Ontario. Legislative Assembly.

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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INSTRUCTIONS TO CHIEF JUSTICE DRAPER, 1857.



against violent seizure or irregular settlement, until the advancing tide of emigrants
from Canada and the United Kingdom may fairly flow into them, and occupy them as
subjects of the Queen on behalf of the British Empire.

" With these objects in view, it is especially important that Her Majesty's Govern-
ment should guard any renewal of a license of occupation (should such be determined on),
or any recognition of rights in the Company, by such stipulations as will cause such
license or such rights not to interfere with the fair and legitimate occupation of tracts
Adapted for settlement.

^^ It is unnecessary, of course, to xirge in any way the future importance of Van-
couver's Island, as the key to all British North America, on the side of the Pacific,
situated as it is between the extensive seaboard of Russian America and the vast terri-
tory in the hands of the United States.

** His Excellency cannot foresee the course which a Committee of the House of
Commons may see fit to pursue in the proposed enquiiy, or determine beforehand on
what points evidence may be required.

" At any moment, however, His Excellency will be ready to attend to your sugges-
tions, and supply such information, either by documentary evidence, or by witnesses
from Canada, as you think necessary, and he may be able to send over.

" You will, of course, act upon such instructions as you may from time to time
receive."

Certified.

Wm. H. Lee, C. E.C.



The Governor-General to the Colonial Secretary.^

Government House,

Toronto, 17th February, 1857.

Sir, — I have the honour to enclose a copy of a Minute of the Executive Council,
approved by myself, embodying the instructions given to Chief Justice Draper, C.B.,
whom I have selected to proceed to England, with reference to the proposed enquiry into
the matter of the Hudson's Bay Company and its territory in North America.

I have the fullest confidence in Mr. Draper's discretion and ability, and I believe
that Her Majesty's Government may rely with confidence on any information derived
from him.

I have, etc.,

Edmund Head.

The Bight Hon. H. Labouchere.



The Assistant Provincial Secretary to Chief Justice Draper.*

Secretary's Office,

Toronto, 20th February, 1857.

Sir, — I have the honour, by command of His Excellency the Governor-General, to
communicate to you hereby His Excellency's instructions for your guidance in connection
with your mission to England, as the Special Agent appointed to represent Canadian
rights and interests, before the proposed Committee of the House of Commons, on the
subject of the Hudson's Bay Territory.

I am to premise, however, that as it is impossible to anticipate the nature of the
evidence that may be taken, or the conclusion that may be arrived at by the Committee,
or the course which Parliament or Her Majesty's Government may think prop^ to adopt

* Sees. Pftpera, Cmi., 1857, Vol. 16, No. 17.

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INSTRUCTIONS TO CHIEF JUSTICE DRAPER, 1857.



<m the report of the Committee, it is not in His Excellency's power to convey to you at
present any instructions of a precise or definite character. His Excellency has, however,
entire confidence in your knowledge and discretion, and he has the more reieulily entrusted
tiie important mission to you, inasmuch as your high position in the Colony removes you
from all the ordinary influences of local or party consideration.

Immediately on arriving in London you will place yourself in communication with
the Right Honourable the Secretary of State for the Colonies (to whom these insti'uc-
tions have been communicated), and as soon as any Parliamentary Committee on the
sabject of the Hudson's Bay Company or Territory is constituted, you will take steps
for offering to afford all information in your power relating to the interests or claims of
Canada.

You will consider it as part of your duty to watch over those interests, by correct-
ing any erroneous impressions, and by bringing forward any claims of a legal or equitable
kind, which this Province may possess on account of its territorial position or its past
history.

You will not consider yourself as authorized to conclude any negotiation, or to
assent to any definite plan of settlement affecting Cansula, without reporting the particu-
lars of the same, and your own views thereon, to His Excellency in Council.

His Excellency has full and complete confidence in the justice and consideration of
Her Majesty's Government, and he is sure that the interests and feelings of Canada will
be consulted so far as is consistent with right and justice. The people of Canada desire
nothing more.

His Excellency feels it particularly necessary that tho importance of securing the
north-west territory against the sudden and unauthorized influx of immigration from
the United States' side, should be strongly pressed.

He fears that the continued vacancy of this great tract, with a boundary not marked
on the soil itself, may lead to future loss and injury, both to England and Canada. He
wishes you to urge tho expediency of marking out the limits, and so protecting the
frontier of the lands above Lake Superior, about the Red River, and thence to the
Pacific, as effectually to secure them against violent seizure, or irregular settlement, until
the advancing tide of emigrants from Canada and the United Kingdom may fairly flow
into them, and occupy them as subjects of the Queen, on behalf of the British Empire*

With these objects in view, it is especially important that Her Majesty's Govern-
ment should guard any renewal of a license of occupation (should such be determined on)^
or any recognition of rights in the Company, by such stipulations as will cause such
license, or such rights, not to interfere with tJie fair and legitimate occupation of tracts
adapted for settlement.

It is unnecessary, of course, to urge in any way the future importance of Yan-
couver's Island, as the key to all British North America, on the side of the Padfic^
situated as it is, between the extensive seaboard of Russian America, and the vast terri-
tory in the hands of the United States. His Excellency cannot foresee the course which
a Committee of the House of Commons may see fit to pursue in the proposed enquiry,
or determine beforehand on what points evidence may be required. At any moment,
however. His Excellency will be ready to attend to your suggestions, and supply such
information, either by documentary evidence, or by witnesses from Canada, as you may
think necessary, and he may be iLble to send over. You will, of course, act upon such
farther instructions in the premises as His Excellency may from time to time cause to be
communicated to you.

I have, etc.,

E. A, Meredith,

A8si8tarU Secretary.

The Hon. Mr. Chief Justice Draper, C.B., etc., etc.
Toronto.



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-6 MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857.



MEMORANDUM OF THE HON. JOSEPH CAUCHON, COMMISSIONER OF
CROWN LANDS, CANADA, 1857.»

The Commissioner of Crown Lands submits the following remarks on the
North- West Territories of Canada, Hudson's Bay, the Indian Territories, and the
Questions of Boundary and Jurisdiction connected therewith.

The question now under special consideration has more particular reference to the
subject of the renewal of a Lease held hy the Hudson's Bay Company for the *' Indian
Territories," which are not considered to he within the boundaries of Canada, though sub-
ject to Canadian jurisdiction.

But the Hudson's Bay Company's "Map and Statement of Rights," under their
original Charter, as submitted to the Imperial Government in 1850, by Sir J. H. Pelly,
the Chairman of the Company, has also, however, to be considered in connection with it.

It becomes necessary, therefore, to expose the fallacies of the " Statement of Rights
and Map " referred to, in order that the rights of the Province may not be misunderstood
or the pretensions of the Company taken for granted.

The rights of the Hudson's Bay Company, and the effect of their operations upon the
interests of Canada, will best be considered under the following separate heads, viz. :

First — With respect to their operations under the original Charter on the territories
affected thereby.

Second — With respect to their operations within the boundaries of this Province.

Third — With respect to their operations on what has been termed the Indian Terri-
tories, now under lease to them.

Fourth — Arising out of the foregoing, the more important question of the boundaries
of the above Territorial Divisions ; and

Fifth — With respect to jurisdiction, as exercised, and as sanctioned by law.

OpercUiona of the Company on their oum Territoriei.

On the first head, as regards their operations under their Charter on the territorseB
which, if valid, it would cover, it is a matter of very secondary importance to Canada.
The territories of the Hudson's Bay Company, taken at the largest extent which any
sound construction of their Charter in connection with international rights would warrant,
if not in point of distance so very remote, are nevertheless so situated, that it can only be
when all the localities to the south and west, more available for purposes of agriculture
and settlement, have been filled to overflowing, that settlers may be gradually forced into
ihskt vicinity from the superabundant population of more favoured countries.

The most direct interest that Canada could have in the matter at the present moment,
being responsible for the administration of justice there, would be rather of a moral and
political than of an interested or commercial character. But as the necessities of the
Company, in whose hands a monopoly of the trade has practically existed since the Treaty
of Utrecht, together with the powers which they profess to derive from their Charter, has
induced them to establish a jurisdiction which, for the moment, seems to have been suc-
cessful in maintaining tranquillity and order, Canada has had no special reason to intervene,
though if any complaints had been made on this score she would of course have felt called
upon to exercise the powers vested in her by Imperial Statutes.

It is not, indeed, to be denied that the freedom of the trade, consisting of furs and
fisheries, would be of advantage to this country ; but as this involves a question of the
validity of the Charter, and whether or not, if valid in respect of the territory really
affected by it, it would also affect the open sea of the Bay, and seeing that the question is
not now raised of any further legislation to give effect to the powers it professes to confer,
the consideration of this point is immaterial at the present moment, compared with the
more important subjects that have to be treated of.

♦ Sws. Pftpew, Can., 1857, Vol. 15, No. 17.

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MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857.



Operations of the Company on Canadian Territories.

The second point to be taken into consideration, and which is of a more important
nature, is that which affects the operations of the Company within the boundaries of
Canada, and on this head it must be admitted that they have had every facility they
.coold possibly enjoy in their own territories, if such exist ; whether on the coasts of
JLabmdor, Lakes Huron, Superior, or Winnipeg ; whether on the Saguenay, the St.
Maurice, the Ottawa, the Red River, the Assiniboine, or the Saskatchewan — wherever
they have operated within the boundaries of Canada they have had precisely the same
flcope as within their own territories on the shores of Hudson's Bay ; not indeed but what
if opposition had sprung up, the same facilities must necessarily have been afforded to any
rival traders, had they not been effectually protected from such rivalry by their unlimited
means, their extensive ramifications and complete organization, with which no rival traders
were able to compete, unless indeed to a very limited extent in the immediate vicinity of
the settlements.

There are indeed parts of the Province so remote from established settlements, and
having so little direct intercourse with them, that in former years it might have been to
some extent a tax upon the country to have established tribunals sufficient to enforce the
Jaws over r^ons inhabited only, with one exception, by the servants of the Company and
the Indians, though it may now be reasonably questioned whether corresponding benefits
would not have accrued from such a course, while it must be admitted that the Comp&ny
liave at all events reaped a profit, taking together the costs they have been put to from the
want of legal tribunals and the monopoly of the trade which the non-organization of such
tribunals has practically been the means of enabling them to enjoy.

The exception referred to, where a considerable settlement exists, besides the
employees of the Company and the Indians, is the Red River Country.

But the time has passed when any considerations of expense, or temporary incon-
venience, even if proved to exist, can be allowed to stand in the way of opening up those
territories, when indeed the necessity for expansion compels the Provincial Government
to create farther facilities for it ; and as an additional reason why the Government should
no longer permit the present state of things to continue, it must be added that rumours
have been gaining ground of late years, with a force and clearness which almost compel
conviction, that the jurisdiction actually exercised in those remote localities has been as
contrary to the wishes of the people as it has been manifestly without the sanction of
law, all which has created a necessity for early investigation and action on the part of the
Canadian Government

With this view preparations were made in the Crown Lands Department last summer
for a preliminary survey from the head of Lake Superior westward, preparatory to the
opening of free grant roads, which have been so successful in other parts of the country,
lor the purpose of forming the nucleus of a settlement which would gradually penetrate to
the valley of the Red River and the prairies beyond ; besides which, a first-class thorough-
fare would be necessary to afford easier means of communication with the navigable waters
flowing to the west, eta, to facilitate the administfation of justice in the distant settle-
ments, and the necessary intercourse generally between those parts and the more populous
districts of the country, and which would at the same time throw open to emigration,
agriculture and commerce a far larger area, with at least an equal average mildness of
climate, and susceptible of more rapid development (a known characteristic of prairie
countries) than all other parts of the Province heretofore rendered available for settlement.

The question of the renewal of the license of exclusive trade for the Indian Territories
does not, of course, affect the country above referred to, any more than it does the lands,
whatever they be — ^for they have never been defined upon authority — ^which the original
Charter of the Hudson's Bay Company may, upon investigation, be construed to cover.

Operations of the Company on the Indian Territories,

The third point is, for the moment, of less importance than the last, though within -
the period of another such lease as the Act 1 and 2 Geo. IV., cap 66, authorizes, it would



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8 MEMORANDUM OP THE HON. JOSEPH CAUCHON, 1867.



be impossible to calculate the immense influenoe it must have upon the future of tlu»
country, and the British institutions which have taken root so deeply and thrive so nobly
on its soil. The present operations of the Hudson's Bay Company in these " Tiidi^n
Territories " are conducted on the same principle precisely as within the boundaries of
Canada, the jurisdiction they exercise having heretofore had the excuse of necessity, if
not the sanction of law ; and so far as it can be shown to have been exercised to the b^efit
of those countries, the Company might fairly claim indemnity for the consequences, should
that become necessary, and there is no reason to doubt either the generosity or the justice
of the Legislature if called upon to ratify such a measure.

It now becomes necessary, under the fourth head, to treat the questions of boundary
arising out of the three foregoing ; and these questions have, heretofore, been so little
understood, that it will be necessary to enter into the subject at some length.

The difficulty of describing definite boundaries in countries which at the time were
but very imperfectly or partially known, has always been a matter of serious embarrass-
ment. In the present instance, however, the difficulties can only be in matters of detail,
and it may be safely assumed that they will be still further lessoned by the fact, that
wherever uncertainty can be supposed to prevail in any point of real importance, it can.
only be between the Province of Canada on the one hand, and the *' Indian Territories ''
on the other (not between Canada and the Territories of the Hudson's Bay Company,
unless at a point of comparatively little consequence) ; and it would be difficult to conceive
that it could be adverse to the interests of the Crown or the community, if the principal
question of boundary were sunk altogether, and the whole of the ^< Indian Territories '*
incorporated with this Province.

Botmdary of the Company*$ Territorie$ under Charter of 1670.

In the first place, then, with respect to the Territory affected by the Charter of the
Hudson's Bay Company, it may be admitted that it would not only be difficult but abso-
lutely impossible to define it ; it is therefore fortunate that its limited extent renders the
question of little importance further than that it becomes necessary to consider and rebut
the very large pretensions of the Company.

The extent of the territory affected by the Charter is subject to two distinct condi-
tions:

First — It is confined to all such territory as was then the property of the donor.

Second — It is confined to all such unknown territories as by the discoveries of the
Company, his subjects, might become his property.

These distinctions, though not directly expressed, are nevertheless conditions result-
ing from the circumstances and necessary to a proper understanding of the case.

With respect to the first, viz., the territory which was the property of the donor, it
is necessarily limited by usage and by common sense to what was known or discovered,
for the unknown and undiscovered could not be his property, and might neyer become,
his property, that being dependent upon circumstances then in the future : it is further-
limited by specific condition, expre^ed in the Charter itself, to such portions of what
was then known as did not belong to any other Christian Prince or State, which condition^
it must be admitted, was an acknowledgment on the part of the donor that some part
of the territory he was describing was not his, and of doubt as to what did or did not
belong to him.

With respect to the extent of territory that might have been affected by the second
condition above stated ^that is, as regards exclusive trade, the grant of soil being less ex-
tensive and more ambiguous), it has no particular limit, for it embraces all countries
which could be reached either by '' water or land" through Hudson's Straits, and to limit
or extend it merely to the sources of rivers discharging into Hudson's Bay would be a con-
struction which the Charter will in no sense admit of. But while it extends to all
unknown countries or infidel nations, which the Company could reach through Hudson's
Straits or Bay, it is at the same time inf erentially and necessarily restricted from extend-
ing to any of those unknown parts which might be first discovered and possessed by the
subjects of any other Christian Prince or State. This is not, indeed, expressed in the^



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MEMORANDUM OP THE HON. JOSEPH CAUCHON, 1857. 9



Charter in relation to undisooyered territories, but it is emphatically so as regards the
then state of the rights and possessions of Christian Powers. While the King, therefore,
]B 80 careful, at least in the wording of the document, not to infringe upon the rights of
others already acquired, it can scarcely be supposed that he meetnt to infringe upon the
rights of others to acquire what then belonged to none. The inference is altogether
against the supposition that King Charles meant by his Charter to deny the right of any
oUier civilized nation to make further discoveries and appropriate the countries discovered,^
and even if he had so intended it, he had not the power to alter the law of nations in this-
respect. Besides, the Charter is expressly one of discovery as well as trade, eta; the
advantages granted to the "adventurers" are incidental and subordinate to that greater
object, but there could be no discovery on their part wherever they were preceded by
prior discovery and possession on the part of the subjects of any other Christian Prince.
The right of discovery is and was so well established, and wherever considered of any
iBq>ortance, has been so jealously watched that volumes of diplomatic controversy have
been written on single cases of dispute, and the King of Great Britain could not by his
Charter annul the recognized law of nations, or limit in any degree the right of other
States to discover and possess countries then unknown. It may even be considered ex-
travagant to affirm that he could convey a right of property to territories not then, but
▼hich might afterwards become his or his successors' by the prior discovery and possession
of the Company themselves, his subjects : were it necessary to dwell upon this point, it
could easily be shown that most of the territories now claimed under the Charter which
▼ere not discovered at that date, the Company were not afterwards the first nor were
any other British subjects the first discoverers of ; that, in fact, except the Coppermine
Kver, the Company never discovered anything or penetrated beyond the Coasts and
Cmfaus of the ^y (to which perhaps they at that time justly considered their rights re-
stricted) for upwards of a hundred years after the date of their Charter, and that when
they did so penetrate, the only discovery they made was that the whole country in the
interior had been long in the peaceful possession of the subjects of another Christian
Prince.

But the position as regards discovery after the date of the Charter, it is unnecessary
to dwell upon, particularly as an adverse title, can be proved prior to the date of the
Charter, and that too sanctioned by treaty.

The early discovery and occupation of the country in and about Hudson's Bay are,
as in many other cases, shrouded in a good deal of obscurity. The British claim as the
first discoverers of the whole coast of this part of North America, in the persons of
John and Sebastian Cabot, about the year 1497 j but it is contended on the other hand that
their discoveries did not extend to the north of Newfoundland, which still retains the
name they gave it, and which they supposed to form part of the main land. It is said^
indeed, that the Cabots penetrated to a very high latitude far to the north of the Straits
now bearing the name of Hudson ; but it must be remarked that there appear to be no-
aothentic records of the two voyages of the Cabots, their journals or observations.
There appears to be only hewrsay evidence of what they did, or where they went, told
afterwards at second-hand to third parties. The voyages of the Cabots, therefore,
although they are matters of history, not admitting of any reasonable doubt, in a general
ivay, as to their having reached the coast of America, lose much of their force as the
bases of specific territorial claims, from the want of any record of their proceedings.
Did they ever land 1 If so, where ) What observations did they make % Did they take
formal possession \ etc.

The French claim through fishermen of Brittany, who established fisheries on the
coast as early as 1504, and through a map published by Jean Deny, of Honfleur, in 1506.
The map would be valuable if any authentic copy of it be extant. There does not appear
to be any such record of the operations of the Breton fishermen as would fix precisely^
OgQby, the spot where their trade was carried on, though a British geographical work,,
Londfl^ 1671. published in 1671, with a map attached, fixes it at Hudson's Straits, naming



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 4 of 86)