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 54 of 86)
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or give them partially only, and in such a manner as throws no light on the present
question. So also the commissions after the union do not give the western boundary of
tiie Province of Canada. The commissions to Sir John Colbome and Governor Thomson
trace the western boundary into Lake Superior, and no farther, saying nothing of the line
thence either westerly or northerly.

I was asked just now by Sir Edward Thornton whether acts of jurisdiction were
ever exercised within the limits now claimed by the Dominion ; and I propose now to
answer this question. The first fact I may mention is, that Upper Canada has been in
the habit of issuing writs into the territory west of the line 89* 9^', since, at all events,
1818. We have been able to trace the practice back to that date. In 1850 the Province
of Canada, with the sanction of the imperial authorities, entered into a treaty with the
Indians, and procured the surrender of the rights of the Indians in the territory as
fcr west as Pigeon River or the international boundary. This territory, it may be
observed, is south of the height of land, and includes the territory between the line 89*
^' and the international boundaiy; this being territory which the Hudson's Bay Company
never claimed, although the Dominion claims it now. The treaty is set forUi in pages
22 to 24, Book of Documents. Mr. Robinson, who negotiated the treaty, seems, from the
terms of it, to have been of the opinion that the height of land was our northern boun-



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:316 AKGUMENT OF THE ATTOBNEY-GEN. OF ONT. BEFORE THE ARBITRAT0B8, 1878 :



(lary, but of course his opinion does not bind us. Another way in which jurisdiction has
been exercised is this : — From the year 1853 the Province of Canada, continuously and
without objection from any quarter, n\ade grants of land in the Queen's name in this
territory, west of the propos^ line of the Dominion, and up to Pigeon Kiver. Between
1853 and Confederation, no less a quantity than 35,059 acres had thus been granted west
of that line. Numerous mining licenses in the same territory were granted in like
manner, commencing with the year 1854, the territory embraced in them extending to
Pigeon River. The dates and other particulars of all these grants are given in the Book
of Documents, 322, 409. In 1868 the Government of the Dominion appropriated
$20,000 towards the construction of a road from the Lake of the Woods .to Fort Gany,
on Red River ; the money was expended accordingly.

Sir Edtoard Thornton — I think that was the money expended in time of great
distress, and which led the Hudson's Bay Company to complain of intrusion on their
territories.

The Attorney-General — And, on behalf of the Dominion, its Ministers, Sir George
E. Cartier and the Hon. William McDougall, ably replied to the complaint, and showed
that there was no ground for it The correspondence will be found at page 328 of the
Book of Documents.

So far as relates to Ontario's western boundary, it is unnecessary to consider the
argument ba to the Hudson's Bay Company owning this territory ; because the extension
of the southerly boundary to the west is not made to depend on the Company's having
or not having the territory to which the western extension of the southerly boundary
would briii|; us, and the Crown had power to include within the limits of the Province
part of the territory of the Company, as well as that of any private owner of land, if
such was the royal will. But the fact that this western territory had been discovered,
explored, traded with, occupied and taken possession of by the French before the treaty
of cession — which seems now to be admitted on all hands — shows that the Company had
no right to this territory, and adds strength to Ontario's claim, even in respect to the
western boundary.

The only thing that I know of against all this mass of evidence are the decisions of a
Lower Canadian Court in 1818, in the cases of De Reinhardt ftnd McLellan, which have
been cited in favour of the line drawn due north from the confluence of the Ohio and
the Mississippi, and stated in the evidence in those cases to be 88^ 50' or 88* 58'. In
each of those cases the question was whether the locality in which the murder was com-
mitted was in Upper Canada or not The court was acting under a special statute and
commission, which confined its authority to offences committed outside of Upper Canada ;
the prisoners wished to make out that Uie scene of the alleged murder was in Upper
Canada, and that the court had therefore no jurisdiction. The court naturally leaned
against what seemed a technical objection. The investigations and discussions of the last
twenty-five years have thrown an immense amount of fresh light on the question ; a good
deal of the evidence on which I ask the Arbitrators to come to a different conclosion
was not before the court ; the court seemed also impressed with the erroneous idea that
the word " northward," in the Act of 1774, necessarily meant due north, and the argu-
ment for another construction from other words in the statute was not presented by
counsel, whose contention rather conceded that the Act of 1774 was against them, and
they endeavoured to show that the Act of 1791 extended the boundaries ; the court had
liefore it the Proclamation of General Alured Clarke, but not the paper which had been
submitted to Parliament in 1791, nor the series of commissions which had been issued,
and which showed conclusively the intention of the Act and of the Crown ; nor had the
court its attention called, either to the historical facts referred to in the recital of the
Quebec Act, or to the evidence of intention afforded by the debate on the Act and by
Mr. Burke's letter. The court had nothing like the same materials for coming to a cor-
rect conclusion as the Arbitrators have ; and, having reference to the materials before
the Arbitrators, I submit it is quite clear that the conclusion of the court on t^e point
now in question was wrong.

Chief Justice Harrison — Still, it was an important decision.

Sir Eckoard Thornton — It was a unanimous decision.



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THE QUESTION OF THE NORTHERN BOUNDARY. 317



Mr, MacMahon — -The then Ohief Jostice said that he had consulted his brother
judges, and they were unanimously of opinion that that was the conolusion which ought
to be reached.

Chitf Justice Harrison — De Reinhardt, although convicted, was never executed.

The Attorney-General — No, he wa»not executed. I have endeavoured to get the
despatch which directed that he should be released, but it cannot be found. There is no
doubt that the man was not hanged, and no reason has been suggested for this except
that the British Goveriiment, acting under the advice of the Crown lawyers in England,
thought that the ruling of the court on the point in question here was not correct.
(Docts., p. 226.) McLellan was acquitted.

In view of the whole evidence now before the Arbitrators it is apparent that if
there is any difficulty on the westerly side of the Province, it is only as respects the
territory west of Lake of the Woods. Is our western line further west than this lake 1
Does it extend to the first tributary of the Mississippi which a line due westi from the
most north-western point of the Lake of the Woods strikes 1 Or does our western limit
extend to the Rocky Mountains )

I submit that the proper legal way of viewing the matter is, that inasmuch as the
Royal Commissions declare that the line is to go due west to the Mississippi, some mean-
ing must be given to that direction, and these words should be construed as refemng to
either the tb^ supposed locality of the Mississippi, or the first stream the waters of
which flow into the Mississippi, no matter by what name the stream may be called.
There are various streams which fall into the Mississippi that a due west line would meet ;
these first fall into the Missouri and then into the Mississippi. We must find some
meaning for the words employed ; and as what is now called the Mississippi would not
be touched by this due west line, we must find another meaning as near to the language
used as possible.

I come now to consider the northern boundary, which so far I have only referred
to incidentally. I have stated that the Quebec Act, and such of the Royal Commissions
to the Governors previous to 1791 as mention the northern boundary, specify for that
purpose the jsoutherly boundary of the territory granted to the Hudson's Bay Company ;
And the principal diffioulty here is, that the southerly boundary of this territory was
never definitely ascertained.

The claim of the Dominion is that the northern boundary of the Province is the
height of land already described. I submit that it is clear that the height of land is not
our northern boundary, and, on* the contrary, is considerably south of our northern
boundary. The first fact showing this is, that the easterly and westerly lines assigned to
the Province by the Royal Commissions, cut through, and go north of, the height of
land. This alone is conclusive on the point The idhore of Hudson's Bay to which our
boundary goes on the east is far north of the height of land, and the Lake of the Woods,
through which our boundary passes on to the west, is also north of the height of land to
which the claim of the Dominion would limit us. It may be said also that the commis-
sion which was issued in 1791, and such of the subsequent commissions as mentioned the
northerly boundary ,« declared in effect that the southerly boundary of the Company's
territory was not south of those two points, namely, the south shore of James' Bay
(called there Hudson's Bay) and the most north-western point of the Lake of the Woods.

The next point to which I ask the attention of the Arbitrators is, that so southerly
a boundary as this height of land was not claimed or suggested by the Company as being
within the intention of the charter, or as being the measure of the Company's just rights,
until nearly a century and a half after the date of charter. The Company's papers and
books have been thoroughly examined, and I do not think my learned friends will be
able to show that for a century and a half after the date of the charter the Company
claimed the height of land as their boundary. The English Commissioners, in their
negotiations with France, made in one instance a proposal something like that, but made
it of their own motion, without any authority from the English Government, and with-
out any suggestion from the Company. ThaX proposal will be found printed in the
Book of Documents, at page 365, the last paragraph on that page. The language used is
this : " The said Commissaries further demand that the subjects of His most Christian



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



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 the said rivers shall be left free to the Company of English merchants
trading into Hudson's Bay, and to such Indians as shall wjsh to traffic with them/' But
even that proposal did not claim as the boundary the height of land ; it claimed only
that the rivers should be free, and that no forts should be built or settlements made upon
them, because such would interfere with the freedom of Uie streams. The proposition
had reference only to the rivers, not to the lands. There is no evidence that the land
was in the minds of the Commissioners.

The point, however, which I am making is, that the Company themselves did not for
one hundred and fifty years make that claim. They made their claim in different forms
at different times. Upon the occasion of the Treaties of Ryswick in 1697 and TJfrecht
in 1713, the Company's claim was expressed either in the terms of the charter, or was
simply to " the whole Bay and Straits of Hudson," and " to the sole trade thereof." It
sufficiently appears from the early documents which emanated from the Company, that
this general claim to the whole bay and straits was a claim to the waters and shores only,
and to the exclusion of the French therefrom, — ^the French having been in possession of
forts on the bay until after the Treaty of Utrecht, and the Treaty of Ryswick having in
effect given them possession of all places on the bay except, it may be. Fort Bourbon.
The Company's object was the trade of the bay, and not the occupation or settlement of
the country away from the shores of the bay. The line which the Company itself pro-
posed in 1 700 was from the River Albany, on the one side, to Rupert River, on the other
side of the bay ; but the French rejected the proposal In 1701 the Company prppoaed
a still more northerly line, namely, from the River Albany on the one side to East Main
River on the other; but the French rejected that one also. In 1711-12, tKe Company
proposed a line to run from the Island of Grimington, or Cape Perdrix, on the Labrador
coast, south-westerly to and through Lake Mistassin. This line did not extend beyond
the south-west shore of the lake; and though the Company made % demand for the
surrender of the forts on the shores of the bay, yet they do not appear to have made at
that time any proposal as to a line on the west or south side of the bay, and their only
claims and contestis of this period were about the margin of the bay. In one instance or
more they absurdly claimed the whole eastern coast to the Atlantic and the whole western
coast to the Pacific ; but the specific claim that they were entitled to the height of land,
and to the territory along the various rivers which directly or indirectly flow into Hud-
son's Bay, was not made for one hundred and fifty years after the charter had been
obtained.

The ground on which the Company's (and now the Dominion's) claim to the height
of land is maintained is, an alleged rule that the disoovery and possession of the shore of
a new country give a right to the rivers and to the land adjoining. I do not admit that
so-called rule. It is stated more strongly than the authorities warrant. My learned
friends have in their case referred to Dr. Twiss's book on the Oregon Territory. That
book was written by Dr. Twiss as a controversialist. It was publidied during the discus-
sions on the question of the Oregon Territory, and published to help the English cause.
But the view which was taken by Great Britain as to the alleged rule, appears from an
extract which my learned f riencb have printed at page 6 of the Dominion case : — " Sir
Francis Twiss, in his discussion on the Oregon question, at page 300, states that Great
Britain never considered her right of occupancy up to the Rocky Mountains to rest upon
the fact of her having established factories on the shores of the Bay of Hudson — that is
to say, upon her title by mere settlement, but upon her title by discovery, confirmed by
settlements, in which the French nation, her only civilized neighbour, acquiesced, and
which they subsequently recognized by treaty." So that it is only to the extent of the
actual recognition of the English settlement by the French, subsequently made, that Dr.
Twiss was of opinion that the rule had proceeded. At page 148 of the same book the
author quotes Mr. Rush as asserting on behalf of the United States, *^ that a nation
discovering a country, by entering the mouth of its principal river at the sea coast, must
necessarily be allowed to claim and hold as great an extent of the interior country as was
described by the course of such principal river, and its tributary streams." But Dr. Twisb



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RIGHTS OF DISCOVERY AND POSSESSION. 319



remarkfl that ** Great Britain formallj entered her dissent to such a claim, denying that
such a principle or usage had been ever recognized amongst the nations of Europe •" and
that '< in the subsequent discussions of 1826-7 Great Britain considered it equally due to
herself and to other powers to renew her protest against the doctrine of the United
States."

Suppose, however, the modem rule to be as the Dominion contends ; we are now
interpreting an old charter, and we cannot interpret it by a new rule. The object is to
find out what the intention at the time was ; and we are not for that purpose to make
ase of modern rules not known and acted on at the time the charter was granted. I do
not find any ground whatever for holding that the rule which my learned friends contend
for was a recognized rule at that time, if there is any reason for maintaining its subse-
quent adoption and reoognition.

Again, all international rules are founded on reason and necessity ; it is because they
are supposed to be just that the rules are reoognized. If ih some oases it may be just *
and reasonable that the possession of the coast should give a title to all the land watered
by the rivers, back to the height of land, this cannot apply to a river 3,000 miles long.
So far fnnn being a matter of necessity or reason, it is absurd that the possession of a
few miles of coast on Hudson's Bay should give the right to a river 3,000 miles long, and
to half a continent of territory which that river happens to water. General rules respect-
ing the rights of nations most be applied in a moderate and reasonable way, and not to
cases to which the application cannot be defended on grounds of reason and justice. If
such a rale exists as my learned friends contend for, there is no reason, justice or good
sense in applying it to a case of this kind.

Further, possession as well as discovery is needed in order to give to a nation the
rights for which my learned friends contend. The facts are, that the French, from the
beginning of the seventeenth century, were in possession of the territory to the south
of ^e lands watered by the rivers flowing into Hudson's Bay, and were from time to
time extending their explorations and settlements, as they had a right* to do, to the head
waters of the rivers flowing into Hudson's Bay, and to the interior of the country. They
had various forts and settlements in the interior, and these settlements were not objected
to by the En^ish, nor could they have been. Supposing the rule to have been what the
Dominion contends that it was, the fact of the French being in possession of the territory
to Uie south of the rivers, and extending their territory from time to time, would bar the
discoverers of the bay — ^if the Company were the discoverers — from saying that, by
reason of the discovery, they could stop all further exploration in that direction. The
role, so for as it exists, is of effect only where the interior of the country can be reached
only through the cocMt discovered and settled.

The case of the Dominion is based on the assertion that the English were the first
diacoverers of the bay, but it is impossible to say with certainty who were the first dis-
coverers ; nor was the alleged discovery by the English followed by possession. The
voyage of Cabot, " grand pilot to Henry YII." (of England), into the bay, is said to have
taken place in 1517 ; but no sort of possession of any part of the bay by the English
before 1667 is pretended ; being an interval of 150 years. It would be extraordinary to
find a rule by which, after discovery being made and 150 years or more allowed to go by,
the advantage of that discovery can then be claimed as giving title to half a continent.
Oilham, a British subject, is said to have built, in 1667, Fort Charles (Rupert), which
was on the east side of the bay ; but in the meantime the bay had become known to the
world. In the list of miq[)s at p. 135 of the Book of Documents will be found a number
of maps of dates antecedent to the charter, and shewing the bay ; the country was well
known to everybody when Gilham built his fort

It is not material under the circumstances, but it is reasonably clear as a fact, that
the bay was repeatedly visited by Frenchmen from the French settlements on the St.
Lawrenee between 1656 and 1663. I refer the Arbitrators to page 108 of the Book of
Documents, the memoir of Sieur de Calli^res to the Marquis de Seignelay, the Foreign
Minister of France. My learned frimids dispute the truth of the statement in the
i&emoir of Sieur de Calli^res, that Father Dablon and Sieur Couture visited Hudson's
Bay in 1661 and 1663. M. de CalH^res is spoken of as a man of high character, and this



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



memoir was not written for the parpose of controversy, but was a confidential oommam-
cation to the Minister in France, who was the official superior of the writer. M. de
Calli^res was Governor of Montreal and afterwards of CanadsL I apprehend it will be
assumed at this late day that his statements were correct. He says : —

** As regards Hudson's Bay, the French settled there in 1656, by virtue of an arrH
of the Sovereign Council of Quebec, authorizing Sieur Bourdon, its Attomey-Q^neral, to
make the discovery thereof, who went to the north of said Bay, and took possession thereof
in His Majesty's name. In 1661, Father Dablon, a Jesuit, was ordered by Sieur
d'Argenson, at the time Governor of Canada, to proceed to said country. He went
thither accordingly, and the Indians, who then came from thenoe to Quebec, declared
they had never seen any European there. In 1663, Sieur d'Avaugour, GU)vemor of
Canada, sent Sieur Couture, Seneschal of the Cote de Beaupr6, to the north of the said
Hudson's Bay, in company with a number of Indians of that country, with whom be
went to take possession thereof, and he set up the King'a Arms there. In the same year,
1663, Sieur Duquet, King's Attorney to the PrevSte of Quebec, and Jean I'Anglois, a
Canadian colonist, went thither again by order of the said Sieur d'Argenson, and
renewed the act of taking possession by setting up His Majesty's Arms there a seoond
time. This is proved by the arrH of the said Sovereign Council of Quebec, and by the
orders in writing of said Sieurs d'Argenson and d'Avaugour." There is a detailed
account, of which the Governor of the Province is sending a confidential communication.

I refer also to the statements of M. de Denonville, Governor-General of Canada, to
the Foreign Minister. They will be found at page 111 of the Book of Documents.
M. de Denonville says : — " On the 29th of April, 1627, a new (company) was organized,
to which the King (Louis XIII.) conceded the entire country of New France, called
Canada, in latitude from Florida, which His Majesty's royal predecessors had had settled,
keeping along the sea coasts as far as the Arctic Circle, and in longitude from the Island
of Newfoundland westward to the great lake called the Fresh Sea, and beyond, both
along the coasts aiyl into the interior. Since that time, the fVench have continued their
commerce within the countries of the said grant In 1656, Jean Bourdon ran along the
entire coast of Labrador with a vessel of thirty tons, entered and took possession of the
North Bay. This is proved by an extract of the ancient register of the Council of New
France on the 26th of August of the said year. In 1661, the Indians of said North Bay
came expressly to Quebec to confirm the good understanding that existed with the French,
and to ask for a missionary. Father Dablon went overland thither with Sieur de laYalli^re
and others. Father Dablon has given his certificate of the fact In 1663 those Indians
returned to Quebec to demand other Frenchmen. Sieur d'Avaugour, then Governor,
sent Sieur Couture thither with five others. Said Sieur Couture took possession anew of
the head (fonds) of said Bay, whither he went overland, and there set up the King's Arms
engraved on copper. This is proved by Sieur d'Avaugour's order of May 20bh, 1663,
and the certificates of those who were sent there." These also are statements ma4e con-
fidentially by a man of high character, who ought to know, to his official supericHr in
France.

I find the following on this subject at page 3 of the Dominion Case : — ** It appears
that in the year 1656 there was an order of the Sovereign Council of Quebec authorizing
Sieur Bourdon, its Attorney-General, to make a discovery thereof. There is no record
whatever of his having attempted to make the discovery in the Same year in which the
order was passed by the Council. There is a record, however, of his having made the
attempt in the year following (1657), and he may then have designed carrying out the
Qrder. He sailed on the 2nd day of May and returned on 1 1th August, 1657; and it is not



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 54 of 86)