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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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 52 of 86)
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as to the exact extent of the Province to the north of those points there may be more
difficulty. The statute of 1774, usually called the "Quebec Acti," added a considerable
territory to the Province of Quebec, and purpoirted to give as the northern boundary of
that Province, the territory granted to the Hudson's Bay Company ; how far that terri-
tory extended has never been detiniiely ascertained. We have^examined whatever docu-
mentary evidence there is which might throw light on this question, and we have also had
a pretty exhaustive examination ma^de of the various maps published before the present
century. An analysis of the maps has been printed at p. 135 and on subsequent pages of
the Book of Documents ; and the produced map by Mr. Devino shows the principal Tinea
The most northerly is one which, in 1701, the Hudson's Bay Company unsuccessfully
ckimed for its southern boundary ; and the next is the line they had asked for without
success in the previous year, 1700. All of the other northerly lines marked on this map
sre at the westerly side placed to the north of the Lake of the Woods ; most of them are
several hundred miles to the north of that lake ; while on the east they are south of James'
Bay and of the point to which the Royal Commissions bring us there. None of these
northerly lines has the authority of a treaty or a statute or an agreement. One line is
marked on certain maps as " bounds of Hudson's Bay by the Treaty of Utrecht ; " but
that was a mistake of the geographers ; it must be admitted that the bounds were not
lettled by the Treaty of Utrecht.

The claim of Ontario is precisely the same as had always been made for the Province
before the Dominion of Canada pui'chased the rights of the Hudson's Bay Company.
Controversies on the subject took place between the Hudson's Bay Company and the Province
of Canada, and afterwards between that Company and the Dominion of Canada. During
these contaroversies able papers were written wherein the claims of Canada were set forth ;
and I rely upon the arguments contained in these papers though not now repeating
th^on all.

Opinions of some learned lawyers having been given in favour of the claim of the
Hudaon's Bay Company, these were controverted in the official papers on behalf of Canada ;
those opinions were given on inaccurate and partial representations of the facts ; new
evidence in &vour of our claim has been obtained since ; but upon the evidence collected
before 1866, we have on our side the opinions of other eminent lawyers, and the opinion
of the late Chief Justice Dn^per. The opinion of the Chief Justice was formed and coin-
manicated when he was in his prime ; he was one of the ablest judges in Canada, and had

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ARGUMENT OF THE ATTORNEY-GEN. OF ONT. BEFORE THE ARBITRATORS, 1878:



given great attention to this subject. He was sent to England by the Canadian Govern-
ment to watch over the interests of the Province ; he had access to private sources of
information, some of which we have been able to reproduce now ; and the opinion that
he formed was arrived at upon a fuller knowledge of the facts than had existed on the
part of any court or counsel who had theretofore given attention to the matter and whose
opinions we are in possession of. The opinion was communicated to the Government here
not expressed in controversy with an adversary ; and it is very cautiously expressed ; it
does not go as far as the Province was claiming ; he did not think the evidence sufficient
to give a line to the Rocky Mountains (as the Province claimed), but expressed the
opinion — his " confident hope " — ^that a decision by the Privy Council would give " to
Canada a clear right west to the line of the Mississippi, and some considerable distance
north of what the Hudson's Bay Company claim, though not any territory west of the
westernmost head of the Mississippi River," which is very near the Rocl^ Mountains.
The opinion will be found at page 391 of our Book of Documents.

Sir Edwa/rd Thornton — ^The law officers of the Crown in England strongly recom-
mended an appeal to the Privy Council, but that was not done. The writw of this extract
seems to have expected that there would be a decision of the Privy Council, and I would
like to know why the case was not referred.

Chief Justice Ha/rrieon — It was probably delayed by negotiations.

The AUorney-Oeneral — ^There were constant negotiations going on from tiiat time, and
the matter was one which, however clear the right might be thought to be, it was con-
sidered desirable to settle by compromise.

Sir Edward Thornton — But it was not compromised.

The Attomey-Oeneral — It was compromised twelve years afterwarda My learned
friend, Mr. Hodgins, reminds me that one thing which prevented the reference was that
the Government here thought the question ought to be referred by the British Crovem-
ment — that the Province ought not to have the responsibility of it ; at all events the delay
was only twelve years from this time — not a great while to be negotiating about a
continent of territory.

Mr. Ma^Mahon — I can answer further in regard to -that. The Province of Canada
refused to submit anything but the validity of the Charter of the Hudson's Bay Company
to the Council ; they refused to submit the question of the boundaries.

The AUomey-GenercU — The adverse opinions were founded upon the Company's ex
parte statements of the facts, and one of the allegations was that the Hudson's Bay Com-
pany had been always in possession of the territory. Now, it is a familiar principle with
regard to old statutes or charters, that the interpretation of them is governed by the con-
temporaneous exposition they received, and by the acts of the parties under them. If the
fact was, that, from 1670 to the time when these opinions were called for, there had been
an actual possession by the Hudson's Bay Company of the whole territory whidi they
elaimed, there could be little question of their right to such territory. It would be absurd
to suppose that, as a matter of law and legal construction, the Company could be depriveil
of property which they had for nearly two centuries " claimed and exercised dominion
over " under their grants, as absolute and undisputed proprietors of the soil. But we
deny that there was any such claim, dominion or -possession, by the Company of the terri-
tory now in question, for more than a century aftelr 1670 ; the principal ground upon
which the opinions referred to must have proceeded was not in accordance with the fects.
We have in our book the Companjr's statement. I refer to page 288 : — "Under this grant
the Company have always claimed and exercised dominion as absolute proprietors of (be
soil in the torritories understood to be embraced by the terms of the grant, and which aie
more particularly defined in the accompanying map; and they have also claimed and
enjoyed the exclusive right of trading in those territories." The map referred to claims
up to the height of land. No lawyer, upon that statement, could come to any other con-
elusion than did the law officers. In some of the earlier as well as the more recent
of the legal opinions, express reference was made to the importance of knowing how
much of tibis territoiy had been in possession of the Hudson's Bay Company,, and it was
stated in them that an eld charter of this kind, especially an ambiguous one, should not
be inteipreted without reference to that fact.



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FORMER CONTENTIONS OF THE OOVERNMENT OF CANADA. 307



Ne adyerse legal opinion has been given on the facts that are now before the arbitra-
tors. On the other hand, we haye the opinion of a very distinguished judge, who was
aware of all the material facts in f ayour of the Company's contention — although not of all
the facta in ftivour of the Proyinoe, — and who gave that opinion after having been exclu-
melj occupied several months with the subject. However, the arbitrators are not bound
by that opinion. Thej will give whatever weight they may consider due to it ; but they
will consider for themselves whether the opinion was right or wrong.

On entering now upon some discussion of the evidence, I submit that, inasmuch as
the Province of Ontario is now claiming what had always been claimed before by the
Proyince of Canada, and by the Dominion of Canada likewise, I am entitled to ask the
arbitrators to take that claim to be prima facie correct and well founded. The Dominion
is one of tiie two parties to this controversy, and we put in evidence the official statements
of the rqiresentatives of the Dominion repeatedly made ; we show what position they took
in regard to this question, what assertions they made, and what they claimed, up to the
very last moment before becoming purchasers of the Hudson's Bay Company's rights I
do not say this is conclusive, that it estops the Dominion from saying that their conten-
tion had been wrong, &lse or mistaken, but I do say that their demands before buying out
the Company throw the burden on the Dominion of showing that in all those antecedent
discussions and statements they had been wrong. I start with the strongest presumption
in my favour when I show that before they made that purchase, the Dominion of Cwada
bad taken the position which I now take, had made the assertions which I now make, had
Qised many of the arguments which I now use, and had considered that those arguments
were incapable of being answered. To take a single example, what did the Dominion
Ministers say in their letter to t^e Colonial Minister on the 16th January, 1869 1 (Book
of Documents, p. 324.) They expressly claimed " that the boundaries of Upper Canada
on the north and west " included '' all the territory to the westward and southward of the
bonndary line of Hudson's Bay to the utmost extent of the country commonly called or
known by the name of Canada ;" and that " Whatever doubt may exist as to the utmost
extent of old or French Canada, no impartial investigator of the evidence in the case can
doubt that it extended to and included the country between the Lake of the Woods and
Red River."

But I shall show that, if I had no presumption in my &ivour, the conclusions which
I desire the arbitrators to arrive at are the conclusions which they cannot but arrive at
in view of all the facts.

In 1763 France ceded to England '* Canada with all its dependencies," reserving only
«M^ part of what had been known as Canada as lay west of the Mississippi. The treaty
▼ill be found at page 18 of our Book of Documents. The watershed between the Missouri
and the Mississippi rivers had been the boundary between Canada and Louisiana when
both were owned by France, and by the treaty of 1763 the River Mississippi was agreed
to as the future boundary between the English and French possessions in that quarter ;
the language of the treaty being, ** that the confines between [France and England] in
&at part of the world shall be fixed irrevocably by a line drawn along the middle of the
^yer Mississippi from its source [etc.], to the sea." Very soon after this treaty, viz., on
7th October, 1763, the Province of Quebec was erected by Royal Proclamation, but the
Province as then constituted took in Very little of what was afterwards Upper Canada
uid what is now Ontario; the most north-westerly point was Lake Nipissing; the whole
of the territory adjacent to the great lakes was excluded. In 1774 the boundaries of
Quebec were ^ai^jfed by the Quebec Act. That Act recited that *' by the arrangements
made by the said Royal Proclamation a very large extent of territory, within which
were several colonies and settlements of 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." The Act therefore provided that *' all the
territoriea, islands and countries in North America belonging to the Crown of Great
Britoin, bounded on the south by a line " therein described, from the Bay of Chaleurs to
**ihB River Ohio, and along the bank of the said river, westward, to the banks of the
MiiriflBipiu, and northward to i^ southern boundary of the territory granted to the
Merchants Adventurers of England trading into Hudison's Bay," etc., ** be, and they are



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AROUMENT OF THE ATTORNEY-GEN. OF ONT. BEFORE THE ARBITRATORS, 1878:



hereb/, daring His Majesty's pieajsure, annexed to and made part and parcel of the Prov-
ince of Quebec as created and established by the said Royal Proclamation of the 7th
October, 1763." What territory was embraced in this description ? The Dominion con-
tends now thKt the expression '^ northward to the southern boundary " of the Hudson's
Bay Territory, meant a line drawn from the confluence of the two rivers due north, which
would be in longitude about 89*^ 9^' west; that the old Province of Quebec contained no
territory west of that line; and that the Province of Upper Canada or the Province of
Canada contained none. The only pretence for this argument is the word " northward "
in this statute. Reasons as strong and indisputable as possible in favour of a more
westerly boundary are afforded by the other language of the statute; by the surrounding
circumstances ; and by subsequent transactions.

Look first at the statute itself. It will be found at page 3 of the Book of Documenta
The enactment is as follows : — " 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," etc., ''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 granted to the Merchants Adventurers of England, trading to Hudson's Bay;
and also all such territories, islands and countries, which have, since the 10th day of
February, 1 763, been made part of the Government of Newfoundland — ^be, and they are
hereby, during His Majesty's pleaaure, annexed to, and made part and parcel of the Prov-
ince of Quebec as created and established by the said Royal Proclamation of the 7th day
of October, 1763."

Now, in the first place, the word " northward " does not necessarily mean due nortlL
In descriptions in the ordinary deeds and documents with which we are fcLmiliar, the
word " northward " is constantly used as meaning any northerly dir^tion — either due
north, or towards the north-west or the north-east. Then in another part> of the d^crip-
tion a corresponding word is used in the sense in which I say this word '* northward''
should be used, for after the description brings the line to the River Ohio, it goes on thus :
" along the river westtoard to the banks of the Mississippi " Here the word "westward"
is used, not in the sense of due west, but of a line following the sinuosities of the River
Ohio. Further, we have in the same description the expression " directly west" We
have thus a word corresponding to " northward " — ^namely, " westward" — ^meaniug not
due west, but in a westerly direction ; and we have the words " due west " and " rigbt
line" when Parliament meant due west and in a straight line. These considerations
remove any presumption th^t Parliament when saying northward, must necessarily be
taken to have meant due north. All the territories, islands and countries in North
America belonging to the Crown of Great Britain, which was assigned in 1774 to the
Province of Quebec, are bounded on the south by the line described, to the banks of the
Mississippi; and What we say is that "northwards" meant the whole territory north-
ward from the south line so described. The south line is given, and the statute describes
what territory that south line is intended to include — all the territories belonging to Great
Britain northward to the Hudson's Bay Company's territory.

The surrounding facts bearing on the question place the intention beyond doubt
First, observe that t^e recital declares the object of the Act to be, to give to the Province
more extensive boundaries than it had by the Proclamation : " Whereas by the arran^
ments made by the said Royal Proclamation, a very large extent of territory, witlan
which 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." Where were these colonies and
settlements ? There is no room for question that if you take the due north line as the
westerly boundary, you do not include in the Province many of these French colonies and
settlements. A large number of them, containing a large population, are given in Mr.
Mill's book ; and by looking at the produced map by Mr. Devine, the Arbitrators will see
the number of forts which, with the populations in their neighbourhood, would be excluded
It is thus an historical fact, utterly beyond controversy, that a line due north from the
confiueiice of the Ohio and Mississippi, would leave between that line and the Mississippi
a large nulnber of colonies and settlements for which it was intended by the



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HISTORY OF THE QUEBEC BILL, 1774. 809



^tnte to provide civil goyemment Assume that the word '' northward'' is ambiguous, as
certainly it does not necessarily mean due north, we remove all doubt by showing from
the statute what the intention was, and by showing that that intention would not he
carried out by a due north line.

Further, if I had not the recital in the statute ; if I did not know from history that
there were colonies and settlements there, which the recital shows that it was intended to
iadade ; if all I knew was that we had this ambiguous word, and that the British pos-
sessions at the time of the passing of the Act extended along the banks of the Mis-
siadppi to its source, that fact would afford sufficient ground for presuming that the
word "northward" was intended to include whatever British possessions there were
there.

"In the interpretation of statutes, the interpreter muiit, in order to understand the
object matter, and the scope and object of the enactment, call to his aid all those external
and historical facts which are necessary for the purpose." (Maxwell on Statutes, pp. 20,
21.) It is presumed that the circumstances which led to the Act, the Bill introduced,
snd Uie proceedings of Parliament thereon, can be looked at for the purpose of the present
contat>versy, as the discussions on the negotiations for a treaty are looked at to remove
any doubt to which the language of the treaty might give rise. The proceedings in Par-
luunent are printed at page 299 of the Book of Documents ; and the debate on the Bill
shows that, as a matter of fact, the intention of the measure was understood on both sides
of the House to be that the Mississippi, and no due north line, should be the western
boondaiy. The Bill originated in the Lords, and the Bill, as it came down from that
House, was clear as to the Mississippi being the western boundary. The Bill described
the Province as *< all the territories, etc., heretofore forming a part of the territory of
^^anada in North America, extending southward to the banks of the Biver Ohio, westward
U) the banks of the Mississippi, and northward to the southern boundary of the territory
granted to the " Hudson's Bay Company. (Page 302.) Under that description the
present qaeetion would not be arguable. There is no reference there to a due north line
from the confluence of the Ohio and Mississippi; and it will not be argued that any terri-
tory th^re belonging to Great Britain was to be left without any government or without
any provision made by the statute for its government.

The description was altered in the Commons. Why was it altered ) Was it in order
that the banks of the Mississippi should not be the western boundary ? By no means ; no
member objected to that boundary. It appears beyond question from the debate, that all
parties, those in favour of and those opposed to the Bill, concurred in regarding the west-
^ boundary as being properly the Muusissippi Biver to its source (that being, as I have
ttid, the boundary also between the possessions of France and England), and that the
<^y reason for the change was the desire of Mr. Burke— who was at that time agent for
the Province of New York — ^to settle the boundary between the Province of Quebec and
Ae Province of New York. He thought that the Province of New York might suffer if
^ Grown was left to settle its boundaries, and he therefore wanted the statute to settle
^Item ; but no proposal was made by him, or by anybody else, that the territory of the
Province of Quebec should be less extensive towards the west. We have Mr. Burke's
letter, written after the Act had passed, and in which he gives an account to his constitu-
ttiis of the Province of New York of what he had done for them. He points out what
^^ wrong in the Bill as first introduced — namely, the difficulty as between the French
Province of Quebec and the English Province of New York — ^in a region of country far
away from the Mississippi ; and he tells what he did for the purpose of removing that
Acuity. His letter is dated 2nd August, 1774, and is printed at page 384 of the Book
of Documents. He told his constituents that he thought they '^ might be very much
^S<wted by " the clause as it stood in t^e Bill as it passed the Lords ; and explained '< the
<!ondiict which (he) held in consequence of that view of (their) interesta'' He informed
^ clients that '^ the predominant and declared opinion " was, that " any growth of the
[English] colonies which might make them grow out of the authority of this kingdom,
OQ|^t to be accounted rather a morbid fulness than a sound and proper habit ; " that the
Prevailing habit was to restrain " the colonies from spreading into the back country ; "
and *< that the lines of the plan of policy just mentioned were very dis-



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810 ARGUMENT OF THE ATTORNEY-GEN. OF ONT. BEFORE THE ARBITRATORS, 1878 :



tinguiiihable in the Bill as it came down to " the House of Commons, and that he had in
consequence procured the alterations which had been made in the House of CommonB.
That '* this was not (as it might be between two ancient British colonies) a mere question of
geographical distinction, or of economical distribution, where the inhabitants on the <me
side of the line and the other lived under the same law and enjoyed the same privileges of
Englishmen. But this was a boundary discriminating different principles of jurisdiction
and legislation ; where, in one part, the subject lived under law, and in the other under
prerogative."

In the debate the great extent of this territory was objected to by Mr. Townsend,
who said that the limits thereby assigned to Canada, and stated in the Bill to have been
part of it, were greater than England and France had ever given to Canada. He was
answered by Lord North as follows-: —

" The first thing objected to by the honourable genUeman is the very great extent of
territory given to the Province. Why, he asks, is it so extensive t There are added
undoubtedly to it two countries which were not in the original limits of Canada as settled
in the Proclamation of 1763 — one the Labrador coast, the other the country westward of
(to ?) the Ohio and Mississippi, and a few scattered posts to the west Sir, the addition
of the Labrador coast has been made in consequence of informaUon received from those
best acquainted with Canada and the fishery upon that coast, who deem it absolutely
necessary for the preservation of that fishery that the Labrador coast should no long^be
considered as part of the Government of Newfoundland, but be annexed to that country.
With respect to the other additions, these questions very fairly occur. It is well known
that settlers are in the habit of going to the interior parts from time to time. Now,
however undesirable, it is open to Parliament to consider whether it is fit there riiould be
no government in the country, or, on the contrary, separate and distinct governments, or
whether the scattered posts should be annexed to Canada. The House of Lords have
thought proper to annex them to Canada ; but when we consider that there must be some
government, and that it is the desire of all those who trade from Canada to Uieae coun-
tries that there should be some government, my opinion is that, if the gentlemen will



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 52 of 86)