do that which according
to your view it was contemplated that they might do, yet, in the absence of a
decision by these commissioners, the' thing might have practically settled itself
on the same footing.

Mr. McCarthy. — Yes, and I think it did. I think your Lordship will find
that it was practically settled on the line of the 49th parallel.

Lord Aberdare. — The proposition they put forward in 1712 is again renewed,
at page 578, in 1714; but you say that they ultimately settled the line of the 49th
parallel ?

Mr. McCarthy. — Yes.f May I state briefly what I mean, because it will
make the correspondence a good deal easier to understand ?

•Sea ante, p. 216, note*.

tCounael is mistaken : that line was never settled as a boundary nntil, bv the convention of 1818, it
was tixed as ** the line of demarcation between the territories of the United States and those of His
Britannic Majesty . . from the L»ke of the Woods to the Stony Mountains." See ante p. 142, note^;
postf p. 223, notet : to which it may be added, that the French retained their posts to the northward of the
neigh t of land, and a frontier beyond the 49th parallel, up to the cession of Canada. See appendix B,
hereto.

219

ARGUMENT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY :

The Lord President. — Do I understand that your contention, that the water
Hne or height of land was the original boundary of the Hudson's Bay Company's
territories, is entirely derived from the words of the charter, namely, ** all the
lands and territories upon the countries,'* etc. ?
Mr. McCarthy. — Yes, my Lord.

The Lord President. — It all depends upon them ?

Mr. McCarthy. — Yes.

The Lord President. — Absolutely, does it ?

Mr. McCarthy. — I think so ; what I think is this, that all that the English
owned, their Hudson's Bay Company were entitled to, as I stated on Thursday, in
my first observation. Ihe English being the first discoverers, were entitled to
settle.*

The Lord President. — But the whole contention that there was a water
line boundary — a boundary depending upon the height of the land — rests upon
the words of the charter, " the lands upon," etc. ?

Mr. McCarthy. — Practically it does ,-t but this ought to be added to qualify
that —

Sir Robert Collier. -r-At what page is the charter ?

'Mr. McCarthy. — Page 341, it commences.^ Now, then, what took place
was this. Commissioners were appointed on both sides to fix this line. On the
side of England, a line was put forward starting from Qrimington's Island, or
from Davis' Inlet, I am not sure which§ — perhaps Davis' Inlet, which more
corresponds to the height of this land — down to the Lake Miscosinke, and from
there down to the 49th parallel, and then westward along the 49th parallel.

The Lord Chancellor. — That will not have any reference whatever to the
watershed ?•

Mr. McCarthy. — Pardon me ; of course it is not the watershed, which is an
irregular line, and, for the reason Ihave already advanced, would not be a line
at all suitable to the state and condition of the country, but looking at that line
on the map — Johnston's map — it would go and take all the watershed. ||

Lord Aberdare. — How far westward did that go ?

Mr. McCarthy. — I will point out afterwards that they went, as they claimed
in those days, to the very sea. That was the claim advanced. The first terri-
torial claim that the Hudson's Bay Company made, before they knew where the
height of land ended, was to the Pacific Ocean.

The Lord Chancellor. — I only want to see the bearing of it. I should
think it is as clear as the daylight, that it had nothing whatever to do with the
watershed line. It takes in, as the Hudson's Bay Company's, all the western side
of the Rocky Mountains.

Mr. McCarthy. —The Rocky Mountains had not been discovered then.

The Lord Chancellor. — That is very true, and therefore I say, that any
such line, in the nature of things, could have nothing to do with the watershed
line.

^Ontario shewed that there wa^ no such discovery as entitled the English to an excluBive right of
lettlement ; that on their part there was abandonment ; that t he French were, as a matter of fact, the first
discoverers of the country, and from the side of the St. Lawrence ; were the first to assert a title ; and had
prior and continuous possession. See ante^ pp. 189, note Xt 200, note * ; also appendix B, hereto.

t As to the height of land theory, see arUe, p. 191, note t, and pp. 216, ?A7, text.

t Printed ante^ p. 61.

§ The English commissaries were reauired by their instructions to demand the line from Griming-
ton's Island, in lat. 58^^ north ; but the demand they actually made, in the document transmitted to the
French commissaries, was of the line from Davis' Inlet, in lat. 66^**. (Joint App. 608, 611).

I Not at all : the 49th parallel, though at some points far to the south, is at others far to the north of
the height of land.

220

THE LINE OF THE 49TH PARALLEL OF LATITUDE.

Mr. McCarthy. — What I say is this — supposing they knew where the
water line was, as the maps shew they did, and assuming still further, as another
factor of the arojument, that they agreed it would be impossible to follow that
irregular water line — that the 49th parallel is a fixed line, and I think as fair a line
as could be assumed. That is all T mean to say. Not that it was the water line by
any means, but looking at that 49th line, and looking at what we know to have
been the supposed height of land in those days — because they did know there was
a height of land, and they did mark it down on their maps, and the French maps
put in by my friends, drawn before the charter was granted, shew the height of
land —

Lord Aberdare. — Was this 49th line ever accepted ?

Mr. McCarthy. — There is a good deal to be said about that.*

The Lord President. — Where is the Treaty of Utrecht printed ?

Mr. McCarthy. — At page 504.t

The Lord Chancellor. — Where are the proposals of the company ?

Mr. McCarthy. -^I am just coming to them, my Lord. That of 1719 is at
page 579 : " That at the treaty concluded at Utrecht it was agreed between the
Crowns of Great Britain" —

Sir RoB»?RT C9LLIER. — This is the memorial of the company ?

Mr. McCarthy. — The memorial of the company to the Lords Commissioners
of Trade and Plantations :

** That at the treaty concluded at Utrecht it was agreed between the Crowns of
Great Britain and France, that the Straits and Bay of Hadson should be delivered up to
the Britibh subjects, and that the limits should be settled between the said Bay of Hudsou
and the places appertaining to the French, and also that satisfaction should bo given to
the company for all depredations committed against them by the French in a time of peace,
according to an estimate thereof to be made at the requisition of the several parties.
Now, may it please your Lordships : The first of these articles, the surrender of the
6trait8 and hay aforesaid, has been made according to the tenor of the treaty, at least in
such manner that the company acquiesce therein, and have nothing to object or desire
farther on that head. The other two, viz , the running of a line between the English
and French territories, and the making reparations to the company for their iossea and
damages, yet remain to be done. Whereupon, the GDvernor and Company mDst humbly
present to your Lordships, that they conceive it absolutely necessary that the limits
hetween the two nations be settled without delay, for that the French have, since the
conclusion of peaca^ viz., in lYl5, made a srttlementat the head of Albany River, upon
which very river our principal factory is settled" —

Lord Aberdare. — You mean the mouth ?

Mr. McCarthy. — No ; the source or head of the river : "At the head of
Albany River, upon which very river our principal factory is settled." That is
Fort St. Germain, your Lordship will see. It is not at the mouth. It was spoken
of by them as being at the head.

Lord Aberdare — Do you think that is what they meant, Fort St. Germain ?

Mr. McCarthy. — Yes.J

Sir Robert Collier. — Where is that ? That is not the head of the river.

The Lord Chancellor. — This says " since the conclusion of peace, viz.,
in 1715."

*The evidence entablished that the line of the 49th parallel never was accepted. See anU^ p. 142,
note t, p. 219, note t ; post^ p. 222, note f.

fSee anU, p. 112.

tFort St. Germain wae buUt on Lake St. Anne, on the Albany, and was in existence lonp^ before 1715.
It is depicted by that name on the maps even a«i early as 1700. (Ont. App., p. 101). The original French
poet on that lake was established in 1673. See appendix B hereto.

221

'ARGUMENT OF MR. MCCARTHY, Q.C., TC QUESTION OF BOUNDARY :

i - ■ ■ —

Lord Aberdare. — It may have been palled down and rebuilt.

Mr McCarthy. — It may have been. I do not remember any evidence that
it was built in 1684. It is not at the mouth of the river.

Sir Robert Collier. — Nor is it at the source. It is neither the one nor the
other.

Mr. McCyARTHY. — I thought for the moment it was at tl^e head.

Sir Robert Collier. — It is not at the head.

Mr. McCarthy. — What I meant was. it was not at the mouth.

Lord Aberdare. — What is the head ?

Mr. McCarthy. — One cannot say where the head is properly. It is the head
of Albany River :

— " whereby they intercept the Indian trade from coming to the company's factories^
and will in time utterly ruin the trade, if not prevented. It is therefore proposed and
desired, that a boundary or dividend may be drawn, so as to exclude the French fram
coming anywhere to the northward of the latitude of 49, except on the coast of
Labradore. Unless this be done, the company's factories at the bottom of HudsonV
Bay cannot be secure, nor their trade preserved,"

The 49th line would be practically the line we are contending for h<^re. That
was, as I pointed out to your Lordships, found within the last twenty years. A
Committee of the United States Senate, or House, said, notwithstanding all
that has been alleged against the adoption of the 49th parallel, they are still of
opinion it was adopted by the commissioners.* However, I will not anticipate
my argument upon that point. But it is the basis of everything that has hap-
pened on the continent ; it is the basis of the north-westerly angle of the Lake
of the Woods ;-|- it is the basis of all the treaties between England and the United
States. Of course I am only speaking of that part of the country.

Now we come to page 507: " Representation of the Lords of Trade respecting
the powers and instructions of the English commissaries." Your Lordships will
see the date of the last document I read, from the Hudson's Bay Company, wa»
1719. I am not quite sure the exact date of it is given. We have the exact date
of this, viz., 26th August, 1719. This is a " Representation of the Lords of Trade
respecting the powers and instructions of the English commissaries, 26th August,
1719: To their Excellencies the Lords Justices" — then they speak of the
instructions :

*'It was not in our power to give more despatch to this matter, by reason of the
multiplicity of books and papers which wore necessary to be read and well considered
upon this hubject, besides that we were obliged to consult with several persons, and to
wait for such lights as the company of British merchants trading to Hudson's Bay, the
African company^ and several other parties concerned in the success of this negotiation,
could give us touching their respective interests and demands, for which we have made
the most effectual provision we could think of in Mr. Bladen's instructions. We have
perused and considered the several charters granted by His Majesty's Royal predecessors

* Their opiDion was clearly wrong, it appearing by amass of evidence printed in the Appendicetf, and
largely quoted by the Attorney -General, in his argument [antey pp. 115-120), that no limitaty line on the
north Was ever agreed upon between the French and English.

t The •* moat north-western point " of the Lake of the Woods, mentiimed m the Treaty of 1783 (ante p.
43, note) as the remotest point of the water communications through which the international line wm
drawn, was telected as being apparently— but erroneously, of course— the Source of the St. Lawrence Kiver
(see ante p. 107. note), and without any reference to the 49th parallel. From that point the line was to
proceed, according to the treaty, " on a due west course to the River Mississippi ;" and only after it had
been ascertained that the Mississippi would not be so intersected, was the p^irallel of 49^ selected as the
boundary beyond the meridian of the Lake of the Woods (Convention of 1818, Joint Appendix 550). It
was so selected under the mistaken atisumption, on the part of both the British and the American nego-
tiators, that that parallel had been settled on by commissaries under the Treaty of Utrecht. (6reeohow'»
History of Oregon, 281 c< seq.; Twiss' Oregon Question, 207 et seq.).

222

ik

INSTRUCTIONS TO THE ENGLISH COMMISSARIES- 1719.

to the respective British colonies on the continent of America, from Hudson's Bay and
Nova Scotia as far as the Bay of Mexico, of which many are very extensive, stretching
from sea to sea, but as the French would not perhaps be determined by these authorities
only, and since we have not hitherto been able to get such maps of the said plantations
as may be depended on, or to obtain such further informations as mi^^ht be required to
support the right and title of His Majesty, or any of his subjects have, to places which
the French possess, or pretend to, either on the back of the British plantations, or west-
ward from New England down to the Gulf of Mexico, we thought it proper to leave
out of Mr. Bladen's full powers that part of the tenth article which relates to a general
settlement of the boundaries between the colonies of the two nations in America, and to
restrain his commission to the boundaries of Hudson's Bay and Nova Scotia only, where
we have proofs and authorities agiinst which we think no exception can reasonably
be made."

Then it goes on to say what else the instructions were. The instructions are
at page 508, line 29 :

** It being provided V>y the tenth Article of the Treaty of Utrecht, that the limits
and boundaries between Hudson's Bay and the places appertaining to the French be
settled by commissaries on each part, which limits both the British and French subjects
shall be wholly forbid to pass over, or thereby to go tp each other by sea or by land,
you are to endeavor to get the said limits settled in the following manner, that is to
say : That the same begin from the island called GiimiDgton's Island, or Cape Perdrix,
in the latitude of 58^ north, which the company desire may be the boundary between
the British and French subjects on the coast of Labrador, td wards Rupert's Land, on
the East Main, and Nova Britannia on the French side, and that no Fretich ship,
barque,, boat or vessel whatsoever, shall pass to the north-westward of Cape Perdrix, or
Grimington's Island, towards or into the Straits or Bay of Hudson, on any pretence
whatsoever. And further, that a line be drawn from the south-westward of the island
of Grimington, or Cape Perdrix, (so as to include the same within the limits of the
bay), to the great lake Miscosinke, alias Mistoveny, dividing the said lake into parts
(as in the map to be delivered to you) ; and that where the said line shall cut the 49ih
degree of northern latitude, another line shall begin, and be extended westward from
the said lake, upon the 49th dej^ree of northern latitude, over which said line so to he
described as above mentioned, the ]^rench, and all per^ioas by them employed, shall be
prohibited to pa^s to the northward of the said 49th degree of latitude, and to the
north or north-westward of the said lake or supposed line, by land or water, on or
through any rivers, lakes or countries to trade or erect any forts or settlements" —

and so on. Then follow the instructions about the Latin treaty.
Mr. ScoBLE. — Will you read the next paragraph ?
Mr. McCarthy :

'' But you are to take especial care, in wording such articles as shall be agreed upon
with the commissary ot His Most Christian Majesty upon this head, that the said bmni-
aries be understooi to regard the trade of the Hudson's B%y Company only ; that His
Majesty does not thereby recede from the right to any lands in Americ* not comprised
within the said boundaries, and that no pretension be thereby given to the French to claim
any tracts of land in America, southward or south-west of the said boundaries."

Lord Aberdare — Those are references to what we call the United States
now.

Mr. McCarthy, — I thought it was perfectly understood that this was only
determining the limits on the north. My friend's point is, that it speaks of the
trade of the Hudson's Bay Company, but I do not think that was the intention
of it.

The Lord Chancellor. — I think it is probably intended to guard against
ceding to the French everything to the south of this line.

223

ARGUMENT OF MR. M CARTHY, Q.C., rs QUESTION OF BOUNDARY ;

Mr. McCarthy. — That is what I thought. The next is very important :

" And whereas it hath been represented by the said company that the French liave,
since the Peace of Utrecht, viz., in 1715, made a settlement at the hea i of the Albany
River, upon v^hich river the company's principal factory is settled, whereby the French
may intercept the Indian trade from coming to the said factory, and may in time utterly
ruin the trade of the company if not prevented, you are to insist that the said fort be
given uj), or demolished, by the French, and their subjects be withdrawn from that
settlement."

The Lord Chancellor. — You might possibly treat the Albany River aseom-
luencing at the foot of Lake St. Joseph.

Mr. McCarthy. — That is the way it is spoken of now. That is what is
called Albany River now — from Lake St. Joseph down. I do not know what it
was in those days.

Sir Robert Collier. — That is called Albany River, from Lake St. Joseph.

The Loud Chancellor. — The Fort La Maune was built before 1684, and
therefore cannot be the one which is here referred to.

Mr. McCarthy. — I think that it may be taken for granted, that the fort
spoken of is that one midway up the river.

The Lord Chancellor. — You may think so ; but it is not the natural con-
clusion to be drawn from this.

Mr. McCarthy. — I think perhaps we can satisfy your Lordships upon that.
Then, if your Lordships Will come to page 511, we have the boundaries claimed
by the English Commissaries, 1719.*

The Lord Chancellor. — That is the 49th parallel ?

Mr. McCarthy. — Yes; that is all I have been able to shew your Lordship.
They never claimed anything but the 49th. There is not a word in this corres-
pondence about that. I have only said, looking at the map, and looking at the
knowledge the French had, and I suppose the knowledge the English had, at that
time, if a straight line were taken that would be a fair line.

The Lord Chancellor. — Tou do not imagine that both the French and the
English supposed that every river from the Pacific side flowed into Hudson's Bay.
They may not have known the geography of the Rocky Mountains, or the country
at the west side of them, but it would be a very extraordinary thing to suppose
they imagined there was no river between the two seas which ^id not flow into
Hudson's Bay.

Lord Aberdare. — I suppose tney dealt practically with this 49th line as
dealing with the countries they knew of. . '

Mr. McCarthy. — That is what I was going to say. If you look at page oil,
there is .something to support the English point of view about this fjontention
regarding the rivers. That is, the latter part of the boundaries claimed by the
Enfflish Commissaries:

o

" The said Commissaries further demand that the subjects of His Most Christian
Majesty shall not build forts, or found settlements, upon any of the rivers which empty
into Hudson's Bay, under any pretext whatsoever, and that the stream and the entire
navigation of all the said rivers, shall be left fr ^e to the company of English merchants
trading into Hudson's Bay, and to euoh Indians as shall wish to traffic with them."t

The instructions to Mr. Bladen are that he is authorized to agre^ to that line, and
your Lordship will see that had already been provided by the Treaty of Utrecht.
That treaty provided that was to be the boundary line between the two sides,

* Printed arUe, p. 169, note *.

fin making this demand the English GommiBsariea exceeded their instructions. See ante, p. 159,
sub-note *.

224

THE H.B. CO'S PRETENSIONS TO THE HEIGHT OF LAND AS A BOUNDARY.

which neither was to cross. Then we come to the declaration of war : 1740 or
1741 seems to have been the date of the declaration of war. All I can say is,
that^up to this stage that was the claim made by the English. That claim, so
far as the evidence shews, was not acceded to, though it does not say, up to this
date particularly, that it was not.* I have not been able to prove to your Lord-
ships that it was. There is one statement which has been cited by my learned
friend.

The Lord Chancellor. — More than one — ^several statements.

Mr. McCarthy. — Your Lordship has not heard me out. There is one state-
ment, shewing the difference between the two was two degrees, and the French
were claiming it should be 51**^, instead of 49^.

The Lord Chancellor. — I do not recollect that.

Mr. McCarthy. — I can refer to that statement. It is mentioned in Chief
Justice Draper's memorandum.

Mr. Mo WAT. — The reference is to the maps differing two degrees.

Mr. McCarthy. — I thought it was that the French commissioners insisted
at this time on two degrees further north. That is my recollection of it.

The Lord Chancellor. — Let us see.

Mr. McCarthy. — It is page 213.

The Lord Chancellor.— This is in 1857.

Mr. McCarthy. — Yes. It was the report sent by Chief Justice Draper. It
is put most strongly against the company, of course.

The Lord Chancellor. — Which is the passage ?

Mr. McCarthy. — ^I had better not detain your Lordship, as I cannot put my
hand upon it at this rooment.f

Lord Aberdare. — He says, at the bottom of page 215 :

** That at various periods subsequently to 1670 and to 1750, the Hudson's Biy Company
had been called upon to point out the extent of their territorial claims under the charter,
and to define the boundary which they claimed, and that on no one occasion during all
that period bad they advanced the claim they now insisted upon, namely, that the charier
gave them the ownerchip of the lands, the water from which flows into the Hudson's Bwty
or Straits, and therefore extending so far as the head waters of the Red River, and east
and west of that r^tream to the sources of its tributaries, though the Ashhurton treaty
has o! course disposed of so much of that claim as lies south of the 49th parallel of latitude."

The Lord Chancellor — 1 have no note of any such statement.

af r. McCarthy. — We have not come to that yet. Your Lordship will find
they did claim that and a little more.

Sir Robert Collier. — Subsequently they claimed a grant to Earl Selkirk.

Mr. McCarthy. — Yes.

Lord Aberdare. — Lord Selkirk did not go beyond the watershed.

Mr. McCarthy. — No ; he was bounded by the watershed. I thihk I shall
be able to find that. I must pass it b}^ for the present.^ Then the war occurs,

* The evidence before the Board, and hereinbefore several times cited or referred to, conclusively shews
that neither the line of 49^ nor any other line proposed by the English had been acceded to by France up
to the time of the cession of Canada.

t The passage is at p. 197 of the Joint Appendix, and occurs in the f olio ^ring extract from Chief Justice
Draper's memorandum submitted to the Secretary of State for the Colonies on the 6th of May, 1857, viz.*: —

*' The French Crovernment, it appears, would not agree to the proposal which would have limited them
to the 49th parallel. Colonel iiladen, one of the British Commissioners under the Treaty of Utrecht, wrote
from Paris, in 1719, in reference thereto .* * I already see some difficulty in the execution of this affair, there
being at least the difference of two degrees between the last French maps and that wh'ch the Company
delivered us.' No settlement of the boundary could be arrived at."

t See the boundary description of the assumed grant of the Hudbon s Bay Company to Lord Selkirk,
pott, p. 239, notef.

15(B)

ARGUMENT OF MR. m'CARTHY, Q.C, re QUESTION OF BOUNDARY:

and during the waV,the next thing that we have with regard to the company is a
claim by rival adventurers, setting forth pretty much the same that has been set
forth by my learned friends on the other side, namely, that the Hudson's Bay
Company had not fulfilled their mission, and they prayed that a new charter be
granted to them, they undertaking to do what the Hudson's Bay Company, it was
alleged, had undertaken by their charter to do, and in consideration of that, all the
property not actually possessed by the Hudson's Bay Company should be granted.
I refer your Lordship to that petition for the purpose of shewing what followed
upon it.

Sir Montague Smith. — You are going back in date.

Lord Aberdare.-^I thought we had got to 541.

Mr. McCarthy. — The documents are all scattered, unfortunately. It has
been impossible to keep them in any kind of sequence.*

The Lord Chancellor.— Who did Chief Justice Draper represent ?

Mr. McCarthy. — He represented the old Province of Canada, before Con-
federation. Old Canada was Upper and Lower Canada, now Quebec.and Ontario,
two of the provinces of the Dominion. What I propose to refer to is the claim
made ^t this date, on page 580 and 581. The Hudson's Bay Company were com-
plained of in the sense I have put. It commences at the foot of page 581 : '* Cap-
tain Middleton to A. Dobbs, Esq.^f It is more clearly shewn in the document
contained at page 598. The result of it appears to have been this, that it was
referred to the Attorney- General and the Solicitor- General for their joint opinioD.
They not only took the complaint into consideration, but they heard counsel, and
I think they had deposition evidence before them upon the question, and it seems
to be a quasi-judicial determination of the very matters which, at this late day,
are raised again^by my learned friends. This is the report of the learned Attorney
and Solicitor-General :J

" To the Right Honourable the Lords of Committee of His Majesty's Most Uonourable
Privy CounciL

" May it Please Your Lordships :

" In humble obedience to your Lordship^a Order in Council of the 4rth of February
last, representing that by an Order ia Council bearing date the 26th of January last,
there was referred to your Lordships the humble petition of Arthur Dobbs, Esq., and the
rest of the committee appointed by the subscribers for finding out a pswsage to the Western
and Southern Ocean of America, for themselves and the other adventurers, and that your
Lordships, having taken the said petition into consideration, were pleased to refer the
same to us to consider thereof, and to report our opinion thereupon to your Lordships.
Which petition set forth, That the petitioners, in the year 1746, did, at their own costs
and charges, fit out two ships upon an expedition in search of the north-west passage to
the Western and Southern Ocean of America, in order to extend the trade and increase
the wealth and power of great Britain, by finding out new countries and nations to trade
with us, as well in the great north-western continent of America, beyond Hudson's Bay,
as in countries still further distant and hitherto unknown to the Europeans, and also to
many large and populous islands in that great Western Ocean ; That the petitioners, by
means of the said expedition, have made several discoveries of bays, inlets and coasts,

* Pursuant to a well-considered plan, the documents were classified in the Appendices according to
their kind, and assigned to their proper places in the various Sections, as for instance. Imperial Statute
and Acts of State, Treaties and Conventions, Judicial Proceedings, Hudson's Bay Company's Kights and
Claims, etc.

t Quoted antc^ p. 59.

t Joint opinion of the Attorney-General and Solicitor- General, Sir Dudley Ryder and Sir Willian
Murray, August lOtb, 1784.

226

OPINION OF THE LAW OFFICERS, 1784.

before unknown, and have a reasonable prospect of finding a passage to the Southern
Ocean by sea, although the discovery may not be perfected without r^eated trials, upon
account of the difficulties and dangers of searching different unknown inlets and straits,
tnd sailing through new seas, and of procuring men of resolution, capacity and integrity
to pursue it effectually ; That the petitioners find that the reward of. £20,000 given by
Parliament, is not adequate to the expense the adventurers must be at to perfect the dis-
covery, they having already expended above that sunn in their late expedition ; That the
petitioners find that upon a former attempt, His Majesty's predecessor, King Oharles the
Second, as a suitable encouragement, granted a Royal Oharter to the Governor and Com-
pany of Adventurers of England trading to Hudson's Bay, making them a body corporate
for ever, upon their petition setting forth that they had, at their own proper costs and
charges, made an expedition to discover a new passage into the South Sea, and for finding
some trade of furs, mines and other commodities, and gave them the sole property of aU
the lands they should discover, together with an excludve trade to all the countries
within Hudson's Straits, not in possession of his subjects or of any other Christian
power, with the royalties of mines, minerals, gems and royal fish, to enable them to find
out the passage, extend the trade, and to plant the countries they should discover, pay-
ing two elks and two black beavers whenever and as often as His Majesty and his suc-
cessors should enter their territories, granting to them the greatest privileges as lord
proprietors, saving only their faith and allegiance to the Crown of Great Britain ; The
petitioners beg leave to observe that the said company have not since effectually, or in
earnest, searched for the said passage, but have rather endeavoured to conceal the same,,
and to obstruct the discovery thereof by others, nor have they made any now discovery,
either upon the coast, or in the inland countries adjoining to Hudson's Bay since the
grant of their charter, nor have they taken possession of or occupied any of the lands
granted to them, or extended their trade into the inland parts of the adjoining continent,
nor made any plantations or settlements, except four factories and one small trading
house, in all which they have maintained in time of peace about one hundred and twenty
persons, servants of the company, nor have they allowed any other of His Majesty's
subjects to plant, settle or trade in any of the countries adjoining to the Bay granted ta
them by their charter, yet have connived at or allowed the French to encroach, settle
and trade within their limits on the south fcide of the bay, to the great detriment and loss
of Great Britain."

The Lord Chancellor. — They want to be incorporated.
Mr. McCarthy. — They want to be incorporated. Their prayer is set out at
page 599, and it is this :

" That His Majesty would be graciously pleased to incorporate the petitioners and the
other subscribers for finding out the said passage, or such of them and such other persons
as they shall engage in the said undertaking, and their successors forever, and grant to
them the property of all the lands which tht>y shall discover."

The attorney-general and solicitor- general were attended by counsel on both
sides, and I venture to say their decision amounts to a quasi-judicial decision.

Sir Robert Collier. — It amounts to a decision that the Hudson's Bay
Company had not forfeited their charter, that is all.

The Lord Chancellor. — The solicitor-general hears and decides on appli-
cations in patent cases, but one never understood that his decisions were judicial
decisions.

Mr. McCarthy. — I say a quasi-judicial decision.

The Lord Chancellor. — It can hardly be regarded as having any greater
authority than that which appears on the face of it. He had no original juris-
diction to determine this matter. It is a reference by the Crown. They advise
the Crown, and to assist them in that advice they hear what both parties have to
say, and the parties employ counsel.

227

ARGUMEKT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY :

Mr. McCarthy. — I submit it is different from the opinion of counsel obtained
Tt)y the company.

The Lord Chancellor. — Yes, it is the opinion of two law oflScers of the
Orown, men of great reputation, and I dare say quite as valuable as a very large
proportion of th^ documents in this book.

Sir Robe^rt Collier. — It seems to me to have very little bearing upon the
question. If you read the last paragraph you will see exactly what they did.

Mr. McCarthy. — W e must see what the claim was ••

** The petitioners insisted on two general thingn, that the companj'd charter was either
void of its original creation, or became forfeited by the company's conduct under it."

The first part is not in question.

Sir Montague SMITH.—What do you say it she^Vs ?

Mr. McCarthy. — I say it shews, as to the question of the occupation by the
43ompany, propounded by my learned friend Mr. Mowat to your Lordships, the
non-occupation by the company of all the territory did not work a forfeiture of
any part of the land granted.

Sir Robert Collier.— Nobody contends it did.

Mr. McCarthy. — Oh, yes.

Sir Robert Collier. — You may as well read it :

" But as the grant proposed is not necessary in order to prosecute any future attempt
of the like kind, and the char.er of the Hudson's Bay Oompany does not prohibit the
petitioners from the use of any of the ports, rivers, or seas included in their charter,"

they are inclined to think the charter of the Hudson s Bay Company did not give
them an exclusive right of trade.

Lord Aberdare. — The whole question is about a grant of £20,000 to find
the north-west passage to the Pacific. I think what was meant was, that the
granting of the charter did not prohibit these men from passing to their dis-
<joveries that way.

Mr. McCarthy. — I suppose that is one thing they mean. Here is a distinct
indictment against the company. It was followed then by an argument on
behalf of the petitioners, which the company oppD.sed by their counsel, and finally
the law officers say, with respect to both these, what ? What is the first ? The
first is, that the company's charter was void.

Sir Montague Smith. — They give no opinion. They say it is not expedient
to advise the Crown to declare the charter void :

" With respect to both these, considering how long the company have enjoyed and
jicted under this charter, without interruption or encroachment, we cannot think it
advisable for His Majesty to make any express or implied declaration against the validity
of it, till there has been some judgment of a court of justice to warrant it ; and the rather
because if the charter is void in either respect, there is nothing to hinder the petitioners
from exercising the same trade/'

and so on.

Sir Robert Collier. — Yes, that is, they had not the exclusive right of
using those rivers. This really has no bearing upon the question.

Sir Montague Smith. — No ; I do not think it is of any use at all.

Mr. McCarthy. — This, I think, is very important. I will state what it is ;
your Lordships will see whether it is important or not. From a certain period
during the war, the Hudson's Bay Company weie giving directions to their
servants how to defend themselves. Then m 1748, is the Treaty of Aix la

2i8

LIMITS CLAIMED BY HUDSON'S BAY CO. IN 1750.

CKapelle.* The effect of it was to restore, so far as this question is concerned,
the Treaty of Utrecht. It is spoken of in the documents.

Sir Robert Collier. — It really restored the Treaty (5f Utrecht ?

Mr. McCarthy. — Yes.

The Ix)RD Chancellor. — It merely restored what had been taken in
war, so far as I can see.

Mr. McCarthy. — The eflect of it was to restore the treaty. It left things-
as they were before.

The Lord Chancellor. — There is nothing whatever about restoring :

'* All the cocqueats that have been made since the commencement of the present war^
or which, since the conclusion of the preliminary articles, signed the 30ch of April last^
may have been or shall be made, either in Europe or the E^st and West Indies, or in any
part of the world whatsover, being to be restored,"

that is all.

Mr. McCarthy. — I take it, the effect of that is, there being no war between
the Treaty of Utrecht and that, if everything taken during the war wa? to be
restored, it leaves matters as they were at the Treaty of Utrecht.

The Lord Chancellor. — If something of which the British had been in
possession under the Treaty of Utrecht had \>een taken by conquest from them
by the French during the war, that is to be restored. If nothing had been taken
by conquest, it does not seem to affect the question one way or the other.

Mr. McCarthy. — That is what I mean. It (loes not seem to affect the
question one way or the other, except, that the parties upon that immediately
proceeded to appoint commissaries to fix these limits. The Hudson's Bay Com-
pany were called upon then to put in their claim. That you will find in the
Manitoba Appendix, page 24.-|- This is the memorial, just continuing the narra-
tive, and that sets out :

**Tbe said governor and company in obedience to your Lordships' orders of the 25th
July last, requiring them to lay before your Lordships an account of the limits and
boundaries of the territory granted to them, represent to your Lordships " —

This contains the first claim made by the Hudson's Bay Company, as
between them-^elves and the Crown, defining limits. Before that, they were pro-
posing to the Crown, that, between France and England, the 49th parallel should
be the limit under the Treaty of Utrecht. Now they set out what they claim
the charter means :

**The said straits and bay, commonly called Hudson's Straits and Bay, are now bo
well known that it is apprehended they stand in no need of any particular description,
farther than by the chart or map herewith delivered to your Lordships ; and the
limits or boundaries of the lands or countries lying round the same, comprised, as-

*The Trfaty of Aix la Ohapelle, 1748.

[By Article III., some former treaties, including the treaty of peace of Utrecht, were *' renewed and
confirmed."]

Art. V. All the conquests that have been made since the commencement of the present war, or which,,
(inoe the conclusion of the preliminary articles, sip^ned the 30th April last, m%y have been or shall be made,
either in £urot>e or the East and West Indies, rT in any part of the world whatsoever, being to be restored
without exception, in conformity to what was stipulated by the said preliminary articles, and by the declara-
tion since signed, the high contracting parties agree to give orders immediately for proceeding to the restitv-
tion, as well as to the putting the Most Serene Infant, Don Philip, in Dossession of the states which are to
be yielded to him by virtue of the said prelim inarie.^, tlie said parties solemnly renouncing, as well for them-
selves as their heirs and successors, all rights and claims, by what title or pretence soever, to all the states^
countries, and places that they respectively engage to restore or yield ; saving, however, the reversion
stipulated of the states yielded to the Mobt Serene Infant, Don PhiJip.

f Extracts from the Hudson's Bay Company's Memorial of 3rd Oct obsr, 1730. A full copy of this
memorial was put in by Ontario, separately from the Appendices, and is to be found in the complete
edition of the collection, *' Ontario Boundaries before Privy Council, 1884."

229

ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY :

your memorialists conceive, in the said grant, are as follows, that is to say : all the
land lying on the cast side or coast of the said bay, and extending from the bay
eastward to the Atlan{ic Ocean and Davis' Straits, and the line hereinafter men-
tioned as the east and south-eastward boundaries of the said company's territories;
And towards the north, all the lands that lie at the north end, or on the north side
or coast of the said bay, and extending from the bay northward to the utmost
limits of the land there, towards the north pole, but where or how those lands ter-
minate is hitherto unknown ; and towards the west, all the lands that lie on the
west side or coast of the said bay, and extending from the bay westward to the
xitmost limits of those lands, but where or how those lands terminate to the west-
ward is alFO unknown, though, probably, it will be found they terminate on the great
South Sea."

The Lord Chancellor. — Then it is quite clear the watershed is not regarded
there.

Mr. McCarthy. — No, they do not speak of the watershed at that date.

The Lord Chancellor. — No ; they not only do not speak of it, but they
make a claim which is absolutely inconsistent with it,* because they claim the
i?raters which flow into the two oceans, and the waters which flow into the Arctic
Ocean. They must have known by experience that there were waters which
went into the sea, and not into Hudson's Bay.

Mr. McCarthy. — They must have gone far away to the west of that.

The Lord Chancellor: — They have gone to the north, the east, and the
west of that watershed.

Mr. McCarthy. — There was no law of nature which absolutely precluded
the waters from flowing into Hudson^s Bay.

The Lord Chancellor. — We cannot exclude all that which was known to
geographers by experience.

Mr. McCarthy. — However, I will read this. In the first place, it includes
more than the Hudson's Bay included. Your Lordship remembers the language
of the Rupert's Land Act, it is all they ever " claimed."

The Lord Chancellor.— It is the whole of North America, north of the
French possessions. That is the long and short of it.

Sir Montague Smith. — And to " the great South Sea."

Mr. McCarthy. — No doubt it is wide enough and large enough to cover alL

The Lord Chancellor. — I see the southern boundary referred to is, exactly,
the 49th degree.

Mr. McCarthy. — Yes. Then, I will go to the correspondence which
follows on that, between the governments,"!* which your Lordships will find

* The description of the southerly boundary, omitted supra, is also inconsistent with it, viz. : " And
towards the south, aU the lands that lie at the south end or south side or coa^t of the said bay, the extent of
which lands towards the south to be limited and divided from the places appertaining to the French in
those parts, by a line to be drawn for that purpose, to be^in from the Atlantic Ocean on the east side, at
an island called Griminf^ton's Island, otherwise Cape Perdrix, in the latitude of 53^^, on the Labrador
coast, and to be drawn from thence south-westward to the great lake Miscosinke, otherwise caUed Mia-
toseny, and through the same, dividing that lake into two ])artSj down to the 49th degree of north latitude,
as described in the said map or plan delivered herewith, and from thence to be continued by a meridian
line of the said latitude of 49*^ westwards."

t On the 14th of May, 1755, a mevwire was delivere 1 by the French Ambassador in London (the Duke
■de Mirepoix) to the British Minister for Foreign Affairs, which, with regard to the limits of Canada, ran
as follows: —

'* The Court of France have decii'ively rejected, and will always reject, the proposition which has been
made by England, that the southern bank of the Kiver St. Lawrence, and Lakes Ontario and Brie, shall
serve as boundaries between the two nations. «

*• It is necessary to establish, as a base of negotiation relative to this Article, that the River St. Law-
rence is the centre 3f Canada. This truth is justified by all titles, b^ all authors, and by possession. All
that France will be able to admit, after having established this principle, which cannot be reasonably con*

230

NEGOTIATIONS RESPKCTING THE LIMITS, 1755.

at page 27. Some of this correspondence which is stated here at page 27 becomes
important. I will read the first statement at line 20. This is the French view.
They lay down certain points, which it is necessary to refer to :

** It ia iijcessary to establish, as a bjiae of negotiatioa relative to this arcicle " — viz.,
article 2, fpfijardinsf the limits of Canada — " that the River St. Lawrence is the centre of
Canada. Tbis truth is justifi'd by all titles, by all authors, and by possession. AU that
France will be able to admit, after having established this principle, which cannot be
reasonably contradicted, is to examine, in regard to this object, whether the reciprocal

iradicted, is to examine, in ref^ard to this object, whether the reciprocal convenience of the two nation?
can exact some particular arrangement thereto, in order to tix invariably the respective boundaries.

" The only pretext the English make use of to colour their pretensions is drawn from Article 15 of the
Treaty of Utreont ; but, in examining attentively all the expressions of that Article, it is evident that noth-
ing is lees founded than the inductions which the Court of London actually wish to draw from it. •

** 1. It IS only a question in this Article of the person of the savages, and not at all of their country, or
pretended territory, since they have no determined territory, and the only knowledge they have of property
is the actual use they make of the land they occupy to-day, and which they will cease perhaps to occupy
to-morrow. ♦ * ♦ ♦

*' 4. Article 15 of the Treaty of Utrecht contains the same stipulations ai much in favour of the French
aji in favour of the English, and these stipulations are mutual ; the French could then sustain, with a better
title than the Englinh pretend about the Iroquois, that the nations Ab^naqui-ies and Souriquoise«, otherwise
Micmacs, Mal^cites, Cannibas, etc., are subjects of France, and as there are some Souriquois who inhabit
the extremity of the Peninsula of Cote, Cape Fourcher, and Cape Sable, it would follow that the French
could pretend to form settlements there with as much nght as the English have formed them at Oswego, or
Chouagen, on the shores of Lake Ont^ io, in 1726 or 1727, and consequently long after the Peace of Utrecht ;
France has not ceased since that time to complain of that enterprise, and she relies upon the Fort of
Chouagen being destroyed.

" 5. The Treaty of Utrecht has be^^n ill interpreted in pretending that it would authorize the French
and English to go and trade induicriminately amongst all the savage nations, under nretext of subjection,
alliance or friendship. This article, well understood, and well expounded, assures only the liberty of com-
merce which the savages can make among themselves, or with the European nations, and does not at all
authorize them to leave the confines of their colonies to go and trade with the savages."

On the 7th of June following, the British Government returned a reply to this TnemoirCf repeating
article by article ; and with reference to the limits of Canada, said :—

'* It will be difficult to form a precise idea of what is called in the memorial the centre of Canada, and
still less can it be admitted as a base of negotiation that the River St. Lawrence is the centre of that Pro-
vince ; this is advanced without proof, andf it is inapossible that the course of a river of that length can form
the centre of any country. Besides, Great Britj^in cannot grant that the* country between the northern
coast of the Bay of Fundy and the southtrrn bank of tpe River St. Lawrence, which Great Britain has
already offered to leave neutral, and not possessed by either of the two nations, in reserve for the borders
that are proposed to be drawn for it, ought to be regarded or has ever been considered as a part of Canada,
since the contrary has been denK>nstrated by authentic proofs. Neither can Great Britain admit that
France has ri^ht to Lakes Ontario and Erie, and the Niagara River, and to the navigation of these waters
exclusively, since it is evident hj incontestable facts, that the subjects of Great Britain and of France, as
well as the Five Nations Iroquois, have indiscriminately made use of the navigation of these lakes and this
river, according;: as occasions and convenience have required ; but as regards a piece situated on the south
bank of the River St. Lawrence, exclusive of that already proposed to be left neutral, the boundaries of
which are in dispute between the two nations or their reipective colonies, the Court of Great Britain is
ready to enter into a discussion in regard to this, and to fix the limits of it by an amicable negotiation,
but without prejudice, nevertheless, to the rights and possessions of any of these Five Nations.

'* With reg^d to the exposition that is made in the French memorial, ot the 15th Article of the Treaty
of Utrecht, the Court of Great Britain does not conceive that it is authorized either by the words or the
intention of that Article.

'* 1. The Court of Great Brita'u cannot admit that this Article only has regard to the person of the
savages, and not their country ; the words of that Treaty are clear and precise, viz. : The Five Nations or
Cantons Indians are subject to the rule of Great Britain, which, by the accepted exposition of all treaties
must ha\e reference to the country as well as to the person of the inhabitants. * *. . *

*M. It is true that the 15t}i Artic'e of the Treaty of Utrecht contains the same stipulations in favour
of the French as in favour of the English, with regard to such Indian nations as shall be deemed, after the
conclusion of this Treaty, by Commissaries, to be subjects of Great Britain or of France : but as to what is
mentioned of the Five Nations or Cantons Iroquois, France h%^ distinctly and specifically declared by the
aaii 15th Article that they are subjects of Great Britain, * Magna Britannice imperio subjectif,* and con-
sequently this ii* a point to be no more disputed about.

** 5. In whatever manner one interprets the Treaty of Utrecht, with respect to the trade which will be
permitted the English and French to carry on indiscriminately with the savage nations, it is nevertheless
very certain that such a general trade is by no means forbidden by this treaty. It is aji ordinary and
natural right to transact business with one's own subjects, allies or friends ; but to come in force into
the territories belonflring to the subjects or allies of another Crown, to build forts there, to deprive them of
their territories and to appropriate them, is not and will not be authorized bv any pretension, not even by
the most uncertain of ail, viz., convenience. However, such are the Forts of Frederick, Niagara,
Presqu'isle, Rivi^re-aux-Boeufs, and all those that have been built on the Oyo and in the adjacent countries.
Whatever pretext France can allege for regarding these countries as dependenoie) of Canada, it is certainly

231

ARGUMENT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY:

coDvenience of the two nations can exact some particaUr arrangement thereto in order
to fix invariably the respective boundaries."

Then the answer of the English to that is found at page 29, at the ^oot of the
page:

" In whatever manner one interprets the Treaty of Utrecht, with respect to the trade
which will be permitted the French and English to carry on indiscriminately with the
savage nations, it is nevertheless \ery certain that such a general trade is by no means
forbidden by this treaty, it is an ordinary and natural right to transact business with
one's own subjects, allies or friends ; but to come in force into the territories " — I draw
your Lordships' particular attention to this --^' belonging to the subjects or allies of
another Crown, to build forts there, to deprive them of their territories, and to appropriate
them, is not and will not be authorized by aoy pretension, not even by the most uncertain
of all, ,viz , convenience."

Then it goes on to say :

" However, such are the forts of Frederick, Niagara, Presqu'isle, Riviere aux Boenfs,
and all those that have been built on the Oyo and in the adjacent countries. Whatever
pretext France can allege for regarding these countries as dependencies of Canada, it is
certainly true that they have belonged to, and (inasmuch as they have not been ceded or
transferred to the Englisb) belong still, to the same Indian nations that France has
agreed by the 15th Article of the Treaty of Utrecht not to molest ? "

The Lord Chancellor. — South of the great lakes ?

Mr. McCarthy. — Yes. All I state it for, is for the purpose of shewing that
that is the contention. The importance I attach to it is this. Your Lordship will
remember that m}' friends have contended that the occupation of the French
of this western country, which took place between 1719, or thereabouts, and the
final cession in 1763, deprived the Crown of it, and of coui^se also the Hudson's
Bay Company. That has been the argument used. Now what I say is, that
the English, from the Treaty of Utrecht, were endeavouring to get this line fixed.
The line either was or was not fixed. If it was fixed, we contend it was place<l
at the 49th parallel.* If it was not fixed, then, at all events, the French were
trespassing or poaching on the ground of the Hudson's Bay Company, without
colour of right ;f and the English, in 1750, before the outbreak of the war, speak
of it in that way : ^

*' It is an ordinary and natural right to transact business u^ith one's own subjects, alii* s
or friends, but to come in force intx) the territories belonging to the su'^Jects or nlHt-s
of another Crown, to build forts there " — that is supposing ihey did build up forts in
this country — " to deprive them of their territories, and to appropriate them, is not,

true that they have belonged to, and (inasmuch as they have not been ceded or transferred to the English)
be!ong still to the same Indian nations that France has agreed by the 15th Article o! the Treaty of Utrecht,
not to molest, * Nulto in posterum impedimenta aut molestia cfficianV "

Article XV. of the Treaty of LTtrecht, 1713, above referred to, is m follows : —

XV.^ The subjects of France inhabiting Canada, and others, shall hereafter give no hinderance or
molestation to the Five Nations or Cantons of Indians subject to the dominion of Great Britain, nor to ibe
other natives of America who are friends to the same. In like manner the subjects of Great Britain shall
behave themselves peaceably towards the Americans who are subjects or friends to France ; and on both
sides they shall enjoy full liberty of going and coming on account of trade. As also the natives of tbo^e
countries shall with the same liberty, resort, as they please, to the British and French colonies, for pro-
moting trade on one side and the other, without any molestation or hinderance, either on the pa^rt of the
British subjects or uf the French. But it is to be exactly and distinctly settled by commissiuners, who
are, and who ought to be, accounted the subjects and friends of Britain or of France.

* The evidence bhews that it was not fixed. See ante, pp. 142, note t* 219, note t, 222, note f.

fTo thus assume that the North- West was ** ground of the Hudson's Bay Cimpany," is simply a
begging of the quet»ticn.

tThis utterance of the Enp^lish had no reference whatsoever to the North- West, but only to the region
claimed by the Iroquois or their allies, south of Lakes Erie and Ontario.

232

CLILVIS O? ras H'JDi)S's hXY CJ. IN 1759.

and will not be, authorized by any pretension, not even by the most uncertain of
al), viz , conveniens."

No doubt that is referring to other forts, specifically.

The Lord Cha^ncellor. — Yes, but that tends to shew that the complaiut
was in respect of some of the forts and some of the districts which were part
of Canada. *

Mr. McCarthy. — No ; the forts they are now speaking of are forts south of
the lake.

Tht? Lord Chancellor. — They are now in the territory of the United States ?

Mr. McCarthy. — Yes.

The Lord Chancellor. — Are they treated as in Canada in the Treaty of
Utrecht ?

Mr. McCarthy. — Yes.

The Lord Chancellor. — Then I think I am right in what I said, that this
passage includes some districts which were part of Canada.

Mr. McCarthy. — No ; that was not so in reality. Your Lordship remembers
that south of the lakes there is no boundary at all between the two countries.
In the Treaty of Paris, they do not speak of any boundary at all. They take the
Mississippi as the dividing line, and there is no attempt on the part of the French
to say that anything south of the lakes belonged to the French.*

. The LoKD Chancellor. — Certainly, there were certain settlements before
that treaty, which were not affected in any way by that ; and between the settle-
ments and the lakes there were certain French territories.

Mr. McCarthy. — Your Lordship will see on the map that there were French
posts ;'but the English say, you having erected posts there, we do not think it is
right and proper :

** It is an ordinary and natural n'ght to transact business with one's o^n subjects, alh'ea
or friends, but to come in force into the territories belonging to the subjects or allies of
another Crown, to build forts there, to deprive them of their territories and to appro-
priate them, is not and will not be authorized by any pretension, not even by the most
uncertain of all, viz , convenience."

I say that not only applies to those forts south of these lakes, but it applies to
the posts and foi:ts to the west, which are on the map more immediately before
your Lordships on this discussion."!"

Now, I go back to the Joint Appendix, page 586. It is headed " Memoran-
dum pf 1752," and it is a mere repetition of what has ah-eady occurred, claiming the
same limitary Vme,l and still the same amount of damages. Then, in 1759 —

'* The French, during their regime^ always claimed the southerly watershed of the lakes, as also the
territories drained by the Ohio and ether tributaries of the Mississippi. The tract from the mouth of the
Niagara River, to and including the upper branches of the Ohio, was covered by their forts, as Forts Niagara,
Victor, Presqu'isle, Le Boiuf, Venango, Machault and Du Quesne. All the French possessions east of ihe
Mississippi having been ceded to Great Britain hj the Treaty of Paris, there was no occasion for making
reference in the treaty to any southern boundary in that quarter. '

+ The documents shew that this i? a misapprehensicn. The statement in the reply of the British
Government to the French mevioire had sole reference to the country southward of the lakes and the forts
built therein, the contention being in regard to Article XV". of the Treaty of Utrecht respectinsf the Indian
nations. Great Britain claiming that this tract of country belonged to the Iroqucis, who had by that article
been acknowledged to be subject to her dominion. (See ante, p. 230, note t).

t"The Hudson's Bay Company claim the lands to the northward of a line drawn from 56i
degrees of ncrth latitude in the Atlantic Ocean, south westward to the Lake Miscosink, otherwise
Mistoseney, and, through the eame lake, down to the 49th degree of north latitude (as described in a map
delivered to the liords of Trade), and theuce continued bya meridian line of the said latitude of 49 degrees,
westward." ♦ * * *

233

ARGL'MENT OF MR. MCARTHY, Q.C., re QUESTION OF BOUNDARY:

i

The Lord Chancellor. — Before you entirely depart from that — the limits
of the Province of Quebec are here accurately defined in the commission at the
end of page 37.^ ? *

Mr. McCarthy. — It is long after that.

The Lord Chancellor. — I do not say it is contemporaneous exactly with
the cession. I want to know whether it is the fact that within those limits are
these places which are south of the lakes ?

Mr. McCarthy. — Yes, undoubtedly. I have said so. These posts are there.

The Lord Chancellor. — Within the Province of Quebec, as constituted under
the commission of 1774 ?

Mr. McCarthy. — Yes, undoubtedly .f Then in 1759 the Hudson s Bay Com-
pany again memorialize. This is at page 587. This is " To the Right Honourable
the Lords Commissioners of Trade and Plantations,'* and it sets out a good deal
that we have had over and over again ; and then it says :

'* That in pursuance of the said treaty, and an especial commission of her said late
Majesty, Qaeen Anne, dated the 20th of 'Tuly, 1713, the said bay and lands, then in posses-
sion of the French, were delivered up to Governor Knight and Kelsey, who took possession
thereof for the English Hudson's Bay Company, and commissaries were appointed to
settle the said limits, and adjust the damages the Oompany had sustained, which, for the
ships and goods of the company taken by the French, appears by an account s^ted in
the year 1713, and delivered to the then Lords Commissioners of Trade and Plantations,
amounted to upwards of X 100,000, besides the damages the company Sustained by th^
enemies' burning three of their forts and factories, at Charlton Island, Moose River, and
New Severn. And proceedings were had by the said commisearies towards settling the
same, bat they were never able to bring the settlement of the said limits to a final con-
clusion, nor did the said Hudson's Bay Company ever receive aoy satisfaction for their said
damages. That the papers which were laid before the said commissaries, and the
minutes of their proceedings, as also a memorial relative to this matter, which in the
year 1750, after the conclusion of the last war, was presented to your Lordships, remain-
ing, as your memorialists believe, in your Lordships* office, it is conceived from thence
will appear the best state of the rights of both Crowns, and of the territories and claims
of the said company that can be laid before your Lordships, whereto your memorialists
beg leave to refer."

Then the prayer is :

" In case any treaty of peace shall be set on foot between this nation and France,
that your Lordships will intercede with His Majesty to take the premises into His Royal
consideration, and that he will be graciously pleased to cause your memorialists to have
full satisfaction made them, pursuant to the Treaty of Utrecht, for the aforesaid
depredations they are thereby acknowledged to have sustained from the French in time
of peace, and for which satisfaction is by the said treUy agreed to be made to the com-
pany, and that the limits of the said company's territory may be settled, as by the said
treaty is also agreed."

There is no doubt at all that that is very strong evidence indeed, if nob conclu-
sive one would say (although I do not concede it), that the limits had not been
defined. But my purpose for reading it is this, that up to that time, as late as
this date, 1759, we find the English Hudson's Bay Company still claiming this
49th parallel, and that the English Government acknowledged the 49th parallel,
and took the view of it that they were contending for. Now, let us see practically

•Oommission to Governor-General Sir Guy Carleton, of 27 December, 1774, printed antCj p. 40.

t This is a misapprehension. AU the forts named (see ante, p. 233, note *), were excluded from the
Province of Quebec as so constituted, being south of tne southerly boundary thereof. They were within
the limits of New York and Pennsylvania- some in the one, and some in the other of those provinces.

234

L

■jgfTO ■-'".'

CONTENTIONS RESPECTING THE 49tH PAR. AS A BOUNDARY.

what follows after that Nothing comes after that I think until we get the treaty*
Then, the whole country, the northern part of it, became British territory. Now.
what is the effect ? If the 49th parallel is established, the position of the Hud-
son s Bay Company Ls perfectly clear. If the 49th parallel is not taken as clearly
fixed between the rival states, my position is, that the English government, having
adopted that as the line, and having taken that as the country, they were then
bound by the 49th parallel, they never having repudiated it As long as that
was claimed as French territory, they say, That is the Hudson's Bay Company's
land. Then they become the joint owners and possessors of all, and it has never
heen disclaimed, in any document that I have seen, that that was the limit fixed
and conceded as between them and the Hudson's Bay Company.* My contention
is, that they said the 49th parallel was the line which they were wilKng to accept
for the purpose of the Utrecht treaty. They were willing to accept that, because
they believed generally it was the height of land.

The Lord Chancellor. — Tha^t is your theory.

Mr. McCarthy. — I meant that I was putting it forward as my theory.

The Lord Chancellor. — They do not say so.

Mr. McCarthy. — They do not .say so, but that is my theory, and that is the
view on which the 49th parallel was taken.

The Lord Chancellor. — It is quite clear to me that there are other large
<^laims, north, east and west, which are inconsistent with any such theory.

Mr. McCarthy. — With great respect to your Lordship, iiot within that part
of the country where it was known where the height of land was. Now the posi--
tion of the Hudson*s Bay Company would naturally be this : " We know where the
height of land is in the eastern part of the continent ; we say that it in about the
49th line."

The Lord Chancellor. — It'is a most singular thing, if that was all along in
their minds, that they should never once have said so.

Mr. McCarthy. — It is no use my repeating what I have said of course, but
they took the 49th instead of the 50th line ; that is what I say.

The Lord Preside )^t. — With respect to what the Hudson's Bay (>ompany
were entitled to claim, just look at page 512 — " French Memoirs, 1719-20, relating
to the limits of Hudson's Bay under the Treaty of Utrecht :"f

'* 2nd. They cannot eay that any land, or river, or lake, belongs to Hudson's Bay ;
because if all the rivers which enter into this bay, or which communicate with it, bdlong
to it, it might be said that all New France belonged to them." . . .

I suppose that was the French answer ?

Mr. McCarthy. — Yes, that was the French answer.

The Lord President. — It shews what the French understand the company
to mean.

The Lord Chajncellor. — I confess I do not quite agree with that. It seems
to me that the French are puttinor that which is a reductlo ad absurdurriy not as the

* As ajrainst France, that was the line which the British claimed ; but the French were prepared to
Tej*»ct it and to nrge a much more northerly frontier. As un^er the treaty the final drciaion was to rest
with commissaries, who never proceeded in the mUter, it cannot now be predicated what their determina-
tion might have been, nor even whether the Britiiih, after presentation of the opposite case, might not have
teceded from their original demand.

Further, as between the British Crown and the company, Ontario claimed that the company had, as
a result of the wars and treaties between the two p-)wer8, become diveateJ of the territo-ial title which the
-charter purported to confer, except in so far as the Crown might thereafter see fit to recognize it, in whole
or in P*rt, cum gratia, and that the Crown having also become possessed of the rival title of France, it
onited in it*eU every interest. See ante, p. 190, note t.

t Printed arUe, p. 112.

235

ARGUMENT OF MR. M'CARTHY, Q.C , re QUESTION OF BOUNDARY :

actual claim. They say that they cannot say that, and then they give a reason
which I do not follow^ I confess.

The Lord President. — It seems to me that the French understood the
company to claim all the rivers which entered into the bay.

The Lord Chancellor. — I do not think so. The French say they cannot
claim that as a matter of fact. In no singlp document that I have seen have they
ever put forward that claim — a great deal more than they expected to get.

Mr. McCarthy. — It is hardly so, in this particular country, which they knew
all about. What could be more natural than, not knowing where the height of
land is, for them to say : '* We aru a company ; we have a charter," and knowing:
that in 1750 there were people opposing their charter, that they should put for-
ward their claim in the way in which I submit they did. At all events, my
argument is, that the Crown of England were, in good faith, as against this com-
pany, precluded from contending, as against the company, that the line did not go
so far south as 49*^.

The Lord Chancellor. — That there had been an endeavour in France to fix
that line, which failed is true ; but it did not bind the parties.

Mr. McCarthy. — It is not contended that the English had any other Istnd
there than that belonging to the company, which went down to the 49th parallel.

The Lord Chancellor. — Do you put that by interpretation of the charter^
or by actual possession, that it would be a give and take line ? That would b^
your view ?

Sir Robert Collier — If the English commissaries had been appointed, they
might have taken some line intermediate between 49 and 51.

The Lord Chancellor. — Your argument is not prejudiced by your having^
been willing to accept that line.

Mr. McCarthy. — At all events I am entitled to take this position. I suppose
that nothing had happened to destroy the effect of the Hudson's Bay Company's-
grant. We have to go back to the Hudson's Bay Company's grant to see what
that was. If the Hudson's Bay Company's grant means anything, it must mean
all the country drained into Hudson's Bay — that at all events of which they took
possession. Where else is the line to be drawn ? It is either void, by reason of
uncertainty, as not giving any limitary liLe, or it must go to the countries drained
into Hudson's Bay. I submit that is the effect of the grant. From the treaty
upwards, let us see what has been done. It has been ur;;ed bifore your Lordships,,
that there was no possession actually taken by the Hudson's Bay Company in the
interior of the country until after the cession. Well, there were posts on the
mouths of the rivers some leagues up ; it is not very important how far up. These
posts are set out on page 588 of the Joint Appendix,* but perhaps they are not so
clearly set out there as at a subsequent place; but I will deal with those sepa-
rately if your Lordships will per. nit me, as it is a matter that can be dealt with
better separately, than it taken at this point of my argument. But, what I want ta
point out now is this. We now come to 1774. It is not denied, but rather
admitted, that the Hudson's Bay Company did establish Cumberland post, or
Cumberland House, the very year after the Act was passed.

The Lord Chancellor. — W^here is that ?

Mr. McCarthy. — That is on the Saskatchewan. It is between 50 and 55
degrees, on the Saskatchewan.^ It is spoken of in Mr. Henry's Travels, which is-
cited from the Ontario Appendix. He visited the country. He was a trader

*The pobts there tet out are all on the ntargin of the bay— nut one in the interior. And in fact duriog-
the whole period of the French occupation, the Hudson's Bay Company had but one post away from the
shore, and that not before 1740, viz., Henley.

t It was not on the haskatchewan, but considerably north of that river, on Sturgeon Lake, and in Ut^
SS^ 56', and lon^ 102^ 16'.

236

FRENCH OCCUPATION OF THE NORTH-WEST— FIKST APPEARANCE THEREIN OF H. B. CO.

from Montreal, and he speaks of this particular fort being there in 1774. It is
at pa^e 51.*

The Lord Chancellor. — Are you referring to that to shew that wherever
the French had forts the Hudson's Bay Company had forts also.

Mr. McCarthy. — Yes, I am leading up to shew what the Hudson's Bay
Company had, in that way -f- It is at the foot of page 51 :

"On the 26th October, [1775], we reached Oumberland House, one o! the fac-
tories of Hadson's Bay Oompauj, seated on SDurgeon Like, inabDut 54^ north latitude, .
and 102^ longitude, west from Greenwich. This house had been built the year bafore, by
Mr. Hearne, who was now absent on his well knawnj)urney of discovery. We found it
|(arrisoned by. Highlanders from the Orkney Islands, and under the command of a Mr.
Oockingfl, by whom, though unwelcome guests, we were treated with much civility."

This Mr. Henry was one of those who were trading through the territory much
a^inst the will of the Hudson's Bay Company at this time :

'* The design in building this honse was to preveno the Indians dealing with the Canadian
Merchants, and to induce them to g > to Hudson's Bay.''

The Lord Chancellor. — I do not quite see the bearing of this on the dispute
which is before us.

Mr. McCarthy. — It is not on the land now in dispute before your Lordships,
but my friend's argument was, that between 1719 and the time of the cession,
the French occupied that country, and he goes to this very point as one of them,
commencing at Fort William, going to the Rainy Lake, the Lake of the Woods,
and so on. French posts were established, and your Lordships will recollect my
friend's contention was, that the effect of that was to cut down the Hudson's Bay
charter, and to limit them — to drive them back — to confine their limits closer to
Hudson's Bay. I am answering that by saying, that is not so, because, from this
very date, the English were endeavouring to get the line fixed, the French were
trespassing, and the Hudson's Bay Company were, as far as it was neces«*ary for
the purpose of their occupation — because after all it was a trading occupation —
80 far as it was necessary, the Hudson's Bay Company were occupying tooj! and I
propose to go on and shew what next they did.

The Lord Chancellor. — It is impossible that the Cumberland House should
be within the limits of the commission.

Mr. McCarthy. — No, it was not.

The Lord Chancellor. — Then, that being so, it is outside this altogether.

Mr. McCarthy. — If your Lordship so rules it.

The Lord Chancellor. — It is not a question of ruling; it must be so.

Mr. McCarthy. — I am contented to take it that it must be so.

Sir Barnes Peacock. — It is not in that territory.

•The AcoouDt is from Alexander Henry's, "Travels and Adventurej in Canada and the Indian Terri-
toriei, between the years 1761 and 1776." Fort Cumberland here mentioned, established in 1774, was the
only poet of the Hudwn's Bay Company in the region of the North- West -th*^ Winnipeg basin—bafore the
period 1790-1799. Henry, at pp. 61-2 of the Ontario App-indix, also gives an account of the old French
forts of St. Charles, on the Lake of the Woods; D^iuphia to the north of Lake Manitoba; and Bour-
bon and Des Prairies, on the SaskUch^wan : twa of which, Dauphin and Oea Prairies, were then occupied
by the Canadian traders. The last mentioned fort, he states, *'had usually 6fty to eighty m9u for its
defence." After 1763, and, of course, after the Act of 1774, the Hudson's Bay Company had the same
rights of entry into and of trading in these countries of the North- West, formerly possessed by the French,
that other British subjects had. neither more nor less, and it was in pursuance of this right that they
reached Cumberland House. The company had never occupied, nor attempted to occupy, or to enter,
any portion of the North- West during the period of the French dominion.

t The Hudson's Bay Company had no forts and no possession there during the French regime. See
note *, tuprei.

tAU this is contrary to the evidence. See note *, supra,

237

ARGUMENT OF MR. m'CARTHY, Q.C, re QUESTION OF BOUNDARY:

Mr. McCarthy. — The argument is, that in 1719 the French sent an officer
there, to the Western Sea. In 1730, that was followed up by other officers of the
French commission appointed by the King to find the Western Sea, and they
were told by the King : We are not going to pay you anything ; you will pay
yourselves by the trade you will get in passing through the country. Then
this gentleman, Verendrye, established posts from point to point, and my
friend argued that that had the eftect of taking away the territory from the
Hudson's Bay Company.

Mr. MowAT. — My argument was, that they never had it.
Mr. McCarthy. — If they had not got it then, they got it afterwards. Now
1 meet that argument by saying that the Hudson's Bay Company were in
possi?.ssion of the mouths of the rivers, and as it became necessary for the preser-
vation of their trade, and as their strength permitted, they passed on, from time
to time,* until eventually, in 1790, we find them down in Red Lake.

The Lord President. — They claimed the Saskatchewan, I presume because
it was a river which drained into Hudson's Bay.

Mr. McCarthy. — Yes, and they got to Red River, which by some accident
was ceded to the United States, down to the very Red Lake which is spoken of
by Colonel Haldimand and his correspondents.

Lord Aberdare. — Near the source of the Mij<sissippi ?
Mr. McCarthy. — Near the source of the Mississippi.^ I do iK)t know that
I need weary your Lordships by going through all these forts and the details of
them. That is the result of it, that in 1790 we tind them down in Red Lake.f
The Lord Chancellor. — That was long after the cession.
Mr. McCarthy — Yes.

Lord Aberdare. — I think it might bfe taken that the Mississippi went a little
northward.

Mr. McCarthy. — They took it, at that time, that the Pigeon River and all
those rivers that went up, drained into the St. Lawrence, according to these maps ;
but as a matter of fact they all do not. Instead of taking the 49th parallel, they
followed that which was a convenient boundary, until they got to the Lake of the
Woods. I am coming to what the subsequent treaty aud correspondence demon-
strate. They followed that which was a convenient boundary, and that is the
reason why the boundary of the Lake of the Woods was assumed.:[: And then the
next commission, that of Lord Dorchester, followed that, and said the Mississippi
went northward to the territories granted to the Hudson's Bay Company. You
will find that the commissions neutralize one another.^

Lord Aberdare — It is good so far as the Lake of the Woods goes, and cover*
a very considerable territory.

*The French contention was, that after the Treaty of Utrecht, the British were entitled to have
restored to them only certain posts on the shores of the Bay, with a very limited dependent territory, and
that the whole of the interior country with its forts or settlements was left to the Fiench. The compaoy
made no move into the interior until long after the cession of Canada, and then only in parauance of iheir
right in common with other British subjects. They found the country occupied by traiders, British rab-
jects, of Canadian or British origin, ultimately united as the Morth-West Company of Montreal, who*e
footsteps the Hudson's Bay Company were contented to follow, at a measurable distance. In 1821,
the two companies, jointly, obtained a Royal License to trade, under which their operations were carried oa
until their fusion, in 1838, into one company. And see ante, p. 237. note * ; and appendix B, hereto.

fThe Red Lake in question, as admitted by counsel at a subsequent stage of the argument, was not
that near the sources of the Mississippi, referred to in the Haldimand correspondence, but was situate
several degrees further norcn, to the north-eastward of Lake Winnipeg, and discharged its waters by s
tributary of the English River.

tSee anU pp. 107, note *, and 222, note t.

§Thi8 contention does not appear to be supported on a comparison of the texts of the seveial comiDis'
sions (Joint Appendix 375, 384, 387, 400, 404-6, 428), any apparent differences being explainable.

238

•T«xr- ■

LORD SELKIRK AND THE NORTH WEST, 1808-1814.

Mr. McCarthy. — I will go to it now, if your Lordships like, but I think it
will be more convenient to treat of that by itself. The beginning of the present
century, 1800, comes. The first thing that we know is done, is this. This is very
important, and to my mind it seems to put an end to the claim made by the other
side. Lord Selkirk, in 1808 or thereabouts, proposed to found a colony on the
Red River, and, in 1814, a grant was made to him by the Hudson's Bay Company.*
Now will your Lordships look at the limits of that grant ? The map I handed in
this morning shews the limits of the grant to Lord Selkirk. It follows the height
of land, as the southern boundary, until it comes to the height of land upon the
east. ' It is all traced on the map. It goes considerably west of the present Pro-
vince of Manitoba, then it goes southerly to the height of land, then it takes the
height of land as its boundary until it comes to the height of land near Pigeon
River.

Sir Robert Collier. — How does it appear that it is bounded by the height
of land.

Mr. McCarthy. — It is stated so in the grant to Lord Selkirk. MacdonelFs
proclamation sets it out."!-

The Lord Chancellor. — That is to the United States boundary ?

Mr. McCarthy. — At that date it went beyond the United States boundary.

The Lord Chancellor. — Is that the boundary settled by the Ashburton
Treaty ?

Mr. McCarthy. — Yes, your Lordship will find the proclamation at page 589.

Sir Robert Collier. — It commences in 52° 30' north latitude.

Mr. McCarthy. — * Thence running due west to Lake Winipigashish."

Lord Aberdare. — It seems to go right through Lake Winnipeg.

Mr. McCarthy :

'^ Then in a southerly direction, through the said lake, so as to strike its western
shore in Jatitude 52 degrees ; then due west to the place where the parallel of 52 degrees
north latitude intersects the western branch of Red River, otherwise called Assiaib^ine ;
then due south from that point of intersection, to the height of land which separates the
waters running into Hudson's Bay from those. of the Missouri and Mississippi Rivers ;
then in an easterly direction, along the height of land, to the source of the River Winni-
pic, (meaning by such last named river the principal branch of the waters which unite in
the Lake Saginagas)" —

That brings us down to the point marked on the map, the westerly limit of
the height of land ; then it follows the stream, which was the line of separation
between the United States and Canada, until it gets to the point of commence-

*Lord Selkirk had become principal partner in the company, and they purported to make the grant
in 1811 ; but it did not follow that it carried with it any title. The Canadian traders, who had been in
exclusive possession of that territory long before any one in the interest of either the company or Lord
Selkirk had net foot within it, treated the pretended grant with contempt, repudiated his lordship's assumed
authority, and broke up his colony.

tPROCLAMATioN OP MiLKs Macdonell, DATED AT FoBT Daer [Pepibina], 8 January, 1814,
[Extract— Description of the Boundaries.]
All that tract of land or territory, bounded by a line running as follows, viz. : Beginning
on the western shore of Lake Winnipic, at^ a point in fifty-two degrees and thirty minutes north
latitude ; and theuce running due west to Lake Wiuipigashish, otherwise called Little Winnipic ;
then in a southerly direction tnruugh the said lake, so as to strike its western shore in latitude fifty- two
degrees ; then due west to the place where the parellel of fifty-two degrees north latitude intersects the
western branch of Red River, otherwise called Assiniboine ; then due south from that point of intersection
to the height of land which separates the waters running into Hudson's Bay from those of the Missouri
and Mississippi Rivers ; then in an easterly direction along the height of land to the source of the River
Winnipic (meaning by such last-named river the principal branch of the waters which unite in the Lake
Sa^nagas) ; thence along tne main stream of those waters, and the middle of the several lakes through
which they pass, to the mouth of the Winnipic River ; and thence in a northerly direction through the
middle of the Lake Winnipic, to the place of beginning ; which territory is called Assiniboia.

239

ARGUMENT OF MR. M CARTHY, Q.C., re QUESTION OF BOUNDARY :

ment, takinof in, ackiiowledging, and treating the land up to that point a? if the
property of the Hudson's Bay Company, and relj'ing on the height of land aa the
boundary :

— " which territory is called Assiniboia, and of which I, the undersigned, have been
dulj appointed governor."

The Lord Chancellor. — Where is there mention made of the boundary be-
tween that and the United States ?

Mr. McCarthy. — It was not known then.* That took in a large part of the
United States territory.

Lord Aberdare. — It conveys the district of Louisiana.

Sir Robert Collier. — It goes below the boundary of 1763.t

Mr. McCarthy. — We do not at all acknowledge that line. These lines are
not yet proved to your Lordships.

The Lord Chancellor. — It is to be regretted, if there is anything disputed
as to this map [meaning the Ontario boundary map of 18S4], that it has been
before us all the time.

Mr. McCarthy. — All we admit is, that the general lines of the country are
correct — the rivers, the latitude and longitude.

Lord Aberdake. — You do not admit that particular line ?

Mr McCarthy. — No.

Mr. Mowat. — This map shews w;hat we say was the treaty of 1763.

Lord Aberdare. — You inserted no maps on account of the difficulty of
agreeing ?

Mr. McCarthy. — We could not do it. We agreed about the maps that each
side should put in— such maps as they thought tended to prove their case.

In 1814, the company bounded their grant to Lord Selkirk, on the south by
the height of land ; they carried that as far as where Pigeon River takes its rise,
and then they pursued the watercourse along into Lake Winnipeg, to the place of
commencement, adopting the water line as the actual southern boundary of their
territory.

The Lord Chancellor. — It is all to the west of the land now in question.

Mr. McCarthy. — No, it is south of the disputed territory. Your Lordships
will see it very clearly in Keith Johnston's Physical Atlas. It shews the heights
of land and water systems very plainly.

The Lord Chancellor. — Something is assumed with regard to it in 1814.
The claim certainly includes part of that which in the Quebec Act is confined to
the Province of Quebec.

Mr. McCarthy. — We submit not.

The Lord Chancellor. —Beyond all question. A line drawn from the
source of the Mississippi would cut off a part of that.

*The boundary was known, for it appears in the Treaty of 1783, and in the CommissioD of 1786, a«
drawn tbrous^h the water communications from Lake Superior to the most north-western point of the Lake
of the Woods. The Selkirk grant purported to take in what mast have been known to the parties even
then as territory of the United States, namely, the tract bounded on the north by the said water communi-
cation!!, on the south by the height of land, and on the west by a line drawn from the Lake of the Woods
to the soun^ of the Mississippi, then sufficiently known and determined through the labours of Mr. David
Thompson, astronomer and surveyor to the North-West Ck>mpany, who had located it at Turtle Lake, as
early as 1798. It is rather significant that this pretended grant included no part of the territory afterwards
a^gned to Ontario, by the arbitrators' award, and by Her Majesty in Council — except an insigniBcant area
between the main channel of the Lake of the Woods and the line of the north-west angle, which would have
been excluded also if the moi>t north •we*> tern point of that lake had not been finally located at a spot con-
siderably to the southward of the place (Portage aux Rats) where it was at first assumed to be. The parties
to the grant weie evidently aware that theKOuthem boundary, and the territory, of Upper Canada extended
to the Lake of the Woods, by virtue of the said Commission and of the instruments of 1791 and 1774.
The inclusion of United States territory in the grant is, in face of the facts, hard to explain.

tMeaning the boundary line, shewn on the map, running due west from the source of the Mississippi.

240

PRETENSIONS OF THE HUDSON'S BAY CO. IN RESPECT OF ASSINIBOIA.

Mr. McCarthy. — It goes straight to the Company's territory. The Com-
mission of 1774, says following the eastern bank of the Mississippi to its source^
and then northward to the Hudson's Bay territory. If the Hudson's Bay territory
is bounded by the height of land, it strikes the height of land, and that ends it.

Lord Aberdare. — This map of Johnston's she^s the river systems.

Mr. McCarthy. — The Mississippi goes up to Lake Itasca. Lake Itasca is
south of the height of land. Then from that you go due north to the Hudson's
Bay territory. That, as we contend, is at the height of land. Now we oflTered
this as evidence, that in 1814 this was treated by the Hudson's Bay Company as
their land, and granted. I submit it is some evidence. Your Lordship will see
also it was up to that height of land that Upper Canada exercised jurisdiction.
Upper Canada never claimed to exercise jurisdiction beyond the height of land.

The Lord Chancellor. — We have at present no evidence whatever of this.

Mr. McCarthy. — My learned friend Mr. Mowat contended for that.* John-
ston's Physical Atlas seems to me to shew the height of land very nicely, at plate
17. It shews the river systems. Afterwards, this tract was made into a formal
colony. The Hudson's Bay Company exercised the power of life and death.
They appointed a judgfe — the present Judge Johnson or the Province of Quebec.
They called him Recorder, but he wcua a judge there. He is still living. That is
the place called Assiniboia. The headquarters were Fort Garry. The colony, as
they called it, was that limit confined on the south by the United States line.
Within those limits was the colony. He actually continued thereuntil it. was
taken possession of under the Dominion Act, after the Rupert's Land Act was
passed, and after the country was taken over by Canada.-f-

* The Attorney-General did not at all restrict himself to the height of land. See his argument, ante
pp. 97-106.

tThe Hudson's Bay and North- West Companies, which had, jointly, rights of exclusive trade under
the license of 1821, amalgamated in 1838, and continued conjointly in the enjoyment of their exclusive
rights, under the renewed license of that year ; but in the name of the Hudson's Bay Company only, thus
enabling them to wield, in addition to the rights conferred by the license, all the powers and privileges of
the charter. Tlie license covered as well t^e charter territories as the Indian territories; but no limits
having been defined, whether of Canada, or of the Indian or the Hudson's Bay Company's territories—
either within thembelves respectively, or as against each other— and Upper Canada, though claiming, not
then finding it actually necessary to exercise territorial jurisdiction in regions so remote from her settled
parts, the company assumed to exercise rights of ownership, administration of justice and government
held under the charter alone, in regions clearly beyond its scope, and wherein they either had no exclusive
privileges whatever or those only conferred by the Ticense, as the case might be. That neither the so called
district of Assiniboia, nor any portion of the Winnipeg basin, was embraced within the limits of the charter
is ^ear upon the evidence. The North* West had been in the actual occupation of France, an integral part of
Canada, and in 17G3 was ceded, with the other French possessions, to the Imperial Crown of Great Britain
and in 1791, by virtue of various acts of authority, was included, Ontario claimed, within the Province of
Upper Canada. (As to the reasons for the limitation, at the present day, of the western boundary of Ontario
to the Lake of the Woods, see note to the award, appendix A. hereto). To whatever category then, the region
might be assigned— territory of Upper Canada, or of the Indians, or of the Imperial Crown— it certainly was
not territory covered by the charter of the Hudson's Bay Company. The company were therefore there
exercising an usurped authority ; nor, in the case of Mr., now Judge, Johnson, does the manner of its exercise
appear to have been even in accord with the charter, which provides, not that a recorder or judge, but, ** that
the governor and his council, of the several and respective places where the said company shall have planta-
tions, forts, [etc.] . . within any of the countries . . hereby granted . . may ha ve power to judge all
persons . . . in all causes, whether civil or criminal, according to the laws of the Kingdom, and to
execute justice accordingly." tn hiw then Mr. Johnson had no authority whatsoever. It may be, although
there is no allusion to it in his evidence, that his real position was that of assessor, to sit with and advise
the governor and council whenever they were engaged in administering justice. It is to be remembered
th*t under the Acts of 1803 and 1821, the above provision of the charter was supplemented by (giving to
the Canadian courts jurisdiction, as well in the Hudson's Bay as in the Indian territories, with the necessary
machinery for its proper exercise, and that by the last mentioned Act the Crown reserved the power of
'erecting, should it be so advised, courts of record, etc., within the territories themselves. In the ex parte
viva voce, examination of Judge Johnson, referred to by counsel later on in the argument, the impression
is sought to be conveyed that the companjr was recognized by the Crown as rightly possessing the powers
cWmed by them in Assiniboia ; but the circumstances reliea upon wholly fail to establish this contention.
One reason for the despatch of troops to the point, is given by the witness himself, viz., the agitation in
connection with the Oregon Question, and the desirability of having the troops on hand in case of trouble
ensning, and another reason, that they were needed for protection from the Indians and the maintenance
of order. Bat besides this, it is to be presumed that the government, as in this case, would be prepared t

16 (B.) 241

IkGUMENT of MR. MCCARTHY, Q,C., re QUESTION OF BOUNDARY:

The Lord Chancellor. — Where is Fort Garry ?

Mr McCarthy, — Fort Garry is now Winnipeg. Then the history of Lord
Selkirk's colony is this. He commenced to colonize in 1808. The grant was made
in 1814.* He brought a number of people out from Scotland. Very shortly after
that, or about that same period, the traders from Montreal — the individual men
who had been trading, and who had been operating as rivals to one another — com-
bined, and they became an incorporated company.

Mr. MowAT. — It was long before that — half a century before.

Mr. McCarthy. — I will give you the exact date.

The Lord Chancellor. — Is it not the fact that the respective claims of those
companies were in controversy for a long time, and that the then Governor of
Canada did not very much favour Lord Selkirk's pretensions ?

Mr. McCarthy. — No, they were not in controversy to that extent. I accept
your Lordship's statement ; but all the Governor did was to accept neutrality.*
Your Lordship will see that at that time it was very much -doubted whether the
charter of the Hudson's Bay Company gave them a right to exclude others from
trading there. Every opinion I have seen concedes that the Hudson's Bay Com-
pany's grant of land was good. The contention they put forward, that they had
the exclusive right to trade, was in practise opposed by those men who afterwards
joined together and became the North-West Company, and the English author-
ities, the Governor- General, or his subordinates, were directed not to interfere m
that dispute. That was not a dispute about the territory. The North- West
Company had no grant of land. They were a company incorporated in the city
of Montreal, simply for trading purposes, and they went into the North- West and
traded. The Hudson's Bay Company said : You have no business to trade here ;
we are not merely the owners of the soil, but we have the exclusive right to
trade, and you are all trespassers ; and civil war ensued. Those disputes went
on from day to day, and in one battle the Hudson's Bay Company's governor,
Semple, and twenty-nine men, were killed. There was another fight at the Dalles,
which afterwards gave rise to the trial of De Reinhard for murder in the Pro-
vince of Quebec. All that the correspondence shews is, that the Govemor-Gteneral
was not to interfere to recognize Lord Selkirk's rights, nor the Hudson's Bay
rights, nor the North- West Company's rights.-f- He was to observe neutrality,

grant to any de facto settled commanitv, such as this one at Red River was, protection affainst the Indians,
were it required. Thns in 1816 a guard of regulars was even put at the disposal of the £arl of Selkirk, for
his protection in passing through the Indian country. On that occasion, the officer in charge was ofBetally
instiucted not to take part in the disputes then existing between the Earl and the North- West Company,
as each party was deemed equal in the view of the government (Joint App. 207) ; subsequently, in 1817«
the Earl having interfered with the trade and seized the property of the North- West Company, the Prince
Regent caused orders to be issued for a mutual restitution of all forts and property seized, and for the
removal of all interruptions to the freedom of trade (76. 204-5, tn/ra, note); in 1867, the Imperial law officers
pointed out the uncertainty regarding the company's boundaries (Joint App. 616) ; and as late as 1869,
Karl Granville, Secretary of tState for the Colonies, caused the company to be informed that : " At present
the very foundations of the company's title are not UQdi<«puted. The boundaries to its territories are open
to questions of which it is impossible to ignore the importance. "(76. 302). These utterances had all special
reference to the North- West.

Needless to suggest that the Imperial authorities were not likely to have been prepared, in Mr.
Johnson's time, to concede, ex partem without investigation or enquiry, or a decision of the Sovereign in
Council, the exclusive territorial pretensions put forward on behalf of the company in respect of Asainiboia
or any other section of the North- West.

* The grant, so called, to Lord Selkirk was in 1811.

fBut the Prince Regent, in 1817, commanded the Governor-General to issue a proclamation requiring
that, pending the adjudgment of the que««tion of right, each of the parties '* be restored to the poBsessi^ns
held by them previous to the commencement of the recent disputes," and '* the restitution of all forts,
buildings or trading stations (with the property which they contain) which may have been seized," and
** the removal of any blockade or impediment by which any part^r may have attempted to prevent or inter-
rupt the free passage of traders,or others of His Majesty's subjects, or the natives of the country, with
their merchandize, furs, provisions and other effects, throughout the lakes, rivers, roads, and every other

242

^^rr' -

THE LIMITS OF ASSINIBOIA.

because it was a proper question of law, ahd it was stated that the North- West
Company were brinp;ing the matter to the test of legal decision. Then, what fol-
lowed ? The Act of Petrliament of 1821 gave power to the government to give
an exclusive license to trade to any body corporate, or company, or person or per-
sons. That 'was the position of it. That license was renewed in 1838. It was
in 1821 it was first granted,* after the statute of that year, to the Hudson's
Bay Company, and to three gentlemen who represented the North- West Com-
pany. In 1838, that license was renewed to the Hudson's Bay Company alone,*
because the others had become shareholders in the Hudson's Bay Company. That
continued until 1857, and then it was becoming obvious that this country could
not be closed up by the Hudson's Bay Company against the advancing tide of
settlement coming from Canada on the east. Communications were opened up
between the British and Canadian governments, which finally led to the passaoje
of the Ruperts Land Act. which distinctly recognizes and incorporates, for the
purposes of that Act, and of that transfer, all that the Hudson's Ba^ Company
then possessed, or claimed, for the very purpose of settling this dispute as to
boundary.

So, here we find that the Hudson's Bay Company were de facto in pos-
session. We find that, at all events, they claimed it as I pointed out, in the
most solemn documents recognized by the authorities, and then the Act of Par-
liament was passed saying that Rupert's Land shall, "for the purposes of this Act,"
mean all that the company " held or claimed " at any time. I think the words
are as large as possible ; and the colony of Rupert's Land was added to the con-
federated provinces of Canada.^ That is, generally, the outline of the position we
take with regard to that. I am reaching that point gradually. What I was
going to refer to was the Acts of Parliament of 1803 and 1821. The Act of 1803
is to be found at page 406 of the Joint Appendix.

The Lord Chancellor. — I have been endeavouring to follow the limits of
the Hudson's Bay grant to Lord Selkirk, a.s stated at page 589, J and I cannot
make it out that it includes any country to the east of the Red River.

Mr. McCarthy. — Has your Lordship got down to the height of land ?

The Lord Chancellor. — Yes. It begins at a point on the western shore of
Lake Winnipeg.

Mr. McCarthy. — Perhaps my learned friend would admit it. [I'o Mr. MovxW] :
Do you not admit that the grant to Lord Selkirk goes down to Pigeon River —
the height of land, past Pigeon River ?

The Lord Chancellor. — Following the boundary as here described, it seems
clear that it does not.

Mr. McCarthy. — It goes down to the source of Lake Winnipeg. That is
what it says.

The Lord Chancellor. — The source of the Winnipeg River it means.

Mr. McCarthy. — It says : " meaning by such last named river the principal
branch of the waters which unite in the like Saginagas." That is the point.
That is close to Pigeon River.

Lord Aberdare. — That is exactly where the height of land comes in.

yisQt^ route or oommunioation heretofore used for the purposes of the fur trade in the interior of North
America, " etc.— all of which was aimed at the Hudson's Bay Company, or their grantee. Lord Selkirk, who
-only had perpetrated the aotn and violences here condemned. See the despatch ante, p. 162, note.

'Extracts from the licenses are printed anU, pp. 64, 65, notes.

t What was added to Canada was, not Rupert's Land alone, but the North- Western Territory and Rupert's
Land, and that without definition of the boundaries of either.

^Printed ante, p. 239, note f.

243

ARGUMENT OF MR. MCARTHY, Q.C , re QUESTION OF BOUNDARY:

The Lord Chancellor. — I cannot follow the limits. The limits eis they are
laid down are, first of all, beginning on the western shore of Lake Winnipeg, at
a certain point; then running due west to Lake Winnipegoosis ; then in a south-
erly direction through the lake.

Mr. McCarthy. — No, that is not the course. You still go wes£ward, only a
little bit south.

The Lord Chancellor :

'* Then in a southerly direction through the said lake so as to strike its western shore
in latitude 52 degrees ; then due west to the place where the parallel of 52 degrees north
latitude intersects the western branch of Red River, otherwise called Assiniboine."

I see that by the dotted line :

<< Then due south from that point of intersection to the height of land which sepft-
rates the waters running into Hudson's Bay from those of the Missouri and Mississippi
Rivera"

I find the height of land laid down :

" Then in an easterly direction, along the height of land, to the source of the River
Winnipic, (meaning by such last named river, the principal branch of the waters which
unite in the Lake Saginagas.)"

Now, the River Winnipeg, I should have supposed, would have been the river
which ran into the Lake Winnipeg, but supposing it does not, where is the river
that is mentioned ?

Lord Aberdare. — The River Winnipeg flows into Lake Winnipeg, immedi-
ately above the Red River, and comes out of the Lake of the Woods, which lake
itself is connected, by what flows through a series of lakes, with Lake Saginagas.

The Lord Chancellor. — You are brought to the source of the River
Winnipeg, which means, as I understand, in substance, the easterly branch of the
Red River.

Mr. McCarthy. — No.

Sir Robert Collier. — The River Winnipeg seems to rise in a very small
lake. [Their Lordships referred to the maps,]

The Lord President. — It would look as if the whole of that water com-
munication, from Saginagas, was included under that head. It all runs into it

The Lord Chancellor. — It was suggested that certain waters did unite in
that lake, Saginagas, and the principal branch of it is close to Pigeon River.

Mr. McCarthy. — The Ontario map marks it down. The line we put is only
to shew it more distinctly.

Mr. MowAT. — We have marked it correctly on our map.

Lord Aberdare. — These rivers often have a variety of names.

Mr. McCarthy. — It is not open to controversy, so far as the other side are
concerned. They have marked it on their own map.

Then, my Lord, I will recur again to the position of the Hudson's Bay
Company ; but I now wish to draw your Lordships* attention to the Acts, which
appear to me to have some little bearing with reference to the disputes at that
time.

The Lord Chancellor. — What Acts ?

Mr. McCarthy.— First, the Act of 1803.*

The Lord Chancellor. — You referred to that before.

* Imp. A.ct, 43 (leo. 3, cap. 138 (1803). An Act for extending the jurisdiction of the Courts of Jottioe
in the Provioce-s of Lower and Upper Canada, to the trial and punishment of persons flruilty of crimes and
offences within certain parts of North America adjoining to the said Provinces.

244

CASE OF BROWN AND BOUCHER, 1818, AS BEARING ON THE LIMITS.

Mr. McCarthy. — It was under that Act that the De Reinhard trial took
place, and the question in the De Reinhard trial, your Lordships will see, was
merely as ^o the due north line.

The Lord Chancellor. — That turns on the adoption, by the learned judge,
■of the line from the confluence of the Rivers Mississippi and Ohio. It' that is
not right, that decision ceases to be any authority. '

Mr. McCarthy. — As far as this goes, the only way it becomes important
of course is, that there was a trial in Quebec ot this offence committed under
that Act, assuming, of course, that it was outside the jurisdiction of Upper
Canada. Of course Quebec did not reach there. It is either Upper Canada, or
the Indian territory, and it was on the assumption that it was not in Upper
Canada. A similar trial took place in Upper Canada, which resulted in a verdict
of not guilty, and therefore there was no point in it beyond the one I am going
to speak of. That will be found at page 685 of the Joint Appendix.

The Lord Chancellor. — Was this a trial under the Act of 1803 ?

Mr. McCarthy. — Yes ; this was the case of Brown and Bovjcher, in 1818. It
commences at the foot of page 685, and the only importance of that case — and
it is important in that view — is, that if this was Upper Canada then the Crown
oflScer should not have prosecuted the case under the Act of 1803.*

The Lord Chancellor. — Was the precise spot where that question arose
fixed?

Mr. McCarthy. — It was a trial for the murder of Governor Semple, which
took place at the battle of Frog Plains.

The Lord ChanceV.lor. — Was the spot decided where the murder took place?

Mr. McCarthy. — It is dose to what is now Winnipeg.

The Lord Chancellor.— That would not affect it.

Mr. McCarthy. — Not if the award is taken as being anything, but your
Lordships, if I may say so, were dealing with it as if the award were of some
validity.

The Lord Chancellor. — Not the least in the world. The question is, what
is the true boundary ? It is immaterial, but we get any assistance from the
award we can.

Mr. McCarthy. — What I am pointing out is that if not, it makes no differ-
ence in our contention whether the statutable offence took place east or west of
the awarded line.

The Lord Chancellor. — That is to say, if you have established the fact
that the boundary is what you allege, whatever that may be, then it may be per-
fectly indifferent ; but the question we have to determine here L<*» whether or no
the boundary is one which gives to Ontario the whole or only part of what has
been given to Ontario. Then the place where this alleged murder took place is,
as I understand it, in what is admitted to be Manitoba.

Mr. McCarthy. — Your Lordship will pardon me. The question, as I under-
stand it now, is, if the award be invalid, what is the true boundary ?

The Lord Chancellor. — True. We have practically decided in your favour
the attempt to push the boundary of Canada indefinitely to the west, and you

* But Chief Justice Powell, in his Charge, expressed himself thus :—

" It only remains that we consider our jurisdiction connected with locality. To give us a right to try
them under the Act upon which they are indicted, €he offence must have been committed out of the limits
of this Province ; whether we have a right or not, I declare I am at a loss to decide. Mr. Attome3r-Gen-
eral has put in evidence the latitude and longitude of the Frog Plains, but he does not put in the evidence
whether this latitude and longitude is without or within the boundaries of Upper Canada, and I do not know
whether from 90° to \¥f or 150° form the western limit of Upper Canada, nor do I know whether a
place at that longitude, and having 49° or 49^^ north latitude, is within the Province of Upper Canada,
or beyond its boundaries."

245

ARGUMEfjT OF MR. MCCARTHY, Q.C., re QUESTION OF BOUNDARY :

may assume, I think — at least it is my impression, and I think the view of their
Lordships — that we shall not carry it further to the west than the award has
carried it. Whether we shall carry it so far must depend on the effect of the
argument.

Mr. McCarthy. — Perhaps your Lordship will allow me to state my position.
If the height of land is not the true line, then I fail to see — and I state, on my
part, that I fail to see — any evidence of where the true line is.

The Lord Chancellor.-^ We have got — and your attention was called to
this at the be^nning — certain boundaries mentioned in the Quebec Act, and in
the contemporaneous, or nearly contemporaneous, documents. We are in search
of those boundaries.

Mr. McCarthy. — If I may go back to the Quebec Act again, and assuming,,
in the view I am arguing for, that the true construction is to follow the Miss-
issippi River, then it en& at the territory granted to the Hudson's Bay Company,

The Lord Chancellor — Very likely ; and I quite follow the argument, that
having got to the head of the Mississippi River, striking north from that you
reach the boundar}' which you call the height of land. I quite understand that
argument, and will consider the weight to be attached to it ; but, any way, that
would exclude the alleged site of this particular murder.

Mr. McCarthy. — Between the place of the alleged murder, and the line of
the north-west angle, there is nothing in all the papers — that is what I venture
to assert — to shew any distinction, because the first commission does not speak
of the north-west angle at all. It follows the construction which, for the present
I am conceiving your Lordships are holding to be the proper wording of the Act^
that is up to the Hudson's Bay territory. So that there is no difference whether
it happened east or west of that particular line.*

The Lord Chancellor. — If it stopped there, then you might say that that
is true. I do not follow it, because it is quite clear — at least it seems to me at
present — that that would draw a line to the north, wherever that line stops>
which would be east of Manitoba.

Mr. McCarthy.— What I mean to say is, that there is no suggestion of the
southern boundary of the Hudson's Bay territory being at any point or place
where a line from the north of the Mississippi would strike or make any differ-
ence as to this particular offence.

The Lord Chancellor. — I cannot agree with you. Whether the line drawn
north from the head waters of the Mississippi strikes what you call the height
of land, or whether it continues further north, any way it would cut off this par-
ticular spot to the west.

Mr. McCarthy. — If it goes north, of course.*

The Lord Chancellor. — Either way, this particular spot would be to the
west.

Mr. McCarthy. — But what I said, and I think your Lordship agreed in that
contention, was, that it was the southern boundary of the Hudson's Bay land that
we are endeavouring to find. I say there is no suggestion of any southern
boundary of the Hudson's Bay land which makes any difference whether the
offence was committed to the east or west of the north-west angle ot the Lake
of the Woods.*

The Lord Chancellor. — We are endeavouring to find the point where the
line mentioned in the Quebec Act would strike the southern boundary.

* The commission of 1786 {ante p. 44) carried the southern boundary of Quebec, and therefore ctf Upper
Canada, through and beyond the heif^ht of land, as far west at least as the most north-west^un point of the
Lake of the Woods, and consequently the southern boundary of the company's territory would have, on
that authority alone, to be looked for somewhat to the northward of that point.

246

THE IMPERfAL ACTS OF 1803 AND 1821.

Mr. McCarthy. — We have to find that, to get the point There is nothing
to shew that there is any point of the Hudson's Bay territory that could be
struck, if it be not the height of land, where it would make any difference
whether this offence was committed east, or west, of the north-west angle, and
therefore, I submit it is an authority, where we find a court of Upper Canada
trying an offence committed there, at that date, not upon their own law, but
under the Act of 1803.* It did not require to be decided.

The Lord Chancellor. — That is begging the whole question.

Mr. McCarthy. — No, my Lord: Perhaps I do not make myself clear. What
I mean is this — is that in Upper Canada ?

The Lord Chancellor. — The thing is, that you assume that it was not
Upper Canada, if that is in your favour — that what was then Manitoba is not
Upper Canada.

Mr. McCarthy. — ^What I am endeavouring to point out to your Lordships is^
that, in point of principle, there was no distinction between the land fiwimitted to
be Manitoba and the land immediately to the east of that.

The Lord Chancellor. — You cannot make out that because upon the Mani-
toba territory a certain murder is committed it is held not to be within Ontario.

Mr. McCarthy. — It is only a further fact.

Now, my Lords, I have gone over the whole history, and what I submit is,
that there is nothing, anywhere, which would enable a survwor to draw a line
that would strike the north-west angle of the Lake of the Woods and join that
which is the southern boundary of Hudson's Bay.f

Sir Montague Smith. — Can you have it much more than that the whole of
what is admitted to be Manitoba is admitted not to be Canada.

Mr. McCarthy. — I only want it as the principle. It is not the territory^
The point I desired to make was this —

Sir Montague Smith.— I quite understand you. You say it proves that
this part was not Canada, and proving that that is out of Canada, we should
come to the conclusion that that north-west angle is not in Canada, because the
line must be taken as the watershed. It goes no further than that.

Mr. McCarthy. — I do not contend that it does.

Then I come to the Act of 1821, which your Lordships will see at page 417t
of the Joint Appendix. That was an Act having a two-fold object. When the
Act of 1803 was passed, it was intended to give jurisdiction to the courts of
Canada over all offences outside the limits of either of the provinces ; apparently
also, to include the Hudson's Bay territory. Between 1803 and 1821, this diffi-
culty suggested itself : By the charter to the Hudson's Bay Comp«Miy they had
courts, and power to constitute courts, and they had constituted court*, and the
difficulty that suggested itself was — had this Act of 1803 sufficiently and explicitly
declared that the intention of Parliament was that the Canadian courts should
have jurisdiction over offences arising in that territory ? For that purpose the
doubt was cured, and then it in point of fact acknowledges — which I need not
trouble your Lordships with after what your Lordship has said — the Hudson's
Bay Company's rights in a certain sense, and finally it goes on to say that even
though offences may be committed within the jurisdiction of the Hudson's Bay

*The question of jurisdiction arose, and the Court was doubtful of its own powers, the Chief Justice
remarking : *' Whether we have a right or not, I declare I am at a loss to decide," and the jury were directed,
in consequence, to find, in the event of the guilt of the prisoner being established, a special verdict in respect
of the boundaries, to this effect : ** We cannot see, from any evidenoe before us, what are the limits of
Upper Canada." The trial resulted in a verdict of not guilty, and the question of the limits did not there-
fore reguire to be pursued any further.

fSee atUe^ p. 246, note.

^Imp. Act, 1-2 €^o. 4, cap. 66(1821). An Act for regula^n^ the Fur Trade, and establishing a
Criminal and Civil Jurisdiction within certain parts of North America.

247

ARGUMENT OF MR. M'CARTHY, Q.C, re QUESTION OF BOUNDARY:

Company's lands, that nevertheless they shall be triable under the Act of 1803 ;
and it also deals with the iur trade. The recital there is not unimportant :

** Whereas the competition in the fur trade between the Governor and Company of
Adventurers of England trading into Hudson'^ Bay, and certain associations of persons,
trading under the name of * The North- West Company of Montreal,' has been found, for
some years past, to be productive of great inconvenience and loss."

and then it goes on to describe that, and the feuds that took place between them :

" And whereas liiany breaches of the peace, and violence, extending to the loss of lives,
and the destruction of considerable property, have continually occurred, therein : And
whereas, for remedy of such evils, it is expedient and necessary that some more effectual
regulations should be established, for the apprehending, securing and bringing to justice
all persons committing such offences,"

and so on. Then it recites the Act of 1803, and then the enacting clause is, that

** It shall be lawful for His Majesty, his heirs or successors, to make grants, or give
his Royal license, under the hand and seal of one of His Majesty's Principal Secretaries of
State, to any body corporate, or company, or person, or persons, of or for the exclusive
privilege of trading with the Indians in all such parts of North America as shall be
specified in any such grants or licenses respectively, not being pait of the lands or terri-
tories heretofore granted to the said Governor and Company of Adventurers of England
trading to Hudson's Bay,* and not being part of any of His Majesty's provinces in North
America, or of any lands or territories belonging to the United States of America, and
all such grants and licenses shall be good,. valid and effectual,"

a,nd so on. Then :

'* Provided always, and be it further enacted, that no such grant or license, made
or given by His Majesty, his heirs or si^ccessors, of any such exclusive privileges of tradings
with the Indians in such parts of North America as aforesaid, shall be made or given for
any longer period than twenty-one years, and no rent shall be required or demanded for
or in respect of any such grant or license, or any privileges given thereby, under the pro-
visions of this Act, for the first period of twenty-one years."

And then there is something more, with reference to rents. Then the third
section says :

** That from and after the passing of this Act, the Governor and Company of Adven-
turers trading to Hudson's Bay, and every body corporate, and company, and person to
whom every such grant or license shall be mads or given as aforesaid, shall respectively
keep accurate registers of all persons in their employ in any part of North America, and
shall, once in each year, return to His Majesty's Secretary of State accurate duplicate
of such register, and shall also enter into such security as shall be required by His
Majesty, for the due execution of all processes, criminal and civil, as well within the
territories included in any such grant as within those granted by charter to the G-ovemor
and Company of Adventurers trading to Hudson's Bay, and for the producing or deliver-
ing into safe custody, for purposes of trial, of all persons in their employ, or acting under
their authority, who shall be charged with any criminal offence."

Then it speaks of the convention between His Majesty and the United States,
which does not appear to me to be important, and of the other Acts with regard
to that, which were passed for the trial of offenders. The first Act, of 1803, ^ave

* It is somewhat Btrange that whilst the Act thus provides for excepting the Hudson's Bay Company's
territories from the proposed license, the license itnelf makes no such exception, and covers therefore as weU
the Company's a<} the Indian territories. Was this done with the object of curing the suggested
invalidity of the Company's monopoly of trade under the charter ?

248

ROYAL LICENSE OF EXCLUSIVE TRADE, TO THE N. W. CO. AND H. B. CO., JOINTLY.

power to issue commiesions, and under that Act one of the justices of the peace
was Lo^d Selkirk. That is, they had power to grant commissions, under the Act
of 1803, for the purpose of apprehending offenders, in order to permit of their
trial under that Act in the courts of Canada, and under that Act Lord Selkirk,
and all the principal men of the Hudson's Bay Company, were appointed magis-
trates and justices of the peace.

Now follows the license, at page 421, and it recites the Act which I hav^
just partly read to your Lordships, and the powers of the Act. At page 422,
line 22, it says :

** And whereas the said Governor and Oompanj of Adventurers of England trading
into Hudson's Bay, and certain associations of persons, trading under the name of the
North- West Oompany, of Montreal, have respectively extended the fur trade over many
parts of North America which had not heen before explored : And whereas the competition
in the said trade has been found for some years past to be productive of great incon-
venience and loss, not only to the said company and associations, but to the said trade in
general, and also of great injury to the native Indians and of other persons our subjects :
And whereas the said Governor and Company of Adventurers of England trading into
Hudson's Bay, and William McGiUivray, of Montreal, in the Province of Lower Canada,
Esquire," — and so on, naming tbem — ** have represented to us that they have entered
into an agreement, on the 26th day of March last, for putting an end to the said com-
petition, and carrying on the said trade for twenty-one years, commencing with the outfit
of 1821, and ending with the returns of 1841, to be carried on in the name of the said
Governor and Company exclusively ; And whereas the said Governor and Company and
William McGiUivray, Simon McGillivray and Edward EUice, have humbly besought us
to make a grant, and give our Royal License to them jointly, of and for the exclusive'
privilege of trading with the Indians in North America, under the restrictions and upon
the terms and conditions specified in the said recited Act, Now, know ye, that we^ being
desirous of encouraging the said trade and remedying the evils which have arisen from
the competition which has heretofore existed therein, do grant and give our Royal
License, under the hand and seal of one of oar Principal Secretaries of State, to the said
Governor and Company, and William McGillivray, Simon McGillivray and Edward
Ellice, for the exclusive privilege of trading with the Indians in all such parts of North
America, to the northward and westward of the lands and territories belonging to the
United States of America as shall not form part of any of our provinces in North
America, or of any lands or territories belonging to the said United States of America,
or to any European government, state or power ; and we do by these presents give, grant
and secure to the said Governor and Company, William McGiUivray, Simon McGillivray
and Edward Ellice, jointly, the sole and exclusive privilege, for the fall period of twenty-
one years from the date of this our grant, of trading with the Indians in all such parts
of North America as aforesaid."

The Lord Chancellor.— What is it you rely upon there ?

Mr. McCarthy. — I rely upon that as an adoption by Parliament and the
Government, of the agreement putting an end to competition between the Hud-
son a Bay Company and the North- West Company, who were the only persons
disputing the right of the Hudson's Bay Company to the country which they
claimed under their charter,* and a license is granted thereupon to the united
bodies.

*Thiri statement, taken by itself, might prove misleading. For the North- West Company, at the time
referred to, was not what is ordinarily understood by the term "company " : on the contrary it embraced.
Id one stupendous aggregation, the interests of all the British and French-Canadian traders, whether indivi-
duals or corporations, (other than the Hudson's Bay Company,) who had been doing business in those
regiouH in succession to the old French explorers, many of whose posts they continued to keep. The Com-
pany is desciibed in the Imperial Act of 1821, quoted in the text, as ** certain associations of persons, trading
under the name of *The North- West Company of Montreal.'" It obtained a transfer of the King's Posts

249

^r-

ARGUMENT OF MR. MCCARTHY, Q.C., re QUESTION Ot BOUNDARY :

The Lord Chancellor. — That is :

*' For the exclusive privilege of trading with the Indiana in all such parts of North
A^merica to the northward and westward of the lands and territories belonging to the
United States of America as shall not form part of any of our provinces in North
America."

How that tends to determine whether the particular part in dispute does or does
not form part, I do not see.

Mr. McCarthy. — It goes perhaps more to the other point, as to the rights of
the Hudson's Bay Company. That was renewed in 1838, as your Lordships will
find on the next page, 423, to the Hudson's Bay Company alone, for twenty-one
years.

Sir Egbert Collier. — If that goes no further than this, it is not necessary
to read it.

Mr. McCarthy. — I am not going to read it. It is to the company, instea^l
of to the company and others.* Then the covenant by the Hudson's Bay
Company to perform their part is on the following page.

Now, my Lords, pausing here for a moment m the history of the Hudson's
Bay Company, I come back to endeavor to answer the arguments advanced by
my learned friend. Your Lordships being aatisfied as to the legality of the
Hudson's Bay Company's charter, as to which I have several authorities, and the
recognition of the dbarter in Acts of Parliament and by the British Government^
in one case even in a treaty between them and the United States —

Sir BoBERT Collier. — You may assume that for the purpose of the argu-
ment.

Mr. McCarthy. — Then, the only point that it appears to me I have to
answer is this, up to this stage ; and that is the contention advanced by my <
learned friend, Mr. Mowat, and repeated by the learned counsel who followed him^
that the trespassing, as we call it— the going upon this intermediate country, from
Fort William westward, by the French, from 1719f upwards — ^had the effect
of limiting and contracting what otherwise would be the measure of the lands
granted to the Hudson's Bay Company. I deny, as a proposition of law, that
that would be the proper conclusion to draw. There was the grant, in 1670, which,
for the purpose of the British territory, so far as the Crown of Great Britain and
the subjects of Great Britain are concerned, is, of its own strength, sufficient to
grant all that is therein contained.| Although it may not have been of binding

from the Grown, and with them, access to Hudson's Bay. Its operations extended from the Atlantic coast
of Labrador to the Pacific Ocean and the confines of Alaska ; from the United States boundary to the
Arctic. Its ramifications covered the whole territory, and its settled posts numbered three times as many
as those of the Hudson's Bay Company. (See post, p. 292.) The ** disputing the right of the Hudson's Bay
Company to the country," by the North-West Company, is therefore to be taken aa a disputing it by every
interest outside the Hudson's Bay Company itself. The British Government also disputed it by disapprov-
ing the exclusive pretensions, unless they were established before the legal tribunals. (See atUc, p. 161, and
p. 162, note.) The people of the Red Kiver disputed it, and urged their views upon the Imperial authori-
ties. The Province of Canada disputed it and was largely instrumental in inducing the final and permanent
settlement of the whole question.

* But it is recited that the company had '* acquired to themselves all the rights and interests " of the
gentlemen who represented the North-West Company. See extracts ante^ p. 65, note* ; and