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Correspondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario online

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if the Charter be in this respect valid, have been unnecessary.

The French Government, it appears, would not agree to the proposal which would
have b'mited them to the 49th parallel. Colonel Bladen, one of the British Commis-
sioners under the Treaty of Utrecht, wrote from Paris in 1719 in reference thereto : " I
already see some difficulty in the execution of this affair, there being at least the differ-
ence of two degrees between the last French maps and that which the Company delivered
us." No settlement of the boundary could be arrived at.

If the later claim of territorial limits had been advanced during this negotiation,
there can be no doubt it would have been resisted even more strenuously than the effort
to make the 49th parallel the boundary was, not merely by contending that the territory
so claimed formed part of Canada, and had been treated as such by the French long
before 1670, but also that the French King had exercised an act of disposition of them, of
the same nature as that under which the Hudson's Bay Company claim, by making them
the subject of a Charter to a Company under the Sieur de Caen's name, and after the
dissolution of that Company had, in i 627, organized a new Company, to which he conceded
the entire country called Canada. And this was before the Treaty of St. Germain-en-
Laye, by which the English restored Canada to the French. In 1663, this Company sur-
rendered their Charter, and the King, by an edict of March in that year, established a
Council for administration of affairs in die colony, and nominated a Qovemor ; and about
1665, Monsieur Talon, the Intendant of Canada, despatched parties to penetrate into and
explore the country to the west and north-west, and in 1671 he reported from Quebec that
the " Sieur de Lusson is returned, after having advanced as far as 500 leagues from here,
and planted the cross, and set up the King's arms in presence of seventeen Indian nations
assembled on the occasion from all parts, all of whom voluntarily submitted themselves to
the dominion of His Majesty, whom alone they r^;ard as their sovereign protector."

The French kept continually advancing forts and trading posts in the country,, which
they claimed to be part of Canada ; not merely up the Saguenay Biver towards James'
Bay, but towards and into the territory now in question, in parts and places to which the
Hudson's Bay Company had not penetrated when danada was ceded to Great Britain in
1768, nor for many years afterwards.* They had posts at Lake St Anne, called by the
older geographers Alenimipigon ; at the Lake of the Woods ; Lake Winnipeg ; and two,

* In the evidence given by the Honourable William M'Gillivray, on one of the North- West trials at
York (now Toronto)^ 1818, he stated that there were ne Hudson Bay traders established in the Indian
«ounti7 about Lake WinnipM^ or the Red River for eight or nine years after he had been used (as a partner
in the North- West Company) to trade in that oountry.



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PAPER OF CHIEF JUSTICE DRAPER, 28tH MAY, 1867. 37



it is believed, on the Saskatchewan, which are referred to by Sir Alexander McKenzie m
his aoooont of his discoveries.'^

Enough, it is hoped, has been stated to show that the limits of the Hudson's Ba^
Company's territory are as open to question now as they have ever been, and that when,
called upon to define them in the last century, they did not advance the claim now set up
by them ; and that even when they were defining the boundary which they desired to
obtain under the Treaty of Utrecht, at a period most favourable for them, they designated
one inconsistent with their present pretensions, and which, if it had been accepted by
France, would have left no trifling portion of the territory as part of the Province of
Oanada.

So far as has been ascertained, the claim to all the country the waters of which ran
into Hudson's Bay, was not advanced until the time that the Company took the opinions-
of the late Sir Samuel Romilly, Messrs. Cruise, Holroyd, Scarlett, and BelL Without
presuming in the slightest degree to question the high authority of the eminent men
Above named, it may be observed that Sir Arthur Piggott, Sergeant* Spankie, Sir Yicary
Gibbs, Mr. Bearcroft, and Mr. (now Lord) Brougham, took a widely different view of the
legal validity of the Charter, as well as regards the indefinite nature of the territorial grant,
as in other important particulars.

Of the very serious bearing of this question on the interests of Canada there can be
no doubt. By the Act of 1774, the Province of Quebec is to '* extend westward U> the
banks of the Mississippi, and northward to the southern boundary of the territory granted
to the Merchants Adventurers of England, trading to Hudson's Bay."

And in the division of the Provinces under the statute of 1791, the line waa declared
to ran due north from Lake Temisoaming " to the boundary line of Hudson's Bay ; " and
the Upper Province is declared to consist of or include all that part of Canada lying '* to
tlie westward and southward of the said line."

The union of the Provinces has given to Canada the boundaries which the two sepa-
rate Provinces of Upper and Lower Canada had; the northern boundary being the
territory granted to the Hudson's Bay Company.!

It is now becoming of infinite importance to the Province of Canada to know
accurately where that boundary is. Plans for internal communication connected with
schemes for agricultural settlements, and for opening new fields for commercial enter-
prises, are all more or less dependent upon or affected by this question, and it is to Her
Majesty's Government alone that the people of Canada can look for a solution of it.
The rights of the Hudson's Bay Company, whatever they may be, are derived from the
Crown ; the Province of Canada has its boundaries assigned by the same authority ; and
now that it appears to be indispensable that those boundaries should be settled, and the
troe limits of Canada ascertained, it is to Her Majesty's Government that the Province
appeals to take such steps as in its wisdom are deemed fitting or necessary to have this
important question set at rest.



Paper Rslativb to Canadian Boundabibs, dblivbrbd bt Chief Justice Drapbb to
THE House op Commons Committee, May 28th, 1857.1

On the 25th January, 1696-7, not long before the Treaty of Ryswiek (which was
signed on the 20th September, 1697), the Hudson's Bay Company expressed their *'de-
me that whenever there should be a treaty of peace between the Crowns of England and
France, that the French may not travel or drive any trade beyond the midway betwixt
Canada and Albany Fort, which we reckon to be within the bounds of our Charter."

* [We have now authentic record of their having had at least four posts on the Saskatchewan, of which
«iie at its sonroe. They had also posts on Rainy Luce ; on the Red River ; on a branch of the Assiniboine ;
ad on Lake Danphin.— G. £. L.]

t [Since this was written evidence has been obtained establbhing the shore line of Hudson's Bay as
Ibsnco'them boundary of Upper Canada.— G. £. L.]

t Report Select Committee House of Commons (Eng.) on the Hudaon's Bay Company, 1867, p. 37&



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38 PAPER OF CHIEF JUSTICE DRAPER, 28tH MAY, 1857.



The 8th Article of the Treaty of Rjswick shows that the French at that time set
up a claim of right to Hudson's Bay, though that claim was abandoned at the peace of
Utrecht,* and was never set up afterwards.

In 1687, James the Second declared to the French Oommissioners, MM. Barillon
and Bonrepos, that having maturely considered his own right, and the right of his sub-
jects, to the whole Bay and Straits of Hudson, and having been also informed of the
reasons alleged on the part of the French to justify their late proceedings in seizing those
forts (Fort Nelson and Fort Charles),! which for many years past have been poss^sed by
the English, and in committing several other acts of hostility, to the very great damage
of the English Company of Hudson's Bay, His Majesty, upon the whole matter, did
consider the said Company well founded in their demands, and, therefore, did insist upon
his own right and the right of his subjects to the whole Bay and Straits of Hudson, and
to the sole trade thereof."

" The grants of the French King signify nothing to another prince his right, and
they may name what they will in their grants, places, known or unknown, but nobody is
80 weak as to think that anything passeth by those grants but what the King is right-
fully and truly possessed of or entitled to, for nemo dat quod non habet is a maxim
understood of all ; but whereas the French would have no bounds to Canada to the
northward, nor, indeed, to any parts of their dominions in the world if they could." —
Extract from the Reply of the Hudson's Bay Company to the French Answer . left with
the English Commissioners, 5th June, 1699, under Treaty of Ryswick.

In 1687 there were discussions between the English and fVench respecting the right
to the Bay and Straits, in which it was, among other things, submitted on the part of
the Hudson's Bay Company as follows : " It shall not be the fault of the Company of
Hudson's Bay, if their agents and those of the Company of Canada do not keep within
their respective bounds, the one pretending only to the trade of the Bay and Straits
abovementioned, whilst the other keeps to that of Canada ; that the forts, habitations,
factories and establishments of the English Company be restored, and their limits made
good, as the first discoverers, possessors and traders thither."

The Company having already waived the establishment of a right to Hudson's Bay
and Straits *' from the mere grant and concessions of the King, which, indeed, cannot
operate to the prejudice of others that have the right of discovery and continued possession
on their side, it is again averred that His Majesty's subjects only are possessed of such a
right to the coasts, bays, and straits of Hudson.

" The Hudson's Bay Company having made out His Majesty's right and title to all
the bay within Hudson's Straits, with the rivers, lakes and creeks therein, and the lands
and territories thereto adjoining, in which is comprehended Port Nelson as part of the
whole."

10th July, 1700, — the Hudson's Bay Company proposed the following limits
between themselves and the French, in case of an exchange of places, ** and that they can-
not obtain the whole of the Straits and Bay which of right belongs to them."

1. That the French be limited not to trade nor build any factory, etc., beyond the
bounds of 53" N. or Albany River, to the northward, on the west main or coast^ and,
beyond Rupert's River, to the northward on the east main or coast.

2. The English shall be obliged not to trade nor build any factory, eta, beyond the
aforesaid latitude of 53** N. or Albany River, or beyond Rupert's River, south-east towards
Canada, on any land which belongs to the Hudson's Bay Company.

3. As likewise that neither the French nor English shall at any time hereafter
extend their bounds contrary to the aforesaid limitations, . . . which the French may
very reasonably comply with, for that they by such limitations will have all the countiy
south-eastward betwixt Albany Fort and Canada to themselves, which is not only the
best and most fertile part, but also a much larger tract of land than can be supposed to

* [They still maintained their original right to the Bay as having been within the limits of Canada, bat
were compelled to cede it as a result of the reverses they had suffered in the wars of £urope.->G. £. L.]

t [This should read, *'in seizing three forts (Albany Fort^ Moose Fort, and Fort Charles or Rupert)."
See the Company's memorial to Queen Anne of 1711.— 6. E. L.1



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PAPER OF CHIEF JUSTICB DRAPER, 28TH MAY, 1867.



lie to ihe northward, and the Company deprived of that which was always their undoubted
right

By this document it appears the French were insisting on having the limits settled
between York and Albany Fort, as in the latitude of 55^ or thereabouts.

22nd January, 1701-2, the Lords of Trade and Plantations asked the Company to say
^ whether, in case the French cannot be prevailed with to consent to the settlement pro-
posed on the 10th July preceding by the Company, they will not consent that the limits
on the east side of the Bay be the latitude of 52^*^." This proposal would have given the
East Main River and Rupert's River to Canada.

On the 29th January, the Hudson's Bay Company alter their proposals, offering the
boandary on the east main or coast, to be Hudson's River, vulgarly called Canute, or
Canuse River (which I take to be the river now marked on the maps as the East Main
River) ; but, they add, should the French refuse the limits now proposed by the Company,
the Company think themselves not bound by this or any former concession of the like
nature, but must (as they have always done) insist upon their prior and undoubted ri^t to
the whole Bay and Straits of Hudson, which the French never yet would strictly dispute,
or suffer to be examined into (as knowing the weakness of their claim), though the first
step in the 8th Article of the Treaty of Ryswick directs the doing of it. If either pro-
posal had been accepted, the French would have had access to James' Bay. The first pro-
position left them Moose River ; the second appears to have given up Rupert's River.

In February, 1711-12, prior to the Treaty of Utrecht, the Hudson's Bay Company^
proposed that the limits between them and the French in Canada should begin " at Grim-
mii^gton's Island, or Cape Perdrix, in the latitude of 58J' north, whi^h they desire may
be ^e boundary between the English and French, on the coast of Labraidor, towards
Bapert's Land, on the East Main, and Nova Britannia on the French River." That a
line be drawn from Cape Perdrix to the Great Lake Mistassing, dividing the same into
two parts, beyond which line the French were not to pass to the north, nor the English
to the south.

In ^August, 1714, they renewed their application for the settlement of the limits,
adding to their former proposition, that from the Lake Mistassing a line should run
sou^-westward into 49* north latitude, and that such latitude be the limit, and that the
French do not come to the north, or the English to the south of the boundary.

In August, 1719, in a memorial, they say that " the surrender of the Straits and
Bay aforesaid has been made according to the tenure of the Treaty, at least in such man-
ner Uiat the Company acquiesced therein, and have nothing to object or desire further on
that head." But they even then complained that since the conclusion of the peace, vui.,
in 1715, ** the French had made a settlement at the head of Albany River, upon which
▼ery river our principal factory is settled, whereby they intercept the Indian trade from
coming to the factories ; and will, in time, utterly ruin the trade, if not prevented. It is
therefore proposed and desired, that a boundary or dividend line may be drawn so as
to exclude the French from coming anywhere to the northward of the latitude of 49*,
except on the coast of Labrador ; unless this is done, the Company's factories at the bottom
of Hudson's Bay cannot be secure, or their trade preserved." This shows that the Com-
pany there sought to establish an arbitrary boundary, and that, the object of it was to
secure the fur trade from the French. ♦

The English Commissioners made the demand to have limits established according to
the prayer of the Hudson's Bay Company, and for the giving up the new fort erected by
the French ; adding a demand that the French should make no establishments on any of
the rivers which discharged themselves into Hudson's Bay ; and that the entire course of
the navigation of these rivers should be left free to the Company, and to such of the
Iiidians as desired to trade with them.

The precise terms of the instructions to the Commissioners hardly seem to have con-
templated the latter part of the demand, for they (the instructions of 3rd September, 1719)
merely designate the boundaries beyond which the French and English respectively are
^ to cross. They contain this passage, however : ^ But you are to take especial care in
wording such articles as shall be agreed upon with the Commissioners of His Modt ChriK-



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40 EVIDENCE OP MB. WILLIAK M*D. DAWSON, 1857.



tian Majesty upon this head, that the said boundaries be understood to regard the trade of
the Hudson's Bay Company only."

Colonel Bladen, on the 7th November, 1719, wrote to the Lords of Trade that the
English Commissioners would that day deliver in the demand, and that he foresaw
^' some difficulty in the execution of this affiiir, there being at least the difference of two
degrees between the last French maps and that which the Company delivered us, as youv
Lordship will perceive by the carte I send you herewith."

Colonel Bladen was right After receiving the English demands, the French Com-
missioners, the Mar6chal d'£str6es and the Abb^ Dubois, never met the English Commis-
sioners again, and all the instances of the English Ambassadors failed to procure a renewal
of the conferences.

The Company were again called upon, on the 25th July, 1750, to lay before the Lords of
Trade an account of the Hmits and boundaries of the territory granted to them. They
replied, among other things, that the said Straits and Bay '' are now so well known, that
it is apprehended they stand in no need of any particular description than by the chart or
map herewith delivered ; and the limits or boundaries of the lands and countries lying:
round the same, comprised, as your memorialists conceive, in the same grant, are as fol-
lows, that is to say : all the lands lying on the east side or coast of the said Bay, and
extending from the Bay easward to the Atlantic Ocean and Davis' Strait, and the line here-
after mentioned as the east and south-eastern boundaries of the said Company's territories;
and towards the north, all the lands that lie at the north end, or on the north side or
coast of the said Bay, and extending from the Bay northwards to the utmost limits of the
lands ; then towards the North Pole ; but where or how these lands terminate is hitherto
unknown. And towards the west, all the lands that lie on the west side or coast of the*
said Bay, and extending from the said Bay westward to the utmost limits of those lands ;
but where or how these lands terminfite to the westward is also unknown, though pro-
bably it will be found they terminate on the Great South Sea, and towards the south,'^
they propose the line already set out by them, before and soon after the Treaty of Utrecht
stating that the Commissioners under that treaty were never able to bring the settlement
of the said limits to a final conclusion ; but they urged that the limits of the territories
granted to them, and of the places appertaining to the French, should be settled upon the
footing above mentioned.

EviDBNOE OF Mr. William MoD. Dawson, bbfobb Cokmittbb of thb LBoisLATr^x.

ASSBMBLT OF CANADA, 8tH JuKB, 1857.*

I am the head of the Woods and Forests Branch of the Crown Land Department,
and reside in Toronto ; I never had any difficulty or quarrel with any one connected with
the Hudson's Bay Company.

Q, — Have you particularly studied the titles under which the Hudson's Bay Company^
claim certain rights of soil, jurisdiction and trade, on this continent 1

A. — I have made t&is subject a particular object of study for many years, and have
omitted no opportunity of acquiring information upon it, and although with more time-
than I could devote to it, and a more exteiyied research, much additional information^
could be obtained, I believe that it would only tend to fill up details, and strengthen
and confirm the results of the investigation I hEtve already made.

Q. — Will you state to the Committee the result of your investigation?

A. — :The result of my investigation has been to demonstrate that in the Red River
and Saskatchewan countries, the Hudson's Bay Company have no right or title whatever^
except what they have in common with other British subjects. Wherever they have any
possession or occupancy there they are simply squatters, the same as they are at Fort
William, La Cloche, Lake Nipissing, or any of their other posts in Canada.

The Governmental attributes they claim in that country are a fiction, and their
exercise a palpable infraction of law.



♦ Sess. Papers, Can., 1857, Vol. 15, Na 17.

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EVIDENCB OF MR. WILLIAM M'D. DAWSON, 1857. 41



I am no enemy to the Hudson's Bay Company, nor to any indmdual connected with
it, and I think that there are, at the present day, extenuating circumstances to justify
a great degree of forbearance towards them, when their position comes to be dealt witli
eidier judicially or legislatively.

Illegal as it undoubtedly is, their present position is a sort of moral necessity with
theuL The first attempt of the Company, under Lord Selkirk's regime, to assume that
position, was no doubt a monstrous usurpation, but it was defeated, though not till it
had caused much bloodshed.

The Hudson's Bay Company and the Canadian traders (North-West Company) after-
wards amalgamated, and then, in pursuance of a policy most dexterously planned and
executed, carried the trade away back into the interior, from the very shores of the
lakes and rivers adjoining the settlements of Canada, and took it round by Hudson's
Bay to keep it out of view, to lessen the chances of a new opposition springing up.

They also gave out that it was their country — a fiction which the license of exclusive
trade for the Indian territories helped to maintain — and they industriously published and
orculated maps of it, as such, which being copied into other maps and geographical
works, strengUiened the delusion till it became very general indeed.

When, therefore, by this means they had been left alone in these remote territories,
without any intercourse with the organized tribunals or legitimate government of the
country — an intercourse which their monetary interests forbcuie them to seek — it became
a sort of necessity for them to establish a jurisdiction of their own.

It is true that they have gone to an extreme in this matter which it would be
difficult to excuse ; but in such a case it is hard to take the first step and bo able to stop
afterwards, more particularly when it consists in a total antagonism to existing law, or
rather in assuming to themselves the functions of constituted authorities where they
legally possess only the right of subjects and traders, in common with the rest of the
community.

But having once assumed and exercised such powers, and thereby made themselves
amenable to the laws of the country, it is not to be wondered at that they had sought to
justify it on the pretence that they possess those powers of government which, doubtful
at best, even in those localities where they have some show of title, are without the
least foundation on the banks of the Saskatchewan or Red Bivers.

In thus palliating the tenacity with which the Hudson's Bay Company cling to their
fictitious title, I may be accused of being their apologist, but I am so only to the extent
that, at the present day, their position has become a necessity ; for, in so far as they have
affected the rights of others, they have rendered themselves liable to the most serious con-
sequences, should any party aggrieved see fit to appeal to the legal tribunals of the country,
and it is but natural to suppose that they will endeavour to maintain the fiction long
enough to enable them to efiect a compromise.

Any number of individuals might associate themselves together for mining, huntings
or agriculture, say at Lake Nipissing or on Anticosti, and finding no l^;al tribunals there,
or within their reach, they might establish a jurisdiction of their own and execute their
judgments. Circumstances may be imagined in which such a course, if resulting from
the necessity of their position, might be morally right though legally wrong, but nothing
short of an act of indemnity could save them from the consequences if pursued at law,
by those whose rights they had affected.

Such is exactly the position of the Hudson's Bay Company at the Red River, and
for the judgments they have rendered there they are undoubtedly amenable to be judged
by the legally constituted tribunals of this country ; and those whom they have condemned



Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 10 of 86)